Opinion
No. A-02-154.
Filed May 27, 2003.
1. Standing: Jurisdiction: Parties. Standing is a jurisdictional component of a party's case because only a party who has standing may invoke the jurisdiction of a court.
2. Jurisdiction. A question of jurisdiction is a question of law.
3. Statutes. Statutory interpretation presents a question of law.
4. Judgments: Appeal and Error. When reviewing questions of law, an appellate court has an obligation to resolve the questions independently of the conclusion reached by the trial court.
5. Courts: Attorneys at Law: Guardians Ad Litem. The appointment of an attorney or a guardian ad litem for a person alleged to be incapacitated is within the court's discretion.
6. Courts: Guardians and Conservators. The appointment of a visitor is within the court's discretion.
7. Estates: Appeal and Error. On questions of fact, an appellate court reviews probate cases for error appearing on the record made in the county court.
8. Judgments: Appeal and Error. When reviewing a judgment for errors appearing on the record, the inquiry is whether the decision conforms to the law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable.
9. Courts: Guardians Ad Litem. On petition of a ward or any person interested in his or her welfare, a court may remove a guardian and appoint a successor if it is in the best interests of the ward.
10. Estates: Courts: Legislature: Intent. By using the phrase "any person interested in his welfare," Neb. Rev. Stat. § 30-2623 (Reissue 1995), or the similar expressions of the same notion that are used in Neb. Rev. Stat. §§ 30-2613(1)(d), 30-2616(a), 30-2619(a), 30-2645(a), and 30-3514(f) (Reissue 1995 Cum. Supp. 2002), the Legislature intended to allow persons who are interested in a protected person, but who do not satisfy the definition of "interested person," to bring matters affecting the welfare of protected persons to the attention of the local probate court.
11. Actions: Guardians and Conservators: Evidence. The Nebraska Department of Health and Human Services can petition for a guardian's removal if there is sufficient evidence to support a finding that the department is interested in the ward's welfare.
12. Courts: Guardians and Conservators. Neb. Rev. Stat. § 30-2623 (Reissue 1995) provides that a court may remove a guardian and appoint a successor if it is in the best interests of the ward.
13. ____: ___. When appointing a guardian, a court, acting in the best interests of an incapacitated person, may pass over a person having priority and appoint a person having lower priority or no priority.
Appeal from the County Court for Sarpy County: LARRY F. FUGIT, Judge. Affirmed.
Margaret Mark O'Connor for appellant.
Don Stenberg, Attorney General, and Royce N. Harper for appellee.
IRWIN, Chief Judge, and HANNON and CARLSON, Judges.
INTRODUCTION
On the petition of the Nebraska Department of Health and Human Services (the Department), the county court removed Aehul Gilmore as guardian of her adult son Michael R. Gilmore and appointed a successor guardian who was without priority under the statute. Aehul appeals, alleging that the Department did not have standing to institute the proceeding; that the court did not follow required procedures in that it did not appoint a visitor, a guardian ad litem, or an attorney for Michael; and that it removed her without proof that she was unfit or had forfeited her right to be guardian. We conclude that the Department had standing; that under the facts in this case, neither a visitor, a guardian ad litem, nor an attorney for Michael was required; and that there were adequate grounds for removing Aehul and appointing a successor. We therefore affirm.
BACKGROUND
To avoid unnecessary repetition, we shall set forth some basic background information here but save discussion on many of the facts for the analysis portion of this opinion.
Michael, Aehul's son who was 19 years old at the time of trial, suffers from autism, is mentally retarded, is basically nonverbal, weighs approximately 400 pounds, and is unable to care for himself. He is supposed to take antiseizure medication three times per day. On June 26, 2001, Aehul and Michael's father were appointed Michael's coguardians. Michael's father died in a traffic accident on July 23.
It appears from the record that Michael lived at home with his parents and his brother, Steven Gilmore, up until June 4, 2001, when he was placed at Envisions Incorporated (Envisions), a corporation providing residential and vocational services. Aehul removed Michael from Envisions on June 13, but wanted to return him on June 15 because Steven had moved out of the family home. Envisions agreed to take Michael back on June 19. On July 18, Michael was admitted to the Beatrice State Developmental Center (BSDC), and he was discharged from BSDC on November 14 with a number of recommendations for his care and treatment, the most important being the implementation of a structured schedule for Michael to adhere to on a daily basis. After this discharge, he returned to Envisions. Aehul hoped to remove Michael from Envisions prior to the completion of his treatment and move with him to Kansas.
