                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: February 26, 2015                   519356
________________________________

In the Matter of MARY WW.,
   an Incapacitated Person.

MARY VV.,
                    Appellant;              MEMORANDUM AND ORDER

WILLIAM VV.,
                    Respondent.
________________________________


Calendar Date:   January 12, 2015

Before:   McCarthy, J.P., Lynch, Devine and Clark, JJ.

                              __________


      The Virdone Law Firm, PC, Westbury (John Virdone of
counsel), for appellant.

     Herbert Segarra, Hartsdale, for respondent.

                              __________


Devine, J.

      Appeal from an order of the Supreme Court (Connolly, J.),
entered September 6, 2013 in Albany County, which, in a
proceeding pursuant to Mental Hygiene Law article 81, denied
petitioner's motion to modify respondent's guardianship powers to
allow her to have visitation with Mary WW.

      Mary WW., the mother of petitioner and respondent, is in
her mid-90s, resides in a skilled nursing facility and suffers
from dementia. In 2009, a proceeding was brought under Mental
Hygiene Law article 81 to have her adjudicated an incapacitated
person and to have a guardian of the person and/or property
appointed on her behalf. She consented to the appointment of a
guardian, which was also recommended by a court evaluator. In
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addition, all of her children agreed that a guardian should be
appointed except for petitioner, who has an acrimonious
relationship with other family members. Following a hearing,
Supreme Court granted the petition and appointed respondent to be
Mary WW.'s guardian. In such capacity, respondent is vested with
the authority to control Mary WW.'s social environment and
determine who may visit her. Since his appointment, respondent
has not allowed petitioner to have visitation with Mary WW. As a
result, petitioner brought a motion before Supreme Court to
modify respondent's guardianship powers to allow her to have
visitation with Mary WW. Supreme Court denied the motion
following a hearing, and this appeal by petitioner ensued.

      Initially, petitioner contends that, in denying her motion,
Supreme Court improperly relied upon the hearsay statements of
witnesses who had contact with Mary WW. We disagree. Although
the rules of evidence are generally applicable to proceedings
brought under Mental Hygiene Law article 81, Mental Hygiene Law §
81.12 (b) provides that the court may waive such rules "for good
cause shown." Here, we note that Mary WW. initially consented to
the guardianship, it was recommended by the court evaluator and
none of Mary WW.'s children, except for petitioner, objected.
Moreover, it is undisputed that Mary WW. now suffers from severe
dementia and was unable to attend the modification hearing, which
occurred nearly four years after the guardianship was
established. In view of this, it was necessary for other
witnesses to testify concerning her interactions with petitioner.
Significantly, petitioner was not prejudiced, as she was present
at the hearing and denied the allegations. Under these
circumstances, we find that Supreme Court had good cause for
relaxing the rules of evidence and considering the hearsay
statements of witnesses who had contact with Mary WW.

      Petitioner further asserts that Supreme Court violated
Mental Hygiene Law § 81.36 (d) by placing the burden of proof on
her, instead of respondent, to establish that respondent's
guardianship powers should be modified. Mental Hygiene Law
§ 81.36 sets forth the specific grounds upon which a guardian may
be discharged or his or her powers modified. In conjunction
therewith, Mental Hygiene Law § 81.36 (d) provides that "[t]o the
extent that relief sought . . . would terminate the guardianship
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or restore certain powers to the incapacitated person, the burden
of proof shall be on the person objecting to such relief." The
purpose of placing the burden of proof on the objecting party,
rather than the party bringing the application, is to "lessen the
difficulty of an incapacitated person seeking to gain more
control over his or her life" (Law Rev Commn Comments, reprinted
at McKinney's Cons Laws of NY, Book 34A, Mental Hygiene Law
§ 81.36, at 374).

      Here, Mary WW. did not bring the motion on her own behalf
nor does she seek to exercise more control over her life.
Likewise, the object of petitioner's motion is not to terminate
the guardianship or restore certain powers to Mary WW. Rather,
petitioner seeks to modify respondent's power over Mary WW.'s
social environment in such a manner as to require him to allow
her visitation. Thus, Mental Hygiene Law § 81.36 (d) is
inapplicable, and Supreme Court did not improperly shift the
burden of proof.

      Turning to the merits of petitioner's motion, petitioner
seeks to modify respondent's power to control Mary WW.'s social
environment pursuant to Mental Hygiene Law § 81.36 (a) (4) "based
upon changes in the circumstances of the incapacitated person."
Specifically, she maintains that Mary WW.'s dementia has
progressed to such a point that she would not be harmed by having
visitation with petitioner. Although Mary WW.'s dementia has
undoubtedly worsened since the 2009 appointment of respondent as
guardian, no medical records or medical testimony was presented
at the hearing regarding her mental state. Numerous witnesses,
however, testified to the mental and emotional abuse that
petitioner inflicted upon Mary WW. over the years, and respondent
indicated that the guardianship proceeding was brought to shield
Mary WW. from such abuse. Notably, one of the parties' sisters
testified that, after the guardianship was in place, Mary WW.
made it clear to her that she did not wish to have any contact
with petitioner. No evidence was presented of any change in
circumstances that occurred between the time of respondent's
appointment and petitioner's application. Therefore, Supreme
Court properly concluded that modification of respondent's powers
was not warranted and, consequently, denied the motion.
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McCarthy, J.P., Lynch and Clark, JJ., concur.



ORDERED that the order is affirmed, with costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
