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New Yorker article on guardianship abuses has familiar ring

November 8, 2017 Leave a comment

An article last month in The New Yorker magazine on abuses in the guardianship system in Nevada is beyond disturbing, and its findings echo many of the concerns we have raised about the dysfunction of the Department of Developmental Services and probate court systems in Massachusetts.

The New Yorker article is primarily about abuses by guardians of the elderly, and it gets into an issue we haven’t fully explored, which is the financial exploitation of people who are represented by professional guardians. But we think many of the article’s points are relevant to the system involving DDS-paid guardians in Massachusetts.

As we have seen in several cases in Massachusetts, the DDS-probate guardianship system has trampled over the rights of family members of developmentally disabled persons, including sharply limiting or even eliminating their right in some cases to contact or visit their loved ones. That is also apparently a feature of the system described in the New Yorker piece.

As is the case in Massachusetts, the primary problems with the system exposed by the New Yorker article appear to lie with abuses by attorneys or other professionals who are appointed as guardians of incapacitated individuals. In many of these cases, family members, who would be better suited to be the guardians, are passed over by the courts and excluded from consideration for that role.

The article and previous reporting by The Las Vegas Review-Journal disclose how two professional guardians named April Parks and Jared Shafer used the probate system in Nevada to become court-appointed guardians of hundreds of people who were mostly elderly, and then took control of their bank accounts, estates,and property.

It isn’t clear whether that type of financial abuse has happened to developmentally disabled persons in Massachusetts, but there appears to be a potential for it. In 2008, an investigative article in The Boston Globe found that some 900 DDS clients in Massachusetts received little or no benefit from trust funds containing some $30 million.

Instead, the money was largely siphoned out of the accounts to pay bank management charges, legal bills, and fees charged by the Massachusetts Probate and Family Court system, “which has long neglected its obligation to ensure the funds are expended for the benefit of some of the state’s most helpless citizens.”

In July, COFAR reported that the state’s system of paying attorneys and corporate providers to serve as guardians of DDS clients is poorly overseen and that the system appears to give professional guardians an incentive to do little work representing individual clients while taking on as many clients as possible.

Families have also been victimized financially by the Massachusetts system. As one family member of a DDS client in Massachusetts described the attitude of the various guardians and clinical and court professionals that she dealt with in the DDS-probate system, “it was just a given that our checkbook was theirs.”

The New Yorker reported that without their families even knowing it, in many instances,  elderly people were removed from their homes by Parks and Shafer who then sold their property and pocketed the money. Parks was indicted last spring on theft and other charges after the local media finally ran stories on the issue.

The New Yorker article further stated that when family members tried to contest the guardianships or become guardians themselves, “they were dismissed as unsuitable, and disparaged in court records as being neglectful, or as drug addicts, gamblers, and exploiters.”  That sounds familiar to us because it is what we’ve seen in a number of cases in Massachusetts.

Another revelation in the article that sounded familiar to us was that the professional guardians often would not inform families about the care and conditions of their loved ones, and often prevented family members from being able to visit them. The director of an assisted-living facility into which many of the wards were placed, is quoted as saying that families were “devastated that they couldn’t know if the residents were in surgery or hear anything about their health. They didn’t understand why they’d been taken out of the picture. They’d ask, ‘Can you just tell me if she’s alive?’ ”

In one case, an elderly couple was moved with little notice by April Parks to a new assisted-living facility. When their daughter tried to visit them there, Parks refused to let her see her parents. According to the article, Parks later wrote that she had told the woman that “she was too distraught to see her parents, and that she needed to leave.” When the woman refused to leave the facility, Parks had the police called who then cited the woman for trespassing.

This sounds very similar to the reasoning given for keeping David and Ashley Barr from visiting David’s daughter, a developmentally disabled woman who has been ordered kept from their contact by a DDS-paid guardian since November 2015. The Barrs were supposedly too emotional when visiting her even though they said the reason they were emotional was because they often found her to be in a heavily drugged state during the visits.

Another family was prevented from talking to their daughter on the phone for a similar reason.

Another revelation in the New Yorker article that had a familiar ring was a description of the longstanding inaction of investigative authorities when presented with evidence of abuses in the guardianship system.

As we’ve said many times, a first step in reforming the DDS-probate system in Massachusetts would be for the Legislature to enact H.887,  a bill which would establish a presumption that parents of a developmentally disabled person are suitable guardians for that person.

The bill would thus make it harder for parents to be bypassed by probate judges who tend to side with DDS, which often favors the appointment of professional guardians in the place of families.

H.887, however, has been stuck in the Judiciary Committee since last January despite the fact that there appears to be no public opposition to the measure. It has been re-filed by Representative David Linsky in every Legislative session since 1999, but has never gotten out of the Judiciary Committee to our knowledge.

We’re hoping, as usual, that this year will be different. But despite a supportive statement last spring from Representative Claire Cronin, House chair of the Committee, that the bill was her “top priority,” the measure hasn’t moved forward in the current legislative session.

It’s time for the Judiciary Committee to finally act on H.887.  The numbers to call there are:

(617) 722-2396 for the office of Rep. Cronin, House chair; and/or

(617) 722-1280 for the office of Senator William Brownsberger, Senate chair.

As noted, this bill is only a first step. We are continuing to urge others in the Legislature as well to step forward to address the underlying systemic problems in the DDS and probate court systems.

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State’s system of paying guardians and attorneys for the developmentally disabled appears secretive and poorly overseen

State payments to attorneys and corporate providers to serve as guardians of developmentally disabled clients are rising rapidly, yet the payment system appears to be secretive and subject to spotty oversight.

An investigation by COFAR shows the system in Massachusetts and regulations that support it also appear to give professional guardians an incentive to do little work representing individual clients while taking on as many clients as possible.

In addition, the fact that professional guardians are paid by the Department of Developmental Services appears to interfere with their legal obligation to act in the best interest of their disabled clients. We have found in a number of cases that both professional guardians and attorneys appointed to provide legal representation to disabled clients have sided with DDS when family members have gotten into disputes with DDS over the care of those clients.

In one case on which we have reported, a developmentally disabled woman’s state-appointed attorney has sided with a DDS-paid guardian in not allowing any family visitation of the woman for an indefinite period of time. In that case, David Barr, the father of the woman, and Ashley Barr, the woman’s sister, have been banned from all contact with her, and even from knowing her whereabouts, for more than a year and a half.

We believe this and similar cases raise questions whether DDS-paid guardians and state-paid attorneys consistently act in the best interests of their clients.

COFAR examined probate court documents and payment data involving attorneys and corporate entities paid by DDS to provide guardianship services to persons in which family members are not available or have been removed as guardians.

COFAR has also sought information on the payment of attorneys who are hired under the probate system to provide legal representation to incapacitated persons. In those cases, the court approves attorneys as counsel, and the attorneys are paid by a state agency called the Committee for Public Counsel Services (CPCS).  As noted below, the CPCS did not respond to COFAR’s request for that information.

The following chart shows the top-paid DDS guardians in Fiscal Years 2013 and 2016:

 

Top ten DDS guardians chart

COFAR considers becoming a guardian to be a critically important step for family members when loved ones with intellectual and incapacitating developmental disabilities reach the age of 18. After an individual reaches that age, only that person or a guardian acting on their behalf has legal standing to make decisions about their care in the DDS system.

Anyone wishing to become a guardian of a developmentally disabled or otherwise incapacitated person must apply to the probate court to do so. When DDS wishes to pay an attorney to serve as a professional guardian of an individual, it recommends to the court that the attorney be appointed as the guardian.

Under probate law, there are no specific qualifications required of professional guardians such as expertise in mental health issues.

