Decades of Reform and an Ongoing Systemic Crisis

Thomas S. v. Flaherty: The Early Fight For Accountability

The terrible failure of state systems to protect vulnerable children from institutional neglect, severe physical abuse, and emotional abuse can cause catastrophic damage and personal injury to disabled individuals entrusted to government care. In the landmark civil rights class action Thomas S. v. Flaherty (3:82-cv-00418), originally filed as Thomas S. v. Morrow, the fight for accountability began on July 7, 1982, in the U.S. District Court for the Western District of North Carolina.

The plaintiff, an intellectually disabled ward of the state who suffered from schizophrenia and intellectual disabilities, filed a lawsuit under 42 U.S.C. § 1983 , alleging that North Carolina officials violated his constitutional rights by denying him appropriate treatment in a less restrictive, community-based setting.

Instead, the lawsuit alleged that he was negligently warehoused in inappropriate placements, including the Gaston County detoxification facility, rather than being provided treatment and services suited to his disabilities and individual needs.

On September 18, 1984, Judge James Bryan McMillan granted summary judgment in favor of the plaintiff , holding that the Fourteenth Amendment requires state-appointed guardians to ensure that restraints placed upon disabled wards are no more restrictive than absolutely necessary. The decision was reported at 601 F. Supp. 1055 .

Following the intervention of four additional plaintiffs and the formal granting of class certification, the case expanded beyond the circumstances of a single individual and became a broader challenge to North Carolina's treatment of intellectually disabled people under state supervision.

On January 9, 1986, the U.S. Court of Appeals for the Fourth Circuit, in an opinion led by Judge John Decker Butzner, Jr., affirmed the trial court's decision. The appellate ruling is reported at 781 F.2d 367 . The U.S. Supreme Court subsequently declined to hear the state's appeal.

Judge McMillan then issued a definitive ruling on November 21, 1988, declaring that the defendants had systematically violated the due process rights of the entire plaintiff class.

The ruling established that members of the class were entitled to minimally adequate habilitation in a safe environment and to protections against unnecessary bodily restraint. The decision is reported at 699 F. Supp. 1178 .

On May 23, 1990, the Fourth Circuit officially upheld the district court's decision in 902 F.2d 250 , reinforcing the constitutional protections recognized for intellectually disabled individuals who were dependent upon the state for their care and treatment.

State attorneys later attempted in 1993 to narrow the scope of the protected class, but those efforts were successfully challenged, preserving the broader protections established through the litigation.

The district court ultimately closed the case on July 27, 1998. By that point, Thomas S. v. Flaherty had helped establish an important foundation for systemic accountability in North Carolina and strengthened protections for intellectually disabled individuals placed under state supervision.

The case demonstrated an early and significant principle in disability-rights litigation: when the government assumes responsibility for vulnerable individuals, it cannot simply warehouse them in restrictive institutions without regard for their safety, treatment needs, constitutional rights, or ability to live in a less restrictive environment.

Ongoing: Timothy B. v. Kinsley

On December 6, 2022, the legal demand for systemic accountability in North Carolina took another step forward when the landmark class-action lawsuit Timothy B. v. Kinsley (1:22-cv-01046) was filed in the U.S. District Court for the Middle District of North Carolina.

Children's Rights , Disability Rights North Carolina, and the North Carolina NAACP brought the federal lawsuit on behalf of children with disabilities in North Carolina's foster care system, alleging that Black and Brown children were bearing a disproportionate share of the system's failures.

The complaint alleged that the North Carolina Department of Health and Human Services (NCDHHS) engaged in systemic practices that violated federal disability protections under the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act .

At the heart of the case is the state's alleged practice of unnecessarily placing children with disabilities in locked psychiatric residential treatment facilities (PRTFs) instead of providing integrated community-based housing, treatment, and supportive services.

Plaintiffs alleged that approximately 500 children were routinely institutionalized despite being eligible for more integrated, community-based services. The lawsuit described many PRTFs as "prison-like" institutions and alleged that children already suffering from significant trauma were exposed to further harmful conditions while confined there.

According to the allegations, disabled foster children inside these facilities were subjected to systemic mistreatment, including excessive use of psychotropic medications, inappropriate restraints, emotional abuse, physical injuries, and allegations of physical and sexual mistreatment. Plaintiffs argued that these experiences caused further psychological damage and personal injury to children who had already entered state custody with significant emotional and developmental needs.

An amended complaint was filed on March 6, 2023. On March 20, 2023, the state defendants sought dismissal of the lawsuit, arguing, among other things, that the plaintiffs had failed to state a valid legal claim and that the federal court lacked subject-matter jurisdiction.

The plaintiffs received significant federal support on April 21, 2023, when the United States Department of Justice filed a Statement of Interest supporting the children's ability to pursue their claims against NCDHHS.

The Department of Justice explained that the allegations were sufficient to state claims under Title II of the ADA, 42 U.S.C. §§ 12131–12134 , and Section 504 of the Rehabilitation Act, 29 U.S.C. § 794 .

