Guardianship Study Commission Message #17

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

Today is the 4th in a series of weekly posts, covering statistical analysis of New Mexico’s courts’ administration of the guardianship cases that come before their judges. The last three weeks posts can be found here (July 27, 2017, Post #14), here (Aug 2, 2017, Post #15)and here (Aug 9, 2017, Post #16)This week’s post continues our analysis of the newly-available case dockets made available to the public, as per legal requirements of 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)) which require public access to:

  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.

 

Limited Data set examined:

Due to our volunteer time constraints, as well as our ability to do the Administrative Office of the Court’s (AOC) work, in tracking and monitoring guardian and conservatorship cases, 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’

We further limited the years examined in these 4 District Courts to January 1, 2010 to June 30, 2017.

Because of our analysis of only these four district courts, for only these given dates, the numbers presented do not represent state-wide statistics and therefore will not represent a person or corporation’s complete statistics.

Given the restrictions shown above, the total number of cases examined in this report is 2,705.

 

Poor record-keeping by courts

As was heard in the July 12th Adult Guardianship Study Commission meeting, data collection and data reporting by the Administrative Office of the Court’s JID (Judicial Information Division) leaves much to be desired. Let us be clear: the fault is not with the JID, the fault is with the courts, the judges, and the judges’ TCCAs – all of whom should be monitoring their cases for consistent and proper data entry that conforms to law.

Until May 29, 2017, ALL information about ALL guardianship cases was kept secret from the public – whether online, or in person at the courthouse. 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)) were routinely flouted, and NO INFORMATION WHATSOEVER was given to the public, in spite of these laws and rules.

The problem of lack of public access to what should be available to the public continues today, because the clerks have not been instructed to allow the public to see case dockets, the names of the wards conscripted into guardianship, nor know basic information concerning duration of the guardianship – all of which is mandated by law to be in the public record. In short, the courts and judges continue to routinely break the law.

Not only do the courts and judges fail to see that basic information is made available to the public on every guardianship and conservatorship case they control, but all sorts of other information is removed from the public’s access, or at least hidden down in the case docket, and not listed, as it should be, in the “Parties to a Case” section of each cases’ docket.

NMRA 45-5-303 requires that the Judge shall appoint in each guardianship case:

  1. Guardian Ad Litem;
  2. Qualified health care professional; and
  3. Court Visitor

And yet rarely are these required personnel listed on the case docket. (There are similar requirements for conservatorship cases too, in NMSA 45-5-407 that are similarly ignored by the courts.)

The public is kept in the dark about just how often crime-ridden, indicted and defunct companies, such as Ayudando Guardians, and we hope soon-to-be indicted Desert Trust, are rewarded by courts with many “clients” over the years. The courts have been very helpful in hiding the large numbers of times these companies have been complained about, and the courts hide from the public just how often (and somewhat exclusively) the courts reward these companies and others, and certain attorneys, approximately 80%+ of the court’s lucrative appointments.

An analysis of the 4 courts above for Jan 1, 2010 to June 30, 2017 show the courts aren’t even bothered to accurately record for the public record the names of the Guardian Ad Litem, Qualified Health Care Provider, or Court Visitor.

The following table shows how infrequently the courts are recording what should be public information on these three positions:

Guardian Ad Litem:

Total of 3 cases (1%) out of 267 total cases in Santa Fe District Court, Jan 1, 2010 to June 30, 2017 identifying Guardian Ad Litem as one of the Parties to the Case
Total of 1 cases (0.5%) out of 175 total cases in Bernalillo District Court, Jan 1, 2010 to June 30, 2017identifying Guardian Ad Litem as one of the Parties to the Case
Total of 258 cases (16%) out of 1712 total cases in Albuquerque District Court, Jan 1, 2010 to June 30, 2017 identifying Guardian Ad Litem as one of the Parties to the Case
Total of 150 cases (27%) out of 551 total cases in Las Cruses District Court, Jan 1, 2010 to June 30, 2017 identifying Guardian Ad Litem as one of the Parties to the Case

