Mary Bush lives 20 minutes away from her 86-year-old mother in West Chester, Pa., but she’s not allowed to visit. In fact, Ms. Bush hasn’t seen her mother, Genevieve Bush, in 16 months because she was restricted from setting foot inside the Park Lane nursing home where the elderly Ms. Bush resides.
“I showed up on Jan. 27 to visit my mom and was told to leave by the administrator,” Ms. Bush told PacerMonitor. “When I called the police to report the visitation ban, I was assaulted by the officer.” Ms. Bush blames her mother’s court-appointed guardian Carol Hershey, who reportedly sent a letter stating Ms. Bush could no longer visit.
In most states, it is not uncommon for the elderly to lose their individual rights around residence, visitation, medical care, assets and property once they become a ward of the state under a court-ordered guardianship.
The younger Ms. Bush filed Bush v. Goodall on March 28, 2017, in the Eastern District of Pennsylvania after state court dismissed Ms. Bush’s petitions on two occasions.
“There’s no legal remedy in our state courts,” said Ms. Bush in a phone interview. “I want to stop Park Lane’s violations of mother’s resident rights, her rights under the nursing home reform act and my constitutional rights of association and communication with my mom.”
Ms. Bush is among a rising number of adult children of elderly parents confined to nursing homes who are seeking relief in federal court from state guardianship-related proceedings.
According to an Americans Against Abusive Probate Guardianship (AAAPG) study, some 90% of families report that the judge in their guardianship proceedings did not act in the best interest of the elderly, 80% suspected the judge was improperly influenced and 70% felt the retirement home did not act in their parent’s best interests.
“Wherever possible, we advise family members who feel their aging relative is caught up in a fraudulent guardianships in the lower probate court to immediately file in federal court,” said Rick Black, an advocate with the AAAPG. “The qualifications of federal judges far exceed anything that a clerk, commissioner, magistrate or district judge would have in terms of training.”
In Peterson et al v Silverado Senior Living, Ruby Peterson died at 94 years old while residing at Silverado Senior Living in 2015 in Houston. Ms. Peterson’s three sons Lonny, Don and Mack filed a wrongful death suit in the U.S. Southern District of Texas Houston Division on Jan. 9, 2017.
“Ruby wanted out of Silverado, but her other children David and Carol Ann insisted that she stay there so Ruby issued new notarized documents appointing her sons as co-guardians but Silverado Senior Living nursing home and the state probate judge refused to act on it,” said Donald Cheatham, an attorney in Houston who represents the Peterson brothers.
Peterson et al v Silverado Senior Living is set for discovery after a pretrial hearing on May 19.
There are however obstacles that typically prevent guardianship related cases from being adjudicated in a federal court.
“Rooker-Feldman says a party who has lost in state court cannot bring the suit in federal court to appeal an unfavorable ruling,” said Bob Grundstein, a constitutional law attorney in Vermont.
Currently under submission in the Eleventh Circuit U.S. Court of Appeals in Georgia, Woodhull v. Mascarella challenges Rooker-Feldman while appealing rulings issued by Florida’s 5th District Court of Appeals in the matter of Louise A. Falvo who died, at 91 years old, three months after she was placed at the Parklands Care Center nursing home in Gainesville, Fla. by court appointed guardian Rebecca Fierle.
“The judge at the lower court approved my receiving $275,000 of inheritance money and the appellate court supported this but when the case came back to the lower court from the appellate court, the judge said that although the money belonged to me, he would not allow me to have it because I fought the court-appointed guardianship over my mother,” said the deceased Ms. Falvo’s daughter Angela Woodhull who filed the federal appeal.
In Rooker v. Fidelity Trust Co., 263 U.S. 413 (U.S. 1923) and D.C. Court of Appeals v. Feldman, 460 U.S. 462 (U.S. 1983), the United States Supreme Court held that the power to hear appeals from state court judgments is exclusively held by the United States Supreme Court and that federal district courts do not have jurisdiction to hear challenges to certain state-court decisions.
Woodhull argues in her brief that the invocation of Rooker-Feldman violates Article III, Section 2 and Article II, Section 8 of the U.S. Constitution.
“Only Congress has the authority to determine federal district court subject-matter jurisdiction,” Ms. Woodhull told PacerMonitor News in a phone interview.
Section 2 of the Constitution’s Article III states that the judicial power shall extend to all cases, in law and equity, arising under the Constitution and Section 8 of Article II gives Congress the power to constitute tribunals inferior to the Supreme Court.
Another stumbling block is the application of the abstention doctrine in which a court of law may, and in some cases, must refuse to hear a case if it potentially intrudes upon the powers of another court.
“The abstention doctrine is practiced by federal courts to insist certain matters are tried in state courts,” Mr. Grundstein told PacerMonitor News in a phone interview. “The probate exception is one of the abstention criteria.”
Whether a case that emerges out of state court will be successful in federal court ultimately depends on the circumstances under which it is filed.
“The difficulty with the federal system is that they are courts of limited jurisdiction,” Mr. Cheatham told PacerMonitor News in a face to face interview. “The subject matter jurisdiction I believe attaches to probate guardianship cases because of RICO.”
In referencing the Racketeer Influenced and Corrupt Organizations Act of 1970 (RICO), Cheatham implies that the involuntary redistribution of assets that occurs with a defrauded enterprise can also happen to an elderly person in probate court.
“What the few guardianship-related cases that have been elevated to a federal level really have been about is the potential to file racketeering or RICO charges because there’s often multiple parties who all work together in a probate guardianship effort within a state,” said Mr. Black in a phone interview.
For her part, Ms. Bush continues the fight in federal court to see her mother. On May 4, she filed a motion for default judgment because Parklane has yet to file a response. If the motion is granted by the court, Ms. Bush will finally be able to visit her mother without being charged with trespassing.