Matter of Hytham M. G.

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[*1] Matter of Hytham M. G. 2016 NY Slip Op 51113(U) Decided on April 14, 2016 Surrogate's Court, Kings County L¢pez Torres, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 14, 2016
Surrogate's Court, Kings County

Proceeding for the Appointment of a Guardian for Hytham M. G. Pursuant to SCPA Article 17-A


Nigar Bek, Esq.counsel for petitioner142 80th Street

Brooklyn, NY 11209Natalie Chin, Esq. guardian ad litem Advocates for Adults with Intellectual and Developmental Disabilities Legal Clinic Brooklyn Law School One Boerum Place, 3rd Floor

Brooklyn, NY 11201
Margarita Lopez Torres, J.

This proceeding is brought by Cheryl G. (the petitioner) to be appointed guardian of the person of Hytham M. G. (Hytham or the respondent) pursuant to Article 17-A of the Surrogate's Court Procedure Act (SCPA). The petitioner, who is respondent's mother, also seeks the appointment of respondent's sister, Amirah G. (Amirah), as standby guardian, respondent's brother, Hassan G. (Hassan), as first alternate standby guardian, and respondent's brother-in-law, Amir A., as second alternate standby guardian. A guardian ad litem was appointed for the respondent by order issued September 2, 2015.

In support of her petition, petitioner submits the requisite certifications [FN1] from a physician, [*2]Neil Smote, dated September 9, 2014, and a licensed psychologist, Edith Tyson, dated December 17, 2014 (together, the certifications). Their certifications opine, in a conclusory manner, that Hytham has "an impaired ability to understand and appreciate the nature and consequences of decisions, which result in respondent being incapable of managing himself/herself (sic) and/or his/her (sic) affairs by reason of developmental disability" and "mental retardation [FN2] ." Petitioner also submits several reports, including i) a psycho educational evaluation from the New York City Department of Education conducted October 23, 2013, ii) a psychological evaluation conducted October 31, 2013, iii) a psychosocial update dated January 29, 2014, iv) a psychiatric update conducted June 16, 2014, v) an exit summary from the New York City Department of Education (DOE) dated February 6, 2014, vi) a social assessment conducted April 15, 2014, and vii) a comprehensive psychosocial evaluation conducted March 17, 2015 (collectively, the reports). Testimony was presented by the petitioner, who was represented by counsel, and Hytham, during hearings held on July 28, 2015, and November 6, 2015. At the conclusion of the hearings, petitioner's counsel submitted a post-hearing memorandum of law in further support of the petition.

The guardian ad litem interviewed individuals who have played a significant role in Hytham's life, such as his parents, the petitioner herein and M.G.; his sister, Amirah; his brother, Hassan; his aunt, Paula G.; his Medicaid Service Coordinator, Carlos Perez; his former job coach at the League School, Ms. Lobasco; the physician and psychologist who completed the certifications, Neil Smote and Edith Tyson; and his vocational instructor, Mary Garcia. The guardian ad litem also submitted documentary evidence provided by Mr. Perez, consisting of a psychosocial evaluation dated August 4, 2015, from Contemporary Guidance Service (CGS) and an Individualized Service Plan dated October 15, 2014 (2014 ISP). At the conclusion of her investigation, the guardian ad litem submitted a report dated November 2015, and a post-hearing submission dated February 1, 2016 (together, the GAL reports), containing her findings and recommendations, including her recommendation that Hytham does not currently require the appointment of a 17-A guardian. The guardian ad litem reports that Hytham has capacity to make decisions and is capable of managing his affairs with the support of his family and community. The GAL reports recommend that "to further achieve the goals articulated by the petitioner, which include caring for Hytham medically, financially and personally after his parents pass away, a variety of legal and nonlegal instruments may be considered such as a Power of Attorney [*3]and health care proxy."

Article 17-A of SCPA governs guardianship of persons who are intellectually or developmentally disabled. An intellectually disabled person is defined by SCPA 1750 as one who is permanently or indefinitely incapable of managing oneself and/or one's own affairs because of an intellectual disability. The condition must be certified by a licensed physician and a licensed psychologist or by two licensed physicians, one of whom has familiarity with or knowledge of the care and treatment of persons with intellectual disabilities. It must appear to the satisfaction of the court that the best interests of such person will be promoted by the appointment of a guardian. SCPA 1754 (5).

