In re Proceeding for Appointment of a Guardian for D.S.

Rita M. Mella, J.

The petitioners are represented by Littman Krooks LLP Respondent Brenda is represented by The Law Office of Barry E. Janay PC and (pro hac vice) Salines-Mondello Law Firm, PC And respondent JDS, is represented by his Guardian ad litem, The Disability and Civil Rights Clinic at Brooklyn Law School Rita M. Mella, J.

After a hearing and written summations in this contested proceeding for the guardianship of the person of J.D.S. pursuant to Article 17-A of the New York Surrogate's Court Procedure Act ("SCPA"), the court must decide the threshold issue of whether it should exercise jurisdiction over this guardianship proceeding or if North Carolina, where a proceeding for guardianship was also commenced, is the more appropriate forum (New York Mental Hygiene Law ("MHL") § 83.23[c]).

It was previously determined that New York was respondent's "home state" (see MHL § 83.03[e]) and that North Carolina was a significant-connection state ( see MHL § 83.17). The North Carolina Court has stayed its guardianship proceeding pending this court's determination of whether it will exercise jurisdiction or decline to do so in favor of North Carolina.

To make this jurisdictional determination, section 83.23(c) of the MHL provides that the court:

"shall consider all relevant factors, including: 1. any expressed preference of the respondent; 2. whether abuse, neglect or exploitation of the respondent has occurred or is likely to occur, and which state could best protect the respondent from the abuse, neglect or exploitation; 3. the length of time the respondent was physically present in or was a legal resident of this or another state; 4. the distance of the respondent from the court in each state; 5. the financial circumstances of the respondent's estate; 6. the nature and location of the evidence; 7. the ability of the court in each state to decide the issue expeditiously and the procedures necessary to present evidence; 8. the familiarity of the court of each state with the facts and issues in the proceeding; and 9. if an appointment were made, the court's ability to monitor the conduct of the guardian or conservator."

At the hearing, the court sought to hear from respondent, J.D.S., as to two of those factors in particular: (1) respondent's preference as to forum; and (2) whether abuse, neglect or exploitation of respondent has occurred or is likely to occur, and which state could best protect respondent (MHL § 83.23[c][1] and [2]).

Article 83 of the Mental Hygiene Law is New York's enactment of the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act (UAGPPJA), and became effective in April 2014. The purpose of a uniform process to resolve jurisdiction issues in guardianship proceedings when two states have connections with the individual over whom guardianship is sought is self-explanatory: providing a more streamlined and predictable process, saving state funds and conserving judicial resources, and reducing the possibility for abuse and expense of the alleged incapacitated person and that person's family and caretakers (NY Bill Jacket, 2013 AB 857, ch 427). The UAGPPJA has been enacted in the majority of states in the country.

The factors contained in section 83.23(c) were adapted from section 206 of the UAGPPJA, titled "Appropriate Forum," and, in a Comment, the Commissioners note that this section is similar to section 207 of the Uniform Child Custody Jurisdiction and Enforcement Act of 1997 (UCCJEA), but with the factors adapted to address issues relevant to adult guardianships. New York State has adopted the UCCJEA, and section 207, titled "Inconvenient Forum," is codified in section 76—f of the New York Domestic Relations Law ("DRL"). Judicial opinions considering the similar factors found in this provision inform this court's analysis of the factors in section 83.23(c).

This court's research has found no case law analyzing and weighing the statutory factors relevant to an appropriate forum determination. It is clear, however, that the court must consider each relevant factor in making its determination (MHL § 83.23[c] [the court "shall consider all relevant factors"]; see Steen-Jorgensen v Huff, 352 Ga App 727, 731 [GA Ct App 2019] [the Georgia Uniform Adult Guardianship and Conservatorship Proceedings Jurisdiction Act's adoption of the UAGPPJA's appropriate forum provision "does not expressly require specific findings on each factor, [but] making such findings is a better practice"]).

