Case Against Illegal Institutionalization of Older Youth in DCYF Custody Now a Class Action Suit

Concord, NH – The United States District Court for the District of New Hampshire granted class

certification in G.K. et al. v Sununu et. al. The ruling allows plaintiffs to pursue an end to the

unnecessary institutionalization of older youth with mental health disabilities in New

Hampshire’s foster care system as a class action.

In their complaint filed in January 2021, plaintiffs assert that New Hampshire’s foster care

system is failing older youth by using institutional placements rather than placing youth in the

community with necessary services. Compared to other states, New Hampshire places a much

higher percentage of older foster youth in congregate care settings, which can seriously harm

children’s social, emotional, and physical wellbeing. A lack of appropriate services can also lead

to tragic outcomes such as homelessness, unemployment, incarceration, and poor educational

achievement.

In the order today, the Court stated that “[a] 2022 federal report found that 27% of all foster

children in New Hampshire are in congregate care placements, compared to 9% of foster

children nationally.” “The problem is even more pronounced for adolescent foster children with

mental impairments.” The Court cited to the data analysis of one of the experts finding that

“77% of adolescent foster children with mental impairments have experienced at least one

congregate care placement, with many experiencing two or more such placements.”

The lawsuit’s class includes youth ages 14 to 17 who are in the custody of New Hampshire’s

Division for Children, Youth and Families (DCYF), have a mental impairment, and are either

currently in or at risk of being unnecessarily placed in institutions or group facilities.

The State of New Hampshire has spent millions of dollars fighting this lawsuit when it could instead be

focused on complying with its federal obligations to older foster youth in its care.

“This decision validates the very real experiences of the plaintiff youth who brought this suit,

and the many older foster youth who are among the certified class.” said Michelle Wangerin,

Youth Law Project Director at New Hampshire Legal Assistance. “We look forward to pressing

forward development of a system that ensures older foster youth removed from their homes due

to abuse or neglect have access to family homes and services in their local communities. Only

then will the State end its reliance on unnecessary institutionalization to serve this extremely

vulnerable population of youth.”

“Children should live in families with community-based supports, not in institutions, and the

State is failing them. We are pleased with the Court’s decision, and we will continue to fight to

have these vulnerable foster youth receive the services that they need and deserve so that they

can grow and thrive,” said Jennifer Eber, Litigation Director of Disability Rights Center – NH.

“Nationally, the harm to kids from unnecessary institutionalization is widely recognized, yet

New Hampshire is entrenched in supporting facilities rather than families and community-based

care. It’s unlawful and wastes millions in taxpayer dollars.

New Hampshire is an outlier on this issue and with this decision, our clients can move forward with pursuing an end to this injustice,” said Madeleine Kinney, senior staff attorney at Children’s Rights.

Plaintiffs are represented by:

Disability Rights Center-New Hampshire: Jennifer Eber and Kayla Turner.

New Hampshire Legal Assistance: Michelle Wangerin and Kay Drought.

ACLU of New Hampshire: Gilles Bissonnette and Henry Klementowicz.

Children’s Rights Inc.: Ira Lustbader, Madeleine MacNeil Kinney, Kathleen Simon,

Carolyn Hite, Aarti Iyer, and Rebecca Ritchin

Weil, Gotshal & Manges LLP: Diane Sullivan, Konrad Cailteux, Katheryn Maldonado,

Kathleen Stanaro, and Sarah Ryu