Safe Choices – introduction

This series looks at a privately operated but state funded program created to deal with people who have two strikes against them:  a court has judged them to be mentally retarded, and they have been accused of a sexual offense for which, because of their disability, they cannot constitutionally be brought to trial.  Our series, which began in October 2008, deals with “clients” who found the Safe Choices Program humiliating, confining, threatening and mentally abusive.  None of our subjects of articles within the numbered series quite fits the definition Safe Choices was created to serve.  They had never been formally charged with a serious sexual offense, but instead were suspected of sexual misbehavior and sent to Safe Choices by public or private guardians.
This series garnered a first place award for investigative reporting in the New England Newspaper and Press Association’s Annual Better Newspaper Contest in 2010.

The stories in the series appear here with numbered titles (starting with Safe Choices 1) in order of when they were written.


Coventry man sentenced for knife attack

Christopher Smith enters court as Jennifer Hersey Cleveland, the woman he attacked in August 2011, looks on. Photograph by Joseph Gresser

by Joseph Gresser

copyright the Chronicle, 9-14-2012

Editor’s note:  This article is more recent than the Chronicle’s Safe Choices series published in 2010. The entire series is posted in the Safe Choices Program category from part one through 30 starting with part one.

NEWPORT — A Coventry man was sentenced to three to five years in jail — with all but just over a year of that suspended — for aggravated assault with a deadly weapon, a felony, and engaging in a prohibited act.  He was given credit for time served.

Cristopher Smith, 27, of Coventry, was arrested on August 8, 2011, after he threatened Jennifer Hersey Cleveland, a reporter for the Orleans County Record and a former Chronicle editor, with a knife.  He also ordered her to undress.  Ms. Cleveland had seen Mr. Smith hitchhiking with his dog in Coventry and offered him a lift.

When Mr. Smith pulled his knife on her, Ms. Cleveland grabbed his arm and broke the weapon before running from the car and seeking help at a nearby house.  Mr. Smith has been held without bail since his arrest.

Just after the initial sentencing hearing, Lawyer Gertrude Miller found herself in an unusual situation — forced to ask Judge Howard VanBenthuysen to extend her client’s time in jail.

After a three-hour-long hearing, during which Ms. Cleveland asked him to serve justice in “a merciful, therapeutic manner,” Judge VanBenthuysen agreed to the sentence worked out between Ms. Miller and Deputy Orleans County State’s Attorney James Lillicrap.  The hearing was held in the Orleans Criminal Division of Vermont Superior Court.

It called for a three-to-five-year sentence for Mr. Smith, all but 353 days of which were to be suspended.  In addition, the sentence included several pages of conditions including provisions that called for him to participate in a mental health treatment program, refrain from hitchhiking and not drive with female passengers unless given permission to do so by his probation officer.

The snag, discovered by probation officer Lisa Levesque, was that Mr. Smith’s sentence would have forced the state Department of Corrections (DOC) to release him immediately, even though his place in a treatment program will not be ready for up to six weeks.

The state and Mr. Smith’s lawyer agreed that he needs to be in a treatment program for some time to come.

After the discovery of the sentencing mishap, Judge VanBenthuysen quickly reconvened the hearing and with the agreement of all parties reset the period Mr. Smith must remain in jail to 395 days.  He agreed that, should the treatment facility be able to accommodate Mr. Smith sooner, he would readjust the sentence to allow him to enter the program.

The sentencing hearing was ostensibly called to allow Ms. Miller to contest two provisions of the sentencing agreement — that calling for Mr. Smith to refrain from giving women rides in his car, and that calling for him to participate in the therapy program.

In fact, Ms. Miller never discussed the first provision, and spent much time trying to influence the type of therapeutic program Mr. Smith is ordered to attend.

Despite frequent objections from Mr. Lillicrap, Ms. Miller spent an hour questioning a California psychiatrist, Dr. Robert Hochman, in a an attempt to elicit damaging testimony about Safe Choices, the residential treatment program where Mr. Smith lived for seven years before the attack on Ms. Cleveland.

Mr. Lillicrap argued that the questions were irrelevant because the plea agreement specifically stated that Mr. Smith would not be returned to Safe Choices without a judge’s order.

Judge VanBenthuysen wryly noted that Ms. Miller is a leading expert on Safe Choices, and has been involved in civil suits against the organization.  The Chronicle spent several years investigating the program and published a lengthy series of articles on its controversial practices (the series is published in its entirety elsewhere on this site.)  Ms. Cleveland also reported on the program for the Orleans County Record.

Dr. Hochman did criticize the program on the stand and in an affidavit submitted in advance of the hearing.

The affidavit says he interviewed Mr. Smith for one and a half hours and read 5,000 page of documents about his treatment.  His work led him to the conclusion that Mr. Smith suffers from high functioning autism, marked by “poor control of anger and disability in navigating adult social relationships…”  It also says he believes Mr. Smith was initially mislabeled as a sexual offender “based solely on several isolated episodes of faulty peer socialization that bore superficial resemblance to behavior that would be viewed by most as perverse if it occurred between sexually mature adults.”

It says that as a result of this initial mislabeling, he was put into a mandatory psychological program that “confined him to minimal participation in society as well as having him attend regular group sessions which appeared to use humiliation as a primary tool of behavior control.”

“Based on my review and my clinical experience, it is remarkable that in the months prior to the crime that put him in prison the following sequence of events took place:  a) after years of being chaperoned and needing to have any movies he rented approved by NEKHS [North East Kingdom Human Services] staff for limited sexual content, Mr. Smith succeeded in hacking the channel/ billing apparatus of a host family’s satellite TV system, and had free reign to watch “XXX channels” for five months until the host family discovered their monthly credit card bill had automatically been raised to pay for the XXX channels.  C) Several days after being banished from his new world of pornography/ fantasy, Mr. Smith committed the first actual sexual offense in his lifetime.  It is my observation that this was done in a hapless manner, noting an immediate subsequent suicide attempt was done in an equally hapless fashion.  It is mu further opinion that is is medically probable that there is a link between the phenomenon of pornography withdrawal and the commission of his crime, further noting that for years he was indoctrinated to view himself as a sexual deviant who was unable to fully function in society.”

He recommended that Mr. Smith be given therapy that would help him become part of a community and develop skills and interests that would enable him to participate in the outside world.

Gail Falk, the only other witness called by Ms. Miller, said she became Mr. Smith’s guardian seven years ago.  As head of Vermont’s Office of the Public Guardian, Ms. Falk met him when she went to Philadelphia to bring him back to Vermont after he grew too old for the school where he had been housed.

“I was overwhelmed by what a scary place that school was,” Ms. Falk recalled.  “I was glad to hear that it was later closed down by the state of Pennsylvania.”

Ms. Falk said the two of them bonded and she has remained Mr. Smith’s guardian although she no longer works for the state.  She said that she searched for a program that would enable Mr. Smith to nurture his abilities and help him to make friends and deal well with others.

She said that Mr. Smith has been in sex offender group therapy since he was 14.

“If it was going to be effective, it would have been,” Ms. Falk said.

Ms. Falk recommended that Mr. Smith be sent to Specialized Community Care, a small program that is willing to make space for him.

Judge VanBenthuysen said he appreciated the effort that Ms. Falk made to find the program, but pointed out that his ability to direct the DOC is limited that that agency would make the final decision about where Mr. Smith is sent for treatment.

Mr. Smith’s sentencing hearing began with a statement from Ms. Cleveland who read prepared remarks, stopping to hold back tears several times (see below).

Ms. Cleveland spoke directly to Mr. Smith, who did not look at her.  She told him that though she forgives him she wants him to know that his actions have had a major impact on her life.