A consideration for courts determining the issue of appropriate jurisdiction "is whether the forum in which the litigation is to proceed has optimum access to relevant evidence" (P.M. v M.G., 65 Misc 3d 1218[A] [Fam Ct, Westchester County 2019], quoting Paderno v Shvetsova, 96 AD3d 762, 763 [2d Dept 2012] [referencing the Prefatory Note of Commissioners on Uniform State Laws, 9 ULA [Master Ed], § 3, at 124]; see footnote 2, supra; Veen v Golovandoff, 169 AD3d 804 [2d Dept 2019]; see Hassan v Silva, 100 AD3d 753, 754 [2d Dept 2012]). Fundamentally, doctrines and principles used by the court to determine proper jurisdiction are equitable in nature, and the court's focus must be on justice, fairness, and convenience (P.M. v M.G., 65 Misc 3d 1218[A], supra).

A determination of appropriate forum has been said to "depend[ ] on the specific issue(s) to be decided in the pending litigation" (Matter of Helmeyer v Setzer, 173 AD3d 740, 743 [2d Dept 2019], quoting Matter of Snow v Elmer, 143 AD3d 1217, 1218 [3d Dept 2016]) and the factors should be viewed "in light of" those issues (Matter of Snow, 143 AD3d at 1218 [reversing Family Court's determination that New York was an inconvenient forum for father's violation proceeding seeking to enforce visitation order]). In the underlying guardianship application in this matter, the substantive issue to be decided is whether the best interests of J.D.S. would be promoted by the appointment of a guardian of his person and, if so, who should be appointed as guardian(s). Incident to such a determination is the need to consider that the court making such an appointment should be well positioned to exercise a degree of supervision over the resultant guardianship.

Relevant Background

The pertinent factors must be examined here in the context of the following background. The opposing parties in this proceeding are the divorced parents of the 35-year-old respondent, J.D.S. Petitioners, Stephen (J.D.S.'s father) and Dana (Stephen's wife and J.D.S.'s stepmother), filed the instant petition seeking their appointment as guardians of the person of J.D.S. in this court in early September 2018, along with a petition for a determination that New York is J.D.S.'s home state. The petition also seeks an order that would in effect stay proceedings for the guardianship of J.D.S. in North Carolina and assert this court's jurisdiction over proceedings for guardianship of J.D.S. The respondents in this court are J.D.S. and Brenda, J.D.S.'s mother. There has been significant litigation between July 2018 and now, in both the North Carolina court (the Superior Court for New Hanover County in North Carolina) and this court, with the result being, as aforementioned, that New York has been determined to be J.D.S.'s home state and that North Carolina is a significant-connection state.

It is undisputed that, at the time Stephen and Dana filed their petitions in this court, J.D.S. was living with Brenda in North Carolina and that he had been there since mid-July 2018. For the prior two years, from June 2016 until mid-July 2018, however, J.D.S. had lived with Stephen and Dana in New York City. The circumstances resulting in J.D.S.'s return to North Carolina are a point of conflict between J.D.S.'s parents. It is undisputed, however, that prior to J.D.S.'s move to New York City in June 2016, he had been living with Brenda for the vast majority of his life, and for much of that time in North Carolina.

The record reflects that, during part of this time, Dana resided in Iowa while pursuing a doctorate degree there.

The record reflects that petitioners prepared some of the guardianship paperwork ultimately filed in this case prior to J.D.S.'s departure from New York City, but that Stephen first filed a petition for guardianship in North Carolina in July 2018 after J.D.S. left New York City with Brenda. The record further reflects that thereafter Brenda also filed a petition for guardianship in North Carolina and that her proceeding was later consolidated with Stephen's. The proceedings in this court were originally scheduled to be heard in November 2018, and a few days before, this court received correspondence from a Clerk in North Carolina, indicating that, following a hearing, the North Carolina Court had entered an order on jurisdiction finding North Carolina to be a "Significant-Connection State" pursuant to the guidelines of UAGPPJA, but noting that the same guidelines provided for New York as the home state.

At the initial appearance before this court, after a lengthy conference, the parties agreed to explore alternatives to litigation, but they were, unfortunately, unsuccessful in resolving their dispute. Following the filing of the reports of the guardian ad litem appointed by this court to represent the interests of J.D.S., and various motion practice, the court conducted this hearing to receive the testimony of J.D.S., who appeared via Skype video conference from North Carolina. During part of J.D.S.'s testimony, Brenda and her attorney were also present in the room. After a concern was raised, Brenda left the room, and only her counsel remained, along with J.D.S. MHL 83.23(c) Factors

Upon the record before the court, including the testimony of J.D.S., the court makes the following findings regarding the factors listed in MHL § 83.23(c). 1. Any expressed preference of the respondent

No guidance is provided by the Comments of the UAGPPJA Commissioners concerning whether this factor refers to the preference of the respondent for one state over the other as a place of residence or as the place where the guardianship proceedings should be heard. The evidence presented to this court revealed that, either way, respondent's choice was clear.

