In re Guardianship of Suzette G. , 27 Neb. Ct. App. 477 ( 2019 )

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IN RE GUARDIANSHIP OF SUZETTE G.
Cite as 27 Neb. Ct. App. 477
In re Guardianship of Suzette G.,
an incapacitated person.
A lvin G., Guardian, et al., appellees,
v. Suzette G., appellant.
___ N.W.2d ___
Filed August 6, 2019. No. A-18-785.
1. Guardians and Conservators: Appeal and Error. An appellate court
reviews guardianship and conservatorship proceedings for error appear-
ing on the record made in the county court.
2. Judgments: Appeal and Error. When reviewing a judgment for errors
appearing on the record, an appellate court’s inquiry is whether the deci-
sion conforms to the law, is supported by competent evidence, and is
neither arbitrary, capricious, nor unreasonable.
3. ____: ____. An appellate court, in reviewing a judgment of the trial
court for errors appearing on the record, will not substitute its factual
findings for those of the trial court where competent evidence supports
those findings.
4. Records: Appeal and Error. It is incumbent upon the appellant to
present a record supporting the errors assigned; absent such a record,
an appellate court will affirm the lower court’s decision regarding
those errors.
5. Appeal and Error. An appellate court will not consider an issue on
appeal that was not passed upon by the trial court.
Appeal from the County Court for Douglas County: M arcena
M. Hendrix, Judge. Affirmed.
James Walter Crampton for appellant.
Jayne Wagner and Emily J. Briski, of Legal Aid of Nebraska,
for appellee Alvin G.
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IN RE GUARDIANSHIP OF SUZETTE G.
Cite as 27 Neb. Ct. App. 477
Denise E. Frost, of Johnson & Mock, for guardian ad litem.
R iedmann, A rterburn, and Welch, Judges.
R iedmann, Judge.
I. INTRODUCTION
Suzette G. appeals from an order of the county court for
Douglas County appointing her brother, Alvin G., as her lim-
ited guardian. On appeal, Suzette argues that there was not suf-
ficient evidence demonstrating she was in need of a guardian
and that the guardian ad litem (GAL) appointed for her should
not have been permitted to testify at trial. We find that the
county court did not err, and therefore, we affirm.
II. BACKGROUND
In November 2017, Alvin filed two petitions with the
county court seeking to be appointed temporary and perma-
nent guardian for Suzette. In his petitions, Alvin stated that a
guardianship was necessary because Suzette lacked sufficient
understanding to make or communicate responsible decisions
concerning her own person in several areas, including giv-
ing necessary consents, approvals, and releases; arranging
for training, education, or other rehabilitative services; and
applying for government or private benefits to which she may
have been entitled. In his petition for permanent guardianship,
he also asserted that Suzette was incapable of arranging for
her treatment or medical care. As part of both petitions, Alvin
stated that his and Suzette’s parents and their sister were nec-
essary persons required by law to receive notice of the time
and place of the hearing for guardianship. The court subse-
quently appointed Alvin as temporary guardian of Suzette,
giving him the limited powers he requested in his petition and
the power to arrange for her medical care.
At a hearing held in February 2018 on Alvin’s petition for
permanent guardianship, the court appointed Suzette both a
GAL and separate legal counsel. Alvin’s temporary guardian-
ship of Suzette was extended until June 2018, when a final
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IN RE GUARDIANSHIP OF SUZETTE G.
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hearing was held on his petition for permanent guardianship.
At the hearing, Alvin adduced evidence demonstrating that
Suzette was struggling with her mental health and was hos-
pitalized twice in the preceding year for it. Suzette had been
diagnosed at different times in her adult life with paranoid
schizoaffective disorder and paranoid schizophrenia.
The evidence revealed that in October 2017, the men-
tal health board for Douglas County found Suzette to be
mentally ill and dangerous, and that she was hospitalized
until December 2017 and then placed in outpatient care until
January 2018. Alvin and his sister had petitioned the mental
health board to hospitalize Suzette because she was contacting
law enforcement and federal marshals claiming that people
were following her. She also believed that someone was living
inside her house, that she was being “medically murdered,”
and that she asked her neighbors to test her hair and finger-
nails for poison.
