Monday, July 30, 2007

When Protectors Abuse: Golin v. Allenby and Health Fascism in Santa Clara

Details about the Nancy Golin case are here. The story of Nancy Golin is an example of how the state, in the form of health and social service programs such as Santa Clara County's Adult Protective Services, can destroy the lives of whose whom public health bureaucrats claim to protect. In reading the Golin v. Allenby case, I am saddened by Santa Clara County Supervisor Donald F. Gage's abdication of responsibility for the actions of bureaucrats like Tucker Liske, (who, implies, falsified or overlooked the falsification of Nancy Golin's signature). Michael Moore and the the left advocate publicly financed health insurance for all, but what does Golin v. Allenby suggest about the competence of American bureaucrats to manage a public health system?

Jeff Golin contacted me a few weeks ago with the following information about his case, Golin v. Allenby, which involves his daughter. I was concerned by Golin's description and allegation of incompetent behavior by Judge Alsup of the San Francisco federal court in responding to the Golinses' plight, which results directly from the incompetence of several Santa Clara agencies.

"On November 15, 2001, 31-year-old Nancy Golin was taken by Palo Alto, California police from her family, never again to return. Up to then, she had depended on her parents, Jeff and Elsie Golin, to protect her. They had unhesitatingly undertaken the task of raising their autistic child at home since birth, with love and quality care. Nancy’s parents had fought against California agencies they saw as irresponsible and incompetent, after attempting for years without success to obtain appropriate school services.

"Police took Nancy to the nearby Stanford psychiatric ward on a ruse, without warrant, emergency or probable cause, and attempted to involuntarily institutionalize her. When the grounds were legally rejected and they could show no probable cause, they chose instead to “place” her in a group home at a secret destination chosen by the local Regional Center, San Andreas (SARC) and Adult Protective Services (APS), via a forged signature constituting “consent” to institutionalization. This whole incident began when Nancy’s parents reported her missing, but upon her independent return to her parents’ home, the police requested that she be taken to a medical facility for examination to insure that nothing had happened during her absence. Yet when the Golin’s tried to reach Nancy, the nightmare began, with a series of clearly illegal confinements.

"To cover up their mistake and to squelch press reports, the San Andreas Regional Center (SARC) and Adult Protective Services (APS) alleged to the Santa Clara County DA a series of malicious abuse charges against the parents, Jeff and Elsie. The local police produced a falsified police report which was immediately discounted by Nancy’s doctors and the parents’ supporters. It took 14 months for Jeff and Elsie to get the district attorney to drop and expunge the charges. Meanwhile, State attorneys from the Department of Developmental Services (DDS) pursued Nancy’s conservatorship by DDS Director Allenby and SARC, proceeding at first in secret, then opposing the parents own petition in a David versus Goliath mismatched 2003 probate trial (which did not address the illegalities of the removal and confinement). The parents' attempt to appeal was thwarted by procedural barriers caused by their inability to procure a complete record of the trial. The inability resulted from judicial incompetence.

Since her confinement, Nancy has suffered numerous physical and neurological injuries and abuses. She has lost the use of her hands, been hospitalized dozens of times for seizures and esophageal ruptures, five years of dental neglect causing her to lose almost half her teeth, been improperly subjected to destructive psychiatric drugging, and likely molestation. All of these injuries occurred while in SARC’s and APS’s care. Not the least of the harms, she is not allowed to see her parents except under extreme restrictions and she is not being allowed to go back home for reasons she cannot understand and no one purports to explain. The parents have been denied any say in her care or standing to litigate on her behalf.

"Jeff and Elsie filed timely tort claims and a civil lawsuit for damages in Federal District Court in 2003. They were unable to overcome the lack of counsel for next friend standing. Federal law mandates that parents need an attorney of record in order to have legal standing as “next friend” of the adult child. The case then wound its way through the federal courts into their present state court proceeding in Santa Clara County, where they have been interim representation provided pro bono by New York attorney Gerard W. Wallace of Albany Law School.

"The parents are suing Mr. Allenby of DDS, several County of Santa Clara defendants (including APS, the DA, and the public defender), several SARC defendants, the City of Palo Alto, Stanford Hospitals and Clinics, the care home operator, and others. Their 17 causes of action include both claims on their own behalf and on behalf of Nancy. They are claiming constitutional violations under 1st, 4th, 5th, 6th, 8th, and 14th amendments, Section 1983 civil rights and ADA, as well as state tort claims including attorney and medical malpractice, personal injury, slander, emotional distress, and malicious prosecution. The parents are seeking general, compensatory, exemplary and punitive damages. The parents’ statutes of limitations have not yet accrued. All parties have been served and all but three defendants have filed demurrers and answers. A Case Management Conference is set for August 7.
In California, well established authorities entitle the parents to represent their daughter in litigation as guardians ad litem (GAL), because the conservators are defendants and thus have conflicts of interest. Those theories are disputed by the defendants.

