Petition 11: the Vandenberg Petition

Additional commentary by Timothy Horrigan

(member of the House Petitions & Redress Committee)

(Click here to download PDF)

I am classifying the Vandenberg petition as a 2012 petition, even though technically, this is a 2011 petition. It was officially introduced during the last few hours of the 2011 session, which ran for three calendar years. The House convened on December 1, 2010 and did not adjourn for good till lunchtime on January 4, 2012. The House was dealing with "retained" 2011 bills right up till the last session day: a fetal homicide bill, HB 217 ended up being retained in 2011 and passed only after surviving a veto-override vote on June 27, 2012.

The distinction between a 2011 and 2012 petition doesn't really mean much.

Long before the first committee hearing (which took place on February 21, 2012), several other state representatives— including myself— received a detailed two-page response from Dr. Vandenberg's ex-wife (the mother, and the custodial parent, of the child at the center of the dispute.) She has hired a good lawyer and is putting up a spirited defense. She vehemently disagrees with just about everything her ex-husband said.

Dr. Vandenberg's ex-wife lives and pays taxes in New Hampshire, as does the Guardian ad litem and the other officials targeted by the petition. Dr. Vandenberg does not. The divorce happened in Massachusetts, although the child custody battle heated up after the ex-wife (and their daughter) moved to Keene. Since the divorce, he has spent most of his time in Washington, DC and Arkansas, although he did reportedly live in Portsmouth, NH for a while. I question whether it is proper for a New Hampshire legislator to file a petition on behalf of someone from out of state— but I recognize that his child-custody case is being heard in a New Hampshire court, and that the child in question does currently live in Keene.

The text shown below is the official text of the petition as submitted by Rep. Jeffrey Oligny on January 4, 2012. The petition was the topic of some controversy in a family court court hearing in late January 2012. Dr. Vandenberg submitted a summary which I eventually took down from my web site to protect his ex-wife's and his daughter's privacy, as well as that of the Guardian ad Litem's. There wasn't anything terribly scandalous in the summary: it was mostly theoretical in nature, and similar in tone to his petition.

PETITION 11
PETITION FOR REDRESS OF GRIEVANCE

TO: The Honorable House of Representatives
FROM: Petitioner Representative Jeffrey D. Oligny, Rockingham 8
DATE: January 4, 2012
SUBJECT: Grievance of Dr. David D. Vandenberg, Hot Springs National Park, Arkansas, formerly of Portsmouth, New Hampshire

Your Petitioner Representative Oligny on behalf of Dr. David D. Vandenberg, Hot Springs National Park, Arkansas, formerly of Portsmouth, hereinafter presents the following summary of his grievance and invokes the constitutional authority and duty of the Honorable House of Representatives pursuant to Articles 31 and 32 to bring about redress:

Grievance involving a Superior Court Justice which allowed the guardian ad litem (GAL) to move the Court (ex-parte motion to suspend parenting plan--a modification of a permanent plan) when a guardian has no standing to move a court in such a matter, only parents do. Granting this authority is contrary to: family division administrative order 2001-01, at No. 4; family division Rule 2.30(a), modification of final decree; Superior Court Administrative Order 17, appointment and payment of guardians ad litem; Muchmore v. Jaycox, 159 N.H. 470, 986 A.2d 456.

