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