Conservatorship of Gaaskjolen , 844 N.W.2d 99 ( 2014 )

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2014 S.D. 10
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
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In the Matter of the
Conservatorship of
DORA LEE GAASKJOLEN,
a Protected Person.
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APPEAL FROM THE CIRCUIT COURT OF
THE FOURTH JUDICIAL CIRCUIT
PERKINS COUNTY, SOUTH DAKOTA
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THE HONORABLE JOHN W. BASTIAN
Retired Judge
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JOHN K. NOONEY
MARLI A. SCHIPPERS
Nooney, Solay & Van Norman, LLP
Rapid City, South Dakota Attorneys for Appellant
Dora Lee Gaaskjolen.
SARAH E. BARON HOUY
MICHAEL M. HICKEY
Bangs, McCullen, Butler,
Foye & Simmons, LLP
Rapid City, South Dakota Attorneys for Appellees Shane
Penfield and Vicki Penfield.
****
CONSIDERED ON BRIEFS
ON JANUARY 14, 2014
OPINION FILED 02/26/14
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SEVERSON, Justice
[¶1.] The Fourth Circuit Court appointed Dacotah Bank as temporary
conservator, then permanent conservator, for Dora Gaaskjolen. Dora appeals,
arguing the circuit court erred as a matter of law (1) when it appointed Dacotah
Bank as her temporary conservator, and (2) when it appointed Dacotah Bank as her
permanent conservator instead of her daughter. Dora’s first argument is moot, and
the circuit court did not abuse its discretion in appointing Dacotah Bank as Dora’s
permanent conservator, accordingly we affirm.
Background
[¶2.] Dora is an 87 year-old widow who owns approximately 3,000 acres of
ranchland. In 2007, Dora suffered a traumatic head injury from a farm incident
that resulted in a condition called “expressive aphasia.” That condition makes
communication difficult, even if the individual knows what they want to say. Dora
also suffers from severe dementia, rheumatoid arthritis, chronic atrial fibrillation
with a pacemaker in place, and valvular heart disease, status post mitral valve
replacement. Additionally, Dora had a left total hip arthroplasty and a right hip
hemiarthroplasty. Dora’s injury and illnesses resulted in her inability to care for
herself.
[¶3.] Starting in 2007, one of Dora’s daughters (Audrey Lorius) began
providing full-time, in-home care. Dora’s other daughter (Vicki Penfield) managed
Dora’s bills. At that time, Audrey had rent-free use of the ranchland’s south half
while Vicki leased the north half for approximately $4,000 per year.
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[¶4.] In August 2012, Dora terminated Vicki’s lease. Vicki consulted her son
(Shane Penfield), an attorney, about the lease situation and the possibility of a
conservator for Dora. Shane filed an ex-parte petition for appointment of temporary
conservator with the circuit court on September 4, 2012. The next day, under SDCL
29A-5-315, the circuit court ordered Dacotah Bank to be Dora’s temporary
conservator for ninety days. On November 13, 2012, both parties stipulated to
extend the temporary conservatorship for an additional ninety days.
[¶5.] On October 23, 2012, Shane moved for Dacotah Bank to be Dora’s
permanent conservator. On February 6, 2013, Dora moved to set aside the
appointment of Dacotah Bank as temporary conservator and nominated her
daughter Audrey to be her conservator. On February 20, 2013, the circuit court
heard the motions.
[¶6.] Dora testified at the hearing. The record indicates that Dora had a
difficult time responding to questions and her answers were often unintelligible.
She did, however, say she wanted Audrey to be her conservator. Dora’s physician,
Dr. Frank Thorngren, also testified at the hearing. Dr. Thorngren presented an
evaluation report and testified to Dora’s physical and mental condition. Dr.
Thorngren recommended a conservator based on Dora’s incapacities. Vicki also
testified at the hearing, while Audrey, who was present, did not.
[¶7.] On February 26, 2013, the circuit court issued its memorandum
decision. It found “by clear and convincing evidence that [Dora’s] ability to respond
to people, events and environments is impaired by dementia and deficits in memory,
orientation, problem solving, to such an extent that she lacks the capacity to
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manage property and handle financial affairs without the assistance and protection
of a conservator.” Also, based on Audrey’s bankruptcy, potential inability to post
the required bond, ongoing conflicts with family members, and questionable
financial management practices, the circuit court found insufficient evidence to
support a finding that Audrey was “eligible to act and would serve in [Dora’s] best
interests.” In contrast, the circuit court found Dacotah Bank’s qualifications
uncontested and “eligible to act and would serve the best interests of the protected
person.” Ultimately, the circuit court granted Shane’s motion for Dacotah Bank to
be Dora’s permanent conservator and denied Dora’s motion to set aside the
appointment of Dacotah Bank as temporary conservator and nomination of Audrey
as conservator. The circuit court entered its order on March 4, 2013, pending
submission of findings of fact and conclusions of law.
