MA CHILD WELFARE - PATTERN OF NEGLECT OR MISCONDUCT NOT REFUTED

 

IN RE ADOPTION OF COLTON, No. 25-P-710. Mass: Appeals Court 2026:

"HERSHFANG, J.

After trial, a judge of the Juvenile Court entered decrees terminating the mother's parental rights to two of her children, Alison and Colton.^[2] The mother maintains that the judge erred by placing too much weight on the mother's history rather than focusing on evidence of the significant and laudatory changes she had made. She also asserts that the judge improperly failed to order posttermination visitation with the children. We affirm.

Background. Alison was born in June 2019. At the time of trial, she was five years old. Colton was born in January 2021. At the time of trial, he was three years old. The mother tested positive for marijuana and alcohol during her pregnancy with Alison, and both children were exposed to Suboxone, a substance taken by the mother to manage a heroin addiction that began after she was raped at age twelve and which, after many efforts, she had successfully learned to manage. When Colton was eight days old, he was diagnosed with a skull fracture; both parents denied knowing the cause, and an investigation conducted pursuant to G. L. c. 119, § 51B, supported allegations of physical abuse by the parents.

Alison lived with both parents for approximately the first two years of her life. Colton lived with both parents from his birth in January 2021 until May 2021, when the father was awarded conditional custody of both children. The mother had not had custody of either child since May 2021, although she lived with them occasionally, as discussed below. In early November 2021, the Department of Children and Families (department) was awarded temporary custody of both children. The children have been in a preadoptive kinship foster home since December 2021.

Beginning at age eighteen, the mother was the victim of domestic violence in her intimate relationships. At age twenty-two, the mother became pregnant with her oldest child, who was in the department's custody and not a subject of this proceeding. That daughter was removed by the department after the mother was in a collision while driving with the child in the car. The mother was arrested and charged with possession of heroin and operating a motor vehicle while under the influence of drugs.

The mother and the father were married in 2019, shortly before Alison was born, when the mother was twenty-six years old. Around that time, the maternal grandmother saw bruises all over the mother's body and worried that the father was abusing the mother. Between 2020 and 2022, the parents obtained many abuse prevention orders against each other pursuant to G. L. c. 209A (209A orders). Those included multiple 209A orders against the mother directing her to have no contact with and stay away from the father. Each parent sought 209A orders against the other and then violated them. At different times, each parent was charged with assault and battery on the other. Both children witnessed violence and arguments between their parents beginning at a very young age. Despite the violence in their relationship and their frequent, bilateral restraining orders, the parents continued to live and vacation together.

The mother reported to the department that she had not used heroin since 2017, right before she began receiving Suboxone treatment. She tested positive for cocaine twice since 2017, most recently in December 2021. She also tested positive for codeine in January 2024, which was six months before trial commenced. As part of the mother's action plan, the department asked her to submit to regular urine screens. Since 2021, the mother many times tested positive for substances, including alcohol, marijuana, codeine, and Suboxone. The mother missed numerous urine screens.

In May 2023, the department added a requirement to the mother's action plan tasks that the mother abstain from alcohol. After the results of three screens were negative for alcohol in July and August 2023, the mother missed three months of urine screens. The results of her last three urine screens before trial were positive for alcohol. The mother completed one of her two scheduled substance use evaluations prior to trial. That evaluation stated that although results of her urine screens have consistently been positive for "a low amount" of alcohol, she has "never presented as under the influence of any substance."

Addressing her history of domestic violence and trauma has been an ongoing effort for the mother. Before the department took custody of the children, she engaged intermittently in therapy with a series of providers. The mother has been diagnosed with posttraumatic stress disorder, anxiety, and bipolar disorder. Twice she voluntarily sought inpatient mental health treatment, in May 2020 for seven days and in May 2022 for nine days. She attributed these admissions to symptoms of postpartum depression that were exacerbated by the department's removal of the children.

Following the children's removal in early November 2021, the mother's action plan tasks included engaging with an individual therapist to address traumas related to her substance use history, addiction, and involvement with the department. Adding this requirement did not meaningfully change the mother's level of engagement with therapy. The department gave the mother references and resources to help her meet the tasks on her action plan. Although she expressed her willingness to participate, the record again reflects only intermittent engagement before August 2023. Between May and August 2022, the department could not assess the mother's use of services because the mother did not keep active releases for the department to speak to her providers. Between January and March 2023, she met four or five times with a new therapist but then stopped attending her sessions. As late as April 2023, she had yet to begin taking medication prescribed in February to treat bipolar disorder. Beginning in August 2023, she engaged in weekly therapy with a second therapist. She continued this treatment through trial.

Throughout the pendency of the case, the mother experienced instability in housing and employment. During the period of the department's involvement with Alison and Colton, the mother lived with her own parents, with the children's father (sometimes in violation of active restraining orders), in a motel, in her car, in shelters, and in her own apartment. When confronted in October 2021 about living with the father in violation of restraining orders and custody arrangements, the mother told a department social worker that she and the father had been "together this whole time" and asserted that she would "continue to violate whatever to be able to spend time with [her] kids." In September 2023, the mother found stable housing in Providence, Rhode Island, where she had a three-bedroom, two-bathroom apartment.

From the time of Alison's birth, the parents' volatile relationship was central to their family life. The children were removed in April 2021 because they were being put in the middle of the parents' constant fighting, yet the parents failed to comply with repeated requests by the department to stop spending time together. The parents violated the conditional custody order by communicating in emotional text messages, telephone calls, and in-person exchanges of the children. They argued in front of the children and struggled to coparent. In May 2021, the police were dispatched to the father's home because the parents were arguing. The father obtained another 209A order against the mother.

The parents continued their tumultuous relationship. In September 2021, they traveled together to New York City to celebrate the father's birthday, leaving each child with a caretaker not approved by the department. On the way home, the parents picked up Alison, arguing bitterly. The mother, father, and children were living together at the time, unbeknownst to the department and in violation of the conditional custody order.

Some of the parents' disputes were physical or involved threats of physical violence. In October 2021, the mother reported that the father had "choked" her in the presence of both children and that Alison had tried to intervene by hitting the father. The father reported that the mother had "hacked into his phone" and changed his voicemail greeting and that she had left him over one hundred threatening voicemail and text messages, some of which were later corroborated by a department social worker.

The parents twice went to Las Vegas together and misrepresented their whereabouts to the department. In late December 2021, the parents canceled two scheduled visits with the children, claiming they had COVID-19. Actually, they had been in Las Vegas. At that same time, a department social worker had sent the mother a $325 gift card to help pay for rent, but a week later, the mother had to move out of her room in a motel because she owed $300. The mother showed poor money management skills and prioritized taking a vacation over having stable housing. She gave conflicting statements about where she was living, asserting that she was living in her car or, alternatively, with the father.

In January 2022, the parents received a judgment of divorce nisi, with a finalization date of April 28, 2022. This did not end their troublesome patterns. That same month (January 2022), the police were called to the father's home for an alleged mutual assault by the parents. The father reported that the mother had punched him repeatedly on the left side of his face, which was red. The mother reported that the father had grabbed and punched her, showing the officer that her neck and chest were red. The mother reported to a department social worker that she had again been living with the father. Another 209A order issued against the mother, effective for one year, that forbade her from contacting the father, coming within twenty-five yards of him, or coming to his residence.

Between February 26 and March 6, 2022, while the 209A order remained in effect, the mother again traveled to Las Vegas with the father. When asked about this trip, the mother explained that she had minimized its costs; she acknowledged having asked the department for financial assistance when traveling to Las Vegas and asked, "aren't we supposed to use our resources?"

In March 2022, the mother again violated the 209A order and was arrested at the father's house. She missed a visit with the children because she was incarcerated. In July 2022, the mother sought out the father's new girlfriend on an online social media site, broke into his voicemail and listened to a message from the girlfriend, and reported to the department that the father had shown up at her work location. The 209A order against the mother was still in effect at that time.

On July 31, 2022, the mother was living on Cape Cod and the father in New Bedford, yet they ended up at a pub in New Bedford at the same time. They fought over the mother's cellular telephone and the father hit the mother. The mother admitted to police that she knew she was violating the 209A order by meeting the father. The mother was arrested for violating the 209A order and the father was charged with assault and theft. Despite this, during a late-August visit with the children, the mother told them details about their next visit with the father, leading the trial judge to infer that the mother had communicated with the father even after the pub incident on July 31, 2022. This conflicted with the mother's reports that she had no contact with the father since then.

The mother's action plan tasked her with completing domestic violence counselling programs. Although she had a fitful start, she completed two in October 2022. And, in December 2023, she completed a program called "Behavioral Health Supports for Justice Involved." Since 2022, the mother has not been accused of violating a 209A order.

Still, the mother's contact with the father continued. In November 2022, the mother sent an e-mail message with an online video recording of the father's fiancée to a department social worker. On January 24, 2023, a department social worker listened to a voicemail the mother had left for the father earlier that month. The father knew facts about the mother's life, including that her car had been repossessed in November. Also in January 2023, the mother reported that the father was harassing her on social media and had shown up at her home and flattened her tires. The mother subsequently obtained a 209A order against the father on January 27, 2023, but three months later, while the order remained in effect, continued to monitor the father's social media posts, which she showed to a department social worker. When asked about this by a department social worker and a court investigator, the mother denied having done so. She told the court investigator she had not had any contact with the father since the summer of 2022. The trial judge did not credit these denials, remarking that the father "was also aware of [the m]other's car being repossessed" in November 2022 and that the mother "continued to monitor [the father's] social media and keep up with his life" after she obtained a 209A order in January 2023.

