CHAPTER 11

In Honor of Our Elders

One morning, Andrew Lanius, the prosecutor for the city of Hollywood, Florida, came into the courtroom to share an unusual case with me. “I have a case in another division that might be more suitable for your court,” he said. The case involved an elderly woman named Mary McCullough, who was living in an RV with no running water or electricity. She was charged with two separate misdemeanor counts of cruelty to animals for dogs, her pets, which were suffering from dehydration and malnourishment due, in part, to Mary’s living conditions. As I read through the details of the case, I wondered if I could also supply a referral to Broward County Elderly Services to assess the habitability and risk of harm for Mary. After all, the court has a long-standing relationship with Elderly Services, whose case managers do incredible work on behalf of vulnerable older adults.

“I was wondering if I could bring Ms. McCullough over to the court now, since she is in the building and has no transportation?” he said.

Even though I questioned the appropriateness of the case to my court since there was apparently no mental health finding, there was no harm in hearing what the defendant, Mary, had to say.

At the very least, perhaps the court could refer her to a service that would prove useful. “Sure,” I replied. “You can have her come over along with her attorney.”

Within minutes, the city prosecutor, the special public defender, and the defendant arrived. The prosecutor handed me a four-page arrest affidavit, two competency evaluations, and an order from the judge, which found the defendant, Mary McCullough, mentally incompetent to proceed. Ms. McCullough had been charged with two separate misdemeanors counts of cruelty to animals.

The allegations were disturbing. Animal control investigators alleged that Ms. McCullough lived in an RV camper without electricity and running water. The dogs had been observed by animal control officers to be severely malnourished and dehydrated and living without proper ventilation. Since that time, the dogs had been removed from Ms. McCullough’s residence and taken to emergency care.

“So, what is the problem?” I asked. “What is the city looking for this court to do? Shall I refer her to Broward County Elderly Services?”

“This case is a bit unusual,” said Andrew. “Ms. McCullough lives in an RV in the parking lot of a retail drug store. She is seventy years old, and the city does not wish to arrest her. We just want to her to find a decent place to live. But she refuses to leave her camper, which we believe is unsafe. We were hoping you could order her into treatment or something to resolve this situation. Additionally, we are concerned that she will bring more dogs into the RV.”

Since this wasn’t an obvious issue of mental health, I was unsure as to how the court could intervene in this matter and asked Mary McCullough and her attorney to approach the bench.

As they took their place at the podium, I introduced myself and explained to them the nature of the court. I emphasized that this is a court of social service.

“Can you tell me a little about yourself?” I asked Ms. McCullough.

I noticed that she was well groomed and stylish. Her blond hair was coiled into a neat bun. She was wearing a geometrically patterned retro-style dress that looked like what someone would have worn in the 1960s. She appeared to be a bright and gregarious character. She explained that she had been one of the first airline stewardesses in the United States to fly transatlantic flights for Pan American. She told the court that her life “was in the air.” She had never married and enjoyed living in her RV because, she said, she felt more secure in smaller spaces.

“What an exciting life you have led, Ms. McCullough! You are quite a pioneer for women in your field,” I said.

I asked Janis if she would take Ms. McCullough and her attorney outside in the hallway to speak to her about her needs and find out how she was truly faring.

When they returned, the hearing resumed. Janis took the lead.

“I have spoken with Ms. McCullough, who does not believe she requires any mental health services or social services of any kind. She explained to me that she is very comfortable in her RV. There is a bed area for her to sleep, and she purchases food and water from the drug store and does not wish to move.” Janis paused before adding, “Essentially, Your Honor, Ms. McCullough is an urban camper. If anything, her conduct may be viewed as eccentric. She has made a lifestyle choice—kind of like a hippie. She is a free spirit.”

I turned to Andrew Lanius, who had listened to Janis’s option. “Well, it appears that Mary is free-spirited,” I said. “What would you like this court to do?”

“Why can’t you order her to see a therapist or take medication?” he asked.

“That would not be legally appropriate. Even if there were a mental health condition, Ms. McCullough has the right to make her own healthcare decisions. Moreover, I do not believe you can medicalize every problem,” I replied.

