In June 2011, Kim Maguire commenced the instant proceeding seeking an order appointing her and Philip Walsh as co-guardians of the person and property of their daughter, Shannon Walsh, a/k/a/ Shannon Patricia Walsh ("ward"), a mentally retarded and developmentally disabled person. Subsequently, Mr. Walsh withdrew his consent and filed to become sole guardian. The mother, Ms. Maguire, cross-petitioned for sole guardianship. The Court appointed Mental Hygiene Legal Services ("MHLS"), as the ward's guardian ad litem in the instant proceeding and ordered forensic evaluations of all parties. The matter was then transferred to this Part on July 12, 2012.

Ms. Maguire has been represented by counsel throughout these proceedings. Mr. Walsh was initially represented by counsel in these proceedings, however, Mr. Walsh's latest attorney, Ms. Most, moved to withdraw as his counsel, and her motion was granted. Mr. Walsh did not retain subsequent counsel and a hearing was held on the parties' cross-petitions for sole guardianship with him proceeding on a pro se basis.

The Hearing

Court Exhibit 1, the forensic evaluation of the parties by Dr. McKay, was admitted in evidence as was Court Exhibit 2, the Affirmation of Dr. Barbi Volk attesting to Shannon's disabilities ^[FN1].

Ms. Maguire testified in support of her petition for sole guardianship of the ward, Shannon. Shannon was born on August 26, 1993. She stated that she and Mr. Walsh, Shannon's father, divorced in 1995 and that Shannon has lived with her since that time. The parties also have a son, Shane, who was born in 1993, and who also resides in the home with Ms. Maguire, along with her partner and Shannon. Ms. Maguire works as a Lieutenant for the New York City Police Department, where she has been employed for 30 years. Her hours are approximately 9 a.m. to 5:30 p.m.. She also hires a caregiver to help with picking up Shannon from her after school program.

Ms. Maguire explained that Shannon has both Down Syndrome and Autism and functions at approximately the level of a 12 to 18 month old. She is nonverbal and has about 5 different signs she is able to make to indicate wants and needs. In addition, Shannon has a number of ongoing medical issues. Ms. Maguire has located all the doctors Shannon sees and has coordinated her medical care throughout her life.

Shannon has a seizure disorder for which she regularly sees a pediatric neurologist. She is prescribed medication to control the seizures. Ms. Maguire further testified that Shannon also has vision problems, particularly decreased vision in her [*2]right eye. She has been taking her to a pediatric eye specialist, Dr. Afran, every 9 months. He had prescribed eye glasses for her, but when Shannon presented with behavioral issues keeping the glasses on, he said it was not necessary she wear them. He felt it was more important to focus on her learning new tasks than to focus on her keeping her glasses on.

Ms. Maguire continued that Shannon also has had chronic ear infections, which she stated is common in people with Down Syndrome. Shannon previously had tubes surgically inserted into her ears, but they fell out over time. Currently, the doctor has instructed Ms. Maguire to wash out Shannon's ears twice a day with vinegar and alcohol, and since she has been doing this, there have been no further infections. Shannon also has Hashimoto Syndrome, a form of hypothyroidism, for which she takes prescription Synthroid. Ms. Maguire takes her to an endocrinologist every 3 to 6 months to follow up on this medical issue.

Ms. Maguire explained that Shannon also has serious cardiac issues. Shannon was born with both an atrial septal defect and a ventricular septal defect, which required her to have heart surgery when she was 6 months old. Shannon sees a cardiologist regularly, who has also required that a pacemaker be placed in her heart. The pacemaker had to be replaced approximately 2 years ago, involving a surgical procedure. Ms. Maguire takes Shannon to a dentist at WIHD, a center where they have special needs dentists. Shannon has resisted opening her mouth for dentists so all dental work has to be done under anesthesia, and consequently is only done periodically. She has no current dental issues.

With respect to Shannon's developmental disability, Ms. Maguire has taken her for regular evaluations at the Kennedy Krieger Institute in Baltimore, Maryland. There, she sees Dr. Capone who specializes in patients with both Down Syndrome and Autism. He has prescribed Shannon medications for anxiety and obsessive compulsive disorder. He also referred her to a sleep specialist for her sleep apnea, which occurs because of the decreased muscle tone associated with Down Syndrome. In addition, Ms. Maguire has arranged for other therapies to benefit Shannon, including applied behavior analysis to assist with daily living skills, Tomatis auditory music therapy and dance therapy. Ms. Maguire stated that she has paid out of pocket for all of these additional therapies since they are not covered by insurance.

