Opinion
Index No. EFCA2024001334
08-01-2024
In the Matter of the Application of Marybeth D. and STEVEN D., Petitioners, Pursuant to Article 81 of the Mental Hygiene Law For the Appointment of a Guardian of the Person and Property of Mason G.D., an Alleged Incapacitated Person.
Debra J. Cohn, Esq. Attorney for Marybeth D. Garufi Law P.C. Robert Connelly, Esq. Attorney for Steven D. Costello, Cooney & Fearon, PLLC Greg S. Catarella, Esq. Court-appointed counsel for Mason D.
Unpublished Opinion
Debra J. Cohn, Esq. Attorney for Marybeth D. Garufi Law P.C.
Robert Connelly, Esq. Attorney for Steven D. Costello, Cooney & Fearon, PLLC
Greg S. Catarella, Esq. Court-appointed counsel for Mason D.
Hon. David H. Guy, Acting Supreme Court Justice.
PROCEDURAL HISTORY
The Court appointed Marybeth D. and Steven D. as Co-Guardians of the Person and Property of Mason D., confirmed by order and findings dated August 13, 2021. On October 11, 2023, Debra J. Cohn, Esq., on behalf of Marybeth, filed a motion supported by an attorney's affirmation and seven exhibits, seeking an order of the Court: removing Steven as co-guardian; allowing Steven supervised visits with Mason; approving a caregiver salary for Marybeth; and awarding Marybeth her attorney's fees associated with this motion, assessed against Steven personally. The Court made the application returnable via order to show cause dated October 13, 2023 and appointed Greg S. Catarella, Esq. as counsel for Mason. The hearing was originally set for November 15, 2023 and was adjourned, at the request of counsel for Steven, to December 13, 2023.
Mason's prior court appointed attorney, Philip J. Artz, left the active practice of law and relocated out of state before this application was filed.
On December 6, 2023, Kimberly Nedza, Esq., on behalf of Steven, filed an application seeking a Court order dismissing Marybeth's petition; removing Marybeth as co-guardian; lifting the temporary order of protection in place against Steven; and directing Marybeth to pay Steven's reasonable attorney's fees related with this application.
Kimberly Nedza, Esq. appeared throughout this matter with Robert Connelly, Esq., both from the same firm. Following the final day of trial, Mr. Connelly informed the Court that Ms. Nedza was no longer with their firm, so Mr. Connelly is Steven D.'s counsel of record as of the date of this decision.
The Court convened both applications on December 13, 2023, at which time Marybeth appeared with counsel, Debra J. Cohn, Esq; Steven appeared with counsel, Kimberly Nedza, Esq. and Robert Connelly, Esq.; and Greg S. Catarella, Esq., court-appointed counsel for Mason, appeared. The Court conferenced the matter with the attorneys, and the parties agreed that Marybeth and Steven would be temporarily removed as co-guardians of the person of Mason with respect to their ability to make medical and end-of-life decisions on his behalf. In their stead, Hunter D., Mason's brother, agreed to act as temporary guardian with the authority to make medical decisions and end-of life decisions on Mason's behalf. The parties and counsel also agreed to a lifting of the temporary order of protection, in place until September 1, 2024, to allow for visitation of Mason by Steven, and communication between Steven and Marybeth about Mason's care. The Court issued orders dated December 19, 2023, confirming the above.
The Court conducted a hearing on these applications on January 31, 2024, February 1, 2024, February 23, 2024, and March 15, 2024. At the conclusion of the hearing, the Court reserved decision and allowed counsel to provide written summations. Ms. Cohn, Mr. Connelly, and Mr. Catarella submitted summations dated March 29, 2024. This written decision follows.
THE HEARING
Marybeth presented her case-in-chief first. In support of her case, her counsel called Brad Bouthillier, Laura Smith, Julie Resnick, Jonica Malloney, Timothy Micalizzi, Crystal Murphy, and Marybeth to testify as witnesses. In support of Steven's case-in-chief, his counsel called Karin Guns, Timothy Quick, Marlene Jeremiah, Hunter, and Steven to testify as witnesses. After the conclusion of Steven's case-in-chief, Marybeth D.'s counsel called Christine Fenlon, MD as a rebuttal witness. A distilled version of the voluminous testimony follows.
Marybeth's Case
Brad Bouthillier is a high-tech respiratory therapist and started working with Mason and the D. family in September 2022. He went to Mason's house many times and trained Marybeth, Steven, and Mason's nursing staff on the proper use of Mason's medical equipment. Mr. Bouthillier testified Marybeth had greater command of and confidence with the equipment. Mr. Bouthillier never observed Marybeth with slurred speech, any impairment, or alcohol on her breath. He had no concerns about Marybeth's ability to provide care for Mason. He described Marybeth as the lead parent in terms of providing care for Mason and communication with him. His last paid work related to Mason was in October 2023.
Jonica Malloney is a licensed practical nurse with more than 10 years' experience employed in Mason's home through an agency, TEAMS. She has worked days (8:00 a.m. to 8:00 p.m.) for Mason since October 2022, three to four days per week. Her duties include providing nursing care, medication administration, tube feeding and making sure Mason is cared for and comfortable. The tasks she and the other caregivers perform for Mason are controlled by a written protocol, put in place by the care agency. Mason's medication is controlled by his medication administration record (MAR), which is put in place by Mason's doctors and overseen in the home by Marybeth. The nursing staff signs off on the MAR whenever care or medication is provided to Mason. Marybeth is typically with Ms. Malloney when Ms. Malloney is caring for Mason; she has observed Steven be called on to help pull up or reposition Mason once or twice.
Ms. Malloney was aware of Steven wanting Mason to be given lemon juice in his feeding tube, but she refused due to the lack of a physician's order for it. Ms. Malloney was also concerned about a process called grounding Steven wanted to perform on Mason. She observed Steven put a screwdriver into the ground hole of an outlet, then run a wire from the screwdriver to Mason.
