Matter of Joshua J. K.

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[*1] Matter of Joshua J. K. 2021 NY Slip Op 21069 Decided on March 1, 2021 Surrogate's Court, Westchester County Sall, 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 March 1, 2021
Surrogate's Court, Westchester County

In the Matter of the Petition for Modification of an Order of Guardianship for Joshua J. K., Pursuant to SCPA Article 17-A.


Daniel S. Pellegrin, Esq.

Mental Hygiene Legal Service

200 White Plains Rd., 2nd Floor

Tarrytown, NY 10591

(Attorney for petitioner)

J. Henry Neale, Esq.

235 Mamaroneck Ave.

White Plains, NY 10605

(Attorney for respondent)

Marna Solarsh, Esq.

670 Post Rd., Ste 121

Scarsdale, NY 10583

(Guardian ad Litem)

Lawrence R. Faulkner, Esq.

265 Saw Mill River Rd.

Hawthorne, NY 10532

(Attorney for ARC of Westchester)
Brandon R. Sall, S.

In this proceeding pursuant to SCPA 1755 and 1758, Joshua J. K. (Joshua), through his counsel, Mental Hygiene Legal Service (MHLS), seeks to remove his mother, L. S. (Ms. S.), as guardian of his person and property, enjoin her from removing him from Westchester County, and appoint NYSARC, Inc. (NYSARC) as his permanent guardian. He also requests an order directing Ms. S. to provide a full accounting for her guardianship from at least January 1, 2014. Ms. S. filed an answer to the amended petition, denying the material allegations and requesting that the court dismiss the amended petition and award her costs and attorney's fees for "frivolous conduct and abuse of discretion." Two of Joshua's siblings, David and Cassandra, each filed verified answers to the amended petition; they did not answer the numbered paragraphs of the amended petition, but rather asserted generally that the allegations are baseless and that the amended petition should be dismissed. They did not otherwise participate in this proceeding.[FN1]

For the reasons set forth below, the court grants the amended petition to the extent that Ms. S. is removed as the guardian of Joshua's person and property and NYSARC is appointed the guardian of his person.

Procedural Background

This case has a long history in this court. On December 7, 2006, the court adjudicated Joshua an intellectually and developmentally disabled person pursuant to SCPA 17-A and appointed Kevin Mahon, then-Commissioner of the Westchester County Department of Social Services (DSS), as the guardian of his person and property. Subsequently, Ms. S. filed a petition to modify the guardianship, seeking the issuance of letters of guardianship to her and revocation of the letters of guardianship issued to DSS. Following a revision to Ms. S.'s certificate of relief from civil disabilities by the Westchester Supreme Court (DiBella, J.), and upon a stipulation between DSS and Ms. S., this court issued letters of guardianship of Joshua's person and property to Ms. S. on December 7, 2010.

On July 7, 2015, MHLS, on behalf of Joshua, filed an order to show cause and petition to modify the guardianship to dismiss Ms. S. as guardian and to appoint a temporary guardian. Based on the facts alleged in the petition and supporting documentation, the court issued the requested ex parte order to show cause to the extent of enjoining Ms. S. from removing Joshua to North Carolina and from taking any action to remove him from the enrollment rolls at the Keon Center or from his residence at ARC of Westchester (ARC) and suspending her letters of guardianship of Joshua's person, except for acting on medical decisions when requested. After a hearing and oral argument, the court issued an order extending the suspension until July 29, [*2]2015, and on July 30, 2015 extended the order until further order of the court.

Thereafter, the court issued a discovery schedule and appointed Kristin Booth Glen as guardian ad litem for Joshua, to opine on his best interest as to the modification of the guardianship and to ascertain the status and location of state and federal benefits so that he could continue to receive rehabilitative and medical care.[FN2]

On February 16, 2016, the court appointed NYSARC temporary guardian for a three-month period; the court subsequently continued NYSARC's temporary guardianship pending the outcome of the trial.

On May 4, 2016, Ms. Glen resigned as guardian ad litem, citing a possible conflict of interest.[FN3] The court appointed Marna Solarsh as successor guardian ad litem.

Legal Standards Applicable to Proceedings Pursuant to SCPA 1755 and 1758

Pursuant to SCPA 1755, anyone on behalf of a person with an intellectual or developmental disability for whom a guardian has been appointed, including the person himself or herself, may request a modification of the guardianship in order to protect the person's financial situation and/or his or her personal interests (SCPA 1755). The statute provides that

[t]he court shall so modify the guardianship order if in its judgment the interests of the guardian are adverse to those of the intellectually or developmentally disabled person or if the interests of justice will best be served, including, but not limited to facts showing the necessity for protecting the personal and/or financial interests of the intellectually or developmentally disabled person.

