In this pending guardianship proceeding, both Joseph O., Sr. and Joseph O., Jr. have filed petitions before this court to be appointed the successor guardian of the person and property of Annamarie O. On September 20, 2019, a hearing was held to determine who should be appointed to serve the best interests of the ward, Annamarie O. FACTS Annamarie O. was adjudicated as a disabled adult, pursuant to Surrogate’s Court Procedure Act article 17-A on October 28, 1992. Her mother, Patricia O. (“Patricia”) was appointed guardian, and Joseph O., Sr. (“Joseph Sr.”), the ward’s father, was appointed standby guardian, subject to qualification. John O. (“John”), one of the ward’s brothers, was named first alternate standby guardian. After Patricia and Joseph Sr. divorced, Patricia petitioned the court in 2009 to remove Joseph Sr. as the standby guardian and replace him with Joseph O., Jr. (“Joseph Jr.”), the ward’s other brother. A hearing was held, and that application was ultimately denied. In 2011, Patricia again sought the removal of Joseph Sr. as standby guardian, and that application was also denied. Except for a brief period of time when Patricia was hospitalized and Annamarie O. was placed in a group home, Annamarie O. lived continuously with Patricia during her lifetime. On March 19, 2019, John called this court to ascertain whether any member of the court knew the whereabouts of his sister since his mother’s passing on February 4, 2019. This was the first notification to this court that the legal guardian had passed. This court thereafter contacted the appropriate agencies, including Mental Health Legal Services (“MHLS”), to ascertain the whereabouts and wellbeing of the ward. MHLS subsequently informed the court that Annamarie O. had been placed in a facility by her brother Joseph Jr. On March 28, 2019, this court issued an order requiring the appearance of all necessary parties on April 25, 2019 to determine who would become the successor guardian of Annamarie O. In the interim, Jack Stern, Esq. was appointed guardian ad litem (“GAL”) to represent the best interests of Annamarie O. Thereafter, numerous court conferences were held with the family, as well as with the GAL, Katalin Amano, Esq. from MHLS and Linda Schnabel, Area Coordinator of the Residential Facility in which Annamarie O. was and is currently residing. On August 28, 2019, Joseph Jr., filed a petition for successor appointment of guardian of the person and property of Annamarie O. seeking to become the guardian of the person and property of his sister. On September 16, 2019, Joseph Sr. filed a petition for the confirmation of standby guardian of the person, pursuant to SCPA §1757, and later amended the petition to include guardian of the property. On September 20, 2019, the Surrogate presided over a hearing to determine who was best suited to serve as guardian of Annamarie O. The court heard testimony from Joseph Sr., Joseph Jr., John, the GAL, Katalin Amano, Esq., Linda Schnabel, and Foday Daramy, an employee of the residential facility in which Annamarie O. is residing. HEARING TESTIMONY On September 20, 2019, the court heard testimony from the interested parties. Neither Joseph Sr., Joseph Jr., nor John were represented by counsel. Petitioner Joseph Jr. was the initial witness and presented his case. He explained that his mother was the sole caretaker of his sister, and on the date of his mother’s death, it was only his sister and mother in the residence. After his mother died, he explained that he reached out to his brother and father to request assistance with the care of his sister. Neither volunteered to help with her care. He further explained that his father did not answer his calls, and when Joseph Jr. appeared at his father’s residence to ask for assistance for Annamarie O., he did not even answer the door (tr at 4). Joseph Jr. testified that in order to care for his sister, he took off a month from work and cared for her by himself. Joseph Jr. explained that throughout her lifetime, he had developed an affinity for his sister that led him to volunteer for agencies in which she was involved. He even created a charitable organization in her name. After his mother’s death, he explained he was able to place his sister in a residential facility (tr at 5). He visits her at the facility approximately once per week and keeps in contact regarding her care. Joseph Jr. also explained that during his mother’s life, he had asked his mother to place his sister in different residential programs, yet she refused. The cross-petitioner, Joseph Sr., then presented his case. Joseph Sr. explained that he was a father who provided for his children and wife during their marriage. He further testified that during the divorce proceedings, he gave Patricia whatever she needed to