In re Guardianship of Nicholas H.

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
04/29/2021 09:07 AM CDT
-1-
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
IN RE GUARDIANSHIP OF NICHOLAS H.
Cite as 309 Neb. 1In re Guardianship of Nicholas H.,
an incapacitated person.
Ronda R. and John H., appellants, v.
Office of Public Guardian, appellee.
___ N.W.2d ___
Filed April 23, 2021. No. S-20-044.
1. Guardians and Conservators: Appeal and Error. An appellate court
reviews guardianship and conservatorship proceedings for error appear-
ing on the record in the county court.
2. Judgments: Appeal and Error. When reviewing a judgment for errors
appearing on the record, an appellate court’s inquiry is whether the deci-
sion conforms to the law, is supported by competent evidence, and is
neither arbitrary, capricious, nor unreasonable.
3. Judgments: Jurisdiction: Standing: Parties. A jurisdictional issue that
does not involve a factual dispute presents a question of law, and only a
party who has standing may invoke the jurisdiction of a court.
4. Statutes: Appeal and Error. Statutory interpretation presents a ques-
tion of law, for which an appellate court has an obligation to reach
an independent conclusion irrespective of the decision made by the
court below.
5. Standing: Jurisdiction: Parties: Appeal and Error. Standing is a
jurisdictional component of a party’s case, and an appellate court must
address it as a threshold matter.
6. Guardians and Conservators. One who is not willing to serve as a
private guardian cannot be compelled to accept such an appointment.
7. ____. Under the Public Guardianship Act, appointment of the Public
Guardian is intended to be an option of last resort to ensure that guard-
ians are available for wards who have no family member or other person
who is qualified, available, and willing to serve as guardian.
8. Statutes: Legislature: Intent. In construing a statute, a court must
determine and give effect to the purpose and intent of the Legislature
-2-
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
IN RE GUARDIANSHIP OF NICHOLAS H.
Cite as 309 Neb. 1as ascertained from the entire language of the statute considered in its
plain, ordinary, and popular sense.
9. Statutes. A court must give effect to all parts of a statute, and if it can
be avoided, no word, clause, or sentence will be rejected as superfluous
or meaningless.
10. Statutes: Legislature: Intent. Components of a series or collection of
statutes pertaining to a certain subject matter are in pari materia and
should be conjunctively considered and construed to determine the
intent of the Legislature, so that different provisions are consistent, har-
monious, and sensible.
11. Guardians and Conservators: Words and Phrases. To be a “successor
guardian” as that term is defined in the Public Guardianship Act, a per-
son or entity must be willing to become a guardian for a ward previously
served by the Office of Public Guardian.
12. Guardians and Conservators: Legislature: Proof. Once the Public
Guardian has been appointed by the court, the Legislature has autho-
rized just two circumstances under which the Public Guardian may
be discharged under Neb. Rev. Stat. § 30-4117 (Reissue 2016) on
the ground its services are no longer necessary: (1) when the Public
Guardian has shown that the ward is no longer incapacitated and in need
of a guardian or (2) when the Public Guardian has located a successor
guardian who is qualified, available, and willing to become a guardian
for the ward.
Appeal from the County Court for Scotts Bluff County:
Kris D. Mickey, Judge. Reversed and remanded for further
proceedings.
Joe W. Stecher, of Skavdahl, Edmund & Stecher, for
appellants.
Douglas J. Peterson, Attorney General, and James A.
Campbell, Solicitor General, for appellee.
Miller-Lerman, Cassel, Stacy, Funke, Papik, and
Freudenberg, JJ.
Stacy, J.
This is an appeal from an order of the county court pur-
porting to discharge the Office of Public Guardian (OPG)
and appoint the ward’s parents as successor coguardians over
-3-
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
IN RE GUARDIANSHIP OF NICHOLAS H.
Cite as 309 Neb. 1their objection. The primary issues on appeal are whether the
parents have standing to appeal from the county court’s order
and, if so, whether the county court’s order discharging the
OPG conformed to the law.
For the reasons explained below, we find the parents
have standing to appeal, and we further find that the Public
Guardianship Act 1 does not permit discharge of the OPG under
the circumstances present here. We therefore reverse the order
of discharge and remand the cause for further proceedings.
