Berger v. Dempsey-Cook (In re Guardianship of Aimee S.)

26 Neb.App. 380

920 N.W.2d 18

IN RE GUARDIANSHIP OF AIMEE S., an incapacitated and protected person.

Deborah S. and June Berger, appellants,

v.Susanne Dempsey-Cook, Successor Guardian, and Kelly Henry Turner, guardian ad litem, appellees.

No. A-17-749

Court of Appeals of Nebraska.

Filed October 2, 2018.

Brent M. Kuhn, of Brent Kuhn Law, Omaha, for appellants.

Barbara J. Prince for appellee Susanne Dempsey-Cook.

John M. Walker and Cathy S. Trent-Vilim, of Lamson, Dugan & Murray, L.L.P., Omaha, for appellee Kelly Henry Turner.

Pirtle, Riedmann, and Bishop, Judges.

Pirtle, Judge.

I. INTRODUCTION

Deborah S. is the mother of Aimee S., an incapacitated adult. In December 2013, Deborah and June Berger (June), her friend, (collectively appellants) filed a petition for removal of a court-appointed guardian and appointment of themselves as successor coguardians and coconservators. Summary judgment was granted against appellants in June 2015. In December 2016, it was determined that the application to remove the court-appointed guardian and conservator was frivolous and that Deborah should be ordered to pay attorney fees and expenses in the amount of $75,906.20. For the reasons that follow, we affirm.

II. BACKGROUND

Aimee was declared incapacitated at the age of 23. Deborah was appointed as the temporary legal guardian of Aimee on November 14, 2001, and permanent legal guardian on January 23, 2002.

In 2011, the Department of Health and Human Services became involved after being contacted by the police. The police had been called when Aimee was overheard screaming in her apartment. Upon her admission to a local hospital, Aimee was psychotic, disoriented, and malnourished and her personal hygiene was "badly neglected." The hospital staff contacted Adult Protective Services, expressing concern regarding Aimee’s condition.

According to Deborah, Aimee’s condition in January 2011 was generally the same for the 2 years prior to her hospitalization. Deborah did not recall Aimee’s showering in the 2 years prior to her hospitalization in 2011. Deborah acted as Aimee’s guardian at that time and visited with Aimee frequently, but took no responsibility for Aimee’s condition. Deborah recalled that Aimee had seen her mental health provider approximately twice during the same 2-year period and that Aimee had skipped therapy appointments because she refused to leave her apartment.

A petition was filed by Adult Protective Services in 2011, alleging that Deborah failed to perform her duties as guardian, that she was not able to make appropriate decisions for Aimee’s medical needs and treatment, and that it was in Aimee’s best interests that a successor guardian be appointed. Deborah filed an answer denying the allegations against her, but she agreed to step down, requesting that June be appointed as successor guardian. Deborah was removed as guardian, and Sally Hytrek was appointed as the successor guardian.

On December 27, 2013, appellants filed a motion to be appointed coguardians and coconservators for Aimee and to have Hytrek removed as the court-appointed guardian and conservator for Aimee. The petition set forth nine reasons why Hytrek should no longer be the guardian.

On May 30, 2014, Hytrek resigned as successor guardian, because the "constant demands, allegations and interference" by appellants made it impossible for her to carry out her fiduciary duties to Aimee and to the other individuals she served as guardian and/or conservator. On June 10, the county court overruled appellants’ motion to appoint a substitute guardian. On or about June 12, the court accepted Hytrek’s resignation and appointed Susanne Dempsey-Cook as temporary successor guardian. Appellants did not amend their petition, and Deborah continued to seek removal of the court-appointed guardian. At a later hearing, Deborah stated that the goal of her "petition to remove the state guardians was to have myself and June ... be appointed as co-guardians." She stated that "in order for June and I to be co-guardians, yes, whoever was in there would have to be removed." Deborah conceded that when Dempsey-Cook was Aimee’s guardian, Aimee’s needs were being met—Aimee had a place to live, food to eat, clothing, shoes, and access to medical and mental health care providers.

