Brosamer v. Lenawee Cmty. Mental Health Auth. (In re Brosamer)

328 Mich.App. 267

936 N.W.2d 870

IN RE GUARDIANSHIP OF Lisa BROSAMER.

Patricia Brosamer, Guardian of Lisa Brosamer, a legally protected person, Petitioner-Appellee,

v.Lenawee Community Mental Health Authority, Respondent-Appellant.

No. 346394

Court of Appeals of Michigan.

Submitted May 8, 2019, at Detroit.

Decided May 16, 2019, 9:00 a.m.

Thomas L. Stringer for petitioner.

Abbott Nicholson, PC (by John R. McGlinchey and Kristen L. Baiardi ) for respondent.

Before: Redford, P.J., and Markey and K. F. Kelly, JJ.

Per Curiam.

In this guardianship case, respondent, the Lenawee Community Mental Health Authority, appeals as of right the probate court’s order enjoining respondent from transferring a protected individual, Lisa Brosamer (Lisa), from one community residential placement (College Avenue, where Lisa has resided since 2009) to another residential placement (Westhaven). Respondent contends on appeal that (1) the probate court erroneously applied MCL 330.1536 and effectively rewrote the statute and (2) the probate court abused its discretion by granting permanent injunctive relief. We disagree and affirm.

I. BASIC FACTS

Lisa is severely intellectually disabled and unable to care for herself or manage her estate. Her mother was Lisa’s predecessor guardian and cared for Lisa in her home from Lisa’s birth on February 22, 1961, through October 3, 2006, when, because of her mother’s declining health, Lisa transitioned to a residential treatment facility at 3376 Marvin Drive in Adrian. On March 7, 2008, Lisa was transferred to a different facility at 451 South Main Street in Adrian. Finally, on March 1, 2009, Lisa was transferred to her current residence at College Avenue. Petitioner, Patricia Brosamer, was appointed successor plenary guardian of Lisa on December 2, 2009.

On September 26, 2018, petitioner filed the petition that led to this appeal. Petitioner contended that respondent was planning to transfer Lisa from College Avenue to another community placement at Westhaven and sought an ex parte order denying the transfer on the ground that it would be detrimental to Lisa pursuant to MCL 330.1536. The probate court granted ex parte relief and later held a full hearing. In lieu of testimony, respondent presented three affidavits from its employees indicating that the transfer would not be detrimental to Lisa and that respondent was, therefore, statutorily entitled to move forward with the transfer. Petitioner presented four witnesses familiar with Lisa’s situation who all testified that the planned move would be detrimental to Lisa. Lisa’s lawyer-guardian ad litem indicated that, in his opinion, the probate court should favor the testimony of petitioner because of petitioner’s heavy involvement in the welfare of Lisa and because petitioner’s history with Lisa made petitioner the most capable of predicting the outcome of a transfer. The probate court summarized the affidavits provided by respondent and the testimony from the evidentiary hearing and concluded that the "move certainly does appear to be something that would be detrimental to Lisa."

II. APPLICATION OF MCL 330.1536

On appeal, respondent argues that the probate court clearly erred by determining that transferring Lisa from College Avenue would be detrimental to her well-being. It argues that the probate court judicially revised MCL 330.1536 and created a right for plenary guardians to veto the decisions of mental health authorities when the Legislature did not intend for such a veto to exist. We disagree. Although respondent frames its argument on appeal as one regarding statutory interpretation, respondent’s argument actually concerns the probate court’s factual findings.

The probate court’s factual findings are reviewed for clear error and its dispositional rulings for an abuse of discretion. In re Lundy Estate , 291 Mich. App. 347, 352, 804 N.W.2d 773 (2011). A finding is clearly erroneous when, even though there is evidence to support it, "a reviewing court is left with a definite and firm conviction that a mistake has been made[.]" In re Vansach Estate , 324 Mich. App. 371, 385, 922 N.W.2d 136 (2018) (quotation marks and citation omitted). "An abuse of discretion occurs when the court’s decision falls outside the range of reasonable and principled outcomes" or when the court fails "to operate within the correct legal framework." Id. at 385, 922 N.W.2d 136 (quotation marks and citation omitted). Further, "[t]he reviewing court will defer to the probate court on matters of credibility, and will give broad deference to findings made by the probate court because of its unique vantage point regarding witnesses, their testimony, and other influencing factors not readily available to the reviewing court." In re Erickson Estate , 202 Mich. App. 329, 331, 508 N.W.2d 181 (1993).