A developmentally disabled person is defined by SCPA 1750-a as one who has an impaired ability to understand and appreciate the nature and consequences of decisions which result in one's incapacity to manage oneself and/or one's own affairs. The developmental disability must be permanent or indefinite and attributable to cerebral palsy, epilepsy, neurological impairment, autism, traumatic brain injury, or any condition found to be closely related to intellectual disability. The condition must have originated before the age of 22, except for traumatic brain injury which has no age limit. As with SCPA 1750, the condition must be certified by a licensed physician and a licensed psychologist or by two licensed physicians, one of whom has familiarity with or knowledge of the care and treatment of persons with developmental disabilities. Also, as with SCPA 1750, the court must determine that it is in such person's best interest that a guardian is appointed. SCPA 1754 (5).

The legal determination of the need for guardianship is functionally the same whether an individual's disability is categorized under section 1750 or 1750-a of SCPA and relies upon the same body of law. Under Article 17-A, appointment of a guardian of the person of an intellectually or developmentally disabled individual wholly removes that individual's legal right to make decisions over one's own affairs and vests in the guardian "virtually complete power over such individual," Matter of Mark C.H., 28 Misc 3d 765, 776 (Sur Ct, New York County 2010). In order to support this significant loss of individual liberty, the petitioner bears the burden of proving, to the satisfaction of the court, that the appointment of a guardian is necessary and in the best interest of the person with intellectual or developmental disability. SCPA 1750; SCPA 1750-a; Matter of Maselli, NYLJ, March 29, 2000 at 28, col 4 (Sur Ct Nassau County). The extreme remedy of guardianship should be the last resort for addressing an individual's needs because "it deprives the individual of so much power and control over his or her life," Matter of Dameris, 38 Misc 3d 570, 578 (Sur Ct, New York County 2012). If there are less restrictive alternatives that are sufficient and reliable to meet the needs of the person, guardianship is not warranted. In re D.D., 50 Misc 3d 666 (Sur Ct, Kings County 2015); Matter of Guardian for A.E., NYLJ, August 17, 2015 at 22, col 4 (Sur Ct, Kings County).

The term "best interest" has been aptly described as "amorphous" (see Matter of Chaim A.K., 26 Misc 3d 837, 845 [Sur Ct, New York County 2009]) and the criteria necessary to support a finding that appointment of a guardian is appropriate in a particular case are rarely articulated but frequently assumed. Matter of Udwin, NYLJ, June 11, 2013 at 31 (Sur Ct, Kings County). Understanding the functional capacity of an individual with disability, what an individual can or cannot do, is a necessary inquiry in determining best interest and the necessity of guardianship. This is especially true in light of the emerging awareness that there is a wide [*4]range of functional capacity found among persons with diagnoses of intellectual disability and developmental disability. Matter of Chaim, supra. As such, the perfunctory removal of decision making rights from persons with cognitive limitations is increasingly disfavored. The New York State Legislature recognized this shift when it amended Article 17-A in 1990, noting

[S]ince this statute was enacted in 1969, momentous changes have occurred in the care, treatment and understanding of these individuals. Deinstitutionalization and community-based care have increased the capacity of persons with mental retardation and developmental disabilities to function independently and make many of their own decisions. These rights and activities which society has increasingly come to recognize should be exercised by such persons to the fullest extent possible . ...[FN3]

In order to identify the least restrictive alternative to guardianship that meets the State's goal of protecting a person with intellectual disabilities from harm connected to those disabilities, an inquiry into the availability of resources to assist the individual, including a support network of family, friends, and supportive services, is required. Matter of Dameris, supra at 579. Indeed, "proof that a person with an intellectual disability needs a guardian must exclude the possibility of that person's ability to live safely in the community supported by family, friends and mental health professionals," Id. at 578. "SCPA 17-A must be read to require that supported decision making must be explored and exhausted before guardianship can be imposed or, to put it another way, where a person with an intellectual disability has the other resource' of decision making support, that resource/network constitutes the least restrictive alternative, precluding the imposition of a legal guardian," Id. at 577.

