Allegation
She suddenly and inappropriately removed an elderly woman with dementia, over who she had been appointed as guardian, from a nursing home facility in which she had become comfortable to another facility. The trial court found her actions to have been done with “a callous disregard for the ward’s needs and requests”. Ms. Marino was further found to have engaged in subterfuge and lies directed toward the ward and professional staff at the facility to accomplish this inappropriate removal from the facility. Based upon her conduct she was removed as guardian for cause by the trial judge and the actions the guardian were ultimately reversed. The removal was upheld by the NH Supreme court.
Response
Click on Attachment for supporting documents
Had any proper investigation or examination of the circumstances been conducted by either the trial court, Supreme Court or the Special Administrator, or had Judge Kelly properly reviewed and responded to my submission to him directly, the conclusions of this finding could not have been substantiated in any aspect. The Special Administrator would have been aware that most all the allegations upon which the trial court made its finding were faulty, supported only by hearsay testimony and easily refuted by extensive documentation provided to the trial court and subsequently to Judge Kelly when he conducted an inquiry three months later.
Judge Kelly, by letter of September 24, 2014 (Attachment 1), offered me an opportunity to explain my actions in the matter of M.P. I submitted a lengthy response to Judge Kelly (Attachment 2) addressing each finding and concern contained in the trial courts order, along with supporting documentation refuting and contradicting the basis upon which the trial court’s determinations were made. Judge Kelly did not make any further inquiries of me or respond to the submission.
My response to Judge Kelly and the supporting documentation refute the trial court findings as well as establish my actions as guardian were not only clinically sound, but adhered to my ethical obligations. The documentation also refuted most all of the hearsay testimony.
A proper inquiry would have revealed this matter was never examined past a single hearing held on the basis of nothing more than a letter forwarded to an administrative judge, a copy of which was not sent to me (Attachment 3). Notice of a July 7 hearing along with a copy of the letter, was received on July 2, providing only 1 business day before a long weekend to review the letter, contact counsel and prepare to address the extensive allegations. (Attachment 4)
In addition to conducting an improperly noticed hearing in the absence of any Motion or Petition before the court, the conduct of the trial court was to accept almost exclusively hearsay testimony from just one witness, who had no interactions with the guardian nor was ever in attendance at any care plan meetings for the duration of the 4 year guardianship.
The trial court dismissed the motion for reconsideration, simply stating “the guardian has not otherwise identified any errors of law or fact”, which in itself is a statement not supported by a reading of the Motion for Reconsideration. (Attachment 5)
Despite Judge Kelly’s assertion the Supreme Court upheld the findings of the trial court, the Supreme Court’s informal decision reflects rather they simply found it is the trial judge’s discretion to accept hearsay testimony, which they also accepted as evidence. They declined to address the issue of whether or not I violated guardianship standards (Attachment 6). The Supreme Court decision itself reflects numerous factual errors which conflict with available documentation.
Disciplinary hearing testimony reflects the Special Administrator was not in possession of, or even aware of, the extensive explanation and supporting documents forwarded to Judge Kelly in October of 2014. (Attachment 7). He also acknowledged there were no evidentiary submissions to the trial court (Attachment 8)
There seems to be some indication the Special Administrator did eventually review the submissions to the trial court and Judge Kelly, but even so, his statement during the disciplinary hearing (Attachment 9) and statements contained in the disciplinary recommendation clearly reflect the Special Administrator did not consider any evidence or testimony challenging the trial courts findings:
“While in the interest of fairness these exhibits and testimony were allowed, counsel and Ms. Marino arguably strayed close to, if not into, the realm of re-litigating the findings of the Probate Division and Supreme Court. To the extent that any such evidence contradicted those findings, as opposed to properly addressing matters concerning sanctions, the undersigned gave that evidence little, if any, weight.” (Attachment 10 footnote)
In this matter, my actions as a guardian were clinically and ethically appropriate and in the best interest of the ward. The failure of the trial court, Supreme Court and ultimately the Special Administrator and Judge Kelly, to properly hear or examine the matter, has resulted in a conclusion so defective it rises to the level of slander.