(SCPA 1755). The authority to modify a guardianship is also found in SCPA 1758 which provides the court with continuing jurisdiction over the person with intellectual and developmental disabilities and permits it "to take of its own motion. . .such steps and proceedings relating to such guardian, standby or alternate guardianship as may be deemed necessary and proper for the welfare of such intellectually or developmentally disabled person" (SCPA 1758). SCPA 1759 also provides for modification, amendment or dissolution of a guardianship order and discharge of a guardian (see SCPA 1759).

The "interests of justice" standard set forth in SCPA 1755 and the determination of what is "necessary and proper for the welfare" of a person with intellectual or developmental disabilities set forth in SCPA 1758 must necessarily include a determination of what is in the [*3]ward's best interest, because the ward's best interest is always paramount in a guardianship proceeding (see e.g. SCPA 1754; Matter of Robert C.B., 68 Misc 3d 704 [Sur Ct., Dutchess County, 2020] [applying a best interests analysis to terminate a 17-A guardianship of the person and to modify the property guardianship); Matter of Capurso, 63 Misc 3d 725 [Sur Ct, West. County, 2019] [applying the best interest standard in a proceeding under SCPA 1759 to terminate a 17-A guardianship]).

Best interests, however, is an "amorphous term", a determination of which is left to the discretion and judgment of the Surrogate (see Matter of Robert C.B. at 716 [citing Matter of Chaim A.K., 26 Misc 3d 837, 845 [Sur Ct, NY County, 2009]; see also Matter of Hytham M.G., 52 Misc 3d 1211 [A] [Sur. Ct., Kings County, 2016] ["The criteria necessary to support a finding that appointment of a guardianship in a particular case are rarely articulated but frequently assumed"]). There are no express statutory criteria to guide a court in its determination of what constitutes best interest (id). As noted in Matter of Robert C.B., in a very thorough and thoughtful decision which reviews the developing caselaw under SCPA article 17-A, "[i]t is the official policy of the State of New York to facilitate the 'independence, inclusion, individuality and productivity" of persons with intellectual and developmental disabilities (id. at 709 [citing MHL §13.01]); see also Matter of Dameris L., 38 Misc 3d 570, 577 [Sur Ct, NY County, 2012] [quoting MHL §81.01]).[FN4]

Applying these principles, the best interest analysis requires consideration of alternatives to a full plenary guardianship (see Matter of Robert C.B. 68 Misc 3d 704). "Functional capacity has been identified as a necessary inquiry in determining whether a proposed guardianship is the least restrictive alternative that is in the best interest of the ward" (id. at 717). Thus, in fashioning criteria for the determination of what is in the ward's best interests, the courts have increasingly focused on the ward's functional capacities (see e.g. Matter of Capurso, 63 Misc 3d 725; Matter of Robert C.B., 68 Misc 3d 704; Matter of Hytham M.G., 52 Misc 3d 1211 [A]; Matter of K.L., NYLJ, July 10, 2017, at 25 [Sur Ct, Richmond County]; Matter of Zachary W., NYLJ, Apr.28, 2017 [Sur Ct, Suffolk County]; Matter of Sean O., NYLJ, Oct. 24, 2016 at 17 [Sur Ct, Suffolk County]). "[A] best interest determination must include an assessment of an individual's functional capacity and what an individual can and cannot do in managing her or his daily affairs" (Matter of Michael J.N., 58 Misc 3d 1204[A] [Sur Ct, Erie County, 2017] [emphasis in original] [citing Matter of Hytham M.G., 52 Misc 3d 1211 [A]); see also Matter of [*4]Robert C.B., 68 Misc 3d at 704 .

In determining the best interest of the ward, the courts have also looked at the relationship between the ward and the person seeking guardianship. In Matter of Garrett YY, a proceeding pursuant to SCPA 1755, the court upheld the trial court's decision to remove the ward's mother as co-guardian in favor of his father and stepmother, noting that the "interests of justice" was demonstrated by evidence showing that the father had a more "age appropriate relationship with [his son] and works to promote independence and self-reliance for him" (Matter of Garrett YY 258 AD2d 702, 703 [3d Dept 1999]).

