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."
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