Mrs. “M,” a diabetic 69-year-old grandmother and widow, faced the frustrations of navigating family court. Mrs. M was victimized by her 23-year-old live-in granddaughter. The granddaughter was verbally abusive and at times forced Mrs. M to take unnecessary medication. One day Mrs. M.’s granddaughter struck her face. Mrs. M realized she was no longer safe with her granddaughter in the house. Mrs. M admitted to a caseworker at her senior center that she was afraid to go home. The caseworker called The Weinberg Center for Elder Abuse Prevention at the Hebrew Home at Riverdale, an elder abuse shelter, and asked for emergency shelter for Mrs. M. She was accepted immediately.

Over the next few days, Mrs. M consulted with the Weinberg attorney to discuss her options. She did not want to report her granddaughter to the police, but was determined to be safe in her home. Mrs. M knew that she needed court-ordered protection, but her limited mobility presented numerous obstacles: How would she get to court? Who would help her out of the vehicle and into the courthouse? Could she bring her walker? How long would she be at court? Would restrooms be available? Would she have access to food?

The Weinberg Center provided an ambulette to transport her, a companion to assist her in and out, and food to last her the day. But as soon as Mrs. M arrived at the courthouse steps, additional challenges became apparent. The security line extended outside of the building, and Mrs. M struggled to remain on her feet as she stood in the cold. When it was finally her turn, she was told that she needed to remove her coat. Frustrated, Mrs. M tried not to fall. Despite the impatient remarks from those waiting in line after her, the security officer offered no assistance. Mrs. M was told that she could not bring her food into the courthouse. Even after explaining that she was diabetic, the officer continued to question her. Merely entering the courthouse took Mrs. M over an hour.

Mrs. M filed her petition on the fifth floor. She waited for 45 minutes before the petition was reviewed by the court clerk. Two more hours passed before she saw a judge. Fortunately, a temporary order of protection was issued, but by this time Mrs. M was physically exhausted and emotionally drained.

Abuse Statistics

Elder abuse is defined as “any abuse or neglect of a person aged 60 or older by a caregiver or another person in a relationship involving an expectation of trust that threatens his or her health or safety.”1 According to the 2010 U.S. Census, New York has the third largest population of older adults in the nation. In that year alone, approximately 260,000 New Yorkers over the age of 60 were victims of physical abuse, sexual abuse, emotional abuse, neglect, and/or financial exploitation.2 Older adults like Mrs. M, who have been abused, are vulnerable in ways that younger people are not, whether due to chronic illness, physical frailty, fear, or functional or cognitive impairment.

Further, the health consequences of elder abuse are very serious: declining functional abilities; increased dependency; increased sense of helplessness; increased stress; worsening psychological decline; premature mortality and morbidity; depression and dementia; malnutrition and death.3 The risk of death for elder abuse victims is three times higher than for non-victims.4 An order of protection often may be the first step for an elder abuse victim to break free from this profound pattern of mistreatment. Thus, the ability for an elder abuse victim to obtain an order of protection with ease and support is essential.

A recent New York State study found that only one in 24 cases of elder abuse are reported in New York State.5 This might be because the victim fears retaliation or loss of independence. Failure to identify the abuse, or fear of being questioned, may also explain the lack of reporting.6 Cognitive or physical disabilities may make the victim incapable of reporting the abuse. When an elder abuse victim finds the courage to report her abuse, the challenges she faces at Family Court may discourage her efforts at the most critical point of seeking help. In some instances, for an older adult who is entirely homebound, the option of obtaining an order of protection may not have even been possible, until now.

Telephonic Testimony

Most New York City boroughs are implementing a protocol for homebound and mobility-challenged older adults to obtain orders of protection. This collaboration between community agencies and the courts obviates the wait time for mobility-impaired older adults to obtain an order of protection, and finally grants access to the courts for victims of abuse who are homebound and unable to physically appear in court. Through the help of community agency advocates and attorneys, petitioners can alert the court of their physical challenges, and can petition for an order of protection through testimony over the telephone or at a date and advanced scheduled time. The process is simple: The advocate fills out a form providing essential contact information, and in response, the Family Court judges in Brooklyn, Bronx, Queens and Manhattan are allowing either testimony via teleconference from the petitioner, or a court appearance at a preset scheduled time.

