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State denies allegations of stonewalling in DCYF lawsuit

State House Bureau

May 27. 2017 10:05PM
A lawsuit filed by the grandparents of two children who suffered sexual and physical abuse claims the state's child welfare agency and Easterseals were negligent. (David Lane/Union Leader File)

MANCHESTER - Attorneys for the state have challenged allegations that they are stonewalling on the release of information in a high-profile lawsuit by the grandparents of two abused children against the Division for Children, Youth and Families.

Lawyers for both sides are scheduled to be back before Hillsborough County Superior Court Judge Gillian Abramson on June 20, to continue arguments over what documents can and cannot be made public in the first lawsuit against DCYF over the abuse of children to be aired in open court.

Bedford attorney Rus Rilee, working with Boston based co-counsel, won a landmark ruling in the state Supreme Court last year allowing him to bring the lawsuit in open court, followed by Abramson's ruling in April denying the state's request for a "protective order" that would keep many documents in the case confidential.

Lawsuits against DCYF and resulting settlements in the past have always taken place behind closed doors, with no disclosure of any content from the court file. The grandparents in this case want their suit made public to reveal what they claim was negligence by DCYF and its contractors that led to the abuse.

Despite a clear ruling from Abramson on April 12, denying the state's request for a protective order, the state has been reluctant to provide the documents Rilee is seeking as part of the discovery process leading up to the trial.

In motions filed May 16, he complains that DCYF has been "unresponsive and evasive, in keeping with their continuing efforts to keep the facts about how these girls were exposed to harm from seeing the light of day."

Senior Assistant Attorney General Lisa English, now representing DCYF, said the state is challenging the notion that Abramson's April 12 ruling constituted an order to start turning over documents.

She says that while Abramson denied the broad confidentiality the state was seeking, her order did not preclude the state from submitting a narrower request, which has been done.

"We are not reluctant to provide the documents. We want to provide the documents here, but there are statutes that require a court order for us to do so," she said. "Those laws aren't to protect DCYF; they are first and foremost to protect the confidentiality of the children. The plaintiffs want to waive a lot of that confidentiality, but we still need a court order."

The lawsuit was filed by Rilee in October in Hillsborough County Superior Court on behalf of the grandparents, who are now the adoptive parents of the abuse victims.

The children were ages 4 and 18 months at the time of the abuse. The lawsuit claims that the DCYF, case workers from Easterseals and advocates from Court Appointed Special Advocates (CASA) disregarded complaints from the grandparents and warning signs in police reports and allowed unsupervised visits by the biological parents that resulted in horrific physical and sexual abuse.

Abramson's ruling that the appeal for confidentiality by DCYF "is motivated purely by their own self-interest in minimizing public exposure of their alleged errors" is not the final word on disclosure, according English.

"The plaintiff's assertion that the court's April 12 order is an order for production is plainly erroneous," she writes in a May 19 motion. "The court order does not include any order to produce documents, nor does it find that a protective order is unnecessary in this case. Rather, the court denied the motion for a protective order because the proposed protective order was overbroad, as drafted."

"Plaintiffs baseless allegation that the only purposes served by the defendant's motions is further delay and obfuscation could not be further from the truth," according to English.

The state's latest proposal would allow documents to be marked as confidential only if the plaintiffs want them marked confidential, or if the information belongs to someone other than the plaintiffs, like the name of a child unrelated to the plaintiffs, or someone else's medical records.

"The plaintiffs objected to that proposal for a very narrow protective order, which has delayed our ability to produce the documents, because the court has to rule on that," said English.

Boston Attorney Charles Capace, who has worked with Rilee on the case, says the idea that there is some third-party information that the state can keep confidential will be challenged.

"Implicit in this is the withholding of some unspecified unknown documents," he said. "They are again asserting that there are some other mysterious records over which some privacy right might be asserted, but they haven't identified them."

The two sides clearly disagree over the meaning of Abramson's April 12 ruling as it applies to the disclosure of documents in the case - something the judge is expected to clarify after hearing arguments on June 20.

"It shows the arrogance of these defendants to say they are interpreting the judge's order as an invitation to craft a more narrow protective order," said Capace. "You could read that decision till the cows come home and that's not at all what it says. That's their construction of it because they don't want to produce the documents."

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