Much of the day-to-day work of our Courts takes place behind the scenes in ex parte or otherwise expedited proceedings in which exigent or otherwise extreme circumstances require an immediate hearing and a prompt disposition.  Examples follow in which the plaintiff-wife sought an Order enjoining her defendant-husband from being present in a delivery room when she gave birth to their child; a psychiatric facility sought an Order permitting retention of a patient and authorizing medication over the patient’s objection; petitioners sought to enjoin the special guardian of an incapacitated person from withdrawing life-sustaining treatment; petitioners sought to disinter and move a body; and legal parents of children in New York, whose legal standing is not recognized in all states and abroad, sought to adopt children here.

B.T. v. E.T., 2016 NY Slip Op 26280 (Sup. Ct. Richmond Co., DiDomenico, J., September 2, 2016)

Supreme Court described the action:

The present action for divorce was commenced by the filing of a Summons and Complaint on or about March 18, 2016. By Order to Show Cause dated 9/2/16, Plaintiff Wife B. T. “Wife,” seeks an order enjoining Defendant Husband E.T. “Husband,” from being present in the delivery room when she gives birth to the parties’ expectant child. Husband objects to the Order and further claims that Wife’s counsel failed to give proper notice of this emergency application as required by 22 NYCRR 202.7(f).

Resolved the issue of notice:

Turning first to the  question of sufficient notice, 22 NYCRR 202.7(f) reads (in relevant part) as follows:

Any application for temporary injunctive relief, including but not limited to a motion for a stay or a temporary restraining order, shall contain, in addition to the other information required by this section, an affirmation demonstrating that there will be significant prejudice to the party seeking the restraining order by the giving of notice. In the absence of a showing of significant prejudice, the affirmation must demonstrate that a good faith effort has been made to notify the party against whom the temporary restraining order is sought of the time, date and place that the application will be made in a manner sufficient to permit the party an opportunity to appear in response to the application.

While Husband’s attorney argues that she did not receive “sufficient notice” because she was not advised 24 hours in advance, a plain reading of the statute reveals no such requirement. Rather, the notice provided must be “sufficient to permit the party an opportunity to appear.” Given the exigent circumstances of this case, particularly the uncertainty of Wife’s advancing labor, the Court finds that the notice by facsimile transmission provided by Plaintiff’s lawyer to Defendant’s counsel was sufficient. Moreover, the Court notes, and Defense counsel acknowledges, that Husband was aware that Wife objected to his presence in the delivery room. Accordingly, as Husband was aware that Wife might well make an application in the event that this issue could not be resolved between counsel, his claims to have been “sandbagged” by this application are not persuasive.

Applied the law to the facts:

Turning to the merits of Wife’s application, it is axiomatic that Wife, as a patient, has a legal right to determine the course of her medical treatment and the right to the utmost privacy in the receipt of medical care…This right includes the sole decision to consent to non-medical spectators, if any, who might seek access to her medical information or more intrusively, to be physically present during the rendering of medical care…Indeed, under the strong privacy rules created by the Federal Health Insurance Portability and Accountability Act (HIPAA), Husband would not be entitled to access Wife’s medical records without her permission, no less force his attendance at the delivery of such care…As the right to medical care, and the privacy rights granted in the pursuit of that care, are rights that belong wholly and solely to Wife, this Court finds that Husband has no legal standing to challenge those rights, or mother’s choices in that regard.

Further, if the Court were to grant Husband access to the delivery room against Wife’s wishes, it would create a potentially unsafe and volatile situation. Husband’s unwelcomed presence could cause additional stress on Wife and potentially disrupt medical personnel attempting to provide care to both mother and baby during this serious and vulnerable time. Moreover, such a ruling would suggest that Wife’s rights to make medical decisions about her own body are interpreted in some way to be equal to, or subordinate to, the demands of Husband, which they clearly are not.

The Court granted the Wife’s motion for an Order enjoining the Husband from entering the delivery room.

Matter of Salam (PG), 2016 NY Slip Op 51261(U) (Sup. Ct. Kings Co., Fisher, J., August 15, 2016)

Supreme Court described the pending proceedings:

The Court consolidated for hearing Kingsboro Psychiatric Center’s (KPC) application for (i) a two year retention under Mental Hygiene Law (MHL) §9:33 and (ii) medication over objection for patient PG (PG).

The background:

PG is a 58 year old male. He suffered a traumatic brain injury in a work related accident in 2001. He has been diagnosed with (i) psychotic disorder due to another medical condition with delusions, (ii) psychotic disorder due to another medical condition with hallucinations, (iii) mild neurocognitive disorder due to traumatic brain injury and (iv) schizoaffective disorder. He was hospitalized for psychiatric illness from 7/10/02- 5/6/03. In 2007 the Court appointed both a personal needs guardian and a financial guardian for PG. He was subsequently admitted to Kings County Hospital from 2/26/08-4/11/08   . He resided in a group home (Canarsie House) from 2005-2011 and was re-admitted to Kings County Hospital on July 15, 2011 and transferred to KPC on January 12, 2012, where he remains today.

PG’s current admission was precipitated by NYC Emergency Medical Services being called by his residence due to his disorganized behavior evidenced by a verbal and physical altercation with his roommate and residence staff.

The prior proceedings:

Since PG’s admission to KPC, the hospital has received the following authorizations for further retention of PG pursuant to MHL §9.33: (i) six (6) months on consent effective March 29, 2012; (ii) one (1) year on consent effective October 4, 2012; (iii) up to ninety (90) days (no hearing requested) effective October 10, 2013; (iv) up to six (6) months stipulated effective January 16, 2014; (v) up to six (6) months stipulated effective October 23, 2014; and (vi) one (1) year retention order after hearing before Judge Wade on June 18, 2015. During the four year history of PG’s involvement with the mental health part, neither of his appointed guardians were parties to these proceedings.

