Opinion
DA 22-0616
03-12-2024
For Appellant: M. H. O., Self-represented, Bozeman, Montana For Appellee: Kelsey Bunkers, Crowley Fleck, PLLP, Bozeman, Montana
Submitted on Briefs: May 17, 2023
APPEAL FROM: District Court of the Eighteenth Judicial District, In and For the County of Gallatin, Cause No. DG-21-43A Honorable Peter B. Ohman, Presiding Judge
For Appellant: M. H. O., Self-represented, Bozeman, Montana
For Appellee: Kelsey Bunkers, Crowley Fleck, PLLP, Bozeman, Montana
OPINION
DIRK M. SANDEFUR, JUSTICE
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating Rules, we decide this case is by memorandum opinion. It shall not be cited and is not precedent. The case title, cause number, and disposition shall be included in our quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports.
¶2 M.H.O. appeals pro se from the September 2022 judgment of the Montana Eighteenth Judicial District Court, Gallatin County, appointing Christopher Monaco (Nephew) as his permanent guardian and Cottonwood Case Management, Inc. (CCM) as permanent conservator.
¶3 In July 2021, Nephew petitioned pursuant to §§ 72-5-315(1), -312(2)(f), -317, and -319, MCA, for appointment as M.H.O.'s temporary guardian. At the time, M.H.O. was age 77, recently widowed, and living alone in a remote area of Big Sky, Montana. The verified petition further alleged, inter alia, that he was an "incapacitated person," as defined by § 72-5-101(1), MCA, because he was incapable of making responsible decisions regarding his health and welfare due to diagnosed dementia, deteriorating cognitive abilities, and ongoing alcohol abuse. On the same grounds, the petition prayed for appointment of CCM as M.H.O.'s temporary conservator pursuant to §§ 72-5-401, -402, -410, and -421, MCA. The verified petition was further supported with the written medical diagnosis and opinion of Dr. Philip Hess, MD, M.H.O.'s treating physician since 2016.
¶4 Based on the supported petition allegations and pursuant to §§ 72-5-317(2) and 72-5-421(1), MCA, the District Court appointed Nephew as M.H.O.'s temporary guardian, and CCM as temporary conservator, for a period not to exceed six months pending contemplated further petition for permanent guardianship and conservatorship. In August 2021, the court appointed counsel to represent M.H.O. pursuant to §§ 72-5-315(2) and -408(2), MCA, subject to his right to retain counsel of his own choosing. In October 2021, on motion of M.H.O. through counsel, the court appointed a psychologist (Dr. Christa Smelko, Psy.D.) as a special assistant to the as-yet court-appointed "physician" required by § 72-5-315(3), MCA, to conduct a neuropsychological evaluation of M.H.O. Dr. Smelko subsequently examined M.H.O. on two separate occasions in October 2021 and then filed a "Comprehensive Assessment" report pursuant to § 72-5-315(3), MCA.
Thereafter, from August 2021 through September 2022, M.H.O. was continuously represented by either court-appointed or privately-retained counsel.
¶5 The Assessment report concluded that M.H.O. suffered from a "major neurocognitive disorder with behavioral disturbances" (i.e., "alcohol-induced persisting dementia" expected to deteriorate over time), and the resulting incapacity to make responsible or rational decisions regarding his health, welfare, and need for medical treatment. The report concluded that M.H.O. was thus an "incapacitated person" as defined by § 72-5-101(1), MCA, in need of a protective guardianship and conservatorship. Dr. Smelko's report findings were based on her clinical examinations of M.H.O., review of his extensive prior medical records, family member interviews, and consultation with the assigned Montana Department of Health and Human Services Adult Protective Services (MDPHHS-APS) case worker, CCM personnel, and various healthcare providers. Based on Dr. Smelko's Assessment report, Nephew petitioned the court in early January 2022 for appointment as M.H.O.'s permanent guardian with COM as permanent conservator. On the joint motion of Nephew and M.H.O. through counsel, the District Court continued the temporary guardian and conservatorships pending disposition of the permanency petition, appointed a geriatrician (Dr. Shalina Lingley, MD) as "physician" and Peggy Tombre as "visitor" pursuant to §§ 72-5-315(3) and -313, MCA, and set the matter for hearing.
