The Frank Report is doing a series of articles on the sad and unacceptable saga of Bertha Bernal’s family.
They are American citizens fighting the California’s Probate Court and its Conservatorship System that is essentially keeping Bertha, 93, as a hostage.
By Leo Bhering
No matter how many times we examine Bertha Bernal’s situation, the sense of outrage never fades.
Legal professionals, wielding absolute power over non-criminals, to the point that even the immediate family has no voice, has no rights.
Would YOU give up? Would you leave your mother to spend the last days of her life in the company of indifferent, careless, even hostile strangers?
We have to stand up against this. And we have to do it NOW, because time is of the essence for 93-year-old Bertha Bernal.
You can read here our first two articles about Bertha Bernal’s case.
It was decided by the Probate Court in California that the best thing for Bertha is to remain as one of sixty-something conservatees of Suzette E. Smith, the conservator who entrusted Betha’s living situation to caregiver Maila Soliven at Arcene Guest Homes.
Bertha’s grown children Sandi, Cathleen [Cat] and Anthony believe this is not the right place for their mother and that Arcene does not welcome their visits to their mother. In fact they say the caregiver, Solliven, actively works to prevent contact with their mother.
The children have tried for years to be their mother’s conservator, after another family member relinquished his role.
They want to place her under their care and at a facility where they can visit her daily and bring her home to be with them for visits.
They have not given up. But time is running out for them since their mother is in failing health.
As we examine court documents and emails arising out of their long, judicial struggle, the picture that emerges is of three children who want to take care of their mother, and a Probate Court system that seems to favor paid conservators and the bureaucracy built around it. There is ample evidence that Bertha Bernal prefers to be with her children, and becomes happier and enlivened when she is regularly visited by her family and friends.
This is something that presently the law prevents her from doing – in the final days of her life.
Bertha expresses the desire to be with her family, whenever she has the chance -even in her captivity. This fact seems lost on the people making decisions on her behalf.
Why is Bertha a hostage to California Probate Court? Why isn’t she allowed to see her children, her family and friends?
How does it make sense to separate someone from the very people they love at this critical stage in her life?
It seems to border on intentionally evil.
The evidence used by the conservator to suspend visitation rights of Bertha is the very definition of “hearsay”:
A medical doctor that stated that “family visits were harmful” to this elderly lady.
However in his statement something crucial emerges: The doctor admits that his medical “opinion” stems not from direct examination or observation of Bertha, or even from comments made by Bertha herself – but is based entirely on “notes” made by the caregiver Maila Solliven herself.
This is the same caregiver that does not want Bertha’s family to visit.
But this is shoddy evidence. A doctor in the system, in league with the probate system, who makes money from this system, does not examine Bertha, but takes the word of the caregiver and then this is used to separate the elderly mother from her adult children.
The same caregiver that is involved in a bitter dispute with the family – one that begins and ends with the family’s accusations of substandard care – influences the entire process.
Add to this the pandemic.
The conservator and the caregiver are exploiting the pandemic loophole, using “medical reasons” to infringe upon rights that are clearly stated in legislation meant to safeguard elder rights.
(Here are the laws that protect elders in Orange County, CA: https://www.ocregister.com/2018/09/23/these-laws-help-protect-seniors-in-the-probate-system/)
They also conflate the doctor’s bogus medical recommendations as “doctor’s orders”, and in some correspondence they even call it “court orders”.
A conservatee [Bertha] under the system is not devoid of rights. These rights are stated clearly. The same applies to Residents of Home Care facilities.
A conservatee or resident has the right “to be treated with understanding and respect, and have her wishes considered”. This may appear to be a non-controversial, but in practice it seems to be widely ignored.
A conservatee or resident has the right to receive visits from family and friends, “unless a judge has ordered restrictions on a person’s visits”.
Furthermore, a resident “has the right, and the facility must provide immediate access to any resident to immediate family or other relatives of the resident“.
Even this right of Bertha’s has been trampled on: A conservatee or resident has “the right to receive unmonitored telephone calls”.
With the pandemic limiting visits, the phone and Facetime are the best available option to keep in communication with mother and children, as the children continue their fight to become their own mother’s conservator.
In Bertha’s case, her phone is controlled by her captors/caregivers. She is not given the opportunity of doing Face Time with her children.
The family has engaged in a nonstop, grueling routine of legal proceedings to get to see their mother. They could not find a competent lawyer in Orange County who appears to be willing to stand up against the powerful conservatorship system, so they have represented themselves as best as they can.
Keep in mind that they simply want to take charge of the care of their mother. They want her to be her conservator. They want her to be able to live with them and place her in a suitable facility that affords her mother overnight visits and day trips – the kind of thing that will accomplish one thing – take away the incredible loneliness Bertha is experiencing now, deprived of her family.
This goes beyond pandemic restrictions, for that will not last forever, and in the meantime [until they can become her conservator] to be able to speak at will, Face Time at will, without constant monitoring and mandated short phone calls – so that at least their mother will see and hear the faces and voices of those who love her.
The children argued in probate court that the conservator [Smith] is imposing undue isolation on Bertha by “keeping her blocked from speaking to family members on the telephone, and unreasonably restricting visits”.
