In Re the Guardianship & Conservatorship of Burrell

No. 113,335
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
In the Matter of the Guardianship and Conservatorship of ELLA MAE BURRELL, an Adult
with an Impairment.
SYLLABUS BY THE COURT
1.
A district court's decision to deviate from the placement preferences set out in
K.S.A. 2014 Supp. 59-3068(a) and K.S.A. 58-627(b) is reviewed for an abuse of
discretion.
2.
The term "good cause" as used in K.S.A. 58-627(b) requires consideration of what
is in the best interests of the ward, including the proposed guardian or conservator's
ability to fulfill the statutory requirements of the appointment.
Appeal from Sedgwick District Court; TIMOTHY G. LAHEY, judge. Opinion filed February12,
2016. Affirmed.
J. Shawn Elliott, of Shawn Elliott Attorney at Law, of Wichita, for appellant.
Nancy Ogle, of Ogle Law Office, L.L.C., of Wichita, guardian ad litem.
Before ARNOLD-BURGER, P.J., GREEN and STANDRIDGE, JJ.
ARNOLD-BURGER, J.: When a court is asked to appoint a guardian or conservator
for an adult with an impairment, the court is required to give priority to any person the
adult nominated to be his or her guardian or conservator within a durable power of
attorney. K.S.A. 2014 Supp. 59-3068(a). However, the court may bypass the adult's
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nominee and appoint someone else "for good cause." K.S.A. 58-627(b). Prior to her
impairment, Ella Mae Burrell nominated her youngest daughter, Felecia Burrell, to be her
conservator within a durable power of attorney for health care decisions. Once Ella Mae
became impaired, the district court bypassed Felecia and appointed Felecia's sister
Beverly Burrell-Griffin to be Ella Mae's guardian and her brother Anthony Burrell to be
Ella Mae's conservator. Felecia appeals, asserting that the reasons given by the district
court for bypassing her did not rise to the level of good cause. Because we find that the
district court did not abuse its discretion in finding that good cause existed to bypass
Felecia, we affirm.
FACTUAL AND PROCEDURAL HISTORY
We begin by noting that there is no dispute in this case that Ella Mae loves all of
her eight children and all of her children love her and want what is best for her. There is
also no dispute that Ella Mae's physical and mental condition has reached the point where
she is in need of a guardian and conservator. The dispute here involves which sibling(s)
should be appointed to fill these roles.
In 2004, Ella Mae signed a Durable Power of Attorney and a Durable Power of
Attorney for Health Care Decisions naming her daughter, Felecia, as her power of
attorney and nominee for guardian and conservator in the event such a care giver was
ever needed. In 2009, the 2004 Durable Power of Attorney was replaced by a new
Durable Power of Attorney that did not name a nominee for guardian or conservator. The
2004 Durable Power of Attorney for Health Care Decisions, however, remained in effect.
In 2014, the family determined that Ella Mae was in need of a guardian and
conservator. Three of Ella Mae's daughters—Felecia, Beverly, and Barbara James—filed
competing petitions seeking to be appointed guardian. Barbara subsequently withdrew
her petition. Over the course of several months, the district court allowed Felecia,
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Beverly, and Ella Mae's guardian ad litem (GAL), Gwynne Birzer, to present evidence
relevant to the qualifications of the women for the post.
The testimony of a number of witnesses called into question the fitness of Felecia
for the positions of both guardian and conservator. There was extensive testimony that
Felecia had an antagonistic relationship with all but one of her other siblings that
negatively impacted Ella Mae. Beverly testified that she had difficulty obtaining updates
on Ella Mae's health because "Felecia had became [sic] very hostile. When I inquired
about what is going on with my mother, she refused [to tell me] and hung up the phone."
Barbara told the court that she was withdrawing her petition to act as guardian because
she wanted to remove herself from a situation that Felecia had made unbearable. For
instance, Barbara claimed that Felecia had called the Department of Children and
Families and made reports that her siblings were not properly caring for their mother.
Felecia herself testified that her relationship with her siblings is "[v]ery estranged.
