Matter of Candace C.

[*1] Matter of Candace C. 2010 NY Slip Op 50823(U) [27 Misc 3d 1221(A)] Decided on May 11, 2010 Supreme Court, Dutchess County Pagones, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through May 11, 2010; it will not be published in the printed Official Reports.

Decided on May 11, 2010
Supreme Court, Dutchess County

In the Matter of the Guardianship of Candace C., Pursuant to Mental Hygiene Law §81



0615/2010



GENOVEFFA FLAGELLO, ESQ.

MENTAL HYGIENE LEGAL SERVICES

Attorneys for CANDACE C.

One Civil Center Plaza, Suite 305

Poughkeepsie, New York 12601

CARLA D. GLASSMAN, ESQ.

GLASSMAN & BROWN, LLP

Attorneys for FAMILY SERVICE

SOCIETY YONKERS, Former Guardian of

the Property and Co-Guardian of

the Person for CANDACE C.

99 Court Street

White Plains, New York 10601

HEATHER C.

Former Co-Guardian of the Person for

CANDACE C.

40 Forbus Street

Poughkeepsie, New York 12601

STELLA ISAZA, ESQ.

Former Temporary Co-Guardian of the Person for

CANDACE C.

9 Vassar Street, Suite 26

Poughkeepsie, New York 12601

LEONORA SMART

Former Temporary Co-Guardian of the Person for

CANDACE C.

SUSAN BISCEGLIA-SULLIVAN

Successor Guardian of the Person for

CANDACE C.

263 New Hackensack Road

Wappingers Falls, New York 12590

JOHN K. GIFFORD, ESQ.

Successor Guardian of the Property

Management Needs of CANDACE C.

P.O. Box 112

85 Civic Center Place, Suite 101

Poughkeepsie, New York 12601

PATRICIA L. MORO, ESQ.

Successor Court Examiner

P.O. Box 573

Pleasant Valley, New York 12569

James D. Pagones, J.

This petition by Candace C. ("petitioner") pursuant to Mental Hygiene Law §81.35 to remove Heather C. ("respondent") as co-guardian of the personal care needs of the petitioner and to evict the respondent from premises known as 40 Forbus Street, Poughkeepsie, New York, is resolved as follows.

BACKGROUND

The respondent is the mother of the petitioner. She was appointed to serve as co-guardian of the personal care needs of the petitioner, along with Family Services Society of Yonkers ("FSSY") in Findings of Fact, Conclusions of Law and Judgment [Supreme Court, Westchester County, Index No.7884/04], dated February 1, 2005. FSSY was also appointed sole guardian of the property management needs.

In 2005, FSSY obtained permission to purchase real property on behalf of Candace C. The property is located in the City of Poughkeepsie, Dutchess County, and is known as 40 Forbus Street. Title was acquired on June 1, 2005. The deed was recorded on June 13, 2005. Title is held by Family Services Society of Yonkers as Guardian of the Property of Candace C. (petitioner's exhibit 4).

The dwelling is a two family structure. The respondent resides in the downstairs apartment and the petitioner in the upstairs apartment. There are also a basement and attic.

On or about October 26, 2009, FSSY applied to the Supreme Court, Westchester County, [*2]for an order discharging it as co-guardian of the personal care needs and as guardian of the property management needs. That application and the case file were transferred to Dutchess County Supreme Court when the undersigned was assigned to preside over Article 81 cases in Dutchess County commencing January 4, 2010.

On January 13, 2010, this court issued an order granting the petition of FSSY upon filing and obtaining approval of its final accounting. This court further directed that FSSY continue to serve as guardian of the property for Candace C. until relieved.

This court, in the same order, appointed attorney Stella Isaza and Leonora Smart, an employee of FSSY, to serve as temporary co-guardians of the person of Candace C. at the request of her counsel. The appointment of temporary co-guardians of the person was made necessary as a result of the FSSY application to withdraw and the fact that an order of protection against the remaining co-guardian, Heather C., the respondent, had been obtained by Candace C. against her in Dutchess County Family Court. The order of protection directs Heather C. to, among other things, stay away from Candace C. and to refrain from communication or any other contact by mail, telephone, e-mail, voice-mail or other electronic or any other means.

The proceeding for removal pursuant to MHL §81.35 was initiated by order to show cause, dated March 10, 2010. A hearing was conducted on April 30, 2010 and May 3, 2010. Petitioner was represented by counsel. The respondent was self-represented. The court previously denied the respondent's several requests for the assignment of counsel, indicating that neither MHL §§81.10 or 81.35 authorize such an appointment. The court did review the respondent's rights and obligations as a self-represented party on the record prior to the commencement of the hearing.

