Guardianship Study Commission Message #14

Dear Guardianship Study Commission Members, News Media Professionals, and others:

Today starts a new series of weekly posts, covering statistical analysis of New Mexico’s courts’ administration of the guardianship cases that come before their judges.

While this post is long, we guarantee it will “blow your mind” while shining (some) light on the secretive process of guardianship, as well as expose how District Courts are ‘disappearing‘ certain guardianship cases from every type of record-keeping – including budgets and annual reports – that might allow the public to monitor the courts, much less provide accurate financial reporting, legal case management, or allow the Legislature and/or the Governor’s office to conduct meaningful oversight.

 

Overview:

Since we are members of the public, we only have access to guardianship and conservatorship information the AOC (Administrative Office of the Courts) first made available to the public on May 29, 2017, even though statutes and rules have existed for years that allowed the public access to certain information about guardianship and conservatorship cases.

On May 29, 2017, the AOC instructed its IT division to belatedly begin to conform to New Mexico statutes (NMSA 45-5-303 (I); NMSA 45-5-407(M)) and Rules of Court Procedure (NMRA 1-079(D)(7),(9); NMRA 12- 314(C)(9),(12)).

For the first time – at least only on-line, so far – the public is finally allowed to access the information that by Legislative Statutes and state Supreme Courts Rules should have been available to the public, without any restrictions, all along, including:

(1) docket entries;

(2) date of the proceeding, appointment and termination;

(3) duration of the guardianship; and

(4) the name and other information necessary to identify the alleged incapacitated person.

 

Because there is a limit to the free time we have to devote to pro bono research into the courts’ accurate reporting on itself, we chose four District Courts divisions out of New Mexico’s 13 Judicial Districts, to focus on:

  1. Santa Fe – 1st Judicial District – Code ‘101’
  2. Albuquerque – 2nd Judicial District – Code ‘202’
  3. Las Cruses – 3rd Judicial District – Code ‘307’
  4. Bernalillo – 13th Judicial District – Code ‘1329’

 

Trend Analysis of annual new guardianship cases:

From the newly-available case docket entries, graphs were created showing the number of new guardianships created annually in each of the four District Courts from Jan 1, 1998 to June 30, 2017, with the exception of the 3rd Judicial District, Las Cruses, Court Code 307, whose publicly available data begins Jan 1, 2000.

These charts do not reflect whether or not the guardianship or conservatorship was granted or denied, only the number of new cases filed annually in each district. (We will be discussing the rates of judges approving or denying petitions for guardianship in a future article, as that is an important metric that should already be tracked and made public by the AOC.)

 

 

 

There are statistical anomalies within each graph that require explanation (presumably from the AOC, since the AOC is the state group in charge of, among many tasks, “Collecting and providing information on and for the courts.”) The anomalies to which we refer are different for each graph/District Court:

  • Referring to the chart above: In the First Judicial District Court, Santa Fe, from 1998 to 2003, there is an increasing number of new guardianship cases created annually, peaking with 128 new cases created in 2002, then dropping precipitously 2003 to 2004 and basically staying relatively flat at about 40 new cases a year, on average, from 2004 to 2017. Why is there a large change in the number of new guardianship cases created between 1998-2003, versus the much lower amounts 2005-2017? Is this due to a change in Santa Fe County’s population, or a change in the frequency of judges conscripting wards into guardianship?
  • Referring to the chart above: In the Second Judicial District Court, Albuquerque, similar to the 1st Judicial District/Santa Fe, there has been a decline from peak years of 1998-2005, but it is less precipitous and more gradual, until 2013 to present, when the new guardianship cases are about 2/3rds of what they were 1998-2005. Again, why? Is this due to a change in population, change in judges frequency in ordering guardianship, or something else?
  • Referring to the chart above: In the Third Judicial District Court, Las Cruses, what happened in 2008, 2012, and 2016 that caused such a dramatic, essentially 1-year increase in the number of new guardianship cases created in those years?
  • Referring to the chart above: In the Thirteenth Judicial District Court, Bernalillo, greatly resembles its next-door neighbor, the 2nd Judicial District, in that higher number of guardianships in 2001-2009 have given way to significantly lower numbers of new cases since 2010. Why?

 

Examining annual last-filing dates:

The methodology used to acquire data in this analysis was simple and is based on New Mexico courts naming their cases following a consistent pattern. Each District Court starts off each new year, by naming cases according to convention, part of which is the current year, and then sequentially increasing numbers are assigned to each new, successive guardianship petition filed with the court.