 

Qualified Health Care Professional:

Total of 96 cases (36%) out of 267 total cases in Santa Fe District Court, Jan 1, 2010 to June 30, 2017 identifying Qualified Health Care Professional as one of the Parties to the Case
Total of 95 cases (54%) out of 175 total cases in Bernalillo District Court, Jan 1, 2010 to June 30, 2017 identifying Qualified Health Care Professional as one of the Parties to the Case
Total of 1219 cases (71%) out of 1712 total cases in Albuquerque District Court, Jan 1, 2010 to June 30, 2017 identifying Qualified Health Care Professional as one of the Parties to the Case
Total of 342 cases (62%) out of 551 total cases in Las Cruses District Court, Jan 1, 2010 to June 30, 2017 identifying Qualified Health Care Professional as one of the Parties to the Case

 

Court Visitor:

Total of 102 cases (38%) out of 267 total cases in Santa Fe District Court, Jan 1, 2010 to June 30, 2017 identifying Court Visitor as one of the Parties to the Case
Total of 96 cases (55%) out of 175 total cases in Bernalillo District Court, Jan 1, 2010 to June 30, 2017 identifying Court Visitor as one of the Parties to the Case
Total of 1225 cases (72%) out of 1712 total cases in Albuquerque District Court, Jan 1, 2010 to June 30, 2017 identifying Court Visitor as one of the Parties to the Case
Total of 370 cases (67%) out of 551 total cases in Las Cruses District Court, Jan 1, 2010 to June 30, 2017 identifying Court Visitor as one of the Parties to the Case

Once again, the courts are not obeying their own laws, and the Administrative Office of the Courts is failing (again) to monitor courts’ reporting of guardianship and conservatorship cases in making basic information about these cases available to the public.

 

Death of Wards omitted from Case Dockets:

Perhaps most shocking of all, is that the courts disguise when a ward dies under the court’s guardianship or conservatorship orders, and omits mentioning the death of the person the court has controlled. Time only permitted us to investigate this omission of death as it occurs in Santa Fe District Court, but we found – at a minimum – 1.5% of all cases in Santa Fe omit the death of the ward from any mention in the case docket.

Number of Cases between Jan 1, 2010 to June 30, 2017 in Santa Fe District Court
Where guardianship was terminated due to death of ward but ward’s death is never recorded in court docket
CaseNumber CaseTitle Obituary
Case Filing Date Termination Date Date of Ward’s Death
D-101-PQ-201000008 In Re Boris Berkovitch http://www.legacy.com/obituaries/nytimes/obituary.aspx?pid=165590899
02/08/2010 01/29/2014 05/23/2013
D-101-PQ-201100046 In The Matter Of Elwanda Leone Blair Sibling’s obituary state she was preceded in death by her sister Elwanda Blair. Sibling died 10/15/2015 http://warrenmcelwain.com/obituary/marna-j-moore/
09/28/2011 11/15/2013 ?
D-101-PQ-201200007 In The Matter Of Mabel Trujillo http://www.legacy.com/obituaries/santafenewmexican/obituary.aspx?pid=167781460
02/23/2012 08/30/2016 10/29/2013
D-101-PQ-201400019 In The Matter Of Lugardita G Gomez http://www.legacy.com/obituaries/santafenewmexican/obituary.aspx?pid=175959545
07/07/2014 12/28/2016 09/23/2015
Total of 4 cases (1.5%) out of 267 total cases in Santa Fe District Court, Jan 1, 2010 to June 30, 2017 where guardianship was terminated due to death of ward, but ward’s death is never recorded in case docket
Table prepared by WillPowerNM.org

 

This massive failure of the courts to accurately record the death of the wards who the courts controlcompletely and absolutely – once again drives home the point: you can’t expect the people who are creating the problem – and indeed who are the problem – namely, the judges – to fix the problem.

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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.