“The city attorney is very concerned that she will acquire more animals once this case is closed. She refuses to agree not to bring more animals into the RV—otherwise the city would dismiss the case.”

Ms. McCullough’s special public defender, who worked for the city, stood to address the court. “I believe this case must be dismissed, Your Honor. The city cannot prosecute this case, and my client is not a danger to herself or others and not subject to involuntary treatment under Florida law.”

“Mr. Lanius,” I said, “defense counsel is correct. What can this court do?”

“All we are asking is that you work with her to ensure that she understands that she is not permitted to house animals in the RV and to help the city negotiate a more suitable place to live.”

This request seemed reasonable. I turned to the defendant, who still appeared as bright and gregarious as she had been when she first entered the court. “Ms. McCullough, are you listening to what the city prosecutor is saying?” I asked.

“Yes, Judge, but I love my dogs. I took good care of them, and I do not agree with the city.”

I understood the city’s concern. This situation was vexing and it was apparent that some sort of intervention was necessary. I just wasn’t sure what that intervention would be. It was clear that, without Ms. McCullough’s agreement to move out of her RV, the consequences of forced action by the city to evict her would leave Ms. McCullough homeless, and the experience would be extremely traumatic for her. Whatever was going to happen, it would be preferable to have Ms. McCullough join the decision-making process and take part in her own solution.

“Mr. Lanius,” I said, “doesn’t the city have housing resources and case managers you can contact to explore what supportive housing options may be available?”

“I’m not a social worker. I really don’t know the answer to that.”

“Counsel,” I said, “we are all social workers. It is part of the job.”

I agreed to keep the case and continue to work with Ms. McCullough to explore what housing options would be available. I asked Janis to check with Adult Protective Services to determine whether they had assessed this case and then set the next court hearing.

“Judge,” Mr. Lanius said quickly, “I am sorry, but I have already placed several calls for housing resources. No one in the city was able to assist me.”

The court was silent for a moment, and I considered the next course of action. I called a quick ten-minute recess to consider the available options.

When the court reconvened, Janis immediately said, “I was able to find out some information regarding Ms. McCullough.” Janis had found out that Ms. McCullough had a closed case with both Adult Protective Services and Broward County Elderly Services. Apparently, when the APS investigator and Elderly Services case manager went to check up on Ms. McCullough in her RV, she refused to let them in. Slamming the thin little door with the tiny square window and miniature blinds, she said firmly that she did not want their help.

“You know, Judge,” Janis added, “these agencies cannot provide services if someone refuses assistance.”

I placed my head in my hands. I wanted Ms. McCullough to know that we needed her cooperation to help resolve this situation before it turned into a crisis. I did not want her to end up living on the streets, like many other elderly adults without resources.

According to the National Coalition for the Homeless, the number of elderly adults at risk of homelessness has increased throughout the country.¹ In 2016, the New York Times reported that according to the most recent data from the Department of Housing and Urban Development, homelessness among our nation’s elderly has increased by 20 percent.² Per the report, from 2007 to 2014, there were 306,000 people over fifty living on the streets.³ In South Florida, the combination of a lack of affordable housing and deterioration of health and finances has led to a critical housing shortage. The Palm Beach Post reported in June 2014, “There are nine seniors waiting for every occupied affordable housing unit.”⁴ In Broward County, the need for affordable housing is equally dire. As of February 2017, the Broward County Housing Authority stopped accepting applications for Section 8 housing, noting that three thousand names are already on the waiting list.⁵

I lifted my eyes to look at Mary McCullough and sighed.

“Ms. McCullough, I am sorry, but you can’t stay in the RV,” I said. I hoped the empathy I felt somehow flowed into my voice so that I could communicate how much I understood and how difficult this was for her. “I know you think it is safe, but it isn’t.” I watched her face for signs to show me whether she agreed with me or not. I saw nothing to guide me, so I continued. “As a former flight attendant, you know better than any of us in this courtroom that safety always comes first. I know, with all of us working together—along with the social workers at Broward County Elderly services—we will find you a place to live that is not too large, with water and electricity so you can be comfortable and live with dignity.”

