In re Guardianship of Jill G. , 312 Neb. 108 ( 2022 )


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  • Nebraska Supreme Court Online Library
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    09/02/2022 01:05 AM CDT
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    Nebraska Supreme Court Advance Sheets
    312 Nebraska Reports
    IN RE GUARDIANSHIP OF JILL G.
    Cite as 
    312 Neb. 108
    In re Guardianship of Jill G.,
    an incapacitated person.
    Debra R., appellant, v. Jill G., appellee.
    ___ N.W.2d ___
    Filed July 29, 2022.    No. S-21-586.
    1. Estates: Appeal and Error. An appellate court reviews probate cases
    for error appearing on the record made in the county court.
    2. 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.
    3. Statutes: Appeal and Error. Statutory interpretation is a question of
    law, which an appellate court resolves independently of the trial court.
    4. Guardians Ad Litem: Words and Phrases. 
    Neb. Rev. Stat. § 30-4204
    (Reissue 2016) empowers the guardian ad litem to obtain information as
    part of his or her investigation and permits for the admissibility of infor-
    mation so collected. By its plain terms, § 30-4204 addresses “material
    obtained by a guardian ad litem” and does not pertain to a report created
    by a guardian ad litem.
    5. Statutes: Appeal and Error. Statutory language is to be given its plain
    and ordinary meaning, and an appellate court will not resort to inter-
    pretation to ascertain the meaning of statutory words which are plain,
    direct, and unambiguous.
    6. Statutes: Intent. When interpreting a statute, the starting point and
    focus of the inquiry is the meaning of the statutory language, understood
    in context.
    7. Statutes: Words and Phrases. The placement of a statutory word
    proximate to a provision which it describes informs our interpretation of
    the statute.
    8. Trial: Evidence. When part of an exhibit is inadmissible, a trial court
    has discretion to reject the exhibit entirely or to admit the admissible
    portion.
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    Nebraska Supreme Court Advance Sheets
    312 Nebraska Reports
    IN RE GUARDIANSHIP OF JILL G.
    Cite as 
    312 Neb. 108
    9. Trial: Evidence: Appeal and Error. Because it is the proponent’s
    responsibility to separate the admissible and inadmissible parts when
    offering evidence, an appellate court will ordinarily uphold a court’s
    exclusion of an exhibit if the proponent did not properly limit its offer
    to the part or parts that are admissible.
    Appeal from the County Court for Douglas County:
    Marcena M. Hendrix, Judge. Affirmed.
    Andrew Schill, of Legal Aid of Nebraska, for appellant.
    James Walter Crampton for appellee.
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
    Papik, and Freudenberg, JJ.
    Miller-Lerman, J.
    NATURE OF CASE
    Debra R., the appellant, sought to have the Office of Public
    Guardian appointed as guardian over her daughter, Jill G.,
    the appellee. The county court for Douglas County ultimately
    dismissed the petition for appointment of a guardian without
    prejudice. Debra appeals. She contends that a report created
    by the guardian ad item (GAL) pursuant to 
    Neb. Rev. Stat. § 30-4205
     (Reissue 2016) should have been admitted into evi-
    dence and that in combination with the testimony of the GAL,
    the evidence would support creation of a guardianship over
    Jill. We conclude that exclusion of the report was not error and
    accordingly affirm.
    STATEMENT OF FACTS
    Jill is the alleged incapacitated person in this matter. In
    August 2019, Jill was arrested for trespassing and destroying
    property in a church. She remained in the Douglas County jail
    until August 2020, when she was released to a recovery cen-
    ter. Thereafter, Debra petitioned to have the Office of Public
    Guardian appointed as guardian over Jill. The county court
    appointed Debra as temporary guardian and appointed a GAL
    and separate counsel for Jill.
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    Nebraska Supreme Court Advance Sheets
    312 Nebraska Reports
    IN RE GUARDIANSHIP OF JILL G.
