(Cross-posted from The COFAR Blog)
In a Middlesex County Probate Court hearing last Monday (October 26), Andy McDonald, an intellectually disabled man, finally got the opportunity to tell a judge his long-sought wish — that he be allowed to visit his aging parents in their Sherborn home.
As we have reported, Andy, who is 48 and lives in a group home in Westborough, has been denied permission since 1996 to visit his parents. Andy’s father, Stan, is now 80. In a ruling in 2006, former Probate Judge Edward Rockett concluded that Andy was sexually dangerous and should never be allowed to return to his childhood home.
Not only were Andy’s parents never to discuss with Andy the prospect of his ever visiting his home, but Rockett ruled that Stan must personally tell his son, in the presence of clinicians, that he would never be allowed to go home again. McDonald said he has refused to say something like that to Andy.
I will discuss Rockett’s ruling more fully below. We have noted previously that a key claim made in the ruling — that Andy was arrested in 1990 for sexually assaulting three young girls — is untrue. Andy has never been charged with a sexual offense.
Yet Rockett’s decision, and the claim in it that Andy was arrested for sexual assault, is the basis for the Department of Developmental Services’ longstanding position that Andy should never be allowed to return to Sherborn, and that the matter of visits there should never be discussed with him.
We think it is important to expose what we see are misstatements and a lack of a factual basis in Judge Rockett’s ruling. Rockett decision, and an appeals court ruling upholding it, were repeatedly cited during a break in the court hearing last week by a DDS attorney as reasons to oppose ever lifting the ban on home visits.
Stan was even told he would be in contempt of court if he mentioned to the judge his own wish that Andy be allowed supervised visits home. As it turned out however, it was Andy himself who brought up the subject of home visits before the judge.
Beyond that, there is a larger reason for examining Rockett’s decision, we think. Someday, Andy will be on his own; and if the conclusions in Rockett’s decision are never challenged, he may be locked up somewhere for good. One attorney contacted by Stan about his case termed Rockett’s decision “devastating.”
It therefore seemed somewhat extraordinary that there were no objections last week when Andy asked to speak to Middlesex Probate Judge Megan Christopher during the October 26 hearing. When Christopher assented to his request to speak, Andy politely asked that he be granted a supervised visit home “for a couple of hours.”
Judge Christopher didn’t flatly deny Andy’s request, but said she would schedule a new trial date in which that issue may be considered. She told Andy that what he wanted “was complicated and required more looking into.” She pointed out that “it’s not always possible to have everything you want. You understand that,” she added.
The October 26 probate hearing was held to consider the appointment of attorney Marie Dunn as Andy’s new guardian, replacing Dennis Yeaw, an attorney who had opposed home visits for Andy, also citing Rockett’s decision. In 1986, Stan and his former wife agreed to the appointment of a guardian for Andy as part of the settlement of a longstanding custody battle over him. Stan has been unsuccessful since that time in regaining his guardianship, even though his former wife, local legislators, and other supporters have publicly expressed support for that.
Andy was arrested in Sherborn in May of 1990 for threatening an unidentified person during a telephone call, according to the district court record. The nature of the threats was not disclosed. In July of that year, he was charged with disturbing the peace in downtown Sherborn, according to a police department report. In that incident, he allegedly followed a young woman and threatened to kill her father. That same day, he was charged with assault after he punched Ellen, his stepmother. Stan and Ellen say the punch was accidental.
Andy has not exhibited any significant behavioral problems in close to a decade and has been taken on community outings to many places other than his home without any behavioral incidents, according to Stan and to his yearly clinical care plans. He is described in his latest clinical care plan as “kind and friendly to others,” and as “a polite man.”
According to the plan, Andy enjoys going to the library, going out to dinner, and seeing his father’s jazz band play. He regularly goes into the community to shop for program supplies and volunteers at Meals on Wheels.