Information about professional guardians and attorneys difficult to obtain

Information about what professional guardians and attorneys do for the clients they are paid to represent in the probate system can be difficult or prohibitively expensive to obtain from DDS and particularly from the CPCS.

Because the CPCS is technically a part of the judicial branch of government, it is not subject to the state Public Records law, according to an attorney we consulted with the state’s Public Records Division.  The CPCS would not provide COFAR with any information about the attorneys they employ or the amounts paid to them.

DDS did provide us with a list of guardians it employs and payments made to them, in response to a Public Records request (see chart above showing the top 10 highest paid guardians in Fiscal 2013 and 2016). However, the Department said it would have to pull records from “multiple offices” in order to determine what those guardians do for their payments and how many clients they represent.  That information would cost us $3,000, a department attorney wrote.

The DDS payment data also raised a number of questions that the Department did not answer.  For instance, there was no guardian listed as the recipient of payments totaling $30,295 on the DDS list in Fiscal 2016. DDS stated that it had no records indicating who those payments may have gone to. (See payment chart above with “???” notation.)

DDS’s response indicates that the department does not have a centralized accounting system to keep track of invoices submitted by guardians for payment. (It appears that this money comes from the clients’ individual Medicaid accounts, but is paid through DDS.)

Independent guardianship office proposed to address accountability issues

In one apparent effort to address at least some of the accountability issues with the current system, a bill in the Legislature (H. 3027) would establish an independent agency called a  “Public Guardian,” which would have centralized authority over the hiring and payment of guardians in cases in which family members are not available to serve as guardians of incapacitated people. Under the bill, the Public Guardian would take over the responsibility from agencies such as DDS of recommending and paying guardians.

While COFAR supports the concept of an independent public guardian, we are concerned that H. 3027 specifies that the public guardian would not actually be a public agency, but rather would be a nonprofit agency.  We believe the public guardian should be a public agency, which would be subject to the state Public Records Law and other legal requirements that apply to public agencies.

COFAR also strongly supports a second reform measure (H. 887), which would boost the rights of families in the DDS/probate system.  The bill would require probate court judges to presume that the parents of incapacitated persons are the suitable guardians for those persons. The measure, however, has never gotten out of the Judiciary Committee.

Payments to guardians on the rise

The list provided by DDS of guardians it employs shows that the department’s total payments to guardians increased between Fiscal 2013 and 2016 from $602,474 to $800,476 – a 33% hike.  The number of paid guardians rose from 68 to 80.

The highest-paid guardian was actually a corporate provider – The Arc of Bristol Country — whose total payments rose from $129,000 to $167,000 from Fiscal 2013 to 2016,  a 29% increase.  The payments to the Arc constituted more than 20%,  or one fifth, of the total payments to all guardians in Fiscal 2016.

The second highest-paid guardian in both years was Victor Sloan,  an attorney in Uxbridge. His payments from DDS rose from $43,150 in Fiscal 2013 to $53,288 in Fiscal 2016. Sloan’s website lists him a practicing attorney who does criminal defense cases and estate planning in addition to guardianships.

In email messages to Sloan and Michael Andrade, the CEO of the Arc of Bristol County, COFAR asked how many developmentally disabled clients they represented as guardians and how often they were able to visit those clients. In the case of the Arc, we asked how large their staff of guardians was and whether there was a maximum number of persons for whom each member of their staff was allowed to provide services.

Neither Sloan nor Andrade responded to our email or to a follow-up message left with each of them.

The DDS records show that payments to some guardians actually dropped between Fiscal 2013 and 2016, implying that they had lost wards.  However, other guardians saw large increases in their payments, which sometimes doubled or even tripled or more in that period.  For instance, payments to a Patrick Murray rose from $3,025 to $15,860 from  2013 to 2016 – a 424% increase.

In the Barr case (noted above), payments to the guardian, Dorothy Wallace, rose from $13,000 in Fiscal 2013 to $20,100 in Fiscal 2016 — a 55% increase.

The system appears to reward professional guardians with multiple clients

State regulations governing payments to guardians cap payments per client at $50 per hour, and cap the number of hours that guardians can spend serving individual clients at 24 hours per client per year [130 CMR 520.026 (E)(3)(d)]. Yet, the regulations do not appear to limit the number of clients an individual guardian can represent.

While the regulatory caps would appear to be intended to limit the amount of funding that professional guardians can receive per client, they also appear to provide an incentive to guardians to increase the number of clients they provide services to.

Based on those regulatory caps, we have calculated that Sloan was paid for providing guardianship services to at least 44 clients in Fiscal 2016.  The Arc of Bristol County would have had at least 139 clients in that year.  When guardians represent large numbers of clients, the ability of those guardians to act in their clients’ interest would appear to decline.

Moreover, the guardianships for which DDS has paid Sloan appear to be only a portion of the probate-court-related work that Sloan does.

Court records show that Sloan has been involved as a guardian, guardian ad litem, attorney, or as a “Rogers Monitor” for incapacitated persons in 118 cases in four separate counties between a seven-year period from Fiscal 2009 to 2015.  That includes 14 persons for whom he was appointed as a Rogers Monitor, 75 persons for whom he was appointed as an attorney, 19 cases in which he was appointed as a guardian ad litem, and six cases in which he was appointed as a guardian.

Those six cases in which Sloan was appointed as a guardian appear to be in addition to our estimated 44 cases in which Sloan has been paid by DDS to be a guardian.

An annual client care plan filed in Worcester Probate and Family Court by Sloan does appear to raise questions about the amount of time Sloan spent representing a DDS client from May 2016 to May 2017.

Sloan described the client in the care plan as mildly developmentally disabled and as residing in a group home.  Asked on the form to describe the “nature and frequency” of his visits with the client and his caregivers, Sloan stated only that he visited the client and his care givers “at least regularly, and have regular phone and email contact with his residential and day program staff.”

However, stating that he had visited his client “at least regularly” does not either specify the frequency of the visits nor describe their nature.

Sloan’s care plan report contained no critical remarks about the client’s care. He stated that the man’s needs “are being met in his current residential placement,” and that he was attending “an appropriate day program.”

DDS appears to have no centralized accounting system for paid guardians

In a May 10 Public Records law request, we asked DDS for information on the number of clients each paid guardian in its system had and the number of hours the guardians spent with their clients.  In a response later that month, a DDS assistant general counsel stated that providing information on the number of clients and hours spent by guardians would require DDS to collect invoices from “multiple DDS offices,” which would take at least 30 hours of “search and collection time” for each of four regional offices. At a cost of $25 per hour, that would cost us at least $3,000, the assistant general counsel’s letter said.

In a subsequent letter sent to us in June, the assistant general counsel stated that it would take an estimated 14 hours of staff time to identify the invoices submitted in Fiscal 2016 from just one guardianship entity — the Arc of Bristol County.

The apparent difficulty that DDS has in locating invoices for payment from guardians in its system raises questions about the adequacy of its internal financial controls, in our view. The DDS central office does not even keep a record of the number of clients each of its guardians represents, according to the assistant general counsel’s May letter.

PriceWaterhouseCoopers notes the importance of centralized, or at least standardized internal controls in large nonprofit institutions such as colleges and universities. We believe a large public agency such as DDS should also have a centralized internal control system, and DDS may lack that with regard to the guardians it employs.

No response from the CPCS

On May 10, we also filed a request with the Committee for Public Counsel Services (CPCS) for a list of attorneys who are selected for appointment to represent clients of the DDS who are subject to guardianship, from Fiscal Year 2013 to the present.

As part of our information request, we asked for a list of the total annual payments made the attorneys from Fiscal 2013 to the present, and the total hours spent each year by those attorneys representing and visiting their clients.