The mother frequently blamed others for the positive results on her drug and alcohol screens. When her urine tested positive for cocaine, the mother denied using the drug and suggested that she might have been exposed to it from hugging her brother (a cocaine user) or from the father's having laced her marijuana with cocaine. She offered to take a hair follicle test if the department would pay for it but did not take the test when the funds were secured. In October 2022, she blamed irregularities in her Suboxone use on the father's having purportedly stolen her prescription. In June 2023, the mother claimed that her car had been repossessed with her prescriptions inside, so she was not taking either her prescribed Suboxone, which she was buying on the street or getting from a friend, or her psychiatric medications. In July 2023, the mother told a department social worker that she believed the maternal grandmother was "sabotaging" her by putting alcohol in her food, claiming she had not consumed alcohol since April 2023. On January 4, 2024, after testing positive for codeine, the mother denied using codeine and asked for a urine screen, then did not produce the result to the department.

The mother, at times, deprived the department of requested information about her substance use and participation in services in general. For example, although it was a part of the conditional custody order and a task on her action plan that the mother sign all necessary releases, the mother did not do so. And between February and May 2022, the department was unsuccessful in obtaining urine screens from the mother; when those screens were later produced, the results were all positive for alcohol. The mother testified at trial that her positive alcohol screens resulted from her being required to drink as part of her bartending jobs, an explanation that the judge did not credit but rather viewed as "additional evidence of [the m]other's lack of accountability for her actions."

In April 2023, the mother was unemployed. She gave conflicting reports to the department and her Suboxone provider about where she was living. To the Suboxone provider, she reported that she was spending most of her nights at the home of a boyfriend who had been released from jail and was on house arrest. To the department, she reported that she was living at the maternal grandparents' home.

The mother's move to an apartment in Providence in September 2023 coincided with new stability in her life. She obtained that apartment with the help of a community outreach worker who had been advising her about money management skills and housing applications weekly since early 2023. She continued to see her psychiatric nurse practitioner and her Suboxone provider. She also met weekly with a new therapist. The mother reported to a department social worker that she had ended a new relationship when she noticed that her partner was getting angry easily and raising his voice. The mother had a new car as well as a new job. When asked by the social worker, the mother described having learned many ways to seek and cultivate healthy relationships.

In October 2023, the mother completed a six-part education series, "Raising Healthy Families." When the father reached out to her the next month on social media, the mother reported having sent him an e-mail message telling him they could not communicate with each other. When the social worker asked to see the mother's prescription medications, the mother was initially unable to locate them; when she found them, it had been more than three months since she had filled her prescriptions for treatment of bipolar disorder and anxiety. In early 2024, she reported that she was taking her medications as prescribed.

Between November 2021 and August 2024, when trial was underway, the mother consistently attended visits with the children, which generally went well. The mother was largely appropriate, and the children were happy. The judge found that "[t]he visits would end well with [the m]other bringing the children to the social worker's car and giving them hugs and kisses." However, Alison and Colton both struggled behaviorally after the visits. The judge found that "[t]he children are confused by statements [the m]other makes about going home and talking about their bedrooms at home." As a result, the department reduced the mother's visits from one hour weekly to ninety minutes every other week and required every other visit to occur at the public library. The mother testified at trial that if she was awarded custody of Alison and Colton, she would need at least six months before she could care for them full time. She explained that she needed time to "get to know" the children, because "she barely knows the[m] and they barely know her."

Since December 2021, the children have lived together in a preadoptive kinship foster placement. Alison was two years old at the time they entered this home and Colton was ten months old. The preadoptive father is a sibling of the children's maternal grandmother (a great uncle) who is only about ten years older than the mother. The preadoptive mother is his long-term partner and fiancée; she works as a supervisor at the local hospital. The preadoptive parents ensured that Alison got the therapy she needed and supported her therapeutic needs at home. She was doing well in school and enrolled in swim and dance classes. She was a good big sister to Colton. Colton successfully completed an early intervention program. The preadoptive father helped Colton adjust after visits with the mother, which caused "aggressive behaviors towards his peers at daycare." Colton sought out the preadoptive father for attention and affection and the preadoptive father was patient and calm with him. Both children were thriving in the preadoptive placement.

Discussion. 1. Termination of parental rights. "Although the law recognizes that the custody, care and nurture of the child reside first in the parents, where those parents have failed to fulfil the duties of parenthood, their rights are no longer paramount" (quotation and citation omitted). Department of Pub. Welfare v. J.K.B., 379 Mass. 1, 5 (1979). "In deciding whether to terminate a parent's rights, a judge must determine whether there is clear and convincing evidence that the parent is unfit and, if the parent is unfit, whether the child's best interests will be served by terminating the legal relation between parent and child." Adoption of Ilona, 459 Mass. 53, 59 (2011). For evidence to be clear and convincing "[t]he requisite proof must be strong and positive; it must be `full, clear and decisive.'" Adoption of Chad, 94 Mass. App. Ct. 828, 838 (2019), quoting Adoption of Iris, 43 Mass. App. Ct. 95, 105 (1997), S.C., 427 Mass. 582 (1998).

The decision to terminate parental rights requires "a two-part analysis." Adoption of Nancy, 443 Mass. 512, 515 (2005). "First, the judge must find that the parent is presently unfit." Adoption of Cadence, 81 Mass. App. Ct. 162, 167 (2012). "The judge `must also find that the current parental unfitness is not a temporary condition.'" Adoption of Querida, 94 Mass. App. Ct. 771, 777 (2019), quoting Adoption of Virgil, 93 Mass. App. Ct. 298, 301 (2018). "Second, the judge must find that `it would be in the child's best interests to end all legal relations between parent and child.'" Adoption of Cadence, supra, quoting Adoption of Nancy, supra.

"We review the judge's findings with substantial deference, recognizing her discretion to evaluate a witness's credibility and to weigh the evidence," Adoption of Nancy, 443 Mass. at 515, "and [we] reverse only where the findings of fact are clearly erroneous or where there is a clear error of law or abuse of discretion." Adoption of Ilona, 459 Mass. at 59. On appeal, "we do not disturb" findings where the challenge is "based on the judge's credibility determinations." Adoption of Querida, 94 Mass. App. Ct. at 778.

The mother does not contest the trial judge's subsidiary findings of fact. Instead, she challenges the judge's weighing of the evidence, asserting that the judge paid inadequate attention to the mother's "present flourishing" and too much to her past conduct. "In the main [her] arguments simply reflect dissatisfaction with the judge's `weighing of the evidence and [her] credibility determinations.'" Adoption of Hugo, 428 Mass. 219, 224 (1998), cert. denied sub nom. Hugo P. v. George P., 526 U.S. 1034 (1999), quoting Adoption of Quentin, 424 Mass. 882, 886 n.3 (1997). But "the judge's assessment of the weight of the evidence and the credibility of the witnesses is entitled to deference." Custody of Eleanor, 414 Mass. 795, 799 (1993). A judge is neither obligated to credit all evidence equally, see Care & Protection of Three Minors, 392 Mass. 704, 711 (1984), nor "required to view the evidence from the parent's perspective." Adoption of Lisette, 93 Mass. App. Ct. 284, 295 (2018).

The mother stipulated to her current unfitness in May 2023, and the children were committed to the permanent custody of the department. Since then, she emphasizes, much has changed. And so it had. The mother made significant strides in maintaining sobriety from heroin; she found suitable housing; she was employed, at least seasonally, in a professional position, and when that job waned, she found other work so as to maintain an income; and she terminated a relationship when she realized her partner was "getting mad easily and raising his voice." She completed an education series, "Raising Healthy Families." She rejected one communication from the father. She attended virtual meetings of "Alcoholics Anonymous" and "Narcotics Anonymous."

The judge's findings acknowledged each of these laudable advances. Nonetheless, "[a] judge properly may consider a pattern of parental neglect or misconduct in determining future fitness and the likelihood of harm to the child." Adoption of Elena, 446 Mass. 24, 33 (2006). "Although `stale information cannot be the basis for a finding of current parental unfitness. . . history . . . has prognostic value.'" Adoption of Jacques, 82 Mass. App. Ct. 601, 607 (2012), quoting Adoption of George, 27 Mass. App. Ct. 265, 268 (1989). "[A] judge's conclusion that a parent's unfitness is temporary," and termination of parental rights is therefore not warranted, "must rest on credible evidence supporting a reasonable likelihood that the parent will become fit, not on a `faint hope.'" Adoption of Ilona, 459 Mass. at 59, quoting Adoption of Inez, 428 Mass. 717, 723 (1999). "Even where a parent has participated in programs and services and demonstrated some improvement, we rely on the trial judge to weigh the evidence in order to determine whether there is a sufficient likelihood that the parent's unfitness is temporary." Adoption of Ilona, supra at 59-60.

The mother lost custody of Alison and Colton three years before this matter came to trial, a period longer than one-half of Alison's life and all of Colton's. In that time, and despite her evident and heartfelt desire to be their custodial parent, the mother persisted in patterns of behavior that endangered that possibility. Despite her significant positive steps — which we do not overlook, and which are a credit to her — the judge found that aspects of the mother's troubling history persisted from May 2023 to the time period of the trial, and she inferred from that evidence that the mother had not truly changed. In June 2023, for example, the mother informed her psychiatrist that she was not taking her prescribed Suboxone or her psychiatric medications. She was taking her friend's Suboxone or buying it "off the street" and living in her car. When she tested positive for alcohol that month, the mother complained that the maternal grandmother was sabotaging her by putting alcohol in her food, and that she had not drunk alcohol since April 2023. She did not attend a foster care review on November 2, 2023.

The mother also continued her troubling and violent relationship with the father, despite the existence of 209A orders against her (which the judge found she repeatedly violated), contrary action plan tasks, and multiple requests by the department that she stop. "It is well documented that witnessing domestic violence, as well as being one of its victims, has a profound impact on children." Custody of Vaughn, 422 Mass. 590, 599 (1996). "Violence within a family is highly relevant to a judge's determination of parental unfitness and the best interests of the children," Adoption of Gillian, 63 Mass. App. Ct. 398, 404 n.6 (2005), because a child who witnesses "such abuse suffers a distinctly grievous kind of harm." Custody of Vaughn, supra at 595. The mother repeatedly misled the department with respect to her contact with the father into at least early 2023. The trial judge found that the mother "significantly minimize[d] her role" in the parents' "toxic" relationship and the effects of that abusiveness on Alison and Colton. Thus, "[t]he evidence in this case supported the judge's reliance on domestic violence as a significant factor in deeming the mother unfit." Adoption of Jacob, 99 Mass. App. Ct. 258, 264 (2021).

