IN RE GUARDIANSHIP OF PATRICK W., AN INCAPACITATED PERSON. BECKY S., APPELLEE, V. PATRICK W., APPELLANT.
No. S-23-209
Nebraska Supreme Court
April 19, 2024
316 Neb. 381
N.W.3d
- Estates: Judgments: Appeal and Error. An appellate court reviews probate cases for error appearing on the record made in the county court. When reviewing a judgment for errors appearing on the record, the inquiry is whether the decision conforms to the law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable.
- Decedents’ Estates: Appeal and Error. An appellate court, in reviewing a probate court judgment for errors appearing on the record, will not substitute its factual findings for those of the probate court where competent evidence supports those findings.
- Statutes: Appeal and Error. Statutory interpretation is a question of law, which an appellate court resolves independently of the trial court.
- Rules of Evidence: Hearsay: Appeal and Error. Apart from rulings under the residual hearsay exception, an appellate court reviews for clear error the factual findings underpinning a trial court‘s hearsay ruling and reviews de novo the court‘s ultimate determination to admit evidence over a hearsay objection or exclude evidence on hearsay grounds.
- Appeal and Error. In a de novo review, an appellate court reaches a conclusion independent of the trial court.
- Statutes: Legislature: Intent. 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.
- Statutes. It is not within the province of a court to read a meaning into a statute that is not warranted by the statute‘s language. Nor is it within the province of a court to read anything plain, direct, or unambiguous out of a statute.
- Statutes: Words and Phrases. Words and phrases in a statute shall be construed and understood according to the common and approved usage of the language; but technical words and phrases and such others as may have acquired a peculiar and appropriate meaning in the law shall be construed and understood according to such peculiar and appropriate meaning.
- 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.
- 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, harmonious, and sensible.
- Statutes. When possible, a court will try to avoid a statutory construction that would lead to an absurd result.
- To the extent there is a conflict between two statutes, the specific statute controls over the general statute.
- Guardians and Conservators: Guardians Ad Litem: Evidence. In guardianship proceedings, the information specifically described in the first sentence of
Neb. Rev. Stat. § 30-4204 (Reissue 2016) is admissible in evidence when the proponent shows such information or material (1) was obtained by the guardian ad litem informally or by subpoena and (2) is regarding the person for whom the guardian ad litem was appointed. - Appeal and Error. Conclusory assertions unsupported by coherent analytical argument fail to satisfy the requirement that an appellant‘s brief must both specifically assign and specifically argue errors.
Adaline K. Baker for appellant.
Heather S. Colton, of Pollack & Ball, L.L.C., for appellee.
HEAVICAN, C.J., MILLER-LERMAN, CASSEL, STACY, FUNKE, PAPIK, and FREUDENBERG, JJ.
Patrick W. appeals from an order of the county court finding him to be incapacitated and appointing a permanent guardian. He assigns error to the admission of an exhibit over his hearsay objection, and he argues that without that exhibit, the evidence was insufficient to show he is incapacitated. We affirm the county court‘s order.
I. BACKGROUND
In 2009, Patrick suffered a stroke at the age of 32. In 2014 or 2015, Adult Protective Services (APS), a division of the Nebraska Department of Health and Human Services, opened an investigation due to concerns about Patrick‘s medical needs and financial management. After working with him for several years, an APS caseworker was concerned that Patrick was vulnerable to financial exploitation, self-neglect, and undue influence. The APS
1. PETITION FOR GUARDIANSHIP
In 2022, Stamp filed a verified petition in the county court for Saunders County seeking to be appointed as Patrick‘s temporary and permanent guardian. The petition alleged that Patrick was incapacitated due to a stroke and that he lacked sufficient understanding or capacity to make or communicate responsible decisions concerning his person and property.1
The court appointed Stamp to serve as Patrick‘s temporary guardian. A few months later, Patrick moved to substitute his cousin, Terry Crandall, as his temporary guardian, and the court granted that motion. The court also appointed an attorney to serve as Patrick‘s guardian ad litem (GAL) and ordered Patrick to undergo a neuropsychological evaluation at a rehabilitation hospital.
In October 2022, the neuropsychological evaluation was completed, and a written report was prepared. The admissibility of that report is the primary issue on appeal.
