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In re Appointment of a Successor Guardian for Timothy R.R.

Sur Ct, Essex County

December 27, 2013

In the Matter of the Appointment of a Successor Guardian for Timothy R.R., Pursuant to SCPA Article 17-A.

Insley & Douthat LLP (Kathleen R. Insley, Esq., of counsel), Plattsburgh, New York for the father.

Stephen A. Johnston, Esq., Plattsburgh, New York for the aunt.

Mental Hygiene Legal Service, Third Judicial Department (Sheila E. Shea, Esq. and Laura Antonelli, Esq., of counsel), Albany, New York, Guardian Ad Litem.

Richard B. Meyer, J.

Petitions by the maternal aunt and the father of a developmentally disabled adult in which each seeks to be appointed as the successor guardian of the person of the ward pursuant to SCPA article 17-A. Following a court-ordered evaluation of the parties and the ward conducted by Dr. Joseph E. Hazazi (Hazasi), a psychologist, a trial was held over the course of four days of trial. In addition to hearing testimony from the parties, Hazasi and sixteen non-party witnesses, plus receiving numerous exhibits into evidence, the Court conducted in camera conferences with the ward and the guardian ad litem. Written closing arguments were submitted and the same have been considered along with all of the evidence presented. This Court has evaluated the credibility of the witnesses based upon their demeanor, the manner in which they testified, and the consistency, accuracy and probability or improbability of their testimony in light of all other evidence. The relevant facts found by the Court are set forth in part I below.

I.

The ward is a thirty-three year old man who is developmentally disabled from traumatic brain injuries sustained in a tragic and horrific motor vehicle accident in August 1991. A tractor-trailer failed to stop for a red light at an intersection in the town of Chesterfield, Essex County, and struck the minivan being operated by his father. The ward was a passenger in the minivan as were his two sisters, who died from their injuries, his mother, who was severely injured, and his two cousins who were also injured. The ward and his mother received extensive medical treatment in Burlington, Vermont, and then were transferred to the Albany, New York area where they underwent a long course of rehabilitation. During this period of time, the father continued to work in order to financially support his son and the mother, and regularly traveled to Albany to be with them when he was not working. Ultimately, both the ward and the mother returned to the family home in Keeseville, New York. Initially, the father was the primary caregiver to his son while the mother continued to convalesce to the point that she could care for the ward, and all the while the father continued to work to support the family. The tragedy continued to unfold as the father and mother became estranged and the mother began a relationship with R.B., who had provided special education services to the ward while in the Albany area.

The father suffered from post-traumatic stress disorder after the accident, which was not helped by the disintegration of his marriage. The mother and most of her family developed bitter and resentful feelings towards him and he was ostracized. The mother severed her relationship with the father in 1993 by having a friend deliver a note from her telling him, according to the testimony, to go to his family and she would go to her family. On the ward's birthday that year she handed her wedding and engagement rings to the father. The mother also wrote a letter to her first cousin telling him to choose between being part of the family or remaining friends with the father. Those same feelings toward the father were on display at trial both in the demeanor of family witnesses and in the testimony of other witnesses. Initially, the mother moved out of the family home, taking the ward with her. Recognizing that it was in the best interest of his son that he remain in the family home, the father moved out so that his son could remain there with the mother. The ward stayed with the mother during the week and lived with his father on the weekends. The parents divorced in 1994, and one year later the mother married R.B.

The father continued to work for some period of time and was unsuccessful in transferring to a job in Florida. He eventually moved to Florida and became disabled from work. He married his current wife in 1997, and the ward attended the ceremony. In 1999, with the father's consent, the mother was appointed guardian of the person of their then adult son. Thereafter, the mother did not foster the ward's relationship with the father. The father has maintained regular telephone contact with his son, communicating by phone two to three times per day since 1994, and has also communicated by facsimile transmission, mail and email. After the father moved to Florida, his visitations with the ward were sporadic and, according to the father's unrefuted testimony, difficult to arrange due to the mother's interference. She also did not keep him timely advised of important events such as the ward's medical conditions, treatment, or hospitalizations. The father learned of his son's hospitalizations from other people, always well after the fact. On one occasion when the father wished to visit his son during the Christmas holidays, the mother told him he was not in the picture anymore and that he was not welcome. When visiting his son in Keeseville, the father had to make the arrangements directly with his son. In the past few years, he has remained in the Keeseville area for approximately five months per year so that he could spend time with his son. He has had visitation on weekends while staying at the home of the mother's cousin.

