In re Turnbough

34 S.W.3d 225, 2000 Mo. App. LEXIS 1843, 2000 WL 1774125
CourtMissouri Court of Appeals
DecidedDecember 5, 2000
DocketNo. ED 77406
StatusPublished
Cited by5 cases

This text of 34 S.W.3d 225 (In re Turnbough) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Turnbough, 34 S.W.3d 225, 2000 Mo. App. LEXIS 1843, 2000 WL 1774125 (Mo. Ct. App. 2000).

Opinion

DRAPER, Judge.

Brandy Turnbough (hereinafter, “Turn-bough”) appeals from an order declaring her incapacitated and appointing the Jefferson County Public Administrator (hereinafter, “Respondent”) as her guardian. Turnbough appeals claiming the court’s order was not supported by clear and convincing evidence to support a finding of incapacitation, and the trial court erred in finding the least restrictive environment was a nursing home. We affirm.

Turnbough is a twenty-four year old woman afflicted with cerebral palsy. She is confined to a wheelchair and communicates through a device called a liberator. She resided in an assisted living arrangement at the time of trial. The Department of Mental Health filed a petition alleging Turnbough was afflicted with bipolar disease and mental disabilities such that she should be adjudged incapacitated. The petition further alleged there was no less intrusive alternative to guardianship, continued treatment was needed, and the least restrictive environment for such treatment was a nursing home.

On November 29, 1999, after a bench trial, the Probate Division of the Circuit Court of Jefferson County entered an order declaring Turnbough incapacitated and appointed Respondent as her guardian, but the order did not set forth specific findings of fact. Turnbough appeals.

Review of a court tried case is limited and will not be overturned unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously applies or declares the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Where the trial court makes no specific findings of fact, the reviewing court must assume that all facts were found in accordance with the result reached. State v. Revels, 13 S.W.3d 293, 297 (Mo. banc 2000). In weighing the evidence, we accept as true all evidence that is favorable to the prevailing party, [227]*227including all inferences reasonably dedueible therefrom, and we disregard any contradictory evidence. In the Matter of Walker, 875 S.W.2d 147, 151 (Mo.App. E.D.1994). A person petitioning for appointment as a guardian has the burden of proving incapacity by clear and convincing evidence. Section 475.075.7 RSMo (1994)1 ; In the Matter of Mitchell, 914 S.W.2d 844, 847 (Mo.App. S.D.1996). This court will set aside a judgment on the grounds that it is against the weight of the evidence only when we have a firm belief that the judgment is wrong. Id.

Turnbough’s first point on appeal claims the trial court erred in finding her incapacitated, in that this finding is against the weight of the evidence. Turnbough admits that she requires services and assistance in her day-to-day activities, but disputes that there is clear and convincing evidence to warrant the appointment of a guardian.

Under Section 475.010(6), a guardian is “one appointed by a court to have the care and custody of the person of a minor or of an incapacitated person.” Section 475.010(9) defines an incapacitated person as “one who is unable by reason of any physical or mental condition to receive and evaluate information or to communicate decisions to such an extent that one lacks capacity to meet essential requirements for food, clothing, shelter, safety or other care, such that serious physical injury, illness, or disease is likely to occur.” Incapacity requires the existence of some physical or mental condition that puts the person at risk. In the Matter of Nelson, 891 S.W.2d 181, 184 (Mo.App. W.D.1995). When a person is incapacitated, whether totally or in part, the court may appoint a guardian for the person to oversee the physical needs of that person, either in total or in part, according to the degree of incapacity. Id. The determination of whether to appoint a guardian is based on the person’s condition at the time of the hearing. Id. at 187.

Respondent presented two witnesses at trial: Turnbough’s former Department of Mental Health caseworker, who worked with Turnbough from 1993 to 1998, and her current caseworker, Angie McGovern (hereinafter, “McGovern”). They testified that Turnbough has been diagnosed with a variety of disorders which include, but are not limited to: communication disorder, bipolar disorder with psychotic features, severe depression, mental retardation, seizure disorder, congenital quadriplegia, and cerebral palsy. Turnbough experiences mood swings, hallucinations, and hearing a voice suggesting suicide or harm to herself as a result of her bipolar condition. She has been hospitalized three times in the past five years because of her psychiatric condition. They also testified Turnbough is taking several medications, such as mood stabilizers, anti-anxiety drugs, antidepressants, and antipsychotic medication. Turnbough is unable to administer her medication by herself, cannot articulate which medication she is taking, does not know how much and when to take her medication, and will not take her medication without supervision.

Less than two months before trial, McGovern administered the Missouri Critical Adaptive Behaviors Inventory (hereinafter, “MOCABI”) test to Turnbough. MOCABI measures a person’s functional limitations in six areas: self-care, receptive and expressive language, learning, mobility, self-direction, and economic self-sufficiency. McGovern testified that Turnbough exhibited substantial functional limitations in each tested area. Turnbough is limited in areas of self-care which include: bathing, dressing, eating, and basic hygiene. Turn-bough is also restricted as to language as she is unable to write, has limited communications skills through the use of her liberator, and cannot schedule appointments with doctors. The test further showed it was questionable whether Turnbough [228]*228could count money or tell time, and her memory skills were weak. Turnbough is unable to operate household equipment, needs help making independent life decisions, and cannot be left alone for a long period of time.

Finally, the caseworkers testified Turn-bough made poor decisions as to appropriate persons to serve as her caregivers and where she would like to reside. Turn-bough frequently changes her mind about where she wants to live and was residing in an ■ emergency residential placement center at the time of the trial because she refused to return home to her former foster mother. Moreover, Turnbough was involved in an incident in February 1998 where she became upset with her foster mother, left their residence and maneuvered her electric wheelchair in an erratic fashion down a highway in the rain.

Turnbough wants this Court to focus on the other witnesses who testified on her behalf at trial and her own testimony. These witnesses testified that she was able to communicate through a liberator, and she understood and evaluated information on a day-to-day level. Turnbough participated in an assisted living arrangement and attended a program to help her obtain a high school diploma and employment. Turnbough also offered into evidence the deposition of Dr. Milton Freeman (hereinafter, “Dr.Freeman”), a retired clinical psychologist, who had four half-hour sessions with Turnbough approximately a month before trial. Dr.

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Bluebook (online)
34 S.W.3d 225, 2000 Mo. App. LEXIS 1843, 2000 WL 1774125, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-turnbough-moctapp-2000.