Petition for Writ of Certiorari — Golin v. California Department of Developmental Services

_-7\ Supreme Court, U.S.

(D FILED

04 829 MAY 27 2004

No.

IN THE

Supreme Court of the United States

JEFFREY R. GOLIN AND ELSIE Y. GOLIN

ON BEHALF OF THEMSELVES

AND AS NEXT FRIENDS FOR DAUGHTER

NANCY K. GOLIN,

Petitioners

v.

CLIFFORD B. ALLENBY, DIRECTOR

DEPARTMENT OF DEVELOPMENTAL SERVICES,

STATE OF CALIFORNIA

AND

SUPERIOR COURT OF SANTA CLARA COUNTY,

Respondents

On Petition for Writ of Certiorani

To The Supreme Court of the State of California

PETITION FOR WRIT OF CERTIORARI

JEFFREY R. GOLIN

ELSIE Y. GOLIN

PRO SE PARENT-PETITIONERS

13736 DE LEON AVE.

SANTA NELLA, CA 95322

(650) 814-6284

QUESTIONS PRESENTED

1. Whether parents retain a constitutional liberty

interest in the care, affection and association

with a willing retarded daughter after the age of

adulthood. ‘

2. Whether a willing handicapped or incompetent

adult has a corresponding constitutionally pro-

tected liberty interest in her continuing protec-

tion by her dedicated family.

3. Whether a State may impose involuntarily cus-

tody and conservatorship on a merely mentally

disabled non-dangerous adult daughter, remove

her from her family and home, and place her in

State institutional care without giving prefer-

ence to the wishes of her caring parents, and the

person herself, under Title II of the Americans

with Disabilities Act, 42 U.S.C. § 12132, and

Olmstead v L.C. by Zimring, 527 U.S. 581 _

(1999).

4. Whether State-sponsored programs for the

mentally retarded may be compulsory for a fam-

ily of a retarded adult daughter despite parental

rights to the care and upbringing of their child

established in Pierce v. Society of Sisters, 268

U.S. 510 (1925)

Whether a family residence can be rejected as

the “least restrictive environment” under the

Olmstead integration mandate in favor of a RCF _

under the supposition that “segregation ac-

cording to disability” is preferable because it fa-

cilitates “socialization with peers”?

or

Petition for Writ of Certiorari, Golin et alv. DDS Page j

TABLE OF CONTENTS

QUESTIONS PRESENTED

TABLE OF CONTENTS

TABLE OF AUTHORITIES

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

PETITION FOR A WRIT OF CERTIORARI

OPINIONS AND ORDERS BELOW

JURISDICTION

STATEMENT OF THE CASE

A. CHARACTERISTICS OF THE FAMILY

B. DAUGHTER ABDUCTED BY STATE

FROM HER FAMILY

C. ILLEGAL SECRET DETENTION;

MALICIOUS PROSECUTION

D. SECRET STATE CONSERVATORSHIP

PETITION

EK. INTERIM CONSERVATORSHIP,

CHARGES DISMISSED

F. STATE TEMPORARY

CONSERVATORSHIP IMPOSED

G. CONSERVATORSHIP TRIAL: PARENTS

V. STATE

H. SUCCEEDING PETITIONS FOR APPEAL

I.

CURRENT STATUS OF NANCY GOLIN

REASONS FOR GRANTING THE PETITION

~

I. CALIFORNIA VIOLATED THE

CONSTITUTIONAL RIGHTS OF PARENTS

IN CARING FOR THEIR DISABLED

DAUGHTER AS ESTABLISHED BY THIS

Petition for Writ of Certiorari, Golin et al v. DDS

Page 0

COURT 20

A. THE COURT BELOW ERRED BY

DEPRIVING PETITIONERS OF THEIR

FAMILY RIGHTS 21

B. THE COURT BELOW ERRED DENYING

NANCY GOLIN’S RIGHT OF

PROTECTION FROM UNNECESSARY

INSTITUTIONALIZATION PER

O’CONNOR V. DONALDSON 23

C. THE COURT BELOW ERRED DENYING

THE PARENTS’ CONSTITUTIONAL

RIGHT TO CARE AND UPBRINGING OF

THEIR CHILD PER PIERCE V. SOCIETY

OF SISTERS 26

Il. THE COURT BELOW ERRED BY

ACCORDING NO DEFERENCE TO NANCY

GOLIN’S PREFERENCES 27

Ili. THE COURT BELOW VIOLATED THE

INTEGRATION MANDATE OF THE

AMERICANS WITH DISABILITIES ACT

(ADA) NOT CONSIDERING A FAMILY

HOME LEAST RESTRICTIVE 28

IV. NANCY GOLIN’S FAMILY RIGHT TO

CONTINUING PROTECTION BY HER

PARENTS MUST BE CONSTITUTIONALLY

PROTECTED AS A RESULT OF WHITMORE

V. ARKANSAS 29

CONCLUSION 30

APPENDIX A

TABLE OF AUTHORITIES

CONSTITUTIONAL PROVISIONS

U.S. Constitutional Amendment XIV.......................:00000+ Vv

CASES

Bellino v. Superior Court of Riverside County, 137

Petition for Writ of Certiorari, Golin et al v. DDS Page iii

Cem Gr ED, CBG BP ccincnscescnscccnnitssnscatnnatsninnancesssness 27

Conservatorship of Early, 35 Cal.3d 244 (1988).......... 26

Conservatorship of Roulet, 23 Cal.3d 219 (1979)......... 18

Gold v. Superior Court of Marin County, 90

Ie ee ctitiickatnidsciicpinseiddbunsebanndatiianpiondaine 17

Griswold v. Connecticut, 381 U.S. 479 (1965) ............. 22

M.L.B. v S.L.o3., 519 U.S. 102 (1996).......0:....00ccssecceeeeee 18

May v. Anderson, 345 U.S. 528 (1953) ...............eseeeeeees 22

Meyer v. Nebraska, 262 U.S. 390, 399 (1923) ............ 22

O’Connor v. Donaldson, 422 U.S. 563 (1975)......... 24, 31

Olmstead v L.C. by Zimring, 527 U.S. 581 (1999).......... i

Parham v. JR, 442 U.S. 584 (1979)............ceccceeeeeeeeeeee 21

Pierce v. Society of Sisters, 268 U.S. 510 (1925)..:........ 21

Prince v. Massachusetts, 321 U.S. 158 (1944).............. 22

Santosky v. Kramer, 455 U.S. 745 (1982) ................00 29

Skinner v. Oklahoma, 316 U.S. 535 (1942).................. 22

Stanley v. Illinois, 405 U.S. 645 (1972)... eee 21

Troxel v. Granville, 530 U.S. 57 (2000).................00c00ee 23

Wisconsin v. Yoder, 406 U.S. 205, 213 (1972).............. 21

Youngberg v Romeo 457 US 307 (1982) .............. eee 32

STATUTES

aes ee at icincnticinsncincebandctienetnndecaiaisniduaaniass 28

28 C.F.R. pt. 35, appen. A, p. 487 (1999) ....... ee. 28

de ic stistideseccaeenisdnnneshibinicadnnininsaiabsenibbteionins 2

Fe ee Se ccoacesitinincethendiciaateenandinnstencidponcespsiunnniii Vv

Cal. Health & Safety Code §416 et seq..............ceee. 26

Cal. Health and Safety Code §416.23 0.000. 26

NE Bree SI isis seniisanicia edidadseadintaeisiadnsoastseuniconasasneaiiaea 7

es I i SITE sac.icescadsnpstonindnaenekunabeabecsesaluaboaiane 22

Bris 1 ox WIEN ised ccsobnaecenctansiiestnanceosaaasancemadanicuangs 13

Ct Ge hs. SID sas ctnicocnistiicacnaccnseepeepnannpbancabanoiaies 6

Se Es Oe i EIN Laciccsccntcgasceiacdanatinnsante. sinacunabaieietacsiienian 6

Ee, HE Be EI ics sscecncicsncporesuleteassstentaadabsnasientanmnnsnananediod 6

CE. I : GT: CIEE D onic sehsssteccnesridciedecenecesmadecdcndainel 6

TREATISES

“In the Most Appropriate Setting’: The Rights of

the Mentally Disabled Individuals Under the

Americans with Disabilities Act in the Wake of

Petition for Writ of Certiorari, Golin et al v. DDS Page i

Olmstead v. L.C.,” Neil S. Butler, 49 Cath.

UR, BOs DRE, DID Ce sikttistcretiastiessnsiernsinces 29

“Legal Planning for the Mentally Retarded: The

California Experience”, Herma Hill Kay, et al,

OP AE a: Gas WOU cacedahsnedsackandasbisnciiascmancd 26

“The Right to ‘Just Say No’: A History and

Analysis of the Right to Refuse Antipsychotic

Drugs”, Dennis E. Cichon, 53 LALR 283

(Louisiana Law Review) (1992) .................cceceseeeees 30

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

U.S. Constitutional Amendment XIV:

Section 1: All persons born or naturalized in the

United States, and subject to the jurisdiction thereof,

are citizens of the United States and the state wherein

they reside. No state shall make or enforce any law

which shall abridge the privileges or immunities of citi-

zens of the United States, nor shall any state deprive

any person of life, liberty, or property, without due

process of law; nor deny to any person within its juris-

diction the equal protection of the laws...

Section 5: The congress shall have the power to en-

force by appropriate legislation, the provisions of this

article.

42 U.S.C. §12132 (Title II of ADA):

Subject to the provisions of this title, no qualified in-

dividual with a disability shall, by reason of such dis-

ability, be excluded from participation in or be denied

the benefits of the services, programs, or activities of a

public entity, or be subjected to discrimination by any

such entity.

28 C.F.R. § 35.130 (Integration Mandate)

(d) A public entity shall administer services, programs,

and activities in the most integrated setting appropriate to

the needs of qualified individuals with disabilities.

Petition for Writ of Certiorari, Golin et al v. DDS Page v

PETITION FOR A WRIT OF CERTIORARI

Jeffrey R. Golin and Elsie Y. Golin, parents, next

friends and lifelong caregivers of Nancy K. Golin, respect-

fully petition this Court on behalf of themselves and their

daughter for a writ of certiorari reviewing a judgment of

the Supreme Court of the State of California denying a pe-

tition for review of the California Court of Appeals for the

6 District’s denial of a writ of mandate and prohibition, to

reverse an involuntary conservatorship order.

OPINIONS AND ORDERS BELOW

The following orders are included in the appendix.

April 28, 2004: California Supreme Court denial of a

Petition for Review and Stay of Sixth District Court of Ap-

peals denial of Motion for Transcripts to be Provided on

Appeal (S124153) (App., infra la).

April 9, 2004: California 9" District Court of Appeals

Order Reversing Proceeding by Settled Statement, Order-

ing to Proceed by [previously denied] Transcripts,

(H026861) (App., infra 2a).

February 24, 2004: California Supreme Court denial of

Petition for Review of Sixth District Court of Appeals de-

nial of writ of mandate and prohibition for conservatorship

proceeding. (S122012) (App., infra, 3a)

January 6, 2004: California Court of Appeals for Sixth

District denial of writ of mandate and prohibition for im-

mediate review of decision of trial court granting conserva-

torship to State. (H0126829) (App., infra, 4a)

November 10, 2003: Orders of the Superior Court of

Santa Clara County granting conservatorship of Nancy K.

Golin enumerating six powers to be removed and granted

to the State of California Director of Developmental Ser-

vices for an indefinite period. (1-02-PR-151096) (App., in-

fra, 5a-13a)

October 22. 2003: Statement of Opinion of Santa Clara

County Superior Court Probate Division in support of

judgment granting limited conservatorship of Nancy Golin

to State of California Department of Developmental Ser-

vices denying competing petition of parents. 1-02-PR-

151096) (App., infra, 14a-31a).

l

Petition for Writ of Certiorari, Golin et al v. DDS

These decisions are all unreported.

JURISDICTION

The order of the California Supreme Court that is

sought to be reviewed by this Court, denying petitioner's

Petition for Review of the Writ of Mandate opposing the

involuntary and contested conservatorship of their daugh-

ter Nancy Golin, was denied on February 24, 2004. The

Order of the California Supreme Court of April 28, 2004 is

also sought to be reviewed denying appellants request for

transcripts.on behalf of their incompetent daughter and

next friend Nancy Golin, effectively denying them the abil-

ity to appeal her institutionalization.

The United States Supreme Court has jurisdiction in a

writ of certiorari from the denial of the California State

Supreme Caurt of a Petition for Review, due to its jurisdic-

tion over final decisions of a State Court provided by 28

U.S.C. §1257(a). No rehearing was sought or is available

from this judgment except through this Court. This peti-

tion is not sought under Rule 12.5, cross petition. Rule 11

does not apply here. The State Supreme Court did not cer-

tify to the Attorney General that the constitutionality of a

State statute was called into question.

STATEMENT OF THE CASE

A. Characteristics of the Family

Nancy Katherine Golin (“Nancy’) is a 34-year-old autis-

tic adult, severely retarded since birth. An only child, she

has lived with and been raised and cared for at home since

birth by dedicated parent-petitioners Jeffrey and Elsie Go-

lin (“the parents”) until 3 years ago. They know their

daughter well and care for her deeply. She had epilepsy

.since age 22 maintained by anti-seizure medications. She

has a propensity to wander that the parents closely moni-

tor. She is non-aggressive, has never been diagnosed with

mental illness or had psychiatric medications prescribed

for her, nor has ever committed or been charged with a

crime. She is unable to read or write, and speaks only a

few words, but understands and communicates very effec-

tively with gestures, expressions and actions. She is alert,

Petition for Writ of Certiorari, Golin et al v. DDS

—_

happy, charming, beautiful and gentle, optimistic and

brave, patient and persistent, emotionally and motivation-

ally normal. She has a positive, sunny disposition, the

pure innocent product of a lifetime of love and devotion.

Her autism is atypical in that she is very sociable, relates

well to people, and has no tics, self-injurious or ritualistic

behaviors. She is ambulatory and able bodied, can toilet,

dress and feed herself, and can tie her own shoelaces. She

and her parents are profoundly attached to one another,

and her parents remain with her constantly at all times.

Her parents always put her needs before their own, prid-

ing themselves on having protected her from State institu-

tionalization, integrated into normal community activities.

The parents never saw it necessary to conserve her.

Mrs. Golin is a long time vocal critic of San Andreas

Regional Center (SARC), the private non-profit corporation

exclusively responsible for State programs for the retarded

in Santa Clara, Santa Cruz, San Benito and Monterey

Counties, for their negligence or indifference towards the

“weakest among men”, and the number of their clients

they regularly kill through neglect. Mrs. Golin sought in

vain for years during Nancy’s formative years using every

available means to obtain appropriate services such as

speech therapy from local schools and SARC. She eventu-

ally gave up and obtained the best services she could find

on her own in spite of State harassment. Together with

her husband of 44 years, a professional engineer and post-

graduate of MIT, they have spent a lifetime seeking the

best available resources for their daughter’s special needs.

