Second Department, May 22, 2024

Michael J. Reilly, Garden City, for appellant.

Long Tuminello, LLP, Bay Shore (Irina M. Petersen and Karen Svendsen of counsel), for respondent.

Steven N. Feinman, White Plains, for Joseph J.D. II.

These appeals present us with the narrow question of whether a rule set forth by the Court of Appeals in Matter of Michael B. (80 NY2d 299 [1992])—that an appellate court may remit a child custody matter for a new hearing if subsequent developments reflect that the record has become insufficient to determine the issues presented—may be extended to this appeal from a Surrogate's Court decree determining a guardianship contest between the parents of an adult with a developmental disability within the meaning of article 17-A of the Surrogate's Court Procedure Act. In light of certain commonalities between this dispute and a custody dispute, including a focus on the best interest of the individual who is the subject of the proceedings, we conclude that the rule and underlying rationale set forth in Matter of Michael B. is equally applicable here. Thus, in this proceeding pursuant to Surrogate's Court Procedure Act article 17-A, we will consider new facts and allegations brought to our attention by the parties for the limited purpose of ascertaining whether the record before us is sufficient{**229 AD3d at 106} make a best interest determination, which is the same standard applied in appeals involving child custody. Upon doing so, we find that a new hearing is warranted because the record is no longer sufficient to determine what, at this juncture, is in the best interest of Joseph J.D. II.

The petitioner, Elizabeth L.D. (hereinafter the mother), and the objectant, Robert B.D. (hereinafter the father), are the parents of Joseph J.D. II (hereinafter Joseph), who was born in 2000. Joseph was diagnosed with autism/pervasive developmental disorder when he was between 3 and 15 months old. The parents divorced in 2013, when Joseph was a teenager. Pursuant to a stipulation of settlement executed in connection with the divorce action, the parties were awarded joint legal custody of Joseph, the mother was awarded primary physical custody, and the father was awarded extensive parental access.

In 2018, in anticipation of Joseph turning 18, the mother commenced this proceeding pursuant to SCPA article 17-A to be appointed as the guardian of Joseph's person and to appoint certain nonparties as standby guardians of Joseph's person (see id. § 1750-a).^[FN1] Among other things, the mother alleged that she had been Joseph's primary caregiver since birth and the father would not be an appropriate guardian because he refused to cooperatively co-parent. The petition was supported by a physician's affidavit and a separate physician's affirmation indicating that Joseph was diagnosed with severe autism, he was virtually nonverbal, he had occasional aggressive outbursts, and his condition was "permanent in nature or likely to continue indefinitely." The father objected to the petition and requested that he be appointed as the guardian of Joseph's person.

A. Hearing

The Surrogate's Court conducted an evidentiary hearing over the course of several days and heard testimony from both parents and Joseph's psychiatrist of 10 years. According to the psychiatrist, Joseph had moderate to severe autism and experienced intermittent and unpredictable episodes of aggression. To address these episodes, Joseph's psychiatrist prescribed several medications—including two daily medications—to calm anxiety.

{**229 AD3d at 107}The parents' testimony reflected that they had starkly differing views as to Joseph's abilities and how to address his aggressive behaviors. On one hand, the mother was protective of Joseph, and some of her testimony suggested that she underestimated his abilities with respect to daily activities. Moreover, the mother regularly used Joseph's prescribed medication to address his aggressive outbursts. On the other hand, the father allowed Joseph to participate in activities that some may consider to be common for a neurotypical individual of Joseph's age, such as riding in the front seat of the car rather than the back seat and helping the father—who runs his own construction business—at work sites. Furthermore, the father was inclined to use measured physical restraints to calm Joseph during aggressive behaviors rather than using medication. Another point of contention between the parents was that the mother was exploring the possibility of state residential care housing for Joseph, but the father was generally opposed to this idea.

In a report to the Surrogate's Court, the independent counsel assigned to represent Joseph^[FN2] observed that "[t]he veracity" of both parents at the hearing "was questionable," there was "extreme bad blood" between the parents for many years, and the evidence of contact between Joseph and the parents reflected that he "love[d] them both very much." Joseph's counsel recommended that the father be appointed as guardian rather than the mother.

