                            COURT OF APPEALS
                            SECOND DISTRICT OF TEXAS
                                 FORT WORTH

                               NO. 02-11-00107-CV


IN THE MATTER OF THE
GUARDIANSHIP OF
CECILIA T. COVINGTON,
AN INCAPACITATED PERSON



                                     ----------

            FROM PROBATE COURT NO. 2 OF TARRANT COUNTY

                                     ----------

              MEMORANDUM OPINION1 ON REHEARING
                                     ----------

      We have considered appellants Franklin E. Covington III’s (Frank) and

Lucila Covington’s (Chila) motion for rehearing and motion for reconsideration en

banc. We deny both the motions but withdraw our February 9, 2012 opinion and

substitute the following.




      1
       See Tex. R. App. P. 47.4.
      In one issue, the Covingtons appeal the trial court’s order denying their

application for reinstatement as guardians of their incapacitated daughter, Cecilia

T. Covington (Ceci). We affirm the trial court’s judgment.

                               Background Facts

      Ceci is a forty-year-old woman with Down Syndrome. Her parents, the

Covingtons, sought and were granted guardianship of Ceci in 2003. In 2006,

Ceci moved into a group home for disabled adults known as Sonnet. Sonnet is

run by Champion Services.

      In 2008, Champion employees became concerned that Ceci’s mental

health was deteriorating. Ceci complained of headaches during the night and

would often stay awake screaming. Champion staff notified the Covingtons that

Ceci was having problems such as “flat affect, not smiling, [and] aggression.” In

early 2009, Ceci began hiding screwdrivers in her room and laying marbles from

a Chinese checkers game in a line at the bottom of the door to her room. One

day, Ceci hit another group home resident because he was sitting in a van where

Ceci wanted to sit. Ceci had imaginary friends that she spoke to, and Champion

staff believed she was spending more and more time talking to them.

      Worried that Ceci’s behaviors were increasing in frequency and severity,

Champion began requesting that the Covingtons consent to have Ceci evaluated

by a psychiatrist. The Covingtons refused, believing that there was a “physical”

source for Ceci’s pain. Champion also discussed the screwdrivers and marbles

with the Covingtons, who did not feel that they were a concern. The Covingtons


                                        2
told Champion that Ceci’s “booby-traps” were “only showing her frustration level

at being bothered constantly” by Champion staff.

      A meeting with Champion staff and the Covingtons was held on June 24,

2009. Champion employees gave the Covingtons an agenda for the meeting,

listing their concerns about Ceci’s health. The first topic listed was a request that

the Covingtons consent to a psychiatric evaluation for Ceci. The Covingtons

responded in a follow-up email, “Psychiatric evaluation will not be performed at

this time.” The second topic involved administration of medicines. One of the

requests was that “[f]amilies cannot bring [over-the-counter] medications and

supplements or pharmaceuticals into the [group home] without written doctor’s

orders.” The Covingtons disagreed that they could not bring supplements into

the home.     Another request was that “[t]he nurse must be notified before

administering any [over-the-counter] medicines and supplements.”                The

Covingtons responded, “Guardians disagree, will not comply.”

      In July 2009, the trial court appointed a guardian ad litem for Ceci without

notice to the Covingtons.     The guardian ad litem then moved to have the

Covingtons removed as Ceci’s guardians without notice to them, claiming that

they cruelly treated Ceci and neglected to maintain her as liberally as her means

permitted.   See Tex. Prob. Code Ann. § 761 (West Supp. 2011) (listing the

grounds for which a guardian may be removed). Specifically, the guardian ad

litem alleged that




                                         3
1. The Ward herein evidences frequent and repeated aggressive
emotional outbursts, and has been repeatedly observed talking to
“imaginary” people. The recommendation of Group Home Staff was
that the Ward receive a complete psychiatric evaluation. The
Guardians both refused, without any expressed reason or valid
justification. It appears that the Ward might benefit from such
evaluation in better understanding whatever may truly be causing
these behaviors.

