IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF
TEXAS HOUSTON DIVISION
SHEILA OWENS-COLLINS §
vs. § CIVIL ACTION NO. 4:20-CV-03623
JUDGE MICHAEL NEWMAN, §
Individually and in his Official Capacity as §
Judge, Probate Court #2 of Harris County, §
TO THE HONORABLE COURT:
I, Sheila Owens-Collins, am the Plaintiff herein. The Plaintiff alleges that Judge Michael Newman, the Defendant, actively participated and abetted in the estate trafficking of the Estate of Hattie B. Owens, by repeatedly channeling money out of the estate into the coffers of the Court, the State of Texas and the Court Appointed Attorneys, denying the plaintiff due process and subjection to uncivil courtroom behavior by an appointed attorney , and not allowing evidence to be entered that would ensure the appropriate administration of justice, and abuse of power by declaring the plaintiff to be “not suitable” to serve as the 1st in line Executor of the last will and testament because of “family rancor”, and instead indicated that a 3rd party administrator would be assigned which further depletes the estate. This was done in spite of Case Law and a Texas Supreme Court ruling that family discord is insufficient to not comply with the Testator’s wish.
Statement of Facts
On the basis of the definition given in the “Trafficking in Persons Protocol” their three constituents of human trafficking that apply to this case.
The Act (what is done): Initial perpetration and recruitment was carried out by the Ward’s granddaughter Aisha Ross and her daughter Angela Sapp. On September 18, 2017 three days after Aisha Ross was removed as the Power of Attorney for Hattie Owens, she retaliated by making false claims to Adult Protective Services and applying for guardianship claiming that Mrs. Owens was totally incapacitated. This incapacitation diagnosis was a new diagnosis because on September 15, 2017 when my mother was coerced into adding Aisha Ross to the Power of Attorney she was deemed as having full capacity. It was at this point that she was recruited into the Texas guardianship system and to a life of isolation, medical and mental health neglect, violation of her Americans with Disabilities Act rights and civil rights and forced into hospice and an early death from starvation and overmedication with Morphine.
The Means (How it was done): The associate judge that the original case was assigned to failed to supervise the appointed attorneys which resulted in their ability to completely abandon their responsibility to ensure that my mother had the full set of privileges outlined in the Ward’s Bill of Rights.
Mrs. Owens passed away on January 1, 2018. The appointed attorneys did not perform their duties as outlined in the Texas Estates code, conspired with each other and colluded with the disgruntled siblings of the plaintiff to ensure that the Ward’s wishes of having the Plaintiff as her guardian (if she needed one) was never honored.
The plaintiff contested the fees that were submitted to be paid out of the estate because of sub par to no performance of the expected job responsibilities and duties of the court appointed attorneys. The case was moved from probate court 1 to probate court 2 because of the election of Jerry Simoneau an attorney representing Aisha Ross to the bench of Court 1. A Hearing was held in Judge Newman’s Court on April 29, 2019.
Particulars of Plaintiff’s Claim
Judge Newman refused to allow testimony on the specific lack of performance of job responsibility that was attached to the contest of the fee schedule. This severely hampered mounting a sufficient argument that the fees should not be paid if there could not be a discussion of what the fees were supposed to be paid for. The efforts of the Plaintiff team were hamstrung in trying to adequately present a coherent argument that the fees were excessive without a discussion of lack of performance of job responsibilities, which in turn hampered the administration of justice. (Exhibit 1)
My mother appeared at the December 17th 2017 Hearing and testified before judge. She pleaded not to be placed into a guardian situation and to allow her daughter who she depended on and trusted as much as a mortal human being can trust another one. The Attorney ad litum, Hattie Shannon was present at that hearing and testified that during her initial conversation with my mother, “she was talking good”. She remarked that she missed a few questions but knew the Mayor of Houston – Sylvester Turner. Despite my mother’s pleas, Attorney Shannon did nothing to find a least restrictive path or to avoid the guardianship altogether. In fact, she did nothing to advocate for my mother, despite mounting evidence of isolation and neglect. She was functionally absent for the entire tenure of her attorney assignment, except at the end, when she joined in with the other 2 attorneys to sign a conspiratorial and global rejection of the accounting that I submitted to address the false claims made to Adult Protective Services.