2. GUARDIANSHIP HEARING
An evidentiary hearing on the guardianship petition was held in January 2023. Stamp and Patrick both appeared for the hearing with counsel, and Patrick‘s GAL was also present. The county court received several exhibits into evidence and heard testimony from six witnesses, including Patrick. As relevant to the issues on appeal, we summarize the witness testimony and discuss two of the hearing exhibits.
(a) GAL Report
The GAL did not testify at the hearing, but her report was admitted into evidence without objection after the parties agreed to redact certain statements within it. The GAL‘s report recommended a full guardianship based on her opinion that without assistance, Patrick was not able to maintain safe and appropriate independent housing, arrange for his medical care and comply with medical instructions, protect his personal effects, apply for governmental benefits to which he may be entitled, or independently receive and manage his money and property.
The GAL described her personal observations that Patrick struggled to follow a consistent timeline and had difficulty answering questions and accurately recalling information and events. The GAL also expressed concern that Patrick would not talk or meet with her unless his roommate and landlord, Rodney Volker, was also present. The GAL noted that Patrick allowed Volker to speak for him and that Patrick appeared susceptible to Volker‘s influence.
The GAL‘s report stated that she had received and reviewed the neuropsychological evaluation report ordered by the court and believed the report supported her conclusion that a full guardianship was appropriate. The GAL‘s report quoted several statements from the neuropsychological report, including that Patrick‘s diagnosis was “Major Neurocognitive Disorder” and that Patrick‘s neurological testing revealed “significant global impairment, including in the domains of attention/processing speed, language, memory, visuospatial functioning, and executive functioning” and “significant expressive aphasia.”
(b) Neuropsychological Report
At the start of the guardianship hearing, Patrick‘s counsel moved in limine to exclude the neuropsychological report as inadmissible hearsay. In response, Stamp
The guardian ad litem may obtain, informally or by subpoena, the following information regarding the person for whom the guardian ad litem has been appointed: (1) A report from any medical provider [or] provider of psychological services . . . . Any material obtained by a guardian ad litem pursuant to this section is admissible in evidence.
The county court overruled Patrick‘s motion in limine.
Later during the hearing, Patrick‘s counsel renewed the hearsay objection when Stamp offered the neuropsychological report as an exhibit. Counsel argued that despite the admissibility provision in
As relevant to the issues on appeal, the neuropsychological report concluded that Patrick met the criteria for a diagnosis of “Major Neurocognitive Disorder Due to Another Medical Condition (history of a stroke), with Behavioral Disturbance.” The report also described that Patrick has “expressive aphasia” and struggles significantly to convey his thoughts, noting that during the neuropsychological evaluation, Patrick spoke very little, and when he did speak, the evaluator had difficulty understanding him. The report indicated that Patrick‘s neuropsychological testing revealed significant global impairment in the domains of attention/processing speed, language, memory, visuospatial functioning, and executive functioning. In the evaluator‘s clinical judgment, Patrick‘s poor judgment and insight placed him at a “significantly increased risk” of emotional, financial, sexual, and other exploitation and manipulation. The neuropsychological report concluded:
Due to his current level of functioning, it is the clinical judgment of this provider that [Patrick] would best be served by the assignment of a permanent guardian to ensure facilitation of safe decision-making and to procure for ongoing needs. I can say with a reasonable degree of certainty that these deficits are unlikely to improve to the point where he would not need this level of support, given that it has been over 10 years since his stroke.
(c) Witness Testimony
(i) Stamp‘s Case in Chief
During Stamp‘s case in chief, three witnesses were called to testify. The APS caseworker testified about her history working with Patrick and her concern that his cognitive deficits caused him to neglect his own care. She also testified about concerns that Patrick was being financially exploited by Volker.
Stamp testified that she too was concerned about Volker‘s financial influence on Patrick, explaining that during the time she served as Patrick‘s temporary guardian, Volker “always called and asked for money. Never Patrick.” Stamp also testified that she was concerned about Patrick‘s
Crandall testified that while she served as Patrick‘s temporary guardian, it was challenging to assess Patrick‘s well-being because Volker was always present when she tried to talk with Patrick and Volker would influence the discussion. Crandall testified that Patrick would answer the telephone when she called but that “within the next minute or so, [Volker] is on the phone telling me what I will or what I will not do.” She also testified that there were instances where Volker had texted her from Patrick‘s cell phone posing as Patrick. Crandall testified that she had known Patrick since he was 18 years old, and based on her interactions with him since 2022, she believed he needed a permanent guardianship.