Central to those protections is the disability-rights principle commonly known as the integration mandate, which generally requires public entities to administer programs and services to people with disabilities in the most integrated setting appropriate to their needs.

On March 29, 2024, U.S. District Judge William L. Osteen Jr. denied the state's motion to dismiss , allowing the plaintiffs' claims to move forward.

The court concluded that the plaintiffs had adequately established standing and alleged claims consistent with the principles established by the U.S. Supreme Court's landmark 1999 decision in Olmstead v. L.C. , which addressed unnecessary institutionalization of individuals with disabilities.

A critical allegation in Timothy B. v. Kinsley is that many foster children were not being placed in PRTFs because their medical or psychiatric conditions actually required institutional care. Instead, plaintiffs argued that children were being institutionalized because North Carolina had failed to develop sufficient community-based placements and services capable of supporting them.

The case highlights testimony and allegations from foster children who described trauma experienced while under the protection of the state. Plaintiffs contend that NCDHHS knew about many of the dangers and deficiencies confronting children in these facilities but continued placing vulnerable youth in restrictive environments where their physical, developmental, and emotional conditions could deteriorate.

The allegations surrounding Timothy B. v. Kinsley are part of a broader debate concerning North Carolina's foster care system and the state's ability to protect children from institutional neglect, physical abuse, emotional abuse, unnecessary placement disruption, and inadequate mental health treatment.

Broader Foster Care Litigation in North Carolina

In September 2024, WFMY News 2 journalist Ben Briscoe reported on another class-action lawsuit filed against the North Carolina Department of Health and Human Services by caretakers representing nine children who allegedly suffered serious neglect while in the state's foster care system.

According to the report, the 71-page complaint described serious placement instability and alleged institutional failures. One 13-year-old child reportedly experienced 22 different foster placements. Another child, identified as Jameson, was eight years old and had reportedly experienced five different homes within two years despite suffering from PTSD related to earlier abuse.

The complaint alleged that children were repeatedly moved without receiving the consistent mental health treatment, stability, and specialized therapeutic services they required. Plaintiffs argued that these disruptions resulted in part from the state's failure to adequately recruit, license, support, and retain appropriate foster homes.

The lawsuit also highlighted longstanding concerns about children temporarily sleeping in local Department of Social Services offices and conference rooms because appropriate foster placements could not be located.

NCDHHS declined to comment directly on the pending litigation but pointed to broader systemic challenges, including chronic underfunding, workforce shortages, and North Carolina's decentralized county-based child welfare structure.

Rather than primarily seeking financial compensation, the plaintiffs sought injunctive relief intended to require structural reforms capable of improving how North Carolina protects children placed into state care.

Source: Briscoe, B. (2024, September 10). New class action lawsuit says North Carolina foster system fails children. WFMY News 2.

Cherokee County's "Hidden Foster Care" Cases

North Carolina has also faced substantial litigation arising from practices within Cherokee County's Department of Social Services. Social workers were accused of using unlawful Custody and Visitation Agreements (CVAs) to pressure parents into transferring custody of their children to relatives or family friends without going through the ordinary judicial procedures required in formal child welfare cases.

By treating these placements as private family arrangements — a practice sometimes described as "hidden foster care" — the county allegedly bypassed judicial oversight and avoided important procedural protections and requirements associated with the formal foster care system.

Cherokee County and its insurers ultimately agreed to pay more than $53 million across roughly 25 federal lawsuits brought by affected parents and children.

Additional information about the Cherokee County cases is available from Carolina Public Press .

Federal Review of North Carolina's Child Welfare System

Broader concerns over North Carolina's child welfare system have also reached the federal level. A policy brief published by the North Carolina Advisory Committee to the U.S. Commission on Civil Rights examined the state's previous child welfare reform efforts and stated:

The policy brief examining Rylan's Law and North Carolina's child welfare reforms is available from the U.S. Commission on Civil Rights .

The Fostering Care in NC Act

More recently, North Carolina lawmakers pursued another major attempt at structural reform through the Fostering Care in NC Act. The legislation was passed unanimously by the North Carolina General Assembly and signed by Governor Josh Stein in 2026.

The legislation significantly changed how social services oversight is administered in North Carolina, including expanding state authority and oversight involving county Departments of Social Services.

At the same time, the North Carolina Department of Health and Human Services began implementing a new statewide child welfare case-management system intended for eventual use throughout all 100 counties.

More information about the reform legislation and the state's expanded authority over county DSS agencies is available from Carolina Public Press .

These reforms represent another effort to address longstanding weaknesses within North Carolina's foster care system. However, the history documented in cases such as Thomas S. v. Flaherty, Timothy B. v. Kinsley, the Cherokee County litigation, and other child welfare lawsuits demonstrates the difficulty of transforming systemic failures through legislation alone.

Lawsuits, federal oversight, administrative reforms, and new legislation can force institutions to change their policies and practices. The larger challenge is ensuring that those changes remain permanent and that vulnerable children continue to receive safe placements, appropriate treatment, meaningful judicial protections, and community-based services long after litigation and public attention have ended.