BACKGROUND
Nicholas H. is an adult with severe mental illness who is
incapacitated and in need of a guardian. Nicholas’ parents,
Ronda R. and John H., served as his temporary court-appointed
coguardians until 2016, when they petitioned to have the OPG
appointed as Nicholas’ guardian pursuant to the Public Guard­
ianship Act. 2 The Public Guard­ian­ship Act became operative
on January 1, 2015, and established the OPG to provide guard-
ianship and conservatorship services for individuals when there
was no “willing and qualified family member or other person
available or willing to serve as guardian or conservator.” 3
Relevant provisions of the Public Guard­ianship Act will be
discussed later in our analysis.
In 2016, the county court for Scotts Bluff County, Nebraska,
appointed the OPG as Nicholas’ guardian. The OPG accepted
the appointment, and letters of appointment were issued shortly
thereafter. The OPG designated Stacy Rotherham, an associate
public guardian, to act for Nicholas on behalf of the OPG.
It is undisputed that after Rotherham began acting as
Nicholas’ public guardian, she and other OPG staff were sub-
jected to extreme harassment by Nicholas, which included
threats of violence. Rotherham ultimately obtained what the
1
Neb. Rev. Stat. §§ 30-4101 to 30-4118 (Reissue 2016).
2
Id.3
§ 30-4102(1).
-4-
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
IN RE GUARDIANSHIP OF NICHOLAS H.
Cite as 309 Neb. 1parties describe as a protection order against Nicholas, and he
spent time in jail after being found in contempt of court for
violating the order. After his release from jail, Nicholas con-
tinued the threatening behavior against Rotherham, and even­
tually, he was charged with felony terroristic threats.
In October 2019, while the terroristic threats charge against
Nicholas was pending, the OPG filed a motion for discharge
under § 30-4117. The motion alleged that Nicholas had a long
history of threatening Rotherham and other OPG staff and that
felony charges were pending against Nicholas relating to his
conduct toward Rotherham. The motion acknowledged that
Nicholas was still in need of a guardian, but alleged “the serv­
ices of [the OPG] are no longer necessary because [Nicholas’]
parents . . . are the more appropriate option and should be
named successor guardians.”
Nicholas’ parents filed a verified objection to the OPG’s
motion. They generally opposed the OPG’s request to have
them appointed successor guardians, stating they were “ill-
prepared” to serve in that capacity again. They cited their
advanced age, their poor health, and the fact that they resided
several hours away in South Dakota as reasons they did not
want to be successor guardians.
An evidentiary hearing on the OPG’s motion and the parents’
objection was held December 17, 2019. The OPG and Nicholas
appeared with counsel, and Nicholas’ parents appeared pro se.
Nicholas’ court-appointed guardian ad litem (GAL) did not
appear, and our record contains no GAL report regarding any
issue presented in the OPG’s motion.
Rotherham testified about the persistent harassment and per-
sonal threats she experienced while serving as Nicholas’ public
guardian, including “delusional” and threatening text mes-
sages and phone calls from Nicholas. She described Nicholas
as “obsessed with [her] personally” and said his behavior had
escalated to the point where she had to request a protection
order and install security cameras at her home out of concern
for her children’s safety. Rotherham testified that a licensed
-5-
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
IN RE GUARDIANSHIP OF NICHOLAS H.
Cite as 309 Neb. 1mental health professional had recommended residential treat-
ment for Nicholas, but Rotherham had not been able to arrange
such treatment because no facility would accept him.
Rotherham testified that, as an associate public guardian,
she was required to meet with Nicholas monthly. 4 She said
the meetings had “become difficult for safety reasons,” and
once the terroristic threats charge was filed, she had no contact
with Nicholas at all. Because she was not able to comply with
her statutory obligations as Nicholas’ guardian, she believed
it would be in Nicholas’ best interests for the OPG to be dis-
charged. According to Rotherham, she is the only associate
public guardian covering the western part of Nebraska, and
due to wait lists and statutory caseload limitations, 5 there were
no other OPG team members who could be designated to serve
Nicholas on behalf of the OPG. She believed that Nicholas’
parents were “fit and appropriate” to serve as successor guard-
ians because they had remained very active in Nicholas’ care,
even after the OPG was appointed. But Rotherham admitted on
cross-examination that she had not “looked at” anyone other
than Nicholas’ parents to serve as successor guardians.
