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NH could face a class-action lawsuit over care for older foster youths

DCYF

Child advocates: Damning report on Tennessee youth facility is one worry of many

This story was originally produced by the New Hampshire Bulletin, an independent local newsroom that allows NHPR and other outlets to republish its reporting.

Child Advocate Cassandra Sanchez was intentionally detailed and unsparing in describing what she saw and heard while checking on two boys the New Hampshire Department of Health and Human Services had sent to a Tennessee treatment facility.

Children said staff offered them incentives to assault other children, Sanchez wrote in a 17-page reportafter visiting Bledsoe Youth Academy in Gallatin, Tenn. Cameras in bedrooms left little privacy to change. Kids suffered rug burns while restrained face-down on a carpet.

And Sanchez said that New Hampshire officials have not kept an adequate database of reports of those restraints and seclusion actions for kids out of state, which could have signaled the problem earlier.

“That is a clear dereliction of the duty of care entrusted to the Division (of Children, Youth, and Families), as well as interference with the (Office of Child Advocate’s) oversight obligations,” Sanchez wrote.

The media attention that followed helped Sanchez accomplish what she wanted most: The state Department of Health and Human Services, which she said had never done an on-site evaluation to certify Bledsoe Youth Academy, promptly returned the boys to New Hampshire.

But advocates for children want the public to know this is not the only case raising serious concerns about the state’s handling of cases when it removes children from their homes over abuse and neglect concerns.

In a federal lawsuit filed in 2021 against Gov. Chris Sununu and Department of Health and Human Services officials, New Hampshire Legal Assistance, Disability Rights Center-NH, ACLU New Hampshire, and the national advocacy group Children’s Rights are alleging the state is systematically and unnecessarily institutionalizing older foster youth rather than placing them in homelike settings within or close to their communities.

On Monday, the parties asked the U.S. District Court in New Hampshire to certify the case, which they filed in 2021 on behalf of four youths, as a class action lawsuit.

In a pleading, the parties allege that the state is over-reliant on congregate or institutional settings because it has failed to recruit and train foster families that can support high-needs kids and neglected to find youth placements with relatives.

The consequences are significant, the lawsuit alleges. Spending months or longer in institutional settings, rather than with foster families or relatives in their communities, can be traumatic and lead to homelessness, unemployment, and lack of educational attainment, it says.

If the court agrees to make the case a class action, foster youth would have to meet four criteria to qualify. They’d have to be between 14 and 17; be in legal custody or under the protective supervision of the Division for Children, Youth, and Families; have a mental diagnosis or record of one that substantially limits a major life activity; be “unnecessarily” placed in a congregate care setting or be at risk of that.

While it’s unclear how many youths could be included if the court agrees to make the case a class action lawsuit, the lawsuit suggested it could be many. As of April 2022, there were 196 older foster youth in DCYF custody, the lawsuit stated, citing department records. Of those, at least 184 had a mental health diagnosis recorded in the state’s Medicaid Management Information System. The lawsuit did not indicate how many of them were in congregate care settings.

“The Office of the Child Advocate has historically highlighted concerns with the frequency in which our state systems place children in residential care settings,” Sanchez wrote in her report on Bledsoe Youth Academy. “This concern becomes heightened when children are placed out-of-state, away from family and community connections, into programs that do not have the level of oversight as in-state programs. Although acknowledged by many key stakeholders in New Hampshire, this is an issue we can no longer observe without action.”

Congregate care is the ‘default’

During a deposition for the lawsuit, Theodore Cross, a psychologist chosen by the plaintiffs as one of its expert witnesses, said he felt the state was not taking full advantage of non-congregate care opportunities.

“I did not see indications that this kind of searching for community-based alternatives was conducted, and therefore, from that, I concluded that use of congregate care was being used as a default placement for youth,” Cross said in May.

Nationally, an average of 39.8 percent of older youth with mental health diagnoses were placed in congregate care in 2019, according to the lawsuit. New Hampshire’s average that year was 90.5 percent, according to the lawsuit.

The four youths named as plaintiffs were removed from their homes over abuse or neglect cases and all had been diagnosed with mental health diagnoses, the lawsuit states.

They wanted to be in homelike settings, in their communities. But according to the lawsuit, DCYF told one of the youths “that no one wants them.”

