Safe Choices 29 – George St. Francis wins his freedom

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by Chris Braithwaite
copyright the Chronicle May 18, 2011
NEWPORT — Despite its reputation, Friday the thirteenth was a lucky day for George St. Francis.
Not long after noon on Friday he could be found enjoying a celebratory sip of champagne at the Newport office of attorney Gertrude Miller.
“Now I can get on with the rest of my life,” he said an hour earlier, as he prepared to walk out through the big swinging doors of Orleans Family Court, possibly for the last time in his life.
In a ruling that can fairly be termed astounding, in view of the long, halting series of hearings that led up to it, Judge Walter Morris released Mr. St. Francis from the control of any guardian, public or private, and sent him off into a future which the judge clearly viewed with some trepidation.
His last words in the courtroom Friday morning were “Good luck, Mr. St. Francis.”
The reply was no less straightforward:  “Thank you.”
The judge’s ruling was made all the more surprising by what preceded it.  Testifying by telephone from his home in East Poultney, psychologist Marc Carpenter said his test showed that Mr. St. Francis had “significant deficits in intellectual functioning.”  His IQ of 57 put him in the “extremely low” range, Mr. Carpenter said, and “would be considered in the mild range of mental retardation.”
Half of Mr. St. Francis’ problem over the 15 years since he turned 18 is that he was judged to be retarded and thus in need of supervision by what was then the Commissioner of Mental Health and Mental Retardation, in Chittenden Family Court in 1996.
In earlier hearings his lawyer, Susan Davis, and his most recent guardian’s lawyer, Ms. Miller, had presented two witnesses who testified that he was not retarded.
But Mr. Carpenter dismissed the tests that led to their conclusions as unreliable.  And Judge Morris said Friday that he found Mr. Carpenter’s testimony “highly credible.”
The second part of Mr. St. Francis’ problem was that his state-appointed public guardian, worried that he was sexually dangerous, enrolled him in the Safe Choices program operated by Northeast Kingdom Human Services, the local mental health agency.
His plight became public in September 2008, when Probate Judge John Monette ordered the state Office of the Public Guardian and much of the Safe Choices staff to “refrain from any and all acts constituting abuse, retaliation, intimidation, humiliation, ridicule, exploitation, threat, or harassment” of Mr. St. Francis.
Two affidavits were filed with the case, which sought to have a private guardian, Janet Reed of Albany, replace the public guardian.  Ms. Reed, who had experience with Safe Choices through a relative, was a harsh critic of the program, and would presumably have exercised her authority as guardian to free Mr. St. Francis from his confinement to its group home, called the Lowell House.
In one affidavit, another “consumer” of Safe Choices said a staff member at Lowell House called Mr. St. Francis “George of the Jungle” and “Curious George,” and hung a poster of a chicken on his bedroom door, a reference to his supposed sexual preference for chickens.
In his own affidavit, Mr. St. Francis said he had been in the program nine years, and had been threatened with prison if he tried to leave.
“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.
The affidavit added that Mr. St. Francis “wants the public to hear about his terrible experiences in the ‘Safe Choices’ Program.”
Former staff members told the Chronicle that, living under 24-hour, arm’s length supervision, the men at Lowell House had no opportunity to learn how to relate to other people, or to pursue an education.
Mr. St. Francis left Lowell House in the spring of 2009, shortly before Family Court Judge Robert Bent agreed that Ms. Reed should become his private guardian.
But Judge Morris later found Ms. Reed in contempt of court for allowing him to marry Kathy McCammon, and to withdraw from a court-approved treatment program that called for continued close supervision and therapy by another mental health agency, Sterling Area Services of Morrisville.
The current series of hearings, Judge Morris has said, was to determine whether Ms. Reed should be replaced as Mr. St. Francis’ guardian — possibly by a public guardian — and to determine the details of his treatment and supervision.
But the judge never got that far Friday, because of a second element of mental retardation, as defined both by professional standards and the law that gives Vermont judges the power to put the state in control of an adult’s life.
