This is a contested proceeding by Ruth Grier Streety and Warren Streety, the mother and stepfather of an alleged mentally retarded person, Natalie Stevens, for their appointment as guardians of her person. The Streety's also seek authority to make end-of-life decisions pursuant to SCPA 1750-b. Nathaniel Stevens, Natalie's biological father, opposes the appointment of Mr. Streety as co-guardian and Hermana Finnie, Natalie's cousin, as standby guardian. Instead, Mr. Stevens seeks appointment as co-guardian along with his ex-wife and appointment of his current wife, Betty Stevens, as standby guardian. Although Mr. Stevens has not filed a cross-petition seeking this relief, the Court has considered the merits of his request.

A hearing was held on October 18, 2006. The following facts are undisputed and form the basis for the Court's determination that Natalie is profoundly mentally retarded within the

meaning of SCPA Article 17-A and that the appointment of a guardian(s) would be in her best interest.

Natalie was born April 23, 1973. She was diagnosed with mental retardation at the age of three. Based upon the medical certifications submitted in support of the petition, it appears that Natalie is profoundly mentally retarded, with an IQ of less than 20, and a mental age of two. She is non-verbal, and demonstrates autistic features. Dr. Susan Pincus, M.D., Mary Colimon-Pierre, Ph.D. and Alan Lerman, Ph.D., conclude, based upon various tests and clinical observations, that Natalie's "overall adaptive behavior is very low," that "she requires assistance in most of the activities of daily living,"^[FN1] and that such conditions are likely to continue indefinitely. The Court finds, based on the uncontroverted proof and on observation of Natalie at the hearing, that she is a mentally retarded person within the meaning of Article 17-A of the SCPA, and that her interests would best be served by the appointment of a guardian(s) of her person. (See SCPA 1754 [5]; Matter of Colette G., 221 AD2d 440 [2d Dept 1995]).

The more difficult and contested issue is which of the parties, would be the proper person(s) to serve as Natalie's guardian. In making such determination in a contested proceeding, the Court must exercise the highest degree of discretion (see Matter of Stuart, 280 NY 245, 250 [*2][1939]; see also Matter of Hayley M., NYLJ, June 1, 1999, at 32, col 3 [ Sur Ct, Nassau County]). As in all guardianship cases, the person appointed must be capable of promoting the best interest 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. The testimony and evidence adduced at the hearing establish that Ms. Streety and Mr. Stevens separated in 1975 and divorced shortly thereafter. Though there is some dispute as to Natalie's care during her early life, she has always resided with her mother and continued to do so after the separation.

Natalie visited with Mr. Stevens and his family on some weekends, but after an incident in which Natalie, age 7 fell down a flight of stairs, Ms. Streety limited visitation to day visits.

Between 1975 and 1987, when he moved to California, Mr. Stevens demonstrated little or no interest or participation in Natalie's education, or the programs available to her. Neither then, nor until Natalie reached her majority, did Mr. Stevens provide any financial support for Natalie. Ms. Streety was Natalie's sole and primary caretaker until she married Mr. Streety in 1987. Since then, they have lived as a family in the same apartment, the only home Natalie has ever known. While Mr. Stevens tells a slightly different story, in which he holds Ms. Streety responsible for his infrequent contacts with Natalie, he has lived in California since 1987 and has seen Natalie only sporadically when he returns to New York to visit his second's wife's family.^[FN2]

Warren Streety also testified. He is the same age as Ms. Streety, and is currently retired. He spoke of his affection for and care of Natalie and his desire and willingness to serve as her co-guardian and/or standby guardian.^[FN3]

For many years, and continuing into the present, Natalie has attended a day program run by the Association for the Help of Mentally Retarded Children (AHRC). She leaves her home at 8:00 a.m., is transported to the program, and returns at approximately 4:30 p.m. Although Natalie is entirely non-verbal, she responded positively when the Court asked about "her program." The program is important to Natalie, and concern that any extended absence might result in her losing her place in it is the reason given by Ms. Streety for denying Mr. Steven's offers to have Natalie visit with him in California.

