#26728, #26775-a-GAS

2014 S.D. 10

                           IN THE SUPREME COURT

                                   OF THE

                           STATE OF SOUTH DAKOTA

                                    ****

                              In the Matter of the
                               Conservatorship of
                           DORA LEE GAASKJOLEN,
                              a Protected Person.

                                    ****

                 APPEAL FROM THE CIRCUIT COURT OF
                   THE FOURTH JUDICIAL CIRCUIT
                  PERKINS COUNTY, SOUTH DAKOTA

                                ****
                   THE HONORABLE JOHN W. BASTIAN
                            Retired Judge

                                    ****


JOHN K. NOONEY
MARLI A. SCHIPPERS
Nooney, Solay & Van Norman, LLP
Rapid City, South Dakota                      Attorneys for Appellant
                                              Dora Lee Gaaskjolen.


SARAH E. BARON HOUY
MICHAEL M. HICKEY
Bangs, McCullen, Butler,
 Foye & Simmons, LLP
Rapid City, South Dakota                      Attorneys for Appellees Shane
                                              Penfield and Vicki Penfield.

                                    ****
                                              CONSIDERED ON BRIEFS
                                              ON JANUARY 14, 2014

                                              OPINION FILED 02/26/14
#26728, #26775

SEVERSON, Justice

[¶1.]        The Fourth Circuit Court appointed Dacotah Bank as temporary

conservator, then permanent conservator, for Dora Gaaskjolen. Dora appeals,

arguing the circuit court erred as a matter of law (1) when it appointed Dacotah

Bank as her temporary conservator, and (2) when it appointed Dacotah Bank as her

permanent conservator instead of her daughter. Dora’s first argument is moot, and

the circuit court did not abuse its discretion in appointing Dacotah Bank as Dora’s

permanent conservator, accordingly we affirm.

                                    Background

[¶2.]        Dora is an 87 year-old widow who owns approximately 3,000 acres of

ranchland. In 2007, Dora suffered a traumatic head injury from a farm incident

that resulted in a condition called “expressive aphasia.” That condition makes

communication difficult, even if the individual knows what they want to say. Dora

also suffers from severe dementia, rheumatoid arthritis, chronic atrial fibrillation

with a pacemaker in place, and valvular heart disease, status post mitral valve

replacement. Additionally, Dora had a left total hip arthroplasty and a right hip

hemiarthroplasty. Dora’s injury and illnesses resulted in her inability to care for

herself.

[¶3.]        Starting in 2007, one of Dora’s daughters (Audrey Lorius) began

providing full-time, in-home care. Dora’s other daughter (Vicki Penfield) managed

Dora’s bills. At that time, Audrey had rent-free use of the ranchland’s south half

while Vicki leased the north half for approximately $4,000 per year.




                                          -1-
#26728, #26775

[¶4.]        In August 2012, Dora terminated Vicki’s lease. Vicki consulted her son

(Shane Penfield), an attorney, about the lease situation and the possibility of a

conservator for Dora. Shane filed an ex-parte petition for appointment of temporary

conservator with the circuit court on September 4, 2012. The next day, under SDCL

29A-5-315, the circuit court ordered Dacotah Bank to be Dora’s temporary

conservator for ninety days. On November 13, 2012, both parties stipulated to

extend the temporary conservatorship for an additional ninety days.

[¶5.]        On October 23, 2012, Shane moved for Dacotah Bank to be Dora’s

permanent conservator. On February 6, 2013, Dora moved to set aside the

appointment of Dacotah Bank as temporary conservator and nominated her

daughter Audrey to be her conservator. On February 20, 2013, the circuit court

heard the motions.

[¶6.]        Dora testified at the hearing. The record indicates that Dora had a

difficult time responding to questions and her answers were often unintelligible.

She did, however, say she wanted Audrey to be her conservator. Dora’s physician,

Dr. Frank Thorngren, also testified at the hearing. Dr. Thorngren presented an

evaluation report and testified to Dora’s physical and mental condition. Dr.

Thorngren recommended a conservator based on Dora’s incapacities. Vicki also

testified at the hearing, while Audrey, who was present, did not.

