Safe Choices 7 – Attorney takes program to court

by Paul Lefebvre

copyright the Chronicle November 19, 2008

A Family Court judge is expected to rule on allegations that the Safe Choices program — the program founded in 1993 to deal with sex offenders judged incompetent to stand trial — interfered with a Newport attorney’s attempt to represent one of the clients in the program.

A hearing has been scheduled for next Monday in Caledonia County Family Court on allegations submitted by attorney Trudy Miller.  The allegations say that workers with Safe Choices repeatedly refused Ms. Miller’s request to speak to her client, and then orchestrated her dismissal by bringing pressure on both the client and his father to take her off the case.
“They won’t let me see my client, and he’s his own guardian,” she said, speaking of a 34-year-old man who was found incompetent ten years ago to stand trial on two charges of lewd and lascivious conduct with a child.
“This is entirely unheard of.”
In an interview Tuesday, Kathy Aiken, coordinator of the Safe Choices program, dismissed the allegations as groundless.
“This program believes in the laws of the land and fully supports the legal rights and responsibilities of all citizens, including, of course, the right to counsel,” she said in a prepared statement.
“We firmly reject the allegations made by Ms. Miller and are completely confident that the court will confirm that point.”
The hearing scheduled for Monday, November 24, is the latest in a six-week confrontation between Ms. Miller and Safe Choices over the legal rights of a man who, up until recently, had lived with his father for ten years.  As a client of the program or “consumer” during this time, Roderick — who real name shall remain anonymous in this story— participated in group therapy once a week.
An annual review of his situation in March, however, concluded  he needed more supervision and a different place to live, away from his father.
After noting that Roderick had “not made any progress in sex offender treatment in  the past year,” the review recommended that he be returned “to full participation in the Safe Choices program.”
Written by Gail Falk, who heads the state’s Office of the Public Guardian, the review reiterated the program’s twin goals of increasing Roderick’s “ability to be independent in the community” while protecting the community’s safety at the same time.  Ms. Falk, who referred comments on this story to her supervisor, Joan Senecal, commissioner of the Department of Disabilities, Aging, and Independent Living (DAIL), also noted that despite a brain injury he suffered as a young child, Roderick had been found capable of  “learning the skills he needs to prevent reoffending and to progress to greater independence.”
Roderick was turned over to his Safe Choices handlers on August 25, according to his father, who has taken care of him since a near-fatal drowning when he was six years old.
According to an earlier, 1999 evaluation,  Roderick was resuscitated twice  after falling through a thin sheet of ice on a swimming pool.  He was in a coma for two days, and he has been “diagnosed with Organic Brain Syndrome and mild Mental Retardation as a result of the drowning accident,” according to the evaluation, which was performed by a licensed psychologist.
Shortly after the accident, the family fell apart and Roderick’s father became a single dad.  “I had to teach him to walk, talk, and go to the bathroom by myself,” he said after agreeing to be interviewed for this story as long as his name was not used.
At 61, he lives with his dogs in a trailer Roderick owns off a back road in Newark.  He has bundles of paperwork that relate to his son’s history with Safe Choices.  The decision to remove Roderick from the trailer has left him feeling bitter and distraught.
“Before they took him, they hadn’t come near this house for over a year,” he said.
While living at home last year, Roderick had landed a job in a store through the services of the Employment Support Resources Program.  His Safe Choices “job coach” worried that he had “increasing contacts” with the young child of his supervisor, who was frequently at the store, Ms. Falk wrote in her review.
Roderick became “very hostile” when asked to discuss the situation, she wrote, and had chosen not to disclose his history of sex offending to his employers.  Before the issue could be resolved, Ms. Falk wrote, Roderick was fired because he lost his temper at work.  But Roderick’s treatment team agreed that he “must disclose his history of sex offending at any new workplace,” according to Ms. Falk.
The review also characterized Roderick’s father as someone who is “distrustful of social services staff” and who resists “many services.”  The father, in turn, believes the program has no soul.
“They give you all these books, but you don’t have a life,” he said during an interview in his kitchen.  “They abused either one of us.  We were not allowed to go anywhere; not allowed to do anything.”
Before consumers in the program can go out to a public place, a store or a ball game, they must fill out a risk preparation check sheet.  The checklist requires them to identify what risks they need to be aware of , and ask how they intend to deal with situations that could become sexual.  The checklist must be approved by the program’s psychologist.
“Just a bunch of bullshit,” said Roderick’s father as he noted that his son can neither read nor write.
At some point, Roderick got tossed out of his group therapy sessions because he is big and the psychologist was afraid of him, according to his father.  Afterwards, the two of them began to go to public places without the psychologist’s approval. They got in trouble when they were seen on an outing to the nude beach at Willoughby’s south end.
“We got hauled in on the red carpet,” said Roderick’s father, who couldn’t see the risk.  They kept their clothes on, he said, and they picked the nude beach because, he added, it was not a place where kids go.
When Roderick was under his supervision, he was “never out of my eyesight.  That’s the way it was.”
Friction over the checklist did not escape Ms. Falk’s attention at the time of her review in March.
“Safe Choices and [Roderick] are currently locked in a power struggle over the use of written plans and post activity reports as a risk reduction technique,” she wrote.
“If desired,” she concluded, “DAIL will provide mediation or a consultant to resolve this issue.”
At around the time it became clear that Roderick would be moved out of his trailer, attorney Trudy Miller became involved in the case.  Roderick’s father was worried he was going to lose his son, and arranged a meeting at the Newark trailer, telling the attorney he was afraid to be seen going into her Newport office.
“That’s why I went there,” she said.