Their experience with State programs is they always did

more harm than good. They failed Nancy’s individual

needs, caused her severe injuries', and exposed her to bad

behaviors she mistakenly copied.

Mrs. Golin received minimal compensation for 9

hrs/day as a 24-hr caregiver under State supervision from

' Nancy’s delayed epileptic condition likely resulted from a trau-

matic head injury she suffered in a poorly supervised SARC pro-

gram at age 8. Her mother removed her. All her classmates there

ended up being institutionalized at an early age, except Nancy.

Petition for Writ of Certiorari, Golin et al v. DDS

California’s [HHS (In Home Health Services) program,

from 1996 — 2001; Nancy had MediCal, and SSI paid Mrs.

Golin, who always spent far more than what she received

on Nancy’s needs. The family was praised for many years

by IHHS workers, receiving admiration and support from

agencies, friends and local police ”.

The parents are fit, active semi-retirees, owning oper-

ating a family neon lighting business they founded in 1990

to give them the time and flexibility to care for and provide

activities for Nancy. Nancy loves to watch her father

work, and the family goes on frequent outings and hikes

together. The parents take her with them everywhere

they go and treat her like any normal person.

B. Daughter Abducted by State from Her Family

On the evening of November 14, 2001, Nancy wan-

dered from her parents and got lost while they were mov-

ing their workshops to neighboring Palo Alto. The parents

noticed her absence within five minutes and called the lo-

cal police (“police”) immediately for help searching the area

all night. She could not be found. Next morning Nancy

found her way back herself, tired but delighted, well and

unharmed, to her parents’ intense joy and relief.

The police duped the unsuspecting parents, advising

them they only intended to take Nancy to Stanford Hospi-

tal to make sure no one had harmed her while she was

missing. Police took Nancy without warrant or notice say-

ing the parents could meet them there. The parents coop-

erated without objection. Police delayed three hours, then

took her to a locked psychiatric ward at Stanford and ob-

tained a TRO against her parents.

When they arrived at Stanford ER, the surprised par-

ents were denied admission to see her or talk to doctors.

Security guards told them Nancy had been placed on a

psychiatric hold and turned them away on threat of arrest.

The parents were justifiably terrified. Nancy had never

been alone in a hospital without a parent there for history

2 IHHS ended on Nancy’s removal and SARC got her SSI and

benefits. SARC gets far more public money than did her mother.

Petition for Writ of Certiorari, Golin et al v. DDS

" F ee

wahiwthcdilenel

and informed consent, and had never been in a psychiatric

ward. The staff let Nancy wander into rooms of dangerous

mental patients climbing into their beds seeking her usual

maternal comfort, eating from their dishes.

Police created a cover story to psych ward doctors that

Nancy was supposedly a homeless urchin, the victim of

abuse and neglect by the parents, saying that she was

“found in a shed behind a pile of garbage” pretending at

first she had had no doctors or medical records. They in-

sisted that Nancy had head lice, so when the doctors could

find no head lice they dutifully treated her with Nizoral

shampoo for “presumptive head lice”. She had a foot injury

that Stanford doctors knew or should have known their

own ER doctors had caused with a misplaced IV five

months before. Her mother immediately had it grafted and

followed by a chief surgeon at Alta Bates when Stanford

doctors refused to treat it. Yet police quoted a Stanford

psychiatric resident saying that the fully healed graft was

an neglected open, infected wound of unknown origin.

SARC and Santa Clara County Adult Protective Ser-

vices (APS), claimed immediate custody of Nancy at the

hospital without protective custody proceedings. The po-

lice generated a report, in which most witness statements

were either misreported or falsified, including ones from

SARC. SARC complained from their institutionally biased

view that Nancy needed to be placed in State residential _

care instead of living at home, and that the parents since a

1993 SARC injury to Nancy, “refused services”.

Police misled Stanford psych ward doctors claiming

Nancy’s mother was overmedicating her on her Phenobar-

bital seizure medication. This was based on an old, dis-

credited complaint by an intern who caused Nancy sei-

zures two years before by erroneously cutting Nancy’s neu-

rologist’s prescribed dose in hospital. These levels are

highly individual as any qualified neurologist knows. In

reality, there was no emergency. Nancy Golin was per-

fectly fine, happy and well cared for, until the police took

Petition for Writ of Certiorari, Golin et al v. DDS

her to the hospital!’ Nancy’s blood levels were correct, had

no seizures or adverse reactions on the day of admission

and had not had any seizures for several months. She did

not require any medical assistance whatsoever, and Stan-

ford discharged her after two weeks for that reason.

On admission, accordingly, the clinical intake psych

team led by Dr. Hayward slashed her anti-seizure medica-

tion to what they believed were “normal” levels throwing

her into a week of protracted grand mal seizures due to i

undermedication. Neurology consult Dr. Schwartz was

called in on 11/17/01. He remembered Nancy from a pre-

vious admission, and wrote on the 11/17/01 hospital record

admitted into evidence, “her level was good at time of ad- a

mission”, and by 11/23/01 Dr. Deisseroth approvingly

noted her levels restored close to these same good admis-

sion levels (49.3). The seizures then abated. These were

the original levels that her mother, under the supervision

of her regular board certified neurologist Dr. Howard

Belfer of San Mateo Hospital and Stanford’s own clinical

neurologists themselves, had been administering, that the

police and APS called “overdosing”.

Police applied at the hospital on intake for Nancy to be

placed on a 72-hour hold, Cal. Welf. & I. §5150, for psychi-

atric evaluation alleging, “grave disability” as their reason

to admit her. Then police applied for an extension to a 14-

day hold Cal. Welf. & I. §5250 for intensive treatment al-

leging “grave disability”, and a hearing was held without

notifying the parents. Both laws are inapplicable to

merely mentally retarded persons or persons who can live

safely with family or friends by State law‘. Therefore, the

application for the §5250 hold was judicially denied, No-

vember 26, 2001. The State lost all further legal authority

for holding her. The TRO against her parents also expired.

;

PEN EUIRTY 2 SC I

3 Stanford psych ward doctors warned APS that it was unsafe for

Nancy with the men there, known to be dangerous, but APS officials ig-

nored these warnings insisting that she remain there in harms way.

When seen by her parents next Nancy displayed signs of molestation.

4 Cal. Welf. & I. §5008(h)(3), Cal. Welf. & I. §5250(d)(1). A mental

health advocate warned police Nancy’s detention was inappropriate.

Petition for Writ of Certiorari, Golin et al v. DDS

A LCES a SA BOREE. ahaa ee eae

|

Nevertheless, when her parents went to pick her up,

Nancy had been spirited away by state authorities, refus-

ing to disclose to anyone where she was being held’.

Cc. Illegal Secret Detention; Malicious Prosecution

In fact, Nancy was illegally taken from Stanford Hospi-

tal by SARC workers and secreted at a SARC Residential

Care Facility (RCF) known only to a few county workers.

Her signature was forged by SARC workers to a SARC In-

dividualized Placement Plan (IPP), legally requiring the

informed consent and signature of a parent or legal con-

servator, to attempt to qualify it as a voluntary commit-

ment. Nancy does not read, write or sign her name, nor

does she have the capacity give such informed consent as

SARC’s capacity declaration states. APS records disclosed

in their December 2001 records that their agents and

SARC’s were all fully aware she was not conserved so if

the parents found where Nancy’s was hidden they could do

little legally to stop Nancy going with her parents, and

admitted seeking to “avoid court if at all possible”.

The Palo Alto Daily News, contacted by the parents,

printed several sympathetic stories in late November 2001,

panicking the police. The paper was unable to find

Nancy’s undisclosed location. The police, the DA, SARC

and APS responded by faxing slanderous allegations to the

paper about the parents. The police arrested them for un-

specified Cal. PC §368(c) felony adult dependent abuse

charges. The court set $100,000 bail, to keep the parents

away from the press and almost preventing them from fur-

ther legal opposition to Nancy’s State custody. Police coor-

dinated a team of four city inspectors during the search to

shut down the parents’ business on code violations to crip-

ple them financially from being able to fight back. But the

parents fortunately bailed out after one night in county jail

and went back to fighting for their daughter’s freedom.

After the parents’ attorneys discredited the police ver-

> Even though released and her §5250 application denied, Stanford

gave the RCF a discharge prescription for Trazidone, an antipsychotic,

for her caregivers to dope her with as needed.

Petition for Writ of Certiorari, Golin et al v. DDS

—

sion of events to the Santa Clara County DA’s office and

her doctor wrote the court a letter rebutting their supposed

allegations, the DA knew or should have known there was

no merit to these charges. Yet the DA continued to search

for other grounds on which to prosecute them for 14

months. Extensive DA-subpoenaed records studied by the

parents revealed ample proof of parental innocence. and

state conspiracy and abuse. DA ignored repeated requests

of the parents’ attorneys to specify grounds for the charges.

This gave California Department of Developmental Ser-

vices (DDS), nominated by SARC, time to pursue its con-

servatorship petition in Santa Clara County probate court

before the DA dismissed charges. |

Four months after police seized Nancy, March 2002, af-

ter APS was threatened with contempt, visits began one

hour per week, oppressively supervised by APS, at an out-

side visitation center to strictly guard the location of her

hiding place from friends and doctors. The Golins ob- 3

served Nancy displaying persistent unreported signs of :

sexual molestation and drugging. She repeatedly begged

her parents to take her home with them by trying to pull

them out the door with her or selecting her father’s car key

out of his pocket and giving it to him, as she had always

done to ask to be taken out. :

D. Secret State Conservatorship Petition

SARC and DDS proceeded in secret in April 2002 to

petition in probate to conserve Nancy and keep her in se-

cret detention, seeking permission to put her into a State

hospital, without giving the parents required notice of the

proceedings against their daughter. DDS petitioned under

Cal Hlth. & S. Code §416.5 applicable only to abandoned

persons, seeking to avoid parental preferences. DDS and

the Public Defender’s Office (PDO) attorneys protested on

record in four monthly probate hearings before probate

judge Hon. Katherine Gallagher that it was impossible to

notify the parents, knowingly misrepresenting, their

“whereabouts were unknown,” or that they had been “con-

victed of abusing Nancy” and were in prison, despite the

weekly visits with Nancy and the attorney contacts.

Petition for Writ of Certiorari, Golin et al v. DDS

E. Interim Conservatorship, Charges Dismissed

In August 2002, Gallagher ordered SARC to notify the

unsuspecting parents of the DDS conservatorship petition.

They objected to it, rebutting the State’s unfounded alle-

gations, and filed their own competing petition. The pro-

bate investigator refused to qualify them. This was finally

heard on October 15, 2002 by Hon. Gregory Ward. The DA

attended as a spectator. The Golins were unrepresented

but were allowed by Ward to speak articulately in great

detail, repudiating APS’s and SARC’s allegations.

Ward appointed an independent conservator for the Go-

lins until charges were expected to be dropped. The par-

ents were able to discover that Nancy had suffered serious

injuries at the residential care facility including an unre-

ported and untreated broken collarbone, dislocated shoul-

der, psychotropic drugging and physical restraints. RCF

records ironically showed she wandered from them138

times in 12 months, not reported to the police. Nancy had

on one occasion taken a closet pole to break her bedroom

window to try to escape. She had been taken by her

SARC caregivers to SARC-approved psychiatrist Dr. Hec-

tor Cerezo, misrepresenting her behaviors and history to

~ get him to prescribe Risperdal, an even more potent and

dangerous psychotropic medication to drug her “as needed”

into a constant stupor. He did not warn careworkers to

monitor side effects that she suffered: tremors, Parkinson’s

disorder, tardive dyskinesia [involuntary movements

warning signs of severe brain damage] never previously

seen. Risperdal is FDA-listed only for schizophrenia, not

autism. It is barred for use with persons with seizure con-

ditions®. She had no neurologist for over a year because

few neurologists take MediCal. SARC is unwilling to pay

for anything themselves, so signs of tardive dyskinesia

6 Dr. John Friedberg, a leading neurologist consulted by the par-~

ents, called these dopamine inhibiting medications “chemical lobot-

omy”, and “brain poison” and told them to get her off these drugs

immediately. Cerezo confirmed this in trial. Martin cites a report

by ER doctor Bason-Mitchell who admitted he knew nothing about

psychotropics for authority that the Golins were “uninformed”.

Petition for Writ of Certiorari, Golin et al v. DDS

went unrecognized by her low-skilled caregivers. In No-

vember 2002, the psychotropic drugs were discontinued at

parental insistence and her symptoms markedly improved.

The false criminal charge that had been dropped to a

misdemeanor against Mrs. Golin was dismissed com-

pletely in the Santa Clara County Criminal Division on

January 29, 2003 on a motion by the DA. The same false

misdemeanor charge against Mr. Golin was dismissed af-

ter pleading not guilty on August 4, 2003, after the only

supporting probable cause against him was amended to a

mere allegation of supposedly “allowing” Nancy to wander

away one (1) time on November 14, 2001. The court with

the DA’s approval ordered him unconditionally exonerated

and the record expunged. It was conditioned in the order

that these dismissed charges would have no effect upon the

still-pending conservatorship proceedings. Supervised visit

requirements were dissolved; a favorable outcome.

F. State Temporary Conservatorship Imposed

The Golins expected their petition would be approved in

probate and Nancy could return home. Yet in probate a

few days later Hon. Thomas Edwards moved temporary

conservatorship to the State pending a contested conserva-

torship trial between parents and DDS. Edwards ap-

pointed opposing attorney, Santa Clara County public de-

fender Malorie Street (“Street”) to represent Nancy. Street

never conferred with the parents. From the start, she did

damage control for the State by attacking the Golins. She

appeared at opposing counsel table with State DDS attor-

ney Dean Stiles and SARC attorney Nancy Johnson, filing

joinder motions. Stiles-Johnson-Street had worked as a

team on many such probate cases since 1995.

Street advocated for the State to conserve Nancy, not

the parents or other petitioners. She blocked Nancy’s right

to ajury. She objected to Nancy being produced in court.

She insisted that Nancy remain in the same RCF where

she was drugged and injured. Street argued the State had

to conserve Nancy to obtain her medical records; using this

power, she shut down the parents’ discovery rights show-

ing proof of State abuse on the excuse of Nancy’s privacy.

10

Petition for Writ of Certiorari, Golin et al v. DDS

; ———— a

She argued for the State to conserve Nancy to put her back

on [brain injuring] Risperdal, asserting it benefited her.

She got supervised visits dissolved by the criminal court,

reinstated by probate, orders restricting Nancy to Santa

Clara County and SARC jurisdiction, that her parents

could not take her to a doctor, blocking her right to sue the

State for injuries, and appointing her to represent Nancy.

