In Re the Guardianship of Stevenson
2013 S.D. 4
S.D.2013Background
- Nicole Trina Stevenson, born 1985 with cerebral palsy and developmental disabilities, is the protected person at issue; Dolores Overholtzer and Wayne Stevenson are her biological parents.
- Dolores petitioned in SD to act as Nicole’s guardian and conservator; Wayne initially opposed and sought visitation and appointment options.
- In 2008 Dolores was appointed guardian/conservator; Wayne’s visitation proceeded through SD Achieve but cooperation deteriorated.
- In 2010 Wayne sought removal of Dolores, appointment of an independent guardian, determination of conservatorship, and an attorney for Nicole; consistent testimony urged transition to independent living.
- In 2011 the court appointed Nicole’s advocates, Overmoe and Hamilton, to represent her and to prepare a report; the court later terminated Dolores’s guardian/conservator appointment.
- Dolores appeals, challenging the handling of the investigative report and the sufficiency of the court’s decision to remove her as guardian and conservator.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the investigative report was an admissible expert report and denied cross-examination violated due process | Dolores argues the report was expert and the court denied cross-examination | Wayne and colleagues contend the report was not evidence and was harmless | No reversible error; any error was harmless |
| Whether the trial court abused its discretion in removing Dolores as guardian and conservator | Dolores contends weight/causes for obesity and best interests were mischaracterized | Wayne argues removal was appropriate given lack of progress toward independent living and impact on Nicole | No abuse of discretion; removal affirmed |
| Whether the court properly distinguished the role of appointed advocates versus court representatives | Dolores asserts advocates acted beyond scope; cross-examination should have been allowed | Nicole's advocates argued their role was appropriate and report was cumulative | Court did not err in role delineation; any error was harmless |
Key Cases Cited
- In re M.R., 638 A.2d 1274 (N.J. 1994) (role of advocates and court representatives discussed)
- Gross v. Rell, 40 A.3d 240 (Conn. 2012) (applies to best interests and advocate roles)
- In re Guardianship of Griesinger, 804 N.W.2d 527 (Iowa Ct. App. 2011) (distinguishes guardian ad litem from attorney for protected person)
- In re Lee, 754 A.2d 426 (Md. Ct. App. 2000) (role of court representatives in guardianship)
- In re C.W., 414 N.W.2d 277 (Neb. 1987) (statutory roles of advocates in protection matters)
- In re Guardianship of Jennifer M., 779 N.W.2d 436 (Wis. Ct. App. 2009) (statutory identification of advocate roles)