Monday, June 08, 2009

Standing By Ella, Conclusion; Competency Rules; Albany's Good Old Judicial Bully Boys; Let's Dance!

In upstate New York where I was raised in the 1960s, men were supposed to be men. There were many facets of our code of conduct, but there was one inviolate rule: You never, ever picked on or hit a girl.

Which brings me to the Granny Snatching case of Nancy Patrick vs. her mother - and my mother - M. Ella Winter, filed on Jan. 20, 2009 in New York Supreme Court in Albany. My sister falsely claimed that our mother, a 92-year-old widow who had moved to my home in Connecticut on Dec. 22, 2008, had Alzheimer's disease, and was totally incompetent. (Please see my two previous columns for background.)

The court petition asked that my sister be named Guardian with complete control over Mom's life, including placing her in the Hawthorne Ridge Alzheimer's facility in East Greenbush, and placing all of Mom's money in an account in my sister's name.

My sister never produced a shred of proof, yet a series of judges and lawyers still pushed the case through the Albany judicial system, ultimately costing my mother tens of thousands of dollars, but accomplishing nothing. A key point in the lawsuit was the claim that mom was so far gone that she should not come to court because she could not meaningfully contribute to the case.

That was all proved to be false, but only after the judges and lawyers piled on, running up the bill on a frail 92-year-old widow. So what has happened to the concept of manhood in Albany? Is it defunct?

Based on the mendacity posing as my sister's lawsuit, the instant Mom walked into the Albany Supreme Court on March 27, shortly after 10 a.m., my sister lost the case. Because the best evidence that Mom was competent was Mom herself, and when she got to Albany that day she was really anxious to kick somebody's rear end all the way across the Hudson River.

Yet, the case never should have gotten to that point. In fact, the case should have been thrown out the instant my sister's lawyer, Richard Rowlands of the Albany law firm Girvin & Ferlazzo, brought it to court. The reason I say that has much to do with the point of yesterday's column - that an allegedly incompetent person is presumed under the law to be competent until proven otherwise.

Every other sentence in the suit claims my mother was an Alleged Incompetent Person - AIP. Aside from the fact that Mom referred to the acronym as APE when she read the allegations against her - as in "So they're calling me an ape now?" - the key word here is ALLEGED. If we think about it, I'm sure you'll agree that a criminal defendant gets more consideration than my mother did.

Americans are constitutionally guaranteed an assumption of innocence in any legal matter until proven guilty - or in this case, assumed competent until proven incompetent.

That assumption should have instantly translated to a ruling that the New York courts lacked jurisdiction, because my mother formally and permanently changed her address to her new home on Dec. 29, 2008, a month before my sister sued her. As a resident of Connecticut, the New York courts had no jurisdiction and the case should have gone away right on the spot.

Instead, Supreme Court Judge Eugene P. "Gus" Devine signed off on the petition, allowed it to enter the system, and even appointed another lawyer, Chad Balzer, as an "evaluator," to keep an eye on it - for a price. But even though the petition ran to nearly 40 pages and was wonderfully chock full of legalese and horror stories, there was no supporting evidence, like doctor or hospital reports, to bolster the claim of incompetency.

Is the Albany judiciary just sloppy, or am I missing something? Is this what happens to the kids who get their lunch money stolen on the playground? They grow up to be judicial bullies who kick girls?

Judge john Egan, who presided over the case from January to the very end, ruled against Mom's lawyer at every step, escalating the costs every single time, ramping up the payable hours and causing my mother untold heartache. Yet in the end she prevailed! What was it with those guys?

They wouldn't even admit to it when Mom arrived in court and blew my sister's case out of the water just by showing up. They should have packed their briefcases, conceded defeat and gone to lunch. Instead, they forced the matter to a day-long trial that had at most 20 minutes of necessary testimony - from Mom to Judge Egan.

When Mom walked into the courtroom she was swarmed by family members, virtually all of whom would soon be testifying against her, but at the moment were trying to suck up to her and put on a show for the judge. But she was having none of that. "I'm angry with you," she told her son, daughter, granddaughter and everyone else within earshot.

