The Incredibly Sad Tale of Susan Mclendon and Luke Humphrey Or How Does One Lose Visitation?
The Incredibly Sad Tale of Susan Mclendon and Luke Humphrey Or How Does One Lose Visitation?
28 June 2009 at 5:11:26 PM
How does someone go from being sole managing conservator, raising a boy from infancy, to losing guardianship when that now-young-man is disabled? And then finally having one's visitation severely restricted? I'm going to tell a story here, with some links to docs. First I want to make clear that, up until about a week ago, I had never met Susan Mclendon or her husband Bill. Some kin of her were drawn to the site because of the various postings I did concerning the proposed hospital district election (failed) in Somervell County), because of Luke Humphrey being a resident at the Glen Rose Nursing Home. I have no way personally to know whether any of the her story is true, but what I can do is post a small, selected portion of the legal documents and related materials that a court would be examining. It may well be that, had this whole thing been conducted like a trial, she would have lost.. or won. I don't know. But I think you will agree with me that, as presented, she deserves to have a day in court to let it be fully heard. As I've said before, if you know another side to this and wish to add information, with docs, feel free to email it, but it has to be more than vague insinuations that aren't substantiated. Anyway, pretend this is YOU.
You have a boy. You're raising that boy and you have to chase the father down to pay child support, not once but three times. The third time the father is found in contempt of court and placed on probation for some years. Down the road, you remarry and you and your new husband raise the boy, you as the sole managing conservator and the biological father with visitation rights. You buy a home in the country and plan on moving out to it when your son graduates in 2005, but your home, put on the market in April 2005 sells very quickly and you move out on April 30, 17 days before your son is to graduate. Your son moves in with your daughter for the last 2 weeks of high school, and then, in August of 2005, you rent him an apartment in Tyler for freshman year at college. Meanwhile, your son got a DWI in 2004 in Gregg County and was told by the probation he had to maintain his residence in Gregg County until October 2005
When your son is 19, on January 27, 2005, he was in an auto accident, driving his father's car, and he became brain injured. He was sent to Baylor Hospital in Dallas, and you spend a great deal of your own time up there caring for him and being taught by the nurses, etc on how to do some functions for him. You don't quite like the care the main doctor on the case is giving your son, so you ask for him to be removed. You, because you are not only mom but the primary person with responsibility to raise him, ask for this, you assume it will be so. What you don't know is that the biological father has decided to file for termporary guardianship. You don't know this because, even though you are the other parent, and the one that was the sole managing conservator, you are not served with papers or otherwise notified that this is happening. You hear about the hearings quite casually, almost by accident, when a care coordinator tells you at the hospital that you need to get your things and leave the hospital, because your ex-husband is now the temporary guardian.
You get an attorney, you go to the hearing, even though you had had no notice of it through any legal channels, and even though the court had said you should be notified, and find that there is a presumption that you will agree to what is apparently already decided upon-that the bio father will be temporary guardian and it's in your interests to agree. You are told, basically, that the hospital doesn't like your personality and the way you ask questions, are so intensely involved in your child's health, even, gasp, to the point of looking up symptoms on the internet to discuss with the doctor. ie, you are viewed as a pest and Mothers That Are Pests and not silent go-along types must be removed. At the hearing, the judge, who is a county commissioner, assumes that the agreements have been made beforehand and is not happy to find out that you are not going to agree to temporary guardianship without access to your son's medical records and an open visitation. Venue for the hearing is not set in your own county and the county where your son has probation, but in a different county. Because the hearing is taking so long and the county commissioner has other things to do, the hearing is set to start again the next day. You have the feeling that your son is going to be moved from Baylor to somewhere else, you ask and are told no, that's not going to happen. One thing is that the judge has SAID that the ex CANNOT do anything until the papers are certified. Yet the next day, unknown to you, your son is moved to a nursing home in another county; you find this out when you go to visit him at Baylor. YOu also find out that your son was moved in quite an unsavory way.(Look on page 27 -stepmother's testimony)
In the new rehab center, you find out, when you open a curtain and are told you can't do that, that your visitation is now supervised. Why? Because your ex-husband had told Baylor that because you had helped change your son's diaper and had laid on the bed with him (clothed) that you were being improper and he needed to do something to control you. You continue to be concerned about your son's health, but somehow the more you want to draw attention to his condition, the more annoying you become to staff. Your ex-husband, being now appointed as temporary guardian, decides to limit your visitation some more. You had already filed for permanent guardianship in Gregg County but also decide to file in Smith County.