In court filings, they are identified only by their initials and ages, which range from 14 to 16. The institutions they had been placed in were prioritizing discipline over therapeutic care, if there was care at all, the lawsuit alleges.

In one alleged case, a youth identified as R.K. saw their mother only once during a two-month stay at one facility and never saw their siblings, according to the lawsuit.

“(The facility) was a punitive and menacing environment where (R.K.) continuously experienced harsh treatment and ridicule by a particular staff member,” the lawsuit alleges. “While there, staff threatened to strip R.K.’s room and remove their clothing as a consequence for refusing to take their ADHD medication that interfered with their ability to sleep.”

The lawsuit describes the challenges another youth, T.L., was experiencing.

“The facility is often punitive in nature and T.L. perceives staff as uncaring and inattentive,” it said. “Basic needs, such as food and clothing are regarded as privileges.”

The state has disputed the lawsuit’s allegations on various legal grounds in court filings.

“It is important to note that many New Hampshire youths requiring specialized services are well cared for by out-of-state programs,” said Department of Health and Human Services spokesperson Jake Leon when asked about the Office of the Child Advocate’s report on Bledsoe Youth Academy. “Some out-of-state placements are essential because some youth need specialized services; some placements in bordering states may be better for the family or may be closer to a youth’s home community.”

‘We’re not there yet’

Sanchez was so concerned following her visit to the Bledsoe Youth Academy that she emailed the Bureau of Children’s Behavioral Health at DHHS, which oversees child placements, from the parking lot there. She also reported her concerns to the Tennessee officialswho license facilities like Bledsoe.

Bledsoe did not return a message seeking comment.

Sanchez acknowledged DCYF had been checking in on the children placed at Bledsoe. But she said the bureau would have shared her concerns about the facility and programming if staff had evaluated both during an on-site visit as required before awarding it certification.

“(DCYF child protection workers) are not walking around getting a tour asking questions the way we are,” Sanchez said in an interview. “I believe in one way the state’s feeling, ‘These children have been seen.’ But we’re voicing things that just meeting with the children is not enough to fully assess. So I do feel that they would have identified it sooner if they had visited.”

She noted in her report that staff could not explain the complicated point system that determines a child’s privileges and punishments. Children were dressed in color-coded jumpsuits based on behavioral needs or punishments, a system that communicated personal information to all staff and kids.

The facility appeared dirty, Sanchez wrote, had little recreation space, and was defined by a “culture of shame, humiliation, and inhumane punishment.”

Leon, DHHS’ spokesperson, said the department had fulfilled its obligations when it certified Bledsoe for out-of-state placement and is investigating whether more visits to facilities would be appropriate. He also said that if DCYF was not receiving reports of seclusions and restraints, a concern Sanchez raised, it would take appropriate action.

Sanchez made 11 recommendations in her report recounting her visit. Those included placing children in only New Hampshire or New England facilities that offer evidence-based treatment. DCYF staff should meet with children monthly, in person, and the state should visit out-of-state facilities in person on a quarterly basis, she said.

Sanchez said she also plans to investigate the issues of out-of-state placements more broadly and report them to DHHS.

There are currently 93 youths being served out of state, including 10 youths outside New England in Arkansas, Florida, Mississippi, Missouri, Pennsylvania, and Tennessee, Leon said.

Leon highlighted the investments the department has prioritized to increase preventative care and treatment in New Hampshire. It has also added specialized care that had previously been available only out of state.

“Over the past five years, we have been establishing the children’s behavioral health system of care to reduce out-of-state placements,” he said. “This includes rebuilding our youth behavioral health, child welfare, and juvenile justice systems around a trauma-informed, treatment-oriented model that puts the child and family first.”

Sen. Becky Whitley, a Hopkinton Democrat who has led legislative efforts to expand and improve treatment and protections for children, noted those investments as well. Part of that effort includes more supports for new mothers and children not involved in the child protection system.

“I think what’s important to remember is that we continue to be in the midst of a system transfer,” Whitley said. “I think (these concerns) are emblematic of the failure to have a fully integrated system and the fact that we’re just not catching kids and families early enough,” she said in an interview. “I think this Tennessee example (involving Bledsoe Youth Academy) is important for us to realize that we’re not quite there yet. And we have to keep our foot on the gas to get the system where we need it to be.”

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