[¶7.]        On February 26, 2013, the circuit court issued its memorandum

decision. It found “by clear and convincing evidence that [Dora’s] ability to respond

to people, events and environments is impaired by dementia and deficits in memory,

orientation, problem solving, to such an extent that she lacks the capacity to


                                          -2-
#26728, #26775

manage property and handle financial affairs without the assistance and protection

of a conservator.” Also, based on Audrey’s bankruptcy, potential inability to post

the required bond, ongoing conflicts with family members, and questionable

financial management practices, the circuit court found insufficient evidence to

support a finding that Audrey was “eligible to act and would serve in [Dora’s] best

interests.” In contrast, the circuit court found Dacotah Bank’s qualifications

uncontested and “eligible to act and would serve the best interests of the protected

person.” Ultimately, the circuit court granted Shane’s motion for Dacotah Bank to

be Dora’s permanent conservator and denied Dora’s motion to set aside the

appointment of Dacotah Bank as temporary conservator and nomination of Audrey

as conservator. The circuit court entered its order on March 4, 2013, pending

submission of findings of fact and conclusions of law.

[¶8.]        On March 14, 2013, Dora moved for reconsideration of appointment of

Audrey as permanent conservator. The circuit court heard Dora’s motion on April

3, 2013, and denied it through order on April 15, 2013. A day later, the circuit court

entered its findings of fact and conclusions of law pertaining to its original

memorandum decision. Dora timely appeals the circuit court’s order denying

reconsideration of Audrey as permanent conservator, memorandum decision,

findings of fact, and conclusions of law. On May 3, 2013, the circuit court ordered

Dacotah Bank as Dora’s permanent conservator. Dora also timely appeals that

order. We consolidated Dora’s two appeals.




                                          -3-
#26728, #26775

                                Standard of Review

[¶9.]        We review a circuit court’s decision to appoint a conservator for an

abuse of discretion. In re Guardianship of Nelson, 2013 S.D. 12, ¶ 15, 827 N.W.2d

72, 76 (citing In re Guardianship of Blare, 1999 S.D. 3, ¶ 9, 589 N.W.2d 211, 213).

An abuse of discretion is “a fundamental error of judgment, a choice outside the

range of permissible choices, a decision, which, on full consideration, is arbitrary or

unreasonable.” Thurman v. CUNA Mut. Ins. Soc’y, 2013 S.D. 63, ¶ 11, 836 N.W.2d

611, 616 (citations omitted). “The ‘circuit court’s factual findings are reviewed

under the clearly erroneous standard.’” In re Guardianship of S.M.N., 2010 S.D. 31,

¶ 11, 781 N.W.2d 213, 218 (quoting In re Guardianship and Conservatorship of

A.L.T. & S.J.T., 2006 S.D. 28, ¶ 37, 712 N.W.2d 338, 347). “Findings of fact are

clearly erroneous when a complete review of the evidence leaves this Court with a

‘definite and firm conviction that a mistake has been made.’” Id. (quoting A.L.T. &

S.J.T., 2006 S.D. 28, ¶ 37, 712 N.W.2d at 347). Legal questions and conclusions of

law are reviewed de novo. In re Woodruff, 1997 S.D. 95, ¶ 9, 567 N.W.2d 226, 228.

                                       Analysis

[¶10.]       Temporary Conservatorship

[¶11.]       Dora argues the petition for appointment of temporary conservator

was legally insufficient and the circumstances did not warrant appointing a

temporary conservator under SDCL 29A-5-315. Shane argues Dora’s appeal on this

issue is moot because a permanent conservator is now in place. We agree; because

no exception to the mootness doctrine applies, we need not address whether the

circuit court erred by appointing Dacotah Bank as Dora’s temporary conservator.


                                          -4-
#26728, #26775

[¶12.]       Permanent Conservatorship

[¶13.]       Next, Dora argues the circuit court erred by appointing Dacotah Bank

as permanent conservator instead of her nominee—Audrey. Shane argues the

circuit court was correct when it found insufficient evidence to support a finding

that Audrey was eligible to act and would serve in Dora’s best interests. Further,

Shane argues the circuit court was correct when it found that Dacotah Bank was

eligible to act and would serve in Dora’s best interests.

[¶14.]       Whether Dora needs a conservator is not at issue; who should serve

that role is. SDCL 29A-5-304 allows Dora to make a choice, stating in part:

             Any individual who has sufficient capacity to form a preference
             may at any time nominate any individual or entity to act as his
             guardian or conservator. The nomination may be made in
             writing, by an oral request to the court, or may be proved by any
             other competent evidence. The court shall appoint the
             individual or entity so nominated if the nominee is otherwise
             eligible to act and would serve in the best interests of the
             protected person.
             ....

At the hearing on February 20, 2013, Dora was asked, “if you wanted a conservator,

who would that be?” Dora answered, “Audrey.” When asked why, Dora could not

answer. Although noting Dora’s confusion, the circuit court did not find that Dora

lacked “sufficient capacity to form a preference[.]” SDCL 29A-5-304.

