New Hampshire Disability Rights Center issued a report Monday describing the results of an investigation into abuse at the Sununu Youth Services Center in Manchester.

DRC’s investigation found that SYSC staff subjected a child with emotional and behavioral disabilities to abuse through the improper use of physical restraint.

The restraint, which fractured the child’s shoulder blade, violated New Hampshire’s law regulating the use of restraint and seclusion.

DRC also determined that SYSC violated New Hampshire’s law by failing to accurately document and notify DRC of this incident.

While investigating this incident, DRC concluded that SYSC subjected additional children with disabilities to abuse through the improper and unlawful use of restraint. The report issued today includes several recommendations to prevent further violations of state and federal law.

“DRC first investigated the inappropriate use of restraint at SYSC in 2009. It’s disturbing that these conditions continue, almost a decade later,” said Stephanie Patrick, DRC’s Executive Director. “Many of the children at SYSC have mental illness and a history of traumatic victimization. It’s critical that SYSC change its policies and practices to protect these children from further abuse.”

According to one of DRC’s investigating attorneys, Andrew Milne, “New Hampshire and federal law are intended to protect children from unnecessary restraints and dangerous restraint techniques.

Our investigation revealed that SYSC staff, who are supposed to provide care for vulnerable children, violated these laws and placed children with disabilities in serious danger.”

Numerous delays in providing complete records during the investigation impeded and delayed DRC’s investigation into this incident, placing children with disabilities at continued risk of abuse.

The full Disability Rights Center report is available here.

Read edited portions of the Disability Rights Center report below.

Zach was 14 years old at the time of the incident described in this report. He has been diagnosed with mental illnesses including severe anxiety and Post Traumatic Stress Disorder (PTSD). Zach has an Individualized Education Plan (IEP) due to his emotional disabilities and has been prescribed medication and therapy for ADHD and anxiety.

Zach was “detained” at SYSC, a placement which was intended to be temporary while awaiting an opening at a community-based residential program. At the time of the incident, Zach had been at SYSC for two weeks. SYSC did not assign an individual clinician to work with Zach as SYSC does not generally provide individual clinicians for detained youth. On December 29, 2016, as a consequence for disobeying an order to go to his room, Zach was moved to the Crisis Services Unit (CSU), where he was supposed to receive additional structure and therapeutic supports.

He was put into a room alone and told to stay there. Zach was upset about being transferred to the CSU and being forced to stay alone in his room. Confinement in the CSU meant he would have no personal possessions other than one book and a bible. His telephone privileges would be cut in half and he would likely be prohibited from attending his regular school or recreational programs. The door to Zach’s room was not locked, but leaving his room without permission would put Zack at risk of further consequences.

THE INCIDENT AND INJURY Video footage of the CSU beginning approximately 15 minutes before the incident under investigation shows at least two instances in which Zach opened the door to his room and stood just outside his room, for a minute or two, while holding the door open. There were two youth counselors on the unit at this time – Shane Arsenault and Richard Gilibert. Due to the lack of sound and quality of the video display, it is difficult to tell whether Zach and staff spoke during these instances. Zach backed into his room each time and closed the door without any physical interaction with staff.

Approximately 3 minutes before the incident, Supervisor Joel White entered the CSU. Zach liked Supervisor White and wanted to talk with him. Zach knocked on his door and asked to leave his room. Not hearing a response from staff, Zach opened the door to his room, and repeated his request for permission to leave his room. Staff told Zach to get back into his room, but Zach continued to hold the door open and attempt to speak with Supervisor White.

All three staff (Gilibert, Arsenault and White) approached Zach almost immediately after he opened the door. Gilibert pushed Zach back into his room, closed the door, and held it shut with one foot and two hands. Zach told DRC’s investigators that he responded by shouting “you can’t push kids,” or words to that effect. A report of the incident indicates that Zach shouted threatening expletives at staff. It appears that Zach was attempting to push the door open as Gilibert held it closed.