The pending application:

[KPC] has submitted this application for further retention of PG for a period not to exceed two (2) years. A hearing was held on July 7, 2016 and July 14, 2016 and the Court went to KPC on July 19, 2016, to determine whether PG requires further involuntary psychiatric care and treatment.

The governing law:

Pursuant to Mental Hygiene Law § 9:33, to retain a patient involuntarily, [KPC] must prove by clear and convincing evidence that the patient is mentally ill, in need of continued supervised care and treatment and poses a substantial threat of physical harm to himself and/or others[.]

Pursuant to 14 NYCRR 527.8, in order for the court to grant the hospital’s application for medication over objection, the hospital must show by clear and convincing evidence that the patient lacks the capacity to make a reasoned decision regarding treatment, the treatment is in the best interest of the patient, the benefits of the treatment outweighs the risks, and this is the least restrictive alternative available[.]

Testimony in support:

Dr. Vikas, a psychiatrist at KPC testified on behalf of the hospital. She stated that PG has a diagnosis of schizoaffective disorder. He exhibits signs and symptoms of that illness including selective mutism and delusions. Dr. Vikas stated that PG often stands in the hallway and stares blankly. She testified that it appears that he responds to internal stimuli because he makes unprovoked bizarre statements (such as “the food is poisoned” and “his roommate tried to kill his ex-wife”). Dr. Vikas testified that the patient lacks insight into his medical condition (diabetes) and denies having a psychiatric or medical condition. When offered medication to control his diabetes, he shakes his head and walks away. PG is manageable on the unit. He takes his psychiatric medication and handles his activities of daily living (ADLs) adequately. According to Dr. Vikas, his refusal to acknowledge his medical condition and need for corresponding medication, evidences his impaired judgement and makes him a danger to himself.

Dr. Vikas admitted that the hospital lacks a long term treatment plan for PG and his condition remains the same. The hospital does not have a discharge plan either because PG refuses all attempts to meet with his treatment team, refuses to engage in discharge discussions, and refuses to accept placement. According to Dr. Vikas, if a patient refuses to go to a residence, the hospital cannot force him and has not done so for many years. She concludes that PG’s lack of engagement coupled with refusal to take medication shows that he is unable to survive safely in the community, and thus not suitable for discharge. In her professional opinion, continued care in the hospital is essential to his welfare[.]

Testimony in opposition:

On July 13, 2016, the court heard testimony from Mr. David Rostan, PG’s personal needs guardian who described some of the patient’s treatment [and] placement history. Mr. Rostan stated that his duties as personal needs guardian included looking after PG’s best interest, determining his residence, looking after his medical needs and assisting him in his communication. Mr. Rostan opposes the hospital’s retention application. He feels the patient has not progressed during his four years at KPC and a less restrictive environment would be in the patient’s best interest. He stated there was a consensus in 2014 to discharge PG to the Transitional Placement Program (TPP) on the grounds of Kingsboro but the hospital withdrew its support for that placement. Mr. Rostan met with Mental Hygiene Legal Services (MHLS) and the hospital treatment team in April 2016 but there was no discussion of the patient’s discharge at that meeting. Mr. Rostan would like PG to be placed in a permanent group home, but no specific facility had been identified.

The Court observation/visit:

The court went to KPC on July 19, 2016, to observe and hear from PG as he had not attended any of the previous retention hearings. However, despite the Court’s attempts to engage him in conversation, PG refused or was unable to participate in any discussion regarding his placement or treatment.

The findings:

Based on the totality of the evidence, the court finds that the hospital has shown by clear and convincing evidence the patient is mentally ill and poses a danger to himself or others. He is clearly unable to care for himself. PG has to be in a supervised environment[.]

The testimony bears out that the hospital has not changed his psychiatric medication for some time, and PG has not improved. While, in the court’s opinion, it is unfortunate that PG remains in a psychiatric hospital for an extensive period of time, a suitable discharge option has not been presented. PG cannot be discharged without one…A carefully tailored discharge plan to an appropriate care facility is key to this patient’s success. In the court’s analysis, it appears that a more aggressive search for appropriate placement could result in a suitable discharge plan for PG.

Admonishing that:

[I]t is important that going forward, there is a dialogue between the Guardianship and Mental Hygiene parts when it comes to actions affecting this patient…[T]he guardian has the responsibility to provide for the personal needs of the incapacitated person. The guardian is charged with: (i) making all residential and care arrangement for PG, taking his functional limitations into account, (ii) making decisions regarding social environment and other social aspects of his life, and (iii) consenting to or refusing generally accepted routine or major medical or dental treatment. Therefore, the hospital and guardian should be working in unison to ensure that PG is discharged to a facility where his personal and medical needs can be met.

The medication application:

Dr. Lee, PG’s medical doctor at KPC, testified in support of KPC’s application for treatment over objection. PG has been diagnosed with Type 2 Diabetes and a traumatic brain injury. Dr. Lee testified that he has not been able to examine PG. He is recommending medication along with various screening tests, some of which are invasive including colonoscopy with general anesthesia, CT-Scan with and without contrast, MRI, and EEG.

In order to treat a patient over their objection, the hospital must prove by clear and convincing evidence that the patient lacks the capacity to make a reasoned decision regarding his treatment, that the treatment is in the patient’s best interest, the benefits of the treatment outweigh the risks, and the proposed treatment is the least restrictive alternative which is narrowly tailored to the patient. The court finds that beyond treatment for PG’s known medical conditions of diabetes and constipation, the hospital has not met its burden by clearing and convincing evidence that this treatment is in PG’s best interest, and is narrowly tailored to his needs.