Mason receives pain medication as needed, based on specific orders in the MAR. Since Mason is nonverbal, staff relies on other metrics to ascertain whether he's in pain, such as facial expressions, heart rate, raising his right arm, or red blotches on his face. Ms. Malloney testified she is very familiar with Mason's pain signals. The MAR also allows for the administration of Tums to Mason when he's having indigestion, which staff can recognize by Mason burping or appearing to swallow hard.
Ms. Malloney never observed Marybeth impaired or smelling of alcohol; she always answered Ms. Malloney's phone calls. She testified Marybeth created a lighter atmosphere with more levity in the home, which has a positive impact on Mason. She stated that Steven can be argumentative and speaks negatively to Marybeth within earshot of Mason.
Laura Smith is a licensed practical nurse also employed through TEAMS and has provided care for Mason since about January 2023. She works a 12-hour day shift, initially nights and now days, three to four days per week. Ms. Smith administers medication to Mason, provides treatment, repositions and monitors him, and maintains his hygiene. As with the other caregivers, her care of Mason is guided by the MAR and doctor's orders.
Ms. Smith has been at Mason's home at all times of day and night and has observed both parents with Mason. Ms. Smith indicated she has no concerns about Marybeth's ability to provide care; she has never smelled alcohol on Marybeth's breath.
Mason receives nutrition through a feeding tube, and the nutrients he receives from the tube are prescribed in the MAR. Ms. Smith expressed concern about Steven's desire to provide Mason with substances beyond what the MAR directs, including lemon juice and garlic extract. Ms. Smith refused to administer those items to Mason because the MAR did not contain a doctor's order for them. She indicated it could impact her license as a medical professional if she were to vary from the MAR. Ms. Smith testified that Marybeth originally agreed with Steven to give the lemon juice to Mason.
Ms. Smith believes that Steven did not want doctors involved in Mason's care. He told her on more than one occasion that he did not believe the doctors were acting in Mason's best interest.
Ms. Smith testified to an incident took place at Mason's home early in the morning of July 11, 2023, that led to an order of protection in favor of Mason and Marybeth and against Steven. Ms. Smith was not at Mason's home, but received a phone call from Crystal Murphy, the nurse's aide who was there, who was upset because Steven was telling Ms. Murphy to leave the home in the middle of a shift. Ms. Smith testified she told Ms. Murphy to call the police, but ultimately called the police herself. Ms. Smith then went to the house, where she found police were present. Steven was ultimately escorted from Mason's house by a trooper. Marybeth D. arrived at the house shortly after Steven was removed from the house by the police.
This is universally described as "the July 11 incident." It seems it must have begun in the evening of July 10 and extended into the morning of July 11.
Crystal Murphy is a nurse's aide who works the night shift (8:00 p.m. to 8:00 a.m.) three days per week for Mason since December 2022. She provides basic bedside care, medication administration, range-of-motion exercises, and performs some housework.
Ms. Murphy described Marybeth as helpful with all tasks and Steven as assisting with Mason's showers and being the one to shop for goods for the house. She has never observed Marybeth with slurred speech or seeming intoxicated. She also testified Steven lives only a mile away from Mason's house and has always been available when needed. Ms. Murphy believes Mason's abilities have improved over time and under Marybeth's care.
Ms. Murphy testified that she also refused to administer lemon juice to Mason when requested to do so by Steven; she would take the lemon juice and dump it down the sink. Ms. Murphy also became aware of Steven wanting to perform grounding on Mason, and Ms. Murphy volunteered for Steven to try it on her instead, and expressed she felt no sensation from it.
Ms. Murphy was on duty during the July 11, 2023, incident. Mason began experiencing increased heart rate and signs of discomfort, so Ms. Murphy believed Mason had gas. She performed physical adjustments to try to relieve Mason's discomfort. She testified that Steven made a tea to give to Mason, and Ms. Murphy responded that they could not give Mason the tea because there was no physician order for it. Steven responded by getting in Ms. Murphy's face, saying, "Don't tell me how to f***ing treat my son." Ms. Murphy called Marybeth, who wanted to speak with Steven. Ms. Murphy heard Steven tell Marybeth, "You turned another one," and Steven hung up the phone. Ms. Murphy described Steven as irate and demanding Ms. Murphy leave the home. The incident was taking place in Mason's room, and Ms. Murphy indicated that throughout the incident, Mason's heart rate increased to 120 beats per minute.
Ms. Murphy left Mason's room, and, feeling uncomfortable and not knowing what to do, called Laura Smith, who in turn called the police. Steven got in Ms. Murphy's face again, and Ms. Murphy saw Mason's heart rate increasing to 130 beats per minute. The police arrived, and Ms. Murphy gave one trooper a statement. Marybeth arrived at some point and went inside to tend to Mason. Ms. Murphy testified that Steven was "explosive." The incident was the first and only of its kind.
Julie Resnick is a nurse consultant and case manager with National Care Advisors, where she has worked for five years. In this capacity, she regularly works with Comerica Bank and Trust, N.A., the trustee of the Mason G. D. Settlement Trust (the Trust), which often and in this case did bring her into the case. She effectuates implementing care and addresses other needs the trustee or family may request for Mason. Her initial involvement included providing an evaluation and facilitating the identification and purchase of the equipment required for Mason's care at his house, to get Mason home from the hospital safely.
After the completion of the initial setup of Mason's home, Ms. Resnick remained involved, at Marybeth's request, to provide ongoing support with staffing the medical professionals in Mason's home. Mason requires two people working in 12-hour shifts. The two-person requirement can be met by a nurse and an aide, including either of Mason's parents. Ms. Resnick's role in hiring includes reviewing resumes, screening candidates, conducting initial phone interviews, and if appropriate, moving the candidate forward to an in-person interview with Marybeth. Ms. Resnick handles the on-boarding process for hired individuals. Ms. Resnick testified to the challenge of obtaining quality nursing staff, particularly post-pandemic. She said that the current staff in the home is good and meets Mason's needs. She said that the nurses report to Mason's parents, and Ms. Resnick checks in with them about staff periodically. Ms. Resnick reports to the trustee and to Mason's parents.