Although many courts have imported to the guardianship realm the presumption that appointment of a parent will be in the best interests of a person with intellectual or developmental disabilities absent "extraordinary circumstances", at least in the initial appointment of a guardian (Matter of Boni P.G., NYLJ, Nov. 17, 2006, at 33, col 3 [Sur Ct, Bronx County]; see also Annamarie O., NYLJ, Feb. 27, 2020, at 32, col 5 [Sur Ct, Richmond County]), the rationale for its application in 17-A guardianship cases (when articulated at all) is based variously on "common sense", SCPA 1754 (1) (which permits dispensing with a hearing when the proposed guardian is a parent), and/ or on SCPA 1761, which incorporates, to the extent the context admits, the provisions of article 17 (infant guardianships) to article 17-A guardianships (see Matter of Timothy R.R., 42 Misc 3d 775 [Sur Ct, Essex County, 2013]); Matter of Boni, supra). This rationale, however, ignores the fact that the person whose best interests are being determined is not, in fact, a child but rather an adult, who has a right to autonomy and self-determination to the fullest extent possible (see MHL § 13.01 and § 81. 01), notwithstanding that he or she might have an intellectual or developmental disability. Thus, depending on the functional capacities of the individual, the expressed preference of an adult who has an intellectual or developmental disability should be entitled to significant weight in determining best interest (see e.g. Matter of Dameris L., 38 AD3d at 574 n.10 (guardianship on consent is "autonomy-enhancing" and generally results in greater cooperation between the guardian and the ward]).

Article 17-A is silent as to who bears the burden of proof in a guardianship modification proceeding brought by the person under the guardianship (i.e., the ward). The cases that have considered the matter have held that the ward bears the burden of establishing that the guardianship is not in his best interest, with the ultimate determination of what is in his best interest committed to the court's discretion (see Matter of Capurso, 63 Misc 3d at 718; Matter of Michael J.N., 94 NYS3d 539, 58 Misc 3d 1204[A], but see Matter of T.B., File No. 2012-371126 [Sur Ct, Suffolk County, Mar.3, 2019]). Matter of T.B. was a proceeding brought by a ward to terminate her 17-A guardianship and restore her to full legal capacity. The petitioner sought a preliminary order placing the burden of proof on the respondents to show by clear and convincing evidence that she required a guardian and that no less restrictive alternatives existed. The respondents opposed the relief, and the court-appointed guardian ad litem recommended that the burden of proof should be on the petitioner. Seeing a corollary in MHL §81.36 [d], the Surrogate ruled that "the burden of proof should be on the respondents to demonstrate that continuation of the [*5]SCPA Article 17-A guardianship is in [the petitioner's] best interests" (id at 3)[FN5] .

The court has adopted the burden of proof set forth in the majority of cases that have considered the matter in modification and termination of SCPA 17-A guardianship cases, that is, the burden is on the petitioner to show, by a preponderance of the evidence, that Ms. S. should be removed as Joshua's guardian and NYSARC be appointed in her stead. As noted above, the petitioner has met his burden here.

Findings of Fact and Conclusions of Law

The court heard this matter in a non-jury trial which took place on July 16, 2018, July 17, 2018, July 18, 2018, July 19, 2018, July 20, 2018, July 23, 2018 and July 24, 2018.[FN6] The court heard testimony from ten witnesses: Marna Solarsh; Joshua; Ms. S.; Angela Signorelli (Director of Programming at the Keon Center); David Gaspari (director of the ARC-operated respite house during the time Joshua resided there); Beverly Williams (supervisor at the respite house during the time that Joshua resided there); Nancy Succoso (who oversees ARC's guardianship program); Kristin Booth Glen; Daniel Pellegrin (Joshua's MHLS attorney who verified the petition and amended petition); and William Smith (a friend of Ms. S.). The court granted Ms. S.'s request to testify out of order; she first testified on the first day of trial, immediately after Joshua, who was the second witness called on his case. Joshua was present for the first day of Ms. S.'s testimony, and Ms. S. was present for his testimony, although neither Joshua nor Ms. S. attended much of the rest of the trial. Throughout the trial, the court had ample opportunity to observe the demeanor of the witnesses, to assess their credibility, their sincerity, and whether they exhibited any bias or prejudice, or had an interest in a particular outcome of this trial.

The uncontradicted testimony showed the following: At the time of trial, Joshua [*6]was 29 years old. From at least 2010, except for approximately one month in or about December 2012 to January 2013 when he lived at a group home, Joshua lived with his mother and some of his siblings in an apartment in Peekskill, New York. At some point in late 2013, Ms. S. was hospitalized for surgery. From January 2014 through June 2015, a period of approximately 18 months, Joshua lived at a respite house in Thornwood, New York operated by ARC. In or about June 2015, he entered Westchester Medical Center for surgery to remove a non-malignant recurring brain tumor. Following surgery, he required significant rehabilitation services, and between July 2015 and March 2017, he was in the following rehabilitation centers: Ruth Taylor Institute for Rehabilitation, Tarry Hill Care Center, Burke Rehabilitation Institute, and White Plains Nursing Center. Thereafter, following a hospitalization at Bronx Lebanon Hospital, he became a resident of a group home in Katonah, New York, on April 14, 2017, where he has resided ever since.