All of New Mexico’s courts use the “PQ” case-type code to report guardianship, conservatorship, and adult protective proceeding cases, as well as some child guardianship cases. Using the 2nd Judicial District as an example, the first guardianship case in 2015 would have a case number assigned as “D-202-PQ-2015-00001.” To completely explain this system, which all the courts in New Mexico use:

“D” stands for District Court;

“202” is the District Court’s code, in this case the 2nd Judicial District Court in Albuquerque;

“PQ” indicates that it is a guardianship case;

“2015” is the year the case was initiated; and

“00001” is the sequentially-assigned number for that case.

Using a methodical approach, the last PQ case of each year, for each District court, can be derived. Plotting these dates of the last PQ case of each year, along with the total number of guardianship cases for that year, results in the following table:

Year 1st – 101 2nd – 202 3rd – 307 13th – 1329
1998 12/10/1998 – 58 12/30/1998 – 279 12/16/1998 – 28
1999 12/02/1999 – 68 12/29/1999 – 293 12/29/1999 – 24
2000 12/21/2000 – 82 12/29/2000 – 300 12/29/2000 – 51 12/19/2000 – 36
2001 12/14/2001 – 93 12/28/2001 – 326 12/21/2001 – 47 12/14/2001 – 43
2002 12/18/2002 – 128 12/31/2002 – 281 12/30/2002 – 70 12/26/2002 – 41
2003 12/29/2003 – 111 12/31/2003 – 298 12/24/2003 – 73 12/30/2003 – 38
2004 11/03/2004- 67 12/27/2004 – 340 12/28/2004 – 79 12/29/2004 – 38
2005 12/28/2005 – 40 12/29/2005 – 361 12/19/2005 – 60 12/13/2005 – 57
2006 12/26/2006 – 53 12/28/2006 – 335 11/22/2006 – 62 12/27/2006 – 55
2007 12/26/2007 – 46 12/28/2007 – 312 12/14/2007 – 58 12/26/2007 – 29
2008 12/17/2008 – 40 12/31/2008 – 285 12/30/2008 – 105 12/17/2008 – 48
2009 12/10/2009 – 49 12/31/2009 – 325 12/23/2009 – 79 12/31/2009 – 48
2010 12/03/2010 – 36 12/29/2010 – 256 12/29/2010 – 61 12/29/2010 – 28
2011 12/06/2011 – 59 12/28/2011 – 255 12/28/2011 – 71 12/20/2011 – 34
2012 12/20/2012 – 39 12/26/2012 – 262 12/12/2012 – 104 12/28/2012 – 23
2013 11/19/2013 – 28 12/27/2013 – 194 12/04/2013 – 50 12/30/2013 – 16
2014 12/19/2014 – 34 12/24/2014 – 212 12/23/2014 – 52 12/30/2014 – 21
2015 12/22/2015 – 25 12/31/2015 – 219 12/11/2015 – 82 10/23/2015 – 18
2016 12/28/2016 – 41 12/09/2016 – 192 12/22/2016 – 100 12/23/2016 – 25

 

The cells highlighted in yellow show years in which the date of filing of the last case of the year (i.e., the highest-numbered case that year) occurred at an abnormally early time, on a date that is statistically unlikely.

  • 1st Judicial District: Is it possible that the last case of 2004 occurred as early as Nov 3rd? And in 2013 that the last case occurred as early as Nov 19th? Typically in the 1st Judicial District the last PQ case of the year was filed in December, usually in the last half of the month.
  • 2nd Judicial District: It seems particularly odd that the last case of 2016 would have been filed as early as December 9th, especially when every other year since 1998 there were enough incapacitated people requiring guardianship that the last case of the year was always filed in the last week of December — for all proceeding 17 years.
  • 3rd Judicial District: 2006 is a stand-out year, with the last case of the year being filed on Nov 22nd, whereas all other years the last case was filed in December, usually during the week of December.
  • 13th Judicial District: 2015 is remarkable for its last guardianship case was filed as early as Oct 23, 2015.

