In re Guardianship and Cons. of Fischer, 24631.

• Decision Date: 18 June 2008
• Docket Number: No. 24631.,24631.
• Citation: 752 N.W.2d 215,2008 SD 51
• Parties: GUARDIANSHIP AND CONSERVATORSHIP OF Dennis P. FISCHER, A person alleged to need protection.
• Court: South Dakota Supreme Court

752 N.W.2d 215

2008 SD 51

GUARDIANSHIP AND CONSERVATORSHIP OF Dennis P. FISCHER, A person alleged to need protection.

No. 24631.

Supreme Court of South Dakota.

Considered on Briefs on April 21, 2007.

Decided June 18, 2008.

Drew C. Johnson, Aberdeen, South Dakota, Attorney for appellant Andrew Fischer.

Christy Griffin Serr, Aberdeen, South Dakota, Attorney for appellee Shirley A. Johnson a.k.a. Shirley A. Fischer.

SABERS, Justice.

[¶ 1.] Shirley A. Johnson (a.k.a. Shirley Fischer) petitioned to have her ex-husband, Andrew Fischer, removed as co-guardian and co-conservator of their twenty-three year old son, Dennis. The circuit court granted the petition removing Andrew. We affirm.

FACTS

[¶ 2.] In 2002, Shirley and Andrew were appointed co-guardians and co-conservators of their son, Dennis. At the time Dennis was eighteen years old. He is developmentally disabled, has a seizure disorder, cataracts, is legally blind, has limited reading and writing ability, mild hearing loss and is in need of supervision.

[¶ 3.] Shirley, Andrew and Dennis decided that it would be best for Dennis to reside in an Adjustment Training Center (ATC) facility in Aberdeen, South Dakota. They wanted Dennis to learn to live as independently as possible. Dennis moved into an ATC apartment. He had a job through ATC and, in addition to vocational services, ATC provided other services such as housing, physical therapy, recreation, nursing and employment options in the community.

[¶ 4.] Over the next few years, Andrew had many concerns about the treatment Dennis was receiving from ATC. Andrew would continually call doctors regarding Dennis' care and complain about the quality of services provided to Dennis. According to an ATC worker's testimony, Andrew would tell ATC employees how and when drugs should be administered. When the ATC employee explained that was against policy or doctor's orders, he would call the doctor repeatedly in an attempt to get the directions "clarified" or outright changed. Andrew would yell at the staff. If unsatisfied with something, Andrew would write to the Attorney General and Brown County State's Attorney's Office asking ATC be investigated.¹ Additionally, Andrew would continually take Dennis out of town for three to four days at a time, interfering with his job.

[¶ 5.] Eventually, the problems created a breaking point for ATC and a meeting was held in March of 2006, with ATC services coordinator Dana Spellman, ATC Director Rob Wanous, Services Coordination Director Arlette Keller, Shirley and Andrew. During this meeting Spellman explained that there were too many conflicts between Andrew and ATC. There was a conflict between how Shirley and Andrew wanted Dennis to live. Shirley supported Dennis learning to live as independently as possible, while Andrew wanted to micromanage everything and really wanted Dennis to live at home with him. Due to the conflicts, ATC informed Shirley and Andrew that Dennis could no longer reside at ATC, but it would continue to provide vocational services during the day.² Spellman explained that it was not in Dennis' best interest to leave the residency program, but it was in the agency's best interest because of Andrew's actions.

[¶ 6.] Shirley petitioned for termination of Andrew's guardianship and conservatorship of Dennis. A hearing was held on May 7, 2007. At the conclusion of the hearing, the circuit court found that Andrew may believe he has Dennis' best interest at heart, but his actions and the results are not in Dennis' best interest. Therefore, under SDCL 29A-5-504(12), the circuit court terminated Andrew's guardianship and conservatorship because Andrew was not acting in the best interest of Dennis' even though without fault.³ Andrew appeals raising the following issue:

Whether the circuit court abused its discretion in removing Andrew as co-guardian and co-conservator of Dennis.

