A Hendersonville woman credits the quick actions of police for
recovering jewelry allegedly stolen by a hired caregiver from
Murfreesboro, and questions why the caregiver – who has a lengthy
criminal history – was placed in her elderly relatives’ home in the
first place.
Shannon Allen says she and her family did their due
diligence when researching in-home health care companies for her
octogenarian in-laws eight months ago.
When interviewing Zellena
Johnson of the Hendersonville-based company Preferred Care At Home,
Allen says she was assured the company conducted national background
checks on all of their employees and checked the abuse and sex offender
registries as well.
“We talked to her at length and she
guaranteed that they run background checks and that they don’t hire
anyone who has had any criminal charges in the last seven years,” Allen
recalled. “She had all the right answers. The company came highly
recommended to us and we thought we were making the best choice.”
Allen
says that what she thought was a blessing for their family turned into a
nightmare in July when she received a frantic call from her
mother-in-law who couldn’t find her ring.
“We thought she misplaced it, but it was nowhere to be found,” she said. “We were searching everywhere.”
She then noticed that her mother-in-law’s diamond tennis bracelet and several earrings were missing as well.
Allen says she first tried to call Preferred Care but couldn’t reach anyone there.
She then called Hendersonville police who asked for the names of caregivers who had been in the home.
Hendersonville
police Det. Tim Denning admits he was surprised to learn that one of
the caregivers who had been in the Allen home on seven occasions since
mid-April had a lengthy criminal record and warrants out for her arrest
in two different counties.
“Yes, I was surprised,” he said. “It is
unusual for someone working for a caregiving company to have that sort
of history because usually the company conducts background checks.”
Latoscha
McClain, 47, of Murfreesboro, is charged with theft of property
$60,000-$250,000, a Class B felony, for allegedly stealing several
pieces of jewelry on the days that she worked for the Allens.
Rutherford
County online circuit court records show McClain was charged with theft
and forgery in 2019. She pleaded guilty to the forgery charge and the
theft charge was dismissed.
Records also show that McClain pleaded
guilty to a theft charge in 2015 and to an identity theft charge in
2008. In 2002, she pleaded guilty to theft $1,000-$9,999.
Most
recently, McClain was charged in August of 2022 with tampering with
evidence and driving on a revoked license, according to Rutherford
County court records. She was charged with failure to appear in
Rutherford County court on July 21, and is being held without bond for
another department (likely Hendersonville police), according to a
Rutherford County Sheriff’s Office spokesperson.
Online court
records show that McClain was charged in Dickson County in 2017 with
theft of property, two counts of forgery by uttering and 11 counts of
fraudulent use of a credit card up to $1,000. Records show she pleaded
guilty to the theft and forgery charges and was not prosecuted on the
other charges. The records also show that case was reopened in 2022.
Allen
says that when she approached Preferred Care’s owners about McClain’s
criminal history, she was told that Johnson hired McClain because she
was her cousin and she thought that McClain “turned over a new leaf”
following her criminal history.
“What I wasn’t told [when I hired
the company] is that even after these [background] checks are done, it’s
at Zellena’s discretion whether she chooses to hire someone with a
record,” said Allen.
She said she was shocked when the owners told
her that Johnson had learned from her mistake and that she would remain
with the company.
Allen says she would have stayed with the company if they let Johnson go.
“But
when they told us they were keeping her, we were devastated. We were
shocked,” she said. “She intentionally hired someone with a criminal
record and put them in a vulnerable, elderly person’s home.”
She says she was offered a check and an apology by the company which she declined.
“It’s not a monetary issue,” she said.
Owner: Recent charges didn’t showup on background check
Preferred
Care at Home Owner Richard Patterson said he has been “absolutely
devastated and lost sleep over the way we let the Allen family down.”
McClain
has been fired from the company and the office team, particularly
Johnson, cooperated with police by proactively sharing information that
might help lead to her arrest, he said.
Patterson also said that
Johnson was aware of her cousin’s past issues from the 1990s, but
believed she had turned her life around.
“The preliminary check
only revealed details older than the industry standard lookback period
provided by our background check service,” he said. “Based on the
absence of recent charges and based on positive references received, we
believe Zellena [Johnson] made a good-faith judgment call to hire Ms.
McClain.”
Patterson said the company placed Johnson on administrative leave while they investigated what happened.
“Again,
we did not find evidence of intentional misconduct, and as such we did
not find it appropriate to fire her,” he said. “We take our core values
very seriously and in this case I believe that firing Zellena would have
been incompatible with our core value to ‘do the right things for the
right reasons.’”