We did not receive a response from the CPCS to our information request. We contacted the state Supervisor of Public Records with regard to the matter and were told that the CPCS is considered to be a part of the judicial branch of state government, which is not subject to the Public Records law.

DDS/Probate system needs reform

As noted, we see a potential conflict of interest in allowing DDS to recommend and pay guardians to represent people in the agency’s care.  Along those lines, we are concerned that DDS has in a number of cases recommended attorneys, corporate providers, and other unrelated parties as guardians of individuals over the objections of family members of the individuals.

Also, in light of the increasing amounts paid to guardians by DDS, we are concerned that there is a potential for inadequate representation when paid guardians have large numbers of clients. Yet the payment system for guardians, in particular, appears to encourage those professional guardians to take on more and more clients.

We are also concerned that the system encourages DDS-paid guardians and CPCS attorneys to side together against the interests and wishes of families and individuals caught up in that system.

We think reform of the DDS/probate system is sorely needed, particularly with regard to payment of guardians and other financial practices. Those reforms should make the system more responsive to families, more transparent, and more accountable.

A public guardian may be the answer to many of these issues and problems, but, as noted, we think the public guardian should be just that — public. In the meantime, we urge the Judiciary Committee to finally vote to approve H. 887, which would boost the rights of families in the system by requiring probate judges to presume parents to be suitable guardians.

We will look further into these issues as we advocate for reform of the DDS/probate system.

 

Isolation of developmentally disabled woman continues after more than a year and a half

July 5, 2017 2 comments

It has been a year and seven months since David Barr and his daughter, Ashley, were last informed by the Department of Developmental Services of the whereabouts of David’s other daughter, a young woman with a developmental disability and mental illness.

The 29-year-old woman, whose name is being withheld for privacy reasons, is being kept in an undisclosed residence. All contact with her by her father and sister was cut off for unclear reasons by a DDS-paid guardian in November of 2015.

Although Dorothy Wallace, the DDS guardian, said in August 2015 that her goal was to allow the woman to have family contact, it still hasn’t happened for reasons that have never been revealed to David or Ashley. For unknown reasons, the only family member who has been allowed to visit the woman is an aunt who has apparently agreed not to reveal the woman’s location to the woman’s father or sister.

In an email last week, Ashley Barr told COFAR that her father has personally filed in the Essex County Probate and Family Court to intervene in the case and to seek permission to visit his daughter. But to date, he has not heard from the court.

The probate court has not issued any orders barring visitation with the woman. The denial of virtually all family contact appears to be a decision of the woman’s guardian and possibly DDS.

The Barrs have been unable to afford the cost of hiring a lawyer to pursue their case in probate court. As we have reported in another case, it is extremely difficult to prevail in any probate court proceeding in Massachusetts if you are not a legal guardian or appear without a lawyer.

David and Ashley have contacted their local state legislators, but have gotten little or no help from them. COFAR has attempted to intervene with mainstream media outlets and the legislators in support of visitation for David and Ashley, also to no avail.

Ashley and David Barr

David and Ashley Barr

As we reported in January,  the Boston-based Disability Law Center temporarily intervened in the case that month to ask a state-appointed attorney who is representing the woman to support family visits if the woman wished that. However, nothing apparently resulted from that effort.

The attorney, Melissa Coury Cote, told COFAR in March that she would not support court permission for visits to the woman by David or Ashley Barr, despite the DLC’s request.  She provided no reason to us for opposing family visits other than to say that the woman had not specifically asked her to allow visits from her father and sister.

However, Ashley Barr said that her sister recently called her father on two occasions and said she missed her family and wanted to see them. The calls were apparently unauthorized. Ashley and David don’t know whose phone the woman used to contact them. They are concerned the woman may have gotten in trouble for making the calls.

Coury Cote had previously been appointed by the state Committee for Public Counsel Services (CPCS) to represent the woman on guardianship matters.  Under state probate law, incapacitated adults are entitled to free legal representation although their family members are not entitled to that.

COFAR has reported on a number of cases in which DDS-paid guardians have imposed severe restrictions on family contact with persons in the DDS/probate court system; but the Barr case may be the most extreme of those cases in that in none of the other cases has a DDS client been kept in isolation for such a long period of time, and in no other case has their family not been informed of their whereabouts.

COFAR first appealed to DDS Commissioner Elin Howe last October to seek permission for the Barrs to visit their family member, but Howe declined to do so.  In early April, COFAR sent an email to Howe, asking whether a timetable existed for ever reuniting Ashley and David with the woman. Howe did not respond to the query.

According to a transcript of an August 2015 court hearing on the case, Wallace and other DDS officials complained that David Barr was excessively combative in dealing with them and that David and Ashley became overly emotional when they had been allowed to visit the woman prior to the cutoff of all contact with her.

While being combative with DDS over the care provided to a loved one can occasionally result in restrictions placed on family contact, we know of no other case in which all such contact was removed for this long a period of time.

CPCS attorney was reportedly told to keep the family informed

John Byron, a friend of David Barr’s, who attended a probate court hearing on the case with David in March, said the probate court judge seemed to be moved when David said he had been prevented from any contact with the young woman and that no one was providing him with any information about her. According to Byron, the judge then told Attorney Coury Cote that she should communicate with the family and that she (the judge) didn’t want the family “kept in the dark” about the case.

Coury Cote told COFAR the judge had asked her during the hearing only to “take a few minutes to speak with father.” She denied that the judge had ordered her to keep David Barr informed about the case.  At one point, Coury Cote also said that the Barrs were “not entitled to information” about their family member’s whereabouts.

We believe, however, that in light of a Supreme Judicial Court ruling last year involving the guardianship of a woman known as B.V.G. , David and Ashley Barr should be considered by the probate court to be “interested persons” in the welfare of their family member. As such, they are entitled to information about her whereabouts and to be afforded visitation and other rights.

CPCS declines to review the attorney’s conduct

In March, we appealed to Mark Larsen, director of mental health litigation with the CPCS, asking for an investigation of Coury Cote’s conduct in the case. Larsen responded within two days of our appeal to state that the attorney had no obligation “to follow your directions, those of your client (apparently Ashley and David Barr) or of the DLC. Her only obligation is to her client and her client’s wishes.” He stated that “if the family wants a change in visitation, they should consult counsel of their choosing.”

For the record, neither David nor Ashley Barr are clients of COFAR. COFAR is advocating on behalf of them, but our organization does not charge for such advocacy.  Our funding comes strictly from donations made by affiliated organizations and from families.

Larsen also stated that it “appears” that Coury Cote “consulted with her client” in the case.

I wrote back to Larsen to clarify that I had not suggested, or meant to suggest, that Coury Cote should follow our or the DLC’s directions, but that it appeared to us that she “may not have fully ascertained the wishes of her client.” I also stated that Larsen’s comments implied that he did not know for a fact that the Coury Cote had consulted with her client, and that he was only assuming that to be the case.

I noted further that while the CPCS’s Assigned Counsel Manual states that an attorney should “act as a zealous advocate for the client,” the manual also states the attorney should insure “that proper procedures are followed and that the client’s interests are well represented” (my emphasis).

Larsen emailed back a two-sentence reply, badly misspelling my name and saying he had nothing to add to his prior response.

It is frustrating to us, although perhaps not surprising, that the DDS/probate court system seems so often to function against the interests of individuals and families caught up in it. One key reason for this appears to be that there is little or no accountability when professionals in the system act contrary to the interests of people who are powerless and vulnerable.

We always thought the role of legislators and the press was to represent the powerless in society. I think we’re all learning that is no longer the case.

We can only hope that when the Barrs finally do get their day in court, the judge will acknowledge the rights they have been denied and will consider the apparent wish of the young woman involved to see her family again.

