Since Jim Smith’s divorce from his first wife, Dan has been a ward of a series of court-appointed guardians.
In order to resolve their differences out of court, Jim Smith and his former wife agreed after Dan was 18 to choose a third party to be his guardian. At their request, that guardian was appointed without a hearing. Smith says the guardian served responsibly for a number of years, but had to withdraw after he moved away. Then a subsequent guardian claimed falsely, Smith says, that the first guardian was appointed because Smith and his wife had been found to be unfit.
Smith contends DDS used that false claim to oppose his attempts to gain his son’s guardianship. In recent years, Smith has sought that guardianship with the approval and support of his former wife.
In opposing Smith’s bid to attain guardianship of his son, DDS contended that Smith lacks proper judgment. Smith, however, maintains that he has always acted in his son’s best interest, and points out that had it not been for his advocacy in overcoming DDS’s original denial of services to Dan, he would have had no program of care whatsoever.
It is the state and Dan’s DDS-funded service vendor, Smith contends, that have continually made or endorsed poor decisions regarding his son’s care, including keeping him on inappropriate and dangerous medications. At times, he adds, the state and its vendor have intentionally sought to keep Dan from improving his behavior. The restrictions on his contact with his family have been especially damaging because their involvement in his life is “vital to his sense of identity, security and self-esteem,” Smith says.
In 2005, when Smith attempted unsuccessfully to replace the existing guardian, the visitation and telephone limits and other restrictions were upheld or imposed by a probate court judge, who, Smith and his attorney contend, merely signed off on findings and conditions proposed in the case by DDS without exercising any personal judgment.
In addition, Smith maintains that the probate judge made his ruling without interviewing Dan, which an Appeals ruling at the time had declared, in a different case, to be required in all cases involving incapacitated persons. Smith is confident that if given the opportunity in a non-threatening situation, Dan would have stated his preference for his father to be his guardian.
Dan’s current guardian, an attorney, who is the court-appointed guardian for approximately 100 clients, has consistently upheld the restrictions over Dan when he or his father has asked permission for more frequent visits. The guardian, for instance, has frequently denied or failed to grant requests for visits on birthdays and holidays without that counting toward Smith’s two visits per month.
“I bear you no ill will,” Smith wrote Dan’s guardian in a January 2008 letter discussing his son’s case. “I appreciate what kindness you have been able to show toward (Dan). But you have taken my (parental) job and represent an unnecessary layer of authority in a web of fragmented accountability wherein my son is caught between DDS, program administrators, his caretakers, various clinicians, and yourself: all sworn to keep me in a state of ignorance, and helpless to disentangle (Dan).”
Smith maintains that DDS recommended this particular attorney for appointment as Dan’s guardian because the Department “knew that if challenged, he (the attorney) could be trusted to defend DDS’s interests over those of his client.”
Thomas Frain, COFAR’s president, who once represented Smith as an attorney in his fight for guardianship (prior to the probate court case), said he too doesn’t understand the effort to isolate Dan from his father and step-mother. “(Dan’s) father and step-mother love him unconditionally, and they have been kept away from him,” Frain said. “There’s no valid reason for it, as far as I know.”
Smith maintains that the state, the private provider operating his son’s group home, and his son’s current guardian have based their restrictive conditions over his son’s existence on hearsay and misrepresentations concerning incidents in his son’s life from decades ago.
An August 2007 behavior plan for Dan alleges a number of instances of inappropriate behavior by Dan at his group home, including assaults on female staff workers during the 1990s.
However, a former residential counselor in Dan’s group home stated in an affidavit at the time that in his experience, Dan had always behaved with courtesy and respect to those around him, and merely lacked social skills. Moreover, according to Smith, Dan’s most recent Individual Support Plans indicate that he has not engaged in any inappropriate sexual behaviors in the past four to five years.
In addition, Jim Smith maintains that the 2007 behavior plan contains numerous inaccuracies and untruths, in part because it is largely based on statments made by Dan himself under questioning by staff. Dan, he said, will often tell questioners what he thinks they want to hear, out of fear or in order to be agreeable.
Smith contends that at least some of Dan’s allegedly bad behavior in his group home may have been deliberately elicited by some of the staff. The affidavit of the former counselor described at least two instances in which the counselor’s supervisor baited Dan into a verbal rage, resulting in the supervisor’s orders to the staff to physically restrain him. In one of those instances, the supervisor instructed the counselor to “take him down,” meaning Dan was to be held down on the floor. The counselor stated that the supervisor then coached him to exaggerate the reasons for the use of restraints in the group home’s daily log.
In the October 1999 affidavit, the former counselor also states that he was told by his supervisor that Dan should not be encouraged to improve his behavior or even have “good days,” because “he brings a lot of money to this program.”
Smith says such deliberate provocations have since ceased, although Dan’s behavior plan itself acknowledges that the program’s restrictions on Dan’s activities carry a risk of causing him to experience “anger or anxiety.”
Smith notes that the probate court judge in the 2006 findings erroneously stated that Dan had been arrested for sexual assault in the 1990 incident in which he threatened a neighbor. In 2009, a state Appeals Court decision confirmed that the probate court judge had been in error in that finding, adding that some of the findings adopted by the judge were not supported by the evidence and that the specific facts of the incident and the charges are not clear from the record.
Smith says the Appeals Court declared that the failure by the probate judge to use personal analysis in the case did not automatically require reversal of his ruling. As a result, the Appeals Court did not return the case to the probate court for a new trial to reconsider Smith’s bid for his son’s guardianship.
In the 1990 incident, misdemeanor charges of threats, harrassment and disturbing the peace were brought against Dan. The charges were dropped after Dan was declared incompetent to stand trial and Smith got him admitted to McLean Hospital, the day after the incident.
