In the Guardianship of Iva Dee Fuller, an Incapacitated Person--Appeal from County Court of Upshur County

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-06-00104-CV
______________________________
IN THE GUARDIANSHIP OF
IVA DEE FULLER, AN INCAPACITATED PERSON
On Appeal from the County Court
Upshur County, Texas
Trial Court No. 178
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Justice Carter
MEMORANDUM OPINION

Cheryl Niles applied to become the temporary guardian of her ninety-two-year-old grandmother, Iva Dee Fuller. The trial court appointed Niles as Fuller's temporary guardian (1) and scheduled a hearing within two weeks to determine the necessity for the continuation of the temporary guardianship. After this hearing, of which no record is included on appeal, the court continued the temporary guardianship and scheduled a second hearing one month later to determine the continued necessity of the temporary guardianship. At the conclusion of the second hearing, the court terminated the temporary guardianship and stated, "Good luck Ms. Fuller. I want to say this. And I think you are competent."

Niles appeals, claiming in one point of error that the judgment is against the great weight and preponderance of the evidence.

A. Standard of Review

We review the court's decision to terminate the temporary guardianship, and its decision to decline to further appoint a temporary guardian, for abuse of discretion. See Robinson v. Willingham, No. 03-05-221-CV, 2006 Tex. App. LEXIS 2788, at *8 (Tex. App.--Austin Apr. 6, 2006, no pet.) (mem. op.) (review appointment of guardian for abuse of discretion); Trimble v. Tex. Dep't of Protective & Regulatory Serv., 981 S.W.2d 211, 214-15 (Tex. App.--Houston [14th Dist.] 1998, no pet.) (appointment); cf. In re Guardianship of Erickson, 208 S.W.3d 737, 743 (Tex. App.--Texarkana 2006, no pet.) (review removal of guardian for abuse of discretion); State ex rel. Tex. Dep't of Mental Health & Mental Retardation v. Ellison, 914 S.W.2d 679, 682 (Tex. App.--Austin 1996, no writ) (removal); Douglas v. Proctor, 559 S.W.2d 912, 913 (Tex. App.--Waco 1977, no writ) (removal of temporary guardian and termination of temporary guardianship within trial court's authority if in ward's interest).

The test for abuse of discretion is not whether, in the opinion of the reviewing court, the facts present an appropriate case for the trial court's action, but whether the court acted without reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). The mere fact that a trial court may decide a matter within its discretionary authority differently than an appellate court does not demonstrate such an abuse. Id. at 242. Moreover, the court of appeals cannot substitute its judgment for the trial court's reasonable judgment even if it would have reached a contrary conclusion. Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992);Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 226 (Tex. 1991).

Though Niles raises a factual sufficiency point of error, factual sufficiency is not an independent, reversible ground of error in these guardianship proceeding rulings, but is, instead, a factor to consider in assessing whether the trial court abused its discretion. See Robinson, 2006 Tex. App. LEXIS 2788, at *10 (citing Trimble, 981 S.W.2d at 215); Erickson, 208 S.W.3d at 743. The trial court does not abuse its discretion if some evidence reasonably supports the trial court's decision. Davis v. Huey, 571 S.W.2d 859, 862 (Tex. 1978).

B. Declining to Reappoint a Temporary Guardian and Terminating a Temporary Guardianship

 

We assess the court's refusal to reappoint Niles as temporary guardian by the guiding rules and principles set forth in the statute. The Texas Probate Code establishes the procedures governing temporary guardianships. See Tex. Prob. Code Ann. 875. Temporary guardianships "may not remain in effect for more than 60 days," Tex. Prob. Code Ann. 875(h), and may expire by their own terms. See Tex. Prob. Code Ann. 875(l); see also Tex. Prob. Code Ann. 878, 879 (Vernon 2003). Since Niles never applied to be Fuller's permanent guardian, her initial term as temporary guardian statutorily terminated, or expired, at the conclusion of the hearing considering her challenged application to continue the temporary guardianship. See Tex. Prob. Code Ann. 875(l).

The statute provides for the appointment, or reappointment, of a temporary guardian at the conclusion of the hearing when "the court determines that the applicant has established that there is substantial evidence that the person is . . . [an] incapacitated person, that there is imminent danger that the physical health or safety of the respondent will be seriously impaired, or that the respondent's estate will be seriously damaged or dissipated unless immediate action is taken." Tex. Prob. Code Ann. 875(g). Indeed, on so finding, the court "shall" appoint a temporary guardian. Id.

A review of the evidence shows that Niles presented only one witness at the hearing--herself--to testify to Fuller's incompetence. Niles also introduced a doctor's report. Fuller presented the testimony of an attorney and three long-time friends that she was competent.

The physician's certificate summarized the doctor's opinion that Fuller was partially incapacitated with mild to moderate early senile changes probably due to early Alzheimer's disease. The doctor stated, in an addendum, that he found evidence of cognitive impairment and some associated memory loss, and that, although Fuller "most probably is able to continue living alone and take care herself [sic] with her family and friends checking in on her regularly as they have been doing," Fuller "does not seem to have the necessary mental faculties to prevent herself from being vulnerable to persons trying to take advantage of her financially." Niles testified that her grandmother had lost six income checks, although Fuller informed the court (without being sworn) that she had used those checks to open a separate bank account free from the temporary guardian's control. Niles further testified that Fuller had, in what Niles described as an uncharacteristic move, given or lent an ex-son-in-law $5,000.00. In total, from December 2005 to the hearing in May 2006, Niles stated Fuller was "missing" about $8,000.00.

First to testify on Fuller's behalf was Dwight Brannon, a lawyer who had prepared Fuller's will and handled other legal matters for her. Brannon described Fuller as independent and feisty. He testified that, had Fuller wanted him to write a will in the months before the hearing, he would have, with confidence in her capacity. He testified that Fuller may have physical incapacity, but "she has the capacity to live by herself and take care of herself. Certainly, she has got to have some assistance for transportation, may need some advice. And you know, she is at an age where her health could fail faster than somebody, you know, thirty or forty years younger. . . . But the last time I talked to her, she seemed to be all right to me."

Tony Snow, who has known Fuller for over eighty years, testified that Fuller is "of good, sound mind. She's a very talented woman. She works all the time, and she's very active." He opined that "her mind is as good as it's ever been." Leon Loveless, who has been friends with Fuller for twenty years, testified that, in his opinion, Fuller is not incapacitated and is capable of managing her personal and financial affairs and "is capable of taking care of her own business." Similarly, Thomas Hestand, who has known Fuller through church for eighteen years, testified that, in his opinion, Fuller is not incapacitated or incompetent. He stated that, though he may disapprove of Fuller's transactions with her ex-son-in-law, he believes she is competent to make those financial decisions.

We find that the record demonstrates a reasonable basis for the trial court's decision that Niles did not prove incapacity or imminent danger to Fuller's health or estate. While the court heard conflicting testimony regarding Fuller's capacity, the court heard some evidence that reasonably supports its decision. Accordingly, the court did not abuse its discretion.

We affirm the judgment.

 

Jack Carter

Justice

 

Date Submitted: April 24, 2007

Date Decided: May 9, 2007

 

1. It appears from the record that this occurred without notice and citation to Fuller and in an ex parte proceeding. Any procedural impropriety in this method, see Tex. Prob. Code Ann. 875 (Vernon Supp. 2006), though of concern, is not at issue in this appeal.