Because of her lack of advocacy and involvement in my mother’s care, I hired a private attorney for my mother. This was met with incredulousness by the other appointees. The Temporary Guardian rushed to have a 3rd Independent Medical Examination done while my mother was recovering from an electrolyte disturbance. The physician who performed the exam was rude and did a sham exam that lasted 20 min according to the conversation that I had with him after the exam. He also told me that he rubber stamped the diagnosis of incapacitation. He was dispatched to do this exam without a proper hearing or notice to my mother. I was also misled to believe by Dana Drexler that she dispatched him to address the lack of follow-up of psychotherapy that I had started for my mother before Dana’s assignment as her temporary guardian. This is one of many lies that the temporary guardian told to cover her devious behavior. Dr. Merkel caused my mother to advance from alleged incapacity to complete incapacity in a matter of days. The private attorney who felt that she had capacity when she engaged her, resigned after the sham diagnosis and exam – leaving my mother completely vulnerable to the biased, deceitful, greedy, and neglectful whims of attorneys that were assigned to protect her.
The trial court abused its discretion in awarding $15,000 to the attorney ad litum who had not properly performed the duties of that role, including any advocacy efforts to honor the Ward’s stated interest.
Attorney Berlinger started his assignment with an antagonistic phone call to the plaintiff in the middle of the day accusing her of disrupting her mother’s cardiology appointment. This was based on false information given to him by the Temporary Guardian (Exhibit 2). The conversation lasted 3 min and was the only conversation that was had during his tenure as my mother’s appointed attorney. The remainder of the year was contentious. He did nothing to investigate the allegations that were used to prevent appointment as guardian and stated that he did not have the obligation to do so. He acted on a lie and decided immediately after his appointment that I was not qualified and would never be awarded guardianship of my mother. Berlinger placed into the record communications between counsel where, shortly after his appearance, he summarily instructed the plaintiff’s counsel to dismiss her application because she would not be appointed as guardian (2 CR 264). The same correspondence contained the recitation for Berlinger telling the plaintiff’s counsel that he was not going to read the accounting she provided (2 CR 249). Berlinger also referred to Sheila’s counsel as “delusional” in a court filing (2 CR 243).
Statements derived from disgruntled family members were spewed in open court by Time Berlinger that were untrue, inflammatory, defamatory, and uncivil (Exhibit 3). Attorney Berlinger was allowed to rant during the court proceedings about “hypothetical” situations derived from disgruntled siblings sitting in the back of the court room which were false, unsubstantiated, defaming and derogatory toward the plaintiff. He even falsely implied that I stated that I was responsible for my mother’s long-term care insurance policy lapse. When the email that referenced that conversation was presented to the court, it showed revealed his statement to be a lie and in fact I was offering to pay for the lapsed coverage because I wanted my mother (who worked her whole life for this protection) to have it, despite the fact that the coverage lapsed on the Temporaty Guardian’s watch and she was making no effort to have it reinstated (exhibit 4).
The judge did little to bring civililty, truth and honor back into the proceeding, in a way that wasn’t discriminatory. His actions for the rest of the year until my mother’s death was conspiratorial and in direct conflict with my mother’s stated wishes.
The record reflects the response of the court’s appointees when their performance was questioned. The record affirmatively reflects personal attacks by court appointed attorneys describing a party opposing guardianship in derogatory terms and their counsel as delusional in statements to the court and court filings.
There was evidence that was presented and important evidence that was not allowed to be presented that revealed that the Temporary Guardian, Dana Drexler was the most toxic and sociopathic of the appointed attorneys. To begin with, there was a conflict of interest. She was a former board member of APS who was investigating the plaintiff for false allegations made by Aisha Ross. She used her influence to attempt to bully the plaintiff into agreeing not to apply for guardian of the estate but only of the person, which was in direct conflict with my mother’s wishes.