    Cite as 
    312 Neb. 108
    On May 17, 2021, the GAL filed a notice of availability of a
    report (sometimes referred to herein as “the GAL report”). The
    GAL report at the center of this appeal consisted of eight pages
    and was supported by an affidavit. Attached to the report were
    approximately 80 pages of information and material obtained
    by the GAL pursuant to 
    Neb. Rev. Stat. § 30-4204
     (Reissue
    2016) regarding, inter alia, Jill’s medical history. Trial was held
    on June 15.
    At trial, Debra testified to Jill’s medical history and diag-
    noses. She described a cycle of Jill’s taking medications,
    improving, ceasing medication, and then returning to a medi-
    cal facility.
    The GAL testified that she conducted an investigation of
    Jill, which included phone conversations with Jill; a document
    review, including over 80 pages of medical records; and a
    report from Jill’s medical provider concerning the seven areas
    relevant to a guardianship. The GAL testified that, based on
    her investigation summarized in her report, she recommended
    Jill have a guardian. She stated that the written eight-page
    GAL report was her business record of her investigation and
    that it was supported by an affidavit. At several points dur-
    ing the hearing, Debra offered the GAL report, including the
    attached informational documents as evidence, but each time,
    the court sustained Jill’s objections on the basis that the state-
    ments were hearsay and lacked foundation. The court also
    declined to take judicial notice of the GAL report. At no time
    did Debra offer the GAL report and informational material
    attached thereto separately.
    Jill testified at trial that she did not want to have a guardian-
    ship. She testified that a previous guardianship had been dis-
    missed in early 2018 and that she was taking medications daily.
    She testified she was living in the home of her deceased aunt
    and fixing up the house. Her father paid for utilities and gave
    her a vehicle. She testified that she would continue to take care
    of herself without a guardian.
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    Nebraska Supreme Court Advance Sheets
    312 Nebraska Reports
    IN RE GUARDIANSHIP OF JILL G.
    Cite as 
    312 Neb. 108
    On June 15, 2021, the county court entered a journal entry
    that granted Jill’s motion to dismiss because Debra had failed
    to make a prima facie case for appointment of a permanent
    guardian.
    ASSIGNMENTS OF ERROR
    Debra assigns, summarized and restated, that the county
    court erred when it failed to admit the GAL report into evi-
    dence and when it dismissed her petition for appointment of a
    guardian for Jill.
    STANDARDS OF REVIEW
    [1,2] An appellate court reviews probate cases for error
    appearing on the record made in the county court. In re
    Guardianship & Conservatorship of J.F., 
    307 Neb. 452
    , 
    949 N.W.2d 496
     (2020). 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. 
    Id.
    [3] Statutory interpretation is a question of law, which an
    appellate court resolves independently of the trial court. In re
    Estate of Larson, 
    311 Neb. 352
    , 
    972 N.W.2d 891
     (2022).
    ANALYSIS
    Debra argues that the GAL report was improperly excluded
    from evidence, because the GAL statutes revised in 2016 show
    “clear intent of allowing both the report of the GAL and the
    fruits of the GAL’s investigation into evidence.” Brief for
    appellant at 11. Debra contends that by statute, the county
    court was obligated to admit the GAL report for the purpose
    of evaluating the question of creating a guardianship, and that
    the report was material. We conclude that the county court cor-
    rectly analyzed the GAL report as inadmissible hearsay, and
    thus, we affirm.
    Several relevant statutes, including the GAL statutes amended
    in 2016, 
    Neb. Rev. Stat. §§ 30-4201
     to 30-4210 (Reissue 2016),
    control our analysis. Consistent with §§ 30-4201 to 30-4210, in
    a guardianship proceeding, the court may appoint a GAL to
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    IN RE GUARDIANSHIP OF JILL G.
    Cite as 
    312 Neb. 108
    advocate for the best interests of the person alleged to be inca-
    pacitated. 
    Neb. Rev. Stat. § 30-2619
    (b) (Reissue 2016). A GAL
    appointed pursuant to the Nebraska Probate Code must be an
    attorney in good standing admitted to the practice of law in the
    State of Nebraska and meet any other requirements, including
    training, imposed by the Supreme Court. See § 30-4202(1).
