Opinion
23-431 23-432 23-213
04-03-2024
IN RE: Bruce Carlton ANDERSON
Maria A. Losavio, Losavio Law Office, LLC, 1821 MacArthur Drive, Post Office Box 12420, Alexandria, Louisiana 71315-2420, (318) 767-9033, COUNSEL FOR APPELLANT: Bruce Carlton Anderson Pierre F. Gremillion, 3500 N. Hullen Street, Metairie, Louisiana 70002, (504) 495-3165, COUNSEL FOR CURATOR/APPELLEE: Carey Wayne Walker, Sr. Paul J. Politz, Samantha P. Griffin, Taylor, Wellons, Politz & Duhe, LLC, 1555 Poydras Street, Suite 2000, New Orleans, Louisiana 70112, (504) 525-9888, COUNSEL FOR: Disability Rights Louisiana and Melanie Bray Court composed of Jonathan W. Perry, Sharon Darville Wilson, and Guy E.
APPEAL FROM THE NINTH JUDICIAL DISTRICT COURT, PARISH OF RAPIDES, NO. 268,928-A, HONORABLE MONIQUE F. RAULS, DISTRICT JUDGE
Maria A. Losavio, Losavio Law Office, LLC, 1821 MacArthur Drive, Post Office Box 12420, Alexandria, Louisiana 71315-2420, (318) 767-9033, COUNSEL FOR APPELLANT: Bruce Carlton Anderson
Pierre F. Gremillion, 3500 N. Hullen Street, Metairie, Louisiana 70002, (504) 495-3165, COUNSEL FOR CURATOR/APPELLEE: Carey Wayne Walker, Sr.
Paul J. Politz, Samantha P. Griffin, Taylor, Wellons, Politz & Duhe, LLC, 1555 Poydras Street, Suite 2000, New Orleans, Louisiana 70112, (504) 525-9888, COUNSEL FOR: Disability Rights Louisiana and Melanie Bray
Court composed of Jonathan W. Perry, Sharon Darville Wilson, and Guy E. Bradberry, Judges. PERRY, Judge.
In this interdiction proceeding, the issue is whether the facts and law operative herein support the trial court judgment ordering the full interdiction of Bruce Carlton Anderson. For the reasons set forth below, we affirm the judgment of the trial court.
FACTUAL AND PROCEDURAL HISTORY
On September 10, 2020, Carey Wayne Walker, Sr. ("Mr. Walker") filed a Petition for Interdiction, seeking to have his fifty-four-year-old nephew, Bruce Carlton Anderson ("Mr. Anderson"), interdicted. According to Mr. Walker, since shortly after his birth, Mr. Anderson has suffered from intellectual and developmental disabilities; has no spouse, children, or siblings; and his parents are deceased. Mr. Walker claimed Mr. Anderson was living in an apartment with twenty-four-hour care provided by Leading Healthcare of Louisiana of Pineville ("Leading Healthcare") and was unable to care for himself or his property. Therefore, Mr. Walker sought to have Mr. Anderson evaluated by Leading Healthcare’s doctor with a report of the doctor’s findings provided to the court. Mr. Walker further sought to have Mr. Anderson interdicted, to be appointed as Mr. Anderson’s curator, and to have Mr. Anderson’s cousin, Stephanie Riley ("Ms. Riley"), appointed as undercuratrix.
Mr. Anderson’s date of birth is January 19, 1966.
The record reflects attorney Melanie Bray and Disability Rights Louisiana (hereinafter collectively referred to as "DRLA") filed declinatory and dilatory exceptions on behalf of Mr. Anderson. At the hearing of these exceptions held on November 2, 2020, the trial court appointed Joseph Kutch as curator ad hoc to 2interview Mr. Anderson and to file a report for the court’s review. Judgment to this effect was signed December 3, 2020.
Joseph Kutch served as curator ad hoc until March 2021, when Mr. Walker’s petition for limited interdiction was granted, and he was appointed as Mr. Anderson’s preliminary curator for the limited purpose of filing a personal injury lawsuit on behalf of Mr. Anderson.
On January 7, 2021, Mr. Walker filed a supplemental and amended petition for interdiction, asserting Mr. Anderson "was injured in an accident and needs a legal representative to address his legal rights." DRLA filed exceptions on behalf of Mr. Anderson.
Mr. Walker filed a second supplemental and amended petition on February 3, 2021, requesting expedited consideration of his petition for limited interdiction, alleging "there is a substantial likelihood that grounds for interdiction exist, and substantial harm to Mr. Anderson’s property is imminent. Any claims stemming from [Mr. Anderson’s] March 2020 injuries will soon prescribe." DRLA again filed exceptions on behalf of Mr. Anderson.
