Bruggeman v. Ramos, #29308

CourtSupreme Court of South Dakota
Writing for the CourtDEVANEY, Justice
Citation972 N.W.2d 492
Parties James BRUGGEMAN, Petitioner and Appellee, BY BLACK HILLS ADVOCATE, LLC, Substitute Petitioner and Appellee, v. Jennifer RAMOS, Respondent and Appellant.
Docket Number#29308
Decision Date23 March 2022

972 N.W.2d 492

James BRUGGEMAN, Petitioner and Appellee,

BY BLACK HILLS ADVOCATE, LLC, Substitute Petitioner and Appellee,
v.
Jennifer RAMOS, Respondent and Appellant.

#29308

Supreme Court of South Dakota.

ARGUED APRIL 27, 2021
OPINION FILED March 23, 2022


CASSIDY M. STALLEY, N. DREW SKJOLDAL of Lynn, Jackson, Shultz, & Lebrun, P.C., Rapid City, South Dakota, Attorneys for petitioner and appellee.

STEPHEN J. WESOLICK of Aspen Legacy Planning/Wesolick Law Firm, Rapid City, South Dakota, MARIAH C. BLOOM, Rapid City, South Dakota, Attorneys for respondent and appellant.

DEVANEY, Justice

¶1.] Black Hills Advocate, as James Bruggeman's guardian and conservator, petitioned for a protection order against Jennifer Ramos alleging Bruggeman is a vulnerable adult and was subject to vulnerable adult abuse by Ramos. After a hearing on the petition, the circuit court determined that Bruggeman is a vulnerable adult and found by a preponderance of the evidence that Ramos neglected and financially exploited Bruggeman while she was his caretaker and was entrusted with his property. Ramos appeals, asserting multiple issues. We affirm.

Factual and Procedural Background

[¶2.] Bruggeman and Ramos have known each other since Ramos was nine or ten years old. Ramos testified that she first met Bruggeman when he was trying to help her mother become sober. She also testified that when she was approximately twelve years old, Bruggeman became her temporary guardian because her mother was incarcerated. Ramos considered Bruggeman to be like family to her; however, there was a period of time when she did not have regular contact with him. According to Ramos, Bruggeman had raped her when she was approximately fourteen

[972 N.W.2d 497

years old, and in 2002, she obtained a protection order against him. Nevertheless, Ramos further testified that she "never really stopped talking to him" and ultimately forgave him. The two remained close, and she considered him to be the only stable person in her life. He drove her to school, made meals for her, taught her how to drive, purchased vehicles for her, helped her get sober, and cared for her as a father would care for a daughter.

¶3.] In 2011, when Bruggeman was 66 years old, he was diagnosed with vascular dementia after going to the Veteran's Administration (VA) emergency department reporting confusion and disorientation. The VA note from the visit indicated that Bruggeman previously had a stroke and a coronary artery bypass. In 2011, he was living on his own, but his close friends, including Ramos, were helping him with administering medication, paying bills, preparing meals, shopping, etc. Bruggeman, a veteran, was recommended for a dementia clinic referral and a referral for home health services. By January 2012, Ramos took over as Bruggeman's primary caregiver.

[¶4.] In June 2012, Bruggeman appointed Ramos to be his attorney-in-fact upon his disability or incapacity under a power of attorney. In the same document, Bruggeman designated Ramos as his agent to make healthcare decisions for him if he became unable to speak for himself. Also in 2012, Bruggeman executed a new will naming Ramos as personal representative and leaving his entire estate to her. Bruggeman was not married and did not have any children of his own. Ramos testified that she did not know of the various appointments or the will until around 2013.

[¶5.] In October 2012, Bruggeman purchased a residential property (Union Street property) for Ramos and her children. Ramos was married at the time but claimed that she was getting a divorce and that Bruggeman wanted her and her children to have a place to live. She also asserted that although only Bruggeman's name was on the mortgage and deed, she paid the mortgage on the property. When asked from which account she made the mortgage payments, Ramos testified that the mortgage payments were automatically withdrawn from Bruggeman's account, but she claimed that she transferred her own money to his account for the mortgage payments. She further testified that she believed Bruggeman's bank account was hers as well because Bruggeman had put her name on this bank account and allowed her to spend money from the account for her needs. The bank records entered into evidence at the hearing by Black Hills Advocate do not reflect that transfers were made from an account owned by Ramos to cover the mortgage payments, and Ramos did not offer any bank records of her own.

[¶6.] In May 2014, the VA recommended to Ramos that Bruggeman receive a higher level of care because he had fallen, he had consistently forgotten to take his medications, and he was struggling to bathe himself. In response, Ramos decided to convert a small garage at the Union Street property into an apartment for Bruggeman. Ramos testified that she chose this option rather than move him into an assisted living center because Bruggeman wanted to continue to live independently. She explained that while Bruggeman lived in that apartment, she took care of everything for him—she helped him shower, made all his meals, paid his bills, and administered his medications. She also testified that she had placed a baby monitor in the apartment to hear if Bruggeman needed assistance.

