Five Tips for Litigating the Harms of Congregate and Institutional Placements

There is clear evidence of the harms of congregate and institutional placements for children and youth, and both policy and legal advocacy should work together to ensure young people are instead placed in family settings in their communities. There are many resources detailing the harms of congregate placements, and this practice point pulls some of them together into five tips so children’s lawyers can use the information in their litigation.

1. Center youth voice and expertise. The reports from youth who experience congregate placements are powerful evidence of the harms that exist, and you can use them in your litigation. First, you may strategically and carefully consider how to highlight any prior congregate placement experiences your client had and their thoughts and feelings on placement into a congregate facility. Second, consider how to paint a picture of these placements for the court, using the documented experiences of other young people. In 2020, Think of Us conducted a study of the experiences of young people in institutional placements. The resulting report, Away from Home,

   found that institutional placements:
   
   • Failed to meet the mandate of child welfare of safety, permanency, and well-being
   • Were prison-like and punitive
   • Were traumatic and unfit for healthy child and adolescent development
   • Shielded youth from building relationships that would get them out of institutions
   • Were environments in which youth felt like they didn’t have a way out

   Further, Children’s Rights conducted the 2023 study Are You Listening? Youth Accounts of Congregate Placements in New York State which confirmed the results above. Young people reported a carceral environment in congregate placements; threats to safety; loneliness; and lasting barriers to well-being and stability.
2. Gather additional facts. An abundance of evidence now exists that illustrates the harm that can result from placement in congregate settings as well as the high financial costs of these placements. A good overview of this issue can be found the Children’s Rights fact sheet The Harms of Institutionalization 2023 Fact Sheet, as well as their report Families Over Facilities. Further information can be found in the 2021 National Disability Rights Network report Desperation Without Dignity, which found that “physical, sexual, and psychological abuse are present at many residential facilities,” including physical restraint and seclusion as well as the overuse and misuse of psychotropic medicine.
3. Recognize the increased risk for children and youth of color, LGBTQ+ youth, and children and youth with disabilities. Children of color are overrepresented in congregate and institutional settings. Black children represent 14 percent of the general population of children but 26 percent of children in congregate placements, and Native children represent 1 percent of the general population of children but 8 percent of children in institutions. Likewise, LGBTQ+ children and youth also have a higher likelihood of living in a group home setting.”
   
   Given these rates of disproportionality, it is especially helpful to be vigilant for your clients who fall into these categories and to specifically raise this issue in your advocacy. Overrepresentation in congregate settings also means that these children and youth disproportionally experience the poor outcomes associated with such placements—for example, being less likely to graduate high school and having increased involvement in delinquent proceedings. For clients with disabilities, look to this guidance from the Department of Justice.
4. Make the affirmative case that children and youth do better with family. The social science research is overwhelmingly clear that children do better when they are with family. Children experience significant harm when separated from their parents and so should remain with parents unless there is a threat to their safety. When children must be separated from their parents, they experience better outcomes when they are placed with kin as opposed to a non-kin placement. Kinship care generally leads to fewer placements, greater stability for children (including mental and physical health stability), and more contact with family. Additionally, children living with kin generally exhibit higher levels of placement satisfaction and better outcomes as adults. Placement in an institutional setting deprives children and youth of essential family relationships and these benefits. “Institutionalized children are denied long-term relationships with trusted adults, which are critical to normal brain development, especially for children with adverse childhood experiences. . . .” CR-Families-Over-Facilities-Report
5. Utilize concrete advocacy tips. The following resources incorporate specific trial and advocacy tips that you can utilize:
   
   Five Tips for Challenging Placement in a Residential Setting includes helpful tips about how to investigate a residential program, the services it offers, and the diagnoses it treats. This resource encourages advocates to make a chart that illustrates to the judge/decision maker how much treatment your client will actually be receiving, which may be helpful in arguing that your client can get the same amount of treatment in a family setting. Judges may assume that an institutional setting is necessary for treatment reasons, so it is helpful to look specifically at how much treatment will be provided in the residential setting—a chart laying out the hours in your client’s day may illustrate that they will spend most of the day in an institution with regular staff and not a clinician.
   
   The Gault Center’s Juvenile Facilities Checklist for Defenders also has great information and questions to ask, both to challenge placement in an institution and to ensure the safety of your client in case of placement.
   
   Lastly, Five Tips for Advocating for the “Most Connected Placement” includes tips around using the research to strengthen your advocacy, including the fact that there is almost no evidence that residential treatment is an effective treatment intervention.

Combining strong advocacy in individual cases and the education of judges with ongoing policy and systemic efforts to reduce the system’s reliance on congregate settings will ensure that the work to end harmful placements for children and youth is happening on many levels.