And stressed." She testified to several episodes in which she sought police involvement
to moderate her relationship with her siblings. In February 2014, Felecia filed a
protection from abuse (PFA) petition against her brother William Burrell because he
allegedly threatened to harm her. As part of the ex parte PFA order, Felecia received
authority to evict William from the house he shared with Ella Mae. She executed the
eviction by having the locks changed while William was out of the house so he could not
reenter upon his return. Felecia later stopped by the house to visit her mother, saw
William at the home with Ella Mae, and called the police to have him removed. The PFA
action was eventually dismissed. Felecia testified to another episode in which she picked
Ella Mae up from her house and took her out for a ride. When they returned, the sibling
who was scheduled to provide evening care was not at the house. Felecia attempted to
call her sister Barbara twice to figure out why no one was home, then called the police
because Barbara did not answer. Felecia testified that she believed this was the best
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course of action because she thought the police could contact Barbara for her and that
Barbara might answer the phone for them.
Felecia's use of Ella Mae's debit card, during the time Felecia was acting as Ella
Mae's power of attorney, also became an issue during the hearings. Although the court
did not find that Felecia had misused Ella Mae's debit card, the court found that her
testimony regarding her use of Ella Mae's debit card was not credible and Felecia could
not be trusted to handle Ella Mae's finances.
In addition to the testimony received during the hearings, the district court had the
advantage of a report by the GAL to guide it in its appointment of a guardian and
conservator. The GAL advised against appointing Felecia. Her report made note of the
fact that Felecia not only failed to provide her siblings with updates on their mother's
health but also prohibited the nursing home staff from sharing information with them.
The report expressed concern that this behavior was not in Ella Mae's best interests. The
GAL was also concerned with Felecia's use of Ella Mae's debit card, questioning many of
the same purchases that were addressed during the hearings. Ultimately the GAL
recognized that Felecia should be accorded priority in appointment based on Ella Mae's
Durable Power of Attorney for Health Care Decisions but urged the court to bypass
Felecia in favor of other siblings.
The district court's order appointed Beverly as guardian and Anthony as
conservator. The court acknowledged that the order departed from the statutory
preference set out in K.S.A. 2014 Supp. 59-3068(a) and attached to its order specific
findings of fact and conclusions of law justifying the departure. Felecia filed a timely
appeal of the district court's order.
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ANALYSIS
Felecia argues that the district court erred when it bypassed her as guardian and
conservator for her mother Ella Mae in favor of Beverly and Anthony. Felecia claims that
since she was listed as Ella Mae's proposed guardian and conservator in her 2004 Durable
Power of Attorney for Health Care Decisions, she should have been given priority under
K.S.A. 2014 Supp. 59-3068(a)(1). Felecia acknowledges that nominees may be bypassed
for good cause or disqualification but argues that the district court failed to make a valid
finding of good cause prior to bypassing her and appointing her siblings. In order to
resolve her claim, Felecia asks this court to interpret K.S.A. 58-627(b) and define "good
cause or disqualification" as it applies to K.S.A. 2014 Supp. 59-3068(a).
Standard of Review
We find that whether the district court erred in finding that there was good cause
to deviate from the placement preferences set out in K.S.A. 2014 Supp. 59-3068(a) is
reviewed for an abuse of discretion. See In re T.S.W., 294 Kan. 423, 436, 276 P.3d 133
(2012) ("We review a district court's finding that good cause exists to deviate from
[Indian Child Welfare Act's (ICWA)] placement preferences for abuse of discretion."); In
re Adoption of B.G.J., 33 Kan. App. 2d 894, 900, 111 P.3d 651 (2005) ("[T]he term 'good
cause' without further legislative definition was designed to provide state courts with
some flexibility. . . . [Citation omitted.] Because flexibility implies discretion, we will
employ an abuse of discretion standard of review."), aff'd 281 Kan. 552, 133 P.3d 1
(2006); In re Lake, 7 Kan. App. 2d 586, 588, 644 P.2d 1368 (holding "a guardian may be
removed at the discretion of the court"), rev. denied 231 Kan. 800 (1982).