Patterson said he takes ultimate responsibility
for what happened and has enhanced the company’s hiring guidelines to
ensure greater safety and quality of care.
“I should have had more
safeguards in place and checks and balances to ensure that my employees
aren’t put in a position where judgment calls could result in
suboptimal outcomes,” he said.
Victim’s family: Officers worked quickly to recover stolen items
Allen, who has severed ties with the company and hired other caregivers for her in-laws, wants others to learn from her ordeal.
Allen
reported the stolen items – 16 in all – to Hendersonville Police on
July 17. By July 19, she and her sister-in-law were identifying much of
the stolen jewelry in a Murfreesboro pawn shop.
She credits the quick work of officers, including Denning, for the recovery of 14 of those pieces within days.
According
to Denning, pawn shops are required to enter everything pawned to them
into the National Crime Information Center (NCIC), a national database.
Police enter in a serial number or detailed description of the items and see if they get a match.
“What
helps is if [the item] has something unique about it. The best thing is
if you have a photo of the jewelry so we can compare with the database
of things pawned,” Denning noted.
Officers are also able to look
up a suspect’s pawn history since anyone pawning something is required
to show identification, he added.
Allen says she was told by a
pawn shop employee that there are still items McClain brought into the
pawn shop that haven’t been claimed.
“One of the things that
helped was the victims came to us as soon as they found out something
was missing,” Denning noted. “One of the key things is reporting things
quickly. We are able to get to pawn shops and get it quicker. Once it
gets out of the pawn shop, it gets much harder.”
MARK C. PSORAS / For The InquirerHeidi
Austin, with her father, Josef Wituschek, displays a photo of guardian
Gloria Byars from Byars’ Facebook page during an interview last year in
Wituschek’s home in the Fox Chase section of Philadelphia.
Relatives of Edmund and Margareta Berg were shocked to learn, a
little more than a year ago, that the court-appointed guardian handling
the Fox Chase couple’s finances had a record of fraud, bad checks, and
forgery.
Around that time, Marie Frisby
began questioning the guardian appointed to help her husband, Hank. They
contend that his bills weren’t being paid and, as a result, they had to
sell their home in Wyncote, Montgomery County.
Meanwhile, Nu Vuong, a
naturalized U.S. citizen who doesn’t speak English, had been moved by
her guardian from her Kensington home to a Delaware County nursing
facility where no one spoke her language.
In each case, the guardian was the same woman, Gloria Byars of Aldan, Delaware County.
Questions about Byars’
financial management led judges to remove Byars last year as guardian of
the Bergs and Hank Frisby. She has since been removed from about 100
cases in Philadelphia, Montgomery, and Delaware Counties.
The experiences of the Bergs, Frisby, and Vuong demonstrate how
well-meaning relatives can be swept away by a guardian who may not be
acting in a person’s best interests. And Byars’ criminal record
underscores what some advocates say is a broader issue: a lack of
oversight in a beleaguered system responsible for caring for thousands
of often elderly Pennsylvanians.
“We
do have a crisis with professional guardians,” Philadelphia Orphans’
Court Administrative Judge Matthew Carrafiello said at a February
hearing at which he ordered Byars removed from all her remaining
guardianships. “We just don’t have enough.”
Nationwide,
guardians oversee an estimated 1.3 million adults and $50 billion of
their assets, said Brenda Uekert, principal court research consultant at
the National Center for State Courts. And as the population ages, the
demand for them is likely to grow.
In
Philadelphia, about 6,800 adults are under guardianship care, many of
whom are overseen by family members. Five lawyers also regularly serve
as guardians, and others on an occasional basis, as well as about 17
non-attorney professional guardians, like Byars.
Any interested person or agency may petition a court to
appoint a guardian. A judge then holds a hearing to determine if the
person is “incapacitated” — unable to manage his or her own personal or
financial affairs. Once appointed, a guardian is paid through that
person’s assets or income. Their fees vary: Some could charge $100 an
hour, observers say, but they also could make much less overseeing a
poor client’s finances.
Guardians
must file with the court regular reports of the assets, income, and
expenditures they manage. But otherwise, they are generally left alone.
The
only legal requirement to become a guardian in Pennsylvania is the
ability to read and write in English. And that in turn opened the door
to applicants like Byars.
Philadelphia
judges appointed her to 93 cases from 2015 until last summer, in most
cases based on a recommendation by the Philadelphia Corporation for
Aging. The nonprofit, which provides home care to more than 21,000 and
helps thousands more through its tip line, is supposed to act as a
watchdog for the city’s most vulnerable citizens.
