Steen-Jorgensen v. Huff, A19A0807

• Decision Date: 30 October 2019
• Docket Number: A19A0807
• Parties: STEEN-JORGENSEN v. HUFF.
• Court: Georgia Court of Appeals

352 Ga.App. 727

835 S.E.2d 707

STEEN-JORGENSEN

v.HUFF.

A19A0807

Court of Appeals of Georgia.

October 30, 2019

Robert W. Hughes Jr., Stone Mountain, for Appellant.

Dewey R. McKenzie Jr., La Grange, for Appellee.

Rickman, Judge.

Rebecca Steen-Jorgensen and her husband petitioned the Troup County Probate Court for the appointment of a guardian and/or conservator for her father, Robert Sydney Brown, Jr., who had been diagnosed with dementia. Toni Kay Huff, Jorgensen’s step-sister, successfully intervened in the proceeding. After the probate court declined to exercise jurisdiction and dismissed the petition, Jorgensen appealed to the Superior Court of Troup County. Following an evidentiary hearing, the superior court also declined to exercise jurisdiction, based on its conclusion that North Carolina, where Robert Brown is currently living, was a more appropriate forum, and dismissed the petition. On appeal to this Court, Jorgensen contends that the trial court erred by issuing an order lacking specific findings of fact so as to allow meaningful appellate review, declining to exercise jurisdiction, and admitting unauthenticated hearsay evidence. For reasons that follow, we vacate the superior court’s order and remand the case with direction.

The record shows that Robert Brown lived in LaGrange, Georgia for almost 50 years. He and his first wife, Jorgensen’s mother, got divorced in the 1990s, and he married his current wife, Deborah, in 2001. Robert and Deborah Brown lived together in LaGrange, Georgia from 1996 until 2017. Jorgensen is Robert Brown’s only child. She grew up in LaGrange, Georgia, but her primary residence is in Florida. She is temporarily living in Charlotte, North Carolina to be near her father.¹ Huff is Deborah Brown’s child from another marriage, and she lives near Charlotte, North Carolina.

During 2017, Deborah Brown’s health began declining, and she needed assistance that family members could not provide. As a result, a decision was made to move her and her husband to a facility where she could get the help that she needed. It is not clear who made the decision that the Browns would move to North Carolina in 2017, but they ultimately moved to a facility that Huff had located, where they initially lived in an apartment in the assisted living section. After Robert Brown drove his golf cart off of the property and got lost on his way back, he was moved to the memory care unit. Huff elected to move her mother into that unit too, but they do not share the same room.

No one informed Jorgensen about the fact that her father had been moved to North Carolina. Huff testified that Robert Brown told her not to mention it to Jorgensen because "she’s a pain in the butt[,] and she makes a mess of everything." When Jorgensen heard a rumor that her father had been moved to North Carolina, she sought to confirm it, ultimately hiring a private investigator, who successfully located him several weeks later. She testified that she did not contact Huff to find out where her father was because she assumed that Huff would have told her if she knew he had moved.

When Jorgensen learned where her father was living, she went to visit him. While there, she discovered that he had created a power of attorney and an Advanced Directive for Health Care, and that Huff, as the alternate appointee under both documents, held his power of attorney and was serving as his health care agent. She testified that the nurse coordinator in her father’s memory care unit told her that she could not give Jorgensen family member access to the facility (she was required to request entry for each visit) or provide her access to her father’s medical records because she was not authorized under the paperwork the facility had been provided. Jorgensen asked Huff about obtaining a card to access the facility and gaining access to medical records, but Huff has not provided either, apart from complying with discovery requests in this proceeding. Based on what she learned and what she observed at the facility, Jorgensen became concerned that Huff was not acting in her father’s best interest but in the best interest of her mother and herself,² and she decided to file a petition for guardianship over her father.

Prior to 2017, Robert and Deborah Brown had discussed the possibility of moving to North Carolina. According to Jorgensen, her father told her in 2016 that he was not moving to North Carolina because his wife and Huff did not get along well enough for them to move. Huff, however, testified that the Browns had been planning to move to North Carolina for many years, had looked at several subdivisions, but could not find a house that they liked. As she was going through her mother’s belongings, Huff found listing information for a house in Marvin, North Carolina and a house in Waxhaw, North Carolina, as well as a home purchase agreement for a house in Waxhaw. Jorgensen’s counsel objected to the admission of the purchase agreement on the ground of lack of foundation. The document was admitted over his objection.

