Opinion
Nos. 2020-2126 2020-2126/A - B
04-25-2023
IN THE MATTER OF THE GUARDIANSHIP OF NAJAI J. J., an Infant
Unpublished Opinion
Nelida Malave-Gonzalez Judge
In these two contested guardianship proceedings, the infant's paternal grandmother and aunt filed a petition seeking to be appointed co-guardians of his property (File No. 2020-2126) and the infant's mother filed a cross petition seeking sole property guardianship (File No. 2020-2126/A). Thereafter, the grandmother withdrew her application, the aunt amended the petition to seeking sole property guardianship, and a guardian ad litem (GAL) was appointed for the infant.
The six-year-old infant resides with his mother in the Bronx. His father died on May 23, 2020. The infant is the father's sole distributee. Property guardianship is requested to petition for letters of administration in the father's estate and prosecute a workers' compensation claim and personal injury cause of action.
The aunt filed objections to the mother's application stating that she, and not the mother, should be appointed property guardian for the infant because she is a certified public accountant who worked at several high-profile accounting firms, and that she is married with a child and resides with her family in a spacious home in Westchester. She further alleges that she and the deceased father's other relatives had frequent contact with the infant prior to the father's death and remain interested in the infant's welfare. The aunt avers that, while her family's relationship with the mother was adversarial, she would endeavor to establish a rapport with the mother should she be appointed.
The GAL initially recommended that the aunt be appointed property guardian considering the aunt's educational and professional qualifications as an accountant and the mother's lack of financial experience and limited education. He also noted that although the mother's and infant's previous living arrangements were unstable, they now reside in subsidized housing. He also reviewed an indicated ACS report concerning the mother and the deceased father in the court's guardianship file and confirmed with ACS that the investigation was "signed off."
On the first adjourned date of citation in both applications, which was held on the court's virtual platform, the aunt appeared remotely, pro se, and the mother, the mother's attorney and the GAL appointed for the infant also appeared remotely. At an off-calendar conference with a member of the court's Law Department held virtually with the parties, the mother's attorney, and the GAL, counsel for the mother agreed to serve as co- guardian with his client and the aunt did not indicate opposition at the time. After the attorney and the mother filed a second cross petition seeking to be appointed co-guardians of the infant's property (File No. 2020-2126/B), the GAL filed an amended report recommending that the mother and her attorney be appointed co-guardians, noting inter alia that, although the aunt is financially literate and experienced in managing funds and bank accounts, the mother is the infant's custodial parent, and the co-petitioner's education, training and status as an attorney and officer of this court will most likely assure that they will property safeguard and manage the infant's property.
On the original return date of citation on the amended cross petition seeking co-guardianship, which was held on the court's virtual platform, the mother, her attorney and the GAL appeared remotely and the aunt failed to appear or respond to communications from the court. Thereafter, the aunt sent a letter to the court indicating, inter alia, that she was never served with citation in the joint application and she and the deceased father's other family members continue to seek oversight over the infant's affairs. Accordingly, the matter was re-marked "supplemental citation."
The aunt then filed pro se objections, inter alia, disputing the guardian ad litem's amended recommendation that the mother serve jointly with her attorney. On the adjourned return date of the aunt's amended petition (File No. 2020-2126) and supplemental citation for the mother and attorney's cross petition (File No. 2020-2126/B), held on the court's virtual platform, the cross petitioning mother and her attorney and the GAL appeared remotely. The aunt, who also appeared remotely pro se, indicated that she wished to retain an attorney, was afforded additional time to consult with counsel, and both proceedings were adjourned.
On the subsequent adjourned return date of the amended petition and joint cross petition held on the court's virtual platform, the cross petitioning attorney, the aunt and her new counsel appeared remotely, and oral argument was had. During the hearing the aunt, in addition to reiterating the allegations previously advanced, stated she would not seek commissions. The petitioning attorney testified that he and the mother also would not seek commissions as guardians and that he would also petition jointly with the mother for limited letters of administration in the father's estate and not seek commissions.
On this state of the record, that there is no demonstrated relationship by the aunt with the infant and mother after the father's death, the infant continues to reside with the mother, whose attorney has agreed to serve as co-guardian and avers that they will not seek commissions for serving as such, the guardianship funds are to remain under the court's control, and upon the GAL's amended recommendation, the court finds that it is in the infant's best interests that the cross petitioners serve as coguardians of his property.
Accordingly, the cross petition seeking co-guardianship of the infant's property (File No. 2020-2126/B) is granted. The infant's mother, Yvette M. M., and her attorney, Jarret G. Roth, Esq., are appointed coguardians of his property.
The guardian ad litem filed an affirmation of services and time sheets detailing 27.1 hours expended herein, his usual hourly billing rate is $500 and accordingly requests a legal fee of $13,500. However, at this juncture, there are no guardianship assets and only the expectation of distribution of recoveries in the infant's father's estate, which limits the legal fees payable in this proceeding (see SCPA 450 [2]; Matter of Legrow, 2015 N.Y. Misc. LEXIS 4802; 2015 NY Slip Op 32466 [U] [Sur Ct, Nassau County 2015]). On this state of the record, determination of the GAL's fee in this proceeding is reserved for an appropriate future proceeding concerning the father's estate (see SCPA 405 [2]; Matter of Legrow, 2015 N.Y. Misc. LEXIS 4802). The decree to be settled hereon shall provide for deferred determination of the award to the guardian ad litem as directed.
This decision constitutes the order of the court granting the mother and her attorney's second cross petition (File No. 2020-2126/B), marking the aunt's amended petition (File No. 2020-2126) and the mother's first cross petition (2020-2126/A) "dismissed," and deferring the determination of the award to the GAL as directed herein. The Chief Clerk shall mail copies of this decision and order to counsel for the parties and the guardian ad litem. Settle decree.