In February 2012, the father learned from the mother's cousin that the mother was ill. He was unable to get any further information from the mother or other members of her family. In May of that year, the aunt informed him that she was going to apply for appointment as the ward's guardian. She told the father that the mother asked her to be the guardian and that she wanted to fulfill the mother's wishes. She filed her petition on June 19, 2012 and the father filed his own petition on August 9, 2012. The mother passed away on August 12, 2012.

Since his mother's death, the ward has continued to reside with R.B., not his aunt, in the same home that he lived in with his mother. He has never resided with his aunt, but he did see her two or three times per week before his mother became fatally ill. She now sees him more often but almost always at R.B.'s home. The aunt has also taken the ward to medical appointments, as has the father. The ward has a very close, loving relationship with his fourteen year old half-sister and R.B., the latter clearly being a second father to the ward. He also has a nineteen year old half-brother with whom the ward is not close. While the ward loves his aunt, his love and affection for his father is clearly much greater and there is a deep, emotional bond between them that does not exist between the ward and the aunt. This was apparent throughout the course of the trial. A particularly heartwarming moment occurred after the father finished testifying and was walking back to his counsel's table from the witness stand. The ward got out of his chair, walked over to his father and hugged him.

At R.B.'s home, the ward is provided with a very structured environment and schedule. Because of his traumatic brain injury, the ward lost his ability to recognize when he is thirsty and he must drink one hundred ounces of fluid each day to insure that he does not get dehydrated. He gets verbal prompts for drinks, but sometimes he does it without prompts, particularly with meals. He wakes up between 6:00 and 7:00 a.m., takes his morning medications, pours himself a drink, and has a light breakfast. He gets himself dressed and may go for walk around the neighborhood. The ward might instead play video games, use the computer, or go back to sleep. When R.B. gets up, the ward will get the newspaper, and might go for another walk. He drinks two 16-ounce glasses of water under supervision and then goes to the TBI center at the SUNY Plattsburgh campus, arriving by 10:00 a.m. The ward eats lunch at the TBI center and has a 16-ounce drink. He generally returns home between 1:00 and 3:00 p.m., except on the one day each week when he works at a Super Shoes store in Plattsburgh for four hours. Transportation to and from the TBI center is provided by his aunt, his father (when he is not in Florida), his maternal grandmother, and his cousin.

When the ward arrives home, he has a drink at 3:30 p.m. Weather permitting, he may go for another walk, play basketball with his half-sister in the driveway, or throw a softball around. He often visits friends in the neighborhood, or plays with the children who live across the street. Later he has dinner with R.B. and his half-siblings, and he has another 16-ounce drink. After dinner, he may take a walk around block, throw the ball around with his half-sister and R.B., watch TV, use the computer, or take a nap. The ward showers at 8:30 p.m. and then plays Yahtzee or UNO with his half-sister and R.B. His aunt often places his medications into a pill organizer so that he can take them as prescribed. The ward also performs chores around the home, including garbage and recyclables sorting, laundry, and house cleaning. Keeping the ward on a consistent schedule helps him to remember to drink fluids and take his medications at the proper time of the day. R.B. and the ward have developed a calendar and written reminder system to help the ward follow his daily schedule and routine.

The TBI center in Plattsburgh offers no therapeutic or rehabilitative services for the ward's traumatic brain injury, and its programming is limited primarily to providing a social setting for persons with a variety of developmental disabilities. The turnover of staff is significant, and the ward has not developed any significant interpersonal relationships with either staff or other attendees. In Florida, near the father's home, there is a learning center for persons with developmental disabilities equipped with a library, weight room, and computer room. It has other facilities where attendees can receive instruction in traditional academic subjects. There is a kitchenette where cooking lessons are given. Attendees can participate in Special Olympics activities, and there are ...


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