In the meantime, we would urge people to call either the governor’s office (617-725-4005) or the DDS commissioner’s office (617-727-5608), and ask them to re-establish family contact in this case. If you do so, please let us know about it.

Disability Law Center aids woman who has been kept away from father and sister by DDS

January 30, 2017 1 comment

In the wake of reports that an intellectually disabled woman has been prohibited for more than a year by the Department of Developmental Services from having any contact with her father and sister, a federally funded legal assistance agency has arranged for legal representation to help the woman challenge the ban.

The Boston-based Disability Law Center opened an investigation late last year of a decision by a DDS-paid guardian to prohibit contact between the woman and her father, David Barr, and sister, Ashley Barr. Based on privacy concerns raised by the DLC, we are no longer publishing the woman’s name.

Earlier this month, a DLC attorney said the agency had assisted in making an attorney available at no charge to the woman to challenge the visitation ban in probate court, if she chooses to do so. The attorney said he was precluded by confidentiality requirements from discussing the investigation or any conclusions he may have reached in the case.

Since Thanksgiving of 2015, David and Ashley Barr have had no information about the woman’s whereabouts. She is believed to be living in a DDS-funded group home, but the Barrs have no idea where that residence might be located.

COFAR has reported that a DDS guardian imposed the ban on all contact with the woman by David and Ashley primarily because they were viewed as too emotional when they were allowed to visit her. Neither David nor Ashley Barr have been charged or implicated in any crimes, yet they said they feel they have been treated by DDS as if they are criminals.

In COFAR’s view, restricting family members from visiting a loved one impinges on a fundamental human right, and the DDS guardian should at least have obtained a probate court order before doing so. DDS should also have made sure the woman had access to legal counsel who could challenge the visitation ban on her behalf. DDS reportedly did neither of those things.

The case appears to involve a clear violation of DDS regulations, which state that people in the Department’s care have the right …“to be visited and to visit others under circumstances that are conducive to friendships and relationships…” (115 CMR 5.04)

The right to visitation is, moreover, a key aspect of family integrity in international human rights law. As an article in the Berkeley Journal of International Law states, “Sufficient consensus exists against particular types of family separation…to constitute customary international law.”

The article discusses Nicholson v. Williams, a class action lawsuit by a group of mothers against the New York City Administration for Child Services (ACS). The lawsuit “challenged ACS’s policy of automatically removing children from homes where domestic violence had occurred even if it meant removing them from the victims rather than the perpetrators of that violence.”

The children of the plaintiffs in Nicholson were kept in foster care for several weeks. According to the law journal, the court “cited the emotional and developmental damage done to the children, (and) the destruction of their family relationships…” that occurred as a result of the separation of the children from their parents (my emphasis).

We would note that the ACS lawsuit was a case involving the removal of children for just a few weeks. The Barr case involves the removal of a family member for more than a year so far, with no indication from DDS that family contact will ever be restored.

While the developmentally disabled woman in Barr case is no longer a child, she has been found to be mentally incapacitated and in need of a guardian. As such, she is in a similar legal position to a child in that she is not considered competent to manage her personal or financial affairs.

The court in Nicholson v. Williams cited specific international provisions including the Universal Declaration of Human Rights, and found that the New York ACS policy “violated the basic human rights of family integrity and freedom from arbitrary interference with family life, as well as the specific right of a child to be cared for by her parents.”

In what seems almost an obvious observation, but one that doesn’t seem to have occurred to DDS, the Berkeley law journal article notes:

People simply care a great deal about their families, and often suffer more from losing them than they do even from serious individual harms they suffer personally.

A couple of other points made in the law journal article are worth highlighting. One is a statement that temporary removal of children from families may cause “lasting harm to the children…especially if frequent visitation is not allowed during the removal period.”

The article also points out that the International Convention on the Rights of the Child (ICRC) imposes obligations on states in situations where families have already been separated. In particular, the ICRC states that where children are separated from one or both parents “the state must furnish the parents or children with any available information regarding their family members’ whereabouts” (my emphasis).

The Massachusetts Supreme Judicial Court weighed in last spring with a decision upholding the right of the grandfather of a developmentally disabled woman to challenge severe restrictions placed on his right to visit her.

As we’ve said before, and will again, major reforms are needed in the state’s probate court system in order to ensure the rights of families to maintain contact with their loved ones in DDS care. One of the first steps is for the Legislature to finally pass a bill (filed in the current session as HD 101) that would require probate judges to presume parents to be suitable guardians for persons with developmental disabilities.

Without interviewing family, DDS upholds complete ban on family contact with developmentally disabled woman

November 28, 2016 Leave a comment

After a “careful review” that did not happen to include interviews with at least two of the three principals in the case, the Department of Developmental Services has upheld an indefinite ban on all contact between those two individuals and a developmentally disabled woman.

The ban has now been in effect since Thanksgiving of 2015 on all communication between the disabled woman, Chelsea Barr, and her father, David, and her sister, Ashley.

Meanwhile, Ashley and David Barr said they feel abandoned by two of their state legislators who have declined even to send a letter to DDS Commissioner Elin Howe expressing concern about the emotional distress that Ashley and David are experiencing in being denied contact with an immediate family member for more than a year. (More about that below.)

Chelsea (left), David, and Ashley Barr at Tewksbury State Hospital in October 2015. It was the last time that David and Ashley were permitted to visit Chelsea.

Chelsea (left), David, and Ashley Barr at Tewksbury State Hospital in October 2015. It was the last time that David and Ashley were permitted to visit Chelsea.

COFAR has reported that a DDS guardian imposed the ban on all contact with Chelsea Barr by David and Ashley primarily because they were viewed as too emotional when they were allowed to visit her. Since the beginning of this year, DDS has not even informed David or Ashley as to where Chelsea is living.

COFAR has asked DDS Commissioner Howe to restore David and Ashley’s contact with Chelsea, who has both an intellectual disability and mental illness.  In early October, Howe stated that the matter was under review by the Department.

Howe did not respond to subsequent requests by COFAR Executive Director Colleen M. Lutkevich in early November for information on the status of the Department’s review or whether it would include interviews with Ashley and David Barr.

Then, in a November 17 email to Lutkevich, DDS General Counsel Marianne Meacham stated that the departmental review had concluded that the restrictions on the Barrs’ contact with Chelsea and the Department’s handling of the matter had all been appropriate.

“Without disclosing confidential information, this matter has been carefully reviewed, and we believe that appropriate steps have been taken by the Department and the Probate Court,” Meacham’s email stated. “Should circumstances change, there is recourse through the Probate Court.”

Both Ashley and David said they had not been contacted by anyone from DDS as part of that departmental review. They said they had hoped for a call, and would have gladly answered any questions DDS might have had about what actually occurred when they were previously permitted limited visits with Chelsea.

“There is no way DDS has done a careful review in this case,” Lutkevich said. “This has all the earmarks of a state agency that embarked on an internal review with a predetermined outcome, which was to clear itself of any mishandling of this matter. This case needs to be reviewed by an impartial, outside party.”

While state law prevents us from discussing criminal charges that may be connected with this case, we can state categorically that neither David nor Ashley has been implicated or charged in any crimes. Yet both feel they have been treated like criminals in being kept in the dark about Chelsea and prevented from having any contact with her.

And while Ashley and David may technically have the ability to go to court, they have not been able to afford the expense of a lawyer. As a result, all of the decisions made by probate court judges in the case have gone against them, including a bid by David to regain guardianship of Chelsea.

As COFAR has reported, a DDS attorney and Chelsea’s DDS guardian and service coordinator all made what appeared to be prejudicial and damaging statements about David and Ashley during an August 2015 probate court hearing in which David had sought to be named Chelsea’s guardian. None of those statements was challenged during the hearing.

