Office of Public Guardian v. Vann

2005 UT App 513, 128 P.3d 70, 540 Utah Adv. Rep. 3, 2005 Utah App. LEXIS 525, 2005 WL 3212318
CourtCourt of Appeals of Utah
DecidedDecember 1, 2005
DocketNo. 20041128-CA
StatusPublished
Cited by3 cases

This text of 2005 UT App 513 (Office of Public Guardian v. Vann) is published on Counsel Stack Legal Research, covering Court of Appeals of Utah primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Office of Public Guardian v. Vann, 2005 UT App 513, 128 P.3d 70, 540 Utah Adv. Rep. 3, 2005 Utah App. LEXIS 525, 2005 WL 3212318 (Utah Ct. App. 2005).

Opinion

OPINION

BENCH, Associate Presiding Judge:

1 1 Appellant Penny Vann appeals the district court's order appointing the Office of Public Guardian (OPG) as permanent limited guardian of Darla Vann. We affirm.

BACKGROUND

[ 2 Darla is a thirty-two-year-old mentally retarded adult. Penny is Darla's mother and was her caregiver prior to OPG's appointment. The Division of Services for People with Disabilities (DSPD) had provided Darla support services, including supported employment, for over four years. During that time, DSPD became suspicious that Penny was financially exploiting, emotionally and physically abusing, and neglecting Darla.

T3 DSPD informed the Division of Aging and Adult Services (DAAS) of its suspicions. Based on this referral, DAAS investigated Penny and Darla's relationship. DAAS discovered that Penny administered "diet pills" to Darla, which adversely affected Darla's work performance and her ability to interact with others. Penny refused to specify the nature and scope of Darla's medical treatment, the amount of support Darla received from the Social Security Administration and the Veteran's Administration, how she spent Darla's money, and the location of Darla's bank accounts. DAAS also discovered that Penny exchanged clothes that DSPD had purchased for Darla, for larger sizes that fit Penny. Penny insisted that DSPD terminate Darla from the Medicaid Waiver, which would have eliminated all of Darla's DSPD services. When Penny and Darla met with staff members from DAAS and DSPD at an annual review meeting, staff members observed that Penny intimidated, shoved, pinched, and manipulated Darla to influence her responses regarding her personal safety and welfare.

4 On May 28, 2004, based on the evidence and the findings of DAAS and DSPD, the court issued an emergency order appointing OPG as Darla's temporary limited guardian. Pursuant to its appointment, OPG removed Darla from Penny's residence. OPG then filed a Petition for Appointment of Limited Guardianship of an Incapacitated Person (Petition for Limited Guardianship) and gave Penny notice of the hearing. Penny filed an objection to OPG's petition, but has never filed a competing petition to be appointed Darla's guardian. The court held the hearing and, based on Penny's objection, ordered mediation.

[72]*72¶5 Prior to the scheduled mediation, Penny filed a Motion for Order Striking Emer-geney Order of Guardianship. She claimed that the emergency order had expired, she was entitled to notice prior to Darla's removal, and she had a fundamental right of family association with Darla that the State could not interfere with absent an emergency or a showing of unfitness. She attached several affidavits refuting the findings of DAAS and DSPD and supporting her claim that no emergency existed. The district court held a hearing on Penny's motion and concluded that because "Darla Vann is a [thirty-two-year-old] adult, her mother, Penny Vann, has no standing to Darla's control and custody absent her appointment as Darla's guardian. Penny has never been appointed Darla's guardian." The court found that OPG properly filed a Petition for Limited Guardianship after obtaining an emergency order. The court ruled that, as an interested party, Penny could contest the propriety of that petition at the hearing for permanent limited guardianship.

T6 In October 2004, the court held the hearing on OPG's Petition for Limited Guardianship. The court found that Penny still had not filed a competing petition of guardianship. The court also found that Penny had presented no evidence to challenge the propriety of OPG's appointment or to establish that she was fit to be appointed guardian. Because OPG was the only party to seek appointment of guardianship and prove its propriety, the court granted the appointment. Penny now appeals.

ISSUES AND STANDARDS OF REVIEW

17 First, Penny asserts that the district court erred by removing Darla from Penny's custody without notice. Second, Penny contends that the district court erred in appointing OPG as Darla's permanent limited guardian without requiring it to prove that Penny was unfit.

T8 The law governing guardianship of incapacitated adults is addressed in Utah Code sections 75-5-801 to -811. See Utah Code Ann. §§ 75-5-301 to -811 (1998 & Supp. 2005). "Matters of statutory construction are questions of law that are reviewed for correctness." Platts v. Parents Helping Parents, 947 P.2d 658, 661 (Utah 1997). "Questions of fact are reviewed under the clearly erroneous standard, with deference given to the trial court." Id. "The trial court's application of the law to the facts is reviewed for abuse of discretion." Id.

ANALYSIS

I. Appointment of Temporary Limited Guardian

19 Penny contends that because of a family association, the court erred in removy-ing Darla from Penny's custody without proper notice. Penny argues that her right of family association did not expire when Darla reached the age of majority.

§10 In addressing guardianship of incapacitated adults, the legislature has specified when notice is required. Utah Code section 75-5-309 provides "[iIn a proceeding for the appointment ... of a guardian of an incapacitated person other than the appointment of a temporary guardian ... notice of hearing shall be given to ... [the ward's] parents." Utah Code Ann. § 75-5-309 (1998) (emphasis added). The court "may, without notice, appoint an appropriate official as temporary guardian." Utah Code Ann. § 75-5-810 (1993) (emphasis added). Therefore, Penny did not have the right to notice before the court appointed OPG as Darla's temporary limited guardian. Notably, as the parent of an incapacitated adult, Penny correctly received notice of all subsequent appointment proceedings pursuant to section 75-5-809.

111 Additionally, the district court did not err by appointing OPG as the temporary guardian. Section 75-5-810 provides,

[ilf an incapacitated person has no guardian and an emergency exists or if an appointed guardian is not effectively performing his duties and the court further finds that the welfare of the incapacitated person requires immediate action, it may, without notice, appoint an appropriate official as temporary guardian for the person for a specified period not to exceed 30 days pending notice and hearing.

[73]*73Id. Two state agencies, DAAS and DSPD, gathered evidence and concluded that Penny, Darla's caregiver, had exploited, abused, and neglected Darla'1 Because Darla did not have an appointed guardian and the evidence before the district court supported a finding of emergency conditions, the court properly appointed a temporary guardian. Even assuming that Penny had some right to guardianship because of a family association, the evidence before the district court would support a finding that Penny was not fulfilling the duties of a guardian. See id. Therefore, the district court did not abuse its discretion in appointing OPG as Darla's temporary limited guardian.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

In re Jacobson
2019 UT App 56 (Court of Appeals of Utah, 2019)
In Re Guardianship of E.F.
2010 UT App 339 (Court of Appeals of Utah, 2010)

Cite This Page — Counsel Stack

Bluebook (online)
2005 UT App 513, 128 P.3d 70, 540 Utah Adv. Rep. 3, 2005 Utah App. LEXIS 525, 2005 WL 3212318, Counsel Stack Legal Research, https://law.counselstack.com/opinion/office-of-public-guardian-v-vann-utahctapp-2005.