MCL 330.1536 provides:

(1) A resident in a center may be transferred to any other center, or to a hospital operated by the department, if the transfer would not be detrimental to the resident and the responsible community mental health services program approves the transfer.

(2) The resident and his or her nearest relative or guardian shall be notified at least 7 days prior to any transfer, except that a transfer may be effected earlier if necessitated by an emergency. In addition, the resident may designate 2 other persons to receive the notice. If the resident, his or her nearest relative, or guardian objects to the transfer, the department shall provide an opportunity to appeal the transfer.

(3) If a transfer is effected due to an emergency, the required notices shall be given as soon as possible, but not later than 24 hours after the transfer.^[1]

The evidence in this case primarily came from seven people: three affiants and four testifying witnesses. Of those seven people, only four of them provided evidence that they had either a history with Lisa or daily interaction with Lisa such that they might reasonably be capable of opining as to how the proposed transfer might affect Lisa’s well-being. All four of the witnesses demonstrated a personal history with Lisa, and all of them concluded that transferring Lisa to Westhaven would be detrimental.

Petitioner testified that Lisa had thrived at College Avenue largely because of the relationships she had formed with residents and staff, including forming a close bond with a resident who had resided at College Avenue even longer than Lisa. Petitioner was able to testify that in light of her history with and personal knowledge of Lisa, starting anew at Westhaven would be detrimental to Lisa and would cause her to regress.

Notably, Lisa’s lawyer-guardian ad litem, who has been involved in the case since at least 2011, reported that because of petitioner’s "extensive involvement with [Lisa] over the years," petitioner was in a superior position to any of the other witnesses or affiants "to know what [would] be detrimental to Lisa."

Lisa’s doctor of 14 years testified that Lisa relies on familiarity with those around her to comfort and calm her and that given Lisa’s age and disability, Lisa would "not be able to adjust" and did not have the "coping mechanism" to handle a transfer from College Avenue. A direct-care staff member at College Avenue, who had known Lisa for 16 years and worked directly with Lisa on a regular basis for one year, testified that Lisa relied on familiarity with staff and peers, that Lisa would not respond well to significant changes, and that transferring Lisa would be to Lisa’s detriment. Finally, a former manager at Westhaven testified that she had known Lisa for 20 years, that Westhaven was not as well suited for Lisa as College Avenue, and that there was a particularly high risk of Lisa having altercations with an aggressive individual at Westhaven if Lisa were to be transferred.

None of the affidavits provided by respondent suggested that the affiants had a history with Lisa comparable to petitioner’s witnesses. Respondent’s executive director reported that she was responsible for over 1,850 consumers of mental health services and that the determination that Lisa was prepared to transfer to Westhaven was not personally made by the executive director, but by unnamed "expert" staff. In another affidavit, respondent’s supervisor of developmentally disabled consumers did not speak to her level of personal knowledge of Lisa and instead spoke primarily to the fact that the supervisor had communicated with petitioner on several occasions about the proposed transfer. Finally, Lisa’s case manager testified that she had only been assigned to Lisa’s case since June 18, 2018, which, coincidentally, was the same month that respondent determined that another consumer needed a bed at College Avenue and the same month that respondent determined Lisa could be transferred. Petitioner testified that the case manager was assigned to the case after Lisa’s former case manager of 10 years retired. Petitioner also testified that she asked respondent’s executive director to replace the new case manager because petitioner could not understand how the case manager could conclude that a transfer was appropriate while being so new and unfamiliar with Lisa.

That the case manager was not as familiar with Lisa as petitioner’s witnesses is evidenced by comparing the case manager’s affidavit with the testimony of petitioner, the former...