"But why?" they mewled.

"Because we're here, going through this," Mom retorted.

"Go give Mom a hug," my sister instructed her daughter, "She's not herself." Seriously, she actually said that.

After the fake hugs and expressions of concern, my sister, brother, niece, brother-in-law and some lady from Albany Medical Center who wasn't a doctor, all took the stand and tried to convince Judge Egan to sentence my mother to life confinement in an Alzheimer's facility.

Mom had arisen at 5 a.m. that day, eaten breakfast at 6, and prepared for the journey from Connecticut to Albany. We left Connecticut at 7:30 and drove through rush hour traffic to get to Albany by 10 a.m. It would be a long day before we could leave.

Between Jan. 24 when we were served, and March 27 when we went to trial, my sister tried to paint a picture of herself as a doting daughter by calling our house every single day and leaving a message on my voice mail - even though some of them were outright hostile and others just stupid. This, despite the fact that Mom, my brother-in-law, and other relatives said my mother and sister hadn't been getting along for years.

"Like oil and water," was one description of their relationship. "Can't be in the same room together," was another.

Nonetheless, when my sister sued us and claimed Mom was suffering from advanced Alzheimer's we took Mom to her doctor for a mental acuity screening. It would have been the first step in a long series if other tests had been necessary, but Mom scored so high that the doctor wrote a formal letter to Judge Egan advising him of her findings and noting that Mom was perfectly capable of handing her own affairs.

Judge Egan dismissed it with a wave of his hand.

But the great thing was the message from my sister after she heard Mom had gone for mental screening and passed big time. Not congratulations, or anything like it. Instead, her message was "I am soooo sorry for the ordeal THEY are putting you through."

Can you believe that? Talk about being in denial. Mom finally had solid evidence of her competence and her doting daughter says it was an ordeal! Nice.

First up to testify was the woman from Albany Medical Center who was not a doctor and could neither diagnose nor recommend treatment for anything, but she worked with families of Alzheimer's patients so she knew a lot about that. She didn't know a lot about my mother though because she never examined her. In fact, she had never met my mother!

Jack Casey, Mom's lawyer, worked hard to get the testimony thrown out for irrelevance, but Judge Egan let her go on for nearly an hour and despite Jack's best efforts kept everything in the record including the kitchen sink.

Jack did score a major victory though when he produced the discharge form from Albany Medical Center - even though that facility attempted to keep the records from us for nearly three months - showing that Mom had been treated for hypokalemia - low potassium, which can cause disorientation, confusion, memory loss, etc. He also got the woman to admit that there are 65 different medical conditions that can cause disorientation and confusion, and Alzheimer's is only one of them.

Then it was a truly forgettable three hours of testimony from my sister Nancy, brother Wilson, aka Skeeter, and niece Courtney Patrick, all of whom put forth their best efforts to convince Judge Egan that Mom would be happy only in an Alzheimer's ward. Except for the part where my sister said she wasn't really going to go that far, she just wanted Mom in assisted living - and all of Mom's money in her name. Forget what was in the court petition about Alzheimer's and all, my sister testified, "You just have to say that."

Really? And I guess you just have to allege forgery and unlawful restraint too. Did the New York Legislature pass a law saying all court cases from here on have to include a certain number of lies to make for interesting reading?

Oh, and I loved the part where my sister testified through fake sobs that "My ... mother ... is ... my ... best ... friend." Which must have made her husband and daughter who were sitting right there feel absolutely wonderful. I guess I don't need to say "with friends like my sister, who needs ..."

Finally, at 2 p.m. having been up since 5 a.m., having missed her midday nap, (hey she is 92 remember) and having not eaten since 6 a.m., it was Mom's turn. She demolished them. She easily showed she knows who she is, and were she was, and what was going on, and she beat back every attempt by my sister's lawyer to trip her up.

Jack Casey and I were hard pressed to keep from laughing outright when Mom kept hitting them out of the park. My favorite exchange was: Atty. Rowlands - "Did you know that we had offered to have an independent non-family member review your finances monthly?"