In 1966 the court ruled — without a hearing — that Mr. St. Francis suffered not only “significantly subaverage intellectual function,” but also “deficits in adaptive behavior.”
In layman’s terms, the adaptive behavior criterion goes something like this:  If you can demonstrate that you can take care of yourself, your IQ doesn’t matter.  You’re entitled to the rights of any citizen.
Adaptive behavior turned out to be the key to Mr. St. Francis’ freedom.
The definition of mental retardation has three elements, Mr. Carpenter testified Friday, and Mr. St. Francis met two of them:  an IQ of 70 or below, and the onset of the problem before age 18.
The third, the psychologist said, is “concurrent deficits or impairments in present adaptive functioning in at least two of:  communication, self care, home living, social-interpersonal skills, use of community resources, self direction, functional academic skills, work, leisure, health and safety.”
The adaptive behavior evaluation was based on interviews, not with Mr. St. Francis himself, but with the people who knew him.  And Mr. Carpenter testified that he could find only two suitable witnesses — Ms. Reed, his guardian, and Ms. McCammon, his wife.
That wasn’t ideal, Mr. Carpenter said.  “I would like to have somebody who wasn’t part of the whole process, if I could.  When people are very close to an individual there is sometimes a tendency to overestimate somebody’s ability.  Sometimes they might not realize they’re needing to cue him to do certain things.”
Asked by Judge Morris why he didn’t interview Mr. St. Francis’ treatment providers, Mr. Carpenter pointed to “the extended time between when they knew him and currently.  They really didn’t know what his current functioning was like.”
The issue is a loaded one.  Ms. Reed and Ms. McCammon are far from objective observers.
But it would be equally difficult to cast workers for Safe Choices or the state Department of Disabilities, Aging and Independent Living (DAIL) in that role, given the bitterness of the dispute over Mr. St. Francis.
Both attorneys, Ms. Miller and Ms. Davis, have argued that any lack of adaptive skills on his part are a result of his treatment in Safe Choices.  The isolation from normal society, confrontational group therapy sessions that focused on sexual aberration, a heavy regimen of psychiatric drugs that Mr. St. Francis has since stopped taking — all these things, they argued, hid a pretty normal guy.
At a hearing in August 2010 his current therapist, Gretchen Lewis of Newport, testified that she had seen many changes in Mr. St. Francis since he left Safe Choices.
At first, she said, “He was very withdrawn, spoke very little, made little eye contact.”
“My initial diagnosis was an adjustment disorder, having to come from being in that program for so many years and having to fit into society.”
After about 30 sessions with him, Ms. Lewis said, “It’s pretty amazing how George has changed himself around.”
“He has a lot to say, talks about how he’s feeling, it’s just very free-flowing and natural,” she added.
Ms. Lewis said she meets alone with Mr. St. Francis, and has never felt physically threatened by him.
This reporter’s observations over the two years since Mr. St. Francis left Safe Choices are much the same.  He has gradually emerged as a friendly man with a good sense of humor who likes to chat about the routine misadventures of life on the Wolcott farm where he lives with his wife and their longtime friend, Dayton Lamphere.
Ms. Davis raised the possibility that Safe Choices had been causing, rather that treating, her client’s problems on Friday, when she cross examined Mr. Carpenter.
“To what degree is the level of development affected by long-term exposure to physical, verbal, and emotional abuse, isolation, a lack of being provided rehabilitative skills or education?” she asked.
“Certainly, adaptive skills are very malleable,” Mr. Carpenter replied.  “They can be affected by many different things, including the ones that you mentioned.”
Until he tested Mr. St. Francis’ adaptive skills, Mr. Carpenter told Ms. Miller, no one had done so since 1996,
Yet when she placed Mr. St. Francis under the state’s control that year, Judge Amy Davenport ordered that, in view of his youth, his status should be reviewed by the court in two years.  That review never took place.
