In re Am.H.

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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 22-PR-0337
IN RE AM. H., APPELLANT.
Appeal from the Superior Court
of the District of Columbia
(2022-INT-000036)
(Hon. Carmen G. McLean, Trial Judge)
(Submitted June 13, 2023 Decided August 17, 2023)
Matthew Frumin was on the brief for appellant.
Lisa Ellern-Feldman was on the brief for appellee.
Before MCLEESE and DEAHL, Associate Judges, and THOMPSON, Senior
Judge.
Opinion for the court by Associate Judge MCLEESE.
Concurring opinion by Senior Judge THOMPSON at page 13.
MCLEESE, Associate Judge: Appellant Am. H. seeks review of an order
appointing her mother, appellee Al. H., as Am. H.’s guardian, over Am. H.’s
objection. We vacate the order and remand for further proceedings.
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I. Factual and Procedural Background
Am. H. has been diagnosed with metastatic cancer, and a court-appointed
examiner concluded that she has severe cognitive impairment, suffers from heroin
and fentanyl addiction, lacks insight into her condition, and is unable to make sound
personal decisions. It is undisputed that a guardian should be appointed for Am. H.
See D.C. Code § 21-2044(b) (court may appoint guardian “if it is satisfied that the
individual for whom a guardian is sought is incapacitated and that the appointment
is necessary as a means of providing continuing care and supervision of the . . .
incapacitated individual”); see also D.C. Code § 21-2011(11) (defining
“incapacitated individual” to mean “an adult whose ability to receive and evaluate
information effectively or to communicate decisions is impaired to such an extent
that he or she lacks the capacity to manage all or some of his or her financial
resources or to meet all or some essential requirements for his or her physical health,
safety, habilitation, or therapeutic needs without court-ordered assistance or the
appointment of a guardian”). The disputed issue is whether Al. H. was properly
appointed as that guardian over Am. H.’s objection, or whether instead a guardian
should have been appointed from the list of court-approved guardians, which was
Am. H.’s stated preference.
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The trial court held a hearing on the petition to appoint a guardian. The
information presented at the hearing included the following. Am. H.’s guardian ad
litem, Jonathan Leo, stated that Am. H. had clearly indicated that she did not wish
Al. H. to be appointed as guardian. Mr. Leo opined that Am. H. “didn’t articulate a
great reason why.” Mr. Leo expressed the view that appointing Al. H. would be in
Am. H.’s best interests. On the other hand, Mr. Leo argued that Am. H. had the
capacity to express a preference as to who should be appointed and that Am. H.’s
preference “deserves heavy weight.”
The report of a court-appointed examiner recommended that a guardian be
appointed from the list of court-approved guardians, but the report did not discuss
the possibility of appointing Al. H.
Am. H.’s attorney represented that Am. H. did not wish Al. H. to be appointed
as guardian but was receptive to a guardian being appointed from list of court-
approved guardians.
Am. H. stated at the hearing that she did not want Al. H. to be appointed as
guardian, explaining that she would prefer that Al. H. focus on providing care for
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Am. H.’s children. Am. H. acknowledged that Al. H. “has done everything for
[Am. H.] ever since [Am. H.] was little.”
Counsel for Al. H. acknowledged that Am. H. did not want Al. H. to be
appointed as guardian, but (1) represented that Am. H. had originally wanted “her
fellow drug abuser boyfriend” to be appointed guardian; and (2) suggested that
Am. H. may have been blaming Al. H. for preventing Am. H. from receiving heroin
while in the hospital.
Am. H.’s sister and brother-in-law supported the appointment of Al. H.
Am. H.’s brother-in-law opined that Am. H. might perceive going home to live with
Al. H. “as a restriction on her freedoms,” because Am. H. might be forced to follow
rules. He also expressed the view that living with Al. H. might permit Am. H. to
rekindle her relationships with her children.
Al. H. acknowledged that dealing with Am. H.’s medical issues would be
difficult for both of them. Al. H. explained, however, that she had been Am. H.’s
advocate, “fiercest protector,” “ally, and defender,” through many challenges.