Edwards granted these instant motions without showing

good cause or legal authority’. The certified hearing tran-

scripts were severely altered helping the State cover this

up. Thus despite the dismissal of charges the State took

temporary conservatorship maintaining custody of Nancy.

Two weeks after Nancy was temporarily conserved by

DDS pending trial and Street’s and SARC’s demanded il-

legal drugging on Zyprexa resumed, Nancy was rushed

unconscious to San Jose Medical Center, in serious condi-

tion with uncontrolled seizures vomiting up blood and her

entire esophageal lining in quarter inch chunks. This was

a life threatening disorder traced to the drugging in later

testimony*. Street’s liability iri advocating this as an ex-

cuse to give Nancy to the state thus created further con-

flicts of interest with her presumed client. The uncon-

trolled seizures caused severe permanent brain damage,

the loss of her entire esophageal lining, a permanent pre-

’ The parents’ attempt in May 2003 to substitute an effective non-

conflicted private attorney for Nancy was denied by Gallagher.

8 SARC concealed Nancy’s hospitalization. SARC doctors lied about

her condition; caregivers covered up to police. The parents could not visit

her to comfort her at the hospital. Nancy could have died never seeing

her parents again. Street covered up real state abuse for months saying

the parents were alarmists or liars attacking their credibility. The par-

ents moved on an exparte emergency motion. Gallagher gave the par-

ents a week to prove Nancy was gravely ill, but denied a motion to com-

pel discovery. SARC clamped a lid on their doctors. Street sought out and

counseled obstruction to those served with subpoenas, alleging exclusive

control of Nancy's records and concern over her client’s privacy. Galla-

gher denied the exparte motion. In May, subpoenaed records surfaced

confirming that Nancy had been given a life-threatening, pre-cancerous,

nearly ruptured esophageal condition from Zyprexa lowering her seizure

threshold. SARC ordered caregivers not to take Nancy to ER’s when she

had uncontrolled seizures, to prevent disclosures.

11

Petition for Writ of Certiorari, Golin et al v. DDS

ee

cancerous condition, and huge esophageal ulcers.

G. Conservatorship Trial: Parents v. State

In October 2003, almost two years after Nancy was il-

legally seized from her family, while she remained in State

custody and control with the parents unable to visit, a

three-week court trial was held in Santa Clara County Su-

perior Court, Hon. William Martin presiding. He was to

decide if Nancy should be conserved and if so by whom, the

parents or the State, (DDS, not SARC).

The trial was a fundamentally unfair proceeding. The

parents lacked counsel and no longer had the several tens

of thousands of dollars required to retain one in such cases

after being forced to dissipate their retirement funds in

two years of litigation. Mrs. Golin so objected to no avail,

and with difficulty the parents represented themselves.

Both parents were extremely knowledgeable on the avail-

able evidence and put on an excellent case for non-lawyers.

Mrs. Golin, while intelligent and an excellent witness her-

self should nevertheless have been represented by an at-

torney. Her courtroom demeanor, that of a passionate car-

ing mother instinctively fighting for her child’s welfare and

not that of an experienced trial attorney, was granted no

latitude in Martin’s biased opinion (App., infra, 25a-26a)

The parents objected to Nancy being conserved arguing

that it was unnecessary living in her own home with her

parents but if she were conserved they should have first

preference under Cal. Prob. Code §1812. The court quickly

disposed one of the parents’ friendly alternate candidates

for conservator on suspicious procedural grounds, display-

ing intolerance to any petitioner other than the State. The

other alternate folded under threat of attack by SARC.

Martin denied the parents’ in limine challenge of

SARC’s standing; the petitioner was the State DDS, not

SARC. SARC was represented by Johnson, a full partner

in Berliner-Cohen (“BC”), a powerfu! personal injury and

white-collar criminal defense firm in San Jose. BC’s prime

motivation to protect their tortfeasing client SARC from

injury claims and a feared liability lawsuit by becoming

Nancy’s conservator was suspect, skewing the risk of erro-

12

Petition for Writ of Certiorari, Golin et al v. DDS

neous factfinding. Martin denied parents’ challenge of at-

torney Street for conflicts of interest. Street again blocked

the parents’ motion for a jury trial for their daughter

claiming she alone had standing to request this, and she

did not request it (App., infra, 17a). BC played lead attor-

ney for the State orchestrating SARC’s attack, tilting the

playing field for conservatorship clearly favoring the State.

The parents won previously denied right to require

Nancy’s presence in court as required Cal. Prob. C. §1825,

over the objections of the State, SARC and Ms. Street.

When Nancy Golin was presented to court, on her 33"

birthday, she embarrassed the opposition by displaying

obvious affection for her parents and they to her®. Martin

reacted that there had never been any question about the

love and devotion that the parents had for their daughter.

He instead posed, who would make the better conservator

in Nancy’s presumed best interests, the parents or the

State? He thus explicitly denied parental preference from

the outset in competing with the State (App., infra, 16a).

In fact, the court appears to have applied the opposite pre-

sumption that the State was more capable and fit due to

their putative professionalism despite their proven abuses.

Thirteen witnesses gave testimony for the parents.

Only four wit~esses appeared for the State, and in each

case, their testimony broke down under cross-examination.

The parents presented numerous medical experts and

family friends who observed and admired the family for

years. Mr. Golin unreservedly praised his wife’s compe-

tence and devotion as a primary caregiver and loving

mother, testifying from personal knowledge she had never

neglected or abused Nancy, calling such charges ludicrous.

The medical experts called by the parents built up a

compelling chain of evidence proving state abuse showing

that because SARC pretended to new doctors there was no

9 On succeeding days, Street kept Nancy out of the court as much as

possible to avoid further embarrassment to the State’s case, by having

her deprived of water many hours before court and given behavior modi-

fication to leave the courtroom quickly to get water.

13

Petition for Writ of Certiorari, Golin et al v. DDS

past medical history, they had subjected her to a life

threatening injury and illness from drugging, and sub-

standard care. This included failure to continue a neces-

sary regimen of treatment of a past chronic hiatal hernia

and esophageal condition that had been in remission.

They showed a pattern of chronic orthopedic injury and

abuse in state care, dental neglect, injury due to improper

drugging, and caregiver indifference.

All evidence of abuse by SARC and Ms. Street was

whitewashed by Martin. Critical witnesses were allowed

to evade subpoenas when Martin prematurely rested the

parents’ case", imposed arbitrary time limits on key testi-

mony, and kept out damning evidence against the State.

The transcript is out of reach by the high cost and the

court’s refusal to provide it or any alternative settled

statement procedure (App, infra, 1a)

The parents endured an inquisition by the Court into

their finances and assets, normally not required for close

relatives. They disclosed their fine recently built home in a

respectable neighborhood in Merced County, 70 mi. from

. Nancy’s RCF'"". Prior to November 2001, they had suffi-

cient cash to purchase a house for Nancy. These resources

were squandered fighting the State. -

SARC’s staff psychologist Ms. Mulhoe testified that

Nancy would benefit from a limited conservatorship in

RCF because it “facilitated socialization with her peers”.

She idealized the notion of being segregated with other re-

tarded people, saying that it was good for people to social-

ize with their peers (defined as DD), objecting to the idea

'0 Street was seen in the hallway during breaks openly intimidating

petitioner's witnesses, such as Drs. Morgan and Cerezo, after which

Morgan tried to disparage the Golins but his statements broke down on

cross examination. Martin refused to order this stopped and cites Mor-

gan’s disparaging remarks (App, infra, 22a).

'! The parents moved 90 miles to Merced County in July 2002 to leave

SARC territory and avoid continued police harassment.

'2 [ronically, young Ms. Mulhoe opined from SARC records that it was

Mrs. Golin, not SARC, who had refused desperately-sought services ‘hat

could have benefited Nancy when she was younger.

14

Petition for Writ of Certiorari, Golin et al v. DDS

that Nancy could “socialize with lawyers and judges”. The

parents’ unique understanding of Nancy’s emotions,

wishes and idiosyncrasies from their lifelong observations

of her posture, expressions, gesture and behavior told

them she hated to be segregated from the community in

the company of retarded persons in state programs. It

made her feel inferior, categorized and discriminated.

Martin’s Statement of Opinion (App., infra, 14a-21a) at

first seems overwhelmingly condemning to the parents,

but on closer examination can be seen to entirely lack sub-

stance, and he brushes aside any of the evidence of state

abuse. He merely recites the state’s inflammatory conten-

tion that there existed some “history of abuse and neglect”

without referring to a single reasonable inference. There

was never any parental discord at all when it came to

Nancy’s care, the parents were always united on this sub-

ject. Nor “substandard care”; on the contrary. (App., infra,

22a) Martin’s “clear and convincing” standard cannot be

justified. Martin neglects the fact the state utterly failed in

its burden to show any of these findings, and there is none

in the record. His principal findings relied entirely on

now-excludable testamentary hearsay evidence allowed by

the business records hearsay exception (see e.g. Bason-

Mitchell App, infra, 22a-23a) to trump live testimony.

Martin kept out evidence and testimony of medical error

- and abuse, then noted in his opinion that there was no

such admissible evidence (App., infra, 21a-22a).

Martin concluded most outrageously that the doctors

that had misguidedly slashed Nancy’s Phenobarbital sei-

zure medication at Stanford Hospital the week she was

taken, without the benefit of any medical history, throwing

her into a week of seizures until a neurology consult was

called to restore her long prescribed dosages (infra, 5-6) —

they were in fact the ones that were correct in their estima-

tion of Nancy’s medication levels as found in non-

confrontable hearsay testamentary evidence (App, infra,

24a), not Nancy’s permanent board certified neurologists,

or Stanford’s own neurology consult. This is an unrea-

sonable inference given the resulting seizures, the only at-

15

Petition for Writ of Certiorari, Golin et al v. DDS

-

tempt to justify any finding of abuse, claiming that

Nancy’s mother had been overdosing her daughter. Martin

then proceeded from this faulty finding that Mrs. Golin’s

special knowledge of her daughter was “misinformed” [by

medical experts] to conjure a host of other increasingly

fanciful findings, such as “educate themselves on various

medical topics from the internet” (“informed consent”?)

“dangerous non-compliance with physicians’ directions as

to medication” (none) “the Golins' mistaken overconfi-

dence in their limited medical knowledge” (confirmed by

expert witnesses), “willingness to shop around for a

physician who will accommodate their demands

rather than confront them”(she had only two neurolo-

gists in ten years) ‘Mr. Golin's agreement with or ac-

quiescence to Mrs. Golin's misinformed medical deci-

sions” (Mrs. Golin made no medical “decisions” misin-

formed or otherwise), or “inability to get along with most

professionals” (never with actual professionals), and ab-

surdly faulting the mother for_instances where she was

overcautious and overprotective (“lofty standards’) (App, in-

fra, 24a, 28a) all based on written hearsay records contra-

dicted by live evidence. He also said that Nancy didn’t

seem aggressive, so the drugs must be working (App, infra

13a). Nancy was never aggressive in the first place, as her

parents had testified. Martin said Nancy’s did not have a

dislocated shoulder (App, infra, 20a) or perhaps even a

broken collarbone in spite of x-rays showing them plainly

apparent even to the untrained eye and expert testimony.

Her parents testified that Nancy had suffered a burn

injury in 1995, a tragic event they could not have foreseen,

caused by a dress made of a now-banned highly flammable

fabric. The unsuspecting parents were closely monitoring

her contrary to Martin’s presumption (App, infra, 28a)".

Dr. Jerold Kaplan, a respected expert witness in orthope-

'3 The DA’s office twice dropped prior investigations, finding this was

an accident. No one prior to the end of the trial when the State felt

pressed, not even Street or the DA, had ever contended this was more

than a terrifying accident or blamed the distraught parents.

16

Petition for Writ of Certiorari, Golin et al v. DDS

dics and abuse who attended Nancy and admired their re-

lationship with her, testified against any claim of abuse or

neglect. No other accidents occurred since 1995.

Martin denied the parents’ petition in favor of the

State’s for six requested powers of conservatorship over

that of the parents, “without conditions or limitation” (App,

infra, 26a) ana for an indefinite period (App, infra, 13a).

These powers prevent any future opposition to SARC

abuse. A perfunctory one-year review required by Cal.

Prob. C. §1850 in 2004 was never held.

H. Succeeding Petitions For Appeal

The parents filed for a new trial with affidavits listing

extensive abuses of discretion, citing admitted evidence,

errors at law, and irregularities at trial, a change of the

trial opinion based on findings not supported by the evi-

dence, judgment not supported by the findings. Martin

denied it in January 2004".

Citing urgency and the lack of a “plain, speedy or effec-

tive remedy’, petitioners filed a timely petition for a writ of

mandate and prohibition against Santa Clara County Su-

perior Court (Probate) in the State Court of Appeals Sixth

District, which denied it without comment on January 6,

2004 (App., infra, 4a), and then sought a review of its de-

nial in the California Supreme Court, which then denied a

grant of review on February 24, 2004{App, infra, 3a).

In December 2003, the parents filed a notice of appeal

from the conservatorship orders in the State Court of Ap-

peals for the Sixth District. That appeal is active but is in

jeopardy due to the absence of a trial record. The parents

filed and were granted leave to proceed in forma pauperis

by the Court of Appeals. They then moved the court below

to provide transcripts citing this Court’s equal protection

analysis of M.L.B. v S.L.J., 519 U.S. 102 (1996). That re-

4 The State at that hearing said that Nancy now has an undisclosed

life threatening condition justifying their continuing custody; Martin

thus ordered that State conservatorship orders be imposed during the

pendency of the appeal contravening parents’ cited Gold v. Superior

Court of Marin County, 90 Cal.Rptr.161 (1970).

17

Petition for Writ of Certiorari, Golin et al v. DDS

quest was twice denied by the State sixth District Court of

Appeals without comment, contravening this Court’s hold-

ing’. That court already twice dismissed and vacated dis-

missal of the appeal for failure to procure the record.

Judge Martin on April 1, 2004 denied the parents set-

tled statement election, justified by their in forma pauperis

standing. He said now that he thought that the parents

could afford to pay for transcripts, even though during the

trial he opined that the parents appeare? to lack the fi-

nancial ability to care for their daughter (App, infra, 15a).

The appellate court followed suit and directed the parents

to elect to proceed either with or without transcripts

threatening dismissal for failing to procure transcripts

they had already shown they could not afford (App, infra,

2a). The State Supreme Court denied parents’ petition for

review without comment April 28, 2004 (App, infra, 1a).

