Matter of Solomon R.S.

Matter of Solomon R.S. 2025 NY Slip Op 31361(U) April 15, 2025 Surrogate's Court, New York County Docket Number: File No. 2023-1635 Judge: Hilary Gingold Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication.

SURROGATE'S COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK --------------------------------------------------------------------------X In the Matter of the Application for Guardianship of DECISION

SOLOMON R.S., File No. 2023-1635 2023-1635/A

Pursuant to SCPA Article 17-A. --------------------------------------------------------------------------X GING OLD, S.

In this contested proceeding, Claudia M.S., the mother of Solomon R.S. (Respondent), and

Jeffrey L.S., the Respondent's father, have each petitioned to be appointed the Respondent's sole

guardian of person pursuant to Article 17-A of the Surrogate's Court Procedure Act (SCPA).

Background

On April 26, 2023, the Respondent's mother filed a petition, as a prose litigant, whereby

she seeks her appointment as her son's sole primary guardian of the person, including the authority

to make decisions on life-sustaining treatment as defined in SCPA 1750-b (1 ). She further seeks

the appointment her sister (Respondent's maternal aunt), a domiciliary of the State of

Massachusetts, as the standby guardian of his person.

Shortly thereafter, on May 18, 2023, the Respondent's father cross-petitioned, under

representation of counsel, seeking his appointment as his son's sole primary guardian of the

person, also with the authority to make decisions on life-sustaining treatment. He further seeks

the appointment of his brother (Respondent's paternal uncle), a domiciliary of the State of New

Jersey, as the standby guardian of his person.

The parties live apart due to their pending divorce, which is discussed in more detail below.

The Respondent's mother remains a domiciliary of New York County. His father clarifies in his [* 1]

cross-petition, as amended, that his primary residence is in New York County but that he has a

second residence in New Jersey. Neither parent has any indicated reports of child abuse or

maltreatment with the State Central Register, and neither has any criminal history.

Respondent is a 19-year-old young man that has been diagnosed with developmental and

intellectual disabilities. Specifically, he was diagnosed with autism at around 18 months of age,

and suffers from seizure disorder (more prevalent in his childhood but with recurrences in 2015

and 2023 ), epilepsy, growth hormone deficiency, and sleep disorder.

His mother's petition includes the certification of Dr. Dana Price (Dr. Price), a pediatric

neurologist and the Director of NYU Langone's Angelman Syndrome Clinic and its CDKL5

Deficiency Disorder Center of Excellence at the Comprehensive Epilepsy Center. Dr. Price's

evaluation of Respondent indicates that he 'remains at risk of injury and elopement as he has no

sense of danger, severe impulsivity, and no self-regulation. He is unable to respond to questions

and commands appropriately.'

Both the petition and the cross-petition include a certification from Respondent's

pediatrician, Dr. Audrey Olivera Schwabe (Dr. Olivera), who is affiliated with Weill Cornell

Medicine. Dr. Olivera explains that Respondent has a 'low IQ' and that he is essentially non-

verbal due to his cognitive and communication delays, relying on an augmentative and alternative

communication (AAC) device to interact with others.

His father's cross-petition includes a certification from Jennifer Hope, Ph.D. (Dr. Hope), a

licensed psychologist with a private practice, who examined the Respondent consistently from

2019 to 2021. Dr. Hope states that Respondent's 'substantial adaptive and cognitive deficits and

language impairment continue to pose barriers to [his] functioning, and hamper his ability to live

independently.'

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Dr. Hope's certification is accompanied by the results of several IQ tests administered to

the Respondent by YAI in 2019, with results as follows: Comprehensive Test of Nonverbal

Intelligence - 2 nd Edition (CTONI-2), Full Scale IQ of 51; Stanford Binet Intelligence Scales - 5th

Edition - Nonverbal IQ of 42; Vineland Adaptive Behavior Scales - 3rd Edition (Comprehensive

Interview Form)- "Low" range score of 20, below the 1st percentile. Although these tests were

administered when the Respondent was 13 years old, their results are consistent with Dr. Olivera's

recent evaluation, described above.

All three medical professionals concur that Respondent's condition is permanent in nature

and render him incapable of managing himself and his affairs. All three conclude that Respondent

is not capable of understanding and appreciating the nature and consequences of health care

decisions, including the benefits and risks of and alternatives to any proposed health care, and of

reaching an informed decision in order to promote his own well-being.