The court is authorizing the following medication as per KPC’s request to control PG’s diabetes, Metformin 500 mg orally twice daily to 1 gram orally twice daily. Glucose monitoring with glucose test strips using finger stick one to four times a day up to seven (7) days per week or less. Insulin regular 2 to 10 units up to four times daily up to seven day per week OR in the alternative, sitagliptin 100 mg orally daily. Glipizide (Glucotrol) 5 to 20 mg orally in AM, or glyburide (Diabeta) 2.5 to 5 mg orally in the AM, Insulin Glargine (Lantus) 2 – 100 units subcutaneous daily AND for constipation Colace 100 to 400 mg orally daily in single or divided doses, OR in the alternative laculose 15 to 30 ml (10 grams/15 ml) per day in single or divided doses.

Matter of Doe, 2016 NY Slip Op 26278 (Sup. Ct. K. Co., King, J., August 19, 2016)

Supreme Court described the proceeding:

In this guardianship proceeding, petitioner, Yakov B. (“Yakov”) moves by order to show cause for an order enjoining Fern Finkel, Esq., as the Special Guardian for Jane Doe , an Incapacitated Person (“IP”), from withdrawing life-sustaining treatment pursuant to Article 29—CC of the Public Health Law (“PHL”), commonly known as the Family Health Care Decision Act (“FHCDA”), for the IP and directing that the Special Guardian rehabilitate the IP. In support of the order to show cause, the father of the IP, Yakov, submits an affidavit in support. On the return date of the order to show cause, Anna B. (“Anna”), Yakov’s wife and mother of the IP, and Bella R. (“Bella”), the IP’s first cousin, joined in the application on the record. The movants appeared pro se on the return date. The Special Guardian, Co-Guardians, John D. and Julia S. (“Julia”), the IP’s husband and daughter, respectively, and Mental Hygiene Legal Services (“MHLS”) as attorney for Jane Doe, submit opposition to the requested relief.

The background:

Jane Doe was born on June 4, 1966 in Belarus, part of the former Soviet Union. She immigrated to the United States with her daughter, Julia, in 1993, after divorcing her first husband. Thereafter, she met John D. and moved in with him in 1996. Their son, Michael, was born on June 24, 1997. The couple married in 1999. Although she worked briefly as a home attendant, Jane Doe was primarily a “stay at home mom.” On November 18, 2003, Jane Doe, then 37 years old, gave birth to her third child, Elizabeth, who was delivered at Beth Israel Medical Center (“Beth Israel”) prematurely at seven months. Due to complications associated with her pregnancy and childbirth, on November 23, 2003, Jane Doe went into cardiac arrest during an unsuccessful intubation, resulting in respiratory failure, and anoxic encephalopathy (loss of oxygen to the brain). As a result, she suffered anoxic brain damage and spastic quadriparesis (the contraction of her four extremities due to irreversible muscular and tendon damage). Presently, she is ventilator dependent requiring an endotracheal tube that attaches from the respirator through the trachea, receives artificial hydration and nutrition through a percutaneous gastrostomy (feeding tube), and is classified as being in a persistent vegetative state. Based on Jane Doe’s medical condition, she will require institutional care in a health care facility for the rest of her life, and currently receives total care in the ventilator unit of Rutland Park Nursing Home (“Rutland Park”).

At the time of this incident, Julia was fifteen years old, Michael was six years old, and both resided with Jane Doe and John D. Other than Jane Doe’s immediate family, her blood relatives include her parents, Yakov and Anna, and a brother Igor B. (“Igor”) who is a licensed practical nurse at Resort Nursing Home’s respiratory unit. Jane Doe was previously a patient at Resort Nursing Home’s ventilator unit, where Igor was involved in her care. Bella is a close relative of Jane Doe and her family, having joined in the instant application, and appearing in court with Yakov and Anna regarding prior proceedings initiated by Igor.

In 2006, Jane Doe received a settlement of about $7.1 million dollars as a result of a medical malpractice lawsuit against Beth Israel. Her husband, John D. received $1 million dollars from the settlement award for loss of services. In conjunction with the settlement of the lawsuit, in 2006, John D. commenced a guardianship proceeding under Article 81 of the Mental Hygiene Law…for the appointment of a guardian for Jane Doe. After a full hearing and upon notice to all interested parties, including Yakov and Anna, the court determined that Jane Doe is an incapacitated person within the meaning of MHL §81.02, and issued an Order and Judgment dated July 11, 2006. John D. was appointed personal needs guardian and Jacqueline Kadanoff, Esq. was appointed property management guardian. The Order and Judgment also named Yakov, Anna, and Julia as interested parties to receive notice of any further proceedings.

The prior proceedings:

In 2012, after learning that John D. was about to initiate measures to remove Jane Doe from life support, Igor moved by emergency order to show cause to have John D. removed as the personal needs guardian of Jane Doe. The Court, in conjunction with this application, appointed Frieda Rosengarten as Court Evaluator to investigate the allegations raised by Igor, and to re-evaluate Jane Doe due to the considerable number of years that passed since her initial evaluation in 2006. By separate order, the Court appointed a physician to perform an independent medical examination on Jane Doe and appointed MHLS as counsel to protect Jane Doe’s interests. Lisa C. Boranian, Esq., appeared for MHLS in the 2012 proceeding, and represents Jane Doe in the instant proceeding before the court.

In opposition to Igor’s order to show cause, John D. moved by motion dated August 17, 2012, for an order determining, inter alia, that he, as Jane Doe’s personal needs guardian, is her surrogate…, and therefore has the authority to take appropriate steps to withdraw her from life-sustaining treatment. The respective applications of the parties served as a catalyst to extensive litigation[.]

