                          This opinion will be unpublished and
                          may not be cited except as provided by
                          Minn. Stat. § 480A.08, subd. 3 (2012).

                               STATE OF MINNESOTA
                               IN COURT OF APPEALS
                                     A14-0895

                 In re: Guardianship of the Estate of David Tracy Platz, Jr.

                                 Filed December 22, 2014
                                        Affirmed
                                     Peterson, Judge

                               Stearns County District Court
                                  File No. 73-PR-14-2259

Stacy M. Lundeen, Waite Park, Minnesota (for respondent David Tracy Platz, Jr.)

Janelle P. Kendall, Stearns County Attorney, Lotte Rose Hansen, Assistant County
Attorney, St. Cloud, Minnesota (for respondent Stearns County)

David Tracy Platz, Sr., Brenda Kuschel, Albany, Minnesota (pro se appellants)

         Considered and decided by Reyes, Presiding Judge; Peterson, Judge; and Reilly,

Judge.

                         UNPUBLISHED OPINION

PETERSON, Judge

         In this appeal from an order appointing Presbyterian Family Foundation as

guardian for appellant-parents’ profoundly disabled son, appellants argue that the district

court abused its discretion by appointing a non-family member as guardian. We affirm.
                                         FACTS

       David Tracy Platz, Jr. (David) is an eighteen-year-old non-verbal autistic man who

has been described as having a “significant autism spectrum disorder.” David “has been

diagnosed with Disruptive Behaviors Disorder – not otherwise specified, Autistic

Disorder, Moderate Mental Retardation and a suspicion of a diagnosis of General

Anxiety Disorder.” David’s parents, pro se appellants David Platz, Sr. and Brenda

Kuschel, challenge a May 9, 2014 district court order that appoints Presbyterian Family

Foundation as David’s guardian.

       David was placed out of appellants’ home in April 2012 after Stearns County

Human Services (Stearns County) filed a petition alleging that he is a child in need of

protection or services. The petition sets forth a troubled family history that includes a

prior out-of-home placement for David due to his aggression and high needs, appellants’

inability to provide adequate supervision or support for him, and numerous instances of

county and law-enforcement involvement and interventions with the family due to

altercations in the home or other safety concerns. The petition highlights appellants’ use

of physical restraints on David, domestic abuse and verbal altercations between

appellants that had a negative effect on David’s behavior, and David’s escalating physical

violence toward appellants, including hitting his father in the head with a brick, attacking

him with a knife, and bruising his mother.

       With appellants’ consent, David was placed in the permanent custody of Stearns

County in September 2012. At that time, David was six feet tall, weighed almost 300

pounds, and, according to the petition, was diabetic. He began to reside at Opportunity


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Matters, a 24-hour supervised-care facility that offers educational services to people with

cognitive or physical challenges.

       In February 2014, the district court denied appellants’ motion to modify David’s

placement to permit him to reside in their home, finding that it was not in David’s best

interests to do so. Appellants and Stearns County each petitioned for appointment of a

guardian for David in April 2014 when David was nearly 18 years old. The district court

held a guardianship hearing on May 9, 2014. At the hearing, the district court heard

testimony from appellants, the guardian ad litem, and David’s attorney.

       David Platz, Sr. testified that David “made a lot of progress in the last few years”

and acknowledged that David has “done well” since his placement at Opportunity

Matters.   But he asked for David to return to the family home because he and his wife

were able to provide for their son, would be the best advocates for their son, could

respond quickly to David’s needs and would be willing to cooperate with Stearns County

in “acquiring help,” and because it was a financial strain for the family to travel to a town

30 miles away three or four times a week to visit David. David Platz, Sr. also testified

that he had taken an 18-week anger-management course and that he and his wife had

participated in marital counseling.1 But David’s father also admitted that he had no

services in place at home to address David’s needs.

       Brenda Kuschel testified that “David’s aggressions have gone down a lot” since

his out-of-home placement, and she admitted that the family could not quite provide


1
  The record also includes references to mother’s participation in a women’s support
group and individual therapy.

                                             3
David 24-hour supervised care, although she believed they could offer more activities to

him because they live on a farm. Appellants both testified about David’s approximately

120-pound weight loss during the 22 months that David was placed out of home and

acknowledged that when he was in their care they used food as a tool “for learning.”

       The guardian ad litem, Karen Novak, was appointed to represent David on August

14, 2012, and reported visiting him monthly. She testified that Opportunity Matters is

doing a “great job of taking care of [David] and watching him, monitoring him very

closely.” She testified that David’s aggression was “reduced,” he seemed comfortable

and happy at Opportunity Matters, his social and educational needs were met there,

appellants were rude to staff, and she feared that David would regress if returned to

appellants’ care. Novak also testified that it was in David’s best interests to have a “state

guardian” and recommended that David stay at Opportunity Matters. David’s attorney

was unable to effectively communicate with David and provided no evidence to the court

as to David’s wishes or concerns.

       The district court determined that David’s impairment made him incapacitated and

in need of a guardian and that no less-restrictive alternative to guardianship existed. The

district court also found that Presbyterian Family Foundation is “the most suitable and

best qualified among those available and willing to discharge the trust and is not excluded

from appointment pursuant to Minn. Stat. § 524.5-309(c).”             At the close of the

guardianship hearing, the district court gave its reasons for choosing to appoint

Presbyterian Family Foundation, rather than appellants, as David’s guardian:




                                             4
                      I haven’t heard anything about really any negativity
               about how he’s been doing. I mean, it seems like you agree
               he’s been thriving. He lost over 100 pounds, you know, he’s
               learning how to sign, his anger is down dramatically.
                      ....

