IN THE MATTER OF HELEN HUGO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

A-1816-13T2

IN THE MATTER OF HELEN HUGO.

____________________________

April 24, 2015

Submitted February 2, 2015 Decided

Before Judges Sabatino and Simonelli.

On appeal from the Superior Court of New Jersey, Chancery Division, General Equity Part, Atlantic County, Docket No. 106733.

Kenneth P. Martin and Barbara Martin, appellants pro se (Thomas P. Lutz, on the brief in A-5513-11; Kenneth P. Martin and Barbara Martin, on the pro se brief in A-1816-13).

James F. Ferguson, Atlantic County Counsel, attorney for respondent Atlantic County Adult Protective Services in A-5513-11 and County of Atlantic and Meadowview Nursing Home in A-1816-13 (James T. Dugan, Assistant County Counsel, on the briefs).

Thomas C. Haynes, attorney for respondent Helen Hugo, has not filed a brief.

PER CURIAM

In these back-to-back appeals,1 appellants Barbara Martin (Barbara) and her husband, Kenneth P. Martin (Kenneth),2 challenge the May 29, 2012 Probate Part judgment of incapacity, which adjudged Barbara's elderly aunt, Helen Hugo,3 an incapacitated person incapable of governing herself and managing her affairs and appointed the Public Guardian for Elderly Adults of New Jersey (the public guardian) as general guardian over her person and property (the first appeal). Appellants also appeal from December 5, 2013 order, which dismissed their complaint seeking visitation with Hugo and a determination that she had regained her mental capacity (the second appeal). For the following reasons, we affirm.

I.

This matter, specifically the Martins' conduct, has a disturbing history. We will not discuss their conduct in detail, but instead rely on the record and findings made by Judge William C. Todd, III in his comprehensive May 29, 2012 oral opinion. We focus on that part of the record relevant to the discrete issues raised in this appeal.

Barbara is the daughter of Hugo's sister, Betty Pater. Prior to Pater's death in September 2010, she was Hugo's power of attorney (POA). Barbara became Hugo's POA after Pater died.

On July 14, 2011, a bank reported to the Atlantic County Adult Protective Services (APS) that it filed claims on Hugo's behalf, asserting that checks from her checking account had been stolen, forged, and cashed. The bank sent APS copies of six checks that totaled $6930. Of the six checks, five were dated after Pater's death, five were payable to Barbara, one was payable to Pater, four bore Hugo's forged signature, two bore Pater's forged signature, and one was endorsed by Pater, one by Pater and Barbara, and three by Barbara. It was not clear who endorsed the sixth check.

During a July 18, 2011 interview with an APS supervisor, Hugo became visibly distraught when shown the checks. She denied that she or Pater signed the checks and said that Barbara had an extensive criminal background and spent time in jail, and she wanted Barbara removed as POA. Hugo also claimed that Barbara was mistreating her and asked for help managing her finances. Concluding that Hugo was a vulnerable adult in need of protective services, APS filed a petition for protective services.

On July 21, 2011, the court appointed a temporary guardian. Hugo was thereafter placed in respondent Meadowview Nursing Home (Meadowview), a nursing home facility owned by the County of Atlantic (County). The Martins were eventually barred from entering Meadowview and contacting Hugo.

A psychiatrist initially examined Hugo and determined that she suffered from dementia, was incompetent and unable to manage her affairs, and required in-home services, but, nevertheless, was capable of attending a hearing. Hugo's treating psychiatrist subsequently examined her and determined that she suffered from dementia, was incompetent and unable to manage her affairs, her ability to concentrate, memory and knowledge of assets were poor, her self-awareness was poor to fair, and she lacked the ability to plan for the future. The psychiatrist concluded that Hugo required nursing home services and was not capable of attending a hearing.

In September 2011, APS filed a complaint for guardianship, identifying Barbara as Hugo's next-of-kin. The court continued the temporary guardian's appointment and also appointed an attorney to represent Hugo during the guardianship proceedings.

Barbara filed an answer and verified cross-complaint, requesting, in part, that she be appointed as Hugo's limited guardian. Kenneth was not named in the guardianship complaint, nor did he file any pleadings. He merely supported Barbara's request for to be appointed as Hugo's limited guardian.

In the verified cross-complaint and a supporting certification, Barbara stated, falsely, that she did not have a criminal background. However, she had several criminal convictions, including convictions for fraud, wire fraud, grand theft and resisting arrest, and was sentenced to both federal and State terms of incarceration. Barbara declined to testify at the guardianship trial, invoking her Fifth Amendment4 right against self-incrimination, withdrew her cross-complaint, and no longer sought to be appointed as Hugo's limited guardian.

Prior to the guardianship trial, Barbara requested that Hugo be present during the trial. Barbara did not request a jury trial. Kenneth requested a jury trial, which the trial judge denied for lack of standing under N.J.S.A. 3B:12-24.5 The Martins also asserted that Hugo herself requested a jury trial in an April 10, 2012 handwritten note addressed to "To whom it may concern," and that Hugo also asked to be present during the trial in an April 24, 2012 handwritten note addressed to Judge Todd. However, Hugo was represented by a temporary guardian and court-appointed attorney, who expressly waived a jury trial. The attorney also advised Judge Todd that he had met with Hugo prior to the trial and she said she did not want a jury trial or to testify at the trial.