After more than a year of litigation, which included several appearances and hearings, John D., Igor, and MHLS entered into a Stipulation of Settlement on the record on April 17, 2013. Pursuant to the Stipulation of Settlement, the parties agreed that Igor’s application to remove John D. as the personal needs guardian of Jane Doe was withdrawn with prejudice, and John D.’s motion requesting an order determining that he is Jane Doe’s surrogate…was also withdrawn with prejudice. In addition, the parties stipulated that John D. and Julia would serve as personal needs Co-Guardians and Fern Finkel, Esq., would serve as the Special Guardian of Jane Doe. In her capacity as Special Guardian, Ms. Finkel was designated as the surrogate of Jane Doe with regard to all health care decisions, including the withdrawal of life-sustaining treatment[.]

The parties further stipulated that any decision regarding the withdrawal of life-sustaining treatment…would be made by Ms. Finkel only after consultation with John D., Julia, Yakov and Anna. In the event Ms. Finkel recommended the withdrawal of life-sustaining treatment…this determination would be final and binding upon the parties to the Stipulation of Settlement. The terms of the Stipulation of Settlement were memorialized in an Order dated September 6, 2013 (“Final Order”).

Pursuant to the Final Order, the Special Guardian submitted a Report to the Family and Court (“The Report”) dated November 15, 2013, wherein she determined that Jane Doe is in a persistent vegetative state without hope of recovery and that it is not in her best interests to remain on life support. Thereafter, on December 6, 2013, the Special Guardian served a seven-day written notice on all interested parties of her “intention to discontinue life support.”

The pending application:

On December 13, 2013, Yakov, Anna, and Bella, moved by order to show cause for a temporary restraining order to prevent the implementation of the Special Guardian’s decision to withdraw life-sustaining treatment, and for an order requesting that “steps be taken for [Jane Doe]’s rehabilitation.” The Court in granting the stay directed that a hearing was required to determine the Special Guardian’s compliance with [the applicable statute].

After finding that the application was not barred by the doctrine of collateral estoppel because the issue before the Court was not the identical issue that was previously raised in 2012, and finding that the movants had standing to object to the special guardian’s decision to withdraw life-sustaining treatment, the Court considered the merits based upon the testimony of Jane Doe’s mother and sister-in-law and other family members, as well as the treating physician and special guardian.

The Court framed the issue:

In the case at bar, the Court must determine whether the Special Guardian’s decision to withdraw life-sustaining treatment from Jane Doe complies with the FHCDA, and whether said decision constitutes an abuse of discretion.

Since the enactment of the FHCDA, the majority of cases interpreting the statute, involve infants and developmentally disabled patients, who have never had decision-making capacity…In [a prior case] with similar facts to the case at bar, the court found that under the FHCDA, the ward was obligated to receive artificially administered food and water based on the ward’s religious and moral beliefs coupled with the fact that there was no showing of permanent unconsciousness, life expectancy of less than six months, and irreversible condition. In the within matter, unlike [that case], the Special Guardian contends that Jane Doe’s religious and moral beliefs cannot be ascertained, despite claims to the contrary by family members. Thus, this is a case of first impression[.]

The applicable New York law with respect to the withdrawal of life-sustaining treatment:

Under the common law, “no right was held to be more sacred than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.”…New York law is based on this common law right, and the courts have consistently adhered to the principle that every human being of adult years and sound mind has a right to determine what should be done with his own body…Thus, it is well settled law in this state that a patient having decision-making capacity, has the right to consent to or decline life-sustaining treatment[.]

For patients lacking decision-making capacity, however, the Court of Appeals has consistently ruled that life-sustaining treatment can be withdrawn or withheld only upon a showing of clear and convincing evidence of the patient’s wishes to refuse treatment under specific circumstances[.]

[G]ovenor Cuomo, recognizing the need to develop public policy regarding the ethical, moral and legal considerations arising from decisions to save and/or prolong life due to advancements in medical technology, convened the New York State Task Force on Life and Law (Task Force) in 1985. The initial Task Force recommendations served as the basis for the passage of New York’s Do-Not-Resuscitate Law and Health Care Proxy Law, respectively, which both provide a third party with decision-making ability for individuals lacking capacity, and are commonly referred to as advance directives. Subsequent legislative amendments gave surrogates decision-making authority to withhold or withdraw life-sustaining treatments under these statutes.

Notwithstanding these legislative initiatives, for patients without advance directives and lacking decision-making capacity to forgo life-sustaining treatment, the law remained unchanged — clear and convincing evidence of the patient’s wishes to refuse the same or similar treatment under specific circumstances. The Task Force addressed this issue in its 1992 Report, When Others Must Choose: Deciding for Patients Without Capacity. The Task Force acknowledged that “[w]ith passage of the do-not-resuscitate and health care proxy laws, New York State took major strides to address the hard choices posed by decisions for these patients [without advanced directives].” At the same time, the Task Force found that based on the legal precedents established by the New York State Court of Appeals, only the legislature can authorize family members and others close to a patient to decide about life-sustaining treatment. Against this backdrop, the Task Force’s proposals on surrogate decision-making were submitted to the Legislature, and after seventeen years of debate and compromise the passage of the FHCDA became a reality.

Outlined the Family Health Care Decisions Act:

The FHCDA was signed into law on March 16, 2010. The intent of the statute is to “[fill] a gap that remains in New York law “ and establish a decision-making process applicable for patients lacking decision-making capacity and without advanced directives in hospitals and nursing homes. The statute sets forth the requirements for determining incapacity; provides for the selection of a surrogate decision maker from a priority list; empowers such surrogates to make health care decisions for patients who lack capacity and who have not otherwise appointed an agent to make health care decisions; requires the surrogate to adhere to the substituted judgment/best interests standard; and limits the circumstances in which a surrogate may authorize the withholding or withdrawal of life-sustaining treatment. Under the statute, a determination of incapacity can be made pursuant to court order, upon the appointment of an Article 81 guardian for health care decisions or pursuant to a medical determination by a physician…[the law] sets forth, in order of priority, a list of persons who can be designated as surrogate for the purpose of surrogate decision-making:

1. A court appointed guardian;
2. A spouse or domestic partner (as defined in the FHCDA);
3. A son or daughter (eighteen years of age or older);
4. A parent;
5. A brother or sister (eighteen years of age or older); and
6. A close friend.