In July 2005 you go to visit your son and find out that he has been moved again, this time to a faclity in Houston. No one told you because you aren't the guardian.
At a future date you go to visit your son and find out he has been moved again, this time to Glen Rose. No one told you. Your visitation continues to be limited and requires that you go out and pay for a security officer to accompany you. The staff there also appears just not to like you (see David Dennis testimony-also reminds me that there was a lawsuit against Glen Rose Medical Center in 2003 and an employee about a year ago that was convicted of fraud).
Now, I'm going to digest this just a bit, with my own opinion. I have met Ms Mclendon twice, and she is a very assertive, talkative, opinionated, and smart woman. I can definitely see how her in your face style might put some people off. But it equally seems to me that someone shoudln't be disqualified from care simply because she's the type that wants to be heavily involved, know about her son's medical condition, and could bug hospital staff. After all, surely every single person that goes to a hospital is not the docile type that listens to the doctor and agrees. Or is that the expectation when it comes to health care? That you should never get second opinions, or try to investigate for yourself? Seems to me that if a medical facility has someone that is pesky because they want to know more and are taking photos, etc to get resolutions, that the medical staff ought to push back to set some limits, but not take away guardianship! It's astonishing to me because it's like someone deciding another person is not a fit guardian due to personality style issues.
I'm quite troubled by the fact that, despite her being the Mom In Charge for her son's life (and certainly that was never contested by the biological father-surely if he thought she was unfit, he would have taken her to court much sooner, right?), when it came to deciding who would be temporary guardian, she wasn't even notified, either informally or legally, that such hearings were taking place. How can that be right?
And at the hearing she originally attended, there was a presumption that all details had already been worked out and she was going to agree to the biological father being the temp guardian. Flaws with that- the father's application that was filed April 15, 2005 was not a *sworn* application, even though the probate courts require it be on file before appointing a guardian. Although the judge Becky Dempsey had ordered on April 26, 2005 that Ms Mclendon be given personal service, it didn't happen, even though her incapacitated son was served on April 23 2005. The temporary guardian was appointed ON April 26, 2005, with commencement on April 15, 2005 ending June 14, 2005. But there was no *agreed order* that extended the temporary guardianship that was signed or entered. The contest to the termporary or permanent guardianship was not filed until June 23 2005, and no inventory was filed (as the probate court required) on May 4, 2005. There was no certificate of guardianship that was filed with the Clerk of Courts-why does this matter? Because the judge TOLD the ex-husband that, even though he had filed a bond as good faith for the guardianship, that he could do nothing about his son until the certificate was filed... and yet within a day Luke Humphrey was moved to a different facility.
I've thought about what I would do if I had an incapacitated child. I don't know that I would be as in your face as Ms Mclendon. But if I was, and I thought I would ask the doctors all kinds of questions, would that be SO wrong? Would that make me a pest? When my father was in the hospital earlier this year, before he passed away, my mother didn't really understand what was going on. My father had had three surgeries and a fourth was planned. One of my cousins, who is a nurse, told us all in email to call up the doctors and nursing staff and have them explain, in detail, exactly what was going on and what the problem is. She also sent us a very detailed description of his condition. She told us we needed to be involved in his care, all of us. So, what? Is there a line that one does not cross with involvement? Is there one question too many one might ask, or too often? I mean, just because staff might not like getting asked questions etc, again, doesn't mean that they shoudln't be trained on how to handle those types of people, just as one might seek to draw out introverts who probably *should* be asking more. Everyone is simply not the same in how they deal with situations. But it's not a reason to try to take away guardianship.
Ms Mclendon believes that, based on what she was told by the ad litem, that Baylor may have viewed her as a *lawsuit waiting to happen* because she disagreed with the doctor, wanted better care, took photos, etc. This despite the fact that she was NOT running around saying she was going to sue the hospital, at least not that I have seen in any record I have read so far. So does that mean that a hospital might work to eliminate threats to their healthcare system on the *possibility* an involved parent might decide somebody to sue? Apparently so, and this gave them the right to have attorneys intervene to take away her rights because they viewed her as a *pest*?