The OPG also offered testimony from the licensed psycholo-
gist appointed by the district court for Scotts Bluff County to
evaluate Nicholas for competency in his pending felony case.
The psychologist testified that Nicholas meets the “criteria for
a severe persistent mental illness” and struggles with “a delu-
sional process,” but the psychologist did not offer a specific
diagnosis. During the evaluation process, Nicholas expressed
disappointment in Rotherham’s performance as his guardian,
and the psychologist thought that if Rotherham continued
to be the associate public guardian assigned to Nicholas, he
would be “at risk for further legal entanglements, and certainly
4
See § 30-4116(2)(d) (monitoring of ward by Public Guardian “shall, at a
minimum, consist of monthly personal contact with the ward”).
5
See § 30-4115(2) and (3) (prohibiting OPG from accepting further
appointments if ratio of wards served to team member exceeds 20).
-6-
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
IN RE GUARDIANSHIP OF NICHOLAS H.
Cite as 309 Neb. 1by extension that would . . . affect his well-being and his
standing in his community.” The psychologist declined to offer
an opinion on whether the OPG should be discharged, but he
did say it would be best for both Nicholas and Rotherham
to discontinue their association with one another. On cross-
examination, the psychologist admitted that unless Nicholas
received “comprehensive wraparound psychiatric services,” it
was possible that no matter who his guardian was, his threaten-
ing behavior would continue.
Nicholas’ parents did not testify at the hearing, but their
written statement was received as an exhibit and they were
allowed to argue their objection. The parents expressed con-
cern that Nicholas’ mental health had been deteriorating for
some time, and they worried his behavior and resulting legal
problems would likely continue to degrade until he was pro-
vided professional mental health treatment. The parents firmly
believed that Nicholas still needed a guardianship and that he
also needed a GAL who would advocate for his interests. The
parents encouraged the court to keep the OPG as Nicholas’
guardian, but to designate someone other than Rotherham to
work with Nicholas. The parents did not believe they were
“capable” of serving as successor guardians, again citing their
advanced age, poor health, out-of-state residence, and unfamil-
iarity with how to manage their son’s serious mental illness.
They also explained that Nicholas’ prior assaultive and threat-
ening behavior toward them while they were his temporary
guardians was “why [they] asked the public guardian to take
over in the first place.” The parents admitted that Nicholas’
delusional thinking made him a “challenging case,” but they
argued the OPG had access to more resources and better train-
ing than they did. 6
6
See, e.g., § 30-4104(2) (providing that OPG’s multidisciplinary team may
include professionals “with experience working with individuals with
dementia, developmental disabilities, chronic and acute medical needs,
mental health issues, substance abuse, or other conditions”).
-7-
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
IN RE GUARDIANSHIP OF NICHOLAS H.
Cite as 309 Neb. 1Nicholas’ attorney also urged the court to leave the guard-
ianship in place and to continue the OPG’s appointment. The
attorney agreed that Rotherham should no longer be the OPG
team member to work with Nicholas, but he suggested that if
the OPG had no other associate public guardians available to
cover the western portion of the state, it was “up to them” to
reallocate resources. 7
From the bench, the court acknowledged that the situa-
tion was difficult for everyone and that there was “no great
option” available. Citing the deteriorating relationship between
Rotherham and Nicholas, the court concluded it was “in both
parties’ best interests” that Rotherham not serve as Nicholas’
designated public guardian. Then, finding there was no one
else in the OPG “who would be available to assist in this case,”
and noting it was likely that anyone else assigned to work
with Nicholas would experience the same difficulties as had
Rotherham, the court granted the OPG’s motion for discharge.
Finally, the court appointed Nicholas’ parents as successor
coguardians “until such time as a more appropriate option is
found by such natural parents for their son.”
The same day, the court entered an order in accordance
with its ruling from the bench, granting the OPG’s motion for
discharge and terminating the OPG’s authority and respon-
sibility as Nicholas’ guardian. The order recited there was
clear and convincing evidence that a full guardianship for
Nicholas was both necessary and the least restrictive alterna-
tive, and it directed that Nicholas’ parents “shall be appointed
as Successor Co-guardians of Nicholas . . . upon Letters of
Guardianship being issued” and upon the parents’ filing cer-
tain required documents with the court, including an accept­
ance of appointment and an inventory. The order directed
the parents to complete guardianship training within 90 days,
7
See, generally, § 30-4115 (requiring OPG to “maintain the appropriate
personnel and workload scope necessary to fulfill all its responsibilities
and duties under the Public Guardianship Act”).