THE HEARING

The certainty of words always depends upon the integrity of the speaker. "For the ear tests words, as the mouth tastes food." JOB 34:3. I had the unique opportunity to observe the testimony of the witnesses. In so doing, I considered the following factors in weighing their testimony: the interest or lack of interest of the witness in the outcome of the proceeding, potential bias or prejudice on the part of the witness, the age, the appearance, sincerity, demeanor, the manner in which the witness gave testimony, the opportunity the witness had to observe the facts about which he or she testified and the probability or improbability of the witness' testimony when considered in the light of all of the other evidence in the proceeding. (See PJI, Vol. 1A, 1:8.) I resolve all issues of credibility and reliability in favor of the petitioner.

The Court has also taken judicial notice of undisputed court records and files. (Kingsbrook Jewish Medical Center v. Allstate Insurance Company, 61 AD3d 13, 20 [2d Dept. 2009]; Khatibi v. Weill, 8 AD3d 485 [2d Dept. 2004].)

The evidence indicates that the petitioner, now 29, and the respondent have had a tumultuous relationship of longstanding duration.

The record indicates that in 1996, the respondent was the subject of a Child Protective Proceeding brought by the Dutchess County Department of Social Services pursuant to Family Court Act Article 10. The petitioner was the child who was the subject of that proceeding. The respondent admitted to using excessive corporal punishment on the petitioner that placed her at risk of harm and thereby having neglected her. The order of fact-finding and disposition, along with a one year order of protection, both dated August 1, 1996, imposed terms and conditions [*3]upon the respondent's behavior (Family Court File #00595).

The record indicates that the respondent was convicted of grand larceny in the third degree, a D felony (Penal Law §155.35) on January 22, 1997. Five years probation was imposed. One of the conditions was an order to make restitution plus pay a surcharge for a total of $7,031.85. On or about April 26, 1999, the respondent was charged with violating her terms of probation on February 24, 1999. As a result, the respondent's probation was terminated, and according to the respondent's testimony and petitioner's exhibit in evidence, she served six (6) months in the Dutchess County Jail (petitioner's exhibit 5). On May 4, 1999, the respondent executed a confession of judgment for the unpaid restitution plus costs in the amount of $6,473.99 (petitioner's exhibit 6). On July 29, 2004, a judgment relating to a New York State Surcharge and Crime Victim Fee in the amount of $160.00 was entered against the respondent in Poughkeepsie City Court (petitioner's exhibit 7).

On December 7, 2009, the respondent consented to the one year order of protection previously mentioned by this court. The petitioner's sister-in-law, Alexandria C., also consented to a one year order of protection as part of the same proceeding (Family Court Files #595 and #45945; petitioner's exhibit 1).

The witnesses at the hearing confirmed the ongoing stress and tension between the petitioner and the respondent. There was also unchallenged testimony that the petitioner and the respondent frequently smoke marijuana and consume alcohol to excess. Two witnesses employed by FSSY offered credible testimony concerning the respondent's failure to cooperate as co-guardian to promote the petitioner's care, welfare and treatment planning. Lisa Marville, a Social Worker employed by FSSY, gave four (4) reasons for its application to be relieved as co-guardian of the person and guardian of the property: 1) the frequency of conflict between the petitioner and the respondent; 2) the distance for staff to travel to Poughkeepsie, New York; 3) poor communication with the respondent; and, 4) the inability to work with the respondent (see also, petitioner's exhibit 3).

Attorney Isaza is not certified as an Article 81 guardian at this time. She expressed a willingness to continue as co-guardian of the person on a pro bono basis.

Evidence adduced at the hearing established that Leonora Smart, the temporary co-guardian of the person and employee of FSSY, and the respondent dislike each other immensely.

Lillian Hamilton is a friend of the respondent. She testified that the petitioner was often disrespectful to her mother and used profanity when addressing her. The witness also stated that the petitioner customarily would resort to the use of profane words whenever her desires were not met. Gary Johnson testified that he is the respondent's longtime paramour. Mr. Johnson confirmed that the petitioner and the respondent have a bad relationship.

The respondent denied she physically abused the petitioner. She conceded to having permitted her daughter-in-law, Alexandria C., to reside in the attic of the premises at 40 Forbus Street, even though it is zoned as a two family residence. The respondent claimed that individuals of unsavory character frequently occupy the premises with the petitioner's consent over respondent's objections.

The respondent is not currently employed. Her last employment was in 2004. During the latter part of 2009 until February 2010, she performed babysitting services earning a little over $100.00 per week. The respondent receives $375.00 per month from FSSY to purchase groceries [*4]for the petitioner as part of the co-guardianship. The respondent denied using these monthly funds for her personal use and benefit despite the fact that she has had no steady source of income for almost six years. She testified that groceries are purchased for the petitioner and left at a location in the house for the petitioner to retrieve so as to comply with the extant order of protection. While the respondent acknowledged having monthly telephone and cable bills, she nevertheless refused to disclose how she is able to pay them. The respondent is also the mother of two other adult children, both of whom are incarcerated in the state correctional system.

Jeanine Carpenter has known the respondent all of her life and knows the petitioner through her. She testified to living at 40 Forbus Street for two weeks in either February or March 2010. She witnessed the persistent consumption of alcohol, marijuana and cocaine smoking during that time frame. She identified herself, the petitioner and another individual as participants in these activities. The witness did not observe the respondent mistreat the petitioner during her two week sojourn.

