Petition 8: the Clarkson Petition

Additional commentary by Timothy Horrigan
(member of the House Petitions & Redress Committee)

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The same couple filed a similar petition in 2010. This case— like a lot of the petitioned cases— hinges around the distinction between "unfounded" and "founded" allegations. The adjective "unfounded" as used by the DCYF (i.e., the New Hampshire Division of Children, Youth and Families) means that there wasn't enough proof to pursue criminal charges.

In this case, a report which was (according to Gregory Clarkson) was deemed "unfounded" was (apparently) nevertheless forwarded from the DCYF to their counterparts in Massachusetts. Mr. Clarkson views that as malfeasance, but it is unclear if the New Hampshire DCYF could legally have refused to honor a legitimate request for that information from another state.

There is also a controversy over what happened to all the paperwork from an adoption home study. The New Hampshire authorities did the field work for that study, on behalf of their counterparts in Massachusetts. New Hampshire's copy of the file was eventually destroyed after a legal battle between the Clarkson family and the NH DCYF, but Massachusetts (not too surprisingly) continued to have their own copy.

We members of the committee are unlikely to ever know with any certainty whether or not the actions of the various officials were in fact improper. For example, it (probably) is perfectly OK for a social worker to use "unorthodox" questioning, but is it in fact legal or illegal for her to impersonate a teacher? And even if it is wrong for a social worker to impersonate a teacher, did this particular social worker actually do so?



PETITION 8

PETITION FOR REDRESS OF GRIEVANCE

TO: The Honorable House of Representatives

FROM: Petitioner Representative David Welch, Rock. 8

DATE: May 9, 2011

SUBJECT: Grievance of Greg and Sarah Clarkson, Kingston, New Hampshire

Your Petitioner, Representative Welch on behalf of Greg and Sarah Clarkson, hereinafter presents the following summary of their grievance involving a dispute with a Kingston Police officer and 2 social workers with the Division of Children, Youth, and Families (DCYF) and invokes the constitutional authority and duty of the Honorable House of Representatives pursuant to said Articles 31 and 32 to bring about their redress:

Grievance involving a dispute with a male Kingston Police officer for performing a wellness check on an 8 year old female without a medical expert present and without a video in its entirety as described in RSA 169-C:38, V; involving a dispute with a social worker for violating the Interstate Compact for the Placement of Children Home Study by misrepresenting an alleged case of abuse and neglect as founded to Massachusetts authorities, resulting in the Clarksons being denied the opportunity to adopt their niece and nephew; and involving a dispute with a social worker who represented herself as a teacher and conducted an interview with the Clarksons' son at school without parental notification and used unorthodox questioning to lead the child in answering.

Wherefore, your Petitioner prays that the House of Representatives:

Introduce legislation to amend the laws of the state to prevent further injuries of the type suffered by the Clarksons.

Respectfully Submitted by Petitioner Representative Welch on Behalf of Greg and Sarah Clarkson.
Co-Petitioners: Rep. Itse, Rock. 9

Gregory Clarkson came to the committee on November 3, 2011. The niece and nephew were his wife's brother's children, born in 1997 and 2000. Mr. Clarkson was severely disparaging of his brother-in-law, who supposedly was a low-life from "the slums of Lynn." (Lynn, Massachusetts is an old mill town 7 miles north of downtown Boston.) The Clarksons lived not far away in Kingston, NH, a suburban community just north of the state line.

The niece and nephew were taken away from their biological parents in 2003 by the Massachusetts Division of Social Services, and placed in New Hampshire with their father's sister and brother-in-law, Sara (not Sarah with an "h" as shown on the petition) and Gregory Clarkson.

The Clarksons' understanding was that they would be able to adopt the two children, but that never happened. Supposedly the children's birth parents gave up all parental rights. (It is unclear if that really happened— and if it did happen, it is not necessarily an absolutely irrevocable decision unless and until the children are adopted by someone else.)

In September 2005 there was an ugly incident triggered by an anonymous phone call to some authority (it was unclear whether it was the police or the DCYF or someone else) with allegations that the nephew was being abused. Mr. Clarkson believes the caller was a young neighbor who had a grudge against him. The DCYF immediately took action— and a local police officer acted probably too aggressively.