Based upon the evidence presented, the Court makes the following findings and determination. The record reflects that Hytham is a 23 year old adult with a full scale IQ of 71, placing him in the "borderline delayed" range of cognitive functioning in accordance with the Stanford-Binet Intelligence Scales: Fifth Edition. In March 2013, Hytham's teacher reported that he reads at the sixth grade level, as well as functions in math and language arts at the same level. Hytham received a Nonverbal IQ score of 82, placing him in the "low average" range, and a Verbal IQ of 63, placing him in the "mildly delayed" range. He received a composite score of 64 on the Vineland Adaptive Behavior Scales, which is classified in "the low range with a mild deficit" for adaptive functioning. Hytham was diagnosed with pervasive developmental delay when he was three years old. Due to this diagnosis, he began attending a pre-kindergarten class for students on the autism spectrum. After nine months, the school and Hytham's parents agreed that the program was not appropriate for Hytham because he functioned at a higher level than the rest of the class. Consequently, Hytham was enrolled at the League School, where he received various speech and language therapies, and graduated from high school in June 2014.

Since graduation, Hytham's parents have been attempting to enroll him in post-graduate educational and vocational services, in particular at Kingsborough Community College. Presently, Hytham resides with his mother on the second floor of their two-family home in Brooklyn, and his sister, Amirah, Amirah's husband and their two children reside on the first [*5]floor. Hytham's brother, Hassan, and father, M.G., live close by in Brooklyn. Hytham sees Amirah daily and sees Hassan, who is a flight attendant, at least once a week. M.G., who runs an electronics shop, sees Hytham every Sunday for dinner together. The CGS psychosocial evaluation states, "Hytham shares a wonderful and open relationship with his family and feels comfortable sharing all concerns and questions with them."

One of the certifications submitted by petitioner described Hytham as "incapable of independently managing his affairs including ADL [FN4] skills and financial matters" and "demonstrates significant anxiety and confusion." In that same certification, the physician requested that Hytham's appearance at the hearings be excused, stating "do (sic) to Hytham's emotional fragility and inability to fully comprehend the proceedings, it is deemed that it would not be in his best interest to attend."

By contrast, the documentary evidence reveals Hytham to be a highly functioning individual, capable of all activities of daily living. In the most recent psychosocial evaluation, dated August 4, 2015, a detailed description of Hytham's daily living skills include Hytham can groom, bathe, change his clothes, choose weather appropriate clothes, and feed himself independently . . . Hytham is able to clean the dishes, clean the house and his room, make his bed, and take out the trash independently . . . Hytham reports that he can prepare toast and turkey bacon. He has not had good luck with preparing other foods, so he will stick with what he most comfortable preparing. Mrs. [G.] reported that he needs to be supervised when using the stove . . . Hytham is able to handle money independently, and makes purchases. He has some difficulty recognizing how much change he should receive . . . Hytham is able to answer and place phone calls . . . During Hytham's free time, he enjoys attending Martial Arts school where he studies: Jiu-jitsu and Muy Thai.

The documentary evidence further shows Hytham is capable of managing his social affairs and capable of sustaining work in a supervised setting. In the psychosocial update dated January 29, 2014, Edith Tyson reports "Hytham is a handsome, personable young adult. He is popular with his peers and well-liked by adults. He has become a success on the basketball team. He has demonstrated an increasing maturity over time, and is ready to move on to an adult setting."

Dr. Tyson further reports, "Hytham is capable to engaging successfully in a supportive work environment, and enjoys doing so," recommending that Hytham be placed in a day habilitation program with a supported work component. Describing the quality of Hytham's work in her report dated February 6, 2014, Elisheva Weiss states

He successfully participated in several work enclaves and has participated in the NYC Summer Youth employment program for five summers. Hytham was able to sustain focus for 4 ½ hours, four days a week for six weeks. His most rewarding experience was as a docent for the Prospect Park Wildlife Center where he showed exemplary interest and initiative in learning and sharing animal biology facts.

Dr. Weiss further observes

Hytham is a kind person. He is working on his ability to see and accept the perspectives of others and is trying to be less perseverative on his favorite topics. At times, he can present as immature and Hytham is working on his ability to develop independence - learning to do everyday tasks such as laundry, cleaning and food preparation.