care for Annamarie O., including his house (tr at 10). In the 1990s, he explained, that there was a period of time that Patricia could not care for Annamarie O. and he took care of her by himself for approximately three and one-half years. He also explained that he had a girlfriend at the time, who also helped with Annamarie O.’s care (tr at 10, 16). Joseph Sr. was of the opinion that there were approximately nine months consecutively that he cared for the ward, and during that time she flourished. He did not place her in a program nor a facility because of the mother’s wishes (tr at 13). He further testified that there were several times that that his ex-wife Patricia offered to renounce her guardianship of Annamarie in his favor, yet later reneged (tr at 12). He testified that in 2009 and 2011, however, she attempted to remove him as standby guardian and such petitions were denied (tr at 14). Even though Patricia passed, he explained that he did not answer his son’s phone calls because of the accusations made in the prior court proceedings which he believed were baseless (tr at 14). John, the first alternate standby guardian, who has not petitioned for guardianship, then testified. He is an attorney, currently on the Kings County 18-B family court panel, with experience with disabled adults. He objected to the appointment of his father as guardian of his sister. He testified that Joseph Sr. was absent from his life for most of the last 20 years, was an “abusive man,” “physically and emotionally,” who did not have regular contact with his sister (tr at 18). It was his claim, that his father never saw the ward unless his brother Joseph Jr. brought Annamarie to his father without his or his mother’s knowledge (tr at 19). John further testified that his father did not financially assist with his sister’s care and would routinely not return his mother’s phone calls for assistance for Annamarie (tr at 19). As to his brother, John did not “strenuously object” to Joseph Jr. being appointed guardian. However, John testified that his brother was absent from the ward’s life for long periods of time and that there were times he thought Joseph Jr. was apathetic to his sister’s and mother’s care, telling him that he should take Annamarie to the emergency room during one of his mother’s illnesses. He was of the opinion that his brother might now be trying to compensate for his previous inaction. Therefore, although he did not object to his brother’s appointment, he did feel those particular facts should be considered in making the appointment (tr at 20). John’s ultimate recommendation was that a neutral guardian be appointed (tr at 21). The GAL testified after the family. He explained that the ward is severely autistic, does not interact with others, is non-verbal and makes minimal eye contact. The GAL testified that he visited the ward at the facility in which Annamarie O. resides. She appeared well cared for, clean and well dressed. He interviewed employees of the facility, including Linda Schnabel and Foday Daramy. Several employees witnessed the interactions between Joseph Jr. and the ward and Joseph Sr. and the ward. The employees observed Annamarie O. to be calm after Joseph Jr. visited. The GAL reviewed the logbook of visitors for the ward, which showed visits from both Joseph Jr. and Joseph Sr. The GAL testified that he observed Annamarie O. with Joseph Jr. and “saw a loving relationship, but it’s hard to call it a loving relationship since the ward is not interactive, does not respond. But she seemed to have some warmness.” The GAL explained that Mr. Daramy and Mr. Summerville noted that they had “troubled interactions” with Joseph Sr. They informed that GAL that Joseph Sr. was “combative” and caused “problems” (tr at 26). When Joseph Jr. visits Annamarie, Mr. Daramy and Mr. Summerville told the GAL it was a much smoother relationship. They explained that Joseph Jr. takes her for walks and visits with other people. The GAL was of the opinion, after his visits and interviews, that the brother, Joseph Jr., should be appointed the guardian of her person and property (tr at 26-27). The court also heard testimony from Linda Schnabel and Foday Daramy at the request of Joseph Jr. Ms. Schanbel explained that she had personal knowledge of the family’s relationship since she was their neighbor for over 10 years. She had not personally met the brothers until after Patricia’s passing. Ms. Schnabel testified that she has only witnessed the ward interact with Joseph Jr. and opined that it was a loving relationship. Further, she testified that she assisted Joseph Jr. in placing his sister in the facility (tr at 33-34). After Ms. Schanbel, Mr. Daramy testified as to his interaction with the family. He had witnessed Joseph Sr. “throw a tantrum,” “make