September 06, 2019 Practice Points

Five Tips for Challenging Placement in a Residential Setting

A few ideas to help you get started.

By Cristina F. Freitas, Debbie F. Freitas, and Alexandra G. Roark

How can lawyers challenge their child client’s placement in a residential setting? Beyond relying on arguments based on the “least restrictive” setting standard, delve into the details of a particular residential placement in order to distinguish your client’s individual needs from the residential program’s capabilities in order to persuade even the staunchest judge that your client does not belong there! Here are five tips to get you started.

1. Do Your Own Investigation of the Program

  • Each time the police receive a service call from an address, that phone call is logged into a computer automated dispatch (CAD) system. Not only will the CAD log show what date and time a caller requested police intervention, it will also generally classify the call into categories for service such as missing person, assault, disorderly person, or mental health emergency. Best of all, since these records rarely contain personal identifying information, many states consider them public records subject to release via a simple public records request. Some cities and towns even post the CAD logs to a public website or allow a user to request public records from the police website. Request the CAD log for the address of the residential setting where the department wants to place your client. Seeing how often police are called, and for what reason, allows you to analyze whether the program is a good fit for your client. For example, if your client frequently absconds from program settings, a program with routine missing person calls is probably not the best fit. Similarly, if police encounters traumatize your client, a program with hundreds of police responses per year is probably not a good clinical fit.  
  • Many programs have a website that includes details regarding the program campus and programs available. Likewise, since many residential programs also have some insurance-based or private pay clients, there is often ample program literature you can request and review. You can also call the program and schedule a time to speak to the program director about the program specifically. What is the staff to client ratio? Are the bedrooms singles or doubles? How did the students in the school portion score on the last state standardized test? What diagnoses does the program treat? Programs that accept catch-all diagnoses may be more invested in their bottom line and in filling every bed than in providing a specialized clinical environment to help your client.
  • Since the state child welfare agency contracts with residential programs for the bed your client is about to occupy, the state likely had to comply with state procurement policies which require a public bid. Look up the state public procurement and bidding website. There, you can review the request for proposals (RFP) that the state child welfare agency submitted. That RFP contains the services that the agency expects the bidding residential placement to provide. It often offers very specific information. For example, the RFP may call for a nurse to be present at the program for 12 hours a week or for a clinician to be present for 40 hours a week, only during the day. Is that enough to meet your client’s needs?

2. Compare Your Client’s Diagnoses with the Program’s Services

Too often, a client’s placement is based on bed availability, rather than in the most appropriate setting. Showing that a residential program does not have the capacity to service your client’s individual needs can bolster your argument that your client would be better served in another setting, even one that may not be as intensive as residential, if that other setting can better meet your client’s specific needs.

  • Collect your client’s medical, therapeutic, and school records. One of the most powerful ways to challenge a residential placement is to show that, although it may be a good placement for some kids, it is not a good fit for this kid. By having your client’s attendance, grades, and IEP (along with the psychological and other evaluations included), you can compare your client’s strengths, weaknesses, and needs with the program’s curriculum, teaching modality, and structure. If the residential program has only one classroom and contains kids who require strict structure and your client’s IEP indicates that she needs frequent breaks, that type of unpredictable deviation from the regular routine may result in your client not getting their educational accommodations or distracting other students. Does the school specialize in managing physically aggressive kids or kids with verbal outbursts? Kids who have trouble controlling their impulsivity or kids who are more followers than leaders? Combining these two very different types of kids rarely leads to progress and can even be dangerous for your client. For example, placing kids who cannot control their mouths with kids who cannot control their hands may put your client at risk. Combining incompatible kids as a result of convenience to the state agency rather than individualized needs leads to deterioration in stability and regression in treatment. It may be that by increasing services in the community—perhaps with specialized, wrap around support—your client’s needs will be better met without the incompatible peer contagion effect of the residential setting.
  • Let the court know what your client will lose through placement in a residential facility. Will your client lose their long-term community therapeutic mentor if they get placed residentially? How far away is the program from the child’s loving and supportive family or kin that have been a protective factor? Taking away the services and supports that have promoted the child’s success, even if limited, is an unlikely recipe for future progress.

3. Make a Chart to Compare the Numbers of the Residential Program

If painting a picture is worth a thousand words, making a chart is worth ten thousand words. Rather than just telling the court that the residential program is not a superior way of meeting your client’s needs, show them! Put together a chart that will illustrate concretely for the court what your client will actually get in a residential facility. You know what they say, the devil is in the details, and a chart is a very visual way to bring those details to life! 

  • Show in hourly increments how much treatment your client is actually getting at the residential program. This might show clearly that your client is spending the vast majority of their day with regular staff, not a clinician.
  • Compare treatments in the facility versus what your client would receive at home. For example, if the clinician at the residential program is meeting with your client once a week, then that is no different than what is available in the community.
  • Compare the adult to child ratio. For example, if the RFP required only a six-to-one client-to-staff ratio, your client can have a much lower supervision ratio at home in the care of loving parents and family supported by community services.
  • Compare the environmental factors of the residential placement to a home setting. For example, the number of police responses at the residential program compared to your client’s home; or if the residential school has a low standardized test passing rate compared to your client’s home district.

4. Expand the Scope of Reasonable Efforts Litigation 

Too often, the social service agency’s obligation to make reasonable efforts is a rubber stamp, but recent legislation and litigation efforts across the country are demonstrating what a powerful tool compelling, reasonable efforts can be. Exactly which programs did the agency explore before settling on this particular residential placement? How many residential, group home, or foster homes has the agency contracted with this year? How many other kids has the agency placed there in the past year? What is the average time to discharge? The failure to have recruited enough specially-trained foster homes is not a burden your client should have to shoulder and should not justify placing your client in a higher level of care than they need. Reasonable efforts is not just about whether the agency is doing something, it is about whether the agency is doing enough to live up to their legal obligations and being true to their ultimate mandate of stabilizing families and servicing children.

5. Hire an Expert (or Several Experts!)

Contrary to popular belief, opining on the best placement for a child is not in the state child welfare agency’s exclusive domain. If you hire an expert who is as qualified (or more), as experienced (or more), and as versed with this family and child (or more) than the state child welfare case worker, then the expert’s opinion given to a judge should be worth at least as much (or more) than the case worker’s opinion. Many professionals work with the state’s indigent defense agency or the court to provide expert consultation in addition to their regular work. Finding an expert is a task that your colleagues can help with. Who have they used previously? What worked well or what would they change next time? Work with your expert to define the boundaries of their work and to give them the materials they need to be knowledgeable about your client and the program. Consider hiring a social worker or a psychologist make a placement recommendation or to help support your client, identify and make referrals to services in the community, or evaluate your client’s abilities. A qualified expert’s opinion on where a child should be placed to meet his or her needs can be a powerful tool in your litigation strategy.

Cristina F. Freitas and Debbie F. Freitas are partners at Freitas & Freitas, LLP, in Lowell, Massachusetts, where they represent parents and children in the child welfare and juvenile justice systems. Alexandra G. Roark is a supervising staff attorney in the Trial Panel Support Unit of the Children and Family Law Division of the Committee for Public Counsel Services in Boston, Massachusetts.


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