Opinion
100329/07.
Decided June 26, 2008.
Petitioner's attorney was Ralph Young, Esq., of Counsel to Roy A. Esnard, Special Assistant Corporation Counsel to Michael Cardozo, Corporation Counsel of the City of New York.
Respondent's attorney was Michael D. Neville, Esq. of the State of New York Mental Hygiene Legal Service, Second Judicial Department.
The Court writes this decision and order dismissing the petition and awarding fees to the Mental Hygiene Legal Services as Court-appointed Counsel.
THE PETITIONER
The Petitioner in this action is Robert Doar, Commissioner of Social Services of the City of New York (hereinafter, the Commissioner). Pursuant to Social Services Law § 473 the Commissioner is charged with providing in accordance with state and federal regulations protective services for adults who because of mental or physical impairments are unable to manage their own resources, carry out the activities of daily living, or protect themselves from sexual, physical, or emotional abuse. Said adults may be subject of passive or active neglect from others, or may be subject to self neglect, may be victims of financial exploitation, or may face hazardous situations. Additionally said protective services are triggered only when no one is available, willing, and able to assist said adults responsibly. The Commissioner has established a subdivision titled Adult Protective Services (hereinafter, APS), to comply with his mandate to protect endangered adults. The Commissioner is statutorily charged with receiving and investigating reports of seriously impaired adults who may be in need of protection. (See Social Services Law § 473.1(a), emphasis added). The Commissioner is likewise charged with arranging for medical and psychiatric services to evaluate and whenever possible to safeguard and improve the circumstances of adults with serious impairments (See Social Services Law § 273 1. (b), emphasis added.) The Commissioner is authorized to commence non-voluntary proceedings to protect such individuals provided that less restrictive alternatives are unavailable (See Social Services Law § 473-1.(c)).
The statutory scheme reveals that APS is a reactive agency, becoming aware that there is a potential client only after it receives a report of someone with serious impairments . See Social Services Law § 473.1.(a).
THE RESPONDENT
The respondent is an allegedly incapacitated person (hereinafter, the AIP). She is ninety five years old and lives alone in a cooperative apartment. APS has never obtained any information about the AIP's next of kin or about anyone entitled to notice of the guardianship proceeding. APS became aware of the AIP when the AIP's landlord made a report to the APS hotline sometime prior to March 2007. The report indicated, at least in part, that the AIP's apartment was in need of repair. APS investigated the report, accepted the AIP as a client, and had the AIP examined by Dr. Charles Hayes, a psychiatrist, in March of 2007.
See M.H.L. § 81.07 (g).
PROCEDURAL HISTORY
The instant action was commenced by petition and order to show cause signed by this Court on January 14, 2008 seeking the appointment of a Personal Needs and Property Management Guardian for the AIP. In said order to show cause, this Court appointed Mental Hygiene Legal Services (MHLS) as Counsel to represent the interests of the AIP and waived the appointment of a Court Evaluator pursuant to M.H.L. § 81.10 (g).
The matter was originally to be heard on February 8, 2008 at 11:00 a.m. The AIP however, misread the return date as February 6, 2008 and appeared in the courtroom on February 6, 2008. She came to court by herself, using public transportation and found the correct court part, on her own initiative.
The return date as written in the order to show cause is faint. It is reasonable to read the 8th day of February and the 6th day of February.
At that time, court personnel spoke to the AIP, who expressed her unequivocal desire to remain without a guardian. Upon the Court's direction, the part clerk contacted the Petitioner's office and MHLS to see if the matter could be advanced to accommodate the ninety-five year old AIP, who had come to court via public transportation in the cold of winter to object to the appointment of a guardian. MHLS sent an attorney to the Part, but the Petitioner's office failed to send an attorney.
The AIP informed the MHLS attorney and court personnel that she would not return to court, did not want a guardian, and did not want an attorney to be appointed for her. The AIP then left.
On February 8, 2008 the matter was adjourned because the Petitioner did not have an affidavit of personal delivery (See M.H.L. § (e) 2.(I))
On February 6, 2008 the AIP showed the Court Personnel a copy of the Order to Show Cause.
After several adjournments and an order authorizing nail and mail service, the Court scheduled the matter for hearing on May 20, 2008.
Petitioners's counsel appeared for the hearing on May 20, 2008 as did the AIP's counsel. However, the AIP did not appear.