Al. H. knew how to take care of Am. H.’s medical needs and how to advocate for
Am. H. with medical personnel. Al. H. said that caring for Am. H. would not be a
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burden; rather, it would be a burden to Al. H. to not care for Am. H. Noting that
Am. H. was currently estranged from her twelve-year-old daughter, who lived with
Al. H., Al. H. explained that both Am. H. and Am. H.’s daughter could benefit if
Am. H. came to live with Al. H. Al. H. told Am. H. that she loved her, and Am. H.
said that she loved Al. H. too.
The trial court stated that it took “very seriously” the requirement to “defer”
to Am. H.’s preference as to guardian. The trial court found that Al. H. was very
familiar with Am. H.’s needs and was “very dedicated to taking whatever steps are
necessary to get [Am. H.] what she needs.” Acting in Am. H.’s “best interests,” the
trial court therefore appointed Al. H. as guardian.
II. Analysis
The court’s authority to appoint a guardian for an incapacitated individual
must be exercised “so as to encourage the development of maximum self-reliance
and independence of the incapacitated individual.” D.C. Code § 21-2044(a); see
also D.C. § 21-2004 (incapacitated persons “shall retain all legal rights and abilities”
except as specifically provided). More broadly, “[a] principal theme of the
Guardianship Act is that the wishes of the subject of an intervention proceeding
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regarding the decisions to be made are entitled to consideration and respect—
notwithstanding that the subject of the proceeding is incapacitated . . . .” In re
Orshansky, 804 A.2d 1077, 1093 (D.C. 2002).
The general statutory policy of respecting and fostering the autonomy of
incapacitated persons, to the extent reasonably possible, is reflected in the specific
provision governing the selection of a guardian. If the incapacitated person has a
preference as to who will be appointed guardian, that preference must be honored
“[u]nless lack of qualification or other good cause dictates the contrary.” D.C. Code
§ 21-2043(b) (preference can be expressed through “current stated wishes” or most
recent power of attorney).
The concurrence takes the view that the phrase “current stated wishes” refers
not solely to the incapacitated person’s wishes as to who will be appointed guardian,
but rather includes more broadly the incapacitated person’s “priorities and values.”
Infra at 13. We disagree. Section 21-2043(b) requires the court to appoint a
guardian “in accordance with the individual’s current stated wishes or his or her most
recent nomination in a durable power of attorney,” “[u]nless lack of qualification or
other good cause dictates the contrary.” We view that language as clearly focused
on the incapacitated person’s wishes as to who will be appointed guardian. Thus, if
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an incapacitated person says generally that she wants the best guardian but also
requests a specific person as guardian, we do not believe that the trial court would
comply with the requirements of § 21-2043(b) by appointing a different guardian on
the theory that doing so was in accord with the incapacitated person’s “current stated
wishes” that the best guardian be appointed.
Although we disagree with the concurrence as to how to interpret the phrase
“current stated wishes,” we agree with the concurrence that considerations the
concurrence discusses, infra at 13-17, are potentially relevant. In our view, however,
those considerations are potentially relevant to the question whether “good cause
dictates” that the trial court override the incapacitated person’s preference.
This appeal also requires us to interpret the phrase “good cause dictates the
contrary.” D.C. Code § 21-2043(b). We decide that legal issue de novo. E.g.,
Roberts v. United States, 216 A.3d 870, 876 (D.C. 2019). “In determining the correct
reading of statutory language, we consider statutory context and structure, evident
legislative purpose, and the potential consequences of adopting a given
interpretation.” In re G.D.L., 223 A.3d 100, 104 (D.C. 2020).