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Statutory Provisions Governing Appointment of a Guardian or Conservator
K.S.A. 2014 Supp. 59-3068, part of the act for obtaining a guardian or
conservator, or both, outlines the order in which a court should consider potential
appointees for the position of guardian or conservator. It provides that the court, in
appointing a guardian or conservator, must first give priority to the "nominee of the
proposed ward or proposed conservatee, if such nomination is made within any durable
power of attorney." K.S.A. 2014 Supp. 59-3068(a)(1). On the other hand, K.S.A. 58-
627(b) is located in a statutory subsection titled "Durable Power of Attorney for Health
Care Decisions." This statute mirrors K.S.A. 2014 Supp. 59-3068 in that it establishes
that a principal may nominate a guardian or conservator in his or her durable power of
attorney for health care decisions. K.S.A. 58-627(b) likewise requires that the court make
any appointments consistent with the principal's nomination, but it goes on to allow the
court to deviate from the principal's most recent nomination "for good cause or
disqualification."
Definition of Good Cause
Good cause, defined by Black's Law Dictionary 266 (10th ed. 2014), as "[a]
legally sufficient reason," is a phrase that is not uncommon in the Kansas Statutes. See
for example, K.S.A. 2014 Supp. 22-3210(d)(1) (a plea may be withdrawn "for good
cause"); K.S.A. 16-1307(a) (supplier must show "good cause" for termination,
cancellation, or nonrenewal of a contract); K.S.A. 2014 Supp. 60-455(e) (the court may
modify the timing of disclosure of evidence the prosecution intends to offer for "good
cause").
Although "good cause" has not been defined by our Supreme Court in the specific
context of bypassing the statutory priorities contained at K.S.A. 2014 Supp.
59-3068(a)(1) and K.S.A. 59-627(b), it has been defined in similar contexts to clearly
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incorporate the best interests of the incompetent adult. See In re Estate of Osborn, 179
Kan. 365, 371-72, 295 P.2d 615 (1956) (removal or replacement of an incompetent adult
guardian when he or she is "incapable of performing the duties of his [or her] trust"); In
re Lake, 7 Kan. App. 2d at 588 (guardian could be removed "for good and sufficient
cause and the best interests of the ward may constitute such good cause"). These holdings
were later codified by the legislature at K.S.A. 59-3088(c), vesting the courts with the
authority to remove a guardian or conservator "whenever the court determines that it is in
the best interests of the ward or conservatee to do so." While K.S.A. 59-3088(c) does not
mention "good cause," it is nevertheless instructive in this case. If the best interests of the
ward provide sufficient grounds to remove a guardian, it seems clear that the best
interests of the ward must be considered in determining whether there is good cause to
bypass someone in the appointment of a guardian.
Likewise, in other similar situations involving guardians for children, the best
interests of the ward are of primary importance. See In re Adoption of B.G.J., 281 Kan.
552, 133 P.3d 1 (2006) (interpreting placement preferences in the ICWA and the ability
to deviate upon good cause shown, with primary consideration to be given to the best
interests of the child); In re Guardianship of T.D.S., 13 Kan. App. 2d 275, 277-78, 769
P.2d 32 (upheld the district court's determination passing over the nominated guardians in
favor of guardians it felt were in the children's best interests), rev. denied 245 Kan. 784
(1989).
In addition to caselaw, other statutes in the probate code's section on guardians and
conservators provide guidance on how we should interpret K.S.A. 58-627(b). K.S.A.
2014 Supp. 59-3068(b)(1) sets out several factors a court should consider when
appointing a guardian. The statute instructs the court to consider "the workload,
capabilities and potential conflicts of interest of the proposed guardian or conservator, or
both." K.S.A. 2014 Supp. 59-3068(b)(1). K.S.A. 2014 Supp. 59-3075 outlines a
guardian's duties and responsibilities. Among other things, guardians are required to:
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"become and remain personally acquainted with . . . other interested persons associated
with the ward and who are knowledgeable about the ward"; "at all times act in the best
interests of the ward"; "exercise reasonable care, diligence and prudence"; "provide for
the ward's care, treatment, habilitation, education, support and maintenance"; and,
"promote and protect the comfort, safety, health and welfare of the ward." K.S.A. 2014
Supp. 59-3075(a)(2), (b)(2), (b)(6). The factors explicitly listed in K.S.A. 2014 Supp.
59-3075(a) and (b) are enumerations of the considerations that go in to determining
whether a guardian will act within the best interests of the ward—if the guardian acts in
the ward's best interests, he or she will naturally do things like provide for the ward's care
and promote the comfort, safety, and health of the ward.