The prejudicial statements include a claim by Whitbeck that erroneously implied that David provided inadequate care for Chelsea when she previously resided with him, and a separate speculative statement that David and Ashley wanted to visit Chelsea out of “a sense of guilt.”

In addition, hearsay statements were made in the hearing by both Dorothy Wallace, Chelsea’s then temporary guardian, and Jill Casey, her DDS service coordinator, that appeared to be intended to cast David and Ashley in a negative light before the probate court judge.

In one instance,  Wallace testified that David had been overheard by staff in one hospital promising Chelsea he would become her guardian and would take her home soon. That reportedly made Chelsea resistant to the idea of continuing to stay in the hospital. But David denied that he said that.

No evidence was presented in the August 2015 probate hearing supporting Wallace’s  additional claim that emotional family interactions caused psychotic symptoms in Chelsea. That claim by Wallace, however, appears to be a primary reason for her decision to impose increasingly severe restrictions on family contact, culminating in the total ban as of Thanksgiving of 2015.

The Barrs’ legislators decline to stand up to DDS for them

Following the imposition of the ban on contact with Chelsea, a friend of the family sought help for the family from state Representative Linda Dean Campbell of Methuen, David Barr’s local House member. The friend said Campbell’s office did not provide any help as far as she knew.

COFAR contacted Campbell’s office in early October and spoke to a member of Campbell’s staff, who said he did contact DDS about the matter after hearing from the Barr family’s friend. At the time, the DDS staff member said, DDS put him in touch with Wallace, who gave similar reasons for having cut off the family’s contact with Chelsea that she had given in probate court.

Campbell’s staff member said that after that conversation with Wallace, he didn’t pursue the matter further. The staff member did not contact either David or Ashley to ask for their response to Wallace’s claims.

COFAR attempted to renew the request for help for the family with both Campbell’s office and the office of Senator Kathleen O’Connor Ives, whose district includes Methuen. A staff member from Ives’ office did subsequently contact Ives’ office’s DDS liaison — a DDS deputy assistant commissioner. However, she said the DDS liaison refused to discuss the matter with her for reasons that she said were not clear to her.

At that same time, COFAR requested that both Campbell and Ives send a joint letter to DDS Commissioner Howe, expressing concern about the cutoff of David and Ashley’s contact with Chelsea.

However, in mid-November, about 10 days after COFAR made the request, the staff members for both Campbell and Ives said the lawmakers would not send a letter to Howe. Ives’ staff member said Ives didn’t think a letter was necessary or would accomplish anything, while Campbell’s staff member said Campbell’s legal counsel raised a concern that sending such a letter could violate Chelsea’s privacy rights.

In an email sent in response to both legislative staff members, I said that we at COFAR strongly disagreed that a letter from the legislators to Howe would not accomplish anything. We also disagree that Chelsea’s privacy would be violated by such a letter.

“Given that the DDS liaison has not been helpful in this case, it is all the more important to go up the line to the commissioner,” I said in my email message. “This family needs to know that someone in the political system cares about their situation.”

“Lutkevich also sent an email message to Campbell’s staff member. Lutkevich’s message stated that:

There is really no valid reason that a simple letter can’t be sent asking why this family cannot 1) be informed of their intellectually disabled daughter/sister’s whereabouts, and 2) set up visits, even if supervised.  Prisoners are allowed visitors, as are families under DCF (Department of Children and Families) supervision, but this young woman with an intellectual disability is not even being allowed to have the slightest bit of contact with the only family she knows.  We can only imagine how abandoned she must be feeling.

Neither Lutkevich nor I received any response from either Campbell’s or Ives’ offices to our emails.

Unfortunately, it is no longer surprising to us that DDS would disregard its own regulations that require humane and least restrictive care, or even that members of the state Legislature would decline to go to bat for their constituents.

As I noted in a recent blog post that generated a lot of discussion about the reasons for the outcome of this year’s presidential election:

Whether it is a global trade deal that ships American jobs overseas, or a decision by a state legislator not to stand up for a constituent who has a grievance with the executive branch, government has lost sight of its real purpose.

Court statements show DDS employees held a bias against family members seeking to visit Chelsea Barr

November 16, 2016 7 comments

In statements made in a probate court hearing last year, an attorney for the Department of Developmental Services and two other DDS employees appeared to demonstrate a bias against the father and sister of a developmentally disabled woman who have been seeking to visit her.

The August 17, 2015 hearing in Essex Probate and Family Court appears to have set the stage for a complete ban as of last Thanksgiving on all contact with Chelsea Barr by her father, David, and sister, Ashley.

COFAR has urged DDS Commissioner Elin Howe to restore David and Ashley’s contact with Chelsea, who has both an intellectual disability and mental illness. COFAR is also questioning why DDS recommended the appointment of a guardian for Chelsea who had never previously met her.

In recommending the guardian, DDS passed over David, Ashley, and a family friend, who had offered to be Chelsea’s guardian and knew her well.

In the wake of allegations that Chelsea had been sexually assaulted over a two-year period by an alleged boyfriend of her mother’s, Chelsea was removed from her mother’s care and from regular contact with most of her family in 2014.

Since last Thanksgiving, David and Ashley have been barred by the guardian from all contact with Chelsea, and even from knowledge of her whereabouts.  However, neither David nor Ashley have been charged or implicated in the sexual assault case.

The 70-minute recording of the probate hearing is replete with statements and testimony from Dorothy Wallace, then Chelsey’s temporary guardian, and from Jill Casey, a DDS service coordinator, and Barbara Green Whitbeck, a DDS attorney, that appear to indicate a bias against David and Ashley.  The statements appeared to be intended to sway the probate court judge against appointing David as Chelsea’s permanent guardian or allowing more family contact with her.

The prejudicial statements in the hearing include a claim by Whitbeck that erroneously implied that David either caused or was responsible for abuse of Chelsea when she was 12 years old, and a separate speculative statement that David and Ashley wanted to visit Chelsea out of “a sense of guilt.” Wallace also erroneously testified that records indicate Chelsea was sexually abused by another family member at the age of 12.

Chelsea (left), David, and Ashley Barr, at Tewksbury State Hospital last Thanksgiving, the last time David and Ashley were permitted to visit her.

Chelsea (left), David, and Ashley Barr at Tewksbury State Hospital last Thanksgiving, the last time David and Ashley were permitted to visit her.

Other statements by Whitbeck, Wallace, and Casey appeared to be hearsay, and are strongly disputed by Ashley and David Barr. However, the statements all went unchallenged during the probate hearing because the Barrs did not have an attorney present at the proceeding who might have cross-examined the DDS employees.

The recording of the court hearing provides an unusual glimpse into how DDS, a large public agency, uses its superior legal power and resources to overcome family resistance to its decisions about developmentally disabled people in its care. Without an attorney to represent them, individuals are virtually helpless in probate court cases.

The hearing concerned a request by David and Ashley that they resume regular contact with Chelsea and that David be appointed as her guardian. The judge, however, ruled instead in favor of the appointment of Dorothy Wallace, the candidate recommended by DDS, as Chelsea’s permanent guardian.

In her testimony, Wallace said the reason for her restrictions on contact with Chelsea was that David and Ashley became too emotional when they were permitted visit her, and that this caused Chelsea to have psychotic symptoms.

Wallace also said that clinicians in one hospital were upset that David had promised Chelsea he would become her guardian and would take her home soon. That reportedly made Chelsea resistant to the idea of continuing to stay in the hospital, according to Wallace.

Wallace’s testimony about what David might have said to Chelsea appears to be hearsay, however. David denied that he ever promised Chelsea he would immediately take her home from the hospital. None of the clinicians who reportedly overheard David making that promise to Chelsea were asked or required to testify at the probate hearing.

