NB. This is the version of events I have been given as of this writing. If things later prove to have occurred in a materially different way, I will edit this post.
Sharisa Joy Kochmeister is a 36-year old nonverbal autistic activist who uses keyboards to communicate. She is also epileptic and has cerebral palsy (I am unaware of her language preferences; if she prefers different terminology, please let me know and I will fix it). She is a college graduate and has served on several boards, including that of the Colorado Developmental Disabilities Council. She led an active life (until recently), with many friends and a caring guardian in her father. She is a person, with needs and wants and opinions.
In March, she was hospitalized. At one point, she became ill, and her father helped to clear her airway. She, for whatever reason, kicked him, and he pushed her. I have never met Sharisa or her father, but I do know that in moments of extreme stress (such as being in hospital and either being sick or experiencing a loved one being sick) it is very easy to react emotionally, instead of with cold logic. I have never seen any allegations or proof that anything untoward was occurring in their relationship – but more importantly, no one I know who is closer to the family has, either.
Someone at the hospital called the police. Then Jefferson County Human Services.
Sharisa was removed from her home, even though the Denver district attorney held that Sharisa’s father could not be charged with anything. “Munchausen by proxy” was hinted at – with absolutely no basis in fact that I have yet seen. She was placed in a nursing home after county officials assumed temporary guardianship – denied access to her communication device, family, friends and even her doctor. As of this writing, she has been moved to a “host home” at an “undisclosed location.” She has seen her father once – during which visit she was finally able to type and tell him that her wishes were being ignored.
This is wrong. Not only wrong, it is obscene.
My area of expertise is not Sharisa herself, nor is it the communication of nonverbal people. I defer to those who know better in those regards. My area of expertise is the law.
It seems to me that there are three major points of contention here. They are:
- 1. On what grounds was Sharisa taken from her father’s custody?
- 2. Why was Sharisa’s communication halted and her ability to communicate ignored? Is there legal justification for this?
- 3. How best to stop this? What causes of action might one bring against county and/or state officials, if any?
(1) The Denver Post piece linked above says that Mr. Kochmeister was accused of abuse, though later it was decided not to charge him. The wording here is problematic. “Decided not to charge” can be code for two things – either that there was not enough evidence to say whether or not Mr. Kochmeister committed abuse, or that there was and the district attorney decided it wasn’t worth their time to pursue. It might just be the editorial writer adding artistic license, but if it wasn’t, it’s disconcerting. It implies that there were grounds. And I have never heard anything to imply that there were grounds.
What causes me infinitely more concern is the prospect of Mr. Kochmeister being accused not of physical abuse, but of neglect. Because both are legal reasons to remove someone from a living situation, but negligence is more likely to be cause for a permanent removal. And if we examine the context clues and the law itself, the conclusions I come to worry me.
Colorado has a mandatory abuse reporting law which basically means that if you are one of the people listed in the law with a position of authority, you must inform someone of your abuse suspicions, even if they turn out to be baseless. So, medical personnel at the hospital Sharisa was in notified the police, and it went from there. County officials apparently indicated at some point that they believed Sharisa might be a victim of Munchausen syndrome by proxy in her father at the time that Sharisa was removed from her home. Munchausen syndrome by proxy, for those who don’t know, is a form of mental illness wherein a parent or caregiver induces symptoms in their child/charge in order to attract attention and praise for themselves. If this were found to be true of Mr. Kochmeister, he could in theory be brought up on charges of neglect and/or abuse of a disabled person. In a vacuum, this is sound logic.
However, this is not a vacuum. Colorado’s Human Services Code defines Sharisa as an “at-risk adult” in that she ” … is susceptible to mistreatment, self-neglect, or exploitation because the individual is unable to perform or obtain services necessary for his or her health, safety, or welfare.” Okay.
The law states at Title 26, Article 3.1, Part 104 that if a “county director” or “such director’s designee” determines that an at-risk adult is being mistreated, they must offer protective services to that adult. That’s fine. However, the next part states, and I’m going to block quote this, because it’s that important:
If the county director or designee determines that an at-risk adult is being or has been mistreated or self-neglected, or is at risk thereof, and if the at-risk adult does not consent to the receipt of protective services, the county director is urged … to petition the court … for an order authorizing the provision of specific protective services and for the appointment of a guardian, for an order authorizing the appointment of a conservator pursuant to part 4 of article 14 of title 15, C.R.S., or for a court order providing for any combination of these actions.