Following a hearing on February 22, 2021, the trial court overruled Mr. Anderson’s exceptions and entered a preliminary limited interdiction. In a judgment signed on March 4, 2021, Mr. Walker was appointed as preliminary curator, authorized "to evaluate and pursue any and all of Bruce Carlton Anderson’s legal claims stemming from his March 2020 injuries[.]" Said judgment also ordered that Mr. Anderson be evaluated by the Coroner for Rapides Parish, Jonathan Hunter ("Dr. Hunter"), with a report of the doctor’s findings provided to the court.
The trial court has discretion in granting a temporary or preliminary interdiction:
When a petition for interdiction is pending, a court may order a temporary or preliminary interdiction when there is a substantial likelihood that grounds for interdiction exist and substantial harm to the health, safety, or property of the person sought to be interdicted is imminent.
La.Civ.Code art. 391.
3The record reflects Mr. Walker settled claims against Leading Healthcare on behalf of Mr. Anderson. The claims were asserted for personal injuries sustained by Mr. Anderson in a scalding incident which occurred on or about March 20, 2020.
On October 11, 2022, Mr. Walker moved for full permanent interdiction of Mr. Anderson and requested an expedited hearing. Mr. Walker’s motion also noted that Dr. Hunter evaluated Mr. Anderson on October 3, 2022, and a written report was submitted to the court on October 5, 2022.
Mr. Walker’s request for full permanent interdiction of Mr. Anderson was heard on November 14, 2022. Thereafter, the trial court signed a judgment on December 1, 2022, which ordered Mr. Anderson "be placed under full permanent interdiction regarding his person and property[;]" appointed Mr. Walker as curator; and appointed Ms. Riley as under-curatrix. From this judgment, Mr. Anderson has appealed.
The appeal in this matter was filed by DRLA on December 23, 2022. However, on March 16, 2023, upon motion by Mr. Walker, the trial court disqualified DRLA from representing Mr. Anderson and ordered DRLA and Ms. Bray to pay $7,000 as sanctions.
In April 2023, DRLA sought a supervisory writ and filed an appeal of the judgment of disqualification and sanctions. This court granted DRLA’s writ, ordering Mr. Anderson’s appeal of the interdiction judgment dated December 1, 2022, to be consolidated with DRLA’s appeal of the judgment of disqualification and sanctions dated March 16, 2023. In addition, this court remanded this case with instructions for the trial court to appoint new counsel for Mr. Anderson in connection with the appeal of the judgment of interdiction presently at issue. In Re: Bruce Carlton Anderson, 23-213 (La.App. 3 Cir. 5/9/23) (unpublished writ opinion).
DRLA’s appeal of the judgment of disqualification and sanctions is considered in the companion opinion also issued on this day in the matter appearing under docket number 23-432.
APPELLANT’S ASSIGNMENT OF ERROR
In his sole assignment of error relevant to this appeal, Mr. Anderson contends the "trial court erred in granting full interdiction when less restrictive means are available and/or erred in not granting a limited interdiction."
4 APPELLANT’S ARGUMENTS
Mr. Anderson argues the trial court erred in finding that the evidence supported his full interdiction under La.Civ. Code art. 389. He asserts that a less restrictive alternative to full interdiction could have included the trial court ordering Leading Healthcare to add Mr. Walker and/or a neutral person to act as a supportive decision maker, in compliance with the Supported Decisionmaking Agreement Act ("SDM"), also known as the Dustin Gary Act, set forth in La.R.S. 13:4261.101—302. Alternatively, Mr. Anderson contends the trial court could have granted a limited interdiction that allowed the curator to make his decisions such as legal, medical, and financial matters, including making the decision as to what provider would care for him.
APPELLEE’S POSITION
Mr. Walker argues the evidence that Mr. Anderson could not make reasoned decisions regarding his person and property was clear and convincing. Thus, he contends the trial court did not err in finding that full interdiction of Mr. Anderson was warranted.
LAW
Louisiana Civil Code Article 389 provides:
A court may order the full interdiction of a natural person of the age of majority … who due to an infirmity, is unable consistently to make reasoned decisions regarding the care of his person and property, or to communicate those decisions, and whose interests cannot be protected by less restrictive means.
The comments to Article 389 note that if a person is unable to make reasoned decisions regarding the care of his person and property, or to communicate those decisions, he is a candidate for full interdiction. See La.Civ.Code art. 389 cmt. c. Comment (e) to La.Civ.Code art. 389 further states:
5Full interdiction is a last resort and, as a result, is warranted only when a person’s interests cannot be protected by less restrictive means. A person’s interests can be protected by less restrictive means if, for example, his interests (1) are currently being protected by other legal arrangements, including procuration, mandate, or trust, or (2) could be protected by other legal arrangements, including limited interdiction, see Civil Code Article 390 (Rev. 2000). If the court determines that less restrictive means can protect the defendant’s interests, the court should deny full interdiction.