The evidence also showed that after Suzette was released
from the hospital in December 2017, a treatment plan was
created by the mental health board which required that she
receive an injectable medication every month for her mental
health and that she seek a guardianship. However, in February
2018, Suzette was hospitalized a second time, after she failed
to take her medication. Suzette argued that although she did
not take the injectable medication because it made her ill,
she was taking the tablet form of the medication. Suzette was
released from the hospital in March 2018, and it was recom-
mended that she see a psychiatrist and a therapist.
Suzette has had a history of noncompliance with treatment
for her mental illness. Despite being recommended to do so,
Suzette did not meet consistently with a therapist. She had
three therapists between January and June 2018. She stopped
seeing her first therapist because she did not choose her. She
discontinued treatment with the second therapist, Dr. Aveva
Shukert, because she was “negative,” and she stopped working
with the third therapist after two visits because Suzette believed
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she was lying. At the time of the hearing, Suzette was not in
therapy. Additionally, Suzette had stopped taking medication
for her mental health in the past because it was “fruitless,” and
she had stopped working with her psychiatrist in 2015 because
she did not find it to be effective.
Suzette’s GAL testified, over an objection by Suzette, that
Suzette had been the subject of seven mental health board
holds in her adult life. Suzette provided the GAL with a
release for her to obtain information from only Shukert, who
indicated that Suzette was having delusional thoughts while
she was her patient. The GAL also testified that Suzette was
under a mental health board commitment at the time of the
hearing, meaning she could be hospitalized again if she failed
to address her mental health.
The GAL stated that she was concerned Suzette did not rec-
ognize the severity of her mental illness and therefore stopped
receiving treatment for it. It was the GAL’s recommendation
that Suzette be appointed a limited guardian for the purpose
of ensuring that she receive her medications and professional
help for her mental illness. The GAL testified that a limited
guardianship was preferred because Suzette was able to handle
her finances and budget, but she required assistance regard-
ing her mental health needs. Finally, the GAL opined that a
limited guardianship would be the least restrictive alternative
for Suzette.
Alvin testified that he sought a temporary guardianship for
Suzette because her doctors recommended it and it was part
of the treatment plan formulated by the mental health board.
Alvin stated that while he was Suzette’s temporary guard-
ian, he worked to obtain full Medicaid assistance for her,
worked with her local pharmacy to ensure she was receiving
her medications, sat in on a therapy session for her, contacted
Shukert to receive information on Suzette’s appointments and
treatment, and assisted in ensuring that her house was liv-
able. Alvin further testified that while he believed Suzette was
capable of handling her finances, she had displayed a long
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history of not complying with medication and treatment for
her mental health, which led to a deteriorated quality of life.
On cross-examination, Alvin stated that Suzette was not forth-
coming with information regarding her health and that he was
able to obtain information regarding her mental health only by
speaking directly to her medical professionals, which he was
authorized to do as her temporary guardian.
Suzette also testified at the hearing. She stated that Alvin
was not speaking with her while he was her temporary guard-
ian because she had confronted him in the past, alleging that
he fondled her when she was a child. She further stated that
she was not consulted regarding the first mental health board
hold that was placed on her in October 2017 and that she was
not happy with the proceedings. Additionally, she testified that
she paid the mortgage on her home, drove herself to appoint-
ments, and bought her own groceries.
Following the hearing, the county court appointed Alvin as
Suzette’s limited guardian. The court stated that a guardian was
necessary for Suzette because she lacked sufficient understand-
ing and capacity to make or communicate responsible deci-
sions concerning her person and her health. The court’s order
indicated that Alvin was responsible for arranging medical care
for Suzette; giving necessary consent, approval, or releases
on her behalf; and arranging for training, education, or other
habilitating services for her. Suzette timely appealed.
