Opinion
2018-XXXX
10-15-2020
PROCEEDING FOR the APPOINTMENT OF A GUARDIAN FOR SIMONE A., Pursuant to SCPA Article 17-A.
Counsel for Petitioner Maura R., Andrew M. Cohen, 1100 Franklin Ave, Garden City, NY 11530, 516-877-0595 Counsel for Respondent Simone A., Alyssa Galea, Disability Rights New York, 725 Broadway Suite 450, Albany, NY 12207, 518-512-3448
Counsel for Petitioner Maura R., Andrew M. Cohen, 1100 Franklin Ave, Garden City, NY 11530, 516-877-0595
Counsel for Respondent Simone A., Alyssa Galea, Disability Rights New York, 725 Broadway Suite 450, Albany, NY 12207, 518-512-3448
Margarita Lopez Torres, S.
Before the court is a petition brought by Maura R. (petitioner) seeking plenary guardianship of Simone A. (respondent or Simone ) pursuant to Article 17-A of the Surrogate's Court Procedure Act (Article 17-A), and for the appointment of Thom P. as stand-by guardian. Counsel has been assigned for the respondent by Disability Rights New York. The petitioner is Simone's mother.
In the interest of confidentially, this decision will refer to the respondent by her middle name.
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Article 17-A governs guardianship of adults who are diagnosed with an intellectual or developmental disability. SCPA 1750, SCPA 1750-a. An intellectually disabled adult is defined by SCPA 1750 as one who is permanently or indefinitely incapable of managing oneself and/or one's own affairs because of an intellectual disability. The condition must be certified by a licensed physician and a licensed psychologist or by two licensed physicians, one of whom has familiarity with or knowledge of the care and treatment of persons with intellectual disabilities. It must appear to the satisfaction of the court that the best interests of such person will be promoted by the appointment of a guardian. SCPA 1754 (5). A developmentally disabled adult is defined by SCPA 1750-a as an adult who has an impaired ability to understand and appreciate the nature and consequences of decisions which result in her incapacity to manage herself and/or her own affairs. The developmental disability must be permanent or indefinite, and must be attributable to cerebral palsy, epilepsy, neurological impairment, autism, traumatic brain injury, or any condition found to be closely related to intellectual disability. The condition must have originated before the age of 22, except for traumatic brain injury which has no age limit. As with SCPA 1750, the condition must be certified by a licensed physician and a licensed psychologist or by two licensed physicians, one of whom has familiarity with or knowledge of the care and treatment of persons with developmental disabilities, and the court must determine that it is in such person's best interest that a guardian is appointed. SCPA 1754 (5). The legal analysis in determining the need for guardianship is functionally the same whether an individual's disability is categorized under section 1750 or 1750-a of SCPA and relies upon the same body of law. In summary, the petitioner must demonstrate, to the satisfaction of the court, that wholly removing Simone's legal right to make decisions about her affairs is necessary because she is incapable of managing herself and her affairs by reason of her disability. The petitioner must further demonstrate that the appointment of a guardian, who will substitute her decision making for Simone in every aspect of her affairs, is in Simone's best interests.
The appointment of a plenary guardian under Article 17-A results in the complete removal of an adult's legal right to make decisions over her or his own affairs. "Many decisions that define the essence of an individual, such as where and with whom she lives, whether she can travel, work, marry, engage in certain social activities, whether and how she manages her income and resources, and what medical treatment she undergoes or refuses, are removed from that individual, who will have lost the legal right and ability to govern her own affairs and participate in society without the approval of another," Matter of Michelle M. , 52 Misc 3d 1211(A) (Sur Ct Kings County 2016). "The imposition of an Article 17-A guardianship is plenary, and, under the provisions of the statute, results in the total deprivation of the individual's liberties," Matter of Michael J.N. , 58 Misc 3d 1204 (A) (Sur Ct, Erie County 2017). See Matter of Capurso , 63 Misc 3d 725 (Sur Ct, Westchester County 2019) ; Matter of Zachary W. , NYLJ, April 7, 2017 at 45, col 5 (Sur Ct, Suffolk County); Matter of Sean O., NYLJ, Oct. 7, 2016, at 26, col 6 (Sur Ct, Suffolk County); Matter of Chaim A.K., 26 Misc 3d 837 (Sur Ct, New York County 2009).