Joshua has a Disability Within the Provisions of SCPA Article 17-A

The court had adjudicated Joshua as a person with intellectual and developmental disabilities in 2006.At the trial, Ms. Solarsh, the court-appointed guardian ad litem for Joshua following the resignation of Kristin Booth Glen, testified that she had arranged for a psychological evaluation of Joshua, which took place in May 2017, to ascertain his then-current cognitive and adaptive functioning. Court exhibit 2 (Ct. ex. 2) is the report of that evaluation, conducted by Rachelle Kritzer, Ph.D., a licensed New York State psychologist. The report states that Joshua was administered 9 subtests of the Wechsler Adult Intelligence Scale-Fourth Edition (WAIS-IV), and that his composite scores were derived from these subtest scores. Due to his fine motor skills issues, the subtests necessary to derive a Processing Speed Score were not administered, and thus his full- scale IQ could only be estimated. Dr. Kritzer's diagnostic impressions are set forth in her report as follows:

Joshua, given his limited levels of cognitive-intellectual and adaptive functioning, the organic etiology of his impairments and their early onset, continues to meet the diagnostic criteria for Mild Intellectual Disability in accordance with DSM-IV-TR, AAID and OPWDD guidelines.

(Ct. EX. 2 at 8).

Consistent with its earlier adjudication and based on the testimony adduced at trial, the court finds that Joshua continues to have a developmental disability within the meaning of SCPA article 17-A.

The Removal of Ms. S. as Joshua's Guardian and the Appointment of NYSARC Is In Joshua's Best Interests

Angela Signorelli, Director of Programming at the Keon Center, a day program for developmentally disabled people, testified that she met Joshua in 2011 when he was receiving services in the Center's sheltered workshop. She also knew him from the community where she would see him from time to time. She testified that Joshua came to the Keon Center one day in or about August 2011 and reported that there was no [*7]food in the house, and that the staff at the Keon Center then contacted Ms. S. who "'was very aggressive, she was cursing and yelling for about 45 minutes. She hung up, and said, "Don't call me ever again or I will contact a lawyer'" (Testimony of Angela Signorelli, trial transcript (Tr.), day 3, at 15-16). Ms. Signorelli also testified that Joshua reported in or about December 2012 that an individual at his mother's apartment had grabbed him, that Joshua called the police and thereafter was placed in a residential facility through the Office of People with Developmental Disabilities (OPWDD).She testified that he reported to the staff at the Keon Center that he did not want to live at his mother's house. He stayed in the residential facility for approximately one month in or about December 2012 to January 2013 and then returned to live with his mother.

Ms. Signorelli further testified that Joshua came to the Keon Center one day in January 2014, looking disheveled, and reported that he had no food and no heat at home. The staff at the Keon Center went with Joshua to the apartment he lived in with his mother and confirmed there was no food or heat. They reported this as an incident and arranged for Joshua to be placed in a respite home in Thornwood, New York.

Ms. S. disputed that Joshua had been left alone in the apartment with no heat or food in January 2014. She testified that she had been hospitalized for surgery in or about November or December 2013, and that she was not home during that time and into 2014. She testified that her family all agreed that Joshua would stay with his twin brother J., who lived on the first floor of the apartment building where Joshua lived his mother. Joshua had his own room in Ms. S.'s apartment on the sixth floor; Joshua's half sibling's father lived down the hall on the sixth floor, and it was agreed he would step in if anything was needed. She returned to her apartment in January 2014 to find that Joshua was not there. According to Ms. S., Joshua had left the apartment because he was upset that J. would not make him more pancakes. As she testified, "When I came home, Joshua was gone. They say they moved him out of the house because Joshua didn't appreciate J. would not make any more pancakes. They called him. He went to Keon. They removed Joshua and said he was not being properly fed." (Testimony of L. S., Tr. day 1, at 135).

Beverly Williams was the supervisor of the respite house when Joshua was there. She testified that when he first came to the house in January 2014, "his hair was very very dirty" and his clothing was filthy (Testimony of Beverly Williams, Tr. day 4, at 31).

Mr. Gaspari was director of the respite home during Joshua's stay. He testified that the respite home is operated by ARC, that it has five beds and is intended as a temporary placement only, to assist caregivers. As he testified, Joshua had been in respite previously so Ms. S. would have known about it. Mr. Gaspari testified that Joshua did not want to go home and that Ms. S. was very uncooperative in the staff's efforts to move Joshua to a group home. He further testified that since she was Joshua's guardian, her signature was needed before Joshua could be placed in a group home and that the staff at the respite house set a deadline by which she needed to sign the permission for Joshua to move, but that she refused to do so. Joshua remained in [*8]the respite home for 18 months.

Mr. Gaspari also testified that when someone is in a group home, the group home is the representative payee for the client's social security benefits, but that the respite house is reimbursed by Medicaid when clients stay there, and therefore, Ms. S. continued to be the representative payee for Joshua's social security benefits during the eighteen months that he remained in respite care.