[1, 2] The petitioner in a full interdiction proceeding shall prove by clear and convincing evidence all facts justifying interdiction. See La.Code Civ.P. art. 4548. "To prove a matter by clear and convincing evidence means to demonstrate that the existence of a disputed fact is highly probable, that is, much more probable than its nonexistence." In re Interdiction of Cockerton, 21-1316, p. 7 (La.App. 1 Cir. 4/8/22), 341 So.3d 834, 839. "Whether interdiction is warranted is a finding of fact. Thus, the trial court’s judgment will not be set aside in the absence of manifest error or unless it is clearly wrong." Id. See also Stobart v. State, through DOTD, 617 So.2d 880 (La. 1993).
DISCUSSION
[3] In this case, it is undisputed that Mr. Anderson requires full-time supervision and support in all his daily needs. Mr. Anderson was born with congenital cerebral maldevelopment which resulted in him having lifelong severe intellectual disabilities. He also suffers with right sided hemiplegia (partial paralysis) secondary to cerebral palsy, contracture of his fingers on both hands and toes on both feet, and contracture of his right wrist, all which significantly restrict his physical abilities.
Mr. Anderson lived with his mother, Betty Anderson ("Betty"), until he was eighteen. He then lived at Pinecrest Supports and Services Center ("Pinecrest"), a state-owned institution located in Pineville, Louisiana, that provides residential care for disabled individuals. In 2011, Mr. Anderson qualified for Louisiana’s New Opportunities Waiver ("NOW"), a state program that allowed him to leave Pinecrest 6and live in the community with in-home supportive services paid under Medicaid. Mr. Anderson’s mother moved him out of Pinecrest and into his own apartment where he has been living since 2011 with twenty-four-hour supervised in-home care provided by direct service workers employed by Leading Healthcare. On March 17, 2020, Mr. Anderson’s mother died. On March 20, 2020, Mr. Anderson suffered second and third degree burns on his feet, legs, groin, and back due to scalding hot bath water. He was hospitalized for several weeks and underwent surgeries and extensive rehabilitation as a result of his injuries.
At the trial on his request for full interdiction held on November 14, 2022, Mr. Walker testified he is Mr. Anderson’s maternal uncle. He recalled that his sister Betty, Mr. Anderson’s mother, died on a Tuesday. Two days later, Mr. Walker visited Mr. Anderson to pick out clothing and to inform Mr. Anderson’s caretakers of Betty’s funeral arrangements. When Mr. Anderson did not appear for his mother’s funeral, Mr. Walker questioned employees of Leading Healthcare about Mr. Anderson. All Mr. Walker was told was that Mr. Anderson was in a hospital. He found Mr. Anderson in the burn unit of a hospital in Lafayette, Louisiana, after calling hospitals around the state.
According to Mr. Walker, Mr. Anderson suffered severe burns only three days after his mother’s death because he could not care for himself and because of Leading Healthcare’s negligence in its care of Mr. Anderson. In addition, Mr. Anderson could not manage his property, which included his inheritance from Betty, whose succession had not been opened as of the date of trial. Mr. Anderson’s property also included the proceeds from the settlement of a personal injury lawsuit which Mr. Walker filed in 2021 against Leading Healthcare. Mr. Walker testified he requested full interdiction to guard Mr. Anderson’s health and property, and to honor his sister’s request that he ensure Mr. Anderson is "well taken care of."
7Dr. Hunter, accepted at trial as a medical expert qualified to render opinions about a person’s mental and intellectual abilities, evaluated Mr. Anderson and reviewed some of Mr. Anderson’s medical records. Dr. Hunter prepared a written report as ordered by the trial court. Dr. Hunter found Mr. Anderson to have a profound level of intellectual disability. In reviewing Mr. Anderson’s medical records from the treating neurologist, Dr. Hunter noted that Mr. Anderson was diagnosed with epilepsy, intellectual disability, and schizencephaly (a congenital lack of formation of part of the brain). Dr. Hunter opined that these medical conditions would impair Mr. Anderson’s ability to make reasoned decisions.
Dr. Hunter’s report was admitted into evidence. After examining Mr. Anderson on October 3, 2022, Dr. Hunter reported: "Based on my impression of [Mr. Anderson’s] cognitive capacity, I would place his executive function and reasoning to be commensurate with his level of assistance both consistent and with a profound level of intellectual disability" Dr. Hunter concluded, "Mr. Anderson is not capable of independently managing his activities of daily living or his financial affairs without a high degree of assistance."
