In re Guardianship of Benjamin E.
289 Neb. 693
| Neb. | 2014Background
- Benjamin E., a 22-year-old nonverbal, hearing-impaired adult with a genetic condition, was stipulated to be incapacitated and in need of a full guardian.
- Mother Rhonda P. petitioned to be appointed guardian; she is Benjamin’s sole surviving parent and fell within the statutory priority list (§ 30-2627(b)(4)).
- Region V (a service provider) had placed Benjamin in a group home after removing him from a long-term caregiver, Sharmon Shireman, following an abuse allegation that Rhonda disputes.
- The county court appointed an attorney to represent Benjamin; that attorney nominated Kendra Augustine (a former support worker) as guardian; the court appointed Augustine and made no express findings explaining bypassing Rhonda’s statutory priority.
- Rhonda appealed, alleging (1) professional misconduct by Benjamin’s appointed attorney and (2) erroneous appointment of Augustine over Rhonda’s statutory priority.
- The Nebraska Supreme Court rejected the misconduct claim but reversed and remanded because the county court’s appointment of a nonpriority guardian was arbitrary and capricious without findings, explanation, or an adequate evidentiary record.
Issues
| Issue | Plaintiff's Argument (Rhonda) | Defendant's Argument (Appointed attorney / County court) | Held |
|---|---|---|---|
| Did Benjamin’s appointed attorney commit professional misconduct by nominating Augustine? | Attorney violated rule requiring lawyer to follow client’s objectives and consult with client; could not represent Benjamin’s wishes because Benjamin could not communicate. | Lawyer may take impliedly authorized actions and reasonably protective measures for clients with diminished capacity; nomination sought Benjamin’s best interests. | Rejected — no misconduct; attorney acted within professional rules for clients with diminished capacity. |
| May the court appoint a nonpriority guardian over a parent without specific findings? | Court must not bypass Rhonda’s statutory priority absent record support or findings showing it is in Benjamin’s best interest. | § 30-2627(c) allows passing over a person with priority when court acts in incapacitated person’s best interest; specific textual finding not required. | Court may pass over priority but here appointment was arbitrary and capricious because no findings, explanation, or record basis supported bypassing Rhonda. |
| Was there evidence showing Rhonda unfit or that her choices endangered Benjamin (justifying bypass)? | No; evidence did not establish harm in Shireman’s care, and Rhonda said she would defer to service providers; testimony of delays in providing clothing was insufficient to show unfitness. | County court relied on guardian ad litem concerns and Region V input suggesting a nonfamily guardian was preferable. | Held insufficient record proof of harm or unfitness; no basis in record to justify bypassing parental priority. |
| Can the appellate court consider extrarecord reports or materials not in the bill of exceptions? | Rhonda argued some reports influenced the court. | County court may have considered guardian ad litem reports not made part of the bill of exceptions. | Held those materials are not part of the appellate record; bill of exceptions is the only vehicle to bring evidence on appeal. |
Key Cases Cited
- In re Conservatorship of Gibilisco, 277 Neb. 465, 763 N.W.2d 71 (Neb. 2009) (standard for reviewing guardianship/conservatorship proceedings)
- Ottaco Acceptance, Inc. v. Huntzinger, 268 Neb. 258, 682 N.W.2d 232 (Neb. 2004) (bill of exceptions is the proper vehicle to bring evidence to appellate court)
- In re Guardianship of D.J., 268 Neb. 239, 682 N.W.2d 238 (Neb. 2004) (discussing parental preference and best-interest considerations in guardianship contexts)
- McCurdy v. Dodd, 352 F.3d 820 (3d Cir. 2003) (federal circuit treatment of parental preference for adult-child relationships in related contexts)