Enforcing Some of the Laws Some of the Time:

RSA 169-C:38 - Taping of Child Interviews
vs.
RSA 169-C:25 - The Confidentiality Provision

Introduction

RSA 169-C:38

RSA 169-C:38 states that only social workers and law enforcement personnel can interview children suspected of being abused or neglected without permission of their parents, and that the interview must be videotaped if possible, and audio taped in its entirety if not possible. The preliminary report came out in January of 2000 from the NH Legislature's DCYF Field Practices study committee, and the committee recommended a finding that:

Children are sometimes interviewed by DCYF assessment workers without the knowledge or prior consent of the parent(s). While statutory law requires that such interviews be videotaped in whenever possible, this requirement appears to be commonly ignored. The statute also requires that such interviews be taped in their entirety, although, there are differing opinions on when an interview begins. For example, some individuals apparently believe it includes only the formal questions and not the initial rapport building or preliminary inquiries.

DCYF, not happy with the committee's proposed wording, rewrote it and suggested this wording to the committee:

RSA 169-C:38, IV authorizes law enforcement or DCYF staff to interview a child in a public place such as a school or child care center without the consent or notification of the parents if there is reason to believe the child has been sexually molested, sexually exploited, intentionally physically injured, physically injured by other than accidental means, a victim of a crime, abandoned or neglected. While statutory law requires that such interviews be taped in their entirety, despite DCYF directions to the field that an interview begins the moment the child comes into the room, there appear to be differing opinions as to when an interview begins. For example, some individuals apparently believe it includes only the formal questions and not the initial rapport building or preliminary inquiries.

While the two sides were arguing over the details of HOW DCYF was complying with the statute, both sides apparently ignored the fact that DCYF is NOT complying with the statute.

RSA 169-C:25

Paragraph II states:
II. It shall be unlawful for any party present during a child abuse or neglect hearing to disclose any information concerning the hearing without the prior permission of the court. Any person who knowingly violates this provision shall be guilty of a misdemeanor.

On the other hand, Article 22, Part 1 of the NH Constitution says:

Free speech and liberty of the press are essential to the security of freedom in a state. They ought, therefore, to be inviolably preserved.

Enforce limits on the government or enforce limits on citizens?

This page looks into violations of RSA 169-C:38 and my difficulties of getting anyone to enforce it. The first part of this page discloses my experience with dealing with taped interviews and the resistance or rejection I get from DCYF, police, and the courts. An account of another RSA 169-C:38 has its own page.

On the other hand, RSA 169-C:25 is being used against me despite its obvious constitutional difficulties. Some of that is explored in the second half of this page. More is explored in my WWW page about complaint filed by Judge Smukler against me.


Violating RSA 169-C:38 is a misdemeanor, but how does one go about attempting to get a social worker or a police officer charged with a crime? "Without success" appears to be the answer to the question, as evidenced by these two letters to Attorney Mark Zuckerman, Esq., head of the state's "Office of Public Integrity":

March 15, 1999

Mark Zuckerman, Esq.
NH Attorney General's Office
Office of Public Integrity
33 Capitol Street
Concord, NH 03301-2110

Re: RSA 169-C:38, IV

Dear Attorney Zuckerman,

I limit my practice to the area of child abuse defense in New Hampshire, and have been in practice about 2 years. As you may remember from your first years in law practice, the more you do, the more you learn about your area of law.

I've come to realize that a big problem with the entire system is the problem of getting evidence I'm entitled to, including, but not limited to, tapes of children's interviews. Both the Concord District Office of DCYF, and, more recently, with the Keene District Office have failed to tape child interviews and turn over tapes of children interviewed pursuant to RSA 169-C:38, IV and V, which states:

    [Paragraph IV introductory paragraph effective January 1, 1999]
  1. Law enforcement personnel or department employees who are trained caseworkers shall have the right to enter any public place, including but not limited to schools and child care agencies, for the purpose of conducting an interview with a child, with or without the consent or notification of the parent or parents of such child, if there is reason to believe that the child has been:
    1. Sexually molested.
    2. Sexually exploited.
    3. Intentionally physically injured so as to cause serious bodily injury.
    4. Physically injured by other than accidental means so as to cause serious bodily injury.
    5. A victim of a crime.
    6. Abandoned.
    7. Neglected.

    (Note: the phrase "with or" [without the consent...] was added effective January 1, 1999.)

    [Paragraph V effective until January 1, 1999]

  2. For any interview conducted pursuant to paragraph IV, every effort shall be made to video-tape the interview with the child. If the interview cannot be video-taped, it shall be recorded.

    [Paragraph V effective January 1, 1999]

  3. For any interview conducted pursuant to paragraph IV, the interview with the child shall be videotaped if possible. If the interview is videotaped, it shall be videotaped in its entirety. If the interview cannot be videotaped in its entirety, an audio recording of the entire interview shall be made.

