On the RSA 169-C Secrecy Laws

New Hampshire state law makes it illegal for you to talk about what goes on in a DCYF abuse/neglect hearing. The rationale for the law is to protect families, and especially the children, from disclosure of embarrassing facts and accusations. From RSA § 169-C:25:

II. It shall be unlawful for any party present during a child abuse or neglect hearing to disclose any information concerning the hearing without the prior permission of the court. Any person who knowingly violates this provision shall be guilty of a misdemeanor.

On the other hand, Article 22, Part 1 of the NH Constitution says:

Free speech and liberty of the press are essential to the security of freedom in a state. They ought, therefore, to be inviolably preserved.

DCYF is remarkably consistant about secrecy outside of the minority of cases that reach criminal court. Most cases involving children removed from home, even those put up for adoption, are civil cases. DCYF refers to the law as they refuse to talk about any aspect of a case, even though the RSA only refers to the hearings.

What does DCYF gain from secrecy? They consistantly claim it protects the privacy rights of the children, but it appears that secrecy also leads to families and defense attorneys making the same blunders in case after case. If people outside of DCYF had a better idea of what to expect, DCYF would have a much more difficult time reaching their goals.

Before the 1999 public testimony on DCYF field practices, concerns about what might happen to people who testified were raised. Linda Saunders, DCYF's chief legal counsel, claimed:

The notion the department would threaten an individual with criminal prosecution for violation of confidentiality laws in an effort to keep them from testifying before a legislative study committee is absurd.

To my knowledge, no one who testified was charged with violating the law.

If one does talk to media about a case (even if nothing is disclosed about a hearing), RSA § 169-C:25 has come into play. On June 13, 1999, the Concord Monitor ran a story about one mother's struggles with DCYF's removal of her daughter because she couldn't explain injuries to her daughter. The article included accounts of the mother's attorney attempting to understand the nature of the injuries and how they were not the sexual and physical abuse claimed by DCYF. (DCYF agreed the mother was not the culprit, but has neither identified nor prosecuted anyone else for the abuse.) A Union Leader story later reported that DCYF attorney James Anderson wrote the county prosecutor requesting that

this violation of the confidentiality provision of the Child Protection Act be investigated and prosecuted to the fullest extent of the law.

Update: It's been more than six months since the Concord Monitor article came out and charges have not been filed. It may be that the county and state prosecutors realize the law is unconstitutional. It may be that DCYF has had second thoughts about prosecution. Being a criminal charge, the trial would be public, would have a jury, and might result in their prize tool being ruled unconstitutional. It may be that the law's value lies solely in its intimidation factor.

After all the DCYF hearings finished, I wrote the following letter to the committee to make my case for trimming the law.

83 N Main St Penacook NH 03303-1235 werme@zk3.dec.com or werme@mediaone.net 1999 Dec 20

To:	SB 65: DCYF Field Practices Study Committee Room 115 State House 107 N State St Concord NH 03301
Re:	Section 169-C secrecy laws

This committee has heard from people involved with all aspects with DCYF. I don't have direct dealings with DCYF and hope it stays that way. However, I became interested in DCYF several years ago after hearing state reps and others speak about DCYF's abuse of Constitutional rights. As I am a software engineer, it's become my job to take care of my wife's and my World Wide Web site and its pages on DCYF affairs. While developing the web pages, I've concluded that the section 169-C privacy rules do far more to protect DCYF than parents and children and want to share my thoughts with the committee. When Judges Kelly and Korbey testified, both mentioned the law but seemed to conclude that child abuse issues need not be shared with the general public. In this letter I will look a couple situations where the law does more harm than good.

In the public testimony, you heard from Rhonda Sharpe, whose family has dealt with CPS in both California and New Hampshire. Their children suffer from Osteogenesis Imperfecta, better known as brittle bone disease or simply OI. There are at least two or three OI cases in NH with DCYF involvement. My wife has one, the Aubuchont family is another (their story was on the front page of the Union Leader on July 27^th) and I may know someone who knows someone who adopted a child with OI through DCYF. In both my wife's case and the Sharpe case, DCYF has essentially refused to consider the possibility of OI and has pursued these families relentlessly. These families need a support group, they don't need court hearings. What they have are court hearings and a fear of criminal prosecution should they find each other for mutual support.

What is 169-C protecting in these cases? These cases typically start in the emergency room. X-rays reveal both new and old fractures, and the parents leave without their child. What can they tell their neighbors, friends, and families? Very little, at least according to DCYF's interpretation of the law. How are the children protected? They're babies - they can't talk, they don't have peer pressure in school, and they are not stigmatized by their condition. DCYF is the only winner. Secrecy hinders families and lawyers from finding each other and learning about both the disease and how little DCYF is interested in helping the families.

Beyond the OI arena, secrecy laws serve DCYF in many other cases. A common thread heard in the public testimony was that DCYF lies. They promised that "If you do A and B, you'll get your child back within a month." In fact, if A or B provide more grounds to keep the child, DCYF may have to change its mind about releasing the child. If the family passes the A and B trials, DCYF may come up with "just one more thing." If all else fails, they can find good mileage in promising "The kid will be returned if you sign this consent decree. Yes, you'll admit you neglected your child, but we really need this before we can move forward." I believe both Judges Kelly and Korbey said they accept at face value the consent decrees they see and they may decide that the child is better off in DCYF care.

