In re: The Conservatorship of Jane Doe ( 2022 )


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  •    NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
    Electronically Filed
    Intermediate Court of Appeals
    CAAP-XX-XXXXXXX
    31-JAN-2022
    08:01 AM
    Dkt. 95 SO
    NO. CAAP-XX-XXXXXXX
    IN THE INTERMEDIATE COURT OF APPEALS
    OF THE STATE OF HAWAI#I
    IN THE MATTER OF THE CONSERVATORSHIP OF JANE DOE
    APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
    (C. NO. 16-1-0028)
    SUMMARY DISPOSITION ORDER
    (By:   Leonard, Presiding Judge, Wadsworth and Nakasone, JJ.)
    Respondent-Appellant Barbara J. Brodhead (Appellant)1
    appeals from the March 8, 2017 Order Granting Petition for
    Appointment of Conservator filed May 5, 2016 (Order Appointing
    Conservator), and the June 30, 2017 Judgment on Order Granting
    Petition for Appointment of Conservator filed May 5, 2016
    (Judgment), filed by the Circuit Court of the First Circuit
    (Probate Court).2
    On appeal, Appellant contends that the Probate Court:
    (1) exceeded its authority in a conservatorship proceeding when
    it authorized the Special Conservator to oversee her healthcare
    and medical decisions, terminating her long-term caregiver and
    hiring others against her wishes; (2) abused its discretion when
    it appointed a Special Conservator without clear and convincing
    evidence of an impairment that prevented Appellant from making
    her own financial decisions; and (3) abused its discretion when
    1
    In the Opening Brief, Appellant requests that her name be kept
    confidential. The record does not contain any order granting such a request.
    Nor has Appellant filed any motion or cited any authority supporting this
    request on appeal, and we do not address it.
    2
    The Honorable Derrick H.M. Chan entered the Order, and the
    Honorable Virginia Lea Crandall entered the Judgment.
    NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
    it appointed a Special Conservator without first finding by a
    preponderance of evidence that her property would be wasted or
    dissipated unless she was removed from its management, and also
    erred when it did not determine that her property would be
    dissipated or wasted without management.
    Upon careful review of the record and the briefs
    submitted by the parties and having given due consideration to
    the arguments advanced and the issues raised by the parties, we
    address Appellant's contentions as follows, and we vacate and
    remand.
    A Petition for Appointment of Conservator (Petition)
    was filed on May 5, 2016, by Petitioner-Appellee Thomasene
    Brodhead and Interested Person-Appellee Virginia La Pierre, who
    are Appellant's siblings (collectively, Sisters), seeking the
    appointment of a conservator under Hawaii Revised Statutes (HRS)
    § 560:5-401(2)(2006 & Supp. 2016).3  Appellant had no children,
    and Sisters filed the Petition out of concern for the alleged
    neglect, isolation, and alleged improper influence and financial
    exploitation of Appellant by her caregiver and friend, Madeline
    Morales (Caregiver). The Petition requested, among other things,
    the appointment of Andrew D. Smith, Esq., (Smith) as Conservator
    to assist Appellant with the management of her business and
    financial interests, and to protect Appellant's interests against
    undue influence or encumbrance by others.
    3
    HRS § 560:5-401 provides in relevant part: "Upon petition and
    after notice and hearing, the court may appoint a limited or unlimited
    conservator or make any other protective order provided in this part in
    relation to the estate and affairs of . . . (2) Any individual[.]"
    Subsections (A) and (B) require the following proof to appoint a conservator:
    (A) By clear and convincing evidence, the individual
    is unable to manage property and business affairs
    effectively because of an impairment in the ability to
    receive and evaluate information or to make or communicate
    decisions, even with the use of appropriate and reasonably
    available technological assistance or because of another
    physical, mental, or health impairment. . .; and
    (B) By a preponderance of evidence, the individual
    has property that will be wasted or dissipated unless
    management is provided or money is needed for the
    support, care, education, health, and welfare of the
    individual. . . .
    2
    NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
    Following the completion of a July 29, 2016 report by a
    court-appointed Kokua Kanawai4 to review the matters raised in
    the Petition, the Probate Court appointed Smith to serve as
    Special Master,5 to prepare a written report regarding the
    appropriateness of a conservatorship. Specifically, the August
    30, 2016 Order Appointing Special Master provided:
    IT IS FURTHER ORDERED that the Special Master shall prepare
    a written report of his findings to the Court with respect
    to [Appellant's] understanding of her financial situation
    and options, her ability to exercise her rights accordingly,
    and the existence (if any) of an impairment in [Appellant's]
    ability to receive and evaluate information or make or
    communicate decisions regarding management of her property
    and business affairs, within the meaning of HRS § 560:5-
    401(2)(A).
    The Special Master was also to report on the existence, if any,
    of undue influence or financial exploitation of Appellant.
    Upon completion of his investigation, the Special
    Master filed his February 2, 2017 report recommending a limited
    special conservatorship. The report addressed, among other