I waited for a response—a protest, maybe. Or a nod. Anything. When none came, I continued, “You deserve that, Ms. McCullough. And I am sure the city will dismiss the charges if you would agree to move out of the RV, move to safer housing, and do not possess dogs.”

Ms. McCullough took in a sharp breath and stood still for several seconds. I watched her facial expressions as emotions and thoughts flickered across her face. Concern, fear, hope: They resided in her eyes and on her cheeks for seconds before they flashed away with another thought or feeling. As I watched, the emotions settled, and she seemed to settle along with them. She might well have realized: This problem is not going away. And things can get considerably worse if the city intervenes and I do not agree to accept services. The life that she wanted would surely be taken away.

“Well, Judge,” she finally said, “I will try to cooperate. And if the social workers can find me someplace small and tidy”—she nodded her head, perhaps searching for an image of a home to replace the one she had called her own for decades—“I will agree.”

The court turned silent. The sound of shuffling paper, of muted conversations, of footsteps in the hallway seemed to stop for the woman who was asked to give up the only home she knew and who—in the interest of health, safety, and humanity—had done so.

After a human eternity, she added, “You know, Judge Wren, throughout my entire career, I always took great care of my passengers. Some became good friends. I really loved them.”

A life lived in the air might have held mystery and magic—but it was a lonely life, I realized, as I watched Mary McCullough walk away from the bench.

“Judge,” the public defender interrupted, “I would like to call a case; my client is getting antsy.”

An elderly couple, Mr. and Mrs. Tramm, approached the bench. Mrs. Tramm was seventy-six years old, extremely petite, and spoke very little English. Although her husband could speak English, it appeared as though Mrs. Tramm preferred to address others—in this case, the court—in her native Mandarin. Mitchka Bavandi, an assistant public defender, had ordered the services of a Mandarin court interpreter, who appeared at the bench with them.

Cultural sensitivity is essential in a highly diverse community such as Broward County, where in 2010 the non-Hispanic white population shrank to less than 42 percent of the total population.⁶ Those concerned with the promotion of mental health must deal with the fact that different cultural beliefs about mental illness influence how individuals and their families perceive mental health treatment and whether they will seek care. For those who do want care, overcoming existing barriers and disparities in services available to different socioeconomic and cultural populations are additional considerations one must keep in mind.⁷ Some resources may be, simply, out of reach as a result of economic or cultural factors.

For older court participants, the importance of all dimensions of culture—language, sexual orientation, gender, education, religious or spiritual orientation, class, race, and ethnicity, the personality traits it takes a lifetime to hone—are magnified. Those are the distilled elements that for elder court participants can either enhance or derail a mental health plan.⁸ The elderly hold lifetimes of accumulated experiences and wisdom; these invisible traits represent the imprint of a person. They can also contain the details that can derail an ill-conceived treatment plan.

Several decades earlier, Mrs. Tramm had been diagnosed with schizophrenia. Because of their culture and beliefs, the Tramms did not want her to take medication. Instead, the public defender explained, Mrs. Tramm had been treated with Chinese herbal remedies.

I reviewed her case file. She had been charged with petit theft: pocketing paper napkins and a pack of chewing gum from a corner market.

I introduced myself to Mr. and Mrs. Tramm and informed them about the mission of the mental health court. Mr. Tramm explained to me that he was the owner of three Chinese restaurants in Broward County, and that his wife had worked with him in the restaurants for nearly all their married life. “She is doing fine,” he said.

Mrs. Tramm appeared highly agitated. She stood next to her husband clutching a stack of what appeared to be random papers, each one covered with Chinese characters printed in red ink and also bearing some food stains. She blurted out something along the lines of “being a Supreme Court Justice.”

“Judge, if I may,” Janis said, stepping forward. “I spoke to Mr. Tramm prior to court this morning.”

Janis explained that the Tramm family was very supportive and protective of Mrs. Tramm. She had never been left by herself for any length of time. The Tramms’ large extended family worked in their restaurants and also had shared the responsibility of caring for Mrs. Tramm.

Len, the prosecutor, weighed in. “Judge, that may be true, but I would like you to see the defendant’s criminal history. This is certainly not her first criminal offense.”