[¶8.] On March 14, 2013, Dora moved for reconsideration of appointment of
Audrey as permanent conservator. The circuit court heard Dora’s motion on April
3, 2013, and denied it through order on April 15, 2013. A day later, the circuit court
entered its findings of fact and conclusions of law pertaining to its original
memorandum decision. Dora timely appeals the circuit court’s order denying
reconsideration of Audrey as permanent conservator, memorandum decision,
findings of fact, and conclusions of law. On May 3, 2013, the circuit court ordered
Dacotah Bank as Dora’s permanent conservator. Dora also timely appeals that
order. We consolidated Dora’s two appeals.
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Standard of Review
[¶9.] We review a circuit court’s decision to appoint a conservator for an
abuse of discretion. In re Guardianship of Nelson, 2013 S.D. 12, ¶ 15, 827 N.W.2d
72, 76 (citing In re Guardianship of Blare, 1999 S.D. 3, ¶ 9, 589 N.W.2d 211, 213).
An abuse of discretion is “a fundamental error of judgment, a choice outside the
range of permissible choices, a decision, which, on full consideration, is arbitrary or
unreasonable.” Thurman v. CUNA Mut. Ins. Soc’y, 2013 S.D. 63, ¶ 11, 836 N.W.2d
611, 616 (citations omitted). “The ‘circuit court’s factual findings are reviewed
under the clearly erroneous standard.’” In re Guardianship of S.M.N., 2010 S.D. 31,
¶ 11, 781 N.W.2d 213, 218 (quoting In re Guardianship and Conservatorship of
A.L.T. & S.J.T., 2006 S.D. 28, ¶ 37, 712 N.W.2d 338, 347). “Findings of fact are
clearly erroneous when a complete review of the evidence leaves this Court with a
‘definite and firm conviction that a mistake has been made.’” Id. (quoting A.L.T. &
S.J.T., 2006 S.D. 28, ¶ 37, 712 N.W.2d at 347). Legal questions and conclusions of
law are reviewed de novo. In re Woodruff, 1997 S.D. 95, ¶ 9, 567 N.W.2d 226, 228.
Analysis
[¶10.] Temporary Conservatorship
[¶11.] Dora argues the petition for appointment of temporary conservator
was legally insufficient and the circumstances did not warrant appointing a
temporary conservator under SDCL 29A-5-315. Shane argues Dora’s appeal on this
issue is moot because a permanent conservator is now in place. We agree; because
no exception to the mootness doctrine applies, we need not address whether the
circuit court erred by appointing Dacotah Bank as Dora’s temporary conservator.
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[¶12.] Permanent Conservatorship
[¶13.] Next, Dora argues the circuit court erred by appointing Dacotah Bank
as permanent conservator instead of her nominee—Audrey. Shane argues the
circuit court was correct when it found insufficient evidence to support a finding
that Audrey was eligible to act and would serve in Dora’s best interests. Further,
Shane argues the circuit court was correct when it found that Dacotah Bank was
eligible to act and would serve in Dora’s best interests.
[¶14.] Whether Dora needs a conservator is not at issue; who should serve
that role is. SDCL 29A-5-304 allows Dora to make a choice, stating in part:
Any individual who has sufficient capacity to form a preference
may at any time nominate any individual or entity to act as his
guardian or conservator. The nomination may be made in
writing, by an oral request to the court, or may be proved by any
other competent evidence. The court shall appoint the
individual or entity so nominated if the nominee is otherwise
eligible to act and would serve in the best interests of the
protected person.
....
At the hearing on February 20, 2013, Dora was asked, “if you wanted a conservator,
who would that be?” Dora answered, “Audrey.” When asked why, Dora could not
answer. Although noting Dora’s confusion, the circuit court did not find that Dora
lacked “sufficient capacity to form a preference[.]” SDCL 29A-5-304.