But see Matter of Robert C.B. , 2020 NY Slip Op 20116 (Sur Ct, Dutchess County) (petition to terminate or modify existing guardianship pursuant to SCPA 1755 and 1759 was granted to the extent of terminating the guardianship of the person with developmental disabilities but denied as to guardianship of his property, with leave to renew upon a showing that the individual has "a network of family friends and/or community sources who are actively engaged and provide him with supported decision making"). For this reason, a plenary Article 17-A guardianship is the most restrictive type of guardianship available under New York law, and should only be granted in the absence of less restrictive alternatives available to meet the needs of the respondent. Matter of K.L. , NYLJ 1202792444598 (Sur Ct, Richmond County 2017); Matter of Eli T., 62 Misc 3d 638 (Sur Ct, Kings County 2018) ; Matter of D.D., 50 Misc 3d 666 (Sur Ct, Kings County 2015).
Less restrictive alternatives to guardianship that meet the state's legitimate goal of protecting a person with developmental disabilities from harm connected to those disabilities include the availability of resources to assist the individual through an active support network of family and supportive services. See Matter of Robert C.B., at 732; Matter of Dameris , 38 Misc 3d 570, 579 (Sur Ct, New York County 2012). Indeed, "proof that a person with an intellectual disability needs a guardian must exclude the possibility of that person's ability to live safely in the community supported by family, friends and mental health professionals." Id. at 578. "SCPA 17-A must be read to require that supported decision making must be explored and exhausted before guardianship can be imposed or, to put it another way, where a person with an intellectual disability has the 'other resource' of decision making support, that resource/network constitutes the least restrictive alternative, precluding the imposition of a legal guardian." Id. at 577.
Where there are less restrictive alternatives that are sufficient and reliable to meet the needs of the individual, guardianship is neither warranted nor in the individual's best interest. Matter of Capurso , 63 Misc 2d 725, 730 (Sur Ct, Westchester County, 2019); Matter of Chenel D., 2019 NYLJ LEXIS 125 (Sur Ct, Kings County).
In support of her petition for guardianship, the petitioner submits the medical certifications from a physician and a licensed psychologist, a neuropsychological evaluation from Pediatric Assessment Learning & Support (PALS) in 2016, an updated evaluation from PALS in 2018, and Simone's 2018 Individualized Education Program (IEP). According to the requisite certifications, Simone has been diagnosed with autism spectrum disorder, anxiety, obsessive compulsive disorder (OCD), adaptive "functioning deficits," and a non-verbal learning disorder (NLVD). The 2018 IEP reveals that Simone reads at the 12th grade level and performs math at the 10th grade level. She scored 98 (Full-Scale IQ) on the Wechsler Adult Intelligence Scale-Fourth Edition (WAIS-IV), which places her in the average range of intellectual ability in her age group for the general population. The WAIS-IV measures verbal comprehension, perceptual reasoning, working memory, and processing speed. Simone scored 127 for verbal comprehension, placing her in the 96th percentile and superior range of intellectual functioning, and scored 100 for working memory, placing her in the 50th percentile and average range of intelligence. Her lower scores were in the categories of perceptual reasoning and processing speed, scoring 84 and 76, respectively, placing her in the low average and borderline range of neurotypical intelligence. Simone's Adaptive Behavior Assessment System, Third Edition (ABAS-3), score of 59, based on answers provided by the petitioner, placed her in the extremely low range. The neuropsychological evaluation stated that Simone's summary scores "underestimate her overall functioning and potential. She is clearly a very bright young woman with excellent potential."
According to her birth history, Simone was born at 25 week' gestation, weighing 1.5 pounds, the single surviving baby from the petitioner's twin pregnancy, and remained in the neonatal intensive care unit for approximately four months. Early gross and fine motor skills were delayed, in addition to mild articulation difficulties, and interventions in the form of physical therapy, speech and language therapy, and occupational therapy were provided to Simone since age one and throughout her childhood to address and improve her motor, language and social communication skills. Simone attended various private schools for children with learning challenges in a special education environment, supplemented with weekly in-school counseling, outside therapy and physical therapy sessions. The neuropsychological evaluation assessed that cognitively, Simone possesses "exceptional verbal skills;" "she is well able to demonstrate her knowledge in the form of verbal expression, especially when she is describing specific facts and concepts from her knowledge base." It further reports that "[Simone] tends to process information at a slower rate. It is important to note that one's mental efficiency skills can be negatively impacted by weaknesses in executive functioning (i.e. planning and organization)." The evaluation observed that "[s]ocially, [Simone] is interested in developing friendships, but seems unsure how to navigate these relationships with same-aged peers While she appears to desire independence, she is quite reliant on those with whom she is close." The 2016 evaluation provided that "[t]he findings ... highlight the importance of interventions for [Simone] in the home and community setting aimed at gradually decreasing the amount of external support she requires, encouraging more autonomous functioning, and enhancing her self-efficacy." Since then, Simone has graduated from a Regents-accredited high school having passed multiple statewide examinations which measure proficiency in core subjects including Algebra, Living Environment and Global History. She currently attends college in Manhattan.