¶6 In February 2022, Dr. Lingley's physician's report was filed pursuant §§ 72-5-315(3) and -408(2), MCA. It concluded that M.H.O.'s diagnosed "multifactorial" dementia was likely to worsen over time and significantly interfered with his ability to make responsible decisions regarding his health, welfare, and finances. Tombre's visitor's report was subsequently filed pursuant to §§ 72-5-315(3) and -408(2), MCA. It similarly concluded that M.H.O. was incapable of identifying and addressing persistent issues with his health, including his dementia and alcohol abuse, and was thus in need of a permanent guardian and conservator. The report concluded that Nephew and CCM were respectively well qualified for appointment as permanent guardian and conservator. Tombre based her report on her multiple visits with M.H.O; her interviews of Nephew, involved CCM personnel, Drs. Smelko and Lingley, and the director of the assisted living facility where M.H.O. was then residing; and her review of Drs. Hess, Smelko, and Lingley's reports and assessments.
¶7 Later in February 2022, the hearing on the permanent guardianship and conservatorship petition came on, but the District Court postponed it based on the prior-noticed withdrawal of M.H.O.'s appointed counsel. The court then appointed new counsel, reset the hearing, and continued the temporary guardian and conservatorships pending final disposition. Prior to the rescheduled September 2022 hearing, Nephew filed a motion in limine for hearing admission, through a Gallatin County Sherrif s Office Seargent, of county records of dozens of 911 calls (911 Calls) made by M.H.O. from May 2020 through June 2021 requesting assistance for various reasons including welfare checks, inter alia. At the September 2022 hearing, Nephew testified in support of the peimanency petition and also presented supporting testimony from Drs. Lingley and Smelko, the court-appointed visitor, a Gallatin County Sheriff's Sergeant regarding M.H.O.'s 911 Calls, the assigned MDPHHS-APS investigator, and the involved CCM fiduciary compliance manager. M.H.O. was present personally and through counsel and presented testimony in opposition to the petition from a prior treating physician (Dr. Todd Wojtanowicz, MD) and his housekeeper of several years. Following the hearing, the District Court issued comprehensive written findings of fact and conclusions of law pursuant to §§ 72-5-316 and -409, MCA. The court ultimately found and concluded M.H.O. needed a peimanent guardian and conservator due to his diagnosed major neurocognitive disorder and resulting significantly impaired ability to make decisions regarding his medical and financial affairs. The court thus appointed Nephew as M.H.O.'s full permanent guardian and CCM as his permanent conservator. M.H.O. timely appeals pro se. To the extent discernable from his pro se briefing, M.H.O. essentially asserts that the District Court erroneously found and concluded that he needed a guardian and conservator because the evidence he presented in opposition to the petition manifested that he was not an "incapacitated person" in need of a guardianship. While not entirely clear from his pro se briefing, M.H.O, apparently further asserts that the court in any event abused its discretion in appointing Nephew as his permanent guardian rather than his housekeeper.
Inter alia, the 911 records indicate that county emergency personnel repeatedly responded to requests for welfare checks on M.H.O., often finding him intoxicated and in need of some form of assistance. M.H.O. frequently called 911 himself for assistance getting up off the floor after falling, to check if his phone was in working order, to ask officers to check on his house while he was away, and to investigate suspected theft of various financial papers and personal items by home care or conservator staff. Though M.H.O. did not file a formal response to Nephew's motion prior to hearing, it appears from the record that M.H.O. opposed admission of these records on the grounds that they constituted "confidential criminal justice information" as defined by §§ 44-5-103(3) and -303, MCA.
Based on the court's subsequent findings of facts, the housekeeper apparently testified that, although she did not know "what her duties would be," she was "willing to be [M.H.O.'s] guardian" and would "do what [was] told ... if appointed."
¶8 The appointment and administration of adult guardianships is generally governed by the pertinent provisions of §§ 72-5-101, -102, and -301 through -325, MCA. The appointment and administration of adult conservatorships is generally governed by the pertinent provisions of §§ 72-5-101, -102, and -401 through -450, MCA. A person is "incapacitated" if "impaired by reason of mental illness, mental deficiency, [or] physical illness or disability" to the extent that he or she "lacks sufficient understanding or capacity to make or communicate responsible decisions concerning" his or her self, or whose condition "has so impaired the person's judgment" that he or she "is incapable of realizing and making . . . rational decision[s]" regarding his or her "need for treatment." Section 72-5-101(1), MCA. A guardianship for an incapacitated person: (1) "may be ordered only to the extent that the person's actual mental and physical limitations require it"; (2) may be "used only as is necessaiy to promote and protect" the person's well-being; and (3) "must be designed to encourage the development of maximum self-reliance and independence." Section 72-5-306, MCA. Subject to certain enumerated "priorit[ies] for appointment as guardian," a couit has discretion to appoint "[a]ny competent person" as "guardian of an incapacitated person." Section 72-5-312(1)-(2). See also, e.g., § 72-5-312(2)(a) and (f), MCA. As pertinent here, a person "nominated by the incapacitated person" has first priority among qualified candidates for appointment but only "ifthe court specifically finds that at the time of the nomination the incapacitated person had the capacity to make a reasonably intelligent choice" regarding such nomination. Section 72-5-312(2)(a), MCA (emphasis added). Moreover, the enumerated statutory priorities specified by § 72-5-312(2), MCA, are in any event "not binding" and the court thus '''shall select the person . . . best qualified and willing to serve." Section 72-5-312(3), MCA (emphasis added). We review disputed guardianship appointments for compliance with the pertinent procedural and substantive requirements of §§ 72-5-101, -102, and -301 through -325, MCA.