169-C:39. Penalty for Violation.

Anyone who knowingly violates any provision of this subdivision shall be guilty of a misdemeanor.

History

Source. 1979, 361:2, eff. Aug. 22, 1979.

As you might imagine, since the provision regarding taping only applies to law enforcement personnel and social workers, getting this misdemeanor prosecuted on a local level is somewhat problematic. I've attempted where it has been violated to have the cases dismissed, and the judges have refused to dismiss the cases because of RSA 169-C:39. Hence, my letter.

I have two separate cases in which getting ahold of the video tapes or audio tapes that were done has been more than problematic, both of which probably deserve prosecution for not taping the remaining interviews or video-taping when it was possible to do so. In the first case, multiple interviews were done by Brad Bauer, an investigator for the Merrimack County Sheriff's Office. The interviews were done after the child was taken from the mother, and without her consent, so by the terms of the statute, they had to be taped. Brad is, from his testimony regarding his qualifications, probably the most trained person in Merrimack County to interview children suspected of being abused, and the Concord District Office refers many cases to him for interview at Philbrook Children's Center, where there is a room with one-way mirrors and video equipment for interviewing. I can't imagine that he wasn't aware of the taping requirement with his qualifications and job description. He conducted at least three interviews of the child, [name omitted]., the third one of which was at her foster home, and he failed to audio tape or video-tape the third interview. With respect to the first two video-taped interviews, I received the transcript of the first interview prior to the adjudicatory hearings, the second interview was mentioned in the social worker notes, as "[the child] interviewed again today by Brad Bauer, no disclosure," but not turned over to me until I made a long list of missing discovery materials. When I finally received the transcript of the tape this week of the second interview, (pursuant to the Court's order on a Motion to Compel), I finally confirmed my suspicion that this cryptic remark hardly described the child's denial of abuse. Keeping in mind that the charge in this child abuse case was that the child failed to disclose abuse "because of fear," it was certainly unnerving to read just this week the words of [the child] saying, with respect to Brad Bauer's questioning:

Q. The only reason we're asking you all this and the only reason that this is so important is to make sure that you never get hurt again, don't you?

A. Yes, I already know that, you silly, silly goose.

Q. Who hurt you?

A. Nobody did.

Q. No one hurt you, O.K.

A. I'm telling the truth.

Q. You're telling the truth, okay. That's all we can ask for.

I have yet to get the video tapes of this interview, as Jim Anderson, the DCYF attorney, keeps insisting that the tape is the property of the Merrimack County Sheriff's Department, and not evidence in the child abuse case. It was also the subject of the Motion to Compel, which was granted with respect to the tapes, and now a Motion for a Finding of Contempt, because I still don't have them. (This is based on the same argument that the tapes aren't property of the Division, even though the Merrimack County Sheriff's Dept. was apparently contacted by the Division to interview the child after the child abuse petition was filed, and the authority for the interview was pursuant to RSA 169-C:38.) Brad certainly must have known the law as it existed last year requiring him to tape ALL interviews with children; he intentionally went to see [the child] in foster care to interview her again, and has denied taping the third interview. I am finally to pick up the other tapes tomorrow.

As a side issue, Jim Anderson is now claiming that Brad Bauer said I went into the Sheriff's department and demanded that he show me the tapes (or turn them over, depending on which version you get) right then and there. I actually went into the sheriff's department to show him the Court order requiring him to turn over the tapes, which he said he insisted on seeing before he would consent to turning over the tapes. My husband was in California from March 3 to March 12, and I home-school my nine year old, who was with me at the time I went to show Brad Bauer the Order, so I was hardly planning on spending any time last week viewing tapes at the sheriff's department. Jim Anderson and I probably have the poorest relationship of any two attorneys in the state who have to deal with each other on any regular basis. I think he regularly withholds evidence, and I've seen him lie to judges and give witnesses information that the witnesses have no business seeing as part of the record. I don't trust him. He's now represented to the Court that I demanded to have the tapes turned over to Brad Bauer last week, which wasn't true. Although I don't agree with much of what DCYF does as a whole in the state, my relationship with other attorneys at least seems to include respect for our diverse legal positions, and I can't say as I've seen the kind of egregious behavior from any other DCYF attorney that I've seen from Jim Anderson.

With respect to the second case, the initial interviews with the child took place at the child's Head Start program. Monica Pellegrino of DCYF's Keene District Office secured the mother's permission to interview a four year old, and said that it was the Division's policy to not tape interviews when they had parental permission. The legislators fixed that with the amendment to the law effective January 1, 1999, and I secured a memo that was released by DCYF Headquarters last year regarding the change in the law. If Monica Pellegrino didn't know, then she should have known. She did know by the time of the third interview, however, because I made sure she knew, and she affirmatively chose to ignore the law.

