in the Matter of the Guardianship of M.E.R.

                                                             11th Court of Appeals

                                                                  Eastland, Texas

                                                                        Opinion

In the Matter of the Guardianship of M.E.R.

No.  11-00-00366-CV C Appeal from Taylor County

M.E.R., a 69-year-old female, appeals from the trial court=s order appointing the Texas Department of Protective and Regulatory Services (TDPRS) as guardian of her person with full authority.  We affirm.

In her first issue on appeal, M.E.R. contends that there was insufficient evidence to support the trial court=s finding that she is incapacitated. Before appointing a guardian, the trial court must find by clear and convincing evidence that the proposed ward is an incapacitated person.  TEX. PROB. CODE ANN. ' 684(a)(1) (Vernon Supp. 2001).  TEX. PROB. CODE ANN. ' 601(13)(B) (Vernon Supp. 2001) defines A[i]ncapacitated person@ as:

[A]n adult individual who, because of a physical or mental condition, is substantially unable to provide food, clothing, or shelter for himself or herself, to care for the individual=s own physical health, or to manage the individual=s own financial affairs.

The heightened burden of proof in the trial court does not affect the appellate standard of review for factual sufficiency.  In the Interest of M.D.S., 1 S.W.3d 190, 197 (Tex.App. - Amarillo 1999, no pet=n); In the Interest of J.N.R., 982 S.W.2d 137, 142 (Tex.App. - Houston [1st Dist.] 1998, no pet=n).^[1]  Thus, we consider and weigh all the evidence in the case and affirm the judgment unless the finding is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.  Plas-Tex, Inc. v. U.S. Steel Corporation, 772 S.W.2d 442, 445 (Tex.1989); In re King=s Estate, 244 S.W.2d 660, 661 (Tex.1951).

At trial, Mary Rose, M.E.R.=s daughter, testified that she and her sister went to M.E.R.=s house in December of 1999 and that they Abagged up six bags of trash@ in the house.  Rose stated that there were Kleenexes, newspapers, magazines, and old pill bottles all over the house. Rose also stated that M.E.R. was inverting the numbers on her car payment and was continually paying less than her required payment.

Rose returned in March of 2000 and again found a lot of trash in M.E.R.=s home. Rose stated that M.E.R. was not bathing and had not washed her hair.  Rose and her sister again went to M.E.R.=s home in May of 2000 and found that the bathroom was not working properly, that M.E.R. had not changed her clothes in four days, and that her hair was dirty. Rose testified that M.E.R. would sometimes check into a motel to take a bath.  Rose stated that M.E.R. had ordered a lot of magazines and did not remember ordering them and that she continued to invert the numbers on her car payment which caused her to incur late charges.

Alice Kessner, an investigator for Adult Protective Services, testified at trial that she met with M.E.R. in M.E.R.=s home on June 2, 2000.  Kessner stated that the house was cluttered but that she Ahad seen worse.@  Kessner stated that M.E.R. focused a lot on a sexual relationship she claimed to have had with her doctor.   M.E.R. told Kessner that the doctor had come to her home on New Year=s Eve, had had sex with her, and had left a case of beer in the refrigerator.   Kessner believed that M.E.R. was delusional.  M.E.R. told Kessner that her car lights came on by themselves at night.  Kessner called the dealership and spoke to the service manager who told her that M.E.R. had brought the car in for repair and returned and picked up the car.  The following day, M.E.R. had someone take her back to the dealership, claiming that they had kept her keys; however, M.E.R. had driven the car home with the keys.  After speaking with several of M.E.R.=s doctors, Kessner determined that M.E.R. should no longer remain in her home.