2. The Ward has returned to the Group Home from several home
visits with the Guardians and has repeatedly brought screwdrivers,
as weapons, because of an imagined fear that someone is taking
her belongings. When advised of this unacceptable behavior, the
Guardians re-affirmed that they did not see any risk in this behavior
[and] would continue to supply the Ward with such weapons.

3. Medication was prescribed for the Ward, namely [Z]oloft, and the
Guardians discontinued and refused to allow the Ward to receive the
prescribed medication, against medical advice, and without
explanation or justification.

4. Guardians continue to self-diagnose the Ward’s medical
problems as “headaches” and continue to seek therapy and
diagnosis to validate their own assessment, without any valid
medical basis, and in contravention of the recommended course of
evaluation and recommended medical treatment. As a result, the
Ward continues to suffer and place others at risk with her
increasingly violent outbursts.

5. The Guardians, in their own letter, stated that they refused to
comply with the request that ‘Nurse must be notified before
administering [over-the-counter] medications and supplement[s]”
Response “Guardians disagree, will not comply[.]”[] Further, the staff
recommendation that “Families cannot bring supplements[,]”[]
response “Guardians disagree[.]”[] The actions of the Guardians
ignore the substantial side effects of many [over-the-counter] drugs
and dietary supplements, some of which are so severe that the FDA
has had to seek legislative intervention to stop distribution. Yet, the
Guardians insist that they would be able to make those decisions
without even communicating with the staff nurse.




                                  4
      After a hearing and without notice to the Covingtons, the trial court found

that the Covingtons cruelly treated Ceci and neglected to maintain her as liberally

as her means permit. The trial court also found that the Covingtons “have both

been proven to be guilty of gross misconduct and gross mismanagement in the

performance of their duties as Guardian” and ordered their removal without

notice. It appointed Guardianship Services, Inc. as Ceci’s new guardian.

      The Covingtons then filed an application for reinstatement as guardians.

After a hearing, the trial court found that the Covingtons failed to demonstrate by

a preponderance of the evidence that they did not engage in the conduct that led

to their removal and denied their application. This appealed followed.

                              Standard of Review

      In their motion for rehearing and their motion for reconsideration en banc,

the Covingtons argue that we applied the wrong standard of review. They argue

that their appeal was a no-evidence challenge. We first note that their issue on

appeal read,

      Did Judge King abuse his discretion by denying the Covingtons’
      application for reinstatement as guardians of their daughter? Stated
      differently does the record reflect by a preponderance of the
      evidence that the Covingtons did not engage in the conduct that was
      alleged by the [guardian ad litem] for their removal?

The Covingtons also stated in their brief, “A guardianship determination is

reviewed under an abuse-of-discretion standard.”      See In re Guardianship of

Finley, 220 S.W.3d 608, 612 (Tex. App.—Texarkana 2007, no pet.); Thedford v.

White, 37 S.W.3d 494, 496 (Tex. App.—Tyler 2000, no pet.).


                                        5
      We do note that neither of the two cases that the Covingtons cite (Finley

and Thedford), although they are the only two cases that we have found

referencing the reinstatement statute, see Tex. Prob. Code Ann. § 762 (West

Supp. 2011), actually review the plaintiff’s reinstatement claim under section 762.

However, we believe the abuse of discretion standard applies here. The trial

court’s determination of reinstatement rests on whether it is satisfied by a

preponderance of the evidence that the applicant did not engage in the conduct

that directly led to the applicant’s removal. See Act of May 30, 1993, 73rd Leg.,

R.S., ch. 957, § 1, 1993 Tex. Gen. Laws 4081, 4123 (amended 2011) (current

version at Tex. Prob. Code Ann. § 762 (West Supp. 2011)).

      The Covingtons argued in their brief on appeal that there was no evidence

to support some of the trial court’s findings, which we construed as a challenge to

the legal sufficiency of the evidence.2     See Uniroyal Goodrich Tire Co. v.

