Guardianship of D.S.S.

• Court: Massachusetts Appeals Court
• Decided: May 24, 2023
• Docket: 22-P-0651
• Status: Unpublished

Opinion

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

22-P-651

GUARDIANSHIP OF D.S.S.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a trial on a petition for guardianship filed by

the mother of D.S.S., a judge of the Probate and Family Court

issued a decree appointing Attorney Karen Sandler as sole

plenary guardian of the mother's incapacitated son. The mother

appeals from the decree. Among other arguments, the mother

contends, in essence, that Attorney Sandler is not suitable for

the sole guardianship over D.S.S. We affirm.1

Background. At the time of trial, D.S.S. was a twenty one

year old "mentally retarded person" and an "incapacitated

person" as such terms are defined in G. L. c. 190B, § 5-101 (9)

and (12), and "remain[ed] in need of a plenary guardian."

D.S.S. suffered from diagnosed "moderate intellectual disability

and autism spectrum disorder," was nonverbal, and received

services from the Department of Developmental Services (DDS).

1 We acknowledge receipt of the mother's April 24, 2023 letter to this court. On June 8, 2018, the mother filed a petition for

guardianship of D.S.S., along with an ex parte motion for

appointment as his temporary guardian, for D.S.S. to undergo a

dental procedure requiring anesthesia. An order entered

appointing the mother temporary guardian of D.S.S. on June 12,

2018, and the dental procedure went forward. The temporary

guardianship order was set to expire on September 26, 2018, with

a review hearing scheduled for the same day. DDS filed a notice

of appearance, an objection to the mother's appointment, and a

supporting affidavit.2 At the review hearing, the temporary

guardianship was modified by agreement of the parties and the

court appointed the mother and Attorney Sandler as temporary

coguardians of D.S.S. In 2019, a guardian ad litem (GAL) was

appointed to investigate and evaluate whether the mother was an

appropriate and suitable candidate for appointment as D.S.S.'s

sole guardian. The matter went to trial in November 2021.3 In

her thoughtful and comprehensive posttrial findings of fact and

rulings of law, which need not be repeated in detail herein, the

judge concluded that although the mother "loves her son" and

2 As the judge found, "[t]here is a significant history of problematic behavior by [the mother] with her son, including resulting reports to the Disabled Persons Protection Commission (DPPC) that demonstrate her lack of understanding of her son and his capabilities." 3 Counsel was appointed for D.S.S. at DDS's request. D.S.S.'s counsel "represented that he does not believe [the mother] is an appropriate or suitable guardian for her son, [D.S.S.]"

2 "tries in her own way to do what is best for him," the mother

does not truly understand or accept the nature of D.S.S.'s

disabilities and is not a suitable guardian for him. The judge

also determined that Attorney Sandler is a suitable guardian who

has significant experience as an "advocate for persons with

intellectual disabilities and has been serving as a guardian for

several individuals served by DDS." The judge appointed

Attorney Sandler as D.S.S.'s sole guardian.

Discussion. In her brief, the mother takes exception to

the GAL's reports, claims that Attorney Sandler is not a

suitable guardian for D.S.S., intimates that Attorney Sandler is

using D.S.S. as a profit center and has bullied the mother, and

complains that a DDS coordinator has engaged in "constant

bullying," threats, and "psychological terror to the entire

family." The mother's briefing is legally inadequate. She

fails to cite to any case law, statutes, or other legal

authority to support her arguments. Accordingly, the claims do

not rise to the level of appellate argument and are deemed

waived. See Mass. R. A. P. 16 (a) (9) (A), as appearing in 481

Mass. 1628 (2019); Tobin v. Commissioner of Banks, 377 Mass.

909, 909 (1979).

Even assuming, arguendo, that the mother's arguments were

sufficiently stated in her brief, there is nothing in the

appellate record demonstrating that any of the judge's findings

3 are clearly erroneous or that she abused her discretion in

determining that the mother is not a suitable guardian while

Attorney Sandler is.4 See generally G. L. c. 190B, §§ 5-305,

306, 309. See also Guardianship of Bassett, 7 Mass. App. Ct.

56, 64 (1979). To the contrary, the judge's ample findings have

support in the record and show that the judge carefully weighed

the evidence and effectuated D.S.S.'s best interests. See

Guardianship of B.V.G., 474 Mass. 315, 321 (2016) ("guardianship

proceeding is designed to effectuate the best interests of the

incapacitated person"). Accordingly, we affirm the decree of

guardianship.5

Decree affirmed.

By the Court (Neyman, Sacks & Hodgens, JJ.6),

Clerk

Entered: May 24, 2023.

4 As the judge noted and we have no doubt, the mother loves her son and wants what is best for him. Nothing stated herein should be construed to suggest otherwise. 5 To the extent we do not discuss other arguments made by the

mother, they have not been overlooked. "We find nothing in them that requires discussion." Commonwealth v. Domanski, 332 Mass. 66, 78 (1954). 6 The panelists are listed in order of seniority.