From the archive: This story covers events from March 2024. FAN is adding past cases to its public record; the latest available update is under “Where it stands now.”
Raleigh, North Carolina — A federal judge refused on March 29, 2024, to dismiss a class action accusing North Carolina of unnecessarily confining foster children with disabilities in locked psychiatric residential treatment facilities, writing that the treatment alleged was “at best, inadequate, and, at worst, highly abusive.”
U.S. District Judge William L. Osteen Jr. of the Middle District of North Carolina rejected every argument the state Department of Health and Human Services raised for throwing the case out.
What the lawsuit alleges
The suit was filed Dec. 6, 2022, by Disability Rights North Carolina, the North Carolina State Conference of the NAACP and Children’s Rights on behalf of foster youth with mental or behavioral health disabilities. It claims the state violates the Americans with Disabilities Act and Section 504 of the Rehabilitation Act by segregating children in institutions when they could be served in their communities. The named child plaintiffs appear under pseudonyms.
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According to The News & Observer, more than 500 children were held in the facilities as of November 2021, and Disability Rights North Carolina found that more than half of the children sent to them were in foster care. Carolina Journal reported that the five named plaintiffs were among 572 children placed in the facilities during the 2020-21 budget year.
The suit’s allegations, as reported by The News & Observer, include:
- Children at one facility in Marshville were confined to their bedrooms for up to 30 days.
- A child reported that a therapist touched him sexually; the therapist was suspended.
- A 15-year-old from Craven County was airlifted to a trauma center after an assault at a facility in Kinston.
- A 16-year-old in Mecklenburg County DSS custody was held at a facility in Rock Hill, South Carolina, for months and given at least 12 pills a day.
The ruling
The state argued that it lacked community services, that the plaintiffs lacked standing and that state court hearings had already sent the children to the facilities. Osteen found the children had standing and had adequately pleaded that community placement was appropriate, that they wanted community services and that the placements could reasonably be provided. He also held that the earlier state court placement decisions did not bar the claims. In April 2023, the U.S. Attorney’s Office had filed a statement of interest supporting the plaintiffs’ disability claims.
The state’s lawyers described its reforms as a long-term undertaking.
a long-term, herculean effort
Lawyers for DHHS Secretary Kody Kinsley, as quoted by Carolina Journal
Where the system failed
Children taken into state custody for their protection were, by the lawsuit’s account, placed in locked settings that a federal judge described as potentially abusive, often far from family and sometimes out of state.
Where it stands now
In June 2024, Carolina Journal reported that both sides had entered settlement talks and jointly asked for a 60-day stay of proceedings through July 15, 2024, with the option to extend it. Class certification had not been decided. FAN found no public report of a settlement, court approval or trial after June 2024; Disability Rights North Carolina’s case page lists no later court action, and the public docket summary reviewed by FAN ends in April 2024.
When the state takes custody of a child, it decides where that child sleeps. A system that confines children in institutions because it has not arranged anything else is making a choice, and families deserve to know who answers for it. FAN covers how children move through care in its overview of foster care system problems.
Key facts
- Case: B. v. Kinsley, No. 1:22-cv-01046, U.S. District Court for the Middle District of North Carolina
- Filed Dec. 6, 2022, by Disability Rights North Carolina, the NC NAACP and Children’s Rights
- Claims under the Americans with Disabilities Act and Section 504 of the Rehabilitation Act
- March 29, 2024: Judge William L. Osteen Jr. denied the state’s motion to dismiss
- 572 children were placed in the facilities in the 2020-21 budget year, Carolina Journal reported
- June 2024: settlement talks and a joint stay through July 15, 2024; no public resolution found since
Sources
- The News & Observer — Lawsuit accusing NC of warehousing foster kids in psych facilities survives challenge (2024-04-11)
- Carolina Journal — Federal lawsuit over NC foster care mental health in settlement talks (2024-06-04)
- Disability Rights North Carolina — Timothy B. Litigation (2024-06-26)
- Civil Rights Litigation Clearinghouse — B. v. Kinsley, 1:22-cv-01046 (M.D. N.C.) (2024-04-26)
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