Dr. Hunter also confirmed that Mr. Anderson’s Comprehensive Plan of Care ("CPOC")—a requirement of the NOW program from which Mr. Anderson receives support—included a diagnosis of "severe intellectual disability." It was Dr. Hunter’s opinion that Mr. Anderson could not have understood the series of items that are listed in the CPOC, nor did Mr. Anderson have the ability to make reasoned financial decisions or decisions regarding services that would impact the budget. Dr. Hunter concluded his testimony stating it was his medical opinion that Mr. Anderson is not intellectually capable of making reasoned decisions concerning his person and his property.
Mr. Anderson’s CPOC was entered into evidence as Mr. Walker’s Exhibit No. 3.
Counsel for Mr. Walker then called Mr. Anderson to testify. Mr. Anderson took the stand in order for the trial court to establish whether Mr. Anderson would in- voke his right not to testify. Mr. Anderson was asked, "[W]ould you like to testify 8here today?" He replied, "Yeah." Mr. Anderson said he did not remember meeting with his own attorney, Melanie Bray, and when asked if he knew when his mother passed away, he answered, "Died yesterday." Under cross-examination, Mr. Anderson declared "the supervisor" makes his decisions, though he did not provide a person’s name.
Testimony was also heard from Amy Sherrie Jones ("Ms. Jones"), the assistant director of Leading Healthcare. Ms. Jones described Mr. Anderson as being independent and capable of making decisions. She stated Mr. Anderson is capable of doing everything except cooking for himself. According to Ms. Jones, Mr. Anderson decides what he wants to eat, what groceries he wants to buy, and he asks for help when he needs help.
Despite describing Mr. Anderson as independent, Ms. Jones acknowledged under cross-examination that Mr. Anderson’s CPOC states that he requires full assistance with several tasks. Specifically, "Historical Information" provided in Mr. Anderson’s CPOC, states, in pertinent part:
[Mr. Anderson] needs full assistance to travel within the community, schedule and attend medical appointments, and full assistance with all aspects of monies—both coin and paper. [Mr. Anderson] needs full assistance to dial 911 and remain free from exploitation. [Mr. Anderson] must be monitored for choking while eating and he needs full assistance to take his medications. [Mr. Anderson] needs full assistance to make healthy meal choices and full assistance for all aspects of meal preparation. [Mr. Anderson] needs verbal prompting to complete activities thoroughly such as bathing, shaving, brushing teeth and hair, applying his acne medication, and to pick up his room.
Testimony was also heard from four other employees of Leading Healthcare: Sandra Barbin, Amy Jones, Tymeka Hobbs, and Zachary Ware; as well as from Raisha Harris, a support coordinator for Easterseals Louisiana. All testified as to their dealings with Mr. Anderson, describing his pleasant demeanor and his ability to communicate with them.
9The initial question in this matter is whether Mr. Anderson is able to consistently make reasoned decisions regarding the care of his person and property, or to communicate those decisions as set forth in La.Civ.Code art. 389. Though described as independent and communicative, there is no dispute Mr. Anderson is profoundly intellectually disabled. Despite requiring direct service workers to be with him at all times, Mr. Anderson was scalded while bathing because he, purportedly, was left alone, turned on the hot water, and remained therein until someone noticed. The evidence indicates Mr. Anderson is unable to consistently make reasoned decisions regarding the care of his person.
As to his property, Mr. Anderson neither instituted nor directed anyone to initiate a negligence claim on his behalf, despite purportedly having legal representation. Mr. Walker acted on Mr. Anderson’s behalf. The evidence indicates Mr. Anderson is unable to consistently make reasoned decisions regarding the care of his property.
The second consideration for a full interdiction is whether Mr. Anderson’s interests can be protected by less restrictive means. Though in brief Mr. Anderson proposes that an alternative to full interdiction could have included Mr. Walker being added by Leading Healthcare as a supportive decision maker, the medical testimony from Dr. Hunter is that Mr. Anderson lacks the understanding to make this type of decision. Thus, we find no merit to Mr. Anderson’s contention that an alternative to full interdiction exists.
Considering the evidence, we do not find manifest error in the trial court’s determination that Mr. Anderson required full interdiction. The medical records prove by clear and convincing evidence and support the trial court’s factual finding that Mr. Anderson is unable to make reasoned decisions regarding the care of his person and property.
10 DECREE
The trial court’s judgment of December 1, 2022, is affirmed. Costs of this appeal are assessed to Appellant, Bruce Carlton Anderson.
AFFIRMED.