In both November 2023 and February 2024, the department discovered evidence suggesting the mother was not regularly taking her prescribed medications. She declined department home visits in December 2023 and January 2024. Also that January, her urine tested positive for codeine and alcohol but not her prescribed medications. As had been true with the positive cocaine results, the mother denied using codeine; once again she was afforded an opportunity to get a second test, but again she did not do so. This evasive behavior in avoiding home visits, combined with the positive results of urine screens and the mother's denial that she had used a substance revealed by the screens, echoed some of her earlier behavior. In a further echo, she missed three appointments with her psychiatrist between October 2023 and January 2024 and stated two months before trial that she would not have so many appointments with providers if the department were not involved.

Trial began in June 2024. That September, the mother missed two trial dates because she was in Florida for a business trip. The judge did not credit the mother's testimony that her return had been delayed when she contracted COVID-19, and the judge then concluded that the mother's decision to leave Massachusetts during trial "call[ed] into question her judgment and priorities" regarding her children. "[A] trial judge has discretion to determine whether to draw an adverse inference from a parent's absence. . . . In determining whether to exercise that discretion, `the judge as fact finder' is to consider whether such an inference is `fair and reasonable based on all the circumstances and evidence before' her." Adoption of Talik, 92 Mass. App. Ct. 367, 372 (2017), quoting Singh v. Capuano, 468 Mass. 328, 334 (2014).

The judge was "entitled to consider the evidence of [the mother's] recent improvements within the context of her earlier and continuing deficits." Adoption of Jacques, 82 Mass. App. Ct. at 608. And where, as here, the "judge's factual findings were specific and detailed, demonstrating that close attention was paid to the evidence and the fourteen factors listed in G. L. c. 210, § 3 (c)," we cannot say that the trial judge clearly erred by not including specific facts or giving more weight to certain facts than others. Adoption of Nancy, 443 Mass. at 516. Considering the evidence of the mother's longstanding history with domestic violence and substance misuse; her continued failure to confront her own role in both, and their impact on Alison and Colton; her persistent refusal to take responsibility for positive results of drug and alcohol tests; and her poor money management history, "the judge did not clearly err in finding that the mother was unfit and that her unfitness was not temporary." Adoption of Ilona, 459 Mass. at 62.^[3]

"Because childhood is fleeting, a parent's unfitness is not temporary if it is reasonably likely to continue for a prolonged or indeterminate period." Adoption of Ilona, 459 Mass. at 60. By the time trial concluded in October 2024, Alison and Colton were both "thriving" in the preadoptive placement where they had been for three years. The mother, by her own testimony at trial, felt she needed at least six more months before she might be capable of parenting Alison and Colton full time. For five years since Alison was born, however, the department had already been providing services to the mother aimed at preparing her to parent the children full time. Where the mother had become stable only in the year before trial and acknowledged she still needed more time, "the court must say, `Enough,' and act in the children's best interests." Adoption of Inez, 428 Mass. at 724, quoting Adoption of Carlos, 31 Mass. App. Ct. 233, 242 (1991), S.C., 413 Mass. 339 (1992). Affording "substantial deference" to the trial judge's findings, as we must, Adoption of Nancy, 443 Mass. at 515, we cannot say that she "abused [her] discretion or committed a clear error of law" in concluding that the mother's current unfitness was not likely to be temporary. Adoption of Elena, 446 Mass. at 30.

2. Posttermination visitation order. The mother also challenges the judge's conclusion that it was not necessary to enter an order for posttermination visitation. While we agree with the department that this issue could have been better preserved for appeal, we exercise our discretion to address it, as the judge discussed it in her decision. See Adoption of Mary, 414 Mass. 705, 712 (1993). A "judge who finds parental unfitness to be established has broad discretion to determine what is in a child's best interests with respect to custody and visitation with biological family members thereafter." Adoption of Rico, 453 Mass. 749, 756 (2009). In determining whether such visitation is in a child's best interests, the judge must consider whether the child has a "significant, existing bond with the biological parent" and whether "the child `has formed strong, nurturing bonds'" with a preadoptive family. Adoption of Ilona, 459 Mass. at 63-64, quoting Adoption of Vito, 431 Mass. 550, 563 (2000). "A judge should issue an order of visitation only if such an order, on balance, is necessary to protect the child[ren]'s best interest[s]." Adoption of Ilona, supra at 65.

The judge concluded that, while the evidence "demonstrate[d] that [the m]other's visits with the children generally went well, and the children were happy to see her" and had "fun at visits with their mother," they also had "a hard time following the visits and [took] a couple of days to regulate." The judge noted the mother's testimony that the children barely know her, and she barely knows them; she further noted that the preadoptive parents "support[ed] continued contact between the children and [the m]other so long as [the m]other is sober and her mental health is stable." The judge's ultimate conclusion that a visitation order was not necessary to protect the children's best interests followed her careful weighing of the evidence of the children's bonds with their mother against their needs and connections with the preadoptive family. We discern no abuse of discretion in the judge's ruling.

Decrees affirmed.

WOOD, J. (dissenting).

"The natural bond between parent and child should not be permanently severed unless the child's present or future welfare demands it. None of our cases, in which we have said that current parental unfitness is a prerequisite to the allowance of a petition to dispense with consent to adoption, should be construed as requiring such an extreme step whenever the parents are currently unfit, or as limiting the inquiry to parental fitness at the time of trial."

Adoption of Carlos, 413 Mass. 339, 350 (1992).

To establish that the termination of parental rights is warranted, it is not enough to find that the parent is currently unfit. "The judge must also find that the current parental unfitness is not a temporary condition" (quotation and citation omitted). Adoption of Querida, 94 Mass. App. Ct. 771, 777 (2019). There must be clear and convincing evidence that "the mother's current unfitness is likely to continue indefinitely." Adoption of Arianne, 104 Mass. App. Ct. 716, 721 (2024). "The requisite proof must be strong and positive; it must be `full, clear and decisive'" (citation omitted). Adoption of Iris, 43 Mass. App. Ct. 95, 105 (1997), S.C., 427 Mass. 582 (1998).

I agree with the majority that the judge did not clearly err or commit an abuse of discretion in finding that the mother was currently unfit at her 2024 trial. But I disagree with the majority's second conclusion that the judge did not clearly err or commit an abuse of discretion in ruling "that said unfitness is likely to continue into the indefinite future to a near certitude."

The judge found that the mother's "lack of progress throughout the pendency of this matter is a strong indicator that her unfitness will continue undiminished into the future with an attendant harmful [e]ffect on the children." In fact, the record evidence established, and the majority acknowledges, that the mother made significant "progress" since the Department of Children and Families (department) was granted temporary custody of her children in November 2021. Specifically, the mother made great strides in managing her substance use disorder; freeing herself from a "toxic," violent domestic relationship; and achieving safe housing and financial stability. Collectively, this progress established an undeniable upward trend toward fitness, such that the judge clearly erred in weighing the factors relevant to the decision whether the mother's "unfitness is likely to continue into the indefinite future to a near certitude." See L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014) (defining abuse of discretion). "The judge, having been alerted to what had been reported as the mother's recent positive gains, should have considered whether she would be likely to improve in the future." Adoption of Imelda, 72 Mass. App. Ct. 354, 363 (2008). Accordingly, I dissent.

The judge focused on three areas of concern in the mother's life: (1) her substance misuse; (2) her past abusive relationship with the children's father; and (3) her financial irresponsibility in the face of housing insecurity. I discuss each area of concern as well as the mother's health.

1. Substance misuse. The mother struggled to overcome a heroin addiction in rehabilitation programs for fourteen years, from the ages of twelve to twenty-six. Then, in January 2018, she began receiving Suboxone treatment (before either of the subject children were born). She had been sober from heroin since that date. Indeed, during the pendency of this case, the mother took eighteen department-mandated urine screens, from August 2021 to April 2024, all of which showed results that were negative for heroin.

The mother tested positive for cocaine twice in 2021, and once for codeine in January 2024. The mother drank alcohol and used marijuana in moderation, but her substance use evaluator did not report any concerns about that behavior. The mother never presented as intoxicated during nearly three years of weekly supervised visits with her children, from November 2021 to June 2024, and was never reported to have been under the influence anywhere else.

The majority focuses on the fact that the department's action plan tasks gave clear instructions to abstain from alcohol, and the fact that the mother repeatedly deflected and avoided responsibility for her alcohol consumption. I agree that the mother's deflection of responsibility for consuming alcohol supports the judge's finding of current unfitness.

But it is also clear that the mother's multiyear struggle to maintain sobriety demonstrated a sustained commitment to achieving parental fitness. To the extent that the judge was concerned the mother's use of alcohol and marijuana supported a potential relapse into substance abuse, "[t]he passage of [more than] four years [since she achieved sobriety] is too long a period to rely on the predictive value of past behavior without verification — especially when evidence contradicting the prediction is readily available" (footnotes omitted). Adoption of Rhona, 57 Mass. App. Ct. 479, 486 (2003), S.C., 63 Mass. App. Ct. 117 (2005).

2. Domestic violence. The mother had a toxic and destructive relationship with the father. But over the course of six months from August 2022 to January 2023, she extracted herself from that relationship. At the very least, that achievement demonstrated progress toward fitness, and undermined the probative value of this factor as evidence of permanent unfitness.

The mother scheduled an intake appointment with a provider on August 15, 2022, seeking to reengage in its domestic violence education and prevention services. As the majority notes, the mother completed two domestic violence counselling programs. On January 27, 2023, she obtained a restraining order against the father.^[1] From that point forward, there is no evidence that she had contact with the father except for a single e-mail message in November 2023, following the father's violation of that order, to tell him that they could not communicate.^[2] Finally, in October 2023, she completed a third education program about domestic violence, a six-part series entitled "Raising Healthy Families."

