Filed on January 5, 2021, this case argues that New Hampshire is violating the constitutional and statutory rights of older youth in foster care and putting children at severe risk of dangerous and tragic outcomes. The class action lawsuit 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.
The complaint focuses on specific structural failures that are harming older youth in foster care, all of whom have already experienced the trauma of being separated from their families and removed from their homes. The class action is brought 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”). In addition to failing to place older foster youth in community-based family settings that will help them thrive, the complaint 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.
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%.
New Hampshire DCYF also moves older foster youth from placement to placement with alarming frequency. In 2018, older youth living in New Hampshire’s foster care system for less than a year were moved more than three times more frequently than the national standard, an alarming disparity, with New Hampshire’s rate increasing in 2019. This constant movement from place to place can have severe consequences for social and emotional development, cause mood disorders, anxiety disorders, and behavior problems, and lead to further placement instability.
Youth in New Hampshire who age out of foster care at the age of 18 are often without permanent homes and are more likely to experience homelessness, incarceration, and unemployment, and less likely to graduate from high school or earn a GED, vocational, or college degree.
The lawsuit seeks to stop these ongoing violations of the rights of older youth in foster care in New Hampshire, and remedy the structural failings that harm youth and leave them at risk of harm. The State has moved to dismiss the lawsuit, and the plaintiffs filed their objection on April 7, 2021. On September 9, 2021, the district court dismissed plaintiffs' right-to-counsel claim, but allowed all other claims to proceed.