In re Kimelah M.

1

IN RE THE CONSERVATORSHIP OF KIMELAH M.

No. W2022-00292-COA-R3-CV

Court of Appeals of Tennessee, Jackson

April 26, 2023

Session February 8, 2023

Appeal from the Probate Court for Shelby County No. PR-19375 Karen D. Webster, Judge

Appellant appeals the decision of the probate court to name other parties as the conservators of her daughter on the basis that the trial court improperly placed time limitations on the presentation of proof at the final hearing. Because Appellant has failed to show any reversible error in the trial court's decision, we affirm.

Tenn R. App. P. 3 Appeal as of Right; Judgment of the Probate Court Affirmed and Remanded

Jocelyn V. Henderson, Memphis, Tennessee, for the appellant Dezi G.

Gerald S. Green, Memphis, Tennessee, for the appellees, Delores C. and James C.

J. STEVEN STAFFORD, P.J., W.S., delivered the opinion of the court, in which ARNOLD B. GOLDIN, and KENNY ARMSTRONG, JJ joined.

OPINION

J. STEVEN STAFFORD, JUDGE

I.

On May 11, 2021, Petitioner/Appellant Dezi G.^[1] ("Appellant") filed a petition for an independent medical examination and for the appointment of a conservator over the person of Respondent Kimelah M. ("Respondent").^[2] Therein, Appellant alleged that she was the parent of Respondent and that Respondent was not competent to manage herself or her personal or medical affairs. Appellant further alleged that her own mother was misusing Respondent's social security benefits, and that Appellant's brother, an alleged drug addict, was residing in the home with Respondent.

On May 12, 2021, the Shelby County Probate Court ("the trial court") appointed a guardian ad litem for Respondent and set two hearing dates in May and July 2021. Due to the COVID-19 Pandemic, the trial court ruled that the hearings would be conducted telephonically. Following a May 26, 2021 hearing, the parties entered into a consent order on June 2, 2021, for an independent medical examination of Respondent. On July 12, 2021, the physician who performed the exam submitted his report and opinion that Respondent was in need of a conservator "to look after her affairs and her person" due to an intellectual disability.

On July 15, 2021, Appellees James C. and Dolores C. ("Appellees"), Respondent's maternal grandparents, filed a response to the petition for a conservatorship. Therein, they denied that they were taking advantage of Respondent and also denied Appellant's allegation that Respondent was in need of a conservator. Moreover, Appellees alleged that Appellant had abandoned Respondent as an infant and did not provide any support for her. But Appellees also filed their own intervening petition in which they alleged that Respondent was "unable to make decisions regarding her medical care and treatment and financial affairs" and asked that they be named conservators for Respondent.

Also on July 15, 2021, the guardian ad litem filed a detailed report describing her investigation into this case. Ultimately, the guardian ad litem agreed that Respondent was in need of a conservator of her person and recommended that an attorney ad litem be appointed for her. The guardian ad litem further recommended that Respondent stay with Appellees, in the home where she has always resided. On July 19, 2021, the trial court appointed an attorney ad litem for Respondent and set a full hearing for October 7, 2021. On October 4, 2021, the guardian ad litem filed a supplemental answer and report. Due to changes in circumstance, the guardian ad litem no longer recommended that Respondent remain in the home of Appellees due to her own violent outbursts or that Appellees be named her conservators. But the guardian ad litem still recommended the appointment of a conservator of Respondent's person, along with an additional evaluation due to the "continued physical threat to herself or others." Rather than Appellees, the guardian ad litem named Appellant as the person who should be appointed conservator over Respondent's person.

On November 5, 2021, the trial court entered an order continuing the final hearing and appointing Appellees as temporary conservators over Respondent's person. On January 10, 2022, Respondent, through her attorney ad litem, filed an answer to the pending petitions for the appointment of a conservator. Therein, Respondent averred that she desired to remain in the care and custody of Appellees, acknowledged that she needed assistance in managing her affairs, and requested that Appellees be allowed to assist her with her affairs. Finally, Respondent stated that she had no desire to have any contact with Appellant.

