Kennedy v. Kennedy (In re Kennedy)

• Decision Date: 18 April 2014
• Docket Number: No. 13–0505.,13–0505.
• Citation: 845 N.W.2d 707
• Parties: In the Matter of the GUARDIANSHIP and Conservatorship OF Stuart KENNEDY (Involuntary). Stuart Kennedy, Appellant, v. Maria Kennedy, Appellee.
• Court: Iowa Supreme Court

845 N.W.2d 707

In the Matter of the GUARDIANSHIP and Conservatorship OF Stuart KENNEDY (Involuntary).
Stuart Kennedy, Appellant,
v.
Maria Kennedy, Appellee.

No. 13–0505.

Supreme Court of Iowa.

April 18, 2014.

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William L. Bushell of Bushell Law Firm, Des Moines, for appellant.

John H. Judisch of Stuyvesant & Benton, Carlisle, for appellee.

Rita Bettis and Randall C. Wilson, Des Moines, for amicus curiae ACLU of Iowa, and Cynthia A. Miller, Des Moines, for amicus curiae Disability Rights Iowa.

MANSFIELD, Justice.

This case presents the question whether a mother who serves as her intellectually disabled adult son's guardian must obtain court approval before arranging a vasectomy for him. We conclude the relevant statute requires court approval. However, we do not disturb the orders entered by the probate court that declined to terminate the mother's guardianship and also appointed her conservator.

I. Factual and Procedural Background.

Stuart Kennedy is a twenty-one-year-old man with significant intellectual disabilities who lives in a group home. The home is staffed around the clock. The staff help Stuart with various daily tasks, such as time management, finances, and transportation. Stuart has made progress at the group home and, for example, is able to prepare simple meals for himself. Stuart receives SSI benefits as well as $700 to $800 a month from a job at Sam's Club.

In late 2009, after Stuart turned eighteen, his mother Maria Kennedy was appointed as his guardian. The guardianship continued. In late 2012 or early 2013, Maria became concerned that Stuart was involved in a relationship with Annamarie Jalali, a coworker at Sam's Club. Stuart admits he told his mother that he and Jalali were having sex, although at the subsequent court hearing, both Stuart and Jalali denied they were anything more than friends. Stuart also provided money to Jalali to cover certain of her expenses. In addition, Jalali took Stuart to a credit union to open a bank account.

In January 2013, Stuart filed a handwritten petition to terminate the guardianship, alleging among other things that his mother was “too control [l]ing of my life and my money.” Maria in turn filed a petition for appointment of an involuntary conservator for Stuart and a petition for an injunction against Jalali, seeking a court order that she not have further contact with Stuart.

Before these matters could be heard, on February 18, 2013, Maria took Stuart to a doctor's office to get a vasectomy. Maria contends that Stuart was in favor of the procedure and that it had been discussed and agreed to. Stuart, however, disputed that he had wanted the vasectomy. On February 21, 2013, Stuart's attorney filed a further petition to terminate or modify the guardianship reciting that “the Guardian forced the Ward to undergo forced sterilization.”

A combined hearing on the petitions was held on February 27, 2013. Maria, Stuart, and Jalali all appeared through counsel and each of them testified. The court also received letters from Stuart's regular physician (not the individual who performed the vasectomy) and from Stuart's case manager. One subject of the hearing was whether Maria had violated

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Iowa Code section 633.635(2)( b ) by arranging for Stuart's vasectomy without court approval. Iowa Code § 633.635(2)( b ) (2013). Evidence was also presented at the hearing that when law enforcement recently went to Jalali's home to look for Stuart, Jalali had refused to answer her door or inform them of Stuart's whereabouts. Additionally, Jalali and Stuart had discussed Stuart renting out her basement in exchange for Stuart paying half the rent.

At the conclusion of the hearing, the probate court declined to terminate Stuart's guardianship. It reasoned that Stuart continued to be in need of a guardian and that Maria was a qualified and suitable person to continue to serve as his guardian. The court further found that Maria had not violated section 633.635(2)( b ) because the vasectomy was not “major elective surgery.” Even if Maria had violated section 633.635(2)( b ), the court added,

[Maria] did not make such arrangement or provide assistance out of malice or some other evil intent or purpose, but did so as a result of her desire to care for her son and do what is in his best interest and as such, this Court would still find that Stuart remains in need of a Guardian and Maria Kennedy should not be removed as Guardian for Stuart Kennedy.