Yet, Andy has in the past told clinicians that he has had sexual fantasies about children; and that, combined with the mistaken claim that he was arrested for sexual offenses in Sherborn in 1990, led to Rockett’s lifetime ban on him from visits home. Stan maintains that the ban on visits has caused Andy emotional harm. His latest clinical care plan states that Andy’s rapid speech and eating habits are related to anxiety, although the plan attributes that anxiety to a fear of death and bees.
Rockett’s decision appears to take a selective view of the history of the case.
In his ruling banning Andy from Sherborn for life, Rockett concluded that Stan “should never be considered for appointment as guardian of his son,” and that Stan “lacks common sense and has poor judgment skills.” Rockett stated that Stan and other family members, who he didn’t name, “wish to usurp the authority over the program and introduce their own ideas for clinical treatment for Andrew…”
Rockett further banned Stan from ever directly contacting any doctor, clinician, or service provider providing care to Andy.
Rockett’s decision, however, said nothing about Stan’s long-time personal advocacy on behalf of Andy, in particular his successful fight to discontinue the use on Andy of Stelazine, an anti-psychotic drug, which appears to have caused Andy’s disruptive behaviors prior to 2006. Rockett also did not mention the fact that clinicians had misdiagnosed Andy in the early 1990’s as mentally ill when, in fact, he is intellectually disabled, and that, as a result, Andy was inappropriately placed in Westborough State Hospital, a facility in which he was first put on Stelazine.
The Stelazine caused Andy to develop Tardive Dyskinesia, a disorder resulting in involuntary, repetitive body movements. Because the court-appointed guardians did little or nothing to address that problem, Stan said he personally got a court order and paid for an independent evaluation of Andy’s medications. This resulted in discontinuing the Stelazine and replacement of the prescribing doctor.
Among those who have written DDS in support of Stan’s bid for guardianship since that time has been State Representative David Linsky, who earlier this year was joined by State Senator Richard Ross in calling for a new, independent clinical evaluation of Andy.
John Carroll, a former residential counselor to Andy at the Cardinal Cushing School, wrote to DDS in 2013 to say that he had frequently observed visits to Andy by Stan and Ellen, and that “Stanley’s and Ellen’s dedication to Andy’s care and treatment in all circumstances leaves no question in my mind that Stanley McDonald is the sole individual with the knowledge, experience, and love, deserving to have responsibility for major decisions in Andy’s life as guardian.”
But Rockett didn’t see it that way. In his 2006 decision, Rockett accused Stan of failing to cooperate with Andy’s court-appointed guardians and with clinicians, and stated that Stan failed to “recognize the seriousness of Andrew’s fantasies.” He also implied in his decision that Stan had a drinking problem. He offered no evidence for that, however.
Failure to specify prohibited materials
In support of the former accusation regarding the seriousness of Andy’s fantasies, Rockett stated that “Andrew uses pictures of children as sexual stimulants,” and that Stan had provided Andy on a number of occasions with “prohibited materials.” But Rockett did not state what those prohibited materials were.
According to Stan and Ellen, the prohibited materials consisted of the following items: A piece of beach glass (which Westborough State Hospital considered dangerous), a sparkler that was lit on a birthday cake, a drawing of a baby from a Family Circus cartoon, and a photo of Andy’s niece and nephew. Ellen said a poster-sized version of the photo of Andy’s niece and nephew had been on the wall in his room in his group home with the staff’s full knowledge. “The poster seemed to us to indicate explicit authorization for Andy to have pictures of his niece and nephew,” Ellen said. “Stan did not show or give anything to Andy believing Andy would use them for any inappropriate purpose.”
Regarding the drinking issue, Rockett wrote that “Andrew has stated that his father’s drinking bothered him.” Rockett offered no further explanation of that claim, other than two follow-up statements concerning Stan’s visits to his son. One statement was that “Mr. Burch (the clinical director of Andy’s group home) had instructed Stanley McDonald not to drink during the visits.” The next line stated: “They (Stan, Andy, and Burch) went to a restaurant and Stanley McDonald immediately ordered wine. Andrew became very agitated and went to the restroom, where Mr. Burch had to quiet him down.”
