Opinion
2005-644.
Decided July 1, 2009.
Dr. A. Z. and K. Z. H., R.N., received a dual divorce by judgement of Broome County Supreme Court on June 10, 2002 on the grounds of cruel and inhuman treatment each against the other. In that divorce, they were granted joint custody of their two children, Jon Z. and Alice, with primary residence with the mother. On May 17, 2006, they were appointed co-guardians of Jon Z. in Broome County Surrogate Court under S.C.P.A. Article 17-A. Jon Z. is autistic, according to the affidavits filed in that proceeding, and is now 21 years old. Subsequent to the divorce, Mrs. Z. was remarried to C. H.
Since the divorce, Dr. Z. and Mrs. H. have battled acrimoniously in Supreme Court, Family Court and Surrogate's Court over various issues related to their children. By petition dated August 24, 2007, Dr. Z. petitioned to be the sole person authorized to make medical decisions for Jon. Mrs. H. answered with a request that she be appointed sole guardian of Jon. After a hearing on March 20, 2008, the parties stipulated in open court to a resolution which resulted in two orders signed by me. The first, dated April 14, 2008, appointed Alyssa M. Barreiro, Esq. as special guardian of Jon to make health care decisions for Jon when the co-guardians were unable to agree. The second order, dated April 21, 2008, entered in the Supreme Court matrimonial matter, set forth a new visitation schedule for the parents with Jon. The second order also specified the parents must comply with Jon's medication schedule as prescribed by Jon's doctors.
By Order to Show Cause dated September 24, 2008, Ms. H. has petitioned to hold Dr. Z. in contempt of the second court order alleging he failed to medicate Jon in accordance with his doctor's prescriptions. Dr. Z. responded on December 5, 2008 with a cross-motion, which, as amended, sought for him to be appointed as Jon's sole guardian under Article 81 of the Mental Hygiene Law or, in the alternative, to be appointed Jon's sole guardian under Article 17-A of the Mental Hygiene Law with expanded powers similar to Article 81.
Mental Hygiene Legal Service, April Smith, Esq., was appointed as counsel for Jon in regard to these proceedings. A motion by MHLS was granted on January 30, 2009 to dismiss the Article 81 proceeding because Jon was not personally served in the proceeding. However, the cross-motion by Dr. Z. for sole guardianship of Jon under SCPA Article 17-A remains outstanding and unresolved. A second motion was made by Ms. H. to dismiss the cross-motion on grounds of res judicata and also in limine to restrict testimony to events occurring after the April, 2008 Orders. Both of these motions were denied by decision dated February 2, 2009.
In that decision, the Court pointed out that it has continuing jurisdiction pursuant to SCPA § 1758 ". . . to take of its own motion or to entertain and adjudicate such steps and proceedings relating to such guardian . . . as may be deemed necessary or proper for the welfare of such mentally retarded or developmentally disabled person." Sporza v. German Savings Bank, 192 NY 8 (1908); Matter of Claudia EE , 35 AD3d 112 (3d Dept., 2006).
Thus, the parties have been advised that the hearing to be conducted on the motion and cross motion would be not only on the issues raised in the motions, but also on the question of whether either of the parties should remain as Jon's guardian or whether an independent guardian should be appointed. A hearing was held over nine days in February and May, 2009.
There is also pending a cross-motion filed by Ms. H. on March 26, 2009, for authorization to move to Newark Valley, NY. The judgment of divorce provided that neither party could move outside of Broome County without the other's consent or a court order. Newark Valley is in Tioga County, which adjoins Broome County to the west. Dr. Z. opposes this motion on the grounds of increased travel time to visit his son.
In many ways, Jon is a remarkable young man. His artwork has been exhibited and sold at galleries in New York City. He has been the subject of television documentaries. All concerned testify that both his parents love him, care for him and want the best for him. The problem is that they battle constantly over problems between themselves and also fight over how to accomplish what is best for Jon. They rarely agree on anything. Each of them during his or her testimony by non-verbal body language demonstrated an adamant belief in the correctness of his or her position and extreme bitterness and opposition to the other. They argue and disagree over Jon's doctors, his medications, visitation (timing for pick-ups, trading off days and vacations), his schooling (whether or not it is important for him to be on time for school), his sleeping habits and his weight. The police have been called on various occasions due to their disputes over visitation.