The Court had the instructive opportunity to observe Hytham's personal appearance and demeanor on more than one occasion. During both occasions, Hytham presented as an alert, engaging, and confident young man, with a calm and refined demeanor. He maintained eye contact and responded appropriately, and, often, thoughtfully, to the questions presented during the hearings. When asked what he wanted to be when he grew up, Hytham answered

It's a very hard decision. When I'm in college, like I still haven't figured it out yet, but I am thinking of, like, computer programmer or computer technician, or for a hobby, and I know it's not realistic, but something that I would call mixed martial arts. That's what I would like to do in my future.

Hytham distinguished between "dream jobs" and jobs "for survival," expressing that his dream job is working in computers and his survival job could be working in a store.

Hytham expressed his frustration with the delay in enrolling at Kingsborough Community College's special higher education program and in vocational work programs due to issues related to Medicaid eligibility, commenting as an aside, "it was such a palaver." He explains

[Hytham]. . .When I did graduate I was trying to look for some work.But the thing is, it's just the process and everything, it justtook so long. I finally just stayed home the rest of my life.

[The Court]Do you want that?

[Hytham]Staying home? Oh, no. I need some work instead of juststaying in the house and lazing around.

Hytham is capable of understanding his basic finances. He testified that he receives about $800 each month from Social Security Income (SSI), which gets deposited in his bank. He further testified that he withdraws money from his account at the bank by filling out a checking withdrawal paper, on which he writes his name and the amount of money he'd like to withdraw. He contributes to household expenses, pays for his martial arts classes, and saves for the future. When asked for what he was saving up money, Hytham testified it was to pay bills, like rent, electric and water bills, and taxes to the government. Hytham also makes purchases, such as an Xbox game system, after discussing the potential purchase with the petitioner, who is his Social Security representative payee. He knows what an ATM machine is but has not been trained to use it. He testified that sometimes the petitioner accompanies him to the bank. While Hytham correctly calculated change during the hearing, his family stated in the GAL report that he does not always check his change correctly when making purchases at the store. At the mall, Hytham shops in his favorite stores, such as Hot Topic and Game Stop. The petitioner drives him to the [*6]mall but he enters the stores by himself.

Hytham is independent in his activities of daily living, with the occasional reminder to shower, although Hassan, who used to share a room with his brother, stated in the GAL report, "Hytham takes care of himself and his hygiene is good. He likes to look a certain way and dress a certain way." At home, Hytham performs household chores, such as ironing the clothes, cleaning his bathroom and bedroom, mopping and vacuuming the floor, and taking the garage bins out to the curb. He babysits his nephews, who are seven years and five years old, for a period of time when the petitioner is not home. He is described as a "doting uncle" to his nephews. He is able to cook, although not full meals, and can warm up meals. He also makes sandwiches and bakes brownies, with supervision. He knows what to do in the event of an emergency and has his doctor's telephone number in his phone.

Hytham is healthy, has had no medical complications or serious health issues, and does not take any prescription medication. Other than describing a time when Hytham had a headache and was not sure what medicine to take, there were no other medical incidents about which testimony was given. If needed, the petitioner makes an appointment with the doctor for Hytham. The petition indicates that Hytham has a second diagnosis of generalized anxiety disorder, but it does not appear that he is taking any medicine for it.

Hytham travels independently to known routes. Hytham walks by himself to his martial arts class several times a week, to his mosque on Friday evenings, to the barber shop when he needs to get a haircut, and to the grocery store, where he purchases milk and bread. He has taken the subway by himself from Brooklyn to the Jacob Javits Convention Center in Manhattan, and, after close training by the petitioner in preparation for his enrollment at the Kingsborough Community College program, he has taken the public bus by himself to Kingsborough Community College, a route that involves transferring to a second bus line. He was never taught how to use public transportation by a professional and there is no indication that he cannot learn to travel more independently through proper training.

Hytham is capable of managing his social affairs. He maintains friendship with his friends from school by text and telephone. Hytham and his friends make plans to go bowling or see a movie. Hytham testified that sometimes after the movie, he and his friends will walk to a restaurant together. Petitioner testified that she usually drives him to the meeting location and picks him up afterwards.