    Regarding its 2016 amendments, the Legislature explained
    as follows:
    The Legislature finds that it is in the best interests of
    persons under disability and the public for the authorities
    and responsibilities of a [GAL] to be expanded to include
    an objective investigation and assessment of the needs
    of a person who comes before the court in any guardian-
    ship, conservatorship, or other protective proceeding to
    ensure the protection of the rights of the person who is
    the subject of the proceeding. The Legislature also finds
    that the public is benefited from having trustworthy and
    competent guardians and conservators appointed for inca-
    pacitated persons, wards, protected persons, and minors.
    § 30-4201. To this end, the Legislature set forth various
    expanded duties and powers of a GAL. With respect to the
    evidentiary issue in this case, a GAL is required to, inter alia,
    investigate, gather information regarding, and make an assess-
    ment of the condition of the person for whom he or she has
    been appointed to represent and report to the court the condi-
    tion of such person. See § 30-4203(1)(b). The written report
    addresses whether the person for whom the guardianship is
    sought is an incapacitated person, and it further addresses the
    scope of a limited guardianship or why a full guardianship is
    necessary to protect the best interests of the incapacitated per-
    son. See § 30-4205.
    Section 30-4204 provides the statutory authority for the
    GAL to obtain certain information, informally or by subpoena,
    about the person for whom the GAL has been appointed,
    including “report[s] from any medical provider, provider of
    psychological services, law enforcement, adult protective serv­
    ices agency, or financial institution; and . . . any account or
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    IN RE GUARDIANSHIP OF JILL G.
    Cite as 
    312 Neb. 108
    record of any business, corporation, partnership, or other busi-
    ness entity which such person owns or in which such person
    has an interest.” Of particular interest in this appeal is the
    concluding provision in § 30-4204, which states that “[a]ny
    material obtained by a [GAL] pursuant to this section is admis-
    sible in evidence.” (Emphasis supplied.) Debra relies primarily
    on this provision of § 30-4204 pertaining to gathered materials
    as the basis of her claim that the GAL report which the GAL
    authored should have been admitted into evidence. We do not
    agree with Debra’s reading of the statute.
    Historically, in other contexts, we have observed that GAL
    reports are hearsay and, whether in written form or testi-
    mony by the GAL, are subject to the rules of evidence. We
    have stated that “‘a report is not somehow made admissible
    because it was prepared by a [GAL] appointed by a court
    pursuant to a statute.’” Betz v. Betz, 
    254 Neb. 341
    , 347, 
    575 N.W.2d 406
    , 410 (1998). We have applied the principle that
    in the absence of admissibility authorized by the Nebraska
    Evidence Rules or by other statute as a nonhearsay state-
    ment or statements otherwise exempted or excluded from
    the operation or purview of the “hearsay rule,” 
    Neb. Rev. Stat. § 27-802
     (Reissue 2016), a hearsay statement will be
    excluded. See, generally, State v. McCurry, 
    296 Neb. 40
    , 
    891 N.W.2d 663
     (2017). See, also, Heistand v. Heistand, 
    267 Neb. 300
    , 
    673 N.W.2d 541
     (2004).
    [4-7] Debra contends that the GAL statutes set forth above
    create a statutory exception to the rules of evidence, rendering
    the GAL report admissible into evidence. We do not agree. Of
    the GAL statutes referenced above, only § 30-4204 concerns
    admissibility of GAL materials in court. Section 30-4204,
    which empowers the GAL to obtain information as part of
    his or her investigation, only permits for the admissibility
    of information so collected. By its plain terms, § 30-4204
    addresses “material obtained by a [GAL]” and does not per-
    tain to a report created by a GAL. Statutory language is to be
    given its plain and ordinary meaning, and an appellate court
    will not resort to interpretation to ascertain the meaning of
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    IN RE GUARDIANSHIP OF JILL G.