If a person with higher priority on the list declines to act, then the next person on the list, in order of priority, has the right to act. In order for a surrogate to make a decision regarding life-sustaining treatment the statutory mandate is twofold and requires that [both] criteria…be met.

Finding that:

In the case of Jane Doe, the record establishes that the Special Guardian consulted Dr. Jerome B. Posner and Dr. Yellin, both of whom are board certified neurologists together with Dr. Mukherji, a board certified internist and Jane Doe’s treating physician. Dr. Posner opined to a reasonable degree of medical certainty, that based on his examination of Jane Doe in 2012, and his review of an MRI performed in July of the same year, Jane Doe is in a persistent vegetative state without possibility of recovery. Dr. Posner based on his conclusion on: 1. Jane Doe’s medical history established that she has been in a persistent vegetative state for several years; 2. An examination of Jane Doe found no evidence of even minimal cognitive function; and 3. The MRI which shows extensive tissue destruction that is incompatible with any degree of consciousness. Similarly, Dr. Yellin, upon examination, diagnosed Jane Doe with anoxic encephalopathy resulting in persistent vegetative state. He opined to a reasonable degree of medical certainty that Jane Doe is permanently unconscious and her diagnosis is permanent and irreversible. The opinions of both these consulting physicians is consistent with Dr. Mukherji who also opined to a reasonable degree of medical certainty, that Jane Doe’s condition is permanent and that there is no treatment modality that would improve her physical or mental condition.

Based on the uncontroverted medical evidence and results of her investigation, the Special Guardian determined that Jane Doe lacks participation, understanding, comprehension, awareness or reaction to any meaningful stimuli, other than discomfort stimuli which manifests in physical spasm, hyperventilation or recoiling from pain; she is unresponsive to meaningful stimuli and has been ventilator dependent and in a persistent vegetative state since 2003; exhibits no conscious action or participation in life; exists in a vegetative and permanently unconscious state; does not make conscious movements, her limbs do not move except in spasm or to recoil, or if moved by caretakers, she is unable to communicate in any manner, does not follow commands or directions, and does not make eye contact. Despite their contentions to the contrary, the movants have failed to provide any objective medical evidence that Jane Doe exhibits any sign of consciousness or will improve with rehabilitation.

Concluding that:

Based on a review of the record, the Court finds that Ms. Finkel’s decision to withdraw life-sustaining from Jane Doe satisfies the best interests standard set forth in PHL §2994-d [4](a)(ii).

Continuing that:

The Court now considers whether the Special Guardian’s decision to withdraw life-sustaining treatment from Jane Doe complies with PHL §2994-d [5], which has two tests. Life-sustaining treatment can be withdrawn or withheld if either test is met. PHL §2994-d [5](a)(i) requires a finding that treatment would be an extraordinary burden to the patient and concurring medical opinions that the patient is permanently unconscious. Ms. Finkel’s determination that Jane Doe’s continued treatment on the respirator would be excessively burdensome is supported by the evidence. This is a subjective determination to be made by the surrogate. By specifying the part of the determination that the physicians have to make, the statute implicitly leaves it up to the surrogate to make the other part of the determination. Additionally, consistent with the statute, concurring medical opinions by Dr. Mukherji, Jane Doe’s treating physician, and Dr. Yellin, establish to a reasonable degree of medical certainty that Jane Doe is permanently unconscious.

PHL §2994-d [5](a)(ii) requires a finding that the provision of treatment would involve such pain, suffering or other burden that it would reasonably be deemed inhumane or extraordinarily burdensome under the circumstances and the patient has an irreversible or incurable condition, as determined by an attending physician with the independent concurrence of another physician to a reasonable degree of medical certainty and in accord with accepted medical standards. While the Special Guardian submitted evidence to establish that “the provision of treatment would involve such pain, suffering, or other burden that it would reasonably be deemed inhumane or extraordinarily burdensome under the circumstances,” the evidence relied upon by the Special Guardian did not establish whether a patient in a persistent vegetative state is able to feel pain. Additionally, Drs. Mukherji and Yellin did not opine to any degree of medical certainty that Jane Doe’s current treatment involves such pain, suffering or other burden that it would be reasonably inhumane or extraordinarily burdensome under the circumstances to continue treatment.

Based on a review of the record, the Court finds that the Special Guardian’s decision to withdraw life-sustaining treatment from Jane Doe complies with PHL §2994-d [5](a)(i) but does not comply with the criteria set forth in PHL §2994-d [5](a)(ii). However, the Special Guardian’s compliance with PHL §2994-d [5](a)(i) alone is sufficient to withdraw life-sustaining treatment from Jane Doe.

Noting that:

Most 37 year olds like Jane Doe are unlikely to contemplate being permanently unconscious for a period of nine years and counting. Based on the evidence, the sole benefit of medical treatment for Jane Doe is to be kept metabolically alive since she has suffered extensive tissue destruction of the brain which is incompatible with any degree of recovering consciousness in the future. Thus, disability is total and no return to an even minimal level of social or human functioning is possible. The Court’s conclusion is consistent with the spirit of the statute expressed by the HHC Bioethics Council “…[t]he practice of medicine should not be governed by the “technological imperative” [because it exists it must be employed]”[however] “[i]n order for an intervention to be in the best interest[s] of the patient, it must advance health and well-being, and not simply extend individual organ function in light of a failing organism.”