"At trial, there was no evidence presented that domestic violence . . . was still present in the mother's life." Care & Protection of Laurent, 87 Mass. App. Ct. 1, 4 (2015). Nothing in the record suggested that the mother had seen or even spoken to the father in the twenty-one months leading up to and during trial. Accordingly, the evidence does not support the judge's conclusion that "[i]f the children were returned to [the m]other, it is likely the parents would reengage in communication, and [the m]other would be vulnerable to further abuse from [the f]ather."

3. Housing instability and financial irresponsibility. The judge noted that in December 2021 and February 2022, the mother used department housing funds to travel to Las Vegas with the father. I agree with the judge and the majority that this "showed poor money management skills and [that she] prioritized taking a vacation over having stable housing." Ante at 8. The judge also noted that her decision to leave Massachusetts during trial "call[ed] into question her judgment and priorities to her children." Although I agree that this evidence supports the judge's finding of current unfitness, it was also clear that the mother acknowledged her financial irresponsibility, sought help to address it, and made progress in achieving that goal.

First, the mother maintained relatively steady employment throughout the pendency of this matter, despite experiencing seasonal layoffs and housing instability. Second, in early 2023, at the same time that she was ending the toxic relationship with the father, the mother engaged with a community outreach worker. He met with the mother weekly to teach her money management skills and help her fill out housing applications. With his help, the mother obtained a subsidized apartment in Providence on September 1, 2023.

Also, the mother's undisputed record of consistent and loving weekly visits with her children from 2021 through 2024 spoke to "her judgment and priorities to her children." Collectively, the mother's behavior demonstrated her ongoing commitment to improve her financial situation, maintain "adequate stable housing," and prioritize building a better life for her children. Adoption of Anton, 72 Mass. App. Ct. 667, 676 (2008).

4. Medical and psychiatric diagnoses. Finally, the majority notes that the mother struggled consistently to engage with individual therapy and to take medication prescribed to treat diagnosed medical and psychiatric conditions. But neither the majority nor the judge identified any nexus between those shortcomings and a risk of harm to the children. "Mental [illness] is relevant only to the extent that it affects the parents' capacity to assume parental responsibility, and ability to deal with a child's . . . needs." Adoption of Luc, 484 Mass. 139, 146 (2020), quoting Adoption of Frederick, 405 Mass. 1, 9 (1989). The judge made no such finding here.

Moreover, the mother made progress managing symptoms which corresponded to her diagnoses. First, in January 2023, as she was ending her toxic relationship with the father, she engaged a therapist for a few sessions. Then, after five months of searching for a new therapist, she found one in August 2023. She met with him weekly throughout the trial; by October 2024, she had consistently participated in mental health and substance abuse counselling for fourteen months. Second, at the beginning of 2023, the mother reengaged with her psychiatric nurse practitioner (NP), who prescribed medications to manage symptoms of the mother's conditions. Although the evidence supported the judge's findings that the mother struggled to manage her medication regimen, it also supported that she was making progress on that front. By the start of trial in June 2024, the psychiatric NP reported to the department that she had no concerns about the mother. In any event, as noted, the judge did not find that the mother's diagnoses "affect[ed] [her] capacity to assume parental responsibility." Adoption of Luc, 484 Mass. at 146.

Collectively, in every area of concern, the mother made "significant progress" toward parental fitness, beginning at least eighteen months before trial. Adoption of Carlos, 413 Mass. at 351. This evidence of progress "casts doubt on several of the findings central to the judge's decision." Adoption of Imelda, 72 Mass. App. Ct. at 363. Indeed, the judge's findings of likely future unfitness despite such significant progress over an eighteen-month period before trial is contrary to this court's precedent.

In Adoption of Arianne, 104 Mass. App. Ct. at 721, we held that the trial judge abused his discretion and committed an error of law in terminating a mother's parental rights based on a finding that the mother's inconsistent engagement with family action plan tasks established that her current unfitness was likely to continue indefinitely. After successfully extracting herself from a violent relationship, the mother in Adoption of Arianne participated in a domestic violence support group and individual therapy — but only for a few months at a time, and never as consistently as required by her action plan. See id. at 718-720. She became involved in another toxic relationship, but she left that situation after a single incident of domestic violence. Id. at 718. The mother in Adoption of Arianne participated inconsistently in meetings with her parenting aide, visits with her child, and appointments with her department social worker. Id. at 719. She missed the first day of her termination trial without a reasonable excuse. Id. And yet, this court held that because the mother had escaped from a violent relationship and was working toward fitness, albeit imperfectly, the trial judge's findings did not provide clear and convincing evidence that her present unfitness was likely to continue indefinitely. Id. at 722-723. The mother in this case demonstrated greater consistency in visits and compliance with her action plan tasks than the mother in Adoption of Arianne.^[3] This case is more like the illuminating case of Adoption of Carlos, 413 Mass. at 351, in which the Supreme Judicial Court affirmed the denial of a petition to terminate parental rights. Following three years in which the department had custody of the child, the court in Adoption of Carlos concluded that improvement in the mother's "critical area of parental unfitness" from June 1989 to the date of the evidentiary hearing in "early 1990" established "significant progress," and a reasonable likelihood that her unfitness at trial was only temporary when coupled with the fact that "[t]he child ha[d] been regularly visiting with his mother, and remain[ed] attached to her [and was] eager to return home." Id. at 348, 351.

Because the evidence of the mother's progress undermined the judge's ruling "that [her] unfitness is likely to continue into the indefinite future to a near certitude," I cannot agree that the proof rose to a level justifying the "extreme step" of terminating the mother's parental rights (citation omitted). Adoption of Ilona, 459 Mass. 53, 59 (2011). It was not strong, positive, full, clear or decisive, Adoption of Iris, 43 Mass. App. Ct. at 105; accordingly, I respectfully dissent.

[1] Adoption of Alison. The children's names are pseudonyms.

[2] The father is not a party to this appeal, as he stipulated to the termination of his parental rights and entered into an open adoption agreement for both children in 2023.

[3] The dissent compares the facts in the present case to those in Adoption of Arianne, 104 Mass. App. Ct. 716 (2024), and sees this case as more favorable to the mother. We do not see it that way. The mother in Adoption of Arianne, id. at 717, had successfully parented her child for the first two and one-half years of the child's life before voluntarily placing her in the care of the child's godmother (who was also a relative of the mother) for about ten months. Shortly after the child was returned, the mother again placed her with the relative, because the mother was in a violent relationship from which she sought to shield the child. Id. In vacating the decree terminating the mother's parental rights, we said, "[t]he fundamental problem with the judge's decision is that the judge treated the mother's placing the child in the care of the godmother as neglect." Id. at 721. We concluded that it was "not neglect for a parent who recognizes that she cannot provide her child with a safe or appropriate environment to place the child with appropriate caregivers"; instead, that was "the mark of a responsible parent." Id. We emphasized that a "single instance of domestic violence while the child lived with the mother, where the mother's response protected the child from further exposure to domestic violence, does not demonstrate that the mother's current unfitness is likely to last indefinitely." Id. at 723. No such facts were present here, where the mother's parenting challenges, including a toxic domestic relationship, persisted for years; she did not extricate the children; and, at the time of trial, she continued to exhibit concerning behaviors related to drug and alcohol use, truthfulness with the department, and accountability for her actions.

[1] The mother obtained multiple extensions of the order, and the father was arrested and charged with violating that order in November 2023.

[2] To the extent that the majority and the judge relied on the mother's choice to view the father's public social media posts after she had obtained a restraining order as evidence of unfitness, I disagree. Again, the mother's termination of her relationship with the father and the absence of evidence of contact with him after January 2023 rendered that relationship irrelevant to the mother's fitness by the June 2024 trial date.

[3] The majority distinguishes Adoption of Arianne, 104 Mass. App. Ct. at 722-723, by focusing on the judge's error in that case of construing the mother's decision to leave the child with a godparent as neglect. But the majority does not discuss the evidence in that case which we acknowledged supported a finding of unfitness at trial, notwithstanding the judge's error, or compare that evidence to the evidence of the mother's unfitness in this case. See ante at note 3.

After placing the child with her godmother, the mother in Adoption of Arianne experienced at least two incidents of domestic violence with one partner and then a third with a subsequent partner. See id. at 718. More importantly, after trial, the judge found that the mother still lacked insight into the "impact that [domestic] violence could have on [the child] outside of the physical removal from her mother's custody that occurred as a result." Id. at 718-719. Furthermore, the mother missed about one-quarter of her scheduled visits with her child, and the first day of the termination trial because she "forgot about it." Id. at 719 & n.9. We concluded that these inconsistencies, as well as "[t]he mother's inconsistency with completing action plan tasks, . . . established the mother's unfitness to parent the child as of the time of trial because it demonstrated a lack of focus on parenting the child." Id. at 722. Comparatively, by the time of trial in this case, the mother here had a stronger, albeit still imperfect, "focus on parenting the child." Id. Just as we recognized the absence of clear and convincing evidence in Adoption of Arianne that the mother lacked capacity to achieve fitness, I think we should recognize the absence of clear and convincing evidence here."

ATTORNEY ISSUE WITH ATTEMPT TO TERMINATE GUARDIANSHIP

IMHO, if the application is being contested - the only real change is that the state picks up the legal fees but, with 18-B rates, it will be less than the private rate.

MATTER OF JESSICA LM, 2023 NY Slip Op 23264 - NY: Surrogate's Court, Suffolk 2023:

"Before the court is an application by Jessica L.M. ("Jessica"), who was previously found by this court to be a person with a developmental disability, to terminate her SCPA 17-A guardianship, and revoke the letters of guardianship of the person issued to Paul M. and Deborah M., Jessica's parents.

The record reflects that by decision dated April 2, 2001, and decree dated April 10, 2001, Paul M. and Deborah M., Jessica's parents, were appointed the co-guardians of the person and property of Jessica. The letters of co-guardianship of the property were revoked by order of the court dated June 27, 2007. The petition currently before the court indicates that Paul M. passed away on February 1, 2022. No appeal was ever taken with respect to any of the foregoing orders.

