Debra R. v. Jill G. (In re Jill G.)

• Citation: 312 Neb. 108,977 N.W.2d 913
• Decision Date: 29 July 2022
• Docket Number: S-21-586.
• Parties: IN RE GUARDIANSHIP OF JILL G., an incapacitated person. Debra R., appellant, v. Jill G., appellee.
• Court: Supreme Court of Nebraska

312 Neb. 108

977 N.W.2d 913

IN RE GUARDIANSHIP OF JILL G., an incapacitated person.Debra R., appellant,

v.Jill G., appellee.

No. S-21-586.

Supreme Court of Nebraska.

Filed July 29, 2022

Andrew Schill, of Legal Aid of Nebraska, for appellant.

James Walter Crampton, Omaha, for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

Miller-Lerman, J.

NATURE OF CASE

Debra R., the appellant, sought to have the Office of Public Guardian appointed as guardian over her daughter, Jill G., the appellee. The county court for Douglas County ultimately dismissed the petition for appointment of a guardian without prejudice. Debra appeals. She contends that a report created by the guardian ad item (GAL) pursuant to Neb. Rev. Stat. § 30-4205 (Reissue 2016) should have been admitted into evidence and that in combination with the testimony of the GAL, the evidence would support creation of a guardianship over Jill. We conclude that exclusion of the report was not error and accordingly affirm.

STATEMENT OF FACTS

Jill is the alleged incapacitated person in this matter. In August 2019, Jill was arrested for trespassing and destroying property in a church. She remained in the Douglas County jail until August 2020, when she was released to a recovery center. Thereafter, Debra petitioned to have the Office of Public Guardian appointed as guardian over Jill. The county court appointed Debra as temporary guardian and appointed a GAL and separate counsel for Jill.

On May 17, 2021, the GAL filed a notice of availability of a report (sometimes referred to herein as "the GAL report"). The GAL report at the center of this appeal consisted of eight pages and was supported by an affidavit. Attached to the report were approximately 80 pages of information and material obtained by the GAL pursuant to Neb. Rev. Stat. § 30-4204 (Reissue 2016) regarding, inter alia, Jill's medical history. Trial was held on June 15.

At trial, Debra testified to Jill's medical history and diagnoses. She described a cycle of Jill's taking medications, improving, ceasing medication, and then returning to a medical facility.

The GAL testified that she conducted an investigation of Jill, which included phone conversations with Jill; a document review, including over 80 pages of medical records; and a report from Jill's medical provider concerning the seven areas relevant to a guardianship. The GAL testified that, based on her investigation summarized in her report, she recommended Jill have a guardian. She stated that the written eight-page GAL report was her business record of her investigation and that it was supported by an affidavit. At several points during the hearing, Debra offered the GAL report, including the attached informational documents as evidence, but each time, the court sustained Jill's objections on the basis that the statements were hearsay and lacked foundation. The court also declined to take judicial notice of the GAL report. At no time did Debra offer the GAL report and informational material attached thereto separately.

Jill testified at trial that she did not want to have a guardianship. She testified that a previous guardianship had been dismissed in early 2018 and that she was taking medications daily. She testified she was living in the home of her deceased aunt and fixing up the house. Her father paid for utilities and gave her a vehicle. She testified that she would continue to take care of herself without a guardian.

On June 15, 2021, the county court entered a journal entry that granted Jill's motion to dismiss because Debra had failed to make a prima facie case for appointment of a permanent guardian.

ASSIGNMENTS OF ERROR

Debra assigns, summarized and restated, that the county court erred when it failed to admit the GAL report into evidence and when it dismissed her petition for appointment of a guardian for Jill.

STANDARDS OF REVIEW

An appellate court reviews probate cases for error appearing on the record made in the county court. In re Guardianship & Conservatorship of J.F. , 307 Neb. 452, 949 N.W.2d 496 (2020). 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. Id.

Statutory interpretation is a question of law, which an appellate court resolves independently of the trial court.