Ms. Williams testified that during the time he was in the respite house, Joshua continued to attend the Keon Center three to five days a week. He had to get there on paratransit, which cost $4.00 each way. She testified that Ms. S. dropped off money for paratransit on two occasions. Ms. Williams testified that Joshua would call his mother to ask for more money for paratransit, and that she observed that after these calls Joshua would be upset, often to the point of tears. At one point, the staff of the center chipped in to buy him new sneakers because his had a hole in them. According to Ms. Williams, Joshua asked her to call Ms. S. to make sure she understood that he needed money and clothing. Ms. Williams testified that she called Ms. S. who "cursed [her] out on the phone" (Testimony of Beverly Williams, Day Tr. at 35). She testified that Ms. S. did give him money sometimes but that it was not consistent and that the staff sometimes had to lend Joshua money for paratransit. She also testified that Ms. S. came only twice to visit Joshua during the eighteen-month period that he was in the respite home.

Until NYSARC became temporary guardian in February 2016, Ms. S. was Joshua's representative payee for his social security income, which, she testified, totaled $733.00 per month. She testified that she would give him $200.00 per month from his social security benefits to spend on whatever he wanted and used the rest to pay his share of the rent for their section 8 housing. She also testified that she gave him a cell phone, computers and clothing, and that while he was in respite, she gave him money for paratransit.

Ms. S. also testified that she purchased clothes for Joshua, and in January 2014 after she got home from the hospital and Joshua was in the respite house, she and Will Smith brought $2,000.00 worth of clothes to the Keon Center in large black plastic bags. Her testimony was corroborated by William Smith, her friend who lives with her in South Carolina and who was involved with her and her family in Peekskill when she lived there. Ms. Signorelli contradicted their testimony, saying that the bags of clothing contained mismatched shoes, clothing of different sizes, some with tags still on, that they were not suitable for Joshua and that the bags contained flyers and papers, as though everything had been scooped up off the floor and stuffed in the bags. The clothes did not find their way to Joshua. Ms. Signorelli testified that the bags were no longer at the Keon Center, and Ms. Williams testified that bags of clothing that arrived for Joshua at the respite house were thrown out because they were moldy.

Ms. S. testified that she moved from Peekskill to North Carolina in February 2015, and that she was back and forth between North Carolina and New York. She testified that she intended to take Joshua to North Carolina, and that two or three weeks after she told him about the move, he told her he did not want to go.

Each of the guardians ad litem also testified that Joshua did not want to go to North Carolina. Marna Solarsh testified that, as set forth in her report and recommendation, from the first time they met in 2016, Joshua made it very clear that he did not want his mother as his guardian and did not want to move to North Carolina. She testified that he told her that "She doesn't have my back" and that "She would control me" (Testimony of Marna Solarsh, Tr. day 1, at 50, and Ct. Ex. 2).

Ms Glen, too, testified that Joshua did not want to go to North Carolina:

He was absolutely clear whenever I spoke with him that he had no desire to go to North Carolina. He was adamantly opposed to that.

One reason was he felt his friends and support system and what he knew of his life were here in Westchester.

The second reason was he was quite afraid to be in a foreign place, where he knew no one and where he didn't have doctors that he knew where to turn if his mother abandoned him again.

So the fear of what might happen to him and the potential abandonment was really very strong. So when he was in New York and that happened, he knew what to do. And if he were in North Carolina, he would have no idea.

And I might add that he was quite concerned about the gentleman with whom his mother was living or had a continued relationship in North Carolina, who was the very same person who had been involved in the altercation which had caused him to leave the house and go to the police station.

(Testimony of Kristin Booth Glen, Tr. day 4, at 8)

Marna Solarsh testified that she visited Joshua six times from the date of her appointment in May 2016 through the date of trial. She testified that:

[Joshua] is quite articulate. Even though Joshua has intellectual disabilities, he is able to articulate his needs very well. He is very deliberate. When he speaks, he is very very thoughtful. I would have no trouble understanding him. He was able to tell me exactly what his feelings were and how he felt about the whole process, and those feelings and his wants have not changed in the past two years.

(Testimony of Marna Solarsh, Tr. day 1, at 47). She saw him "evolve" over the two years she had known him and testified that he had become "much more content and self-assured" (id. at 48).

Ms. Solarsh also testified that Joshua loves his mother but is very conflicted about his relationship with her. She testified that

[Joshua] shared a lot of things with me. He felt that, I think I quoted him in my report, "She doesn't have my back." He didn't trust her to make good decisions, but by [*9]the same token he wanted a mother son relationship. He didn't want her to make decisions for him, but that [it] is important to have that relationship with his mom. . . .

What he shared with me was that he was upset—not that he blamed [his mother] for his disability, but that she was using drugs at the time that he had to resolve those issues. He did not—as I said, he felt that she could not make good decisions for him. She had a lot on her plate. He just did not feel comfortable with her decisions.