The video recording of the incident does not have sound. This paragraph reflects the conversation as reported by Zach.  As the video recording of the incident does not have sound, DRC is unable to determine what Zach said to SYSC staff. However, it should be noted that Zach did not pose a danger to staff or other residents because staff members were holding the door closed. If staff were not able to continue holding the door shut, they could have locked the door to the room.  Gilibert continued holding the door closed in this manner for approximately seven seconds, at which time he opened the door to Zach’s room, pushed him further inside and rushed inside Zach’s room, where Gilibert restrained Zach.

According to Zach, Gilibert entered his room, posturing with his chest out. Zach recalled putting his hand out defensively, which made contact with Gilibert’s chest as Gilibert continued to come towards him. Gilibert then threw Zach to the ground, put his knee on Zach’s back to hold him down, put his hand on Zach’s head, and pressed his face against the ground. After about ten seconds, Gilibert left Zach’s room. Zach attempted to hold the door open as Gilibert pushed the door closed and then held it closed, using one foot and his hands. Zach kicked and banged on the door of his room, attempting to open it, while Gilibert held the door closed.

Arsenault joined Gilibert at the door. Gilibert opened the door, immediately grabbed Zach’s left arm and pulled him out of the room. Arsenault quickly grabbed Zach’s right arm, holding it out to the side. Zach was then pushed to the floor, where he landed in a prone, face-down position. As indicated in the Chief Medical Examiner’s report concerning her review of the restraint video, “it appears that the full body weight of Gilibert lands on Zach’s upper back while Zach’s left arm is being held out to the side and behind him.” Zach was held in the prone position for approximately ten seconds, after which Arsenault and Gilibert pulled up on Zach’s arms, then being held behind his back, and lifted him to his feet.

They then escorted Zach, continuing to hold both of Zach’s arms behind his back, to CSU Room 120, a room with a rubber bed and video camera, and placed him on the bed. Zach did not resist staff’s use of force during the takedown or while he was being restrained on the floor. He did, however, experience significant pain as a result of this takedown and restraint.

A resident DRC interviewed recalled that when Zach went down to the floor, he was crying and yelled, “stop, stop, my arm,” or words to that effect.

SYSC’S RESPONSE TO THE INJURY After the incident, Zach held his shoulder and cried over the course of an hour and a half.

He requested medical attention. A nurse gave him ice and ibuprofen and scheduled him to see the doctor the next day. Zach was not offered an opportunity to meet with a mental health clinician following this incident, despite his admission to the unit intended for crisis services and having just experienced the trauma of a violent restraint.  Due to a lack of recording equipment, there is no video footage inside Zach’s room.

A review of the incident reports, State Police Report and interviews indicate that Gilibert restrained Zach on the floor of his room for a brief time. See Report of Chief Medical Examiner dated September 13, 2017, p. 2, attached hereto as Appendix B. There is no audio-recording of this incident. DRC, therefore, cannot confirm reports of what Zach said.  Zach saw a doctor at SYSC the next day.

The doctor told Zach the shoulder was not dislocated, put him on a sports restriction, prescribed ibuprofen and ice and requested that he have an x-ray at Catholic Medical Center. SYSC’s medical contact log indicates that the medical department called Zach’s parent to notify her of the need for a shoulder x-ray at 9:05 a.m. on December 30th .

SYSC’s unit staff did not take Zach’s complaints about his shoulder injury seriously. Zach’s injury made it difficult, and more time consuming, to dress, undress and shower. Rather than acknowledge the impact of Zach’s injury on his ability to care for himself, SYSC’s unit staff criticized him for taking too long to shower. Zach attempted to fashion a sling out of his clothing.

Staff responded by threatening to take away Zach’s clothes and replace them with strong clothes. Further, SYSC’s unit staff provided instructions that hurt Zach and could have impeded his recovery. Staff told Zach to do exercises including lifting his arm, but this was painful. Later, an orthopedist told Zach that was bad advice. A nursing progress note dated December 31, 2016 provides that Zach “stated he is unable to raise his left arm above his head or hold his left arm up.”