-8-
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
IN RE GUARDIANSHIP OF NICHOLAS H.
Cite as 309 Neb. 1and it stated that letters of guardianship would not be issued
until the filing requirements had been completed.
According to our record, the parents never filed an accept­
ance of appointment or any of the other documents referenced
in the court’s order. The parents filed this timely appeal from
the county court’s order, which we moved to our docket on our
own motion.
ASSIGNMENTS OF ERROR
The parents assign that the county court erred in (1) ordering
them to serve as Nicholas’ guardians over their objection and
(2) discharging the OPG as Nicholas’ guardian.
STANDARD OF REVIEW
[1,2] An appellate court reviews guardianship and conser-
vatorship proceedings for error appearing on the record in the
county court. 8 When reviewing a judgment for errors appearing
on the record, an appellate court’s inquiry is whether the deci-
sion conforms to the law, is supported by competent evidence,
and is neither arbitrary, capricious, nor unreasonable. 9
[3] A jurisdictional issue that does not involve a factual
dispute presents a question of law, and only a party who has
standing may invoke the jurisdiction of a court. 10
[4] Statutory interpretation presents a question of law, for
which an appellate court has an obligation to reach an inde-
pendent conclusion irrespective of the decision made by the
court below. 11
ANALYSIS
[5] The OPG contends the parents lack standing to raise
either of their assignments of error. Because standing is a
8
In re Conservatorship of Franke, 292 Neb. 912, 875 N.W.2d 408 (2016).
9
Id.10
Id.11
Edwards v. Douglas County, 308 Neb. 259, 953 N.W.2d 744 (2021).
-9-
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
IN RE GUARDIANSHIP OF NICHOLAS H.
Cite as 309 Neb. 1jurisdictional component of a party’s case, 12 we must address it
as a threshold matter. 13
Standing
Generally stated, the OPG argues the parents lack stand-
ing to challenge the county court’s order discharging the OPG
and naming them successor guardians because they were not
directly affected by the order. We disagree.
The parents appeared as interested persons before the
county court, and in that capacity, they filed a written objec-
tion to the OPG’s motion seeking discharge. The parents
also objected to the OPG’s request to have them appointed
as successor coguardians. The OPG does not challenge the
parents’ status as interested persons, 14 nor does the OPG
claim the parents had no right to object to the OPG’s motion.
We therefore limit our standing analysis to the parents’ right
to appeal from the county court’s order granting the OPG’s
request for discharge and appointing the parents as successor
coguardians.
Guardianship is considered a probate proceeding, and
appeals from probate matters are governed by Neb. Rev. Stat.
§ 30-1601 (Cum. Supp. 2020). Under that statute, “An appeal
may be taken by any party and may also be taken by any
12
In re Conservatorship of Franke, supra note 8.
13
See Edwards v. Douglas County, supra note 11.
14
See, e.g., Neb. Rev. Stat. § 30-2601(10) (Reissue 2016) (defining “inter­
ested person” to mean “children, spouses, [and] those persons who would
be the heirs if the ward or person alleged to be incapacitated died without
leaving a valid will who are adults”); Neb. Rev. Stat. § 30-2623 (Reissue
2016) (allowing “ward or any person interested in his [or her] welfare” to
petition for removal of guardian and appointment of successor guardian);
Neb. Rev. Stat. § 30-2625 (Reissue 2016) (requiring that in proceeding for
appointment or removal of guardian, notice should be given to, inter alia,
parents of ward); Neb. Rev. Stat. § 30-2629 (Reissue 2016) (“[a]ny action
or proposed action by a guardian may be challenged at any time by any
interested person”).
- 10 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
IN RE GUARDIANSHIP OF NICHOLAS H.
Cite as 309 Neb. 1person against whom the final judgment or final order may be
made or who may be affected thereby.” 15
We addressed the broad application of this appeal statute in
In re Conservatorship of Franke. 16 In that case, an adult daugh-
ter sought to have a conservator appointed for her mother.
