In re the Guardianship of Kevin Z.

105 A.D.3d 1269, 966 N.Y.S.2d 226

This text of 105 A.D.3d 1269 (In re the Guardianship of Kevin Z.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re the Guardianship of Kevin Z., 105 A.D.3d 1269, 966 N.Y.S.2d 226 (N.Y. Ct. App. 2013).

Opinion

Spain, J.

(1) Appeal from an order of the Surrogate’s Court of Sullivan County (McGuire, S.), entered July 13, 2011, which, among other things, granted respondent’s application, in two proceedings pursuant to SCPA article 17-A, for respondent’s appointment as guardian of Kevin Z., and (2) cross appeals from an order of said court, entered July 29, 2011, which, among other things, granted petitioner’s application for an order of visitation.

Petitioner (hereinafter the mother) and respondent (hereinafter the father) are the parents of Kevin Z. (born in 1992) whose medical diagnoses include autism, mild mental retardation and developmental delay. Kevin has lived with the father in Rock Hill, Sullivan County for most of the last decade. In May 2010, Family Court, Sullivan County, awarded the father physical custody, on consent, in a joint custody arrangement which included, among other provisions, parenting time for the mother on alternate weekends, three weeks during the summer, specific holiday time and additional time as agreed. Shortly thereafter, in anticipation of Kevin’s 18th birthday, the mother filed a petition in Surrogate’s Court, Sullivan County, pursuant to SCPA article 17-a, seeking to be appointed guardian of Kevin’s person and property and the father filed a cross petition seeking the same relief. Following a hearing, the court appointed the father as Kevin’s guardian and, in a subsequent order, granted parenting time to the mother, limited to alternate weekends. The mother now appeals from the order of guardianship and both parents appeal from the visitation order.

[1270]*1270As there is no dispute with respect to Kevin’s disabilities, Surrogate’s Court was authorized to appoint a guardian of Kevin’s person and/or property if such appointment is in his best interests (see SCPA 1750, 1750-a [1]; 1754 [5]). Initially, the parents did not object to the procedural course charted by Surrogate’s Court and do not complain of it now, although counsel for Kevin raises some concerns in that regard. SCPA article 17-A proceedings employ a best interests analysis and, as such, the court likened the present case to an application seeking to modify an existing child custody order. Partially based on the erroneous assumption that the custody order in Family Court was made after a plenary hearing, rather than on consent, the court suggested it was giving res judicata effect to Family Court’s custody “decision” that Kevin’s best interests lie in living with the father, and required the mother to “establish a change in circumstances reflecting a real need for change in order to insure the continued best interest of the child” (Matter of Dobies v Brefka, 83 AD3d 1148, 1149 [2011] [internal quotation marks and citations omitted]; see Matter of Anthony MM. v Jacquelyn NN., 91 AD3d 1036, 1037 [2012]). Generally, child custody and visitation orders are not entitled to res judicata effect, as they are subject to modification (see Matter of Robb v McIntosh, 99 AD2d 571, 571 [1984]; see also Matter of Fraczek v Syczyk, 12 AD3d 973, 975 [2004]). However, “where modification of an existing custody decree is sought, the prior decree and the circumstances on which it was based must be given due consideration because stability is in a child’s best interest” (Matter of Robb v McIntosh, 99 AD2d at 571; see Friederwitzer v Friederwitzer, 55 NY2d 89, 94-95 [1982]).

Here, it is clear that Surrogate’s Court’s best interests determination did not turn solely on Family Court’s prior ruling but, rather, the court conducted a full hearing on the petitions before it, reviewed the evidence, and concluded—based on its own best interests analysis—that the father possessed the better plan for Kevin’s future (cf. People ex rel. Charbonneau v Charbonneau, 34 AD2d 1034, 1034 [1970]). The record reflects that the father has essentially been Kevin’s guardian in his long-term role as custodial parent, and the court correctly required the mother to show that circumstances which led to the Family Court consent order had changed such that a modification of that arrangement was “necessary to protect ‘the personal and/or financial interests’ ” of Kevin (Matter of Garett YY., 258 AD2d 702, 702 [1999], quoting SCPA 1755). Inasmuch as the court undertook an appropriate and complete best interests analysis and concluded that any benefit to be gained by appointing the mother as guardian was outweighed by “the benefits of continu[1271]*1271ity, including the importance of stability in Kevin’s life, and the certainty of the care provided by” the father, the court’s use of the res judicata language was harmless.

Turning to the merits, the mother argues that she demonstrated the requisite change in circumstances and that Kevin’s best interests lie in appointing her as guardian not withstanding that he has been cared for by the father for most of the last decade. The mother cites instances she believes illustrate failings in the father’s care for Kevin, such as permitting him to wear dirty clothes, to engage in purportedly unsafe activities and allegedly delegating some of his care responsibilities to his fiancée. Much of her testimony, however, involved events that predated Family Court’s custody order and were thoroughly addressed at the hearing conducted in this proceeding. In contrast, the record is replete with proof that the mother frequently failed to visit with Kevin, was minimally engaged with his teachers and caregivers, and had no firsthand knowledge of his living conditions. The hearing testimony further suggested that the father became Kevin’s custodial parent out of necessity, in response to the mother’s difficulty coping with his behavior and inability to properly care for him, that Kevin was often agitated and disheveled when he returned from visits with the mother, and that the father felt compelled to stop the visits after the mother threatened to have Kevin committed or arrested. The father has also been actively working to place Kevin in a day program, and the mother was unable to point to anything to suggest that his plan was inappropriate or that her proposal to place Kevin in a residential group home closer to her residence would be preferable for Kevin.

Significantly, Kevin’s guardian ad litem found that the father provided appropriate care for him, raised various concerns about the mother’s “inability to accept the findings and concerns of others,” and recommended that the father be appointed guardian (see SCPA 1755). According deference to the assessments of credibility made by Surrogate’s Court, we find that the mother did not establish a sufficient change in circumstances reflecting a real need for change and that the record fully supports the conclusion that Kevin’s best interests lie in appointing his father as guardian (see Matter of Garett YY., 258 AD2d at 702-703).

The mother further asserts on appeal that, even if the father were appropriately appointed guardian, he should be monitored and required to make periodic reports to Surrogate’s Court, an issue not raised before that court and, thus, not preserved. In any event, Surrogate’s Court continues to have jurisdiction over Kevin after the appointment of a guardian, as well as jurisdic[1272]*1272tion over all matters affecting the guardianship, including the authority to take “such steps and proceedings ... as may be deemed necessary or proper” for Kevin’s welfare (SCPA 1758; see Matter of Yvette A., 27 Misc 3d 945, 950-951 [2010]). In short, the court has “continuing subject matter jurisdiction under SCPA 1758 over all

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Bluebook (online)
105 A.D.3d 1269, 966 N.Y.S.2d 226, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-guardianship-of-kevin-z-nyappdiv-2013.