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Considered in isolation, the phrase “good cause” is generally understood to
leave broad discretion to the decision-maker. See, e.g., DC Pres. League v. Mayor’s
Agent for Hist. Pres., 236 A.3d 373, 384 (D.C. 2020) (“‘Good cause’ depends upon
the circumstances of the individual case, and a finding of its existence (or
nonexistence) lies largely in the discretion of the officer or court to which the
decision is committed. By its very nature, ‘good cause’ requires the evaluation of a
number of subtle factors, a task properly given to the [decision-maker] most
experienced in dealing with such factors in the first instance. In the absence of an
abuse of the [decision-maker’s] discretion in that evaluation, we are bound by that
good cause or lack of good cause determination.”) (internal quotation marks
omitted). As we have explained, however, “we do not read statutory words in
isolation; the language of surrounding and related paragraphs may be instrumental
to understanding them. We consider not only the bare meaning of the word but also
its placement and purpose in the statutory scheme. Statutory interpretation is a
holistic endeavor.” Tippett v. Daly, 10 A.3d 1123, 1127 (D.C. 2010) (en banc)
(citations and internal quotation marks omitted).
Several features of the statutory scheme persuade us that a trial court’s
authority to override an incapacitated person’s preference is quite narrow. First and
most broadly, as previously noted, the Guardianship Act directs the trial court to
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exercise its authority so as to respect and foster the autonomy of incapacitated
individuals. D.C. Code § 21-2044(a).
Second, the Guardianship Act also creates a set of priorities among possible
guardians, which apply if the incapacitated person does not express a preference or
if the court finds good cause to override the incapacitated person’s preference. D.C.
Code § 21-2043(c). The trial court may choose a guardian with lower priority if
doing so is “in the best interest” of the incapacitated person. D.C. Code
§ 21-2043(d). The trial court is not given the authority, however, to override the
incapacitated person’s choice of guardian merely because the trial court believes that
doing so would be in the best interest of the incapacitated person.
Third, the term “dictates” indicates the need for a compelling basis before the
trial court can appropriately override the preference of the incapacitated person. See,
e.g., Dictate, Black’s Law Dictionary 549 (10th ed. 2014) (“2. To order; to
command authoritatively.”); Dictate, Webster’s Third New International Dictionary
627 (2002) (vt. “2c: to require or determine necessarily”); cf. Williams v. Taylor, 529
U.S. 362, 409 (2000) (holding is “dictated by precedent,” for purposes of
retroactivity analysis, if “all reasonable jurists would have deemed themselves
compelled” by existing precedent to so hold) (internal quotation marks omitted).
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These considerations lead us to conclude that an incapacitated individual’s
preferred guardian must be appointed unless (1) the preferred guardian is ineligible
(i.e., is not qualified or is burdened by a conflict of interest, D.C. Code
§ 21-2043(a-1), (b)); or (2) compelling circumstances justify overriding the
preference. This conclusion finds further support from out-of-jurisdiction
guardianship cases involving the same statutory language (“unless lack of
qualification or other good cause dictates the contrary”). In Yates v. Rathbun, 984
So. 2d 1189 (Ala. Civ. App. 2007), the court affirmed a trial judge’s decision to
appoint an incapacitated person’s preferred guardian (a stepdaughter). Id. at 1195-
96. The court explained that “it is not enough that the challenger prove that a better
guardian could be appointed; rather, the challenger must prove that the
circumstances compel the determination that the ward’s selection should not be
honored.” Id. at 1196; see also id. (“[T]he issue is not whether [the husband] could
act better as . . . guardian, but whether good cause existed to dictate that [the step-
daughter] could not or should not act as . . . guardian.”). In contrast, In re
Guardianship of R.G., 879 N.W.2d 416 (N.D. 2016), upheld a trial court’s order
refusing to appoint an incapacitated person’s preferred guardian (a nephew), because
the trial court reasonably found good cause to do otherwise based on concerns about
“family conflict and the appearance of undue influence.” Id. at 421-23.
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To be clear, we do not mean to imply that an incapacitated person’s preference
can be overridden only if the preferred guardian has some specific defect. Such an
approach would run the risk of collapsing “good cause” into “lack of qualification.”
We therefore leave open the possibility that a trial court might in sufficiently
compelling circumstances appropriately appoint a guardian that the incapacitated
person did not prefer, because appointment of that guardian would be so superior to
the appointment of the incapacitated person’s preferred guardian as to outweigh the
heavy interest in honoring the incapacitated person’s preference.