Dana knew in the 1st month of her assignment as Temporary Guardian that I had not exploited my mother because she had access to all of her bank records. She told me in Feb. 2018 that her examination of the records confirmed that my mother was “whole”. She withheld the information from Adult Protective Services and from the Court while she was continuing her blackmail efforts.
Dana repeatedly and consistently misconstrued any effort that I made to advocate for my mom as “interference” and evidence of unsuitability as a guardian. The extent that she went to paint this false narrative is nothing short of pathologic. An exhibit is included that shows my mom upset during a cardiology appointment that I arranged and Dana insisted that Aisha come to the appointment also, even though my mom had expressed on several occasions that she did not want to see Aisha or her mother until the court case was over. She was aware of their betrayal that put her in the guardianship nightmare. When Aisha barged into the exam room, my mother expressed that she felt like her privacy was violated and she asked Aisha to leave. Aisha called Dana who told me that if I didn’t straighten it out, she was going to come to the office and make both of us leave. She later told my attorney, Berlinger who repeated the lie and others that I disrupted my mother’s appointment. The videoclip and transcript will show that story to be a total lie, intended to assassinate my character for purposes of making sure that the other appointed attorneys will conspire and collude with her to prevent my getting guardianship.
To further isolate my mother and prevent us from having our usual daily conversations, evidence was presented that the Temporary Guardian stole a phone that was bought and owned by the Plaintiff and loaned to the mother because she was functionally deaf and the phone paired with her cochlear implant enabling her to hear and participate in telephone conversations, not only with her daughter but with friends and family that lived out of town and out of state. Despite multiple requests to return the phone by Attorney Culp, Attorney Rodriguez and finally the plaintiff herself, the Temporary Guardian ignored all emails and phone requests. It was never returned during my mother’s life. This is a violation of my mother’s Americans with Disabilities Act rights and abject cruelty. Judge Newman overlooked the behavior and approved fees greater than the original amount requested.
The Temporary Guardian allowed my mother’s health insurance policy to lapse as well as her long-term care insurance. She neglected her medical care, caused delays in emergency medical treatment, took her out of network and scheduled her for a colonoscopy that was contraindicated for her age and could have cause catastrophic consequences. When I gave her the guidelines for colonoscopies published by the United States Public Health Service and the Academy of Gastroenterology that clearly stated that my mother was not a candidate, she reported to my attorney that I “was acting strange with the doctors” and implied that they did not do the procedure because of my personality, when in fact, they were not aware of my mother’s age and underlying medical conditions and readily agreed to cancel the procedure and were appreciative that I intervened and gave them the heads up. Again, I am the concerned physician daughter that advocates for the best medical care for my mother and the Temporary Guardian turns it into something sinister. I didn’t realize that this is part of the playbook to defame the protector in the family of the Ward.
The Temporary Guardian refused to allow my mother to get the mental health help that was started and that she needed, and instead opted for isolation – barring visits from friends and putting up multiple barriers to my visits that were inherently difficult because I lived out of state.
She caused my mother to forfeit repair of her house by the Federal Emergency Management Agency who made 3 offers to repair it for free. She later admitted that my mother had asked her when she was going back to her house, that she was not going back to her house because she was going to put the houses up for sale and attach attorney fees. (Exhibit 5). This is full blown estate trafficking and elder abuse.
The Temporary Guardian neglect of my mother’s physical health by ignoring the doctor’s orders for cardiac rehab and regular exercise caused my mother to have another stroke. Even though she was recovering better than expected, Dana’s rigidity, antagonism toward me and my mother, and alignment with my siblings who were anxious for my mother to die so they could get access to her assets, caused her to ignore the signs of improvement, reprimand the nurse who called her to reconsider sending my mother to hospice and she essentially forced her into hospice and an early, preventable death.
