Safe Choices 22 – Lawyer attacks foundation of St. Francis case

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by Chris Braithwaite

copyright the Chronicle November 10, 2010

NEWPORT — George St. Francis’ legal champion, Gertrude Miller, is attacking a brief, almost off-handed legal proceeding that, 14 years ago, placed his adult life in the hands of the state of Vermont and the Safe Choices Program.

In February 1996 a Chittenden Superior Court judge ruled that Mr. St. Francis “is 18 years of age and a mentally retarded person in need of supervision and protection for his own welfare.”
That provided the foundation for everything the state did to and for Mr. St. Francis.  It gave his guardian the power to enroll him in Safe Choices, a program run by the local community mental health agency, Northeast Kingdom Human Services, to deal with dangerous sex offenders who are so retarded that they can’t be tried for their crimes.
Mr. St. Francis is one of several men who don’t fit that description, but who found themselves enrolled in Safe Choices against their will.  Several have said they were told that, if they tried to get out of the program, they would be sent to jail.  Safe Choices has denied that.
At a reported cost that rose, in Mr. St. Francis’ case, to $230,000 a year, Safe Choices kept him and a few other men in a remote, end-of-the-road farmhouse called Lowell House under 24-hour, arm’s length supervision.
Ms. Miller, a Newport attorney, has worked to help a handful of men like Mr. St. Francis free themselves from Safe Choices.
He accomplished that in the spring of 2009, and has lived most of the time since with his new bride and a mutual friend on their farm in Wolcott.
But because his new living situation violated the terms of the court order that won his release from state guardianship and got him a new, private guardian, Mr. St. Francis’ case is still before Orleans Family Court and Judge Walter Morris.
Ms. Miller is currently the attorney for Mr. St. Francis’ private guardian, Janet Reed of Albany.  Judge Morse has said Ms. Reed is in contempt of court for allowing Mr. St. Francis to marry, move in with his bride, and reject the services arranged with another community mental health agency, Sterling Area Services of Morrisville.
Mr. St. Francis is represented by attorney Susan Davis, who is easing herself out of her law practice to work as managing editor of the Newport Daily Express.
At a hearing in Family Court on Friday, November 5, Judge Morris said the next step in a seemingly endless case is to settle the matter of Mr. St. Francis’ continuing guardianship, and its terms.
But much of Friday’s hearing was devoted to taking evidence on Ms. Miller’s motion to “vacate the February 21, 1996, order of protective supervision and dismiss this case in its entirety.”
In a nutshell, Ms. Miller is arguing that the proceeding that cost Mr. St. Francis his freedom was invalid because there was never a hearing in Family Court, and because no guardian ad litem was appointed to safeguard his legal rights.
As an adult whose competency to understand legal proceedings is in question, Mr. St. Francis currently has Connie Daigle, a former Superior Court Clerk, as his guardian ad litem.
On Friday Kathleen Hill, the juvenile docket clerk in Chittenden Superior Court, testified by telephone.
She held the job in 1996, Ms. Hill testified, and had reviewed the records in Mr. St. Francis’ case.
There was a petition for guardianship filed by a private individual, she said, which said that he was found to be developmentally disabled when he was 15.
There was a notice of hearing, though the hearing was subsequently cancelled.  There was a stipulation, signed by Mr. St. Francis’ attorney, Laura Philipps of the Disability Law Project, and by Deputy State’s Attorney Margaret O’Rourke.
It said in part:  “Respondent has been diagnosed as having significantly subaverage intellectual functioning which has been manifested prior to the age of 19 and which exists concurrently with deficits in adaptive behavior.”
Another important paragraph began:  “Respondent is in need of protection and supervision for his own welfare….”
The Chittenden court file also includes an order signed by Judge Amy Davenport.  It repeated much of the stipulation, and put Mr. St. Francis under the supervision of the commissioner of the Vermont Department of Mental Health and Mental Retardation.
It closed, however, with an important qualification:
“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 that order.”
That part of the order was never carried out.  While other courts have since acknowledged that failure, they have come up with no sanction for the officials who failed to obey it, nor any remedy that would compensate Mr. St. Francis for the court’s failure to check on his progress.
Ms. Miller’s claim that the 1996 proceedings were fatally flawed will be argued at a later hearing.
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