Since the attack, Ms. Cleveland said, she has lost her sense of trust and said, “I can’t force myself to stop and help others in need — because of what you did.”

Although she is willing to recommend a sentence other than jail now, Ms. Cleveland told Mr. Smith that if he is again charged with a similar offense “expect to see my face in the courtroom, but in the future, I won’t be asking the court to be merciful.”

At the conclusion of the hearing Judge VanBenthuysen asked Mr. Smith if he cared to speak.  Mr. Smith rose and, without turning to face her, apologized to Ms. Cleveland.

“I know what I did was wrong,” he said.  “I’m really sorry for what I did.  I could never hurt anyone again.”

Mr. Smith asked the court for another chance.  He concluded by reading a poem he called “Puppet String.”

In it Mr. Smith described himself as a puppet and envisioned a day when he would break free of the strings that control him.

“One day I will pull loose my strings that holds my weight and stand on my own two feet/ and celebrate/and go where the world awaits.”

After Mr. Smith finished his statement Judge VanBenthuysen spoke first to Ms. Cleveland, praising the courage she showed in resisting her attacker and the compassion she showed in calling for mercy for him.

The judge said he sensed sincerity in Mr. Smith’s apology.  He told him that he wrestled with the question of whether or not to accept the proposed sentence agreement, but had been swayed by the fact that it was Mr. Smith’s first criminal offense and by Ms. Cleveland’s statement.

“This is a rehabilitative sentence,” Judge VanBenthuysen said.  He pointed out that the therapy recommended by Ms. Falk and Dr. Hochman is similar to that practiced by Safe Choices in that it is “intensively supervised.”

Should the court err in sentencing “any error in this case has to be in the safety of others,” Judge VanBenthuysen said.

Jennifer Cleveland’s statement:

 I want justice to be served, but in a merciful, therapeutic manner for Mr. Smith, which I believe the sentence in plea agreement accomplishes.

I forgive Cris, but I want you to know the impact of your actions in my life, because that’s something I can never forget.

It took me years to feel strong and self-sufficient, to get to the point where I’m not afraid to live my life — because by the plain fact of my birth as a female I’m a potential victim of sexual violence.

My husband now wants me to carry a weapon at all times and is worried every time I leave the house, worried I’ll again meet up with someone like you.

You destroyed my sense of trust.  I stopped that day to help you, and in return you put a knife in my face.  Now, I can’t force myself to stop and help others in need — because of what you did.

My job requires going into secluded, rural places at times to speak with people.  On one occasion, a man’s mother had just been crushed when her home caved in on her.  The man was in tears and reached out to me for some human comfort, and I couldn’t even give him a hug.  Because of what you did, I thought the man was trying to trick me to get close enough to hurt me.

Despite all of this, I’m giving my approval to what is a merciful sentence.  I don’t think jail is the place for you, but I certainly want you to get the help you need.

I hope you take this all very seriously and realize that not every woman would ask the court to treat you so kindly.  I hope you find a reputable program that actually seeks to treat people who have problems similar to your own.  It sickens me that you were placed in a program that encouraged you to behave this way and made you feel like you have no worth.  But it is time to move on and put in the time and effort necessary for you to get better.

If you are ever again charged with an offense like this, expect to see my face in the courtroom, but in the future I won’t be asking the court to be merciful.

contact Joseph Gresser at [email protected]

For more free articles from the Chronicle like this one, see our Editor’s Picks pages. For all the Chronicle‘s stories, pick up a print copy or subscribe, either for print or digital editions.


Safe Choices 1 – Leave George alone

by Chris Braithwaite

copyright the Chronicle October 1, 2008
NEWPORT — In his effort to take control of his life away from the state of Vermont, George St. Francis found an ally in Probate Judge John Monette.