This pattern has repeated in several cases, as near as I can tell. Why? I think the secrecy laws are the culprit again. DCYF tends to pursue cases against families who cannot afford a lawyer. Getting a court appointed lawyer is not as automatic as one might expect, and the court only allocates $1,200 per case. (Then DCYF routinely opposes motions to exceed that amount.) The result is that parents often get an inexperienced lawyer who falls for the many delaying and fishing tactics and winds up encouraging the parents to sign the consent decree to get the services and the kid. Between the privacy law and the embarrassment of being trapped by DCYF, the lawyers don't share this information amongst themselves and DCYF can keep using these tricks in case after case.

It may well be that the privacy laws are toothless. I don't see how they can possibly stand up to a First Amendment test, especially when applied to family members. In the past year, newspapers in both New Hampshire and Massachusetts are discovering that they can report on DCYF cases without finding themselves charged with 169-C violations. No parents have been charged either. I know that DCYF wanted to charge my wife, but apparently no prosecutor wanted to tackle the case. In fact, what would DCYF gain from enforcing the law? The penalty is a misdemeanor, so that means a jury trial in public. This is just the opposite of the veil DCYF strives to hide behind. Section 169-C refers to the secrecy of the court proceedings, yet DCYF consistently refers to it when they refuse to talk about any aspect of a case. Even some judges seem to have lost sight of the law's limited coverage. The law is more useful to DCYF as a bluff. Should it be exercised, they could lose it.

The committee has a challenging task. No other state agency is as large and as secretive as DCYF. You have many issues to deal with, but please keep in mind how many of them tie into the secrecy laws to the detriment of DCYF's clients. The lack of knowledge among the rest of New Hampshire's citizens leads to tacit acceptance of their practices. A small change can have big consequences. The Internet has been quick to take advantage of chinks in the secrecy that surrounds CPS agencies throughout the country. Dozens of people have been finding stories and adding them to World Wide Web sites and posting them to USENET newsgroups. More people are getting involved in this every year and their reports are reaching many more people. In fact, this letter will be on the web and available to hundreds of millions of people (however, it will be read by dozens this year). DCYF may discover that they have to relax their own silence or find they've lost their credibility.

The secrecy law is both unconstitutional and its misapplication an example that government by the people and for the people must also be open to the people. It's time to improve it.

Sincerely, Eric Werme

Apparently secrecy extends far enough to exclude members of the Legislature's Child & Family Committee. Even with permission from parents, DCYF's chief legal counsel, and the Executive Director of the Judicial Council, a judge, DCYF attorneys, and even CASA can block legislative oversight. The following is one State Rep's attempt to attend a hearing.

From: Rep. David A. Bickford, 183 Brackett Rd, New Durham, NH 03855
Tel. & Fax # 603-859-7899

On March 26, 2000 at 11:00 AM I went to the Carroll County District Court in Ossipee NH to observe as a NH State Representative being a member of the Child & Family Committee the proceedings of a child abuse case being prosecuted by DCYF.

The week prior to attending I spoke with DCYF attorney Linda Saunders about my interest in attending the Tuft / White case of which the defendant asked me to attend. She said it would be no problem and that she'd alert the DCYF prosecutor.

I also called Eileen Fox of the Supreme Court for approval. She called me back March 21, 2000 to confirm I could attend after checking with the Adm. Justice of District Courts Edwin Kelly.

On March 24, 2000 I called the Exec. Director of the Judicial Council Nina Gardner asking for advice as to my ability to attend a child abuse case. She advised me to go and learn.

After arriving at the Court and introducing myself to the DCYF prosecutor atty. Warren Lindsey I learned DCYF atty. Linda Saunders had forgotten to inform him. He insisted it was against the law for me to be there. He immediately called H&HS in Concord for answers though no one was available to take his call there. Eventually he had Nancy Rollins's secretary Galleen, interrupt her meeting with Comm. Shumway. He conveyed to me that Rollins advised him to allow me in if the parents did not object. Eventually the Judge, councilors, and myself assembled in the judge's chambers to go over the law books. Then we assembled in the courtroom to tape record the objections including CASA. 5 parties objected altogether based on

• RSA 169-C:14
• RSA 169-C:25 II & III
• RSA 169-C:28
• NH Constitution Part I Art. 37 (Separation of Powers)

They considered RSA 170-G:8-a (d) & (e) but then decided RSA 169-C beat it out.

Judge Patten decided to exclude me from the hearing. He said I could have a copy of the tape upon written request. We spent about 1 1/2 hours total.

Involved attorneys:

• Don Wyatt, Wolfeboro
• Howard Gross, Dover
• Katherine LaPree, Ossipee
• Warren Lindsey, Conway, DCYF
• CASA head supervisor, Sarah Head

Related link: RSA's 169-C:25 and 169-C:38 and their application against Paula Werme

Contact Ric Werme or return to his home page.

Last updated 2000 Apr 2.