Judges are not required to do background checks on individuals seeking guardianship of special needs adults. Still, when Wayne County Probate Court Judge Martin T. Maher awarded guardianship of a mentally incapacitated man to Duane Kuerbitz, he was aware that Kuerbitz was a registered sex offender.
Kuerbitz, a former Brandon Township resident, is now charged with sexually abusing the man for more than two years while he was his guardian.
Oakland County Prosecutor Jessica Cooper notes that two separate statutes cover appointing a guardian. In the case of minors, background checks are required, but that is not a requirement for special needs adults requiring guardianship.
‘We are very careful with child guardianships, and I would say we need to be far more careful with adult guardianships,? Cooper said. ‘We are looking to amend the legislation. It is very clear that the defendant was the victim’s guardian and he was appointed by Wayne County Probate, when they knew he was convicted of criminal sexual conduct and was on the registry… There is no statutory prohibition for an adult. One would think you wouldn’t need a prohibition, common sense would come into play, but technically there is no violation of the statute. Was there steam coming out of my ears? Yes. I am not at liberty to comment on whether any action will be taken with the judicial tenure commission.?
Kuerbitz, 49, was arraigned on one charge of criminal sexual conduct first degree and one charge of criminal sexual conduct third degree on April 1 by 52-2 District Court Judge Joseph Fabrizio.
According to police reports, on July 25, 2009, Brandon Township deputies responded to Allen and Seymour Lake roads on a welfare check and upon arrival, made contact with the 31-year-old victim, who said he’d been abused by Kuerbitz since Kuerbitz became his guardian in 2007. The most recent assault occurred two days prior.
Kuerbitz and the victim had been living in a home in the 400 block of W. Seymour Lake Road since 2008. The victim described crimes committed against him by Kuerbitz that included forced sexual acts including sodomy.
On March 24, after several months of investigation by police and prosecutors, Dr. Charles Clark, a board certified forensic psychologist, conducted a mental evaluation on the victim, who was determined to be not mentally capable of consenting to sex as indicated by Kuerbitz, and has mental retardation as it is legally defined.
Kuerbitz was arrested March 31 at his residence in Bay City by the Fugitive Apprehension Team. The Michigan Sex Offender Registry records show that Kuerbitz has two convictions for criminal sexual conduct first degree (person under 13) from 1991 in Waterford.
A clerk for Maher directed a call for comment to Wayne County Chief Probate Court Judge Milton L. Mack, who said that Michigan legislature has determined that the person selected by the ward for guardianship gets priority.
‘If the ward says I want so-and-so as my guardian, for the most part, we must abide by his wishes unless it can be demonstrated clearly that the person nominated is not suitable,? Mack said.
When asked whether he believed a sex offender would ever be a suitable guardian, Mack replied that he wouldn’t know whether he was suitable unless he was present at the hearing.
‘The sex offender list is very big and includes people who are not a danger,? said Mack. ‘They can be sex offenders for engaging in sex while minors. The sex offender list does not drive a decision. It’s a red flag and something that has to be looked at.?
Kuerbitz’s previous criminal sexual conduct convictions are allegedly related to assaults on his 6-year-old son. When questioned on this, Mack responded that he would have to assess the evidence and did not know what happened in this particular case. Still he defended Maher, saying the judge is experienced and has handled thousands of these cases.
‘I don’t have any concerns about this judge,? Mack said. ‘It is not appropriate for me to comment on whether a fellow judge did the right thing or the wrong thing. The driving force behind guardianship law is self-determination and letting people make their own choices.?
Mack contends that because the victim indicated in 2007 that he wanted Kuerbitz’s guardianship to stay in place and oriented the person, place and time, that he was not someone who is severely incapacitated.
‘There are degrees of incapacity,? he said. ‘In this case, the young man clearly expressed his wishes for what he wanted and the law requires the judge to honor that unless you can demonstrate that the nominated guardian is unsuitable.?
Mack wouldn’t comment on how he would have handled the case, only saying that the evidence would have to be clear and convincing that the guardian was unsuitable, although he admitted Kuerbitz’s prior conviction was clear and convincing. He also acknowledged that while preference is given to who the ward has selected for guardian, the judge does have the power to deny guardianship.
A preliminary exam for Kuerbitz is set for 8:30 a.m., April 27, in front of Fabrizio. Kuerbitz remains in the Oakland County Jail.