Guardianship & Conservatorship of Fischer

#24631-a-RWS

2008 SD 51

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

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Guardianship and Conservatorship of
DENNIS P. FISCHER,
A person alleged to need protection.

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APPEAL FROM THE CIRCUIT COURT OF
THE FIFTH JUDICIAL CIRCUIT
BROWN COUNTY, SOUTH DAKOTA

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HONORABLE TONY PORTRA
Judge

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DREW C. JOHNSON
Aberdeen, South Dakota Attorney for appellant
Andrew Fischer.

CHRISTY GRIFFIN SERR
Aberdeen, South Dakota Attorney for appellee
Shirley A. Johnson
a.k.a. Shirley A. Fischer.

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CONSIDERED ON BRIEFS
ON APRIL 21, 2007

OPINION FILED 06/18/08
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SABERS, Justice.

[¶1.] Shirley A. Johnson (a.k.a. Shirley Fischer) petitioned to have her ex-

husband, Andrew Fischer, removed as co-guardian and co-conservator of their

twenty-three year old son, Dennis. The circuit court granted the petition removing

Andrew. We affirm.

FACTS

[¶2.] In 2002, Shirley and Andrew were appointed co-guardians and co-

conservators of their son, Dennis. At the time Dennis was eighteen years old. He is

developmentally disabled, has a seizure disorder, cataracts, is legally blind, has

limited reading and writing ability, mild hearing loss and is in need of supervision.

[¶3.] Shirley, Andrew and Dennis decided that it would be best for Dennis to

reside in an Adjustment Training Center (ATC) facility in Aberdeen, South Dakota.

They wanted Dennis to learn to live as independently as possible. Dennis moved

into an ATC apartment. He had a job through ATC and, in addition to vocational

services, ATC provided other services such as housing, physical therapy, recreation,

nursing and employment options in the community.

[¶4.] Over the next few years, Andrew had many concerns about the

treatment Dennis was receiving from ATC. Andrew would continually call doctors

regarding Dennis’ care and complain about the quality of services provided to

Dennis. According to an ATC worker’s testimony, Andrew would tell ATC

employees how and when drugs should be administered. When the ATC employee

explained that was against policy or doctor’s orders, he would call the doctor

repeatedly in an attempt to get the directions “clarified” or outright changed.

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Andrew would yell at the staff. If unsatisfied with something, Andrew would write

to the Attorney General and Brown County State’s Attorney’s Office asking ATC be

investigated. 1 Additionally, Andrew would continually take Dennis out of town for

three to four days at a time, interfering with his job.

[¶5.] Eventually, the problems created a breaking point for ATC and a

meeting was held in March of 2006, with ATC services coordinator Dana Spellman,

ATC Director Rob Wanous, Services Coordination Director Arlette Keller, Shirley

and Andrew. During this meeting Spellman explained that there were too many

conflicts between Andrew and ATC. There was a conflict between how Shirley and

Andrew wanted Dennis to live. Shirley supported Dennis learning to live as

independently as possible, while Andrew wanted to micromanage everything and

really wanted Dennis to live at home with him. Due to the conflicts, ATC informed

Shirley and Andrew that Dennis could no longer reside at ATC, but it would

continue to provide vocational services during the day. 2 Spellman explained that it

was not in Dennis’ best interest to leave the residency program, but it was in the

agency’s best interest because of Andrew’s actions.

1. Andrew has also written letters regarding ATC’s care to the Division of
Developmental Disabilities, the director of Health and Human Services, the
head of Growth and Developmentally Delayed branch in Pierre and an
advocate in Pierre.

2. The report from this meeting provides that Spellman spoke with Dennis
about no longer living at his apartment. Dennis replied that his dad had told
him last night. When asked if Dennis wanted to live with his dad, Dennis
replied that he wanted to live with his dad, but that his dad told him to say
that. When asked where he wanted to live, without worrying about mom or
dad, he responded he wanted to stay in his apartment.

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[¶6.] Shirley petitioned for termination of Andrew’s guardianship and

conservatorship of Dennis. A hearing was held on May 7, 2007. At the conclusion

of the hearing, the circuit court found that Andrew may believe he has Dennis’ best

interest at heart, but his actions and the results are not in Dennis’ best interest.