Respondent attends The Keswell School (Keswell), a specialized, local private school for

autistic students up to the age of 21. Keswell follows an alternative behavior approach to learning,

which is an educational approach rooted in principles of human psychology, neuroscience, and

social dynamics. Respondent attends Keswell five days a week, and each parent has arranged for

his transportation to and from school from their respective Manhattan residences. His class has a

total of five or six students and just as many teachers. He receives occupational therapy three

times per week and, despite being heavily reliant on his AAC, he receives speech therapy both

individually and in a group setting. The current annual tuition at Keswell is $186,000.00 and is

paid in its entirety by Respondent's father. Respondent also receives afterschool therapy four days

per week from the Helping Hands agency to focus on life skills, such as travelling and

housekeeping.

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As referenced above, the Respondent's parents are in the process of getting a divorce. They

separated in April of 2020, with Respondent's father leaving the marital home, and initiated a

formal matrimonial action in November of 2020. The matter is still pending at the New York

County Supreme Court, under Index Number: 322574/2020, before the Honorable Jeanine R.

Johnson, J.S.C. The unresolved issues in that action include equitable distribution and the

determination of custody of Respondent's younger brother, Zachary S.S., who turns 18 years old

on July 28, 2025.

From the time the parties separated, Respondent and his brother have been living part-time

with each parent in their respective Manhattan residences. More precisely, Respondent and his

brother live with their father and their father's girlfriend for half of each week, and they live with

their mother for the other half, alternating weekends between each parent. This shared visitation

arrangement was reached by the Respondent's parents independently (with the assistance of their

respective matrimonial counselors, but without court involvement) and they have adhered to said

arrangement without incident. Overall delays in reaching a final resolution in the matrimonial

action have been due, reportedly, to difficulties with discovery compliance and a breakdown of

negotiations between the parties.

In similar fashion, a resolution to the instant guardianship proceeding, which was first filed

in 2023, has been delayed due to the voluminous allegations made by each parent in their

respective petitions regarding the other's inability to properly care for Respondent. In response,

the court appointed a guardian ad !item (GAL) to conduct a more comprehensive, independent

investigation.

The GAL filed his Report and Recommendation (GAL Report or Report) on or about

August 27, 2024. His investigation consisted of an extensive examination of all the documents in

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the file as well as the examination of written statements made by the parties to the GAL, at the

GAL's request, in further support of their respective petitions. The investigation also consisted of

interviews with nine individuals: Respondent's mother, his father (in the presence of his counsel),

both the father's and the mother's respective attorneys in the matrimonial action, Respondent's

pediatrician, Respondent's lead teacher at Keswell, ·:he principal at Keswell, the behavior analyst

who supervises Respondent's afterschool therapy, and to the extent possible, Respondent.

The GAL Report comes to one principal conclusion: that it is apparent to the GAL that

each parent has the utmost concern for the Respondent and wants him to be in the best possible

situation. The Report further explains this position is shared by every medical, educational, and

vocational professional interviewed. Given this conclusion in an otherwise contested matter, the

GAL recommends that the court hold a hearing to determine which parent would be a more suitable

guardian or whether the parents can work together. As the Respondent's father indicated his

intention of relocating the Respondent to New Jersey, the GAL further recommends the hearing

should concentrate on the issues of Respondent's future schooling and residence.

Worthy of note, after the appointment of a GAL, this matter appeared on the conference

calendar of the presiding Surrogate on three separate occasions in an attempt to resolve the issues

presented by the parties. At each conference, they were reminded that an agreement between them,

as the parents of the Respondent and the people who are most familiar with the needs of their son,

was preferable to this court's determination of the contested issues. After the last conference, on

November 20, 2024, the parties were given 30 days in which to inform the court whether there

was any agreement on joint guardianship. The allotted time passed, and the court was not informed

that the parties had resolved, or were in the process of resolving, their differences.

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Applicable Law

Article 17-A of the SCP A governs guardianship of persons who are intellectually or

developmentally disabled. An intellectually disabled person is defined by SCP A 1750 as a person

who is permanently or indefinitely incapable of managing themselves and/or their own affairs

because of an intellectual disability. The condition must be certified by a licensed physician and

a license psychologist, or by two licensed physicians, one of whom has familiarity with or

knowledge of the care and treatment of persons with intellectual disabilities.