Although Joseph appeared at the hearing, the Surrogate's Court observed that he was able to meaningfully answer only basic questions, his participation was limited, and he was unable to express his position as to the outcome of the guardianship proceeding. This was consistent with an assessment by one of the physicians proffered in support of the petition that Joseph was "unable to understand [the] process or content of a hearing."

B. The Surrogate Court's Decision and Decree

Following the hearing, the Surrogate's Court explained its determination and reasoning in an elucidative written decision. After observing that the parents did not dispute that Joseph was "in need of a guardian of the person," the court {**229 AD3d at 108}found that, by virtue of the medical certifications and the hearing testimony, the mother established that Joseph has a developmental disability within the meaning of SCPA article 17-A and the appointment of a guardian was in his [*3]best interest. Turning to the determination of whether appointing the mother or the father as guardian would be in Joseph's best interest, the court observed that it "may consider the law in the analogous area of child custody proceedings when considering the factors" relevant to Joseph's best interest. Ultimately, the court decided to appoint the mother as the guardian of Joseph's person and to appoint the father as Joseph's standby guardian. Among other things, the court found that, "[a]lthough the mother was not always forthright and . . . may be very protective and cautious," she demonstrated that she could "ably manage [Joseph's] medical needs" and had "a reasonable plan for Joseph's future."

By decree dated August 25, 2021, the Surrogate's Court, inter alia, granted that branch of the petition which was to appoint the mother as the guardian of Joseph's person and appointed the father as Joseph's standby guardian.

C. These Appeals

The father appeals from the decision and the decree, generally arguing that, for a variety of reasons, Joseph's best interest would be better served if the father were appointed as Joseph's guardian rather than the mother. The mother maintains that the Surrogate's Court correctly concluded that she was the more appropriate choice to be Joseph's guardian.

By decision and order on motion dated May 10, 2023, this Court relieved the counsel that had been assigned to represent Joseph by the Surrogate's Court and assigned attorney Steven N. Feinman to represent Joseph on these appeals. Contrary to the position taken by Joseph's counsel below, Feinman argues that this Court should affirm the Surrogate's Court's determination to appoint the mother as Joseph's guardian.^[FN3].

D. Developments Subsequent to the Decree

Significantly, on appeal, Feinman provided this Court with information about developments that occurred after the issuance of the decree appointing the mother as Joseph's guardian.{**229 AD3d at 109} Joseph's aggressive behavior had increased, and because Joseph is much bigger and stronger than the mother, the mother came to believe that she can no longer safely address Joseph's aggressive outbursts on her own. On March 23, 2022, approximately seven months after the decree was issued, the mother admitted Joseph to a "respite residential program," and he remained there for more than three weeks.^[FN4] On April 17, 2022, Joseph was transferred from the residential program to Stony Brook University Hospital, where he spent four days in a nonpsychiatric ward.

Most importantly, on July 1, 2022, the mother was driving with Joseph as a passenger when he had an aggressive outburst. The mother immediately called the father and asked him to take Joseph until she could figure out what to do, and the father agreed to do so. There is no dispute that, since July 2022, Joseph has lived with the father. Reportedly, the mother visits Joseph twice or thrice per week, attends all of his medical appointments, and has been searching for either "self-direct staff" to help her care for Joseph in her home or a "residential care home" for him. The father reports that, with Joseph living in his home, they spend every day together, and, in addition to taking Joseph to job sites, the father takes Joseph to a variety of athletics and to Joseph's part-time job at a pizzeria.

After providing the Court with these updates, Feinman observed, among other things, that "both parents are trying to help their son in controlling his behavior in the best way they can while attempting to provide him the opportunity to live his best possible life. The love that they have shown their child and the sacrifices they have made [are] admirable."

As a preliminary matter, the appeal from the decision must be dismissed because no appeal lies from a decision (see Schicchi v J.A. Green Constr. Corp., 100 AD2d 509 [2d Dept 1984]; see also Matter of Timothy K. Jr. [Timothy K.], 225 AD3d 700 [2d Dept 2024]; Matter of Kroll v New York State Dept. of Health, 143 AD3d 716, 717 [2d Dept 2016]).