On September 17, 2001, the Department filed a petition to remove Aehul as guardian and to appoint Robert Gilmore, Michael's uncle, as her successor. At a hearing held on January 2, 2002, a doctor who had cared for Michael for approximately 2 years; Dr. Audrey Courtney, a psychologist at BSDC; Michele Schukar, a service coordinator for the Department; the chief executive officer of Envisions; a social worker for the Papillion-La Vista Public Schools; and Robert, the proposed successor guardian, were called as witnesses for the Department. Aehul and her son Steven were called as witnesses by Aehul.
On January 8, 2002, the court entered an order removing Aehul as Michael's guardian. It found that Michael continued to be incapacitated, that there was clear and convincing evidence that a full guardianship was necessary, that one of Michael's two coguardians had died, and that it was in the best interests of Michael that Aehul be removed as guardian. The court appointed Robert as the sole successor guardian.
STANDARD OF REVIEW
[1-4] One of the issues presented by this appeal is that of the standing of the Department to bring this action. Standing is a jurisdictional component of a party's case because only a party who has standing may invoke the jurisdiction of a court. Governor's Policy Research Office v. KN Energy, 264 Neb. 924, 652 N.W.2d 865 (2002). A question of jurisdiction is a question of law. Nebraska Dept. of Health Human Servs. v. Struss, 261 Neb. 435, 623 N.W.2d 308 (2001). Statutory interpretation also presents a question of law. Governor's Policy Research Office v. KN Energy, supra. When reviewing questions of law, an appellate court has an obligation to resolve the questions independently of the conclusion reached by the trial court. Id.
[5,6] Another question presented by this appeal is whether the trial court followed the necessary procedures when it failed to appoint a visitor, a guardian ad litem, or an attorney on behalf of Michael. The appointment of an attorney or a guardian ad litem for a person alleged to be incapacitated is within the court's discretion. Neb. Rev. Stat. § 30-2619 (Cum. Supp. 2002). Likewise, the appointment of a visitor is within the court's discretion. Neb. Rev. Stat. §§ 30-2619.01 and 30-2623 (Reissue 1995).
[7,8] On questions of fact — in this case, whether the evidence justifies the removal of Aehul — an appellate court reviews probate cases for error appearing on the record made in the county court. See, In re Guardianship Conservatorship of Donley, 262 Neb. 282, 631 N.W.2d 839 (2001); In re Guardianship Conservatorship of Hartwig, ante p. 526, 656 N.W.2d 268 (2003). When reviewing a judgment for errors appearing on the record, the inquiry is whether the decision conforms to the law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable. In re Conservatorship of Anderson, 262 Neb. 51, 628 N.W.2d 233 (2001); In re Guardianship Conservatorship of Hartwig, supra.
ASSIGNMENTS OF ERROR
Aehul alleges the court erred (1) in permitting the Department to bring the termination action when the Department lacked standing to do so; (2) in removing her as Michael's guardian without appointing a visitor, attorney, or guardian ad litem for Michael; (3) in failing to appoint a visitor, attorney, or guardian ad litem for Michael; (4) in removing her as Michael's guardian and appointing a successor who did not have statutory priority over her; (5) in appointing a successor who did not have statutory priority over Steven, Aehul's other son; and (6) in removing Aehul as guardian without proving that she was unfit to serve as guardian or that she had forfeited her superior right as natural parent.
ANALYSIS
Standing of Department to Bring Action.
Aehul argues that the Department does not have "the authority to meddle in this situation where not only a guardianship, but also a placement had already been set up." Brief for appellant at 15. Section 30-2623(a) provides that "[o]n petition of the ward or any person interested in his welfare, the court may remove a guardian and appoint a successor if in the best interests of the ward." (Emphasis supplied.) The Department contends that it is interested in the health and welfare of Michael and is therefore an appropriate party to petition for the removal of Aehul.