This is, of course, not a traditional "custody" proceeding, but the person chosen as Natalie's guardian has the right to determine where she lives and whom she sees. One of Mr. Steven's reasons for applying for guardianship is, he states, his fear that as guardian Ms. [*3]

Streety would have the power to entirely exclude him from Natalie's life. However, with few exceptions, he admits that Ms. Streety has always given him access to Natalie, and she testified convincingly that she would continue to do so.^[FN4] The apparently more serious contention advanced by Mr. Stevens is his fear that Ms. Streety's "religious beliefs would interfere with her making the appropriate medical decisions that would be in the best interest of [Natalie]."^[FN5]

For many years, Ms. Streety has been a Jehovah's Witness and, as such, eschews blood transfusions.^[FN6] In accordance with the tenets of her faith, she cannot consent to a blood transfusion for herself nor would she consent to a blood transfusion for Natalie. However, she acknowledged that if medical professionals disagreed

"I know that they can overrule me and go to court and if they

decided that she needed it they would give it to her anyway

So it would be out of my hands. There's nothing I can do about

it."

As to other medical issues, including those regularly implicated in end-of-life decision making, she testified that she "had no problem."

Since at least 1968 it has been clear that, notwithstanding the First Amendment, the state has the power to override parental refusal of blood transfusion for minors where transfusion is necessary to preserve a child's life. (Jehovah's Witnesses in the State of Washington v Kings County Hosp., 278 F Supp 488 [W. Dist. Wash. 1967] affd per curiam 390 US 598 [S Ct 1968]). New York courts have not hesitated to intervene and order transfusions in life or health-threatening situations. (See e.g. Matter of Kevin Sampson, 29 NY2d 900 [1972]; Matter of Brooklyn Hosp. v Torres, 45 Misc 2d 914 [Sup Ct, Kings County 1965]; cf. Matter of Jamaica Hosp., 128 Misc 2d 1006 [Sup Ct, Queens County 1985]). Thus, were Ms. Streety given guardianship, her own personal religious reservation could - and undoubtedly would - be overcome if ever a transfusion were necessary to save Natalie's life ^[FN7]. Ms. Streety has indicated [*4]her willingness to acquiesce in such a decision if it were "[taken] out of [her] hands."

While neither side submitted evidence on the frequency with which the necessity for blood transfusions arises, the possibility that Natalie's life could be threatened by refusal of a transfusion is surely remote.^[FN8] There is no controlling case law that would prevent granting 17-A guardianship - or custody of a minor child ^[FN9]- to a parent solely because of her unwillingness to consent to a blood transfusion on some hypothetical future occasion. Rather, in the analogous area of custody the court may consider religion as one of the factors in determining the best interests but religion alone may not be the determinative factor (see Gago v Acevedo, 214 AD2d565, 566 [2d Dept 1995].) Only when physical conditions are so bad that they seriously affect the health of the children should the court intervene (see De Luca v De Luca 202 AD2d 580, 581 [2d Dept 1994] [denying father's application for custody because mother's adherence to "Jehovah's Witness religion would not allow his children to receive proper medical attention ..."]).Natalie has lived with her mother for 33 years of her life, and the issue of a blood transfusion has never arisen. It would be both unreasonable and unfair to deny Ms. Streety de jure guardianship when she has, for so long, lovingly exercised de facto guardianship without harm to her daughter. Ms. Streety's religious beliefs do not constitute a disqualification, nor should they weigh against her in any way. ( see Burkham v Burkham 273 AD 520 [3d Dept 2000]) [importance of continuity of care and residence; non-relevance of Jehovah's Witness's religious beliefs.]).

Although it appears that Mr. and Mrs. Stevens could provide a good home for Natalie, assuming there is a suitable day program for which she is eligible and in which there is a vacancy, that possibility does not outweigh the benefits of continuity, including the importance of Natalie's ongoing day program, and the certainty of the excellent care provided by the Streetys.