The Court is also guided by Ms. Boranian, counsel for Jane Doe who does not oppose the Special Guardian’s decision. Ms. Boranian’s position is based on consultations with Dr. Posner and numerous visits with Jane Doe wherein she concluded that Jane Doe is devoid of thought, emotion and sensation, and thus, has no reasonable expectation of life.

It is important to note that while the movants contend otherwise, the Court finds that Ms. Finkel, as Special Guardian for Jane Doe, fulfilled her responsibilities as set forth in the Final Order in good faith. As a long-standing practitioner and lecturer in the area of elder law, Ms. Finkel’s decision to withdraw life-sustaining treatment from Jane Doe was made only after conducting a full investigation and upon careful deliberation of the results thereof. Specifically, she considered the concurring clinical opinions of not only two physicians as statutorily required, but three physicians in support of her findings under the statute. Further, she discussed her decision with Jane Doe’s immediate family, extended family, and their attorneys, and provided [the required] notice of her decision…In the face of resistance and hostility exhibited by some family members, Ms. Finkel remained committed to enforce the clear intent of the FHCDA, which is that surrogate decision-making shall be patient centered. Accordingly, in reviewing the record in this tremendously sensitive and difficult matter, the Court is satisfied that the Special Guardian complied with the statutory criteria[.]

The Court concluded that the special guardian’s decision to withdraw life-sustaining treatment from Jane Doe complied with PHL §§2994-d[4] and [5](a)(1), and therefore, did not constitute an abuse of discretion.

Matter of Lipiner v. Plaza Jewish Community Chapel, 2016 NY Slip Op 31733(U) (Sup. Ct. N.Y. Co., Bluth, J., September 16, 2016)

Supreme Court described the pending applications:

Petitioner, Leszkowitz’s sister, brings this amended petition, by order to show cause, to allow, permit and direct Leszkowitz’s body to be disinterred and flown to Israel for burial.

Respondents David Leszkowitz (David) and Shelly Leszkowitz Mishal (Shelly), Leszkowitz’s surviving children, cross-move to dismiss petitioner’s petition on the ground that petitioner lacks standing pursuant to CPLR 3211 (a)(3).

The background:

This proceeding arises out of the death of Ms. Frieda Mandelbaum Leszkowitz on July 19, 2016. She was buried at Mount Hebron Cemetery in Flushing, New York on July 20, 2016.

Petitioner contends that this burial was improper and that Leszkowitz wished to be buried in the Eretz Hachaim Cemetery located in Jerusalem, Israel. Petitioner insists that David and Shelly colluded with respondents Plaza Jewish Community Chapel (Plaza) and Cedar Grove Cemetery Association (Cedar Grove) to have Leszkowitz buried in the Mount Hebron Cemetery even after they were informed that the burial was contrary to Leszkowitz’s wishes.

Petitioner asserts that Leszkowitz purchased a burial plot in Eretz Hachaim Cemetery in Israel and that Leszkowitz inspected this plot during a visit to Israel in November 2013.  Petitioner also submits affidavits that purport to show that Leszkowitz expressed her desire on multiple occasions to be buried in Israel.

David and Shelly dispute petitioner’s account of the facts. They insist that the deed for the burial plot in Israel was not signed by Leszkowitz and that petitioner provides no evidence that Leszkowitz ever paid for the burial plot. David and Shelly also dispute petitioner’s claims that they had a strained relationship with Leszkowitz. David and Shelly also maintain that it was Leszkowitz’s wish to be buried next to her ex-husband and child in the Mount Hebron Cemetery.  David and Shelly assert that Leszkowitz had a close relationship with their father, her ex-husband, despite their two divorces. David and Shelly also claim that although Leszkowitz’s parents are buried in Israel, the Eretz Hachaim Cemetery is located about 40-50 miles from where Leszkowitz’s parents are buried and Leszkowitz has no living relatives in Israel.

The applicable law:

“The quiet of the grave, the repose of the dead, are not lightly to be disturbed. Good and substantial reasons must be shown before disinterment is to be sanctioned”…”While the disposition of each case is dependent upon its own particular facts and circumstances and while no all-inclusive rule is possible, the courts, exercising a benevolent discretion, will be sensitive to all those promptings and emotions that men and women hold sacred in the disposition of the dead”…”And looming large among the factors to be weighed are the wishes of the decedent himself’[.]

“A body interred in a lot in a cemetery owned or operated by a corporation incorporated by or under a general or special law may be removed therefrom, with the consent of the corporation, and the written consent of the owners of the lot, and of the surviving wife, husband, children, if of full age, and parents of the deceased.  If the consent of any such person or of the corporation cannot be obtained, permission by the county court of the county, or by the supreme court in district, where the cemetery is situated shall be sufficient.” (N-PCL 1510[e]).

“If a person designated to control the disposition of a decedent’s remains,…is not reasonably available, unwilling or not competent to serve, and such person is not expected to become reasonably available, willing or competent, then those persons of equal priority and, if there be none, those persons of the next succeeding priority shall have the right to control the disposition of the decedent’s remains” (Public Health Law§ 4201[2](b]).

The standing issue:

David and Shelly cross-move to dismiss the petition on the ground that petitioner lacks standing to bring this matter. They claim that Leszkowitz’s will does not authorize petitioner (who is the Executrix of the will) to make a determination regarding the disposition of Leszkowitz’s remains.

David and Shelly further claim that…David and Shelly are third in line to determine the disposition of Leszkowitz’s remains. They also claim that since the first two persons with priority to determine the disposition of remains are inapplicable (a person designated in a written statement or a surviving spouse), David and Shelly properly made the decision to bury Leszkowitz and petitioner lacks standing to bring this proceeding. David and Shelly also claim that petitioner lacks standing to bring this action…They claim that only those specifically enunciated in the statute can bring an action for disinterment.

