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In re Guardianship of Benjamin E.

Supreme Court of Nebraska

December 12, 2014

IN RE GUARDIANSHIP OF BENJAMIN E., AN ALLEGED INCAPACITATED PERSON. RHONDA P., APPELLANT,
v.
BENJAMIN E., APPELLEE

Page 448

Appeal from the County Court for Lancaster County: Thomas W. Fox, Judge. Reversed and remanded for further proceedings.

Steffanie Garner Kotik, of Kotik & McClure Law, for appellant.

Chris Blomenberg, and Michael Milone, Senior Certified Law Student, of McHenry, Haszard, Roth, Hupp, Burkholder & Blomenberg, P.C., L.L.O., for appellee.

HEAVICAN, C.J., WRIGHT, CONNNNOLLY, STEPHAN, MCCORMACK, MILLER-LERMAN, and CASSEL, JJ. STEPHAN, J., concurring.

OPINION

Page 449

[289 Neb. 694] Cassel, J.

INTRODUCTION

Rhonda P., the mother of an incapacitated adult, appeals from an order of the county court appointing an unrelated individual as the adult's guardian. Although we find no merit to her contention that the incapacitated adult's court-appointed attorney committed professional misconduct, we agree that the county court erred in passing over her statutory priority for appointment.[1] Without specific findings, any meaningful explanation, or a record establishing any apparent basis for deviating from the statutory priority, the appointment was arbitrary and capricious. We reverse the judgment and remand the cause for further proceedings.

Page 450

BACKGROUND

Incapacitated Adult

Benjamin E. is a 22-year-old incapacitated adult. He was born with a genetic condition, apparently relating to his chromosomes, and is unable to hear or speak. According to Rhonda, he is in need of " 24-hour watch." At the guardianship hearing, the parties stipulated that Benjamin was in need of a guardian.

Petition For Appointment Of Guardian

On July 1, 2013, Rhonda filed a petition for the appointment of a guardian for Benjamin. In the petition, she alleged that an emergency existed because Benjamin would turn 21 years old in mid-July and she feared he would leave his group home without a guardianship in place. Rhonda nominated [289 Neb. 695] herself as guardian. She was Benjamin's sole surviving parent, because his father had passed away in November 2006.

The county court appointed Douglas Hand to act as guardian ad litem for Benjamin. Hand recommended that the court appoint an attorney to represent Benjamin's interests. Although no order of appointment appears within the record, an attorney represented Benjamin at the guardianship hearing.

Evidence At Guardianship Hearing

At the guardianship hearing, much of the testimony concerned Benjamin's former placement in the home of Sharmon Shireman. Benjamin was placed in Shireman's home when he was 16 years old and remained in her care for 5 years. He was removed from Shireman's home in July 2013. At the time of Benjamin's removal, Shireman was an extended family home provider through Region V Services (Region V).

Rhonda testified that Benjamin's removal was prompted by an allegation of abuse made by a friend of Shireman's. Specifically, the friend alleged that Benjamin was being left in his " pull-up" for 12 or 24 hours at a time. However, Rhonda refuted the allegation. She explained that she had unlimited access to Shireman's home and that she never observed any concerns. And Rhonda stated that if Benjamin was left in his pull-up for extended periods of time, she would have noticed because his skin would have turned red and raw. Additionally, she testified that she was informed by Region V that the allegation was unfounded.

Leslie Walters, Benjamin's community support coordinator with Region V, testified that the allegation against Shireman was made by Shireman's daughter and her daughter's " life partner." Walters was not permitted to testify as to the specific allegation of abuse. Benjamin was removed from Shireman's care and placed into a group home with an available bedroom. Region V terminated its contract with Shireman the next day.

Walters further testified as to other concerns regarding Shireman's care of Benjamin. During Benjamin's placement with Shireman, she relocated to four different locations. [289 Neb. 696] And it was always unclear to Walters who was residing in Shireman's home. Shireman's son was in and out of her home at various times. And a grandson resided with Shireman for a period of time when she was living in a mobile home. Additionally, Walters recalled a girl living with Shireman that she claimed to be caring for. Walters further suggested that criminal charges had been filed against Shireman or someone residing in her home, although Walters and Region V had not been made aware of the charges.

Walters was also asked if she had any concern whether Shireman had provided adequate clothing for Benjamin. Walters replied that Benjamin was always appropriately

Page 451

dressed for the weather, but that Shireman would complain of not receiving sufficient funds to buy clothing or to pay for Benjamin's room and board. Walters explained that funds for Benjamin's clothing and room and board came from his Social Security benefits, of which Rhonda was the payee. And since Benjamin began residing in the group home, Region V had requested additional clothing from Rhonda, which it had not yet received.

However, Walters' knowledge of Rhonda and Benjamin's relationship was limited. She testified that she had observed Rhonda and Benjamin interact only a couple of times at meetings. Walters recalled one particular meeting during which Rhonda attempted to encourage Benjamin to stay on task and the two hugged. Regarding her own relationship with Rhonda, Walters described their communication as tense and limited. However, Walters affirmed that an ongoing relationship with Rhonda could be maintained if Benjamin remained in Region V's care.

As to Benjamin's progress in the group home, Walters testified that she had observed improvement in several areas. Benjamin had experienced success with toilet training and bathing and had developed a strong connection with one of his roommates. Walters summarized his improvement by stating, " He's just done a lot of things that I guess I wasn't aware that he had done ever before." Walters opined that a group home setting was appropriate for Benjamin and recommended that he continue in such a setting.

[289 Neb. 697] Rhonda's testimony, however, was less favorable of Region V and Benjamin's experience in the group home. Rhonda testified that Benjamin had sustained an injury to his toe, rendering it " about ready to fall off," and numerous " scrapes" to his knees. She iterated that she had never received as many accident reports within the 5 years that Benjamin lived with Shireman as she had received recently. She further claimed that Region V failed to undertake required monthly " book works and stuff" while Benjamin lived with Shireman and that Walters was rude to her, would not call her, and contacted her only through text messages sent late at night.

Rhonda testified that based upon her concerns, she planned to remove Benjamin from Region V's care if appointed guardian. She stated that she would maintain his placement in a group home, but with a service provider other than Region V. However, during cross-examination, Rhonda was asked if she would return Benjamin to Shireman's care if such an option were available. Rhonda replied: " If [Shireman] passed one of the other [service providers] and they thought she was good enough, yes." But she later ...


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