Opinion
No. C8-01-312.
Filed August 28, 2001.
Appeal from the District Court, Anoka County, File No. P3009209.
Linda Bogut, (for appellant Rebecca Sula Siegel)
James M. Crist, Steinhagen Crist, P.L.L.P., (for respondents Daniel Siegel and Ruth Siegel)
Considered and decided by Harten, Presiding Judge, Kalitowski, Judge, and Peterson, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. §. 480.08, subd. 3 (2000).
UNPUBLISHED OPINION
In this appeal from an order appointing respondents-parents Daniel Siegel and Ruth Siegel as co-conservators of the person of appellant Rebecca Sula Siegel (Siegel), Siegel argues that the trial court abused its discretion by denying her motion for a continuance and her request to transfer venue to Hennepin County. Siegel also argues that the trial court made insufficient findings and abused its discretion by appointing her parents as co-conservators where she expressed a preference for a professional conservator. We affirm in part and reverse and remand in part.
FACTS
Siegel suffers from paranoid schizophrenia and was committed to the Anoka Regional Treatment Center on July 3, 2000, for treatment of her mental illness. Siegel's parents petitioned to be appointed co-conservators of the person with "the power to consent to necessary medical or other professional care and treatment * * * and the power to exercise supervisory authority over [Siegel]." The petition was served on Siegel on November 20, 2000, which was 14 days before the scheduled hearing.
Siegel contested the appointment of a conservator and the appointment of her parents as co-conservators. She began to search for an independent, professional conservator, but due to the Thanksgiving holiday, she could not interview any potential conservators until the week before the hearing. Siegel spoke on the telephone to three professional conservators, and spoke with one of the three in person, but did not select any of them to serve. When the hearing began, Siegel moved for a continuance to allow more time to search for a professional conservator. Siegel also sought a change of venue from Anoka County to Hennepin County. The court denied both requests.
Siegel's psychiatrist, Dr. Mary MacDonald, testified that Siegel does not have insight into her mental illness and refuses to accept that she is mentally ill. MacDonald explained that because Siegel refuses to accept the illness, she has refused medications and failed to get treatment, and as a result, her symptoms have worsened.
MacDonald testified that Siegel has been selective about consenting to the release of her medical records by other facilities and that the inability to get complete records makes treatment more difficult and less likely to succeed. MacDonald also testified that she is able to receive information from Siegel's parents, but Siegel has restricted her from telling Siegel's parents anything about Siegel's treatment or permitting her parents to read any records from Siegel's previous treatment. MacDonald acknowledged that she can get information from Siegel's parents, but she explained that because she cannot tell the parents anything about Siegel's treatment, getting the information she needs is difficult.
Siegel testified that she signed every release MacDonald asked her to sign in order to get the information MacDonald needs. Siegel also testified that she refused to sign a release that would have permitted MacDonald to release information to Siegel's parents. Siegel stated that she did not want a conservator, but if the court found that she needed a conservator, she would prefer that a professional conservator be appointed. MacDonald opined that Siegel's parents would be better as the conservator than a professional conservator.
DECISION I.
Siegel argues that the trial court abused its discretion in denying her request for a continuance to allow her more time to search for a professional conservator and to obtain records that would refute an allegation in the petition that she aimlessly traveled around the country for five years. Siegel also contends that her preparation was hampered by the petitioners' failure to provide her with a bill of particulars.
The granting of a continuance is a matter within the discretion of the trial court and its ruling should not be reversed absent a showing of clear abuse of discretion. The test is whether a denial prejudices the outcome of the trial.
Weise v. Commissioner of Pub. Safety, 370 N.W.2d 676, 678 (Minn.App. 1985) (citations omitted).
Nothing in the record indicates that the allegation that Siegel traveled around the country for five years affected the trial court's decision in any way. Respondents' petition for conservatorship did contain that allegation, but it was not addressed during the hearing or in the trial court's findings. Thus, we cannot conclude that denying a continuance to give Siegel more time to obtain evidence to refute the allegation affected the outcome of the trial.