Ms. Resnick conducts weekly Zoom meetings with the parents to identify Mason's goals, tasks and needs, as well as to answer questions. She sends Zoom meeting invitations via email. Marybeth attends every meeting and Steven has attended some but not all. Hunter has been invited to the weekly Zoom meetings since his appointment as temporary guardian, and attended two of the four scheduled meetings between that time and Ms. Resnick's testimony.
Ms. Resnick described Marybeth as handling the medical side of Mason's care and Steven as being tasked with managing the house maintenance. She testified Steven struggled to complete tasks in a timely fashion, giving several examples.
Ms. Resnick expressed no concerns about Marybeth providing care for Mason, but did express them about Steven, particularly his wanting to do things for Mason that are not approved by a doctor. She has perceived Steven as having memory issues. She expressed concern about Steven's demeanor toward staff and Marybeth, describing Steven's language at times in their Zoom meetings as "toxic" toward Marybeth.
Ms. Resnick described a meeting just prior to the July 11, 2023 incident, in which Steven was threatening to call the police on Marybeth if she did not agree to the administration of certain supplements to Mason. She testified to Steven's desire to try "alternative" treatments, such as garlic, supplements and grounding and his lack of appreciation that before Mason received any new treatment, Mason's doctors must first approve the treatment for administration to Mason by staff. Ms. Resnick did not think Steven ever intended to harm Mason and only seems to want to help him.
Marybeth D. resides in Bracken, Pennsylvania, about 10 minutes by car from Mason's home. In her role as Mason's co-guardian since October 2021, she orders supplies, picks up prescriptions, coordinates doctor appointments, and provides direct care like bathing, hugging, and speaking with Mason. As soon as she wakes up in the morning, she goes directly to Mason's home. She stopped working after Mason's accident.
Marybeth acknowledged that Steven raised the administration of lemon juice to Mason's g- tube with her and that she acquiesced initially. She expressed it caused negative side effects, so she stopped it. She said she would try anything to help Mason, but any treatment must be approved by Mason's doctors. She described concerns she has had with various treatments Steven has recommended after internet research, including supplements and grounding. She acknowledged refusing or stopping these treatments after her own inquiry, or when she perceives Mason experiencing pain or discomfort.
Marybeth testified that she received a phone call from Mason's nurse, Crystal Murphy, around 3:20 a.m. on July 12, 2023 reporting Steven was telling her to leave the house. Marybeth spoke to Steven on the phone, and he accused her of turning Ms. Murphy against him. Marybeth went to the house and gave the police a statement. As a result of this incident, Steven was charged with endangering the welfare of an incapacitated person and an order of protection was put in place in Mason's and Marybeth's favor against Steven. Steven has allegedly violated that order, but Marybeth has not taken any responsive action.
Marybeth believes that Steven's approach of always insisting on having his way is the barrier to effective communication with and working cooperatively with him, for Mason's benefit. In Marybeth's opinion, Steven does not want to follow the doctor's orders regarding Mason's care and treatment. Marybeth testified that Steven wanted to reduce Mason's anti-seizure medication, which she agreed to, leading, she believes, to Mason having a grand mal seizure. She admitted they did not titrate the medication down under a doctor's orders, and is now adamant further reduction will require specific recommendation by a medical provider.
Marybeth described her main goal as making sure Mason does not suffer pain. According to Marybeth, Steven does not agree with Mason receiving all courses of treatment to reduce or eliminate Mason's pain, and he has referred to Mason's medication as poison.
Marybeth admitted she has a beer or two while in Mason's home but has never been intoxicated while providing care. She said she has almost never missed a call from a nurse. She has never been charged with driving while intoxicated or driving under the influence.
Marybeth testified that Hunter does not visit with Mason, as it upsets Hunter to see his brother in his current state. Marybeth expressed she wants all of Mason's family to be able to visit Mason, but does not want to be questioned about Mason's care.
Marybeth stated that she wants Steven to visit with Mason. If the Court removes Steven as co-guardian, Marybeth asserts she would still involve Steven with all things on Mason's behalf except medical decision-making. He could still attend and express his views in the weekly meetings with Julie Resnick. She testified she has reached out to Steven's criminal defense attorney to try to assist with getting the order of protection lifted.
Timothy Micalizzi, Marybeth's boyfriend of eight years, is not a care provider for Mason. He testified Marybeth has frequently left the house they share in the middle of the night to go to Mason's house to provide care for him. Marybeth is never unable to get up, and in Mr. Micalizzi's view is never unable to make good decisions. He opined Marybeth is a loving mother for Mason.
Dr. Christine Fenlon was called as a rebuttal witness in support of Marybeth's application. Dr. Fenlon is an internist with a sub-specialty in infectious diseases. She works at Our Lady of Lourdes Hospital Memorial Hospital (Lourdes) since January 1, 2023, and was previously employed at United Health Services Hospitals, Inc. (UHS). She is familiar with Mason from his admissions at UHS in 2022 and earlier and is aware he suffers multiple infections, pneumonias, and urinary tract infections. She has also seen Mason once this year at Lourdes. She may have spoken to Steven on the phone once but has met and worked more closely with Marybeth regarding Mason's care. She described a very positive working relationship with Marybeth, whom she never perceived as impaired or inappropriate. In Dr. Fenlon's view, Marybeth asks good questions and involves others in the room in the discussion about Mason. Dr. Fenlon opined that Mason is doing better now than he was last year.
Dr. Fenlon acknowledged the continued use of antibiotics can create resistance in a patient, so she is cautious in prescribing them. She testified that no studies have shown that supplements aid in healing, though balanced nutrition helps to resist and heal infections.