But
an attorney for the agency told a judge at a hearing last year that PCA
did not know about Byars’ convictions for fraud and bad checks — a past
that a simple Google search would have uncovered.
Abbey
Porter, an agency spokeswoman, declined to discuss why PCA had
recommended Byars and whether the agency had conducted a background
check. She wrote by email that PCA is “aware of the complexities and
challenges of the guardianship system, including the ‘vetting’ of
guardians.”
Byars,
57, has not been charged for her role in any guardianship cases. She
repeatedly has declined to speak to the Inquirer and Daily News, when
approached in person or through phone calls and letters left at her
office and home. Lawyers representing her also have declined to comment.
Diane
Menio, executive director of the Center for Advocacy for the Rights and
Interests of the Elderly (CARIE), in Philadelphia, said Byars’ record
shows agencies and courts need more due diligence in choosing guardians.
“Someone
convicted of financial crimes is certainly not someone who you want
managing an incapacitated person’s finances,” said Menio. “This whole
thing is based on trust.”
‘Unbelievable’
Court
records show that in 2005, Byars was charged in Virginia
with defrauding several people by using their discarded credit-card
convenience checks, fished out from post-office trash cans. She pleaded
guilty that October and was later sentenced to 37 months in federal
prison and ordered to pay $29,503 in restitution.
After
completing her term in December 2007, which included stints in a
halfway house and on home confinement, Byars, who had once lived in
Camden, moved to Delaware County. Her supervised release, which ended in
December 2010, barred her from working in a job that required her to
handle money or have access to financial accounts.
At some point, she began working for Robert Stump, a guardian and owner of RES Consulting in Havertown. According to one LinkedIn account, she worked there from 2008 to 2016. Stump did not return calls seeking comment.
The
same LinkedIn account says Byars received an associate of arts degree
in business administration from Kaplan University in 1981. A spokeswoman
for Kaplan, headquartered in Chicago, said the university, which offers
online courses, has no record of Byars’ taking classes.
In 2016, Byars branched out on her own, opening Global Guardian Services in Lansdowne, Delaware County.
That
Dec. 6, Byars was appointed guardian for the Bergs, upon PCA’s
recommendation. The couple, both in their 80s, didn’t want to leave
their house on Borbeck Avenue, which they bought in 1961, relatives
said.
But
in late December, Margareta Berg was discharged from a hospital and —
without the knowledge of her brother, Josef Wituschek — moved to a
Montgomery County rehab facility. A panicked Wituschek and his daughter,
Heidi Austin, then tried to call Byars, only to learn that she was in
Spain, they said.
That
January, Byars moved the Bergs into a Montgomery County nursing home,
then in February 2017 had their Fox Chase house cleaned out to sell it.
An
accounting filed by Byars last year said she collected $4,487.50 in
guardianship fees from the Bergs from January to July, a sum that
consisted of monthly fees of $100 or $200, plus $2,000 for her to
oversee the two-day cleanout of their house. (It’s unclear how much she
made from all of her guardian cases, but court records show that she
finally paid off her restitution in the federal fraud case by February
2017.)
After Byars sought court approval to sell the house, Wituschek hired a
lawyer. Attorney Daniel McElhatton learned that the company Byars had
hired to clean the house, DEPCO LLC, was owned by Byars’ husband, Leon
DeShields.
Mark C. Psoras / For The Inquirer
Heidi
Austin displays a photo on her phone of her aunt and uncle,
Margareta
and Edmund Berg, as her father, Josef Wituschek (center),
stands with
her. At right is Wituschek’s attorney, Daniel McElhatton.
The
lawyer says he found it “unbelievable” that Byars didn’t disclose the
conflict of interest. He opposed the sale of the house and an $11,000
payment to DEPCO, alerted Orphans’ Court Judge John Herron to Byars’
criminal convictions, and asked the judge to remove her as guardian.
At
a hearing in July 2017, Herron scolded Byars for failing to disclose
the conflict and for not getting his approval to pay DEPCO. “It was
self-dealing and should not have happened, and it should be refunded
immediately,” the judge said.
McElhatton
also questioned thousands of dollars in other withdrawals Byars had
made from the Bergs’ accounts. Byars said she paid $5,000 in cash to the
Bergs’ nursing home, but didn’t get a receipt – a step Herron called
“negligent” and “reckless.”
Herron
ordered Byars removed as the Bergs’ guardian and as guardian of 31
other active cases. He appointed Wituschek as successor guardian for the
Bergs. Wituschek had previously not been able to serve because he was
mourning the death of his wife.