After a hearing on September 4 the judge ordered the Office of the Public Guardian and much of the staff of the Safe Choices program to “refrain from any and all acts constituting abuse, retaliation, intimidation, humiliation, ridicule, exploitation, threat, or harassment” of Mr. St. Francis, who is under state guardianship.
For good measure, the judge told the state and Safe Choices to give Mr. St. Francis access to his own attorney, and not to change his medications in a way that might hinder his ability to function.
Mr. St. Francis, 30, has been living at “Lowell House,” an isolated residence that houses a few participants in the Safe Choices program, which in turn is run by Northeast Kingdom Human Services, Inc., of Newport.
Safe Choices was founded about 15 years ago as a way to deal with sex offenders who, because of low intelligence, are incompetent to stand trial in criminal court.  The program has grown to include men like Mr. St. Francis, men who had not been charged with a sex crime, but were deemed to be at risk of offending.
Mr. St. Francis has been in criminal court as recently as Tuesday on misdemeanor charges brought by the people who mind him at Lowell House.  And while it’s not clear that his competency to stand trial has ever been resolved as a legal matter, he has been convicted of one count of engaging in a “prohibited act,” and a probation violation for essentially repeating that act.
Mr. St. Francis wants to get out of Lowell House and out of the Safe Choices program.  To that end, he has apparently filed a request in Orleans Family Court that his state guardianship be terminated.
That relationship dates back to 1996, when he was 18 and Chittenden Family Court found that he had “been diagnosed as having significantly subaverage intellectual function… which exists concurrently with deficits in adaptive behavior.”
Meanwhile, Mr. St. Francis has filed a parallel request in probate court that Janet Reed of Craftsbury be named his private guardian.  Ms. Reed has worked actively to help other men get out of the Safe Choices program.
While state guardianships are handled in Family Court, private guardians are appointed and monitored by Probate Court, and that’s where Judge Monette comes in.
The state’s indignation at being the subject of such a strongly worded protective order seems to leak through the dry language of the documents filed by its lawyer.  She is Jennifer Myka, the special assistant attorney general who represents the Department of Disabilities, Aging and Independent Living (DAIL), which oversees the Office of the Public Guardian.
In addition to appealing the Probate Court’s order to Orleans Superior Court, thus involving every court that sits in the old county courthouse on Main Street, Ms. Myka went to Probate Court to seek the order’s “immediate termination.”  That motion is scheduled for hearing on Thursday, October 2.
She argues that the Probate Court lacks jurisdiction in the case because Family Court has exclusive jurisdiction over Mr. St. Francis’ guardianship.
She refers to Mr. St. Francis’ attorney, Tim Yarrow of Hyde Park, as his “apparent” attorney, arguing that the commissioner of DAIL has the exclusive power to obtain legal advice on his behalf.
Ms. Myka complains that the September 4 hearing was “ex parte,” meaning that one side — the state — was not present.
“It was improper for this Court to entertain allegations this scandalous on ex parte basis,” she wrote, “and to restrict the participation of the State without any effort to grant the State a right to be heard.”
The allegations she refers to can be found in two affidavits filed in Probate Court.
One, from investigator Carroll Billado, is based on an August 8 telephone conversation with Mr. St. Francis who, Mr. Billado wrote, “wants the public to hear about his terrible experiences in the ‘Safe Choices’ Program.”
The investigator, a former Orleans County Sheriff’s deputy, wrote that Mr. St. Francis “is very concerned that when he files paperwork with the court system, that the ‘Safe Choices’ Program will retaliate against him.”
He told Mr. Billado he had been in Safe Choices for nine years.
“The ‘Safe Choices’ Program staff has said ‘If you try to leave the program, we will put you in jail,’” Mr. Billado wrote.  “The ‘Safe Choices’ Program staff has said ‘We’ll testify against you to keep you in the program.’”
“The ‘Safe Choices’ Program staff calls him a ‘liar’ all the time and says, ‘We don’t believe you’ when he denies having a deviant fantasy or denies masturbating,” the affidavit continues.
Mr. St. Francis told Mr. Billado he had two seizures while living at the main house in Lowell, and was taken to North Country Hospital by ambulance.  He currently lives alone in a nearby cottage, and told the investigator he is afraid he might not get help if he has another seizure.
A second affidavit was signed by a 24-year-old man who spent five years in the Safe Choices program, and lived at the Lowell House while Mr. St. Francis was there.
His affidavit says Mr. St. Francis was frequently accused by his therapist of having sex with animals, including chickens and goats.
“Mr. St. Francis denies these things,” Mr. Billado’s affidavit says.  “Mr. St. Francis wants a ‘normal’ life, relationship and family, like anyone else.”
The 24-year-old man’s affidavit said that the therapist and the Safe Choices staff told Mr. St. Francis and “all the guys, including me, ‘We will make you go to jail if you leave the ‘Safe Choices’ Program.’”
His affidavit says that John Ullrich of Barton, a “community integration specialist” working at the Lowell House, hung a picture of a rooster on Mr. St. Francis’ bedroom door.  “I believe that John Ullrich did that to make fun of George, because he thought George had sex with birds and other animals,” the affidavit says.  “I knew that was a cruel thing to do.”
The 24-year-old complained to other staff, he said, and they made Mr. Ullrich take the picture down.  Mr. Ullrich, the affidavit says, called Mr. St. Francis “George of the Jungle,” and “Curious George,” and made “cluck cluck” sounds when he saw him.
Mr. Ullrich had no comment on that allegation Tuesday night.  But Kathy Aiken, coordinator of the Safe Choices program, said “that isn’t the way it played out.”
According to a description of the program written for a state legislator in 2003, Safe Choices had 17 clients who all had “problematic sexual behaviors.”
Seven had been sent to the program through the court process because they were found to be incompetent to stand trial and represented a danger to others.
Five had been returned to Vermont from out-of-state placements.
Three were placed in Safe Choices “proactively” by family members who were also their guardians.
And two were put in the program by state-appointed guardians “because they were engaging in substantiated problematic sexual behaviors but had avoided adjudication.”
In 2003 the care of those 17 men cost the program more than $1.2-million, with the cost per man ranging from $20,252 to $112,954.
The cost of maintaining one man at Lowell House in 2006, a program document shows, totaled $187,766.
Eric Grims, executive director of Northeast Kingdom Human Services, said Tuesday that he thinks Safe Choices currently has 18 to 20 clients.  Without doing some research, he said, he could not separate Safe Choices’ budget from the $15-million his agency’s developmental services division spends annually on services for well over 100 people with developmental disabilities.
According to criminal court records, Mr. St. Francis’ stay at Lowell House has not been uneventful.
In Orleans District Court Tuesday he pled innocent to a misdemeanor charge of disorderly conduct.
According to the affidavit of State Police Corporal Paul Mosher, a staff member at Lowell House complained on August 17 that Mr. St. Francis entered the main house carrying a steak knife and pointed it at him.  The staff member told the officer that he felt threatened, and told Mr. St. Francis to drop the knife.  He took the knife away, he told the officer, and Mr. St. Francis left the house.
According to court records, Mr. St. Francis was ordered to report for an evaluation of his competency to stand trial.
Mr. St. Francis was arrested at Lowell House in September 2005 and charged with a “prohibited act” after a female staff member complained that he had reached around her waist and “started to push his groin into her buttocks,” according to the affidavit in the case.
Though a long series of hearings were scheduled to establish whether he was competent to stand trial, he pled no contest to the misdemeanor in May 2006 and was given a six-to-12-month sentence, suspended with probation.  Among the conditions of his probation were that he stick to his mental health plan and abide by the rules of his group home.
But in August 2006 another female worker at Lowell House complained that Mr. St. Francis put his arms around her and pushed against her with his body.
Court records say Mr. St. Francis admitted that he had violated probation and was ordered to serve five days of the sentence imposed on the original charge.  He was once again put on probation through August 14 this year, and told to abide by his mental health plan and the rules of the group home.
The state’s lawyer in the probate case, Ms. Myka, accompanied her written argument with a 2005 Family Court decision by Judge Dennis Pearson on an earlier petition to end Mr. St. Francis’ state guardianship, filed by Dayton Lanphere of Wolcott, who had helped care for him during a two-month stay at Nightingale Respite Services.
The judge denied the petition on the grounds that Mr. Lanphere was not an “interested person” as defined in the law governing state guardianships, and so had no standing to file the petition.
But Judge Pearson noted that the Commissioner of DAIL, as the supervisor of the Office of the Public Guardian, had failed to comply with the law:
“The Commissioner has failed to discharge his/her yearly duty to provide ‘an annual review of the social adjustment and progress’ of GSF (Mr. St. Francis), and to report on and ‘annually review the legal status’ of GSF and determine whether continued guardianship is still necessary and appropriate.  There have been no such written reports or reviews of GSF at all since 1996….”
However, the judge noted later, “no remedy exists, nor is any sanction or other relief identified, for the Commissioner’s obvious, and unexplained failure here….”
Asked about the judge’s findings on Monday, Gail Falk, who heads the Office of the Public Guardian, said “that was a good wakeup call for us.”
Since then, she said, her office documents its reviews of the people whose lives it oversees in an annual report.

Safe Choices 2 – Unhappy memories

by Paul Lefebvre

copyright the Chronicle October 8, 2008

Two former clients of the Safe Choices program who went into the program under cloudy circumstances said in recent interviews they were treated as if they were sex offenders and threatened with jail if they left the program.