The Martins' attorneys consented to Judge Todd conducting an in camera interview of Hugo rather than having her present during the trial. The Martins did not object to this procedure after their attorneys withdrew from the case. During the interview, Hugo indicated that she did not independently write the notes requesting a jury trial or to be present at trial, but merely copied what Kenneth told her to copy and did not recall what she wrote or what it was about. She also told the judge that she was comfortable at Meadowview and that Barbara had a criminal background and could not be trusted with her money. The judge determined that Hugo did not request a jury trial.

On the first day of trial, the Martins' attorneys advised Judge Todd that they may seek to be relieved as counsel, citing concerns their clients may elect to testify and present perjurious testimony. The trial began with APS's proposed geriatric psychiatric expert witness.6 Barbara's attorney objected to the witness testifying as an expert based on his patient-physician relationship with Hugo. Kenneth's attorney objected because the witness had never been qualified as an expert. Following voir dire, the judge found the witness was well-qualified to testify as an expert in the area of geriatric psychiatry.

The Martins' attorneys extensively cross-examined APS's expert as well as an APS fact witness. They also presented the Martins' own expert. On the morning of the second day of trial, the attorneys filed motions to be relieved as counsel. Following the attorneys' arguments and sworn testimony by the Martins, the judge granted the motions, finding as follows, in pertinent part

[The attorneys] have a legitimate concern that if their clients testify or . . . continue to testify about issues in this case [the attorneys] . . . will be involved in inappropriate conduct because the testimony may be perjurious. And I think it is absolutely clear that it would be inappropriate for me to require an attorney to remain involved in those circumstances.

The Martins continued pro se on the second day of trial and extensively cross-examined the APS supervisor who interviewed Hugo in July 2011. Kenneth was represented by a new attorney thereafter.

Finding the testimony of APS's expert more credible than the testimony of the Martins' expert, Judge Todd concluded that Hugo suffered from dementia, was an incapacitated person incapable of governing herself and managing her affairs and was in need of a general guardian. After determining that the Martins were not appropriate to serve as Hugo's guardians, the judge appointed the public guardian over Hugo's person and property and granted the public guardian all powers under N.J.S.A. 3B:12-49, including the power to determine where Hugo would reside and who could visit or contact her. The judge memorialized his decision in a May 29, 2012 order.7 On July 12, 2012, the Martins filed the first appeal.

Thereafter, on December 25, 2012, Barbara assaulted a Meadowview nurse while she and Kenneth were attempting to remove Hugo from Meadowview. Barbara was charged with simple assault, N.J.S.A. 2C:12-1(a), and disorderly conduct, N.J.S.A. 2C:33-2(a)(1).8 She pled guilty to an amended charge of an ordinance violation. The public guardian determined based on this incident that it was in Hugo's best interests to continue prohibiting the Martins from visiting or having contact with her.

On October 10, 2013, the Martins, represented by new counsel, filed an order to show cause and verified complaint, seeking a determination pursuant to Rule 4:86-7 that Helen had regained her mental capacity and no longer required confinement in Meadowview, and seeking visitation pursuant to N.J.S.A. 30:13-3 and -5. They submitted three handwritten notes allegedly written by Hugo requesting visitation with them, but no affidavit from someone who had personal knowledge that she no longer was incapacitated or had returned to partial capacity, as required by Rule 4:86-7. The County and public guardian opposed the application.

In a November 22, 2013 oral opinion, Judge Raymond A. Batten found that the Martins failed to submit the required affidavit. Rather, they merely alleged, without any competent support, that Hugo never had any mental incapacity at all and only abused alcohol, an allegation that Judge Todd had clearly rejected.

Judge Batten determined that the guardianship judgment granted the public guardian absolute authority over Hugo's person and property, including the power to make visitation decisions. The judge also found that under N.J.S.A. 3B:12-56,9 the Martins lacked standing to challenge the public guardian's visitation decision, and under N.J.S.A. 3B:12-57, the public guardian had sole authority over matters relating to Hugo's person. The judge also determined there was no "right of access" between a niece and aunt. Accordingly, the judge dismissed the complaint with prejudice. The second appeal followed.

II.

In the first appeal, the Martins contend that Judge Todd erred in: (1) rejecting Hugo's request for a jury trial and interviewing her in camera; (2) failing to have Hugo present during trial to confront witnesses whose testimony resulted in the judgment of incapacity; and (3) allowing their attorneys to withdraw from the case during trial. The Martins also contend that because APS's expert was unqualified and Hugo did not waive the patient-physician privilege, the judge erred in permitting him to testify.