Ms Mclendon wanted to challenge the jurisdiction of the case (being that she believed that Gregg County was the proper venue and not Smith county). ON Feb 8 2007 at a pre-trial hearing, the jurisdication was challenged, but the court refused to address the issue. I am not an attorney, obviously, so I had never heard of a Mition in Limine, but it seems like it's basically where you have a chance, before a trial or hearing to challenge the information that will be brought out in the trial or hearing and either admit or suppress it. I read the entire In Limine hearing and it made me cringe. Mclendon clearly also didn't know exactly what in limine was, and for some reason had no attorney. She appeared to be challenging the material as compiled by the admin to the ad litem, but that's not at all the same thing as challenging the person or entities that wrote the information she was seeking to challenge. But where *should* she have challenged that information? Seems to me that would be in the hearing or trial that was upcoming. Except that, based on this listed information that did not have specific sources or witnesses, she was declared to have an adverse interest in the guardianship of her son and was taken OUT OF HER OWN CASE. Let me say this another way. Suppose people are saying stuff about you-maybe it's true (how do *I* know for sure whether the people who had things to say about Mclendon were true, were opinion, were hearsay, etc?) . But if it's not, shouldn't you be able to face your accusers in a court????? in the in limine hearing, she was repeatedly told that asking the compiler of the list about what's on it wasn't proper. I agree-because if I make up a list of what other people say, it's not ME being asked whether the info is true or not. So, when she saw that list, she had no way, in that hearing, to contest the accuracy of what was being said or challenge the people saying it. The upshot of it was that a motion was filed to take her out of her own case and throw out any other pleadings she had filed, including for permanent guardianship, jurisdiction, venue, etc. McLenon believes that the Motion in Limine was actually a summary judgment.
Some of the complaints that were brought up in the in limine hearing were that she lowered the guardrails on Luke's bed and had been told not to. And that she put duct tape over his trachea. And that she was had changed his diaper and was being inappropriate by lying in bed with Luke (at Baylor). It was interesting to me to read trial court 33-591 on July 9 2007 in which the judge said, in talking about providing medical records to the mother, "I just think the mother has a right to know. No matter how-if I thought she was actively trying to kill the child, it would be different. I don't". So, here's a judge saying that she doesn't provide a danger to her child or at least isn't some kind of munchhausen by proxy mom that is secretly trying to kill him. If, then it's not that she is a danger to him, what? The medical entities object to her doing stuff like brushing his teeth or being concerned about cysts on his head? Or trying to snuggle up to read to him, given that he couldn't get out of bed to sit next to HER! The woman was TRAINED by Baylor how to do medical *mom* things for him, and what mom hasn't changed a friggin diaper???? (When I saw that somebody objected to her helping change a diaper, and insinuated she was a pervert, I wondered what people say when their parents are incapacitated and the children have to change THEIR diapers. I've said before that my grandma and grandpa died at home, with their children doing stuff for them. And I guarantee it included changing adult diapers).
Anyway. Here's the upshot of it. There's a huge amount of records surrounding this case and I have only touched on a small portion. It will hopefully be up to the Texas Supreme Court to look into these matters fully. But I do believe that the whole thing was handled very very badly and took rights and at least the chance to contest the guardianship away from Mclendon, who I think should have had her day in court over it at the initial stages, with adequate and legal notice that this was happening. I"m troubled that this type of thing can happen in America. If I were ruler of the world, I'd throw the whole thing out because of all the errors and start over, from scratch, with plenty of representation on both sides.
I almost forgot. On March 15, 2007, there was a change to the Texas probation code on HB 417 (p 7, Section 7.690 to page 8 (4)(B) talks about joint appointment.
Sec 690. Persons appointed guardian. Only one person may be appointed as guardian of the person or estate, but one person may be appointed guardian of the person and another of the estate, if it is in the best interest of the ward. Nothing in this section profhits the joint appointment if the court finds it to be in the best interest of the ward..... of (4) both parents of an adult who is incapacitated if the incapacitated person (a) has not been the subject of a suit affecting the parent-child relationship or (b) has been the subject of a suit affecting the parent-child relationship and both of the incapacitated person's parents were named as joint managing conservators in the suit but are no longer serving in that capacity.
