OPINION OF THE COURT
KRISTIN BOOTH GLEN, S.
This case presents the opportunity to reconcile an outmoded,
History
On March 9, 2009, Cruz Maria S. filed a petition
On March 29, 2009, Dameris married Alberto R. at the Office of the Clerk in Kings County. Alberto had problems of his own, including a history of drug and substance abuse, mental illness and criminal charges.
In mid-May 2009, Cruz came to the court and requested expedited consideration of her petition because, she explained, Dameris was pregnant and due to give birth imminently. A hearing was immediately scheduled for May 20 and, on that date, Alberto appeared and informed the court of his recent marriage to Dameris. It was clear that this was now a struggle over control of Dameris between Cruz, who entirely disapproved of, and distrusted, Alberto, and Alberto, who had the same negative feelings about Cruz. Dameris, very visibly pregnant, showed flat affect, spoke haltingly and in a limited way, and, on all of the evidence adduced at the hearing, appeared incapable of caring for herself and her soon to be born baby.
None of the parties spoke English; both households, Cruz's and Alberto's, were supported entirely by government benefits including Supplemental Security Income (SSI).
After an extremely helpful report from Garcia, the parties returned to court with the primary issue that of responsibility
The case was adjourned with the guardianship clerk and a court attorney charged with following developments and monitoring the mediation agreement. On June 10, 2009, the baby, Damaris Cruz R., was born at Brooklyn Hospital, and Dameris and Alberto returned with her to Cruz's apartment. Eventually, with some intermediate stops,
Despite some intermittent problems, things were going relatively well for the R. family until, as a result of the budget crisis, the subsidy program was cancelled, and Dameris and Alberto faced eviction.
On January 17, 2012, Alberto petitioned to revoke Cruz's letters as co-guardian, returnable February 9, 2012. Cruz, who was served by substituted service, did not appear. At a special calendar, Alberto presented a proposed lease for a home in Pottsville, and applications for benefits and services he had filed with Service Access & Management (SAM), a case management and crisis intervention service funded by Schuylkill County.
The court was able to reach the director of SAM by phone, and to fax certain records on file here that were necessary to process the applications. With this assurance, and in the absence of any viable housing alternative in New York, the court temporarily suspended Cruz's letters and granted permission for temporary relocation to Pennsylvania. Alberto and Dameris were directed to return to court on December 4, 2012, by which time it was expected that Cruz would have returned to New York.
On December 4, 2012, all parties appeared, together with the now almost three-year-old Damaris (nicknamed Chi Chi) and Alberto's nine-year-old daughter Bianca.
Dameris appeared much more confident and dealt appropriately and lovingly with both Chi Chi and Bianca. She revealed that she was, again, pregnant, although she and Alberto also informed the court that she planned to undergo a tubal ligation immediately after the baby was born. Questioned by the court, it was clear that Dameris understood what she had consented to, and why; she explained that she had made her decision after consultation with Alberto, the health care professionals, and Margarita, who had fully explained the procedure to her. Concerned about the availability of homemaking and child care services that Dameris would surely need when the new baby was born, the court continued the hearing to December 12 in order to obtain more information.
Dameris had become friendly with nearby neighbors, who were assisting her in various ways, and whom she and Alberto had asked to serve as the new baby's godparents. Alberto's cousin's wife, Margarita, was a constant presence in the household, explaining and translating for Dameris, and helping her make everyday decisions, as well as more significant decisions such as the tubal ligation. With Ms. Hessron's assistance, Dameris was enrolled in a literacy class; Hessron had also become part of Dameris's support network. Cruz and Alberto had resolved most of their difficulties, and the advice and assistance Cruz offered Dameris in frequent phone calls was now welcomed and incorporated. Alberto had shown remarkable resiliency and perseverance settling his family and dealing with a number of health issues for his mother and his two daughters. His relationship to Dameris, while always loving, had clearly evolved, and they now presented as far more of a partnership than as a guardian and his ward.
Between the 12th and the continued hearing on the 19th, the court attorney assigned to the case spoke with Dameris's prenatal health care provider and with Ms. Hessron.