One of them, a homeless man, said he signed himself into the program on the belief he would receive socializing skills.
The other went into the program as a teenager, following allegations of inappropriate sexual behavior.  During his participation, he was also a resident at the group home known as the Lowell House.  He eventually left the program and presently works as a hired hand on a dairy farm.
“I feel like I wasted five years for nothing,” he said over the course of an interview last week that exceeded an hour.  “They never helped me with nothing.”
Their stories came to light as Probate Judge John Monette issued an order last month to protect George St. Francis, presently a resident in the program at Lowell House, from any harassment or threats by the program’s staff and the Office of the Public Guardian.
The judge issued his order after the courts received petitions from Mr. St. Francis that his state guardian be terminated and one of his own choice, Janet Reed of Craftsbury, be appointed his private guardian.
Judge Monette was expected to rule last Thursday on an appeal of his order by the state.  But on Wednesday, October 1, the case was transferred to Orleans County Family Court by Judge Walter Morris.
The transfer order consolidates two pieces of litigation, including one to end the state’s guardianship of Mr. St. Francis.
An attempt to learn when the hearing will be heard in Family Court met with no results.  Citing confidentiality rules, County Court Clerk Laura Dolgin refused to acknowledge whether such a case exists.
Because of rules that seek to protect the privacy of citizens deemed to be of significantly below-average intelligence, Mr. St. Francis’ fight to wrest control of his life away from the state will be conducted behind closed doors.  But in an investigator’s affidavit filed in Probate Court, Mr. St. Francis said he “wants the public to hear about his terrible experiences in the Safe Choices Program.”
In an effort to learn more about the program, the Chronicle talked to two “consumers” who have left Safe Choices.
Run by the Developmental Disabilities Division of Northeast Kingdom Human Services, Safe Choices was started in 1993.  According to a letter he wrote in 2003 to describe the program to a state senator, Executive Director Eric Grims wrote of the need for a noninstitutional program that would treat clients with “problematic sexual behaviors” while still staying true to the axiom “The people’s safety is the highest law.”
Initially, the program was founded, according to the letter, “to deliver services to three mentally retarded clients who had been charged with sexual crimes but were subsequently found incompetent to stand trial.”  Over the years, the program has evolved to offer services to a more diverse clientele, who are considered to be developmentally disabled and have “problematic sexual behaviors” that never landed them in court.
The program offers a variety of services including employment support, crisis intervention, therapy (group and individual with a licensed psychologist), trained home providers, small group residential care, and psychiatric care.
Of the two men who came forward to be interviewed about their experiences in the Safe Choices program, one was a resident in the Lowell House, where Mr. St. Francis lives, while the other continued to live with a respite worker within the community.  In exchange for their stories, each was promised his identity would not be revealed.
Wendell is in his early twenties and appears to be outgoing and confident.  He answers questions without being cued by his attorney, and he is clearly proud to have a job and own a car that he drove to the interview.  He went to the Safe Choices program when he came under a cloud of sexual allegation while still living at home.
“My stepfather wanted me to go into the program,” he said.  “He was my guardian at the time.  They did what they had to do at the time and that was it.  They said I molested a 16-year-old.”
It is not clear how many allegations there were or who made them.  Wendell denied any wrongdoing during the interview.
Neither he nor another former client of the program — who for the purposes of this story shall be known as Donald — has been convicted of any sex crime.
Donald is a 37-year-old man who came to the interview dressed in a jacket and tie, and accompanied by his caretaker, Floyd, whom he has lived with for eight years.  Tall with a wide-eyed look that suggests some disability, he appears to be shy and withdrawn except for a huge belly laugh that comes out of him with surprising ease.
While never a resident of the Lowell House or any group home, Donald was in the Safe Choices program from July 2002 to December 2006.  He said he voluntarily entered the program hoping to improve his writing and reading skills.  “I was looking for help,” he said.
A special education student who graduated from St. Johnsbury Academy, Donald said he became a homeless person when his caretaker failed to pay the rent.  Out on the streets he was picked up by police when somebody said he was dangerous.  A Littleton, New Hampshire, family bailed him out of jail, and his present caretaker, Floyd, came into the picture when someone from Kirby asked if Donald could live with him.  From there he enrolled in the program, signing an agreement on July 29, 2002, with Northeast Kingdom Human Services, declaring:
“It has been explained to me that the services (shared living provider, respite, service coordination, day program) are available to me ONLY through the Safe Choices program because I have been identified as a person with problematic sexual behaviors.”
In signing the agreement, Donald said, he was familiar with the program “ because I was in it a short time before.”  But this time around he quickly became discouraged with it, complaining it focused almost exclusively on sex.
He said he had day programs five days a week in which a worker would take him for drives.  “Ride around the countryside and ask you how many times you masturbated,” Donald recalled.  “I told one day worker 65 times, and that shut him up.”
At another time on a ride around the countryside, they came upon what appeared to be a cow’s skull.  The day worker asked Donald if that turned him on.  As in the rides, sex reputedly dominated his therapy sessions.  According to Donald, he was told it was okay to have sex with “chickens and goats and all that.”  Even to the point, he added, with a knot hole in a wall or tree.
“I really didn’t know what to think,” he said, as he recalled the incident during his interview.  “I said, this is a new one.  They said if I left the program, they would send me to jail.”
Sex was also at issue in the group therapy sessions in which Wendell was a participant.  The group sessions were held in Newport, once a week.  There was an afternoon group and a morning group.
“They said I had sex fantasies toward kids.  I told them I did not,” he recalled.  “It turned into an argument.  After a while I learned to just keep quiet.”
A funding sheet with a starting date of July 1, 2006, indicates that yearly costs for providing Wendell with services and a place to live came in at $187,766.  Of that amount, $4,608 was spent on counseling.  The lion’s share of the bill belonged to the $138,811 charged for his residency at the Lowell House.
Wendell said he spent five years in the Safe Choices program, and was constantly moved around.  “The program kept me in control.  Moving me from place to place.  I stayed at more than 12 places.”
He also said, with a note of sarcasm, that they couldn’t find him a steady home because he was perceived as a sex offender.  He does, though, admit to having a temper.
At some point during his stay at the Lowell House he got into an altercation over some missing food.  “We had a grocery list for two weeks, but stuff was missing.  I kinda got mad about it.  I pushed a staff member.”
Later in the interview, recalling the incident, he said he got mad because the staff worker evidently had not read his file.  “I get pissed when they don’t leave me alone,” he said.
The altercation occurred on May 11, 2006. Police were called, and Wendell went to court in August.  Eventually he was given a one-year deferred sentence.  Special terms of his probation required him to be supervised by Safe Choices.  Two weeks after his probation was up, Wendell left the program.  He has been out of the program for roughly a year.
“They weren’t treating me good.  They constantly called me names,” he said.  “I had a funny feeling they were over-medicating me to keep me in.  After three months out, I weaned myself off the medications.”
Throughout the time he was in the program, Wendell’s mother served as his guardian.  A court will hear his petition later this month to get on with his life without a guardian.  Donald, on the other hand, refused all attempts to have a state guardian appointed for him.
“They would own me,” he said.
Safe Choices keeps its clients under closer supervision.  Both Wendell and Donald allege that it’s an arm length’s supervision that requires them to apply for permission to enter a given store or place.
Donald recalled the time he wanted to go to the funeral of a friend, who been killed in a skiing accident.  “They didn’t want me to go,” he said, speaking of the program’s staff.  “Said I’d have sex with the corpse.”
Some critics of the program express fears that such tight supervision insulates clients from the community, and prevents even family member from seeing how they’re doing.
“They wouldn’t let him see his parents,” said Floyd who has lived and provided care for Donald in both New Hampshire and Vermont.  “They criticized me because on holidays, I’d let him see his parents.”
When Donald left Safe Choices, the program cut off Floyd’s annual stipend of roughly $18,000.  Donald presently receives about $754 a month from SSI (Supplemental Security Income).
Neither Floyd nor Donald believes he was well served by the program.
“I became concerned about the program three months into it,” said Floyd.  “There are other things in life beside sex.  Sex.  It was constant.  Some days after the day program, it might take two days to get him settled down.  He felt he was evil, no good.”
Donald said that at some point in the program he was given a “P test.”  That’s shorthand for a penile plethysmograph test, a highly invasive and controversial test that measures what sexually arouses men.
The program deemed Donald a high risk.  Among the steps he was asked to take by his therapist was to keep a fantasy log.  Donald said he refused to do it, but the day workers took over and made entries for him.
“They wrote them in their own ways.  If I saw young women, they said I wanted to have sex with them.”
Eventually, Donald was asked to leave the program.  “They didn’t want me,” he said.  “I don’t know why.”
“Does anyone ever graduate from the program?” he was asked.
“You never do in that program,” he said.  “They have you the rest of your life.”
Editor’s note:  In an interview Monday, the staff of Safe Choices said that some of the stories told by Wendell and Donald are simply untrue.  Next week the Chronicle will report on the program from the point of view of the people who run it.



Safe Choices 3 – Staff defends program

by Chris Braithwaite
copyright the Chronicle October 15, 2008

NEWPORT — The people who run the Safe Choices program from a suite of offices on Seymour Lane are in a bind.  They work under strict rules of confidentiality, rules that protect the privacy of clients who have two strikes against them.  The clients have been found to be developmentally disabled or, in an older term still in official use, mentally retarded; and they have been accused — but with rare exception never convicted — of sexual offenses.