Rep. Will Hartnett has sponsored several Bills regarding guardianship after we wrote to him back in 2006. He is no longer the Chair of the Judiciary but he is still on that legislative committee. We are asking him to sponsor another Bill regarding Motions In Limine (Probate Code Section 642.) The Texas Supreme Court sent us an update of our Petitions for Review [No. 09-0406]. It was denied. So, the way I see it, their denial literally gives lawyers and judges carte blanche to circumvent Probate Code Section 681 (which is the Disqualification statute allowing a jury trial) and use a Probate Code 642 Motion In Limine (which does NOT allow a jury trial) to take away parental rights to children who have become incapacitated adults. What a violation of Constitutional Rights. Hey, up there, in the Legislature. Are you listening? If 'We the People' don't band together and write our legislators and get these laws changed, we will have no-one to blame but ourselves when this happens to you.
C.S.H.B. 417 (80th (R) 2007 is a House Bill sponsored by Rep. Will Hartnett and Jeff Wentworth. Part of this Amendment to the Texas Probate Code deals with section 690 of the Probate Code. The Bill passed unanimously and became effective Sept. 1, 2007.
In a Committee Report on May 3, 2007 Mr. Hartnett gave this analysis:
SECTION 7. Amends Section 690, Texas Probate Code, to include both parents of an incapacitated adult as joint guardians of a ward if the court finds it to be in the best interest of the ward and if the incapacitated person has not been the subject of a suit affecting the parent-child relationship; or has been the subject of such a suit and both of the parents of the incapacitated person's parents were named as joint managing conservators in the suit but are no longer serving in that capacity.
Please people , this is not about personalities. That is what hospitals/docs etc would like you to believe( amyone's personality can be attacked for something) . This is about COVER UP. When hospitals and nursing homes and DADS want not to have to deal with the poor care a patient is getting, this is their first line of attack. The person complaining is " Crazy" somehow.
Hospitals are scary places to be these days. I have heard too many similar situations where hospitals go the the extreme of cutting family members out of the patient's life - as they know their local buddies in probate will help them accomplish this. They are only interested in protecting themselves.
Too many probate courts are not interested in the well being of the incapitated person- but in making money from the estate( especially with the elderly). If there is not a large estate, there may be other reasons for having secret meetings( against the law) that determine guardianship. No one oversees these courts and they think they OWN the counties in which they operate .Yes this does happen often in America.
Salon, thank you for this excellent article. We need more people like you who are willing to put the facts out on the table and let "the People" be the judge. This whole case has truly been a learning experience for my sisters and me. When we started out, we knew absolutely nothing about Probate laws in Texas, or in Ohio where I live. But we set out on a mission, (the ad litem says we have our own agenda), to help Luke. As we delved into the laws and procedures we realized the courts and the lawyers were not following them. We realized the judges do not know the law and instead depend on the attorneys to tell them what the law is or should be. They expect common ordinary people, like us, to follow the law, but then place themselves above it. We have activist judges who legislate from the bench. Instead of interpreting the law, they make it up as they go along. Attorney's don't have to follow procedure, but 'pro se' or 'pro per' litigants who don't have attorney's must follow laws and procedure only to have their pleadings ignored or thrown out completely.
We will be filing a Motion for Rehearing in the Supreme Court on No. 09-0406 and hope that they will reconsider our Petitions.
We also still have one more Petition for Review pending in the Supreme Court. [No. 09-0442].
You are right when you say this whole case should be thrown out and started over. It is NEVER in the 'best interests' of any ward to be isolated from the family he grew up with. We are just three mothers fighting for justice. Susan is right when she says this battle belongs to the Lord. 2 Chronicles 20:15 "And he said, Listen, all you a Judah and you inhabitants of Jerusalem, and you, King Jehoshaphat! Thus says the LORD to you: 'Do not be afraid nor dismayed because of this great multitude, for the battle is not yours, but God's."
We're not fighting against flesh and blood, we are fighting against principalities and powers. Yep, we've gone up against 'city hall'. Down but not out. The race in not over yet. Somehow, some day, some way, the perpetrators will be held accountable for what is happening to Luke, and Susan, and 'to the least of these'.