Prior to the start of the hearing, the Petitioner's attorney stated that the AIP currently refused to allow anyone entry into her apartment, would only open her door slightly for her APS caseworker, and would speak only briefly to the case worker. The Petitioner suggested yet another adjournment to attempt personal delivery on the AIP and suggested that during the adjournment the Petitioner might make an application for an Order to Gain Access so that Dr. Hayes, the psychiatrist who had evaluated the AIP in March 2007, could enter the AIP's residence with the police and a locksmith and again evaluate the AIP (See Social Services Law § 473-c). The AIP's counsel Michael Neville, Esq., senior attorney with MHLS, opposed the adjournment. He contended that an adjournment to obtain an Order to Gain Access against the AIP was against the AIP's interest and he suggested that because the AIP left her apartment daily to go shopping and the like, that the evaluation could occur at such times. Moreover, Mr. Neville argued that Petitioner had alleged no danger or risk to the AIP of enough import to warrant an Order to Gain Access.
Mr. Neville argued that any request by Petitioner for an Order to Gain Access was motivated by Petitioner's a desire to obtain additional evidence against the AIP since the Petitioner's nine month delay in filing its case and the various adjournments required to effectuate service had rendered the Petitioner's case stale and that this motive did not constitute sufficient reason to authorize the Petitioner's expert witness as well as police officers and a locksmith, if necessary, to forcibly enter the AIP's residence.
The Court denied Petitioner's request for an adjournment and notes that to use an Order to Gain Access to collect evidence in an M.H.L. Art. 81 proceeding is impermissible. The sole permitted use of an Order to Gain access is for assessing an individual's need for adult protective services. (See Social Services Law § 473-c.1.(g).) Additionally, to obtain an Order to Gain Access, the Petitioner would have to demonstrate to the Court the lack of success of "the efforts made by the social services official to gain access to the person who may be in need of protective services" (See Social Services Law § 473-c.1.(d) emphasis added) If the person the social services agency seeks to evaluate is in fact available for observation and evaluation or if the social services agency has failed to make adequate efforts to gain access to the person it seeks to evaluated then the Court is duty bound to deny the application. In the instant matter, the Petitioner has had access to the AIP and has had the opportunity to gain such access. According the Petitioner's own Counsel, the AIP has spoken with the Petitioner's caseworker by opening her apartment door slightly and speaking through said narrow opening. According to her counsel, the AIP is available for observation and interview, to whatever extent she chooses, when she daily leaves her apartment to shop. The Petitioner can easily speak with the doorman of the AIP's building and find out when the AIP performs her errands and thus have opportunity to observe her and try to engage her in an evaluation. The Petitioner in fact already evaluated the AIP in March 2007 and made a determination that the AIP is in need of adult protective services including the involuntary appointment of a M.H.L. Art 81 guardian of person and property.
This Court also notes that granting an order to gain access does not compel the AIP to subject herself to an evaluation. During the execution of an order to gain access an AIP is within her rights to simply refuse or fail to cooperate with the evaluation.
After Petitioner's request for an adjournment was denied, the Petitioner presented his case which consisted of only one witness, Dr. Charles Hayes.
PETITIONERS CASE
Dr. Hayes testified that the only time he met with the AIP was in March 2007, in her apartment. He testified that the AIP's apartment needed to have a few floor boards replaced and that the ceiling in her bathroom was in need of repair as was her bathtub. He was unable to testify about the current condition of her apartment. He did observe that she had food in her refrigerator but could not recall if she had a functioning stove.
Dr. Hayes testified that AIP had an unsteady gait. According to Dr. Hayes the AIP told him that she pays all her bills, does her own banking, does her own shopping, has medical coverage through HIP, does not use her tub or shower but instead takes sponge baths. In response to his inquiry regarding her failure to fix her bathroom, she complained that she had previously been overcharged for work in her apartment and did not want this to happen again. Dr. Hayes noted that she attempted to convince the super who had accompanied him to the interview to make the repairs on the spot. Dr. Hayes testified that her hygiene and grooming were passable. He made a diagnosis of age-related cognitive decline. Dr. Hayes further testified that the AIP was guarded and was somewhat hard of hearing and that it took great deal of coaxing and persistence to gain entry into her apartment and to conduct a full evaluation. The Petitioner's attorney did not ask for any negative inference based upon the non-appearance of the AIP.