Jurisdiction has been obtained over all persons listed in the petition as necessary parties. Deborah M., the current SCPA 17-A guardian filed opposition to the relief requested.

By her petition, Jessica seeks to terminate her guardianship on the grounds that the guardianship is not necessary, is not in her best interests, and is not the least restrictive means of providing Jessica with the support she may require (US Const Amends V & XIV; NY Const, art I, § 6). Jessica also asserts that she is not a person with a developmental disability within the meaning of SCPA 17-A, that the current guardianship was based on insufficient evidence and violated her due process rights, and that the guardianship is not in her best interests.

In support of their original guardianship petition, the co-guardians submitted affirmations from two examining physicians which indicated that Jessica had been diagnosed with the following: Asperger's syndrome, attention deficit/hyperactivity disorder, bipolar disorder, learning disorder, anxiety disorder, and mild cerebral palsy. The co-guardians also submitted Neuropsychological Evaluations which indicated that Jessica's overall abilities fell within the very superior range, with a Wechsler Intelligence Full Scale IQ of 133 in 1991 and within the average range in 2000, with a Wechsler Intelligence Full Scale IQ of 106.

The court has previously decided several similar uncontested petitions, and in those cases, a guardian ad litem was appointed to verify the allegations set forth in the petition. However, in this case, objections have been filed and issue has joined, leaving the court faced with the question of whether or not to appoint a guardian ad litem, particularly since petitioner is represented by counsel. In addition, the court had further concerns in this matter as to whether or not petitioner's counsel, who is based in Rochester, New York, had been freely retained. Thus, with the consent of all counsel, a hearing on the narrow issue of petitioner's representation was held before the court. Since the petitioner urged that any determination with respect to her should be based upon the provisions and protections of Mental Hygiene Law Article 81, it was agreed that the provisions of MHL §81.10 would be utilized at such hearing. After the hearing the court allowed the parties to submit briefs.

Petitioner's attorney submitted a brief reiterating her argument that Jessica has never been lawfully determined to have a lack of capacity such that she is unable to choose her own counsel, that Jessica demonstrated through her testimony a clear ability to understand the nature and consequences of her decisions as well as her process in retaining counsel, and that Jessica freely and independently chose her counsel.

Mental Hygiene Law (MHL) 81.10(a) provides, in relevant part, that in addition to the court having the ability to appoint counsel, the subject of a MHL Article 81 proceeding has the right to choose and engage legal counsel of the person's choice. However, the court must determine that retained counsel has been chosen freely and independently by the alleged incapacitated person (Id.).

The ability to have counsel of one's own choosing, however, is not absolute. The Court of Appeals of New York has held that

". . . although an individual possesses no absolute right to representation by an attorney of his choice (Greene v Greene, 47 NY2d 447, 452; People v Hall, 46 NY2d 873, cert den 444 U.S. 848; United States v Hobson, 672 F2d 825, and cases cited in footnote, at p 829, cert den 459 U.S. 906; United States v Cunningham, 672 F2d 1064, 1071; United States v Armedo-Sarmiento, 524 F2d 591, 592; United States v Sexton, 473 F2d 512, 514), any restriction imposed on that right will be carefully scrutinized. (United States v Hobson, supra; People v Doe, 98 Misc 2d 805.) An individual's right to select an attorney who he believes is most capable of providing competent representation implicates both the First Amendment guarantees of freedom of association (N.A.A.C.P. v Button, 371 U.S. 415; NY Const, art I, '9) and the Sixth Amendment right to counsel (cf. Faretta v California, 422 U.S. 806; NY Const, art I, '6) and will not yield unless confronted with some overriding competing public interest (Matter of Kelly, 23 NY2d 368, 378, n 3; People v Doe, supra; Matter of Gopman, 531 F2d 262, 268)" (In re Abrams, 62 NY2d 183, 196).

Therefore, while mindful of the restrictions placed on the court by the holding in Abrams, the court is nevertheless bound, given the nature of a guardianship proceeding, to make some inquiry, when the facts so indicate, to determine whether retained counsel is "chosen freely and independently by the alleged incapacitated person" (Matter of Caryl S.S. (Valerie L.S.), 45 Misc 3d 1223(A), 1223A). This is particularly necessary in a proceeding such as the one at bar, where findings have already been made with respect to petitioner's capacity and co-guardians have been appointed.

As previously noted, the question before the court appears to be one of first impression in the context of a SCPA 17-A Guardianship proceeding. As such, no case law could be located to guide the court. Moreover, there is precious little case law decided under MHL §81.10(a) with respect to this issue. Finally, there appears to be no guidance on the issue provided in the Law Revision Commentaries.

It appears that the facts herein are most analogous to those in Matter of Caryl S.S. (Valarie L.S.), supra. In that proceeding, the court found it "troubling" that the attorney purportedly selected by the AIP (alleged incapacitated person), had no prior relationship with the AIP, was brought into the case by the AIP's son, who is alleged to have exerted undue and improper influence over the AIP. The court then disqualified that attorney from further representation and appointed independent counsel for the AIP.

In the within proceeding, Jessica testified that she previously had disputes with her mother, who is the appointed guardian herein, over who would provide care and assistance (or, as Jessica put it, her "staff"). She also testified that it was her staff who advised her that she could terminate her guardianship, found the entity who currently employs her counsel herein, and served as liaison between counsel and her. She never discussed counsel's experience with such matters. Moreover, she similarly testified that she did not independently seek to interview any other attorneys or law firms to provide her with services, nor had she ever utilized the services of an attorney before for any purpose.^[1]

This court, like the court in Matter of Caryl S.S. (Valarie L.S.), supra, is troubled by the facts elicited during the course of the testimony of the subject of the proceeding. The same entity that was one of the major points of dispute between Jessica and her guardian seem to have (1) suggested to her that she could remove her mother's involvement in her decision making by terminating her guardianship; (2) found her attorneys who would represent her in such an application; and (3) had the attorneys make first contact with Jessica, the client, instead of Jessica making the effort to contact them.

As in Matter of Caryl S.S. (Valarie L.S.), supra, while it may not be unusual for an attorney to be contacted or selected by a relative or, as here, an acquaintance, it is unusual when that entity is at risk of being discharged by the guardian and makes such efforts in what could be construed as an attempt to preserve a relationship that benefits it financially.

The court does not, and cannot on the limited inquiry conducted herein, find any wrongdoing on the part of either the agency providing services or counsel. However, the testimony provided by the subject of the proceeding does provide the basis for a determination that Jessica merely acquiesced in the selection of counsel made by her "staff." Although the petition herein alleges that Jessica is a college graduate who has lived on her own since 2008 and makes decisions for herself with minimal assistance from others, her testimony makes it clear that she played a minimal role in the decision-making process with respect to selecting an attorney. Further, it appears that the process was managed by her "staff," an entity that could conceivably benefit financially from the termination of the guardianship, given that the current guardian and Jessica seem to have disagreements as to who would provide care to Jessica.

For these reasons the Court finds and determines that counsel herein has not been chosen freely and independently by Jessica, and as a result Jessica's current counsel is disqualified from representing her in this proceeding. As the testimony confirmed that petitioner is receiving governmental services, and thus may not be financially able to engage private counsel, the court shall appoint independent counsel from the 18-B Assigned Counsel Plan by separate order."

RIGHTS OF UNMARRIED PARENTS EXPANDED

Signed into law on December 30, 2022:

"BILL NUMBER: S6389

SPONSOR: BRISPORT
 
TITLE OF BILL:

An act to amend the domestic relations law and the social services law,
in relation to the rights of non-marital parents in adoption, surrender,
and termination of parental rights proceedings in family court and
surrogate's court; and to repeal subdivision 12 of section 384-b of the
social services law relating thereto

 
SUMMARY OF PROVISIONS:

Section one provides full parental rights to fathers of children in
foster care who have been adjudicated or are in the process of being
adjudicated a parent, have executed an unrevoked acknowledgement of
parentage, or have filed an unrevoked notice of intent to claim parent-
age.

Section two rescinds the requirement of notice of adoption proceedings
to fathers of children in foster care who do not have full parental
rights.

Sections three through twelve modify relevant provisions of the Social
Services Law and the Domestic Relations Law to make them consistent with
the modifications made by sections one and two.

Section thirteen would make the bill effective immediately.

 
JUSTIFICATION:

New York State has a clear policy in favor of prioritizing the preserva-
tion and reunification of families. However, current law fails to abide
by this policy, and fails to keep families together, in cases of
"public" adoptions resulting from state intervention. As a result of
certain peculiarities in New York law, unmarried fathers may have their
parental rights prematurely terminated without a proper hearing.

Under the Domestic Relations Law, in cases of "public" adoptions, only
certain fathers have the right to consent to or prevent the adoption of
their child. The only fathers who have "consent" rights if the child was
placed for adoption at over six months of age are (1) those who were
married to the child's mother at the time of the child's birth; (2)
those who lived with the child for at least six months of the year
preceding the child's placement for adoption and "openly held "them-
selves out to be the father of the child"; and (3) those who otherwise
"maintained substantial and continuous contact with the child" both by
regularly visiting or communicating with them and by paying "a fair and
reasonable sum" to support them. If a father meets these criteria, then
the state is compelled to establish a basis for termination of parental
rights by clear and convincing evidence.

With respect to unmarried fathers and "public" adoptions, it is neces-
sarily impossible to prove that they have been married to the child's
mother, and it is highly unlikely that the father has been living with
the child for six months of the previous year if the child is in foster
care and the foster care agency is considering adoption. Therefore, the
only option for an unmarried father to preserve "consent" rights is to
demonstrate that the father "maintained substantial and continuous
contact with the child" both by regularly visiting or communicating with
them and by paying "a fair and reasonable sum" to support them. In cases
of "public" adoptions this rule leads to peculiar results because New
York case law has interpreted the duty to pay "a fair and reasonable
sum" in cases of "public" adoptions to require that the unmarried father
- who may not have even known of such an obligation - to have made
payments to the foster care agency that had been caring for the child. A
father who fails to make these payments can permanently lose his
parental rights. This is particularly egregious because there is no
requirement that foster care agencies inform fathers of the requirement
to pay support to the agency, nor even a requirement th at agencies
provide a means by which fathers may do so. Indeed, a significant
percentage of fathers are never provided an option by which they could
pay child support while their children are in foster care in New York.

