CONCORD, NH – The state of New Hampshire routinely and unlawfully places abused and neglected older teens, many suffering from mental health issues, in institutions rather than with relatives who want them or with foster families, according to a class-action federal lawsuit.
The class-action lawsuit was filed Jan. 4 in U.S. District Court by the ACLU of New Hampshire, the Disability Rights Center – NH, N.H. Legal Assistance, the national advocacy group Children’s Rights, and the law firm Weil, Gotshal & Manges LLP of New York, NY.
It was filed on behalf of children ages 14 to 17 who are in the custody of New Hampshire’s Division for Children, Youth and Families (DCYF), have a mental health impairment, and are in, or are at risk of being placed in, an institutional or other group facility setting (also called “congregate care”).
Gov. Chris Sununu was clearly angered by the lawsuit which he said was an attempt to grind to a halt reforms the state has made to a system addressing the needs of abused children.
“You have an organization in New York that is known nationally for preying frankly on these types of systems – in our state NH Division of Children, Youth and Families (DCYF) — looking for settlements, looking for long-term pay-outs,” he said when asked about it during a news conference on the status of COVID-19 in the state. “We have made more progressive reforms in our child welfare system in New Hampshire in the past couple of years than in the history of the state.”
He said when he became governor there was a real crisis in the foster care system. “We dealt with it and we jumped right on top of it,” the governor said.
Sununu was “greatly disappointed” at the New Hampshire partners that helped file the lawsuit because “they know the reforms we’ve brought here.”
He conceded, however, that the system is not perfect.
Those imperfections are spelled out in the lawsuit in which the four plaintiffs – identified only with initials and by age, two 14, two 16 – give their experiences in the foster care system.
“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. These teens need to feel connected to their families, friends, schools, and communities to navigate the transition from childhood to adulthood. By unnecessarily institutionalizing older youth who could receive mental health treatment and supports in their communities and live successfully with family members or with foster families, New Hampshire unlawfully deprives children in its care of the community-based services and family placements they need to grow into successful adults.” said Karen Rosenberg, Senior Staff Attorney at Disability Rights Center – NH.
The four teens were placed in institutions after being removed from their families because of abuse and/or neglect. None of them was represented by an attorney before the state took that action.
According to the lawsuit, in fiscal year 2019, there were about 545 children ages 14 through 17 in legal custody or protective supervision of the state Division of Children, Youth and Families. At least 70.3 percent of them were currently or most recently placed in congregate settings.
All older foster youth in N.H. experienced the trauma of being separated from their families and removed from their homes. According to the lawsuit, due to systemic failure, as youth with mental health disabilities move through the state’s foster care system, they suffer additional harms and risks of harm. They are unnecessarily warehoused in congregate care facilities and are frequently shuttled from one unstable placement to the next, the lawsuit alleges.
The state routinely places them in congregate care facilities with more than half residential treatment facilities located out of state. Older youth may be placed in restrictive settings in neighboring states or as far away as Arkansas, Missouri, Tennessee, Iowa, Virginia, Florida, Oklahoma and Arizona.
The rates are even higher for those with a mental health diagnoses. In Fiscal Year 2019, 90.5 percent had a current or most recent placement setting in a group home or institution, compared to the national average of 39.8 percent. During that same period, only 7.7 percent of NH’s older youth with a DSM-V diagnosis were placed in a family foster home, compared to 47.2 percent nationally.
One of the 16-year-old plaintiffs was removed from his family at the age of 4 because of abuse allegations. The child was briefly reunited with the family when about 6 years old but once again removed. DCYF has had legal custody of the child since.
The teen was diagnosed with ADHD, depression, anxiety and post-traumatic stress disorder. Between ages of 4 and 15, the child lived with eight foster families and in three congregate care facilities.
At 12, DCYF placed the child and a sibling in an adoptive home out-of-state. That family agreed to adopt the pre-teen but not the sibling so DCYF, instead of approving the adoption, removed both children from the home and placed them at Nashua Children’s Home.
The teen stayed there for almost three years before being transferred to Chase Home, another congregate facility and apart from the sibling. Several months later, the teen was placed in a new foster home. When the teen experienced school difficulties, the teen was temporarily moved to another congregate care facility. That move triggered a mental health crisis resulting in the teen’s hospitalization. Once stabilized, a DCYF caseworker said the teen was no longer eligible to return to the foster family.
The child was then moved to Mount Prospect Academy’s Enhanced Residential Treatment (ERT) program, the state’s alternative to incarceration for juveniles. There, the teen was required to attend Mount Prospect Academy, a private special education school. The teen’s coursework consisted mainly of worksheets that lacked the rigor of public school. Initially, the teen understood the ERT stay was for a weekend but that turned into summer and then into a year with no prospect of returning to a family. The teen’s depression worsened and manifested itself in school refusal.