I. Current Status of Nancy Golin

It is mental cruelty to Nancy to be separated from her

parents. Nancy is always delighted to see her parents come

and depressed to see them leave. Her security and inno-

cent trust are battered when her parents appear, seeming

indifferent to her plight by not responding to her desperate

efforts to be taken home. This creates the appearance in

her immature mind of rejection and collaboration of her

parents in dumping her in State custody. SARC thus

forces the parents to become accomplices in SARC’s emo-

tional abuse of Nancy.

SARC has done its most to sever family ties, barring

parents at birthdays, Christmas, Thanksgiving, Easter,

Halloween and family outings. Visits have been termi-

nated for many months at SARC’s whim. Martin ap- -

proved SARC-requested authority to impose supervised

visitation!* (Id, infra, 30a). SARC will not approve any

15 The parents analogized Conservatorship of Roulet, 23 Cal.3d 219

(1979) showing Nancy had the same rights to a free transcript on appeal

as an indigent criminal defendant, as both face a deprivation of their lib-

erty.

16 A search of cases and statutes found no authority for a court to im-

(cont'd next page)

18

Petition for Writ of Certiorari, Golin et al v. DDS

neutral supervisor. SARC limits parents to one 4hrs/wk

scheduled visit at Nancy’s RCF only. The parents can

walk outside with her for 2hrs/wk. only with a chaperone,

but may not take her home. SARC agitates to further

limit or terminate visits. The parents have not seen their

daughter without supervision for three years and no end is

in sight. The parents’ innocence does not matter. Neither

the court nor SARC seriously attempt to justify these re-

strictions (App., supra, 30a-31a). In truth, pretending the

parents are dangerous is retaliation for opposing SARC.

SARC is rapidly destroying Nancy. Her parents fear

further delay. She is suffering from tardive dyskinesia

from drugging (tremors, involuntary lip and tongue

movements, head contracted towards shoulder, and mus-

cle rigidity). Her hand often shakes from tremors due to

the long term off-label use of psychotropics that she is of-

ten unable to feed herself without someone guiding her

hands. The parents cannot have other doctors see her or

obtain records from her caregivers. She still has seizures,

but to maintain the pretense the parents negligently failed

to control them", seizures are well concealed. Her care is

still being supervised by SARC GP Masada, who improp-

erly resumed Zyprexa resulting in her being hospitalized

in serious condition in 2003 and lied about her condition.

She is now bent over like an old woman and has immi-

nent tooth loss from 20% bone loss due to osteoporosis due

to the resumption of Dilantin for anti-seizure medication

in November 2001 that the Golins warned against*.

Where she used to appear completely normal in public and

be able co run and hike all day and feed herself she is suf-

pose visitation restrictions between consenting adult family members,

and we contend there is none. The only authority is SARC’s power to

control social contacts (App., infra, 12a): SARC’s exercise here is uncon-

stitutional under the First Amendment.

17 All epileptics have occasional breakthrough seizures.

18 When SARC dentist Santos echoed parents’ warnings of imminent

tooth loss from Dilantin August 2003, SARC’S neurologist advised switch

to Phenobarbital alone, just as Mrs. Golin’s neurologist did; SARC’s

nurse stopped her to avoid vindicating Mrs. Golin.

19

Petition for Writ of Certiorari, Golin et al v. DDS

i

fering from muscle rigidity from the psychotropic drugging

to the extent that she can only walk and move very slowly.

Except for caregivers, she mostly sees only retarded peo-

ple. She still has had no urgently needed dental care for

three years. The parents see signs she is still being physi-

cally and chemically restrained behind their backs. The

parents are unable to protect their daughter in any way

and are either lied to or told to mind their own business.

REASONS FOR GRANTING THE PETITION

It is necessary to resolve the important issue of whether

caregiving parents retain a constitutional liberty interest

in a non-dangerous mentally disabled child after majority.

States are in conflict over this fundamental issue. Califor-

nia has violated the due process constitutional rights of pe-

titioners involuntarily removing their adult daughter to

state care. It contravened Title II of the American with

Disabilities Act (ADA) involuntarily conserving a mentally

disabled non-dangerous adult, rejecting Nancy’s own fam-

ily residence as the “least restrictive” environment in favor

of a RCF that segregates persons by disability.

I. CALIFORNIA VIOLATED THE CONSTITU-

- TIONAL RIGHTS OF PARENTS IN CARING FOR

THEIR DISABLED DAUGHTER AS ESTAB-

LISHED BY THIS COURT

“[T]here is a presumption that fit parents normally

act in the best interests of their children,” and “so long as

the parent adequately cares for his or her children, there

will normally be no reason for the state to inject itself

into the private realm of the family to further question

the ability of the parent to make the best decisions con-

cerning the rearing of the parent’s children.” Parham v.

JR, 442 U.S. 584, 602 (1979) »».

19 Parham v. JR, 442 U.S. 584, 602-603 (1979):" Our cases have consis-

tently followed that course; our constitutional system long ago rejected any

notion that a child is "the mere creature of the State” ...Pierce v. Society of

Sisters, 268 U.S. 510 (1925). See also Wisconsin v. Yoder, 406 U.S. 205,

213 (1972); Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 442,

88 L.Ed. 645 (1944); Meyer v. Nebraska, 262 U.S. 390, 400, 43 S.Ct. 625,

627, 67 L.Ed. 1042 (1923). ... The law's concept of the family rests on a~

presumption that parents possess what a child lacks in maturity, experi-

(cont'd next page)

20

Petition for Writ of Certiorari, Golin et al v. DDS

This reasoning, which held a clear preference for family

control and custody of minor children, should apply with

equal vigor to incapacitated non-dangerous adults who

cannot survive safely on their own without the help of will-

ing, caring, capable friends or family.

It is now clear that there is a fundamental nght ema-

nating from the Constitution, protecting the integrity of

the family unit from unwarranted intrusions by the state.

The Supreme Court in Stanley v. Illinois, 405 U.S. 645

(1972), commented: ”

“The Court has frequently emphasized the impor-

tance of the family. The rights to conceive and to raise

one's children have been deemed ‘essential,’ Meyer v.

Nebraska, 262 U.S. 390, 399 (1923), basic civil rights of

man,’ Skinner v. Oklahoma, 316 U.S. 535, 541, 62 S.Ct.

1110, 1113, 86 L.Ed. 1655 (1942), and Tights far more

precious than property rights.’ May v. Anderson, 345

U.S. 528, 533, 73 S.Ct. 840, 843, 97 L.Ed. 1221 (1958).

It is cardinal with us that the custody, care and nurture

of the child reside first in the parents, ... Prince v. Mas-

sachusetts, 321 U.S. 158, 166 (1944). The integrity of

the family unit has found protection in the Due Process |

Clause of the Fourteenth Amendment, Meyer v. Ne-

braska, supra, 262 U.S. at 399, 43 S.Ct. at 626, the

Equal Protection Clause of the Fourteenth Amendment,

Skinner v. Oklahoma, supra, 316 U.S., at 541, 62 S.Ct.,

at 1113, and the Ninth Amendment. Griswold v. Con-

necticut, 381 U.S. 479, 496 (1965)” (405 U.S. at 651)

A. The Court Below Erred by Depriving Peti-

tioners of Their Family Rights

The court below erred in failing to give the parents any

preference with respect to determining Nancy’s custody.

Here, the State argued and Judge Martin erroneously

agreed the constitutional rights of parents to preferential

ence, and capacity for judgment required for making life's difficult deci-

sions. More important, historically it has recognized that natural bonds

of affection lead parents to act in the best interests of their children. 1 W.

Blackstone, Commentaries * 447; 2 J. Kent, Commentaries on American

Law... The statist notion that governmental power should supersede pa-

rental authority in all cases because some parents abuse and neglect chil-

dren is repugnant to American tradition."

21

Petition for Writ of Certiorari, Golin et al v. DDS

status in caring for their disabled, grown adults are subject

to statutory negation, “... Health and Safety Code § 416.9

provides that ‘The preferences established in § 1812 of the

Probate Code for the appointment of a conservator shall not

apply” (App, infra, 11a) [Cal.] Probate Code §1812 estab-

lishes that relatives, friends and parents have priority over

State Agencies such as DDS, which is intended to be the

conservator of last resort in the doctrine of parens patria.

The court below scorned this Court’s holding that Par-

ham established any constitutional family preferences,

belittling the holdings of this Court in Parham as mere

“dicta’(App, infra, 11a) stating that, “The selection of the

conservator ts in the sole discretion of the Court ‘guided by

what appears to be for the best interests of the proposed

conservatee” (App, infra, 11a). Judge Martin expressly

brushed off the parents’ claim to Parham constitutionally

protected family preference, saying (para.) they should “go

down the street to Federal Court... to argue constitutional

issues, we don’t do that here”.

In fact, the court below appears to have applied the op-

posite presumption, State fitness and institutional bias,

ignoring evidence to the contrary, requiring the parents to

play David to the State’s Goliath. The court chided the

parents’ belief that their acquired knowledge of their

daughter could be superior to that of the State’s putative

“professionals" (App., infra, 24a). Thereafter being alerted

to this prerequisite, Judge Martin strained mightily to aid

- the State in finding some argument that the parents were

unfit or dangerous in the face of abundant evidence to the

contrary that they had always adequately cared for her, to

exonerate the State of any possible injury or liability.

The court below also contravened this Court's holding

in Troxel v. Granville, 530 U.S. 57 (2000). There this

Court objected to the-Washington decision below, "A par-

ent's estimation of the child's best interest is accorded no

deference". Id. at 57. In Troxel it is also found as here, “the

State lacks a compelling interest in second-guessing a fit

parent's decision[s]." Id. at 59. There is no legitimate inter-

est justifying the State's actions here. There remained no

22

Petition for Writ of Certiorari, Golin et al v. DDS

underlying criminal matter. SARC’s actual interest proved

to be pecuniary and retaliatory rather than promotion of

the well being of Nancy Golin.

The question consistent with error reducing procedures

is, who of the available parties is best qualified to

knowledgeably estimate the child’s best interests — in this

case, the parents or the State? Who is guided by good

motives such as love and concern rather than pecuniary

interests? A fledgling psychologist briefly reviewing 20 yr.

old SARC hearsay? A powerful white-collar criminal

defense law firm representing the group home industry?

An uninvited meddling neighbor, or an unhappy, childless

troll seeking attention for herself? Childrearing is a hard

and demanding job fraught with human frailty and error.

There is never any shortage of critics to second-guess

errors. When the child has special needs uncommon to

normal parenting experience, second-guessing by well-

meaning but misguided meddlers leads to heightened

error. Like a good judge present over a relatively short

period to observe is accorded great deference in findings of

fact, a caring parent may observe 24 hrs/day, year after

year, a living historian of their charge’s needs, preferences

and eccentricities, guided by love and forgiveness, uniquely

putting their needs last against all logical considerations of

selfHere, the State went as far as maliciously prosecuting

the parents on groundless, trumped up abuse charges that

were dropped for lack of merit. It placed their child in dan-

gerous, impersonal and abusive State care, many times

worse than any of the unfounded allegations against the

parents. The State cannot constitutionally kidnap dis-

abled children taking them hostage as supposed orphans

under color of law, to exploit as cash cows for federal

money to the state and county.

B. The Court Below Erred Denying Nancy Go-

lin’s Right of Protection from Unnecessary In-

stitutionalization per O’Connor v. Donaldson

The court below contravened this Court’s precedent of

O’Connor v. Donaldson, 422 U.S. 563 (1975). The facts fit

exactly within the parameters of O'Connor. Even the so-

23

Petition for Writ of Certiorari, Golin et al v. DDS

called “right to treatment” objections debated by scholars

in connection with O’Connor do not fit here.

In O'Connor, this Court held that

“A State cannot constitutionally confine, without

more, a nondangerous individual who is capable of sur-

viving safely in freedom by himself or with the help of

willing and responsible family members or friends, and

since the jury found, upon ample evidence, that peti-

tioner did so confine respondent, it properly concluded

that petitioner had violated respondent's right to lib-

erty”. (Id. at. 563).

Where the sole asserted ground for depriving a person

of her liberty is supposedly treatment, but no effective

treatment is available, the State errs failing to protect

from unnecessary institutionalization. Nancy Golin is

non-dangerous and fully capable of “surviving safely in

~ freedom ... with the help of willing and responsible fam-

ily’, as she always had done before.

, The Court should recognize two determinative circum-

stances in the instant case. First, Nancy Golin’s condition

of atypical autism is presently an untreatable disorder. -

Secondly, at her level of functioning and present age it is

dangerously naive to expect habilitation possible with

higher functioning developmentally disabled persons.

Past attempts to habilitate Nancy in one-on-one set-

tings appropriate for her have already been effectuated to

the greatest degree possible by her mother one-on-one, but

also were repeatedly denied in State care by SARC

unwillingness to spend any money on Nancy’s care. The

State sells a rosy picture to the local courts of their

“professionals” ability to help DD clients in order to claim

generous Federal funding, but when it comes to showing

real progress or spending any of their own money, they

have proved to be long on promises and short on perform-

ance. The financial interest of states in institutional care

for adults is overwhelming. The State operates as a

business and economic self-interest has always trumped

best intentions. California alone spends $6 billion a year

on adult care, creating a huge business on the scale of the

largest corporations in the world. Every potential admis-

sion into the system represents hundreds of thousands of

24

Petition for Writ of Certiorari, Golin et al v. DDS

eta cll

the system represents hundreds of thousands of dollars to

the administrators. The incentive to remove adult chil-

dren from homes to institutionalize them or force compli-

ance with revenue-making “services” is financially the

same as that of a corporation in seeking new customers.

In reality, the State does not provide the necessary

medical and dental “treatment” and habilitation that the

family provides. “Treatment” in the state means medical

and dental neglect, inappropriate psychotropic drugging

for caregiver convenience turning their clients into zombies

in dangerous and impersonal environments truly turning

them into “mere creature/[s] of the state’ (Parham, supra, at

603). At her present care home, although there are other

people present, in fact there is only one low-skilled care-

worker watching her and three other clients, whereas at

‘home she had two skilled parents caring for her full time.

After seizing her from her family objecting that the par-

ents had refused to place her in failed SARC programs, the

State itself did not place Nancy in a program for over a

year until it was discovered and they were embarrassed

into doing so, or fund communication devices requested by

her teachers. When SARC finally found a program it

mainly involved Nancy being warehoused, confined to a

sofa watching TV or shredding paper most of the day. She

made no improvement in her day program while the State

strained to claim childhood-acquired abilities as new pro-

gress.

In her mother’s high standards of caregiving, Nancy

could not be “HMO’d” into indifferent care as she is today.

The best treatment for Nancy is integration and exposure

in the community with an intact family unit, where she

can benefit from normal role models in a loving, positive

climate that nurtures self-esteem, affords rich experiences

and activities, and does not condone administration of in-

jurious, indifferent drugging.