If these “consumers,” as Safe Choices calls them, choose to attack the program or its employees, nobody suspends the rules.  In refuting any charges, the staff can’t name names or discuss specific incidents in ways that would identify the participants.
At a meeting last week, the key people behind Safe Choices fell back on general, sometimes passionate defenses of the program itself, its mission, its practices, and its ethics.
As to specific allegations of staff misconduct, they could only offer assurances that amounted to this:  Trust me.
One complaint was that a staff member at Lowell House, where three clients live, teased one of them who had been accused of having sex with chickens, among other animals — a charge he denied.  The alleged teasing included putting a picture of a chicken on the man’s bedroom door, and making “clucking” noises in his presence.
Would such staff behavior be acceptable, Safe Choices Coordinator Kathy Aiken was asked.
“Absolutely not,” Ms. Aiken replied, “and it’s not true.”
Later in the interview she was asked how she knew the story was untrue.
“There were other witnesses,” she said.
And later still, in a telephone conversation, Ms. Aiken revisited the issue.  “The rooster thing as reported to you is not true,” she said.  “I’m not saying there wasn’t something with a rooster.”
Another allegation brought to the Chronicle was that consumers were threatened that if they left the program they would go to jail.
“We would never say such a thing,” Ms. Aiken said, “and I would never work for a program that said such a thing.”
However, in some cases such a statement would be the simple truth, Ms. Aiken noted.  At least two consumers known to the Chronicle were accused of misdemeanor offenses by Safe Choices staff, convicted, and placed on probation.
Both were ordered to return to the program and obey its rules.  Had either of them left Safe Choices while on probation, they might well have gone to jail.
However, the Chronicle talked to one former participant who was not on probation, and said he was threatened with jail if he left Safe Choices.  He said he was finally asked to leave the program, and did so without going to jail.
According to figures supplied later by Ms. Aiken, six clients, a third of Safe Choices’ current clientele of 18 men, are in the program under Act 248.  That means they are confined to the program by court order.  They are men who have been formally charged with sexual offenses, then found incompetent to stand trial because of a mental disability.
Those are the sort of clients Safe Choices was established to deal with, after Brandon Training School for the mentally retarded was closed in the national swing to deinstitutionalization.  Until Act 248 was passed in 1988, a mentally retarded defendant who was judged incompetent to stand trial was simply released; case dismissed.
Act 248 set up a civil confinement program to protect the public from such people, and Safe Choices was established by Northeast Kingdom Human Services in 1993 to provide that protection.
Safe Choices’ most difficult clients are kept under arm’s length supervision around the clock.
If it can be called a virtual prison, it is far more expensive than the real thing.  It costs $198,637 a year to keep the most expensive client in Safe Choices.  The average cost of keeping someone in a Vermont prison is about $43,000 a year, according to the Department of Corrections.
At Safe Choices, the cost per client varies widely, Ms. Aiken said, to a low of $32,270 a year.  The total cost comes to $1,959,676 a year.  The average cost per client, at $108,871, is more than double the cost of prison.
But two-thirds of the Safe Choices clients, 12 of the 18 men, don’t fit the category of men who have been charged with a sex crime, but can’t be tried or jailed.
Of those 12 men, Ms. Aiken said, seven were sent there by the Office of the State Guardian, which took over their lives on the basis of their mental disability.  Two were sent by private guardians.  One has no guardian at all, and two were sent by the Department of Corrections.
And it is out of that group that complaints about Safe Choices are emerging.  Three men have complained, either directly or in court documents, that the program was abusive, insulting, demeaning, and in the words of one of them, a waste of five years of his life.
All have cloudy pasts, with suggestions of sexual misconduct that never went to court.
Eric Grims, who oversees the program as executive director of Northeast Kingdom Human Services, insisted that their pasts are not so cloudy.
“We have no one in the program who has not been accused of a serious sexual offense,” he said Monday.
“We are the safety net for the state,” Mr. Grims said.
As the meeting opened, Mr. Grims made reference to a short but memorable American novel about a mentally retarded farmhand who falls in love with the boss’ wife, kills her and, as a vigilante mob closes in, is mercifully executed by the companion who has watched over him.
“This is Steinbeck’s Of Mice and Men,” Mr. Grims said, “but with better intervention and better outcomes.”
“We believe that the people’s safety is the highest law,” Mr. Grims said.  Once that safety is established, he added, Safe Choices tries to provide its consumers with “a full, satisfying life while still being sensitive to the public good.”
Safe Choices is not a fast-growing program.  Five years ago it had 17 clients, just one less than it has now.
The cost varies with the amount of supervision required, Ms. Aiken said.  Most clients live in private homes with a “shared living provider” who is paid by the program.  But some live in homes owned and staffed by Safe Choices, and the most problematic get 24-hour supervision by “awake” staff.
That supervision alone costs $140,000 a year, Mr. Grims said.
If community safety is the program’s primary concern, Ms. Aiken said, it is achieved through a combination of treatment and supervision.
Where treatment doesn’t work, she suggested, maximum supervision is required.  As treatment takes effect, supervision can be relaxed.
Her favorite client, she said, was sent to the program through Act 248, treated successfully, and released from the obligation to participate.  But he still takes part in Safe Choices, Ms. Aiken said, because “he decided he still needed the program.”  The man has a job in the community, she said, and is very successful.
That client, indeed, seems to have fulfilled the program’s mission statement, which Ms. Aiken provided:
“To safely integrate clients into the community.”

Safe Choices 4 – Ex-client wins fight

by Chris Braithwaite

copyright the Chronicle October 22, 2008
NEWPORT — A 24-year-old farmhand we are calling Wendell walked out of Orleans County Probate Court Thursday afternoon, October 16, with something he had never had before:  his freedom.