In my mother's case, we found it very difficult to to get a judge to go against a medical opinion. The clinic, my sister took my mother to, is known for finding people incompetent, and the main doctor was not even certified in gereactics. She ( the doctor), based a lot of her questions on stories that my sister told her, that were not true. My mother was told she was being taken in for a phyical not a mental evaluation. The judge questioned her at the hearing and found my mother lucent and able to answer all his and the attorney's questions, but still appointed a guardian based on the medical report. We did manage to keep her in her house, with in home care, but it is very expensive. Prayer is the only solution I have to offer, that and a mother's love, with brave people like Salon and others.
@James-and I think that some changes in this lege session are going to make it even tougher for people to qualify for home care for their loved ones. What's discouraging to me is that there doesn't seem to be (and didn't seem to be for your mom) some kind of due process for all concerned. If one is going to be characterized a certain way, then one ought to be able to fully challenge the criteria against one.
About the mother to be notified. the court had said you should be notified, Is in the April 26, 2005 Transcript on P 13 L 11-15 . (Q). " Mr. Humphrey, do you know the address of your ex-wife?" (A). " No, Sir, I do not." (Court): " She will need to be personally served, so we need that information."
Landy knew that Susan was at the hospital with Luke and knew that she had rented an apartment 6 blks from the hospital at the Old Ark House, apartment 'A' on Junius Street during that time in order to be close to Luke. He knew this and her whereabouts because during that same period of time he rented apt. 'D' , 3 doors down at the same complex. Check with the apartment mgr. they can verify this.
There are sooo many incidents such as this, that he, Landy, should be prosecuted for perjury because he was under Oath in the Courtroom when he made this statement and many more just like it, knowing it was false testimony.
If you go to the above web site you will see the truth regarding the duct tape on Luke's trach. The photos that are referenced are on the bottom of this page, meaning the Salon.
14 - susan
24 Aug 2009 @ 2:13:40 PM
why hasnt the father or anyone from his side write in and tell there side? That just shows how wrong they were .All I can say is they are a sick bunch and thanks to the brother for the phone call but its a shame he didnt call when he frist died and found out about it . He knew he couldnt lay down at night and sleep if he didnt do that much. susan dont worry Luke knows you would of been the frist one to be there your his mother.
i dont know you but I know how nurseing homes are and I would have wanted to know every step and every reason why things are were the way they were .You keep your head up .Ill be praying for you.
This is such a sad story--after reading the accident report, I question the father's judgment. This was a fatality accident--someone died because this young man was driving with an invalid license after a DWI while visiting the father.
17 - SUSAN
25 Aug 2009 @ 11:10:44 PM
You hit it right on the head the father doesnt care !!!!!! and it is dirty what he did . and yes I hope Luke is resting in peace. And the other person that died from the accident .But it was still very wrong not to let the mother know.
Why hasn't anybody from the person who died in this accident not filed negligent charges against Landy Humphrey. Seems to me that Mr. Humphrey should be held accountable for this death. Didn't he get a fake license for Luke? Did he let Luke drive his truck knowing he did not have a license. It seems to me that this should be a criminal act on his part. Isn't it against the law to falsify a drivers license. If it was my family member who died in this accident for the negligence and criminal act he imposed on his own son, I would be on him like stink on poop. I would make an example of him, because of his criminal act because I lost a family member. And he is walking around scott free. He should be charge with criminal neglicence. Hasn't anybody tried to contact the family of the person who died. I would be and I would assist them in getting this to the officials. Perhaps the Texas Hwy Department will look into this. How about the insurance company? The insurance companies involved should also be involved here too. Did Mr. Humphrey have insurance? I'll just bet he may never be able to get it if they knew how negligent he was. TXDOT suspended Luke's license didn't they. Like i said if my family member died in this auto accident, I would have filed negligent charges against him. Did Susan file negligent charges against him for giving Luke his truck to drive? If not because of guardianship, I am sure that his sister or brother could. They are not bound to the Guardianship laws, other than being removed from visitation. Just a thought, Mr. Landy should be held responsible for someone's death including Luke's. He was bound by Guardianship Laws, they didn't work for Susan, but he should be responsible for not complying to those very Laws that the Judges ordered upon him. Luke is always on my mind, and because of his circumstance, I will stand by you all in changing these laws. He is our hero, his experience will make a difference in so many lives as we and many groups are working to make sure that what has happened to him will not ever happen to another incapacitated Texan. See y'all soon, we have many visits with one another and I look forward to them all.
Sleep with angels Luke, you have been delivered from all evil. God Bless you baby.
Debby- San Antonio
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