New York case law recognizes fifth amendment protections in favor of the AIP in M.H.L. Art 81 proceedings because liberty interests are at stake since a personal needs guardian can often make decisions against his ward's wishes regarding the residence and social environment of his ward. An indigent AIP who opposes the appointment of a Personal Needs Guardian is entitled to Court Appointed Counsel. Matter of St. Luke's-Roosevelt Hosp. Ctr., 89 NY2d 889, 890 (1996), and an AIP cannot be compelled to testify against himself in a M.H.L. Art 81 case. Matter of A.G., 6 Misc 3d 477 (2004). There has been no determination as to whether a negative inference can be taken by the non-appearance of the AIP in an application to have a Property Needs Guardian appointed as opposed to having a Personal Needs Guardian appointed.
Dr. Hayes testified that the AIP told him that she was raised in foster care and was never married and that she had no children.
BURDEN OF PROOF AND FINDINGS OF FACT
M.H.L. § 81.02 governs the standards a Court must use in determining whether or not an AIP needs the appointment of a guardian. The court must find by clear and convincing evidence that "the appointment is necessary to provide for the personal needs of that person including food, clothing, shelter, health care or safety and/or to manage the property and financial affairs of that person" (See M.H.L. § 81.02 (b) and M.H.L. § 81.02 (a) 1.)
The court must also determine by clear and convincing evidence that the AIP is likely to suffer harm because she is unable to provide for her personal needs and/or property management and that she cannot adequately understand and appreciate the nature and consequences of such inability. (See M.H.L. § 81.02 (b)1.and 2.)
In reaching its determination the court must give primary consideration to the functional level and functional limitations of the AIP. The court's determination must include an assessment of the how the AIP manages her activities of daily living such as eating, shopping, dressing and the like. The court must also make a determination of whether or not the AIP appreciates the nature and consequences any functional limitations or inabilities from which the AIP suffers. The court must determine the AIP's preferences, wishes, and values with regard to the management her activities of daily living. The court must assess the demands placed upon the AIP due to her personal needs, financial affairs and property interest. See MHL § 81.02 (c) 1-4.
The court must also consider all other relevant facts and circumstances about the AIP's functional level and understanding and appreciation of the nature and consequences of her functional limitations See M.H.L. § 81.20 (d) 1 2.
THE COURT'S FINDINGS
The Court finds that the Petitioner has established that the AIP pays all her bills, does her own shopping and cooking, feeds herself, that her hygiene is adequate and that although her apartment is in need of some repair, there is no evidence that she is unaware of same or has not acclimated to the problems in her apartment
This Court finds that the only functional limitation established at the hearing is that the AIP has an unsteady gait. Petitioner has failed, however, to establish that the AIP does not understand and appreciate the nature and consequences of her functional limitation. What the Petitioner has established is that the AIP has accommodated to her functional limitations by using her shopping cart to assist her when she ambulates and by taking sponge baths instead of using the shower bath tub.
The Petitioner submitted no evidence as to whether or not the AIP's apartment had heat in the winter or if it has proper air-conditioning in the summer. These are two issues that the Court would have wanted to know, but that the Petitioner failed to address at the hearing.
There is nothing in this decision that prevents the Petitioner from ascertaining if the AIP has adequate heat in the winter or air-conditioning in the summer. The appointment of a Court Evaluator might have resolved these unanswered questions, but the Petitioner still would have had the burden of proving his case and cannot rely upon the Court evaluator to establish the Petitioner's case for him.
The argument set forth at the hearing by the Petitioner's attorney that the AIP's unsteady gait in conjunction with some missing floor boards places the AIP at imminent risk of physical injury is likewise unpersuasive. For more than a year since the AIP was voluntarily evaluated by the petitioner, the AIP has successfully navigated about her apartment as well as in the street.
The Petitioner's attorney also argued at the close of the hearing that the AIP's landlord, who had originally called in a report on the AIP, based upon the conditions of her apartment, may start an eviction action against her. A potential eviction proceeding is not a failure to perform any activity of daily living. Moreover a possible future eviction proceeding is highly speculative in nature and is therefore not clear and convincing evidence upon which to base the appointment of a guardian.