                       [T]here are certain circumstances where I can look at
               the best interests of the individual and appoint who I think –
               somebody who wouldn’t have priority if I think that’s in their
               best interest. And there’s also a case called the Guardianship
               of Rhoda, R-h-o-d-a,2 and it’s from 2006 in the Court of
               Appeals, and that talked about the fact that that individual
               was thriving where they were and the parents said that they
               would take them out of that placement if they were the
               guardian, and similar to the Court then, I have major concerns
               with that. It sounds like David, Jr.’s doing great where he is:
               he’s becoming more independent, his anger has dropped
               significantly, his weight has dropped significantly. These are
               all very good things. And my concern, like the judge had in
               that case, is that I would rather have the positive known,
               which is Opportunity Matters, compared to the potential
               unknown, which is returning him to your home. You haven’t
               told me what you would do differently that wouldn’t lead us
               to where we were less than, well, about two years ago, and
               that’s a major concern for me. I don’t want him to regress.

                                      DECISION

         Appointment of a guardian “is a matter peculiarly for and within the discretion of

the appointing court, and . . . although generally a court will select a family member as a

guardian, this is not mandatory, since the interests of the ward are paramount.” In re

Guardianship of Fingerholtz, 357 N.W.2d 423, 426 (Minn. App. 1984) (quotation and

citation omitted), review denied (Minn. Feb. 6, 1985); see In re Guardianship of Autio,

747 N.W.2d 600, 603 (Minn. App. 2008) (stating that the district court “need not appoint

a family member as guardian if it determines that the best interests of the proposed ward

2
    In re Guardianship of Rhoda, No. A05-567 (Minn. App. Mar. 28, 2006).

                                             5
will not be served”). A district court’s guardian appointment is reviewed for abuse of

discretion. In re Guardianship of Wells, 733 N.W.2d 506, 508-09 (Minn. App. 2007),

review denied (Minn. Sept. 18, 2007). This court “defer[s] to the district court’s factual

determinations and credibility assessments.” In re Guardianship of O’Brien, 847 N.W.2d

710, 714 (Minn. App. 2014). A finding of fact is “clearly erroneous only if the reviewing

court is left with the definite and firm conviction that a mistake has been made.”

Fletcher v. St. Paul Pioneer Press, 589 N.W.2d 96, 101 (Minn. 1999) (quotation

omitted).

       The parties agree that it is appropriate for a guardian to be appointed for David;

they disagree as to the proper party to appoint as guardian. See Minn. Stat. § 524.5-310

(2012) (setting forth factual bases for appointment of a guardian). The guardianship

statute provides that

              the court, in appointing a guardian, shall consider persons
              otherwise qualified in the following order of priority:

                        (1) A guardian, other than a temporary or emergency
                            guardian, currently acting for the respondent in this
                            state or elsewhere;

                        (2) A health care agent appointed by the respondent in
                            a health care directive that does not include
                            limitations on the nomination of the health care
                            agent as a guardian and is executed pursuant to
                            chapter 145C;

                        (3) The spouse of the respondent or a person
                            nominated by will or other signed writing executed
                            in the same manner as a health care directive
                            pursuant to chapter 145C of a deceased spouse;

                        (4) An adult child of the respondent;


                                                6
                     (5) A parent of the respondent, or an individual
                         nominated by will or other signed writing executed
                         in the same manner as a health care directive
                         pursuant to chapter 145C of a deceased parent;

                     (6) An adult with whom the respondent has resided for
                         more than six months before the filing of the
                         petition;

                     (7) An adult who is related to the respondent by blood,
                         adoption, or marriage; and

                     (8) Any other adult or a professional guardian.

Minn. Stat. § 524.5-309(a) (2012) (emphasis added). The statute provides further that

“[t]he court, acting in the best interest of the respondent, may decline to appoint a person

having priority and appoint a person having a lower priority or no priority.” Minn. Stat.

§ 524.5-309(b) (2012).

       We observe no abuse of discretion in the district court’s decision to appoint

Presbyterian Family Foundation as David’s guardian. Although appellants were ranked

higher in the statutory order of priority, the district court provided valid reasons for

finding that it was in David’s best interests for a professional guardian, rather than his

parents, to be appointed as his guardian. The district court found that David’s needs are

currently satisfied by his placement at Opportunity Matters, and nearly every aspect of

his life has improved while residing there, including his health, education, social

adjustment, and behavior. While appellants want David to live at home with them and

there is no question that they love him, they have not demonstrated that they are prepared

to care for him. David Platz, Sr. stated that he had no services in place at home to ensure



                                             7
proper supervision of David, and the guardian ad litem expressed concern that David

would regress if returned to appellants’ care.      This, coupled with appellants’ prior

unsuccessful management of David’s care, supports the district court’s guardianship

decision. See Autio, 747 N.W.2d at 603-04 (appointing public guardian for mentally

disabled ward and denying ward’s brother’s petition for appointment as emergency

guardian when brother planned to reduce ward’s medications and substitute his own non-

efficacious medicines that treating physician said would cause ward to regress, and

brother could not cooperate with ward’s other caregivers); see also In re Schober’s

Estate, 303 Minn. 226, 230, 226 N.W.2d 895, 898 (1975) (stating, “[t]he best interests of

the ward should be the decisive factor in making any choice on [the ward’s] behalf”).

       Appellants’ brief to this court also addresses other issues and complaints related to

David’s current placement, including past interactions with Stearns County, visitation,

purported bias of the guardian ad litem, the timing of David’s removal from appellants’

home, and appellants’ financial concerns about traveling for visitation. These issues were

not the subject of the guardianship hearing and are not before this court on appeal. Thiele

v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (“A reviewing court must generally consider

only those issues that the record shows were presented and considered by the [district]

court in deciding the matter before it”).

       Affirmed.




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