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Lawyers for Family in Abuse Case Tell Supreme Court To Make Court Records Public

NHPR Staff

The state Supreme Court heard oral arguments Tuesday on whether a lawsuit over the state’s handling of child abuse and neglect cases should be open to the public.

The details of these types of lawsuits are almost always sealed by court order.

But attorneys for an adoptive family of two young victims of sexual abuse told the court that the case should be heard in open court.

All Things Considered host Peter Biello spoke with NHPR digital reporter Brian Wallstin, who has reported on this case and attended the hearing at the Supreme Court.

PETER: Give us a little background – how did this case end up before the Supreme Court?

BRIAN: It started in 2014, when attorneys for the adoptive mother of the two children – who are identified on the court’s docket as N.B and J.B. – served notice they were planning to sue the Division of Children, Youth and Families and CASA-NH, the nonprofit that appoints volunteers to represent children in abuse and neglect cases.

But before they file the suit, a family court judge stepped in and issued a protective order saying the suit had to be filed in secret, meaning everything – the complaint, all the motions, the evidence – would be sealed from public view and neither the parents nor the attorneys could talk about it.

PETER: And what did the family’s attorney say today?

BRIAN: Their main argument is that the protective order is unconstitutional – it violates their client’s free speech rights under the First Amendment of the US Constitution and it violates Articles 22 and 8 of the NH Constitution, which guarantee that the public has the right to free and open access to governmental proceedings, including court proceedings.

But they say the case is about more than that. As you know, Peter, DCYF and child protective services have been under some scrutiny. There have been several tragic and high profile cases in the past couple of years, and the attorney and the say opening he details of this particular case would expose how the state is mishandling investigations and puts kids at risk sometimes could lead to some much-needed changes to the system.

PETER: Is that the normal procedure, how a sensitive case is usually handled by the courts?

BRIAN; Usually, the state has to show that the best interests of the children or parents are served by protecting their privacy

What happens is that someone files a lawsuit, DCYF can step and ask the judge to seal the case. At that point, there are arguments from both sides and the judge would weigh the arguments and issue a decision.

In this case, the judge jumped the gun on that process, and Charlie Capace, the attorney for the family, argued that the order transferred that burden from the state to him and that was unfair.

Here’s an exchange he had with justice Carol Ann Conboy over that issue:

Justice Conboy: And….?

Capace: There is a public issue here, separate and apart from our individual claim, and it’s that right for public access to the courts that gets right to the heart and soul of….

Justice Conboy: And you would make that argument to the Superior Court.

Capace: That’s not my job. I shouldn’t be told to do that. That’s the essence of prior restraint – it puts the shoe on the wrong foot, in cvery simple terms. Whether it’s five minutes, 10 minutes or two years, whether it’s one document or 50 – it puts the shoe on the wrong foot.

PETER: How did lawyers for the state respond to that?

BRIAN: The attorney representing DCYF – Mary Beth Misluk - argued that the protective order was a valid interpretation of the confidentiality provisions in the Child Protection Act – that’s the law that protects the identity of children and parents in abuse and neglect proceedings

Misluk told the justices that the law gives the state broad authority to determine what’s in the best interests of children caught in these proceedings.

That led to some rather pointed questions from Justice Robert Lynn, who pointed out that, in this case, the parents have already decided that they want the case filed openly.

Here’s an exchange Justice Lynn had with Attorney Misluk about halfway through the proceeding:

Justice Lynn: And why? What interest does that protect? In other words if a fit parent says, “I understand that these proceedings under the statute are confidential. That’s designed to protect my child.” .... So what is the interest of the state in the face of that in keeping this confidential?

PETER: Did the court give any indication, through their questions, how they might rule?

BRIAN: There a little bit of a discussion about the justices’ options here. They wondered if the real remedy was to rule the entire confidentiality portion of the Child Protection Act unconstitutional. I’m not sure that’s likely. I think the family’s lawyers would probably applaud that, but that wasn’t their primary issue – they really just wanted the protective order vacated.

So the justices could actually fashion a remedy that allows for the more usual approach – that is, the case is filed, DCYF and CASA step and assert the confidentiality provisions and there are arguments and it goes back and forth and there is finally a decision.

This case has been sitting and waiting for arguments for two years. After the hearing the attorney for the family told the media they would hope a decision would be coming soon and they could proceed with their lawsuit.

PETER: Brian, thank you very much.

BRIAN: You’re welcome, Peter. Thank you.

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