In the Matter of the Proceeding for the Termination of the Guardianship of the Person of Brian J.B.

Petitioner Brian J.B., by his attorney, Mental Hygiene Legal Services, filed a petition to dissolve his Surrogate’s Court Procedure Act article 17-A guardianship established on December 3, 2008, naming his parents Maxine B. and Mark B. as guardians. Randee S. B., the petitioner’s sister, was appointed the standby guardian. On November 14, 2019, the Letters of Guardianship were modified to replace Maxine B. with Randee S. B. as co-guardian. However, on February 1, 2023, Randee S. B. was removed as co-guardian. At the time of the petition herein, Mark B. is the sole guardian of the petitioner. Petitioner contends that the SCPA article 17-A guardianship should be vacated because he succeeds in managing his own affairs and activities of daily living, functions independently without assistance, maintains the competency to make medical decisions about his healthcare, and therefore, continuation of the guardianship is too restrictive and violates his rights under the Substantive Due Process Clause of the Fourteenth Amendment. A hearing was held pursuant to SCPA article 17-A before a court attorney referee on June 13, 2024 and August 1, 2024, to determine whether the guardianship should be dissolved. On June 13, 2024, petitioner disclosed that he and his family recently discovered that he had a half-sister who resided in Virginia, and as such was not noticed of the date of the hearing. Therefore, the hearing was adjourned until August 1, 2024. Prior to such adjournment, both Mark B. and Randee S. B. testified they consented to the application made by petitioner, and both represented that they believed petitioner could manage his own affairs and that the SCPA article 17-A guardianship was too restrictive. When the hearing was commenced on August 1, 2024, petitioner testified that he lived in a group residence with six other residents. He testified that he had a good relationship with the residents and staff. Further, he explained that he held a job at New York Presbyterian Hospital in Manhattan as a housekeeper earning over $20,000 annually. His hours of work are 7:30 a.m. to 3:30 p.m., and he commutes to and from work by himself by either Access-A-Ride or by a combination of bus, boat, and train. Prior to this position, petitioner testified that he had a similar position with Northwell Hospital on Staten Island; however, he wanted a “change of scenery” and chose to change jobs and commute to the city. Petitioner described himself as “very independent” and able to make his own financial and medical decisions. Specifically, he stated he was competent to administer his daily medications and understood banking as he maintains his account with TD Bank. He indicated that he has a relationship with a girlfriend for a couple of months and bought her gifts. Upon discovering that he had a half-sister, petitioner testified that he traveled to Virginia by airplane on two occasions, once independently, and on the second visit, he was accompanied by other family members. Dr. Neil Madero, qualified as an expert in the field of psychology, specifically as it relates to individuals with intellectual or developmental disabilities, opined that the SCPA article 17-A guardianship of the petitioner was unwarranted as he found petitioner to be self-reliant. Based upon his interaction with petitioner over the past two years, his review of the petitioner’s records, and tests conducted in 2021, Dr. Madero confirmed that petitioner’s psychological diagnosis included general anxiety disorder, attention deficit disorder and hypersensitivity disorder. Despite this diagnosis, Dr. Madero described petitioner as having a mild intellectual disability. He explained that petitioner’s disability may cause him to take longer to make decisions; however, Dr. Madero was confident that petitioner had the capacity to make informed decisions. Evan S. Fersko, a rehabilitation specialist and placement coordinator with NYS OMRDD, also testified on behalf of petitioner. He confirmed that petitioner possessed the adequate skills to be independent in daily activities. He indicated that petitioner had limited interactions with his peers at the group home and prefers to socialize with the staff members of the home. Mr. Fersko testified that the services provided to petitioner by the group home (nursing, psychologist, nutritionist, etc.) would remain in place if petitioner’s SCPA article 17-A guardianship was terminated. A person is developmentally disabled under SCPA article 17-A if they: (1) have an impaired ability to understand and appreciate the nature and consequences of decisions which makes them incapable of managing themselves and/or their affairs by reason of developmental disability; (2) this condition is permanent in nature or likely to continue indefinitely; (3) the condition is attributable to cerebral palsy, epilepsy, neurological impairment, autism, or traumatic head injury; and (4) the condition originates prior to age 22 or stems from a traumatic head injury, in which case, age of onset is not an issue for the purpose of this particular statutory definition.¹ The duration of a guardianship pursuant to SCPA §1759 is 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.² As such, although the statutorily intended duration of a SCPA article 17-A guardianship is a lifetime, it is entirely possible that termination of such a guardianship may be warranted. Surrogate’s Court Procedure Act section 1759 states that a person for whom a SCPA article 17-A guardianship has been established may petition the court to have the guardianship dissolved. In such a proceeding, the ward bears the burden of establishing that the guardianship is not in their best interest.³ The “interests of justice” standard set forth in SCPA §1755 and the determination of what is “necessary and proper for the welfare” of a person with intellectual or developmental disabilities set forth in SCPA §1758 must necessarily include a determination of what is in the ward’s best interest, because the ward’s best interest is always paramount in a guardianship proceeding.⁴ 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.”⁵ The determination of what is in the best interest of a person with a developmental disability within the meaning of SCPA article 17-A is committed to a court’s sound discretion, and this discretionary determination is entitled to great deference, as the court had the opportunity to hear the witnesses and weigh their credibility.⁶ Generally, such a determination will not be disturbed unless fully supported by the present record.⁷ In addition, a best interest determination must include an assessment of an individual’s functional capacity and what an individual can and cannot do in managing her or his daily affairs.⁸ It is axiomatic then that a SCPA article 17-A guardianship must be dissolved when the “alleged incapacitated person has an intellectual or developmental disability, yet is not incapable of managing their person and/or property.”