Wendell has been under the control of guardians since he turned 18, the age at which children are emancipated and gain the right to run their own lives, sign contracts, manage their own money, decide where they choose to live.
Wendell was put under the guardianship of his step-father because he was deemed to be developmentally disabled — of less than normal and adequate intelligence.
And his guardian, worried about Wendell’s sexual conduct, put him into the Safe Choices program that is run for the state of Vermont by Northeast Kingdom Human Services, a Newport-based community mental health agency.
Wendell told the Chronicle he spent five years in Safe Choices, some of them in a series of a dozen private homes, and some in an isolated residence at the end of a dead-end road in Lowell.
In Safe Choices Wendell mixed with 16 or 17 other “consumers,” some of whom had been charged with serious sexual offenses.  Those clients couldn’t be tried because of a constitutional protection that insists that, to be tried and convicted in America’s criminal courts, the defendant has to be able to understand what’s happening, and to participate in his own defense.
Rather than turn such offenders loose, Safe Choices keeps them under “arm’s length” supervision around the clock.
Wendell doesn’t fit that category.  He was never formally accused of a sex crime.  And far from being incompetent to stand trial, he told the Chronicle that he had been charged and convicted of a misdemeanor after a scuffle with one of his keepers at Lowell House.  The sentence was deferred, so no record of his conviction remains.  And the terms of his probation were that he return to Lowell House for a year and obey the rules.
In Safe Choices, Wendell was an ungrateful recipient of an astounding amount of public expense.  Records indicate that one year at Lowell House cost taxpayers $187,766.  That’s more than four times the cost of keeping a Vermonter in prison for a year.
Wendell was unhappy in the program, suspects that he was overdosed with psychiatric drugs which he has since stopped taking, falsely accused of sexual perversions, and denied both privacy and the freedom to associate with ordinary people in ordinary ways.
“I feel like I wasted five years for nothing,” he said in an interview.
Wendell was able to leave Safe Choices about a year ago, when his new guardian, his mother, decided he should do so.
He has been living in Craftsbury, and working part-time at the dairy farm of his aunt and uncle.
In August this year, as she does every year, Probate Court Clerk Lorraine Gray sent brief reporting forms out to the people it has appointed private guardians, and to the people they watch over.
Wendell’s mother returned her form, saying things were going well and yes, the guardianship should continue.
Wendell’s, however, came back with a request that the guardianship end.
The court responded by setting up an independent evaluation of Wendell by a social worker, and setting a date for a hearing.
He appeared Thursday before Probate Judge John Monette.  With him was his attorney, Gertrude Miller.
With a glance at the reporter in the back of the small hearing room on the main floor of the county courthouse, Judge Monette noted that it was Wendell’s right to have the hearing “fully open” or to exclude anyone who wasn’t a necessary part of the proceedings.
Ms. Miller said her client had no objection to anyone being in the courtroom.  (Before the hearing, the reporter had discussed the matter with Wendell and agreed to continue to protect his privacy by not using his real name.)
Missing from the hearing, Judge Monette noted, was Wendell’s mother and guardian.
In the form she’d returned to the court, the judge said, Wendell’s mother had said the guardianship should continue — that she believes Wendell “did require some level of assistance.”
“We agree with the guardianship evaluation,” Ms. Miller said.  “It recommends that the guardianship be ended.”
The evaluation also suggested that, if it agreed, the court should “check in” with Wendell in six months “to see how things are going,” Judge Monette said.
But, he added of the guardianship, “there either is one or there isn’t.  We can tailor or reduce the scope of his mother’s power.  But if we grant this motion, we can’t check in in six months.”
Wendell swore to tell the truth and testified about his living situation.
“I am on disability,” he said.  “I work part-time for my uncle.  I’ve got my own apartment.  I’ve got my license and a car.  I’m capable of driving to work every day.”
“Did you drive up here today?” the judge asked.
“Yes,” said Wendell.
“By yourself?”
“My uncle’s wife has a place up in East Craftsbury where I’m staying right now,” Wendell continued.  “It’s kind of like a camp.”
“Do you have any cases in other courts?” the judge demanded.
“Not that I know of,” Wendell said.
“How do you handle medical decisions?  Do you have any medical issues?”
“No,” said Wendell.
There followed a discussion of Wendell’s finances.  He said he gets a small Social Security check that reflects his disability, and another because his father died when he was 16.  Those must be co-signed by his mother, who lives on the “other side of the mountain” in Franklin County.
“I go up that way at the beginning of the month,” Wendell said, “and we cash them together, so I can pay for my insurance and groceries.”
Wendell said his mother and guardian doesn’t make decisions for him.  “She just backs me up,” he said.  “I made the decision this year that I wanted to live on this side of the mountain.  I wasn’t doing anything, and I was starting to gain weight.  Now I’m losing it again.”
“”It sounds as though you have started the transition already,” Judge Monette said.  “It is not as though it will be a complete and sudden change in your circumstances.
“I believe the court is able to accept the evaluation’s recommendation,” the judge concluded. “We’ll be closing the file.”
However, Judge Monette added, “that doesn’t mean the door is closed.  Down the road, you can decide you want a voluntary guardian, or your family could petition this court in the future.
“But,” he added, “we are closing the door in that we’re not coming back in six months.”
“I’m really happy and what I’ve done, and what you guys did,” Wendell said.
Wendell smiled and walked out of the courthouse, his own man.

Safe Choices 5 – Editorial: A modest accomplishment

copyright the Chronicle October 22, 2008
A friendly, soft-spoken 24-year-old farmhand goes into Probate Court and, after a brief hearing, wins his emancipation from his mother’s guardianship.  He’s been living and working away from home for more than a year, and Probate Judge John Monette was able to satisfy himself that ending the guardianship wouldn’t make much difference in “Wendell’s” life.

So what’s the big deal?  An old mistake, perhaps, finally corrected.  Or maybe Wendell has improved over the past six years.  Maybe he got smarter, since that was the problem that put him under an involuntary guardianship in the first place.
Maybe the five years he spent in the Safe Choices program made him smarter.  In that case, Safe Choices should be holding him up as a successful graduate.
And maybe we should rejoice, as taxpayers, that the hundreds and hundreds of thousands of dollars Safe Choices spent on Wendell were well spent.
But Safe Choices doesn’t seem to see it that way.  And Wendell certainly doesn’t see it that way.  He thinks Safe Choices wasted five years of his young life — five years of virtual confinement in “arm’s length” supervision, isolation at the remote Lowell House, ridicule of his supposed sexual preferences and threats that if he tried to leave he would go to jail.  That’s how Wendell saw it.
And if we, as taxpayers, think the money was well spent, maybe we could use a guardian ourselves.
There is clearly a need for a program like Safe Choices to keep careful track of men who commit serious sex offenses and lack the mental capacity to stand trial.
Wendell isn’t one of those, and that’s where the program requires close public scrutiny — scrutiny that it has avoided for years behind a pious concern for the privacy of its “consumers.”
Privacy is a real concern, in both legal and humanitarian terms.  But what about a Safe Choices client like George St. Francis, who has made numerous attempts to get out of the program, and says he “wants the public to hear about his terrible experiences in the Safe Choices program”?
What do we do when we are admonished by the head of the Office of the State Guardian for trying to get in touch with George?  We’re warned that he’s not competent to decide whether it’s in his interest to talk to the press.  We’re assured that the state guardian will talk to George about it and get back to us.  And we never hear from them again.
What does a lawyer do who tries to represent Mr. St. Francis in court, and is told by a lawyer for the state that George isn’t free to seek legal advice, that only his state guardian can do that?
The deck is stacked against the men who want to get out of Safe Choices.  And there’s something a bit obscene about using their right to privacy as a shield for such a potent and expensive program to hide behind.  — C.B.

Safe Choices 6 – Who Protects who?

by Chris Braithwaite

copyright the Chronicle October 29, 2008

NEWPORT — Few private citizens have had more experience with the Vermont court system than George St. Francis.  Few people could have found it more bewildering.