There was no compelling state interest to conserve

Nancy as a merely dependent adult living happily and

safely in her family. As an outgrowth of O'Connor, supra,

State laws mandating that persons who are developmen-

25

Petition for Writ of Certiorari, Golin et al v. DDS

tally disabled and living safely with their families do not

normally need to be conserved, merely because they are

developmentally disabled, see e.g., Conservatorship of

Early, 35 Cal.3d 244 (1983). :

Here the State sought to circumvent federal constitu-

tional protections against unnecessary institutionalization

of O’Connor petitioning the superior court under Cal.

Health & Safety Code §416 et seq, Conservatorship of the

Director, pitted against the parents petition under the

Probate Code. The superior court ignored vital due process

safeguards in State law inspired by O’Connor, embodied in

Cal. Health and Safety Code §416.232° objected to in par-

ents’ motion for nonsuit, shown in the legislative intent

analyzed in Bellino v. Superior Court of Riverside County,

137 Cal.Rptr.523 (1977)?! barring State intrusion except

where the child is abandoned by his parents and the pro-

posed conservatee cannot live safely in the care of willing

family or friends as required by O'Connor.

C. The Court Below Erred Denying the Parents’

Constitutional Right to Care and Upbringing

of Their Child per Pierce v. Society of Sisters

Lying at the root of their hidden agenda is SARC’s mo-

tive to defend their regional monopoly, making an example

of any parent that defies their authority removing their

DD child from SARC programs. Despite the fact that

Nancy is now an adult, SARC continued to demand place-

ment in Regional Center boondoggles the parents found to

be inappropriate or harmful in Nancy’s individual case.

Because Nancy is an incompetent adult living with caring

*0 Cal. Health and Safety Code §416.23: ‘This article does not authorize

the care, treatment, or supervision or any control over any developmen-

tally disabled person without the written consent of his parent or guard-

ian or conservator.’

21 Bellino v. Superior Court of Riverside County, 137 Cal.Rptr.523,

(1977) : (analyzing the legislative intent of §416 et seq) “...the statutes

were designed to respond to the ‘poignant and challenging question of the

parent: “what will happen to my retarded child when I am no longer able

to care for him?” (“Legal Planning for the Mentally Retarded: The Cali-

fornia Experience’, Herma Hill Kay, et al, 60 Cal. L.Rev. 438, 510)

26

Petition for Writ of Certiorari, Golin et al v. DDS

parents, the reasoning of Parham must apply with equal

vigor to her!9.

The record showed that SARC started conspiring to

seek state conservatorship of Nancy in 1993, right after

the parents removed Nancy from her last day program (in-

fra, 5), as a means of forcing their services on the family. It

was piqued again when in 1997 her mother threatened to

report SARC for fraud for claiming Nancy as a client for

federal funding when they had not provided services for

years. SARC manager Kinderlehrer testified in trial that

when parents remove a child from regional center pro-

gram, SARC agents “feel a concern” and report it to

APS/CPS, charging parents refusing regional center ser-

vices they find unbeneficial to be unfit.

This falls squarely within the deliberations of Pierce v.

Society of the Sisters of the Holy Names of Jesus and Mary,

268 U.S. 510 U.S. (1925), in which it was held that fit par-

ents have a constitutionally protected liberty interest in

the direction of the upbringing and care of their children in

making educational choices for their children. Here

SARC’s pecuniary interest motivates it to force caring,

concerned parents to accept inferior services that they

deem ineffective or harmful in preference to the parents’

own habilitation programs or activities. The State affords

no alternative to SARC services; thus there is no competi-

tive balance in this marketplace.

ll. THE COURT BELOW ERRED BY ACCORD-

ING NO DEFERENCE TO NANCY GOLIN’S

PREFERENCES

More critical even than the family rights of the parents

are Nancy Golin liberty rights. While she is no longer a

minor, at her mental age she retains emotional aspects of

childhood wishing to live with her natural parents as she

has always done before, to recover from State injuries. Her

desperate requests to go home with her parents are ig-

nored. In custody battles between parents, a minor child’s

preference has great weight. Here the parents are united,

yet none is given.

In Santosky v. Kramer, 455 U.S. 745 (1982), this Court

27

Petition for Writ of Certiorari, Golin et al v. DDS

held, “the child and his parents share a vital interest in

preventing erroneous termination of their natural relation-

ship.” (Id. at 760) This consideration should receive

heightened attention after the age of maturity, when an

incapacitated adult child bonded for a lifetime is invested

with all her civil liberties. This Court in Santosky held, “At

the factfinding, the State cannot presume that a child and

his parents are adversaries. After the State has established

parental unfitness at that initial proceeding, the court may

assume at the dispositional stage that the interests of the

child and the natural parents do diverge“ (Id. at 760). But

here the court below did presume that the parents and

their daughter were adversaries, by appointing a lawyer

hostile to the family to represent Nancy. The court below

thus proved itself prealigned with the State barring the 5

Golins and Nancy from a fair proceeding. The parents

dismissal of neglect charges should have resolved any find-

ings of supposed neglect or abuse, and the probate trial as

conducted constituted double jeopardy, abrogating res ju-

dicata, on the issue of parental fitness.

it. THE COURT BELOW VIOLATED THE INTE-

GRATION MANDATE OF THE AMERICANS

WITH DISABILITIES ACT (ADA) NOT CONSID-

ERING A FAMILY HOME LEAST RESTRICTIVE

California violated the right of handicapped Nancy Go-

lin, under Title II of the ADA, 42 U.S.C. §12132, that ser-

vices “s/ould be provided in the setting that is least restric-

tive of the person's personal liberty.” In accord with the

regulatory power that Congress bestowed, the Attorney

General adopted the integration mandate, which requires

public entities to administer services "in the most inte-

grated setting appropriate to the needs of qualified indi-

viduals with disabilities." 28 C.F.R. § 35.130(d). The pre-

amble to the United States Attorney General's ADA Title

II regulations defines that language to mean " ‘a setting

that enables individuals with disabilities to interact with

non-disabled persons to the fullest extent possible.’ " 28

C.F.R. Pt. 35, App. A, p. 450 (1998) (cited by Olmstead, supra,

527 U.S. at p. 592). “The ADA appears to provide a mecha-

28

Petition for Writ of Certiorari, Golin et al v. DDS

a

nism to end the separation of individuals with mental dis-

abilities from society.”

Compare that with Judge Martin’s reasoning in the

opinion of the court below in the instant case (App., infra,

31a) “Within reason, Nancy Golin should occasionally be

exposed to persons and circumstances in addition to day

programs, residential care facilities, and her ‘peers”

(emph. added). This is far from ADA’s “fullest extent

possible”, achieved when Nancy is living at home and

in the community. The hidden agenda expressed by the

court below approves warehousing of retarded people away

from the disturbed eye of the public.

IV. NANCY GOLIN’S FAMILY RIGHT TO CON-

TINUING PROTECTION BY HER PARENTS

MUST BE CONSTITUTIONALLY PROTECTED

AS A RESULT OF WHITMORE V. ARKANSAS

Nancy Golin’s right to continuing protection by her fam-

ily is paramount here. Courts have consistently held when

conservatees reach majority they are theoretically emanci- ~

pated; thus, non-conserving parents lose standing to pro-

tect their rights. With the State as conservator and a

State-aligned attorney appointed representative, she per-

manently loses all her rights to protection by her family:

the State sees few practical bars to abusing her constitu. ~~

tional rights. The same people who injured her and vio-

lated her basic civil and constitutional rights monopolize

the right to represent her, blocking all her legal remedies

and immunizing themselves from a feared liability and

civil nights lawsuit by making her a legalized hostage.

We here contend that the same constitutionally pro-

*2 “In the Most Appropriate Setting’ The Rights of the Mentally Dis-

abled Individuals Under the Americans with Disabilities Act in the Wake

of Olmstead v. L.C.,” Neil S. Butler, 49 Cath. U.L. Rev. 1021, 1035 (2000)

23 O'Connor v. Donaldson, 422 U.S. 563 (1975), “May the State fence in

the harmless mentally ill solely to save its citizens from exposure to those

whose ways are different? One might as well ask if the State, to avoid

public unease, could incarcerate all who are physically unattractive or so-

cially eccentric. Mere public intolerance or animosity cannot constitu-

tionally justify the deprivation of a person's physical liberty” (Id. at 575).

29

Petition for Writ of Certiorari, Golin et al v. DDS

tected family rights of children to enjoy the protection and

nurturing of their families from unconstitutional abuse

must be extended to mentally handicapped adults. We ar-

gue this parental role must be constitutionally protected,

deriving from the common law doctrine of “next friend”.

This Court in Whitmore v. Arkansas, 495 U.S. 149

(1990), held a three-prong test to next friend qualification _

applicable to caring parents. First, one who is a prisoner of

the State as an incompetent adult has an “adequate expla-

nation as to why [she] cannot appear on her own behalf’

(Id. at 163-4). Second, devoted parents uniquely qualified

as lifelong caregivers are ordinarily “truly dedicated to the

best interests of the person on whose behalf he seeks to liti-

gate” (Id. at 163). Thirdly, parents have a “significant rela-

tionship with the real party in interest.”

The constitutional rights of association and freedom

from unreasonabte personal seizure may thus be easily

violated by the State. If the State is the only party permit-

ted to protect Nancy’s rights, then who can protect Nancy

from the State? This Court’s guarantees of her constitu-

tional right to refuse anti-psychotic medication in Wash-

ington v. Harper, 494 U.S. 210 (1990), rights that are avail-

able even to those who unlike Nancy have been diagnosed

with mental illness‘, and her right to protection in State

custody in Youngberg v Romeo 457 US 307 (1982), are

empty promises without her intertwined right to protec-

tion by her family being also constitutionally protected.

CONCLUSION

For the foregoing reasons, this Petition for a Writ of

Certiorari should be granted.

Respectfully submitted,

Jeffrey R. Golin Elsie Y. Golin

Dated, November 24, 2004

13736 De Leon Ave., Santa Nella, CA 95322

24 See also “The Right to Just Say No’ A History and Analysis of the

Right to Refuse Antipsychotic Drugs”, Dennis E. Cichon, 53 LALR 283

(Louisiana Law Review) (1992).

30 pr ianasciies

Petition for Writ of Certiorari, Gelin et al v. DDS

Page

la

2a

3a

4a

5a

14a

APPENDIX

Attachment

April 28, 2004: California Supreme Court de-

nial of a Petition for Review and Stay of Sixth

District Court of Appeals denial of Motion for

Transcripts on Appeal (S124153)

April 9, 2004: California 9 District Court of

Appeals Order Reversing Proceeding by Settled

Statement, Ordering to Proceed by [previously

denied] Transcripts, (H026861)

February 24, 2004: California Supreme Court

denial of Petition for Review of Sixth District

Court of Appeals denial of writ of mandate and

prohibition for conservatorship proceeding.

(S122012)

January 6, 2004: California Court of Appeals for

Sixth District denial of writ of mandate and

prohibition for immediate review of decision of

trial court granting conservatorship to State.

(H0126829)

November 10, 2003: Orders of the Superior

Court of Santa Clara County granting conserva-

torship of Nancy K. Golin enumerating six pow-

ers to be removed and granted to the California

DDS for an indefinite period. (1-02-PR-151096)

October 22, 2003: Statement of Opinion of

Santa Clara County Superior Court Probate

Div. in support of judgment granting limited

conservatorship of Nancy Golin to State of Cali-

fornia DDS denying competing petition of-par-

ents. 1-02-PR-151096)

Petition for Writ of Certiorari, Golin et al v. DDS

Court of Appeal, Sixth Appellate District — No.H026861

S$124153

IN THE SUPREME COURT OF CALIFORNIA

En Banc

DEPARTMENT OF DEVELOPMENTAL SERVICES,

Petiticner and Respondent

Vv

JEFFREY GOLIN et al, Objectors and Appellants

\

Application for stay and petition for review DENIED.

SUPREME COURT

FILED

APR 28 2004

Frederick K. Ohlrich Clerk

DEPUTY

Werdegar, J., was absent. and did not participate

S/GEORGE

Chief Justice

Petition for Writ of Certiorari, Golin et al v. DDS

IN THE COURT OF APPEAL OF THE STATE OF

CALIFORNIA

SIXTH APPELLATE DISTRICT

FILED

DISTRICT COURT OF AP-

PEALS

APR-9 2004

DEPARTMENT OF DE- -- MICHAEL J. YERLY, CLERK -

VELOPMENTAL SER- DEPS

VICES,

Petitioner and Respondent, | No., H0O26861

v. (Super. Ct. No. PR151096)

JEFFREY GOLIN, et al, Santa Clara County

Objectors and Appellants

BY THE COURT:

Appellants request for extension of time and request for

continuance is denied. The trial court having denied ap-

pellants’ motion to proceed by way of settled statement in

lieu of reporter’s transcripts, appellants are directed to file

their motion designating reporter’s transcript or notice of

intent to proceed without reporter’s transcript with the

trial court within 10 days from the date of this order.

DATED _ APR 9~—2004 S/ (Conrad Rushing) P.J.

Petition for Writ of Certiorari, Golin et al v. DDS

4

|

-

.

Court of Appeal, Sixth Appellate District — No.H026829

S122012

IN THE SUPREME COURT OF CALIFORNIA

En Banc

JEFFREY R. GOLIN, et al., Petitioners,

Vv.

| THE SUPERIOR COURT OF SANTA CLARA

| COUNTY, Respondents

DEPARTMENT OF DEVELOPMENTAL SERVICES

et al, Real Parties in Interest

>]

Petition for Review DENIED

SUPREME COURT

| FILED

) FEB 14 2004

Frederich K. Ohlrich Clerk

| S/ (JEN)

| DEPUTY

S/ GEORGE

Chief Justice

Petition for Writ of Certiorari, Golin et al v. DDS

IN THE COURT OF APPEAL OF THE STATE OF

CALIFORNIA

SIXTH APPELLATE DISTRICT

JEFFREY R. GOLIN, et al, No. H026829

Petitioners, (Santa Clara County

Super. Ct. No. PR-151096

V.

THE SUPERIOR COURT OF ~n

ome Amer JAN 6 — 2004 .

Court of Appeal — Sixth

DEPARTMENT OF DEVEL- | py App. Dist.

— SERVICES, et rn

Real Parties in Interest

BY THE COURT:

The petitions for-writs of mandate and prohibition are

denied.

(Rushing, P.J., Premo, J., and Elia, J., participated in

this decision.)

Dated___ JAN 6 — 2004 S/ RUSHING, P.J.