A final hearing occurred on January 20, 2022. The trial court entered a detailed final order on February 9, 2022. Therein, the trial court recounted that it heard testimony from Appellant, Appellees, Respondent, and three other witnesses "in open court[.]"^[3] The trial court further found that the parties did not dispute that Respondent was in need of a conservator. The trial court essentially rejected Appellant's claim that an incident from seventeen to twenty years prior should disqualify Appellees from being conservators.^[4] The trial court further found that based on the testimony, it was in Respondent's best interest for Appellees to be appointed as co-conservators over Respondent's person only. The trial court further awarded fees to the attorney ad litem and Appellees' attorney. Costs were assessed to Appellant. Appellant thereafter filed a timely appeal.

II.

Appellant raises the following issues, which are taken from her brief:

1.Whether the trial court abused its discretion by setting time limits on the rights of the parties to present their cases?

2. Whether the trial court properly applied the best interest standard by limiting the time in which the parties had to present their cases?

III.

Although Appellant raises two issues in this appeal, her appeal stems from one central argument: that the trial court abused its discretion in setting time limits on the parties' presentation of proof, which prevented the trial court from hearing all of the evidence concerning Respondent's best interest. There are a number of problems with Appellant's argument, the first of which is that there is nothing in the appellate record to demonstrate that such time limits were ordered by the trial court.

Specifically, in her appellate brief, Appellant states as follows:

Here, it is uncontroverted that the parties were given strict time limits by the judge. One of these rules was that each party had 10 minutes per witness. For direct examination, a party had 10 minutes to present its case, then the opposing party had 10 minutes to conduct cross-examination.

Appellant's assertion is not accompanied by any reference to the appellate record where this ruling is contained. In general, it is the appellant's duty to provide record citations for the facts it relies upon, and it is not this Court's duty to search the record for support for the appellant's assertion in the absence of such citations. See Tenn. R. App. P. 27(a); Com. Union Bank, Brentwood, Tennessee v. Bush, 512 S.W.3d 217, 224 (Tenn. Ct. App. 2016) ("It is not the duty of this court to verify unsupported allegations or search the record for facts in support of an appellant's poorly-argued issues." (citing Bean v. Bean, 40 S.W.3d 52, 56 (Tenn. Ct. App. 2000))).

Even after conducting an independent search of the record, however, we can find no evidence of the trial court's ruling. Here, the only evidence of what transpired at the final hearing comes to us in a statement of the evidence and the trial court's final order. Neither recounts that the trial court placed limitations on the parties' witness examinations.^[5]

In an effort to correct this error, on the day before oral argument in this cause, Appellant filed a motion with this Court seeking to supplement the record on appeal with an affidavit from Appellant's trial counsel.^[6] In the affidavit, counsel states that the trial court placed time limitations on the presentation of the proof and opined that "not enough time was allotted during trial to completely and adequately present my case[.]"^[7]

In an appeal to this Court, "[t]he appellate record provides the boundaries of an appellate court's review. State v. Smotherman, 201 S.W.3d 657, 660 (Tenn. 2006) (citing State v. Bobadilla, 181 S.W.3d 641, 643 (Tenn. 2005)). As such, "[a]n appellate court may consider only evidence contained in the appellate record." Id. The Tennessee Rules of Appellate Procedure, however, do allow supplementation of the record under some circumstances:

If any matter properly includable is omitted from the record, is improperly included, or is misstated therein, the record may be corrected or modified to conform to the truth. Any differences regarding whether the record accurately discloses what occurred in the trial court shall be submitted to and settled by the trial court regardless of whether the record has been transmitted to the appellate court. Absent extraordinary circumstances, the determination of the trial court is conclusive. If necessary, the appellate or trial court may direct that a supplemental record be certified and transmitted.

Tenn. R. App. P. 24(e). Thus, Rule 24(e) allows the record on appeal to be corrected to include omitted materials. What Rule 24(e) does not permit, however, is for a party to supplement the record with documents that were never presented to the trial court. See State v. Johnson 854 S.W.2d 897, 902 (Tenn. Crim. App. 1993) ("Rule 24(e) of the Tennessee Rules of Appellate Procedure, permitting a correction of the record, was inapplicable; the panel concluded there was no authority for this court to enlarge the record by adding evidence not introduced at the...