Now that Jon is 21, he can no longer attend BOCES. The parents also disagree about Jon's future: whether he should receive Social Security disability and Medicaid or whether he should be employed. Another example of the parents disagreement regarding Jon is that the Court has been informed that after the conclusion of the hearing, Dr. Z. unilaterally placed Jon on the payroll in his office to do computer research. The salary Jon receives apparently prevents him from receiving Social Security disability. The one thing they seem to agree on is that Jon should not live in a group home or other facility for autistic adults, which may or may not be in Jon's best interest.
Both parents bombard the physicians and each other with suggestions and complaints. See Exhibits 2-16 and F-H. As a result, Jon has been subject to multiple medical tests and multiple physicians over the last several years. See Exhibit C and MHLS Exhibit 1 (Special Guardian Report). Both parents have requested changes in Jon's medications without notifying the other parent. See Exhibits 1-2, F-H and MHLS Exhibit 1. Both parents have demonstrated in their actions and testimony that because of their medical training and personal knowledge of Jon, each believe he or she knows better than the treating physicians what medications he should take. Each also thinks he or she knows better than the other how to handle Jon. Their testimony is replete with assertions and recriminations against the other in this regard. The parents' deep-seated animosity for each other results in their inability to cooperate or even communicate in a civil manner with each other. This is detrimental to Jon and not in his best interest.
Both the Special Guardian and the MHLS attorney representing Jon assert that the co-guardianship cannot continue. Both also assert that a neutral independent guardian is called for. There is a strong preference for the appointment of a family member as guardian. Matter of Gustafson, 308 AD2d 305 (1st Dept., 2003). However, when the animosity between the parents is so deep-seated as to be injurious to the best interest of the child, an independent guardian may be appointed. Matter of Joseph V., 307 AD2d 469 (3d Dept., 2003); Matter of Zdeb, 215 AD2d 803 (3d Dept., 1995); Matter of Ardelia R ., 28 AD3d 485 (2d Dept., 2006); Matter of Colette G., 221 AD2d 440 (2d Dept., 1995).Similarly, in custody matters, there is a preference for joint custody, but where parents are unable to communicate or cooperate for the benefit of the children, joint custody will not be ordered. Clupper v. Clupper 56 AD3d 1064 (3d Dept., 2008).
The Court finds that the co-guardianship of the parents must be and hereby is terminated for the foregoing reasons. The Court further finds that due to the antipathy, even hatred, of the parents for each other, neither could act as sole guardian. Based upon the testimony and past dealings of the parents, the parent not appointed as guardian would not cooperate and would even fight with the one appointed. Such inability to cooperate is harmful to Jon.
During the hearing, various alternatives for an independent guardian were considered. Each party presented testimony from his or her brother. Neither brother is a viable alternative because he is viewed by the other party as too closely aligned with his or her sibling. In addition, both live out of the area and have a business to operate. Dr. Z.'s brother is a busy practicing dentist and Ms. H.'s brother works six days a week in a dance studio business.
Representatives of the Broome County Department of Social Services (DSS) also appeared as a possible alternative. It was clear from their testimony that DSS has little experience acting as guardian for a young adult with autism, particularly where both parents are alive and feuding. Further, DSS has no caseworkers on call in the event of an emergency on a weekend or legal holiday.
The last alternative possibility was the guardianship committee of Achieve (formerly the Association for Retarded Citizens). It was clear from the testimony of their representatives that the committee is made up entirely of volunteers. As volunteers, there may not be availability in an emergency or on weekends. They only act as guardian of the person. In order to be appointed as a guardian, an application must be filed and reviewed and accepted by the committee. They cannot be forced to accept an appointment by court order.
In the Court's judgment, neither DSS nor Achieve are reasonable alternatives for an independent guardian at the present time.
In her testimony, Alyssa Barreiro, Esq., the Special Guardian, stated she would be willing to act as guardian. Subsequently, she advised the Court that she would do so if her partner, Albert Kukol, Esq., was also appointed with her as co-guardian to provide coverage when she is on vacation or otherwise unavailable. Both of these attorneys have years of experience with guardianship and health care matters and both are on the list of guardians pursuant to Part 36 of the Uniform Rules of the Chief Judge. Ms. Barreiro is familiar with Jon in her capacity as Special Guardian and has demonstrated concern for and involvement with Jon. She has devoted hours of study to autism and his other medical problems. They will make excellent independent guardians for Jon. Alyssa Barreiro and Albert Kukol are hereby appointed co-guardians of Jon Z. pursuant to Article 17-A of the SCPA. Such appointment shall continue for a period of one year or until further order of this Court.