Petition for Writ of Certiorari, Golin et al v. DDS

Se Oe a ee Re, ye ett ee a ne, ee ee tr ae

Attorney or Party Without At- [ENDORSED]

torney: FILED

H. Dean Stiles 03 NOV 10 AM 7:46

State of Calif., Office of Legal

Affairs KIRI TORRE

Department of Developmental CHIEF EXEC OFFI-

Services CER OF/CLERK

P. O. Box 944202, MS 2-14 SUPERIOR COURT

Sacramento, CA 94244-2020 OF CA

Telephone No.: (916) 654-3234 COUNTY OF SANTA

Attorney for: Petitioner CLARA

SUPERIOR COURT OF BY. DEPUTY

CALIFORNIA, |

COUNTY OF SANTA CLARA

STREET ADDRESS: 191 N.

First St.

CITY AND ZIP CODE: San

Jose, CA 95113

CONSERVATORSHIP OF

THE: (checked) PERSON...

OF Nancy Golin

CONSERVATEE

ORDER APPOINTING PRO- CASE NUMBER:

BATE CONSERVATOR | 1-02-PR-151096

(checked) Limited Conservator-

ship

WARNING: THIS APPOINTMENT IS NOT EFFEC.

TIVE UNTIL LETTERS HAVE BEEN ISSUED

1. The petition for appointment of conservator came on

for hearing as follows (check boxes c,d,e, and f to in-

dicate personal presence):

a. Judge: William F. Martin

b. Hearing Date: September 29, 2003

Time 9:00am Dept: 15

c. Petitioner: Director of Department of Devel-

opmental Services

d. (checked) Attorney for Petitioner: H. Dean

Stiles

5 me

Petition for Writ of Certiorari, Golin et al v. DDS

e. (checked) Attorney for person cited: Malorie

Street, 120 West Mission St., San Jose, CA

95110 PH. (408) 299-7194

f. Personwas: (checked) present

THE COURT FINDS

2. All notices required by law have been given

3. Name: N/A

a. (unchecked) is unable properly to provide for

his or her personal needs for physical health,

food, clothing, or shelter

b. (unchecked) is substantially unable to man-

age his or her financial resources or resist

fraud due to undue influence.

c. (unchecked) has voluntarily requested ap-

pointment of a conservator and good cause

has been found for the appointment.

4. Conservatee:

a.

b.

Cc.

d.

(checked) is an adult

(unchecked) [will be an adult on the effective

date of this order].

(unchecked) [is a married minor]

(unchecked) [is a minor whose marriage has

been dissolved]

5. (checked) There is no form of medical treatment for

which the conservatee has the capacity to give an in-

formed consent, NOTE: SEE ATTACHMENTS.

(unchecked) [Conservatee is an adherent of a relig-

ion defined in Probate Code section 2355(b).]

6. (unchecked) [Granting the conservator powers to be

exercised independently under Probate Code section

2590 is to the advantage and benefit and in the best

interest of the conservatorship estate.|

7. (checked) Conservatee is not capable of completing

an affidavit of voter registration

8. (unchecked) [Conservatee has dementia as defined in

Probate Code section 2356.5 and the court finds all

other facts required to make the orders specified in

item 25].

9. (checked) Attorney (name): Malorie Street has been

Petition for Writ of Certiorari. Golin et al v. DDS

appointed counsel by the court as legal counsel to

represent the conservatee in these proceedings. The

cost for representation is: $ (blank) The conservatee

has the ability to pay for: (unchecked) all, (checked)

none, (unchecked) a portion of this sum (specify): $

(blank)

10. (checked) Conservatee need not attend the hearing.

11. (unchecked) The appointed court investigator is:

Cynthia Terra

12. (checked) (for limited conservatorships only) The

limited conservatee is developmentally disabled as

defined in Probate Code section 1420.

Page 1 of 3

ORDER APPOINTING PROBATE CONSERVATOR

(Probate Conservatorship)

(continued to page 2 of form----- >)

Petition for Writ of Certiorari, Golin et al v. DDS

(Page 2 of the form order starts here)

CONSERVATORSHIP OF (Name): | Case Number:

Nancy Golin, Conservatee 1-02-PR-151096

13. (unchecked) The conservator is a private profes-

sional conservator as defined in Probate Code sec-

tion 2341 who has filed with the county clerk the

confidential statement required by Probate Code

2342

14. (Either a, b, or c must be checked):

a. (checked) The conservator is not the spouse of

the conservatee.

b. (unchecked) The conservator is the spouse of the

conservatee and not a party to the action or pro-

ceeding against the conservatee for legal separa-

tion, dissolution, annulment, or adjudication of

nullity of their marriage.

c. (unchecked) The conservator is the spouse of the

conservatee and is a party to the action or pro-

ceeding against the conservatee for legal separa-

tion, dissolution, annulment, or adjudication of

nullity of their marriage. It is in the best inter-

ests of the conservatee to appoint the spouse as

conservator.

THE COURT ORDERS;

15. a. (Name) Director, Department of Developmental

Services

(Address): 1600 Ninth Street, Room 240, Sacra-

mento, CA 95814, (Telephone): (916) 654-3476

is appointed (unchecked) conservator, (checked) lim-

ited conservator: of the PERSON of (name) Nancy

Golin

b. (Name): (blank)

(Address): (blank) Telephone: (blank)

is appointed: (unchecked) conservator, (un-

checked) limited conservator of the ESTATE of

(name) (blank)

and letters of conservatorship shall issue upon

qualification

16. (unchecked) Conservatee need not attend the hearing

Petition for Writ of Certiorari, Golin et al v. DDS |

17. a. (checked) Bond is not required

18.

19.

20.

21.

22.

b. (unchecked) [Bond is fixed at $ (blank) to be

furnished by an authorized surety company or

as otherwise provided by law]

c. (unchecked) Deposits of $ (blank) are ordered to

be placed in a blocked account at (specify

institution and location): (blank) and receipts

shall be filed No withdrawals shall be made

without a court order (unchecked) Attachment

orders in Attachment 17c

d. (unchecked) The conservator is not authorized

to take possession of money or any other prop-

erty without a specific court order.

(unchecked) For legal services rendered, (unchecked)

conservatee, (unchecked) conservatee’s estate, (un-

checked) parents of the minor, (unchecked) minor’s

estate shall pay to (name) (blank) the sum of $

(blank) (unchecked) forthwith, (unchecked) as speci-

fied in Attachment 18, (unchecked) as follows (spec- ©

ify terms, including any combination of payors):

(blank)

(checked) Conservatee is disqualified from voting

(checked) Conservatee lacks the capacity to give in-

formed consent for medical treatment and the con-

servator of the person is granted the powers as de-

fined in Probate Code section 2355. (unchecked) The

treatment shall be performed by an accredited prac-

titioner of a religion as defined in Probate Code sec-

tion 2355(b). NOTE SEE ATTACHMENTS 28-31

No. 4.

(unchecked) The conservator of the estate is granted

authorization under Probate Code section 2590 to

exercise independently the powers specified in At-

tachment 21 _—_ (unchecked) subject to the condi-

tions provided.

(unchecked) Orders relating to the capacity of the

_ conservatee under Probate Code section 1873 or

1901 as specified in Attachment 22 are granted.

NOTE: SEE ATTACHMENTS 28-30, No 3..

Petition for Writ of Certiorari, Golin et al v. DDS

23. (unchecked) Orders relating to the powers and duties

of the conservator of the person under Probate Code

sections 2351-2358 as specified in Attachment 23

are granted: (Do not include orders under Probate

Code section 2356.5 relating to dementia)

24. (unchecked) Orders relating to the conditions im-

posed under Probate Code section 2402 upon the

conservator of the estate are specified in Attachment

24 are granted.

25. a. (unchecked) he conservator of the person is

granted authority to place conservatee n a care of

nursing facility described in Probate Code section

2356.5(b).

b. (unchecked) The conservator of the person is

‘ granted authority to authorize the administra-

tion of medications appropriate for the care and

treatment of dementia as described in Probate

Code section 23

Page 2 of 3

ORDER APPOINTING PROBATE CONSERVATOR

(Probate Conservatorship)

(continued to page 3 of form----- ?)

10

Petition for Writ of Certiorari, Golin et al v. DDS

—

(Page 3 of form starts here)

CONSERVATORSHIP OF (Name): | Case Number:

Nancy Golin, Conservatee 1-02-PR-151096

26. (unchecked) Other Orders as specified in Attach-

ment 26 are granted

27. (unchecked) The probate referee appointed is (name

and address) (blank)

28. (checked) (For limited conservatorship only) Orders

relating to the limited powers and duties of the lim-

ited conservator of the person under Probate Code

section 2351.5 as specified in Attachment 28 are

granted.

29. (unchecked) (For limited conservatorship only) Or-

ders relating to the limited powers and duties of the

limited conservator of the estate under Probate Code

section 1830(b) as specified in Attachment 29 are

granted.

30. (checked) (For limited conservatorship only) Orders

limiting the civil and legal rights of the limited con-

servator as specified in Attachment 30 are granted.

31. (checked) This order is effective on the (checked) date

signed, (unchecked) date minor attains majority

(specify) (blank)

32. Number of boxes checked in Items 15-31: 7

33. Number of pages attached: 2

Date: Nov 07 2003

s/ WILLIAM F. MARTIN

(JUDGE OF THE SUPERIOR COURT)

(checked) SIGNATURE FOLLOWS LAST ATTACH-

MENT

Page 3 of 3

ORDER APPOINTING PROBATE CONSERVATOR

(Probate Conservatorship)

ll

Petition for Writ of Certiorari, Golin et al v. DDS

oa

Limited Conservatorship of thePer- Case Number:

son of: 1-02-PR-151096

NANCY GOLIN |

ATTACHMENT 28

Powers and duties of the limited conservator of the person

pursuant to Probate Code section 2351.5 are granted as ;

follows: -

1. Full powers to fix the residence of specific dwelling

of the limited conservator.

2. Full power to consent, refuse consent, or otherwise

control access to the confidential records and papers :

of the limited conservatee;

3. Full powers to control the limited conservatee’s

right to contract;

4. Exclusive authority to give or withhold consent for

and to require the limited conservator to receive

medical treatment, in accordance with section 2355

of the Probate Code;

5. Full powers to control the limited conservator’s so-

cial and sexual contracts and relationships; and

6. Full powers to make all decisions concerning the

habilitation and education of the limited conserva-

tee.

ORDER APPOINTING LIMITED CONSERVATOR

(ATTACHMENT 28)

12

Petition for Writ of Certiorari, Golin et al v. DDS

Limited Conservatorship of the Per- | Case Number:

son of: 1-02-PR-151096

NANCY GOLIN

ATTACHMENT 30

IT IS HEREBY ORDERED: that the civil and legal

rights of the Limited Conservator herein shall be sus-

pended for an indefinite period of time as set forth be-

low:

1. Power to fix the residence or specific dwelling of

the limited conservatee;

2. Power to consent, refuse consent or otherwise

control access to the confidential records and pa-

pers of the limited conservatee;

Powers of the limited conservatee to contract;

Power to give or withhold consent for medical

treatment;

5. Power to control the limited conservatee’s social

and sexual contacts and relationships, and

6. power to make decisions concerning the habilita-

tion and education of the limited conservatee.

Dated: Nov 07 2003

s/WILLIAM F. MARTIN

JUDGE OF THE

SANTA CLARA COUNTY SUPE-

RIOR COURT

ORDER APPOINTING LIMITED CONSERVATOR

(ATTACHMENT 30)

13

Petition for Writ of Certiorari, Golin et al v. DDS

’

é

SUPERIOR COURT OF THE

STATE OF CALIFORNIA

COUNTY OF SANTA CLARA

In re the Conservatorship of | Case No.: 1-02-PR-151096

Nancy K. Golin STATEMENT OF

DECISION

Satcaf Caloris, De | (ENDORSED

iinine 7 FILED

. OCT 22 2003

Petitioner KIRI TORRE

: Chief Executive Officer

/Clerk

a Superior County of

, ’ Santa Clara

Jeffrey and Elsie Golin, BY RENEE ROGERS.

Georgianna Lamb, -DEPUTY

Respondents and Cross Pe-

titioners

This matter was assigned to the Honorable William F.

Martin, presiding in Department 15 of the Superior Court,

for trial to begin on September 29, 2003. H. Dean Stiles

appeared representing the Department of Developmen-

tal Services of the State of California (DDS), Nancy

Johnson appeared representing the San Andreas Re-

gional Center (SARC), Malorie Street, Deputy Public

Defender, appeared representing the Conservatee,

Nancy Golin, Kristin Baker, Deputy County Counsel,

appeared occasionally, not as a party, but to represent

the interests of the Santa Clara County Adult Protec-

tive Services Agency (APS) and its employees and re-

cords. Jeffrey and Elsie Golin and Georgianna Lamb, Re-

spondents, all appeared in propria persona representing

themselves.

The Court first heard and ruled on a number of in

limine motions including a CCP 170.6 challenge to this

Court. After much discussion regarding whether Mr. and

Mrs. Golin had already used a CCP § 170.6 challenge

against Judge Thomas Edwards when they also chal-

14

Petition for Writ of Certiorari, Golin et al v. DDS

lenged him for cause pursuant to CCP § 170.1, the Golins

withdrew their challenge and the Court moved on to the

other in limine motions, including motions to disqualify

Nancy Johnson and to disqualify Malorie Street for vari-

’ ous reasons. (Mrs. Golin filed a new CCP 170.6 challenge

against this Court on 10/20/03 after the case was argued

and submitted. It is DENIED as untimely. It was filed af.

ter the commencement of the hearing and after the open-

ing statement of counsel. Notably, it contains factually in-

accurate statements.) The motion to disqualify Nancy

Johnson, counsel for SARC, was denied. The Court did

place limits on the examination of witnesses and the ar-

gument of counsel to the extent there is a community of in-

terest between the DDS and SARC. The motion to dis-

qualify the Public Defender, Malorie Street, was also de-

nied. Pursuant to Probate Code § 1471(a), the Office of the

Public Defender was appointed to represent the Conserva-

tee, Nancy Golin, in this matter. The Court finds as to

both Ms. Johnson and Ms. Street that they have acted pro-

fessionally, ethically, and in the best interests of their re-

spective clients. The Court finds no evidence of personal

animus or bias against Mr. and Mrs. Golin. Counsel's

advocacy of positions contrary to those of Mr. and

Mrs. Golin does not support the extraordinary allega-

tions made by Mr. and Mrs. Golin against both Ms. John-

son and Ms. Street. The written papers submitted to the

Court during trial and pretrial, as well as the repeated ar-

guments of both Mr. and Mrs. Golin, demonstrate a world-

view of deep distrust and suspicion of authority, especially

governmental authority. Notably, Mr. and Mrs. Golin also

vigorously complain about the judgment, actions, and fair-

ness of the Court's Probate Investigators, prior J udges as-

signed to their matters -indeed all the judges of this county

("kangaroo court" referring to the dependency court, "like

political prisoners in a banana republic" - Mrs. Golin),

various police departments (including the Palo Alto Police

Department), various physicians and health care entities

(including the Stanford Medical Center and its staff),

SARC, APS, the District Attorney's Office, Santa Clara

15

Petition for Writ of Certiorari, Golin et al v. DDS

County Counsel, the State Department of Developmental

Services and various state licensing boards. Mr. and Mrs.