They tried to demonstrate that “the Caregiver is not acting in a manner consistent with the appropriate treatment of dementia patients,” [Bertha recognizes her family and can make intelligent requests such as ‘let me come home’ or please don’t leave me’ or ‘get me out of here’.]
It is established beyond doubt that limiting family visit time is harmful for the mental and emotional stability of elderly people with dementia.
The children voiced concerns in court filings regarding the conditions at the facilities Bertha has resided in, under the conservator, Suzette Smith’s watch.
The children also expressed concerns about the handling of personal injuries, such as 20 stitches on Bertha’s elbow – treated by the caregiver’s crew as “a skin tear”.
These kind of concerns are natural to children – it is emotional for them – but to a caregiver, a paid professional, these concerns are viewed as as “harassment and disruption”.
Bertha’s grown children Sandi, Cat and Anthony – all of them rational, intelligent, successful people – none of them criminal, none of them ever adjudicated as having any mental or emotionally disabling conditions – good people, caring people- made a compelling presentation at trial.
But in the end the judge agreed with the conservator and her legal representatives that Bertha’s children did not demonstrate enough proof that the conservator, who is ingrained in the system, should be replaced.
And her caregiver, victorious, is simply not going to accommodate these children for the sake of some 93 year old woman with dementia, who is a burden enough to care for – for the money she gets paid – without having to deal with doting children coming there and taking up her time and requiring her to clean up, or make extra effort.
After all, most of the elderly she cares for do not have pesky children coming around. Most of the extremely elderly are forgotten and abandoned.
The children of Bertha Bernal’s real disruption is that they want to spend time with their mother, which, by itself, is an inconvenience to the caregiver, who in turn complains to the conservator, who in turn gets a doctor, who does not even examine the patient, but takes the caretakers word that the children are harmful to the patient and writes a letter stating such and this is presented to the judge as proof that the conservator/caregiver are right and the children are wrong.
Smug victory is the result for the caregiver and the loser is Bertha Bernal, who weeps for her children and is powerless to fight back, unable to get up and walk out of the facility or defend herself before the judge..
The matter was considered under legislation of Probate Code §2560, and determined that the burden of proof was not met at the appropriate threshold.
So a probate judge, who doesn’t know Bertha or her children, but knows the conservator, for she is part of the same system he is paid to be in, overrules based on technicalities of the law, ignoring the moral law that a mother and her children ought to take care of one another. And that if both mother and children want to be together than that ought to trump some doctor, who never examined the patient’s letter.
The children, however, are not skilled at this game and even if they were, the system is slanted to favor the professionals.
It keeps blowing up in their faces. They get up and charge again. They want to take care of their mother – before it is too late.
Even if the quality of the care was not in question, they would still have the moral high ground. But the quality of care is very much in question. For example, the accident that resulted in Bertha’s elbow wound was described by the caregiver as the result of 93-year old Bertha trying to breach a locked door to escape the facility in the middle of the night.
That story, to begin with, seems farfetched. But suppose it is true: What does it say about the quality of “care” given to Bertha, desolate and lonely beyond imagination, and despite her frailty, felt the need, quixotic though it may be, to secretly flee from the facility in the late hours in a desperate attempt to get back to her children?
Subsequently, Bertha suffered a stroke. While there’s no evidence that this episode is related to the quality (or lack thereof) of the care she receives, the evidence shows how poorly the conservator handled the situation, having informed the family on the following day, because the medical episode happened “after business hours”.
Just imagine that the fate of the person you love is going to be told to you only during business hours. God forbid something happens on the weekend! You’ll be expected by the system to wait until Monday for the Probate Court-Appointed caretaker or conservator to send you an email.
Bertha Bernal’s children, Sandi, Cat and Anthony, fighting for their mother as best as they can, have been beaten so far, at every turn. Still at every defeat, they become more determined that their mother will spend the last days of her life surrounded by family, not uncaring strangers.
The Frank Report urges readers in similar circumstances – and we are told there are many – to contact us to see if there might be strength in numbers. And to call on authorities to review this travesty of justice.
All evidence points to supporting the real wishes of Bertha is to be with her children, Sandi, Cathleen and Anthony is in the interests of justice.
All the second-hand medical opinions, or opportunities to keep a lonely elderly woman in their custody for the payment they receive is not persuasive.
California Probate Court ordered Bertha Bernal to stay in the “care” of Suzette and Maila.
In a very real sense, Sandi, Cat and Anthony are heroes. Many children of a 93 year old mother with dementia would give up, and resign themselves to let their mother go – her last days terribly alone – under the care of the mammoth, money-driven and powerful Probate Court system.
One cannot help but marvel at their tenacity and hope they have a chance at taking care of their mother, before it’s too late.
As Cat said, “What kind of system denies a 93 year old woman’s pleas to spend her last days with her children and grandchildren, family and friends?… I want our mom freed from her life sentence of cruelty and evil, to spend her last days in our loving care.”
Sandi said, “Our goal is for the court system to hand over conservatorship of our mother to her three children who are willing and able to love on her, take care of her, make decisions for her and financially support her.”