IN RE: GARETT “YY” (1999)

Appeal from an order of the Surrogate's Court of Delaware County (Estes, S.), entered October 6, 1997, which, inter alia, granted petitioner's application, in a proceeding pursuant to SCPA article 17-A, to modify a prior court order appointing respondents Gail “YY” and Michael “YY” as coguardians of the person and property of Garett “YY”.

Respondents Gail “YY” and Michael “YY” (hereinafter referred to as the mother and the father, respectively, and respondents collectively) are the parents of Garett “YY”, a 22-year-old man with Down's Syndrome.   In July 1994, respondents were issued joint letters of guardianship over Garett's person and property and their daughter, respondent Kara “YY” (hereinafter the sister), was appointed standby guardian.   Following respondents' acrimonious divorce, petitioner, Garett's court-appointed guardian ad litem, commenced this proceeding in November 1996 requesting Surrogate's Court to review and modify the guardianship order.   The petition alleges that respondents are unable to communicate and cooperate with each other thereby jeopardizing Garett's rights and interests and making continued joint guardianship inappropriate.

A hearing ensued following which Surrogate's Court concluded that continued joint guardianship was unworkable.   Having the opportunity to evaluate the testimony and credibility of all witnesses, particularly respondents, the court determined that the mother was incapable of subordinating her own interests in favor of Garett.   In contrast, it found that both the father and sister would each be a competent guardian and assiduously promote Garett's best interests.   Accordingly, Surrogate's Court appointed the father as sole guardian and continued the sister's designation as standby guardian.

 In its discretion, Surrogate's Court may modify a prior guardianship order and relieve a guardian from his or her position if “the interest of justice will best be served” based upon a showing that such modification is necessary to protect “the personal and/or financial interests” of a mentally retarded individual (SCPA 1755;  see, Matter of Patricia M.D. [Robert Joseph D.-Robert James D.], 233 A.D.2d 326, 327, 649 N.Y.S.2d 808).   The mother does not dispute that joint guardianship of Garett is inappropriate given the hostile relationship that has festered between herself and the father.   Rather, her sole contention on appeal is that the decision designating the father as Garett's sole guardian was against the weight of the evidence.   We are unpersuaded.

 In rejecting the mother's claim, we are guided by the principle that this discretionary determination by Surrogate's Court is entitled to great deference as that court had the opportunity to hear the witnesses and weigh their credibility;  absent an abuse of discretion, such determination will not be disturbed (see, Matter of Patricia M.D. [Robert Joseph D.-Robert James D.], supra, at 327, 649 N.Y.S.2d 808;  Matter of La Fountain, 33 A.D.2d 586, 304 N.Y.S.2d 421).   In claiming that she was the better guardian for Garett, the mother asserts that any problems he suffered since respondents' marital discord is the result of less contact with her and daily contact with another Down's Syndrome adult who purportedly dominates him (the father's current wife has a son with Down's Syndrome who lives with them).   It is clear, however, that Surrogate's Court considered all of the testimony presented and determined that, despite the mother's love for Garett and laudable efforts to overcome an alcohol dependency, the father was better suited to be Garett's sole guardian.

Indeed, the evidence indicates that the mother's alcoholism has been the root of serious family conflict over the years and the now defunct relationship between herself and the sister.   Moreover, the mother has been verbally abusive in the past, tends to treat Garett like a toddler rather than an adult and has exhibited inappropriate affection toward him.   The father, on the other hand, has a more age-appropriate relationship with Garett and works to promote independence and self reliance in him.

 To the extent that the mother argues that Surrogate's Court erred in failing to credit the testimony of the only expert witness to testify at the hearing, we find, as did Surrogate's Court, that his opinions were not particularly persuasive.   This psychologist was retained by the mother in the course of respondents' acrimonious divorce action to assess her suitability to be Garett's custodial parent.   He opined that the mother was a satisfactory parent and that placement with her would be “the ideal location” for Garett.   His recommendations, however, were based on sessions with the mother and made without the benefit of ever having met the father, his current wife or the sister.   As there exists a sound and substantial basis in the record for the court's factual findings, it was not an improvident exercise of discretion for it to grant the petition and modify its prior guardianship order by awarding sole guardianship to the father (see, SCPA 1755;  see also, Matter of Patricia M.D. [Robert Joseph D.-Robert James D.], supra, at 327, 649 N.Y.S.2d 808).

 Finally, the request for counsel fees and sanctions by the father and sister, on the ground that the mother's appeal lacks merit and her appellate brief contains “egregious” comments, is denied (see, 22 NYCRR 130-1.1[c] ).  Although the mother has ultimately been unsuccessful in pursuing this appeal, neither the appeal nor any argument contained within her brief is so frivolous as to justify sanctions (see, e.g., Stern v. Ofori-Okai, 246 A.D.2d 807, 809, 668 N.Y.S.2d 68;  Vermont Fed. Bank v. Chase, 226 A.D.2d 1034, 1037, 641 N.Y.S.2d 440;  cf., Matter of Troy Police Benevolent & Protective Assn. [City of Troy], 223 A.D.2d 995, 636 N.Y.S.2d 499).

ORDERED that the order is affirmed, without costs.

CARPINELLO, J.

CARDONA, P.J., MERCURE, YESAWICH, Jr., and GRAFFEO, JJ., concur.