New Mexico: latest guardianship hearing held in secret

Judge disobeys NM statute 45-5-303 allowing Ward to open hearing without sequestration; then violates notification proceedures for follow-up hearing

NM 2nd District Court Judge Denise Barela-Shepherd who was so ignorant of existing guardianship laws she had to adjourn a hearing, asking the attorneys involved to research the law and her let her know what they found out. NM 2nd District Court Judge Denise Barela-Shepherd who was so ignorant of existing guardianship laws she had to adjourn a hearing, asking the attorneys involved to research the law and her let her know what they found out.

By Colleen Heild and Olivier Uyttebrouck / Journal Staff Writers
From the Albuquerque Journal

A guardianship court hearing for Holocaust survivor Peter Grotte-Higley was held in secret on Tuesday, three weeks after the judge in the case postponed the matter saying she wanted to research the issue of whether two Journal reporters could attend.

State District Judge Denise Barela-Shepherd at an Oct. 2 hearing instructed the attorneys in the case to research the “legal authorities either in support or against” opening the hearing. At the time, the judge looked at the Journal reporters in the courtroom and instructed the attorneys in the case to notify the reporters about a new hearing date.

But no such notification occurred.

Grotte-Higley, a former client of Ayudando Guardians Inc., has had questions about his finances and his pension benefits since Ayudando’s two top executives were charged in a 28-count federal indictment in July. Federal officials say more than $4 million in client funds has been embezzled in recent years, and Ayudando had more than 1,000 clients.

After Ayudando was closed in late August by the U.S. Marshals Service, Grotte-Higley’s guardianship was transferred to Decades Inc.

Under state law, guardianship hearings are normally sequestered, except when the alleged incapacitated person seeks to have the proceedings open.

On Oct. 2, just minutes before his guardianship hearing was to begin, Grotte-Higley invited the reporters to attend. “Definitely, why not?” he said.

Barela-Shepherd, upon learning that Journal reporters were in the courtroom, halted the proceedings, saying she didn’t have enough information about whether the hearing could be opened.

“I’m not opposed to unsequestering it, but by statute I don’t know that I can,” said the judge. Barela-Shepherd added that she was considering whether to permit one or both reporters into the next hearing in the case.

The judge didn’t return a Journal phone call Tuesday. A district court spokesperson said Tuesday she could verify the hearing occurred, but because of confidentiality laws she could not respond as to why the reporters weren’t notified.

Ellen Leitzer, the court-appointed guardian ad litem for Grotte-Higley, referred questions about the hearing to Barela-Shepherd. Mary Ann Green, an attorney in the case, didn’t return a Journal phone call.

A message left for Grotte-Higley at Albuquerque Grande, his new residence, was not returned on Tuesday.

There was no way to find out what “legal authorities” were provided to the judge on the issue of opening up Grotte-Higley’s hearing.

Filings in his case, and in all guardian or conservator cases in New Mexico, are confidential under the law.

The Journal profiled Grotte-Higley in a story last summer when he voiced his frustrations about his living conditions in a private boarding home and not having a way to reach the U.S. Marshals office to ask about his case. He was barred from leaving with Journal reporters to go to Ayudando’s offices for an answer.

To read this article on the Albuquerque Journal’s website, click here.

Editor’s Note:

New Mexico’s state statute governing procedure for appointing guardian of an incapacitated person is quite clear.  Paragraph K of NMSA 45-5-303 states (emphasis added):

K. The issue of whether a guardian shall be appointed for the alleged incapacitated person shall be determined by the court at a closed hearing unless the alleged incapacitated person requests otherwise.

That Judge Barela-Shepherd does not know the laws governing her actions in guardianship hearings is shameful and she should immediately step down from her judgeship. To continue to abuse New Mexico’s elderly by denying them their civil rights to have the Judge and all her appointed attorneys obey the law is disgusting and must stop now, beginning with getting rid of ignorant judges like Barela-Shepherd.