Martinez, 977 S.W.2d 328, 334 (Tex. 1998), cert. denied, 526 U.S. 1040 (1999)

(noting that a legal sufficiency challenge is an argument that (1) the record


      2
        In fact, this section of the Covington’s argument begins, “The Covingtons
challenge the legal and factual sufficiency of the evidence to support the
following findings of fact and the legal sufficiency of the evidence to support the
following conclusions of law: 10a, 10b, 10c, 15, 32, 33, 36, 37, 38, 39, 40, and
41.” The Covingtons then attempt to transform this appeal of the trial court’s
decision in the reinstatement hearing to an appeal of the removal itself by
arguing that “[t]he removal of the Covingtons required clear and convincing
evidence of their cruel treatment of Ceci. See Tex. Prob. Code Ann. § 761(b).”
Whether the Covingtons were removed based on clear and convincing evidence
was not at issue in the reinstatement hearing, nor is it now an issue before this
court.


                                        6
discloses a complete absence of evidence of a vital fact; (2) the court is barred

by rules of law or of evidence from giving weight to the only evidence offered to

prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a

mere scintilla; or (4) the evidence establishes conclusively the opposite of a vital

fact); Robert W. Calvert, “No Evidence” and “Insufficient Evidence” Points of

Error, 38 Tex. L. Rev. 361, 361–62 (1960) (“The controlling consideration with an

appellate court in passing on a point of error directed at the state of the evidence

is not whether the point uses the preferable, or even the proper, terminology, but

is whether the point is based upon and related to a particular procedural step in

the trial and appellate process and is a proper predicate for the relief sought.”).

The abuse of discretion standard includes the legal and factually sufficiency of

the   evidence    as   “relevant   factors   in   assessing    whether    the   trial

court abused its discretion.” Brooks v. Brooks, 257 S.W.3d 418, 425 (Tex.

App.—Fort Worth 2008, pet denied). Thus, a trial court abuses its discretion

when there is no evidence to support its ruling.       D.N.S. v. Schattman, 937

S.W.2d 151, 155 (Tex. App.—Fort Worth 1997, no writ) (citing Loftin v. Martin,

776 S.W.2d 145, 148 (Tex.1989)).       For these reasons, we disagree with the

Covingtons’ premise that we applied the wrong standard of review.3


      3
        To the extent that the Covingtons’ motion for rehearing and motion for
reconsideration en banc can be construed to request that we review the trial
court’s judgment under a different standard than that requested in their appeal,
we cannot address their new issue. See Wentworth v. Meyer, 839 S.W.2d 766,
778 (Tex. 1992) (Cornyn, J., concurring) (“A motion for rehearing does not afford
a litigant an opportunity to raise new issues, especially after the case has been

                                         7
      To determine whether a trial court abused its discretion, we must decide

whether the trial court acted without reference to any guiding rules or principles;

in other words, we must decide whether the act was arbitrary or unreasonable.

Low v. Henry, 221 S.W.3d 609, 614 (Tex. 2007); Cire v. Cummings, 134 S.W.3d

835, 838–39 (Tex. 2004). An appellate court cannot conclude that a trial court

abused its discretion merely because the appellate court would have ruled

differently in the same circumstances.         E.I. du Pont de Nemours & Co. v.

Robinson, 923 S.W.2d 549, 558 (Tex. 1995); see also Low, 221 S.W.3d at 620.

An abuse of discretion does not occur when the trial court bases its decisions on

conflicting evidence and some evidence of substantive and probative character

supports its decision. Unifund CCR Partners v. Villa, 299 S.W.3d 92, 97 (Tex.

2009); Butnaru v. Ford Motor Co., 84 S.W.3d 198, 211 (Tex. 2002).

                                   Discussion

      The Covingtons did not appeal the order removing them as guardians.

Instead, they sought reinstatement under section 762 of the probate code.

