Linda Kincaid

Elder Advocate, California

“San Jose Police confirmed that Villa Fontana isolates several residents.  However, SJPD referred management of that abuse back to the Public Guardian, the perpetrator of the abuse.”

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Part IV (Parts 1,2 & 3 are linked below)

- Apathy & Negligence by Law Enforcement & District Attorney

ABC 7 News I-Team

San Jose Police Lieutenant Michael Knox is the first government employee to take any action on behalf of elder abuse victim Gisela Riordan.  For over two years, Gisela has been denied visitors, phone calls, and mail.  Imprisoned at Villa Fontana, she is not allowed contact with family, friends, neighbors, advocates or clergy.  Each day is like every other for Gisela, lonely and filled with despair.

Lieutenant Knox listened sympathetically to Gisela’s story.  Police Chief Chris Moore had already determined that SJPD’s ignoring false imprisonment and isolation was “consistent with Department policy.”    Knox committed to a review of the Department’s policy on ignoring mental abuse of elders.  Although a small step, it was the first positive step taken by any government employee in Santa Clara County.

Elder Abuse by the Public Guardian

Since early 2010, Gisela Riordan has been a victim of elder abuse by her conservator, the Santa Clara County Public Guardian Donald Moody.  California law clearly states that a guardian or conservator does not have authority to isolate a conservatee.  California law also states that isolation and imprisonment of elders are crimes.

However, the Public Guardian is not concerned with California law.  Moody imprisons and isolates conservatees to suit his whims.  Gisela is falsely imprisoned and unlawfully isolated at Villa Fontana, a secured residential care facility willing to violate the law in exchange for payment.

Keeping conservatees isolated simplifies the management of those individuals.  With no visitors, there are no complaints of neglect or substandard care.  No one sees bruises or other evidence of physical abuse.  No one knows if conservatees receive medical care or enough food to eat.

Given that Villa Fontana is willing to violate Gisela’s most basic right to visitation, advocates can only imagine what other rights are violated behind locked doors.  There is no way to know what abuses or indignities are visited upon conservatees imprisoned inside the facility.

Penal Code

False imprisonment and isolation of an elder are crimes under California’s Elder Abuse Act.  Penal Code 368(c) states:

Any person who … inflicts thereon unjustifiable physical pain or mental suffering … is guilty of a misdemeanor. A second or subsequent violation of this subdivision is punishable by a fine not to exceed two thousand dollars ($2,000), or by imprisonment in a county jail not to exceed one year, or by both that fine and imprisonment.

Penal Code 368(f) adds:

Any person who commits the false imprisonment of an elder or a dependent adult by the use of violence, menace, fraud, or deceit is punishable by imprisonment pursuant to subdivision (h) of Section 1170 for two, three, or four years.

Welfare and Institutions Code 15610.07 defines elder abuse.

Abuse of an elder or a dependent adult” means either of the following:

(a) Physical abuse, neglect, financial abuse, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering.

(b) The deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering

(emphasis added).

California’s Elder Abuse Act clearly defines mental abuse, isolation, and false imprisonment as criminal elder abuse.  However, law enforcement and the District Attorney turn a blind eye.

Santa Clara County District Attorney:  Elder Abuse is a Civil Matter

Cherie Bourland, Deputy District Attorney with the Elder & Dependent Adult Fraud Unit stated in an email to this reporter:

This is a civil issue. You would have to petition the probate court through civil avenues. You may want to access their website to obtain forms, or utilize the services of non-profit legal aid societies. You can also bring this to the attention of the probate court investigator assigned to the case, which should be noted online in the Probate Court case website. Once there is a clear violation of a court order, which is not the case here, and it has been investigated by a local law enforcement agency, then my office can review it. Hope this helps.

By ignoring the Elder Abuse Act, the District Attorney decreases the workload for their office and avoids the uncomfortable position of prosecuting the Public Guardian for elder abuse.  Bourland’s “advice” ignores that there is no civil remedy for abuse by a conservator.  Under the Probate Code, only the conservator has standing to sue for elder abuse.  It is unlikely the Public Guardian will sue himself.