The Court, by issuing its ex parte order to suspend parenting, denied the father and his daughter their rights to the free exercise of their Christian faith and mutual free association for almost 2 years. The order cited said practice of religious freedom as a cause of potential harm without evidence and is contrary to the New Hampshire Constitution: Art. 15, Right of Due Process; Art. 5, Right of Religious Freedom; Art. 14, Legal Remedies to be Free, Complete and Prompt; and the US Constitution: 1st Amendment, Freedom of Speech and Exercise of Religion; 5th Amendment, Due Process; 14th Amendment, Due Process and Rights of Citizens; 9th Amendment, Unenumerated Rights of Citizens; and 10th Amendment, Reservation of Right. The Court failed to schedule and hold an evidentiary hearing in this matter, in spite of the father's motion to do so, which the Court has held in abeyance for over 2 years. The Court created a conflict of interest by allowing the GAL to become a party to the case and initiate legal action against a parent, thus eliminating GAL independence and objectivity and receiving financial incentives from prolonging court litigation. The Court failed to provide the required statutory citations to modify the parenting plan as required: In the Matter of James J. Miller and Janet S. Todd, Docket No. 2009-806 (2011); Muchmore v. Jaycox, 159 N.H. 470, 986 A.2d 456 (2009). The Court failed to provide the requisite findings of harm or affirmative showing of immediate harm in order to modify the parenting plan as required in: Chandler v. Bishop, 142 NH 404 (1997); In the Matter of Choy & Choy, 154 N.H. 707, 713 (2007). The court ruled, in modifying the parenting plan, absent evidence of harm, absent offers of proof of harm, and contrary to expert testimony as to the importance of father-child association, contrary to Rule 187, Rules of the Superior Court of New Hampshire. The Court improperly ordered the father to pay GAL fees without requisite hearings and contrary to maximum payment cap: Superior Court Administrative Order 17; thereby, forcing the father to pay his accuser for his denial of due process, contrary to law. The Court allowed a private person without standing before the Court to move the Court, modify the permanent parenting plan for six months, enter six additional motions, move the Court to give the child into therapy of the non-litigant's choosing and against the father's Objection, said therapist being deemed incompetent and impaired at the time by the Board of Mental Health Practice. The Court then retroactively ordered appointment as GAL and fees in the amount of $7,369.49, in violation of Superior Court Administrative Order 17, as the Order was made retroactively and without hearing while the father was overseas and received no notice of the proposed Order.

The father filed a motion to resume the parenting plan in March 2009 to resolve this issue of illegal parenting plan modification, which the Court still has not scheduled to hear over 2 years later, while scheduling multiple hearings on collateral matters on a monthly basis. Moreover, the father's motion to vacate order, suggested by the New Hampshire Supreme Court as a remedy to this situation, also remains unscheduled for 3 months with Court personnel. Since the Court is refusing to schedule the father's proposed remedies to the situation for years, the father is being denied due process. Without a hearing, he cannot remedy this matter, nor can the Court's decision be appealed.

Wherefore, your Petitioner prays that the House of Representatives consider this proposed remedy:

Submit legislation to amend New Hampshire statutes to require that family law courts adopt rules of evidence and that judges make definitive rulings according to said evidence and in a timely manner;
Submit legislation to amend New Hampshire statutes to prevent future public injury, in particular to clarify the role of guardians ad litem criminally for unauthorized and unstipulated actions, and to define deadlines for the hearing of motions of aggrieved parties;
Pursue impeachment of said Superior Court Justice for failure to uphold the laws and Constitution of the State of New Hampshire and the Constitution of the United States, for improperly assuming a legislative role in judicial proceedings, and for harming the daughter by ignoring expert testimony warning his order would do so, Miller & Todd;
Instruct the Attorney General to criminally prosecute the Guardian ad Litem for the kidnapping of the daughter, RSA 633:1; and
Refer this matter to the guardian ad litem board for investigation to determine if a complaint against the guardian ad litem should be filed.

Respectfully submitted by Petitioner Representative Oligny on Behalf of Dr. David D. Vandenberg.

On July 26, 2012, after hearing many hours of testimony and after perusing a thick stack of documents, the House Redress Committee finally voted on the Vandenberg Petition. We voted it "Founded" 9-1 on party lines. (2 Democrats were absent.) I was the 1 "No" vote. That's pretty much all that can happen with this petition: the committee's recommendations are all non-binding.

The majority report sounds (to my ears) as if Dr. Vandenberg wrote it himself.

The following majority report ran in the July 29, 2012 House Calendar.

PETITION #11 grievance of David D. Vandenberg.

Grievance Founded with Recommendations.

Committee Findings:

After hearing the testimony of Petitioner, David Vandenberg, and reviewing documentation of various court events in a divorce settlement, and having received no responsive testimony or documentation, or other evidence from any of the officials named, the Committee on Redress of Grievances finds (and is now significantly supported by a decision of Cheshire Superior Court on March 1, 2012) that Justice John Arnold of Cheshire Superior Court:

Unlawfully terminated contact between Petitioner and his daughter for two years and nine months, violating his natural and constitutional right to impart his religious beliefs to his daughter;
Failed to enforce mandatory directions to putatively appointed guardian ad litem, [GAL's name deleted];
Improperly granted Judith Hamilton's motions to exceed the mandatory fee cap of $ 1,000.00 by at least $ 11,069.69 without the requisite hearings demanded by Superior Court Administrative Order 17 [SCAO 17] and Family Division Administrative Order (FDAO) 2005-01;
Coerced compliance of payment on Petitioner by threat of incarceration, despite several attempts by Petitioner to move to vacate the underlying problem of unlawful termination now recognized as such by the Cheshire Superior Court;
Failed to meet even one of the administrative-court-ordered requirements, as per SCAO 17 and FDAO 2005-01, for the appointment of Judith Hamilton as guardian ad litem including:
1. assuring that such person have standing before the court to apply for appointment;
2. noticing parties of hearing;
3. holding a hearing with the parties and the GAL present; and
4. confirming such appointment by the production of stipulations and a report;
Allowed Ms. Hamilton to improperly apply for and receive retroactive appointment and retroactive fees of $ 7,369.69 in violation of SCAO 17 and FDAO 2005-01 claiming later to have "waived" the hearings without formally doing so; and
Failed even to schedule hearings on motions to vacate this unlawful order terminating child's contact with her father for over 2 ½ years. Additionally, the Committee finds that [GAL's name deleted],
1. failed to produce the report required per Family Division Administrative Order 2005-01 [FDAO 2005-01], and the mandatory stipulations for fees and services required per FDAO 2005-01;
2. without proper appointment and without proper court authorization, moved to terminate contact between Petitioner and his daughter.

Recommendations:

The Committee recommends that the Legislature introduce legislation to:

Investigate Judge John Arnold for impeachment for offending the dignity and undermining the integrity of the courts and the confidence of the people, for failing to uphold the laws of the State of New Hampshire and for infringing on the natural and Constitutional rights of the Petitioner;
Require that Rules of Evidence, Rules of Procedure, and all other Rules of the pertinent Court(s) be complied with by all judicial courts;
Require that all motions and petitions brought before a court of New Hampshire be docketed immediately and scheduled to be heard within six months after docketing;
Eliminate immunity of guardians ad litem, requiring them to be formally trained and bonded, and require that an accounting of the public input provided at the GAL audit hearings be included in their recent report;
Restructure Family Division courts as courts of law, not courts of equity; and
Repeal Supreme Court Rule 3 Definitions: Mandatory Appeals (9) which provides for discretionary appeals in post-divorce custody matters, so that mandatory appeals must be provided in all matters in which fundamental natural rights, which include the right to religious expression and the right to raise one's children in the religious practices of one's choice, are issues before the bar, including all family division matters.

Vote 9-1.

Rep. Robert Willette for the Committee.

I wrote several drafts of my minority report. Chairman Paul Ingbretson rejected my initial submission after consulting with Speaker O'Brien. I actually implemented Rep. Ingbretson's suggested changes, which made the report better— and I thought my subsequent drafts passed muster. But no minority report was in the calendar. Here is what should have been in the House Calendar:

MINORITY REPORT: UNFOUNDED

The Petitioner. David Vandenberg submitted a long and complicated petition which mostly dealt with his even longer and more complicated child-custody case. This case is the subject of ongoing litigation in the Cheshire Family Division. The Petitioner alleges that the judge's actions in this one case were so egregious as to be grounds for impeachment.

The Petitioner gave six hours of wide-ranging testimony, and he submitted a significant amount of documentation including some materials generated by the other side of the case. However, the documentation and the testimony were often irrelevant to the facts of his particular case.

The Petitioner's grievances boil down to four main areas.

The Petitioner claims he was denied custody of his child because of his religious beliefs. The Petitioner's religious freedoms would however not extend to permitting him to persist in conduct which harmed his daughter. The Petitioner's exwife and the Guardian ad Litem both stated that some of his conduct harmed his daughter.
As mentioned already, the Petitioner feels that Judge John Arnold's rulings were so outrageous as to warrant impeachment. The Petitioner shared few if any actual court orders with us, however.
The Petitioner alleges that the Guardian ad Litem was improperly appointed and that she overbilled him. He paid roughly $11,000 for her services, and he owes her an additional $17,000. The Minority believes that the Petitioner failed to prove that anything illegal went on.
Finally, the Petitioner has various ideas for restructuring New Hampshire's court system, some of which may be worth considering. The Minority notes that most of his ideas would have cost money at a time when the judiciary's budget is being slashed.

The Petitioner is from Arkansas, which troubles the Minority— although the Minority also recognizes that out of state litigants have the same rights in our state court as do local litigants.

The Minority concludes that this Petition is Unfounded.

Rep. Timothy Horrigan for the Minority

Other 2012 Petitions:

See Also:

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