That was not the only case of official neglect.  In 2005, when he denied an attempt to have Mr. St. Francis’ state guardian replaced by Mr. Lamphere, Judge Dennis Pearson added this about the performance of his ultimate guardian, the commissioner of DAIL:
“The Commissioner has failed to discharge his/her yearly duty to provide ‘an annual review of the social adjustment and progress’ of GSF, 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….”  (Mr. St. Francis is identified only by his initials because, until the Chronicle was granted partial access in early 2009 at his request, all proceedings in his case were conducted behind closed doors in Family Court.)
However, Judge Pearson added, “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 in October 2008, Gail Falk, who then headed the Office of the Public Guardian, said “that was a good wakeup call for us.”
When he tests for adaptive skills, Mr. Carpenter told Ms. Miller Friday, “sometimes people have been so isolated you’re not able to find anybody else able to be a respondent.  You do the best with what you have.  In Mr. St. Francis’ case, this was the best we had.  There wasn’t anybody else involved in his life.”
His test results, as summarized by Judge Morris, “indicate that he does not have significant deficits in intellectual functioning, according to the ratings of his wife and his guardian.”
As she concluded a lengthy cross-examination, Ms. Miller demonstrated a key courtroom skill:  knowing when to sit down.
Her question:  “Based on your results, Mr. St. Francis is not mentally retarded.  Correct?”
Mr. Carpenter’s answer:  “Correct.”
“Thank you,” said Ms. Miller.  “I have no further questions.”
With Mr. Carpenter’s evidence complete, Judge Morris called for a break, to be followed by witnesses the two attorneys had brought to discuss his treatment regimen.
But Ms. Davis noted that, over a series of hearings, the court had heard four expert witnesses testify about Mr. St. Francis’ mental capacity.  “All four, for various reasons, concluded that my client is not retarded,” she said.
If the court could make a summary judgment to that effect, she added, “the issue of treatment becomes irrelevant.”
Ms. Miller agreed, but the judge did not.
“Understanding that there’s a lot of history and, frankly, conflict with regard to the expert assessments,” he said, “we would prefer to go on and hear the evidence as to treatment.”
But after the break he had changed his mind.
He began by pointing out an unusual feature of the case:  While Mr. St. Francis has had vigorous representation in court, there has been nobody on the other side.
After strenuous efforts to keep Mr. St. Francis under their control and out of public view, DAIL and the two mental health agencies walked away from the case.
When Judge Bent said, in a September 2009 hearing, he might fire the contemptuous Ms. Reed and return Mr. St. Francis to the custody of a public guardian, a spokesman for DAIL said the agency didn’t want him back.  Sterling Area Services withdrew from the case, and Northeast Kingdom Human Services was only briefly involved, if at all.
In the glare of publicity, Mr. St. Francis’ former keepers essentially left Judge Morris hanging out to dry.
In his ruling, the judge treated the matter more judiciously, in a brief civics lesson.
“We do not have an inquisitorial system of justice,” Judge Morris said.  “We have one in which it is anticipated that parties seeking a result will advance evidence and argument in support of that result.  Those opposing it will have equal and fair opportunity to oppose such, and the courts of law in our system of justice are not inquisitors or moving parties with regard to case outcomes.  We hear evidence and argument with all having the opportunity to be fairly heard, and undertake as best we can to give fair and responsible judgments.”
But in this case, he continued, “those who formerly would have advocated for guardianship, including public guardianship, as a matter of lawful responsibility and obligation, are not present in the case.  We must base our decision on the state of the record, and not serve ourselves as a moving party or inquisitor.”
And the record, based on the testimony of Mr. Carpenter, a “highly credible” specialist recommended to the court by DAIL, led the judge to this conclusion:
“There is insufficient evidence to enable the court at this time to find that Mr. St. Francis has the status of mental retardation or developmental disability, as defined by law, as to warrant and sustain an order of guardianship, either public or private.  And for that reason the court grants the motion, as it’s been styled, for summary judgment.”
Mr. St. Francis was a free man.