¶9 Within the framework of §§ 72-5-101, -102, and -301 through -325, MCA, we review lower court conclusions and applications of law de novo for correctness, and lower court findings of fact only for clear error in the light most favorable to the prevailing party. See In re D.L.B., 2017 MT 106, ¶ 7, 387 Mont. 323, 394 P.3d 169; In re D.K.D., 2011 MT 74, ¶ 12, 360 Mont. 76, 250 P.3d 856; In re Conservatorship of Kloss, 2005 MT 39, ¶ 7, 326 Mont. 117, 109 P.3d205;/w re C.R.C., 2004 MT 389, ¶ 11, 325 Mont. 133, 104 P.3d 1065. A finding of fact is clearly erroneous only if not supported by substantial evidence, or, upon our independent review of the record, we are definitely and firmly convinced that the "court misapprehended the effect of the evidence" or was otherwise mistaken. In re C.K., 2017 MT 69, ¶ 10, 387 Mont. 127, 391 P.3d 735. District courts have broad discretion to determine the relative credibility, veracity, and probative value of conflicting evidence. In re Marriage of Bliss, 2016 MT 51, ¶¶ 15-21, 382 Mont. 370, 367 P.3d 395. Upon correct conclusions and applications of law to pertinent findings of fact that are not clearly erroneous, district courts ultimately have broad discretion in deciding whether to appoint a guardian to protect an incapacitated person. In re Guardianship &Conservatorship of A.M.M., 2015 MT 250, ¶ 16, 380 Mont. 451, 356 P.3d 474. An abuse of discretion occurs if a lower court exercises granted discretion based on a clearly erroneous finding of fact, an erroneous conclusion or application of law, or based on reasoning that is arbitrary or otherwise lacking in conscientious judgment resulting in substantial injustice. In re Marriage of Bessette, 2019 MT 35, ¶ 13, 394 Mont. 262, 434 P.3d 894.
¶10 Asa preliminary matter, a district court minute entry manifests that a court reporter was present at the dispositive September 2022 hearing here. However, M.H.O. did not provide this Court with a transcript of the hearing as required by M. R. App. P. 8(2) and (3) (appellant "duty to present" a record "sufficient to enable" this Couit "to mle upon the issues raised" and thus a "duty to" provide a written transcript of the proceedings "deemed necessary for the record on appeal"). An appellant's failure to provide a "sufficient record" for appellate review "may result" in summary "dismissal ... or affirmance" on appeal. M. R. App. P. 8(2). Moreover, a "district court's decision is presumed correct," and it is thus the appellant's burden to demonstrate any asserted error on appeal. In re Marriage of McMahon, 2002 MT 198, ¶¶ 6-7, 311 Mont. 175, 53 P.3d 1266; In re Marriage of Carlson, 214 Mont. 209, 214, 693 P.2d 496, 499 (1984). However, despite M.H.O.'s failure to provide a transcript of the dispositive hearing below, we will, in our unfettered discretion, review the available district court record in this case, including the numerous exhibits totaling some 170 pages, admitted through the testimony of the various witnesses at hearing and as referenced in the District Court's findings of fact, conclusions of law, and judgment.
¶11 Upon our independent review of the record presented, we hold that M.H.O. has not demonstrated, and we find no basis upon which to independently conclude, that any of the District Court's findings of fact are clearly erroneous. Nor do we find that any of the court's conclusions or applications of law are erroneous on de novo review. We further find no basis upon which to conclude that the District Court otherwise abused its discretion by acting in any manner or upon any rationale that was arbitrary or otherwise lacking in conscientious judgment. We thus hold that the District Court's September 2022 findings of fact, conclusions of law, and judgment appointing Nephew as M.H.O.'s permanent guardian substantially complies with all pertinent requirements specified in §§ 72-5-101(1) and -316(1), MCA.
¶12 We decide this case by memorandum opinion pursuant to Section I, Paragraph 3(c) of our Internal Operating Rules. Affirmed.
We concur: JAMES JEREMIAH SHEA, LAURIE McKINNON, INGRID GUSTAFSON, JIM RICE, JUDGES