Steven's case
Karen D. Guns is Steven's sister, so has known and been involved with the family for many years. She described herself as part of the support system for Steven and Marybeth post Mason's accident, and as another advocate for Mason since that time. She said that until the July 11, 2023 incident she spoke to Marybeth almost daily; since that time their communication has been very limited. Karen described the many challenges faced by Steven and Marybeth to get Mason stabilized and home after the accident. She was critical of "the Trust" for not sufficiently staffing the house when Mason was first home, and for not communicating with Steven. Karen described herself as "stuck in the middle" between Steven and Marybeth, trying to facilitate their communication. She testified that initially after the accident Steven and Marybeth were largely on the same page, including with respect to some of Steven's proposed alternative treatment ideas, but over time their communication and working relationship deteriorated, then ended with the July 11 incident. She testified to the "brutal" impact on Steven of not being able to see Mason since that incident due to the order of protection.
Karen described Marybeth's regular and long-term use of alcohol as a self-medicating response to stress. She has observed this behavior over the more than 30 years she has known Marybeth, describing her as a "functional drinker." She acknowledged Marybeth as instrumental in getting Mason home and focused on Mason's care. Karen's perspective is that Steven sees his role as a supportive dad, trying to do new and positive things for Mason' situation, noting his application of his mechanical skills to Mason's muscle contraction issues.
Timothy Quick has been a friend of Mason and Hunter D. since second grade and lived in the D. household at various times since 2011. In 2011, he lived in the D. home for one to two months and saw Marybeth drinking alcohol daily in the evenings. He said she would become more irrational and argumentative when drinking. When Mr. Quick lived in the D. household again in 2017, Marybeth had left the family. According to Mr. Quick, Mason had a close relationship with Steven but a strained relationship with Marybeth, feeling obligated to see her and discouraged about her alcohol consumption.
For about five or six months immediately after the accident, Mr. Quick visited Mason almost daily, until a new job precluded his frequent visitation. He described Steven as selfless, genuine, and fit to be Mason's guardian. He conversely described Marybeth as unfit to be guardian, with a mind clouded by alcohol. Mr. Quick last saw Mason about a year ago. He has never observed either Steven or Marybeth act as a direct care provider for Mason. He observed Marybeth drinking alcohol at Hunter's 30th birthday party in July 2023, at a time when she was not acting as a caregiver for Mason.
Marlene Jeremiah is Steven's girlfriend of more than six years. She described Steven as a loving father who has prioritized care for Mason over their relationship. She knew Mason before his accident and described his as suffering trauma from Marybeth's substance abuse, and she described Mason and Marybeth's relationship as very estranged.
Much of Ms. Jeremiah's testimony was based on her discussions with Steven. Ms. Jeremiah has not spent much time with Marybeth. She described Marybeth as "not a team player" and not interested in researching Steven's ideas for Mason's treatment. Marybeth has called Ms. Jeremiah to say Steven should not be involved in Mason's care. Ms. Jeremiah specifically recalled Steven and Marybeth each saying to the other, "we have to be Mason's doctor."
Hunter D. is Mason's older brother, by seven years. He has served as temporary guardian of Mason for the limited purpose of making medical decisions since his appointment by the Court in December 20223. He has not provided direct care to Mason.
Hunter described himself as acting more like Mason's parent than brother when Mason was young, though they became more like brothers as they grew older. Hunter characterized Mason's pre-accident relationship with Marybeth as superficial, with Marybeth making false promises and failing to appear after she left the family. Marybeth was not seeing Mason frequently before his accident. Mason would call Marybeth out on her drinking alcohol and talk to her about it, in a way Hunter says he is not able to do. He described Marybeth as a good caregiver but not a good decision maker.
When Marybeth left the family, about six years before Mason's accident, Hunter had just moved out with Timothy Quick, leaving Mason behind. Hunter believes this had a traumatic effect on Mason. Hunter does currently communicate with Marybeth, but he described it as "hollow." She asks for his thoughts but is not willing to change and overpowers other people's viewpoints. He believes she will manipulate Mason's situation to accommodate her own.
Hunter testified Mason was "about 14" when Marybeth left the household; Mason was 20 at the time of his accident.
Hunter described Marybeth as an alcoholic "since forever." He described her drinking as making her become irritable and irrational. She is reasonable, calm, and pleasant in the mornings, and as the day goes on, she consumes alcohol and her personality changes. When Marybeth has consumed too much alcohol, she looks mean, cannot stop talking, and is "not a whole person." Hunter does not trust her to be stable and reliable. Hunter has limited his own daughter's interaction with Marybeth because of this. He has spoken to her about his concerns and believes she needs medical assistance to address the issue. Her drinking problems continue to-date, in Hunter's view, and he has hard feelings toward Marybeth regarding her alcohol consumption. Hunter has never seen Marybeth drink alcohol at Mason's home.
Hunter described Marybeth as the aggressor in her and Steven's interactions, screaming at and belittling Steven. From Hunter's perspective Steven has tried to take the high road, with limited success. Marybeth is more dangerous, prone to throwing pots and pans, hitting Steven once or twice. Steven can have an intimidating temper but has not actually ever hurt someone physically.
Hunter described the scenario leading to the issuance of the order of protection as premeditated by Marybeth, believing she wanted Steven "out of the picture." Hunter feels Mason receives good care from Marybeth but would want Steven actively involved, and for his family to cooperate on his behalf. From Hunter's perspective there is consensus in the family that Mason has basically stayed the same since his accident. Marybeth and Steven agreed on the administration of lemon juice and the decrease in dosage of the anti-seizure medication, but Marybeth then undermined or interfered with these agreed upon courses of treatment. Hunter acknowledged the family did not discuss these changes in Mason's treatment with Julie Resnick. Steven researched the grounding treatment and made his own system. Steven is very familiar with electrical work and tried it on himself first. Hunter believes it did not pose a risk and would not cause harm to Mason.
