Safe Choices 26 – Judge denies motion to dismiss case

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by Chris Braithwaite

copyright the Chronicle March 9, 2011

NEWPORT — If there were any flaws in the legal process that made George St. Francis, in essence, a ward of the state 15 years ago, they are too stale to warrant releasing him from any further court supervision, Judge Walter Morris has ruled.

The judge denied a motion filed by Gertrude Miller, attorney for Mr. St. Francis’ guardian, Janet Reed, that the case involving Mr. St. Francis and his need for treatment and supervision should be dismissed.  It should be, Ms. Miller argued, because of errors in the process that transferred his guardianship to the Department of Mental Health and Retardation (now the Department for Aging and Independent Living) in 1996.
Mr. St. Francis had just turned 18, too old to continue in the custody of the state Department of Children and Families.
His state guardian enrolled him in the Safe Choices program operated by Northeast Kingdom Human Services to treat — and control — men who are charged with serious sex crimes but lack the mental capacity to be put on trial.
Mr. St. Francis does not fit either of those categories.  He has never been charged with a serious sexual offense, though he has been convicted of engaging in a prohibited act.  That very conviction belies any claim that he is too mentally handicapped to stand trial, and experts retained by his attorney have challenged the original finding that he is seriously retarded.
Mr. St. Francis’ strenuous efforts to get out of the Safe Choices program, which he found confining, demeaning, and humiliating, led to the case which has been moving through Orleans Family Court since late 2008.
The case appeared to be resolved almost two years ago when Northeast Kingdom Human Services released Mr. St. Francis from Safe Choices, and the state yielded its guardianship powers over him to Ms. Reed, a private guardian appointed by the Probate Court.
But the settlement broke down when Ms. Reed permitted Mr. St. Francis to get married and withdraw from the alternative program of treatment and supervision arranged with Sterling Community Services, a Lamoille County community mental health agency.
Judge Morris has found Ms. Reed in contempt of court.  He has yet to impose any sanctions on her, though he has said he could, among other things, dismiss her as Mr. St. Francis’ guardian.
A difficulty the judge faces is that the state has lost any interest in resuming its guardianship, and has withdrawn its attorney from the case.  So has Sterling Community Services.
But, apparently because of the contents of evaluations of Mr. St. Francis that have never been made public, Judge Morris has shown a clear reluctance to leave Mr. St. Francis free of any official supervision.
The 1996 records from Chittenden Family Court indicate that Mr. St. Francis was deprived of his rights as an adult without a hearing, on the basis of a stipulation between an attorney appointed to represent him, and an attorney for the state.
Judge Morris notes that on February 20, 1996, one day before his hearing was scheduled, his attorney wrote to the court that she “was certainly intending to speak with Mr. St. Francis, but had not… had an opportunity to do so.”
The attorney, Laura Philipps of the Developmental Disabilities Law Project, signed a stipulation that was the basis of the court order, but Mr. St. Francis did not.
In the 1996 file, Judge Morris wrote, there is no finding that Mr. St. Francis waived his right to a hearing “knowingly and voluntarily,” that his lawyer consulted with him before signing the stipulation, or that it was found to be in his best interest.
Nor were his rights protected by a guardian ad litem.  None was appointed in his 1996 case.
“The question remains,” Judge Morris wrote, “as to the significance of the apparent failure of the court to make the findings” that Mr. St. Francis’ right to a hearing had been protected.
“The difficulty with that in this case lies in the fact that a substantial period of time has ensued since the entry of the orders that are presently challenged,” the judge wrote.
A greater problem, he added, is that in past proceedings “Mr. St. Francis has been represented by counsel who have vigorously and independently sought to assert his interest as to guardianship for a period of at least six years now, without prior challenge to the foundation upon which the orders or guardianship were originally entered.”
The court order was based on an evaluation of Mr. St. Francis, Judge Morris wrote, and there was a factual basis for its decision.
“Otherwise stated, this is not a case in which orders were made grossly and in unmistakable error without any basis at all.”
All in all, Judge Morris ruled, the problems with the original proceedings were an “insufficient basis” to dismiss the case.
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