in the Guardianship of Martha Jane Valdez, an Incapacitated Person ( 2008 )

MEMORANDUM OPINION

No. 04-07-00712-CV

IN THE GUARDIANSHIP OF Martha Jane VALDEZ, an Incapacitated Person

From the Probate Court No. 2, Bexar County, Texas Trial Court No. 2007-PC-2303 Honorable Tom Rickhoff, Judge Presiding

Opinion by: Catherine Stone, Justice

Sitting: Catherine Stone, Justice

Karen Angelini, Justice

Steven C. Hilbig, Justice

Delivered and Filed: June 4, 2008

AFFIRMED

Jerry Valdez appeals the probate court's order dismissing for lack of standing Jerry's contest to an application to establish a permanent guardianship. Jerry also appeals the probate court's order appointing a permanent guardian. Although Jerry presents ten separate issues for review, the crux of his complaints is that he had standing to contest the application and the evidence is insufficient to support the appointment of Dorothy H. Mello as permanent guardian. We affirm the probate court's orders.

Background

Martha Jane Valdez is the mother of fourteen children, including Jerry and Dorothy. On June 22, 2007, police were called to the house where Martha Jane lived in response to a report by a mother that her juvenile daughter was living with Jerry. Jerry was arrested for sexual assault of a child, and Jerry's son was arrested for possession of a firearm by a felon. Martha Jane, who was ninety-six years old, was taken to the hospital by EMS because she was nonresponsive. Martha Jane was weak and had several bruises and a swollen eye. Martha Jane was released from the hospital to Dorothy's care.

On July 26, 2007, Dorothy applied for a temporary and permanent guardianship. At the hearing on the application for temporary guardianship, Dorothy testified that Martha Jane had been suffering from Alzheimer's and dementia since 1987. Jerry took control over Martha Jane and had severely restricted the siblings' ability to visit their mother for many years. Jerry sent his siblings a letter stating they needed to call him if they wanted to see Martha Jane, but he was not responsive to requests. Dorothy stated that Jerry might allow her to see her mother once or twice a year. A six-foot high steel fence surrounded the house, and Jerry kept the gate locked and had several Rottweilers in the yard. There also were many questions regarding the care Jerry gave to Martha Jane. On one occasion, Martha Jane was found wandering around outside in 27 degree weather, barefoot, and in her nightgown and had to be taken to the hospital for cuts on her feet. Although Dorothy and the other siblings contacted adult protective services and the police on several occasions, no action was taken because Jerry had a power of attorney signed by Martha Jane. Since Martha Jane had been released from the hospital and had been living with Dorothy, her children and grandchildren had been regularly visiting with her and helping with her care.

Based on the Bexar Appraisal District's records, Martha Jane owned four tracts of real property, including the house in which she had been living. When Dorothy informed Jerry that she intended to seek a guardianship, Jerry removed $2,300 from Martha Jane's account claiming that the money belonged to him. Dorothy testified that contrary to Jerry's assertion, she did not owe her mother any money. After the hearing, the probate court signed an order appointing Dorothy as temporary guardian.

On August 1, 2007, Dorothy filed a notice of lis pendens regarding the four properties Martha Jane owned. On September 14, 2007, Jerry filed a trespass to try title lawsuit against Dorothy and Martha Jane, claiming he owned the properties through four deeds. Three of the deeds were executed in 1988, and one was executed in 1997; however, the deeds were not filed in the property records until September of 2007. On September 17, 2007, Jerry filed an objection to the appointment of Dorothy as permanent guardian. On September 27, 2007, Dorothy filed a motion in limine to dismiss Jerry's contest for lack of standing. ⁽¹⁾

At the hearing on the application for permanent guardianship, several of Martha Jane's children testified that they supported Dorothy's appointment because she took good care of Martha Jane and allowed them to visit her. One of Martha Jane's sons stated that he had seen his mother a total of three times in eleven years because Jerry prevented him from seeing her. Since Martha Jane had been living with Dorothy, he sees his mother at least once or twice a week. Another daughter described Jerry's control over Martha Jane as a dictatorship. In addition to this testimony, the probate judge stated that he had reviewed the court investigator's report. The probate judge then considered Dorothy's motion in limine asserting that Jerry lacked standing to contest Dorothy's application because he had an interest adverse to Martha Jane as evidenced by his trespass to try title lawsuit. Jerry's attorney responded that even if Jerry lacked standing, the probate court needed to ensure that Dorothy was suitable based on questions about Dorothy using Martha Jane's money for herself in the past when she had control over Martha Jane's estate and person. The probate judge responded that Dorothy had been qualified at the prior hearing on the temporary guardianship, and the court auditor would be reviewing all expenditures. After the hearing, the probate judge signed orders dismissing Jerry's contest for lack of standing and appointing Dorothy as the permanent guardian.