Since December 2023, Hunter has had more contact with Mason's doctors but still does not provide direct care to Mason. He consults with the trust representatives regularly and attends some care meetings. He does not feel overwhelmed by the role he has taken on as temporary guardian and is happy to do it. He feels he is the next best option to continue as guardian after Steven. Hunter perceives Marybeth is still putting up roadblocks for Steven, including not giving him access to the camera system in Mason's house. He is confident Mason would want Steven as his decision maker.
Marybeth failed, without reasonable excuse, to execute on a specific direction from the Court to get Steven access to this camera system.
Hunter professed to be able to navigate between Steven and Marybeth. Steven's relationship with Julie Resnick is strained, attributable in Hunter's view to Marybeth undermining him. Hunter could not think of another person who could act as Mason's guardian. Marybeth expresses amenability but does not follow through or implement changes. Hunter began to document Marybeth's refusal regarding the camera system because she did not respond to multiple oral requests for Steven to have access. He said that the issue the three disagree on most is Marybeth wanting to be in control.
When asked for an example of Marybeth making a bad decision on Mason's behalf, Hunter testified that she has sent Mason to the hospital when he did not need to go. Marybeth has not taken any dangerous actions toward Mason. Hunter does not believe Mason can meaningfully communicate. Hunter acknowledged that at times Steven, Marybeth and he have different opinions about Mason and his treatment and that it is most important to coordinate Mason's care with his doctors.
Steven D. testified that Mason was 14 years old when Steven and Marybeth separated in March 2015. Steven described Mason's relationship with Marybeth after the separation as bad. Steven and Marybeth's divorce traumatized Mason, who had a very difficult time processing it. Mason stayed with Steven after his parents split. Before the separation, Mason was critical of Steven putting up with Marybeth's behavior, as she was mean and disrespectful to Steven in front of Hunter and Mason. Steven reported Marybeth had been physically violent with him.
Mason was hired for his first "real job" working in a warehouse four months before the accident. Steven described the job, and Mason's year-long relationship with his girlfriend, as indicative of Mason growing up and getting his life on track.
Since their appointment as co-guardians, Steven and Marybeth have not worked well together. Steven claims he is willing to work with Marybeth and that he has done everything he can and has let Marybeth be the "point person." Marybeth coordinated the hiring of an attorney regarding Mason's motorcycle accident. While Mason was at Bridgewater Center for Rehabilitation and Nursing, and after he went home, Marybeth was present during the day and Steven at night. This put Marybeth in the position of communicating with the doctors and other caregivers.
Steven testified to many situations where he feels his ideas and opinions were not given full consideration. A June 2022 CT scan showed Mason had kidney stones of up to 8 millimeters. In January 2023, Mason went back to the hospital and the stones had gotten much bigger, requiring intervention. The urologist, whom Steven described as very pessimistic, proposed surgery. Steven felt Mason was not a good candidate for surgery, and Steven felt Marybeth undermined his perspective. Marybeth ultimately authorized the surgery for Mason without Steven's knowledge, calling Steven while the surgery was taking place. Steven expressed great concern that while at UHS, Mason was given an antibiotic without also being given an offsetting probiotic. Steven testified that he did a lot of work to transition Mason from UHS to Lourdes.
When Mason arrived home after the surgery, Steven "begged" Marybeth to give Mason lemon juice to prevent further kidney stones. A year before the surgery Mason' urologist had acknowledged its potential use for that purpose. Marybeth initially agreed to try it for Mason. Steven admitted he had been secretly giving Mason lemon juice while he was at Bridgewater in 2022.
Steven wanted Mason to have supplements recommended by the naturopath Michael Biamonte, after Steven sent a requested stool sample. Biamonte is affiliated with a gastrointestinal doctor who has offices in California and Florida. Steven had "begged" Mason's GI doctor to analyze Mason's gut biome after doing substantial internet research on the topic. The supplements were discussed at a weekly care meeting. Biamonte suggested they talk to Mason's primary care physician about the supplements, though Steven felt like he did not "have a chance" regarding serious consideration of the supplements. Marybeth eventually called Biamonte herself and questioned him in a way Steven characterized as obscene and rude. Mason was never given the supplements.
Steven testified on cross examination about an incident where he allegedly made tea from a wild mushroom given to him by a friend, and gave the tea to Mason. After some hesitation he admitted this was actually a story he made up to get Marybeth's attention.
In April 2023, Steven requested a family meeting and wrote out an agenda. Steven testified that Marybeth told the nurse manager that he was trying to stop all pain medication for Mason, which he denies. During this meeting, they discussed reducing the anti-seizure medication, due to the many side effects the medication carries. Marybeth agreed on titrating the medication down, as did Mason's doctor. They agreed to reduce it by 12 percent but, Steven testified, Marybeth actually reduced it by 50 percent. The day after the reduction, Mason experienced a seizure; reduction in this medication has not been pursued.
Steven testified about the July 11, 2023 incident. He said he was in and out of Mason's home multiple times, but on his final return to the home, the demeanor of the aide, Crystal Murphy, changed when she saw him. Steven described her as "plotting." According to Steven, Ms. Murphy expressed concern about Mason's heartrate, and wanted to give him Oxycontin. Steven disagreed Mason' heart rate was dangerously high and instead wanted to give Mason a cup of tea, which he did not believe required prior medical clearance. He testified that the aide "barked" at him and he "snapped," telling her to call an Uber and go home. He asked her at the time, "How did momma get to you?" The "next thing [Steven] knew," the police had arrived at the home, handcuffed him and arrested him on felony charges of endangering the welfare of a disabled person, on the strength of a statement Marybeth gave the police outside of his presence. The no-contact order of protection was put in place against him later that night. Steven attributes all of this to Marybeth.