The mother objected, as did her adult son. After a hearing, the
court appointed a bank to serve as the conservator, and the
son appealed. We found the son had standing to appeal under
§ 30-1601(2) (Reissue 2016) for purposes of challenging his
mother’s conservatorship, reasoning:
[T]his court has previously decided appeals from family
members who objected to a conservatorship appointment.
So, under our implicit interpretation of § 30-1601(2), a
protected person’s close family members have the right to
appeal from a final order in a conservatorship proceeding
if they filed an objection and the county court appointed a
conservator. Although [the son] is not a party, the right to
appeal under § 30-1601(2) is not limited to parties. [The
son] filed an objection and requested an evidentiary hear-
ing. So, under the probate code’s generous appeal statute,
he is a person against whom a final order was entered and
has the right to appeal. 17
Here, the parents appeared before the county court as per-
sons interested in Nicholas’ welfare, 18 and they objected to the
OPG’s motion and offered evidence at the hearing. The county
court’s order granting the OPG’s motion for discharge was a
final order as to the parents’ objection, and because the same
order named the parents as successor coguardians, it directly
affected their substantial rights. We therefore find the parents
have standing to appeal from the county court’s order, and
15
§ 30-1601(2).
16
In re Conservatorship of Franke, supra note 8.
17
Id. at 923, 875 N.W.2d at 417.
18
See §§ 30-2601(10), 30-2623, 30-2625, and 30-2629.
- 11 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
IN RE GUARDIANSHIP OF NICHOLAS H.
Cite as 309 Neb. 1we proceed to address the merits of their assignments of error
on appeal.
Parents’ Appointment Not Completed
In their first assignment of error, the parents contend the
county court erred by appointing them successor guardians
over their objection. They point out “[t]here is no statutory
authority or case law authority that authorizes a court to
appoint a person guardian of another if that person objects to
being appointed as guardian.” 19
[6] The parents are correct that one who is not willing to
serve as a private guardian cannot be compelled to accept such
an appointment. But to the extent they challenge the order
of appointment as reversible error, they ignore that it was
merely the first step in the appointment process. Only after
a written acceptance is filed and the guardian submits to the
personal jurisdiction of the court 20 will letters of guardianship
be issued by the court. 21 Therefore, in the rare instance that
someone is appointed who does not wish to serve as a court-
appointed guardian, that person may simply refuse to accept
the appointment.
That is what happened here. The court’s order appointing
the parents as successor coguardians was necessarily contin-
gent upon their acceptance, and our record shows they have
declined to accept the appointment. During oral argument
before this court, counsel confirmed that the parents’ posi-
tion in that regard has not changed. Because the parents have
not accepted the court’s appointment as Nicholas’ successor
coguardians, no letters have issued. Consequently, the appoint-
ment they assign as error was never completed and cannot
19
Brief for appellants at 4.
20
See Neb. Rev. Stat. § 30-2621 (Reissue 2016).
21
See, Neb. Rev. Stat. § 30-2620 (Reissue 2016); § 30-2621; Neb. Ct. R.
§ 6-1443(A) (rev. 2020) (“[p]rior to being issued Letters, the guardian or
conservator shall file an acceptance”).
- 12 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
IN RE GUARDIANSHIP OF NICHOLAS H.
Cite as 309 Neb. 1be completed without their voluntary acceptance. We find no
merit to their first assignment of error.
Discharge of OPG Improper
In their second assignment of error, the parents argue the
county court erred by discharging the OPG when Nicholas
still required the services of a guardian and the OPG had not
located any person or entity willing and able to serve as a suc-
cessor guardian. To address this assignment of error, we begin
with an overview of the Public Guardianship Act.
The Public Guardianship Act was enacted in 2014 and
became operative January 1, 2015. The Legislature’s reasons
for adopting it are set out in § 30-4102:
(1) The Legislature finds that the present system of
obtaining a guardian or conservator for an individual,
which often depends on volunteers, is inadequate when
there is no willing and qualified family member or other
person available or willing to serve as guardian or conser-
vator for such individual. The Legislature finds that there
is a need to provide guardians and conservators when
there is no one suitable or available with priority to serve
the needs of such individual. The Legislature intends
that establishment of the Office of Public Guardian will
provide services for individuals when no private guardian
or private conservator is available. The Legislature also
finds that alternatives to full guardianship and less intru-
sive means of intervention should always be explored,
including, but not limited to, limited guardianship, tem-
porary guardianship, conservatorship, or the appointment
of a payee. It is the intent of the Legislature to provide a
public guardian or public conservator only to those indi-
viduals whose needs cannot be met through less intrusive
means of intervention.