In opposition, petitioner claims that David and Shelly are not competent…to control the disposition of Leszkowitz’s remains. Petitioner asserts that as a surviving sibling, she would then be next in line to determine the disposition of Leszkowitz’s remains. Petitioner contends that she has standing…because the court can order such relief and no court has ever defined the class of people who may bring such a proceeding.

The analysis:

“Sparse case law exists interpreting the recent enactment of Public Health Law § 4201, which, inter alia, prioritizes the persons authorized to control a decedent’s remains, and immunizes funeral homes, cemeteries, and crematories from civil liability for their good faith disposal of human remains upon the direction of a person enumerated in and prioritized by Public Health Law§ 4201(2)(a)”[.]

 

Here, because there is no written instrument that designates a person to control the disposition of Leszkowitz’s remains, Leszkowitz’s surviving children clearly have priority over petitioner. However, priority does not mean that petitioner lacks standing to bring this proceeding…Therefore, petitioner has standing to bring this proceeding pursuant to Public Health Law§ 4201.

Petitioner also has standing pursuant to N-PCL 1510(e). As David and Shelly acknowledge in their memorandum of law, courts have not affirmatively stated who may seek a court’s permission to disinter…The statute clearly permits a party to seek a court order for disinterment regardless of the status of the person seeking it. David and Shelly’s argument that there would be an impermissibly broad scope of persons permitted to bring a disinterment proceeding if petitioner was allowed to bring this matter is misplaced. David and Shelly’s parade of horribles regarding the class of people who could bring a disinterment proceeding loses sight of the purpose of this type of proceeding. Public policy favoring judicial economy is not prioritized over a Court’s solemn responsibility to identify a decedent’s intended final resting place.

A disinterment proceeding…provides an opportunity for persons to appeal to a Court when they believe they have evidence demonstrating that a person’s wishes regarding her final remains have not been followed. Even if a person completely unrelated to a decedent — say, a co-worker or best friend — has evidence that the decedent had certain wishes for the disposition of her remains, should a Court refuse to even consider this application simply because of a person’s status?  Of course not.  If anyone has such evidence and feels strongly enough to want to speak for the dead and bring a proceeding, the law allows it.

Considering such an application does not mean that a decedent’s remains would be automatically disinterred; it only means that the doors to the courthouse are open to hear all the relevant evidence and to make an impartial decision as to decedent’s wishes. Caselaw clearly disfavors disturbing a body once it has been buried. But the financial incentives involved in bringing other types of actions…are not present in a disinterment proceeding. Therefore, there is no reason for this Court to arbitrarily create a rule that prevents the sister of a decedent, the executrix of the decedent’s estate, or anyone else from bringing a disinterment proceeding.

The competency issue:

A key question for this court is whether David and Shelly are competent, under the meaning of the Public Health Law, to carry out the disposition of Leszkowitz’s remains. One court has held that competence means a willingness “to act in conformance with her wishes and desires”…The term competent is not defined in the Public Health Law, “but given the apparent legislative’ intent that a decedent’s directions and wishes be honored insofar as practicable, it seems reasonable to consider a person’s ability and willingness to carry out those wishes, to the extent they are known when assessing competency”[.]

The Court must also reconcile the intersection between the priority list in [the law] and the caselaw directing courts to consider the wishes of the decedent. The parties have provided no support for the notion that the Public Health Law prohibits a court’s inquiry into the decedent’s wishes and, instead, shifts the decision-making regarding the disposition of remains to the persons listed in [the law]. The Court finds that this list merely details persons who have the responsibility to dispose of a decedent’s remains rather than designate people who would decide, without accounting for the decedent’s wishes, how to dispose of those remains. This conclusion is buttressed by [the law], which compels “the person in control of the disposition, pursuant to this section” to “faithfully carry out the directions of the decedent to the extent lawful and practicable” and “in a manner appropriate to the moral and individual beliefs and wishes of the decedent.”

The conflicting evidence:

The conflicting evidence before this Court requires that there be an evidentiary hearing to determine the wishes of the decedent. “Where the papers and pleadings in a [disinterment] proceeding raise a material issue of fact concerning the burial wishes of a decedent, an evidentiary hearing is required”[.]

David submits an affidavit where he claims that, within the past year (which would be after the plot in Israel was purchased) Leszkowitz expressed a desire to be buried next to her ex-husband and deceased son in New York[.]

Petitioner submits the affidavits of her daughter (Leszkowitz’s niece), two home health care workers, and her own affidavit, all claiming that Leszkowitz expressed a desire to be buried in Israel.

These conflicting accounts of Leszkowitz’s wishes compels this Court to hold an evidentiary hearing to assess the credibility of the witnesses and determine these issues of fact.

Matter of L., 2016 NY Slip Op 31868(U) (Family Court, Kings Co., Ross, J., October 6, 2016)

Family Court summarized the question presented:

These six private placement adoption proceedings raise the question of whether a person has standing to adopt a child in New York State who is already a legal parent of the child in New York State but whose legal parentage is not expressly recognized in all jurisdictions within the United States and abroad.

Concluding that:

In order to harmonize the non-uniform, unsettled state of family law regarding the definition of legal parentage in the United States and elsewhere with New York’s emphatic legal mandate to promote the best interests of children, this Court answers in the affirmative.

Identified the parties:

The proceedings involve a total of five petitioners and six subject children. All of the petitioners and subject children were residents of Kings County at the time the proceedings were filed…Each petitioner is the female spouse of the birth mother and was married to the birth mother when the children were born. Two of the marriages took place in New York State…The other three marriages took place outside New York prior to 2011; those three marriages are valid in New York State…Each petitioner is named as a parent on her subject child’s birth certificate. All of the birth mothers conceived by artificial donor insemination (ADI) with the consent of their spouse. In four of these proceedings, the donor sperm was obtained from a cryobank; the donor was anonymous. In the other two proceedings, the sperm donor was an individual known to the petitioner. In all but one proceeding, a person authorized to practice medicine performed the ADI procedures[.]

