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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. In the Matter of the Protective Proceedings of W.A. (09/26/2008) sp-6309
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| In the Matter of the Protective | ) | |
| Proceedings of: | ) Supreme Court No. S-12673 | ) |
| ) Superior Court No. | ||
| W.A., | ) 3DI-05-00002 PR | |
| ) | ||
| Appellant. | ) O P I N I O N | |
| ) | ||
| ) No. 6309 - September 26, 2008 | ||
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Dillingham, Fred Torrisi, Judge.
Appearances: Joseph R. Faith, Dillingham, for
Appellant. Janella K. Combs, Bristol Bay Law
Center, Dillingham, for Gladys L., Appellee.
Before: Fabe, Chief Justice, Matthews,
Carpeneti, and Winfree, Justices. [Eastaugh,
Justice, not participating.]
CARPENETI, Justice.
I. INTRODUCTION
The respondent in a guardianship proceeding appeals the
superior courts appointment of a permanent guardian. He argues
that the superior court was not presented with clear and
convincing evidence that (1) he is totally incapacitated and (2)
alternatives to guardianship are not feasible. Because the
superior court did not err in finding that there was clear and
convincing evidence that the respondent is incapacitated and that
alternatives to guardianship are not feasible, we affirm the
decision of the superior court.
II. FACTS AND PROCEEDINGS
This case involves an attempt by a group of adult
siblings to obtain a guardian for W.A., their brother. W.A. is a
forty-five year old male who has not held regular employment for
over twenty years. Until this case arose, he lived with his
eighty-one year old mother, who has serious health problems and
takes oxygen. W.A.s father died when W.A. was four or five years
old. According to W.A.s sister, Gladys L., W.A. started using
drugs at a very young age, which had a very detrimental impact on
his mental capacity, but his mother continually cared for him and
didnt want to turn him out to the street.
On February 9, 2005, Gladys L., joined by other
siblings and family members, filed an Emergency Petition for
Appointment of a Temporary Guardian and a Petition for
Appointment of a Guardian as a result of W.A.s erratic behavior
and abusive treatment of their mother. Gladys L. filed the
petitions because W.A.s behavior had reached the point that it
was causing [the siblings] to fear for [their] mothers safety not
to mention her life and others safety, and the prospect of him
hurting her or himself was escalating.1 Gladys L. alleged that
W.A. struggled with mental illness and chronic substance abuse.
She stated that W.A. will not leave the house unless he is drunk,
that he forces their 81 year old mother to stay in her bedroom
beginning 10 pm until morning, which forces her to urinate in a
can in her bedroom, that he is verbally abusive and controlling,
that he talks to an imaginary companion, and that he speaks all
thoughts out loud and laughs to himself.
Magistrate Monte L. Brice, acting as a Master for the
Superior Court, held an initial hearing when the petition was
filed on February 9. A second hearing was held on February 11 to
consider the emergency petition for a temporary guardian.
Participating in the hearing were W.A., his attorney Joseph
Faith, various members of the family who were co-petitioners with
Gladys L., Elizabeth Donnelly of the Office of Public Advocacy
(OPA), court-appointed visitor2 Marieann Vassar, and court-
appointed expert medical professional Dr. Kathy Hyndman.
Magistrate Brice ordered W.A. to submit to interviews with the
court visitors office and an expert physician in order to obtain
better information on W.A.s capacity. However, the magistrate
continued the hearing on the emergency petition until February 15
so that W.A.s counsel could have more time to prepare and the
requisite interviews could be conducted.
Before the continued hearing, expert physician Dr. Dave
Powers interviewed W.A. and submitted to the court a report
outlining his conclusions from that interview. The interview and
report were intended to focus on whether W.A. lacks a capacity to
make informed decisions about care and treatment services. Dr.
Powers summarized his findings:
[W.A.] has lived with his mother his
entire life. He has no job or job
training, he has no bank account, he has
never paid a bill, had never ordered an
item from a catalog. He doesnt shop for
groceries or clothing, and doesnt even
buy his own cigarettes. He also
certainly has very limited or inadequate
housekeeping, cooking, and self care
skills. I do not think that [W.A.] has
the ability to adequately manage his own
financial affairs or household affairs.
Magistrate Brice heard testimony on February 15 and 16.