(ii) Patrick‘s Case in Chief
During Patrick‘s case in chief, three witnesses were called to testify. Patrick testified on his own behalf. He generally opposed establishing a guardianship, explaining it was not something he needed. Patrick testified that Volker “helps [him] a lot” and that Volker is “a good accountant.” Some of Patrick‘s testimony was difficult to follow and not responsive to the question being asked. For instance, when asked why he objected to the guardianship, Patrick stated:
Guardianship? Because it‘s in — I do — I wake up, I go and take my meds, go to transportation, go to Walmart, groceries, back home, whatever — in and out. The kitchen, check the mail, and that‘s it. So either — I don‘t know, there‘s nothing else. I mean, there‘s making other friends, like making friends. I like it, so.
A witness, who described herself as a mutual friend of Patrick‘s and Volker‘s, testified that she had known Patrick for 2 or 3 years and had seen no evidence that Patrick could be taken advantage of in his current living situation. She testified that although Patrick was slow to answer questions, she thought his answers were appropriate. She also thought that since moving in with Volker, Patrick looked healthier and seemed happier than he was previously.
Volker testified that he had known Patrick for more than a decade and reconnected with him in 2021. When they reconnected, Volker observed Patrick to be “[w]orse than homeless,” and “[h]e was nothing like he is today.” Volker testified that Patrick does his own cooking, laundry, bedsheets, and vacuuming. Volker transported Patrick to appointments, to the grocery store, and to visit Patrick‘s stepmother, and Patrick paid Volker for gas. Volker expressed concerns about Patrick‘s ability to access funds if Crandall were to become his permanent guardian. Volker admitted to interfering with Patrick‘s conversations with Crandall, but he did not think Patrick needed a guardian because “he‘s just as normal as anybody else.”
At the close of the evidence, the court took the matter under advisement and requested written closing arguments.
3. COUNTY COURT ORDER
In an order entered February 15, 2023, the court found clear and convincing evidence that Patrick was incapacitated. The court determined that a full guardianship was the least restrictive alternative available and appointed Crandall to serve as Patrick‘s permanent guardian. Patrick filed this timely appeal, which we moved to our docket on our own motion.
II. ASSIGNMENTS OF ERROR
Patrick assigns, restated, that the county court erred in (1) receiving the neuropsychological report into evidence over his hearsay objection and (2) finding that he is incapacitated and that a full guardianship
III. STANDARD OF REVIEW
[1] An appellate court reviews probate cases for error appearing on the record made in the county court.2 When reviewing a judgment for errors appearing on the record, the
inquiry is whether the decision conforms to the law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable.3
[2] An appellate court, in reviewing a probate court judgment for errors appearing on the record, will not substitute its factual findings for those of the probate court where competent evidence supports those findings.4
[3] Statutory interpretation is a question of law, which an appellate court resolves independently of the trial court.5
[4,5] Apart from rulings under the residual hearsay exception, an appellate court reviews for clear error the factual findings underpinning a trial court‘s hearsay ruling and reviews de novo the court‘s ultimate determination to admit evidence over a hearsay objection or exclude evidence on hearsay grounds.6 In a de novo review, an appellate court reaches a conclusion independent of the trial court.7
IV. ANALYSIS
1. ADMISSIBILITY OF MATERIALS OBTAINED PURSUANT TO § 30-4204
The primary issue on appeal is the admissibility of information and material obtained by a GAL pursuant to
The guardian ad litem may obtain, informally or by subpoena, the following information regarding the person for whom the guardian ad litem has been appointed: (1) A report from any medical provider, provider of psychological services, law enforcement, [APS] agency, or financial institution; and (2) any account or record of
any business, corporation, partnership, or other business entity which such person owns or in which such person has an interest. Any material obtained by a [GAL] pursuant to this section is admissible in evidence.8
Patrick does not dispute that the neuropsychological report at issue pertained to him, nor does he dispute that it is properly characterized as “[a] report from any medical provider [or] provider of psychological services” within the meaning of
As such, the only disputed issue regarding
usage of the language; but technical words and phrases and such others as may have acquired a peculiar and appropriate meaning in the law shall be construed and understood according to such peculiar and appropriate meaning.”12
[9-12] 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.13 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, harmonious, and sensible.14 When possible, a court will try to avoid a statutory construction that would lead to an absurd result.15 To the extent there is a conflict between two statutes, the specific statute controls over the general statute.16
With these principles in mind, we turn to the arguments of the parties.