The phrase "interested person" is included in the Nebraska Probate Code, Neb. Rev. Stat. §§ 30-2201 to 30-2902 (Reissue 1995 Cum. Supp. 2002), a multitude of times. Section 30-2209(21) defines an "interested person" thus:
Interested person includes heirs, devisees, children, spouses, creditors, beneficiaries, and any others having a property right in or claim against a trust estate or the estate of a decedent, ward, or protected person which may be affected by the proceeding. It also includes persons having priority for appointment as personal representative, and other fiduciaries representing interested persons. The meaning as it relates to particular persons may vary from time to time and must be determined according to the particular purposes of, and matter involved in, any proceeding.
(Emphasis supplied.) The emphasized part of the above definition would appear to give that otherwise narrow definition considerable breadth. However, the phrase "interested person" does not appear in the applicable statute, § 30-2623, and therefore, we do not consider that definition controlling.
Significantly, the phrase in § 30-2623 is "any person interested in his welfare." We find that the phrase "person interested in his [or her] welfare" appears only in those statutes dealing with protected persons. The following statutes from chapter 30 of the Nebraska Revised Statutes use that phrase or a similar expression of the same notion and do not use the phrase "interested person": § 30-2613(1)(d) (powers of guardian), § 30-2616(a) (resignation or removal of guardian), § 30-2645(a) (petitions for orders subsequent to appointment of conservator), and Neb. Rev. Stat. § 30-3514(f) (Cum. Supp. 2002) (removal of custodial trustee). Section 30-2619(a), which deals with the procedure for the appointment of a guardian of a protected person, contains both phrases.
We conclude that by using the phrase "any person interested in his welfare," § 30-2623, or the similar expressions of the same notion that are used in the above statutes, the Legislature intended to allow persons who are interested in a protected person, but who do not satisfy the definition of "interested person," to bring matters affecting the welfare of protected persons to the attention of the local probate court. Nebraska statutes have long defined broadly who could bring an action for the appointment of a guardian of an incapacitated person. See Neb. Rev. Stat. §§ 38-201 and 38-404 (Reissue 1960), both of which controlled such matters before the adoption of the Uniform Probate Code in 1974 provided that a petition for the appointment of a guardian of an incapacitated person may be brought by a "relative or friend." See §§ 38-201 and 38-404 (Reissue 1974).
We believe that by such statutes, the Legislature was recognizing that frequently, a person that is in need of a guardian or conservator cannot be protected solely by those meeting the statutory definition of an "interested person." Sometimes, persons in need of a guardian or conservator have no relatives or at least none that care. Sometimes, the relatives of such people are prevented from serving the best interests of the protected person by avarice, greed, self-interest, laziness, or simple stupidity. Frequently, a neighbor, an old friend, the child of an old friend, a member of the clergy, a banker, a lawyer, a doctor, or someone else who has been professionally acquainted with the person needing such help will come forward out of simple charity and bring the matter to the attention of the local probate court. Sometimes, unscrupulous relatives need supervision. It would appear that the above statutes are worded to allow people without a legal interest to bring the matter to the local court's attention. We find nothing wrong with a public agency such as the Department coming forward on such matters, particularly when the Department is quite likely to be supplying financial assistance for the ward. Of course, the county judge, under the applicable standard of review, can make the determination of whether the petitioner is really interested in the welfare of the person subject to the proceedings.
The Department is a legal entity and hence is a "person" under the definition of § 30-2209(32). We conclude that under §§ 30-2616 and 30-2623, the Department can petition for Aehul's removal if there is sufficient evidence to support a finding that the Department is interested in Michael's welfare.
Failure to Appoint Visitor, Attorney, or Guardian Ad Litem for Michael and Removal of His Guardian Without Such Appointment.
Aehul next argues that because Michael cannot read or speak, his right to notice of and participation in the proceedings is "meaningless for him without the assistance of a visitor, attorney or guardian ad litem to represent his interests, and his interests alone." Brief for appellant at 1.
