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Case Name Eric L. v. N.H. Dep't of Health & Human Servs. Dir. CW-NH-0001
Docket / Court 91-00376 ( D.N.H. )
State/Territory New Hampshire
Case Type(s) Child Welfare
Attorney Organization NDRN/Protection & Advocacy Organizations
Case Summary
On August 28, 1991, a class-action lawsuit was filed in the United States District Court for the District of New Hampshire under 42 U.S.C. § 1983 against the New Hampshire Department of Health and Human Services, and the New Hampshire Division of Children and Youth Services (DCYS). Plaintiffs, ... read more >
On August 28, 1991, a class-action lawsuit was filed in the United States District Court for the District of New Hampshire under 42 U.S.C. § 1983 against the New Hampshire Department of Health and Human Services, and the New Hampshire Division of Children and Youth Services (DCYS). Plaintiffs, represented by public interest and private counsel, sued on behalf of all children who have been placed in foster care or some other child care arrangement outside of their homes by DCYS, and on behalf of all children who have been abused and neglected and who are or should be known to DCYS by virtue of that abuse or neglect.

Plaintiffs sought declaratory and injunctive relief, claiming that DCYS violated Plaintiffs' substantive due process rights under the Fourteenth Amendment, as well as certain statutory rights. As to their constitutional claims, Plaintiffs alleged that DCYS failed to provide Plaintiffs with safe and humane conditions of treatment; stability in foster care placements; familial integrity; freedom from bodily restraint; and adequate procedural due process and equal protection. As to Plaintiffs' statutory rights, they alleged various violations of the Adoption Assistance and Child Welfare Act of 1980 (AACWA); the Child Abuse Prevention and Treatment Act (CAPTA); Section 504 of the Rehabilitation Act of 1973; and the Americans with Disabilities Act (ADA).

On December 16, 1993, the District Court (Senior District Judge Robert J. Kelleher) certified the Plaintiff class. Eric L. v. Bird, No. 91-cv-376-M, 1993 WL 764420 (D.N.H. Dec. 16, 1993).

On March 31, 1994, the District Court (District Judge Steven J. McAuliffe) granted in part and denied in part the Defendants' motion to dismiss. The Court dismissed Plaintiffs' substantive due process claims with respect to placement stability (holding Plaintiffs' complaint "pleads no facts tending to establish that DCYS's placement of children with successive foster parents is so devoid of justification as to give rise to a substantive violation of the Due Process Clause") and freedom from bodily restraint (holding Plaintiffs have made no allegations of being deprived of this right). The Court also found that Plaintiffs lacked a private right of action with respect to their AACWA and CAPTA claims. The Court allowed Plaintiffs to proceed with their remaining constitutional and statutory claims. Eric L. ex rel. Schierberl v. Bird, 848 F. Supp. 303 (D.N.H. 1994).

Discovery continued through the next few years, while Plaintiffs repeatedly asked the District Court to reconsider its ruling dismissing certain of their claims.

On June 2, 1997, the parties jointly asked the Court to approve a settlement agreement in which the Court would retain jurisdiction to enforce the terms of the agreement. The proposed settlement would be valid for five years, and would provide for: suitable training and supervision of child protective service workers and supervisors; timely assessment of reports of abuse and neglect; appropriate intervention with children and families to remedy identified problems; prompt development of permanency plans for children unable to return to their families; and support and training for foster parents. A three-member Oversight Panel would be created to monitor agency progress in complying with the agreement. The parties also agreed to settle Plaintiffs' claims for attorneys' fees and costs in the amount of $117,500.00, and precluded Plaintiffs from seeking further attorneys' fees in the matter, unless related to an action for breach of the agreement. The Court approved the settlement on July 29, 1997.

In April and July of 2002, with the five-year termination date of the settlement agreement approaching, the parties twice stipulated to modify the agreement. The second stipulation, which followed several days of mediation, extended certain provisions of the agreement to January 31, 2003.

On January 16, 2003, the Plaintiffs moved to enforce the settlement agreement. The Plaintiffs argued that the Oversight Panel continued to find shortfalls in the agency's performance, including shortage staff shortages, high caseloads, and high staff turnover. On September 30, 2003, the District Court (Judge McAuliffe) denied Plaintiffs' motion without prejudice, but indicated it was inclined to appoint a special master to "survey the compliance landscape and make findings of fact, and recommendations, with regard to both noncompliance and effective remedies." Eric L. v. Comm'r of N.H. Dep't of Health & Human Servs., No. Civ. 91-376-M, 2003 WL 22249827 (D.N.H. Sept. 30, 2003). Nearly a year later, on September 14, 2004, the Court appointed a special master.

On December 30, 2005, before any report was issued by the special master, the parties stipulated to dismiss the settlement agreement and the lawsuit with prejudice.