I found out of the plan to interview this four-year old for the third time at the [town] Police Department, and arranged to have a video-tape-recorder delivered there prior to the interview. Thus, it was certainly "possible" to video-tape the interview. Chief B. of [town] contacted the "county attorney," (I'm not sure if it was Hillsborough or Cheshire), who advised him to audio-tape the interview only. (See contact log of Monica Pellegrino for confirmation that he was told to audiotape the interview only.) After interviewing the child, Monica Pellegrino turned the tape over to Chief B., who is keeping it as "evidence of a crime," and I had to write a Motion to Compel to get the tape. DCYF has been ordered to turn it over, but I haven't received it yet. Because both Chief B. and the county attorney are involved in the decision to audio-tape the child instead of videotaping her, I expect little luck getting either to prosecute the misdemeanor.

I'm also a bit suspicious that Monica Pellegrino may have told the mother that she had to consent to her interview prior to securing permission. If she did, then there would be reason to prosecute her for not taping the first two interviews as well, because of coercion. I've certainly had other cases in which social workers tell parents that they must consent to home visits, interviews, sign releases for psychological records protected by federal law, etc. (I have one case in which the police officer [Peter Shepard from Boscawen] asked my client, on tape at the beginning of an interview, "You know you're here voluntarily, correct?" She replied that "If voluntarily means that you kidnapped my child, and I can't get him back without talking to you, then I guess I'm here voluntarily." The police officer then rewound the tape and started over with a different question.)

Because of the similarity of the claims that the tapes don't belong to DCYF, I'm wondering if there isn't some sort of unwritten policy to keep the tapes of children's interviews out of the hands of defense attorneys by handing them over to law enforcement and claiming that they aren't the Division's property. Jim Anderson claims that the Concord office has no way of copying either audio or video tapes, and has never offered more than to "make them available" for me to copy. Given criminal due process requirements to turn over evidence, I find this excuse pretty unbelievable. I only know of these two cases, however, and I'm sure that isn't enough to establish a pattern.

I'm hoping you'll agree to prosecute these two cases, because I think it won't take many prosecutions to end the practice of failing to tape. Please contact me if you need more information.

Sincerely,
 
Paula J. Werme, Esq.

Cc: File Enc.


March 20, 1999

Mark Zuckerman, Esq. New Hampshire AG's Office 33 Capitol Street Concord, NH 03301-2110

Re: RSA 169-C:38, IV

Dear Attorney Zuckerman,

Last week I represented to you that the cases in which I submitted to you the only two instances I knew of that involved violations of RSA 169-C:38, IV. In fact, I remembered this week another case. Sherri Levesque of the Concord District Office interviewed a child in another case of mine at the Merrimack Valley Day Care Center last year in March. His name was D*** B.., and it was regarding a child abuse investigation involving his [sibling]. The statute clearly says that the child authorized to be interviewed by the statute is the child for whom the investigation is being conducted. Although the interview was taped, it was still done in violation of the law, because he was not a child who was the subject of the report of abuse. Jim Anderson required that I go into the DCYF office and bring my own taping equipment to get a copy of the audio tape of that interview. Both my client, **** B. and I would like you to prosecute this case. She can be reached at 796-*** for information regarding the interview. She was terribly upset because her son manifested behavior problems for months afterward concerning fear of being taken from home.

Please contact me if you have any further questions.

Sincerely,
 
Paula J. Werme, Esq.

Cc: File


Mr. Zuckerman, apparently having temporarily forgotten his duties as head of the "Office of Public Integrity," ignored my two letters. This author can only imagine his dilemma when he received the following several months later:

June 21, 1999

Mark S. Zuckerman, Esquire
Office of the Attorney General
33 Capitol Street
Concord, NH 03301-6297

Re: [Client's Name]

Dear Attorney Zuckerman

An article appeared on the front page of the Sunday Monitor on June 13, 1999 entitled, "Defending herself, mother fights for her child." The article described, in detail, the proceedings in Court pursuant to a child abuse/neglect matter under RSA 169-C (The Child Protection Act). A copy of that article is attached. I submitted a letter to the Merrimack County Attorney for an investigation and potential prosecution of the violation under RSA 169-C:25 provision relative to confidentiality. Susan Alfin, Esquire, of that office, responded that the Merrimack County Attorney's Office declined involvement in the matter, subject to your instruction to the contrary.