Once the order of protection was issued, Steven's contact with Mason was severed. He said this had a dramatic impact on him, and that he should probably see a counselor. He is still confused how the incident happened. He said it made him "crazy" and acknowledged having anger issues.
Despite the order of protection being modified on the consent of all parties in December 2023, as of March, 2024, Steven had not seen Mason much, the last time three weeks before his testimony. Steven said that seeing Mason is "torturous," testifying that Mason's house is uncomfortable for him and he feels the nurses are hostile toward him. He finds the term "visitation" demeaning. He also stated that Mason is agitated at the visits. Steven wants some privacy during the visitation, as two nurses have been present during them.
Steven is very concerned about Mason's condition and his frequent hospitalizations. From Steven's perspective Marybeth usually makes the decision to send Mason to the hospital, sometimes unnecessarily. Steven offered the statistic that from January 1, 2023 through the July 11, 2023 incident that terminated his contact with Mason, Mason spent 146 days in his home and not in the hospital; from July 11, 2023 through December 31, 2023, Mason spent only 97 days at home.
Steven testified that he found out about the practice of grounding through his own internet research. Steven has performed a lot of electrical work as a contractor. He tried grounding on himself several times with no ill effect. He offered to try it on Ms. Murphy, who allowed it. Steven then tried it on Mason, with no adverse effects or perceived discomfort. Steven testified that at first Marybeth was okay with trying the grounding on Mason, then changed her mind.
Steven testified to seeing Marybeth drinking alcohol at Mason's home a few times, which he found very discouraging. He has seen beer cans at the home in the recycling bin, and in Marybeth's vehicle, after Marybeth started putting the empty cans there instead of the bin. He said he spoke to Marybeth about not drinking at Mason's home, and her response was, "I'll do what I want." Steven's biggest stated concern about Marybeth is her drinking alcohol every night. He claims drinking affects her speech and once caused her to sleep through a scheduled flushing of Mason's tubes. He said her actions create a risk of harm for Mason. Steven acknowledged on cross-examination asking an aide for a marijuana joint one night and smoking it on the back porch. He stated he does not smoke marijuana frequently and was not on duty that night.
Steven testified it is not possible for Marybeth and him to act together as co-guardians. He does not believe Marybeth is making good decisions for Mason. Taking care of Mason is a full-time job for them both. He agreed that reasonable people can disagree on treatment options and affirmed that he sees their role as keeping Mason out of the hospital. Steven feels Marybeth is more inclined to send Mason to the hospital. His perspective is that Marybeth does not allow for his input on Mason's care and does not accept his requests. As examples, he cited Marybeth's response to his request she not drink alcohol at Mason's house and her texting him that she would remove him as guardian and from Mason's home.
Steven states he did not object to the co-guardianship with Marybeth at the outset because he was open to a positive relationship with Marybeth for Mason's benefit. He feels Marybeth is not amenable to cooperating with him. He also said Marybeth has not established a professional critical care atmosphere at Mason's home.
LEGAL STANDARDS
Upon motion, the court appointing a guardian may remove such guardian when the guardian fails to comply with an order, is guilty of misconduct, or for any other cause which to the court shall appear just. MHL § 81.35; See Matter of Dunsmoor, 24 A.D.3d 1218, 1218 (4th Dept 2005), lv denied 7 N.Y.3d 704 (2006); Matter of Arnold O., 226 A.D.2d 866, 868 (3rd Dept 1996), lv denied 88 N.Y.2d 810 (1996); Matter of Francis M., 58 A.D.3d 937, 938 (3d Dept 2009). The trial court is accorded considerable discretion in determining whether a guardian should be replaced and an overarching concern remains the best interest of the incapacitated person. See Matter of Von Bulow, 63 N.Y.2d 221, 224 (1984); Matter of Gustafson, 308 A.D.2d 305, 307 (1st Dept 2003); Matter of Garett YY., 258 A.D.2d 702, 703 (3rd Dept 1999).
The court may fix the compensation of any attorney or person prosecuting a motion to remove a guardian and "may compel the guardian to pay personally the costs of the motion if granted." MHL §81.35; see, e.g., Matter of Irene A., 214 A.D.3d 790, 792 (2d Dept 2023). The Supreme Court has broad discretion in determining the reasonable amount to award as an attorney's fee in a guardianship proceeding. Matter of Alice D. [Lupoli], 113 A.D.3d 609, 613 (2nd Dept 2014). However, it must provide a clear and concise explanation for its award in a written decision with reference to the following factors: (1) the time and labor required, the difficulty of the questions involved, and the skill required to handle the problems presented; (2) the attorney's experience, ability, and reputation; (3) the amount involved and the benefit flowing to the ward as a result of the attorney's services; (4) the fees awarded in similar cases; (5) the contingency or certainty of compensation; (6) the results obtained, and (7) the responsibility involved." Matter of Lillian A., 56 A.D.3d 767, 768, 868 N.Y.S.2d 695 (2d Dept 2008).
FINDINGS OF FACT & CONCLUSIONS OF LAW
The Court makes the following findings of fact, based on the testimony provided at the hearing in this matter and all prior proceedings. Mason D. is a 24-year-old individual who suffered a serious motorcycle accident on March 30, 2021 and is now quadriplegic from a broken spine that required spinal fusion. After the accident, Mason's parents, Marybeth D. and Steven D., retained an attorney regarding the accident, which resulted in Mason's receipt of a settlement that was placed in the court-authorized Trust. Steven and Marybeth are co-guardians of the person and property of Mason D. as of August 2021, and Comerica Bank and Trust, N.A., is the trustee of the Trust. Mason resides in a home in Binghamton, which was purchased with funds from the Trust upon authorization of this Court and retrofitted to suit Mason's complex medical needs. Mason has remained in a fragile medical state since the accident and has had frequent hospitalizations due to recurring infections.