Dr. Powers testified that [W.A.] pretty staunchly, steadfastly
denies that he has any problems with either alcohol abuse or with
any kind of mental illness even though he has been diagnosed with
both of those problems, and that this denial makes it very
difficult for him to ever receive treatment. When asked about
his recommendation, Dr. Powers stated that he would recommend
that [W.A.] get a temporary guardian and also that he undergo a
neuropsychiatric evaluation. Members of W.A.s family also
testified. W.A.s sister, Janice B., testified that W.A. did not
appear to bathe regularly. Frank W., W.A.s nephew who lived with
W.A. for a period of time, testified that he has not seen W.A.
cook or do laundry and that there have been incidents in which
W.A. starts talking delusional. Frank also testified that W.A.
often remains isolated in the back room of his mothers house and
rarely goes past the porch.
The court visitor testified regarding the report she
submitted after her interview with W.A, in which she explained
that [W.A.] would benefit from the appointment of a temporary
guardian. She testified that W.A. was successful with simple
tests involving memory and short term learning abilities, such as
identifying his address and objects such as a house, a bus, and a
dog. However, W.A. was unable to perform a simple mathematical
test of subtract[ing] seven from 100 and . . . subtracting seven
from the answer from his previous subtraction until he was told
to stop. The court visitor testified that W.A. was unable to
tell her when he was born; instead he responded to her inquiry by
saying that he did not own anything before 1979. W.A. had mixed
results on various other simple tests, but he did show that he
had the ability to communicate in writing and spell simple words
correctly. When asked to make a conclusion in the context of the
temporary guardianship statute, AS 13.26.140, the court visitor
stated, I cant in good faith say that this meets all the criteria
for an emergency appointment.
After hearing all testimony Magistrate Brice released a
First Interim Masters Report on February 22, in which he
concluded that he could not find by clear and convincing evidence
that the statutory criteria for the appointment of a temporary
guardian was met. Magistrate Brice noted that the main concern
of the petitioners is, in fact, the protection of [W.A.s mother]
from [W.A.], but that the welfare of [W.A.] is a secondary
concern. He also explained that he would await legal memoranda
from the court visitor and from W.A.s attorney discussing the
courts authority to make an appointment of someone to serve in a
capacity similar to but without the full authority of a temporary
guardian before submitting a follow-up masters report.
On February 23, the court visitor submitted a brief to
the superior court, in which she appeared to reverse course from
her hearing testimony by stating that [W.A.] could meet the
requirements for the appointment of a temporary guardian as set
out in AS 13.26.140. On March 14 she submitted supplemental
materials documenting W.A.s various trips to the emergency room
at Alaska Native Medical Center in Anchorage. The court visitor
explained in her supplemental brief that the records reflect
W.A.s pattern of accessing medical services at the emergency room
for alcohol related injuries. The records also reveal that W.A.
is consistently diagnosed with schizophrenia and alcohol abuse
when he visits the emergency room.
Magistrate Brice submitted a Second Interim Masters
Report on March 30. The first issue addressed in the report was
the following: Where the criteria for appointing a temporary
guardian have not been proved by clear and convincing evidence,
can a temporary partial guardian be appointed? The magistrate
stated that he remained unconvinced that the petitioners had met
the statutory standard for appointment of a temporary guardian,
even if the temporary guardian would be a partial guardian.
Thus, the magistrate recommended that the request for a temporary
guardian be denied, but without prejudice. He also recommended
that the court grant any motion by the visitor for a
neuropsychological evaluation.
On June 8, pursuant to the Second Interim Masters
Report and a request by the court visitor, Superior Court Judge
Fred Torrisi ordered W.A. to submit to a psychiatric examination.
Dr. Joanette Sorkin of Alaska Native Medical Center performed the
examination on June 9 in Dillingham. Dr. Sorkin found that W.A.
had severe deficits with medical decision-making capacity that
were likely precluding his ability to make informed medical
decisions regarding his treatment and where he lives. Dr. Sorkin
also expressed concern about W.A.s apparent intoxication during
the assessment. She recommended that W.A. undergo
neuropsychological testing, preferably after a period of
abstinence from intoxicating substances.
On June 14 Dr. Bruce Allen, a psychologist at Kanakanak
Hospital, interviewed W.A. after the local chief of police
reported that W.A. was trying to entice young girls into his
home. Dr. Allen referred W.A. to Alaska Psychiatric Institute
(API), and W.A. was admitted there on June 15.