In our view Rockett’s statements imply, without actually stating it, that Stan brought alcohol to Andy’s group home, and that Andy was bothered because Stan must have been drinking excessively during the visits. In fact, here is Stan’s wife, Ellen’s, explanation of the drinking issue:
Stan has never brought alcohol to Andy’s (group home) program. Andy does not like to be around Stan when he is drinking. Andy worries about the effects on Stan of alcohol and tobacco. He doesn’t want Stan to drink or smoke. He is very influenced by ads he sees on TV about the danger of drinking and driving. After that incident where Stan ordered a glass of wine in a restaurant he never again ordered an alcoholic beverage in Andy’s presence – until once very recently, when Andy didn’t express any objection. Stan does drink at Primavera (in Millis) while he is playing (in his Blue Horizon Jazz Band), and nobody has raised this as an issue – neither Andy nor staff who accompany him. Andy loves to be at Primavera when Stan is playing. He goes from table to table and talks with all of the guests and band members. Many have known him since he was a child. Nineteen years ago when Andy last visited at home Stan did not have a drink while Andy was there. Stan honors Andy’s wish and orders iced tea when we go out to supper. Stan smokes in Andy’s presence but tries to minimize it. It’s a tough habit for him to give up.
No support for statements about alleged dangerousness
Rockett’s decision also included a lengthy discussion of Andy’s alleged sexual dangerousness, starting with the mistaken claim discussed above that Andy was arrested in 1990 for sexual assault. Rockett referred three times to the arrest, and, in one instance, stated that Andy had “stalked the three neighborhood children.” As noted, there is no evidence in police or court records that anyone was sexually assaulted in those incidents, that any young children were involved, or that Andy stalked anyone.
(Even the appeals court, which upheld Rockett’s decision in 2009, stated in a footnote that “some of the fact findings adopted by the judge (Rockett) were not supported by the evidence…” The appeals court footnote specifically stated with regard to Rockett’s claims about the arrest for sexual assault and stalking three girls, “the specific facts (of the incidents in Sherborn) and the charges are not clear from the record.”)
Rockett also claimed in his decision that Andy had confessed to having “bizarre sexual fantasies” about children; yet Rockett noted that Andy “will always say what people want to hear.”
In addition, Rockett included what appears to be an unsupported and inflammatory statement by Burch that Andy was “the most dangerous person he has ever treated.”
But there is no evidence cited or presented in Rockett’s decision that Andy ever sexually assaulted anyone. Rockett stated, for instance, that in the 1990’s, when he was first admitted to his group home, Andy “attempted to attack female staff” in both his residential and day programs. But Rockett provided no details about those alleged attempted assaults.
Rockett’s decision also included two accounts about Andy’s alleged fantasies and about Andy engaging in masturbation; but while the accounts were graphic, nothing that Rockett described could be said to constitute crimes or prove that Andy was dangerous.
Ellen and Stan maintained that at least some of the statements given by clinicians regarding Andy’s alleged sexual fantasies may have stemmed from statements Andy made while participating in a group therapy program in the 1990’s in Andy’s group home, which is run by Community Resources for Justice. Participants were reportedly encouraged to discuss their sexual fantasies in the sessions.
“As I recall we were told at least some of the group members had actually offended,” Ellen said. “We weren’t told details of these sessions.”
Marie Dunn, the new guardian appointed last week for Andy, was not present at the October 26 court hearing. But both Andy’s court-appointed attorney and the DDS attorney encouraged Stan and Ellen to meet with Dunn. Stan is hopeful that Dunn will agree to a new, independent evaluation of Andy, and that she will support supervised home visits for him.
We hope things will finally move in a positive direction for Stan, Ellen, and Andy. We think it was a good sign that Judge Christopher allowed Andy to state his wish in open court to visit home. We also think it is a positive thing that Andy finally has a new guardian.
We strongly support at least a co-guardianship for Stan; and we hope the day comes soon when Andy can have supervised visits home once again, and that common sense will finally prevail in this case.