Len handed me Mrs. Tramm’s criminal history. I was surprised to see that she did in fact have several prior offenses for petit thefts. Granted, most of the charges had been dismissed. But the list wasn’t short, and it spanned several years.

Mrs. Tramm heard the prosecutor’s comments translated by the interpreter in Mandarin and became increasingly excitable. She began to respond in a manner that even the interpreter could not decipher. Her arms flapped rapidly, moving the scraps of paper in her hands like little white wings. Words intermingled with moans and sighs.

“I suggest, Your Honor, that we follow Mrs. Tramm in the court for a time,” Janis said. “We can see if the court’s engagement interrupts her justice involvement. I will work with Mr. Tramm to strengthen the supervision that the family provides for her.”

Janis led Mr. and Mrs. Tramm to a seat in the second row, where they could observe the court process as Mrs. Tramm became calmer. This would become her favorite pastime. For months, there Mrs. Tramm would sit, transfixed by the lives moving in and around the courtroom. It seemed to soothe her somehow.

As presiding judge, I never imposed any conditions to her release other than her family’s promise that she would commit no new offenses—which, incredibly, she didn’t. For six months she attended mental health court hearings, observing them from her spot in the second row, with her husband by her side.

One day not long after the Tramms started observing my courtroom, the double doors to the courtroom burst open and two police officers walked in holding the arms of a frail, elderly woman who had been arrested in her bed. The woman was in her eighties, and her eyes were wide open and filled with fear. I immediately stopped the hearing and halted the officers who had brought her into the courtroom before they could sit down.

“What have you done?” I asked.

“Judge,” one of the police officers replied, “this woman is under arrest for battery, and due to her advanced age, my supervisor suggested that we bring her to your court.”

I asked them to be more specific. “What do you mean ‘arrested for battery’?”

“Well, Mrs. Wilson is a resident at Paradise Gardens Nursing Home,” said one of the police officers. “And according to the nursing staff, she allegedly bit the cheek of the nurse who was attempting to feed her.”

“What?” I asked in disbelief.

I immediately dialed the telephone number of the nursing home and asked to speak with the administrator from the bench. When I confirmed that I had the administrator on the phone, I told him that I had Mrs. Wilson in my courtroom and that I was sending her back to the nursing home “forthwith!”

The administrator, who obviously detected the outrage in my voice, conceded to my demand. He agreed that Mrs. Wilson should be returned to the facility.

“Officers, you heard me: please transport Mrs. Wilson back to her nursing home,” I said. “I expect that this case will not be prosecuted, and my clinician will be following up with the nursing home to review this matter.”

Mrs. Tramm, in the second row, listened intently.

One dimension that is rarely mentioned in discussions of our courts relates to vulnerabilities of our elder court participants to elder abuse: physical or emotional abuse, neglect, and financial exploitation. According to the Centers for Disease Control, elder abuse is a serious problem and often difficult to detect. Many individuals who may have been subject to abuse do not report the abuse out of either fear of reprisal or shame or because of a disability, so they cannot.⁹ In fact, in 2008, one in ten elders over the age of sixty reported emotional, physical, or sexual abuse or neglect within the previous year.¹⁰

Within days, Janis informed me that she had reviewed the issue with staff in accordance with my court order, and she would conduct an inquiry into this matter. According to Janis’s findings, Mrs. Wilson had been diagnosed with dementia. She also had other serious medical problems that required skilled care. To make the situation more egregious, at the time she was arrested, she had a feeding tube inserted in her stomach, which meant she was not capable of feeding herself. I thanked Janis for the updated information. She replied that the matter has been turned over to the Agency for Health Care Administration for review.

For the next few moments, the courtroom remained silent, as if in disgrace—or perhaps it was in gratitude that even if the police did not use their discretion properly, Mrs. Wilson did not end up in jail. Instead, the case came to this court first, where it was halted, just as it should have been. With that acknowledgment, I called the next case.

Richard Martinez, sixty-seven years old, had been arrested for stealing food from a grocery store. The arrest paperwork alleged that Mr. Martinez had been seen by the store’s loss-prevention staff eating various food items in the store while pretending to shop. His “shopping snacks” included a container of clam chowder that he had taken from the self-serve soup counter in the deli section, a package of freshly made sushi, and a fountain soda. When the deputies wheeled him into the courtroom, it was evident that his needs were far greater than hunger.