[*4]A. Article 17-A of the Surrogate's Court Procedure Act

It has been observed that SCPA article 17-A, which is entitled "Guardians of Persons Who Are Intellectually Disabled and {**229 AD3d at 110}Developmentally Disabled," has most often been used to ensure long-term guardianship of children who will never be able to care for themselves without supervision and permits the parents of these children to continue to serve as their "legal guardians while they live and to nominate successors to serve when they are gone" (Margaret Valentine Turano, 2011 Prac Commentaries, McKinney's Cons Laws of NY, SCPA 1750; see Matter of Chaim A.K., 26 Misc 3d 837, 843 [Sur Ct, NY County 2009]).

Pursuant to SCPA 1750-a (1), courts are authorized to appoint "a guardian [or guardians] of the person or of the property or of both" for an individual with a developmental disability if such appointment "is in the best interest of the person who is developmentally disabled." In this context, although the term "best interest" may be " 'amorphous,' " we agree with the Surrogate's Court that understanding " 'the functional capacity of an individual with [a] disability, what an individual can or cannot do, is a necessary inquiry in determining best interest and the necessity of guardianship' " (Matter of Robert C.B. [Callahan], 207 AD3d 464, 466 [2d Dept 2022], quoting Matter of Hytham M.G., 52 Misc 3d 1211[A], 2016 NY Slip Op 51113[U], *3 [Sur Ct, Kings County 2016]).

Sometimes a person for whom an SCPA article 17-A guardian is appointed has been referred to as a "ward" or "article 17-A ward" (see e.g. Matter of Ryan T.G. [Todd G.—Haden], 165 AD3d 662 [2d Dept 2018]; Matter of Richard S.H. [Reed D.K.H.], 77 Misc 3d 376 [Sur Ct, Westchester County 2022]). Here, inasmuch as possible, we refer to Joseph as Joseph. We note that, for purposes of this statute, a person who has previously been designated a "ward" may be referred to as a person with a developmental disability within the meaning of article 17-A.

A person is developmentally disabled under SCPA article 17-A if they (1) have "an impaired ability to understand and appreciate the nature and consequences of decisions which [makes them] incapable of managing [themselves] and/or [their] affairs by reason of developmental disability," (2) this "condition is permanent in nature or likely to continue indefinitely," (3) the condition is attributable to cerebral palsy, epilepsy, neurological impairment, autism, or traumatic head injury, and (4) the condition originates prior to age 22 or stems from a traumatic head injury—in which case, age of onset is not an issue for the purpose of this particular statutory definition (id. § 1750-a [1]; see Matter of Robert C.B. [Callahan], 207 AD3d at 465).{**229 AD3d at 111}

The determination of what is in the best interest of a person with a developmental disability within the meaning of SCPA article 17-A is committed to a court's sound discretion (see id. § 1754 [5]), and this discretionary determination is entitled to great deference, as the court had the opportunity to hear the witnesses and weigh their credibility (see Matter of Ryan T.G. [Todd G.—Haden], 165 AD3d at 663; Matter of Garett YY., 258 AD2d 702, 703 [3d Dept 1999]). As a general matter, such a determination will not be disturbed unless unsupported by the record (see Matter of Ryan T.G. [Todd G.—Haden], 165 AD3d at 663; see also Matter of Patricia M.D., 233 AD2d 326, 327 [2d Dept 1996]).

A guardianship under SCPA article 17-A "shall not terminate at the age of majority" of the "person who is developmentally disabled but shall continue during the life of such person, or until terminated by the court" (id. § 1759 [1]). It has been observed that an article 17-A guardianship, unlike a guardianship pursuant to article 81 of the Mental Hygiene Law, "does not allow for the exercise of discretion to limit or tailor the scope of guardianship to meet an individual's specific needs" (Matter of Grace J., 77 Misc 3d 367, 374 [Sur Ct, Kings County 2022], citing Matter of Chaim A.K., 26 Misc 3d 837). Further, the article 17-A guardianship has been described as the " 'most restrictive type of guardianship available under New York law' " and should, as a general matter, only be granted in the absence of less restrictive alternatives (Matter of Robert C.B. [Callahan], 207 AD3d at 465, quoting Matter of Eli T., 62 Misc 3d 638, 640 [Sur Ct, Kings County 2018]).