Siegel was served with the petition at least 14 days before the hearing as required by Minn. Stat. § 525.55, subd. 1 (2000). Although service occurred immediately before the Thanksgiving holiday, which likely made it more difficult to contact professional conservators, Siegel contacted three professional conservators before the hearing date. She did not select any of these three to serve as conservator, however, and contended that she needed additional time to explore the alternatives available to her. Siegel did not explain why none of the three professionals she spoke with was satisfactory, and she did not indicate that she intended to nominate a professional conservator.
Furthermore, Siegel's father testified at the hearing that Siegel has a trust fund, and her parents were the trustees. At one point, Siegel expressed an interest in having a professional fiduciary handle the trust, and arrangements were made to have professionals take over. However, Siegel soon stopped trusting the professionals, and she felt that they were not doing their job properly and were stealing from her. Siegel's father testified that Siegel is not able to sustain a long-term relationship of trust. She rapidly becomes mistrustful of anybody that she's dealing with, us and other people, so that we doubt that [a professional conservator] would work out.
The trial court appears to have found this testimony credible because it stated near the end of the hearing:
What is coming through rather strongly is a fight over what appears to be one of the significant dimensions of the mental illness that she has. It has paranoid tendencies. She gets paranoid about anybody being involved in her life, whether it's the parents, whether it's a financial aspect.
And I would assume the best prediction would be if I were to appoint a professional conservator that it wouldn't take too long and that would become a problem where the paranoia would set in. She's already testified she doesn't like the doctor she's been assigned. She's got no insight into her illness. It wouldn't take long for her to get paranoid over any professional that the court would appoint.
This statement leads us to conclude that although Siegel argued in the trial court that if any conservator was appointed, she wanted a professional conservator, the trial court determined that no professional conservator should be appointed. This decision was not based on the fact that no specific professional conservator had been identified, but rather on the determination that Siegel's parents would be better as conservators than a professional conservator. Therefore, denying a continuance to allow Siegel more time to select a professional conservator to nominate did not affect the outcome of the trial.
Siegel also argues that a continuance was needed because her preparation for the hearing was hampered by respondents' failure to provide her with a bill of particulars as required by Minn. Stat. § 525.542, subd. 2 (2000). But Siegel's counsel did not address this issue at the hearing on the petition, and on appeal, Siegel has not provided any argument explaining how the failure to provide a bill of particulars hampered her preparation for the hearing. Therefore, the issue is waived. See Schoepke v. Alexander Smith Sons Carpet Co., 290 Minn. 518, 519-20 187 N.W.2d 133, 135 (1971) ("An assignment of error based on mere assertion and not supported by any argument or authorities in appellant's brief is waived and will not be considered on appeal unless prejudicial error is obvious on mere inspection.").
The trial court did not abuse its discretion by denying Siegel's request for a continuance.
II.
Siegel argues that it was error for the trial court to proceed with the hearing without determining whether it would be in her best interests to transfer venue to Hennepin County. Siegel contends that a change of venue is proper because she only resides in Anoka County because she was committed to a facility located in the county. Before her commitment, she resided in Hennepin County, and Hennepin County initiated the commitment proceeding.
At the hearing, Siegel's counsel argued that jurisdiction was in Hennepin County. On appeal, Siegel acknowledges that the issue is venue, not jurisdiction. Siegel contends that the trial court considered only jurisdiction, not venue. But although counsel referred only to jurisdiction and the court stated that it had jurisdiction, it is apparent from the hearing transcript that the court's decision was based on a determination that Siegel resided in Anoka County and, therefore, that the court concluded that the proper venue was Anoka County.