So what types of subcategories of “PQ” cases is the public aware of? The subcategories of “PQ” cases, that the Administrative Office of the Courts (AOC) provides annual statistics to the state’s Supreme Court Justices, who then publish these annually, include:

  1. Probate Kinship Guardianship
  2. Probate Protective Proceedings (no longer used as of July 1, 2011 evidently)
  3. Sequestered Probate, Conservatorship Adult
  4. Sequestered Probate, Conservatorship Minor
  5. Sequestered Probate, Guardianship of a Minor
  6. Sequestered Probate, Guardianship of an Adult
  7. Sequestered Probate, Conservatorship/Guardianship of Adult
  8. Sequestered Probate, Conservatorship/Guardianship of Minor

 

Examining the 2nd Judicial District:

Looking at just the 2nd Judicial District, Albuquerque court, it is curious that the last day a guardianship case was filed in 2016 was as early as Dec 9, 2016, when during the previous 17 years the last guardianship case of the year was usually filed sometime in the last week of December, Dec 24-31.

Late 2016 was an important year in this history of New Mexico media reporting on guardianship, because from Nov 27th to Dec 4th the Albuquerque Journal published the groundbreaking series from nationally-syndicated columnist Diane Dimond, entitled “Who guards the guardians?” According to Diane in a KOAT-TV video, her mailboxes and those of the Journal “just blew up” as outraged New Mexicans called in to protest what had happened to matriarch Blair Darnell in an over 5 year long guardianship at the hands of her court-appointed Conservator and Trustee, attorney Darryl Millet.

 

 

So were there actually no new guardianship cases filed in New Mexico’s 2nd Judicial District from Dec 10 – 31, 2016? Or were cases filed between those dates ‘disappeared’?

 

Return of the Desaparecidos:

Prior to the time of the district courts sorta obeying – in a limited, online-access way – state statutes and rules that require the public be granted access to the case docket, and other information, cases were ‘disappeared.

Even if you knew a valid case number, or the name of someone you knew had been conscripted into guardianship, all attempts to find out information that the public is legally entitled to know, was returned with the message encapsulated in this article’s header image: No results found.

In previous posts, we referred to this phenomena of the courts ensnaring its victims in guardianship and then removing all public, legal traces of it from any courthouse records, the desaparecidos, in honor of the brave Argentinian mothers and grandmothers who spoke out against their government’s ‘disappearing’ their children and grandchildren. Just like in Argentina, New Mexico’s incapacitated have been taken into guardianship, into a legal black hole, from which no knowledge, no light, and no life ever escaped.

To a certain degree, this lawlessness of the New Mexico courts has been ameliorated – at least if you have access to a computer and the internet – since May 29, 2017, when the courts began on-line compliance with New Mexico statutes (NMSA 45-5-303 (I); NMSA 45-5-407(M)) and Rules of Court Procedure (NMRA 1-079(D)(7),(9); NMRA 12- 314(C)(9),(12))

But to this day (Wednesday July 26, 2017) if you call up a district court clerk’s office, or show up in person at a courthouse, you will be denied access to public information about guardianship cases you are entitled to see.

 

The Mystery of the Missing Case Numbers:

Due to the methodical nature of how the total number of guardianship cases in the four study district courts were obtained, we were dumbstruck to find that within a valid series of case numbers, several returned “No results found.”

Here is a table of the case numbers that have effectively disappeared from all traces of information, beginning Jan 1, 2010 to June 30, 2017, in our four study district courts:

These findings of ‘disappeared’ cases ONLY include research of cases coded “PQ” or ‘guardianship’ cases,

for only the listed district courts, for Jan 1, 2010 to June 30, 2017.

1st – 101 2nd – 202 3rd – 307 13th – 1329
Case Number

D-101-PQ-201100040

D-101-PQ-201100050

D-101-PQ-201200001

D-101-PQ-201200013

D-101-PQ-201300003

D-101-PQ-201300010

D-101-PQ-201400017

D-101-PQ-201400029

D-101-PQ-201500006

D-101-PQ-201600037

D-101-PQ-201700014

D-101-PQ-201700015

Case Number

D-202-PQ-201000115

D-202-PQ-201000203

D-202-PQ-201100080

D-202-PQ-201100096

D-202-PQ-201100155

D-202-PQ-201200192

D-202-PQ-201300036

D-202-PQ-201300041

D-202-PQ-201300058

D-202-PQ-201300167

D-202-PQ-201400201

D-202-PQ-201700035

Case Number

D-307-PQ-201200085

D-307-PQ-201300032

D-307-PQ-201300041

D-307-PQ-201400005

D-307-PQ-201600037

D-307-PQ-201600050

D-307-PQ-201600077

D-307-PQ-201600087

D-307-PQ-201700002

Case Number

D-1329-PQ-201200016

12 cases ‘disappeared’ out of a total of 279; or a 4.3% disappearance rate 12 cases ‘disappeared’ out of a total of 1730; or a 0.7% disappearance rate 9 cases ‘disappeared’ out of a total of 562; or a 1.6% disappearance rate 1 cases ‘disappeared’ out of a total of 176; or a 0.6% disappearance rate