The Brooklyn program was evaluated in a June 2010 report on court-focused elder abuse initiatives.7 The published findings indicate that the Brooklyn project has resulted in prevention of further crimes; development of evidence; provision of emotional support, help, and accommodations to victims; an increase of elder abuse cases that are heard; increased efficiency; acceleration of time taken to hear elder abuse cases; and an enhancement of awareness for judges and agency staff.8 It is estimated that in 2010, 12 homebound clients, and 10 to 15 walk-in clients with limited mobility or other health issues accessed this system to obtain orders of protection.

Each borough handles these types of cases with slight variations. In the Bronx, for example, the New York City Family Justice Center, the Bronx County District Attorney’s Office Elder Abuse Bureau, Regional Aid for Interim Needs (R.A.I.N.) Multi-Services for Seniors, Neighborhood Shopp, Safe Horizon, the Department for the Aging (DFTA), Legal Services of New York, and/or the Weinberg Center may collaborate to visit homebound older adults at home, in shelter, or even in the hospital. In Brooklyn and Queens County, the Jewish Association for the Aged (JASA) serves as collaborating partner. With the assistance of an advocate attorney or Weinberg attorney, the social worker and client draft the family offense petition.

The petition and accompanying paperwork, which includes a summary sheet of contact telephone numbers, time certain requests, preferred method of appearance, and pick-up location of the temporary order of protection paperwork, are hand-delivered or electronically transmitted to the Bronx County Family Court. A designated clerk immediately brings it to the court part that is set to review the petition expeditiously. With the assistance of the case worker, the homebound petitioner is available by telephone for the initial ex parte appearance.

An older adult with limited mobility can also receive assistance filling out the initial paperwork, either through her local Family Justice Center, directly at home, or if she is in shelter at the Weinberg Center. The information is emailed or hand-delivered to a designated clerk, and the appearance in court is set as soon as possible. Depending on the county, the attorney who helped to review the initial petition will remain the attorney of record, or in some instances, the court will assign an attorney from the 18-B Panel. In all cases, the attorney needs to be prepared to explain the medical conditions which prohibit or limit the mobility of her client. Service is executed either with assistance of the sheriff, the advocate agency, or the local police precinct. The next court date will be set again, either by telephone or by a time-certain.

The new courtroom procedure has opened the door for mobility-challenged elder abuse victims to seek protection, signaling a change in the treatment of older adults. This policy allows the same access to justice for older adults as any other member of our society.9 This can and should be replicated in every courtroom in the country.

Deirdre Lok is counsel for The Harry and Jeanette Weinberg Center for Elder Abuse and Prevention, Intervention and Research at the Hebrew Home at Riverdale, and is the co-author of ‘The Story of a Shelter: Intervention and Prevention of Elder Abuse’ (New York State Bar Association Elder Law Quarterly, 2010). She can be reached at dlok@hebrewhome.org.

Endnotes:

1. Hildreth CJ, Burke AE, Glass RM, “Elder Abuse,” JAMA, 302(5):588-588 (2009).

2. Lifespan of Greater Rochester Inc., et al, “Under the Radar: New York State Elder Abuse Prevalence Study,” 9, 54 (2011) (finding that in New York, approximately 76 per 1,000 individuals over the age of 60 is a victim of abuse).

3. X Dong, “Medical Implications of Elder Abuse and Neglect,” Clinics in Geriatric Medicine, 21: 293-313.

4. “Report on the Council of Scientific Affairs,” American Medical Association White Paper on Elderly Health, Arch Intern med. 150: 2459-72 (1990).

5. Lifespan of Greater Rochester Inc., “Under the Rader: New York State Elder Abuse Prevalence Study,” The Journal of the American Medical Association Patient Page (2011).

6. See Lifespan of Greater Rochester Inc., et al., “Under the Radar: New York State Elder Abuse Prevalence Study,” 10 (2011) (noting “reluctance of victims to seek help out of shame, fear and lack of awareness of avenues for assistance and support” as an impetus for the study).

7. Lori A. Stiegel and Pamela B. Teaster, Final Technical Report to the National Institute of Justice on “A Multi-Site Assessment of Five Court-Focused Elder Abuse Initiatives,” A.B.A. & UNIV. OF KY. RESEARCH FOUND. (June 30, 2011), http://www.americanbar.org/content/dam/aba/uncategorized/2011/2011_aging_ea_multi_assess.authcheckdam.pdf.

8. Id.

9. See William C. Vickrey, “Access to Justice: A Broader Perspective,” 42 Loy. L.A. L.Rev. 1147, 1148 (2009) (defining “access to justice”: “At the most fundamental level access may concern the availability of judges, court facilities, and court personnel…[o]ther factors affecting access to justice are more elusive, such as the courts’ atmosphere and user-friendliness”).