Hewick v. Kim

• Decision Date: 20 August 2021
• Docket Number: 1144-2020
• Court: Court of Special Appeals of Maryland
• Parties: WALTER HEWICK v. JANICE KIM

WALTER HEWICK v. JANICE KIM

No. 1144-2020

Court of Special Appeals of Maryland

August 20, 2021

Circuit Court for Howard County Case No. C-13-FM-19-002020

Fader C.J., Kehoe, Eyler, Deborah S. (Senior Judge, Specially Assigned), JJ.

OPINION ^[*]

KEHOE J.

By order entered November 13, 2020, the Circuit Court for Howard County appointed Janice Kim, as guardian of her mother, Jai Seong Cho Hewick, ^[1] for the limited purpose of authorizing Ms Kim to relocate Dr. Hewick to Toronto, Canada, where Ms. Kim lives. The court also granted Ms. Kim's request that some of her attorneys' fees incurred in the guardianship matter be paid from Dr. Hewick's funds.

Appellant Walter Hewick, Dr. Hewick's spouse, timely appealed the judgment of the circuit court and presents three issues, which we have reworded:

1. Did the trial court err by admitting hearsay testimony of Dr. Hewick's court-appointed counsel and unsupported factual assertions by Ms. Kim, while not allowing relevant argument and admission of proper evidence by Mr. Hewick?

2. Did the trial court err by granting guardianship to Ms. Kim for the limited purpose of authorizing the potential removal of Dr. Hewick from a continuing care facility in Howard County?

3. Did the trial court err by granting attorneys' fees to Ms. Kim?^[2]

For the reasons set forth below, we will affirm the court's judgment orders.

Background

In June 2019, Dr. Hewick, an 80-year-old retired physician, suffered a stroke that left her physically and cognitively impaired. One of the effects of the stroke is that Dr. Hewick lost much of her ability to communicate in English although she can still do so in her first language, Korean. Ms. Kim is Dr. Hewick's daughter and speaks Korean. Mr. Hewick does not. Since the stroke, Dr. Hewick has resided in nursing care facilities, most recently the Ellicott City Health Center in Howard County. Prior to her stroke, Dr. Hewick executed durable powers of attorney for financial purposes and for health care, designating Ms. Kim as her agent for both.^[3]

On October 29, 2019, Ms. Kim filed a petition in the circuit court asking to be appointed as guardian of Dr. Hewick's person and property. Ms. Kim asserted that Dr. Hewick was unable to make or communicate responsible decisions concerning her property, affairs, and personal matters.^[4] According to Ms. Kim, Dr. Hewick was "dependent on others for all activities of daily living. She needs 24-hour care."

In her petition, Ms. Kim asserted that Mr. Hewick had not provided the Ellicott City Health Center with Dr. Hewick's health insurance or social security cards and refused to pay for the rehabilitation required after her stroke, causing Ms. Kim to worry that Dr. Hewick's insurance would be cancelled and she would be discharged involuntarily from the nursing care facility. Ms. Kim alleged that she had been paying Dr. Hewick's medical costs out of her own pocket and that she was the appropriate person to serve as Dr. Hewick's guardian of the person and property. Ms. Kim asserted that no less restrictive alternative to guardianship of Dr. Hewick's person was available.

Mr. Hewick opposed Ms. Kim's appointment as Dr. Hewick's guardian. He alleged that Ms. Kim had inappropriately withdrawn funds from Dr. Hewick's bank accounts.^[5]

Dianna Myers, Esquire, Dr. Hewick's court-appointed attorney, asked the court to exercise its authority pursuant to Maryland Rule 10-106.2, ^[6] and appoint an independent investigator to assess the substance of the mutual allegations of financial chicanery. The court did so. The investigator's report to the court stated that she found no evidence that Ms. Kim had "engaged in self-dealing" in her handling of Dr. Hewick's financial transactions or that Mr. Hewick had exploited Dr. Hewick's accounts for his own benefit.

In April 2020, the circuit court ordered that all expense payments issued from Dr. Hewick's accounts-including attorneys' fees related to the guardianship matter-were to be approved by the court. In accordance with the court's order, Ms. Kim filed a petition for payment of her attorneys' fees, in the approximate amount of $28, 000, from Dr. Hewick's funds. Mr. Hewick opposed the use of Dr. Hewick's funds for Ms. Kim's legal fees, asserting that the fees were excessive and unreasonable and that Ms. Kim had already paid her attorneys approximately $20, 000 from Dr. Hewick's funds without approval from the court. The court granted Ms. Kim's petition for attorneys' fees on June 25, 2020.

