On February 9, the Court of Appeals for the Second District affirmed Judge Ferchill’s ruling removing Frank and Chila Covington as guardians of their Down Syndrome daughter. The judge was good enough to notify me of the affirmation and send me his comments, from which I excerpt:
The Covingtons, in this context, are free to reject all psychoactive medications for themselves, but they cannot refuse to have their daughter, a court monitored ward under guardianship, even EVALUATED for the potential prescribing of such meds. Keep in mind that after on the evaluation. Follow up reports show that the meds have ameliorated the hearing of “voices”, the imaginary person/s, the anti-social behavioral issues and severe headaches. HER best interests have been served.
Your original article has caused me considerable angst. It is forever in Google. I am asked about it, just recently by a high school friend I hadn’t seen in 40 years. Please consider contacting public officials to give them an opportunity to present their side before you paint with such a wide brush. Based on the Covingtons or stories about them, and the allegations of a disgruntled attorney, Mr, Shelton, whom I and other judges had sanctioned, you said that I and some attorneys ran a “racket”. That is the word I object to the most.
However, before he breaks his arm patting himself on the back, I should note for him that the appeals court’s written memorandum raises very important questions about how he acted in this case.
The appeals court notes in three places a tendency by Judge Ferchill to act without regard to the law.
Page 3: “In July 2009, the trial court appointed a guardian ad litem for Ceci without notice to the Covingtons.” [my bf]
Page 4: “After a hearing and without notice to the Covingtons, the trial court found that the Covingtons cruelly treated Ceci and neglected to main her as liberally as her means permit.” [me again]
Page 4: “The trial court also found that the Convingtons ‘have both been proven to be guilty of gross misconduct and gross mismanagement in the performance of their duties as Guardian’ and ordered their removal without notice.” [me]
The appeals court notes that it did not address Judge Ferchill’s failure to comply with Texas 761(c) — on the question of not notifying someone when their case is before the court — because the Covingtons’ appeal was not based on it. By mentioning it three times, the appeals court is strongly implying it would have addressed this issue if it had been asked to.
The failure to give the Covingtons their day in court Â is the most disturbing aspect of the case. Two elderly parents who have raised a Down Syndrome daughter and, finally, when she reaches 40 years of age, placed her in a home, are resistant to addressing any problems in their daughter’s behavior at that home. They apparently have a abhorrence of psychiatric drugs. Their daughter needs the drugs (personal note: my own Down Syndrome daughter, who is 22, has profited immensely from such drugs). The staff at the home heads to court.
The court rules the parents have “cruelly treated” their daughter (language that arises from the statute), removes the parents from their guardianship, and appoints a new guardian — without ever notifying the parents that their guardianship is in question. The Covingtons are blind-sided.
After following this case for more than two years, I’ve come to two conclusions. Judge Ferchill was right in his ruling but wrong in how he decided it. And that is what sticks in my craw. In Anglo-American Â jurisprudence, process is as important as result. Improper process can negate a good result because process applies generally, while the result only applies to the particular case. A violation of process affects us all. That is undoubtedly why the appeals court noted it repeatedly.
I’m sorry if Judge Ferchill feels I have treated him unfairly. Â However, I find a certain amount of irony in his position. Unfairness is what the Covington case was all about.