A hearing was held at which both the petitioner and Simone testified. Based upon the petitioner's documentary submissions and the testimony adduced at the hearing, including the Court's interaction with Simone and observance of her demeanor, the Court finds and decides as follows.
Simone presents as a highly self-aware, creative, and engaging young woman with an easy sense of humor who quickly established a rapport with the Court. At the time of the hearing, Simone was 19 years old and attending her first semester at Pace University through a program that provides academic and organizational scaffolding for students with high functioning autism. She was enrolled in four courses, including computing, French, a course on the history and architecture of Paris, and a freshman orientation class. She testified that she navigates the school day independently, transitioning from classes, and purchasing lunch in the cafeteria. She utilizes the computer to access class material and submit assignments, and meets with an academic coach from the university regularly to review her assignments. On weekdays, Simone lives with her grandmother in Manhattan and travels independently to the college campus using public transportation. On the weekend, she travels to Brooklyn by subway to stay with her mother and stepfather, who is the proposed stand-by guardian. She testified that she is interested in studying languages, concentrating on French, but she has also had lessons in Spanish, Japanese, Mandarin Chinese, among other languages. Simone testified that in her free time she enjoys writing stories and then translating them into other languages, as well as translating lines from her favorite movies. Her interests also include movie editing, utilizing video editing programs to select footage from movies and plays to create her own versions. She explained that she got into trouble at one point for owning and filming pirated movies because someone took her work and started selling it, but the issue has since resolved. She is an avid theatre goer who easily commits play lines to memory. She testified that she will go with friends, her mother, or by herself. She testified that she likes acting and performed in productions in middle school but did not like the gendered roles that she felt were being imposed. For one audition, she testified, "I wanted to be the mayor but again they insisted I had to be the wife ... I prefer more masculine — I prefer to just look more masculine. I've been pretty undecided on gender" When asked what she would like to do when she graduates from college, she testified that she is undecided but would like to continue to work with languages, perhaps translating. She has volunteered with the Autism Theatre Initiative, distributing fidget devices to audience members before a performance, and while in middle school interned at the American Museum of Natural History, organizing papers in the office and performing data entry.
While confident about her skills and vocal about her interests, Simone is also keenly aware of her challenges. Reflecting on her experience, Simone testified that she gets anxiety attacks, experiences hyperactivity, and can have trouble focusing. As an example, she testified that during her internship, there was a person who worked at the museum who helped her to regain focus when she was going off task. Even when engaging in activities she loves, such as attending Broadway shows, she recognizes, "I've been lucky enough to get to see "Hamilton" and "Dear Evan Hansen." But it was hard for me to follow those. I mean, for "Hamilton" I was able to enjoy the music and dancing. But for both "Hamilton" and Dear Evan Hansen" it was really loud and the lights were really bright. So it wasn't really that I could fully enjoy it. And it was more like — it's more like a contest to see if you could sit through it without screaming [also], do I have the energy to sit still for two hours?" Simone demonstrates that she is able to make decisions about the types of shows she attends to adjust for her limitations. She explained how attending performances through the Autism Theatre Initiative have been helpful: "basically it's the same show as they normally do, but they just tone down the lighting and the noise and they have volunteers who can help if someone is having a hard time." She further adds, "And I've gone to many shows that don't have these modifications but I found that I have a tendency to get too excited." She further demonstrates that she is able to discern which events she can attend by herself and which she should attend with her mother or with friends.
Simone demonstrates an ability to problem solve and to seek appropriate assistance when needed. She testified that she loves taking the subway, trained by her mother and stepdad, who is the nominated stand-by guardian, and is able to map out her route; however, she has gotten lost walking in unfamiliar neighborhoods. When asked how she handled the situation, she testified that she asked a police officer for directions. She further testified that if she encountered a stranger who looked suspicious, "I'd try to ignore or get out of it. I'd look to anyone who seem like they could be trusted. I think I've been told to look for, like, police or firefighters or someone with a baby [and] I'd tell them that I don't feel safe."