The Petitioner's attorney also argued that if the AIP, at some time in the future, became a respondent in a housing court proceeding that the AIP might "fall through the cracks" of APS subdivision and be left homeless before the Petitioner could seek to stay any eviction in the future against the AIP. The appointment of guardian must be based upon clear and convincing evidence and not on speculation about hypothetical future legal events or hypothetical future negligence on the part of the Petitioner.
The Petitioner often brings an order to show cause to stay housing court proceedings against APS clients by arguing, as a friend of the Court, that the APS client suffers from a disability that warrants the appointment of a Guardian ad Litem in housing court See CPLR 1201 and 1202. The Petitioner also often seeks a stay of housing court proceedings as part of an M.H.L. Art. 81 petition.
The petitioner has failed to meet his burden of proof and the case is dismissed without prejudice.
ATTORNEY FEES
The Court has the statutory mandate to determine the reasonable compensation for the the mental hygiene legal service (hereinafter MHLS) or any attorney appointed by the Court. M.H.L. § 81.10(f) reads in pertinent part:
The court shall determine the reasonable compensation for mental hygiene legal service or any attorney appointed pursuant to this section. The person alleged to be incapacitated shall be liable for such compensation unless the court is satisfied that the person is indigent . If the petition is dismissed the court may in its discretion direct the petitioner pay such compensation for the person alleged to be incapacitated. . . (emphasis added)
Pursuant to M.H.L. § 81.10 (f) if the Petitioner was indigent she would not be liable for the fee of MHLS in this action regardless of whether or not this matter is dismissed. The Petitioner, however, has failed to demonstrate that the AIP is indigent. The testimony of the Petitioner's only witness, Dr. Hayes, was that the AIP was current with all her bills and was believed to be the owner of the her cooperative apartment. There was no testimony about the value of the AIP's apartment, her monthly income, if any, or any assets she holds.
Because the Court has dismissed the instant petition, the Court pursuant to M.H.L. § 81.10(f) has the discretion to direct the Petitioner to pay the legal fees this Court determines as reasonable compensation to the Mental Hygiene Legal Services, court appointed counsel to the AIP.
The legislature has recognized that the alleged incapacitated person may be entitled to some relief from the expenses of the litigation when the matter is dismissed and allows the Court to shift the expense of the Court appointed counsel in the instant matter Mental Hygiene Legal Services to the Petitioner especially where there is no showing that the AIP benefitted in any way from the proceeding. See, In the Matter of Rocco, 161 Misc 2d 760 (1994). In exercising its discretion the Court takes note that the fee shifting provisions of M.H.L. Art. 81 are designed not only to be just, but are also intended to discourage frivolous guardianship petitions and those guardianship petitions motivated by avarice and bad faith. See In the Matter of Sylburn A. Peterking, 2 Misc 3d 1011A, see also, In the Matter of Lyles 250 AD2d 488.
In the instant matter it cannot be fairly maintained that the Petitioner was motivated by greed. However, given the threadbare allegations in the petition, the failure to call any witnesses other than one who had last seen the AIP more than a year earlier, or to present any evidence of functional limitation other than the AIP's use of her shopping cart as a walker to accommodate her unsteady gait, the bona fide of the instant guardianship petition is clearly questionable.
It has been said on numerous occasions that the courts should not be engaged in futile acts, and the judicial imprimaturs sought by petitioners in this article 81 proceeding is not one which we believe was contemplated by the Legislature.
. . . . . . the appointment of a guardian is a drastic remedy which involves an invasion of the respondents's freedom and a judicial deprivation of his constitutional rights ( see also, Matter of Seidner, NYLJ, Oct 8, 1997, at 28, col 4 [Rossetti J.]). Before petitioning for such relief, careful and serious consideration should be given to the foregoing and other relevant facts. Here that seemingly was not done. In the Matter of John Doe et al, 181 Misc 2d 787 at pgs 792-793In balancing the equities, this Court finds that the petitioner should pay the court determined fees of MHLS. MHLS has submitted an affirmation of services for 10 hours and twenty five minutes for services rendered in this matter and asks to be compensated the sum of $781.25 which the petitioner is directed to pay to MHLS.
In light of the foregoing, it is hereby
ORDERED, that the instant petition is dismissed pursuant to M.H.L. 81.16(a), and it is further
ORDERED, that the Petitioner pursuant to M.H.L. 81.10(f) shall pay MHLS the sum of $781.25 for services as court appointed counsel for the AIP.
This constitutes the decision and order of this Court.