In the analogous area of child custody proceedings, the law is long well settled that "[a] child's welfare dictates that a shifting of custody should be avoided wherever possible." (See Matter of Kevin M., v Alice A, 50 AD2d 959, 960 [3d Dept 1975] [citation omitted]). As the First Department has held "generally, the custody of children is to be established, wherever possible, on a long-term basis. Custody is not to be shuttled back and forth between [...] parents merely because of changes in their marital status [or] economic circumstances . . ." (see Lang v Lang 9 AD2d 401, 409- 410 [1st Dept 1959] affd 7 NY2d 1029 [1960]). In the past, and sadly even today, children with disabilities as severe as Natalie's have been institutionalized and have [*5]lived shorter, less happy lives than those of which they were capable. Government financial assistance and high quality social services and programs provided by organizations like AHRC have made it possible for severely disabled persons to remain at home, to live in community with family, and to engage in the larger world outside. This happy result cannot, however, occur without the sacrifices and devotion of a loving family. Ms. Streety and, for twenty years, her husband Warren Streety, have been that family for Natalie. It is, therefore, clearly in her best interest to remain in their custody, which in turn requires that Ms. Streety be named Natalie's guardian.

This does not, however, end the inquiry. Ms. Streety has requested that her husband be named co-guardian, and that a niece ^[FN10] be named standby guardian. Both of the Streetys are 66 years of age, and Mr. Streety has several health problems. Should they be named co-guardians, and should Ms. Streety pass at some time in the future, Mr. Streety would automatically assume guardianship, even though caring adequately for Natalie might then be overly burdensome for him. Unfortunately, and unlike Article 81 of the Mental Hygiene Law,^[FN11] SCPA Article 17-A provides for no continuing oversight of guardians of the person once they have been appointed.^[FN12]In the event of Ms. Streety's death or incapacity, even many years in the future, the court would have no assurance that Natalie's best interests could be served by the guardianship of her stepfather. Accordingly, the request for co-guardianship is denied, without any finding that Mr. Streety is, in any way, unsuitable or undeserving.

By the same reasoning, however, it is important to have an appropriate person who could immediately step into the shoes of the guardian should the guardian pass or become incapable of serving. With a seriously disabled ward like Natalie, a gap in responsibility could be distressing or even dangerous. The law provides that a standby guardian may serve for up to 60 days before returning to court, either to seek permanent guardianship, or cede that responsibility to another (see SCPA 1757 [2]). [*6]

In this case, Natalie's best interests will be served by appointing her stepfather standby guardian. Because he lives with Natalie,^[FN13] and has shared her care for so long, he is the person best situated to take short-term, immediate responsibility, should Ms. Streety become unable to fulfill her functions as guardian.

With a standby guardian, who must seek permanent appointment from this Court, the court would have the opportunity to entertain an application for permanent guardianship from Mr. and Mrs. Stevens and to make a best interests determination appropriate to the circumstances as they might then exist.^[FN14] The fact that Mr. Streety has been appointed, and serve as standby guardian would not be dispositive in the event Mr. Stevens then seeks guardianship of his daughter.

Finally, Ms. Streety's request for end of life decision making pursuant to SCPA §1750-b is granted upon a finding that Natalie is incapable of making such decisions on her own, or of conveying any information about her choices or preferences, and that Ms. Streety can and will be able to exercise the statutory power in Natalie's best interests. The statute deals primarily with withholding or termination of life-sustaining treatments as defined in Mental Hygiene Law § 81.27; those treatments are not subject to any special prohibition within the tenets of the Jehovah's Witness religion. Ms. Streety testified that she would have no issue in making such decisions in Natalie's best interests. Should the issue of blood transfusion arise in the end-of-life context, the statute contains extensive procedural protection such that Ms. Streety's religious objections could be overridden if necessary and appropriate (Matter of M.B., 6 NY3d 437, 442 [2006] [describing procedural protections in a "decision making procedure that must be followed before the (withholding of treatment) decision can be carried out."])

For the reasons set forth above, and based upon the medical affidavits and the testimony adduced at trial, Ruth Grier Streety is appointed Guardian of the Person of Natalie Stevens, with end-of-life decision making authority pursuant to SCPA § 1750-b; Warren Streety is appointed Standby Guardian, without prejudice to the right of Nathaniel Stevens to apply for Guardianship should Ms. Streety become unable to serve.

Decree signed.

Dated: October 18, 2007______________________________

S U R R O G A T E