Byars
has since reimbursed the Bergs the $11,000 paid to her husband’s
cleaning company, $5,200 for an unexplained cashier’s check she wrote
from their account, and an additional $900 she collected from an auction
of valuables from the cleanout of the Bergs’ house. The family is still
questioning other expenses and items they suspect are missing.
At
the July hearing, Byars’ then-attorney Robert Feliciani III, said she
had 113 active guardianships, mostly in Philadelphia and Montgomery
County.
Sam
Brooks, an elder law attorney at Community Legal Services of
Philadelphia, said other professional guardians at times carry caseloads
as large or larger. A manageable caseload is closer to 40, he said, but
to make a profit, guardians deal in volume, he said.
“There’s
no money in it, for the most part, unless you have a person who’s
incapacitated who has a substantial estate,” said Menio, the advocacy
center director.
Guardians
can still make money from low-income clients. They are assured $100 a
month if the person is in a nursing home and receives medical
assistance. They also can petition the court to sell a person’s house,
then request compensation from the sale.
Billed for a birthday party
Hank
Frisby was a Philadelphia police officer from 1960 to 1980, rising to
the rank of sergeant. He then served full time in the Pennsylvania Air
National Guard, and later in Montgomery County’s human resources
department.
In
early 2016, though, he was separated from his wife, Marie. After a
nurse who was taking care of him at his Wyncote home suspected he was
being abused by a relative, the nurse contacted the Montgomery County
Office of Aging and Adult Services.
That
March, Montgomery County Senior Judge Stanley Ott deemed Hank Frisby
incapacitated after finding that he suffered from dementia and had
problems paying his bills. The Office of Aging had recommended Stump’s
company, RES Consulting, and Byars, who at the time was still working
for Stump, was appointed his guardian, court records show.
While
the Frisbys agree that his finances weren’t in the best of shape, they
say that in the ensuing months, Byars didn’t pay his mortgage,
real-estate taxes, or income taxes.
But
she threw him a birthday party. In June 2016, he was invited to a party
that Byars threw for him and other clients at her home. The party
included an ice cream truck, a live band, food, alcohol, and boxes of
sheet cake, including one for him, Hank Frisby said.
“I didn’t know anybody there,” Hank Frisby, now 79, said in an interview. “I stayed a couple of hours and left.”
He thought it was nice, he said, until he later saw a $750 charge on his account for being at the party for six hours.
Later
that year, the Frisbys reunited, and Marie Frisby realized the state of
his finances. In December 2016, their house was targeted for
foreclosure.
Julie Shaw/Staff
Hank and
Marie Frisby in March 2018 in their Philadelphia apartment, where they
moved after having to sell their Montgomery County house.
They sold the house in May, then moved to the River Park section of Philadelphia.
Marie
Frisby, 70, said she has seen no indication of how Byars spent her
husband’s pension checks, totaling $80,000 a year, to his benefit —
except once, when she bought a stair lift for him at the Wyncote house.
She also said Byars wouldn’t let her see her husband’s bank statements.
“We had no charges about how much she paid anybody, just her fees on what she charged us to do for us,” she said.
Concerned,
she had filed a petition in court to have Byars removed as guardian,
contending Byars was failing to pay her husband’s bills. With the help
of a lawyer, Diane Zabowski, the Frisbys got Byars replaced as guardian
in June.
State
Sen. Art Haywood, the Democratic minority chair of the Aging and Youth
committee, said Thursday that Marie Frisby will be meeting April 5 with a
staffer in his office to see if there is any recourse for her husband.
Haywood, a former Wyncote neighbor of the Frisbys, said he found it
“outrageous” that they had to sell their home.
Haywood,
who represents parts of Montgomery County and Philadelphia, said his
staff is looking into the process of how guardians are appointed and
removed.
‘My mom is not a prisoner’
Vuong’s
son, Hue Quach, experienced similar outrage. On May 26, 2016, Byars was
appointed Vuong’s guardian. A week later, she transferred Vuong, then
73, to a Delaware County nursing home without telling her son.
Courtesy of family
Nu Vuong
“Not
only did she put my mom in this [nursing home] without telling me, she
prohibited me from going in and seeing my mom” without Byars’
permission, he said in an interview.
Quach
said his mother cried when he was allowed to visit her because no one
in the nursing home could understand her — she speaks Vietnamese and
Chinese.
He said he told Byars: “‘My mom is not a prisoner. She did nothing wrong.'”
Quach
then petitioned the court to be his mother’s guardian. At a July 2016
hearing, Judge George Overton appointed Quach co-guardian. Quach then
moved his mother to a South Jersey nursing home that has staff and
residents who speak Chinese.
Byars has since been removed from that case — and the others in surrounding counties.
