Safe Choices 6 – Who Protects who?

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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.”
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