"The focus of SARC’s and County’s intent appears to revolve around their interest in covering up abuse by opposing and denying discovery rights by relying on the (flawed) theory that conservatorship creates a monopoly of legal standing. This theory, unsupported by any legal authority, which the Golin’s lawsuit challenges, leads to the absurd conclusion that no one other than the conservator may sue the conservator. Without expressly claiming it, SARC has thus far garnered absolute protection from liability. The parents’ desire for their daughter’s return is paramount, but they perceive that due to local judicial entanglement this will never be possible as long as SARC perceives the loss of their conservatorship as representing a liability threat...

"During the California proceeding, the parents petitioned the US Supreme Court on Certiorari, to settle the question of who has standing to select Nancy’s GAL, the plaintiffs or the defendants? Nancy is a plaintiff. We have an adversarial system of justice. No authority has been found to suggest that a defendant can play any part whatever in the selection of a plaintiff’s representative. The defendants’ inherent conflict of interest is inescapable. Yet the absurdity of a defendant nominated GAL is exactly what the state courts have been entertaining. This absurdity went as far as the state court recently attempting to appoint one of SARC’s own attorneys as Nancy’s GAL. This attorney was cited four times in the complaint as spearheading the effort to conserve Nancy and attack her parents. The attempted appointment failed because the parents were able to announce in open court their objections and the reasons that the proposed appointee had a overwhelming conflict of interest.

"Nancy’s mother, Elsie, now armed with legal representation, was appointed as Nancy’s GAL twice in a normal ex parte appointment proceeding. Yet twice the defendants have rushed into ex parte proceedings to remove her, on the grounds that Elsie supposedly has an unspecified conflict of interest with her daughter. Apparently, this is because she wants Nancy to be free of SARC’s alleged neglect. SARC pretextually maintains that it is in Nancy’s interest to stay in SARC’s control and that they are the sole decider of her interests. Thus, SARC alleges, Elsie has a supposed conflict of interest with her daughter. As Nancy’s lifelong caregiver Elsie is certainly legally qualified to speak on behalf of Nancy’ interests, having a long-standing significant relationship.

"As cause, SARC declares that it fears that discovery by Mrs. Golin would potentially disclose abuses that might cause them to lose their conservatorship, saying that SARC apparently knows something that they feel is much too damaging to be disclosed. The probate court has supported this cover up so far.
The parents are hoping that the Supreme Court will step in and settle this question. The matter is calendared for conference in October. What is needed at this point is institutional support and publicity for our cause, which if left to stand will affect untold numbers of disabled persons. So far the mainstream media has ignored this case. The parents need help changing that, to help the Court focus attention on this.

"Critical Issues at Stake in Elder Law

"One critic of probate abuse has recently referred to a “white collar crime wave” involving handicapped persons in involuntary conservatorships, due to lack of effective court oversight, and due to the so-far undefeatable tactic of such defendants to smear anyone, whether family or friends, that attempts to intervene to rescue their loved ones from what would otherwise be considered kidnapping, abuse and false imprisonment.

"In each of these thousands of documented cases across the country, the standing of a caring relative or committed advocate to represent the interests of the ward is attacked as a defense strategy. Once the defense succeeds at removing the family member, the ward is helpless, because no one other than the alleged wrongdoer can represent the ward. And a reasonable person never sues himself. Thus, the ward is left with no rights at all.

"As a counter and check to such abuses, a precedent that controls such advocates rights to act as GAL’s in civil proceedings, which may in some cases be the ward’s only way out, would be very helpful. It affords a measure of heightened due process and damages that are not available in probate courts, and allows interested parties to participate that would otherwise be excluded. Authority is available under Title II of the ADA for “parties aggrieved” to afford standing to parents or relatives to litigate on behalf of their incapacitated family members, which follows the example set by the recent Winkelman v. Parma City Supreme Court opinion for IDEA cases.
What Do the Parents Need?

"The parents urgently need local representation in California for their civil suit. Mr. Wallace cannot continue to represent their interests from New York. He is filling in while permanent local counsel can be obtained. If even half their claims are supported, attorneys have opined that the damages awards would be very considerable, especially if submitted to a jury. Finding private counsel that would take the case on a contingent fee basis is feasible. It is only a matter of paying costs, and the parents have lined up a couple of interested attorneys. But law firms with pro bono projects which would usually be expected to have an interest, have not been receptive thus far for a variety of institutional reasons, apparently their reluctance to litigate against the state and thus step on powerful toes. After 6 years of litigation, the parents have limited resources, but can pay incremental fees as needed.

"The parents are committed and knowledgeable about their case. Jeff Golin is sufficiently self educated in the law as to present a formidable adversary during pro se hearings. The parents’ rights continue to be infringed. Their visits with Nancy resemble jail visits more than family occasions. Nancy cannot understand why this is being done to her by her own parents. She appears more and more abused each time the parents see her.

"If the parents fail, Nancy will face a lifetime of false imprisonment and abuse without any available relief, truly a “creature of the state” as decried in the US Supreme Court decision, Parham v. JR. This is not only a bad outcome for Nancy, but sets an extremely dangerous precedent for the country as well.
For more information please call Mr. Gerard Wallace (518) 445-3266 or Jeffrey Golin (650) 518-2850."