On August 20, Vermont Legal Aid in Montpelier received word that Roderick was to be placed in a new location.
“We cannot meet our responsibility to assure public safety at his current address, and we believe that a staffed setting is essential for [Roderick] to progress in treatment,” according to a letter on that date from the Office of the Public Guardian at Waterbury.
The letter went on to say that Roderick would be moved to a mobile home  — Roy Mountain — where there would be no other consumers, but a staff to assist him, 24 hours a day, “to reinforce the skills of sex offender risk prevention, to assist him in applying anger management skills, to assure that his medical and daily living needs are met, and to accompany him in community activities.”
The mobile home placement was called transitional, and the letter said that he would be moved to a shared living home.
Neither attorney Miller or Roderick’s father were able to provide any details on the criminal charges of lewd and lascivious conduct that brought Roderick into the Safe Choices program.  Roderick, according to his father, has short-term memory loss as a result of his accident.
“As far as he’s concerned, it never really happened,” he said.
Once the move to the Roy Mountain trailer occurred, however, allegations began flying about the treatment the new tenant was receiving.  In a five-page affidavit submitted to the Caledonia Family Court, Roderick’s father charged his son was treated like an animal.
Among other charges, he said his son was locked in his bedroom for the night and made to sleep on a mattress soiled with urine and feces.
“His therapy,” wrote the father in a sworn statement, “was to be isolated from the world in strange filthy surroundings, with strangers.”
In an interview this week, DAIL Commissioner Senecal and Ms. Aiken strongly defended the program and the treatment services it provides without talking specifically about the allegations surrounding Roderick.
“Because it’s a case that’s in court, I can’t comment on it,” said Commissioner Senecal.
But, she added, her department has the wherewithal to respond to any complaints about abuse.
“For anyone who has complaints like that, they should be reported immediately to the Adult Protective Services,” she said.
According to Commissioner Senecal, an investigation would be started in a matter of days into any complaints regarding the “abuse, neglect, and exploitation of vulnerable adults.”
Investigators, she added, handle all kinds of complaints, regardless of whether the subject is a state worker or not.
“If you smacked your grandmother, we’d come investigate you,” she said.
Safe Choices has drawn the attention of investigators five times within 18 months, according to Ms. Aiken, who has been with the program since it started 15 years ago.
The nonprofit Vermont Protection and Advocacy along with the Adult Protective Services and the Department of Licensing were among those who conducted what Ms. Aiken called a review of Safe Choices.  And not one of them, including a Medicaid audit review, found any wrongdoing or inappropriate behavior, she said.
“All have concluded that we have consistently adhered to best practice standards and have not in any way compromised caring and professional delivery of services to all of our clients,” said Ms. Aiken in a written statement.
What remains at issue, however, is how the state will rebut testimony that accuses Safe Choices day workers and Roderick’s case worker, John Ullrich, of interfering with their client’s right to legal access.
When attorney Miller attempted to call Roderick after he had been moved to the Roy Mountain trailer, she said she was stonewalled.
“Oh no, no, no,” she recalled the day worker telling her.  “We have orders you cannot speak to him.”
As a lawyer, Ms. Miller has a reputation of representing people who have left Safe Choices.  Or of sticking her nose where it doesn’t belong.
“A Philadelphia lawyer I am not,” she said in a recent interview, noting that she has a habit of speaking her mind — a habit that has caused some to call her “Big Mouth Miller.”  She said from the start state officials did not welcome her representation.
“Their deepest, darkest fears had been realized that I was on the case,” she said.
Toward the middle of October, with her appearance on record that she represented Roderick, Ms. Miller received no answer when she tried to call her client at the trailer.  The next day, as one after another calls went unanswered, she started to “smell a rat.”
She began calling officials with Northeast Kingdom Human Services, the Office of Public Guardian, and Safe Choice.  No one responded.
“Out of seven phone messages, no one called me back,” she said.
A few days later the ax fell.  A phone message from Ms. Falk informed her that Roderick and his father had expressed their wish in a letter to terminate her services.  The more questions she asked, the more suspicious she became.
“Everybody else got a copy of the letter but me,” she said.  It left her with the thought that something was going on.  A call from Roderick’s father nailed down her suspicions when he told her:  “They’re making us fire you.”
By keeping her in the dark, Ms. Miller alleges that Safe Choices has violated Roderick’s constitutional right to speak to his attorney.  The Constitution, she said in an interview, provides “equal access to the law.”
According to the affidavit from Roderick’s father, pressure to fire Ms. Miller came from John Ullrich.  He complied, he said, because Mr. Ullrich was his son’s case worker, and he was afraid.
He met Mr. Ullrich and Roderick at the state boat launch on Willoughby.  He said Mr. Ullrich handed him a piece of paper and a pen and told him: “This is what I want you to write.”  Allegedly, both father and son signed the letter firing Ms. Miller.
Contacted last Thursday night, Mr. Ullrich referred questions about the case to Ms. Aiken.
According to the father’s affidavit, Roderick at some point also called and fired Ms. Miller over the phone after being threatened with being sent back to the trailer at Roy Mountain that he complained was unsanitary.
Presently, Roderick is living in a care provider’s home in Newport Center.  He and his father can meet every other week, but only in a public place, like a restaurant, and only in the presence of a Safe Choices day worker.  To be without his son weighs heavy on him.
“These people don’t understand what I’ve been through, just to take him away.  Why don’t they just rip out our hearts and bury them in the front yard?” he said.
He has hired Ms. Miller back to represent his son, and hopefully bring him home.
“I’m 61 years old,” he said.  “I celebrated my sixty-first birthday without him.  I’ll have to celebrate Thanksgiving without him, and probably Christmas, too.  And we’ve been together 34 years.”
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