No evidence was provided at the 2015 hearing, moreover, as to how or why an emotional interaction with her family would cause Chelsea to have psychotic symptoms. Wallace repeatedly testified that her intention was to reunite the family once Chelsea had been clinically stabilized. Yet, David and Ashley remain barred from any contact with Chelsea more than a year later.

In what was perhaps an unintentionally telling admission about the level of isolation to which Chelsea has been subjected, Wallace testified at one point that she was surprised to find out that an aunt of Chelsea’s had actually gotten in to see her at a hospital a few weeks before the probate hearing was held. “A clinician called and said an aunt had visited her,” Wallace testified. “I said I didn’t think anyone was visiting. How did they find her (Chelsea)?”

In early October, DDS Commissioner Elin Howe responded to an email from COFAR Executive Director Colleen M. Lutkevich, saying the Barr case was under departmental review. Since that time, however, neither David nor Ashley Barr have been contacted by DDS as part of that review.

Howe has not responded to follow-up emails from Lutkevich, seeking information on the status of the DDS review of the case or whether or when David and Ashley will be allowed to see Chelsea again.

DDS has also declined to comment on the statements made at the 2015 probate hearing. In an email, DDS General Counsel Marianne Meacham stated that the Department would not comment “on matters involving confidential and protected client information, and which are the subject of a pending criminal prosecution.”

The recording of the 2015 probate hearing, however, is a public document. While cases involving sensitive probate issues are usually impounded, meaning they are blocked from public access, DDS, for unknown reasons, only requested that the Barr case be impounded last August, a year after the hearing was held.

Damaging opening statement from the DDS attorney

During the August 2015 Probate Court hearing, DDS Attorney Whitbeck made an opening statement that was potentially damaging and yet highly misleading about David Barr. Whitbeck said witnesses she planned to call to testify in the hearing would:

…give a clear picture of a young woman who really has suffered unspeakable traumas in her life, beginning all the way back to about age 12 when she was residing with her father, and again in the past couple of years when she was residing with her mother… (my emphasis).

This statement appears to imply that David Barr either personally abused his daughter or was responsible for abuse. But what Whitbeck was actually apparently referring to was one incident when Chelsea was 12 in which a friend of her brother allegedly inappropriately touched her when family members were not present, according to Ashley. David Barr has never been accused of or implicated in any abuse of Chelsea, and neither has her brother.

There was no testimony given at the hearing that implicated David or Ashley in any abuse of Chelsea.  Wallace did testify that she understood that Chelsea had Post-traumatic stress disorder (PTSD) “dating back to the age of 12 or 13 due to alleged sexual abuse from her brother.”  This statement was not only hearsay, but it is apparently wrong. Other than her mother in 2014, no member of the family has ever been implicated or charged in any abuse of Chelsea.

As noted, David and Ashley had no attorney representing them during the hearing, and therefore no one challenged Wallace’s claim about that alleged abuse of Chelsea when she was 12 or 13, or questioned how Wallace had come across that information.  No one, in fact, asked that Wallace or the DDS attorney produce any records backing up her claim that Chelsea had been abused by a family member when she was that age.

Whitbeck also said in her opening statement that “it is understandable that the family wants to be involved with Chelsea, out of a sense of obligation and maybe guilt…” This statement also went unchallenged.  It’s a potentially damaging statement. Whitbeck never specified what the family’s guilt might be about and was never questioned about it.

David and Ashley portrayed as overly combative

Other statements made by Casey and Wallace appeared to be intended to portray David and Ashley as overly combative with them. Whitbeck described David as a “bully,” and Casey testified that he had sworn at her when they first met and had once left a threatening message on her answering machine. She said his threat on the answering machine was a statement that “‘I’ll get you people,’ or something like that.” During the hearing, David tried to dispute that he had said that, but was admonished by the judge for interrupting.

Ashley maintains that David has never been physically threatening, but may have threatened to sue DDS at some point over the restrictions placed on his contact with Chelsea.

Wallace, when asked to describe the family’s interaction with her, testified that the family had been “chaotic and caustic.” But Wallace provided no examples of statements or actions by David or Ashley that could be characterized in those terms.

Wallace said she had talked with David only once or twice, and had had “multiple conversations” with Ashley in which she had tried “to educate Ashley in regards to how truly sick her sister is psychiatrically.”  As Wallace described her interaction with Ashley:

She (Ashley) kept saying all she (Chelsea) needs is family. I agree that at some points Chelsea needs her family. It was never my intent to take her away, but when she is not stable and the hospital is calling me saying they’re (the family is) destabilizing her even more, I had to come and say we’re going to terminate things.”

Hearsay statements 

Many of the accusations made against the family by Wallace and Casey at the hearing were based on apparent hearsay.  In particular, Wallace testified that she had heard someone in one hospital say that David told Chelsea she would be coming home soon and that he would be named her guardian.  This apparently upset the clinicians at the hospital, who then asked Wallace to ban further family visits, according to Wallace.

But Ashley and David disputed that David had made any such promise to Chelsea. Rather, he said, he was trying to reassure Chelsea that one day she would be coming home.

Similarly, Whitbeck stated that she understood Ashley had been overheard telling Chelsea not to listen to hospital staff. Ashley disputed that during the hearing, testifying that she had told her sister only not to listen to other children in the hospital whom Chelsea said she believed had been making fun of her. “I would never tell Chelsea not to listen to doctors,” Ashley testified. ” We want her to get the treatment she needs. We are not trying to interrupt her treatment.”

Casey also testified that she heard that David had taken Chelsea to a doctor for anti-psychotic medications only once. This also appears to be hearsay. Ashley told COFAR that David took Chelsea for medications and to doctors’ appointments “multiple times.”

 

Chelsea and David at Tewksbury State Hospital. David and Ashley were accused of being too emotional when they visited her.

Chelsea and David at Tewksbury State Hospital. David and Ashley were accused of being too emotional when they visited Chelsea.

A lack of familiarity with Chelsea and her family

Testimony provided by Wallace indicated either a lack of familiarity with Chelsea and her family or a lack of time to represent her adequately or act in her best interest. This raises questions in our view as to why Wallace was recommended by DDS to be Chelsea’s guardian, and why an offer from a family friend who knew Chelsea well was apparently disregarded.

Wallace, who had never met Chelsea until just before she was appointed as her temporary guardian, appeared to be unaware or unsure of details of Chelsea’s care and living arrangements in the months prior to the August 2015 probate hearing.

After having been removed from her mother’s care, Chelsea was moved in and out of shared-living arrangements and hospitals. She was admitted to Arbor Fuller Hospital in Attleboro in March 2015 and discharged in June of that year, just two months prior to the probate hearing. Asked during the hearing where Chelsea was sent after her discharge from Arbor Fuller, Wallace testified that she was unsure. “I think she want to respite or to Donna’s (a shared-living arrangement). I don’t know,” she said.

Wallace said she was aware that Chelsea ended up at Tewksbury State Hospital in early August 2015, but she was unsure of the name of the psychiatrist at Tewksbury State who was in charge of Chelsea’s anti-psychotic medications there. Under questioning, Wallace also said she was unaware that Chelsea had a sister in addition to Ashley.

Asked how many times she had visited Chelsea in the seven-month period since she had been appointed as her temporary guardian, Wallace described what appeared to be approximately six meetings with her.  Few if any of those meetings appeared to be strictly social visits. At least one of those meetings was a clinical care planning meeting regarding Chelsea’s ISP (Individual Support Plan), while another visit was to meet an aunt of Chelsea’s who was allowed to visit Chelsea at Tewksbury State.