Therefore, under SDCL 29A-5-504(12), the circuit court terminated Andrew’s

guardianship and conservatorship because Andrew was not acting in the best

interest of Dennis’ even though without fault. 3 Andrew appeals raising the

following issue:

Whether the circuit court abused its discretion in removing Andrew as
co-guardian and co-conservator of Dennis.

STANDARD OF REVIEW

“In guardianship proceedings, the trial court’s findings of
fact are reviewed under the ‘clearly erroneous’ standard.”
Guardianship of Larson, 1998 SD 51, ¶13, 579 NW2d 24,
27 (citing In re Guardianship of Viereck, 411 NW2d 102,
106 (SD 1987) (citing SDCL 15-6-52(a))). According to
this test, “[w]e will not overturn the trial court’s findings
unless, after reviewing all the evidence, we are left with a
definite and firm conviction that a mistake was made.”
Id. (citing Wiggins v. Shewmake, 374 NW2d 111, 114 (SD
1985)).

In re Guardianship & Conservatorship of Miles, 2003 SD 34, ¶11, 660 NW2d 233,

236. We will not reverse the termination of a guardian or conservatorship unless

the decision was an abuse of discretion. See In re Guardianship of Blare, 1999 SD 3,

¶9, 589 NW2d 211, 213 (additional citation omitted).

3. Shirley petitioned that a neutral third party could be appointed as guardian
and conservator. At the conclusion of the hearing, the circuit court judge said
he would appoint a third party if both parties agreed that a neutral party
should be appointed. However, Andrew would not agree.

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[¶7.] Whether the circuit court abused its discretion in [removing]
Andrew as co-guardian and co-conservator of Dennis.

[¶8.] First, Andrew argues that the circuit court did not make findings or

conclusions as required by SDCL 15-6-52(a). “Generally, the failure to file findings

of fact and conclusions of law constitutes reversible error.” Toft v. Toft, 2006 SD 91,

¶11, 723 NW2d 546, 550 (citing Grode v. Grode, 1996 SD 15, ¶29, 543 NW2d 795,

803). “However, we have also noted that an appellate court may remand for

findings, or, because findings are not jurisdictional, ‘an appellate court may decide

the appeal without further findings if it feels it is in a position to do so.’” Id.

(quoting Hoffman v. Olsen, 2003 SD 26, ¶10, 658 NW2d 790, 793 (quoting Ridley v.

Lawrence County Com’n, 2000 SD 143, ¶13, 619 NW2d 254, 259)) (additional

citations omitted).

[¶9.] It is unnecessary to remand for further findings in this case. While the

circuit court did not file separate findings of fact and conclusions of law, it did

enumerate some findings and conclusions in its order terminating co-guardianship

and co-conservatorship and appointment of sole guardian and conservator. The

order in relevant part provides:

Upon consideration of the Petition for Termination of Co-
Guardianship and Co-Conservatorship, the [c]ourt finds:

1. The court heard the testimony and received the
documents on file and finds that the notice has been
properly served upon Dennis P. Fischer, Andrew
Fischer, Shirley Johnson and otherwise given to all
interested persons.

2. The co-guardianship and co-conservatorship was
terminated due to the inability of the co-guardians and
co-conservator’s to arrive at decisions regarding the
health and well being of Dennis P. Fischer.

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3. Good cause has been shown for the termination.

4. That it would be in the best interest of Dennis P.
Fischer that Shirley Johnson be appointed the sole
guardian and conservator of Dennis P. Fischer.

Furthermore, the circuit court issued its decision at the end of the hearing and the

record contains other findings and conclusions regarding the decision. Accordingly,

the record is sufficient to consider this appeal.

[¶10.] Andrew argues that the circuit court abused its discretion because he

and Shirley got along fine; it was only his problem with ATC that was in issue and

ATC is not the co-guardian. Furthermore, Andrew argues that termination of his

guardian and conservatorship is akin to terminating his parental rights. He urges

this Court to interject the parental termination standard into a guardian and

conservatorship proceeding and find that termination was not the least restrictive

alternative. He argues that “[s]ince the other avenues pointed out [in his brief]

were not pursued, it was the failure to exhaust those potential remedies that strikes

at the heart of [Andrew’s] argument.”