On the 19th, Cruz and Alberto appeared, accompanied by the prospective godfather, Raul Eusebio, who described his family's relationship with Alberto and Dameris, and the assistance they were — and intended to continue — providing. The court attorney testified to her conversation with Ms. Hessron, who was working diligently to get Dameris the waiver necessary for postnatal home care services, and who had also reiterated the family's
Finally, Alberto spoke about what he had accomplished with Dameris over the past eight months in their new home — the progress she had made, what a good job she was doing now with two children, and how together they had found and utilized a support system that was helping them succeed despite all the difficulties they faced. He spoke movingly of his respect for Dameris, and how he understood his role, not as deciding for her, but in assisting her in making her own decisions. At the conclusion of the hearing, for the reasons discussed below, the court terminated the 17-A guardianship of the person of Dameris L. (now R.).
Discussion
The family is now fully settled in Pennsylvania, as opposed to the temporary move the court previously authorized. As such, with Cruz suspended, and giving consent to termination of the guardianship, the court no longer has jurisdiction over Dameris. But, even if this were not the case, I would find that guardianship is no longer warranted because there is now a system of supported decision making in place that constitutes a less restrictive alternate to the Draconian loss of liberty entailed by a plenary 17-A guardianship. This use of supported decision making, rather than a guardian's substituted decision making, is also consistent with international human rights, most particularly article 12 of the United Nations Convention on the Rights of Persons with Disabilities.
A. Least Restrictive Alternative
Beginning with O'Connor v Donaldson (422 U.S. 563 [1975]), substantive due process has been understood to include a requirement that when the State interferes with an individual's liberty on the basis of its police power, it must employ the least restrictive means available to achieve its objective of protecting the individual and the community. New York courts have embraced the principle of least restrictive alternatives (see e.g. Matter of Kesselbrenner v Anonymous, 33 N.Y.2d 161, 165 [1973] ["To subject a person to a greater deprivation of personal liberty than necessary to achieve the purpose for which he is being confined
The legislature, as well, has incorporated least restrictive alternative in liberty curtailing statutes including those dealing with "assisted outpatient treatment" (AOT) (e.g. Mental Hygiene Law § 9.60 [h] [4]; [i] [3] [Kendra's Law]),
To the extent that New York courts have recognized least restrictive alternative as a constitutional imperative (see e.g. Matter of Kesselbrenner v Anonymous, 33 N.Y.2d 161 [1973]; Matter of Andrea B., 94 Misc.2d 919, 925 [Fam Ct, NY County 1978] ["substantive due process requires adherence to the principle of the least restrictive alternative"]), it must, of necessity, apply to guardianships sought pursuant to article 17-A, as well as under the more recent and explicit Mental Hygiene Law article 81. Thus, proof that a person with an intellectual disability needs a guardian must exclude the possibility of that person's ability to live safely in the community supported by family, friends and mental health professionals.
In order to withstand constitutional challenge,
B. International Human Rights
Article 12 (2) of the United Nations Convention on the Rights of Persons with Disabilities (CRPD) provides that "States Parties shall recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life." As the deliberations that accompanied drafting and passage of the CRPD demonstrated, legal capacity is not only the capacity to have rights, but also the capacity to act on, or exercise, those rights
The body created by CRPD to review and comment on compliance by States Parties with the Convention has repeatedly found that guardianship laws that impose substituted decision making on persons with mental and intellectual disabilities violate article 12, and thus the human rights of persons subjected to guardianship.
While the CRPD does not directly affect New York's guardianship laws, international adoption of a guarantee of legal capacity
As Dinerstein notes,
The instant case provides a perfect example of the kind of family and community support that enables a person with an intellectual disability to make, act on, and have her decisions legally recognized as, for example, by acceptance of her "informed consent" to a tubal ligation. Because Dameris has such assistance, she is now able to engage in supported decision making, rather than having substituted decision making, in the form of guardianship, imposed upon her by the court.
The internationally recognized right of legal capacity through supported decision making can and should inform our understanding and application of the constitutional imperative of least restrictive alternative. That is, to avoid a finding of unconstitutionality, SCPA article 17-A must be read to require that supported decision making must be explored and exhausted before guardianship can be imposed or, to put it another way, where a person with an intellectual disability has the "other resource" of decision making support, that resource/network constitutes the least restrictive alternative, precluding the imposition of a legal guardian.
Based on all the evidence in this case, Dameris has demonstrated that she is able to exercise her legal capacity, to make and act on her own decisions, with the assistance of a support network which has come together for her since she first appeared in this court. Terminating the letters of guardianship previously granted to Cruz and Alberto recognizes them, instead, as persons assisting and supporting her autonomy, not
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