A developmentally disabled person is defined by SCPA 1750-a as a person who has an

impaired ability to understand and appreciate the nature and consequences of decisions which

result in an incapacity to manage themselves and/or their own affairs. The developmental

disability must be permanent or indefinite and attributable to cerebral palsy, epilepsy, neurological

impairment, autism, traumatic brain injury, or any condition found to be closely related to

intellectual disability. The condition must have originated before the age of 22, except for

traumatic brain injury, which has no age limit. As with SCPA 1750, the developmental disability

must be properly certified by the appropriate healthcare professionals.

When it appears to the court that an individual is intellectually or developmentally disabled,

the court is authorized to appoint a guardian of the person for that individual, provided that the

court is satisfied such appointment would be in that individual's best interest (SCPA 1750; 1750-

a [l ]; 1754 [5]; Matter of Ryan T G., 165 AD3d 662, 663 [2d Dept 2018)). In a contested

proceeding where there are competing proposed guardians, the court must exercise the highest

degree of discretion in making a 'best interest' determination (Matter o/Nicholas L., 2014 NYLJ

LEXIS 5484, *10 [Sur Ct, Suffolk County, Feb. 28, 2014, No. 2011-3346]; Matter ofHayley M.,

NYLJ, June 1, 1999 at 32, col 3 [Sur Ct, Nassau County 1999)). This is because it is determining

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not only whether the implementation of a 17-A guardianship is appropriate, but also whether the

appointment of a specific guardian is in the best interest of the incapacitated individual (Matter (~/

Nicholas L., at * 1O; Matter of Ivans, NYLJ, Mar. 19, 1997, at 5, col 3 [Sur Ct, Suffolk County

1997]).

A finding of "best interest" between competing parents within the context of a 17-A

proceeding is subject to the discretion and judgment of the presiding Surrogate, and not susceptible

to an element-based definition as it is in a Family Court proceeding (Matter of Robert C.B., NYLJ,

May 26, 2020 at 27, col 1 [Sur Ct, Duchess County 2020 J). Certainly, nothing impedes a Surrogate

from considering any of the same factors, particularly the quality of the home environment, the

ability of each parent to provide for their child's emotional and intellectual development, their

financial status, and their relative fitness as a parent (Carrington v Fowler, 222 AD3d 747, 748

[2d Dept 2023]; Baptiste v Gregoire, 140 AD3d 746, 747 [2d Dept 2016]; Hogan v Hogan, 159

AD3d 679, 680-681 [2d Dept 2018]; Duran v. Contreras, 227 AD2d 1068, 1069 [2d Dept 2024]).

However, in a 17-A proceeding the court also considers whether a proposed guardian has a realistic

concept of a respondent's disability, to the extent that they can recognize what the immediate

future and long-term needs of the respondent may be (Matter of Nicholas L., at * 10). The court

further evaluates the ability of a proposed guardian to prepare for a respondent's future needs by

analyzing the "history and background" of their treatment of that respondent (id.)

Discussion

Based upon all the information presented, the court is well satisfied that Respondent is a

young man in need of guardianship. On the matter of the appointment of a specific guardian, the

court will first address the GAL' s recommendation that a hearing be held to determine which of

Respondent's parents would be a more suitable guardian or whether his parents can work together.

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It is without question that the GAL's investigation of this case has been thorough and

conscientious, allowing for a fuller understanding of the medical, educational, and personal

circumstances of Respondent's life. Nevertheless, the court disagrees with the recommendation

that a hearing is necessary here.

Within the Family Court context, it is well established that a hearing is not required where

a court possesses "adequate relevant information" to enable it to make an "informed and provident

determination" as to the best interests of a child (Piccinini v Piccinini, 103 AD3d 868, 870, [2d

Dept 2013]; Matter of Jayden A., 123 AD3d 816 [2d Dept 2014]; Hom v Zullo, 6 AD3d 536 [2d

Dept 2004]; Matter ofZaratzian v Abadir, 105 AD3d 1054 [2d Dept 2013]). The court finds the

same standard applicable to its appointment of a guardian here. In the instant case, substantial

additional documentation was submitted to accompany the standard required paperwork, all of

which has been thoroughly reviewed by the court. This documentation includes, but is not limited

to, the following:

On the NYU Patient Portal: text message threads with Dr. Price; provider note by Dr.