As we’ve noted before, we think this case is being mishandled by DDS. We see no justification for the continuing refusal of DDS to allow any contact in this case between a young woman with special needs and members of her family who have nothing to do with the criminal proceedings that are involved. That denial of contact is further victimizing both this young woman and innocent members of her family.

Father and sister banned from all contact with developmentally disabled woman because they cried when they saw her

October 19, 2016 5 comments

Can it really happen in America that the state can take an individual into its custody, and then not even let that person’s family know where she or he is, for months on end?

Yes, that is apparently the case if the individual is mentally ill or intellectually disabled.

In one of the more bizarre and severe instances of restrictions placed by the state on family contact, a court-appointed guardian has banned family members of an intellectually disabled woman from all contact with her because they allegedly became too emotional when they visited her. The 28-year old woman, Chelsea Barr, is dually diagnosed with intellectual disability and mental illness.

Chelsea’s father, David, and sister, Ashley, have not even been told for almost a year where she is living. Clinicians in at least one hospital said the family was to blame for signs of agitation and psychotic symptoms allegedly shown by the woman after the family visits.

The ban on family contact was imposed after Chelsea alleged that she had been sexually assaulted by the alleged boyfriend of her mother over a two-year period from 2012 to 2014. Chelsea’s mother, Nancy Barr, and her alleged boyfriend, John Leone, have both been arrested and are facing trial in Salem Superior Court in connection with the alleged assaults.

In addition to banning Leone and Nancy Bar from visiting Chelsea, a guardian with the Department of Developmental Services last Thanksgiving extended the prohibition to other family members and a family friend, who have not been implicated in the alleged crime.  The only family member who is currently allowed to visit Chelsea is a maternal aunt, who Ashley Barr said had little prior contact with Chelsea and maintains little contact with either Ashley or her father.

Chelsea (left), David, and Ashley Barr at Tewksbury State Hospital in October 2015. It was the last time that David and Ashley were permitted to visit Chelsea.

Chelsea (left), David, and Ashley Barr at Tewksbury State Hospital in October 2015. It was the last time that David and Ashley were permitted to visit Chelsea.

“As far as I’m concerned, Chelsea’s been kidnapped,” David Barr said in an interview.  Both David and Ashley said their lack of contact with Ashley and knowledge of her whereabouts have filled them with emotional distress. “We don’t even know where she is, and no one will tell us,” Ashley said. “It’s really, really hard to take.”

The Barr’s case is, unfortunately, not unique. We have reported on other cases (here and here) in which family contact with developmentally disabled family members has been severely restricted by the Department of Developmental Services. These restrictions also appear to happen in cases in other areas of the health care system, such as the highly publicized case of Justina Pelletier, who was held for nearly a year in a locked ward in Boston Children’s Hospital, and kept from all contact with her parents.

“This is unfortunately yet another case in which DDS and the probate court system has failed families of developmentally disabled persons,” said Colleen Lutkevich, COFAR executive director. “The family always seems to be made the focus of blame when problems occur.

“In this case,” Lutkevich added, “a young woman, who was victimized by sexual assault, is being further victimized by being isolated from members of her immediate family who could provide her with the love and support that she needs.”

David and Ashley have tried for months to get answers from the Department of Developmental Services and from the Department’s court-appointed guardian for Chelsea, and have gotten little information from them. They have gone to their local legislators and gotten little help, and have even gone to the media, but have been unable so far to get any news outlets to report their story.

Neither David Barr nor any other members of Chelsea’s family, other than her mother, are alleged to have known about the alleged sexual abuse while it was happening, and none have been charged or implicated in the crime. David Barr was divorced from Nancy Barr in 2003.

During the period of the alleged assaults, Chelsea had been under the care of her mother and had been living in her mother’s home. David Barr said that Nancy Barr has also been diagnosed with mental illness.

After Chelsea told a family friend about the alleged abuse in 2014, the friend reported the matter to police, and Chelsea was immediately removed from her mother’s care. She was apparently placed in a shared living arrangement in Haverhill, but that location was not disclosed at the time to any other members of the family.

In the months that followed, the family was only sporadically informed about Chelsea’s whereabouts.  Chelsea’s sister Ashley and her father said that virtually no information was provided to them for the first month after Chelsea’s removal. They were then allowed to visit her only a handful of times, either at a DDS area office or in Massachusetts hospitals to which Chelsea was admitted, reportedly after psychotic episodes.  Ashley Barr currently lives and works in Rhode Island.

Last Thanksgiving, the DDS guardian, Dorothy Wallace, a psychiatric social worker, terminated all family contact with Chelsea. Ashley said she and her father have not been permitted to visit or call Chelsea for nearly a year, and they don’t know where she is currently living.

Guardian testifies against the family

Wallace, the DDS guardian, has declined to speak with COFAR regarding the case. In statements she provided in probate court in August 2015, she said she ordered that the family’s contact with Chelsea be restricted at that time because Chelsea’s father and sister would become overly emotional during visits with her. Wallace said clinicians in various hospitals in which the visits took place complained that Chelsea would be agitated and upset after the visits and that her symptoms of bipolar disorder would then become aggravated.

Wallace also contended that on one occasion, Ashley was overheard telling Chelsea not to listen to medical personnel at a hospital.  Ashley disputes that, saying Chelsea had told her people were making fun of her, and that she told her not to listen to whoever was making fun of her. “Maybe someone misinterpreted me,” Ashley testified during an August 2015 probate court hearing. “I would never tell Chelsea not to listen to doctors.”

Wallace and Jill Casey, Chelsea’s DDS service coordinator, testified in the August 2015 probate hearing that their goal was to reunite Chelsea with her family once she was “clinically stabilized.” However, as of October 2016, more than a year later, the family has received no word from DDS as to when or if such a stabilization has occurred.  Ashley Barr said her calls and text messages to both Wallace and Casey have gone unanswered.

DDS Commissioner Elin Howe responded to an email from COFAR about the case on October 6, and would say only that the case was under review. However, as of today (October 19) neither David nor Ashley had been contacted by the Department as part of that review.

Ashley acknowledged she and her father did become emotional at times during visits with Chelsea because she appeared upset at being kept isolated from them and often appeared to be over-medicated.

“For several visits we did cry in front of Chelsea, I mean how could we not?” Ashley said. “She was alone, scared, by herself, and just went through a horrific thing for about two years. So yes, my father and I did cry, and I was an emotional mess for a very long time.  Watching my sister all drugged up, she could barely talk, and given the state she was in, it was very hard to keep it in. I walked out of the room most of the time so my sister wouldn’t see me.”

In one of the last instances in which they were allowed to visit Chelsea, Ashley said it appeared she had not been bathed.  Ashley personally gave her a shower at the hospital. Her hair was so dirty and matted, Ashley said, that she had to use an entire bottle of shampoo and conditioner to untangle it.

The enforced isolation of Chelsea appears to violate DDS regulations, which include the right to humane and adequate care and treatment, self-determination, least restrictive care, and integration of the person in the community. In addition, people in DDS care have a right to communicate, the right to have reasonable access to a telephone and to make and receive confidential calls, and the right to be visited and to visit others “under circumstances that are conducive to friendships and relationships…”

David Barr frustrated in gaining guardianship

Like many probate cases, this case has a complex history. David Barr has tried without success to gain guardianship of Chelsea following his divorce from her mother.  In early 2015, the Essex County Probate Court passed over David Barr and a long-time family friend, who had offered to be Chelsea’s guardian, and instead appointed Wallace, the DDS-paid psychiatric social worker, who had never met Chelsea, as her guardian.

David Barr said he would have supported the family friend as Chelsea’s guardian, but “we were totally ignored.”  Barr has since filed a new petition for guardianship in probate court.