“Mr. Martinez, sir,” I said, “how are you doing?”

“I’m sorry for eating what wasn’t mine,” Mr. Martinez responded. “I was hungry, and I could use some help.”

“What’s going on in your life that led you to take food from a grocery store that you couldn’t pay for?” I asked.

Mr. Martinez explained that he had worked in construction most of his life. In 1997, he fell off the roof of an office building he had been working on. The fall resulted in a coma that lasted for several months. “You could look it up, Judge,” Mr. Martinez said. “It’s true, and it was in the news.”

I asked my judicial assistant, JoAnne, to see if she could find the news report. As JoAnne went to her laptop to do an online search, Mr. Martinez continued his story: “The doctors put a metal plate in my head and after I’d been released from the rehabilitation center. But I still wasn’t able to work due to the severity of my injuries and brain trauma.” He explained that the pain had been so intense that he turned to alcohol and drugs to manage his pain. Then, as often happens in a medical crisis, Mr. Martinez’s wife left him. He lost everything as a result of his disabilities and his growing addiction to drugs and alcohol.

“Judge, I found the article,” JoAnne called from her impromptu work station in the court room. “It was published in the Miami Herald.” She handed me a copy of the article, which confirmed that Mr. Martinez had survived a horrendous accident. It was a miracle that he had survived a fall from the roof of a four-story office building that had been under construction in Fort Lauderdale.

“You certainly are a lucky man,” I said to Mr. Martinez as he sat handcuffed in his wheelchair, next to the jury box in the courtroom. “I mean, to have survived such a serious accident.”

Mr. Martinez hung his head in a way that suggested he did not share my view of his good fortune to be alive. “I have nothing to live for,” he said. “I have nothing: no home, no family, no health insurance, and now the doctor tells me that I could lose my left foot because of the lack of circulation in my leg.” He pulled up the left pant leg of his jail jumpsuit and showed me his leg. It was abnormally swollen and colored black, as though ink had been injected into his leg. The sight was disturbing, and I had to look away.

“Judge, if I may,” Janis said as she approached the bench. “Mr. Martinez appears severely depressed, and I suggest you order him to Broward Health based on his medical history. It is clear that he is at risk of harm on the streets, and his medical needs are complex.”

I nodded assent. “Mr. Martinez,” I said, “I am going to get you out of jail and we are going to try to find you a place to live.”

“Bless you, Judge,” he said.

I had a long history of advocacy on behalf of clients who resided in South Florida assisted-living facilities (ALFs), nursing homes, and other institutional settings. As a former public guardian and attorney for the Advocacy Center for Persons with Disabilities, I had personally observed and reported countless horrendous incidents of elder abuse, exploitation, and neglect of Florida’s most vulnerable citizens. For people with psychiatric and physical disabilities who need supportive housing and services—because they are not able to live independently and properly care for themselves or live with family—housing options are significantly limited.

For those who are without financial resources, ALFs are often the only alternative to homelessness. Because of the poor housing conditions, many people are reluctant to live in an ALF and would rather endure the harsh conditions of the streets to those associated with group living, where abuse and inhumane living conditions are the rule rather than the exception. In mental health court, referrals are rarely made to ALFs, and if such a referral is unavoidable, consumers are referred to only a small handful of known providers.

When Mr. Martinez had been discharged he appeared more optimistic and reported that he was feeling better. The hospital social work department had negotiated a bed for him at a local ALF of which the court was not aware.

There were other reasons why it was hard to find a home for Mr. Martinez. I immediately called the hospital’s social worker and learned that Mr. Martinez received only a monthly $700 Social Security disability payment. He had no other income. The hospital caseworker stated that “it is almost impossible to secure housing placement for a person who receive[s] that minimal amount, and that many facilities will not accept people who rely on wheelchairs.”

I conferred with Janis. Her opinion was that unless Mr. Martinez qualified for a skilled-care nursing facility or an Adult Disability Medical Home, the hospital social worker was correct.