Mason is sustained in his home through a network of nurses and aides, along with direct care support provided by Marybeth and Steven. Marybeth has acted as the main coordinator of services for Mason. The staff in Mason's home is initially coordinated through Julie Resnick, who screens candidates for Marybeth's interview and final approval. Ms. Resnick is a nurse consultant and case manager with National Care Advisors, retained by trustee to assist in Mason's case, and she oversees weekly care plan meetings for Mason to which Marybeth and Steven, and now Hunter, are invited. The trustee oversees the approval of care and equipment for Mason and facilitates payment from the Trust for everything needed to support Mason in his home.
The totality of the testimony in this case confirms Marybeth and Steven's long-term fundamental inability to put their personal differences aside and cooperate in their role as co-parents of Mason. The tragic change in Mason's life has of course impacted the lives of everyone in the family and has exacerbated the tension between Mason's parents by forcing them into shared legal responsibility for Mason. At the outset of this case the Court raised questions about Steven and Marybeth's ability to work cooperatively. They assured the Court that they could, and the Court believes that they attempted to work together, but the evidence establishes that they ultimately were unable to work as a unified team for Mason's care coordination.
Each witness called in support of Marybeth's application testified that Marybeth is an appropriate caregiver for Mason. They have interacted with her at different times of day and night and never witnessed her having slurred speech or smelling of alcohol. Marybeth has always been available to speak about or provide care for Mason and Marybeth wants what is best for Mason. Conversely, the witnesses called in support of Steven's case uniformly testified that Marybeth regularly consumes alcohol; she has done so for years, including prior to Mason's accident; and her personality changes for the worse when she drinks. Steven provided the only testimony that Marybeth consumes alcohol in Mason's home or while providing direct care for Mason, which testimony the Court does not find credible on the issue of Marybeth providing appropriate care or putting Mason at risk.
Steven D. believes Mason's care should include more atypical or alternative treatments, such as electrical grounding, supplements for his gut health, provision of lemon juice and other nutrients through his feeding tube, and changes to or reductions in his medication administration. Like Marybeth, Steven wants what is best for Mason. He does not feel that his point of view is considered by Marybeth or in the weekly care plan meetings conducted by Julie Resnick. It appears Marybeth has agreed or considered agreeing to certain treatments proposed by Steven, including the administration of lemon juice to Mason to combat his kidney stones, and the reduction of his seizure medication, though she also seems to later equivocate and not follow through on the alternative treatments to which she initially agrees.
On July 11, 2023, an incident occurred at Mason's home in which a disagreement between Steven and Mason's aide escalated for reasons that are described differently by the witnesses. The incident indisputably raised tensions and caused unnecessary grief for all persons involved, not least of which Steven. Police were called, documented statements given, and Steven was charged with Endangering the Welfare of an Incompetent or Physically Disabled Person in the 1st Degree. An order of protection was entered July 11, 2023, prohibiting any contact by Steven with Mason and Marybeth for one year. The incident was the culmination of a long simmering disagreement between Mason's parents about his care. The issuing court modified the order of protection and extended the effective date to September 1, 2024. This Court modified and superseded that order of protection in December 2023 to allow Steven contact with Mason. Steven has visited with Mason minimally since then.
The Court was not presented with any testimony that Steven or Marybeth made any medical or care decision, or failed to make any such decision, that put Mason in direct jeopardy or risk of harm. Mason's medical state is very fragile and often in flux. He has multiple recurring medical issues with frequent hospitalizations. Mason's course of care seems anything but straightforward and the Court credits both parents with the tremendous burden and complexity involved in making decisions on Mason's behalf.
The evidence clearly establishes that Marybeth and Steven can no longer have the joint authority to make personal care decisions on Mason's behalf. The Court also finds that neither parent alone is appropriate to be sole guardian for Mason with respect to core personal and medical decisions, if for no other reason than because of their dysfunctional relationship with each other. Though they have acted as co-guardians since 2021, it is clear to the Court that this arrangement never really worked in a functional way. Marybeth and Steven both established to the Court's satisfaction that each has the tendency to act toward the other in a way that can be characterized as belittling, argumentative, abrasive, and disrespectful. The Court made firsthand observations of both Marybeth and Steven acting in these ways toward each other at different points during this hearing.
Steven has issues regarding his demeanor and temperament when it comes to his interactions with the staff in Mason's home, as established by credible testimony. He acknowledged anger issues in his own testimony. The care providers also consistently testified, in a way credited by the Court, that Steven has less interaction with Mason and less direct provision of his daily care than Marybeth. This is not a criticism of Steven or his care or devotion to his son.
Marybeth has shown herself as irredeemably biased against Steven and therefore incapable of incorporating Steven's requests or ideas when considering the course of treatment for Mason. Steven has shown himself as unable to accept that expression of his views and his desire to have alternative treatments explored to address Mason's incredibly complex and serious situation does not mean those treatments are appropriate or must be administered, and that the authority of a person guardian does not supersede that of medical professionals in making care recommendations.
It has been established by clear and convincing evidence that Mason's situation, and his best interest, require a more neutral person guardian. There is an established preference for a family member to serve as guardian. MHL § 81.19(a); Matter of Sachs, 2024 NY App. Div. LEXIS 2258, *1 (1st Dept 2024); Matter of United Health Servs. Hosps. Inc. (J.W.), 82 Misc.3d 1218 (A) (Sup Ct, Broome County 2024).
Hunter D., Mason's brother, has acted as temporary guardian with the authority to make medical decisions for Mason, since December 2023. He has expressed a willingness and belief that he can continue in that role, and more if needed. The Court finds that this is the only acceptable arrangement to meet Mason's personal care needs moving forward. At the same time, Steven and Marybeth, as Mason's parents, are entitled to have their voices heard and their input considered by Mason's doctors and care providers.