(Testimony of Marna Solarsh, Tr. day 1, at 50-51).

Prior to the start of testimony, the court met in camera with Joshua and Ms. Solarsh and asked if he wanted to testify. He replied in the affirmative. On the stand, Joshua testified that he was in court "to testify on my rights. . . to take my mom off control of the guardianship" (Testimony of Joshua J. K., Tr. day 1, at 93). When asked why he did not want his mother to be his guardian, Joshua testified:

I think it is more better for me to learn things on my own and try to learn as I grow. Once you get to that point and level, you have somewhere learn to do things on your own, climb that ladder to understand how to learn things on your own

(id. at 99). He further testified that he wants ARC to be his guardian because he believes they can do better things for him, such as finding doctors and more programs, including another self-advocacy program (id. at 107-108).

Nancy Succoso also testified about Joshua's relationship with his mother. She is the Special Assistant to the Executive Director of ARC, which, she testified, is the local agency of NYSARC, and she directs the guardianship program. She testified that ARC serves individuals with disabilities, and that its policy "is to provide support and advocacy" focusing on establishing lives of distinction (Testimony of Nancy Succoso, Tr. day 5, at 5). She testified that she first met Joshua in October 2015 and had visited him approximately 170 times from then to the time of trial. She testified that he did not want his mother to be his guardian; he wanted a mother-son relationship. She testified that there would plans for Ms. S. to visit that were never kept, and that it was her impression that he feared his mother. She testified that, initially, he was cautious in letting his mother know he did not want her as his guardian but that he had grown more confident and was able to say that he does not want her as his guardian. She also testified that Joshua was able to choose his guardianship advocate at ARC and he chose someone he really liked.

In terms of future plans for Joshua, Ms. Succoso testified that they depend on Joshua's wishes:

His wishes are to be able to walk again, to continue to get as much rigorous therapy as he can, to have relationships, to have a girlfriend, to possibly live in a different home with less support. I think all of this is possible for Mr. K.

(id. at 31).

Ms. S. testified that she is very happy with the group home where Joshua lives now and does not want to move him. As she testified:

At the end of the day, no matter what anybody said, he is always going to be my son. I made mistakes. That was 17 years ago. They are still holding me accountable. I make amends. I got all my kids back. Everytime my son needs me, I am here. He calls me, and just like that, I am here. If the shoe was on the other foot, you all would have done the same. You just want to be a part.

(Testimony of L. S., Tr. day 1, at 158).

Referring to Joshua's earlier testimony, his counsel elicited the following testimony from Ms. S.:

Q. Yesterday he stated that he wants my mom to just me [sic] be a mom. What do you make of that?

A. I love it.. . .Yes I do. For Joshua, remember Joshua was born because of issues with me with his disability. Joshua was never able to be like all the other kids. I couldn't take him and do certain things. I feel, back in the days when he was at the group home, he still felt that I wasn't there. I could not be there. I messed up, and they took him from me. Now he is 29 years old. The little time he was with me in my home, he was actually an adult. I gave him the love I could. I cannot make up for childhood. I cannot.

(id., Tr day 2, at 33).

Although she is now very happy with the group home in which Joshua has been living since April 2017, her refusal to give permission for Joshua's placement in a group home during the time he was in respite cannot be seen as having been in his interest. Additionally, her decision (ultimately not carried out) to take Joshua to North Carolina was not made with his interests in mind. He clearly did not want to go to North Carolina, away from the friends and community he had in Westchester. These factors support Joshua's voiced concern that his mother "did not have his back."

The court also notes that from shortly before this proceeding began until the date of trial, Ms. S. moved out of state twice. Her move to North Carolina precipitated this proceeding. Thereafter, she apparently left North Carolina to return to New York,[FN7] and at the time of trial, she was living in South Carolina. Perhaps because she lives out of [*10]state, Ms. S.'s visits with Joshua appear to be sporadic. She testified that she visits when Joshua calls, and that, at the time of trial, her last visit with him occurred in January 2018, about six months previous.

Based on some of the testimony elicited at trial, the court observed that Ms. S. seems to generate antipathy in many of the people she was in contact with. However, neither her perceived demeanor nor the fact that her advocacy may differ in approach from what others might consider effective, require her removal as guardian. Nor does her parenting style. As she testified, "Everybody parents differently. You may have a different way of parenting than I do but we all come from different walks of life" (Testimony of L. S., Tr. day 2, at 28]. The court believes that Ms. S. loves her son and that she genuinely wants to remain his guardian, notwithstanding insinuations that she is motivated by an interest in remaining representative payee of his social security benefits. However, the fact that she is his mother does not demonstrate that she should continue to serve as his guardian.

