In re J.D.S.
| Decision Date | 01 October 2020 |
| Docket Number | 2018-3436/A |
| Citation | 137 N.Y.S.3d 621,70 Misc.3d 556 |
| Parties | In the MATTER OF the PROCEEDING FOR the APPOINTMENT OF A GUARDIAN FOR J.D.S., Pursuant to SCPA Article 17-A and for Determination of Jurisdiction Pursuant to Article 83 of Mental Hygiene Law. |
| Court | New York Surrogate Court |
The petitioners are represented by Littman Krooks LLP
Respondent Brenda is represented by The Law Office of Barry E. Janay PC and (pro hac vice) Salines-Mondello Law Firm, PC
And respondent JDS, is represented by his Guardian ad litem, The Disability and Civil Rights Clinic at Brooklyn Law School
After a hearing and written summations in this contested proceeding for the guardianship of the person of J.D.S. pursuant to Article 17-A of the New York Surrogate's Court Procedure Act ("SCPA"), the court must decide the threshold issue of whether it should exercise jurisdiction over this guardianship proceeding or if North Carolina, where a proceeding for guardianship was also commenced, is the more appropriate forum (New York Mental Hygiene Law ("MHL") § 83.23[c] ).1
To make this jurisdictional determination, section 83.23(c) of the MHL provides that the court:
"shall consider all relevant factors, including: 1. any expressed preference of the respondent; 2. whether abuse, neglect or exploitation of the respondent has occurred or is likely to occur, and which state could best protect the respondent from the abuse, neglect or exploitation; 3. the length of time the respondent was physically present in or was a legal resident of this or another state; 4. the distance of the respondent from the court in each state; 5. the financial circumstances of the respondent's estate; 6. the nature and location of the evidence; 7. the ability of the court in each state to decide the issue expeditiously and the procedures necessary to present evidence; 8. the familiarity of the court of each state with the facts and issues in the proceeding; and 9. if an appointment were made, the court's ability to monitor the conduct of the guardian or conservator."
At the hearing, the court sought to hear from respondent, J.D.S., as to two of those factors in particular: (1) respondent's preference as to forum; and (2) whether abuse, neglect or exploitation of respondent has occurred or is likely to occur, and which state could best protect respondent ( MHL § 83.23[c][1] and [2] ).
Article 83 of the Mental Hygiene Law is New York's enactment of the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act (UAGPPJA), and became effective in April 2014. The purpose of a uniform process to resolve jurisdiction issues in guardianship proceedings when two states have connections with the individual over whom guardianship is sought is self-explanatory: providing a more streamlined and predictable process, saving state funds and conserving judicial resources, and reducing the possibility for abuse and expense of the alleged incapacitated person and that person's family and caretakers (NY Bill Jacket, 2013 AB 857, ch 427).2 The UAGPPJA has been enacted in the majority of states in the country.
This court's research has found no case law analyzing and weighing the statutory factors relevant to an appropriate forum determination. It is clear, however, that the court must consider each relevant factor in making its determination ( MHL § 83.23[c] []; see Steen-Jorgensen v. Huff , 352 Ga App 727, 731, 835 S.E.2d 707 [2019] []).
A consideration for courts determining the issue of appropriate jurisdiction "is whether the forum in which the litigation is to proceed has optimum access to relevant evidence" ( P.M. v. M.G. , 65 Misc. 3d 1218 [A], 119 N.Y.S.3d 391 [Fam. Ct., Westchester County 2019], quoting Paderno v. Shvetsova , 96 A.D.3d 762, 763, 945 N.Y.S.2d 761 [2d Dept. 2012] []; see footnote 2, supra ; Veen v Golovanoff , 169 A.D.3d 804, 94 N.Y.S.3d 137 [2d Dept. 2019] ; see Hassan v. Silva , 100 A.D.3d 753, 754, 953 N.Y.S.2d 677 [2d Dept. 2012] ). Fundamentally, doctrines and principles used by the court to determine proper jurisdiction are equitable in nature, and the court's focus must be on justice, fairness, and convenience ( P.M. v. M.G. , 65 Misc. 3d 1218 [A], 119 N.Y.S.3d 391, supra ).