Section 762, as it read in 2009, stated,

      (a) Not later than the 10th day after the date the court signs the
      order of removal, a personal representative who is removed under
      Subsection (a)(6) or (7), Section 761, of this code may file an
      application with the court for a hearing to determine whether the
      personal representative should be reinstated.


briefed, argued, and decided on other grounds.”); Morrison v. Chan, 699 S.W.2d
205, 206–07 (Tex. 1985) (holding that court of appeals did not err in refusing to
reverse the case on a point raised for the first time in a motion for rehearing).


                                           8
            ....

      (c) If, at the conclusion of a hearing under this section, the court is
      satisfied by a preponderance of the evidence that the applicant did
      not engage in the conduct that directly led to the applicant’s removal,
      the court shall set aside an order appointing a successor
      representative, if any, and shall enter an order reinstating the
      applicant as personal representative of the ward or estate.

Act of May 30, 1993, 73rd Leg., R.S., ch. 957, § 1, 1993 Tex. Gen. Laws 4081,

4123 (amended 2011) (current version at Tex. Prob. Code Ann. § 762 (West

Supp. 2011)).4 According to the plain language of the statute, the only issue in a

reinstatement hearing is whether the former guardians “did not engage in the

conduct that directly led to [their] removal.” Tex. Prob. Code Ann. § 762(c).

Thus, because the Covingtons proceeded under section 762 instead of an

appeal of their removal, we do not address whether it was error for the trial court

to remove them under section 761(c)(4) without the statutorily required notice,

see id. § 761(c) (requiring personal service of the guardian before removal under

that subsection), or whether clear and convincing evidence was presented at the

removal hearing that they cruelly treated Ceci, see id. § 761(b) (requiring proof

      4
       Under the plain language of the statute, section 762 is only available
when a guardian has been removed under either subsection (6) or (7) of section
761(a). Tex. Prob. Code Ann. § 762(a). Subsection (6) allows for the removal of
a guardian who “has misapplied, embezzled, or removed from the state, or is
about to misapply, embezzle, or remove from the state, all or any part of the
property committed to the guardian’s care.” Id. § 761(a)(6). Subsection (7) in
2009 allowed for the removal of a guardian who “has neglected or cruelly treated
a ward.” Act of May 30, 1993, 73rd Leg., R.S., ch. 957, § 1, 1993 Tex. Gen.
Laws 4081, 4123 (amended 2011) (current version at Tex. Prob. Code Ann.
§ 761(a)(7) (West Supp. 2011)).         The Covingtons were removed under
subsections (a)(7), (a)(8), and (c)(4).


                                        9
by clear and convincing evidence for removal under subsection (a)(7)). The only

question before us is whether the trial court abused its discretion in finding that

the Covingtons did not prove by a preponderance of the evidence that they did

not engage in the conduct that directly led to their removal as Ceci’s guardians.

See id. § 762(c).

      The trial court’s judgment states,

      The conduct of the Applicants alleged and testified to in the removal
      hearing that directly led to the removal of the Applicants included:

            a. Administration of over-the-counter medications and
            supplements to the Ward, and refusing to provide the Group
            Home with information regarding the medications and
            supplements;

            b. Refusal to control the behavior of the Ward from
            repeatedly:

                    1. bringing screwdrivers to the Ward’s room in the
                    Group Home following visits to the home of the
                    Applicants, despite repeated requests from the
                    management of the Group Home to control such
                    behavior;

                    2. setting “booby traps” in the Ward’s room in the
                    Group Home, despite clear statements on the part of
                    the Ward that the intent of the “booby traps” was to “get
                    rid” of a staff supervisor and despite repeated requests
                    from the management of the Group Home to control
                    such behavior;

            c. Refusing to allow the Ward to be evaluated psychiatrically.