Ms. Maguire detailed the daily routine she has with Shannon, including the considerable assistance Shannon requires with her daily living skills. Shannon has been toilet trained for the past 2 to 3 years but requires some toileting assistance. She requires total hand over hand assistance showering, and requires her food to be chopped up into small bites or pureed. In addition, Shannon requires supervision at all times as she has no awareness of danger, including such things as cars, hot ovens or strangers. She currently attends school at the Pinesbridge BOCES program and an after school program, but will age out of these programs in August 2014, at 21 years of age. Ms. Maguire plans to seek out an adult day program for Shannon for after she ages out.

Ms. Maguire testified that she and Mr. Walsh divorced because of emotional and physical abuse he inflicted upon her, including his choking and hitting her. Since that time, he has often made complaints about her care of Shannon to others, including [*3]filing a CPS report and reporting her to the County Adult protective services. These reports were returned as unfounded. He has also made complaints to her job on at least 5 occasions, as to how she has packaged medications for Shannon. Mr. Walsh only attended a handful of doctor appointments with her and Shannon before this guardianship proceeding was filed. He also had taken Shannon out of school on one occasion to visit a new doctor, without informing Ms. Maguire. She acknowledged, on cross-examination, that Mr. Walsh had been present when Shannon had ear surgery in 2012.

With leave of the Court, Ms. Maguire also made a claim for payment of unreimbursed medical bills for Shannon which Mr. Walsh was required to pay under their divorce agreement. Letters from Ms. Maguire's attorney to Mr. Walsh detailing the unreimbursed medical expenses she seeks to collect dated May 10, 2013 and May 21, 2013, in the amounts of $2,686.94 and $194.15 were admitted in evidence.

Mr. Walsh testified in support of his petition seeking sole guardianship of Shannon. He stated that he and Ms. Maguire divorced in June 1995, and that she was granted sole custody of their two children, Shannon and Shane. He testified at length as to the troubles that led to their divorce, many involving her parents. He stated that since that time, he has not been regularly updated on Shannon's medical condition. In addition, he asserted that Ms. Maguire wanted to put Shannon up for adoption at 3 months of age.

Mr. Walsh described his weekend visitation times with Shannon. He typically would pick her up, they would go to Central Avenue in Yonkers, where he would take her to Pathmark to shop. She would buy yogurt, picking it out and paying for it. They would proceed on to Dunkin Donuts, where she would eat the yogurt with a muffin. He would then take her to the bathroom where she would wipe herself with baby wipes he provided. He would then take her to the library to read books, color and do stickers. After this, they would head to the park to feed the ducks or walk around. Then he would take her to Boston Market for lunch, using baby wipes to clean her face after eating. He stated that Shannon does not know how to wipe after a bowel movement so he would do that for her.

Mr. Walsh stated that he wants the best for Shannon, and claimed that Ms. Maguire would put her in a group home. However, when asked what his plans would be for Shannon's care after his death, he responded that he would look for day programs and group homes for her.

With respect to payment for unreimbursed medical expenses that Ms. Maguire is seeking in this proceeding, Mr. Walsh acknowledged that under their divorce agreement, he is responsible to pay for 50% of the unreimbursed medical expenses for Shannon Walsh. However, he claimed that many of the medical bills were in the name of "Shannon Maguire," and that he refused to pay for any bills under this name. He admitted having received the bills set forth in Petitioner's exhibits 1 and 2 from Ms. Maguire's attorney, and that the name on those bills was Shannon Walsh. The amounts as stated in those bills was $2,686.94 and $194.15. Ms. Maguire responded in her testimony that she never changed Shannon's last name to Maguire and never filled out any paperwork to that effect.

Mr. Walsh called his mother, Rosanna Walsh to testify. She stated that she had [*4]gone on vacations with Mr. Walsh and Shannon. She testified that she had stayed at Mr. Walsh's home for one week in order to potty train Shannon.