The
final two removals came March 20 in Delaware County. The Orphans’ Court
clerk there, Mary Walk, said the office began reviewing Byars’ cases
after learning about her removals in other counties, but found no
evidence of malfeasance in the two cases.
At
the February hearing, Carrafiello, the Philadelphia Orphans’ Court
administrative judge, had said he was unaware of any malfeasance in
Byars’ caseload in his court. But he stripped her from the cases because
he concluded she was no longer up to the task of being a guardian.
Montgomery County officials declined to discuss why she was removed from cases there.
Calls for improvement
Unlike 18 other states, Pennsylvania does not require professional guardians to undergo criminal background checks.
A state Supreme Court Elder Law Task Force had
in November 2014 recommended that all guardians be required to undergo
criminal background checks in a wide-ranging report that examined
problems in the guardianship system, issues of elder abuse and neglect,
and access to the justice system for elders.
That decision would fall to the state’s Supreme Court justices. The court’s Orphans’ Court Procedural Rules Committee at
an April 20 meeting will be considering the issue of instituting
background checks, said Northampton County Orphans’ Court Judge Emil
Giordano, a committee member. His county already bars felons from
serving as professional guardians.
State Rep. Mark
Gillen (R., Berks) said in a March 23 interview that he soon would
introduce a bill requiring criminal background checks for prospective
guardians and prohibiting felons from serving.
Other legislators
also have been trying to improve the system. State Sen. Stewart
Greenleaf (R., Montgomery), chairman of the Judiciary Committee, last
year reintroduced a bill that would, among other things, require court
approval for any guardian fees.
Keelin S. Barry, a
Philadelphia lawyer who served on the task force and whose office
provides guardianship and elder law services, said “there is a huge
shortage” of people willing to serve as guardians, but a great need.
“The elderly population
has exploded,” said Barry, who was appointed to replace Byars as
guardian for Hank Frisby. “And people who in the past would have taken
care of their older family member, now have moved across the city or
across the country and are not able to take care of that person
anymore.”
OGDEN — A woman with a history of retail theft, forgery and crimes
against the elderly or disabled has been charged with committing similar
crimes at an Ogden nursing home, according to the Weber County District Attorney.
Court records show Mary Olwyn Booth, 61, was charged Aug. 28 with
six counts of exploitation of a vulnerable adult, all third-degree
felonies; unlawful acquisition, possession or transfer of a financial
transaction card, a third-degree felony; and four counts of unlawful use
of a financial transaction card, a Class B misdemeanor.
Booth was hired Feb. 1 by Crestwood Rehabilitation and Nursing,
a nursing home for the elderly at 3665 Brinker Ave., court documents
say. Booth worked in the salon and provided hair care services to the
residents, who would pay her through trust accounts — the individual
funds managed for them by the facility’s administrative staff.
Shortly after being hired, Booth requested a Square credit card reader to accept payments from residents or family members who wanted to pay her directly, court records say.
Booth was supposed to turn in a log sheet of services she’d
provided weekly in order to be paid from the trust accounts, but
Crestwood did not require her to account for payments processed with the
Square card reader, charging documents say.
Questions were raised, court documents say, when Booth allegedly
turned in a log sheet May 6 showing all five residents to whom she’d
provided salon services wanted to tip her either $5 or $10 — including a
resident described as “non-verbal.”
A staff investigation revealed the residents, “four of whom are
very much alert and would be able to articulate their desire to give
Mary a tip,” had their wishes misrepresented by Booth and either hadn’t
offered a tip or asked to tip $1, court documents say.
Further investigation by Utah Adult Protective Services alleged
Booth unlawfully used a resident’s credit card information to deposit
money to her own bank account on at least four occasions, totaling
$213.75 in unauthorized charges.
Reached by phone, the manager at Crestwood Care Center declined to comment on the investigation.
Court records show Booth has prior convictions in Utah for similar crimes:
Last August, Booth was charged with retail theft and theft by
deception in Salt Lake County for making fraudulent returns at a
Nordstrom Rack store totaling $695.33 and stealing a $300 pair of boots.
She pleaded guilty to an amended charge of attempted retail theft, a
Class A misdemeanor, and was placed on 18 months probation.
In September 2002, Booth was charged with eight counts of forgery, a
third-degree felony. She pleaded guilty to three of the counts. Records
show she was ordered to serve probation after 90 days in jail.
In July 2002, Booth was charged with exploitation of a disabled or
elderly adult, a third-degree felony. She pleaded guilty and was
sentenced to 36 months probation.
Booth is being held in Weber County Jail on $39,000 bail and is next scheduled to appear in court Aug. 31.