After hearing from J.D.S., including his responses to questions by counsel for petitioners, counsel for Brenda, and his guardian ad litem, the court credits his repeated, unequivocal expressed preference to stay in North Carolina and not to return to New York. The court rejects co-petitioners' argument that this preference is the product of undue influence by Brenda upon J.D.S. and is not reliable. In addition, inaccuracies or inconsistencies in his recollections or other information he provided do not warrant a conclusion that he lacks capacity to form and state his preference. The guardian ad litem, who traveled to North Carolina and conducted an in-person private interview with J.D.S., similarly concluded that J.D.S. is capable of and did clearly express his preference to stay in North Carolina and not return to New York under any circumstances, including for the purposes of participating in guardianship proceedings. 2. Whether abuse, neglect or exploitation of the respondent has occurred or is likely to occur, and which state could best protect the respondent from the abuse, neglect or exploitation

Nothing in this record suggests that abuse or neglect (as defined in New York Social Services Law ("SSL") section 473[6]) of J.D.S. has occurred or is likely to occur in either state. Nor is there any suggestion that either state is less capable of protecting J.D.S. from harm.

Despite the vigorous fight in which the parties have engaged in this guardianship matter, the court agrees with the guardian ad litem's conclusion that J.D.S.'s parents love and care a great deal about him and each has his best interests in mind.

Petitioners express concerns that J.D.S. is susceptible to financial exploitation (defined in SSL § 473[6][g] as "improper use of an adult's funds, property or resources by another individual") and question whether Brenda has demonstrated the ability to protect J.D.S. from such exploitation. Putting aside that there is no support in the record for this assertion, if true, it would at best be relevant to the determination of whether J.D.S. is in need of a guardian and, if so, who the appropriate guardian for J.D.S. would be. It would not, however, be a basis for favoring one state over the other as the proper forum. The investigation of the guardian ad litem did not uncover any evidence or facts suggesting potential or future abuse, neglect, or exploitation, and the guardian ad litem believes that this factor does not weigh heavily in the determination of the appropriate forum in this case. The court agrees.

3. The length of time the respondent was physically present in or was a legal resident of this or another state

Although the parties dispute the events leading up to and including J.D.S.'s return to North Carolina with Brenda on or about July 18, 2018, it is clear that, up until that time, J.D.S. had spent approximately two years in New York City, and the prior 12 years in North Carolina, the majority of that time being with Brenda.

4. The distance of the respondent from the court in each state

According to the guardian ad litem, J.D.S.'s present place of residence in North Carolina is a 6.5 mile drive to the North Carolina courthouse. The distance to this courthouse is 591 miles.

5. The financial circumstances of the respondent's estate

J.D.S. receives Supplemental Security Income ("SSI") benefits and Medicaid. In other words, his assets are modest. The guardian ad litem suggests that the guardianship proceeding should continue in the place that would result in the least cost to J.D.S. Having been presented with no evidence to suggest otherwise, the court concludes that interaction with and travel to the nearer courthouse to J.D.S. — the North Carolina Court — imposes a lesser burden on him and his financial assets. To the extent petitioners' concerns about J.D.S.'s ability to manage his finances may be substantiated, those concerns have little relevance to the appropriate forum determination as opposed to the determination of whether appointment of a guardian is in J.D.S.'s best interests.

6. The nature and location of the evidence

From the representations of petitioners and Brenda, it appears that most of the witnesses who may testify at any guardianship hearing are in North Carolina. This includes Brenda, her partner, several family members of J.D.S., as well as medical and other professionals familiar with the care and needs of J.D.S. These witnesses may be able to present evidence pertaining to whether the appointment of a guardian of J.D.S.'s person is appropriate.