The extent of Zach’s injury was revealed on January 3rd , five days after he sustained the injury. On that day, an x-ray showed a fracture to Zach’s left scapula. That same day, Zach was transported to the circuit court for a hearing. The court issued an order immediately releasing Zach from SYSC and placing him at a shelter care facility.

NOTIFICATION MID-JANUARY 2017 On or about January 11, 2017, Zach’s parent received a document entitled “RSA 126-U Reportable Seclusion/Restraint Notification Form” which described this incident. The document indicated the following reasons for using restraint: “Defend self or third person from imminent danger, Escort, and Remove a disruptive youth who is unwilling to leave an area voluntarily.” Although the video recording shows no attempted assault, this report states that “Zach attempted to hit a supporting staff member.”

The report also falsely states that Zach was lying on his back during the restraint. The video recording clearly shows that Zach was in a dangerous face-down position.

FEBRUARY 2017 In mid-February 2017, DRC received a complaint alleging that an SYSC resident’s shoulder blade had been fractured during a restraint at SYSC. A few days later, during an informal conversation with DRC’s Policy Director, Sununu Center Director Brady Serafin disclosed that a child’s bone was fractured during a restraint in 2016. When DRC’s Policy Director reminded him of his responsibility to report such serious injuries to DRC under New Hampshire law, Director Serafin claimed unfamiliarity with this requirement.

DRC’s Policy Director confirmed his request for the required information pertaining to this incident in an email to Director Serafin the same day. Despite DRC’s oral and written communication to Director Serafin, SYSC’s violation of the reporting law continued. APRIL 2017 Following DRC’s repeated requests for all required information pertaining to this incident, DRC did not receive all the information required by New Hampshire law until April 7, 2017 — more than 3 months after Zach was restrained and sustained a broken bone.

AUGUST – DECEMBER 2017 Over the course of several months, DRC repeatedly requested and was told it would receive the DCYF Special Investigation Unit’s report about the incident. DRC did not receive the report until midDecember 2017, despite its completion on or about October 12, 2017 and affirmance by the New Hampshire Department of Justice on October 16, 2017.

IMPEDIMENTS TO DRC’S INVESTIGATION Throughout this investigation, SYSC has delayed their reporting and disclosure obligations under state and federal law. Because SYSC failed to timely comply with its reporting obligations under the New Hampshire restraint statute, the beginning of DRC’s investigation was delayed until months after the incident occurred. Such delay is inconsistent with the enforcement scheme established by the New Hampshire legislature when it enacted RSA 126-U.

Delays in investigations such as this significantly increase the likelihood of diminished memories, loss of documentary and physical evidence, and inability to locate witnesses. Delay also increases the opportunity for witnesses to consult with each other to coordinate their versions of events. This is a particular danger when witnesses’ own conduct may have violated the law or institutional standards, such as in this investigation.

These consequences undermine the investigative and protective functions of the DRC, and can result in the persistence of unsafe institutional conditions for vulnerable children with disabilities. An unredacted draft of portions of this report, including DRC’s factual findings and conclusions, was provided to SYSC Director Brady Serafin through his legal counsel, on April 16, 2018.

Director Serafin was asked to correct any factual inaccuracies by April 20, 2018. On April 20, Director Serafin, through his legal counsel, indicated that he could not review the report within the 5 days requested and asked for a two-week extension, until May 4, 2018, indicating that he had “identified numerous factual inaccuracies, critical omissions and legal issues.”

DRC delayed the publication of the report for an additional two weeks as requested. As of the publication of this report, on May 8, 2018, DRC has not received any 15 correspondence from Director Serafin or his legal counsel with evidence of additional factual inaccuracies, critical omissions or legal issues. SYSC’s failure to promptly provide records is ongoing. In the fall of 2017, DRC requested additional records under its federal investigative authority including documents and video recordings relating to the restraint of a number of children who were housed in the CSU from March to May 2017.

On May 3, 2018, DRC was informed that SYSC possessed, but had not provided, documents that DRC had requested on November 6, 2017. Learning that the records did exist, but had not been shared, prompted DRC to revise its report significantly.

The full Disability Rights Center report is available here.