As mentioned briefly above, K.S.A. 59-3088 discusses the process and grounds
for removing a guardian or conservator. K.S.A. 59-3088(c) gives the courts the power to
immediately suspend "the powers and authorities of a guardian or conservator, or both,
whenever the court determines that it is in the best interests of the ward" to do so. K.S.A.
59-3088(e) allows for removal of a guardian or conservator after a hearing when it has
been shown by a preponderance of the evidence that the guardian has failed to "fulfill the
duties or responsibilities of being a guardian or conservator, or for the manner in which
the guardian or conservator has exercised the powers or authorities granted to" him or
her.
In looking at the state of guardianship appointment laws broadly, the American
Jurisprudence has summarized:
"In determining who shall be a disabled person's guardian, the disabled person's
personal preferences as to who should be his or her guardian is outweighed by what is in
the disabled person's best interest. . . . Of paramount concern in the selection of a
guardian, regardless of the disabled person's choice, is the best interest and well-being of
the disabled person . . . .
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"A court may decline to appoint as guardian the person nominated in a health
care directive if the court determines appointment of another is in the best interests of the
ward." 39 Am. Jur. 2d, Guardian and Ward § 43, pp. 51-53.
All of this leads to the conclusion that for the purposes of K.S.A. 58-627(b) good
cause, at the very least, involves consideration of what is in the best interests of the ward,
including the proposed guardian's or conservator's ability to fulfill the statutory
requirements of the appointment.
Application of the Law to the Facts of this Case
Having considered what constitutes good cause for purposes of K.S.A. 58-627(b),
it is necessary to determine whether the district court abused its discretion in finding such
cause to bypass Felecia. A judicial action constitutes an abuse of discretion if the action is
(1) arbitrary, fanciful, or unreasonable so that no reasonable person would have taken the
view adopted by the district court; (2) is based on an error of law; or, (3) is based on an
error of fact. Northern Natural Gas Co. v. ONEOK Field Services Co., 296 Kan. 906,
935, 296 P.3d 1106 (2013).
Here, the district court made fairly extensive findings of fact both orally at the
final hearing on this issue and in the order appointing the guardian and conservator. The
district court recognized that, based on the Durable Power of Attorney for Health Care
Decisions Ella Mae signed in 2004, Felecia had priority as guardian under K.S.A. 2014
Supp. 59-3068(a)(1) followed by Barbara, then Anthony, then Beverly. Nevertheless, the
court found that there was good cause to skip over Felecia and Anthony (Barbara opted to
remove herself from consideration). The court explained:
"The evidence produced at trial reflects that Felecia Burrell has not acted in Ella
Mae Burrell's best interests, nor exercised reasonable care, diligence and prudence during
the pendency of this case. Her actions, and the actions of Anthony Burrell have been
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inconsistent with the duties that would be required if either were to serve as guardian.
While the court recognizes that Felecia was not the temporary guardian, her actions show
that when given the opportunity, she did not act on Ella Mae's best interests."
In support of this conclusion, the district court cited numerous facts influencing its
decision, including: (1) Felecia refused to assist her siblings in the daily care of Ella
Mae; (2) "Felecia has been antagonistic with her siblings, and has placed a higher priority
on maintaining sibling conflict than on the care and best interests of her mother";
(3) Felecia refused to provide her siblings with information related to Ella Mae's health;
(4) Felecia was not honest and candid with the court regarding financial transactions
made on Ella Mae's behalf; and, (5) Felecia was not honest and candid with the court
regarding her relationship with her sister Beverly and her ability to provide Beverly with
information regarding Ella Mae. Additionally, the court cited the episode described above
in which Felecia took Ella Mae out for an unspecified period of time and returned to the
house to find that the sibling who was supposed to provide evening care for Ella Mae was
not home and called the police. The district court was concerned with this behavior
because it once again demonstrated Felecia's willingness to put conflict over care and
"casts doubt on Felecia's concern, ability and willingness to properly care for her
mother."
Felecia argues that the district court erred in its determination that it was in Ella
Mae's best interests that she not be appointed guardian and conservator. She complains
that a "family feud" is not good cause to disqualify her from the appointment, that the
district court erred in finding that she was not transparent with the financial transactions
she made on behalf of Ella Mae, and the district court erred when it found that Felecia
was not credible based on her testimony that she had no contact information for Beverly.
