In re Richard S. H.

77 Misc.3d 376

178 N.Y.S.3d 401

In the MATTER OF the Petition of RICHARD S. H. and Elisabeth J. K., Guardians of the Person and Property of Reed D. K. H., to Terminate the Guardianship Pursuant to SCPA §§ 1755 and 1759.

File No. 2015-2785/A

Surrogate's Court, New York, Westchester County.

Decided on October 26, 2022

Littman Krooks LLP, 800 Westchester Ave., Rye Brook, NY 10573, for petitioners.

Mental Hygiene Legal Service, 140 Grand Street, White Plains, NY 10601, guardian ad litem.

Brandon R. Sall, S.

In this guardianship proceeding brought pursuant to § 17-A of the SCPA, Richard S. H. ("Richard") and Elisabeth J. K. ("Elisabeth"), as guardians of the person and property of their son, Reed D. K. H. ("Reed"), petition this court for the dissolution of the guardianship of Reed, the revocation of the letters of guardianship decreed to them and the restoration of Reed's full legal capacity. For the reasons set forth below, the relief requested in the petition is granted.

The facts relevant to this petition are as follows:

Background

On October 10, 2015, when Reed was just 18 years of age, Richard and Elisabeth filed a petition seeking a decree awarding them SCPA § 17-A guardianship of the person and property of Reed. In support of that application, the court had before it the affidavit of Glenn Kreielsheimer, Psy.D. and the affirmation of Alice Jo Siegel, M.D., both of which basically stated, among other things, that Reed suffered from Asperger's Syndrome and other related issues. They also wrote that the key issues on which Reed required assistance, development and treatment were adaptive, social and emotional behavior, effective learning tools, and creation of more extensive support systems.

The court appointed Mental Hygiene Legal Service ("MHLS") as a guardian ad litem for Reed. The attorney for MHLS performed a thorough investigation and determined that, in his view, the relief requested by Richard and Elisabeth should be granted. The court submitted the application for decision and decree, and on May 3, 2016, the court appointed Richard and Elisabeth the SCPA § 17-A guardians of the person and property of Reed.

This Petition

Circumstances have changed. On May 3, 2022, when Reed was about 24 ½ years old, six years after the decree of guardianship issued, Richard and Elisabeth submitted this petition to vacate the guardianship decree. The record before the court reflects the following:

Reed

On the return date of the petition, Reed explained to the court his journey and why he feels that he is now in a position to exercise agency over his own person and property. He states that, after he graduated from the Chamberlain International School (in Middleborough, MA), a therapeutic boarding school, and Mamaroneck High School, he began to make great progress towards higher and better functioning in school and in the every-day and ordinary behaviors required of adult life.

After high school, Reed attended Landmark College ("Landmark") in Putney, VT. Landmark is an accredited college that offers academic support for special needs students. It was at this time Reed explained that he no longer needed to attend a therapy program but only needed a program directed towards academics. After two years at Landmark, he enrolled in Manhattanville College ("Manhattanville") in Purchase, NY. There, he studied many subject areas concentrating in the social sciences and humanities, and he decided that he wanted to be a social worker to work with children with autism. After three years at Manhattanville, in the Spring of 2021, Reed graduated with a B.A. in World Religions. In the Fall of 2021, Reed matriculated at New York University Silver School of Social Work ("NYU") in the master's program. He continues to use the tutor who assisted him at Manhattanville in his studies at NYU for three hours per week. His transcript for his first semester at NYU reflects two As, one A- and a Pass.

Reed described that, on an average day, he gets up, gets dressed, packs his lunch and goes to school or work. When he gets home, he makes dinner for himself and, on occasion, he makes meals for his family. After dinner, he does schoolwork, exercises, showers and goes to sleep. Reed has a learner's permit, and he has been taking a driving course in order that he can obtain a driver's license.

Further to his ability to independently manage his life, each day, Reed carries a wallet which contains his university identification card, credit cards, insurance card and cash, and he also carries his own set of keys.

As to his medications, Reed noted that he takes five prescription medicines daily without prompting, that he has the drugs filled at CVS in Larchmont, and that his physician has been able to reduce the dosage on one of the medications. He schedules his own medical appointments, including those with his therapist and psychologist.