If Judge Morris came to his legal conclusion slowly and with some reluctance, it may be because he is sitting on a very thick file, to which the Chronicle has no access, that presumably paints Mr. St. Francis as a potentially dangerous man from whom the public needs protection.
But on that issue, Mr. St. Francis’ best witness may have been time itself.
Since he married Ms. McCammon and moved in with her and Mr. Lamphere in midsummer 2009, the Judge noted, “there is no evidence that Mr. St. Francis has engaged in any criminal activity, or has been the victim of criminal conduct, abuse or the exploitation of others.”
But even as he set Mr. St. Francis free, Judge Morris made it clear he was not attacking the system that confined him for so many years.
“It is very important for the court to state the decision here…should not be construed as a condemnation of the lawful systems and measures that exist as in the public interest to provide services and protection for people who may bear either mental illness or mental retardation,” the judge said.  “The court’s decision is based on Mr. St. Francis’ circumstances.
“And while there may be reasonable debate and dispute about what the state’s approach should be to people who have mental illnesses or mental retardation and present a risk of harm, either to themselves or others because of that status, this is not to condemn that system.  It is our law.”
Finally there was the problem that Mr. St. Francis’ guardian, Janet Reed, was in contempt of court.
As the hearing began, Judge Morris took the drama out of that matter.
“There is not a likelihood that we would make any sanction associated with the jailing of Ms. Reed,” he said.  “That is not on the screen here.”
Returning to the subject hours later, the judge said that one possible sanction, replacing Ms. Reed as guardian, was no longer on the table.  Mr. St. Francis would have no guardian at all.  The judge settled for a sternly worried slap on the wrist.
“Ms. Reed’s sanction is the judgment of the court that she was in contempt of court,” Judge Morris said.  “And that finding of willful contempt of court shall stand as a judgment of the court, for future reference should Ms. Reed be considered, or called upon, to serve in any fiduciary responsibility for others.”
In less polite terms, the judge was suggesting that the Probate Court should think twice before appointing Ms. Reed to be anybody else’s private guardian.
Judge Morris devoted a good part of his summation Friday to warning Mr. St. Francis that he was worried that people would exploit him.  A sample:
“I don’t want to upset you.  That’s what I’m saying.  I want to make sure you understand that I’m honoring you as a person, but I’m saying, based on the record here, that there’s some issues here that put us at concern for how you’ll do in the future.  And I’m hoping, frankly, you don’t have exploitation of any kind visited upon you.  That’s our hope.”
He seemed to be talking about Ms. McCammon, who now prefers to be referred to as Ms. St. Francis.
Underlying Mr. St. Francis’ long struggle for freedom is a tale that, depending on one’s point of view, is either a love story with a happy ending or a sad case of sexual exploitation.
The latter view is held by the state, which charged that Ms. McCammon had sex with Mr. St. Francis in the summer of 2003.  It is an accusation both partners deny.
At the time Safe Choices had sent its client to live for a time at Nightingale Respite Services for developmentally disabled adults that Ms. McCammon ran on the Wolcott farm.
If the charge was true — if a caregiver had slept with a mentally disabled person under her care — it was a serious charge, indeed.
When an investigator with the state’s Adult Protective Services looked into the charge, Ms. McCammon denied it.
The story came from Mr. St. Francis after he returned to Safe Choices, the state said.  But he 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.”
Ms. McCammon said she had been placed on a “blacklist” DAIL maintains of people who cannot be trusted to care for disabled people.
Two years later, In October 2005, the state attorney general brought criminal charges against Ms. McCammon, based on the same allegation, for abuse of a vulnerable adult.
When she came to court to deny the charge, she recalled later, Ms. McCammon was met by television cameras.  But the state dismissed the charge without explanation in February 2006.
However the state, in the person of Assistant Attorney General Jennifer Myka, continued to make the accusation.
In an angry response to the protective order issued by the Probate Court in September 2008, Ms. Myka wrote that “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.”
Indeed Ms. Myka seemed to see Ms. McCammon lurking behind a conspiracy that involved all his advocates.
