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Decided on November 14, 2006
Sur Ct, Bronx County

179-G/06
The appearances are as follows: Ann G., petitioner, pro se Maria G., cross petitioner, pro se Joseph Gatti, Esq., for Boni P.G., respondent Michael A. Genkin, Esq., Principal Attorney Mental Hygiene Legal Service First Judicial
Department Lee L. Holzlman, J. The respondent's mother and sister petitioned and cross-petitioned, respectively, to be appointed the guardian of his person pursuant to Article 17-A of the Surrogate's Court Procedure
Act. The petitioner and the cross petitioner both agree that the 20-year-old respondent is mentally retarded and requires a guardian. Based upon the oral and documentary proof adduced at the hearing, including the required certifications, the report of Mental Hygiene Legal Service, Second Judicial Department, and the personal appearance and demeanor of the respondent, the court is satisfied that the respondent is a mentally retarded person within the provisions of Article 17-A of the SCPA, that he lacks the capacity to make health care decisions, and that he requires the appointment of a guardian of his person.
The petitioner, cross petitioner, and the social worker and unit coordinator for the group home testified. Both the social worker and the unit coordinator indicated that the petitioner is hostile toward everyone associated with the group home, including its personnel and residents. They stated that the petitioner insults the residents at the home and frequently fails to return staff phone calls. The petitioner, in effect, agreed with this assessment when she testified, without providing specifics, that the group home staff tried to kill her, which resulted in her voluntarily spending two months in a mental facility.
The social worker and the unit coordinator testified that they asked the petitioner on numerous occasions to talk to the respondent's physician about the medication he requires, to sign the necessary consent forms so that his impacted wisdom tooth could be pulled and other dental treatment could be provided, and to meet with his teachers because he was expelled from one school and was in danger of being removed from his present school due to his behavioral difficulties. The group home witnesses stated that the petitioner refused to address any of these issues. Instead, the petitioner called those witnesses "liars" and complained that the respondent's dental problems was the fault of the group home. Nonetheless, she did not refute that she failed to consent to dental treatment for the respondent until only recently. The group home staff and the cross petitioner want to implement the respondent's treating physician's plan to prescribe new medications for the respondent which would lessen the side effects and his agitation while attending school. To date, the petitioner has refused to authorize any medication change, and has been unwilling to discuss the issue with the respondent's treating physician.
The petitioner was told that her visits with the respondent would need to be supervised because she continued to bring him soda, candy and other food, which caused him to vomit after [*2]her visits and gain weight. Although she was asked repeatedly to stop bringing the soda and candy, the petitioner continued to do so. According to the petitioner, the respondent gained weight as a result of the medications prescribed for him, not as a result of the candy and soda she gave him. Finally, the petitioner indicates that she is not satisfied with the respondent's care in the group home, and she wants to remove him from that facility. When asked about her alternate plan for treatment and care, her response was that "I am the mother and I do not have to tell nobody."
The cross petitioner testified that, at the age of 15, she was placed in foster care when the petitioner was the subject of an indicated child abuse report. Presently 21 years of age, employed by the City of New York and a graduate of Smith College, the cross petitioner's approach to the respondent's care is radically different from the petitioner's. She testified that she would discuss all issues with the group home staff and with the respondent's doctors and teachers. She further testified that if she believed or received a report that any treatment was inappropriate, she would investigate the matter and, thereafter, would determine what was in the respondent's best interests. Both Mental Hygiene Legal Service and the attorney appointed to represent the respondent support the application of the cross petitioner as being in his best interests.
The best interests of the respondent is always the paramount consideration in a guardianship proceeding. This is so regardless of whether the application is to appoint a guardian either for an infant or for a mentally retarded or developmentally disabled person (compare SCPA 1707 [1] with SCPA 1754 [5]). Moreover, "to the extent that the context thereof shall admit," the provisions set forth in Article 17 of the SCPA, governing guardianship proceedings for infants, shall apply to SCPA Article 17-A guardianship proceedings for mentally retarded or developmentally disabled persons (SCPA 1761). The presumption that it is in the best interests of infants that their parents prevail in a contest with a non-parent in a guardianship, custody or similar proceeding may be overcome only where the non-parent establishes extraordinary circumstances (Matter of Bennett v Jeffreys, 40 NY2d 543 [1976]; Matter of Bock, 280 NY 349 [1939]; Matter of Stuart, 280 NY 245 [1939]. Considering that SCPA Article 17-A incorporates all of the SCPA Article 17 provisions that are relevant (SCPA 1761), and, also, as a matter of common sense, the presumption favoring the parent in infant guardianship proceedings is also applicable to SCPA Article 17-A guardianship proceedings where the respondent is an adult.
Here, extraordinary circumstances exist which warrant a finding that the respondent's sister, and not his mother, should be appointed guardian of his person. Although the court does not doubt that the petitioner loves her son and wants to do what she believes is in his best interests, her distrust of the group home personnel, the respondent's doctors and his teachers prevents her from making an informed decision with respect to his medical, educational and day-to-day needs. Although the petitioner's assertion that "mother knows best" is usually true, this is not the case where, as here, she takes an alternatively hostile and ostrich-like approach to her son's care and treatment needs. The petitioner's inability to cope with the needs of her daughter when a minor is now being repeated with respect to her disabled son. Specifically, the petitioner's refusal to meet with her son's doctors and teachers or to consider any of their suggestions, as well as her refusal to consider that candy and soda might not be good for her son, do not promote his best interests. [*3]
The cross petitioner's approach to the care of the respondent is the exact opposite of her mother's. Instead of distrusting every suggestion made by those charged with the respondent's daily care or refusing to meet with the respondent's doctors and teachers, the cross petitioner is willing to listen to everyone and to make an informed choice in an effort to alleviate and remedy some of his health and behavior issues.
For the reasons stated above, the cross petition is granted and the petition is denied. Letters of guardianship of the respondent shall issue to Marie G., the respondent's sister. The Chief Clerk shall mail a copy of this decision and the decree to the petitioner, the cross petitioner, the attorney representing the respondent and Mental Hygiene Legal Service for both the First and Second Departments.
Decree signed.
SURROGATE

Dated: November 14, 2006

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