With respect to "public" adoptions, and the termination of parental
rights for failure to make payments to foster care agencies, current law
has a disproportionate impact on fathers and children of color.  Lawyers
for fathers of children in foster care regularly challenge the constitu-
tionality of the current practice described above.  However, regardless
of the outcome of this litigation, legislation can remedy this issue and
further New York's policy of prioritizing the preservation and reunifi-
cation of families.

In order to remedy this issue, this legislation broadens the definition
of "consent" fathers in cases of "public" adoptions, so that fathers who
have been legally adjudicated to be the parent of the child or have
timely executed a formal acknowledgment of parentage have full parental
rights. This law does not affect "private" adoptions in any way. Rather,
it applies only to adoptions that occur after a child has been involun-
tarily separated from their family by the state, and the state seeks to
take the step of severing the parent-child relationship for an unmarried
father. The state will still be able to terminate such an unmarried
father's parental rights in appropriate cases on the grounds of abandon-
ment, permanent neglect, mental illness, intellectual disability, and
severe and repeated abuse, just as it would in the case of a mother or
married father who failed to meet those obligations. The local child
protective agencies will similarly still have the ability to seek child
support from the parents of children in foster care, if they choose to
do so. This legislation simply alters the potential consequence of an
unmarried father's failure to comply with his (often hidden) obligation
to pay support to a third party agency, so that his continued relation-
ship to his child does not hinge on such payment alone."

ARTICLE 17-A GUARDIANSHIP NO LONGER NECESSARY

And note that the same reasoning will also apply when one is seeking an Article 17-A Guardianship as noted in an earlier post:  A Lawyer's Blog - Jon Michael Probstein, Esq.: FOR ADULTS WITH INTELLECTUAL DISABILITIES, A GUARDIAN IS NOT ALWAYS NEEDED (jmpattorney.blogspot.com)

MATTER OF RICHARD SH, 2022 NY Slip Op 22328 - NY: Surrogate's Court, Westchester 2022:

"SCPA article 17-A guardianship is plenary, resulting in a total deprivation of an individual's liberty (see SCPA §§1750, 1750-a, 1750-b; see also Matter of Michael J.N., 58 Misc 3d 1204[A], 2017 NY Slip Op 51925[U] [Sur Ct, Erie County 2017]; Matter of Caitlin, NYLJ, April 29, 2017 at 31 [Sur Ct, Kings County 2017]).^[1]

The standard for whether a decree of guardianship should issue in the first instance for an intellectually and/or a developmentally disabled person is set forth respectively in SCPA §§1750 and 1750-a. In accordance with the statutory provisions, a determination must be made by the court that the individual has an "impaired ability to understand and appreciate the nature and consequences of decisions which result in such person being incapable of managing himself and/or his affairs by reason of intellectual disability [and/or developmental disability] and that such condition is permanent in nature or likely to continue indefinitely."

SCPA §1759 states that a person for whom an article 17-A guardianship has been established may petition the court to have the guardianship dissolved. To have guardianship letters revoked, an article 17-A ward, such as Reed, bears the burden of establishing that the guardianship is not in his best interest, with the determination of what is in his best interest committed to the court's discretion (see SCPA §1751; SCPA §1750-a; see also Matter of Michael J.N., 58 Misc 3d 1204).

In determining whether the termination of a guardianship is in the best interest of the individual, courts have considered whether it is the least restrictive means to preserve and protect the rights of the person (see Matter of Michael J.N., 58 Misc 3d 1204).^[2]

There are only a few reported cases in which a decree of §17-A guardianship has been revoked and an individual restored to his full rights under the law. For example, in Matter of Stephen S.C., 63 Misc 3d 725 [Sur Ct, Westchester County 2019]), this court found that SPCA §17-A guardians were no longer warranted for an intellectually and developmentally disabled man because less restrictive means for support were appropriate and available. The record demonstrated that Stephen had gained greater independence since moving to a group home, demonstrated in the record by his ability to obtain and sustain employment, manage a bank account, maintain a social life, travel independently, take care of his hygiene, and engage with a supported decision-making network.

Even more recently in Matter of Robert C.B. (68 Misc 3d 704 [Sur Ct, Dutchess County 2019], reversed in part, 207 AD2d 464 [2d Dept 2022]), the court terminated the SCPA §17-A of the guardianship over the person of Robert, a 23-year-old man with Asperger's Syndrome, finding that it was in his best interest to restore his right to manage his personal affairs without the oversight or control of a guardian of the person. There, the record reflected, among other things, that: (1) Robert graduated from high school with a Regents diploma; (2) he successfully transitioned to independent living; (3) he held down two jobs where he operated with minimal supervision; (4) he managed his personal schedule without assistance; (5) he did his own shopping and meal preparation; and (6) he managed his medical appointments and medication The court, in its discretion, based on the record before it, denied that part of the petition which requested termination of the property guardianship.

However, the order was appealed, and in Matter of Robert C.B. (207 AD3d 464 [2d Dept 2022]), the Second Department found that the Surrogate's Court erred in not granting that part of the application which requested termination of Robert's property guardianship. In doing so, the court wrote:

The petitioner established that he did not have a disability as defined in SCPA article 17-A, as his evidence showed that his ability to "understand and appreciate the nature and consequences of decisions" was not impaired (citations omitted).

* * *

As to managing his finances, at the time of his testimony, his bills were all up to date. . . . [He] demonstrated that he understood and was able to manage his own finances despite having made a poor decision in purchasing a car with an inflated purchase price and exorbitantly high interest rate.

* * *

Rather than showing that the petitioner lacked an understanding of consequences, this evidence showed that he evaluated his circumstances, researched the options available to him under those circumstances, learned through experience that he had made a poor financial decision, and took steps to minimize the negative consequences arising from that decision.

(Matter of Robert C.B., 207 AD3d at 466-67).

In Matter of Dameris L. (38 Misc 3d 570 [Sur Ct, NY County 2012]), the husband/co-guardian of a §17-A ward petitioned the court to revoke the guardianship letters issued to him and to the ward's mother. Because the record before it reflected that Dameris L. was able to make her own decisions (albeit sometimes with the assistance of family and community support), the court terminated the guardianship and restored her legal rights.

In doing so, Surrogate Glen wrote that "New York courts have embraced the principle of least restrictive alternatives" and that 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.

(Matter of Dameris L., 38 Misc 3d at 577 [citations omitted]). The court also noted that the "legal remedy of guardianship should be the last resort for addressing an individual's needs because it deprives the person of so much power and control over his or her life" (id., [citations omitted]).

In Matter of Michael J.N. (58 Misc 3d 1204, 2017 NY Slip Op 51925[U]), the Surrogate's Court found that vacatur of the decree of guardianship and revocation of the letters issued to Michael's parents were in Michael's best interest. In vacating the decree, the court relied on the record before it, which demonstrated that Michael's adaptive skills, as supported by his placement in a group home, enabled him to make health care decisions and to perform his daily living tasks without a guardian. The court noted that an individual's best interest must include an assessment of his functional capacity and what he can or cannot do in managing daily affairs (see also Matter of Gulielmo (NYLJ, Nov. 13, 2006 at 23, col.1 [Sur Ct, Suffolk County] [article 17-A guardianship dissolved where the record demonstrated that the individual currently was capable of conducting all activities of daily living]).

Cases where courts have refused to appoint an article 17-A guardian in the first instance also are instructive on this issue. In Matter of Caitlin (NYLJ, April 13, 2017 at 31), the court, in denying the petition for SCPA 17-A guardianship, stated that, where less restrictive alternatives were available, such as a durable power of attorney, a health care proxy, and community support services, it was not in Caitlin's best interest to have a guardian appointed for her and to have her "decision-making authority supplanted, regardless of good intentions and a desire by [her] family to protect [her]." In Matter of Hytham (52 Misc 3d 1211[A], 2016 NY Slip Op 5113[U] [Sur Ct, Kings County]), a petition for guardianship was dismissed where the individual, although intellectually in the borderline delayed range, was able to independently handle, among other things, money, purchases, grooming and cooking.

The record before this court demonstrates that Reed has made extraordinary progress since 2015. He has not only graduated from an accredited college but he is obtaining a master's degree from a renowned university, and he is excelling there. Reed has been able to obtain and sustain employment, manage his daily affairs, and engage with a supported decision-making network. Since Reed has made these remarkable strides and because he has a system of supported decision making in place (and knows when he should rely upon it), lesser restrictive alternatives are available to plenary guardianship.

Based on the substantial record before this court which demonstrates that Reed has successfully met his burden that the guardianship is no longer in his best interests, the petition is granted, and the decree dated May 3, 2016, is vacated; the SCPA § 17-A guardianship of Reed is terminated; the letters of guardianship issued to Richard and Elisabeth are revoked; and Reed's full legal capacity is restored.

Richard, Elisabeth and Reed now should proceed to put the health care proxy and the power of attorney in place, and Richard and Elisabeth are directed to account for their proceedings as guardian of Reed's property in an expeditious manner."

