Rus Rilee and Charles Capace are preparing to sue the state on behalf of two adoptive parents whose children were abused before coming under their legal care. But under judicial protocol, the public will never hear about the case or have access to it.
On Tuesday, New Hampshireโs highest court questioned whether itโs time that changed.
At issue is the stateโs Child Protection Act, which requires case records involving abuse and neglect to remain confidential. Rilee and Capace claim those rules have been interpreted so broadly that the public rarely learns about problems in the stateโs protective services system. They say a childโs identity can be protected even if a complaint is made public.
The litigation follows a series of high-profile cases, including the death of two young children and the sexual assault of two others. Rilee and Capace represent relatives in each case and are preparing a lawsuit on behalf of the two children who were sexually abused. The assaults occurred during an unsupervised visit with their birth parents, who were under investigation for child abuse by the Division for Children, Youth and Families.
The lawsuit is expected to allege that the agency directly placed the children in an unsafe environment.
On Tuesday, the Supreme Court considered whether the suit has to be filed under seal or if it can be made public with the childrenโs names and their identifying details redacted.
Justice Robert Lynn, in particular, seemed intent that the decision should be the familyโs.
โIf a fit parent says, โI understand that these proceedings under the statute are confidential โ thatโs designed to protect my child. Iโve decided itโs more important to bring a lawsuit to make this process open to the public,โ โ he said, addressing Assistant Attorney General MaryBeth Misluk. โWhat is the interest of the state in the face of that in keeping this confidential?โ
Misluk said the law doesnโt permit such a waiver. She added that the stateโs interest is in protecting the child and that confidentiality is the surest way to accomplish that.
โOnce the bell is rung, it cannot be unrung,โ she warned. โThis information will be in the public sphere forever. It will follow these children forever.โ
Lynn pushed back. โIt does sort of seem like this is kind of Big Brother to interpret the statute in the way you want it to be interpreted,โ he said.
โI would respectfully disagree,โ Misluk replied. โItโs not uncommon for the interests of a child and a parent to diverge. And that is why we have (court-appointed special advocates), that is why we have guardians ad litem.โ
Justice Carol Ann Conboy suggested a middle ground: a temporary seal โ 10 days, for example โ after which, barring any objections, the case goes public. That would give the state and the court time to review the lawsuit and flag lingering privacy concerns, while also ensuring that the substance of the claim is eventually opened.
โThere might be circumstances โ not uncommon โ for one parent to want records disclosed and another to not want it,โ she said. โThatโs why you say we need to know what the complaint is, because if itโs simply one parent trying to air dirty laundry, that might not be a sufficient interest to put the childโs interest at risk.โ
Misluk supported the idea. Court-Appointed Special Advocates of New Hampshire, a nonprofit that trains and supervises guardians, is also a party in the case. Its attorney, Daniel Deane, said it would also welcome it.
โThe importance in this case is for the court, not CASA, to review the complaint,โ Deane said after the hearing.
But Capace said the case should be open from the beginning. Period.
A temporary seal still โputs the shoe on the wrong foot,โ he argued.
โThe only thing that matters in terms of confidentiality is to protect the identity of the children, not to protect wrongdoings, misfeasances and malfeasances of DCYF and CASA,โ Capace said outside the courthouse.