Kelton v. Gardner

141 S.W.3d 395, 2004 Mo. App. LEXIS 913
CourtMissouri Court of Appeals
DecidedJune 23, 2004
DocketNo. 25930
StatusPublished
Cited by1 cases

This text of 141 S.W.3d 395 (Kelton v. Gardner) 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
Kelton v. Gardner, 141 S.W.3d 395, 2004 Mo. App. LEXIS 913 (Mo. Ct. App. 2004).

Opinion

JOHN E. PARRISH, Judge.

Dale Kelton (petitioner) appeals a judgment of the Probate Division of the Circuit Court of Butler County, Missouri, denying his petition to remove Helena Gardner and Louise Gardner (respondents) as co-guardians of Mildred Helena Kelton and co-conservators of the Estate of Mildred Helena Kelton. This court affirms.

This being a matter tried by the trial court without a jury, appellate review is undertaken pursuant to Rule 84.13(d). As such, the judgment will be affirmed unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Matter of Warren, 858 S.W.2d 263, 265 (Mo.App.1993).

Petitioner and respondents are the children of Mildred Kelton. At the time of the hearing on the petition that is the [397]*397subject of this appeal, Mrs. Kelton was 90 years old and a patient in Mark Twain Caring Center (the care center), a residential care facility. She suffers from dementia and is housed in the Alzheimer unit of the care center. Petitioner alleges that respondents have not assured that Mrs. Kelton is in the best and least restrictive environment and that Mrs. Kelton received medical care; that leaving Mrs. Kelton in the care center has not protected her comfort, safety, and health.

In December 2002, Helena Gardner brought Mrs. Kelton to her home to live. Mrs. Kelton had lived in the same residence in Poplar Bluff, Missouri, for 63 years but could no longer care for herself. Helena Gardner also lives in Poplar Bluff. However, she was unable to provide the care Mrs. Kelton required.

Mrs. Kelton had been placed temporarily in a mental health facility in Sikeston, Missouri. A physician who treated Mrs. Kelton at Sikeston advised placement of Mrs. Kelton in a locked facility. The Alzheimer’s unit at the care center is separated from other areas by a locked door. The door will open if someone presses on it for 15 seconds. The care center was selected to provide care for Mrs. Kelton by respondents and Butler County Public Administrator, Sharon Payne. Other facilities were considered; however, Ms. Payne determined the care center best met Mrs. Kelton’s needs. Respondents were appointed co-guardians and co-conservators shortly after Mrs. Kelton was placed in the care center.

Petitioner disagreed with the decision to place Mrs. Kelton in the care center. Shortly after Mrs. Kelton was placed there, he visited with her and found her crying. He testified that other patients abused her. He complained about medication she received. The laboratory that marketed certain medicine she was receiving had issued an advisory about possible side effects for patients aged 73 through 97. The medication had been prescribed by Mi’s. Kelton’s physician. The physician was made aware of the advisory. Mrs. Kelton was taken off the medicine for a period of time. The same medicine was later prescribed for Mrs. Kelton’s continued use.

Mrs. Kelton had experienced discomfort from a callous on her foot. Petitioner learned of the problem when visiting his mother. He sought assistance from a nurse. Petitioner testified that the nurse “saw part of the callous that needed to be cut off, and — and did some minor surgery there at that time.” At the time of the hearing, Mrs. Kelton was no longer complaining about the callous.

Petitioner told the trial court that Mrs. Kelton had gained 32 pounds since entering the care center; that he was pleased with the weight gain, but had discovered she experienced discomfort because her clothing no longer fit. He complained that larger clothing had not been supplied.

A disagreement between petitioner and Helena Gardner occurred the second time he visited Mrs. Kelton at the care center. Petitioner testified that after that visit he was told by staff at the care center that he was not allowed to see his mother. He said he was also denied telephone contact with her. The restriction was imposed pursuant to a written request made by Helena Gardner. Helena Gardner told the trial court that this occurred after a visit by petitioner had upset Mrs. Kelton; that, “[h]e was — had [Mrs. Kelton] all upset one day. They told me about it. Had me to go down there.”

Helena Gardner was asked the following questions and gave the following answers about the written directive denying petitioner contact with Mrs. Kelton:

[398]*398Q. And my question is, did you instruct the nursing home staff to prepare [the 'written directive denying petitioner contact with Mrs. Kelton]?
A. No. They came to me and told me that he had her all shook up.
Q. Okay.
A. Three of them came to me and told me.
Q. Okay.
A. And I said, well, I don’t know what to do. So she said if you will sign the paper, I can write it up and he— we’ll make him leave. So I called Sharon Payne, because I didn’t know if I had the authority to do that. And she said if that’s happening, sign it. So I signed .it.

Petitioner later obtained a restraining order that enjoined Helena Gardner, Louise Gardner “and persons acting in conjunction with them or on their behalf, ... from prohibiting [petitioner] from visiting, communicating or making contact with Mildred Helena Kelton at [the care center] or at any other location where the said Mildred Helena Kelton may be found.”

Keith Dale, the director of nursing for the care center, had become acquainted with Mrs. Kelton and with respondents and petitioner. He testified that Mrs. Kel-ton appeared to enjoy petitioner’s visits as well as Helena Gardner’s visits; that he did not know how often petitioner visited Mrs. Kelton, but that he had observed Helena Gardner visiting “at least a few times a week” although he knew he did not see her every time she came. He believed he had met Louise Gardner but was not acquainted with her. He thought Louise Gardner had been at the care center on Mrs. Kelton’s birthday which he thought had been “within the last month.” Mr. Dale was aware that Helena Gardner lived in Poplar Bluff where the care center was located, but that petitioner lived out of state.

Mr. Dale told the trial court he usually saw Mrs. Kelton daily; that she was able to get around by herself. He explained that the ward that Mrs. Kelton was on was “a lock-down ward.” He told the trial court, “It is, with a 15-second delay for safety. If she presses on the door for 15 seconds, that door will open.” He was asked if Mrs. Kelton had a tendency to roam or wander. He answered that she walked in the hallways. He said Mrs. Kelton participated in social activities at the care center. He explained the type of activities available to her. Mr. Dale said there were no restrictions in Mrs. Kelton’s file of which he was aware that would prevent petitioner from taking Mrs. Kelton outside the care center; that petitioner had not asked him that.

Mr. Dale identified Dr. Angela Patterson as Mrs. Kelton’s physician. He said Mrs. Kelton took a prescription medication, Risperdal; that Mrs. Kelton came to the care center from a psychiatric unit with Risperdal prescribed. Dr. Patterson had refilled the prescription since Mrs. Kelton had been there. Mr. Dale said petitioner had brought a copy of a notice concerning use of Risperdal to the care center; that it was faxed to Dr. Patterson. After the notice was sent to Dr. Patterson, Mrs.

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Related

In Re Estate of Kelton
141 S.W.3d 395 (Missouri Court of Appeals, 2004)

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Bluebook (online)
141 S.W.3d 395, 2004 Mo. App. LEXIS 913, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kelton-v-gardner-moctapp-2004.