DISSOLVING AN ARTICLE 17-A GUARDIANSHIP

Matter of M.M., Date filed: 2022-05-23, Court: Surrogate's Court, Richmond, Judge: Surrogate Matthew J. Titone, Case Number: File No. 2010-915/D:

"M.M., through his counsel, Disability Rights New York (“DRNY”) and ARMSTRONG & LAMBERTI, PLLC (“A&L”), petitioned this court on October 13, 2020 to dissolve his guardianship established by an Order of this Court dated February 18, 2011 pursuant to Surrogate’s Court Procedure Act 1759(2), to terminate the Supplemental Needs Trust (“SNT”) held for his benefit, to discharge Donna as guardian of the property and trustee of the SNT, direct Ms. Donna to account for her tenure as guardian and trustee, and to restore petitioner’s full legal capacity. Hattie Ragone, Esq. was thereafter appointed Guardian ad Litem for petitioner under SCPA 1755. This court then issued citation to Ms. Donna, Hattie Ragone, Esq., as GAL and New York City Human Resources Administration. The citation was served; however, Ms. Donna did not appear at the hearing or respond in writing to the citation.1

Pursuant to SCPA 1754 and 1759, an evidentiary hearing was held on July 21, 2021, and testimony was elicited from petitioner’s mentor and friend, Douglas, Hattie Ragone, Esq., the court appointed Guardian Ad Litem, and from the petitioner himself. DRNY moved for a Directed Verdict, and this court reserved decision. Petitioner’s counsel was allotted time to provide a written summation, and thereafter renewed their motion in such summation.

FINDINGS OF FACT

Petitioner was born on July 10, 1995. After the death of M.M.’s mother, on January 20, 2005, Michael Edward, surrendered his rights as father of the petitioner to Geraldine, petitioner’s paternal grandmother. On September 10, 2010, Geraldine petitioned to be appointed Guardian of the Person and Property of the petitioner pursuant to SCPA Article 17-A, listing Donna, M.M.’s paternal aunt as the standby guardian.

The Article 17-A petition was supported by the Affidavits of Petitioner’s physician and psychiatrist, Dr. Adrian Logush, MD, and Dr. Mini Verter, MD, respectively.

Dr. Verter, a licensed psychiatrist, in her affirmation dated July 22, 2010 affirmed that petitioner was diagnosed with Asperger’s Disorder. She further explained that petitioner had trouble with socialization, experienced mood swings and outbursts, exhibited aggressive behavior, and lacked the understanding of grey areas and nuances. Dr. Verter found petitioner had “poor insight to his difficulties.” At the time, petitioner was fourteen (14) years old.

Attached to Dr. Verter’s affidavit was the report of petitioner’s psychiatric interview on June 21, 2010, at the Children’s Community Mental Health Center. Petitioner was seen with his grandmother, with whom he was then residing. During the interview, it was noted that petitioner was not “hyperactive nor impulsive.” Petitioner exhibited no outbursts or tardive dyskinesia. He was not suicidal nor homicidal and was fully oriented. Petitioner was scheduled to move to his aunt’s home in Connecticut the following week and begin high school there.

Dr. Logush, a licensed neurologist, affirmed that petitioner was a 14-year-old young man with a history of “neglect, physical & sexual abuse” by his mother. According to Dr. Logush, M.M. was exposed to illicit drugs in utero and removed from his mother’s care. He found petitioner to be an “oppositional, argumentative, aloof boy with fleeting eye contact and stuttering who was socially immature & unrealistic.”

A hearing was held on the Article 17-A petition, and such petition was granted. On August 18, 2011, a petition to create a supplemental needs trust (“SNT”) was also granted. The initial SNT deposit was $300,000, the proceeds coming from a wrongful death lawsuit from the estate of petitioner’s grandfather.

In August of 2011, Ms. Geraldine petitioned to renounce as Article 17-A guardian. Ms. Donna was then appointed as petitioner’s guardian.

Petitioner testified at the evidentiary hearing, that Ms. Donna did not approve of his homosexuality. After less than six months as guardian, Ms. Donna enrolled petitioner in the Chamberlain School, a residential school in Massachusetts. Ms. Donna used approximately twothirds of petitioner’s SNT funds to pay for the school tuition. Petitioner resided at the Chamberlain School year-round until he graduated at the age of eighteen. Notably, petitioner and Ms. Donna have not communicated in any fashion since he first moved to the Chamberlain School.

On December 4, 2014, Ms. Donna sent a letter to this Court resigning as guardian. On December 23, 2014, this court permitted the resignation of the guardian of the person only. Ms. Donna remained petitioner’s guardian of the property and trustee of his SNT. She was awarded commissions for the years 2012, 2013, and 2014, yet not for the year 2016, since this court found the commissions were “not justified.”

In 2014, at the age of 19, M.M. left the Chamberlain School. He made friends and became involved in the LGBTQ community. M.M. worked in different restaurants and coffee shops. At one point, M.M. did marry, although his spouse is no longer in his life.2

Petitioner testified that he has continued to live on his own and manage his personal affairs since Ms. Donna was relieved as guardian. He obtained a driver’s license and started his own moving business. He designed business cards to advertise his services and utilized social media platforms and word of mouth to advertise. He leases trucks and hires laborers as needed. He travels independently across state lines for moving jobs, but primarily resides and works in Pennsylvania. Additionally, he manages his independent living such as securing health insurance, paying his cell phone, buying and preparing his own food, clothing, and other essentials. Petitioner also maintains his financial independence without relying on any form of public benefits, supportive assistance, or Medicaid. Petitioner has a network of adults that serve as mentors such as his friend and mentor Douglas, who testified at the July 21, 2021 hearing.

SCPA ARTICLE 17-A AND THE PROGRESSION OF THE DIAGNOSIS OF ASPERGER’S SYNDROME

SCPA Article 17-A was “[o]riginally enacted in 1969 [and] was limited to persons who were mentally retarded, and its implementation coincided with New York State’s policy of deinstitutionalizing thousands of individuals who had spent some or most of their lives in mental institutions. Since many of the newly discharged individuals had functional limitations that impaired their self-management, Article 17-A was an attempt to fill a void and provide a safety net for at least some of these individuals.”3

On January 1, 1990, the statute was repealed and replaced to afford the Surrogate’s Court jurisdiction over developmentally disabled and intellectually disabled adults. The article permitted jurisdiction over such persons provided their disability was certified through the age of 22. The Article 17-A petition could be filed and determined at any age, however.

Article 17-A was intended to streamline a complex guardianship process to allow parents to continue to care for their intellectually or developmentally disabled adults.4

Pursuant to SCPA 1759, the duration of the guardianship continues through the life of such person, “or until terminated by the court.” Once an individual is adjudged to need a guardianship, the court is not required at any point to review that decision. SCPA 1750-b, 1759.

Article 17-A appears to limit the court to a plenary guardianship. However, recent caselaw has interpreted the statute to allow certain tailoring of the relief. Some courts have permitted the guardian to make gifts on behalf of the ward (In re Guardianship of Joyce G.S., 30 Misc. 3d 765, 766 (Sur. 2010)); termination of the guardianship of the person while maintaining the guardianship of the property, (Matter of Robert C.B., 68 Misc. 3d 704 (N.Y. Sur. 2020)), while some have terminated the guardianship entirely (Matter of Dameris L., 38 Misc. 3d 570 (Surr. Ct. New York Co. 2012)); c.f. In re Guardianship of John J.H., 27 Misc. 3d 705, 706 (Sur. 2010).

While some modifications to the implementation of Article 17-A guardianships have occurred both in the legislature and in the Surrogate’s Courts, the diagnoses of the intended individuals have evolved, as have the treatments and therapies. Post-1990 attempts to further enhance and update the statutory scheme have failed, and the statute remains in the status of a society some thirty years old. About the time that M.M. was born.

For instance, M.M.’s diagnosis — Asperger’s Syndrome, sometimes referred to as Asperger’s Disorder, was initially defined by Hans Asperger, a Viennese pediatrician in the 1944.5

It was added to the American Psychiatrists Associations Diagnostic and Statistical Manual of Mental Disorders (“DSM-IV”) in 1994 as a distinct, separate form of autism with language difficulties as the prevalent feature.6

In 2013, the DSM-5 removed the diagnoses of Autistic and Asperger’s Disorder and other pervasive developmental disorders and placed them under the umbrella of Autism Spectrum Disorder (“ASD”).7 This umbrella term recognized that no two diagnoses were identical, the disorder could present with one or many characteristics, and the functional capability of each person varied greatly.8 Nonetheless, the umbrella term was favored since the prevalent characteristic of all the disorders within was “impaired social interaction and communication, and restricted, repetitive behaviors and interests.”9

Field trials showed that the DSM-5 umbrella diagnosis of ASD did eliminate some 75 percent of those previously diagnosed of patients previously diagnosed with Asperger’s Syndrome.10 Thus, it was likely that an individual diagnosed with Asperger’s Syndrome in 1995, may not be diagnosed with ASD in 2014.

Thus, in the eighty years since Asperger’s Syndrome was named, eliminated and some portions placed under ASD, it has morphed into an understanding of a group of characteristics with relevant treatments and therapies to address its characteristics and is not a blanket diagnosis to which there is no recovery.

As such, although the statutorily intended duration of an Article 17-A guardianship is a lifetime, it is entirely possible that termination of such a guardianship could be warranted, based on the person, functional capacity or due to an improvement in their functional capacity.

It is axiomatic then that an Article 17-A guardianship must be dissolved when the “proponent fails to establish that the alleged incapacitated person has an intellectual or developmental disability that renders him uncapable of managing his person and/or property.” 11 There is no statutory framework which guides the dissolution of a guardianship as its intent is not to result in dissolution.

There is some guidance found in SCPA 1755, which permits modification of a guardianship order by employing an “interests of justice” standard. The court retains jurisdiction over the ward under SCPA 1758 to “adjudicate such steps and proceedings […] as may be deemed necessary or proper for the welfare” of the ward. This determination is at a minimum a “best interests” analysis. The term, “however, is an ‘amorphous term’, a determination of which is left to the discretion and judgment of the Surrogate.”12

“It is the official policy of New York State to promote and to facilitate the ‘independence, inclusion, individuality and productivity’ of persons with intellectual and developmental disabilities” pursuant to MHL §13.01.13 However, as noted supra, this policy has not translated into an enhanced version of the Article 17-A framework.

