GUARDIANSHIP DISPUTE REVEALS FAMILY TURMOIL

A family torn apart.

In the Matter of Annamarie O., NYLJ 2020-04-03, Court: Surrogate's Court, Richmond,  Judge: Surrogate Matthew Titone,  Case Number: G-64/92:


"Upon the death of a caregiver and court appointed guardian, the standby guardian is expected to step into the guardian’s role with the best interest of the ward in mind (see SCPA article 17-A). With a ward such as Annamarie O., this responsibility cannot be taken lightly given her inability to care for herself.


A properly qualified standby guardian under SCPA §1757 (2) may serve for up to sixty (60) days before returning to court, either to seek permanent guardianship, or renounce that role in favor of another. SCPA §1757 (2) further provides that “[b]efore confirming the appointment of the standby guardian or alternate guardian, the court may conduct a hearing pursuant to section seventeen hundred fifty-four of this article upon petition by anyone on behalf of the person who is intellectually disabled or person who is developmentally disabled or the person who is intellectually disabled or person who is developmentally disabled if such person is eighteen years of age or older, or upon its discretion” (see also In Re Stevens, 17 Misc 1121 (A) [Sur Ct, NY County 2007]).


Pursuant to SCPA §1757, a parent, namely, Joseph Sr., would have priority of right to be appointed guardian. However, pursuant to SCPA §1755, "The court shall so modify the guardianship order if in its judgment the interests of the guardian are adverse to those of the person who is intellectually disabled or person who is developmental disabled or if the interests of justice would be best served including, but not limited to, facts showing the necessity for protecting the personal and/or financial interests of the person who is intellectually disabled or person who is developmentally disabled.


There is a strong preference for granting guardianship to parents over a “stranger” (In re Timothy R.R., 42 Misc 3d 775, 782 [Sur Ct, Essex County 2013], citing Matter of Dietz, 247 App Div 366, 367 [1st Dept 1936]). This presumption only stands when there is no evidence relative to the unfitness of the parent (id. at 781; cf. In re Audrey D., 48 AD3d 806, 807 [2d Dept 2008]).


The issue in the current proceeding is whether the current standby guardian, Joseph Sr., would be the best successor guardian. His sons are objecting to his appointment, and one, Joseph Jr., has also filed a petition for guardianship of Annamarie O. The court retains a high level of discretion in a contested guardianship proceeding to decide who is best suited to care for the ward (see Matter of Stuart, 280 NY 245, 250 [1939]; see also In Re Stevens, supra).


This court “must consider the emotional needs of the incapacitated individual, her physical and intellectual needs, and the limitations imposed upon her as a result of her disability” (Stevens, supra).

There may be some dispute as to a five-year period after the parents of Annamarie O. divorced, but otherwise, Annamarie O. was clearly the responsibility of her mother Patricia. She continually resided with Patricia who cared for her and attended to her needs. Upon Patricia’s death, it was not the standby guardian, nor the alternate guardian who took responsibility for her care, it was Joseph Jr.


It is the opinion of this court that neither petitioner has demonstrated a past history of providing appropriate care for Annamarie O. However, Joseph Jr. has presented witness testimony which evidences a present and persistent involvement in his sister’s appropriate care; Joseph Sr. did not.

This court was able to witness the interaction of Joseph Sr. with his two sons during the hearing, which cannot be evidenced by the hearing transcript. Joseph Sr. was physically separated from his children during the hearing, by choice. He was rude to several witnesses and interrupted the proceedings. More importantly, he did not explain to this court how he would serve in the best interests of the ward if he was appointed guardian.


Procedurally, as standby guardian, Joseph Sr. never confirmed his appointment within the statutory six-month period pursuant to SCPA §1757. He did not act as a co-guardian with Patricia, even prior to their divorce, and was not otherwise an active part of Annamarie O.’s life. Moreover, during Patricia’s illness and after her passing, Joseph Sr. did not care for the ward, or otherwise assist anyone in providing for her care or wellbeing.


The testimony by John provided a disturbing picture of Joseph Sr., in that,


Essentially, your Honor, if you knew my father the way my brother and I know him, you would not be appointing him guardian in this case. He is an abusive man. We grew up in a house with abuse. He was abusive toward my mother. He was abusive to us physically and emotionally. He was not supportive. He paid the bills. He paid the high school tuition. He paid the grammar school tuition for Catholic school so that he could brag about it…And he is inappropriate, quite simply, to be guardian of my sister. He was absent from her life for most of the last 20 years. I think in the last 15 years, I don’t think he saw her more than once or twice or maybe three times unless my brother brought her there when he had her without my mother knowing or without me knowing. Whenever my mother called for assistance, and I was frequently there when my mother would do so, he wouldn’t pick up the phone. When he would pick up the phone, he would say nothing but mean things to her…I think I put it all basically to you. Mr. O., Sr. should not be appointed guardian under any standards of this court. And he is an abusive man who has not had regular contact with my sister for many years, hardly knows her needs (tr at 21).


When asked by the GAL as to why Joseph Sr. and Joseph Jr. sought to be guardians, John responded, “I think in the case of my father, it’s about power or control and some sort of vindication for mistakes made in the past. In the case of my brother, I think it’s possible that now with the passing of my mother he feels sorry for his lack of contact and seeking to make it up. His [sic] would seem to be better motivated, my brother” (id.).


Joseph Jr. may not have provided a consistent past history of caring for his sister. However, at a critical moment, he did assume the role as caregiver; although, he held no legal obligation to do so. He brought his sister to live with him, and later, secured a safe environment for her to reside where she would be provided the proper care. These events occurred while the rest of the family were not involved in the ward’s care (tr at 58). Furthermore, Joseph Jr. has experience with the developmentally and intellectually disabled community, and he even founded a charitable organization in honor of Annamarie O.


The testimony of the GAL, Schnabel and Daramy, who had personal knowledge of Joseph Jr.’s relationship with Annamarie O., paint a picture of a genuinely caring brother whose involvement in his sister’s care fosters a nurturing environment.


The testimony supports Joseph Jr.’s application over that of the natural father, Joseph Sr. A natural father is normally preferred as the guardian. Nevertheless, the failure to step up when needed and the failure to be an active caretaker over the past twenty years weighs heavily on this court’s decision. The court’s first and foremost obligation is to protect the interest of the most vulnerable in our society.


It is, therefore, the opinion of this court that Joseph Jr. be appointed guardian of the person and property of the ward for a period of one year. The temporary appointment is necessary in this proceeding. Unlike Article 81 of the Mental Hygiene Law, SCPA article 17-A does not provide for continuing supervision of the guardian. Should the guardian be incapable of serving, this court wants to ensure that the ward is safe and cared for. Therefore, this appointment will expire one year from the date of this order, and the proceeding will then return to this court’s calendar."