inappropriate comments,” and use “colorful words” toward the staff (tr at 37-38). A meeting with Joseph Sr. occurred where the staff explained what was expected when he visited, and since that time there have not been any issues (tr at 38). Finally. Katalin Amano from MHLS testified that her first interaction with the family was in 2017 when Patricia was quite ill. At that time, the ward was placed in a group home, since the two standby guardians, namely, Joseph Sr. and Joseph Jr. were unable to care for her (tr at 52-53). When Patricia was well enough to care for the ward, she was removed from the facility. Ms. Amano’s next contact with the family was in 2019 when the court reached out to MHLS regarding the location of the ward, and she located her for the court. She clarified her testimony by explaining that Joseph Sr. was not involved in the ward’s care in 2017, and it was Joseph Jr. that arranged for her care after his mother’s passing (id.). DISCUSSION Upon the death of a caregiver and court appointed guardian, the standby guardian is expected to step into the guardian’s role with the best interest of the ward in mind (see SCPA article 17-A). With a ward such as Annamarie O., this responsibility cannot be taken lightly given her inability to care for herself. A properly qualified standby guardian under SCPA §1757 (2) may serve for up to sixty (60) days before returning to court, either to seek permanent guardianship, or renounce that role in favor of another. SCPA §1757 (2) further provides that “[b]efore confirming the appointment of the standby guardian or alternate guardian, the court may conduct a hearing pursuant to section seventeen hundred fifty-four of this article upon petition by anyone on behalf of the person who is intellectually disabled or person who is developmentally disabled or the person who is intellectually disabled or person who is developmentally disabled if such person is eighteen years of age or older, or upon its discretion” (see also In Re Stevens, 17 Misc 1121 (A) [Sur Ct, NY County 2007]). Pursuant to SCPA §1757, a parent, namely, Joseph Sr., would have priority of right to be appointed guardian. However, pursuant to SCPA §1755, The court shall so modify the guardianship order if in its judgment the interests of the guardian are adverse to those of the person who is intellectually disabled or person who is developmental disabled or if the interests of justice would be best served including, but not limited to, facts showing the necessity for protecting the personal and/or financial interests of the person who is intellectually disabled or person who is developmentally disabled. There is a strong preference for granting guardianship to parents over a “stranger” (In re Timothy R.R., 42 Misc 3d 775, 782 [Sur Ct, Essex County 2013], citing Matter of Dietz, 247 App Div 366, 367 [1st Dept 1936]). This presumption only stands when there is no evidence relative to the unfitness of the parent (id. at 781; cf. In re Audrey D., 48 AD3d 806, 807 [2d Dept 2008]). The issue in the current proceeding is whether the current standby guardian, Joseph Sr., would be the best successor guardian. His sons are objecting to his appointment, and one, Joseph Jr., has also filed a petition for guardianship of Annamarie O. The court retains a high level of discretion in a contested guardianship proceeding to decide who is best suited to care for the ward (see Matter of Stuart, 280 NY 245, 250 [1939]; see also In Re Stevens, supra). This court “must consider the emotional needs of the incapacitated individual, her physical and intellectual needs, and the limitations imposed upon her as a result of her disability” (Stevens, supra). There may be some dispute as to a five-year period after the parents of Annamarie O. divorced, but otherwise, Annamarie O. was clearly the responsibility of her mother Patricia. She continually resided with Patricia who cared for her and attended to her needs. Upon Patricia’s death, it was not the standby guardian, nor the alternate guardian who took responsibility for her care, it was Joseph Jr. It is the opinion of this court that neither petitioner has demonstrated a past history of providing appropriate care for Annamarie O. However, Joseph Jr. has presented witness testimony which evidences a present and persistent involvement in his sister’s appropriate care; Joseph Sr. did not. This court was able to witness the interaction of Joseph Sr. with his two sons during the hearing, which cannot be evidenced by the hearing transcript. Joseph Sr. was physically separated from his children during the hearing, by choice. He was rude to several witnesses and interrupted the proceedings. More importantly, he did not explain to this court how he would serve in the best interests of the ward if he was appointed