Let me make that clearer still. If the county director thinks that someone is even possibly at risk of abuse or neglect, they can petition for a court order to remove them from the situation, regardless of whether that person consents or not. For a minimum of six months.
I wasn’t there, so I can’t say definitively whether Sharisa consented to such ‘protective services’ or not – or even if she was ever asked! I cannot imagine, from the current facts, that Sharisa consented. But, anyway, as it’s written, this provision is really offensive. Colorado’s definition of an “at-risk” adult is not worded in a way where one must assume that everyone who falls under its purview is mentally or developmentally disabled to the point where their consent is irrelevant. (NB: I would never ordinarily state that ignoring anyone’s consent is okay, and I am certainly not insinuating that it was okay to ignore Sharisa’s. But sometimes, if taken as one factor as part of a whole, consent might have to go by the wayside. Stockholm Syndrome is a thing.)
Another part of this law that made me so angry I had to will myself not to throw things in public. One of the other provisions in this part states, in its entirety: “Any protective services provided pursuant to this section shall include only those services constituting the least restrictive intervention.”
Does pulling a communicative adult from their home and family really constitute the ‘least’ goddamn ‘restrictive intervention’?
To sum up: Sharisa was removed from her father’s custody, and placed under county guardianship, because someone notified the relevant authorities, as they were required to do by law, that they suspected abuse. The wording used indicates that the county felt that there had been some irregularity on the part of Mr. Kochmeister – I have no way of knowing whether that is accurate or not, so I won’t comment further on that. However, because this is an abuse case, Sharisa’s guardianship will last at least six months – so, until September 30 at the latest – and if further evidence is found (or inferred, or pulled out of someone’s posterior crevice), it may become permanent. There will be a hearing, though I have no idea when, as I’m not privy to that information.
(2) I really, genuinely am at a loss to find a reason for the treatment of Sharisa aside from extreme indifference and negligence. I cannot arrive at any other conclusion, given the facts currently in my possession, besides the fact that Sharisa’s civil rights were egregiously violated, and continue to be. There is no legal justification that I can find or fathom.
Everything I have ever read about Sharisa says that she types to communicate, almost exclusively when her father and/or sister are present. I am told she has a keyboard with her, but I do not know if that’s the case. Either way, the attitude of Jefferson County Human Services is absolutely incomprehensible. If they suspected abuse, that’s one thing. Under current Colorado law, they are required to investigate. What they are not required to do is to place her in a home with elderly people, who have totally different care needs, and refuse her access to the people she feels safe communicating with. If her father is considered a risk, what about her sister? What about a professional or one of Sharisa’s colleagues from one of the numerous boards she is affiliated with? The Americans with Disabilities Act requires that Title II entities (of which state and local governments are two) “communicate effectively with people who have communication disabilities.” Removing access to her communication device and denying the company of anyone she might feel comfortable communicating with is hardly “communicating effectively.” Nor, as I mentioned earlier, is it the “least restrictive alternative.”I find it thoroughly disquieting – both as an autistic person, and as an attorney – that from all I have looked over, and all the law I have examined, I see no provision specifically laying out the consent rights of “at-risk adults.” The definition as used in Colorado law does not address an “at-risk” adult’s ability to consent. It seems to be implied – and certainly acted upon by Jefferson County Human Services – that if an adult is “at risk”, they lack the ability to consent, which is emphatically not the case. This is an oversight so dangerous that if I were in a position to move for it, I would recommend this entire law be rewritten. Perhaps this is something that ASAN Colorado, or another disability rights organization, could get behind?
To sum up: The Americans with Disabilities Act is explicit and clear about the fact that state and local governments are required to communicate effectively with those who have communication disabilities. It states that covered accommodations include both aids (like a keyboard) and services (such as interpretation) – the ADA actually states that an entity cannot require a person to bring in someone to interpret for them. Also, Colorado law has a glaring lack of provisions designed to solidify an ‘at risk’ adult’s ability to consent, which is disquieting in the extreme. This is such an egregious oversight that it may require legislative remedy.
(3) That question deserves its own post. Part 2 will be up in a day or two. For now, suffice it to say, something is definitely rotten in the state of Colorado.