III. ASSIGNMENTS OF ERROR
Suzette assigns, restated, that the county court erred in (1)
finding there was clear and convincing evidence that Alvin
should be appointed limited guardian for her and (2) allowing
the GAL to testify.
IV. STANDARD OF REVIEW
[1-3] An appellate court reviews guardianship and conser-
vatorship proceedings for error appearing on the record made
in the county court. In re Guardianship & Conservatorship
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IN RE GUARDIANSHIP OF SUZETTE G.
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of Forster, 22 Neb. Ct. App. 478, 856 N.W.2d 134 (2014). When
reviewing a judgment for errors appearing on the record, an
appellate court’s inquiry is whether the decision conforms to
the law, is supported by competent evidence, and is neither
arbitrary, capricious, nor unreasonable. Id. An appellate court,
in reviewing a judgment of the trial court for errors appearing
on the record, will not substitute its factual findings for those
of the trial court where competent evidence supports those
findings. Id.
V. ANALYSIS
1. A ppointment of Limited Guardian
Suzette argues that the county court erred in finding that
Alvin proved by clear and convincing evidence that he should
be appointed her limited guardian. Suzette asserts that the
evidence does not demonstrate that she needs a guardian, that
notice was not given to all parties required by statute, and
that Alvin did not have priority to be appointed as her limited
guardian. We disagree.
(a) County Court Did Not Err in Determining
Suzette Required Limited Guardian
A court may appoint a guardian if it is satisfied by clear
and convincing evidence that the person for whom a guardian
is sought is incapacitated and that the appointment is neces-
sary or desirable as the least restrictive alternative available
for providing continuing care or supervision of the person
alleged to be incapacitated. Neb. Rev. Stat. § 30-2620 (Reissue
2016). An incapacitated person includes any person who is
impaired by reason of mental illness or mental deficiency
to the extent that the person lacks sufficient understanding
or capacity to make or communicate responsible decisions
concerning himself or herself. Neb. Rev. Stat. § 30-2601(1)
(Reissue 2016).
Here, the county court’s determination that Suzette was
incapacitated because she lacked sufficient understanding and
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capacity to make or communicate responsible decisions con-
cerning her person and her mental health, and thus required a
guardian, was supported by clear and convincing evidence.
First, the record demonstrates that Suzette has struggled
with mental illness for many years. Despite her history, the
record reveals that Suzette has not adequately addressed her
mental health. In October 2017, she was hospitalized due to
delusional thoughts which led her to contact local law enforce-
ment and federal marshals claiming that people were after her
and that she was being “medically murdered.” She also took
samples of her hair and fingernails to neighbors to be tested for
poison. Upon her release from the hospital, Suzette failed to
take her required monthly injectable medication and was again
hospitalized in February 2018. Additionally, Suzette testified
that in the past, she had stopped taking medications for her
mental health because they were “fruitless.”
Furthermore, Suzette admits that she did not consistently
meet with therapists as required. She had three therapists
between January and June 2018 and was not seeing a therapist
at the time of the hearing. She had various reasons for discon-
tinuing her therapy. Even while treating with one of the thera-
pists, Suzette continued to suffer from delusional thoughts.
Suzette’s inability or refusal to receive treatment for her
mental illness supports the court’s determination that she
lacked sufficient understanding or capacity to make respon-
sible decisions concerning her mental health. Alvin testified
that while he was her temporary guardian, Suzette did not
inform him when she stopped seeing her therapists; nor did she
inform him when she began seeing a new primary care physi-
cian. Thus, the record supports the court’s finding that Suzette
was not able to communicate responsible decisions regarding
her mental health.
Although Suzette argues on appeal that a guardianship was
unnecessary because Alvin did not employ his powers as
her temporary guardian, Alvin testified that he attempted to
obtain full Medicaid assistance for her, worked with her local
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pharmacy to ensure she was receiving her medications, set up
initial appointments for her with medical professionals, and
contacted her health care providers to receive updates on her
treatment. Therefore, the court’s decision that Suzette was
incapacitated, and in need of a guardian, was supported by
clear and convincing evidence.