Hytham is capable and desirous of doing work. During his school years, Hytham worked, on a voluntary basis, at Kings County Hospital, Prospect Park Zoo, and Brooklyn Children's Museum. At the museum, Hytham helped keep the greenhouse clean, trimming the plants, cleaning and sweeping. At the zoo, where he worked twice a week for two years from 2012-2014, Hytham worked as a docent, showing visitors around and teaching them about the animals. Ms. Lobasco stated, in the GAL report, "He is a great worker. He was one of my best students, because he involved himself so much." She further added that when children came on school trips, "he would actually take control of the whole class and made sure they listened as he explained about the animals. He would walk them to the next exhibit." In her March 17, 2015 report, Dr. Tyson recommended employment and business services for Hytham, to equip him to be able to seek and sustain employment.

While the evidence shows that Hytham has cognitive limitations, as reflected in the [*7]medical diagnoses, the evidence also shows that Hytham is a high functioning, capable adult who engages in supportive decision making with his family. He exercises self care and management independently, travels to familiar routes independently, has the ability to work in a supervised setting, and makes decisions about his finances in consultation with his supportive family. It is evident that Hytham seeks advice and direction from his loving family before making significant decisions, and nothing in this court's ruling precludes him from continuing to do so, nor does it preclude his family members from continuing to be involved in his medical and financial decisions. Where, as here, the less restrictive alternative to guardianship of supported decision making is available, substituted decision making through guardianship should not be granted. See In re D.D., supra.

The petitioner believes that she knows what is best for Hytham and can provide him with proper care as she has been doing for the past 23 years. Without doubt, the petitioner deeply loves Hytham and is motivated only by what she believes is in his best interest. However, the relevant legal standard is not whether the petitioner can make better decisions than Hytham, it is whether or not Hytham has the capacity to make decisions for himself with the support that he abundantly has. Matter of Raymond J.R., Sur Ct, Kings County, Dec. 9, 2011, L³pez Torres, S., File No. 2011-XXX.

Petitioner testified that her main concern is for Hytham when she and her husband are gone. While a valid concern, it is not directly relevant to the determination of whether guardianship is needed at the present time. The relevant inquiry is whether or not Hytham currently needs a guardian, which he does not. Nevertheless, in response to petitioner's concern, alternate tools, such as a power of attorney and a heath care proxy, may be available to allow family members to make medical and financial decisions for Hytham, to the extent needed. Hytham may also authorize his physicians to speak with those whom he trusts to discuss his medical needs, which he has done in this proceeding wherein he executed a HIPAA authorization granting permission to the guardian ad litem.

The loving and supportive environment in which Hytham is enveloped has enabled him to thrive despite his limitations. Based upon the documentary proof proferred, the oral testimony presented at the hearings, the reports of the guardian ad litem, and the personal appearance and demeanor of Hytham, it has not been demonstrated to the satisfaction of the Court that guardianship pursuant to Article 17-A is the least restrictive means to address Hytham's needs where the presence of supported, instead of substituted, decision making is available for Hytham. Accordingly, the Court is not satisfied at this time that the appointment of a guardian pursuant to SCPA 17-A is necessary and in the best interests of Hytham

For all the forgoing reasons, the petition is dismissed.

This constitutes the decision and order of this Court.

Dated: April 14, 2016

Brooklyn, New York



Surrogate Footnotes

Footnote 1:These certifications are often boilerplate forms that include sections where the affirmant checks off pre-printed conclusions relating to the decision making capabilities of an intellectually or developmentally disabled individual. The court has found the certifications wanting in useful information and requires, at a minimum, psychological and psychosocial evaluations of the respondent as well as the school's Individualized Education Program (IEP) or Individualized Service Plan (ISP).

Footnote 2:This Court adopts the term "intellectual disability" in lieu of "mental retardation" even though SCPA still utilizes the latter term to describe the same condition. This change in terminology has been approved and used in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders ("DSM"), by the Supreme Court of the United States (see Hall v Florida, 572 US __, 134 S Ct 1986 [2014], by the federal government (see Rosa's Law, Pub. L. 111-256, 124 Stat. 2643) (references in federal law to "mentally retardation" are to be substituted with the term an intellectual disability") and in New York, where the state agency "Office of Mental Retardation and Developmental Disabilities (OMRDD)" has been renamed "Office for Persons with Developmental Disabilities (OPWDD)."

Footnote 3:McKinney's Cons Laws of NY, Book 58A, SCPA 1750, Historical and Statutory Notes, L 1990, c. 516.

Footnote 4:Activities of Daily Living

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