On January 2, 2015, Aimee’s guardian ad litem (GAL), Kelly Henry Turner, filed a motion for summary judgment, arguing there was no genuine issue as to any material fact with regard to whether it was in Aimee’s best interests for Deborah to be reappointed as Aimee’s guardian. In support of her motion, Turner asserted she would offer the evidence previously offered at the hearing on November 7, 2014, regarding appellants’ motion to remove restrictions and appellants’ motion to quash the psychological evaluation of Deborah, specifically the affidavits of Robert Troyer, Aimee’s psycho-therapist; the social services director for Sunrise Country Manor (Sunrise), where Aimee resides; and the administrator for Sunrise. Turner asserted she would also offer the evidence previously offered in support of her motion for a "Rule 6-335" psychological evaluation and other relief, dated October 31, 2014, specifically: the GAL report filed August 18; the GAL report dated May 2, 2011; the clinical notes report filed on February 22; the affidavit of Deborah filed on May 5; and the petition of the Department of Health and Human Services to remove Deborah as guardian filed on October 6. A hearing was held on the matter on February 3, 2015, and the matter was taken under advisement.

On February 27, 2015, the motion for summary judgment was denied because Deborah had been ordered to complete a psychological evaluation to determine her fitness to serve as guardian, and the evaluation had not yet been completed. The court wrote that once Deborah "obtains her psychological evaluation it should address whether [she] is capable of carrying out the duties of being Aimee’s Guardian and Conservator. Until the evaluation is completed and the results known there are genuine issues of material facts in this case."

On May 4, 2015, Turner and Dempsey-Cook (collectively appellees) filed a joint motion for summary judgment and requested attorney fees. Appellees moved for summary judgment "for the reason that the pleadings, evidence and affidavits disclose that there is no genuine issue as to any material fact as to whether it is in [Aimee’s] best interest for Deborah ... to be reappointed as Aimee’s guardian." Appellees asserted they would support their motion with the same evidence identified in Turner’s first motion for summary judgment. The motion sought an order finding it was not in Aimee’s best interests for Deborah to be the guardian and conservator, and also sought a finding that the legal proceedings brought by Deborah were frivolous.

A hearing on the motion was held on May 28, 2015. In support of her motion, Turner offered into evidence exhibits 2 through 4, 6, 9, 14, and 15. In opposition to the motion, appellants offered exhibit 16.

Turner offered the affidavit of the administrator for Sunrise, who characterized the relationship between Aimee and Deborah as "co-dependen[t]" and commented that this codependent relationship "stifle[d] Aimee’s ability and desire" to improve.

The administrator stated that Deborah often brought prohibited items into the facility, discouraged Aimee from using items provided by Sunrise, and performed activities for Aimee that Aimee should do for herself. Deborah ignored requests from the staff and conducted herself in ways that fed into Aimee’s obsessive behaviors.

Turner offered the affidavit of the social services director for Sunrise, who described how differently and independently Aimee acted approximately 11 days after Aimee’s contact with Deborah had terminated. The social services director stated her opinion that it was in Aimee’s best interests to discontinue contact with Deborah.

Turner offered the affidavit and psychological evaluation of Deborah conducted by Stephanie Peterson on February 13, 2015. Peterson noted that Deborah’s ability to serve again as Aimee’s guardian "will depend upon her ability to trust and work cooperatively with others capable of clear-eyed assessment of Aimee’s needs, abilities and behaviors." Peterson opined that Deborah was not competent to serve as Aimee’s legal guardian. Peterson suggested that Deborah "may gain competency" by working with Aimee’s current guardian, caregivers, and physicians to understand the elements of Aimee’s treatment plan and gain insight regarding her role in Aimee’s treatment.

Turner offered the affidavit of Troyer, Aimee’s psychotherapist. He met with both Aimee and Deborah in family therapy sessions. He stated that Deborah cleaned Aimee’s eyeglasses, lenses and frames, for anywhere from 15 to 45 minutes every session and that Deborah then spent the remainder of the time combing Aimee’s hair, leaving little or no time for conversation. Troyer stated that he was in "full agreement" with the recommendations Peterson set forth in Deborah’s psychological evaluation.

Appellants offered the affidavit of Deborah’s therapist, Kevin Cahill. Cahill provided counseling to Deborah to "help her deal with the issues concerning care for [Aimee]." Appellees objected to the admission of paragraphs 11 through 13, which contained Cahill’s opinion regarding Deborah’s qualifications to serve as guardian. Appellees objected on the basis that paragraphs 11 through 13 of Cahill’s affidavit were hearsay, lacked proper foundation, and were not relevant.

On July 24, 2015, the court sustained appellees’ joint motion for summary judgment. In the order, the court addressed the evidentiary objections, finding, in relevant part, that paragraphs 11 through 13 of Cahill’s affidavit lacked foundation as Cahill was only " ‘generally familiar’ " with Aimee’s circumstances and his opinion was based upon information Deborah had relayed to him. Deborah was granted the right to visit Aimee where Aimee...