    Cite as 
    312 Neb. 108
    statutory words which are plain, direct, and unambiguous. In re
    Adoption of Yasmin S., 
    308 Neb. 771
    , 
    956 N.W.2d 704
     (2021).
    When interpreting a statute, the starting point and focus of the
    inquiry is the meaning of the statutory language, understood
    in context. Parks v. Hy-Vee, 
    307 Neb. 927
    , 
    951 N.W.2d 504
    (2020). The placement of the admissibility provision proxi-
    mate to the statutory authority to gather information informs
    our conclusion that the admissibility provision is directed
    to the information so gathered. Specifically, the placement
    of the admissibility provision in the guardianship statutes
    at § 30-4204, which provides for the gathering of informa-
    tion to present to the court, supports our conclusion that the
    admissibility provision of § 30-4204 is directed toward that
    information and not the separate report, the creation of which
    is authorized by § 30-4205. If the Legislature had wanted the
    GAL report prepared under § 30-4205 to be admissible, it
    could have so provided. Compare § 30-4204 (providing for
    admissibility of information gathered). Contrary to Debra’s
    assertion, § 30-4204 does not address the evidentiary issue sur-
    rounding the report authored by the GAL as distinguished from
    the material collected, and we further observe that such report
    may contain impressions of the GAL implicating additional
    layers of opinion and hearsay and their attendant admissibil-
    ity challenges. It was not error for the county court to sustain
    objections to the GAL report as hearsay.
    [8,9] As noted, the product of the GAL’s work included
    both the recommendation of the GAL contained in the GAL
    report and informational material attached thereto, the latter
    of which the GAL had gathered pursuant to § 30-4204. We
    have carefully examined the record, noting that the county
    court was not asked to rule separately on the admissibility of
    medical records and other information attached to the GAL
    report as distinguished from the report itself. When part of an
    exhibit is inadmissible, a trial court has discretion to reject
    the exhibit entirely or to admit the admissible portion. Arens
    v. NEBCO, Inc., 
    291 Neb. 834
    , 
    870 N.W.2d 1
     (2015). Because
    it is the proponent’s responsibility to separate the admissible
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    IN RE GUARDIANSHIP OF JILL G.
    Cite as 
    312 Neb. 108
    and inadmissible parts when offering evidence, an appellate
    court will ordinarily uphold a court’s exclusion of an exhibit
    if the proponent did not properly limit its offer to the part
    or parts that are admissible. 
    Id.
     Specifically, the court was
    not asked to admit the informational material only, pursuant
    to § 30-4204, and we therefore do not consider whether the
    addition of such evidence would have been sufficient had the
    informational material been properly before the court.
    For completeness, we note that, relying on 
    Neb. Rev. Stat. § 30-2619.04
     (Reissue 2016), Debra also contends that Jill
    waived objections to the admissibility of the GAL report by
    failing to respond to it within 10 judicial days. We reject
    this argument. Section 30-2619.04 provides that “[t]he peti-
    tioner and the proposed ward shall have ten judicial days
    to file responses to the visitor’s evaluation report.” Debra’s
    reliance on the court visitor report statutes is misplaced and
    unavailing. See 
    Neb. Rev. Stat. §§ 30-2619.01
     to 30-2619.04
    (Reissue 2016). The plain language of § 30-2619.04 applies
    to visitor reports, and this case concerns a GAL report.
    We have acknowledged that procedural comparisons may be
    drawn between the GAL reports and visitor reports in the
    Supreme Court rules for the nomination of the Office of the
    Public Guardian. See Neb. Ct. R. 6-1433.01 (2015). However,
    because § 30-2619.04 does not apply to reports by a GAL, this
    statute does not limit the time during which a party may object
    to a GAL report.
    Having reviewed the admitted evidence, we do not find that
    the county court erred when it granted Jill’s motion to dismiss
    Debra’s petition for the appointment of a guardian.
    CONCLUSION
    For the reasons stated above, we affirm the order of the dis-
    trict court that dismissed Debra’s petition for appointment of a
    guardian for Jill.
    Affirmed.