High court dismisses lawsuit over state child abuse prevention work

Department of Health and Human Services social worker Anna Carrigan, formerly of Manchester, accumulated file drawers full of material on the Division for Children, Youth and Families as she built her new nonprofit to protect abused children.

CONCORD — The state’s highest court Tuesday dismissed a lawsuit against the Department of Health of Human Services brought by a former licensed child and family therapist who had been critical of a hiring backlog and the agency’s spending to combat child abuse.

Anna Carrigan of Farmington was a former administrator in HHS for the state’s asthma control program.

She became an activist for change after fighting the state Division of Children, Youth and Families over allegations a 3-year-old relative had been abused.

But in a unanimous decision, the New Hampshire Supreme Court determined that Carrigan lacked any standing to bring her lawsuit against the state.

“We acknowledge that the plaintiff’s complaint references several specific instances of spending related to the department,” wrote Justice Patrick Donovan in the court’s 4-0 opinion. “However, we do not read her complaint as challenging the legality of any specific acts of departmental spending.”

Supreme Court Chief Justice Gordon J. MacDonald did not take part in the decision.

At the time the case was brought in 2020, MacDonald was attorney general, and his office made the motion on behalf of HHS to dismiss the claim.

Her lawsuit noted that while the state has increased spending for DCYF in recent years, it continues to deal with high court case backlogs and a high vacancy rate in filling positions in the agency.

Michael Lewis, her lawyer, said Carrigan had made a convincing case that the agency was failing to comply with what state law mandates.

“2,000-plus case backlogs where there is a mandatory reporting and immediate response requirement in the area of child abuse and neglect is illegal, automatically,” Lewis said. “The New Hampshire Department of Justice never contested that position. We alleged and argued that the state didn’t spend enough to hire and retain qualified staff to comply with RSA 169-C (the state child protection law). We alleged that this caused, is causing, and will cause, more backlog, and more illegality.”

In his ruling, Donovan said while the Legislature and the Executive Council have the authority to ask the Supreme Court to issue an advisory opinion on a question of law, individual taxpayers cannot do that.

The court said the role of the justices is not to analyze government spending.

“Courts are ill-equipped to wade into policy debates as to whether governmental bodies are sufficiently funded or whether appropriated funds are being wisely spent to meet an agency’s objectives,” Donovan wrote. “In short, the authority to determine how public funds are generally appropriated and spent rests, respectively, with the legislative and executive branches.”

Lewis said his client “disagrees in the strongest terms” with the ruling and is considering whether to ask the high court to reconsider its decision.

“Generally, though, we are concerned that we have to work so hard to get a merits-based determination in a case where the government’s illegality is so obvious and our complaint is so heavily documented and supported with proof of governmental illegality,” Lewis said.

The anti-child abuse system has been under intense scrutiny since the death of 3-year-old Brielle Gage of Nashua in 2014 and 21-month-old Sadie Willott of Manchester in 2015. Both died while their neglect and abuse cases were under DCYF review.Carrigan has created a non-profit group advocating for change known as the New Road Project.

“We need a new road for child protection in New Hampshire, and we need you to walk it with us,” is the group’s mission.