San Jose Police Department:  No Time for an Investigation

The Family Violence Center of San Jose Police Department is tasked with investigating elder abuse.  The Sergeant in charge of the unit told this reporter he did not have time for another investigation.  The SJPD Family Violence Center can be reached at 408-277-3700.

San Jose Police were called repeatedly to investigate isolation and mental abuse at Villa Fontana.  Sergeant Richard Benetiz (Badge number #2944) responded in an email to an advocate.

As I understand the issue, you are concerned that the elder persons are being neglected and restricted from having visitors. After speaking with my officer, I have learned that he inspected the persons and premises and did not observe any conditions which support your concerns regarding neglect. He examined documents provided by the care home which explained that several persons in the home are under the conservatorship of the Public Guardian’s Office and are restricted from receiving certain visitors or require supervision when receiving visitors (emphasis added).

Based on all the information I have gathered at this point, it does not appear to me that this situation is a criminal neglect matter that would require the involvement of the police department. It appears that you are addressing your concerns through the Public Guardian’s Office and that office appears to be the correct venue to air your grievances.

San Jose Police confirmed that Villa Fontana isolates several residents.  However, SJPD referred management of that abuse back to the Public Guardian, the perpetrator of the abuse.  Sergeant Benitiz did not respond to requests to meet and discuss elder abuse law in greater detail.

Police Chief Chris Moore: Ignoring Elder Abuse is “consistent with Department policy”

This reporter filed a Department policy complaint with the San Jose Independent Police Auditor.  The Auditor referred the complaint to San Jose Police Chief Chris Moore.  Chief Moore responded in an October 30, 2012 letter:

After reviewing the facts as stated in your complaint, it has been determined that the actions taken were consistent with Department policy.  This case will be closed as a Policy Complaint

(emphasis added).

Chief Moore is technically correct.  SJPD has no policy on mental abuse, false imprisonment, or isolation of elders.  The Duty Manual addresses only physical and financial abuse.  That policy was last updated in 2004 and fails to address the current situation.

L 3024 PHYSICAL CHILD OR ELDER ABUSE, ENDANGERMENT, OR NEGLECT:

Revised 09/28/04

Department members assigned to investigate incidents involving physical child abuse, elder abuse, child endangerment, or neglect shall utilize the County Child Abuse Protocol. Members shall report the incident on an Offense Report (Form 200-2) in addition to other forms required to investigate or process the case. The assigned officer shall take photographs of the elder or minor’s alleged injuries or lack of injuries, and the physical surroundings related to the incident.

Officers fail to recognize mental abuse or act on that abuse because SJPD lacks a relevant policy.

SJPD Internal Affairs:   Commitment to Review Duty Manual

The first positive response in over two years came from Lieutenant Michael Knox, Commander of Internal Affairs.  In a November 15, 2012 meeting, Lieutenant Knox courteously and attentively listened to concerns that the SJPD Duty Manual does not reflect current Penal Codes or Welfare & Institutions Codes on mental abuse, false imprisonment, and isolation of elders.  The Lieutenant expressed his understanding of the codes and case materials on Gisela Riordan, as presented to him in the meeting..

Lieutenant Knox committed to refer the policy deficiency to SJPD’s Lieutenant of Research and Development.  That officer will research further and recommend updates to the Duty Manual if deemed appropriate.

Kudos for Lieutenant Knox.  He is the first government employee in Santa Clara County to show any concern for the plight of Gisela Riordan and other victims of the Public Guardian.  Lieutenant Knox is the first person, other than advocates, to initiate any action that could aid victims of mental abuse in San Jose.

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Part 3:  http://ppjg.me/2012/11/09/silicon-valley-tax-dollars-fund-elder-abuse-part-iii/

 Part 2: http://ppjg.me/2012/11/05/silicon-valley-tax-dollars-fund-elder-abuse-part-ii

Part 1:  http://ppjg.me/2012/11/04/silicon-valley-tax-dollars-fund-elder-abuse/

TS Radio Link for Gisela Riordan

http://ppjg.me/2012/08/14/ts-radio-elder-abuse-isolaton-of-gisela-riordan-in-san-jose/

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