In her report and recommendation, Ms. Solarsh notes that having control over his life and input into decision-making is important to Joshua. She quotes him in her report as saying: "I am 27 years old and I do not want my mother making decisions for me—I am a man" and "she is bossy" and "we also get into arguments when she tries to rule my life" (Ct ex 1 at 7).

The court has given great weight to Joshua's testimony as well as to that of Ms Solarsh and Ms. Succoso in reaching the conclusion that Ms. S. should be removed as the guardian of Joshua's person. Because he testified, the court has not relied on any statements made in the in camera meeting in reaching its conclusion, however, the in camera meeting did give the court an additional opportunity to observe Joshua. He testified calmly, confidently and convincingly, consistent with the court's observations of him in camera; he appeared sure of himself and made a very good witness for his case. Based on Joshua's testimony, and considering the testimony of Ms. Solarsh, who is an independent observer in these proceedings, as well as the testimony of Nancy Succoso, who has worked with Joshua very closely since February 2016 in her capacity as director of ARC's guardianship program, the court finds that Joshua has the functional capacity to know his own mind as to who his guardian should be. A fundamental stage of development in the passage from childhood to adulthood is separation from the parent; Joshua, as an adult with a developmental disability, ought not to be required to show that extraordinary circumstances exist in order to rebut any presumption that his best interests are served by his mother continuing as his guardian. Based on the evidence presented at trial, Joshua's preference for a guardian other than his mother is readily understandable and entitled to great weight.

Nancy Succoso, Ms. Solarsh and Joshua all testified to the services and programs that he is receiving through NYSARC. Additionally, Joshua's goals for his future are aligned with ARC's mission to promote independence, self-determination and personal autonomy.

Although no longer his guardian, Ms. S. will always be Joshua's mother and their [*11]mother-son relationship should be encouraged. Indeed, the decision to remove her as guardian may assist them in reaching a more satisfactory relationship, as Joshua moves toward increasing independence and autonomy. As Ms. S.'s testimony reveals, her desire to remain his guardian is based, at least in part, on her need to make up for his childhood in foster care, to the extent she can. Joshua is, however, no longer a child. As an adult, albeit one with developmental disabilities, his preference for a guardian who is not his mother or a family member is a natural outgrowth of his expressed desire for increased independence and self-determination.

The court has given consideration to the question of whether Joshua needs a permanent guardian. The original petition sought only appointment of a temporary guardian, and Kristin Booth Glen recommended in her report that the temporary guardianship continue for a year and that the temporary guardian be directed to assist Joshua in building a support network to enable him to make his own decisions so that the guardianship could then be terminated.

As noted, the petitioner amended the petition to seek the appointment of NYSARC as permanent, rather than temporary, guardian. Ms. Solarsh testified that she believes that Joshua still needs help making decisions, but that down the road he will not need the assistance of a guardian. In her report and recommendation, which was admitted into evidence, she recommends that NYSARC be appointed permanent guardian "because the current guardianship statute does not have the flexibility to allow the Court to appoint a temporary guardian or limit the term of a guardianship." (Ct. Ex. 1 at 13).

Although SCPA article 17-A does not expressly provide for temporary guardianships, the courts have issued temporary guardianships under a variety of circumstances, often, as in this case, during the pendency of a contested guardianship proceeding (see e.g. Matter of Gray, NYLJ, May 24, 1994, at 30, col 2 [appointment of the GAL as the temporary guardian of the ward "to assist her and guide her should the occasion arise" during the pendency of the 17-A guardianship proceedings commenced by the ward's divorced parents, each seeking guardianship]; see also Matter of NJT, 2006 NY Misc Lexis 6711 [ Sur. Ct., Bronx County, 2006] [granting temporary letters of 17-A guardianship of the person and property for a period of 4 months because the ward was incarcerated in Pennsylvania and it appeared that the Pennsylvania authorities would release him only if a guardian was appointed for him]; Matter of Kennie, 2007 NY Misc Lexis 2682 (Sur. Ct, Westchester County, 2007] [this court granted temporary letters of 17-A guardianship of the person of the ward to DSS pursuant to an emergency application where the ward's mother's parental rights had been terminated]; Matter of Annamarie O., NYLJ, Feb. 27, 2020, at 32, col 5 [Sur. Ct., Richmond County] [in a contested proceeding for appointment of a successor SCPA 17-A guardian, the court issued temporary letters of guardianship of the ward's person and property to her brother rather than to her father, who was the nominated successor guardian, and directed the calendaring of the matter for a year later "for such other and further proceedings as the court deems just and reasonable"]).