Moral: If you want to harm a autistic child, set up a government agency like Santa Clara Protective Services or the California Department of Developmental Services. What will happen should public financing of health insurance put the likes of Donald F. Gage and Tucker Liske in charge of health decisions that affect all of us?

Equally disturbing is the reaction of Judge Alsup to Golin's suit. Alsup refused to pay attention to Golin, saying that because Golin was representing himself, he must not have a worthwhile case. Perhaps it is time to clean up the federal courts.


Jeffrey said...

Thanks for covering this story, Mitchell. It is unfortunate that the Metro, while it at least was one paper that covered the story, chose to print so many false facts and half-truths among the truths, and then refused to retract them. There are too many mistakes to catalog, but I merely wanted to warn the readers of this article to beware that the reporter broke his promise to check facts with us before press time and instead went with the story he got from the regional center in several points. Still it shows the general injustice of what was done here, and is still going on. Most of this shows the general disgrace our judicial system has fallen into, like Alice in the rabbit hole, which most people have the luck not to find out about until the nightmare visits them.

Jeffrey said...

Mitchell, your last version raises a fascinating point which I had to think about carefully. You said, "Michael Moore and the the left advocate publicly financed health insurance for all, but what does Golin v. Allenby suggest about the competence of American bureaucrats to manage a public health system?"
What went wrong with the bureaucracy in our case? Because whatever it is we need to avoid if we ever set up a universal health care system.
Nancy enjoyed free medical care in our family, and we used it as often as needed, under the State MediCal program. I and my wife have MediCare, and we rely on it and are happy with it. These are state financed health care systems for limited groups of people. All Michael Moore and the liberals are presenting is the idea of extending this care to everyone. So, what is so wrong with that? Love her or leave her, Hillary said, the devil is in the details and perhaps she was right there. She just didn't get the details right.
Let's look at what happened here, then. First, there is absolutely no competition for our services. The Regional Center is the only place to go for parents in each state subdivision. If you live in one of the four counties, for example here, where SARC holds sway, you are their captive customer, willing or not. This is like our telephone system when Ma Bell used to have a monopoly. Anytime you commission a state subsidized monopoly to exist, you are going to have substandard services and lots of corruption. This gets back to the Jefferson/Madison idea of checks and balances. For every state agency that is administering services, you need a competing agency ready to step in and eat their lunch if you are an unhappy customer.
It isn't a matter of passing more laws to protect our rights. Here, California has a great statute that mandates an entitlement to state services for families, where the family is in the driver's seat. What happened in our case is that the state agency simply ignored the laws, because nobody was willing to buck them. They simply had too much power to oppose. They have a $6 Billion dollar a year state budget! That is the size of some major corporations. That is going to happen if we have universal coverage, too. Medicare subsidizes this handicapped services industry, which is awash with money and little effective oversight. Nobody wants to oppose them because if they do they are afraid their children will be next. We are in the midst of a white collar crime wave because nobody is able to control these behemoth state agencies.
You mention Fascism. Most people do not understand that word. We lost sight of it after WWII and the story was that we defeated it. Now it is history. You cannot fight something that you cannot define, but it can be defined. It is the antithesis of our system of government, and I will tell you why. Fascism comes from the word, Fascie, which stands for a bound sheaf of straws. You can see this symbol in some of the iconography of the 30's and 40's. A sheaf of straws bound together by a strap, sitting on each side of a throne. It derives I believe from a legend. According to this legend, the patriarch of the Rothschild family brought his sons into a room together once they had reached maturity, and passed around one straw. He asked each of them to try to break it, and of course they all did. Then he bound a large number of straws together, and asked them to try to break that, and each tried but could not. The elder said that was a lesson that if they all stuck together no one could break them. Sticking together is what we are faced with. Not competing. Our system of government is based on checks and balances. As soon as we lose them, we have lost our democracy. In federal courts in the 70's Justice Rehnquist invented the theory of "comity" based on federalism, which means that federal judges should respect state judges and not oppose their judgments, so everyone can get along and play nice with each other. This meant that a federal suitor had to navigate through a minefield of judge-made legal doctrines that kept his constituional or civil rights case out of federal court, relegating him to a state forum, even if the case involved abrogations of civil rights by state agencies. That is why we almost lost our ability to oppose state agencies in civil rights suits. Comity sounds nice but we have to realize its danger.
When we "stick together" we are actually destroying the suspicion of authority and competition that is fundamental to our form of government that makes our unique experiment in government survive. Thus I would suggest that we need to revive all forms of competition we can in the marketplace and revive personal choices. That will take some work. If we have a universal health care system, the "liberals" are going to shove services down people's throats for money if we do not put in place systems of competition and checks and balances. That is my opinion.

Anonymous said...

Very Interesting!
Thank You!

Anonymous said...

Jeff is not a very good lawyer, but Nancy's abductors need to be taken out and Nancy has to be freed back to her parents. There is no way the courts are going to bend. Their time was up long ago. There are only a few things that Jeff can do, and could do but he didn't, so it's time he better get a move'on before he himself dies of old age. Whatever he does against the government will be respected, and I mean "whatever".