[¶15.] But SDCL 29A-5-304’s analysis does not end with the individual’s
nomination. The circuit court then must determine whether the nominee “is
otherwise eligible to act and would serve in the best interests of the protected
person.” SDCL 29A-5-304. See Blare, 1999 S.D. 3, ¶ 24, 589 N.W.2d at 215 (“When
appointing a guardian [or conservator] for a protected person, even if the individual
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has made an effective nomination, SDCL 29A-5-304 requires the court to consider
the best interests of that individual.”).
[¶16.] Addressing Audrey’s eligibility to act and serve in Dora’s best
interests, the circuit court’s findings of fact reflect that: Audrey went through
bankruptcy fifteen years ago, Audrey may not qualify for a required bond, Audrey
and other family members are in conflict making her conservatorship potentially
contentious, Audrey has a history of questionable financial management practices,
and Audrey as conservator causes potential conflicts of interests. Also, the circuit
court stated it was not “presented with any evidence that Audrey Lorius is ‘capable
of providing an active and suitable program of . . . conservatorship.’” 1 See SDCL
29A-5-110. As a result, the circuit court found “insufficient evidence to support a
finding that Audrey Lorius is eligible to act and would serve in the best interests of
the protected person.” Upon review, we cannot say that those findings are clearly
erroneous.
[¶17.] Even so, Dora argues the circuit court made a legal error by utilizing a
standard based on the alleged inapplicable portion of SDCL 29A-5-304 and by
placing a burden on Dora to establish that Audrey was eligible to act and would
1. The circuit court noted that Audrey had not appeared in the proceedings and
did not submit an affidavit. A review of the record indicates that Audrey
submitted an affidavit on March 14, 2013, in support of Dora’s motion for
reconsideration after the circuit court’s memorandum decision on February
26, 2013.
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serve in Dora’s best interests. 2
[¶18.] “[A]lthough the general inclination in this area is to appoint family
members, and most statutes so provide, the best interests of the protected person is
the overriding interest.” Blare, 1999 S.D. 3, ¶ 24, 589 N.W.2d at 216 (emphasis
added) (citing In re Guardianship of Rich, 520 N.W.2d 63, 67 (S.D. 1994)). In
making that best interests determination, the circuit court found SDCL 29A-5-304’s
considerations instructive. The circuit court did not abuse its discretion by using
the factors listed in SDCL 29A-5-304 as instructive.
[¶19.] Also, Dora takes the circuit court’s finding of “insufficient evidence” out
of context. The record does not indicate that the circuit court placed a burden on
Dora to establish that Audrey was eligible to act and would serve in Dora’s best
interests. Instead, the circuit court properly addressed whether Dora’s best
interests would be served by appointing Audrey conservator. The circuit court
found they would not. This Court gives deference to the circuit court’s ability to
make that determination. See Blare, 1999 S.D. 3, ¶ 29, 589 N.W.2d at 216
2. SDCL 29A-5-304 states in part:
In the absence of an effective nomination by the protected
person, the court shall appoint as guardian or conservator the
individual or entity that will act in the protected person’s best
interests. In making that appointment, the court shall consider
the proposed guardian’s or conservator’s geographic location,
familial or other relationship with the protected person, ability
to carry out the powers and duties of the office, commitment to
promoting the protected person’s welfare, any potential conflicts
of interest, and the recommendations of the spouse, the parents
or other interested relatives, whether made by will or otherwise.
The court may appoint more than one guardian or conservator
and need not appoint the same individual or entity to serve as
both guardian and conservator.
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(“[S]ubject to statutory restrictions, the selection of the person to be appointed
guardian [or conservator] is a matter which is committed largely to the discretion of
the appointing court.” (quoting In re Guardianship of Jacobsen, 482 N.W.2d 634,
636 (S.D. 1992))).
[¶20.] In contrast, the circuit court found Dacotah Bank “eligible to act and
would serve the best interests of the protected person.” The circuit court found
Dacotah Bank had been providing banking services to Dora “for decades.” Further,
the circuit court found the bank’s qualifications and capabilities are not contested.
Lastly, the circuit court determined that none of the concerns raised as to Audrey
serving as conservator applied if Dacotah Bank was appointed conservator.
Accordingly, the circuit court found “it is in the best interests of [Dora] that Dacotah
Bank be appointed as her conservator.” The circuit court’s finding and conservator
appointment has support in the record; the circuit court did not abuse its discretion.
Affirmed.
[¶21.] GILBERTSON, Chief Justice, and KONENKAMP, ZINTER, and
WILBUR, Justices, concur.
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