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Wednesday, November 5, 2003
LIFE AND DEATH TUG OF WAR
Court to hear petition to remove husband as guardian
Terri's family argues Michael Schiavo guilty of abuse, neglect, adultery
Posted: November 5, 2003
6:55 p.m. Eastern

By Diana Lynne
© 2003 WorldNetDaily.com

Charges of neglect, abuse, adultery and conflict of interest on the part of Michael Schiavo in his capacity as the guardian of his brain-damaged wife, Terri Schindler Schiavo, will finally get their day in court, after a judge agreed to hear a petition filed by Terri's family seeking his removal.

Circuit Judge George Greer, the jurist who has primarily handled the 10-year court battle between Michael Schiavo and the Schindlers and has consistently ruled in favor of Michael Schiavo, today denied a request by Schiavo's attorney to dismiss the motion.

"We're astounded," Pamela Hennessey, spokesperson for the Schindlers, told WorldNetDaily. "I'm kind of surprised but very relieved that these issues will finally be addressed. They should have been addressed long ago. So there's hope that Terri will be put in a much safer position than she is now."

WorldNetDaily reported the motion, originally filed in November 2002, seeks the appointment of Terri's sister or brother as the successor guardian and chief decision maker.

WorldNetDaily has reported that though severely brain-damaged, Terri breathes and maintains a heartbeat and blood pressure on her own. She can see, and video shown in court apparently demonstrates she can move her limbs on command, vocalize and respond to her mother. But she needs a feeding tube to sustain her life. Its removal would cause her to die by dehydration and starvation. Michael Schiavo has successfully achieved its removal twice through rulings by Greer, most recently on Oct. 15.

Terri has no written directive on the matter. Schiavo says she told him during a casual conversation a year before her injury she would not want to be kept alive through artificial means. He insists he is carrying out her wish to die.

Unprecedented intervention on the part of the Florida legislature and Gov. Jeb Bush restored her feeding tube six days later. Schiavo's attorney, partnered with the American Civil Liberties Union, has filed an appeal of what is known as "Terri's Law," calling it an unconstitutional breach of the separation-of-powers principle of government.

Adultery

Schiavo told WND he is engaged and has fathered children with his fiancee, but that he would not divorce Terri.

"I moved on with a part of my life. I'm sorry that the Schindlers can't move on with any of theirs," Schiavo told WND at the time the motion was filed.

Schiavo has repeated this admission and made similar statements on numerous television programs, most recently on CNN's "Larry King Live" last week.

The petition to remove Schiavo as Terri's guardian cites his admissions in accusing Schiavo of failing to "discharge his duties in protecting the interests of the ward" per Florida Statute 744.474, by violating her right to be treated with dignity and respect and her right of privacy. The petition argues Terri deserves a divorce.

"Fidelity is a key component of the respect and dignity that our society expects one spouse to afford the other; yet, this guardian believes that Terri’s disability releases him of his legal and moral responsibility," reads the petition.

According to deposition testimony, Schiavo lives with his "girlfriend" – the mother of his child. The petition asserts this violates Florida Statute 798, which makes living in open adultery a misdemeanor, and proscribes lewd and lascivious cohabitation.

Under Florida Statute 744.474, a guardian found guilty, regardless of adjudication, to any offense prohibited under Florida Statute 435.03, which includes lewd and lascivious behavior, should be removed.

"I cannot understand how anyone would take that seriously," Schiavo attorney George Felos told WND in response to the adultery charge. "Most people would say that it's understandable that a healthy spouse shouldn't be sentenced to life without companionship," he said. Felos compared Schiavo's situation to that of other clients dealing with spouses afflicted with Alzheimer's who have been institutionalized and no longer recognize their healthy spouses.

Conflict of interest?

The petition claims Schiavo also has a conflict of interest in serving as her guardian because he stands to inherit what's left of monies awarded in a malpractice lawsuit. As WND reported, $1.2 million was placed in a medical-care fund for Terri in 1992. Schiavo says only about $50,000 remains in the fund and that the money was spent on Terri's medical needs.

