A hearing before the state Supreme Court on Tuesday will center on a sensitive question: Should lawsuits involving child abuse and neglect be open to the public?
The issue stems from a series of high-profile cases in New Hampshire in which two children died and two others were sexually abused. Almost without exception, the details of these types of lawsuits are sealed by court order, making them among the most secretive legal proceedings in the state.
Rus Rilee, a Bedford attorney, wants to change that, and he and his co-counsel, Charles Capace, will make their case for more transparency before the state's highest court.
“The issue is our ability to file a lawsuit like any other lawsuit - in open court,” Rilee says. “The underlying allegations of our claims would all be laid out in a public complaint for the world to see. Right now, everything is wrapped in confidentiality.”
Under the state’s Child Protection Act, case files in abuse and neglect proceedings “shall be kept in books and files separate from all other court records.” Divulging information that could identify the children or parents involved is a misdemeanor under the statute.
Rilee says those rules have been interpreted so broadly that it's all but impossible for lawyers, the media and the public to understand how the state’s child protection services work – or don’t work.
In Tuesday's hearing, scheduled for 10 a.m., Rilee and Capace will argue that the privacy rights of children and families can be respected while allowing injured parties to hold DCYF publicly accountable.
“We certainly would not be identifying the children or the parents,” Rilee said. “All we’re trying to do is get justice for what has been done wrong to them, and we want the public to be able to learn what these problems are with the system so that they can be fixed.”
Rilee and Capace represent relatives of three-year-old Brielle Gage and 21-month-old Sadie Willott. The children died in separate incidents - allegedly at the hands of their mothers - while DCYF investigated allegations of parental abuse and neglect.
The deaths prompted an inquiry by the Attorney General’s office, which recommended an independent review of DCYF’s ability to protect the children under its care. The results of that review, which Gov. Maggie Hassan says will include the Gage and Willott cases, aren’t expected for several months.
The attorneys also plan to file suit on behalf of a family that adopted two children who were sexually abused during an unsupervised visit with their birth parents, who were being investigated by DCYF for abusing other children at a local homeless shelter.
According to the Supreme Court docket, Assistant Attorney General Mary Beth Misluk will represent DCYF at Tuesday’s hearing. Misluk did not respond to a request for comment, though she is expected to argue that sealing the case files is the only way to ensure the privacy of the young victims.
Court-Appointed Special Advocates of New Hampshire, a private non-profit that trains and supervises volunteers to represent children caught in abuse and neglect proceedings, is also a party in the case.
CASA-NH recently sought legislation that would shield it from civil and criminal liability. Individual CASA volunteers already enjoy so-called quasi-judicial immunity, but the bill would have extended that protection to the organization itself.
Following a Senate committee hearing on the immunity bill, which was referred to interim study, CASA-NH’s executive director, Marcia Sink, sent a letter to the organization’s 400 volunteers. She assured them that the legislation was not related to deaths of Brielle Gage and Sadie Willott or the threat of litigation. Nor does it have any thing to do with Tuesday’s hearing before the Supreme Court, she said.
“That hearing will result in a ruling on a relatively narrow technical point regarding the correct procedure for handling closed case file information from an abuse or neglect case…” Sink wrote.
In an interview, Sink defended the need for confidentiality, saying that redacting or removing the names of children from court records is no guarantee they won’t be identified from other information gathered during the proceeding.
“To just eliminate a child’s name, that doesn’t necessarily do it,” she says. “The child protective statute was crafted by the legislature to provide this protection for children not only at the time of the proceeding, but also in the future so that they don’t get identified and retraumatized.”
Capace, who practices in Boston, rejects that argument. In the most tragic cases, he says, the children are no longer alive. In the others, it’s the parents or other family members who decide to file suit on behalf of the children.
“Are they saying the children shouldn’t be suing them because it’s against their interest?” Capace says. “That it’s going to traumatize the children to bring damage acts against a wrong doer? That turns concern for the children on its head.”