[¶11.] Shirley argues that that circuit court did not abuse its discretion

because it is in Dennis’ best interest to remove Andrew as the co-guardian and co-

conservator. She argues that Dennis should stay in Aberdeen, SD around friends

and family, in a familiar setting. Yet, ATC is the only facility available that can

help Dennis be independent and ATC will not allow Dennis to live there while

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Andrew is the co-conservator. ATC will allow Dennis to resume residential

treatment if Shirley is the only conservator. 4

[¶12.] The record indicates that the circuit court did not abuse its discretion.

First, we refuse to use a parental termination standard in a termination of

guardianship/conservatorship. The plain language of the statutes is clear and we

follow the standard set forth for guardian and conservator proceedings. Second, the

testimony reflects that Andrew, while having good intentions, was not acting in the

best interest of Dennis. The testimony indicates that Dennis needs stability and

change is hard for him. Yet, his father’s actions in antagonizing the staff by yelling,

micromanaging and writing so many letters that ATC feared a lawsuit, resulted in

Dennis’ removal from the residential facility. 5 Andrew also removed Dennis from

his job so often that Dennis was having a hard time grasping certain tasks and

Dennis had to relearn those tasks after Andrew brought him back. Andrew is

touring facilities in Sioux Falls, South Dakota and out of state in order to place

Dennis in a facility similar to ATC in Aberdeen, South Dakota. However, Dennis’

family and friends are in Aberdeen and Dennis is comfortable and likes living at

ATC in Aberdeen.

4. ATC also indicated Dennis could return if a neutral third party was
appointed as guardian and conservator.

5. The record also contains letters from Andrew to the circuit court and his
children alleging a multitude of claims, including: a depravation of his
constitutional rights, a conspiracy among health professionals and others,
that he was slandered and defamed by opposing counsel during cross-
examination, his wife is mentally unstable, his wife was pushed into
divorcing him by her therapist, he was “sold out” by his attorney, and
(continued . . .)

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[¶13.] At the conclusion of the hearing, after considering the testimony of the

witnesses and reviewing the evidence, the circuit court determined that it was in

Dennis’ best interest for Shirley to be the sole guardian and conservator and to

terminate Andrew’s guardian and conservatorship. It found that it was in the best

interest for Dennis to stay in Aberdeen where he is near both of his loving parents.

It noted that Andrew had a fundamental mistrust of people that “causes

relationships to break down and that is hurting Dennis at this point, because that is

essentially the reason that he was removed from the residential program . . . .”

Finally, the circuit court found that it was in Dennis’ best interest to get back into

the residential program at ATC and concluded the only way for that to happen was

to appoint Shirley the sole guardian and conservator. As counsel for the children

stated in closing argument,

Dennis needs a guardian to advocate for him, to act in his
best interest, to encourage relationships and look out for
Dennis’ care and needs and wants and I know that his
parents have been working to do that, but this current
guardianship arrangement is not working. Dennis was
booted from the apartment with the residential program
through ATC. Professionals who work with Dennis have
been accused of all kinds of things. Doctors have been
pushed, frustrated to comply with Andy’s desires for
Dennis. Change is difficult for Dennis. Change is
difficult for anyone in Dennis’ situation. Currently,
Dennis is in a program that’s working. He enjoys what
he’s doing . . . . He is comfortable with the staff. A move
at this point would not be in Dennis’ best interest. A
move because Andy alienated the ATC as far as the
residential program is not in Dennis’ best interest.

________________________
(. . . continued)
accusations against various counselors and professionals for being
“communist/terrorist subversives” who may have led to their family’s demise.

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Dennis needs someone to help build bridges, not to set
them aflame . . . .

SDCL 29A-5-504 provides in part:

Upon petition by any interested person or on the court’s
own motion, the court may remove a guardian or
conservator or order other appropriate relief if the
guardian or conservator:
...
(12) Is not acting in the best interests of the minor or
protected person or of the estate even though without
fault.

[¶14.] Given the record, Andrew has not demonstrated that the circuit court

abused its discretion.

[¶15.] Affirmed.

[¶16.] GILBERTSON, Chief Justice, and KONENKAMP, ZINTER, and

MEIERHENRY, Justices, concur.

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