The two children almost immediately ended up back in Massachusetts. Mr. Clarkson doesn't know who is caring for them now, although he did tell us about the last time he saw them: this was in 2006, when they were "back in the slums of Lynn, smelling like rotten fish." This is pure speculation on my part, but I am guessing the kids ended up back with their birth family.

(It's scary sometimes what you can find out about people you don't even know on the internet, although Sara's ex-sister-in-law has done a reasonably good job of vanishing. Her brother (the nephew's father) was easy to locate, although I personally don't plan to contact him: I will just say that he has evidently been living in the Pacific Northwest for several years. I was also able to determine that the kids have numerous relatives in the Midwest. The children may now be living hundreds— perhaps even thousands— of miles away from New Hampshire.)

Since 2006, there has (understandably) been a long-running dispute between the Clarksons and the authorities in both New Hampshire and Massachusetts. The Clarksons have won a few rounds in the fight, but the children continue to be in Massachusetts (or at least, they are not in Kingston, NH with the Clarksons.) Legally, the Clarksons have little chance of winning the war: Massachusetts had the right to take the children back from New Hampshire at any time for any reason, and they (apparently) had good reason. The whole situation stinks like rotten fish, but as far as I can tell from what little I have seen, the authorities on both sides of the border followed the rules and acted in good faith. I am saying this based on what Gregory Clarkson told us and the documents he shared with the Redress Committee.

It will be especially hard to sort out what happened with the adoption home study, and not just because we know very little of the case beyond what Greg Clarkson told us. All adoptions require a lengthy and sometimes intrusive home study. In this case, the Clarksons had been caring for the children for a while— but (right or wrong) the standards for an adoption are higher than for a temporary placement. Even though the children were already living with the Clarkson family. a home study was still needed and its requirements still had to be met. The situation was further complicated by the fact that the birth parents were close relatives who were not actively supportive of the adoption.

There was a dispute over the home study, which culminated in March 2007 with an order by the New Hampshire Administrative Appeals Unit (part of the Department of Health & Human Services) to "vacate and destroy" it. Mr. Clarkson was quite clear about who was involved in the dispute, but not so clear about what the details of the decision were. This decision would only be binding in New Hampshire. Between 2008 and 2010 there were some court battles in Massachusetts: the home study report was (supposedly) excluded, but the Clarksons lost anwyay.





Nine months after Mr. Clarkson's testimony, a pair of reports appeared in the House Calendar on August 23, 2012:

PETITION #8 grievance of Greg and Sarah Clarkson.  (Report filed 8/21/12)

MAJORITY

Grievance Founded with Recommendations.

Committee Majority Findings:

The Redress of Grievances Committee, having heard the testimony and seen supporting evidenc, finds that a male Kingston police officer performed a wellness check on an eight-year old female without a medical expert present and without a video or audio in its entirety as described in RSA 169-C:38, V. It also finds that a social worker with the Division for Children, Youth and Families (DCYF), representing herself as a teacher, conducted an interview with the Clarksons' son at school without parental notification or a court order and, in the process, used inappropriate questioning to lead the child in answering, while yet other representatives of DCYF violated the Interstate Compact for the Placement of Children Home Study by misrepresenting an alleged case of abuse and neglect as founded to Massachusetts authorities, resulting in the Petitioners being denied the opportunity to adopt their niece and nephew. 

Specifically, a DCYF employee opined that allegations against one of the Petitioners were founded in communications with a Massachusetts agency before the conclusion of a judicial proceeding and these opinions were interpreted as the authoritative position of that agency thus forming the basis for the removal of the adoptive children back to Massachusetts.  When judicial review concluded that the allegations were unfounded and the records ordered vacated, it was too late for the damage to be undone and the children were refused adoption by loving relatives. Inquiries to DCYF regarding the information transmitted to the Massachusetts agency met with resistance, and only came to light when the records were provided by Massachusetts. 