The battle over Mr. St. Francis has grown so intense, so personal, that enough bits and pieces have spun off into the public record to construct a rough history of his remarkable journey through the labyrinth of Vermont law and policy, as it affects men who are both developmentally disabled and accused or suspected of being sexually dangerous.
The state says the Safe Choices program is protecting the public from potential sexual predators like Mr. St. Francis.  At the same time, the state says, it’s protecting Mr. St. Francis from the clutches of a woman who has abused him sexually.  Advocates for Mr. St. Francis suggest that he is really a victim of the state, and of a program that, rather than safe choices, offers him no choices at all.
The journey began for Mr. St. Francis, who is 30, in Chittenden Family Court in February 1996, when he was 18.
According to court records, Mr. St. Francis was “adjudicated to be mentally retarded,” and placed under the guardianship of the commissioner of the Vermont Department of Mental Health and Mental Retardation.
Mr. St. Francis had a lawyer, Laura Philipps of the Disability Law Project.  But she agreed with the state’s lawyer, and Judge Amy Davenport put the young Mr. St. Francis under state guardianship without hearing any evidence.
Since that first hearing, Mr. St. Francis has come before the Orleans County Probate Court three times, Orleans County Family Court twice, and Orleans District Court, where criminal cases are heard, three times.  Those nine court cases, at least, are all that have emerged so far from the public record.
Through them all Mr. St. Francis appears as a pawn, tugged and pulled between state agencies and agents on the one hand, and determined individuals on the other, all convinced that they know what’s best for him.
Many of his legal misadventures, like Mr. St. Francis himself, have been shielded from public view by rules of confidentiality enforced by Family Court and by the “helping” agencies and programs that have run his life for the past dozen years.
The Chronicle has penetrated that shield, despite its inability to talk to Mr. St. Francis, in a series of articles about him and others like him.
The newspaper has done so on the strength of a statement, in the public record, that “Mr. St. Francis wants the public to hear about his terrible experiences in the ‘Safe Choices’ program.”
That statement emerged in September, when the curtain of secrecy that surrounds Mr. St. Francis was briefly parted in Probate Court.  The issue was whether a private guardian should be appointed in place of the Office of the State Guardian, which put Mr. St. Francis into the Safe Choices program and seems determined to keep him there.
Attorney Tim Yarrow of Hyde Park obtained a sternly worded protective order from Probate Judge John Monette, telling the Safe Choices staff not to harass Mr. St. Francis.
When he signed that order, Judge Monette was by no means encountering Mr. St. Francis for the first time.
Similar petitions to replace the state guardian with private guardians had come before Judge Monette in the fall of 2003, and again in 2005.  Both those cases ended in dismissal.  The current case has been moved into Family Court, where it will proceed in secret.
Probate Court, 2003
In October 2003 Kathy McCammon and Dayton Lanphere of Wolcott filed a petition in Probate Court to be guardians of Mr. St. Francis.  Joining them in the petition was his sister, Rebecca St. Francis of Richford.
Mr. St. Francis had spent most of that summer with Ms. McCammon and Mr. Lanphere on her farm, where they operated Nightingale Respite Services for developmentally disabled adults.
Mr. St. Francis was there, Ms. McCammon said in an interview Tuesday, while the Safe Choices program got its new residence, the Lowell House, ready for occupancy.
Mr. St. Francis had been in Safe Choices since 1998.  His state guardian enrolled him, she told an investigator in 2005, because of “his tendencies toward violent and self-injurious behavior, along with a history of sexual deviance and aggression that has resulted in contact with municipal police, although no criminal charges have ever been adjudicated.”
Ms. McCammon recalls that a dispute arose with Safe Choices when she decided to speak to Mr. St. Francis’ state guardian about the possibility that he could continue to live on the farm, rather than at Lowell House.
The dispute escalated, and Mr. St. Francis was taken away from Nightingale Farm for good in late August 2003.  Ms. McCammon said she couldn’t find out why Mr. St. Francis was removed.
Then on September 3 an investigator with a state agency called Adult Protective Services told her he was looking into several things Mr. St. Francis had said to Safe Choices staff about her.  Among them, she had called him a “retard,” given him a beer, let him drive her car and possess knives and, by far the most serious charge, had sexual intercourse with him.
Ms. McCammon said she did allow Mr. St. Francis to drive her car on a back road on one occasion when she had a severe leg cramp, and he had driven the tractor under supervision.  She denied giving him beer or calling him a “retard.”  Mr. Lanphere told the investigator he let Mr. St. Francis use his Swiss Army knife to fix a fishing pole.
But Ms. McCammon denied the sexual allegation.  Mr. St. Francis emphatically refused to take a lie detector test on the question, and told the investigator that “he tells the truth about one-half of the time.”
In his “case closure summary sheet” the investigator said “there is insufficient evidence to substantiate in this case.  One of the primary difficulties in cases of abuse involving GSF is that by his own admission he oftentimes does not tell the truth.”
At any rate, the investigator noted, Ms. McCammon “will not be allowed to do respite for the Safe Choices Program in the future.”
For Ms. McCammon and Mr. Lanphere, Probate Court offered a way to get Mr. St. Francis out of the hands of his state guardian, out of Safe Choices, and back on the farm.
“It is in the best interest of George to reside with us,” they wrote in their October petition to Probate Court.  “We care very much for him, this young man came into our lives and has touched our hearts and is now, forever, a part of our family and we are a part of his family.”
“Guardianship is being requested because it’s in the best interest of my brother to have contact with his family and friends,” his sister Rebecca wrote.  “His current guardian does not stay in touch with his family and has not for a very long time.”
In early February 2004, however, Assistant Attorney General Jennifer Myka, representing the department’s human services division, wrote the Probate Court to say she had talked to Ms. St. Francis by phone, and “she does not wish to be considered as a guardian in this matter.”
Other lawyers came into the case.  Duncan Kilmartin, who has a private practice in Newport, was appointed to represent Mr. St. Francis.
And Gertrude Miller, who also practices in Newport, entered her appearance for Mr. Lanphere and Ms. McCammon in March.
Ms. Miller sent a letter to Mr. Kilmartin on March 24, 2004, to “introduce” her clients to him.  On the farm in the summer of 2003, she wrote, “Dayton developed a mentor type friendship with George, and Kathy and George both developed very strong, let us say non-platonic feelings for each other.  Kathy has told me that she and George have never actually shared any sort of physical relationship, however, they became very close emotionally, love each other, and plan to marry.”
If they prevailed in court, Ms. Miller wrote, Ms. McCammon would resign her guardianship so she and Mr. St. Francis could marry, and Mr. Lanphere would continue as guardian, living nearby.
Ms. Miller said it was her understanding that Mr. St. Francis wanted to marry Ms. McCammon.  “Who is the State guardian,” she asked, “or anyone else, to take away that desire, and extinguish George’s dreams?  If he was not developmentally disabled, this would never be an issue, and he could marry whom he pleased.”
Mr. Kilmartin’s duties as a state representative in the Legislature slowed the case down considerably, as did his desire to meet his first grandchild, who arrived in Arlington, Virginia, in December 2003.
But in early June 2004 he filed a note on the case that seemed unlikely to please either side.
Since late May, he wrote, he had spent two and a half hours with Ms. McCammon and Mr. Lanphere, one and a half hours with Mr. St. Francis, and 45 minutes with two of his therapists.
“Dayton Lanphere and Kathy McCammon have no standing to be appointed guardians,” Mr. Kilmartin wrote bluntly.
But the case should proceed on the basis of Rebecca St. Francis’ petition, Mr. Kilmartin wrote, so that he could “determine whether a private guardian should be appointed,… and whether relief should be sought in order to carry out the directive of the Chittenden Family Court’s decision of February 26, 1996, which required an every two-year review.  It has been eight years since there has been a review of George’s status.”
Indeed, when she ruled in 1996 that Mr. St. Francis should become a ward of the state, Judge Davenport added one condition:
“Recognizing that the respondent’s ability for maximum self-reliance is still developing, it is further ordered that the respondent’s continued need for protective services be reviewed by the Court on the second anniversary of the issuance of this order.”
As Mr. Kilmartin noted, that condition had not been met by the state.
Meanwhile Judge Monette was expressing doubts that Probate Court had the power to end a state guardianship that had been established in Family Court.
On May 12, 2004, Ms. McCammon and Mr. Lanphere filed a petition in Orleans Family Court to end Mr. St. Francis’ state guardianship.
In letters to the clerks of both Probate and Family Court, Mr. Kilmartin said that, if Mr. St. Francis’ case moved on to Family Court, he would continue to serve as his lawyer, without a fee.
That didn’t happen. In Family Court, Mr. St. Francis was represented by a lawyer for the Disability Law Project, who opposed the motion to terminate the state guardianship.
Back in Probate, Mr. Lanphere and Ms. McCammon asked the court to dismiss their petitions.
Judge Monette gave Rebecca St. Francis until July 1 to tell the court she wanted to proceed.  He dismissed the entire case on July 8, 2004.
Family Court, 2004
Ms. McCammon withdrew as a party in the Family Court case, and Mr. Lanphere ultimately lost it on a technicality.  Judge Dennis Pearson granted the state’s motion to dismiss the case on the grounds that Mr. Lanphere was not an “interested person” who had any legal standing to ask the court to end Mr. St. Francis’ guardianship.
But in the lengthy findings that accompanied his July 2005 decision, Judge Pearson went into the case in some detail.
Every year since 1996, he noted, the state failed to discharge its duty to provide an annual review of Mr. St. Francis’ progress “and determine whether continued guardianship is still necessary and appropriate.”  Unfortunately, he added, the law provided no remedy for that failure.
As for the petitioners, the judge took note of the allegation that Ms. McCammon had sex with Mr. St. Francis and otherwise put him at risk, “without making any finding whether the incidents had in fact occurred.”
As to Mr. Lanphere, the judge wrote of “his somewhat limited view of the guardian’s function and responsibilities, and his decided lack of experience and training in these areas.”
Probate Court, 2005
Bethany Knight of Glover petitioned the Probate Court to name her Mr. St. Francis’ private guardian in February 2005, at Ms. Miller’s request.
Ms. Knight said in an interview that she has been involved with the developmentally disabled for the last 25 years.  She ran an advocacy agency in Washington County, worked in the State House as legislative liaison for the Vermont Coalition of Disability Rights, and has waged battles with the state to get disabled citizens out of institutions like Waterbury State Hospital.
Ms. Knight’s petition was dismissed in October 2005, though it’s impossible to say why.  Judge Monette sealed the entire file, on a motion from the state.
Ms. Knight’s recollections of the case are not pleasant.
“Jennifer Myka was absolutely brutal to me,” she said of the assistant attorney general who appears in many of Mr. St. Francis’ cases.
“She said I had a personal interest.  I said yes, he needs another set of eyes who are not a state employee.
“They had five attorneys from Waterbury show up to oppose me — all wearing black.”
Besides Ms. Miller and Ms. Myka, the attorneys listed in the case were Laura Damm of Vermont Legal Aid for Mr. St. Francis, and David Spielman for Northeast Kingdom Human Services, the agency that runs Safe Choices.
Judge Monette, Ms. Knight said, “went along with the argument that I had my own personal interest, that I wanted to increase my fame, that I had a messiah complex.”
Throughout these proceedings, Mr. St. Francis’ keepers never permitted him to meet Ms. Knight.
Orleans District Court, 2005
Kathryn McCammon’s arraignment on misdemeanor charges of abuse of a vulnerable adult made the television news in October 2005, she recalled in an interview Tuesday.
The charges were based on the allegations made in the fall of 2003, denied by Ms. McCammon, and dropped by Adult Protective Services because of insufficient evidence.
But criminal charges were brought in 2005 by the Vermont Attorney General after a new investigation.
Ms. McCammon’s attorney, Susan Davis of Newport, filed a motion to dismiss the case for a variety of reasons.  She said Orleans District Court lacked jurisdiction, that Mr. St. Francis was not, in fact, a “vulnerable adult,” that he had admitted that he lied about sex half the time, and that the mandatory reporting statute violated her client’s constitutional protection from self-incrimination.
But the final argument, “in the interests of justice,” is particularly interesting.
The truth of the matter, Ms. Davis argued, was “that the purported victim has fallen in love with the Defendant; that he has stated to a number of individuals that he wants to marry her and live with her; and that he has indicated his confusion and anger at having to choose between her and the restrictions of the program, where he is placed as a ward of the state and not as the result of any criminal probation.
“The purported victim is an adult male sex offender who is mildly retarded,” Ms. Davis continued.  “The purported victim does not want to bring a complaint against the Defendant, but is being compelled to do so by his service providers.  He is being denied free will in the matter.  While the State asserts it is acting in his best interest, the purported victim is essentially a prisoner of a system which does not recognize his right to love whomever he chooses.”
The attorney general dismissed the charges in February 2006, without explanation.
Probate Court, 2008
In essence, and in the clearest possible terms, the protective order Judge Monette issued in September told the Office of the State Guardian, the staff of Safe Choices and of Northeast Kingdom Human Services to leave Mr. St. Francis alone.
Specifically, it prohibited abuse, retaliation, intimidation, humiliation, ridicule, exploitation, threat or harassment.  It ordered Mr. St. Francis’ keepers to give him access to Mr. Yarrow, his attorney, and to Janet Reed, the woman who had petitioned the court to become his private guardian.  And for good measure, it ordered them not to medicate Mr. St. Francis in a way that would interfere with his “executive functions.”
Ms. Myka responded sharply on behalf of the Office of the Public Guardian.  She filed a motion to dismiss the order.
But she also sent a letter to Judge Monette, detailing which parts of the order the state would obey, and which it would not.
Among the latter was his order that Mr. St. Francis have access to Janet Reed, the woman who had petitioned to become his private guardian.  Ms. Reed could talk to Mr. St. Francis by phone, Ms. Myka wrote, but not meet him in person.
“The State has reason to believe that the intentions of the proposed guardian are not pure,” Ms. Myka wrote.  “The proposed private guardian is known by Department employees to be a close associate of Kathy McCammon.  As you may recall from the 2005 legal proceeding regarding Mr. St. Francis, Ms. McCammon was found to have had an inappropriate sexual relationship with Mr. St. Francis while she was his respite provider.  She was apparently outside the courthouse yesterday after your hearing.”
On Tuesday, Ms. McCammon said she knows Ms. Reed “through another situation.”  But she denied that the two had made any arrangement about Ms. McCammon’s relationship with Mr. St. Francis.
“If she is his private guardian, I will totally respect whatever decision she makes — or that they make together,” Ms. McCammon said.
She continues to deny that she had any sexual relations with Mr. St. Francis.
Whatever the truth of the matter, the state’s agents have clearly cast themselves as protectors of Mr. St. Francis from a manipulative woman.  During their proceedings in probate, Ms. McCammon recalls Ms. Myka saying that “the department loathes Kathy McCammon.”