Dan Whitman - 03/14/2015

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Issues and Causes of Action
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Benefit Source
Adoption Assistance and Child Welfare Act
Constitutional Clause
Due Process
Equal Protection
Content of Injunction
Goals and Timekeeping
Other requirements regarding hiring, promotion, retention
disability, unspecified
Disability (inc. reasonable accommodations)
Family reunification
Foster care (benefits, training)
Incident/accident reporting & investigations
Individualized planning
Parents (visitation, involvement)
Pattern or Practice
Placement in mental health facilities
Placement in shelters
Relative caretakers
Restraints : physical
Siblings (visitation, placement)
Staff (number, training, qualifications, wages)
Plaintiff Type
Private Plaintiff
Causes of Action 42 U.S.C. § 1983
Adoption Assistance and Child Welfare Act of 1980 (AACWA), 42 U.S.C. § 620 et seq.
Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12111 et seq.
Child Abuse Prevention and Treatment Act, 42 U.S.C. § 5101 et seq.
Section 504 (Rehabilitation Act), 29 U.S.C. § 701
Defendant(s) New Hampshire Department of Children and Youth Services
New Hampshire Department of Health & Human Services
Plaintiff Description All children about whom DCYS had received a complaint of abuse or neglect; children entitled to DCYS services; and disabled children who have rights under N.H. R.S.A. § 169-C and (a) who are placed, or at risk of placement, with DCYS in short-term residential placement, or (b) who have been placed in foster care or some other out-of-home placement or whose families are in need or services, or (c) who have been labeled “unadoptable.”
Indexed Lawyer Organizations NDRN/Protection & Advocacy Organizations
Class action status sought Yes
Class action status granted Yes
Prevailing Party Plaintiff
Public Int. Lawyer Yes
Nature of Relief Attorneys fees
Injunction / Injunctive-like Settlement
Source of Relief Settlement
Form of Settlement Court Approved Settlement or Consent Decree
Order Duration 1997 - 2005
Case Closing Year 2005
Case Ongoing No
Additional Resources
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  Legal Accountability in the Service-Based Welfare State: Lessons from Child Welfare Reform
Date: Summer 2009
By: Kathleen G. Noonan, Charles F. Sabel, William H. Simon (Center for High Impact Philanthropy , Columbia Law School and Stanford Law School Faculty)
Citation: 34 Law & Soc. Inquiry 523 (Summer 2009)
[ Detail ] [ External Link ]

  Making Child Welfare Work: How the R.C. Lawsuit Forged New Partnerships to Protect Children and Sustain Families
Date: Nov. 1, 1998
By: Bazelon Center for Mental Health Law (Bazelon Center)
Citation: (1998)
[ Detail ]

1:91−cv−00376 (D.N.H.)
CW-NH-0001-9000.pdf | Detail
Date: 03/10/2012
Source: PACER [Public Access to Court Electronic Records]
General Documents
Order [ECF# 38] (1993 WL 764420) (D.N.H.)
CW-NH-0001-0010.pdf | WESTLAW | Detail
Date: 12/16/1993
Source: PACER [Public Access to Court Electronic Records]
Order [ECF# 39] (848 F.Supp. 303) (D.N.H.)
CW-NH-0001-0009.pdf | WESTLAW| LEXIS | Detail
Date: 03/31/1994
Source: PACER [Public Access to Court Electronic Records]
Proposed Class Action Settlement [ECF# 81]
CW-NH-0001-0003.pdf | Detail
Date: 06/02/1997
Source: PACER [Public Access to Court Electronic Records]
Second Stipulation Modifying The Settlement Agreement
CW-NH-0001-0004.pdf | Detail
Date: 07/03/2002
Source: Plaintiffs' counsel
Oversight Panel Issues Report on DCYF's Compliance in Fourth Year of Five Year Settlement Agreement
CW-NH-0001-0005.pdf | Detail
Date: 09/10/2002
Source: Plaintiffs' counsel
Judicial Protection Sought for Abused and Neglected Children
CW-NH-0001-0006.pdf | Detail
Date: 01/01/2003
Source: Plaintiffs' counsel
Order [ECF# 105] (2003 WL 22249827) (D.N.H.)
CW-NH-0001-0008.pdf | WESTLAW | Detail
Date: 09/30/2003
Source: PACER [Public Access to Court Electronic Records]
Order [Appointing Special Master] [ECF# 110] (D.N.H.)
CW-NH-0001-0011.pdf | Detail
Date: 09/14/2004
Source: PACER [Public Access to Court Electronic Records]
Stipulation of Dismissal [ECF# 118]
CW-NH-0001-0002.pdf | Detail
Date: 12/30/2005
Source: PACER [Public Access to Court Electronic Records]
Judges Kelleher, Robert Joseph (C.D. Cal.)
McAuliffe, Steven J. (D.N.H.)
CW-NH-0001-0003 | CW-NH-0001-0008 | CW-NH-0001-0009 | CW-NH-0001-0011 | CW-NH-0001-9000
Monitors/Masters Garfunkel, David A (New Hampshire)
Plaintiff's Lawyers Barbur, Peter T. (New York)
CW-NH-0001-0002 | CW-NH-0001-0004 | CW-NH-0001-9000
Barnes, Kenneth J. (New Hampshire)
CW-NH-0001-0002 | CW-NH-0001-0004 | CW-NH-0001-9000
FitzPatrick, Rory (Massachusetts)
Friedman, Bruce E. (New Hampshire)
CW-NH-0001-0003 | CW-NH-0001-9000
Lospennato, Ronald (New Hampshire)
CW-NH-0001-0002 | CW-NH-0001-0003 | CW-NH-0001-0004 | CW-NH-0001-9000
McCandless, Roy S (New Hampshire)
CW-NH-0001-0004 | CW-NH-0001-9000
Phelan, Pamela E (New Hampshire)
Pilkington-Casey, Mary (New Hampshire)
Defendant's Lawyers Larney, Ann F (New Hampshire)
CW-NH-0001-0002 | CW-NH-0001-0003 | CW-NH-0001-0004 | CW-NH-0001-9000
Morton, Terry L (New Hampshire)
Mullen, Daniel J. (New Hampshire)
Rollins, Nancy (New Hampshire)
CW-NH-0001-0002 | CW-NH-0001-0003
Other Lawyers Bodwell, Erica (New Hampshire)
Fry, Norman J (District of Columbia)
Rubio, Martha E (District of Columbia)
Witt, Gretchen Leah (New Hampshire)

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