The first of these alleged errors is best viewed as a legal error—a claim that the
district court did not correctly interpret good cause. Felecia cites no legal support for her
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allegation that it is improper for the district court to consider family dynamics and the
ability of the proposed guardian to communicate with other interested parties when
making its decision regarding guardianship. In fact, the one citation Felecia does make is
to K.S.A. 2014 Supp. 59-3075(a)(2) which commands guardians to "become and remain
personally acquainted with the ward, the spouse of the ward and with other interested
persons associated with the ward." Felecia attempts to argue that this language is optional
and relationships with others interested in the ward are only necessary "for the purpose of
knowing the wishes and desires of the Ward—not for satisfying the family's desires and
emotions." Felecia's interpretation does not accord with the plain meaning of the statute,
nor is it consistent with the general statutory notion that the best interests of a ward are
paramount. Based on the caselaw and statutes discussed above in relation to finding good
cause, it is clear that the district court did not err in finding that family dynamics were an
important consideration in appointing a guardian in this case.
Felecia's remaining allegations suggest that the district court made factual errors,
first in finding that she lacked transparency in financial matters, then that she lacked
general credibility. It is important to note that appellate courts do not reweigh evidence,
pass on the credibility of witnesses, or resolve conflicts in the evidence. Southwestern
Bell Tel. Co. v. Beachner Const. Co., 289 Kan. 1262, 1274-75, 221 P.3d 588 (2009).
What this court may do is review the record to ensure that it contains substantial
competent evidence supporting the findings of fact that were made by the district court.
289 Kan. at 1274. Substantial competent evidence is "'such legal and relevant evidence as
a reasonable person might accept as sufficient to support a conclusion.'" Gannon v. State,
298 Kan. 1107, 1175, 319 P.3d 1196 (2014).
The record here contains substantial competent evidence supporting the district
court findings. Felecia was questioned about a number of transactions she made using
Ella Mae's debit card while acting as her power of attorney. In particular, there were a
number of transactions during the period of time Ella Mae was either in the hospital or in
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a rehabilitation facility that were questioned, including: $206.59 spent at Walmart on
"Lucerna briefs, wipes; things to prepare for [Ella Mae] to come home"; $100.36 at
Walmart for "a blood pressure monitoring meter, a thermometer, a heating pad, and some
glass storage containers" for Ella Mae; a charge of $23.55 at Joe's Car Wash for two cans
of air freshener; $15.01 to Presto which "could have been for gas;" on December 27th at
Popeye's, the 28th a charge at Popeye's, the 29th at Panera, the 30th for a burger and fries
at Wendy's and twice at KFC, and the 31st to Popeye's and Wendy's (all transactions
were allegedly for food for Ella Mae despite the fact that Ella Mae was on a diabetic
diet); $55.71 at TJ Maxx for clothes for Ella Mae; and, $85.10 to Ross Stores also for
clothes for Ella Mae.
The district court was able to watch Felecia testify about these transactions. The
court found that Felecia's testimony, especially regarding the purchases of food, was not
credible. Felecia's testimony provides evidence from which a reasonable person might
conclude that she was not being entirely honest with the court. In particular, the three
purchases on December 30th call into question her testimony that all food was for Ella
Mae.
There is also substantial competent evidence supporting the conclusion that
Felecia was not honest with the court regarding her ability to contact and provide
information regarding Ella Mae's health to Beverly. Felecia testified repeatedly that she
had no contact information for her sister Beverly and so was unable to share information
with her. On cross-examination, Ella Mae's GAL impeached Felecia's testimony by
introducing a print-out of text messages exchanged between Felecia and Beverly over the
course of several months prior to the hearing.
Moreover, the district court noted that once Beverly was appointed temporary
guardian, Felecia chose not to participate in her mother's care with the other siblings,
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again showing her willingness to put her own animosity toward her siblings above the
care and best interests of Ella Mae.
The district court did not abuse its discretion when it determined that there was
good cause to appoint someone other than Felecia as guardian and conservator of Ella
Mae. There is substantial evidence in the record that Felecia's relationship with her
siblings interfered with Ella Mae's interests, and that appointment of Felecia would have
been contrary to Ella Mae's interests because Felecia was not entirely trustworthy.
Accordingly, the decision of the district court is affirmed.
Affirmed.
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