W.A. stayed at API for one month. While at API, W.A.
had a neuropsychological screening and diagnostic interview with
Dr. David Sperbeck. Dr. Sperbeck reported that W.A. exhibited
delusional beliefs and eccentric, overly verbal, and overtly
paranoid behaviors. According to the court visitor, who spoke
with Dr. Sperbeck, the doctor strongly supports appointment of a
guardian and conservator for [W.A.]. The court visitor also
spoke with W.A.s psychiatrist at API, Dr. Mark Erickson, and a
social worker at API, Anne OBrien, who both supported the
appointment of a guardian. W.A. was discharged from API on July
15 and began staying primarily at Brother Francis Shelter in
Anchorage.
The court visitor filed her Second Status Report on
July 29. She documented W.A.s experiences at API and his
subsequent discharge to Brother Francis Shelter. She concluded,
I believe there is adequate evidence to support the appointment
of a guardian and conservator for [W.A.], at least on a temporary
basis. The court visitor recommended that the court appoint OPA
as guardian and conservator for W.A.
On August 5, pursuant to Magistrate Brices Third
Interim Masters Report, the superior court ordered the
appointment of a temporary guardian, finding that the petitioners
had shown by clear and convincing evidence that W.A. was in need
of the appointment. W.A. stipulated to the appointment of a
temporary guardian, but he was not prepared to stipulate to the
appointment of a permanent guardian. In the order appointing a
temporary guardian, the superior court also scheduled a hearing
on permanent guardianship.
The hearing on the petition for a permanent guardian
occurred on October 28. At the time of the hearing, W.A. was
residing at the Turnagain Assisted Living Home in Anchorage.
W.A. indicated at the hearing that he would agree to having a
guardian until June 2006. However, much of his testimony
throughout the hearing was not coherent and revealed his serious
difficulty articulating his thoughts and understanding his
circumstances. W.A. testified, Im capable of handling my own
financial needs. However, he did not know the cost of staying at
the assisted living home where he was living. When pressed on
how he would pay to continue staying at the assisted living home,
he was unable to provide a coherent answer. When W.A.s own
attorney asked him what he would do with the money if he received
a permanent fund dividend, W.A. was incapable of answering,
instead focusing on the fact that he cannot get a permanent fund
dividend check. He also testified that he is capable of making
decisions about his medical care. He discussed treatment he
received for a broken arm, but much of his testimony about his
arm was confusing and vague, and he was unable to answer
questions about whether he went to the hospital immediately after
injuring his arm. W.A. also testified, Im capable of making my
own mental health decisions, but he appeared unable to elaborate
on the issue.
Gladys L. and the court visitor also testified at the
October 28 hearing. Gladys L. testified that W.A. has never had
a checking account. She also testified that whenever W.A.
receives his Bristol Bay Native Corporation checks her mother
comes to live with her because W.A. goes to the liquor store and
comes back to the house to drink. She stated that he has never
purchased any of his . . . personal items and that the family
purchases things like deodorant, toothbrushes, and toothpaste for
him. The court visitor indicated that after reviewing W.A.s
records and interviewing W.A., she did not believe he could make
medical decisions for himself. She also testified that he
doesnt seek out mental health care and that he would not be
capable of managing his finances in a responsible fashion.
On June 4, 2006, Magistrate Brice submitted a masters
report regarding permanent guardianship. In the report he
stated, [W.A.]s history indicates that he lacks the ability to
make rational financial, medical or mental health decisions.
Many of his past decisions have been against his best interest
and have had extremely adverse results. He concluded, [a]
guardianship order should issue and a guardianship plan should be
presented to the court giving the guardian authority to make
decisions regarding [W.A.]s medical care, mental health care,
housing and financial decisions. It should provide an allowance
in an amount to be determined by the guardian for small
expenditures determined by [W.A.].
On March 15, 2007, the superior court issued its final
order for appointment of a permanent guardian and a guardianship
plan. The court found that W.A. is incapacitated, that
alternatives to guardianship and conservatorship are not
feasible, and that appointment of a guardian and conservator is
necessary to provide for W.A.s needs. The guardianship plan gave
the guardian, Crystal Smith of OPA, full authority to provide for
W.A.s medical care, mental health treatment, housing, and
personal care, and full control of W.A.s estate and income to pay
for the costs of services for W.A. However, the plan also
provided that the guardian will encourage [W.A.] to participate
in all decisions that affect [him] and to act on [his] own behalf
to the maximum exten[t] possible.
W.A. appeals.
III. STANDARD OF REVIEW
We review the superior court's factual findings
including a finding of incapacity for clear error, which we find
only when we are left with a definite and firm conviction based
on the entire record that a mistake has been made.3 The decision
to appoint a guardian for an incapacitated person is committed to
the sound discretion of the superior court and is reviewed for
abuse of discretion.4 We will find an abuse of discretion if the
superior court considers improper factors, fails to consider
statutorily mandated factors, or assigns too much weight to some
factors.5
IV. DISCUSSION
A. The Superior Court Did Not Err in Finding That W.A. is
Incapacitated.
