Nebraska Department of Health & Human Services v. Gilmore

662 N.W.2d 221, 11 Neb. Ct. App. 876, 2003 Neb. App. LEXIS 143
CourtNebraska Court of Appeals
DecidedMay 27, 2003
DocketA-02-154
StatusPublished
Cited by4 cases

This text of 662 N.W.2d 221 (Nebraska Department of Health & Human Services v. Gilmore) is published on Counsel Stack Legal Research, covering Nebraska Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Nebraska Department of Health & Human Services v. Gilmore, 662 N.W.2d 221, 11 Neb. Ct. App. 876, 2003 Neb. App. LEXIS 143 (Neb. Ct. App. 2003).

Opinions

[878]*878Hannon, Judge.

INTRODUCTION

On the petition of the Nebraska Department of Health and Human Services (the Department), the county court removed Aehul Gilmore as guardian of her adult son Michael R. Gilmore and appointed a successor guardian who was without priority under the statute. Aehul appeals, alleging that the Department did not have standing to institute the proceeding; that the court did not follow required procedures in that it did not appoint a visitor, a guardian ad litem, or an attorney for Michael; and that it removed her without proof that she was unfit or had forfeited her right to be guardian. We conclude that the Department had standing; that under the facts in this case, neither a visitor, a guardian ad litem, nor an attorney for Michael was required; and that there were adequate grounds for removing Aehul and appointing a successor. We therefore affirm.

BACKGROUND

To avoid unnecessary repetition, we shall set forth some basic background information here but save discussion on many of the facts for the analysis portion of this opinion.

Michael, Aehul’s son who was 19 years old at the time of trial, suffers from autism, is mentally retarded, is basically nonverbal, weighs approximately 400 pounds, and is unable to care for himself. He is supposed to take antiseizure medication three times per day. On June 26, 2001, Aehul and Michael’s father were appointed Michael’s coguardians. Michael’s father died in a traffic accident on July 23.

It appears from the record that Michael lived at home with his parents and his brother, Steven Gilmore, up until June 4, 2001, when he was placed at Envisions Incorporated (Envisions), a corporation providing residential and vocational services. Aehul removed Michael from Envisions on June 13, but wanted to return him on June 15 because Steven had moved out of the family home. Envisions agreed to take Michael back on June 19. On July 18, Michael was admitted to the Beatrice State Developmental Center (BSDC), and he was discharged from BSDC on November 14 with a number of recommendations for his care and treatment, the most important being the implementation of a structured [879]*879schedule for Michael to adhere to on a daily basis. After this discharge, he returned to Envisions. Aehul hoped to remove Michael from Envisions prior to the completion of his treatment and move with him to Kansas.

On September 17, 2001, the Department filed a petition to remove Aehul as guardian and to appoint Robert Gilmore, Michael’s uncle, as her successor. At a hearing held on January 2, 2002, a doctor who had cared for Michael for approximately 2 years; Dr. Audrey Courtney, a psychologist at BSDC; Michele Schukar, a service coordinator for the Department; the chief executive officer of Envisions; a social worker for the PapillionLa Vista Public Schools; and Robert, the proposed successor guardian, were called as witnesses for the Department. Aehul and her son Steven were called as witnesses by Aehul.

On January 8, 2002, the court entered an order removing Aehul as Michael’s guardian. It found that Michael continued to be incapacitated, that there was clear and convincing evidence that a full guardianship was necessary, that one of Michael’s two coguardians had died, and that it was in the best interests of Michael that Aehul be removed as guardian. The court appointed Robert as the sole successor guardian.

STANDARD OF REVIEW

One of the issues presented by this appeal is that of the standing of the Department to bring this action. Standing is a jurisdictional component of a party’s case because only a party who has standing may invoke the jurisdiction of a court. Governor’s Policy Research Office v. KN Energy, 264 Neb. 924, 652 N.W.2d 865 (2002). A question of jurisdiction is a question of law. Nebraska Dept. of Health & Human Servs. v. Struss, 261 Neb. 435, 623 N.W.2d 308 (2001). Statutory interpretation also presents a question of law. Governor’s Policy Research Office v. KN Energy, supra. When reviewing questions of law, an appellate court has an obligation to resolve the questions independently of the conclusion reached by the trial court. Id.

Another question presented by this appeal is whether the trial court followed the necessary procedures when it failed to appoint a visitor, a guardian ad litem, or an attorney on behalf of [880]*880Michael. The appointment of an attorney or a guardian ad litem for a person alleged to be incapacitated is within the court’s discretion. Neb. Rev. Stat. § 30-2619 (Cum. Supp. 2002). Likewise, the appointment of a visitor is within the court’s discretion. Neb. Rev. Stat. §§ 30-2619.01 and 30-2623 (Reissue 1995).

On questions of fact — in this case, whether the evidence justifies the removal of Aehul — an appellate court reviews probate cases for error appearing on the record made in the county court. See, In re Guardianship & Conservatorship of Donley, 262 Neb. 282, 631 N.W.2d 839 (2001); In re Guardianship & Conservatorship of Hartwig, ante p. 526, 656 N.W.2d 268 (2003). When reviewing a judgment for errors appearing on the record, the inquiry is whether the decision conforms to the law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable. In re Conservatorship of Anderson, 262 Neb. 51, 628 N.W.2d 233 (2001); In re Guardianship & Conservatorship of Hartwig, supra.

ASSIGNMENTS OF ERROR

Aehul alleges the court erred (1) in permitting the Department to bring the termination action when the Department lacked standing to do so; (2) in removing her as Michael’s guardian without appointing a visitor, attorney, or guardian ad litem for Michael; (3) in failing to appoint a visitor, attorney, or guardian ad litem for Michael; (4) in removing her as Michael’s guardian and appointing a successor who did not have statutory priority over her; (5) in appointing a successor who did not have statutory priority over Steven, Aehul’s other son; and (6) in removing Aehul as guardian without proving that she was unfit to serve as guardian or that she had forfeited her superior right as natural parent.

ANALYSIS

Standing of Department to Bring Action.

Aehul argues that the Department does not have “the authority to meddle in this situation where not only a guardianship, but also a placement had already been set up.” Brief for appellant at 15. Section 30-2623(a) provides that “[o]n petition of the ward or any person interested in his welfare, the court may remove a guardian and appoint a successor if in the best interests [881]

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Related

In re Guardianship of Novacek
Nebraska Court of Appeals, 2022
In Re Guardianship and Conservatorship of Cordel
741 N.W.2d 675 (Nebraska Supreme Court, 2007)
Nebraska Department of Health & Human Services v. Gilmore
662 N.W.2d 221 (Nebraska Court of Appeals, 2003)

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Bluebook (online)
662 N.W.2d 221, 11 Neb. Ct. App. 876, 2003 Neb. App. LEXIS 143, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nebraska-department-of-health-human-services-v-gilmore-nebctapp-2003.