This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. ß 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-657

 

In re Guardianship and Conservatorship of:

Dustin Ryan Rhoda.

 

Filed March 28, 2006

Affirmed

Shumaker, Judge

 

Chippewa County District Court

File No. P3-04-406

 

 

 

Harry D. Hohman, Hohman Law Firm, LTD., 141 North Miles, P.O. Box 93, Appleton, MN 56208 (for appellant Barbara Rhoda)

 

Spencer H. Kvam, Holmstrom & Kvam, P.L.L.P., 685 Prentice Street, P.O. Box 70, Granite Falls, MN 56241 (for respondent ward)

 

Stephen L. Stennes, Prindle, Maland, Sellner, Stennes, