ROSWELL – Despite a new state law and court rules providing
for open hearings, state District Court officials ejected a Journal
reporter Monday from a courtroom minutes before a hearing sought by a
woman who questions how a court-appointed professional guardian is
handling her adult son’s case and finances.
After the
reporter had left the courthouse in Roswell, the judge reversed himself
and opened the guardianship hearing, apologizing to those in the
courtroom.
Elizabeth McCutcheon and her 32-year-old son, Bryan, who suffered brain damage a decade ago, had requested the hearing in June.
They
allege that the guardian company, CNRAG Inc., has filed inaccurate
annual reports with the court and failed to file annual financial
reports or give a comprehensive accounting of his income and
expenditures. They also seek the court’s review of the guardianship
arrangement, because some circumstances involving Bryan McCutcheon have
changed in recent years.
CNRAG’s owner, Roxanna Gates,
told the Journal after the hearing that she has complied fully with the
requirements imposed on court-appointed guardians and denied any
mismanagement in the case.
She said that as the
representative payee for Bryan McCutcheon, she isn’t required to file
financial reports with the court for McCutcheon, whose guardianship
services are paid for by the state Office of Guardianship, which handles
services for low-income clients.
The judge set a follow-up hearing on the merits of McCutcheon’s allegations for Oct. 31.
Before
the start of the proceedings on Monday morning before Judge James M.
Hudson of Roswell, a Journal reporter sitting in the courtroom was told
by bailiff Tim Foster that such hearings were “sequestered” and, thus,
closed to the public. The bailiff first asked the reporter to identify
herself as she walked in the door.
When the reporter
showed the bailiff a copy of new court rules requiring open guardianship
hearings effective July 1, Foster told the reporter she had to leave
anyway. When the reporter asked to speak to the judge in court to
object, Foster denied the request and said he had already consulted the
judge.
Foster insisted the reporter leave and said she could talk to the judge after the hearing.
The
reporter left the Chaves County Courthouse to contact the
Administrative Office of the Courts via cellphone, because the public
isn’t allowed to take cellphones into the courtroom.
Later,
in an interview, Elizabeth McCutcheon said that during the 25-minute
hearing, Hudson apologized and then opened up the courtroom.
“According to Judge Hudson, there was miscommunication with
his staff and confusion over whether the hearing today was sequestered,”
Barry Massey of the AOC wrote in a subsequent email to the Journal.
“After
you left,” Massey told the reporter, “he (the judge) went on the record
and took responsibility for the problem. He had his bailiff go out and
call the case again so anyone else who wanted to appear could do so, but
apparently you had left.”
New Mexico’s judges who hear
guardianship and conservatorship cases have been trained and should be
aware of the changes in the law, Massey’s email said.
Opening
what have been historically closed, sequestered court hearings in
guardian and conservator cases has been considered a cornerstone of a
legislative reform package approved in February. Legislative leaders and
judges themselves have said they hoped such transparency would help
improve accountability in the much-criticized system.
The
state Supreme Court recently approved rules implementing the new law,
further detailing how “all courtroom proceedings shall be open to the
public” unless the judge follows a set procedure and articulates “the
overriding interest being protected.”
Under court rules,
judges are to hold public hearings, giving the parties time to file
motions and replies, before ordering a courtroom closure.
Massey said the judiciary held two sessions on guardianship
changes during the annual judicial conclave in June for judges. Written
information about the new system has been distributed to the state’s
judges, and two Albuquerque district judges have conducted continuing
education about the subject at lunchtime meetings that judges can attend
in person, by phone or video teleconferencing.
Although
Foster earlier had said the judge would be available after the hearing,
he told the Journal reporter after the hearing that judge, who was about
to hear another case, was not available for comment.
Bryan McCutcheon, after the hearing, said he was disappointed in Monday’s events.
“I’m like, what? It (hearing) is open.”
He
posted a notice on his Facebook page the night before saying, “Dear
residents of Roswell NM. I would like to invite you to the Roswell
courthouse.tomorrow morning for my ‘status hearing’ at 7:30 a.m. thank
you.good nite.”
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