(2) The Legislature finds that:
(a) All individuals in need of a guardian or conser-
vator shall have the opportunity to have one appointed
for them;
- 13 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
IN RE GUARDIANSHIP OF NICHOLAS H.
Cite as 309 Neb. 1(b) The priorities for appointment in sections 30-2601
to 30-2661 are appropriate in most instances;
(c) There are individuals in need of guardians or con-
servators for whom persons that have priority are unwill-
ing, unable, or inappropriate to become a guardian or
conservator;
(d) Guardians and conservators under the current sys-
tem do not always carry out the assigned duties in a way
that protects the individual and, in fact, sometimes carry
out the duties in a way that abuses or neglects the indi-
vidual; and
(e) For those for whom no person is available for
appointment as guardian or conservator, the Office of
Public Guardian may provide necessary services.
[7] These legislative findings demonstrate the Public
Guardianship Act was intended as an option of last resort,
to ensure that guardians are available for wards who have no
family member or other person who is qualified, available, and
willing to serve.
Section 30-4112 governs the appointment of the OPG
and provides:
A court may order appointment of the Public Guard­
ian . . . only after notice to the Public Guardian and a
determination that the appointment or order is neces-
sary and will not result in the Public Guardian having
more appointments than permitted by section 30-4115.
The determination of necessity may require the court to
ascertain whether there is any other alternative to public
guardianship or public conservatorship.
Read together, §§ 30-4102 and 30-4112 generally provide
that appointment of the OPG is necessary only when the
court determines no other qualified person or entity is avail-
able and willing to serve. In the instant case, the record does
not show the OPG contested the necessity of its appointment
on any basis, nor did the OPG claim the appointment would
- 14 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
IN RE GUARDIANSHIP OF NICHOLAS H.
Cite as 309 Neb. 1result in having more wards than permitted under the Public
Guardianship Act. 22
Because the Legislature intended the OPG to be a guardian
of last resort, the Public Guardianship Act requires the OPG
to “recruit members of the general public or family members
to serve as guardians or conservators and provide adequate
training and support to enhance their success.” 23 Moreover,
once the OPG is appointed in a particular case, the Public
Guardianship Act makes the OPG responsible for finding a
successor guardian:
(1) Once the Public Guardian is appointed as guard-
ian or conservator, the office shall make a reasonable
effort to locate a successor guardian or successor con-
servator. By June 30 and January 1 of each year, [the
OPG] shall file an aggregate report with the State Court
Administrator describing its efforts to locate a successor
guardian or conservator.
(2) Upon location of a successor guardian or successor
conservator, the office shall file a motion with the court
for termination or modification of the guardianship or
conservatorship. Availability of a successor guardian or
successor conservator shall be deemed a change in the
suitability of the office for carrying out its powers and
duties under section 30-4105. 24
Section 30-4103(9) of the Public Guardianship Act defines
“[s]uccessor guardian” to mean “a person or entity who is
recruited by the [OPG] to become a guardian for a ward previ-
ously served by the [OPG].”
Motions to discharge the OPG are governed by § 30-4117,
which provides:
The Public Guardian may be discharged by a court
with respect to any of the authority granted over a ward
22
See § 30-4115(2) and (3).
23
§ 30-4105(5).
24
§ 30-4114.
- 15 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
IN RE GUARDIANSHIP OF NICHOLAS H.
Cite as 309 Neb. 1or protected person upon petition of such individual,
any interested party, or the Public Guardian or upon the
court’s own motion when it appears that the services of
the Public Guardian are no longer necessary.
(Emphasis supplied.)