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.”

Safe Choices 8 – Editorial: Some light in the closet

copyright the Chronicle November 26, 2008
Last week, in one of a series of articles this newspaper has published about the Safe Choices program, Paul Lefebvre wrote of a lawyer’s struggles to maintain contact with her client.

Brain damaged in a childhood accident, the client was confined in a remote trailer under conditions that, as described by his father, are worse than those in our state prisons.
The lawyer charges that, in defiance of a judge’s order that her client be given access to his attorney, state employees and agents refused to let her speak to him until he could be coerced into signing a statement that he no longer desired her services.
Those charges have yet to be proven.  The complaint is to be the subject of a hearing in Caledonia Family Court.
On November 10, an attorney representing the state commissioner of Disabilities, Aging and Independent Living filed a motion asking that the hearing be closed to the public, and the attendant records be put under seal.
On November 19, Judge Howard VanBenthuysen issued the following handwritten entry denying that motion:
“Court proceedings are presumptively public in Vermont.  Neither the participants nor the public would be served by draping these proceedings with the cloak of secrecy.”
That entry comes as a breath of fresh air in a pretty dark closet.  Again and again we have been told we are snooping into matters that are nobody’s business.  The state and its agents who run the Safe Choices program, we are assured, are doing their very best for a small group of men with two very large strikes against them:
They suffer a mental disability, and they have been charged with, or suspected of, sexual offenses.
We undertook our series on Safe Choices because of troubling reports that these men have not been well treated; that their rights have not been respected.
The windows into the lives of these men are small, and inclined to slam shut when anyone approaches.
In trying to peer though these windows, we rely on a couple of principles:  that Americans cannot be denied their constitutional rights without a court hearing; and that they are entitled to have such hearings conducted in the full light of public scrutiny.
Judge VanBenthuysen’s ruling, only a few simple words in his own hand, is a vital confirmation of those principles. — C.B.