Section 30-2619(b), providing for the appointment of an attorney for a person alleged to be incapacitated; § 30-2619.01, providing for the appointment of a visitor for such a person; and § 30-2623(c), providing for the appointment of a visitor before removing a guardian, all provide that the court "may" make such appointment. In this particular case, the issue before the court dealt with Aehul's competency to serve as guardian. Michael was clearly incompetent to protect his own best interests. It is readily apparent to us, and was to the trial judge, that the issues raised were well represented and that the appointment of additional officials would have added nothing to the proceedings but additional expense. We therefore conclude that the trial judge did not abuse his discretion when he did not appoint the additional officials Aehul argues he should have appointed.
Appointment of Robert as Successor Guardian.
Insofar as the removal of Aehul as guardian is concerned, § 30-2623 provides in significant part that "the court may remove a guardian and appoint a successor if in the best interests of the ward." The trial court made the required finding.
Aehul assigns numerous errors with respect to the appointment of Robert as Michael's successor guardian. Specifically, she alleges that the court erred because Robert did not have statutory priority over her, Robert did not have statutory priority over Steven, and the Department failed to prove either that Aehul was unfit to serve as guardian or that she had forfeited her superior right as a natural parent.
The priorities for who may be guardian are set forth in § 30-2627. Subsection (a) provides in part that "[n]othing in this subsection shall prevent the spouse, adult child, parent, or other relative of the person alleged to be incapacitated from being appointed guardian." There does not appear to be a dispute that Robert, Michael's uncle, has little or no priority over either Aehul or Steven, Michael's brother. However, subsection (c) states in part that "[w]hen appointing a guardian, the court shall take into consideration the expressed wishes of the allegedly incapacitated person. The court, acting in the best interest of the incapacitated person, may pass over a person having priority and appoint a person having lower priority or no priority." Thus, the key inquiry that we must make is whether the appointment of Robert, rather than Aehul or Steven, as Michael's guardian was in Michael's best interests.
Several witnesses testified regarding their concerns about Aehul's care of Michael. These witnesses testified as to Aehul's admitted inability to control Michael in her home, especially his eating. Steven was living with Aehul and Michael when Michael was breaking things, overeating, and smearing feces throughout the house. Concern was also raised regarding Aehul's ability to properly administer Michael's medication. Schukar, the service coordinator, and Dr. Courtney both testified that Aehul had said that she felt Michael presented a threat to her life.
Dr. Courtney testified that sometimes, Michael returned to BSDC from visits with Aehul with a bowel movement in his pants, which issue caused concern because while Michael was in treatment, the BSDC staff was not having problems with his having bowel movements in his pants. Dr. Courtney also testified that she felt Michael was capable of learning many more things and that he was making progress in other behaviors.
Schukar testified that in June 2001, Aehul took Michael out of Envisions because she felt like "God was punishing her"; but then Aehul returned Michael to Envisions 2 days later because Steven had moved out of the family home and Aehul was unable to handle Michael by herself. Schukar testified that Aehul told her in August that she wanted to take Michael out of treatment before he completed the program and move to Kansas, where Michael would attend the "Sunflower Program" during the day and live with Aehul at night, but Schukar testified that she learned that the Sunflower Program had no openings and did not foresee having any openings in the future. Schukar further testified that a few days later, Aehul told Schukar that she wanted to take Michael to Kansas and watch him 24 hours a day, 7 days a week. Schukar testified that she was concerned about Aehul's inability to know what is best for Michael's health and safety.
Aehul's testimony reveals that even if the court determined Envisions to be the best environment for Michael, Aehul was not sure whether she would allow him to stay in Envisions, and that she wants to bring him home to care for him herself. Steven testified that he would be willing to take over the guardianship, but that no one had offered that to him. Robert testified that he was concerned about Aehul's ability to care for Michael and that his greatest concern was Michael's welfare.
The evidence shows that Aehul has difficulty properly caring for Michael, that she tends to take actions that are not in Michael's best interests, and that she may not follow orders that the court determines to be in Michael's best interests. The evidence does not show that Steven has taken any action to be appointed the successor guardian or that his appointment as guardian would be in Michael's best interests. In our review of the evidence, we cannot say that the court committed error in finding that Michael's best interests would be served by removing Aehul and appointing Robert as Michael's successor guardian.
CONCLUSION
We conclude that the county court's order removing Aehul as Michael's guardian and appointing Robert as successor guardian conformed to the law, was supported by competent evidence, and was neither arbitrary, capricious, nor unreasonable.
AFFIRMED.