A determination of appropriate forum has been said to "depend[ ] on the specific issue(s) to be decided in the pending litigation" ( Matter of Helmeyer v .Setzer , 173 A.D.3d 740, 743, 105 N.Y.S.3d 541 [2d Dept. 2019], quoting Matter of Snow v .Elmer , 143 A.D.3d 1217, 1218, 40 N.Y.S.3d 255 [3d Dept. 2016] ) and the factors should be viewed "in light of" those issues ( Matter of Snow , 143 A.D.3d at 1218, 40 N.Y.S.3d 255 []). In the underlying guardianship application in this matter, the substantive issue to be decided is whether the best interests of J.D.S. would be promoted by the appointment of a guardian of his person and, if so, who should be appointed as guardian(s). Incident to such a determination is the need to consider that the court making such an appointment should be well positioned to exercise a degree of supervision over the resultant guardianship.
The pertinent factors must be examined here in the context of the following background.
The opposing parties in this proceeding are the divorced parents of the 35-year-old respondent, J.D.S. Petitioners, Stephen (J.D.S.'s father) and Dana (Stephen's wife and J.D.S.'s stepmother), filed the instant petition seeking their appointment as guardians of the person of J.D.S. in this court in early September 2018, along with a petition for a determination that New York is J.D.S.'s home state. The petition also seeks an order that would in effect stay proceedings for the guardianship of J.D.S. in North Carolina and assert this court's jurisdiction over proceedings for guardianship of J.D.S. The respondents in this court are J.D.S. and Brenda, J.D.S.'s mother. There has been significant litigation between July 2018 and now, in both the North Carolina court (the Superior Court for New Hanover County in North Carolina) and this court, with the result being, as aforementioned, that New York has been determined to be J.D.S.'s home state and that North Carolina is a significant-connection state.
It is undisputed that, at the time Stephen and Dana filed their petitions in this court, J.D.S. was living with Brenda in North Carolina and that he had been there since mid-July 2018. For the prior two years, from June 2016 until mid-July 2018, however, J.D.S. had lived with Stephen and Dana in New York City.3 The circumstances resulting in J.D.S.'s return to North Carolina are a point of conflict between J.D.S.'s parents. It is undisputed, however, that prior to J.D.S.'s move to New York City in June 2016, he had been living with Brenda for the vast majority of his life, and for much of that time in North Carolina.
The record reflects that petitioners prepared some of the guardianship paperwork ultimately filed in this case prior to J.D.S.'s departure from New York City, but that Stephen first filed a petition for guardianship in North Carolina in July 2018 after J.D.S. left New York City with Brenda. The record further reflects that thereafter Brenda also filed a petition for guardianship in North Carolina and that her proceeding was later consolidated with Stephen's. The proceedings in this court were originally scheduled to be heard in November 2018, and a few days before, this court received correspondence from a Clerk in North Carolina, indicating that, following a hearing, the North Carolina Court had entered an order on jurisdiction finding North Carolina to be a "Significant-Connection State" pursuant to the guidelines of UAGPPJA, but noting that the same guidelines provided for New York as the home state.
At the initial appearance before this court, after a lengthy conference, the parties agreed to explore alternatives to litigation, but they were, unfortunately, unsuccessful in resolving their dispute. Following the filing of the reports of the guardian ad litem appointed by this court to represent the interests of J.D.S., and various motion practice, the court conducted this hearing to receive the testimony of J.D.S., who appeared via Skype video conference from North Carolina. During part of J.D.S.'s testimony, Brenda and her attorney were also present in the room. After a concern was raised, Brenda left the room, and only her counsel remained, along with J.D.S.
Upon the record before the court, including the testimony of J.D.S., the court makes the following findings regarding the factors listed in MHL § 83.23(c).
After hearing from J.D.S., including his responses to questions by counsel for petitioners, counsel for Brenda, and his guardian ad litem, the court credits his repeated, unequivocal expressed preference to stay in North Carolina and not to return to New York. The court rejects co-petitioners' argument that this preference is the product of undue influence by Brenda upon J.D.S. and is not reliable. In addition, inaccuracies or inconsistencies in his recollections or other information he provided do not warrant a conclusion that he lacks capacity to form and state his preference. The guardian ad litem, who traveled to North Carolina and conducted an in-person private interview with J.D.S., similarly concluded that J.D.S. is capable of and did clearly...
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