WorldNetDaily has reported Felos has received reimbursement for attorney fees totaling $358,434 from Terri's fund and another Schiavo attorney, Deborah Bushnell, has received about $80,000. Bushnell also filed a petition last year seeking authorization of pre-payment for Terri's cremation and burial expenses out of the fund.

The Schindlers' petition accuses Schiavo of "wasting, embezzlement, or other mismanagement of the ward's property" by spending the money in Terri's medical-care fund on attorneys' fees.

"While exhausting Terri's money for the purpose of killing her, not one red cent could be found by Schiavo to enhance the quality of her life after receipt of the malpractice award. ... [A]nd the expenditure of nothing for therapy that would reduce the pain of contractures, enhance Terri's ability to swallow, or facilitate recovery of basic abilities is the grossest form of asset mismanagement," the Schindlers' attorney, Pat Anderson, stated in the petition.

"The charge of embezzlement ... is ludicrous given that the payment was done per order of the court," Felos countered.

Perhaps the greatest "conflict of interest" alleged by the Schindlers' petition pertains to Terri's mysterious collapse on Feb. 25, 1990, at the age of 26. Testimony given during last year's evidentiary hearing about her being presented at the emergency room with an "extraordinarily rigid neck" described by one physician as "consistent with attempted strangulation," plus a 1991 bone scan report that suggests she had a history of trauma, prompted Anderson to seek an investigation into the cause of Terri's original injury. Felos slammed the motion as "garbage" and "rife with unattributed hearsay, rank innuendo and libel."

"Because [Michael] Schiavo was alone with Terri at the time of the original injury and has been responsible for her care in the interim and in most cases has been the sole source of information about Terri’s history for her caregivers, there is an obvious and impermissible conflict of interest demonstrated by this failure to investigate these matters," wrote Anderson in the petition.

Schiavo addressed the allegations of attempted strangulation with Larry King.

"If I strangled her to the point of unconsciousness, her trachea would have been crushed," he said, adding that no physician made notations regarding "marks around her neck," which he said would have been there if the allegation was true.

Medical 'neglect' and 'abuse'

The petition further argues Terri's right as an incapacitated person to receive "necessary services and rehabilitation" per Florida Statute 744.3215 has been violated by Schiavo's neglect to seek medical treatment.

"Schiavo has at every turn attempted to increase her incapacity through the denial of basic health and rehabilitative services such as range of motion therapy, other physical therapy, orthopedic evaluations and treatment, speech therapy, standard diagnostic tests and procedures, gynecological care, dental care, rehabilitation evaluations and cognitive therapy," stated the petition.

The petition references court testimony and deposition that Schiavo ordered that Terri not be treated for a bladder infection, a condition he admitted could be fatal.

Victor Gambone, Terri's attending physician hired by Schiavo in 1998, testified at an evidentiary hearing last year he was unsure whether his patient had her teeth cleaned in recent years and said she hadn't received therapy. He said he accepted Schiavo's word that therapy had been deemed unnecessary.

Schiavo said on CNN last week that Terri has had her teeth cleaned "within the last three months."

The petition also takes issue with Terri being "confined to the 'death row' of [a hospice] for over two years while the appeals in this case have been pending."

The charges of "neglect" and "abuse" echo those laid out in an 850-page complaint filed with the Department of Children and Family in 2001. The charges were investigated and DCF officials concluded they were "unfounded with recommendations," according to the anonymous complainant.

They also mirror claims contained in a federal lawsuit the Schindlers filed August 30, which was dismissed.

"The opposition has a pattern of dredging up filth in order to attack my client because ultimately they're going to lose on the merits of the case, which is what the current medical condition of Terri is and what her wishes are. ... They're just attempts by the Schindlers to run an end-run around the ruling to end life support," Felos told WND at the time the motion was filed.

The Schindlers' efforts to remove Michael Schiavo as Terri's guardian, which date back to May 2001, have been consistently rebuffed by Greer, who has belittled abuse allegations as "unbelievable."

Meanwhile, Hennessey described Terri's current condition as "excellent," stating she appears to have fully recovered from six days without hydration and food.

Terri's parents, Robert and Mary Schindler, are scheduled to appear on "Larry King Live" Friday night at 9 p.m. Eastern, to tell their side of the story.

Court filings and other information on the case are posted on the Schindlers' website

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