Simone actively listens and engages thoughtfully in conversation, even interrupting the petitioner's testimony at one point during the hearing when the petitioner was addressing when she discovered that Simone had autism. Simone opined, "I think in general autism kind of goes under the radar in girls because some of the symptoms can appear differently than boys. And also that girls can kind of be expected to be shy." The petitioner testified that Simone had other deficits due to being born prematurely, to which Simone added, "what's really interesting is that when I was really little, I was very under-sensitive to stimuli. Like I would need something to be very bright and very loud to get my attention because otherwise I would just be in my own world. But then once I was a teenager, it's like I suddenly became hypersensitive." Simone appears generally to be in good physical health. She testified that in the past she has gone to the emergency room accompanied by her grandmother, and she takes daily medication to help with her anxiety and constipation.
The petitioner contends that she is seeking guardianship because Simone is unable to manage finances and needs help with her medical decisions. She further testified that she is fearful that someone may take advantage of Simone or that Simone may make poor decisions if the petitioner or her family were not around. Regarding finances, both parties testified that Simone has had difficulty keeping track of the money spent from her bank account and had to be reminded to deposit checks she had received as gifts. Consequently, Simone uses a special debit card, funded and managed by the petitioner, to make purchases. Regarding medical care, the petitioner testified that she needs to remind Simone to take her medicine, and she is the one who makes the doctors' appointments for Simone. When asked if Simone could set reminders on her cell phone to foster greater independence with taking her medication, Simone testified that that was something she could try. With respect to Simone's finances, it appears that Simone's sole source of income is SSI, for which the petitioner has already been designated, with Simone's consent, the representative payee. She was unable to provide specific instances where Simone made medical decisions contrary to her best interest, and is already managing Simone's finances without letters of guardianship. The petitioner appears to be motivated by a sincere but speculative fear of unspecified dangers, rather than upon evidence of actual harm arising from Simone's choices, which appears to be made in consultation with those whom she trusts and who care most about her.
It is beyond evident that Simone's capabilities are the direct result of the petitioner's devotion, dedication and unwavering commitment to equipping her daughter to thrive to the greatest extent possible, and to train and encourage her to navigate and function with greater independence and autonomy. Without a doubt, the petitioner deeply loves and cares for Simone, only wanting what she believes is best for her. If the appointment of a guardian was warranted, no one would be more appropriate to serve than the petitioner. While a parent's desire to protect her loved one and for peace of mind may be assuaged by the appointment of a legal guardian, it is not, however, in the best interest of an individual who has the capacity to make decisions independently have that ability wholly removed through Article 17-A guardianship. The petitioner testified, "I've worked hard on helping her have more independence and I think she has been doing quite well. But that doesn't mean that I feel confident that she is able to take care of everything on her own." The relevant inquiry, however, is not whether an individual can manage herself and her affairs devoid of any familial, social or professional support. Indeed few of us, neurotypical or diverse, successfully navigate our own lives without the input, advice, and counsel of those whom we trust and upon whom we rely. From choosing a college to finding a job, from being in a relationship to getting married, from deciding where to vacation to whether to undergo a medical procedure, we naturally consult with others to varying degrees as part of the decision-making process. That does not render us in need of guardianship, no matter how much we may prefer that someone else make the difficult decisions for us in life. While an adult with developmental disabilities may require greater support, here, the appropriate legal standard is not whether the petitioner can make better decisions than Simone, it is whether or not Simone is capable of making decisions with the support she has. Matter of Michelle, 52 Misc 3d at *7.
Upon the record presented, the credible evidence demonstrates that Simone is an adult living with autism, who, despite cognitive and adaptive limitations, has the capacity to make decisions about herself and affecting the management of her own affairs with the robust support of the petitioner, her stepfather, her grandmother, her school's supportive services, and the professionals who actively provide Simone with support. To allow Simone to retain her intrinsic right to make personal decisions about her own affairs, while providing her with any necessary assistance to make or communicate those decisions in the supported, instead of substituted, decision making framework which she already has in place, is the less restrictive alternative to guardianship and ultimately in her best interest. To the extent that Simone may desire additional support, alternatives to guardianship, such as a durable power of attorney, advance directives, health care proxies, and direct bank deposit systems, can provide targeted assistance without wholly supplanting Simone's fundamental right to make decisions that affect her affairs.
For all the foregoing reasons, the petition is denied and dismissed. This constitutes the decision and order of this Court.