[¶7.] To assist the VA in delivering medical care to Bruggeman, the VA had

[972 N.W.2d 498

him undergo a cognitive evaluation. In January 2015, Dr. Michael Huxford met with Bruggeman and Ramos. As a result of his evaluation, Dr. Huxford opined that Bruggeman suffered from an "impairment in cognitive functioning, specifically in areas of attention and working memory." In February 2015, the VA assessed his new living arrangement. The VA note documenting the visit related that there had been previous discussions with Ramos about a lack of follow-through from her on matters related to Bruggeman's care. The note also documented that during the meeting, Ramos expressed a commitment to caring for him, and the VA decided to continue to provide home health support.

¶8.] In July 2015, Dr. Huxford performed a neuropsychology examination on Bruggeman. He observed that Bruggeman's current level of cognitive functioning was consistent with his neuropsychological results from his 2013 evaluation, but also observed a noticeable decline in his story recall. Dr. Huxford opined that consistent with the 2013 evaluation, Bruggeman demonstrated impaired cognitive functioning, specifically in the areas of attention and working memory. Dr. Huxford diagnosed him with mild vascular neurocognitive disorder.

[¶9.] In December 2016, Bruggeman underwent additional neurocognitive testing. The note following the examination indicated that the consultation was requested by his primary care provider because of potential worsening cognition and increased behavioral difficulties. The note also mentioned that his caregiver indicated that Bruggeman had been "financially exploited by a silver/gold collector" in excess of $10,000. Dr. Huxford noted that his examination of Bruggeman indicated that his cognitive abilities seemed to be worsening. Dr. Huxford diagnosed him with major neurocognitive disorder due to vascular etiology with behavioral disturbance. He also determined that because of Bruggeman's impaired abilities, recent poor financial judgment, disorientation and confusion, and increased impulsivity and inhibition, it was "clear that his capacities to function on some independent level are not possible." Dr. Huxford recommended that he be referred to neurology rehabilitation services and that he remain "physically and mentally active and engage in social activities ... shown to preserve and promote cognitive health ... under the consultation of his primary health provider and supervision of his primary caregiver."

[¶10.] Dr. Huxford discussed his findings with Ramos, and in April 2017, a VA social worker strongly recommended to Ramos that Bruggeman receive 24-hour care and supervision. The VA note documenting the social worker's recommendation noted a concern about Ramos's ability to manage his needs given her work and other family obligations. Further, although Ramos had the power to make health care decisions for Bruggeman, the VA social worker noted that "there is a relationship dynamic between the two of them that impairs her ability to make the best decision for [his] care." The VA note documenting the recommendation also noted that although 24-hour care and supervision had "not been [his] wish," the social worker was concerned "about [his] capacity to make that decision." The social worker told Ramos that his living situation was "not ideal" and the VA might "not continue to provide services as it enables him to remain in less than desirable conditions." The note further documented that Ramos declined additional support services (e.g., home bath aide, homemaking care, and Meals on Wheels) despite Bruggeman's agreement to use the services. According to the VA note, Ramos agreed to attend a meeting to discuss living arrangement options.

[972 N.W.2d 499

[¶11.] In May 2017, Ramos informed the VA that she did not intend to follow through with its placement recommendation of nursing home care. According to the VA's notes, Ramos stated that to do so would have a negative financial impact on her and her children. She told the VA that she and Bruggeman had commingled their assets and that his name was on her home loan and title. She claimed that placing him in long-term care would mean she would lose the...

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2 practice notes
  • Ehlebracht v. Crowned Ridge Wind II, LLC, #29610
    • United States
    • Supreme Court of South Dakota
    • 23 March 2022
    ...view "that the right to maintain a nuisance is an easement." 584 N.W.2d at 315. Therefore, eliminating that right through a legislative [972 N.W.2d 492 grant of nuisance immunity, the court reasoned, is a taking.[¶51.] But the decision in Bormann appears to be an outlier. We have never rega......
  • Murphey v. Pearson, 29766-PJD
    • United States
    • Supreme Court of South Dakota
    • 19 October 2022
    ...'we give due regard to its opportunity to observe the witnesses and the 10 evidence first hand.'" Bruggeman v. Ramos, 2022 S.D. 16, ¶ 51, 972 N.W.2d 492, 509-10 (citation omitted). From our review of the evidence, the circuit court did not err in finding that there was no implied agreement ......
1 cases
  • Ehlebracht v. Crowned Ridge Wind II, LLC, #29610
    • United States
    • Supreme Court of South Dakota
    • 23 March 2022
    ...view "that the right to maintain a nuisance is an easement." 584 N.W.2d at 315. Therefore, eliminating that right through a legislative [972 N.W.2d 492 grant of nuisance immunity, the court reasoned, is a taking.[¶51.] But the decision in Bormann appears to be an outlier. We have never rega......

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