From the chart above, on a percentage basis, the 1st Judicial District Court in Santa Fe is the worst offender of using desaparecidos to hide guardianship cases from any budgetary, case management system, or judicial oversight, or basic public knowledge.  With a disappearance rate of 4.3% the number of cases disappeared from the 1st Judicial District’s official case listing, is bound to have a significant financial impact on the court’s budget and resource allocation, to name just two obvious important metrics impacted by the courts’ use of desaparecidos.

We decided to investigate the 2nd Judicial District cases to determine what had happened to these sequentially valid case numbers about which “No results found” was all we could find online, despite the May 29, 2017 release of all other guardianship case dockets and names of the Wards, in accordance with NMSA 45-5-303 (I); NMSA 45-5-407(M).

We were told on Wednesday July 26, 2017, when we called the Albuquerque 2nd Judicial District Clerk’s office, inquiring about the validity of these case numbers that appeared in sequential order for the 2nd Judicial District, Code 202 (listed in table above) that the numbers appeared to be valid case numbers of sealed guardianship cases.

When we asked the clerk to please provide at least a title to the case, the clerk demanded to that we present the names of the parties to the case. When we said we did not know the parties to the case, the clerk told us that we were not allowed access to ANY information about these ‘protected persons’ cases. The clerk demanded to know how we had obtained the numbers to these cases, about which all knowledge appeared to be forbidden to the public. We explained that we had derived the case numbers by sequentially following the case docket numbers. The clerk indicated this was not possible, given that the public was barred from any information at all about guardianship cases.

We attempted to explain to the clerk that their refusal to grant us the four points of law to which the public shall have access in guardianship cases, the clerk told us we were wrong; they had worked at the courthouse for “way more than 5 years” and never once was any information ever allowed to be given to any member of the public about any guardianship case. You had to be a party to the case to get information about any guardianship case. Period.

 

Who authorized the desaparecidos?

Whoever is responsible for removing these guardianship cases has done a good job of not just removing the cases from the public’s statutory right-to-know, but they have also removed these cases from the Administrative Office of the Court’s (AOC) annual statistical addendum reports published by the Supreme Court for each fiscal year, beginning 1998. (Following the foregoing hyperlink, click on the ‘Reports’ folder in the selection tree, then expand the folder for each Fiscal Year you want to see the available reports.)

This implies that the annual reporting the state’s Supreme Court, in conjunction with the AOC, presented to the Legislature, as well as any relevant budgetary groups like the Board of Finance, are incorrect, because they omit a certain percentage of guardianship cases that apparently do exist, and therefore consume budgetary dollars, court time, judicial attention, and court personnel resources – all of which appear to have been sanitized and removed.

Here is WillPowerNM’s cross-referenced reports from the 2nd Judicial District’s Fiscal Years 2011-2016, showing that in FY 2011, 2013, 2014, and 2015 the number of guardianship (PQ) cases reported by the AOC to the Supreme Court each year is missing the desaparecidos cases. We can’t explain why the numbers that our research and the statistics presented in FY 2012 and 2016 don’t match up, but then again, that’s not our job.

Fiscal Year # of Desaparecidos AKA “No results found” v. # of Reported cases*
2011 253 new cases in statistical addendum;
256 new case numbers on Court’s docket, with 3 marked “No results found”
2012 241 new cases in statistical addendum;
241 new case numbers on Court’s docket, with 1 marked “No results found”
2013 244 new cases in statistical addendum;
248 new case numbers on Court’s docket, with 4 marked “No results found”
2014 188 new cases in statistical addendum;
189 new case numbers on Court’s docket, with 1 marked “No results found”
2015 215 new cases in statistical addendum;
216 new case numbers on Court’s docket, with 1 marked “No results found”
2016 228 new cases in statistical addendum;
227 new case numbers on Court’s docket, with 0 marked “No results found”

* This table only reports a total of 10 desaparecidos as compared to the 12 desaparecidos reported in the table in “The Mystery of the Missing Case Number,” but that is because 2 of the desaparecidos reported in“The Mystery of the Missing Case Number” fall outside the Fiscal Years 2011-2016.