                                           10
I. The evidence presented

      A. Administration of over-the-counter medications

      The Covingtons’ expert witness, Dr. Susan Blue, testified that she did not

find anything in the records she was given to review that documented that the

Covingtons insisted that they would make decisions regarding over-the-counter

medicines without communicating with Champion nurses or staff. However, the

Covingtons’ emailed response to the June 24th meeting with Champion stated

that they disagreed with Champion’s policy that the nurse must be notified before

anyone administers over-the-counter medications or supplements and that they

would not comply with the policy. Ceci’s case manager, James Wallace, testified

that their response was unacceptable and that the group home could not allow it.

      There was testimony that Chila asked Champion staff to administer an

unnamed medication to Ceci and when they refused because it had not been

approved by the staff nurse, Chila administered it herself.       There was also

testimony that Chila had taken Ceci to receive some injections at a doctor’s office

outside the home without prior knowledge or approval of the Champion nurse.

Chila then dropped Ceci off at the group home and told the staff that Ceci would

have to be observed for four hours for side effects.

      Angela Berry, the lead attendant at Champion, testified that in early 2009,

Chila told her that Ceci had “become immune” to the Tylenol she was receiving,

and that Chila wanted the staff to administer Motrin to Ceci instead.        Berry

testified, “she actually gave me a note that said, do not give Tylenol, and I was


                                        11
supposed to share that note with my staff; but I had to get that approved through

[the nurse]. I couldn’t just pull the Tylenol and give her Motrin.”

      B. Refusal to control Ceci’s behavior

             1. Screwdrivers

      Chila admitted that Champion staff had reported to her that they had found

screwdrivers in Ceci’s room on more than one occasion, and that they had told

her that it was inappropriate for Ceci to have them in her room. She said that

Ceci “had her own screwdrivers” at the Covingtons’ home. She acknowledged to

Champion that the screwdrivers Ceci had at the group home came from the

Covingtons’ home and that Frank had bought new screwdrivers because the

ones at the house kept disappearing. Dr. Blue opined that Ceci was not bringing

the screwdrivers for “protection” because Ceci “operat[es] at a third grade level.”

      Berry testified that she personally removed four screwdrivers from Ceci’s

room, two from a jewelry box, one wedged in her closet, and one from behind a

dresser. She said that when she informed Chila, Chila responded “like it was

nothing to her.” Berry testified that she was concerned for her safety because

Ceci was “always angry” and had attacked a roommate and a staff member.

      Wallace testified that Champion “asked them to make sure that she didn’t

bring screwdrivers in. And, you know, they just stated that it wasn’t that big of a

deal and we’re blowing it out of proportion because that’s all she was trying to do

was protect herself.” At the June 24th meeting, Champion again discussed the

screwdrivers with the Covingtons. Frank responded by telling Champion that he


                                         12
had a shotgun in his bedroom and saying, “Who doesn’t want to protect

themselves?” Chila testified that Frank does not have a shotgun in his bedroom,

but that he was only “making a point.” Wallace testified that he did not think the

Covingtons’ response was appropriate.

      At the hearing, Chila continued to deny that Ceci’s possession of

screwdrivers posed a threat to others in the group home. She was asked,

      Q. Right. So you’ve got a daughter who is talking to imaginary
      people, carrying on conversations with imaginary people,
      aggressively acted out beating—assaulting somebody in the front
      seat of the van because she didn’t want—because she wanted to sit
      there, and now she’s got screwdrivers by her bedside. You don’t
      see a problem with that?

