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ACLU, Disability Rights Center Sue State Over Treatment Of Foster Care Youth

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The New Hampshire Disability Rights Center is suing the state of New Hampshire in federal court over its treatment of foster youth with mental health impairments, alleging that the state is over-institutionalizing them and putting them at “severe risk of dangerous and tragic outcomes.”

The 61-page lawsuit, brought jointly with the American Civil Liberties Union of New Hampshire, New Hampshire Legal Assistance, and Children’s Rights, Inc., alleges that children aged 14 to 17 in New Hampshire state custody have had their constitutional rights violated by the state, and are not provided adequate legal representation.

Gov. Chris Sununu condemned the class action lawsuit Friday, which he called a ploy by a national special interest group – Children’s Rights, Inc. – to seek attention and bring recent state reforms “to a grinding halt.”

But representatives for the New Hampshire-based organizations said in statements that the lawsuit was rooted in problems specific to New Hampshire, which they said houses teenagers in group homes at a disproportionally high rate compared to other states.

The organizations point to federal data from 2019 showing that in New Hampshire, 90% of foster kids age 14-17 with a mental health diagnosis were in group homes rather than foster families, putting New Hampshire at the bottom of the list for in-home foster care placement. 

The lawsuit features four plantiffs, “G.K.,” “C.I.,” “T.L.,” and “R.K.,” each of whom are children in the system. The genders of each of the plaintiffs have been kept anonymous in the pleadings.

G.K., 14, was removed from their parents’ when they were 12, and has been in a congregate care facility in New Hampshire ever since.

G.K. has received community mental health services and attends public school, but they have remained at the group home after being told DCYF “that no one wants them,” the lawsuit alleges.

G.K. wants to contest their placement and to participate in meetings about their services, but has not been offered an attorney to help do so, the lawsuit says. Instead, they have had to rely on a volunteer court appointed special advocate (CASA) for representation.

The lack of legal representation has put other teens in similar situations, such as C.I., T.L., and R.K., the lawsuit continues, subjecting them to alleged verbal abuse, restraints, and living restrictions in setting as varied as private group homes and the state’s Sununu Youth Services Center in Manchester. In each plaintiff’s case, decisions were made about their placement without a lawyer to represent them, the lawsuit says.

“During the approximately ten years that C.I. has been in DCYF custody, C.I. has never had legal representation in their dependency case, despite being placed in restrictive congregate care environments,” the lawsuit states about C.I., who is 16. “They believe that an attorney would have prioritized their desire to live with a family, even at the expense of separation from their sibling.

“Instead they were repeatedly told that they were too young to make that decision and left without an effective mechanism for expressing their desires to the state court in the dependency proceedings.”

By moving children with mental health challenges into group care, state officials are effectively “warehousing” them to the detriment of their well-being, the lawsuit alleges.

That approach cuts many of those children off from mental health services and more appropriate care – as well as the ability to grow up in family settings, the plaintiffs add.

“The teenage years are difficult for many children, but they are exponentially more challenging for children who have been removed from their parents due to allegations of abuse or neglect,” said Karen Rosenberg, a senior staff attorney at the Disability Rights Center, in a statement Tuesday. “These teens need to feel connected to their families, friends, schools, and communities to navigate the transition from childhood to adulthood.”

Group home living, in contrast, “unlawfully deprives children in its care of the community-based services and family placements they need to grow into successful adults,” Rosenberg added.

The lawsuit, filed in the U.S. District Court for New Hampshire in Concord, aims to force the state to provide legal counsel to youth in the system; prioritize the least restrictive placement for each child; and strive for access to community-based services for those youth.

It targets Gov. Chris Sununu and the state’s top health officials, including DHHS Commissioner Lori Shibinette, Division for Children Youth and Families Dir ector Joe Ribsam, and Medicaid Services Director Henry Lipman.

In a caustic statement Tuesday, Sununu blasted the lawsuit as opportunistic.

“This lawsuit is led by Children’s Rights Incorporated – a special interest group, backed by Wall Street law firms, which preys on child protection programs across the country,” Sununu said. “While some states have issues they need to address, here in NH we have made more progressive reforms to our state’s child welfare system than any administration in history.”

Sununu added that he was disappointed that New Hampshire organizations such as the DRC, ACLU and NHLA had joined in the effort after working with the state DHHS on reforms.

“This New York based entity doesn't care about our kids,” Sununu added. “They are looking for attention for themselves, and their legal maneuverings will bring our progressive reforms to a grinding halt. Shame on every single person associated with this effort.”

Shereen White, a senior staff attorney at Children’s Rights, wrote in an email to NHPR: "Legal action is a proven way to make change happen when all else fails. In the past 25 years, Children Rights has protected the rights of over 1.5 million children across the United States, resulting in better care and protection for them. In fact, many states, including those who have exited a law suit with a far better system in place, have recognized that harnessing the power of the courts proved to be the most effective tool to spark lasting reform."

In a written statement, Governor Sununu's office pointed to milestones in New Hampshire’s years-long effort to rebuild its child services agency, DCYF. The state has created an adoption exchange to help identify homes for children; has created adoption stipends for parents adopting children up to 21 years old; has reduced caseloads in DCYF and expanded voluntary services to help struggling families and head off separations; and had seen a record number of adoptions of children in state custody in 2018 and 2019, the office noted.

"New Hampshire is in a position to have a really remarkable system," said Moira O'Neill, the director of the Office of the Child Advocate. O'Neill said she could not comment on the merits of the lawsuit but said the state "needs to move faster" on its goals to improve child welfare.

Karen Rosenberg acknowledged that some children have seen improved services, but said that hundreds of youth in DCYF custody are "in a different boat.”

"The state's efforts have not really focused there or resulted in any improvement to what has been a really longstanding deficiency in our system, which is that there aren't enough foster families, it's difficult to have relatives to care for these kids, and there aren't enough community-based supports available," she said.

These articles are being shared by partners in The Granite State News Collaborative. For more information visit collaborativenh.org. This story was edited to provide more context; additional reporting came from NHPR reporter Sarah Gibson.