In light of this interpretation of § 21-2043(b), we conclude that the trial court’s
order must be vacated. First, although the trial court said that it took Am. H.’s
preference “very seriously,” the trial court’s ultimate explanation of its ruling
explicitly rested on a determination only as to Am. H.’s best interest. Second, the
trial court did not explain why it was critical that Al. H. be the guardian, as opposed
to being available as a resource to a guardian. Third, the trial court did not make
specific findings that might support a finding of compelling circumstances. Finally,
the trial court did not expressly take into account the potential adverse consequences
of overriding Am. H.’s preference. We therefore vacate the trial court’s order
appointing Al. H. and remand the case for further proceedings.
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We do not share our concurring colleague’s view that the trial court’s task
upon remand might be to simply make more explicit the reasons underlying her
appointment of Al. H. as guardian. Infra at 13. Instead, the trial court’s previously
stated reasons for appointing Al. H. as guardian suggest that the trial court was
almost entirely focused on the best interests of Am. H. without giving adequate
weight to respecting the autonomy of incapacitated persons, as D.C. Code
§ 21-2043(b) requires. We believe the task for the trial court on remand is a fresh
assessment of the relevant interests in light of the legal principles we have explained
in this opinion.
We express no view as to the proper disposition of this case on remand. We
similarly express no view as to whether it would be appropriate on remand to reopen
the record to permit the interested parties to present additional evidence in light of
the principles announced in this decision. We leave those matters to the trial court
in the first instance.
For the foregoing reasons, the judgment of the Superior Court is vacated and
the case is remanded for further proceedings.
So ordered.
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THOMPSON, Senior Judge, concurring in the remand: I agree with my
colleagues’ decision to remand. I think, however, that the trial court’s task upon
remand may amount to no more than making explicit the reasoning by which it
decided to appoint Al. H. as guardian for Am. H. and showing how that reasoning
satisfied the principles articulated in the court’s opinion. In any event, I write
separately to make two points.
My first point relates to how we should interpret the Guardianship Act’s
instruction that “[u]nless lack of qualification or other good cause dictates the
contrary, the court shall appoint a guardian in accordance with the incapacitated
individual’s current stated wishes or his or her most recent nomination in a durable
power of attorney.” D.C. Code § 21-2043(b). In my view, the statutory term “current
stated wishes” need not be interpreted to refer only to the person’s stated wishes
about who should or should not be named guardian (although that might be the extent
of what a person has expressed via the nomination in a durable power of attorney).
I believe the statutory language (“current stated wishes”) should be read to permit
the trial court to take into account the incapacitated person’s expression of her
priorities and values (i.e., her wishes for her life), and not merely her expression of
a preference as to who should be her guardian, particularly where (as here) the court
has the benefit of expert testimony to the effect that the person is unable to fully
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appreciate her situation and has poor insight and judgment (e.g., about what will
enable the fulfillment of her values and priorities). I believe that the statutory
exception for “good cause” must be read to afford the trial court such flexibility. 1
1
Cf. Ramirez v. Salvaterra, 232 A.3d 169, 196-97 (D.C. 2020) (Glickman, J.,
dissenting in part and concurring in the judgment) (reasoning that use of the
“somewhat indefinite” term “good cause” “giv[es] the parties and the court the
power and flexibility, in accord with the purposes of the [governing statute], to seek
remedies appropriate to their needs”); Hinton v. United States, 979 A.2d 663, 678-80
(D.C. 2009) (en banc) (reasoning that “good cause,” a term ultimately omitted from
Super. Ct. Crim. R. 24(c), would have implied broad trial court discretion and
inherent authority, going beyond reasons specified in the Rule). Moreover, the
contrast between the usage in § 21-2043(b) (“unless . . . other good cause dictates
the contrary”) and the usage in D.C. Code § § 21-2041(d) and (h) (“absent good
cause shown” and “unless good cause is shown”) supports an interpretation that the
court’s reason for appointing a guardian contrary to the incapacitated person’s
expressed preference need not be a reason explicitly advocated or demonstrated by
the parties.