Further, the county court was correct in appointing Alvin
as a limited guardian. If the court finds that a guardianship
should be created, the guardianship shall be a limited guardian-
ship unless the court finds by clear and convincing evidence
that a full guardianship is necessary. § 30-2620. If a limited
guardianship is created, the court shall specify the authorities
and responsibilities which the guardian shall have including
arranging for medical care for the ward; giving necessary con-
sent, approval, or releases on behalf of the ward; and applying
for private or governmental benefits to which the ward may be
entitled. See id.
The record indicates that Suzette was able to adequately
manage her finances and life outside of her mental health.
She paid her mortgage, drove herself to appointments, and
bought her own groceries. Both the GAL and Alvin testified
that Suzette could manage her financial affairs but needed
a guardian to ensure she was addressing her mental health.
Therefore, the court properly limited Alvin’s role as guardian
to those tasks necessary to manage Suzette’s mental health
treatment.
(b) Record Does Not Indicate Alvin Failed to
Provide Notice to All Required Persons
Suzette asserts that Alvin failed to provide notice of his peti-
tion for guardianship to all persons required by statute, namely,
her parents. We disagree.
Neb. Rev. Stat. § 30-2625 (Reissue 2016) requires a person
seeking to be appointed as a guardian for a person alleged to be
incapacitated to provide notice of hearing to the person alleged
to be incapacitated and his or her spouse, parents, and adult
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children. Suzette asserts that her parents were given notice of
the February 2018 hearing but that Alvin did not provide her
parents notice “as required by . . . § 30-2625.” Brief for appel-
lant at 6. She does not identify the manner in which notice
was deficient.
[4] Our record contains a notice of hearing for the February
2018 hearing, and it reflects notice to Suzette’s parents more
than 14 days prior to the hearing as required. Our record does
not contain the notice of hearing for the June hearing, but some
notice must have been provided, because Suzette, her father
and sister, Alvin, the GAL, and all counsel appeared for trial
on June 29. It is incumbent upon the appellant to present a
record supporting the errors assigned; absent such a record, an
appellate court will affirm the lower court’s decision regarding
those errors. Pierce v. Landmark Mgmt. Group, 293 Neb. 890,
880 N.W.2d 885 (2016).
[5] Nonetheless, the transcript indicates that the journal
entry documenting that trial occurred on June 29, 2018,
was sent to Suzette’s parents, as was the subsequent order
appointing Alvin as guardian. The record further reflects that
Suzette’s father attended the hearing. Our record does not
contain any objection by Suzette or her parents regarding
the alleged lack of notice, either at the hearing or following
the appointment of Alvin as guardian. It appears the issue
was not raised in the trial court. An appellate court will not
consider an issue on appeal that was not passed upon by the
trial court. In re Guardianship & Conservatorship of Larson,
270 Neb. 837, 708 N.W.2d 262 (2006). Because the issue
was not raised in the trial court, we decline to further address
this argument.
(c) Court Appropriately Appointed Alvin
as Limited Guardian for Suzette
Suzette also alleges that the county court erred in appoint-
ing Alvin as her limited guardian, because Alvin did not have
priority to be appointed as a guardian. We disagree.
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Any competent person may be appointed as a guardian of a
person alleged to be incapacitated. Neb. Rev. Stat. § 30-2627(a)
(Reissue 2016). Section 30-2627(b) sets forth the following
order of priority for persons who are not disqualified and who
“exhibit the ability to exercise the powers to be assigned by
the court”:
(1) A person nominated most recently by one of the
following methods:
(i) A person nominated by the incapacitated person in
a power of attorney or a durable power of attorney;
(ii) A person acting under a power of attorney or dura-
ble power of attorney; or
(iii) A person nominated by an attorney in fact who
is given power to nominate in a power of attorney or
a durable power of attorney executed by the incapaci-
tated person;
(2) The spouse of the incapacitated person;
(3) An adult child of the incapacitated person;
(4) A parent of the incapacitated person, including a
person nominated by will or other writing signed by a
deceased parent;
(5) Any relative of the incapacitated person with whom
he or she has resided for more than six months prior to
the filing of the petition;
(6) A person nominated by the person who is caring for
him or her or paying benefits to him or her;
(7) The Public Guardian.