Here, the parties have never disputed that Joseph is a person with a developmental disability within the meaning of SCPA article 17-A or that the appointment of an article 17-A guardian is in his best interest. Thus, there is no dispute that the Surrogate's Court was authorized to make such an appointment (see generally Matter of Kevin Z. [Carmella AA.—Edward Z.], 105 AD3d 1269, 1270 [3d Dept 2013]). The sole dispute is which parent should be Joseph's guardian.

It appears that this case has been close and complicated from the outset. On appeal, however, things have become more complicated because developments after the decree was issued have dramatically changed the relevant circumstances. It is undisputed that, at the mother's request, Joseph went to live with the father, Joseph has now been living with the father for more than 19 months (and counting), and the father has been{**229 AD3d at 112} making certain decisions about Joseph's daily [*5]activities. In light of these new facts, it would appear that the father has, in significant ways, been acting as Joseph's guardian. Additionally, it has been reported that Joseph's aggressive outbursts have increased in severity, which presents difficulties for both parents.

These updates regarding Joseph bring us to the question of whether we can rely on this new information, which is necessarily outside the appellate record, to ascertain whether the record remains sufficient for us to review the determination of the Surrogate's Court that appointing the mother, rather than the father, as Joseph's guardian was in Joseph's best interest. For the reasons that follow, we conclude that we can, and should, rely on this new information to ascertain whether the record remains sufficient for us to reach a determination on this appeal.

B. Matter of Michael B. and the Rule Permitting Appellate Courts to Look Outside the Record in Custody Matters

The general rule, of course, is that an appellate court is limited to consideration of facts contained in the appellate record, and matters outside the record will not be considered (see OBE Ins. Corp. v Jinx-Proof Inc., 22 NY3d 1105, 1108 [2014]; Matter of Jorling v Adirondack Park Agency, 214 AD3d 98, 101-102 [3d Dept 2023]; Merritt v Wynder, 212 AD3d 607, 608 [2d Dept 2023]). However, in Matter of Michael B., the Court of Appeals carved out an exception: an appellate court may take notice of new facts and allegations, which are necessarily dehors the record, when it comes to a child custody matter in order to determine whether the record is no longer sufficient for the appellate court to determine what custodial situation is in the child's best interest (see Matter of Michael B., 80 NY2d at 317-318).

In Michael B., during the pendency of an appeal emanating from a protracted custody dispute "pitting a child's foster parents against his biological father," the appellant (the biological father) admitted that other children (not Michael B.) had been removed from his home on the basis of alleged physical abuse and neglect (id. at 303; see id. at 307, 317). It was further brought to the Court of Appeals' attention that, after the order appealed from was issued, the appellant admitted to neglect of these other children by virtue of alcohol and cocaine abuse, and an order of protection had been entered prohibiting him from visiting the children while under the influence of{**229 AD3d at 113} drugs or alcohol (see id. at 317-318). Observing that "changed circumstances may have particular significance in child custody matters," the Court of Appeals rejected the appellant's request that it ignore these new developments based on the general rule that "matters outside the record cannot be considered by an appellate court" and concluded that ignoring the new developments "would exalt the procedural rule . . . to a point of absurdity, and 'reflect no credit on the judicial process' " (id. at 318, quoting Cohen and Karger, Powers of the New York Court of Appeals § 168 at 640). Accordingly, the Court of Appeals took "notice of the new facts and allegations" insofar as they indicated that the record was "no longer sufficient for determining appellant's fitness and right to custody of [Michael B.]" and remitted the matter "for a new hearing and determination of those issues" (Matter of Michael B., 80 NY2d at 318).

This Court has continually relied on Michael B. to remit custody matters for new hearings when subsequent developments (often brought to light by the attorney for the child) reveal that the record is no longer sufficient to review whether a custody determination is still in the child's best interest (see e.g. Matter of Colin M. v Panna B., 211 AD3d 732, 733 [2d Dept 2022] [remittal for a new hearing where "new developments have arisen since the order appealed from was issued, which have been brought to this Court's attention by the attorney for the child, including updates provided during oral argument"]; Matter of Baker v James, 210 AD3d 676, 678 [2d Dept 2022]; Matter of Veras v Padilla, 161 AD3d 989, 990 [2d Dept 2018]; Matter of Lopez v Reyes, 154 AD3d 756, 757 [2d Dept 2017]; Matter of Wesley R., 307 AD2d 360, 363-364 [2d Dept 2003]). Our sister Departments likewise remit custody matters for new hearings when subsequent developments reveal that the records are no longer sufficient to review whether the custody determinations are still in the children's best interest (see e.g. Matter of Allen v Courtney, 224 AD3d 1346 [4th Dept 2024]; Matter of Emily F. v Victor P., 219 AD3d 1187, 1188 [1st Dept 2023]; Matter of Tamika B. v Pamela C., 151 AD3d 1220, 1221 [3d Dept 2017]).

