State Justices Limit Scope of Elder Abuse Law

SAN FRANCISCO â€”  A sharply divided California Supreme Court, clarifying the duty to care for aged parents, ruled Friday that grown children can be prosecuted for neglect only if they have control over the elder’s care.

“It means that if you take on the responsibility of caring for your parent, you care for your parent,� said Santa Ana attorney Richard Schwartzberg, who represented the defendant in the case before the court. “But you don’t have to take on that responsibility.�

The court, in a 4-3 decision, examined the 1990 death of a Huntington Beach widower who, according to a prosecutor, lay alone without food or water and covered in his feces while his grown children ate Thanksgiving dinner in another room.

The father, 67, a stroke victim who died days later of septic poisoning, was mentally fit but partially paralyzed, malnourished and dehydrated. His body was covered with gruesome bedsores and his own excrement.

A son told police that he was too busy cooking the holiday dinner to answer his father’s call for help to the bathroom and later shut the bedroom door so the odor would not permeate the house, according to Orange County Deputy Dist. Atty. Robert Molko.

The son also admitted that he had withheld food and liquids from his father for three days preceding his death because company was expected and the son did not want the house to smell.

Molko won convictions against two sons who lived with their father but also wanted to charge an adult daughter who had been in the home on the holiday and on several occasions before his death. The victim’s wife had died three years earlier.

The court majority, interpreting what it called an overly vague state law against elder abuse, ruled that the daughter could not be prosecuted because she had no control over her older brothers, the primary caretakers.

The state law, passed in 1983, makes it a felony for “any person� to permit, knowingly and willfully, a dependent adult to suffer pain.

But the court majority, led by Chief Justice Malcolm Lucas, contended that the law was too vague because even a deliveryman who happened onto such a household could be prosecuted for elder abuse.

“One will be criminally liable for the abusive conduct of another,� Lucas wrote, “only if he or she has the ability to control such conduct.�

Kathleen M. Harper, an Orange County deputy district attorney who handled the appeal, said she was shocked by the ruling.

“It is mind-boggling to me,� Harper said. “She was in that house every single weekend for five weeks before he died. . . . She can’t pick up a telephone and call a doctor? She is a grown woman.�

Harper said the sister was just lazy and felt her father was her brothers’ responsibility.

“I don’t see how a child can get away with that mentality,� Harper said. “It was all of their responsibility.�

Voting with Lucas were Justices Joyce Kennard, Armand Arabian and Ronald George. Dissenting were Justices Marvin Baxter, Stanley Mosk and Kathryn Mickle Werdegar.

Baxter, writing a dissent for the minority, noted that the defendant, Susan Valerie Heitzman, knew her father needed medical attention and was confined for long periods to a filthy bedroom and a damp, rotted mattress.

“Nevertheless,� Baxter wrote, “defendant did not take any steps to assist her father during this period.�

But Schwartzberg, the daughter’s lawyer, said she had asked her brother and a nephew to take the father to a doctor. The sister, a store clerk in her early 30s, was horrified by the situation, the lawyer said, but could not drive or control her brothers.

“I think there are a lot of women out there who feel powerless,� he said, “and in this situation she certainly did.�

Heitzman had lived with and cared for her father until a year before his death. She was unavailable to comment Friday on the court’s ruling.

“When she cared for him,� the lawyer said, “he was fine. But eventually she said, ‘Hold it. I am trapped if I stay here. . . . I have a life to lead.’ �

Adult children are rarely prosecuted under the elder abuse law, Molko said, because most neglected and aged parents live alone. Proving abuse or neglect by their children is difficult.

Under the ruling, adult children can be prosecuted only if they have taken responsibility for their parents, such as living with them, financially supporting them or arranging for a third party to care for them, the Santa Ana attorney said.

The decision “doesn’t mean you have an obligation to make sure that Mom sees the doctor� in other circumstances.

The victim in the case, Robert Heitzman, had suffered a series of strokes 20 years before he died.

The grown children apparently had enjoyed good relations with their father when they were young, Schwartzberg said.

“I just don’t think they had a concept of social responsibility,� he said.

But prosecutor Molko has a different theory. He surmised that the sons, Richard Heitzman Sr. and Jerry Heitzman, who were sentenced to four years in prison for involuntary manslaughter and elder abuse, did not want to send their father to a hospital because they feared losing his veterans’ benefits, which helped support the household.

A fourth sibling, a sister, had anonymously contacted a county social worker months earlier. The social worker had told the brothers their father needed to see a doctor and probably be hospitalized, Molko said.

A Superior Court judge had initially dismissed the case against Susan Heitzman, but a Court of Appeal in Santa Ana reversed the decision. Heitzman then appealed the ruling to the state’s highest court.