STANDARD OF REVIEW

"In guardianship proceedings, the trial court's findings of fact are reviewed under the `clearly erroneous' standard." Guardianship of Larson, 1998 SD 51, ¶ 13, 579 N.W.2d 24, 27 (citing In re Guardianship of Viereck, 411 N.W.2d 102, 106 (S.D.1987) (citing SDCL 15-6-52(a))). According to this test, "[w]e will not overturn the trial court's findings unless, after reviewing all the evidence, we are left with a definite and firm conviction that a mistake was made." Id. (citing Wiggins v. Shewmake, 374 N.W.2d 111, 114 (S.D. 1985)).

In re Guardianship & Conservatorship of Miles, 2003 SD 34, ¶ 11, 660 N.W.2d 233, 236. We will not reverse the termination of a guardian or conservatorship unless the decision was an abuse of discretion. See In re Guardianship of Blare, 1999 SD 3, ¶ 9, 589 N.W.2d 211, 213 (additional citation omitted).

[¶ 7.] Whether the circuit court abused its discretion in [removing] Andrew as co-guardian and co-conservator of Dennis.

[¶ 8.] First, Andrew argues that the circuit court did not make findings or conclusions as required by SDCL 15-6-52(a). "Generally, the failure to file findings of fact and conclusions of law constitutes reversible error." Toft v. Toft, 2006 SD 91, ¶ 11, 723 N.W.2d 546, 550 (citing Grode v. Grode, 1996 SD 15, ¶ 29, 543 N.W.2d 795, 803). "However, we have also noted that an appellate court may remand for findings, or, because findings are not jurisdictional, `an appellate court may decide the appeal without further findings if it feels it is in a position to do so.'" Id. (quoting Hoffman v. Olsen, 2003 SD 26, ¶ 10, 658 N.W.2d 790, 793 (quoting Ridley v. Lawrence County Com'n, 2000 SD 143, ¶ 13, 619 N.W.2d 254, 259)) (additional citations omitted).

[¶ 9.] It is unnecessary to remand for further findings in this case. While the circuit court did not file separate findings of fact and conclusions of law, it did enumerate some findings and conclusions in its order terminating co-guardianship and co-conservatorship and appointment of sole guardian and conservator. The order in relevant part provides:

Upon consideration of the Petition for Termination of Co-Guardianship and Co-Conservatorship, the [c]ourt finds:

1. The court heard the testimony and received the documents on file and finds that the notice has been properly served upon Dennis P. Fischer, Andrew Fischer, Shirley Johnson and otherwise given to all interested persons.

2. The co-guardianship and co-conservatorship was terminated due to the inability of the co-guardians and co-conservator's to arrive at decisions regarding the health and well being of Dennis P. Fischer.

3. Good cause has been shown for the termination.

4. That it would be in the best interest of Dennis P. Fischer that Shirley Johnson be appointed the sole guardian and conservator of Dennis P. Fischer.

Furthermore, the circuit court issued its decision at the end of the hearing and the record contains other findings and conclusions regarding the decision. Accordingly, the record is sufficient to consider this appeal.

[¶ 10.] Andrew argues that the circuit court abused its discretion because he and Shirley got along fine; it was only his problem with ATC that was in issue and ATC is not the co-guardian. Furthermore, Andrew argues that termination of his guardian and conservatorship is akin to terminating his parental rights. He urges this Court to interject the parental termination standard into a guardian and conservatorship proceeding and find that termination was not the least restrictive alternative. He argues that "[s]ince the other avenues pointed out [in his brief] were not pursued, it was the failure to exhaust those potential remedies that strikes at the heart of [Andrew's] argument."

[¶ 11.] Shirley argues that that circuit court did not abuse its discretion because it is in Dennis' best interest to remove Andrew as the co-guardian and co-conservator. She argues that Dennis should stay in Aberdeen, SD around friends and family, in a familiar setting. Yet, ATC is the only facility available that can help Dennis be independent and ATC will not allow Dennis to live there while Andrew is the co-conservator. ATC will allow Dennis to resume residential treatment if Shirley is the only conservator.⁴

[¶ 12.] The record indicates that the circuit court did not abuse its discretion. First, we refuse to use a parental termination standard in a termination of guardianship/conservatorship. The plain language of the statutes is clear and we follow the standard set forth for guardian and conservator proceedings. Second, the testimony reflects that Andrew, while having good intentions, was not...