DECISION, ORDER AND JUDGMENT

A guardian is a fiduciary (see, SCPA §103[21]). A guardian's fidelity is owed exclusively to the person for whom he or she is appointed. In the context of Mental Hygiene Law Article 81, the guardian must commit to satisfy either the personal or property management needs, or both, of the incapacitated person in a manner tailored to the individual needs of the person, taking into consideration the personal wishes, preferences and desires of the person, and which affords the person the greatest amount of independence and self-determination and participation in all the decisions affecting the person's life. (MHL §81.01)

The respondent has no proprietary interest in her position as co-guardian of the person (see generally, In re: Conservatorship of Bauer, 216 AD2d 25 [1st Dept. 1995], app dismd 86 NY2d 867 [1995]; app den in part & dismd in part, mo den 87 NY2d 952 [1996].) While the respondent would have been automatically disqualified from serving as a guardian in the Surrogate's Court as a result of her felony conviction in 1997 (SCPA §707[1][d]), Mental Hygiene Law §81.19(a)(1) simply provides that "any individual over eighteen years of age...found by the court to be suitable to exercise the powers necessary to assist the incapacitated person may be appointed as guardian..." It is clear from the file of this matter that the appointing court was aware of the respondent's background and determined, nevertheless, to appoint her as co-guardian of the person.

Mental Hygiene Law §81.35 authorizes the court to remove a guardian "when the guardian fails to comply with an order, is guilty of misconduct, or for any other cause which to the court shall appear just." (In re Guardianship of Dunsmoor, 24 AD3d 1218 [4th Dept. 2005] lv to app den 7 NY3d 704 [2006]; Matter of Arnold O., 226 AD2d 866, 868 [3d Dept. 1996], lv denied 88 NY2d 810 [1996].) The record from the hearing has provided ample evidence that Heather C. has failed to fulfill her co-guardianship responsibilities. Moreover, the continuing hostility between her and the petitioner, together with their chaotic lifestyle, supports removal.

Therefore, that portion of the petition to remove Heather C. as co-guardian of the personal care needs of Candace C. is granted. That portion of the petition to evict Heather C. from 40 Forbus Street, as well as her agents and invitees, is denied without prejudice. Any action relating to occupancy shall abide the decision to act by the successor guardian of the property management needs of Candace C. [*5]

Although Candace C. nominated attorney Stella Isaza and Leonora Smart to serve as temporary co-guardians of the person, this Court, based upon the record at the hearing, determines to exercise its discretion for good cause shown to discontinue the appointment effective immediately (MHL §81.19[3][c]). Attorney Isaza does not normally devote any portion of her practice to Article 81 matters and has had no previous experience in that regard. Leonora Smart has tremendous enmity for Heather C. Finally, neither of these individuals are on the Part 36 guardian eligibility list.

Therefore, the court appoints from the Part 36 eligibility list attorney Susan Sullivan-Bisceglia, 263 New Hackensack Road, Wappingers Falls, New York 12590, (914) 755-0504 to serve as successor guardian of the personal care needs of Candace C. The guardian shall have the same powers as enumerated in the Findings of Fact, Conclusions of Law and Judgment, dated February 1, 2005 and repeated in this Court's Order, dated January 13, 2010.

The court appoints from the Part 36 eligibility list attorney John K. Gifford, P.O. Box 112, 85 Civic Center Plaza, Suite 101, Poughkeepsie, New York 12601, (845) 452-5900, to serve as successor guardian of the property management needs of Candace C. Family Services Society of Yonkers is directed to prepare and file its final accounting within ten (10) days from the date of this decision, order and judgment. Service shall be effectuated upon the successor court examiner.

The court appoints from the Part 36 eligibility list attorney Patricia L. Moro, P.O. Box 573, Pleasant Valley, New York 12569, (914) 582-6002 to serve as successor court examiner.

Neither successor guardian shall be required to complete a training program as required by Mental Hygiene Law §81.39. The filing of a bond, pursuant to Mental Hygiene Law §81.25, as to each successor guardian is waived. Both successor guardians are directed to promptly comply with Mental Hygiene Law Sections 81.26 (Designation of Clerk to receive process), 81.27 (Commission to guardian), 81.30 (Initial report) and 81.31 (Annual report) as each of the cited statutes pertain to their duties and responsibilities.

This court reaffirms in all other respects the Findings of Fact, Conclusions of Law and Judgment, dated February 1, 2005 not otherwise amended by this decision, order and judgment and the court's order, dated January 13, 2010.

Counsel for the petitioner and the respondent are directed to forthwith retrieve the physical evidence introduced at the hearing within ten (10) days of the date of this decision, order and judgment and preserve the same through completion of the appellate process.

The foregoing constitutes the decision, order and judgment of the Court.

Dated:Poughkeepsie, New York

May 11, 2010

ENTER

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

050610 decision,order & judgment