[Note: RSA 169-C:25 only has a confidentiality provision with respect to Court HEARINGS, not everything about the case. That is covered under RSA 170-G:8-a, which specifically excludes most information, including Court orders from material defined as confidential]

It is requested that this violation of the confidentiality provision of the Child Protection Act (RSA 169-C:25) be reviewed by your office, and investigated and prosecuted to the fullest extent of the law. Failure to take appropriate action in this matter will clearly result in further knowing and intentional violations of the statute, continued assaults upon the protection of children in the news media to which other responsible parties cannot reply, and more and more vulnerable children having to deal with their lives circumstances spread throughout the media.

I will make myself available to you at any time in order to appropriately resolve this issue. Please feel free to call me at 271-6202.

Sincerely,
 
James R. Anderson, Esq.
NH Division for Children, Youth, & Families


June 28, 1999

Mark S. Zuckerman, Esquire
Office of the Attorney General
33 Capitol Street
Concord, NH 03301-6397

Re: [Client's Name Omitted]

Dear Attorney Zuckerman,

Following up on my letter to you of June 21, 1999 regarding the disclosure of confidential information in an abuse/neglect matter in violation of RSA 169-C:25, II, I am enclosing a copy of a Court order dated June 24, 1999. As you can determine from the Court order, the Court feels constrained at this time from holding a show cause hearing, and issuing sanctions because the stated sanction is criminal liability.

The Court ordered that a copy of its order and the newspaper article be forwarded to the Merrimack County Attorney for investigation and action. Since the County Attorney previously deferred to the Office of Attorney General, I am forwarding this Order to you. I provided you with a copy of the newspaper article with my letter of June 21, 1999.

I strongly urge you to take appropriate action in the investigation and prosecution of this matter. A lack of timely prosecution will fuel the cause for these people, particularly the attorney involved, to continue blatant disregard of, not only the statutory prohibition, but also the vulnerability of more children facing their life's tragic circumstances spread throughout the media of New Hampshire.

I will make myself available to you at any time in order to appropriately resolve this issue. Please advise your position. Feel free to call me at 271-6202.

Sincerely,
 
James R. Anderson, Esq.
NH Division for Children, Youth, & Families


At least the Merrimack County Attorney's Office responded to my next letter:

July 3, 1999

Michael T. Johnson Merrimack County Attorney's Office 4 Court Street Concord, NH 03301

Re: Right to Know Request

Dear Attorney Johnson,

I understand from confidential information disclosed by Jim Anderson to the AG's office concerning a child abuse matter (namely, a copy of a Court Pleading) and his cover letter submitting same to the AG's office, that your office has declined to respond [to] involvement in any matter regarding prosecution of my client, [name omitted] or myself with respect to the Concord Monitor article of June 13, 1999.

Please confirm whether or not the investigation is closed, and if so, please indicate when the file might be available for public inspection pursuant to RSA 91-A. Thank you.

Sincerely,
 
Paula J. Werme, Esq.

July 16, 1999

Paula Werme, Esquire
83 North Main Street
Boscawen, NH 03303

Re: Letter dated July 3, 1999

Dear Attorney Werme,

With regard to your letter (attached), I can only inform you that the information you refer to has been submitted to the New Hampshire Attorney General's Office for investigation. Thank you for your letter.

Sincerely,
 
Howard Helrich
Assistant Merrimack County Attorney

cc: Mark Zuckerman, Esquire


Summary

These letters are all more than six months old. I still don't have all the evidence entitled to me by the legal rules of evidence. While the DCYF Field Practices study committee is doing a good job in some areas, I'm disappointed they seem to be tolerating the system's flaunting of current law. Until DCYF, the police, and the courts begin to treat current law with respect, there is no reason to expect DCYF, the police, or the courts to respect new law. In the meantime, by not having access to taped interviews, I am denied to the opportunity to use them in my clients' defense. As for RSA 169-C:25, I don't know if I am under investigation. I do know that other people involved in the Concord Monitor article are being investigated. This intimidates my clients and provides opportunities for DCYF to show judges what angry people they can be. Angry people make bad parents, and DCYF is quick to use that as an excuse to keep children in foster care.

Quote with comment

This is the first update in eleven months. On 2001 January 4, Governor Jeanne Shaheen said this in her inaugural address:
All of us who hold elected positions must remember the full responsibility that comes with those offices. Every day, the men and women in our police and fire departments put their lives at risk for the people of New Hampshire. In the last few years -- even in the last few weeks -- we have been reminded of the sacrifices that the police and firefighters stand ready to make on our behalf. In return, here's what we owe them: As elected officials, we owe them not just the passage of good laws. We owe them our respect. In everything we say and do, let that message be clear. In this Statehouse, we honor our citizens in uniform -- and we will not condone those who do not.
While her comments were directed at a particular controversial State Rep., Shaheen is saying that our elected officials respect and honor our officers, even those who break the law. Citizens of New Hampshire deserve better than that.


Contact Paula Werme, Esq. or return to Law Practice home page.

Last updated 2001 December 8.