W.A. challenges the superior courts finding that he was
incapacitated. Specifically, W.A. alleges that the expert
physician and court visitor could not tell whether W.A.s behavior
was the result of incapacity or choice; that W.A. passed the mini-
competency exam administered to him in February 2005; and that
Dr. Powers, the court visitor and Magistrate Brice could not find
that the statutory criteria for appointment of a temporary
guardian were met.
Gladys L. argues that [t]here was sufficient evidence
to support the Superior Courts finding that W.A. was . . .
incapacitated. She alleges that qualified professionals
continuously found that W.A.[] was unable to make rational
decision[s].
Alaska Statute 13.26.113 governs appointment of a
guardian. Alaska Statute 13.26.113(b) states, [t]he burden of
proof by clear and convincing evidence is upon the petitioner,
and a determination of incapacity shall be made before
consideration of proper disposition. Thus, the clear and
convincing evidentiary standard applies to the capacity
determination.6 An incapacitated person is a person whose ability
to receive and evaluate information or to communicate decisions
is impaired for reasons other than minority to the extent that
the person lacks the ability to provide the essential
requirements for the persons physical health or safety without
court-ordered assistance.7 [E]ssential requirements for physical
health or safety are defined by statute as the health care, food,
shelter, clothing, personal hygiene, and protection without which
serious physical injury or illness is more likely than not to
occur.8
The evidence presented by the court visitor, expert
medical professionals, and members of W.A.s family reveals that
W.A. lacks the ability to provide the essential requirements for
his physical health or safety. Gladys L. testified that W.A. has
never had a bank account and that his family has always provided
him with a place to live, paid for his food, and supplied him
with personal belongings. She explained that the little money he
has received from Bristol Bay Native Corporation has been spent
on alcohol. The court visitor testified that she had not seen
any evidence of W.A. making rational medical decisions for
himself, that he does not recognize his mental health problems,
and that he would not be capable of managing his finances in a
responsible fashion. Dr. Sorkin, a psychiatrist, stated that
W.A.s severe deficits with medical decision-making have likely
precluded him from making informed medical decisions. Dr.
Sperbeck reported on W.A.s delusional beliefs and overtly
paranoid behaviors and strongly supported appointment of a
guardian for W.A. W.A.s psychiatrist at API and his API social
worker also supported the appointment of a guardian. The
conclusions of these medical and mental health professionals, the
court visitor, and W.A.s family members provide sufficient
support for the superior courts conclusion that there was clear
and convincing evidence of W.A.s incapacity.
W.A.s arguments to the contrary are largely based on
testimony presented at the first hearing for appointment of a
temporary guardian, before much of the information about W.A.s
condition was determined through interviews and psychological
evaluations. For example, W.A. states that the court expert
physician and court visitor could not tell whether W.As behavior
and choice of lifestyle was the result of incapacity or choice.
However, that statement must be put into context. What the
expert and visitor actually explained was that such a
determination could not be definitively made without a
neuropsychological examination. Thereafter, a neuropsychological
examination was conducted by Dr. Sperbeck, and as a result, both
he and the visitor supported appointment of a guardian. W.A.
also argues that he passed the mini-competency exam administered
by the court visitor in February 2005. However, the court
visitor testified that W.A. was unable to complete a simple math
problem, that he was unable to say where he was born or provide
relevant information about his life before 1979, and that he had
general difficulty with memory. Finally, W.A. argues that Dr.
Powers, the court visitor, and Magistrate Brice could not find
that the statutory criteria for appointment of a temporary
guardian were met. However, Dr. Powers originally recommended
that he get a temporary guardian, and after further interviews
and medical examinations, both the court visitor and Magistrate
Brice concluded that a temporary guardian should be appointed,
and they subsequently concluded that a permanent guardian was
appropriate.
Thus, the superior courts finding that there was clear
and convincing evidence of incapacity was not clearly erroneous.
B. The Superior Court Did Not Err in Finding That
Alternatives to Guardianship Are Not Feasible.
Part of W.A.s statement of the issue presented for
review argues that the evidence was insufficient to find that a
combination of alternatives to guardianship and the appointment
of a partial guardian was not feasible or adequate to meet the
needs of respondent. Gladys L. responds that [d]ue to his
complete inability to care for himself with any degree of
autonomy, there are no less restrictive means available than a
full-time guardian.
