Special Investigation

Sealed guardianship cases

An ailing mom, a family feud and a hidden court file

In June 2013, Nassau County Judge Angela Iannacci sealed a legal action brought by Dean Hart, now a candidate for State Assembly, to have a guardian appointed for his 79-year-old mother, whose mental faculties were in decline.

Iannacci’s order failed to provide any substantive justification for sealing the records, as required by the state mental health law. In such cases, concern for the privacy of the vulnerable party typically serves as the basis for sealing.

An examination of partial case records obtained by Newsday, however, raises the question of who actually benefited from the sealing order. It appears to have done little for the welfare of Beatrice Hart, who suffers from dementia, while shielding attorneys, the courts and a current candidate for public office from outside scrutiny.

The disturbing accusations leveled in the case include elder abuse, cronyism in the court system, and Dean Hart fleecing his mother of $4.5 million with help from the firm of attorney Steven Schlesinger, a powerful Democrat whose court-appointed stewardship of a wealthy charity is now under state and federal investigation.

The Hart case is one of 207 guardianship proceedings identified by Newsday that Long Island judges hid from the public during a roughly 10-year period.

These cases involve the appointment of legal caretakers for people who require help managing their personal affairs. They comprise two-thirds of the court actions Newsday found in its investigation of case sealing by Long Island judges.

After obtaining confidential records, Newsday two weeks ago reported state Sen. Tom Croci’s involvement in one of those cases. In 2013, Newsday reported, a court-appointed evaluator found that Croci had “taken advantage” of his elderly aunt, philanthropist Adele Smithers, for his own financial benefit and recommended that a judge reject his request to control her assets as guardian. Croci told Newsday that he always acted in his aunt’s interest and that he could not answer questions about the case because of the sealing order.

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The order in the Smithers case, as in the Hart proceeding, fell short of the state mental health law’s requirements for sealing guardianships.

Documents in the Hart case, which is marked by an intense family schism, reveal the severity of the alleged misconduct that can be hidden when judges seal guardianship files. The records show that in 2012, Dean Hart’s wife pleaded guilty to disorderly conduct after a violent physical altercation with her mother-in-law.

And early in the case, Beatrice Hart’s lawyer, David A. Smith, wrote an impassioned letter to Iannacci, saying that he had witnessed Dean Hart confront his mother days earlier in a manner so disturbing that he’d summoned the police.

“In Beatrice Hart’s home,” Smith wrote, “Dean Hart repeatedly screamed at his mother, while positioning himself within inches of her face, that ‘I will get even with you for turning on me’; repeatedly cursed at her; told her that he did not consider her to be his mother anymore; and got so close to her while screaming at her that the independent agency nurse had to keep moving Beatrice from room to room of her home in order to seek, unsuccessfully, to get Dean to stop.”

In a recent interview, Hart — a Democrat vying to represent parts of Hempstead, North Hempstead and Oyster Bay through a self-financed campaign — said Smith’s letter is rife with “false accusations” and that the attorney had worked in concert with his estranged sister, Penny Hart, to smear him. Hart and his sister have disagreed vehemently over Beatrice Hart’s care, and while defending their own actions have accused each other of impairing their mother’s health and attempting to control her $5 million estate.

Schlesinger declined to be interviewed. In email responses, he disputed any suggestion of impropriety in his representation of Dean Hart or the $4.5 million trust transaction.

Privacy vs. transparency

Privacy concerns serve as the ostensible basis for sealing guardianship cases, which can be lurid and messy. Clashes over what’s in the best interest of an enfeebled relative are often what leads a judge to appoint a family member or outside attorney guardian. When money is at stake and there is entrenched family conflict, proceedings can turn especially vitriolic.

All this may seem to argue for confidentiality. However, elder advocate Jack Halpern, an observer of the state guardianship system for over 40 years, said the privacy concerns that judges and family members cite as justification to seal cases are often overblown and even disingenuous.

“In too many instances,” said Halpern, who is CEO of My Elder Advocate, a private senior advisory firm, “the sealing is not serving the interests of the elderly person, but those individuals or entities that are supposed to be caring for them.”