A denial of a motion for a change of venue is reviewed for an abuse of discretion "and can be disturbed only upon a clear showing of abuse." Vanden Broucke v. Lyon County, 301 Minn. 399, 404, 222 N.W.2d 792, 795 (1974) (grant of a motion to change venue); see also Toughill v. Toughill, 609 N.W.2d 634, 642 (Minn.App. 2000) (reviewing denial of motion to change venue based on residence under abuse of discretion standard). Siegel argues that under Minn. Stat. § 256G.03, subd. 2 (2000), a person does not establish residence in a county simply by being present in an "excluded time facility" in the county. But that statute applies only to establishing residence for purposes of determining the county that is financially responsible for social-service programs. Minn. Stat. § 256G.01, subd. 3 (2000).
Although the only reason why Siegel resides in Anoka County is that she has been committed to a facility there, she does not retain a residence in Hennepin County, and she has no real or personal property in Hennepin County. There is no basis for concluding that Siegel continues to be a resident of Hennepin County. It was not an abuse of discretion to deny Siegel's request to transfer venue to Hennepin County.
III.
Siegel argues that the trial court's findings of fact are not sufficiently specific to meet the requirements of Minn. Stat. § 525.551, subd. 5 (2000), which provides:
In all cases the court shall make specific written findings of fact, state separately its conclusions of law, and direct the entry of an appropriate judgment or order.
If upon completion of the hearing and consideration of the record the court finds: * * * (b)(1) that the proposed ward or conservatee is incapacitated as defined in section 525.54; and (2) in need of the supervision and protection of a guardian or conservator; and (3) that no appropriate alternatives to the guardianship or conservatorship exist which are less restrictive of the person's civil rights and liberties * * * it shall enter its order or judgment * * * specifying the powers of the conservator pursuant to section 525.56. The court shall make a finding that appointment of the person chosen as guardian or conservator is in the best interests of the ward or conservatee. Except as provided in section 525.544, subdivision 1, * * * if the petition is contested, the court shall make a finding that the person to be appointed as guardian or conservator is the most suitable and best qualified person among those who are available before making the appointment. The court's finding as to the best available guardian must specifically address the reasons for the court's determination that the appointment of that person is in the best interests of the ward or conservatee.
Siegel argues that the court's findings do not address why she needs a conservator while she is still under a commitment. We disagree. The trial court found:
3. The conservatee lacks sufficient understanding or capacity to make or communicate responsible decisions concerning her person.
4. The conservatee has demonstrated behavioral deficits evidencing inability to meet her needs for medical care or safety. She is currently civilly committed to the Anoka-Metro Regional Treatment Center. She lacks insight into her mental illness or the level of care needed to treat it. She has suffered due to lack of continuity of care due to medical care providers not having access to an accurate medical history. She believes that she is being poisoned by toxins and her medication compliance is poor. She is currently taking her medications in response to a Jarvis order.
These findings indicate that the court determined that a conservator is needed so that Siegel can receive appropriate medical care during her commitment.
Siegel also argues that with respect to the selection of her parents as conservators, the trial court made only conclusory findings that simply set out the statutory standards. We agree. The court's only finding with respect to the selection of Siegel's parents as her conservators states:
Daniel Siegel and Ruth Siegel are the most suitable and best qualified among those available and willing to discharge the trust as conservator of the person of Rebecca Sula Siegel.
This finding does not "specifically address the reasons for the court's determination that the appointment of [Siegel's parents] is in the best interests of the ward or conservatee," as required by the statute. This court has required specific findings regarding the best choice for appointment as a conservator:
Findings which do not specifically address the necessary statutory factors, such as incapacitation, how the conservator appointed is the most suitable for the specific individual at issue, etc., do not comply with the statutory requisites for creation of conservatorships and appointment of conservators. Future use of such "general," conclusory findings will force this court to remand for findings consistent with the legislative mandate of specificity.
In re Conservatorship of Lundgaard, 453 N.W.2d 58, 63 (Minn.App. 1990). We, therefore, reverse the appointment of Siegel's parents as conservators and remand to the trial court for additional findings if the evidence is sufficient to support them. The trial court, in its discretion, may reopen the record to receive additional evidence on remand.