W.A. fails to present any potential alternatives to
guardianship that may be feasible and does not substantively
address the issue of guardianship alternatives or partial
guardianship. Rather, he simply quotes the language of AS
13.26.113. Thus, W.A.s argument on this issue is waived.9 Even
if W.A. had not waived the argument, however, it would still be
without merit.
The guardianship provisions direct the court to
determine whether alternatives to full guardianship are feasible.
According to AS 13.26.113(c)-(f),
(c) If the respondent is found to be
incapacitated, the court shall determine the
extent of the incapacity and the feasibility
of alternatives to guardianship to meet the
needs of the respondent.
(d) If it is found that the alternatives to
guardianship are feasible and adequate to
meet the needs of the respondent, the court
may dismiss the action and order an
alternative form of protection.
(e) If it is found that the respondent is
able to perform some, but not all, of the
functions necessary to care for the
respondent, and alternatives to guardianship
are not feasible or adequate to provide for
the needs of the respondent, the court may
appoint a partial guardian, but may not
appoint a full guardian.
(f) If it is found that the respondent is
totally without capacity to care for the
respondent and that a combination of
alternatives to guardianship and the
appointment of a partial guardian is not
feasible or adequate to meet the needs of the
respondent, the court may appoint a full
guardian.
In In the Matter of O.S.D., we held that the clear and convincing
evidence standard stated in section 113(b) applies to any
determination which may lead to the imposition of guardianship,
including the determination of whether there existed adequate
alternatives to full guardianship.10 Because it was unclear
whether the master applied the [clear and convincing] standard to
the determination of whether there existed adequate alternatives
to full guardianship, we remanded for a determination of what
standard of proof was applied below.11
Although the superior courts final order in the present
case did not explicitly state that it found by clear and
convincing evidence that there are no adequate alternatives, the
order did explicitly state that [a]lternatives to guardianship
and conservatorship have been considered and are not feasible.
The courts statement about feasible alternatives immediately
follows its statement that the respondent has been shown to be
incapacitated by clear and convincing evidence, indicating that
the court believed both findings were supported by clear and
convincing evidence. The court also explained that it had fully
accept[ed] Magistrate Brices recommendation. Magistrate Brices
recommendation stated, [b]ased on the testimony and various
medical, mental health and visitor reports, I am satisfied that
the evidence is clear and convincing that [W.A.] is incapable of
making financial, medical, and mental health decisions and is in
need of a permanent guardian. Because Magistrate Brice found by
clear and convincing evidence that W.A. is in need of a permanent
guardian and thus that alternatives to guardianship are not
feasible the superior courts acceptance of Magistrate Brices
recommendation reveals that the superior court also believed
that clear and convincing evidence showed a lack of feasible
alternatives to guardianship.
The superior courts conclusion that there are no
adequate alternatives to full guardianship is amply supported by
the evidence in the record, which reveals W.A.s inability to make
rational decisions regarding his medical care, mental health,
finances, and even daily living. Thus, the superior courts
finding that alternatives to guardianship are not feasible was
not clearly erroneous.
V. CONCLUSION
Because the superior court did not err in finding that
there was clear and convincing evidence that W.A. is
incapacitated and that no feasible alternatives to full
guardianship exist, we AFFIRM the decision of the superior court.
_______________________________
1 It does not appear that any single event involving W.A.
prompted the decision to file the petition.
2 AS 13.26.106(c) requires the court to appoint a visitor
and states, [t]he visitor shall arrange for evaluations to be
performed and prepare a written report to be filed with the
court. . . . The visitor shall interview the respondent . . . .
The visitor shall conduct the interviews and investigations
necessary to prepare the report . . . . AS 13.26.106(d) states
that the appointment of the visitor shall be made through the
office of public advocacy.
3 Casey v. Semco Energy, Inc., 92 P.3d 379, 382 (Alaska
2004).
4 See H.C.S. v. Cmty. Advocacy Project of Alaska, Inc.,
42 P.3d 1093, 1096 (Alaska 2002).
5 Id.
6 In the Matter of O.S.D., 672 P.2d 1304, 1305 (Alaska
1984).
7 AS 13.26.005(5).
8 AS 13.26.005(2).
9 See Adamson v. Univ. of Alaska, 819 P.2d 886, 889 n.3
(Alaska 1991) (where a point is given only a cursory statement
in the argument portion of a brief, the point will not be
considered on appeal).
10 672 P.2d at 1306.
11 Id.
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