With its application for permanent guardianship, the TDPRS attached a letter from Dr. Ernesto Fernandez, M.D., who stated that he had reviewed psychological testing performed on M.E.R. and had conducted his own psychiatric evaluation and determined that she was incompetent to live by herself due to psychiatric problems.  Dr. Fernandez recommended that M.E.R. be placed in an appropriate structured environment.  The application also included a report from Dr. Samuel D. Brinkman, Ph.D., a clinical neuropsychologist, who, after detailing the results from numerous tests, concluded that M.E.R. suffers from dementia and stated that M.E.R. Adoes not have adequate mental abilities to provide for her own well-being.@  At trial, a diagnosis by Dr. Robert Fedderman was read into the record.  Dr. Fedderman diagnosed M.E.R. as suffering from dementia and concluded that she Awould not be able to live independently without danger to her health and safety.@

M.E.R. testified on her own behalf at trial. M.E.R. told the trial court that she takes her required medication, that she is able to feed herself, and that she showers A[s]ometimes everyday.@ M.E.R. stated that she paid her bills, that she banked at First National Bank, and that she received $584.04 from an annuity check and $459.00 from Social Security.  M.E.R. stated that her car payment is $274.83 but that she pays $247.83 Aon account of that one month now.@  In response to her counsel=s question of how long she had lived in her home, M.E.R. stated:

I started buying that house in the fall of >76.  We had to go to Colorado for my oldest sister=s funeral, and I knew I didn=t have her anymore so I didn=t - - the nurses was buying homes and fixing them up so whenever they retire.

In response to whether she was a danger to others, M.E.R. stated: AMy husband was always getting me pregnant.  I see now he was right.@    On cross-examination, when asked if she remembered being interviewed by Dr. Brinkman, M.E.R. responded: A[H]e interviewed me at the Abilene State School after I had foot surgery.  I don=t remember ever seeing that man in my life.@

Margaret Stracener, M.E.R.=s neighbor, testified at trial that she saw M.E.R. at least once a month.  Stracener stated that M.E.R. Aate just fine@ and that Ashe=s always clean and nice.@ Stracener testified that M.E.R. was able to drive, clothe herself, and provide for her own food and shelter.

The trial court heard evidence that M.E.R. was unable to care for herself and for her home.  Additionally, TEX. PROB. CODE ANN. ' 686(b) (Vernon Supp. 2001) provides that A[c]urrent medical, psychological, and intellectual testing records are a sufficient basis for a determination of guardianship.@ Viewing all of the evidence, the trial court=s finding that M.E.R. is incapacitated is not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.  M.E.R.=s first issue on appeal is overruled.

In her second issue on appeal, M.E.R. argues that the evidence is insufficient to support the trial court=s finding by clear and convincing evidence that the determination of incapacity is evidenced by recurring acts within the preceding six months and not by isolated instances of negligence or bad judgment. TEX. PROB. CODE ANN. ' 684(c) (Vernon Supp. 2001).  The trial was held on August 9, 2000; and therefore, the determination of incapacity must be made by acts occurring from February 9, 2000, until the date of trial. Section 684(c).  Although the record indicates that Rose testified to occurrences in December 1999, the trial court also heard evidence of recurring acts within the six-month period prior to trial.  The record also indicated that the reports of Dr. Fernandez, Dr. Brinkman, and Dr. Fedderman all occurred during the six-month period prior to trial. M.E.R. has not shown that the trial court=s determination of incapacity was based upon acts prior to the six-month period before trial.  M.E.R.=s second issue on appeal is overruled.

In her third issue on appeal, M.E.R. complains that the evidence is insufficient to support the  trial court=s finding by clear and convincing evidence that it is in her best interest to have a guardian appointed for her.  In her fourth issue on appeal, M.E.R. contends that the evidence is insufficient to support the trial court=s finding by a preponderance of the evidence that she was Awithout capacity to care for herself or to manage her property.@   The trial court heard evidence that M.E.R. was unable to care for herself and for her home.  The trial court also had evidence from doctors indicating that M.E.R. suffers from dementia and that she is unable to provide for her own well-being.  The trial court=s findings that it is in M.E.R.=s best interest to have a guardian appointed and that M.E.R. is without capacity to care for herself or to manage her property are not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.  M.E.R.=s third and fourth issues on appeal are overruled.