On August 18, 2020, Ms. Kim filed an amended guardianship petition. She explained that it was her intention to move Dr. Hewick closer to Ms. Kim's home in Canada. Therefore, "in lieu of appointment of guardian of the person," Ms. Kim asked the court to consider "as a least restrictive alternative, that an order be issued providing that [Ms. Kim] is the health care decision maker for" Dr. Hewick, with the authority to relocate Dr. Hewick away from the Ellicott City Health Center.

On November 13, 2020, the court conducted a contested guardianship hearing, confined to the issue of limited guardianship for the purpose of authorizing Dr. Hewick's relocation.^[7] Ms. Myers, Dr. Hewick's attorney, advised the court that her client had expressed a desire to move to Canada to be closer to her daughter.

Ms. Kim contended that it was in Dr. Hewick's best interest to be moved to a family home setting rather than remain in an institution where she was deteriorating rapidly, partially due to COVID-19 lockdowns, and vulnerable to contracting the virus. Ms. Kim explained that she had retrofitted her basement into an handicapped accessible apartment for her mother and was then searching for an appropriate full-time caregiver. Ms. Kim estimated that Dr. Hewick's resources would be sufficient to provide for her care, but if Dr. Hewick's funds were depleted before her death, Ms. Kim said she would use her own money to care for her mother.

Mr. Hewick's attorney argued that because the Ellicott City Health Center was an appropriate residence for Dr. Hewick, the court should continue her placement there as a less restrictive form of intervention than guardianship. Counsel asserted that there was no statutory authority, nor demonstrated need, for the court to grant Ms. Kim's request to remove Dr. Hewick from her placement.

After an evidentiary hearing, the court made factual findings and ruled as follows:

I think under the circumstances . . . we have the opportunity to remove a person from an institutional setting during [the] COVID crisis and place her with family who has demonstrated, as Ms. Kim has demonstrated, the ability to make good healthcare decisions, the willingness to make good healthcare decisions, including spending significant amounts of her own money to assure that her mother is receiving the proper healthcare, I do find a demonstrated need. Her life is in danger in that facility just as every person who is in a nursing home facility life is in danger under [the] current circumstances. And the opportunity for her to spend her remaining years with family, particularly since she's no longer speaking English, and to be with a Korean-speaking family member, which unfortunately Mr. Hewick is not able to offer her. He hasn't come forward with a plan for bringing her home and it doesn't seem like, in light of all of the circumstances, that that would even be a practical plan if he did.

Ms. Kim has what she needs to make the other decisions. She needs an order of this Court to have the ability to make the decision of whether to relocate. She certainly has the ability to change the level of care as the healthcare surrogate. And she's demonstrated to this Court that she has already taken steps and already spent her own money outfitting her house and investigating the details that she will need to do.

So . . ., I am convinced that Ms. Kim is a proper person to make this decision and that it indeed would be in the respondent's best interest for her to be able to make that decision. The Court doesn't make that decision for Ms. Kim. The Court gives her the authority to make that decision because as circumstances change, it may become impractical. Circumstances may change but you have the ability to make that decision, Ms. Kim. I will pass the order with the guardianship for the limited purpose of relocating the ward to your home, if and when that's ever possible.

The circuit court then entered an order appointing Ms. Kim as Dr. Hewick's guardian "for the limited purpose of authorizing the potential relocation of [Dr. Hewick]." Mr. Hewick timely filed a notice of appeal.

The Standard of Review

In reviewing whether a circuit court properly decided to appoint a guardian for an adult, we adopt a tri-partite and interrelated standard of review. Factual findings will be reviewed for clear error, while purely legal determinations will be reviewed without deference, unless the error be harmless. As to the ultimate conclusion of whether an adult guardianship is appropriate, the circuit court's decision will not be disturbed unless there has been a clear abuse of discretion.

In the Matter of Meddings, 244 Md.App. 204, 220 (2019) (cleaned up).

Analysis

1. The evidentiary issues

Mr Hewick first contends that the circuit court erred in: (1) permitting Dr. Hewick's attorney to inform the court at the guardianship hearing that Dr. Hewick had expressed her desire to move to Canada to be closer to her daughter because the statement was inadmissible hearsay; (2) accepting Ms Kim's testimony that "provided a vague run down of renovations" she had made to support her argument that Dr. Hewick would have a safe place to live in Canada and that offered "unsupported statements regarding mortality rates of nursing home...