Reed gave the following example of how he pays attention to his health: realizing that his vision seemed to be impaired, he spoke to Elisabeth and his physicians and then he did his own research on his symptoms, finding a specialist that he ultimately went to with Elisabeth who solved the problem by making an adjustment to his medications.

Additionally, Reed explained that because he is still young and not experienced with complex social interactions, he relies on Elisabeth to assist and guide him. However, it is his goal is to eventually move out of his parents’ home. He understands that he will need to pay bills for rent and utilities and other items, and he states that he is developing the skills to manage money by researching deals, comparing prices and checking receipts.

Reed engages in fieldwork for school as an intern tutoring elementary school students, spending time with senior citizens and working with children with special needs. Some of the tasks that Reed performs at his work include obtaining supplies, negotiating pricing for the supplies, acquiring funding for projects and managing budgets.

Richard and Elisabeth

Elisabeth and Richard state that the guardianship should be terminated because it was no longer in Reed's best interest to maintain it, and he has ample support from his family and his community to assist him in decision-making. They state that should the court vacate the guardianship decree; Reed will execute health care proxy and power of attorney agreements.

The Medical Professionals

Dr. Kreielsheimer, one of the doctors who had filed a certification in support of the initial guardianship petition submitted a letter in full support of the termination, explaining that he began working with Reed when he was in the ninth grade, that he has witnessed his progress during this time, that, as a pre-adolescent and young teenager, Reed had significant issues with functioning successfully academically and socially, and that he has developed a significant understanding of himself and the world in which he lives and an ability to manage the demands of his daily life. Dr. Kreielsheimer concludes by stating "his maturation has been nothing short of remarkable".

Amy Silverman, M.D. submitted a letter in support of the application which confirmed that Reed makes and manages his appointments with her and communicates with her without assistance.

MHLS

The court appointed MHLS to represent Reed's interest in this proceeding. The MHLS attorney investigated the circumstances surrounding the application, and she recommends that the relief sought in the petition be granted. In fact, the attorney has stated that

Reed has demonstrated the ability to act independently in managing his personal and financial affairs. Reed is not reliant on his parents, who continue to act as a support, but no longer appear to make decisions on Reed's behalf. The letters of guardianship that are currently in place are no longer in Reed's best interest but in fact hinder any further independence that Reed and [his parents] want him to achieve.

Analysis and Conclusion

SCPA article 17-A guardianship is plenary, resulting in a total deprivation of an individual's liberty (see SCPA §§ 1750, 1750-a, 1750-b ; see also Matter of Michael J.N. , 58 Misc. 3d 1204[A], 2017 N.Y. Slip Op. 51925[U], 2017 WL 6615122 [Sur. Ct., Erie County 2017] ; Matter of Caitlin , NYLJ, April 29, 2017 at 31 [Sur. Ct., Kings County 2017]).¹

The standard for whether a decree of guardianship should issue in the first instance for an intellectually and/or a developmentally disabled person is set forth respectively in SCPA §§ 1750 and 1750-a. In accordance with the statutory provisions, a determination must be made by the court that the individual has an "impaired ability to understand and appreciate the nature and consequences of decisions which result in such person being incapable of managing himself and/or his affairs by reason of intellectual disability [and/or developmental disability] and that such condition is permanent in nature or likely to continue indefinitely."

SCPA § 1759 states that a person for whom an article 17-A guardianship has been established may petition the court to have the guardianship dissolved. To have guardianship letters revoked, an article 17-A ward, such as Reed, bears the burden of establishing that the guardianship is not in his best interest, with the determination of what is in his best interest committed to the court's discretion (see SCPA § 1751 ; SCPA § 1750-a ; see also Matter of Michael J.N. , 58 Misc. 3d 1204(A) ).

In determining whether the termination of a guardianship is in the best interest of the individual, courts have considered whether it is the least restrictive means to preserve and protect the rights of the person (see Matter of Michael J.N. , 58 Misc. 3d 1204(A) ).²

There are only a few reported cases in which a decree of § 17-A guardianship has been revoked and an individual restored to his full rights under the law. For example, in Matter of Stephen S.C. , 63 Misc. 3d 725, 98 N.Y.S.3d 381 [Sur. Ct., Westchester County 2019] ), this court...