The superior court concluded that jurisdiction was presumptively appropriate in Troup County, Georgia, but that North Carolina was a more appropriate forum to hear this particular case. The court therefore declined to exercise its jurisdiction and dismissed Jorgensen’s petition.

1. Jorgensen contends that the trial court erred by issuing an order that lacks sufficient findings of fact to permit meaningful appellate review.

Article Two of the Georgia Uniform Adult Guardianship and Conservatorship Proceedings Jurisdiction Act, OCGA § 29-11-1 et seq., addresses the issues that may arise when it is unclear which of two or more states has jurisdiction over the imposition of a guardianship or conservatorship. See Radford, Ga. Guardianship and Conservatorship § 4:3 (2019). The Act creates a three-tiered approach to jurisdictional issues, and under that approach, "the state court that may have jurisdiction would be, in order of priority: 1) the court in the respondent’s home state; 2) the court of a state with which the respondent has a significant connection; or 3) a third state that is neither the home state nor a significant-connection state."³ Id.; see OCGA § 29-11-12.

Thus, under the first tier, the ward’s own "home state" has primary jurisdiction to appoint a guardian or conservator for the respondent. See OCGA § 29-11-12 (1) ; Radford, Ga. Guardianship and Conservatorship § 4:3. "Home state" is defined as

the state in which the respondent was physically present, including any period of temporary absence, for at least six consecutive months immediately before the filing of a petition for a conservatorship order or the appointment of a guardian or, if none, the state in which the respondent was physically present, including any period of temporary absence, for at least six consecutive months ending within the six months prior to the filing of the petition.

OCGA § 29-11-2 (6).

The Act’s second tier gives jurisdiction to a state with which the respondent has a "significant connection" under certain circumstances. See OCGA § 29-11-12 (2). A "significant-connection state" is defined as "a state, other than the home state, with which a respondent has a significant connection other than mere physical presence and in which substantial evidence concerning the respondent is available." OCGA § 29-11-2 (13) ; see also OCGA § 29-11-10. The "significant-connection state" may have jurisdiction if the respondent has a home state but that state’s court has declined to exercise jurisdiction because another state is a more "appropriate forum." See OCGA § 29-11-15 (a) ("A court of this state having jurisdiction under [ OCGA §] 29-11-12 to appoint a guardian or conservator may decline to exercise its jurisdiction if it determines at any time that a court of another state is a more appropriate forum."). To determine whether another state is a more appropriate forum, the court

shall consider all relevant factors, including: (1) Any expressed preference of the respondent; (2) Whether abuse, neglect, or exploitation of the respondent has occurred or is likely to occur and which state could best protect the respondent from the abuse, neglect, or exploitation; (3) The length of time the respondent was physically present in or was a legal resident of this or another state; (4) The distance of the respondent from the court in each state; (5) The financial circumstances of the respondent’s estate; (6) The nature and location of the evidence; (7) The ability of the court in each state to decide the issue expeditiously and the procedures necessary to present evidence; (8) The familiarity of the court of each state with the facts and issues in the proceeding; and (9) If an appointment were made, the court’s ability to monitor the conduct of the guardian or conservator.

OCGA § 29-11-15 (c).

If a court declines its jurisdiction under OCGA § 29-11-15 (a), the court should dismiss or stay the proceeding and, in so doing, may include any "just and proper" condition, including the condition that a petition for the appointment of a guardian be filed promptly in another state.⁴ OCGA § 29-11-15 (b).

Here, the superior court initially found that Georgia was the home state for Robert Brown. That determination is undisputed. The trial court then concluded that North Carolina was a more appropriate forum and declined to exercise its jurisdiction. Jorgensen contends that the superior court’s order is inadequate because the court did not address the factors it was required to consider before determining that another state was a more appropriate forum.

Although OCGA § 29-11-15 (c) does not expressly require specific findings on each factor, making such findings is a better practice. We therefore conclude that the trial court must at a minimum set out the essential reasoning that forms the basis for its exercise of discretion. See In re Estate of Hanson , ––– Ga. App. –––– (1), 834 S.E.2d 615, 2019 WL...