In re Marmol

168 Misc. 2d 845, 640 N.Y.S.2d 969, 1996 N.Y. Misc. LEXIS 92
New York Supreme Court·Decided February 16, 1996·Published·Cited by 5 cases

Opinion

OPINION OF THE COURT

Robert D. Lippmann, J.

This is a petition brought under article 81 of the Mental Hygiene Law for the appointment of a guardian of the person and the property of Adonis Pineda, an infant. Included in the petition is an application for withdrawals from Adonis’ personal injury fund for payment of extraordinary expenses as well as his necessities. Article 81 is an adult guardianship law. Its provisions contemplate the incapacitated person to be self-supporting. The question presented by the instant application, therefore, is whether an infant incapacitated person should likewise be expected to be self-supporting.

Adonis Pineda was born November 27, 1988. Before his first birthday, on October 12,1989, he was struck by a vehicle which nearly severed his leg and left him mentally retarded, probably for life. Now seven years old and physically robust, he speaks but a few words, lacks judgment commensurate with his age, is constantly in motion but so totally lacking in an awareness of danger that he must be constantly supervised. As a result of the same accident, his mother, Allison Marmol, petitioner herein, was also injured. Her knees were crushed and she suffers from short-term memory loss.

An action on behalf of Adonis was settled for $5,400,000. Of this sum he has received $700,000 and will continue to receive $98,218.75 semiannually until September 1, 2023, when he will receive a lump sum of $3,143,000. There is presently $627,657.56 in his account.

Allison Marmol’s action was settled for $1,500,000. To date she has received $477,000 and will continue to be paid $17,137.50 semiannually for 23 years when a lump sum of $457,000 will be turned over to her. She has presently in her account $331,000.

Adonis’ father, Fausto Pineda, was incarcerated in a Federal correctional facility shortly after his son’s birth and while he has since been released, he earns too little from part-time employment to contribute to his son’s support. Moreover, since the Immigration and Naturalization Service has commenced deportation proceedings against him, he is not a viable source of support.

[847]*847Ms. Marmol is now married to Mario Pena, who, as Adonis’ stepfather, has no legal obligation to support him. Upon settlement of her case, Ms. Marmol went off the public assistance roll and now supports her family, which includes not only Adonis but also her two other children by Mario Pena. She anticipates substantial medical expenses for treatment of various conditions stemming from injuries incurred in the 1989 accident. Petitioner and her husband wish to relocate their family, including Adonis, to Santo Domingo, Dominican Republic, where Ms. Marmol’s mother resides. Mario Pena is presently there seeking employment, but, according to Ms. Marmol, he has worked only at low-paying menial jobs.

Ms. Marilyn White, a highly experienced rehabilitation specialist, with court approval, accompanied Ms. Marmol and Adonis to Santo Domingo in November 1995 to determine the availability and assess the quality and cost of various care providers. She has recommended a life care plan for Adonis, submitted with the petition, which describes the prospective treatments and therapies, the condition they aim to ameliorate, the frequency of the treatments and hours involved, the names and addresses of most of the providers (others are still to be found) and the fees demanded in estimated or exact dollar amounts. Specifically recommended are bilingual special education, physical and occupational therapy, behavioral modification therapy, treatment for attention deficit disorder, speech and language therapy, family behavioral modification, especially between Ms. Marmol and Adonis, neurological and orthopedic care, a home attendant for several hours a day, semiannual replacement of Adonis’ leg brace to accommodate his growth, the services of a rehabilitation case manager to coordinate these various programs and monitor Adonis’ progress. Also recommended are the services of an accountant, and as may be necessary, those of legal counsel.

Petitioner’s application for withdrawals covers the cost of all of the above. She also seeks to use the infant’s funds for routine pediatric and dental care and for the purchase of an automobile, to be replaced every eight years, plus the cost of maintenance and mileage. In addition it is also requested that $125,000 of Adonis’ money be used towards the purchase of a ranch-style house with amenities to accommodate his disability.

By its July 27, 1995 order granting interim relief after a hearing, this court appointed Allison Marmol guardian of the person and Rebecca Rawson, Esq. temporary coguardian of the [848]*848property of Adonis Pineda, with authority under article 81 to withdraw from Adonis’ funds "expenses reasonably necessary to maintain the IP” (incapacitated person).

The purpose of article 81 of the Mental Hygiene Law, which became effective April 1, 1993, was to create a guardianship law to meet the needs of elderly persons afflicted with the various, too-bountiful ills that flesh is heir to. As expected, the vast majority of cases reported to date involve the aged, but nothing in the statute precludes its use for the young. A guardian may be appointed for anyone, of whatever age, who is functionally disabled to make a decision affecting his or her life. The provisions of article 81 authorize the guardian to use the assets of the incapacitated person for the maintenance of that person. {See, Mental Hygiene Law §§ 81.02, 81.21 [a]; §§ 81.16, 81.20 [a] [6] [iv].) Tailored to the needs of the incapacitated adult, the statute does not address the unfortunate circumstance where, as here, the incapacitated person is an infant, and it is therefore silent with respect to the obligations and responsibilities of the parents to the incapacitated child.

The instant petition presents a rare instance of the relatively new statute being applied to a minor and is the first to raise the question of the appropriateness of using a child’s assets for his support.

Petitioner could have chosen to seek the relief she requests either under Mental Hygiene Law article 81 or CPLR article 12. Article 12 is generally used to hold the proceeds of an infant’s personal injury settlement until he reaches his majority, the parents being legally obligated until then to pay for the child’s support. (See also, Domestic Relations Law § 32; Family Ct Act § 413.) Only in the rare case where an infant is not expected to reach competence upon attaining his majority are those funds held under article 81 "to insure maximum protection”. (Matter of Ramos, 111 Misc 2d 1078, 1079 [Sup Ct, Bronx County 1981].) As regards an infant, neither the obligations of parental support nor the protective mantle of the court is swept aside or in any way diminished by the election of article 81 as the vehicle for the appointment of a guardian and the application for withdrawals from the infant’s account. The provisions of article 81 and of CPLR article 12 must be brought into logical harmony where an infant becomes the subject of an article 81 proceeding, since the child’s right to parental support is not thereby forfeited, nor as a result is public policy to protect the welfare of children cast aside.

Accordingly, casé law developed under CPLR article 12, under which are brought applications for withdrawals of infant [849]*849funds, warrants review. The matters that should be considered when such withdrawals are requested are fully set forth in DeMarco v Seaman

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In re Marmol, 168 Misc. 2d 845, 640 N.Y.S.2d 969, 1996 N.Y. Misc. LEXIS 92 (N.Y. Super. Ct. 1996).

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