    things, Appellant's physical health, mental condition, proposed
    care plan, and her finances. The report included the Special
    Master's conclusion regarding undue influence and financial
    exploitation of Appellant. However, the report did not address
    whether there was any "impairment in [Appellant's] ability to
    receive and evaluate information or make or communicate decisions
    4
    "'Kokua kanawai' means an individual appointed by a court who has
    the role and authority granted under rule 113 of the Hawaii probate rules."
    HRS § 560:5-102 (2006). Hawai#i Probate Rules (HPR) Rule 113 provides:
    ROLE AND AUTHORITY OF KOKUA KANAWAI. A Kokua Kanawai
    appointed in a protective proceeding shall serve as .
    . . an extension of the court to conduct an
    independent review of the situation, to interview the
    respondent and the person seeking to be appointed
    conservator or guardian, and to report its findings
    and recommendations to the court[.]
    5
    The Special Master was appointed pursuant to HPR Rule 28(a), which
    states:
    The court may appoint a master to review any petition or
    dispute before the court and to report the recommendations
    of the master to the court. The master shall serve as a
    representative of the court and shall be a person who has no
    conflict of interest with any party or issue in the
    proceeding.
    3
    NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
    regarding management of her property and business affairs, within
    the meaning of HRS § 560:5-401(2)(A)," as directed in the Order
    Appointing Special Master.
    Following a February 16, 2017 hearing on the Petition,
    the Probate Court filed the March 8, 2017 Order Appointing
    Conservator, which, among other things, appointed Smith to serve
    as Special Conservator, and stated in pertinent part:
    A.    The Petition for Appointment of Conservator is
    granted, subject to the recommendations of the Special
    Master contained in the Special Master's Report filed
    on February 2, 2017, which are adopted and approved,
    and set forth herein, and subject to modification at a
    later date as set forth herein;
    B.    The appointment of the Special Master shall be
    terminated and the Special Master shall be discharged
    from further duties and responsibilities as Special
    Master[;]
    C.    Jurisdiction and venue are proper;
    D.    A basis exists for a special conservatorship;
    E.    The appointment of a special conservator is in the
    best interest of the Protected Person;
    F.    Andrew Smith, Esq. ("Smith") is qualified to serve as
    Special Conservator;
    G.    Smith is appointed as Special Conservator without
    bond;
    H.    The Special Conservator shall file with the Court
    within thirty (30) days of entry of this Order, a proposed
    budget of income and expenses for the Protected Person,
    pursuant to Rule 108 of the Hawai#i Probate Rules, and a
    detailed inventory of the estate subject to the
    conservatorship, together with an oath or affirmation that
    the inventory is believed to be complete and accurate as far
    as information permits;
    . . . .
    (Emphases added). The Order Appointing Conservator did not
    contain factual findings or any language citing to and
    determining that the statutory criteria for appointment of a
    conservator under HRS § 560:5-401(2)(A) and (B) had been met.
    On June 30, 2017, the Probate Court entered Judgment on
    the March 8, 2017 Order. This timely appeal followed.6
    6
    Appellant's Notice of Appeal, filed July 26, 2017, appealed from
    the June 30, 2017 Judgment on Order Granting Petition for Appointment of
    (continued...)
    4
    NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
    The Hawai#i Supreme Court has held that "it is not the
    function of the appellate court to conduct its own evidentiary
    analysis" where the probate court did not issue factual findings.
    In re Elaine Emma Short Revocable Living Tr. Agreement, 147
    Hawai#i 456, 465, 
    465 P.3d 903
    , 912 (2020).7 "[T]he absence of
    factual findings by the probate court" does not enable an
    appellate court "to meaningfully review the basis of the probate
    court order . . . ." Id. at 459, 465 P.3d at 906.
    Appellant contends the record does not contain clear
    and convincing evidence of Appellant's inability to effectively
    manage her property and business affairs pursuant to HRS § 560:5-
    401(2)(A). Appellant argues that the statute requires "clear and
    convincing evidence" that Appellant cannot manage her property
    and business affairs effectively because of an impairment in her
    ability to receive and evaluate information or to make or
    communicate decisions, or because of another physical, mental, or
    health impairment. Appellant further argues that the Probate
    Court failed to "enter any findings of fact which reflected the
    proof standards in the statute." Appellant's contentions have
    merit.
    HRS § 560:5-401(2)(A) requires proof of the
    individual's impaired ability "to manage property and business
    affairs effectively" by clear and convincing evidence. "[T]he
    clear and convincing evidence standard has been recognized as a
    6
    (...continued)
    Conservator filed May 5, 2016. An Order Affirming and Supplementing Order
    Granting Petition for Appointment of Conservator filed May 5, 2016, signed by
    Judge Crandall, was also filed on June 30, 2017. While no Judgment was filed
    as to the subsequent Order, we construe this appeal to include this Order.
    See Ueoka v. Syzmanski, 107 Hawai#i 386, 396, 
    114 P.3d 892