(a) Arguments of Parties
Patrick argues that courts should not construe the last sentence of
Stamp disagrees. At oral argument before this court, Stamp‘s counsel argued that the plain and ordinary meaning of the
statutory phrase “admissible in evidence” means “proper to be received” in evidence. She generally described the admissibility provision in
The issue in In re Guardianship of Jill G. was the admissibility of a GAL‘s written report. That report was 8 pages long and included as an attachment approximately 80 pages of material the GAL had obtained pursuant to
We found no error in that case, reasoning that the plain terms of the admissibility provision in
trial court has discretion to reject the exhibit entirely or to admit the admissible portion.”21 Because the petitioner in In re Guardianship of Jill G. had not separately offered just the materials obtained by the GAL pursuant to
Although our opinion in In re Guardianship of Jill G. did not address whether materials obtained by a GAL pursuant to
(b) Resolution
Section 30-4204 contains two sentences, and we consider them both when construing the meaning of the statute. The first sentence describes several categories of information that GALs are authorized to obtain, either informally or by subpoena, regarding the person for whom they have been appointed. And the second sentence of the statute provides, without further condition, that “[a]ny material obtained by a guardian ad litem pursuant to this section is admissible in evidence.”22
Black‘s Law Dictionary defines “admissible” as “[c]apable of being legally admitted; allowable; permissible,”23 and it defines “admissible evidence” as “[e]vidence that is relevant and is of such a character . . . that the court should receive it.”24 We think these common definitions are appropriately applied to the phrase “admissible in evidence” as it is used in
understand the Legislature to have determined that it is “allowable” or “permissible” for a court to admit into evidence the materials specifically described in the statute, but that the admission of such materials is not mandatory.
We consider it significant that, unlike admissibility provisions found elsewhere in the Nebraska statutes, the admissibility language in
As such, although Patrick is correct that the Nebraska Evidence Rules generally apply in probate proceedings, we reject his argument that the phrase “admissible in evidence” in
under the rules of evidence. The construction urged by Patrick would require that we read qualifying language into the statute that was not included by the Legislature. Instead, to the extent the admissibility provision in
[13] We now hold that in guardianship proceedings, the information specifically described in the first sentence of
A trial court‘s decision to admit or exclude evidence is reviewed for an abuse of discretion,28 and on this record, we find no abuse of discretion in admitting the neuropsychological report pursuant to
The record shows that the neuropsychological report is a medical or psychological report obtained by the GAL regarding the person for whom she was appointed, and thus fits squarely within the categories of information identified in
[14] Patrick‘s second assignment of error is that there was insufficient evidence adduced to support the county court‘s finding that he is incapacitated and that a full guardianship is the least restrictive alternative. He argues that “[t]he only evidence offered showing [he] might have a mental deficiency” was the neuropsychological report.30 And he contends that without that report, “there is no evidence that [he has] a mental deficiency that affects his ability to understand or the capacity to make or communicate decisions for himself.”31 Although Patrick‘s brief alludes to other alleged deficiencies in the evidence, we do not discuss them, because conclusory assertions unsupported by coherent analytical argument fail to satisfy the requirement that an appellant‘s brief must both specifically assign and specifically argue errors.32 We therefore confine our analysis to Patrick‘s argument that without the neuropsychological report, there was insufficient evidence to support the court‘s guardianship.
We reject this argument as meritless. As we have already explained, it was proper for the court to admit the neuropsychological report into evidence. And our review of the record, including the neuropsychological report, shows ample evidence to support the court‘s finding that Patrick is incapacitated and that a full guardianship is the least restrictive alternative to provide for his continuing care or supervision.33
The court‘s decision conformed to the law, was supported by competent evidence, and was neither arbitrary, capricious, nor unreasonable.
V. CONCLUSION
For the foregoing reasons, we affirm the order of the county court.
AFFIRMED.
STACY, J.