Turning to Ms. H.'s request to move with Jon to a new residence in Newark Valley, Tioga County, NY, a prior court order prevents Ms. H. from moving outside Broome County without a court order. Tioga County borders Broome County on the west. Since Jon is over 21, the order may no longer apply to him, but it still applies to their daughter Alice. Ms. H. has demonstrated on the map attached to her affidavit that the proposed location in Newark Valley is no farther from the parties' current residences than would be Deposit, NY which is within Broome County (H.'s affidavit, dated March 26, 2009). Jon has also indicated in his interview with the Court a desire to move to Newark Valley. Dr. Z. objects to the move on the grounds that it would "defeat, impede and impair my ability to communicate with" his children.
It is clear that the primary factor in deciding whether or not to allow a parent to relocate is the best interests of the children. Tropea v. Tropea, 87 NY2d 727 (1996). The only possible way the move to Newark Valley impedes Dr. Z.'s ability to communicate with the children is additional travel time. When relocation is permitted, the court may impose upon the relocating party the burden of providing additional transportation for the child in order to promote visitation with the non-custodial parent. Hanson v. Hanson, 283 AD2d 677 (3d Dept., 2001). Accordingly, Paragraph 2 of the order dated April21, 2008 is modified to provide that K. H. shall transport Jon to Dr. Z.'s residence on Tuesday and Thursday evenings and also on the Friday evenings of Dr. Z.'s alternate weekend visitation. In his own testimony, Jon stated he wanted to continue to live with his "Mom". The balance of the Order dated April 21, 2008 shall continue, except as modified herein.
As to Alice, she has not visited with Dr. Z. since 2007. She is now 16 years old (Decision and Order of Hon. Rita Connerton, dated March 27, 2009 attached as Exhibit A to Affidavit of Dr. Z., dated April 30, 2009). This Court has been assigned the Z.'s matrimonial action, Index No. 99-001965 and thus has jurisdiction to modify that portion of the divorce decree providing the children shall not be moved out of Broome County. Insofar as Alice is now 16, she may well be able to provide her own transportation once she receives a driver's license. To the extent she does not drive herself, Ms. H. shall also provide transportation when needed for Alice to visit Dr. Z., if and when visitation resumes between them.
The Court hereby orders that K. H. may relocate to Newark Valley, NY with her children, Jon and Alice.
As for Ms. H.'s motion for contempt, the only proof that Dr. Z. did not follow doctor's orders in giving Jon his medication was the testimony of Rachel S. that Jon refused his medication on the morning of a 5K race. Ms. H. also alleged that Jon was not properly medicated because he would be destabilized after returning from visitation with Dr. Z. Thus, she did not actually observe Dr. Z. fail to give prescribed medicine to Jon. Dr. Z. denied failing to give prescribed medication during visitation. Such evidence is not sufficient to support a finding of contempt. The motion for contempt is denied.
All parties and the Special Guardian agree that Jon has benefitted from continuity of treatment by one prescribing physician. For about the last year, that has been Dr. Agnes H. Whitaker, Director, Developmental Neuropsychiatry Program and Clinical Professor of Psychiatry, Columbia University Medical Center, Division of Child and Adolescent Psychiatry. The co-guardians shall not change Dr. Whitaker as Jon's psychiatrist without further order of the Court. Of course, in the event of an emergency, Jon may be treated by his local family doctor or emergency medical personnel.
Since Jon is 21, the co-guardians should investigate what is in his best interest going forward. The items to be considered and determined include, but are not limited to, 1) whether an application should be made to Achieve for them to act as permanent independent guardians, 2) if Jon should continue to be employed by his father or by some other program for disabled adults, 3) whether to apply for Social Security disability and Medicaid, 4) whether to apply for and have Jon move to a group home or other type of assisted living facility.
The appointment of Alyssa Barreiro as Special Guardian is revoked as of the date she qualifies as Co-Guardian. Other issues raised by the parties have been considered and are denied.
Submit Order on notice in accord with this Decision.