⁹ There is no statutory framework which guides the dissolution of a guardianship as its intent is not to result in dissolution. Moreover, substantive due process is a right guaranteed under the Fourteenth 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.”¹⁰ 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.”¹¹ Applying the least restrictive means is recognized by New York Courts as a constitutional imperative¹² and as codified in New York 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.¹³ 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 cannot 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.¹⁴ Functional capacity of the individual taken into consideration with the individual’s available resources including their community, healthcare, power of attorney, advance directives, and the like, can assist in the least restrictive means determination. Once functional capacity has been found by the court in an individual, this court no longer has subject matter jurisdiction under SCPA §1758.¹⁵ Petitioner was 18 years of age at the time of the granting of his guardianship. He has been diagnosed as having a low IQ, and mentally “retarded,” a diagnosis, no longer utilized as a “catchall” term for developmental disability, whether under SCPA article 17-A or within the medical community.¹⁶ The initial physician’s affirmation submitted to certify the petition to institute the guardianship, included this specific diagnosis. Such a diagnosis was squarely within the then existing framework for SCPA article 17-A and evidence of this diagnosis routinely resulted in the granting of a guardianship. The physician’s affirmation attached the petitioner’s psycho-educational update from a school psychologist from the New York City Department of Education. The NYSDOE update noted that petitioner at that time was a “high functioning young man with excellent interpersonal skills.” He had a part-time job on the weekends at K-Mart and volunteered for other organizations. Curiously, petitioner, at that time, was unhappy with the level and frequency of his math lessons and requested more challenging lessons from the NYDOE. As a result of that request, additional math instruction was provided to him one-on-one. It is imperative to note that this report was written by a school psychologist and therefore, could only be submitted in circumstantial support, not as direct evidence of petitioner’s capabilities at that time. School psychologists are not permitted by SCPA §1750 or SCPA §1750-a to provide affirmations certifying a petition under these statutes, despite the information that school psychologists have the ability to interview the proposed ward, the parents, instructors, and other care providers to complete such a report. As such, this court has found that school psychologists deliver a more complete picture of the proposed ward’s capabilities and deficiencies. In this instance, other instructors and resource room instructors were interviewed for this report. However, as stated earlier, this update was circumstantial evidence only of this proposed ward’s abilities, and at the time of the petition, the physician’s affirmation was provided great deference. The twenty-first century has seen a dramatic change in the social and educational acceptance of the developmentally and intellectually disabled population. In the early part of the century, expansions to the Individuals with Disabilities Education Act and the Higher Education Act enabled this population to have the opportunity for higher education and employment opportunities.¹⁷ Further, in 2010, President Obama signed Rosa’s Law which amended the Rehabilitation Act of 1973 and replaced the term “mental retardation” with “intellectual disability.”¹⁸ A subtle, yet powerful, shift in the perception of the affected population, this law was named after Rosa Marcellino, whose brother was quoted as stating “What you call people is how you treat them. If we change the words, maybe it will be the start of a new attitude towards people with disabilities.”¹⁹ The quote was profound, and this seemingly simple change sparked further growth. 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”).²⁰ Field trials showed that the DSM-5 umbrella diagnosis of ASD eliminated some 75 percent of those previously diagnosed patients with Asperger’s Syndrome.²¹ This change was significant and an example of how the view of the affected population changed from labeling to emphasis of an individuals’ functional ability, not simply a medical diagnosis.²² Petitioner’s current diagnosis is no longer under the “catch-all” and demeaning phrase of “mental retardation.” The affirmation presented in the current dissolution petition diagnoses petitioner with general anxiety disorder, attention deficit disorder and hypersensitivity disorder. A far cry from the label in 2008, in part because of the change in the law, in part, due to his encouragement from his family, educational and therapeutic support. Addressing the petition within, this court, also having evolved in its understanding of the scientific and societal changes in this population, finds no evidentiary reason to continue the guardianship herein. 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 a SCPA article 17-A hearing can support a finding at a given period in time, herein 2008, that the ward lacks capacity to manage their personal and property affairs. The difficulty with such an analysis at a particular moment is the assumption that an individual is unable to manage their diagnosis and benefit from continuous treatment options. Once a SCPA article 17-A determination is made, typically at or around the age of eighteen, apart from petitions similar to that within, there is no discernible reason for the Surrogate to re-examine the best interests standard. This rigid 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 day, that age, and it is entirely conceivable that those means are not the least restrictive at a different time. Essentially, what may be good today, may be inappropriate tomorrow. Sixteen years ago, petitioner was an eighteen-year-old, still developing and benefiting from the decisions made for him, the support structure which surrounded him, and he may have required a guardian to continue that support. From the evidence presented throughout the within proceeding, some 16 years after the initial petition, he now comfortably makes his own personal and property decisions, having matured, and benefitted from the assistance previously provided to him. Accordingly, upon the oral proof adduced at the hearing, the documentary proof submitted in support of the application, and the report of the court attorney referee recommending dissolution, it is, therefore, ORDERED, ADJUDGED AND DECREED, that the guardianship of the person of Brian J.B. is dissolved; and it is further ORDERED, ADJUDGED AND DECREED, that the Letters of Guardianship of the Person Only issued on November 14, 2019, are hereby revoked. This decision shall constitute the order of the court. Dated: October 2, 2024