I also find support for my view (that the statutory language is properly read to
permit the trial court to take into account the incapacitated person’s expression of
her priorities) in our legislature’s instruction that even counsel for the incapacitated
person — who is obligated to advocate for the actual expressed wishes of the
incapacitated client (and not merely for the client’s “legitimate wishes”) — “must
actively investigate and fight for a guardianship that matches the needs and desires
of the subject of [a guardianship] proceeding.” The Guardianship Amendment Act
of 2014, Report on Bill No. 20-710 before the Committee on the Judiciary and Public
Safety, Council of the District of Columbia, at 6-7 (Nov. 25, 2014) (“Report on Bill
No. 20-710”). That even counsel is obligated to fight for the person’s “needs and
desires” suggests a broader focus than the person’s stated preference as to who
should or should not be the guardian.
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In this case, the trial court heard Am. H.’s testimony that her “priority is [her]
kids.” In addition, the court heard the testimony of Al. H., Am. H.’s mother, and the
testimony of other family members that living in Al. H.’s home would give Am. H.
an opportunity to build a relationship with her children (in particular her estranged
daughter), who are being raised by Al. H. It would not have been an abuse of
discretion for the trial court to consider what guardianship appointment would best
be in accordance with the priority that Am. H. assigned to the welfare of her children.
Further, a family member suggested to the court in his testimony that being in
Al. H.’s home would give Am. H. the opportunity to “be a parent to some extent.”
Because, in appointing a guardian, the court is obligated to “encourage the
development of maximum self-reliance and independence of the incapacitated
individual,” D.C. Code § 21-2044(a), I believe the court could properly take into
account how a guardianship appointment might encourage Am. H.’s self-reliance in
attending to the needs of her children.
My second point relates to the following: In cases like this one involving
intra-family disputes, where the fact patterns may be “so novel that experience has
not prescribed the dimensions of a workable rule,” the trial court’s exercise of its
discretion and judgment may rest more than usually on the trial court’s superior
opportunity to get the feel of the case. Johnson v. United States, 398 A.2d 354, 362
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(D.C. 1979). To be sure, the court heard the representation of Am. H.’s counsel to
the effect that Al. H. was “the one person [Am. H.] explicitly asked not be named
her guardian” and also heard Am. H.’s testimony that she preferred that Al. H. not
be her guardian. But the court also heard Am. H.’s explanation that she “would like
for [Al. H.] to just take care of [Am. H.’s] kids more than [Am. H.].” Further, the
court heard Al. H.’s testimony that she understood Am. H. to be saying that she did
not want to be a burden to her mother and Al. H.’s statement — addressing both the
court and Am. H. — that it would not be a burden for her to be Am. H.’s guardian. 2
Am. H. did not dispute that explanation when given an opportunity for follow-up
testimony. And the court heard both Al. H.’s testimony that she loves Am. H., and
Am. H.’s acknowledgment that Al. H. had “done everything for [her]” and that she
loves Al. H., too.
We have said that “[i]n authorizing a court to empower a guardian . . . to
assume responsibility for the person and affairs of an incapacitated individual, the
Guardianship Act establishes an elevated benchmark of informed and careful
decision making that is commensurate with the gravity of the decision.” In re
Orshansky, 804 A.2d 1077, 1098-99 (D.C. 2002). We have also said that
2
The guardian ad litem also testified that Al. H. “cares very much for” Am. H.
and has “done a lot to help” Am. H., including raising Am. H.’s three children.
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determinations of “good cause” require the trial court to “evaluate the entire mosaic
of the case.” Ramirez, 232 A.3d at 173. In my view, nothing in the decision of the
court should be understood to indicate that as part of its careful decision-making in
a guardianship case, the trial court must necessarily take the stated preference of an
incapacitated person as to who should be her guardian at face value, without taking
into account and scrutinizing the entire mosaic of family dynamics that may
influence the person’s expression of that preference.