[¶15.]       But SDCL 29A-5-304’s analysis does not end with the individual’s

nomination. The circuit court then must determine whether the nominee “is

otherwise eligible to act and would serve in the best interests of the protected

person.” SDCL 29A-5-304. See Blare, 1999 S.D. 3, ¶ 24, 589 N.W.2d at 215 (“When

appointing a guardian [or conservator] for a protected person, even if the individual


                                          -5-
#26728, #26775

has made an effective nomination, SDCL 29A-5-304 requires the court to consider

the best interests of that individual.”).

[¶16.]         Addressing Audrey’s eligibility to act and serve in Dora’s best

interests, the circuit court’s findings of fact reflect that: Audrey went through

bankruptcy fifteen years ago, Audrey may not qualify for a required bond, Audrey

and other family members are in conflict making her conservatorship potentially

contentious, Audrey has a history of questionable financial management practices,

and Audrey as conservator causes potential conflicts of interests. Also, the circuit

court stated it was not “presented with any evidence that Audrey Lorius is ‘capable

of providing an active and suitable program of . . . conservatorship.’” 1 See SDCL

29A-5-110. As a result, the circuit court found “insufficient evidence to support a

finding that Audrey Lorius is eligible to act and would serve in the best interests of

the protected person.” Upon review, we cannot say that those findings are clearly

erroneous.

[¶17.]         Even so, Dora argues the circuit court made a legal error by utilizing a

standard based on the alleged inapplicable portion of SDCL 29A-5-304 and by

placing a burden on Dora to establish that Audrey was eligible to act and would




1.       The circuit court noted that Audrey had not appeared in the proceedings and
         did not submit an affidavit. A review of the record indicates that Audrey
         submitted an affidavit on March 14, 2013, in support of Dora’s motion for
         reconsideration after the circuit court’s memorandum decision on February
         26, 2013.


                                            -6-
#26728, #26775

serve in Dora’s best interests. 2

[¶18.]         “[A]lthough the general inclination in this area is to appoint family

members, and most statutes so provide, the best interests of the protected person is

the overriding interest.” Blare, 1999 S.D. 3, ¶ 24, 589 N.W.2d at 216 (emphasis

added) (citing In re Guardianship of Rich, 520 N.W.2d 63, 67 (S.D. 1994)). In

making that best interests determination, the circuit court found SDCL 29A-5-304’s

considerations instructive. The circuit court did not abuse its discretion by using

the factors listed in SDCL 29A-5-304 as instructive.

[¶19.]         Also, Dora takes the circuit court’s finding of “insufficient evidence” out

of context. The record does not indicate that the circuit court placed a burden on

Dora to establish that Audrey was eligible to act and would serve in Dora’s best

interests. Instead, the circuit court properly addressed whether Dora’s best

interests would be served by appointing Audrey conservator. The circuit court

found they would not. This Court gives deference to the circuit court’s ability to

make that determination. See Blare, 1999 S.D. 3, ¶ 29, 589 N.W.2d at 216



2.       SDCL 29A-5-304 states in part:
              In the absence of an effective nomination by the protected
              person, the court shall appoint as guardian or conservator the
              individual or entity that will act in the protected person’s best
              interests. In making that appointment, the court shall consider
              the proposed guardian’s or conservator’s geographic location,
              familial or other relationship with the protected person, ability
              to carry out the powers and duties of the office, commitment to
              promoting the protected person’s welfare, any potential conflicts
              of interest, and the recommendations of the spouse, the parents
              or other interested relatives, whether made by will or otherwise.
              The court may appoint more than one guardian or conservator
              and need not appoint the same individual or entity to serve as
              both guardian and conservator.

                                            -7-
#26728, #26775

(“[S]ubject to statutory restrictions, the selection of the person to be appointed

guardian [or conservator] is a matter which is committed largely to the discretion of

the appointing court.” (quoting In re Guardianship of Jacobsen, 482 N.W.2d 634,

636 (S.D. 1992))).

[¶20.]       In contrast, the circuit court found Dacotah Bank “eligible to act and

would serve the best interests of the protected person.” The circuit court found

Dacotah Bank had been providing banking services to Dora “for decades.” Further,

the circuit court found the bank’s qualifications and capabilities are not contested.

Lastly, the circuit court determined that none of the concerns raised as to Audrey

serving as conservator applied if Dacotah Bank was appointed conservator.

Accordingly, the circuit court found “it is in the best interests of [Dora] that Dacotah

Bank be appointed as her conservator.” The circuit court’s finding and conservator

appointment has support in the record; the circuit court did not abuse its discretion.

Affirmed.

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

WILBUR, Justices, concur.




                                          -8-