Using oddly Victorian language, she wrote that in seeking to become Mr. St. Francis’ guardian, Ms. Reed’s motives “are not pure” because she was a close associate of Ms. McCammon.
A year later, in September 2009, Ms. Myka resisted a request that the state turn Mr. St. Francis’ records over to Ms. Reed.
“Ms. Miller represented Ms. McCammon in 2003-2004,” she noted.  “I also believe she used to work for Ms. Miller, and now I’m thinking, we’re giving records to Ms. Reed, who will of course give them to her attorney, who is Trudy (Ms. Miller), who represented Mr. St. Francis’ abuser.”
“And his wife now,” Judge Bent cut in.
“I’m concerned about the records being released to Ms. McCammon,” Ms. Myka persisted.
Judge Bent noted dryly that Ms. Myka’s charge that Ms. McCammon sexually abused Mr. St. Francis in 2003 was “an opinion of a state agency” and “not an adjudicated fact.”
If there’s any support for the conspiracy theory, it lies in the fact that, virtually on the day she was named his guardian, Ms. Reed permitted Mr. St. Francis to marry Ms. McCammon and move in with her.  He moved out of the closely supervised home living situation Sterling Area Services had arranged for him, and canceled an appointment with the therapist Sterling had provided.  Sterling withdrew its services at that point.
The other  side of the story might be summed up this way:  Two people fell in love, and have struggled for eight years to overcome the state’s insistence that theirs was a forbidden love.  And, their advocates might argue, they never attempted to conceal those feelings from anyone.
Ms. McCammon recalled in an interview that her troubles with Safe Choices began in the summer of 2003, when she suggested that Mr. St. Francis live on the farm indefinitely, rather than at the Lowell House.
After Mr. St. Francis was taken away, she and Mr. Lamphere went to Probate Court to request that they be named his private guardians, in place of his state guardian.
“It is in the best interest of George to reside with us,” they wrote in their 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.”
Their  lawyer, Ms. Miller, wrote a letter to attorney Duncan Kilmartin of Newport, who had been appointed to represent Mr. St. Francis, to introduce her clients to him.
“Kathy and George both developed very strong, let us say non-platonic feelings for each other,” Ms. Miller wrote.  “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.”
Ms. McCammon removed herself from the guardianship request, and Mr. Lamphere moved the case to Family Court, where it was denied by Judge Pearson.
When the charge of abusing a vulnerable adult brought her to criminal court in 2005, Ms. McCammon hired Sue Davis, now Mr. St. Francis’ lawyer, to defend her.
In addition to a list of technical reasons that the case should be dismissed, Ms. Davis made a more emotional appeal.
“The purported victim does not want to bring a complaint against the Defendant, but is being compelled to do so by his service providers,” she wrote of Mr. St. Francis.  “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.”
And in her own defense to the contempt citation, Ms. Reed has insisted that, in letting Mr. St. Francis get married, she was only attempting to fulfill a guardian’s legal duty to help her ward live a normal and happy life.
A final note:  When the courts deal with people whose mental capacity is in question, they normally appoint a second guardian to sit in and help make the commonsense decisions people make for themselves, when summoned into court.
The role, called guardian ad litem, was filled in this case by former Orleans County Clerk Connie Daigle.
When he emerged from the break in Friday’s hearing, Judge Morris said there was “one person we wanted to ask” before he rendered his decision.
“I wanted to ask the guardian ad litem, Ms. Daigle, if she has a view as to the motion that has been raised to grant judgment for Mr. St. Francis and vacate the guardianship.”
“I agree totally with the motion,” Ms. Daigle said.
As the hearing drew to an end, Ms. Miller rose to make an observation.  The fact that Mr. St. Francis didn’t have a guardian ad litem in the 1966 proceeding that cost him his freedom was one of her chief complaints, she said.
“It really struck me today that the court asked Ms. Daigle’s opinion,” Ms. Miller said.  “Everything just came together at that point, Your Honor.  It was not lost upon me — her participation and the court’s acknowledgement of that.”
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