[8-10] This appeal is our first opportunity to consider how
the above-quoted provisions of the Public Guardianship Act
apply when the OPG moves to be discharged under § 30-4117
on the ground its services are no longer necessary. In analyz-
ing the requirements of § 30-4117, we apply settled principles
of statutory construction. In construing a statute, a court must
determine and give effect to the purpose and intent of the
Legislature as ascertained from the entire language of the
statute considered in its plain, ordinary, and popular sense. 25 A
court must give effect to all parts of a statute, and if it can be
avoided, no word, clause, or sentence will be rejected as super-
fluous or meaningless. 26 Components of a series or collection
of statutes pertaining to a certain subject matter are in pari
materia and should be conjunctively considered and construed
to determine the intent of the Legislature, so that different pro-
visions are consistent, harmonious, and sensible. 27
As noted, § 30-4117 provides the OPG can be discharged
only when its services are “no longer necessary.” In the instant
case, the OPG’s motion for discharge alleged that Nicholas still
required a full guardianship, but that the OPG’s services were
no longer necessary because Nicholas had living parents who
“are the more appropriate option and should be named suc-
cessor guardians.” But as we explain, in order to demonstrate
that the services of the OPG are no longer necessary, it is not
enough to allege there is a family member who could serve as
a successor guardian.
25
In re Interest of Seth C., 307 Neb. 862, 951 N.W.2d 135 (2020).
26
Id.27
Id.- 16 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
IN RE GUARDIANSHIP OF NICHOLAS H.
Cite as 309 Neb. 1[11] The Public Guardianship Act defines a “[s]ucces-
sor guardian” as “a person or entity who is recruited by the
office to become a guardian for a ward previously served by
the [OPG].” 28 We understand this provision to require that
a “successor guardian” must actually be willing to serve as
guardian for the ward if appointed by the court. After all, the
Public Guardianship Act was enacted to address the reality
that often there is no “willing and qualified family member
or other person available or willing to serve as guardian” 29
for a ward. The OPG is intended to serve as a guardian of
last resort when an individual is in need of a guardian, but
those with “priority are unwilling, unable, or inappropriate
to become a guardian.” 30 It would defeat the purpose of the
Public Guardianship Act to discharge the OPG upon proof that
a family member with priority was available, but unwilling to
accept appointment and become a guardian.
[12] We therefore hold that once the OPG has been appointed
by the court, the Legislature has authorized just two cir-
cumstances under which the OPG may be discharged under
§ 30-4117 on the ground its services are no longer necessary:
(1) when the OPG has shown that the ward is no longer inca-
pacitated and in need of a guardian or (2) when the OPG has
located a successor guardian who is qualified, available, and
willing “to become a guardian” 31 for the ward.
Here, the county court found, and the parties do not dispute,
that Nicholas remains incapacitated and in need of a full guard-
ianship. Therefore, the only available ground for discharge
under § 30-4117 was that the OPG had located a successor
guardian who was willing to become Nicholas’ guardian.
28
§ 30-4103(9) (emphasis supplied).
29
§ 30-4102(1).
30
§ 30-4102(2)(c).
31
§ 30-4103(9).
- 17 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
IN RE GUARDIANSHIP OF NICHOLAS H.
Cite as 309 Neb. 1Even before the hearing, it was apparent that both of the pro-
posed successor guardians objected to appointment, and nei-
ther was willing to become a successor guardian for Nicholas.
The parents’ position during the hearing did not change. It is
certainly possible that with additional training and support from
the OPG, 32 one or both of Nicholas’ parents might change their
minds and become willing to serve as Nicholas’ guardian. But
at the time the county court discharged the OPG, the parents
were adamantly unwilling to serve as guardians for their son.
This is precisely the sort of situation the Public Guardianship
Act was established to address. And even if the county court
thought there was a possibility the parents might change their
minds and accept the appointment after the hearing, the better
practice would have been to issue an order deferring discharge
of the OPG until the successor guardians had accepted the
appointment and letters had issued. Moreover, to the extent
the county court’s remarks from the bench can be understood
to suggest the parents bore the responsibility to find a succes-
sor guardian who was willing to work with their son, we note
the plain language of the Public Guardianship Act places that
responsibility exclusively with the OPG. 33
Finally, the OPG contends, for the first time on appeal,
that even if its discharge was not proper under § 30-4117, we
should find the discharge was justified under either § 30-2623
or § 30-4116(2)(b). As we explain, neither statute applies.
Section 30-2623 is not part of the Public Guardianship Act;
it instead governs the process for removal or resignation of
private guardians. There is considerable conflict between the
process for removing a private guardian under § 30-2623 and
the process for discharging the OPG under § 30-4117. We
32
See § 30-4105(5) (OPG “[s]hall recruit members of the general public or
family members to serve as guardians . . . and provide adequate training
and support to enhance their success”).