The factual background:

The Court finds that each petitioner is a legal parent of her respective child or children. DRL Section 73.1 provides that “Any child born to a married woman by means of artificial insemination performed by persons duly authorized to practice medicine and with the consent of the woman and her husband, shall be deemed the legitimate, birth child of the husband and wife for all purposes.” When the requirements of DRL 73.1 are met, the presumption is irrebuttable…Moreover, even when couples do not follow the statutorily required steps, such as obtaining written consents and having the ADI procedures performed by a physician, the marital presumption nevertheless applies although in such circumstances it is rebuttable…The requirements of DRL 73.1 were followed for five of the six subject children. For the sixth subject child, a licensed physician did not perform the ADI procedures and therefore the DRL 73.1 presumption of legitimacy would be rebuttable as to this child. The known sperm donor for that child consented to the child’s adoption, however. The four anonymous sperm donors waived their claims to paternity and surrendered any rights they may have had to establish paternity or seek legal custody. The other of the two known sperm donors consented to the child’s adoption.

The legal template:

New York’s Marriage Equality Act provides that “No government treatment or legal status, effect, right, benefit, privilege, protection, or responsibility relating to marriage, whether derived from statute, administrative or court rule, public policy, common law or any other source of law, shall differ based on the parties to the marriage being or having been of the same sex rather than a different sex. When necessary to implement the rights and responsibilities of spouses under the law, all gender-specific language or terms shall be construed in a gender-neutral manner in all such sources of law.”…In other words, the Marriage Equality Act requires that the word “husband”…be interpreted to include the female spouse of a birth mother.

The presumption that a child is the legitimate child of a birth mother’s spouse has been described as “one of the strongest and most persuasive known to the law.”…The effect of the presumption, inter alia, is to preserve each child’s relationship with both spouses in a legally protected family unit even if the child may not be genetically linked to both spouses — an interest that represents a prime example of the type of “protections,” “responsibilities,” and “benefits” envisioned by the Marriage Equality Act[.]

The prima facie proof:

In addition, each petitioner is named on the birth certificate of the applicable child as one of the parents. This constitutes prima facie evidence in New York State of the petitioners’ parenthood…The prima facie evidence of parenthood may be rebutted (for example, by a man who asserts a claim of paternity). As noted, however, in these proceedings the four anonymous sperm donors waived their claims to paternity and the two known sperm donors consented to the adoptions.

The law governing adoptions:

New York’s Domestic Relations Law defines an adoption as follows: “Adoption is the legal proceeding whereby a person takes another person into the relation of child and thereby acquires the rights and incurs the responsibilities of parent in respect to such other person.”…Adoption did not exist at common law; there must be strict compliance with statutory requirements for an adoption to be recognized as valid…As legal parents, then, the petitioners herein do not appear to need to “acquire the rights and incur the responsibilities” of parent by adoption. New York law already grants them those rights and responsibilities.

Moreover, DRL 110 provides that the [persons who] may adopt a child — categories that do not match the petitioners’ status[.]

*     *     *

New York State law requires approval of an adoption if the judge presiding over the proceeding believes the adoption will promote the best interests of the subject child…The petitioners argue that, absent approval of these adoptions, their New York legal parenthood will not be given recognition uniformly throughout the United States and in foreign countries — that denying their standing to adopt will leave the legality of their parenthood in limbo. Envisioning situations in which they will be unable to ensure that their children receive appropriate care related to unforseen health, housing, legal, travel, or other circumstances (theirs or the children’s) that require such recognition when they are with the children outside New York State and the birth mother is not available, they argue that denial of the adoptions will fail to promote the best interests of the subject children.

The legal “patchwork”:

Even within the United States, not all states statutorily recognize legal parentage based on the presumption of legitimacy [in New York law]. For example, of the thirty-eight states that have explicit statutes addressing the parental status of spouses participating in ADI, twenty-eight states expressly employ gendered terms such as “husband,” “man,” and “father” in specifying who may be recognized as a non-genetic parent of child conceived by means of ADI; only ten states and the District of Columbia use non-gendered terminology. Twelve other states have no explicit statute at all in this regard.

The above is intended to illustrate the patchwork nature of the applicable laws. Other illustrations provide additional understanding: As with New York, for example, approximately half of all states require medical participation in ADI procedures; left unresolved is the question of how a claim of legal parentage of a non-adopted child would be evaluated in those states in instances where a parent did not use a physician. The same kind of question would arise in the approximately half of all states that require a variety of consents for ADI as well as have differing filing requirements with either courts or agencies for those consents, in order for ADI to be given legal effect.

Concluding that:

In the Court’s opinion, the foregoing recital of authority strongly supports promoting the best interests of the subject children by finding that the petitioners have standing to adopt, and the Court so holds. The petitioners, who are legal parents of their children in New York State, are recognized only as step-parents in other states. In most countries outside the United States, they are recognized neither as spouses nor as parents but, at most, as intimate partners of their birth mother spouses. Either of those statuses — step-parent or intimate partner — would give the petitioners standing to maintain adoption proceedings in New York. The language of DRL 110 does not expressly restrict the description of an adoption petitioner’s status with respect to a subject child, for the purpose of standing to adopt, to be limited to what that description may be in New York State only.

The factual record of these proceedings makes clear that the quality of the petitioners’ parenting has been laudable. Given the non-uniform, unsettled state of family law regarding the definition of legal parenthood in the United States and elsewhere, approving the adoptions is required to promote the children’s best interests everywhere they may find themselves.

Observation:  Much of the time-consuming work of our Courts takes place “out of the limelight”, in unpublicized special proceedings that raise profoundly important questions of statewide significance that effect special personal, community and broad or generic rights, duties and obligations.