Without expressing an opinion whether the issuance of a temporary guardianship under circumstances such as those presented here is within the court's discretionary authority, the court is mindful that Joshua has been waiting almost six years for a decision. In order to provide him with finality, the court grants permanent guardianship of Joshua's person to NYSARC. In doing so, the court recognizes that ARC, who is the local guardian for NYSARC, is committed to helping all their wards realize their full potential for independence and self-determination. At such time as Joshua, with the support and input of NYSARC, believes that he no longer needs a plenary guardian, they should support him in bringing a proceeding pursuant to SCPA 1759 to dissolve the guardianship.

For the foregoing reasons, the court removes L. S. as Joshua's guardian, revokes her letters of guardianship of his person and appoints NYSARC as guardian in her stead.

Joshua's Property

The petition requested that Ms. S. provide an accounting for her guardianship from at least January 2014. In her report and recommendation, Ms. Solarsh stated that, while Ms. S. could not provide receipts for purchases she had made with Joshua's social security funds, she did provide a breakdown by category as to how the money was spent, which Ms. Solarsh found to be sufficient. There was testimony on both sides as to how Joshua's social security benefits were spent and whether Ms. S. misused those funds. No one produced an account or testified clearly how Joshua's social security funds were spent. The court finds only that Ms. S. applied a portion of these funds to Joshua's share of the required rent in their section 8 housing while she was representative payee, and that she provided him with money and items such as a cell phone, computers and money on occasion. Since April 2017 when Joshua began living in the group home in Katonah, Ms. S. has not been receiving his social security benefits. The group home now receives these funds as the representative payee, and ARC has been helping Joshua to manage his allowance from those funds.

Apart from his social security benefits, which are now payable to the group home in Katonah and which are not considered guardianship funds, Joshua has money currently held jointly with the Clerk of the Court in a guardianship account. These funds should be transferred into a supplemental needs trust or a pooled trust forthwith in order to protect Joshua's governmental benefits. Because the transfer of the guardianship funds will leave a zero balance in the guardianship account, the court hereby terminates Ms. S.'s property guardianship and directs NYSARC and Ms. Solarsh to attend a virtual conference with the court on March 17, 2021 to address the transfer of the guardianship funds to an appropriate trust.

Dated: White Plains, NY

March 1, 2021



Westchester County Surrogate Footnotes

Footnote 1: The amended petition is virtually identical to the original except that rather than seeking the appointment of a temporary guardian, Joshua is now seeking the appointment of NYSARC as his permanent guardian. Additionally, the amended petition lists Joshua's adult siblings as interested persons. Jurisdiction is complete.

Footnote 2: In June 2015, Joshua had surgery for a recurring non-malignant brain tumor and required significant rehabilitation therapy thereafter.

Footnote 3: Ms. Glen informed the court that a consortium which she directed had just been awarded a grant for a project called Supported Decision-Making New York from the New York State Developmental Disabilities Planning Council, and that ARC was a member of the consortium. While she believed she could continue to serve in an unbiased fashion, she resigned to avoid any potential conflict of interest or appearance of impropriety.

Footnote 4: Mental Hygiene Law § 81.01 provides in relevant part: "The legislature finds that it is desirable for and beneficial to persons with incapacities to make available to them the least restrictive form of intervention which assists them in meeting their needs but, at the same time, permits them to exercise the independence and self-determination of which they are capable. The legislature declares that it is the purpose of this act to promote the public welfare by establishing a guardianship system which is appropriate to satisfy either personal or property management needs of an incapacitated person in a manner tailored to the individual needs of that person, which takes in account 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 such person's life."

Footnote 5: Mental Hygiene Law Section § 81. 36 provides for the discharge or modification of guardianship powers and provides that "[t]o the extent that relief sought under this section would terminate the guardianship or restore certain powers to the incapacitated peron [sic], the burden of proof shall be on the person objecting to such relief. To the extent that relief sought under this section would further limit the powers of the incapacitated person, the burden shall be on the person seeking such relief."

Footnote 6: The extreme delay in issuing this decision was occasioned by an unconscionable, almost two-year, delay in production of the trial transcript, despite the court's frequent, nearly weekly requests to the court reporter for the transcript. Ultimately, months after the conclusion of the trial, the transcript came in piecemeal, with sections missing, other sections duplicated with different pagination, some pieces so full of errors and/or complete failures of transcription that the court needed to return them to await more accurate transcriptions. When, at last, it appeared that the complete transcript had been received, a member of the court's law department sat with counsel to review the transcript in its entirety to make sure everyone was literally on the same page. Shortly thereafter, the Court shut down as a result of the Covid pandemic, and post-trial briefs were delayed, as counsel required access to the State library.

Footnote 7: In her final report and recommendation, Kristin Booth Glen states that she dropped her investigation into what arrangements Ms. S. had made for Joshua's accommodations and services in North Carolina when Ms. S. said in the spring of 2016 that she was moving from North Carolina to Troy, New York. It is not clear whether Ms S. did in fact move to Troy.

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