Mom - Looking Rowlands dead in the eye "Now why would I agree to a thing like that?"

By 4 p.m. each side rested and Judge Egan said he was going to retire to think it over. Mom had not eaten in nearly 10 hours, and was starving. I suggested that my wife, daughter and our friend who had come with us take Mom to a restaurant. I would wait for the judge's decision.

Jack said he would give me a ride to meet them once it was over. Nice idea, but 15 minutes later the judge came back to the courtroom and upon finding that Mom had left, made me call my friend on his cell phone and tell them to come back! No food for Mom. The empathetic judge came first.

Back they came, and down we sat while the judge went on about what he couldn't do to make everything all nice and touchy-feely again, and then in an almost anti-climatic manner, announced that Mom had shown she was fully competent, and the case was completely dismissed.

By now Mom was really, really starving, going on nearly 12 hours since she had last eaten, and I tried to get her out of the courthouse as quickly as possible so we could get her some food. But Judge "Empathy" Egan again intervened, telling me something about "family reconciliation" starting right there in his courtroom and not to be in such a hurry.

So Mom stood stiffly as her antagonists tried to make believe it hadn't all happened and we finally got her out and on the road by 5:30. It was 6 p.m. before she actually got some food!

A couple of weeks later, in what had by then become a rare phone message, my sister left a message on my voice mail bragging about the judge refusing to let a 92-year-old widow have a bite to eat. "You tried to take Mom to LUNCH," she hissed. "But the Judge wasn't having any of THAT!"

I guess denying food to an elderly woman is what passes for judicial victories in the Albany Supreme Court system these days. I can't imagine what would have happened if we had lost. Mom probably would have been chained in a dungeon in the courthouse basement and fed only bread and water! Hip, hip hurray for granny bashing.

I'd like to say that it was over then but it wasn't. The court evaluator's bill, which I expected to come in around $2,000 or maybe even $2,500 actually was nearly $9,000! And true to form, my sister, who had wanted Mom to pay all the legal fees, but lost that option when the judge dismissed the case, wanted Mom to pay Chad Balzer's bill in its entirety too.

Back to the judge, more arguments, more time, more money. In the end, Balzer came down to $6,500 and Mom, wanting this over with once and for all, agreed to split it. In an attempt at some form of reconciliation she asked her son, Wilson Winter III, the big time horse breeder from Ocala, Florida to kick in one third to ease the burden on her.

He refused. I won't tell you what his message was, this is a family column after all.

The really odd thing is that the judge never accepted the evaluator's recommendation. He had come to our house on the Sunday before the trial, interrogated Mom for three hours and, like everyone else, found her to be competent.

But that didn't convince the judge to rule that Mom shouldn't have to go through the real ordeal - a day-long trial at which two thirds of her family were trying to force her into an Alzheimer's facility when she was perfectly happy right where she was. The judge said he read the evaluator's report, but that was it.

Mom didn't hire the evaluator, and we only agreed to see him in Connecticut because we were threatened with a court order if we didn't. We had offered numerous times to drive to Albany so Judge Egan and/or the evaluator could meet with Mom there - but they refused to guarantee safe passage. How scary is that?

So now I guess it is over. But last night Mom sat at the kitchen table with a wistful, sad look on her face. "I worked so hard ever since your father died to save that money so I would be secure," she said. "But they ran through it all in only three months. And it was my own daughter and son who did it. Why did they do that?"

I know I am supposed to be a communicator, but I had no answer for her. I don't know why either.

All I could say was that the last time we left Albany, headed east on I-90, never to return, I couldn't even see the Albany County courthouse in the rear view mirror. And that's a good thing.


Whatever happened in the past, whatever comes next, we still won this one!

Let's join Matt and dance! For us this is a victory dance! Can you imagine Mom getting in on this? She'd love to!


Joe Visconti said...

Holy Moley Ron, you and your mom have been through the ringer. Bless her soul for standing up to this at her age. Your Mom has a great son and if she didn't know it she does now.

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