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Judge Robert DiBella deprives Competent Elderly Woman of Legal Rights

November 26, 2013
Commentary of Kenneth Ellman to the attached Video/Statement Under Oath of Mrs. Eva DePasquale. The below commentary is strictly my personal opinion. The Video, Transcript and Medical Evaluations speak for themselves.

Title: In the Matter of Eva DePasquale, an elderly woman deprived of her civil rights upon bogus allegations of incapacity. A warning to all New Yorkers. Supreme Court, County of Westchester. Also known as “Judge Robert DiBella deprives Competent Elderly Woman of Her Legal Rights”. Copyright Kenneth Ellman 2013, All Rights Reserved.

Unfortunately for the people of the State of New York and Mrs. Eva DePasquale and her family, Robert DiBella continues to sit as a Judge. My contact with Robert DiBella arose when I was investigating allegations of Medical Illness and Incapacity Due to Age in this very interesting case. The case was compelling because anyone who spent time with the allegedly incapacitated Mrs. Eva DePasquale had to come to one compelling conclusion; that she has as much awareness, understanding and competence as anyone her age should have and certainly was entitled to her rights to make decisions for herself whatever they may be.

This case is an example of how an adult child, in this case one of her sons, sought to prevent his mother from exercising her own decision making authority to provide for her daughter and her daughter’s children (grandchildren of Eva). The son who sought her deprivation of civil rights pursuant to Article 81 had no children of his own. It appeared that the alleged Homosexuality of this son and his failure to have any children, caused Mrs. DePasquale to leave her home to one of her Grandchildren and to feel closer to her daughter and her daughter’s children. So Mrs. DePasquale made a decision as to which child and grandchildren needed her help, who she would live with and trust to care for her during her remaining life, and to whom she would leave her home to. The only way for this son to overturn the decisions of Mrs. DePasquale, his mother, was to have this very interesting lady declared an Incapacitated person under Article 81. That is what he sought and what Judge DiBella did.

So the son brought an action in the New York State Courts against both his father and mother. The case of the father, a wonderful but severely medically ill man, raises an entirely different type of issue and will be discussed in later posts.
Much can be written about these type of proceedings but if this case is representative of what takes place, then there is no question that Article 81 has been and can be used to take control of an elderly parent when there is no medical justification whatsoever.

Like many things whose ostensible salutary purpose is corrupted and abused, this Guardianship Proceeding is easy to debase and can allow the deprivation of civil rights merely because you are old and your child does not like you or the decisions you make. That is what happened in this case with the severe Judicial ineptness of Robert M. DiBella sitting as Judge whose abilities and integrity is wanting in the extreme. His Courtroom demeanor as a Judicial Officer tends towards the abusive and threatening and you would not be blamed if you had the opinion he is more suited to be a dog catcher than a Judge.

In New York these trial court level Judicial Officers, such as County Court or Supreme Court Judge are elected. My personal observation is that they frequently receive the nomination upon approval of a political leader such as a Westchester County Republican Party Chairman. I have been present at meetings where Judicial hopefuls and even sitting Judges beg and grovel for favor from a County Leader, to be put on the ballot. The voters frequently do not know these candidates, do not meet and greet them and do not have an opportunity to learn, consider and evaluate whether this individual is suitable for such a position of trust. That voter analysis failure is actually normal in the workings of Democracy and lack of voter interest or awareness is debated and discussed all the time. I am not sure if the alternative, such as appointment by other elected officials thereby avoiding direct elections is actually better. That is a question for another article. This tragedy is further compounded in that New York of course gets its Appellate Division from elevation of this group of elected Trial Court Judges.
The good, the bad and the ugly are all lumped together to be chosen for Appellate elevation.

So unless something unusual happens New York will have to live with Robert M. DiBella for some time. It has lived with such other poor quality Judicial Officers and survived. It will survive DiBella. But like all such things many will be hurt and Justice will shed a tear.

In the end the only thing that prevents the abuse of our law is the system of the Judiciary that we have created with what we would hope are the safeguards of Jury Trial and Constitutional Due Process. It is so sad and chilling to see our Courts fail and our citizens deprived of rights and liberty that we hold as a definition of our society and nation.

It must also be balanced that it is NOT the fault of the Court which causes children to damage their parents. The motivation of children to seek deprivation of the legal rights of their parents may be a combination of monetary greed, revenge against a parent for past perceived wrongs and a desire to hurt a sibling who is favored by the parent. Frequently these aspects of motivation by the party commencing the proceeding and seeking Guardianship is not fully or properly addressed by the Court either pre-trial or during trial. However it is the DiBella type Court which facilitates this failure.

This type of case should be easily determined upon: (a) well established medical/scientific standards to determine if the elderly individual is Medically Incapacitated and (b) even if incapacitated whether the lifestyle of the alleged incapacitated person should be changed.

Many of us would think that such legal issues of Civil Court Incapacity could be quickly determined by proper medical examination and testing. How or why would the law conflict with the scientific evaluation of the allegedly incapacitated individual?

Keep in mind that this is NOT similar to a criminal proceeding where the Court must determine if the accused can be tried for a criminal charge. In such criminal cases we frequently see competing and conflicting Psychiatric evaluations directed to the ability of the Defendant to aid in his own defense or whether at the time the offense was committed the Defendant had the medical ability to know of what he did.

However when the law meets medical science in Civil Guardianship Proceedings of the Elderly, particularly where a family member is seeking to take control of property for their own purposes and use to disregard the parent, strange things can happen.

So here we have Mrs. DePasquale, losing her rights to make choices for herself and who profits, who benefits? Certainly not Mrs. DePasquale. If this can happen to Mrs. DePasquale, why can’t it happen to you? I only can hope it happens to Judge DiBella in his elderly years as that would be poetic justice.

After you view the below video of my taking the Statement Under Oath of Mrs. DePasquale and the Attached Transcript of the Statement, keep in mind that the ONLY two qualified professionals to testify in the case determined that Mrs. DePasquale was NOT incapacitated and did NOT need Guardianship.
The courage of those two qualified professionals is worthy of commendation and their testimony during the extremely hostile environment of this trial was exemplary. I have great respect for the work and integrity of Dr. Barnett S. Meyers, M.D. and Dr. Ravil Sharma, Psy.D .

Feel free to contact me for further information in this matter as an issue of public policy.

The above commentary is strictly my personal opinion. The Video, Transcript and Medical Evaluations speak for themselves.

Kenneth Ellman, Box 18, Newton, New Jersey 07860.

Below is the Video of the Statement Under Oath of Eva Depasquale.
The written transcript of this video is below.
Both the Video and the written Transcript were filed with the Court.

Below is the transcript of the Video Statement Under Oath of Eva DePasquale.

Download the PDF file .