CONCORD, N.H. — A superior court judge is considering whether to dismiss a lawsuit brought by a Plymouth woman who is suing her adoptive parents for abusing her. She is also suing the state, New Boston police, and others, for failing to protect her from that abuse.
On Tuesday, Merrimack Superior Judge John C. Kissinger heard arguments from state and police lawyers on their motion to dismiss Olivia Atkocaitis’s lawsuit, which alleges she endured years of extreme physical and psychological abuse and was kept locked in the family’s New Boston basement. She also alleges local police and state social workers did not intervene even though they knew about and documented the abusive household.
Her adoptive parents, Thomas and Denise Atkocaitis, who are representing themselves, dialed in to the hearing by phone because they said it would be too far to travel from Georgia, where they said they now live.
Attorney Brian Cullen, who represents six police officers from the town of New Boston, asked the judge to “trim down both counts and parties who really shouldn’t be here.” There are 16 counts brought against 22 parties, including the town of New Boston, the local Goffstown school district, the commissioner of the New Hampshire Department of Health and Human Services, and a caseworker who had been involved with the family, among others.
But Atkocaitis’s attorney Mike Lewis said he left the hearing confident the case would not be dismissed outright.
Cullen argued that allegations against the New Boston police officers he represents lacked specificity and dealt with the police department as a whole, rather than identifying the specific role each officer played.
He said that while the conditions under which Atkocaitis was kept were deplorable, the police officers didn’t “participate in that in a meaningful way.”
“The plaintiff has to show not just negligence, but that they acted in a reckless and wanton manner,” Cullen said.
Lewis countered that in a small police department, officers would be aware of the troublesome situation at the Atkocaitis household. He said New Boston police were called about domestic issues with the family in 2007 when Thomas Atkocaitis made “deeply disconcerting allegations” about his wife, Denise Atkocaitis. They were called to the home again in 2009 because of a report of elder abuse. In 2011, police were called again about the “violent propensities” of another child. Police entered the house at that time and documented the basement that Lewis called a “prison.” In 2017, he said, there was an attack on another child in the home resulting in police involvement. And in 2018, Olivia “dug her way through the wall” to escape the home, he said. “Police claim they saved her. It is outrageous.”
During the 2007 call and two calls in 2009, Lewis said, police didn’t check whether Olivia Atkocaitis was safe.
Catherine Denny, an attorney representing Division for Children, Youth and Families caseworker Dyane Anstey; the Department of Health and Human Services; and the Division for Children, Youth and Families; said the state’s goal is to limit claims to a single claim of negligence. She rejected the idea that the state would have a fiduciary, or trust, duty over Olivia Atkocaitis, given the state’s role in placing her in the adoptive home in the first place.
Olivia Atkocaitis was adopted from China in 2004, and Lewis argued her case hinged on state involvement from the beginning.
“Does the state owe any duty to a child adopted from overseas?” Kissinger asked.
“No,” Denny responded. She said the commissioner of the Department of Health and Human services played a “limited role” ensuring paperwork and an assessment are completed before an adoption petition is accepted.
While the lawsuit alleges that a report had been made to DCYF about a belt-hitting incident in the Atkocaitis home in 2003, Denny said state agencies have found nothing substantiating that a report was made about that incident.
“DCYF’s role is to investigate reports of abuse and neglect,” she said. “The commissioner had to make sure the paperwork submitted by Wide Horizons (the adoption agency) was correct.”
Lewis argued the state’s responsibility is much broader than “stamping a paper” and also includes investigating whether the prospective parents are fit to adopt.
Plus, Lewis said, there’s been conflicting information from the state about available records, including those from the 2011 encounter when police entered the Atkocaitis home and documented the basement where Olivia was allegedly confined.
He said another state worker, Michelle Hebert, attested in a sworn affidavit that she had reviewed records regarding the 2011 encounter when she worked on Olivia’s case in 2018, after Olivia ran away from the family home and entered state custody.
In her affidavit, Hebert said she observed the basement where Olivia had been held “for most of her childhood.”
“It was so confining and offered no ventilation (that) I could only be in the basement for five minutes,” she said in the affidavit. She said she learned through records that the New Boston police had learned about her confinement in 2011.
“As a DCYF worker, trained as I have been, including with respect to the law and the protocols for responding to child abuse and neglect, there is no doubt in my mind that the New Boston Police Department and DCYF failed Olivia in egregious ways that are inexcusable and unjustifiable, when presented with Olivia’s imprisonment in 2011,” she said in the affidavit.
Denny said DCYF didn’t have a report of its own from 2011 and that Hebert was likely reviewing police records from that time.
Thomas Atkocaitis spoke briefly about why the case against him and Denise Atkocaitis should be dismissed. He said they weren’t served until after Olivia’s 20th birthday, arguing the statute of limitations had passed. And, he said, “the plaintiff has advantages over us, having access to more than we do for what occurred many years ago. That creates a big burden.”
“I’ll just join in what Tom said,” Denise Atkocaitis said.
Kissinger said he will take the motions under advisement.