My dad's doctor asked me if my dad's history of violent interaction with my mom is persisting. I said yes but nothing new except he's more erratic. So the doctor called APS which he had never done before despite having much more grizzly info. I thought nothing of telling him because it's been discussed. plenty of times before.
A few days later my mom gets a surprise visit from APS. She was in total shock.
She wants nothing to do with this and wants the case closed. She's been dealing with my dad and various professionals for years and she resents this forced interference (though she would welcome so effective help which seems to be impossible to get). My mom is 83 but she is in full possession of her mental abilities. She can, and has, called 911 before. She feels stressed by my dad but not frightened or threatened. Does she have any grounds for getting this case closed or at least having some voice in how it is carried out? Right now, they're telling he my dad will be physically taken and she has no voice. It almost seems like they are telling he that simply because she is elderly, she is subject to what they decide is best in this situation. Can that be?
My mom is 100% cognizant - she just had a brain scan because of a nerve issue and she has zero cognitive issues.She doesn't want THIS - she wants away from him - just not like this. She's already been speaking to a divorce attorney. So, I feel like I'm doing the right thing to help her find the info she wants. It's not a simple case of a defenseless little lady being abused.
"For non elders, police investigate alleged assault complaints, using hard evidence (such as hospital reports), visual observation, eyewitness accounts, past reported incidents, criminal history of the defendant, etc. A question I won't try to answer b/c I don't know current law well enough is whether or not they can bring an assault charge if the victim refuses to testify."
The police (town or state) can DEFINITELY file an assault charge...the charge would look like this:
Boston Police Plaintiff
--patient name-- Defendent
Charge: Simple assault
Therefore you mom doesn't have to be the one to press the charges. The police can do this if they witness the assault, if they witness the result of an assault (like an injury) or if there is evidence from a doctor or hospital of evidence of an assault.
They do have a choice as to whether or not they will press charges when an assault occurs. Oftentimes, if the defendant has diminished capacity, the police will decide that they will not be able to get a conviction, so they don't bother with the charge.
If your mother refuses to cooperate when charges are filed, that is certainly her right. They absolutely CANNOT force her to. They can try to convince her to, but ultimately it is her choice whether to testify or not. But keep in mind that if you refuse to cooperate, and there is another incident in the future, the authorities may not step in to help because they don't believe they have the support of the victim.
This is a toxic situation as Phoenix Daughter has stated. It doesn't matter if they both participate in the physical fights or if only one does. Your mom is vulnerable, and so is your dad (no matter who the perpetrator is). They should be separated for their own safety.
Angel
These are the issues as I see them, based on limited experience as a court reporter in a prosecutor's office and even more limited experience working for criminal law attorneys.
1. For non elders, police investigate alleged assault complaints, using hard evidence (such as hospital reports), visual observation, eyewitness accounts, past reported incidents, criminal history of the defendant, etc. A question I won't try to answer b/c I don't know current law well enough is whether or not they can bring an assault charge if the victim refuses to testify.
2. With older people, the additional element of possible mental clarity can be an issue. Evidence would be similar. If the victim refuses to testify, police would look to APS' visual observations, reports by mandated reporters, etc.
In this case, there apparently is a documented history of some level of abuse. That would be factored into any decision.
3. The doctor who reported to APS did so based on your advice and her/his knowledge of past history of abuse. It's not clear whether or not the doctor actually witnessed signs of abuse; if so, they would be documented in her/his files, and could be relied on by APS and law enforcement.
4. Your mother (although I wouldn't agree that it's in her best interest) could refuse to cooperate, but that could also run the risk of more aggressive intervention by APS, perhaps under the assumption that she's not mentally cognitive enough, or too frightened, to be truthful about the abuse.
5. Whether APS could proceed with requesting charges from law enforcement might depend on medical reports and the doctor's personal observations as well as the past history. It might also attempt to discern if treatment (which you state is hard to get) has been available for your father. That could be a mitigating factor.
6. The issue of your mother's cooperation, and her rights, could become subordinate to overriding physical evidence from past reports, medical files, and/or observations from APS.
7. This is where your question really enters murky territory b/c of legal obligations to testify. If she won't testify or cooperate in the investigation, I do NOT know whether or APS or law enforcement could force her to with threats of action against her, based on past history, and on the assumption that your father hasn't changed.
Pressure can be applied, but whether or not laws exist to force her to cooperate is something a criminal attorney would know.
I'm sure there will be posters to come who definitively advise on this one way or another, but remember, her rights turn on state and federal laws, case law & precedents, and probably on the attitude, existing and past documentation, and approach of local APS and law enforcement.
And unless an attorney responds, err on the side of caution and get a legal opinion so you really know what rights your mother has.
HOWEVER, this is what I would do to try to turn the situation around. Agree that there have been past issues but that "effective help" as you describe hasn't been available. That help could have changed your father's behavior, but it was lacking.
So, ask APS and law enforcement if they become involved to help get that effective help. No just "see a therapist, get anger management counseling, etc.", but specific recommendations for help, such as a program at a particular counseling facility - something concrete.
Sorry for being long winded, but from a legal perspective I don't see this as a simple yes or no as to her rights.