The court also ordered Maria's appointment as Stuart's conservator. Finally, the court entered an injunction against Jalali having contact with Stuart until March 2014, finding she had

taken advantage of Stuart Kennedy as a result of his significant intellectual disabilities and inability to make, communicate, or carry out important decisions concerning his own financial affairs and has done so to her pecuniary gain and to the financial detriment of Stuart.

Stuart appealed the orders appointing his mother as conservator and refusing to terminate the guardianship. He did not appeal the injunction against Jalali. Throughout this appeal, Stuart has maintained the probate court erred in finding the vasectomy was not major elective surgery or a nonemergency major medical procedure requiring prior court approval. However, at oral argument Stuart's attorney indicated that Stuart was no longer seeking to alter the guardianship or the conservatorship. At this point, he simply wants a ruling that prior court approval should be required for the sterilization of a male ward.

II. Standard of Review.

Actions to terminate guardianships are equitable in nature, and thus our review is de novo. Iowa Code § 633.33; In re Guardianship of B.J.P., 613 N.W.2d 670, 672 (Iowa 2000). We give weight to the factual findings of the probate court, but we are not bound by them. In re Guardianship of Stewart, 369 N.W.2d 820, 822 (Iowa 1985). Actions to appoint conservators, however, are tried at law. Iowa Code § 633.33. Therefore, the review is for errors at law. In re Conservatorship of Deremiah, 477 N.W.2d 691, 692 (Iowa Ct.App.1991).

III. Legal Analysis.

A. Motion to Dismiss Appeal. As a threshold matter, we must address Maria's motion to dismiss Stuart's appeal. Maria points out that the probate court appointed Stuart's counsel “to represent the interests of the proposed ward throughout the conservatorship proceedings and until such time as an Order Appointing Conservator is filed.” Thus, she contends Stuart's counsel no longer has authority to represent him, such authority having terminated on March 4, when the

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court entered the order appointing her as conservator. She then maintains we should dismiss the appeal because the attorney of record lacks authority to pursue it.

We decline to dismiss the appeal. Maria does not dispute that Stuart is entitled to representation in the conservatorship proceeding, including any appeal from the order appointing her as conservator. SeeIowa Code § 633.575(1)( a ).¹ She does not argue that Stuart should be represented on appeal by somebody else. She also does not dispute that Stuart's counsel filed and served a timely notice of appeal, is actually pursuing the appeal, and has otherwise complied with our procedural requirements. Her only argument is that Stuart's counsel should have obtained an order from the probate court renewing counsel's appointment for purposes of appeal.

We think this argument confuses two things—counsel's ability to represent Stuart and his ability to get paid for doing so. The expiration of the appointment order could affect compensation, since the attorney would no longer be “court appointed.” See id. § 633.575(6) (stating that “if the ward is indigent the cost of the court appointed attorney shall be assessed against the county in which the proceedings are pending” (emphasis added)).² Yet, in our view, it does not impair the attorney's ability to keep representing Stuart if Stuart wants the attorney to stay on and no other counsel has been appointed. SeeIowa Ct. Rule 6.109(4) (“The attorneys and guardians ad litem of record in the district court shall be deemed the attorneys and guardians ad litem in the appellate court unless others are retained or appointed and notice is given to the parties and the clerk of the supreme court.”).

Further, even if we found a violation, this is not a situation where we would lack jurisdiction or authority over the case. Thus, we would typically grant dismissal “only if the alleged infractions are repeated or significant and have resulted in prejudice to another party or the administration of justice.” Iowa Ct. R. 6.1006(1)( a ); see Hanson v. Harveys Casino Hotel, 652 N.W.2d 841, 843 (Iowa Ct.App.2002) (dismissing an appeal because of substantial violations of the appellate rules). We do not find such circumstances here. Accordingly, we deny the mother's motion to dismiss the appeal based on the alleged lack of authority of Stuart's attorney to pursue it.

B. Mootness. The next question we must entertain is whether this appeal is moot. The vasectomy has already occurred, and Stuart no longer asks that Maria be removed as a guardian (or that the conservatorship be overturned) because she arranged for an unauthorized vasectomy. He does, however, continue to challenge the legality of the vasectomy.

An appeal is moot if it no longer presents a justiciable controversy because [the contested issue] has become academic or nonexistent. The test is whether the court's opinion would be of force or effect in the underlying controversy. As a general rule, we will dismiss an appeal when judgment, if rendered,

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will have no practical legal effect upon the existing controversy.

In re M.T., 625 N.W.2d 702, 704 (Iowa 2001) (citations and internal quotation marks omitted). “We do not decide cases when there is no longer any actual controversy, unless we exercise our discretion and decide the case under an exception to the mootness...