Discussion

In his second and third issues, Jerry contends the probate court erred in holding that he lacked standing to contest the appointment of Dorothy as permanent guardian. Section 642(b)(3) of the Texas Probate Code prohibits a person having an interest that is adverse to a proposed ward or incapacitated person from contesting the appointment of a person as guardian. Tex. Prob. Code Ann. § 642 (Vernon 2003). Because Jerry was suing Martha Jane, he had an interest adverse to her. See Kidd v. Prince, 215 S.W. 844, 845 (Tex. 1919) (noting plaintiff has an adverse interest where ward is a defendant); see also Allison v. Walvoord, 819 S.W.2d 624, 626 (Tex. App.--El Paso 1991, orig. proceeding [leave denied]) (holding plaintiffs to pending lawsuit against proposed ward had an adverse interest). Accordingly, the probate court did not err in dismissing Jerry's contest.

In his remaining issues, Jerry contends the probate court erred in appointing Dorothy as the permanent guardian. The crux of Jerry's complaint is his allegation that Dorothy was disqualified to serve as guardian because she was indebted to Martha Jane. See Tex. Prob. Code Ann. § 681(5) (Vernon 2003) (providing person who is indebted to proposed ward may not be appointed as guardian). Although Jerry correctly states that the probate court was required to determine whether Dorothy was qualified even if he did not have standing to contest the application, see Ayala v. Mackie, 158 S.W.3d 568, 572 n.1 (Tex. App.--San Antonio 2005, pet. denied), the probate court held a hearing to make this determination, and Jerry did not make any objection to the probate court's reference to evidence of qualifications presented at the temporary guardianship hearing where Dorothy testified that she was not indebted to Martha Jane. ⁽²⁾ See Tex. R. App. P. 33.1 (noting objection made to trial court is prerequisite to presenting complaint for appellate review); see also Trimble v. Texas Dept. of Protective & Regulatory Serv., 981 S.W.2d 211, 215 (Tex. App.--Houston [14th Dist.] 1998, no pet.) (noting probate court may consider evidence from temporary guardianship in permanent guardianship because probate court conducts its business in a continuing series of events since the nature of administration contemplates decisions to be made on which other decisions will be based).

Jerry seeks to rely on the attachments to the objection or contest he filed as evidence of Dorothy's indebtedness to Martha Jane. The attachments consist of copies of various pages from a check register and a few checks payable to Dorothy with the notation "gift" in the memo line of the check. Jerry argues that the register and checks established that Dorothy was indebted to Martha Jane when coupled with Dorothy's alleged pleading that Martha Jane had been incapacitated since 1987. Neither the copies of the pages from the check register nor the checks, however, were introduced into evidence. Moreover, Dorothy never stated in her pleadings that Martha Jane had been incapacitated since 1987. She simply asserted that Martha Jane had been suffering from Alzheimer's Disease since 1987. The statement Jerry attributes to Dorothy was actually made in a report by James G. Trevino, M.D. which was attached to Dorothy's petition, wherein Dr. Trevino states, "Any issues related to Power of Attorney, from 1987 forward, could not be legally made due to her incapacitation." The evidence in the record, therefore, established that Dorothy was not disqualified to serve as permanent guardian.

Finally, Jerry complains that the probate court's order appointing Dorothy as permanent guardian must be reversed because the probate court manifested bias or prejudice against Jerry by words and conduct. The discretion vested in a trial court over the conduct of a trial is great, and the trial court has the authority to express itself in exercising this broad discretion. Dow Chemical Co. v. Francis, 46 S.W.3d 237, 240-41 (Tex. 2001). "[J]udicial remarks during the course of a trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge." Id. at 240. Although the probate judge's comments may not have been the most judicious, having reviewed the allegedly improper comments in the context of the entire record, we conclude there is no evidence of judicial bias. See id. at 241.

Conclusion

The probate court's orders are affirmed.

Catherine Stone, Justice

1. Section 642 of the Texas Probate Code requires a probate court to determine the standing of a person who has an interest that is adverse to a proposed ward or incapacitated person by motion in limine. Tex. Prob. Code Ann. § 642 (Vernon 2003).

2. Jerry also did not object when the probate court stated it had reviewed the court investigator's report.