In the probate court hearing in the case in August 2015, David was described by Chelsea Barr’s DDS service coordinator as a “bully” because he allegedly swore at her when he first met her and once left a threatening message on her voice mail that he was going to “get you people.”

The Barrs had no attorney at the probate hearing, and there was consequently no cross-examination of the service coordinator.  Ashley Barr says her father was threatening only to someday sue DDS over the restrictions placed on his contact with his daughter. “Not one time did my father ever mention coming after them violently,” Ashley stated in an email. “He’s trying to get his daughter back and not end up in jail.”

Ashley added that her father was not liked by some of the staff of Chelsea’s day care provider agency because he would become angry and reprimand the staff following several instances in which Chelsea walked out of the provider’s facility unattended.

Restrictions on visits and information blackout began after the abuse was reported 

Ashley Barr said that after the alleged abuse of her sister was discovered in October 2014 and Chelsea was removed from her mother’s care, “nobody would talk to us.”

Ashley said she was initially unable to get any information about Chelsea or her whereabouts from either the DDS service coordinator or her supervisor at DDS.  She said she even contacted the police and was unable to learn anything from them. “My dad and I have no criminal record,” Ashley said, “yet we were still treated like criminals.”

Then, in November 2014, Ashley was contacted by Jill Casey, the DDS service coordinator, who said she would be allowed to visit Chelsea at the DDS area office in Lawrence for about an hour. David was not invited to that visit.

Ashley said she was told during the visit not to ask Chelsea any questions about where she was living. She said Chelsea “looked scared,” and said several times that she wanted to see her father and to come home.

A family friend, who was allowed to visit Chelsea around this time, said Chelsea was living in a home in Haverhill owned by a woman who had two or three other developmentally disabled persons living there. The friend said she was instructed not to tell anyone in Chelsea’s family where Chelsea was.

The friend said she was allowed on one occasion to take Chelsea out of the Haverhill home for the afternoon. Chelsea was upset, she said, because she wanted to see her family. She also wanted to sleep over at the friend’s house, but that wasn’t permitted by the guardian.

It wasn’t until April 2015 that Ashley was next allowed a visit with Chelsea – this time in Arbor Fuller Hospital in Attleboro, where Chelsea was scheduled to celebrate her 27th birthday.  Ashley said she was allowed a number of visits to Arbor Fuller, and David was allowed to visit as well, though a lesser number of times. It was apparently at Arbor Fuller, that Ashley and David first reacted too emotionally when they saw Chelsea.

In testimony in the August 2015 probate court hearing, Wallace, the guardian, contended that David Barr further agitated his daughter during at least one visit by telling her that she would be going home soon and that he would become her guardian.  Hospital clinicians, Wallace said, subsequently asked her to terminate the family’s visitation privileges.

David Barr testified in response that he was trying only to reassure his daughter, who would become upset whenever he and Ashley had to leave. “I was just trying to provide reassurance that she would go home and that I would always be by her side and would try to get the guardianship,” David said. “She was there alone and scared. Isn’t that reassuring someone? Trying to give her confidence she isn’t going be left alone…?”

DDS and guardian repeatedly said family needed to be “educated”

During the probate court hearing, Wallace, Casey, and Barbara Green Whitbeck, a DDS attorney, repeatedly stated that they considered it necessary to “educate” David, Ashley and potentially other family members about what was in Chelsea’s best interest and the extent of her mental illness.

“I talked to Ashley,” Wallace testified. “She was angry and wanted to maintain the visits (with Chelsea).  I tried to educate her that Chelsea is psychotic and symptomatic – that it can take two, three, four months (to stabilize) her.  It’s not quick.  I don’t think they (the family) understand the magnitude (of her illness).”

Ashley responded in an interview that she and her father felt that Wallace and Casey were being condescending in seeking to “educate” them about Chelsea.  “We have known and talked about Chelsea’s conditions since day-one, 20 years ago, and about what Chelsea has been diagnosed with. It’s nothing new to us,” Ashley said. “We don’t need them to repeat things that we already know about Chelsea’s conditions.”

In June 2015, Ashley found out from her aunt that Chelsea had been admitted to Lawrence General Hospital because her psychiatric symptoms had flared up.  Ashley was subsequently allowed to visit Chelsea a handful of times at Lawrence General, but David wasn’t, for reasons that were not provided to them.

After a short stay at Lawrence General, Chelsea was admitted to Tewksbury State Hospital. Ashley said that when she was living in Connecticut at that time and drove up to Massachusetts several times a week to visit Chelsea.

Chelsea’s father was finally allowed to visit her at Tewksbury State in October 2015. Chelsea appeared drugged during that visit as well, according to Ashley. And that was the visit in which Ashley said she needed to use an entire bottle of shampoo and conditioner to untangle her hair.

That was also the last time either David or Chelsea were permitted to visit Chelsea. “We were told by Dorothy Wallace we were getting Chelsea too excited and they were trying to control her medicine,” Ashley said. “That was an excuse. How else is she going to react when she sees her family and wants to go home? Of course, she’s going to get upset.”

Ashley did manage to see Chelsea without permission at Tewksbury State in December when she visited under an assumed name. She gave her Christmas presents during that visit. It was the last time she would see Chelsea.

Chelsea and her father hug good-bye at Tewksbury State Hospital.

Chelsea and her father hug good-bye at Tewksbury State Hospital.

In May, Ashley found out she was pregnant and learned that she was going to have a girl. She contacted the guardian to ask whether Chelsea would be allowed to come to the baby shower, which was planned for a restaurant in Andover. She said Wallace denied the request and told her Chelsea would not be informed that she was pregnant.

Family friend also denied visits 

The family friend who initially reported the alleged sexual abuse of Chelsea to police had initially been allowed to visit Chelsea, as noted earlier. However, when the friend tried to visit Chelsea at Tewksbury State in April on her 28th birthday, she was told that Chelsea was no longer there.

The friend said she was also told by a staff member at the hospital that she too had been placed on a no-visitor list.  She said she was not given a reason for that prohibition. The friend said she understood that the only family member still allowed any contact at that point with Chelsea was the aunt, who had previously had little to do with her.

Ashley said David did hear from Chelsea one last time in July when Chelsea apparently managed to find a cell phone and called him. She said the cell phone had a New Hampshire area code, but that Chelsea did not know where she was.  The call was terminated after two or three minutes, she said.

“At that point, we knew she was still alive,” Ashley said. “But that’s all we knew.”

Call the Barr’s local legislators

When we at COFAR heard about this case, we contacted the office of David Barr’s local House member, State Representative Linda Dean Campbell.  Both Ashley and the family friend had previously contacted Campbell’s office, but a staff member in the office indicated at that time that the office could do little to help them.

When we contacted Rep. Campbell’s office earlier this month, the staff member did offer to contact DDS on behalf of the Barrs. The staffer reported back that DDS would not discuss the case with Campbell’s office, but would pass along Campbell’s concerns to others in the Department.

You can contact Rep. Campbell’s office at 617-722-2430, or send an email to Linda.Campbell@mahouse.gov, and urge them to continue to try to work with DDS to resolve this case.

In addition, you can contact Governor Baker’s office at 617-725-4005; and DDS Commissioner Elin Howe at 617-727-5608; or email: elin.howe@state.ma.us. Say you believe David and Ashley’s visits to Chelsea should be restored immediately. Also, let them know that you hope and expect that as part of their review of the case, DDS officials will contact and interview both David and Ashley.

GoFundMe appeal

David and Ashley Barr have also launched a GoFundMe appeal for funds to hire an attorney to represent them in probate court. You can find their petition and contribute to it at https://www.gofundme.com/helpchelseaB.