The report of Dr. Ray Griffin who evaluated Mr. Walsh for alcohol abuse and found no evidence of dependency was admitted in evidence. Mr. Walsh also testified that he smokes on occasion, but does not do so around Shannon.

The guardian ad litem stated his position at the hearing that sole guardianship should go to the mother, Ms. Maguire, as the person best suited to care for Shannon and manage her needs.

Discussion and Conclusion

Based upon the uncontroverted medical certifications submitted in support of the petitions, the Court finds that Shannon is a mentally retarded and developmentally disabled person in need of the appointment of a guardian under SCPA Article 17-A (SCPA §1754 (5); Matter of Colette G., 221 AD2d 440 (2d Dept 1995)). As in all guardianship cases, the person appointed must be capable of promoting the best interests of the ward. "In determining what constitutes the best interest of an individual under Article 17-A of the SCPA, the Court must consider the emotional needs of the incapacitated individual, her physical and intellectual needs, and the limitations imposed upon her as a result of her disability" (Matter of Stevens, 17 Misc 3d 1121(A) Surrogate's Ct, NY Co. 2007)).

Upon consideration of all the testimony and evidence presented at the hearing, including the forensic report of Dr. McKay, this Court finds that it would be in Shannon's best interests to appoint her mother, Kim Maguire, as the sole guardian of her person and property (SCPA §1754 (5); see also Guardianship of Kevin Z., 105 AD3d 1269 (3d Dept 2013)). Ms. Maguire has been the primary caretaker of Shannon throughout her life, managing her complex medical care and special needs with utmost diligence and caring. It was clear to the Court that she has done and continues to do every thing possible to benefit Shannon.

Mr. Walsh chose not to join Ms. Maguire in her initial petition for co-guardianship, instead moving that he alone be appointed Shannon's sole guardian. He did so in spite of the fact that Shannon has not lived with him since his divorce from Ms. Maguire in 1995, and the fact he had never been closely involved with her medical care or education until the filing of the petition. Based upon all of the evidence and testimony, as well as his demeanor at trial, it is questionable whether he would be able to competently manage all of Shannon's special needs and to coordinate the complex medical care she requires.

Further, it was disturbing to the Court that Mr. Walsh has accused Ms. Maguire of neglect of Shannon's medical care by reporting her to CPS and by making complaints at her place of employment on a number of occasions, although he had not been consistently or closely involved with such care. There is every indication that Ms. Maguire has adeptly managed Shannon's complex medical needs and daily care, and it appears to the Court that Mr. Walsh has accused her of mismanagement based upon his own lack of understanding or information. He has created unnecessary conflict with Ms. Maguire over Shannon's care.

Although Mr. Walsh appears to care about his daughter, he presented in Court as unreasonably angry and spiteful towards Ms. Maguire. Moreover, there was clear [*5]evidence that Mr. Walsh has not paid unreimbursed medical expenses that he owes for Shannon.

Based upon all prior proceedings, it appears to the court's satisfaction that the ward is a mentally retarded and developmentally disabled person within the provisions of SCPA article 17-A. Accordingly, sole letters of guardianship of the person and property of the ward shall issue to petitioner Kim Maguire. Further, as stated in Ms. Maguire's petition, her appointment of Shane Walsh, Shannon's brother, as a standby guardian is also approved and such decree shall issue. An inquiry has been filed with the New York State Central Register of Child Abuse and Maltreatment, and neither of the proposed guardians have been the subject in an indicated report of child abuse and maltreatment (SCPA §1706[2], 1761).

With respect to visitation, Mr. Walsh's current visitation schedule with Shannon shall continue, on Saturdays from 10 a.m. to 5 p.m, with pick-up and drop-off at the State Police trooper barracks parking lot in Somers.

Ms. Maguire's motion for entry of a judgment against Mr. Walsh for outstanding unreimbursed medical expenses for Shannon is granted in the amount of $2,881.09 ($2,686.94 plus $194.15). Submit judgment.

Decree signed.

Dated:White Plains, NY

November 22, 2013

_________________________________

HON. SUSAN M. CAPECI

Acting Westchester County Surrogate

Mentally Retarded and Developmentally Disabled Person