      A. No, I do not.

      Q. Okay.

      A. I know my daughter.

      Q. Do you see why the group home might be a little concerned
      about that?

      A. I knew what their agenda was.

      Q. What their agenda was? What was their agenda?

      A. A psychiatric evaluation.

            2. “Booby traps”

      Chila acknowledged at the hearing that Champion had reported to her on

more than one occasion that Ceci was arranging marbles in front of the door to

her room at the group home.          Chila claimed that Ceci only played with the

marbles by putting them in lines. Champion staff testified that the marbles were


                                          13
not a game but were specifically arranged “to trap you from opening the door or

to get you.” Ashley Woodard, a direct care staff at Champion, testified, “[W]hen I

asked her to pick them up she says that it’s a booby-trap and she needs them

there. And she doesn’t want to move them.” Berry testified that Ceci would lay

out the marbles very frequently, “too many [times] to count.” Berry testified that

Ceci would talk to her imaginary friend George and

      She would be very angry and upset and she would be talking to
      George about maybe plotting, like she would set booby-traps. That’s
      what Ceci would call them, booby-traps. And the booby-traps she
      said was to get rid of myself and Adele, which is another staff.

           And at one point, she was in her room and she was telling
      George that the trap didn’t work, like, [“]it didn’t work. We got to try
      something else and we will try again tomorrow . . . .[”]

Berry testified that Ceci told her, “You don’t belong here, you got to go.” She

explained,

      She would take marbles and put them along her room door, like,
      right under the door, where if you were to look down, you’re not
      going to see them until you open the door; and when we opened the
      door, we would see them there. And I notified her mother of it and
      she told me, well, the staff should be smart enough to look down on
      the ground or to just stay out of her room.

Wallace also testified that Ceci took “beads” and laid them in front of her door.

He stated,

      And when one of the staff approached her door that—that she told
      them to come in and they saw the beads and they asked what they
      were for. And, I believe, she stated that come on in; you’ll see. And
      then it was later discussed that she—she had them there so that the
      staff would trip and fall.




                                        14
        Dr. Blue testified that it would be a cause for concern if Ceci was setting

booby traps, but in her opinion, Ceci did not have the mental capacity to create a

booby trap. Dr. Blue testified that the notes she read from Champion stated that

the staff laughed about the marbles.

        Berry testified that she started to become concerned that Ceci was hiding

screwdrivers and setting booby traps and “constantly planning to get rid” of staff

members. Berry had all the knives in the group home locked up so that Ceci

would not be able to access them. She explained that because the marbles

came from a game, staff members were not allowed to take them from Ceci

because she was allowed under her service program to have games.

        Wallace testified that when the marbles were reported to the Covingtons,

they did not think it was a serious concern.        Denise Gasmire, the general

manager and owner of Champion, also testified that the Covingtons were

informed of the booby traps but that they “kind of laughed it off.” The Covingtons

told Champion that Ceci’s “booby-traps” were “only showing her frustration level

at being bothered constantly” by Champion staff.

        C. Refusing to allow Ceci to be evaluated psychiatrically

        Gasmire testified that Ceci’s behaviors were “getting very severe.” She

said,

        She would just be physically agitated, some yelling involved with
        that, just a lot of anger.

               We also documented some physical agitation when she would
        start saying, something is poking me. And then, self—like, injurious


                                         15
      behavior, she would hit herself a lot in these episodes and then she
      would talk to imaginary friends. And I believe those were the four
      things that we specifically documented because they happened in
      clusters and one generally leads to the other, especially when she’d
      really get ramped up; so we were tracking those four behaviors
      specifically.

Berry testified that in the months prior to the Covingtons’ removal, Ceci was

talking to her imaginary friends more and more frequently. She also testified that

Ceci was more frequently getting angry at her roommates and staff members.

Wallace also testified that Ceci was acting out more and more frequently.

Gasmire testified that Ceci was unhappy and “suffering.”

      Chila testified that in the three months leading to her removal, she noticed

that Ceci was “in a lot of pain.” She said that Ceci was “very consistent in having

headaches at night. We called them headaches because we didn’t [k]now how

to describe them, or she didn’t know how to describe them; but she was in

extreme pain.” Chila also admitted that Champion staff asked her and Frank

“multiple times” on “multiple occasions” to get Ceci a psychiatric evaluation, but

that she had never taken Ceci to a psychiatrist while she was her guardian.

