In re Roberts

245 So. 3d 167
CourtLouisiana Court of Appeal
DecidedNovember 3, 2017
DocketNo. 51,714–CA
StatusPublished

This text of 245 So. 3d 167 (In re Roberts) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Roberts, 245 So. 3d 167 (La. Ct. App. 2017).

Opinion

DREW, J.

In this interdiction proceeding, the trial court entered judgment ordering the interdiction, but denied the request to place the elderly interdict at a senior care facility in Texas. The petitioners to the interdiction appeal the location determination. We reverse that part of the judgment.

FACTS

Huey Pierce Roberts ("Roberts"), who was 85 years old at the time of this proceedings and a longtime resident of Farmerville, Louisiana, has four children: Phyllis Ramblin of Farmerville; Suzonne Taliaferrro of Flint, Texas; Joseph Roberts of Iowa, Louisiana, and Randy Roberts of Dallas, Texas.

In 2003, Roberts granted Phyllis a full power of attorney, including the making of medical decisions. In October of 2011, Roberts granted Suzonne a power of attorney over his assets, but not over his medical or health care decisions. Although Suzonne eventually became more involved in her father's financial matters because of her concerns that he was being exploited financially, she did not formally accept the power of attorney until May 18, 2016.

Dr. Gary Tubre, an internist who started treating Roberts in July of 2010, diagnosed *169Roberts in 2011 as suffering from Alzheimer's disease. When he examined Roberts for the first time in a year on February 23, 2016, he discovered that Roberts had lost 21 pounds and had a chronic rash.

Roberts, who was living alone, had a caretaker present from 7:00 a.m. to 5:00 p.m. on weekdays. A niece began watching him on weekends following his February 2016 visit with Dr. Tubre.

On May 26, 2016, Suzonne and Joseph filed a petition to interdict their father because of his inability to make reasoned decisions regarding his personal care and personal safety. Among their requests was that the court authorize them to move Roberts into the Brookdale Living Center in Henderson, Texas.

On June 28, 2016, Suzonne took Roberts for an examination by Dr. Gary Booker, who specializes in general psychiatry with a subspecialty in geriatric psychiatry. Dr. Booker concluded that Roberts needed full-time supervision. Suzonne followed Dr. Booker's suggestion that she take Roberts home with her because he could not be left alone. At the time of trial, Roberts remained at Suzonne's home, where Suzonne and her husband provided care and supervision, with relief occasionally provided by Joseph and his wife. Suzonne had installed door alarms in her house, a mattress alarm on Roberts' bed, and a video monitor was used to watch his bedroom at night without disturbing him.

On June 7, 2016, Phyllis took her father before a notary, where he revoked Suzonne's power of attorney. This revocation was ultimately set aside.

Dr. Sally Thigpen, a psychologist, was appointed by the court to examine Roberts for any infirmities and to assess the appropriateness of interdiction. She agreed that Roberts was unable to care for himself and needed supervision at all times.

Among the witnesses at trial was April Gilchrist, a licensed professional counselor who was hired by Suzonne and Joseph to initially assess Brookdale as well as three facilities in Farmerville to determine if any of them would meet Roberts' needs. Gilchrist reviewed the medical reports and took into consideration Roberts' financial means, including VA benefits. Farmerville Nursing and Rehabilitation Center would not meet his needs and did not accept VA benefits. Although Arbor Lake Skilled Nursing and Rehabilitation in Farmerville offered full-time care and supervision, Gilchrist was concerned that Roberts would not get the amount of contact there that he needed to stimulate his mind. It also did not accept VA benefits. The director of Arbor Rose Assisted Living in Farmerville did not think his facility would be appropriate for Roberts, so it did not meet Gilchrist's criteria for placement. Gilchrist thought that Brookdale, which accepted VA benefits, was the best facility for Roberts' needs. Gilchrist later visited Russ Place in Ruston, which was relatively equal to Brookdale in cost. While Russ Place accepted VA benefits and Gilchrist thought it was comparable to Brookdale, it did not offer a separate locked memory care unit or personal care assistants. Gilchrist considered a locked memory care unit to be a minimum requirement for Roberts. Therefore, according to Gilchrist, Brookdale remained the best choice for meeting Roberts' current and future needs.

The trial court entered judgment declaring the full interdiction of Roberts as to both his person and property. Suzonne was appointed curatrix. Randy was appointed undercurator. The trial court denied the request to place Roberts in a facility outside of Louisiana. Suzonne and Joseph appealed the denial of their request.

*170In its written ruling, the trial court provided a detailed and valuable summary of the testimony and records. We attach that ruling as an unpublished appendix to this opinion.

DISCUSSION

An appellate court may not set aside a trial court's or a jury's finding of fact in the absence of manifest error or unless it is clearly wrong. Rosell v. ESCO , 549 So.2d 840 (La.1989). When one or more legal errors are present, however, the appellate court does not apply the manifest error standard of review but instead conducts a de novo review of the record. Evans v. Lungrin , 1997-0541 (La. 02/06/98), 708 So.2d 731. A legal error occurs when a trial court prejudicially applies incorrect principles of law such that it materially affects the outcome of the case and deprives a party of substantial rights. Lasha v. Olin Corp. , 625 So.2d 1002 (La. 1993).

Suzonne and Joseph argue on appeal that a de novo review is allowed because the trial judge applied an incorrect standard of law during the process of deciding that Roberts could not be relocated to Brookdale. They further argue that this decision itself was also manifestly erroneous and unsupported by the record.

La. C.C.P. art. 4566(F) states that a curator shall not establish or move the place of dwelling of the interdict outside this state without prior court authorization. The standard to be used by the court is the best interest of the interdict. See In re Interdiction of Rodrigue , 2005-0061 (La. App. 1 Cir. 11/4/05), 927 So.2d 421, where the court determined that the trial judge used the correct legal standard when it denied relocation under art. 4566(F) because it referred several times to the interdict's best interest.

In its ruling, the trial court stated:

The decision as to where to place Mr. Roberts is difficult. My hope is that the children will set aside their differences and work together for Mr. Roberts' best interests. I am convinced that all of the children have a deep love and affection for their father. The Court is not at this time approving a placement for Mr. Roberts. I encourage the children to work together to formulate a plan of care for him, especially in light of La. C.C.P. art.

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Related

Stobart v. State Through DOTD
617 So. 2d 880 (Supreme Court of Louisiana, 1993)
Lasha v. Olin Corp.
625 So. 2d 1002 (Supreme Court of Louisiana, 1993)
Evans v. Lungrin
708 So. 2d 731 (Supreme Court of Louisiana, 1998)
Rosell v. Esco
549 So. 2d 840 (Supreme Court of Louisiana, 1989)
Interdiction of Rodrigue
927 So. 2d 421 (Louisiana Court of Appeal, 2005)

Cite This Page — Counsel Stack

Bluebook (online)
245 So. 3d 167, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-roberts-lactapp-2017.