Dean Hart, who has gained notice with political stunts such as giving out plastic handcuffs while on the campaign trail to highlight public corruption, supported Iannacci’s sealing order in 2013. He said he did so, in part, out of a desire to protect his mother’s privacy.

Contacted for this story in August, however, Hart said that he’d like the case files made public, even if some voters took their contents “out of context” and turned against him. He said the sealing had allowed the court system to get “away with murder” in its treatment of his mother.

In one of the few areas of agreement between Hart and his sister, Penny Hart said she too would like to see the guardianship case involving her mother unsealed, saying the secrecy had masked her brother’s outrageous conduct.

“I have nothing that I need to hide in this,” said Penny Hart. “The only person who has something to hide is Dean. Let the world see.”

A month ago, Newsday asked state court leaders to vacate the sealing order in the Hart case and scores of others that were improperly concealed from the public. They have not responded to the request.

Balancing act required

The guardianship law is sensitive to privacy concerns. Judges must inform those who may be assigned a guardian of their right to request a sealing order. Issuing a sealing order simply when asked, however, is forbidden. Judges are supposed to balance any claim of the need for confidentiality against other factors, including the benefit of open court proceedings to the health of the justice system.

That balancing is required for good reason.

When outsiders have gotten a look inside this area of the courts, appalling conduct has sometimes been revealed. Government agencies and media reports have repeatedly identified abuses such as court-appointed lawyers or family members draining the estates of their vulnerable wards. In part, the sealing law is meant to encourage a degree of transparency and act as a check on abuses.

Newsday found that when applying the law, Long Island judges repeatedly relied on generic, stock phrases to overcome the presumptively public nature of the proceedings. This was most often true in Suffolk County, where 174 sealed guardianship cases were identified compared with 33 in Nassau.

In nearly all the Suffolk sealing orders, judges simply quoted verbatim a passage from the state mental health law that lists elements that must be weighed when deciding whether “good cause” exists to conceal a case. Suffolk Judge Sandra Sgroi, who now sits on a state appellate court, signed 108 orders of this kind in a five-year period. Sgroi declined to be interviewed for this story.

In Nassau, judges employed a blanket statement about case files containing privileged and confidential information to achieve the same end.

In the Hart case and four others, the orders lacked even this boilerplate language.

Dozens of sealed guardianship files Newsday identified involved efforts by hospitals and nursing homes to have residents declared incapacitated and in need of a guardian. That can happen when a hospital wants to discharge a patient who’s unwilling to leave or when a resident can’t pay nursing home bills.

One sealed guardianship proceeding was brought by the controversial Judge Rotenberg Center. The Canton, Massachusetts-based home for disabled youth has drawn criticism for its use of restraints and electroshocks to control residents.

The case appears to have stemmed from a dispute between the center and public agencies in New York State over the care of a resident from Long Island who’d been born addicted to cocaine and whose mother had killed another of her children. In one available record, the center alleged that the state had failed in its obligation to find a placement for the resident when she turned 21 and that it was owed nearly $180,000 in taxpayer dollars for providing the woman nine months of care.

Judge H. Patrick Leis, who sealed the case in 2009, declined to be interviewed.

Rotenberg attorney Jocelyne Kristal said the center brought the case in the hope that a guardian could provide the young woman appropriate care, which she contended public agencies had failed to arrange. She said the guardianship matter was secondary to related federal litigation that was of legitimate public interest, but that sealing the guardianship was appropriate to protect the woman’s privacy.

Inside the case

Significant documents in the Hart case obtained by Newsday provide an unusual look at one guardianship battle that was placed behind a wall of official secrecy.

In November 2012, as Beatrice Hart’s faculties began to diminish, she signed over $4.5 million from her personal trust to her son, Dean. The stated reason for the move was to minimize the tax obligation of Beatrice Hart’s estate. Penny Hart said her mother was gravely ill and being spoon-fed by a caretaker when she signed over the money. Lawyers in the firm led by Schlesinger, Dean Hart’s attorney, served as witnesses and prepared the paperwork.