I entered an order for Broward Sheriff’s Office to transport Mr. Martinez to the ALF that had been arranged for him. I decided to monitor the case, not because I was concerned about re-offense but because I did not have confidence in the discharge plan and wanted to follow Mr. Martinez into the community and monitor the appropriateness of his placement and make sure that he had a safe place to live.

Within weeks, Mr. Martinez was back in jail. He had been arrested for trespassing. Allegedly, he had been sleeping on the lawn in front of a bank. When the deputies wheeled him into the courtroom, we were eager to find out what happened. So far, reports had been a blend of mystery and rumor.

“I got to the facility,” Mr. Martinez said, “and the next day I was taken by staff to the Social Security office. They dropped me off and left me there. I had nowhere to go.”

I was incensed. Who drops off and leaves a disabled person who had endured severe physical, mental, and emotional trauma? I had my concerns about this ALF, and I suppose things could have been worse. At least he had not been harmed.

I redirected my frustration to action. “Janis,” I said, calling my court clinician to my bench, “from my experience it is impossible for people who receive less than one thousand dollars a month in Social Security to secure a placement in a decent assisted-living facility. Is that so?”

Janis reminded me of the elderly woman who was diagnosed with schizophrenia and living in an ALF when there was a fire. Fortunately, she had been hospitalized at the time of the fire and was not in the building. “You and I went to see that facility,” she reminded me. “We immediately contacted the mental health center that was responsible for her case management to investigate further.”

That story triggered horrible memories of my experiences at several ALFs and group homes during my tenure with the Advocacy Center for Persons with Disabilities. In 1994, when I was the plaintiff’s monitor of the federal class-action suit Sanbourne v. Chiles, a significant portion of my time was spent following class members into the community to evaluate the appropriateness of their community placement in accordance with their discharge plan from South Florida Hospital.¹¹ The Florida legislature had been threatening to close the state hospital. My monitoring duties covered six counties. Although it was not feasible to follow every class member, I did review the living conditions of many of our clients. For those without families, the living conditions were often substandard and, depending on the facilities’ deficits, required a range of legal responses.

In 2011, Carol Marbin Miller and the Miami Herald investigative team published a three-part series called “Neglected to Death,” which revealed the egregious and inhumane treatment of adults with disabilities residing in ALFs throughout Florida.¹² The series also documented the impact of failures to hold these facilities accountable through mandatory inspection schemes and effective enforcement of state laws designed to protect the health, safety, and welfare of vulnerable Floridians. The Herald series had great impact and resulted in the closure of dangerous homes, the punishment of repeat violators, and the passage of tougher laws.¹³

Yet for Richard Martinez and other older Floridians in need, it was not enough. Resources to enhance existing assisted-living programs and establish new models of care still have not been embraced by state policymakers.

Eventually, Janis successfully negotiated a bed for Richard Martinez in an ALF where the care was of good quality and she had confidence in the owners.

“Every now and again I get lucky,” she said, referring to the fact that Mr. Martinez had survived such a tragic accident and then had survived an episode of poor care that had impacted both his body and his mind.

We called the next case—Mrs. Tramm. It had been six months since her case had first come to the attention of the mental health court. I asked the prosecutor if he was satisfied that the family had stepped up its supervision of Mrs. Tramm. New protective rules had been implemented among the family members so that Mrs. Tramm was carefully supervised while shopping and was not permitted to shop by herself.

“Are you ready to dismiss the charge against Mrs. Tramm?” I asked the prosecutor.

“Yes, Judge. I think the Tramm family has done a good job in helping prevent any further problems or arrests,” he said thoughtfully. “I will dismiss the charge.”

It proved to be a bittersweet goodbye. Everyone in the mental health court enjoyed Mr. and Mrs. Tramm’s presence in the second row, listening and watching. We were uplifted by their devotion to each other and the quality of life that they were living in their golden years.

“Please visit our restaurants. We would be happy to have you,” Mr. Tramm said.

As they walked away from me toward the courtroom door, Mr. Tramm wrapped his arm around his wife. It was a gesture of grace and kindness acquired over a lifetime. Perhaps that is the true wisdom that comes with age and experience, and that is the wisdom that we, as a community, must learn to protect and honor.