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In re Queiro

January 14, 2005

IN THE MATTER OF ROSA CRISTINA QUEIRO, AN INCAPACITATED PERSON


On appeal from the Superior Court of New Jersey, Chancery Division, Probate Part, Hudson County, 282574.

Before Judges Kestin, Alley and Fuentes.

The opinion of the court was delivered by: Kestin, P.J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued November 30, 2004

Isabel Barcelo and George Quintero appear as petitioners in a verified complaint, originally filed on August 7, 2003, and amended shortly thereafter, seeking, pursuant to N.J.S.A. 3B:12- 30, a judgment recognizing that Rosa Cristina Queiro (Cristina) continues to be an individual in need of a guardian over her person and confirming their appointment as testamentary guardians of Cristina;*fn1 and court approval, inter alia, of the Queiro Family Trust as part of a protective arrangement for the benefit of Cristina, pursuant to N.J.S.A. 3B:12-1 to -5.

An October 12, 2000 psychologist's report from Dr. Herman Huber, framed to aid in"assess[ing] the need for guardianship services[,]" noted that Cristina, at that time, was twenty-seven years of age. She suffered from spina bifida, had been diagnosed as hydrocephalic, and was in a wheelchair. According to the report, she was mildly retarded in terms of"intellectual functioning, below the 1st percentile[;]" had attained a fourth grade reading level; and, in behaviorial terms, functioned"adaptively... at the level of a 6 year, 7 month old child."

The evaluation acknowledged that the"latter score is somewhat depressed by her physical limitations." The report concluded: Ms. Queiro is unable to independently shop, cook, travel, self-medicate, etc. She does have good knowledge of her personal demographics. At times she can be childish and paranoid and has an inordinate fear of strangers.

In my professional opinion, the evidence is clear and convincing that Ms. Queiro is appropriate for a limited guardianship. She lacks the cognitive capacity to make decisions, manage her affairs, and govern herself, in areas related to medical, legal, vocational, and residential issues and requires a guardian for these domains.

However, Ms. Queiro appears capable of serving as her own guardian in areas related to daily scheduling, leisure activities, etc.

The court-appointed psychologist in this matter, Dr. Joan Kakascik, noted that the Huber report had been"arranged through a [Division of Developmental Disabilities] program that a case manager would have described."

Josefina Queiro was Cristina's mother. In February 2002, the court had appointed her limited guardian of Cristina's person. Josefina died on July 22, 2003, when Cristina was twenty-nine years old. In her last will and testament, executed in 1995, Josefina had designated"[her] sister, Isabel Barcelo, together with [her] nephews, George Quintero and Michael Quintero,*fn2 jointly and severally, as co-guardians of Cristina."

At the same time, she established a special needs trust for the benefit of her daughter, see 42 U.S.C.A. §1396p(d)(4)(A); N.J.S.A. 3B:12-1 to -5; N.J.A.C. 10:71-4.11(c), funded, inter alia, under the residuary provisions of the will.

Juan Queiro, the respondent in this matter, is Cristina's father. He and Josefina were divorced on June 30, 1989, when Cristina was fifteen years of age. The judgment of divorce granted custody over the child to Josefina. In 1991, Juan moved to Spain. He maintained telephone contact with Cristina and returned more or less annually for extended stays during which he would exercise visitation with his daughter frequently. Juan testified at the trial in this matter that he had had no knowledge of Josefina's petition for guardianship or the February 2002 judgment granting it. Along with his answer to the verified complaint in this matter, Juan Queiro, on August 29, 2003, filed a counterclaim seeking guardianship of his daughter, Cristina.

On October 3, 2003, the trial court appointed a guardian ad litem, who issued a written report dated October 28, 2003. Trial began on December 8, 2003. The court heard the testimony of Isabel Barcelo, George Quintero and Juan Queiro on that date. On the next trial date, December 10, 2003, the judge stated on the record that, after conversing informally with Cristina and reviewing the report of the guardian ad litem, he had determined to appoint an attorney to represent Cristina"so that her preferences, in addition to being told to me by Cristina, can be advocated by her attorney." The attorney had been appointed and was present in court on December 10. That attorney, in turn, at the court's behest, had recommended Dr. Kakascik as a psychologist the court could appoint to conduct an evaluation of Cristina and the parties' respective plans for her care, and render a report without undue delay. The trial judge also indicated that the court would furnish the attorney with a transcript of the proceedings to date, i.e., the testimony of the parties. The court then heard the testimony of a remaining fact witness, Juan Queiro's sister-in-law, in support of his position.

Dr. Kakascik rendered her report on December 22, 2003, and testified on January 7, 2004. Her evaluations are summarized in the following excerpts from her report:

1. What weight should be given to Ms. Queiro's preference for a guardian and a place of residence?

* * * Ms. Queiro appears to be reluctant to make a choice and to state her preference, relying instead on the judge to make the right decision for her. * * *

2. How reliable is Ms. Queiro's thinking?

I did not observe Ms. Queiro to display signs of thought disorder. * * *

3. What is Ms. Queiro's reasoning ability and decision-making ability?... Ms. Queiro's abilities to reason and to make decisions may have been limited by confined life experiences and opportunities. * * * Ms. Queiro... may have [been] overly protected.... * * *

It seems to me that Ms. Queiro has not had opportunities to make decisions about important matters in her life. She has been living a most dependent existence, although a loving one. She does not seem to have had enough demands ...


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