Gabriel Chain (Dr. Chain); provider notes from Dr. Aaron E. Siegelson; admission notes

by Dr. Thomas Flagiello; progress notes from Dr. Judith Bluvstein (Dr. Bluvstein);

admission note by Dr. Nisha Malhotra (Dr. Malhotra);

On the Cornell Patient Portal: text message threads with Jennifer Carver, NP; text

message thread between Respondent's father and Dr. Padmaja Kandula; progress notes

by Dr. Olivera; progress notes by Dr. Karen Chernoff; text message from Dr. Johanna

Ferreira;

Other 'medical provider' -related submissions: discharge notes and triage notes by Dr.

Chain on the University of Pennsylvania Hea:.th System Patient Portal; provider notes by

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Dr. Matthew Babcock from the UCONN Health System Patient Portal; letter from Dr.

Bluvstein regarding Respondent's ability to travel; letter from Helping Hands regarding

Respondent's progress with life skills; letter from Dr. Olivera regarding an excused

school absence for Respondent; Community Habilitation (Staff Action Plan) for

Respondent by the Center for Family Support;

Email interactions with Keswell, between: Respondent's mother and the school nurse,

Eugolo Mestre, RN; Respondent's mother and the principal, Dr. Ivy Feldman;

Respondent's parents and the speech therapist, Olivia Ohland; Respondent's father and

the assigned teacher, Joseph Ricca; Respondent's parents and the school nurse, teacher,

and principal;

Emails and correspondence between the parties' respective matrimonial attorneys; and

Text message threads between Respondent's parents dated in 2023.

As stated prior, the presiding Surrogate has also conferenced this matter on several occasions,

giving both parties the opportunity to explain their positions, to convey their understanding of their

son's condition, and to clarify any concerns with his medical treatment and educational program.

Finally, the court has gleaned a tremendous amount of insight from the information provided by

the nine individuals interviewed by the GAL. Based upon the foregoing, the court will proceed to

make a 'best interest' determination without a hearing.

To this effect, the court believes the best interests of this young man would be served if

both parents are appointed jointly as Article 17-A co-guardians over his person, albeit with the

implementation of certain terms. Joint appointment is inappropriate when one or both parents

misunderstand the incapacitated individual's diagnoses to the point of failing to recognize that

individual's needs (Matter of Nicholas L., at * 10). It is also inappropriate where the relationship

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between both parents is so hostile that they are unable to cooperate or communicate with each

other (In re Garett "YY", 258 AD2d 702 [3d Dept 1999]).

This is simply not the case here. Despite their ongoing divorce litigation, which the court

unmistakenly recognizes as the driving force behind the instant cross-petitions, it is clear that when

it comes to Respondent, indeed to both their children, the parties are capable of joint decision-

making. Both parents understand and have educated themselves for years on Respondent's

diagnoses and on every one of the symptoms and conditions he manifests. Their mutual

involvement in the prescription, administration, and dosage of Respondent's various medications

has remained uninterrupted. This is evident from the frequency and substance of their

communications with his numerous medical providers as provided to the court, all of which are

dated after the time of their separation. Moreover, both parents are physically present for

Respondent's medical emergencies. In Dr. Malhotra 's admission note of 2023, when Respondent

suffered his most recent seizure, she specifically states "both parents present at beside during daily

rounds." Similarly, Dr. Olivera's letter of 2022 excusing a school absence indicates both "parents

accompanied [Respondent] to visit today." During the GAL's interview with Dr. Olivera, who has

been the Respondent's treating physician since infancy, she offers her observation that either

parent would be able to act as a guardian.

The parties function in an identical manner when it comes to Respondent's educational and

occupational needs. They are in constant communication with the professional staff at Keswell

and were able to work out how Respondent travels to and from school after court conferencing.

As mentioned above, the GAL interviewed Dr. Ivy Feldman, the school's principal, and Russell

Krakower, Respondent's lead teacher. Both interviews came to consistent conclusions: Dr.