      The Covingtons did take Ceci to an allergist, an acupuncturist, a

neurologist, a chiropractor, and had sinus surgery and sleep apnea treatments

performed. None of those alleviated Ceci’s episodes. The neurologist’s only

recommendation was that Ceci “use a special hypoallergenic pillow.”            The

Covingtons did take Ceci to a neuropsychologist, Dr. Bengston, but Champion

staff told the Covingtons in the June 24th meeting that Dr. Bengston’s report “did



                                        16
not address any concerns or questions as to what may be the cause of the

behaviors, or how to address the behaviors.” The Covingtons “reported [that] the

behaviors are due to the extreme pain and are mostly her coping mechanisms,”

and stated that the pain and resulting behaviors could be reduced by putting ice

on Ceci’s head, as recommended to them by the chiropractor.            Chila told

Champion that her neighbor had told her that if Ceci was evaluated by a

psychiatrist, he will put her on medication. Chila admitted that Champion was

only asking for an evaluation, not that Ceci be put on medication, but that she

was refusing on the assumption that Ceci would be medicated anyway.

      Two Champion employees at the meeting testified that the Covingtons’

stated reason for refusing an evaluation was the fear that the psychiatrist would

prescribe psychotropic medications.    Chila testified that Champion asked the

Covingtons at least ten times in the meeting to agree to a psychiatric evaluation.

At the hearing, she was asked,

      Q. Did you agree to do the psychiatric evaluation?

      A. No.

      Q. All right.

      A. Not at that time.

      The Covingtons told Champion that they did not want Ceci on medication

until they found “the cause of their daughter’s headaches and pain.” They stated

that they did not “recognize” Ceci’s behaviors as “behavioral concerns but

expressions of extreme pain and discomfort.” They wrote in their annual report


                                       17
to   the    probate   court,   “Cecilia’s   overall   behaviors   were   to   us,   her

parents/guardians, directly related to her sleep deprivation. [Champion] does not

see this.    They have been pushing for a neuropsychiatric and psychological

evaluation since February [2008].” They also told the probate court that they

believed that Ceci was actually improving. The Covingtons’ expert witness, Dr.

Blue, opined that the Covingtons did not inappropriately refuse a psychiatric

evaluation. She testified that the Covingtons’ concern that the psychiatrist would

prescribe medication was a valid concern.

II. Sufficiency of the evidence

      The Covingtons did not prove by a preponderance of the evidence that

they did not engage in the conduct that directly led to their removal as Ceci’s

guardians.    See Tex. Prob. Code Ann. § 762(c).          The preponderance of the

evidence showed that the Covingtons refused to submit to a psychiatric

evaluation on the assumption that Ceci would be medicated. The evidence also

showed that Champion was seeking only an evaluation and not necessarily

psychotropic medication; thus, the Covingtons’ justification was not valid. The

Covingtons also admitted to telling Champion that they refused to abide by

Champion’s policy of notifying the nurse before giving Ceci any over-the-counter

medication or supplements.

      The evidence also showed that the Covingtons did not express any

concern over Ceci’s possession of screwdrivers in the group home or her setting

“booby traps” with marbles in front of her door. There was no evidence that the


                                            18
Covingtons expressed any plan to limit Ceci’s access to screwdrivers at their

house or that they would cease buying screwdrivers to replace the ones Ceci

took.    The Covingtons maintained at trial that Ceci was not a threat to her

roommates or Champion staff, despite acknowledging that Ceci would act out

physically when she was upset or angry.         Although the Covingtons’ expert

testified that because Ceci “operat[es] at a third grade level,” she did not have

the mental capacity to set the traps maliciously, the preponderance of the

evidence was that Ceci was laying out the marbles “so that the staff would trip

and fall.”

        In their motion for rehearing and their motion for reconsideration en banc,

the Covingtons argue that our review of the evidence did not consider the

evidence in its “proper context.” They contend that the word “conduct” as used in

the reinstatement statute equates to the grounds for removal under section 761.

