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Judge Rules in Favor of Disabled Foster Children in Lawsuit Against NC DHHS

Troubling claims made in class-action suit

A lawsuit against NC DHHS claims the agency confines foster children with disabilities in dangerous and abusive psychiatric residential treatment facilities
A lawsuit against NC DHHS claims the agency confines foster children with disabilities in dangerous and abusive psychiatric residential treatment facilities. (Photo by Mariia Nazarova/AdobeStock

A federal judge recently denied a motion from the NC Department of Health and Human Services (DHHS) to dismiss a class-action discrimination lawsuit that makes troubling claims against the department, according to a Disability Rights North Carolina (DRNC) April 11 press release

The complaint, filed in 2022, alleges DHHS confines foster children with disabilities in dangerous and abusive psychiatric residential treatment facilities (PRTFs), isolating them from safe housing and community services otherwise provided to foster children.

US District Court Judge William L. Osteen Jr. rejected DHHS’ attempt to dismiss the case, saying the services the children describe receiving at PRTFs are “at best, inadequate, and, at worst, highly abusive.”

The complaint described the restrictive and “often clinically inappropriate” PRTF practices largely ignored by the DHHS. 

Children sent to these institutions regularly face physical trauma including broken bones, sprains, bruises and sexual assault, emotional abuse and dangerous physical and chemical restraints administered by a “poorly trained and understaffed workforce,” the complaint alleges. 

Black and brown children are particularly affected by these conditions, as they are disproportionately represented in DHHS’ foster care system and sent to PRTFs at higher rates.

Despite these known conditions, DHHS sent at least 572 children in foster care to PRTFs in 2020, the complaint stated. 

In a recent three-part WUNC investigative series titled “Out of Sight,” NC DHHS reported to the public radio station that more than half of the 1,158 children sent to PRTFs in 2023 were in foster care. 

The series also reported that children in foster care are 10 times more likely to enter a PRTF, with conditions so grim a leading NC state senator said he “would not have boarded [his] dog” in two since-closed PRTFs he visited last year.

DHHS is aware of these conditions through its regular monitoring of the facilities, cataloging the abuse and neglect in public reports. Still, the agency continues to pay millions to the private companies profiting from PRTFs rather than supporting more effective and less expensive community placements, DRNC claims. 

“The evidence that PRTFs harm children is overwhelming, yet we continue to spend millions of taxpayer dollars sending children we have vowed to protect to these facilities. We hope the court’s ruling sends a strong signal that DHHS cannot continue ‘business as usual’ and must make significant, lasting changes to its children’s mental and behavioral health system,” stated Virginia Knowlton Marcus, chief executive officer at DRNC, in Thursday’s press release.

In an attempt to have the case dismissed, DHHS claimed the children were placed in the PRTFs by treatment professionals with the blessing of state courts, a claim rejected by the judge as DHHS “has created a system where unjustified institutionalization is often the only choice, even when community-based placements and services would be more appropriate.” 

The press release also noted the court’s rejection of a DHHS argument that the children’s opposition to their placement in the PRTFs didn’t matter because their Division of Social Services guardians signed off on the placements marks an important victory for often overlooked and ignored children.

Five named plaintiff children are involved with the lawsuit on behalf of a class of North Carolina youth in foster care with mental and behavioral health needs, together with Disability Rights North Carolina (DRNC) and the North Carolina Branch of the NAACP (NAACP-NC) as organizational plaintiffs, according to the release. 

The plaintiffs are represented by lawyers at DRNC, NAACP-NC, national advocacy organization Children’s Rights, and pro bono counsel from Moore & Van Allen, PLLC law firm.

Read more: Foster Village Charlotte Connects Foster Families with Much-Needed Resources (2019) 

“We are gratified that the judge has upheld all our claims and hopeful that DHHS will work with us to address the profound harm being done to children in North Carolina,” said Marissa C. Nardi, lead counsel at Children’s Rights. 

“This decision makes it clear DHHS must stop unnecessarily institutionalizing children and instead provide the community supports they need. It also elevates the voices of our young clients who so badly wish — and deserve — to live normal childhoods outside of the PRTF walls.”

There are no set court dates for future hearings at the time of this writing. 

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