When my mother arrived to the Hospice unit, I learned that Dana had caused my mother to have the diagnosis of Alzheimer’s disease written in her chart. I learned this from my mother who saw it written on her white board and asked if it was true. This fraudulent behavior influenced the treatment that my mother received and the prognosis that was given to her by the treating physicians. It is malpractice and fraudulent, in that my mother did not have any symptoms of that diagnosis and never had the required imaging studies of the brain that is required to make that diagnosis. It reflected the tight collaboration and collusion that she had with my disgruntled relatives who were anxiously waiting for her to die.
Neglect, isolation, ignoring of the stated wishes of the Ward, financial and legal incompetence were demonstrated across the board and evidence submitted that substantiated the claims that were ignored in favor of the appointed attorneys. The Defendant recklessly approved all of the fees and closed the Guardianship without giving notice to the Plaintiff, leaving unsettled bills, and without providing findings of facts and conclusions despite two requests, which decreases the transparency and trust in the judicial system by the lay community that is supposed to be served.
The Plaintiff challenges the award of approximately $90,000 of her mother’s estate to court appointees for a temporary guardianship that lasted just over a year. The common element was the appointees’ failure to take any actions to carry out the desire of Hattie Owens to avoid guardianship (Id at 60,70). None had undertaken any investigation of the claim of financial mismanagement that Aisha made against the Plaintiff. Since that was the basis of the original application, had they done so, the guardianship could have been resolved early on (ID. At 55,60, 63, 66, 70-72).
In regard to the application of Drexler, the court required her to identify each challenged item in the 36 page billing records. (Id. At 120-164). The hearing concluded without a ruling.
The day after the hearing, Berlinger filed an application with the court for additional fees in the amount of $4,4462.50 which covered a three-month period prior to the hearing (3 CR 92). Sansom filed an application for payment of $1,764.00 (3 CR 97), and Drexler filed an application for an additional $4,200.00 in fees to be paid to Tamborello (3 CR 105).
The Defendant awarded $90,000 in fees. Without any express ruling on Sheila’s objections to the requests, the Defendant began signing orders awarding fees on May 3, 2019. He signed orders awarding fees of $15,000.00 to Shannon for (3 CR 102), $13,196.38 to Berlinger (3 CR 103), and $53,468 to Drexler (3 CR 104). The court clerk did not send notice of these orders to the parties in accordance with Rule 306a.
On May 28, 2019, Drexler filed a second amended final account. (3 CR 113). The document did not address many of the deficiencies identified by McCully, but did remove Hattie’s home from the inventory, agreeing that ownership had been transferred to a trust before the death of Hattie’s husband. Significantly, the document was not signed.
On May 29, 2019, the Defendant signed six more orders. They awarded additional fees to Sansom (3 CR 130, and 135), Berlinger (3 CR 127), and Tamborello (3 CR 135).
Even though the final account filed by Drexler was not signed, the Defendant signed an order approving that final account and all of the fees requested (3 CR 138). He signed a separate order dropping the case from the court’s docket (3 CR 137). Again, the clerk did not give notice of these orders, including the final order. In the month of May 2019, the court ordered payment of $93,410.38 from Hattie’s estate for a guardianship proceeding she opposed.
Sheila eventually learned of the orders, filed a motion to extend post-judgment deadlines under Rule 306a (4) (3 CR 143) and motions for new trial June 28, 2019 (3 CR 165). She gave notice of appeal on July 12, 2019 (3 CR 209).
The trial court conducted a hearing on post-judgment motions September 17, 2019. It found Sheila did not get timely notice of some of the orders and the extended deadlines of Rule 306a(4) applied (Supp. CR 8). It denied her motion for new trial (Supp. CR 7). It also refused to make requested findings of fact and conclusions of law (9/17/19 RR 12).
Summary of Plaintiff’s Claim
The Texas Estates Code permits a court to appoint attorneys and others to fulfill specific statutorily defined roles in a guardianship proceeding. Those roles are designed to protect the rights of proposed wards, including the right to avoid being subject to the burden of living under the control of a guardian if they object to guardianship and the applicant for guardianship does not meet their burden. If those appointed by a court do not fulfill their duties, not only are the rights of proposed wards burdened by an unnecessary guardianship, their estate is burdened by the cost of an unnecessary guardianship.