In re Estate of Larson , 311 Neb. 352, 972 N.W.2d 891 (2022).

ANALYSIS

Debra argues that the GAL report was improperly excluded from evidence, because the GAL statutes revised in 2016 show "clear intent of allowing both the report of the GAL and the fruits of the GAL's investigation into evidence." Brief for appellant at 11. Debra contends that by statute, the county court was obligated to admit the GAL report for the purpose of evaluating the question of creating a guardianship, and that the report was material. We conclude that the county court correctly analyzed the GAL report as inadmissible hearsay, and thus, we affirm.

Several relevant statutes, including the GAL statutes amended in 2016, Neb. Rev. Stat. §§ 30-4201 to 30-4210 (Reissue 2016), control our analysis. Consistent with §§ 30-4201 to 30-4210, in a guardianship proceeding, the court may appoint a GAL to advocate for the best interests of the person alleged to be incapacitated. Neb. Rev. Stat. § 30-2619(b) (Reissue 2016). A GAL appointed pursuant to the Nebraska Probate Code must be an attorney in good standing admitted to the practice of law in the State of Nebraska and meet any other requirements, including training, imposed by the Supreme Court. See § 30-4202(1). Regarding its 2016 amendments, the Legislature explained as follows:

The Legislature finds that it is in the best interests of persons under disability and the public for the authorities and responsibilities of a [GAL] to be expanded to include an objective investigation and assessment of the needs of a person who comes before the court in any guardianship, conservatorship, or other protective proceeding to ensure the protection of the rights of the person who is the subject of the proceeding. The Legislature also finds that the public is benefited from having trustworthy and competent guardians and conservators appointed for incapacitated persons, wards, protected persons, and minors.

§ 30-4201. To this end, the Legislature set forth various expanded duties and powers of a GAL. With respect to the evidentiary issue in this case, a GAL is required to, inter alia, investigate, gather information regarding, and make an assessment of the condition of the person for whom he or she has been appointed to represent and report to the court the condition of such person. See § 30-4203(1)(b). The written report addresses whether the person for whom the guardianship is sought is an incapacitated person, and it further addresses the scope of a limited guardianship or why a full guardianship is necessary to protect the best interests of the incapacitated person. See § 30-4205.

Section 30-4204 provides the statutory authority for the GAL to obtain certain information, informally or by subpoena, about the person for whom the GAL has been appointed, including "report[s] from any medical provider, provider of psychological services, law enforcement, adult protective services agency, or financial institution; and ... 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." Of particular interest in this appeal is the concluding provision in § 30-4204, which states that "[a ]ny material obtained by a [GAL ] pursuant to this section is admissible in evidence. " (Emphasis supplied.) Debra relies primarily on this provision of § 30-4204 pertaining to gathered materials as the basis of her claim that the GAL report which the GAL authored should have been admitted into evidence. We do not agree with Debra's reading of the statute.

Historically, in other contexts, we have observed that GAL reports are hearsay and, whether in written form or testimony by the GAL, are subject to the rules of evidence. We have stated that " ‘a report is not somehow made admissible because it was prepared by a [GAL] appointed by a court pursuant to a statute.’ " Betz v. Betz , 254 Neb. 341, 347, 575 N.W.2d 406, 410 (1998). We have applied the principle that in the absence of admissibility authorized by the Nebraska Evidence Rules or by other statute as a nonhearsay statement or statements otherwise exempted or excluded from the operation or purview of the "hearsay rule," Neb. Rev. Stat. § 27-802 (Reissue 2016), a hearsay statement will be excluded. See, generally, State v. McCurry , 296 Neb. 40, 891 N.W.2d 663 (2017). See, also, Heistand v. Heistand , 267 Neb. 300, 673 N.W.2d 541 (2004).

Debra contends that the GAL statutes set forth above create a statutory exception to the rules of evidence, rendering the GAL report admissible into evidence. We do not...