Petitioners' application for guardianship at present includes a report from a licensed psychologist, only one of the two reports from a physician required by SCPA 1750-a. Petitioners maintain that the evidence in the form of medical evaluations, reports from the physicians who evaluated J.D.S., and the testimony of the petitioners themselves all come from New York witnesses. Nonetheless, the number of New York witnesses appears to be smaller than the number that can be forecast for a hearing in North Carolina. For instance, the record suggests that J.D.S. had not yet begun to receive services in New York that may have included classes and day programs, which would have generated other possible witnesses.

Petitioners argue that the benefits that would be available to J.D.S. in New York, including access to programs and services, are considered the most generous in the region, but that getting those benefits started takes up to 18-24 months, which explains why J.D.S. had not received any of those benefits while residing in New York. --------

The court notes that the September 6, 2018 order of the North Carolina court, concluding that North Carolina was a significant-connection state, recites the documents reviewed by the guardian ad litem appointed by that court and indicates that an evaluation of J.D.S. performed in New York in September 2016 is among those documents in addition to the above-mentioned psychologist's report. Such reference reflects that the North Carolina court has not had difficulty receiving documentary evidence from New York.

On balance, the court concludes that most of the evidence concerning the underlying guardianship application is already in or comes from sources and witnesses located in North Carolina, including reports of evaluations and medical and social services documents (see Matter of Balde v Barry, 108 AD3d 622 [2d Dept 2013] [children enrolled in school in other state, connected with mother's extended family there; evidence regarding their care, well-being, and personal relationships more readily available in that state as relevant to father's visitation petition]; see also Blerim M. v Racquel M., 41 AD3d 306 [1st Dept 2007] [significant evidence present in this state, including the children—although they had moved to North Carolina, were with petitioner in New York for visitation—and they had not been enrolled in school or received medical care in North Carolina so no records from those entities or agencies in that state]).

Finally, given the expansive powers granted to the courts by the UAGPPJA (see MHL §§ 83.09 [cooperation between courts] and 83.11 [taking testimony in another state] and North Carolina General Statutes §§ 35b—6 and 35b—7 [same, respectively]), including the authority to request medical records and receive testimony from out-of-state medical professionals, the fact that some evidence is located in New York should not weigh heavily in favor of making this state the appropriate forum.

7. The ability of the court in each state to decide the issue expeditiously and the procedures necessary to present evidence

The court is mindful of the considerable amount of time that has elapsed between the filing of this petition and the instant decision. A number of intervening events transpired here, including attempts to resolve the parties' dispute in mediation, motion practice, and the COVID-19 pandemic. Nonetheless, the court is confident that either jurisdiction could proceed promptly to a hearing and determination of the underlying relief requested. If anything, North Carolina may be in a position to proceed more expeditiously in that both Stephen and Brenda have petitioned in that court for their appointment as guardians so both the question of whether J.D.S. is in need of a guardian and, if so, who the appointee should be are queued for proceeding before that court.

8. The familiarity of the court of each state with the facts and issues in the proceeding

Given the more recent hearing held by this court and the more involved litigation in New York, it is likely that this court has more familiarity with the parties and their circumstances. Nonetheless, the record from the North Carolina court suggests that the parties are no strangers to that court. This factor may tip slightly in favor of New York, but it is not — by itself — determinative in light of the weight of other factors. 9. If an appointment were made, the court's ability to monitor the conduct of the guardian or conservator

The guardian ad litem, upon review and comparison of the applicable laws in New York and North Carolina regarding the reporting requirements imposed on a guardian appointed by the court (see SCPA Article 17-A and North Carolina General Statutes § 35A-1242), concludes that North Carolina courts are bound to play a more robust monitoring role than their New York counterparts under SCPA Article 17-A. Nothing in the record undermines the guardian ad litem's conclusion that consideration of this factor favors North Carolina as the proper forum.

Conclusion

Upon consideration of "all relevant factors," the court concludes that the proceeding for the guardianship of J.D.S. should be heard in North Carolina and, accordingly, declines to exercise jurisdiction over the underlying SCPA Article 17-A application (see MHL § 83.23[a]). The guardian ad litem appointed to represent J.D.S.'s interests reached the same conclusion.

The proceeding in this court is stayed until proof is provided that the guardianship proceedings in North Carolina have been determined (see MHL § 83.23[b]).

This decision constitutes the order of the court.

The Clerk of the Court shall notify all interested parties, including the Clerk of the Superior Court of New Hanover County, North Carolina, of this decision. Dated: October 1, 2020 __________ S U R R O G A T E