    , 902 (2005) ("An
    appeal from a final judgment brings up for review all interlocutory orders not
    appealable directly as of right which deal with issues in the case.")
    (citation and internal quotation marks omitted)). The June 30, 2017 order
    also did not contain any factual findings or language citing to and
    determining that the statutory criteria under HRS § 560:5-401(2)(A) and (B)
    had been met.
    7
    In In re Elaine Emma Short, the Hawai#i Supreme Court held "that
    the absence of factual findings by the probate court did not enable the ICA to
    meaningfully review the basis of the probate court order to modify the trust
    and that the ICA's reliance on selective extrinsic evidence was improper."
    147 Hawai#i at 459, 465 P.3d at 906. The Court vacated the ICA's judgment and
    the probate court's order and judgment, and remanded the case for further
    proceedings consistent with its opinion. Id.
    5
    NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
    more exacting standard that has been applied to a wide variety of
    civil cases where for policy reasons the courts require a higher
    than ordinary degree of certitude before making factual
    findings." Iddings v. Mee-Lee, 82 Hawai#i 1, 13, 
    919 P.2d 263
    ,
    275 (1996) (brackets, internal quotation marks, and citations
    omitted). Clear and convincing evidence "is that degree of proof
    which will produce in the mind of the trier of fact a firm belief
    or conviction as to the allegations sought to be established, and
    requires the existence of a fact be highly probable." 
    Id.
    (citations omitted).
    Here, the Probate Court specifically ordered the
    Special Master to address the criteria under HRS § 560:5-
    401(2)(A) in the report. While the Special Master's report
    addresses Appellant's physical health, mental condition and
    finances, the report did not specifically determine or express an
    opinion regarding Appellant's physical or mental "impairment"
    within the meaning of the statute.8
    The Order Appointing Conservator was based on the
    Special Master's report, that the Probate Court "adopted and
    approved" as the basis for its ruling. The order did not contain
    findings addressing the statutory requirements and standard of
    proof for the appointment of a conservator under HRS § 560:5-
    401(2)(A) and (B).
    While HRS § 560:5-401(2)(B) (dealing with protection
    necessary to protect property or to provide needed money)
    contains requirements that must be proved by a preponderance of
    the evidence standard, the requirements in subsection (2)(A) are
    subject to a higher clear and convincing standard of proof. We
    conclude that there is ambiguity in the record before us, as to
    which type of impairment the Probate Court found in the record
    provided, and whether that impairment was established by a clear
    and convincing standard of proof under HRS § 560:5-401(2)(A).
    Without findings of fact, we are unable to meaningfully review
    8
    While the Special Master's report addresses the subject matter of
    the second prong of the statute, HRS § 560:5-401(2)(B), and supplies evidence
    to support the (2)(B) requirement by a preponderance of the evidence, there
    was no express finding or determination by the court that subsection (2)(B)
    was satisfied.
    6
    NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
    the Probate Court's order, and an appellate court may not discern
    from the evidence whether and how this higher standard of proof
    was met, when it is not the factfinder. See In re Elaine Emma
    Short, 147 Hawai#i at 459, 465 P.3d at 906. The record should
    reflect the Probate Court's determination whether the statutory
    requirements and standard of proof have been met, or not, for
    both HRS § 560:5-401(2)(A) and (B). Given our resolution here,
    it is not necessary to address Appellant's remaining contentions.
    Therefore, IT IS HEREBY ORDERED that the (1) March 8,
    2017 Order Granting Petition for Appointment of Conservator filed
    May 5, 2016; (2) the June 30, 2017 Judgment on Order Granting
    Petition for Appointment of Conservator filed May 5, 2016; and
    (3) the June 30, 2017 Order Affirming and Supplementing Order
    Granting Petition for Appointment of Conservator filed May 5,
    2016 all filed by the Circuit Court of the First Circuit, are
    vacated. This matter is remanded for further proceedings
    consistent with this Summary Disposition Order.9
    DATED: Honolulu, Hawai#i, January 31, 2022.
    On the briefs:                            /s/ Katherine G. Leonard
    Presiding Judge
    Mark M. Murakami
    (Damon Key Leong Kupchak                  /s/ Clyde J. Wadsworth
    Hastert)                                  Associate Judge
    for Appellant Jane Doe
    /s/ Karen T. Nakasone
    Thomas E. Bush                            Associate Judge
    (Thomas Bush Law Office, LLLC)
    for Plaintiff-Appellee
    Thomasene Brodhead and
    Interested Person Virginia La
    Pierre
    9
    The judges who presided over this matter are no longer available
    to enter findings of fact, and thus, we remand the case to the Probate Court
    for further proceedings consistent with this order. See In re Elaine Emma
    Short, 147 Hawai#i at 471 n.30, 465 P.3d at 918 n.30 ("Because the probate
    judge who initially presided over this case is unavailable to enter findings
    of fact, we . . . remand the case to the probate court for further proceedings
    consistent with this opinion.").
    7
    

Document Info

Docket Number: CAAP-17-0000567

Filed Date: 1/31/2022

Precedential Status: Precedential

Modified Date: 1/31/2022