 

R U Kidding? No, actually, that’s the ward’s name

To wrap all this up and bring it home to how guardianship cases in New Mexico lack oversight from the people who have the authority to administer guardianship cases, and those who claim that the system is functioning perfectly and follows state statutes and rules, not to mention the moral and human rights obligations when removing a person’s civil, constitutional, and human rights, thereby consigning them to a lifetime of domination by a court-appointed person — let’s consider the case of R U Kidding – and we are not joking – that is the Ward’s name.

This is also a situation that reveals not only are guardianship cases ‘disappeared‘ but so are probate cases, and we suspect any type of case that judges and attorneys want to disappear can be made to disappear. So here’s what we’ve uncovered so far about the hapless R U Kidding:

A petition to put R U Kidding under guardianship was filed in New Mexico’s 2nd Judicial District on March 24, 2016, Case title “In the Matter of R U Kidding”; Case Number: D-202-PQ-201600052. The petition was brought by attorney Darryl Millet, represented by his wife, Lori Millet and originally Judge Nan Nash was given the initial assignment.

Still on March 24th, in addition to the opening petition, a Motion to Consolidate was filed, a Request for hearing/setting was filed, and there is an Acceptance of Appointment as temporary guardian and conservator, even though there had been no hearing, just the setting for a hearing. The case docket is incomplete and does not state who was awarded the guardianship and the conservatorship, but we believe it likely that Darryl Millet, as the Petitioner, was given these powerful roles. Thus a temporary guardianship was established without any hearing, notification to the affected parties, or many other parts of NMSA 45-5-303 and 45-5-407 being obeyed correctly and fully.

On March 25th – the 2nd day to put R U Kidding under guardianship – two things happened:

  1. The judge assigned to the case was changed from Nan Nash to Alan Malott; and
  2. The case was closed with an Order of Consolidation: “Consolidating case numbers D-202-PB-2014-00455 and D-202-PQ-2016-00052 all future pleadings shall be filed in D-202-PB-2014-00455.”

When we went to look up the newly consolidated Probate case number (“PB” case code) under which R U Kidding’s guardianship case was from now onward to be conducted, we were greeted with the “No results found” message.

We called up the 2nd Judicial District Court and spoke to a clerk, who was a little helpful. We were told Case number D-202-PB-2014-00455 was titled “Eugene H and Marie S Copeland Revocable Trust” and that the case was sealed.

Because the case was sealed, the clerk told us the public was not allowed to know anything more about the case (which is not true, but once again, you can’t argue with a clerk who’s been told a lie by her boss, because her ability to receive a paycheck depends on supporting the boss, not blowing the whistle on them. This is especially true if your boss is a judge or works in a courthouse.)

Now imagine that! A probate-trust case involving Judge Alan Malott, with a completely (and incorrectly) sequestered court record about which the public is not allowed to even know who the parties are, who their attorneys are, and this case involves one of New Mexico’s most notorious conservator and trustee who specializes in “disposing” of valuable, high-dollar trusts and estates for far lower values than the estates’ and trusts’ assets are worth.

Given Judge Malott’s current multi-million dollar case loads of

  1. D-202-CV-201304646 Leonie Rosenstiel (PR) v Decades LLC et al – a case in which Judge Malott has just done an abrupt about-face and unsealed the case after four years; and
  1. D-202-CV-201307676 Victor Kearney et al vs Louis Abruzzo et al – a case in which Judge Malott appears to have re-written the terms of a trust left by the late wife of Victor Kearney, while awarding massive legal fees to defendants Louis Abruzzo and Benjamin Abruzzo.

Since the Rosenstiel case involves frequent Darryl Millet cohorts Greg MacKenzie and Dan Pick, defending the often complained-about Decades LLC and its (sole?) owner Nancy Oriola, and the Abruzzo case involves attorney Robert Gorence – who just last week picked up a new client in the form of indicted Ayudando Guardians co-owner Susan Harris – this is a small world after all.

Stay tuned for more – lots more – statistical analysis based on the court’s own records and case dockets (for the cases the public is allowed to see.) We will continue to dive deep into the records and report on the continued lack of oversight, malfeasance, and what appears to be downright corruption and Fraud Upon The Court – that the court itself appears to be committing. We don’t have any answers as to WHY this may be occurring, other than the usual suspect: money.

_____

WillPowerNM has been formed to support and inform each Member of the Commission in their work over the coming weeks and months by preparing and releasing regular email information in a format similar to this weekly message and by establishing and maintaining a publicly accessible and widely promoted web site on the Commission’s important study effort.