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FILE NO., COURT, AND DATE FILED
91-376 (D.N.H., Aug. 28, 1991)
CITATIONS
1993 WL 764420 (D.N.H. Dec. 16, 1993) (unreported); 848 F. Supp. 303 (D.N.H. 1994)
CLEARINGHOUSE REVIEW NO.
None
ATTORNEY FOR PLAINTIFFS
Ronald K. Lospennato
Disabilities Rights Center
18 Low Avenue
Concord, NH 03301
(603) 225-0432
Fax: (603) 225-2077
advocacy(at)drcnh.org
ISSUES
This class action litigation against the New Hamphire Division of Children, Youth, & Families (DCYF), and the New Hamphire Department of Health & Human Services (DHHS) was brought on behalf of all children in foster care, (or at risk of being placed in foster care), and all children who are known or should be known to the state due to reports of abuse or neglect. The class was also divided into three separate subclasses.
The case challenges the state's failure to investigate properly abuse/neglect reports; provide services to keep families together; provide safe and stable placements for children who cannot live at home; and provide proper care, services, and stable, appropriate placements to children with disabilities.
The complaint includes claims under Title IV-E, the Child Abuse Prevention and Treatment Act (CAPTA), the Americans with Disabilities Act (ADA), and
504 of the Rehabilitation Act. The complaint also includes an equal protection claim on behalf of a subclass of children with disabilities, substantive due process claims regarding adequate treatment and family association rights, and a procedural due process claim regarding interests guaranteed by state law.
HISTORY AND STATUS
The district court certified the class in December 1993. In March 1994, the court granted in part and denied in part defendants' motion to dismiss. The court concluded that the Title IV-E and CAPTA claims should be dismissed pursuant to Suter v. Artist M., but expressed doubt about Suter's proper interpretation in light of First Circuit case law. The court also dismissed some of plaintiffs' constitutional claims. The court denied the motion as to plaintiffs' ADA and 504 claims.
An interlocutory appeal to the First Circuit was denied in January 1995. Plaintiffs then sought reconsideration of the district court's dismissal of their statutory claims, in light of the "Suter fix" legislation.
On July 29, 1997, the court granted final approval of a negotiated settlement agreement. The agreement included provisions for DCYF to adopt and implement policies and procedures that speed the adoption process, to perform timely assessments of reports of abuse or neglect, and to ensure that all children in foster care receive adequate medical and mental health care services. The settlement also calls for additional training for DCYF's child protection staff and increased foster parent recruitment and training. A three member Oversight Panel supervises DCYF's performance.
The agreement was to expire on September 1, 2002. However, in April 2002, the court approved a stipulation by the parties to modify and extend the settlement. After the parties participated in mediation, the court approved a second modification in June 2002.
After continued monitoring, plaintiffs filed a motion to enforce the settlement. On September 14, 2004, the court appointed David Garfunkel to serve as a Special Master.
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