Golin are extremely suspicious of the actions of many of

the governmental agencies and allege a conspiracy in-

tended to deprive them of their rights and to disadvantage

them. Both Mr. and Mrs. Golin accuse Ms. Street of con-

spiring with the District Attorney's Office to prosecute the

Golins on various charges so that some advantage might

obtain in this proceeding. The Court notes that the Golins

have sought, and are seeking relief in Federal Court from

their perceived disadvantages caused by these various

governmental entities.

Pursuant to Probate Code (P.C. § 1820 (a) (4)), the State

Department of Developmental Services has petitioned this

Court to serve as Nancy Golin's permanent, limited con-

servator (P.C § 1801 (d)). The Office of the Public Defender

has been appointed to represent the interests of the pro-

posed conservatee, Nancy Golin (P.C. § 1471(c)). Clear

and convincing evidence is required to establish a lim-

ited conservatorship for Nancy Golin (P.C. § 1801 (e)).

The limited conservatorship shall be granted "only to

the extent necessitated" by (Nancy Golin's) "proven

mental and adaptive limitations" (P.C. § 1801 (d)). Health

and Safety Code § 416.9 provides that "The preferences

established in § 1812 of the Probate Code for the ap-

pointment of a conservator shall not apply" when the

Court is considering the appointment of the Director of the

DDS as limited conservator of a developmentally delayed

minor or adult person. Mr. and Mrs. Golin contend that

dicta in Parham, Commissioner, Department of Human

Resources of Georgia v. J.R., Et al. 442 U.S. 584, 602

(1979) creates a presumption that fit parents normally act

in the best interests of their children. But even this pro-

nouncement is conditioned on the parents being found fit

and continues only so long as the parent adequately cares

for his or her children. The Supreme Court notes "As with

so many other legal presumptions, experience and reality

may rebut what the law accepts as a starting point: the in-

cidence of child neglect and abuse cases attests to this."

16

Petition for Writ of Certiorari, Golin et al v. DDS

eee ee ee es

Ibid p.602. The selection of the conservator is in the sole

discretion of the Court "guided by what appears to be for _

the best interests of the proposed conservatee" (P.C. §

1812(a)). Trial by jury was explicitly waived by the pro-

posed conservatee, through the Office of the Public De-

fender (P.C. § 1827). The Court finds that the require-

ments of P.C. § 1827.5 have been met (Exhibits 1 & 3).

The DDS petitions for six of the seven (excepting only the

power to control consent to marriage) enumerated powers

available to limited conservators in P.C. § 2351.5 (b). The

same statute requires the DDS to maximize Nancy Golin's

independence and self-reliance (P.C. § 2351.5 (a) (2)). Pro-

bate Code § 2355 requires the conservator to make health

care decisions "based on the conservator's determination of

the conservatee's best interest" considering "the conserva-

tee's personal values to the extent known to the conserva-

tor" P.C. § 2355 (a).

The Court finds by clear and convincing evidence that

the proposed conservatee, Nancy Golin, lacks the capacity

to perform the tasks necessary to provide properly for her

own personal needs for physical health, food, clothing, and

shelter and to manage her own financial resources. The

testimony and report of Dr. Carrie Mohlo supports these

findings. Observation of Nancy Golin in court confirms the

testimony of Dr. Mohlo in this regard. Nancy Golin ap-

pears in court to be about her stated age of 33 years in

physical appearance. Yet, she also appears profoundly de-

velopmentally delayed. Nancy Golin was observed daily to

sit quietly for awhile and then get up and wander about

the court room frequently, including to the witness stand

and the court reporter's station. Her frequent wanderings ~

in the court room confirm the testimony that she is a

"wanderer". Other than an occasional noise, Nancy

Golin is mute. She smiles frequently, makes eye con-

tact, and appears happy from her facial expressions in

court. Nancy Golin appears alert and does not show evi-

dence of any side effects from any of her medications in

court. Specifically, the Court observed no tongue-

thrusting, lip-smacking, tremor, shuffling gait, loss of bal-

17

Petition for Writ of Certiorari, Golin et al v. DDS

ance or apparent drowsiness. Although the testimony was

that Nancy Golin suffers from a severe seizure disorder,

none were observed in the court room. The testimony of

her neurologist, Dr. Sarah Gaskins, was that her seizures

are under control with her present medication regime of

Phenobarbital, Dilantin, and Neurontin. Finally, Nancy

Golin did not demonstrate any of the previous misbehav-

iors described in the testimony. The Court did not observe

any pinching, biting, scratching, responding to internal

stimuli, anxiety, screaming, fearfulness, or any of the other

described problem behaviors. Nancy Golin is presently

taking Klonopin for these behaviors and apparently it is

working well with no observable side effects. There has

essentially been no debate that Nancy Golin requires a

limited conservator because of her limitations. Rather the

debate has been about who should be Nancy Golin's con-

servator.

Reasonable efforts have been made to provide for the

attendance of the proposed conservatee, Nancy Golin, at

the trial (P.C. § 1825 (a)). Nancy Golin has attended all

but one day of this protracted trial. (She missed one

day due to a scheduling miscommunication.) She

usually arrives around 9:30 AM with her caretaker and

usually departs within about one hour or less of her arri-

val. Nancy Golin presently resides at Embee Manor, a

residential care facility retained by SARC to provide care

for Nancy Golin. Nancy Golin appears clean and well

groomed. Her hair appears clean and combed. Her

clothes appear clean and unstained. She does not ex-

hibit body odor. The Court has ordered that Nancy Golin

be allowed to remain, or depart, as indicated by her

wishes. Nancy Golin tends to wander about the courtroom

and usually sits quietly in one location for awhile before

moving about the courtroom and eventually going to the

door, indicating a desire to depart. For her safety and

wellbeing, she is accompanied by her caretaker during her

journeys.

As mentioned above, this trial has essentially been

about who should be Nancy Golin's limited conservator.

18

Petition for Writ of Certiorari, Golin et al v. DDS

~ a

a eS

The State of California DDS, acting through the SARC and

a residential care facility - Embee Manor, petitions this

Court to be made that limited conservator on a permanent

basis. Georgianna Lamb has withdrawn her petition, but

pursuant to a stipulation, desires to remain as an active

advocate for Nancy Golin's best interests. Mr. and Mrs.

Golin (the Golins) petition the Court to be made Nancy Go-

lin's limited conservators. The DDS, SARC, and the pro-

posed conservatee - - through the Public Defender, all criti-

cize the Golins' abilities to act in Nancy Golin's best in-

terests. The Golins criticize the State's ability to act

in Nancy Golin's best interests. Ms. Lamb has offered

constructive criticism of perceived problems with Nancy

Golin's care under the supervision of SARC and Embee

Manor. The evidence submitted by the Golins casting

doubt on the State's abilities to act in N ancy Golin's

best interest is summarized as follows:

Dr. Gerald Kaplan, a plastic surgeon and head of the

Alta Bates Hospital Burn Unit, testified to the presence of

a left clavicle fracture found on Nancy Golin's chest x-

ray films dated: 8/29/02 (some callus) and 11/7/02 (more

callus - healing). He noted that x-ray films dated

9/20/01 revealed no fracture. The obvious conclusion is

that sometime between 9/20/01 and 8/29/02, N ancy Golin

sustained a fractured left collar-bone. Dr. Kaplan saw no

evidence of medical care for the fracture. Mimi Kinder-

lehrer testified that Nancy Golin was seen by an orthope-

dist for the fracture. Dr. Duc Nguyen, a board certified or-

thopedic surgeon, was called as a witness by the Golins

and testified that he examined Nancy Golin on 12/02/02

and viewed the same x-rays films as Dr. Kaplan. Dr.

Nguyen opined that Nancy Golin suffered a fracture to

her left clavicle around May, 2002 or earlier. He was

quite clear that he could not tell precisely when the frac-

ture occurred or how it occurred. He also had no opinion

as to whether Nancy Golin received medical care for the

fracture. Thus there is no evidence as to precisely when

this occurred, or more importantly, how it occurred. There

was testimony from Mrs. Golin that Nancy Golin was acci-

19

Petition for Writ of Certiorari. Golin et al v. DDS

dent prone. Further, the record is replete with evidence of

Nancy Golin's seizure disorder and there is evidence of

limitations in the use of her right arm and hand due to or-

thopedic or other causes, presumably suggesting the use of

her good left arm in case of a fall. The Stanford Medical

Center records, Exhibit AL, refer to a fall from a wheel-

chair around 11/24/01 in the psychiatric resident's

notes at page 77. Perhaps Nancy Golin fell or had a

seizure, which caused the fracture. No one knows.

While less likely, the fracture could have happened be-

fore 11/15/01.

Dr. Duc Nguyen also testified to a partially dislocated

left shoulder appearing in the 11/07/02 x-ray film taken at

Alta Bates Medical Center. On cross examination, he

clarified that he did not consult with other doctors. Appar-

ently he did not review the emergency room note by Dr.

Mark Bason-Mitchell, Exhibit 22, who noted: "She

had what appeared to be a dislocated shoulder on her chest

x-ray; however, clinically she did not appear dislocated in

that she had good range of motion, strong pulse and no ob-

vious deformity when palpated. I repeated this shoulder

series which suggested that her shoulder is in fact in

place." Thus, apparently, Dr. Nguyen was not given all

the information needed to fully inform him as to the con-

dition of Nancy Golin's left shoulder. It appears that,

after a more thorough examination, her shoulder was not

dislocated.

Dr. James Morgan testified that he first treated Nancy

Golin on 12/12/01. Ms. Golin's caretaker at the time pro-

vided a history of profound mental retardation, and sei-

zure disorder. Notably, he was not given any history of

hiatal hernia problems at that time. At some point he de-

tected anemia possibly due to loss of blood. Occult blood

had been found in stool specimens. He ordered upper

and lower gastro-intestinal studies which occurred 3/19/02

and 4/10/02. The results of both studies were normal.

On 8/14/02 Nancy Golin was brought in by her caretaker

for examination of an injury to her right middle finger.

The fingernail was missing (avulsed), apparently torn off,

20

Petition for Writ of Certiorari, Golin et al v. DDS

possibly by Nancy Golin. Dr. Morgan opined that there

was no way to know with certainty how the injury oc-

curred. This was his last examination of Nancy Golin.

The Stanford records, Exhibit AL, at page 23, note that on

11115/01 Nancy Golin was admitted with, * onchyomycosis

in the left hand extensively involving the nail bed in all

five fingers." Apparently Nancy Golin had fungal infec-

tions of the fingernail beds even while in the care of her

parents.

Finally, Mr. and Mrs. Golin submit photographs and

testimony in which they contend that Nancy Golin suf-

fered a cut over her right eye (Exhibit AH) and had been

restrained with ligature marks showing on her ankles

(Exhibit AE). Exhibit AE shows swollen ankles, but does

not show ligature marks. That interpretation is strained

to say the least. Exhibit AH does show a small quarter

inch cut in Nancy Golin's upper right eyelid. Again,

there is no evidence as to how this small cut was re-

ceived and, against the background of her seizure disorder

and accident history, does not rise to the level of abuse or

neglect in the care of the DDS. Mrs. Golin, throughout the

trial, argued, suggested, and stated as fact that N ancy

Golin suffered esophageal injuries (including a pre-

cancerous condition) from the allegedly poor medical care

and treatment she received while under the control and

care of the DDS. There is absolutely no admissible evi-

dence in the record in this regard however. No medical

expert testified to these issues. Dr. Morgan's testi-

mony about esophageal issues was stricken as he did not

treat Nancy Golin for these issues and was not declared as

a retained expert (he testified as a percipient expert) by

the Golins. Mrs. Golin fails to comprehend that she is not

a medical expert and her statements in this area, even if

otherwise admissible, are separately inadmissible due to

her lack of expert qualifications and education.

The DDS, SARC, and the Public Defender criticize Mr.

- and Mrs. Golin in three major areas: a history of abuse and

neglect of their daughter while in their care; a history of

substantial domestic conflict between Mr. and Mrs. Golin

21

Petition for Writ of Certiorari, Golin et al v. DDS

A

which impedes their ability to work collaboratively in

Nancy Golin's best interests; and, a history of substantial

conflict with professionals, including medical professionals,

which results in substandard medical and other care for

their daughter.

There is ample evidence in the record of the Golins' con-

flicts with numerous medical professionals. Dr. Morgan,

when questioned by Mrs. Golin, described his interactions

with Mr. and Mrs. Golin. He described the Golins as dis-

ruptive (he was in the process of treating scheduled pa-

tients when the Gol:ns arrived), demanding, and irate.

They projected their anger at him and he resented that.

Dr. Bason-Mitchell, the emergency room physician at Alta

Bates Medical Center, saw Nancy Golin on 11/07/02 when

she was brought in by Mr. and Mrs. Golin and Ms. Lamb

(in an attempt to have her seen by a neurologist at Alta

Bates because of their concerns with Trazodone and

Risperdal being given to Nancy Golin at the time). His

written description of his interactions with the Golins

speaks volumes about their problems in this area and the

impact on Nancy Golins medical care. "The mother, father

and the friend are all extremely concerned about the pa-

tient and the concept of the patient being withdrawn from

trazodone and Risperdal. I have done my best, with

lengthy conversations, and in nonmedical plain English, to

explain to them that there is no acute withdrawal from

Risperdal or trazodone. They refused to believe me, so I

have also called the patient's primary care physician,

Dr. Masada ...he assured me that his interaction with the

family has been somewhat concerning, in that he has

called the companies that produce these two medications

and they feel that there is no acute withdrawal syndrome

related to withdrawal of these medications." Dr. Bason-

Mitchell even called California Poison Control on this issue

in an unavailing attempt to reassure the Golins. "I have

done my best with over 15 different conversations with

family to confirm for them that there is no danger in with-

drawing Trazodone and Risperdal, that I did not plan to

admit the patient to the hospital or withdraw these medi-

22

Petition for Writ of Certiorari, Golin et al v. DDS

cations, that their primary care physician, Dr. Masada has

asked that they come to his office first thing in the morn-

ing; however, the patient's family continues to be agitated,

requesting to see a new physician, requesting to be admit-

ted to the hospital, demanding to see a neurologist. I have

done my best to allay their concerns, that I feel their

daughter is in no acute danger.... however, they con-

tinue to aggressively demand that I admit the patient

to the hospital. I have had difficulty having calm conver-

sations with them because they continue to interrupt me

and not let me finish my sentences. I have done my best to

allay their concerns and have assured them again and that

I am discharging them from the Emergency Department.