Dan was later sent to Taunton State Hospital when Smith’s insurance ran out, and was subsquently placed in Westborough State Hospital. Smith had originally applied in 1989 for eligibility for DDS services for Dan, but the application was originally denied. Smith appealed, and DDS later approved the application, but not until Dan was committed to Westborough State Hospital, in violation of his right to the least restrictive, appropriate placement.
The Westborough State Hospital placement was acknowledged by DDS to be inappropriate, Smith says. The Department of Mental Health had earlier found that Dan did not meet its criteria for mental illness and that he was not psychotic. In a letter to Smith, DMH had even declared that Dan would be harmed if housed in a facility for persons with
severe mental illness.
That turned out to be prophetic. Dan deteriorated badly over the course of three years in Westborough State Hospital, Smith says, where he was sexually assaulted. A third guardian at the time, whom the hospital had recommended for appointment, wanted only an internal investigation of the assault, but Smith reported the incident to the Disabled Persons Protection Commission, which investigated and found the hospital negligent.
Smith says that in the course of that investigation, the DDPC checked court records and corrected the false statement by that guardian that he had been appointed because Dan’s parents had been found unfit.
Smith said he was not allowed to visit his son at Westborough State Hospital for months at a time. He managed to obtain a court order requiring the then guardian to report to the court on Dan’s treatment plan at the hospital. The guardian’s report found Dan’s treatment to be “counter-productive.”
Smith said DDS finally got Dan out of Westborough State Hospital and into the DDS-funded group home in 1993. In 2005, however, he was sent to the Templeton Developmental Center for roughly six months due to behavorial issues that were cleared up by adjustments in his medications.
Smith notes that for many years prior to Dan’s admission to Templeton, his psychopharmacologist had placed Dan on the dangerous drug, Stelazine. Smith finally managed to get a court order for an independent evaluation, which resulted in that doctor being replaced and the Stelazine discontinued. However, in the 2005 probate court trial, Dan’s current doctor testified that Dan had developed Tardive Dyskinesia, a neurological discorder characterized by rapid, involuntary bodily movements. Other anti-psychotic medications have improved Dan’s self-control, Smith says, but they have had their own adverse side-effects, including rapid, slurred speech.
In the group home, Dan’s dental hygiene was left up to him and was barely monitored, his father said; and without notice to his father, Dan was hospitalized in 2007 for a four-hour surgery to have three teeth pulled and a dozen cavities filled. Smith reported the neglect of his son’s dental care to the DPPC, but the under-funded agency still hadn’t filed a report on the matter as of the current date.
The staffing and conditions in the group home have improved in recent years, Smith says. He contends, though, that because he has lacked guardianship rights, it has always been difficult for him to get information about the care being provided to his son. The 2006 probate court ruling, in fact, specifically forbids Smith from directly contacting any doctor, service provider, or clinician for specifics about his son’s care or treatment. As a result, he said, he has found it impossible to get information about Dan’s prognosis under his current medication.
Smith says he has never understood the reason for the state’s decision to keep him in the dark about his son’s care, except that it has apparently served to insulate his son’s care givers from constructive criticism. Not only would more frequent visits to his son have allowed him to observe his son’s condition and state of mind directly, they would have benefitted his son’s mental state, he says.
“With almost every phone call to me,” Smith stated in his 2008 letter to his son’s guardian, “(Dan)’s first words are, ‘When can I see you again?'” For years, Smith says, Dan has also pleaded in almost every conversation with him for a visit home, which he has not had since Thanksgiving 1996, even escorted, as he always is in frequent community outings elsewhere.
The former residential counselor’s affidavit appears to corroborate Smith’s assessment about the benefit of his visits to his son. “(Dan)’s spirits were clearly buoyed preceding visits by his father and step-mother…and he was very cautious about violating any house rules, which could possibly interfere with these visits,” the affidavit stated.
Nevertheless, there is continuing evidence that Dan’s current guardian, in particular, has acted to restrict his father’s and step-mother’s visits in the group residence as much as possible.
In an August 26, 2010 email, the guardian told Smith he could have an “extra” visit with his son on Smith’s 75th birthday only on the condition that he tell Dan that he would never be allowed to visit his hometown again, even though Dan would be escorted as he is on regular outings in other communities. Smith wrote back, saying it was “cruel and counter-productive by any humane or therapeutic standard” to make his birthday visit to Dan contingent on “dashing his fondest hope…that he will someday meet whatever conditions would allow him a visit home.” He said he could never in conscience say such a thing to his son. As a result, the visit was denied.
Last month, the guardian failed to approve the request by Dan that his father and stepmother be allowed to attend the Christmas party at Dan’s day program. Smith said his son had overcome his fear of asking and had taken it upon himself to call the guardian on November 30 to ask whether his father and step-mother could attend the Christmas party, scheduled for December 9, without it counting as one of their two visits in December. Smith said the guardian told his son he would “think about it,” but never got back to his son with an answer.
Two days before the Christmas party, Smith himself emailed the guardian, employing what he acknowledges was a bitter tone in his message. “Your failure to respond to him (Dan) or us, especially at this holiday season, is unconscionable and deeply resented,” Smith wrote. “The idea that you would actually foster our marginalization, alienation and resentment has become inescapable.” Smith never received a response.
Again, in January, Dan requested permission to attend two different gatherings with longstanding friends of his and the family. In the first instance, the guardian promised he would consider and get back to Dan. He never did, even though Dan’s program had prepared to bring him to the event. Dan was invited to a similar gathering on January 30, and, with staff encouragement, left several voicemail messages for the guardian requesting permission to attend. Dan’s calls were never returned, Smith says.