guardian. Procedurally, as standby guardian, Joseph Sr. never confirmed his appointment within the statutory six-month period pursuant to SCPA §1757. He did not act as a co-guardian with Patricia, even prior to their divorce, and was not otherwise an active part of Annamarie O.’s life. Moreover, during Patricia’s illness and after her passing, Joseph Sr. did not care for the ward, or otherwise assist anyone in providing for her care or wellbeing. The testimony by John provided a disturbing picture of Joseph Sr., in that, Essentially, your Honor, if you knew my father the way my brother and I know him, you would not be appointing him guardian in this case. He is an abusive man. We grew up in a house with abuse. He was abusive toward my mother. He was abusive to us physically and emotionally. He was not supportive. He paid the bills. He paid the high school tuition. He paid the grammar school tuition for Catholic school so that he could brag about it…And he is inappropriate, quite simply, to be guardian of my sister. He was absent from her life for most of the last 20 years. I think in the last 15 years, I don’t think he saw her more than once or twice or maybe three times unless my brother brought her there when he had her without my mother knowing or without me knowing. Whenever my mother called for assistance, and I was frequently there when my mother would do so, he wouldn’t pick up the phone. When he would pick up the phone, he would say nothing but mean things to her…I think I put it all basically to you. Mr. O., Sr. should not be appointed guardian under any standards of this court. And he is an abusive man who has not had regular contact with my sister for many years, hardly knows her needs (tr at 21). When asked by the GAL as to why Joseph Sr. and Joseph Jr. sought to be guardians, John responded, “I think in the case of my father, it’s about power or control and some sort of vindication for mistakes made in the past. In the case of my brother, I think it’s possible that now with the passing of my mother he feels sorry for his lack of contact and seeking to make it up. His [sic] would seem to be better motivated, my brother” (id.). Joseph Jr. may not have provided a consistent past history of caring for his sister. However, at a critical moment, he did assume the role as caregiver; although, he held no legal obligation to do so. He brought his sister to live with him, and later, secured a safe environment for her to reside where she would be provided the proper care. These events occurred while the rest of the family were not involved in the ward’s care (tr at 58). Furthermore, Joseph Jr. has experience with the developmentally and intellectually disabled community, and he even founded a charitable organization in honor of Annamarie O. The testimony of the GAL, Schnabel and Daramy, who had personal knowledge of Joseph Jr.’s relationship with Annamarie O., paint a picture of a genuinely caring brother whose involvement in his sister’s care fosters a nurturing environment. The testimony supports Joseph Jr.’s application over that of the natural father, Joseph Sr. A natural father is normally preferred as the guardian. Nevertheless, the failure to step up when needed and the failure to be an active caretaker over the past twenty years weighs heavily on this court’s decision. The court’s first and foremost obligation is to protect the interest of the most vulnerable in our society. It is, therefore, the opinion of this court that Joseph Jr. be appointed guardian of the person and property of the ward for a period of one year. The temporary appointment is necessary in this proceeding. Unlike Article 81 of the Mental Hygiene Law, SCPA article 17-A does not provide for continuing supervision of the guardian. Should the guardian be incapable of serving, this court wants to ensure that the ward is safe and cared for. Therefore, this appointment will expire one year from the date of this order, and the proceeding will then return to this court’s calendar. It is then hereby ORDERED, that temporary guardianship of the person and property is granted to Joseph O., Jr. for a period of one year; and it is further ORDERED, that Temporary Letters of Guardianship of the Person and Property shall issue to Joseph O., Jr.; and it is further ORDERED, that the Letters of Guardianship of the Person and Property, heretofore issued on October 28, 1992, are hereby revoked; and it is further ORDERED, that this matter will be placed on this court’s calendar on February 3, 2021 at 9:30 a.m. for such other and further proceedings as this court deems just and reasonable. The Clerk of the Court is directed to mail a copy of this decision and order to all interested parties. This decision shall constitute the order of this court. Dated: February 20, 2020