In Matter of Robert C. B., the court, when faced with a petition to terminate a guardianship of a ward diagnosed with Asperger’s Syndrome, explained that Article 17-A guardianship is largely a diagnosis-driven finding and declared that the proper focus “is one’s functional limitations and whether or not an individual will suffer harm as a result of these functional limitations.” 14 Employing such an analysis, the court found that the ward had a developmental disability that impaired his functional capacity to manage his property, yet not his daily personal decisions. Although the ward could understand his finances on a rudimentary level, he lacked the capacity to budget or manage his money. Thus, the guardianship of the property was maintained while the guardianship of the person was terminated.

In order for a guardianship to be dissolved or terminated, the factors which supported the creation of the guardianship should no longer exist. Thus, such analysis of a petition requires an analysis of the best interests of the ward, the least restrictive means to achieve the best interests, and the court’s jurisdiction if those earlier considerations fail.

The best interests analysis as applied in an Article 17-A hearing can support a finding at a given period in time that the ward lacks capacity to manage their personal and property affairs. The difficulty with such an analysis at a single moment in time is the assumption that an individual is unable to manage their diagnosis. Once a 17-A determination is made, typically at or around the age of eighteen, apart from petitions similar to that herein, there is no discernible reason for the Surrogate to re-examine the best interests standard.

The standard does not allow for maturity, supportive-decision making, efficacy of targeted treatments and therapies, among other factors. The standard restricts the individual to that particular age, and it is quite possible that those means are not the least restrictive at a later age. Essentially, what may be good today, may be totally inappropriate tomorrow.

Moreover, substantive due process is a right guaranteed under the 14th amendment of the United States Constitution requiring that the State shall not “deprive any person of life, liberty, or property, without due process of law.”15 Substantive due process is “understood to include a requirement that when the state interferes with an individual’s liberty on the basis of its police power, it must employ the least restrictive means available to achieve its objective of protecting the individual and the community.”16

Applying the least restrictive means is recognized by New York Courts as a constitutional imperative17 and as codified in N.Y. Mental Hygiene §81.01, the legal remedy of guardianship should be the last resort as it deprives the person of power and control over their life in violation of due process.18

The specific absence of the least restrictive language in the statute does not eliminate its constitutional imperative. Liberty is a fundamental right which this court can not infringe upon lightly.

In Matter of Robert C.B., it was noted that functional capacity was a necessary factor in determining the least restrictive means.19 Functional capacity of the individual taken into consideration with the individual’s available resources including their community, health care, power of attorney, advance directives, and the like, can assist in the least restrictive means determination.

Once functional capacity has been found in an individual, this court no longer has subject matter jurisdiction over the guardianship under SCPA §1758.20

CONCLUSION

Upon review of the papers submitted in support of this petition and the hearing testimony, the guardianship of the person and property must be dissolved, and the Supplemental Needs Trust terminated. Article 17-A Guardianship was awarded to M.M.’s grandmother when M.M. was 15 years old. He was a high school age student with a diagnosis of Asperger’s Syndrome, and the characteristics of a child whose parents failed to nurture him. He was noted to have mood swings, low frustration tolerance and outbursts.

M.M. was born during the advent of the DSM-IV identification of Asperger’s Syndrome. At that moment in time, it was the opinion of the Surrogate pursuant to the supporting medical documentation that it was in M.M’s best interests to have a guardian. He was a 15-year-old young man, who needed assistance navigating his teenage years, his identity, his diagnosis, and his ever-changing family environment. At that time and for a period thereafter, the guardianship may well have been the least restrictive means available to this court to assist M.M. Throughout M.M.’s life and even at present, the diagnosis has changed, as has the understanding of the interventions which would enable M.M. to manage his affairs.

For instance, in the Millennium Cohort Study (MCS), 19,517 adolescents born between 2000 and 2002 with and without autism, were assessed at ages 11 and 14 to examine their decision-making skills and the association with their psychological well-being.21 The study found “comparable quality of decision-making to that of their peers at both ages.”22 They found that effective therapies which consider this characteristic allowed the adolescent to transition into adulthood and promoted their mental health.23

Similarly in a small pilot study of college students with ASD, the researchers sought to examine how “traditional decision-making tools and tasks can be used to uncover strengths and weaknesses within a growing population of young adults with autism.”24 Of particular note, the researchers found that in the ASD cohort, complementing the strengths of ASD adults with the relevant tools to overcome their weaknesses allowed the adults on the spectrum to improve their decision-making and the relative outcome of their decisions.25 The researchers further identified that there was a “dearth” of decision-making research and its relation to an ASD adult’s employment or success.26 Essentially then, further research and the implementation of tailored intervention and therapeutic approaches to this diverse group of adults could lead to favorable outcomes in their decision-making capability.27

Although M.M. did not have the benefit of these specific therapies, he crafted them on his own. According to the testimony elicited at the hearing, he had the benefit of a supportive community to assist his decision-making. After his departure from the Chamberlain School, M.M. moved on into life on his own. He had no contact with his appointed guardian, whom the Surrogate had previously decreed he required, and had no choice but to find his way through life alone. M.M. may have made some mistakes, but still he managed (“his life exceptionally” judges’ comments).

The evidence further showed he made new friends, established a life in Pennsylvania and started his own business. He found support in people like Douglas, a mentor who supports him both personally and professionally. He decided he needed to work, first at small businesses, then at his own business, designing his own business cards, leasing trucks, and hiring laborers, and travels across state lines for moving jobs. He purchased health insurance, paid his own bills, and provides for his own essentials.

Basically, M.M. found and made his own way.

At this moment in time, unlike 2011, a guardianship is not in M.M.’s best interest and not the least restrictive means. Eleven years ago, M.M. was diagnosed with a syndrome, which, pursuant to the DSM, no longer exists today. Asperger’s Syndrome as a diagnosis in and of itself, is not conclusive evidence to support an Article 17-A guardianship. A statement proven by M.M.’s growth.

Eleven years ago, M.M. was dealing with changes in his support structure which could have caused the underlying symptoms he was experiencing, which M.M. has shown to manage today. Eleven years ago, M.M. was a teenager who needed a permanent guardian to help him, while now he makes his own personal and property decisions.

M.M. will make good and possibly not as good decisions throughout his life like every other adult. Those are his decisions to make, and he has demonstrated the capability to make them.

It is therefore, decreed, ordered, and adjudged that the guardianship of the person and property is dissolved, and the Supplemental Needs Trust terminated.

This decision shall constitute the Order of the Court.

Dated: May 23, 2022

Footnotes

1. Further, in response to the Court's request for an updated accounting, Donna submitted a handwritten note dated April 25, 2022, with her SNT accounting for 2021 requesting to be relieved as property guardian for petitioner.

2. The marriage occurred while M.M. was under a guardianship pursuant to SCPA Article 17-A, and as such, such transaction is voidable by M.M.. M.M. has not re-affirmed such marriage.

3. It was not until 2016, that the title of the article removed "Mentally Retarded" and replaced it with "Intellectually Disabled." Vincent J. Russo, Marvin Rachlin, N.Y. Elder Law Practice §9:1 [2021 ed.]

4. Margaret Valentine Turano, 2011 Practice Commentaries, McKinney's Cons Laws of NY, SCPA 1750. The article provided a cost-effective means for guardianship of this population that did not require the extended process under MHL Article 81.

5. Coincidentally, another Viennese physician, Kanner, also described the condition in 1943, however, Asperger was credited with the diagnosis. Barahona-Correa, JB, Filipe CN A Concise History of Asperger Syndrome: The Short Reign of a Troublesome Diagnosis. Front Psychol. 2016;6:2024. Published 2016 Jan 25 doi:10.3339/fpysg.2015.02024

6. Id.

7. Id.

8. Id.

9 Id.

10. Frazier T.W., Youngstrom E. A. Speer L. Embacher R., Law P., Constantino J. et. Al. (2012) Validation of Proposed DSM-5 Criteria for autism spectrum disorder. J. AM. Acad. Child Adolesc. Psychiatry 51 28-40.

11. In the Matter of the Guardianship of Dameris L., Pursuant to SCPA Article 17-A, 956 N.Y.S.2d 848 (Sur. 2012).

12. Matter of Joshua J.K., 71 Misc.3d 843, 846 (Surr. Ct Westchester Co. 2021); see also Matter of Robert C.B. at 716, 125 N.Y.S.3d 253 [citing Matter of Chaim A.K., 26 Misc. 3d 837, 845 [Sur. Ct., N.Y. County, 2009].

13. Matter of Robert C.B. at 709.

14. Id. At 258, 273.

15. U.S. Const. amend. XIV

16. In re Dameris L., 956 N.Y.S.2d 848 [Sur. NY 2012]; see also O'Connor v. Donaldson 422 U.S. 563 (1975).

17. Kesselbrenner v. Anonymous 33 N.Y.2d 161, 164 (1973)

18. Id. At 164.

19. See also Matter of Michelle M., supra.

20. In re Dameris L. at 854. The Dameris Court further held even if the Court had jurisdiction, the appointment of guardianship was no longer warranted, and the guardianship appointment was not the least restrictive alternative.

21. Hosozawa M, Mandy W, Cable N, Flouri E. The Role of Decision-Making in Psychological Wellbeing and Risky Behaviours in Autistic Adolescents Without ADHD: Longitudinal Evidence from the UK Millennium Cohort Study. J Autism Dev Disord. 2021 Sep;51(9):3212-3223. doi: 10.1007/s10803-020-04783-y. Epub 2020 Nov 16. PMID: 33196916; PMCID: PMC8349343.

22. Id.

23. Id.

24. Levin Irwin P., Gaeth Gary J., Foley-Nicpon Megan, Yegorova Vitaliya, Cederberg Charles, Yan Haoyang, Extending decision making competence to special populations: a pilot study of persons on the autism spectrum, Frontiers in Psychology Vol. 6, 2015, https://www.frontiersin.org/article/ 10.3389/fpsyg.2015.00539, doi 10.3389/fpsyg.2015.00539.

25. Id.

26. Id.

27. Id."