Records show that during this time, Beatrice Hart expressed fear of Dean Hart and his wife, going so far as to obtain orders of protection against them based on allegations of physical abuse. Dean Hart was never criminally charged with being violent toward his mother, but in December 2012, Hart’s wife pleaded guilty to disorderly conduct following a violent episode with Beatrice Hart.

In an email to a reporter, Dean Hart wrote, “Every family has squabbles and in this case an isolated incident took place that my wife still deeply regrets. My wife still respects and cares deeply for my mother, as do I.”

In early 2013, Beatrice telephoned her daughter Penny Hart, who had long been estranged from the family. The women started to re-establish a relationship, something Penny Hart had been reluctant to do. Around this period, Beatrice began to voice suspicions about the trust transaction. Ultimately, her lawyer asserted, she came to believe that her son had “stolen” the money from her.

Dean Hart denies ever having swindled or abused his mother, saying his sister manipulated a senile Beatrice Hart into making the ugly charges.

“I’ve never done a thing that I am embarrassed about,” Dean Hart said.

It was during this period of high tension, in May 2013, that Hart petitioned the court to have his mother declared in need of a guardian. Schlesinger and multiple attorneys from his firm handled the legal action.

The case landed in Judge Iannacci’s court. Both sides would ultimately question the propriety of her having presided.

Eight years before, when Iannacci sought the Nassau Democratic Party’s support for what would become a successful Supreme Court bid, Schlesinger was the party’s law chairman, giving him a prominent role in deciding who would get on the ballot in judicial races.

A then-party official who wished to remain anonymous so as not to offend a sitting judge said that Schlesinger had been critical to securing party support for Iannacci.

In a recent interview, Dean Hart said that Schlesinger had “made Iannacci,” but that far from granting him any advantage in the guardianship case, the judge repeatedly sided against him to demonstrate that she owed Schlesinger nothing.

Schlesinger wrote in an email to a reporter that he was a member of a committee that chose Iannacci, but he had “never asked or sought any consideration on account of my participation on that committee.”

Though Penny Hart believes that the judge acted independently and protected Beatrice Hart from her brother, she said Iannacci should have recused herself due to her history with Schlesinger.

On June 13, 2013, Iannacci sealed the Hart case.

A hearing transcript shows that Schlesinger was present in the courtroom that day but left early for a dinner engagement. An attorney in Schlesinger’s firm requested the sealing, and Iannacci asked Beatrice Hart’s attorney, Smith, whether he would join the application. Smith said yes, and an attorney for Penny Hart, who was present as an interested party, consented to the sealing.

In her order, Iannacci noted that she was acting on the “request of all parties.” That’s an improper basis for sealing because the law is meant to prohibit judges from hiding guardianship cases merely because parties seek confidentiality.

Ten days later, Smith wrote the letter to Iannacci that included his account of the confrontation between Dean Hart and his mother. He also told the judge that the day before, Beatrice Hart had stripped Dean and his wife of any authority to make health care decisions on her behalf and visited the Nassau district attorney’s office to allege that her son had conned her out of the $4.5 million from her trust.

In September 2013, Iannacci appointed Nassau attorney Emily Franchina temporary guardian of Beatrice Hart’s property. The following month, Franchina was named Hart’s temporary personal-needs guardian, giving her the power to make decisions about Beatrice Hart’s health care and day-to-day affairs.

Franchina was given specific authority to investigate the $4.5 million transaction, which had become a flashpoint. Billing records indicate that Schlesinger’s firm, Jaspan Schlesinger, represented Beatrice Hart in the trust transaction, but Penny Hart said her mother never hired firm attorneys to handle her estate matters.

“How does he represent my mother and Dean at the same time?” Penny Hart asked, referring to Schlesinger. “It just drives me nuts. It’s just wrong.”

Smith, Beatrice Hart’s attorney, said he was unable to discuss a sealed case, but that when it comes to such sizable trust transactions generally, “it is to my mind critically important that the person making the transfer have their own counsel.”

In a ruling included in the partial case file Newsday obtained, Iannacci stated that Dean Hart had tried to establish that a Florida attorney, Diane Bell, had represented his mother in the trust transaction. However, Bell testified via Skype to the contrary, saying she believed that attorneys in Schlesinger’s firm had represented Beatrice Hart, Iannacci wrote.