In her fifth issue on appeal, M.E.R. argues that the trial court erred in appointing a permanent guardian for her because there was Ainsufficient evidence of [M.E.R.=s] current and relevant medical, psychological, and intellectual testing records.@ TEX. PROB. CODE ANN. ' 687(a) (Vernon Supp. 2001) provides:

The court may not grant an application to create a guardianship for an incapacitated person...unless the applicant presents to the court a written letter or certificate from a physician licensed in this state that is dated not earlier than the 120th day before the date of the filing of the application and based on an examination the physician performed not earlier than the 120th day before the date of the filing of the application.

Section 687(a) also sets out the information required to be in the letter or certificate.   TDPRS attached documentation to its application for guardianship from both Dr. Fernandez and Dr. Brinkman.   These documents were not admitted at trial.

M.E.R. argues that, because the documents were not admitted at trial, they cannot be relied upon as evidence of incapacity. However, Section 687(a) states that the documents must be presented to the trial court.  The documents were filed with the application for guardianship and were part of the record before the trial court.  See Trimble v. Texas Department of Protective & Regulatory Service, 981 S.W.2d 211 (Tex.App. - Houston [14th Dist.] 1998, no pet=n).

M.E.R. also argues that the trial court should not have considered the documents because they contained inadmissible hearsay. Section 686(b) authorizes the trial court to base its determination of guardianship on medical, psychological, and intellectual records.  The trial court did not abuse its discretion in considering the records. 

M.E.R. next argues that the documents do not comply with Section 687(a).  Dr. Fernandez=s letter does not contain the information required in Section 687(a).  We must, therefore, determine whether the trial court=s decision to consider the documents probably caused the rendition of an improper judgment or probably prevented M.E.R. from properly presenting her case on appeal.  TEX.R.APP.P. 44.1; Trimble v. Texas Department of Protective & Regulatory Service, supra.

In Trimble, the physician=s letter did not comply with Section 687(a) in that the letter and examination occurred outside of the 120 days prescribed by statute.  The court held that the error was not reversible because the examination was only a few weeks outside of the required time frame and that the report was consistent with the evidence presented at trial concerning the proposed ward=s ability to care for herself and her property.

In the present case, Dr. Fernandez=s letter states that he had reviewed the psychological testing performed on M.E.R. in May of 2000 and that his decision that M.E.R. was incompetent to live by herself was based upon psychological testing performed by two psychologists as well as his own psychiatric evaluation.  The report of Dr. Brinkman, dated May 25, 2000, was also included with the application. Dr. Brinkman=s report details M.E.R.=s history, intellectual abilities, language skills, as well as the results from a number of other tests.  Dr. Brinkman=s report discusses M.E.R.=s medication and its effect on her condition. The two documents together contain the substantial information required by Section 687(a).  The evidence at trial was consistent with the doctors conclusions that M.E.R. was unable to care for herself or her property.  Moreover, M.E.R. testified on her own behalf at trial, and the trial court observed her demeanor.  M.E.R. has not shown that the trial court=s consideration of the documents probably caused the rendition of an improper judgment or prevented her from presenting her case on appeal.  Rule 44.1.   M.E.R.=s fifth issue on appeal is overruled.

The judgment of the trial court is affirmed.

W. G. ARNOT, III

CHIEF JUSTICE

September 20, 2001

Do not publish.  See TEX.R.APP.P. 47.3(b).

Panel consists of: Arnot, C.J., and

Wright, J., and McCall, J.

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^[1]But see In the Best Interest and Protection of G.B.R, 953 S.W.2d 391, 396 (Tex.App. - El Paso 1997, no writ); In the Interest of L.R.M. and J.J.M., 763 S.W.2d 64, 66 (Tex.App. - Fort Worth 1989, no writ); Neiswander v. Bailey, 645 S.W.2d 835, 836 (Tex.App. - Dallas 1982, no writ)(adopting a higher standard of review for factual sufficiency when the burden of proof below is clear and convincing).