Matter of B.A.M.W. (C.M.W.)

[*1] Matter of B.A.M.W. (C.M.W.) 2014 NY Slip Op 24150 Decided on June 13, 2014 Supreme Court, Dutchess County Pagones, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

Decided on June 13, 2014
Supreme Court, Dutchess County

IN THE MATTER OF THE APPLICATION OF B.A.M.W. A/K/A B.A.M.D. ACCEPTING A GUARDIANSHIP TRANSFERRED FROM ANOTHER STATE OF C.M.W. A MENTALLY RETARDED (OR DEVELOPMENTALLY DISABLED) PERSON, PURSUANT TO NY CLS MEN HYG §83.33



2198/14



THOMAS M. GAMBINO, ESQ.

Attorney for Petitioner

BAW

222 Church Street

Poughkeepsie, New York 12601
James D. Pagones, J.

Petitioner seeks an order, pursuant to Mental Hygiene Law §83.33, accepting transfer of a guardianship from the state of Texas.

In early 2013, amendment to the mental hygiene law was placed before the New York State Assembly via Bill No. A00857-2013. On April 22, 2013, the bill passed the Assembly and was delivered to the New York State Senate. The Senate version of the bill, S2534-2013, identical to A00857-2013, passed the Senate on April 30, 2013. The amendment was approved on October 23, 2013. Effective April 21, 2014, Article 83 was added to the mental hygiene law (see L. 2013, c. 427, §1, eff. April 21, 2014).

The purpose of the amendment is to: "address the issue of jurisdiction over adult guardianships and other protective proceedings, providing a mechanism for resolving multi-state jurisdictional disputes " (see Purpose Section of A00857-2013 and S02534-2013).

A portion of the justification section of the then proposed legislation reads as follows:

"Due to increasing population mobility, cases involvingsimultaneous and conflicting jurisdiction over guardianship are increasing. Adult guardianship jurisdiction issues commonly arise in situations

involving snowbirds, transferred/long-distance care giving arrangements, interstate health markets, wandering, and even the occasional incidence of elderly kidnapping. The process of appointing a guardian is handled in state courts. Often, jurisdiction in adult guardianship cases is complicated because multiple states, each with its own adult guardianship system, may have an interest in the case. Consequently, it may be unclear which state court has jurisdiction to

decide the guardianship issue."

Mental Hygiene Law §83.33, specifically outlines a procedure for a New York State court to accept a guardianship proceeding transferred from another state.

The petition herein, submitted by B.A.M.W. a/k/a B.A.M.D. (hereinafter "BA"), indicates that she is the birth mother and natural guardian of C.M.W. (hereinafter "C"). BA indicates that she currently resides in Poughkeepsie, New York and has been a permanent resident of the State of New York with C since 2012. She was appointed guardian of the person of C in the Probation Court in Tarrant County, Texas on June 18, 2012. BA stated it was her intention to move to New York in her initial report of guardian of the person of C. BA asks this Court to recognize the guardianship order of the Texas court.

MHL §83.33(a) states that:

"To confirm transfer of a guardianship of the person or guardianship of the property transferred to this state under provisions similar to section 83.31 of this article, the guardian of the person or guardian of the property must petition the court in this state pursuant to article eighty-one of this title or article seventeen-A of the surrogate's court procedure act to accept the guardianship of the person or guardianship of the property. The petition must include a certified copy of the other state's provisional order of transfer."

Initially, this Court notes that the current petition does not include a certified copy of a Texas provisional order of transfer of the within guardianship.

MHL §83.33(b) states that:"Notice of a petition under subdivision (a) of this section must be given to those persons that would be entitled to notice if the petition were a petition for the appointment of a guardian of the person or issuance of a protective order in both the transferring state and this state. The notice must be given in the same manner as notice is required to be given in this state."

Here, there is absolutely no indication that the petition was served upon anyone. Those entitled to notice would be those individuals as specifically delineated by MHL §81.07(e) and/or SCPA §1753.

MHL 83.33(c) then states: "On the court's own motion or on request of the guardian of the person or guardian of the property, the person subject to the guardianship of the person or protected person, or other person required to be notified of the proceeding, the court shall hold a hearing on a petition filed pursuant to subdivision (a) of this section."

Upon re-submission of proper papers, as delineated above, this Court must then hold a hearing, in which it may or may not accept the transfer of the guardianship upon consideration of MHL §83.33(d)(1) and (2).

Based upon the foregoing, the petition is dismissed without prejudice, with leave to [*2]renew upon compliance with the aforementioned sections of MHL 83.33.

The foregoing constitutes the decision and order of this Court.

Dated: June 13, 2014

Poughkeepsie, New YorkENTER_______________________________

HON. JAMES D. PAGONES, A.J.S.C.

TO:

THOMAS M. GAMBINO, ESQ.

Attorney for Petitioner

BAW

222 Church Street

Poughkeepsie, New York 12601