However, the court, acting in the best interests of the
incapacitated person, may pass over a person having prior-
ity and appoint a person having lower priority or no priority.
§ 30-2627(c).
On appeal, Suzette argues that Alvin had lower priority
than her parents to be appointed as limited guardian and thus
should not have been appointed. However, there is no evidence
in the record that any person besides Alvin, including Suzette’s
parents, applied to be her guardian. A person interested in
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becoming a guardian of a person alleged to be incapacitated
must file a petition to be a guardian. Neb. Rev. Stat. § 30-2619
(Reissue 2016). Thus, Alvin was the only individual who prop-
erly petitioned to become Suzette’s limited guardian.
Section 30-2627(a) states that any competent person may
be appointed guardian of a person alleged to be incapacitated.
There is nothing in the record indicating that Alvin is not com-
petent to be Suzette’s limited guardian. Although Suzette testi-
fied that Alvin was not speaking to her because she confronted
him about his alleged inappropriate touching of her when she
was a child, she presented no corroborating evidence of such
an act and the county court clearly did not find the allegation
credible. We therefore find no error in the court’s appointment
of Alvin as Suzette’s limited guardian.
2. Court Did Not Err in Permitting
GAL to Testify at Trial
The GAL cross-examined witnesses and was allowed to tes-
tify over Suzette’s objection. Suzette argues that the court erred
in permitting the GAL to testify, because she was improperly
acting as both an advocate and a witness. We find no error in
the county court’s decision.
A GAL may conduct discovery, present witnesses, cross-
examine witnesses, present other evidence, file motions, and
appeal any decisions regarding the person for whom he or she
has been appointed. Neb. Rev. Stat. § 30-4203(2)(a) (Reissue
2016). Pursuant to the GAL practice standards for proceedings
under the Nebraska Probate Code, a GAL may testify to the
extent allowed by the Nebraska Rules of Professional Conduct.
See Neb. Ct. R. § 6-1469 (2017). Neb. Ct. R. of Prof. Cond.
§ 3-503.7(a) prohibits a lawyer from acting as an advocate at
a trial in which the lawyer is likely to be a necessary witness.
Where a lawyer has already been appointed to represent the
legal interests of a person alleged to be in need of a guardian,
the GAL functions only to advocate for the best interests of
that person. § 6-1469(C)(2).
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Suzette was appointed an attorney and a GAL; therefore,
the GAL’s duty was to advocate for Suzette’s best interests. In
doing so, the GAL was not required to make a determination
consistent with Suzette’s preferences. See § 6-1469(C)(3)(a).
That was the responsibility of Suzette’s attorney. We note that
the reason the Nebraska Rules of Professional Conduct prohibit
an attorney from acting as a witness is to avoid a conflict of
interest with his or her client. See § 3-503.7, comment 1. But
here, where the GAL is representing the person’s best interests,
such potential conflict does not exist.
The GAL was called to testify as to the content of her report;
to the extent her testimony was contained within the report,
any testimony was merely cumulative. To the extent the GAL’s
testimony extended beyond the content of her report, we find
no error, because it did not run afoul of the Nebraska Rules
of Professional Conduct. As the GAL was an advocate for
Suzette’s best interests, no conflict of interest arose between
the GAL and Suzette.
VI. CONCLUSION
The county court did not err in determining that Suzette was
in need of a limited guardian and appointing Alvin to serve in
that capacity. The court also did not err in permitting the GAL
to testify at the hearing. Accordingly, we affirm the order of
the county court.
A ffirmed.