Feldman expressed how Respondent loves both his parents, and Mr. Krakower stated that both

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parents love the Respondent and either would make a good guardian. The GAL also interviewed

Dominique Algieri, the behavior analyst who supe:-vises Respondent's afterschool therapy with

the Helping Hands agency. Ms. Algieri stated that neither parent has expressed resistance to the

Respondent receiving the training he needs, and that both parents have his best interests in mind.

These statements are substantiated in the Community Habilitation (Staff Action Plan) by the

Center for Family Support, a written evaluation of Respondent completed in 2022 which states

that "the most important people to [Respondent] are his parents as well as his brother."

Generally, appointed guardians are granted plenary decision-making power (Matter of'

Chaim A.K., 26 Misc 3d 837, 844 [Sur Ct, NY County 2009]). That being said, the court retains

the authority under SCPA 1758 to impose terms and restrictions that best meet the needs of the

incapacitated individual (Matter o_f Yvette A., 27 Misc 3d 945, 950 [Sur Ct, NY County 201 OJ).

In this case, the main concerns are a relocation of the Respondent and his immediate

schooling needs. Respondent's father has clearly stated his intention, both at court conferences

and to the GAL as relayed in the Report, of relocating the Respondent to Park Ridge, New Jersey

at any time. Upon this relocation, Respondent would most likely be enrolled in a transitional

program for students from the ages of 18 to 21 with special needs at Park Ridge High School

(PRHS), a public school within the district. The selection of PRHS is reportedly based on a meeting

between the girlfriend of Respondent's father and PRHS officials. Although the intentions of the

Respondent's father's girlfriend might be well-placed, this court does not find that the selection of

an educational institution for an incapacitated individual should be based on the efforts of a non-

interested party who does not possess any relevant professional knowledge or qualifications.

Keswell is a private specialized school of high repute, which Respondent's father has the

solvency to pay. The school's age limit is 21 years. Respondent turns 20 on June 3, 2025 and

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therefore remains eligible to attend. The institution's staff is very familiar with Respondent's

needs and, according to both parents, they have seen a positive impact on Respondent since his

enrollment there. Moreover, Respondent's brother is currently a junior at Xavier High School

which, like Keswell, is located in Manhattan. Respondent's continued enrollment at Keswell

would not separate him from his brother, with whom he shares a deep bond.

Based on the foregoing, the court finds that Respondent benefits from having the input of

both his parents when it comes to making decisions on his behalf and that depriving him of that

benefit will not be in his best interests. The court fur'.her finds that Respondent's needs would best

be met by keeping him enrolled at Keswell until he reaches the institution's maximum age of

eligibility and by not relocating him outside of the State of New York before said time.

Regarding the additional relief sought by each parent for the appointment of a standby

guardian of the Respondent's person, the court declines to make any such determination at this

time. Given the current circumstances of the family, particularly the pending divorce proceeding,

Respondent's remaining time of eligibility at Keswell, and the proximity of Respondent's brother

to reaching the age of majority, this court considers all other determinations premature.

Accordingly, it is hereby

ORDERED that the petition filed by Respondent's mother is granted in part and denied in

part; and it is further

ORDERED that the cross-petition filed by Respondent's father is granted in part and

denied in part; and it is further

ORDERED that Respondents parents, Claudia M.S. and Jeffrey L.S., are hereby appointed

as SCPA 17-A Co-Guardians of the person of Solomon R.S., with the authority to make decisions

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to withhold or withdraw life-sustaining treatment on Respondent's behalf as provided under SCPA

1750-b, and it is further

ORDERED that Solomon R.S. shall continue to attend The Keswell School until he

surpasses the institution's maximum age of eligibility; and it is further

ORDERED that Jeffrey L.S. shall be financially responsible for paying The Keswell

School's tuition and fees for the remainder of Respondent's enrollment at the institution; and it is

further

ORDERED that Solomon R.S. will remain domiciled in the State of New York, and will

continue to live part-time with each parent in their respective Manhattan residences until he

surpasses the maximum age of eligibility at The Keswell School; and it is further

ORDERED that Letters of Co-Guardianship shall issue to Claudia M.S. and Jeffrey L.S.,

subject to the above requirements and restrictions, upon their duly qualifying according to law.

The Clerk of the Court shall e-mail a copy of this decision, which constitutes the order of

the court, to the following parties at the email addresses below.

Decree signed. ,cf-' Dated: April~, 2025

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