They are refusing to leave and has (sic) been asked to leave

now by security.... they left angry and frustrated and

refused essentially to listen to my discharge instruc-

tions;... "(Exhibit 22) The Stanford records, Exhibit AL,

express concern about the critically high levels of

Phenobarbital found in Nancy Golin upon admission on

11/15/01. Dr Chris Hayward's discharge summary notes

Mrs. Golin's involvement with this issue:

"Apparently, the mother believed that the doctors did

not know how to dose the Phenobarbital for N ancy, and

therefore took matters into her own hands.” (Exhibit

AL, p. 24) The Stanford social worker noted: "(Pt's fam-

ily has hx of volatile behavior in ER and hospital and have

had hx of dealings with security + police due to disruptive

behavior at hospital.)" (Exhibit AL, p. 36) Dr. Sarah Gas-

kins' staff called security on March 10, 2003, after being

bothered and scared by the Golins (Exhibit T, p. 2). Mr.

and Mrs. Golin called the police and paramedics to Embee

Manor several times in March 2003 disrupting the

staff and residents (Exhibit T). Mimi Kinderlehrer tes-

tified that Embee Manor requested that Nancy Golin be

removed from their care several times due to the actions of

Mr. and Mrs. Golin. The first request was in December

2002 due to intimidation and aggravation caused by Mr.

and Mrs. Golin.

Mr. and Mrs. Golin have each testified multiple times

23

Petition for Writ of Certiorari, Golin et al v. DDS

in various ways that they truly believe that they are more

intelligent and more educated than others, including most

physicians and other professionals attempting to provide

care for Nancy Golin. Mrs. Golin, in particular, belittles

physicians and others who do not meet her lofty standards

("smart aleck intern", "scatter-brained" social worker, "so-

called experts fresh out of school", "wet behind the ears").

In lieu of medical school, the Golins apparently educate

themselves on various medical topics from the internet

and package inserts accompanying medications. Armed

with this information, they are unafraid to medicate

Nancy Golin according to their own beliefs despite physi-

cian's orders to the contrary. The medical records in-

dicate that Nancy Golin's seizures were not under

control despite Mrs. Golin's belief in "good old Phenobarbi-

tal" dosed at critical levels: (normal 15-40) - - 6/15/99:

level 44.3 (Exhibit P); 7/14/99: level 52.8 (Exhibit P);

11/15/01: level 53.5 (Exhibit AL). A number of factors

have combined to cause a lack of continuity in Nancy Go-

lin's medical care and have exposed Nancy Golin to dan-

gerous non-compliance with physicians’ directions as to

medication and care for her very serious seizure disorder

and other medical problems: a) the Golins' difficult

personalities; b) the Golins' mistaken overconfidence

in their limited medical knowledge combined with their

erroneous belief that they are smarter than others; c) the

Golins' willingness to shop around for a physician

who will accommodate their demands rather than

confront them; d) Mr. Golin's agreement with or ac-

quiescence to Mrs. Golin's misinformed medical deci-

sions.

The Golins' behavior in the court room confirms the evi-

dence of their behavior and problems outside the court

room. They were routinely late, delaying the proceedings

for a total of close to three hours total over the three week

trial. Mr. Golin was cited for contempt for his comments

directed at the Court. Mrs. Golin was excluded from the

court room one afternoon after repeatedly coaching Mr.

Golin, who was on the witness stand, despite numerous

24 |

Petition for Writ of Certiorari, Golin et al v. DDS

admonitions from the Court. There were routine and re-

peated interruptions of court proceedings despite advice

and warnings to the contrary. Mrs. Golin answered a cell

phone in:the middle of her husband's testimony, com-

pletely disrupting the proceedings for about 20 to 30 min-

utes. The examples are too numerous to detail here, but

show a clear pattern of self-absorption and an absence of

insight as to how their actions negatively impact not only

their own lives and that of their daughter, but are also dis-

ruptive to the work of others, professionals, and even to

court proceedings. The Golins were secretive, frequently

claiming a right to privacy. They were reluctant to provide

access to their present residence or business locations.

Mrs. Golin was evasive as to the present location of a

motor home registered in Nancy Golin's name. As a

consequence, the Court has no clear information as to the

condition of their residence or any business they own. The

Court is without clear information as to their financial

situation or assets. The Golins attempted to mislead this

Court in their testimony, conceding certain facts only

when confronted with evidence to the contrary. (Mrs. Go-

lin testified twice that the motor home was registered in

her name, correcting the misimpression only when con-

fronted by the Court.) The Golins are quick to blame oth-

ers and loathe to accept any responsibility for their or their

daughter's problems. (See, for example, Mr. Golin's testi-

mony regarding his felony conviction for insufficient funds

checks) As to this issue alone (continuous, prolonged con-

flict with professionals and others related to the care of

their daughter), the Court finds by clear and convincing

evidence that both Mr. and Mrs. Golin are presently un-

able to provide for the best interests of their daughter,

Nancy Golin, because of their history of continuous con-

flicts with most medical and other professionals.

The DDS, SARC, and the Public Defender also contend

that the history of conflict between the Golins also ren-

ders them unfit to serve as Nancy Golin's conservator.

Again there is ample evidence of past and present con-

flict. The Golins nicely demonstrated their inability to

25

Petition for Writ of Certiorari, Golin et al v. DDS

work together throughout the trial. Their contentious re-

lationship was on display - - from the beginning with a

dispute as to who would give an opening statement first - -

~ until the end of the trial when Mr. Golin, frustrated by

Mrs. Golin's non-stop interruptions while he was address-

ing the Court, admonished her to be quiet or he would

have to ask the Court to exclude her on his own behalf.

The Golins' testimony about their marital strife and their

interactions with the Mountain View Police Department,

along with the Domestic Violence and the Family Court

files are all consistent with the general impression caused

by their behavior in the courtroom. (See: Exhibits: 20,

21, 23, 24, 25, 26, 26, 27, 28) The Golins appear un-

able to collaborate, unable to work as a team, and un-

able to coherently work towards the best interests of their

daughter. Of concern was Mr. Golin's testimony that he

routinely simply defers to his wife's decisions as to their

daughter's care, apparently in hopes of preserving some

marital harmony. This, of course, does not suggest that he

will be necessarily working towards Nancy Golin's best in-

terests. On this independent basis also (inter-personal

conflict between Mr. and Mrs. Golin), the Court finds by

clear and convincing evidence that Mr. and Mrs. Golin

are unable to provide for the best interests of the pro-

posed conservatee, Nancy Golin.

The DDS, SARC, and the Public Defender also contend

that the history of past abuse and neglect of Nancy Golin

while in the care and custody of Mr. and Mrs. Golin dem-

onstrates their unfitness to serve as conservators of their

daughter. The Court received evidence of Nancy Golin's

dependency action held around 11/86 when the Juvenile

Court found her to be a dependent child of the Court (Ex-

hibits 17, 18). Nancy Golin was placed in foster care for a

period of time. Mr. and Mrs. Golin's testimony about those

events was similar to their approach to all their difficul-

ties. They attacked the fairness of the proceedings ("kan-

garoo court" - Mrs. Golin) and minimized the significance

of their misconduct. In the midst of a domestic dispute,

the police were called by the apartment manager because

26

Petition for Writ of Certiorari, Golin et al v. DDS

Mr. Golin left for work with Nancy Golin alone, locked in a

second floor bedroom with a pot for toilet purposes and a

bowl of dried banana slices. Nancy had eloped from that

apartment before, apparently using a ledge on the second

floor. In the same time frame, the mid 1980's, Nancy

Golin received severe burns after locating a lighter dis-

carded by Mrs. Golin. Nancy Golin required several

weeks' hospitalization and a skin graft under an arm.

Mrs. Golin testified that this event was not her fault and

was entirely unexpected, even though Nancy Golin liked

candles and had a sleep disorder causing her to get up at

all hours of day and night after a dinner with candles the

evening before. The evidence shows that Nancy Golin has

the mind and inhibitions of a very young child. She lacks

any significant appreciation of common dangers and must

be constantly monitored and protected. Mrs. Golin still

fails to understand her role in this event. Less than ten

years later in 1995, tragically, Nancy Golin was severely

burned again. She received second and third degree burns

over 50% of her body, threatening her life. She was under

the care and control of her father who was barbequing at

his workplace. Mr. Golin likewise claims total surprise

when Nancy reached over the barbeque and caught her

clothing on fire again. Mr. and Mrs. Golin's past failures to

closely monitor the safety of their daughter have resulted

in two severe burn injuries to her, yet they still fail to

grasp their role in these tragedies. Mrs. Golin admitted

that on 1/23/99 Nancy Golin was taken to the Stanford

Medical Center E.R. after ingesting tainted salmon found

in the trash. She apparently was not closely monitored on

that occasion either.

Again, on 11/4/00, Mrs. Golin went into the kitchen,

leaving Nancy unattended temporarily and Nancy un-

screwed the cap to some rubbing alcohol and put it to her

lips, generating another visit to the Stanford E.R. On No-

vember 14, 2001, while under the care and control of both

Mr. and Mrs. Golin, Nancy Golin was again left unat-

tended and wandered off into the night in a commercial

district of Palo Alto without her medication. Mrs. Golin

27

Petition for Writ of Certiorari, Golin et al v. DDS

testified that Nancy Golin had earlier wandered off three

to four times in the year 2001 and that the police had been

called whenever she had wandered out of sight. Mrs. Go-

lin cannot recall how many times Nancy Golin wandered

off in the year 2000. The Golins' past failures to ade-

quately monitor Nancy Golin while she was under their

care and control have endangered their daughter and

caused her to suffer severe injuries. The Golins' dysfunc-

tional relationship with medical and other professionals,

as detailed above, has also harmed their daughter.

Considering this ground (abuse and neglect) alone, the

Court finds there is clear and convincing evidence that the

Golins' past history of neglect and abuse renders them un-

able and unfit to provide for the best interests of Nancy

Golin as her conservator.

For the reasons stated above, therefore, the Court

GRANTS the Petition of the State Department of Devel-

opmental Services without conditions and appoints them

as Nancy Golin's permanent limited conservator with the

powers requested in the Petition. DDS (or its designee)

shall prepare a proposed Order accordingly (P.C. § 1830).

The Probate Code does allow for modification of limited

conservatorships. Conceivably, in the future, the Golins

might eventually apply again to become their daughter's

limited conservator. This Court would not !ook favorably

upon such a request unless and until the following mini-

mum objectives (some may be inapplicable depending on

whether one or both of the parents petition the court in the

future) have been demonstrated by the Golins with clear

and convincing proof:

e Satisfactorily complete any grant of probation

e Obey alllaws

e Obtain valid California Drivers Licenses and

Valid California Contractors Licenses

e Repay all outstanding debts

e Establish a history of at least 18 months of gain-

ful employment (and net income there from) suf-

ficient to support their household in either an

apartment or house in California

28

Petition for Writ of Certiorari, Golin et al v. DDS

e Transfer title of any property or vehicles in

Nancy Golin's name to Mr. or Mrs. Golin's

name

e Establish a history of at least 18 months of co-

operation with all professionals connected with

the care of their daughter, which includes elimi-

nating the disruptive, hostile, and demanding

behavior which is the predominant characteris-

tic of their past relationships with professionals.

It is strongly suggested that-Mr. and Mrs. Golin

utilize the services of Ms. Lamb (Nancy Golin's

advocate) if they harbor any concerns about the

care and treatment of their daughter by the

DDS or its agents. Direct involvement by the

Golins with the DDS, SARC, residential care fa-

cilities, medical and other professionals and

other agents of the DDS will, in all likelihood, be

extremely counterproductive to any hope of es-

tablishing a record of conflict-free cooperation.

e Establish a history of marital harmony and col-

laboration between spouses, including seeking

marital and other counseling as needed, if both

Mr. and Mrs. Golin petition again to be conser-

vators

e Specifically comply with all DDS, SARC, resi-

dential care facility, medical, social work, and

other related professional's protocols relating to

the care and treatment of Nancy Golin

e Specifically comply with all visitation rules and

requirements

e Establish a history of open cooperation with the

Court's Probate Investigators during investiga-

tions of the Residence, assets, finances, and

business conditions of Mr. and Mrs. Golin

e Continued litigation or the exercise of their

statutory and Constitutional rights in state or

federal court, including appeals or writs as to

this Court's rulings specifically is not a factor to

be considered in the above calculus

29

Petition for Writ of Certiorari, Golin et al v. DDS

The Court Grants to the DDS the six requested powers

without condition or limitation, including the power to con-

trol Nancy Golin's social contacts (which includes visits

with her parents). The approach suggested by SARC

(Marked as Court's Exhibit 2 and attached as an ex-

hibit to this decision) appears reasonable to the Court and

hopefully will provide guidance to all involved with this

important issue. (The Court has read and considered the

submissions of Mr. and Mrs. Golin on this topic and finds

them unfocussed, and much less helpful.) Ultimately,

though, discretion in the exercise of this, and the other

powers, must remain with the limited conservator, the

DDS.

This Court has no objection to a transfer of Nancy Go-

lin's care to another regional center, provided such a trans-

fer is in the best interests of Nancy Golin.

Finally, buried in the rhetoric and the overwhelming

evidence of the Golins' problems, are legitimate concerns

about the care of Nancy Golin when in the custody of ‘

the DDS, SARC, and residential care facilities. Efforts

should be made to establish a repository of Nancy Golin's

extensive past medical history for use by medical profes-

sionals as changes are made in her care providers. Rea-

sonable requests for second medical opinions (and other

suggestions for improved care) by Ms. Lamb should be

considered. Efforts should be made to better document

(and prevent) any injuries to Nancy Golin, from minor cuts

and bruises - - to avulsed fingernails - - to fractured collar

bones. Special care should be given to monitoring her sei-

zure disorder and preventing any injuries which might re-

sult from unmonitored seizures if the present medication

regime fails, in the future, to control her seizures. Within

reason, Nancy Golin should occasionally be exposed to per-

sons and circumstances in addition to day-programs, resi-

dential care facilities, and her "peers". SARC's Psy-

chotherapeutic Medication Policy (Exhibit Y) ade-

quately captures the Court's concerns regarding the use of

psychotropic medications. To the extent Mr. and Mrs. Go-

lin are not disruptive, abide by all rules and requirements

Tan ye Pee

30

Petition for Writ of Certiorari, Golin et al v. DDS +

of SARC (or another regional center) and the residential

care facilities, abide by all visitation rules and require-

ments, and do not endanger or neglect their daughter, they

should be allowed reasonable visitation with their daugh-

ter, Nancy Golin. -

10/21/2603 s/ WILLIAM F. MARTIN

William F. Martin

31

Petition for Writ of Certiorari, Golin et al v. DDS