This Committee is aware that different states have different expectations regarding the availability of this type of information.  The current procedures in New Hampshire, denying access to records, not only to the public and often the involved parties, but also the Legislature, result in serious challenges to effective defense by the parties involved and oversight by the Legislature. Further investigation by the Committee into this situation was obstructed or complicated by failure of public officials and state employees to provide additional information. They appear to have a valid argument that they are prohibited from the disclosure of certain information, and are justified under the laws as enacted to withhold that information. However, a question arises as to whether it is the Legislature's intention to protect state actors from oversight or to protect the interests of its citizens and whether we have struck the right balance.  We found in this case that a systemic lack of transparency and accountability created an environment where failure to comply with mandated procedures and protections could be shielded from public or legislative oversight even when they negatively affect outcomes we expressly prefer as a Legislature. The Committee also finds that an employee of the DCYF attempted to include stipulations that the prospectively adopted children could not be homeschooled, an unwarranted infringement on parental rights and discretion. This Committee believes that for departments that have a built in need for confidentiality we must begin to take a special interest in the reporting of statistics and providing other oversight to protect citizens as much as those departments and treat acts of "official oppression" as a violation of a sacred trust allowing them to be punished without a defense of sovereign immunity. 

Recommendations

The Committee recommends that legislation be introduced to prevent and punish future abuses of the types cited in this petition holding employees accountable for failure to comply with prescribed procedures and standards of behavior that result in harm to citizens in cases under their management, and that the House create an oversight committee with powers to review otherwise protected information in camera for the protection of the public from official abuse. 

Vote 8-2.

Rep. George Lambert for the Majority of the Committee

MINORITY

Grievance Unfounded

Committee Minority Findings:

Foster care and adoption are two very complex and important areas of the law.  This Petition involves two young children from Massachusetts who were placed in New Hampshire with Gregory Clarkson's family.  The children were the niece and nephew of Mr. Clarkson's wife, Sara Clarkson.  Both of the Clarksons' names were on the House Petition, but the Committee only heard directly from Mr. Clarkson.

Both Massachusetts and New Hampshire are signatories to the Interstate Compact on the Placement of Children (ICPC).  This compact sets different requirements for different types of placement: the standards for foster care are less stringent than those for adoption, especially when the foster parent is a relative. The standards for adoption are high even when one of the prospective parents is a close blood relative.   

The children were originally placed with the Petitioners on an emergency basis in 2003 because the biological parents were in trouble with the law.  They told us that the biological parents had lost their parental rights, although this was not necessarily proven by any of the documents provided to the Committee.  In any event, the Clarksons expected to adopt the children, and they were subjected to a standard home-study procedure.   Mr. Clarkson presented some letters to the committee which indicated that the Clarksons failed to meet some of the requirements set by the NH DCYF and its counterpart agency in Massachusetts, MassDSS.  The children were, however, still being well cared for. 

Throughout this process, the two children were wards of the State of Massachusetts. Sadly they were taken out of the Clarkson's home rather abruptly in the fall of 2005 and returned to Massachusetts, after allegations of abuse.  MassDSS had the right to take the children back at any time. Their action was legal even in the absence of definitive proof of abuse.  A simple determination that the placement had proven to be inappropriate was a more than adequate reason to remove the children from the Clarkson home.  

The Minority shares the Majority's concerns about how the investigation of those charges was handled, but the Minority recognizes that NH DCYF was legally required to send the children back to Massachusetts upon request.  The Minority further believes that the paperwork related to the children was indeed handled correctly: Massachusetts had the right to receive a copy of the files from the Clarksons' home study.  (Strictly speaking, there were two home studies done: the first one for a relative placement, and the second one for an adoption.)   New Hampshire's copy of these files was eventually destroyed after the children were sent back to Massachusetts.  Federal and state law absolutely required NH DCYF to give MassDSS  a copy of the home-study paperwork.  Moreover, both states had the obligation to continue fully investigating the allegations of abuse.

The Minority feels that the accusations in the petition are unsupported by the rather fragmentary available evidence. The DCYF and other agencies involved in this case were acting in good faith, even though some mistakes may have been made along the way, and even though the end result was undeniably painful for the Clarkson family.

Rep. Timothy Horrigan for the Minority of the Committee



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