C. The rule from Matter of Michael B. applies here.

It is beyond cavil that both child custody matters and SCPA article 17-A guardianships turn on a determination by a court as to what is in the best interest of the individuals who are the subject of the proceedings (see generally id. §§ 1750-a [1]; 1754 {**229 AD3d at 114}[5]; S.L. v J.R., 27 NY3d 558, 563 [2016]; Matter of Kevin Z. [Carmella AA.—Edward Z.], 105 AD3d at 1270). As observed by at [*6]least several New York courts, custody cases and SCPA article 17-A guardianships have common aspects and may deal with similar issues (see Matter of Kevin Z. [Carmella AA.—Edward Z.], 105 AD3d at 1270-1272; Matter of Timothy R.R., 42 Misc 3d 775, 781 [Sur Ct, Essex County 2013]; Matter of Leo R., 26 Misc 3d 423, 425 [Sur Ct, Broome County 2009]). Indeed, as the Surrogate's Court correctly observed in reaching the determination at issue here, to address issues raised in contested guardianship proceedings, courts have understandably looked to the "analogous area" of child custody (Matter of Stevens, 17 Misc 3d 1121[A], 2007 NY Slip Op 52097[U], *4 [Sur Ct, NY County 2007]).

Here, the parents of an adult child with a developmental disability within the meaning of SCPA article 17-A have, for better or worse, embarked on a legal battle as to which of them should be his guardian. Although there are obvious and crucial distinctions to be made between SCPA article 17-A proceedings and Family Court Act article 6 proceedings (or other proceedings related to child custody), the commonalities are exceedingly clear on this record. As in an appeal related to child custody, we are asked to review a court's determination as to who among competing caregivers should have the primary responsibility for an individual's overall health and well-being. Such a determination necessarily rests upon a variety of nuanced factors that are dynamic rather than frozen in time. Under all the circumstances present here, the notion that "changed circumstances may have particular significance" in child custody matters applies equally in this guardianship contest between Joseph's parents (Matter of Michael B., 80 NY2d at 318).

Accordingly, we find it appropriate to apply the rule set forth in Michael B. to this appeal in a contested SCPA article 17-A guardianship proceeding. Thus, we consider updates provided by the parties (particularly Joseph's counsel), which are necessarily dehors the record, to ascertain whether this record remains sufficient for us to review the best interest determination at issue. In doing so, we conclude that a new hearing is warranted here because the record is no longer sufficient to determine whether appointment of the mother or the father as Joseph's primary guardian (rather than his standby guardian) is in Joseph's best interest.{**229 AD3d at 115}

Accordingly, this matter must be remitted for an expedited hearing to determine the issue of whether Joseph's best interest is better served by appointing the mother as his guardian or by appointing the father as his guardian. Thus, the appeal from the decision is dismissed, the decree is reversed insofar as appealed from, on the facts and in the exercise of discretion, the matter is remitted to the Surrogate's Court, Suffolk County, for an expedited hearing and a new determination thereafter on the issue of which party should be appointed as the guardian of the person of Joseph in accordance herewith, and pending the expedited hearing and new determination on the issue of which party should be appointed as the guardian of the person of Joseph, the status quo shall remain the same.

Duffy, J.P., Wan and Landicino, JJ., concur.

Ordered that the appeal from the decision is dismissed, without costs or disbursements; and it is further,

Ordered that the decree is reversed insofar as appealed from, on the facts and in the exercise of discretion, without costs or disbursements, and the matter is remitted to the Surrogate's Court, Suffolk County, for an expedited hearing and a new determination thereafter on the issue of which party should be appointed as the guardian of the person of Joseph J.D. II in accordance herewith; and it is further,

Ordered that pending the expedited hearing and new determination on the issue of which party should be appointed as the guardian of the person of Joseph J.D. II, the status quo shall remain the same.