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In re M.E.

Supreme Court of North Dakota

December 1, 2015

In re Guardianship and Conservatorship of M.E., Ward and Protected Person; N.P. and M.N., Petitioners and Appellees
v.
M.E., Respondent and Appellant

Page 436

Appeal from the District Court of Cass County, East Central Judicial District, the Honorable Frank L. Racek,Judge.

Peter E. Karlsson, Moorhead, for petitioners and appellees.

David A. Garaas, Fargo, N.D., for respondent and appellant.

Carol Ronning Kapsner, Lisa Fair McEvers, Daniel J. Crothers, Dale V. Sandstrom, Gerald W. VandeWalle, C.J.

OPINION

Carol Ronning Kapsner, Justice.

Page 437

[¶1] M.E. appeals a district court order appointing co-guardians and co-conservators of her estate and an order denying her petition to be restored to capacity. We affirm the order denying her petition to be restored to capacity. We modify the order appointing co-guardians and co-conservators to restore M.E.'s right to testify in judicial or administrative proceedings and affirm the order as modified.

I

[¶2] In October 2014, two of M.E.'s children, N.P. and M.N., petitioned the district court for a temporary (emergency) guardianship and conservatorship. The petition alleged M.E. was in need of a guardian after falling victim to a financial scam and attempting suicide. When the petition was filed, M.E. was hospitalized at Prairie St. John's, a mental health facility in Fargo. M.E.'s daughter J.L. stated in an affidavit supporting the petition that M.E. lost $30,000 to $50,000 as a result of the financial scam. Also attached to the petition was a letter from Dr. LaWana Burtnett, who was treating M.E. at Prairie St. John's. The letter recommended the appointment of a guardian and conservator. The district court, by ex parte order, appointed N.P. and M.N. as emergency co-guardians and co-conservators and also appointed a guardian ad litem for M.E.

[¶3] A few weeks later, N.P. and M.N. petitioned for a permanent guardianship and conservatorship. They also moved the district court to approve the letter from Dr. Burtnett as the statutorily required physician's report. The court granted the motion approving Dr. Burtnett's letter as the required physician's report and appointed a visitor to interview M.E.

[¶4] At a November 2014 hearing on N.P. and M.N.'s petition for a permanent guardianship and conservatorship, M.E. testified against the appointment of a guardian and conservator, claiming she could take care of herself and did not require a guardian and conservator. The visitor and guardian ad litem submitted

Page 438

reports before the hearing supporting the appointment of a guardian and conservator. In its findings of fact, conclusions of law, and order dated December 2, 2014, the court found M.E. was an incapacitated person and appointed N.P. and M.N. as M.E.'s co-guardians and co-conservators. The order allowed M.E. to retain the right to vote and possess firearms. The order, however, did not allow M.E. to retain the right to change marital status, obtain or retain a driver's license, or testify in judicial or administrative proceedings.

[¶5] ]In January 2015, N.P. and M.N. petitioned the district court for approval to list M.E.'s house for sale. In an affidavit supporting the petition, they stated M.E. was unlikely to return to the house due to her physical limitations and vulnerability to further financial exploitation. N.P. and M.N. stated proceeds from the sale of the house would help pay for M.E.'s care at Bethany Retirement Living, an assisted-living facility in Fargo. The court granted the petition.

[¶6] In March 2015, M.E. petitioned the district court to vacate its earlier order appointing co-guardians and co-conservators and restore her to capacity. She also moved the court for an order restraining N.P. and M.N. from selling her house. She argued the guardianship order was defective because she was not personally served with the notice of hearing, the court failed to appoint a physician, the guardian ad litem failed to properly advocate for her, and there was insufficient evidence to support the need for a guardianship and conservatorship. She claimed she would return to her house if she were restored to capacity. The court entered an order delaying the sale of the house until after an April 2015 hearing on M.E.'s petition to restore her to capacity. The court also appointed M.E.'s attending physician to examine her and submit a report.

[¶7] At the April 2015 hearing, M.E. testified against the guardianship and conservatorship. The appointed physician declined to examine M.E. and submit a report. The court denied M.E.'s petition at the conclusion of the hearing and vacated the order restraining the sale of the house.

II

[¶8] M.E. raises many of the same arguments she raised in her motion to vacate the district court's order appointing co-guardians and co-conservators, including lack of jurisdiction and notice, failure to appoint a physician, errors made by the guardian ad litem, and insufficient evidence to support a guardianship and conservatorship.

[¶9] In guardianship proceedings, this Court reviews findings of fact under the clearly erroneous standard of N.D.R.Civ.P. 52(a). In re Guardianship of B.K.J., 2015 ND 191, ¶ 4, 867 N.W.2d 345. A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if no evidence exists to support the finding, or if, on the entire record, we are left with a definite and firm conviction a mistake has been made. Sweeney v. Kirby, 2015 ND 148, ¶ 7, 864 N.W.2d 464. " If a statute requires express findings by the district court, failure to make such findings may constitute reversible error when the record does not reflect whether the issue was considered." B.K.J., at ¶ 4.

A

[¶10] M.E. argues the district court lacked personal jurisdiction over her because she was not personally served with notice of the November 2014 hearing. Under N.D.C.C. § 30.1-28-09(1)(a), the proposed ward in a guardianship proceeding must be served with notice of the hearing. Under N.D.C.C. § 30.1-28-09(2), " [n]otice must be served personally on the

Page 439

ward or proposed ward, and . . . [w]aiver of notice by the ward or proposed ward is not effective unless the ward or proposed ward attends the hearing."

[¶11] Although the guardian ad litem's notes indicate she gave a copy of the notice of hearing to M.E. when she met with her on October 31, 2014, there is no affidavit of service stating M.E. was personally served with notice of the November 2014 hearing, and there is no evidence M.E. waived notice. Although M.E. was not personally served with a notice of hearing, she appeared at the hearing and did not argue service of the notice was defective. Under these circumstances, we conclude the district court acquired personal ...


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