The volume of guardianship proceedings in Harris County not only supports specialized probate courts, it supports counsel with practices that derive significant funds from court appointments in various roles in guardianship proceedings. This case illustrates the failure of judicial supervision to ensure those counsel fulfill their statutory duties, including diligently investigating and seeking to carry out a client’s desire to avoid guardianship.
The record here is clear that the proposed ward opposed guardianship (1 CR 37; 12/20/17 RR 23). She understood the need for assistance and put in place statutorily recognized alternatives to guardianship (1 CR 128; 12/20/17 RR 24-25). Nevertheless, multiple court appointees took no action to oppose the application or conduct any investigation into the basis for the allegation. Several affirmatively stated they had no duty to do so (4/19/19 RR 52).
The record reflects the response of the court’s appointees when their performance is questioned. It also affirmatively reflects personal attacks by court appointed attorneys, describing a party opposing guardianship in derogatory terms and their counsel as “delusional” in statements to the court and court filings (2 CR 242; 4/29/19 RR 43). The record reflects repeated admonitions by the trial court to act with civility (4/29/19 – 1 RR 172-73, 201).
Appellant challenges the award of approximately $90,000.00 of her mother’s estate to court appointees for a temporary guardianship that lasted just over a year.
Points of Error
Plaintiff noticed the below errors of the judge exercise of his functions.
The disgruntled siblings contested the will. The plaintiff requested a jury trial which was denied on a technicality. The outcome of the trial demonstrated more biased behavior by the judge.
The ruling was that the Will was legitimate but the plaintiff was unsuitable as the 1st Executor as my mother wished. He also signaled that my son, who was 2nd in line was going to be unsuitable also. Family rancor was used as an excuse, which disregarded and trespassed a Supreme Court ruling and several case laws on this topic.
In alignment with the disgruntled family members, whose jealousy and vindictiveness toward the plaintiff and her family has been life long and with and vindictiveness toward the plaintiff and her family has been life-long and fueled by illicit substance abuse and the hard life that follows, and the court appointed attorneys who isolated, persecuted, and neglected my mother while ignoring her wishes for her daughter to be her guardian and 1st Executor, the Judge was going to permanently appoint a 3rd party administrator – further draining the assets of the estate.
Family rancor was used as a cover for his bias and the disdain that was demonstrated by the entire Guardianship and Probate Court to honor the wishes and constitutional rights of an elderly citizen under the provisions of the US Constitution, The American Disability Act, and the rules and regulations governing the Texas Guardianship and Estate Codes.
Summary and Prayer
Hattie Owens was the victim of elder trafficking perpetrated by her granddaughter and daughter. 2 women that she loved but did not trust. Because of the size of her estate, they were quickly aligned with judges and court appointed attorneys who shared the goal of early and significantly quantifiable access to her assets. The Temporary Guardian stated publicly that her goal was not to return the Ward to her home, as she was promised but to put her in a nursing facility until she died and sell her house with attached attorney fees.
Judge Newman aided and abetted this scheme by approval of excessive fees, and fees that were for personal use by the Temporary Guardian and should not have been charged to the estate, and even approving requests for fees without a signature attesting to the validity of the fees.
My mother’s civil rights and rights of disabled persons were violated with malice and reckless disregard of her humanity. The behavior by the appointees whose fees were approved by the judge cause an early and preventable death of my mother and a loss of consortium by the daughter that she loved and trusted to protect her and provide for her the things that she could not provide for herself.
REASONS WHEREFORE, the Plaintiff prays for judgment against the Defendant for:
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing document was sent on the (Date) day of (Month) (Year) by regular U.S. mail, by facsimile, or certified mail, return receipt requested, to the following parties or attorneys of record:
(Name of Defendant’s Attorney), Attorney at Law
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