We discern no merit whatsoever in any of these contentions. Kenneth lacked standing to request a jury trial, and the Martins lack standing to challenge the denial of Hugo's right to a jury trial or to be present at trial. See N.J.S.A. 3B:12-24 (authorizing only the alleged incapacitated person, or one acting on her behalf, to request a jury trial); N.J.S.A. 3B:12-24.1(e) (authorizing only the plaintiff and the court-appointed attorney to waive the alleged incapacitated person's presence at trial); see also N.J.S.A. 3B:12-24.1(a) (authorizing the general guardian to "exercise all rights and powers of the incapacitated person.")

Even if the Martins had standing to challenge the denial of Hugo's right to be present during the trial, any error was invited. See N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 340 (2010). The Martins' attorneys consented, and the Martins did not object, to Judge Todd conducting an in camera interview of Hugo rather than have her present during the trial.

Further, any alleged error was harmless. R. 2:10-2. Hugo's temporary guardian and court-appointed attorney were present throughout the trial and cross-examined all adverse witnesses. In light of the overwhelming credible evidence of Hugo's incapacity, it is unlikely that her presence during trial would have produced a different result

The Martins also lacked standing to assert the patient-physician privilege to bar APS's expert. See N.J.R.E. 506(a) (the "holder" of the patient-physician privilege is the patient, and in cases where the patient is incompetent, the holder is the patient's guardian). Even if they had standing, they could not have invoked the privilege in this guardianship matter. See N.J.R.E. 506(c) ("[t]here is no privilege . . . as to any relevant communication between the patient and [her] physician . . . upon an issue of the patient's condition in an action to commit [her] or otherwise place [her] under the control of another or others because of alleged incapacity").

The motions of the Martins' attorneys to be relieved as counsel were properly granted. The attorneys sought to withdraw because their clients indicated they would testify at trial and the attorneys believed the testimony would be perjurious. The Rules of Professional Conduct permit attorneys to withdraw from representing a client when "the client persists in a course of action involving the lawyer's services that the lawyer reasonably believes is criminal or fraudulent." R.P.C. 1:16(b)(2). After hearing Barbara's and Kenneth's testimony, Judge Todd found that the attorneys' concerns were legitimate and that compelling them to continue their representation would be inappropriate. Under the circumstances, and given the Martins' conduct throughout this matter, Judge Todd did not abuse his discretion in granting the motions. See Jacobs v. Pendel, 98 N.J. Super. 252, 255 (App. Div. 1967).

Nor did Judge Todd abuse his discretion with respect to APS's expert. Koseoglu v. Wry, 431 N.J. Super. 140, 159 (App. Div.), certif. denied, 216 N.J. 4 (2013). The expert clearly possessed qualifications that rendered him well-qualified to testify as an expert in the area of geriatric psychiatry. For all of these reasons, we affirm the May 29, 2012 judgment of incapacity.

III.

In the second appeal, the Martins rely on Rule 4:23-5(a)(1) and (2) to argue that Judge Batten should have dismissed the complaint without prejudice. These Rules, however, do not apply here; they only apply to a dismissal with or without prejudice for failure to make discovery.

In any event, the contention lacks merit. As Judge Batten correctly found, the Martins presented no evidence whatsoever that Hugo had regained her mental capacity. As for visitation, given the Martins' conduct throughout this matter, including their efforts to manipulate Hugo, we do not hesitate to sustain the public guardian's visitation decision, which, in our view, is clearly in Hugo's best interest.

Affirmed.

1 We consolidate these appeals for the purposes of this opinion only.

2 We use first names for ease of reference. We shall sometimes refer to Barbara and Kenneth collectively as the Martins.

3 Helen was eighty-one years old when this litigation commenced in 2011.

4 U.S. Const. amend V.

5 N.J.S.A. 3B:12-24 provides as follows

In civil actions or proceedings for the determination of incapacity or for the appointment of a guardian for an alleged incapacitated person, the trial of the issue of incapacity may be had without a jury pursuant to Rules Governing the Courts of the State of New Jersey, unless a trial by jury is demanded by the alleged incapacitated person or someone on his behalf.

6 This individual was not the same psychiatrist who had previously examined Hugo.

7 Prior to the judge's decision, the Martins' filed a petition for a writ of habeas corpus in federal court, which they had prepared and had Hugo sign, despite the fact that she had a court-appointed temporary guardian and court-appointed attorney. The petition was dismissed.

8 Barbara filed a charge of assault against the nurse, which was dismissed.

9 N.J.S.A. 3B:12-56 provides as follows, in pertinent part

The guardian of the ward shall exercise the ward's rights in a manner consistent with the wishes of the ward except to the extent that compliance with those wishes would create a significant risk to the health or safety of the ward. If the wishes of the ward are not ascertainable with reasonable efforts, the guardian of the ward shall exercise the ward's rights in a manner consistent with the best interests of the ward. . . . If the ward objects to any other decision of the guardian of the ward pursuant to this section, this objection shall be brought to the attention of the Superior Court, Chancery Division, Probate Part, which may, in its discretion, appoint an attorney or guardian ad litem for the ward, hold a hearing or enter such orders as may be appropriate in the circumstances.