As a result, ERT moved the teen to the most restrictive housing unit and required the teen to attend ERT’s on-grounds school.
The teen’s time at ERT “was extremely unpleasant and depressing,” according to the lawsuit. The teen found “staff uncaring and hostile, especially as staff regularly relied upon physical restraints to assert power and control.”
The teen’s last day at ERT began with staff yelling at the teen for not attending school. Frustrated, the teen threw a water bottle resulting in the teen being restrained by staff. An altercation ensued with the teen, for the first time, charged with a delinquency offense – assault and criminal threatening. The teen was committed to the Sununu Youth Services Center (SYSC). After six months, the teen was sent to yet another congregate-care facility, this time out-of-state.
In the 10 years the teen has been in foster care, the teen has never had legal representation despite being placed in restrictive congregate care environments.
One 14-year-old plaintiff was removed from the family home two years earlier because of allegations of abuse and/or neglect. Police accompanied the DCYF staff in removing the teen, grabbing the child’s arm and pulling the teen into the car.
The teen was separated from mother, siblings and a service dog the teen had for years to help manage anxiety and panic attacks.
The child had experienced a significant traumatic event at age 4 resulting in a diagnosis of anxiety, ADHD, Attention Deficit Disorder, bipolar disorder and schizophrenia, which makes it difficult to control behaviors and which affects sleep and ability to focus. The teen was prescribed medication.
At the time of removal, the teen was attending Crotched Mountain School as a day student. Instead of placing the teen in a foster home or with relatives or other kinship caregivers, the teen was placed in the residential program at Crotched Mountain in Greenfield.
In September 2019, DCYF moved the teen to an out-of-state congregate care facility. That facility, according to the lawsuit, is often punitive in nature. The teen perceives the staff as uncaring and inattentive. Food and clothing are regarded as privileges. Youth are not permitted to go into the refrigerator or have an evening snack. The teen does not have winter boots, snow pants or clothes that fit properly.
The lawsuit alleges the teen also has been placed in painful restraints while at the facility and witnessed staff putting other youths in restraints as well, which is upsetting and anxiety-provoking.
The teen has two younger siblings who were placed in a foster home. The teen asked to live with the siblings but DCYF denied the request.
The other 14-year-old, removed from the family home at age 12 because of alleged neglect, is diagnosed with ADHD and experienced significant trauma following the incarceration of the father.
When removed, the pre-teen was separated from siblings and placed at Webster House in Manchester where, because at a young age, the youth had the lowest level of privileges. The youth was not allowed to visit friends at their homes, talk to them on the phone and had an 8 p.m. bedtime. Another arbitrary rule was no singing in the residence; violation of that rule resulted in a 15-minute time-out.
Throwing an item that damaged a phone and washing machine resulted in the youth’s transfer to Mount Prospect Academy’s Comprehensive Assessment and Short-term Treatment (CAST) program in Plymouth, an hour away from home.
The youth was required to attend Mount Prospect Academy’s on-grounds school for two months before being transferred into its ERT program even though the youth had no delinquency convictions and was legally ineligible for detention or commitment to Sununu Youth Services Center (SYSC).
ERT was a punitive and menacing environment where the youth continuously experienced harsh treatment and ridicule by a particular staff member, according to the lawsuit. While there, staff threatened to strip the youth’s room and remove clothing for refusing to take ADHD medication that interfered with the youth’s ability to sleep. For refusing medication, the youth was denied privileges including playing video games.
The youth was frequently physically restrained for minor verbal outbursts, including swearing, while attending the on-grounds school. Teaching staff frequently were not familiar with the subject matter, schooling consisted of worksheets, often significantly below the youth’s academic level.
One time, the youth was denied bathroom privileges for drawing on a table in class. The youth tried to force their way into the bathroom and sustained a “head injury that required stitches following physical restraint by two staff members,” the lawsuit alleges.
After 18 months at ERT, the teen was charged with first-time delinquency offenses, all alleging to have occurred on ERT grounds, and was committed to SYSC.
Through it all, the youth wanted to live with a grandmother, a licensed foster parent in New York State. An aunt who lives in Manchester also expressed a willingness and desire to care for the youth. The teen does not understand why that opportunity was not available.
In the two years since being removed from the home, the teen has had six separate social workers.
The lawsuit alleges N.H. subjects older youth to unnecessary warehousing by prioritizing institutionalization over family and community.
“The physical, emotional, and mental harms associated with placement in congregate settings are well known and lead to tragic outcomes including homelessness, unemployment, incarceration, and a lack of educational attainment,” said Shereen White, Senior Staff Attorney at Children’s Rights. “The 2 risks of serious harm to these youth are even more imminent during the COVID-19 public health emergency, because social distancing is virtually impossible in group care facilities.”