33
See §§ 30-4105(5) and 30-4114(1).
- 18 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
IN RE GUARDIANSHIP OF NICHOLAS H.
Cite as 309 Neb. 1find that § 30-4117 is the more specific statute, and there-
fore controls. 34
Nor does § 30-4116(2)(b) entitle the OPG to discharge.
That statute authorizes the OPG to file motions to terminate
or modify the guardianship, “or take any other legal action
required to fulfill the duties and responsibilities of a guard-
ian or conservator in accordance with the Public Guardianship
Act.” 35 Here, the OPG was not asking to terminate or modify
Nicholas’ guardianship under § 30-4116(2)(b); it was asking
to continue the full guardianship but allow the OPG to be dis-
charged because
[Nicholas’] behavior precluded the OPG from fulfilling
[its] statutory duty. Because of his unending threats of
violence toward OPG staff, a court order directed . . .
Rotherham to have “no contact in any form” with him.
She was thus unable to attend their “monthly visits” and
could not “serve him as is statutorily required.” Nor, as
discussed above, could any other OPG staff reasonably
assume that role. 36
We reject the suggestion that discharge was the only way the
OPG could fulfill its duties under the Public Guardianship
Act. This court is well aware of the budgetary restrictions
and caseload limitations with which the OPG must contend.
And while threats of violence toward OPG staff must never
be condoned and can have serious civil and criminal conse-
quences, we see nothing in the Public Guardianship Act that
allows the OPG to be discharged because its ward is exhibit-
ing delusional and threatening behavior toward OPG staff. We
emphasize that if any OPG staff members believe a ward is
mentally ill and dangerous, 37 they should communicate such
34
See Cox Nebraska Telecom v. Qwest Corp., 268 Neb. 676, 687 N.W.2d
188 (2004).
35
§ 30-4116(2)(b).
36
Brief for appellee at 20 (internal citations omitted).
37
See Neb. Rev. Stat. § 71-908 (Reissue 2018) (defining mentally ill and
dangerous person).
- 19 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
IN RE GUARDIANSHIP OF NICHOLAS H.
Cite as 309 Neb. 1belief to the county attorney, who can take appropriate action
pursuant to the Nebraska Mental Health Commit­ment Act. 38
But intractable wards like Nicholas are one of the reasons
the OPG was established. The OPG is required to “maintain
the appropriate personnel and workload scope necessary to
fulfill all its responsibilities and duties,” 39 and it is authorized
to hire a multidisciplinary team, which can include profession-
als with experience working with those who have dementia,
developmental disabilities, chronic and acute medical needs,
and mental health issues. 40 Therefore, when one associate
public guardian is not able to effectively fulfill his or her
duties, it is reasonable to expect that other members of the
OPG’s multidisciplinary team will be made available so the
OPG can fulfill its responsibilities under the Public Guard­
ianship Act. Limited OPG staff resources is a valid reason,
under the Public Guardianship Act, to refuse to accept further
appointments, 41 but the Legislature did not make it a basis for
seeking discharge.
On this record, the county court’s finding that Rotherham
should no longer be the associate public guardian assigned
to work with Nicholas was entirely warranted and supported
by the evidence, but its decision to discharge the OPG alto-
gether did not conform to the law and was not supported by
competent evidence. Therefore, the OPG’s discharge must
be reversed.
CONCLUSION
Currently, the Public Guardianship Act allows the OPG
to be discharged only when its services “are no longer
necessary.” 42 Under that exacting standard, which recognizes
38
See Neb. Rev. Stat. § 71-921 (Reissue 2018).
39
§ 30-4115(1)(a).
40
See § 30-4104(2).
41
See § 30-4115(2) and (3).
42
See § 30-4117.
- 20 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
IN RE GUARDIANSHIP OF NICHOLAS H.
Cite as 309 Neb. 1no exception for wards whose behavior is abusive or threat-
ening, the OPG is effectively precluded from discharge so
long as the ward remains incapacitated and in need of a
guardianship, and no one else is willing to serve as a succes-
sor guardian.
Because the OPG failed to prove that its services were no
longer necessary, the county court erred in discharging the
OPG under § 30-4117. We must reverse the order of discharge
and remand the cause for further proceedings consistent with
this opinion.
Reversed and remanded for
further proceedings.
Heavican, C.J., not participating.