See Tex. Prob. Code Ann. § 761; Act of May 30, 1993, 73rd Leg., R.S., ch. 957,

§ 1, 1993 Tex. Gen. Laws 4081, 4123 (amended 2011) (current version at Tex.

Prob. Code Ann. § 762 (West Supp. 2011)). In essence, they claim that we

should review their behavior and determine whether those acts rise to the level of

cruel treatment or gross misconduct and gross mismanagement in the

performance of their duties as guardians. This amounts to a review of whether

the guardian ad litem presented sufficient evidence to demonstrate that the

Covingtons’ conduct amounted to cruel treatment or gross misconduct at the

hearing for removal. As we noted above, the Covingtons did not appeal their


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removal, although a direct appeal of their removal was available. See, e.g., In re

Keller, 233 S.W.3d 454 (Tex. App.—Waco 2007, pet. denied) (appeal from a

removal); Finley, 220 S.W.3d at 608 (same). Thus, we cannot review the trial

court’s judgment in the removal proceedings to remove the Covingtons.5

      Even construing the word “conduct” in section 762 as the grounds listed in

section 761, as the Covingtons would have us do, we cannot say that the trial

court abused its discretion in finding that the Covingtons engaged in cruel

treatment, gross misconduct, or gross mismanagement. Under the definition that

the Covingtons set forth in their brief, cruel treatment includes “willful persistent

infliction of unnecessary suffering, whether in realization or apprehension,

whether of mind or body.” Goodfellow v. Goodfellow, No. 03-01-00633-CV, 2002

WL 31769028, at *3 (Tex. App.—Austin, Dec. 12, 2002, no pet.) (not designated

for publication). Gross misconduct or mismanagement includes “at minimum: (1)

any willful omission to perform a legal duty; (2) any intentional commission of a

wrongful act; and (3) any breach of a fiduciary duty that results in actual harm to

a beneficiary’s interest.”    Finley, 220 S.W.3d at 619 (quoting Geeslin v.

McElhenney, 788 S.W.2d 683, 684–85 (Tex. App.—Austin 1990, no writ)).

      The preponderance of the evidence showed that the Covingtons refused to

submit Ceci to a psychiatric evaluation without valid justification, allowing Ceci’s

extremely painful headaches to continue. The Covingtons claim in their motion

      5
        Even if we could review the removal, there is no record of the hearing for
us to review.


                                         20
for rehearing and their motion for reconsideration en banc that they based their

refusal of the evaluation on the advice of Ceci’s treating physicians and

neuropsychologists. There was no evidence at the reinstatement hearing that

any doctor told the Covingtons that a psychiatric evaluation was unnecessary or

harmful. Chila only testified that none of the doctors told her to get a psychiatric

evaluation.   In fact, Chila’s testimony was that they refused based on their

neighbor’s claim that Ceci would be medicated.        Champion’s requirement of

notifying the nurse before giving Ceci any over-the-counter medication or

supplements is an important policy implemented to protect Champion residents

from dangerous medication interactions. The Covingtons expressly refused to

abide by the policy, which could lead to serious physical danger, especially

considering the number of doctors that Ceci sees and the number of medications

that Ceci takes.

      As the Covingtons note, section 762’s purpose is to provide improperly

removed guardians the opportunity to be reinstated by proving that they did not

engage in the conduct that led to their removal.          Under any definition of

“conduct,” the Covingtons failed to meet that burden. The preponderance of the

evidence demonstrates that the Covingtons engaged in the conduct that directly

led to their removal. Therefore, we cannot say that the trial court abused its

discretion in denying the Covingtons’ application for reinstatement. We overrule

the Covingtons’ issue.




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                                  Conclusion

      Having overruled the Covingtons’ sole issue on appeal, we affirm the

judgment of the trial court.




                                               LEE GABRIEL
                                               JUSTICE

PANEL: GARDNER, MCCOY, and GABRIEL, JJ.

DELIVERED: May 3, 2012




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