DCYF stonewalling on documents draws rebuke from judgeBy DAVE SOLOMON
New Hampshire Union Leader
August 06. 2017 11:19PM
MANCHESTER — The judge in a high-profile lawsuit against the state’s child protective agency has again ordered the state to turn over documents in the case, although she has agreed to review some in private before ruling on whether they should be released.
The lawsuit was filed by Bedford attorney Rus Rilee in October in Hillsborough County Superior Court on behalf of the grandparents, now adoptive parents, of two juvenile abuse victims, identified only as T.C. and D.C. The children, 4 and 18 months at the time of the abuse, are identified as N.B. and J.B.
The lawsuit claims that the state Division for Children, Youth and Families, case workers from Easterseals and advocates from Court Appointed Special Advocates (CASA) disregarded complaints from the grandparents and warning signs in police reports to allow unsupervised visits by the biological parents, who were later convicted of horrific physical and sexual abuse.
Rilee won a landmark ruling in the state Supreme Court last year allowing him to bring the lawsuit in open court. Lawyers for both sides appeared before Hillsborough County Superior Court Judge Gillian Abramson on June 20 to continue arguments over what documents should be released to the plaintiffs as they prepare their case.
Despite a clear ruling from Abramson on April 12, denying the state’s request for confidentiality, the state has been reluctant to provide many of the documents, citing the need for additional clarity from the judge.
In a ruling issued on Aug. 3, Abramson tries to provide that clarity, as regards different types of documents and information.
DCYF sought confidentiality for documents generated by or regarding third parties to the litigation, which was denied. “The court herby orders DCYF to provide all third-party records and court records in its possession to the plaintiffs,” Abramson wrote.
Rilee also asked for witness statements or statements from any DCYF agent or employee made in connection with the case. DCYF objected to both, claiming, “It is not clear what is meant by statements or to which of the facts in the complaint this request refers.”
Abramson was not impressed by that objection.
“The court finds the language of the plaintiff’s requests clear and unambiguous, and DCYF’s objection thereto patently unreasonable,” she wrote. “Unless DCYF is claiming some privilege in the documents sought — in which case it shall submit them for in camera review — DCYF shall disclose all responsive material.”
DCYF also sought an exemption for any material that was part of its “quality assurance program,” or material protected by attorney-client privilege. As regards those items, Abramson ruled that she would review them behind closed doors before making a decision. She ordered DCYF to submit the records for “in camera” review within 10 days.
Rilee had sought an order for penalties or “sanctions” on the state for non-compliance, but that was deferred by the judge, “pending compliance with this order.”
Easter Seals was granted its request for a protective order limiting public disclosure of personally identifying information of its employees.
Much of the legal activity so far in the case has centered around making the DCYF documents available to Rilee and his legal team. The next step, he says, will be arguments over what should be included in the public file, and therefore accessible to anyone.
Hoping to shed light
The adoptive parents decided to go public in large part to bring to light what they say is gross incompetence by DCYF. Rilee will argue it’s their right to waive the confidentiality provisions in state law regarding DCYF proceedings.
“We also filed a motion for partial summary judgment on the confidentiality issue,” he said, “whether or not fit parents can waive confidentiality under the court records statute or the case records statute. Until the court rules on that motion for partial summary judgment, everything has to remain confidential.”
“The next piece, which we are moving on now, is to allow us to publicly disseminate that information, subject to keeping the identity of the girls and their (adoptive) parents confidential,” he said.
Assistant Attorney General Seth Zoracki said the state will contest that motion.
“This is a case where you have statutory protections for very sensitive information involving children in the DCYF case system,” he said, “and the state Legislature has recognized the sensitivity of those documents.”
Abramson up to this point has not been very sympathetic to that argument.
“The court finds defendants’ interests in maintaining confidentiality in this case is motivated purely by their own self-interest in minimizing public exposure of their alleged errors,” she wrote in her first order on the documents, issued in April.
“The children in this case — as well as all children in this state who may experience the misfortune of being involved in abuse and neglect proceedings — have a strong and legitimate interest in ensuring the proper functioning and public accountability of the entities responsible for their care.”