Contrary to what Iannacci wrote and Bell testified, Schlesinger said in an email that the Florida attorney had in fact represented Beatrice Hart. Schlesinger also said the transaction was a minor matter. Beatrice Hart always planned to bequeath Dean Hart the money, he said, so the transaction was not a “substantive” change to the disposition of the funds. Bell did not respond to telephone calls.

Nassau district attorney’s office spokesman Brendan Brosh said that his agency ended its investigation of Beatrice Hart’s complaint after Iannacci appointed Franchina guardian and the office was assured “that any suspected criminal conduct would be reported for investigation.”

In May 2014, Iannacci made Franchina’s guardianship appointment permanent in a ruling that was blisteringly critical of Dean Hart, who’d wanted to be named his mother’s personal-needs guardian. Hart had not cooperated with Franchina, Iannacci wrote, and was ill-suited to serve as a court-approved caretaker.

“Petitioner has demonstrated through his actions and by his testimony that he is unable to comply with the orders of this court,” Iannacci wrote. “Petitioner is not the appropriate person to serve as personal needs guardian.”

Hart continued to use his mother’s checking account after Franchina’s appointment, testifying, according to Iannacci’s ruling, that he’d used the money to pay for “lunch with his attorney, taxis, children’s clothing and parking in New York City.” Iannacci said Hart had testified that “God had given [him] the right” to use his mother’s assets as he pleased in Beatrice Hart’s best interests, despite Franchina having been made guardian of her money.

Hart said Iannacci’s ruling was selective and distorts events. There was a gap between Franchina’s appointment and when the attorney took control of Beatrice Hart’s account, Dean Hart said, and during this period he continued to access his mother’s money, often to buy her necessities such as meals.

He contends that it has been the conduct of Iannacci, Franchina and the court system, not his own, that has been nefarious. The court, he said, has limited his involvement in his mother’s affairs to facilitate the exploitation of her assets.

Penny Hart said Franchina — who has collected $166,000 in fees from the case, according to state records — has done “a wonderful job of managing my mother’s personal needs, especially in light of the conflicting interests involved.”

Dean Hart has asked an appeals court to undo Iannacci’s appointments and decisions, but so far has lost at least twice. He said he is determined to fight on.

“The fact is I did nothing wrong,” Hart said. “I was a loving son. I am a caring person, I am a sensitive person. And I am pissed.”

In November 2015, as the case played out in secret, Hart narrowly lost a Nassau legislative race, taking 48 percent of the vote.

Iannacci did finally step aside in December 2015, after having presided over the case for more than 2 1⁄2 years. With the case sealed, it’s unknown whether she gave a reason for her recusal. Iannacci declined to be interviewed.

A court evaluator, Frank Perrone, was assigned to investigate claims in the case and protect Beatrice Hart’s interests. The findings of his written report are unknown due to the sealing order, and he declined to be interviewed.

As for Beatrice Hart, who lives in a Manhattan nursing home, both her children agreed that she is too diminished to be interviewed.

Review of guardians finds financial reports lag

Tracking 207 cases

For this story, Newsday identified 207 sealed guardianship cases that originated in Nassau state Supreme Court from 2003 to 2014 and Suffolk state Supreme Court from 2005 through early 2015. The 207 cases were identified using a code for sealing orders in Nassau’s electronic case management system and notes that clerks made to case minutes in Suffolk’s system. Neither Nassau nor Suffolk formally track sealed guardianship cases and there’s no way to be sure all were found.

Newsday found portions of some sealed guardianships attached as exhibits in other lawsuits. In some instances, partial case files were shared with a reporter.

The state mental health law bars judges from sealing a guardianship case “except upon a written finding of good cause, which shall specify the grounds thereof.”

In determining whether “good cause” exists, judges must “consider the interest of the public, the orderly and sound administration of justice, the nature of the proceedings, and the privacy of the person alleged to be incapacitated.”

Most of the sealed guardianships Newsday found were in Suffolk County. In nearly all instances, Suffolk judges copied the language above verbatim in their sealing orders, which made no reference to the specifics of the cases at hand.