Based on the testimony at this hearing, and all prior proceedings had in this matter, the Court hereby discharges Marybeth D. and Steven D. as co-guardians of the person of Mason D. and appoints Hunter D. as the successor guardian of the person of Mason D.. The Court finds just cause to remove Marybeth D. and Steven D. as co-guardians of the person of Mason D., and that the removal of these co-guardians is in Mason's best interest. Mason requires one point-person to interface with his medical providers, attend his care meetings, and make ultimate decisions about his course of treatment, care plans, and whether he needs to be admitted to the hospital. It is chaotic, and not in Mason's best interest, to have his parents as co-guardians in a continual state of disagreement about the best courses of treatment to pursue or not pursue on his behalf. MHL § 81.35; Matter of Dunsmoor, 24 A.D.3d 1218, 1218 (4th Dept 2005), lv denied 7 N.Y.3d 704 (2006); Matter of Von Bulow, 63 N.Y.2d 221, 224 (1984); Matter of Gustafson, 308 A.D.2d 305, 307 (1st Dept 2003); Matter of Garett YY., 258 A.D.2d 702, 703 (3rd Dept 1999).
With Hunter acting as the sole person guardian for Mason, the Court's expectation is that both parents will have a voice in considerations for Mason's care and treatment, through communication with Hunter, through access to Mason's medical providers and records, and through their continued participation in Mason's care plan meetings. Hunter, in direct consultation with Mason's doctors and formal care providers, will make the ultimate decisions for Mason's personal care needs as his duly appointed personal needs guardian. The Court will also confirm Hunter's authority to delegate the decisions on staff hiring to Marybeth, who has served in that role to date, if he decides to do so, with the ability to revoke that delegation at any time and from time to time.
Subject to limitation if requested by providers if such access becomes burdensome.
The Court will award both Steven D. and Marybeth D. their reasonable attorney's fees and disbursements in connection with their respective applications, to be paid from Mason's resources. Counsel for each, as well as court-appointed counsel for Mason D., are invited to submit an affirmation of services with time records to the Court for consideration of the amount to be awarded to each attorney for legal fees and disbursements from the Trust, in connection with the present proceeding.
The Court declines to grant Marybeth D.'s request to allow her a salary as Mason's caregiver, as not being adequately supported by the evidence presented in the hearing. This determination is without prejudice to either or both Marybeth and Steven making further application to the Court for such or a similar arrangement. The parties are reminded of the Court's previous award to Marybeth in the amount of $175,000 and to Steven in the amount of $125,000, by order dated May 5, 2022, less than two years before the filing of the current applications.
Both applications request the removal of the other parent as co-guardian of the property as well as person. Neither application contains allegations on that issue and no significant relevant evidence was presented by either party at the hearing. Those requests are denied without prejudice, as not being supported by the evidence presented in the hearing. The appointment of Marybeth D. and Steven D. as co-guardians of the property of Mason D. shall remain in place until further order of this Court.
Marybeth's application specifically requests this; Steven's requests that Marybeth be removed "as co-guardian," without further specification.
It has been communicated and documented to the Court that the criminal charges underlying the original town justice court order of protection issued against Steven D. were dismissed on May 3, 2024. Counsel for Steven filed a motion on May 28, 2024 requesting the superseding order of protection issued by this Court December 19, 2024 be rescinded. That motion was not set down, based on the Court's expectation that decision on the pending applications would be released shortly and address the order of protection. That expectation regrettably proved inaccurate due to scheduling complexities. The Court also believed, based on the testimony at the trial, that Marybeth had no problem with Steven visiting Mason. She testified explicitly to that and to her position that she would not restrict Steven's visits. This Court's December 19, 2023, order modifying the order of protection put a visitation structure in place that was agreed to by Steven. He had not taken full advantage of that structure at the time of the hearing. Now the charges underlying the order of protection are dismissed, and this decision appoints Hunter as guardian of the person, with authority to determine, among other things, Mason's social environment.
Testimony of Marybeth D., p. 81, lines 8-9; p. 24, lines 20-23; p. 85, lines 3-5.
Marybeth's counsel has requested the motion to vacate the order of protection be set down. The Court sees no basis to do that. The findings of this decision and the dismissal of the charges relating to Steven's conduct with respect to Mason clearly support vacating the December 19, 2023 order of protection. Close review of that order of protection reveals that there is no explicit limitation on contact between Steven and Marybeth; there is implicit limitation in the language setting Steven's visitation at Mason's house. Issues relating to contact between Marybeth and Steven are outside of the scope of this case. The order of protection issued by this Court on December 19, 2023 is terminated and vacated.
This decision constitutes the order of the Court.
The Court will issue separate revised order and findings to conform to the determinations of this decision and order.
List of exhibits admitted into evidence at the hearing
Petitioner's exhibit 1 - Julie Resnik's curriculum vitae
Petitioner's exhibit 2 - Photograph of Mason D.'s home
Petitioner's exhibit 3 - Photograph of Mason D.'s home
Petitioner's exhibit 4 - Photograph of Mason D.'s home
Petitioner's exhibit 5 - Photograph of Mason D.'s home
Petitioner's exhibit 6 - Photograph of Mason D.'s home
Petitioner's exhibit 7 - Photograph of Mason D.'s home
Petitioner's exhibit 8 - Photographs (2) of supplements
Petitioner's exhibit 9 - Photograph of wires for grounding
Petitioner's exhibit 10 - Photograph of wires for grounding
Petitioner's exhibit 11 - Photograph of wires for grounding
Petitioner's exhibit 12 - Screenshot of text message from Steven D. to Marybeth D.
Petitioner's exhibit 13 - Mason D. Goals and Tasks Meeting, February 20, 2023
Petitioner's exhibit 14 - Letter from Steven D. to the Court, July 26, 2023
Petitioner's exhibit 15 - Letter to Conklin Town Court, July 20, 2023
Petitioner's exhibit 16 - Affidavit of Steven D., dated December 4, 2023
Petitioner's exhibit 17 - Christine H. Fenlon's curriculum vitae