Bar News Masthead

January 6, 2021

By Scott Merrill

A class-action lawsuit filed against the state of New Hampshire by advocates of children’s rights groups received a harsh reaction from Governor Sununu on Jan. 5.

The suit, which cites structural deficiencies and claims the state is violating the constitutional and statutory rights of older youth in foster care, putting children at “severe risk of dangerous and tragic outcomes,” was brought by the ACLU of New Hampshire, Disability Rights Center – NH, New Hampshire Legal Assistance, the national advocacy group Children’s Rights, and the law firm Weil, Gotshal & Manges LLP.

In a statement, Gov. Sununu refers to the suit as a “special interest lawsuit,” backed by Wall Street law firms, “which preys on child protection programs across the country.”

“This New York based entity doesn’t care about our kids.  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,” the statement says.

The Governor’s statement says his administration has made more progressive reforms to the state’s child welfare system “than any administration in history.”

But according to Karen Rosenberg, Senior Staff Attorney at Disability Rights Center – NH,  the class action lawsuit which includes hundreds of youth, between 14 to 17 year-olds with mental impairments who are in DCYF custody resulting from founded instances of abuse or neglect.

“We’re not saying that DCYF has done nothing helpful,” Rosenberg said, “But, this lawsuit is not about the DCYF’s efforts to reduce caseloads of its workers or the voluntary programs put into place to prevent kids from being removed from their families, it’s about kids in those teen years, 14-17 years-old, who have ended up in court, in which abuse or neglect allegations have been founded and now decisions are being made about where they’re going to live.  Unfortunately, in the overwhelming majority of these cases, children are being sent to live in congregate care facilities, instead of with relatives or foster families who could better meet their needs.”

In addition to failing to place older foster youth in community-based family settings that will help them thrive, the lawsuit asserts that the state unconstitutionally denies older youth legal representation when placing them in restrictive group care settings and violates federal law by failing to adequately and timely provide and implement critical case plans.

“Too many older youth in New Hampshire are subject to unnecessary warehousing by a state system that prioritizes 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 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.”

Compared to other states, New Hampshire disproportionately places older foster youth in group settings, which are known to have profoundly negative impacts on children’s social, emotional, and physical wellbeing. In 2019, the majority (70.3%) of foster youth in the Granite State ages 14 through 17 were housed in congregate care facilities—the national average for this age group is 31%. This is even worse for older youth with mental health diagnoses—in 2019, 90.5% were placed in congregate care settings compared to the national average of 39.8%.

“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.”  Rosenberg said.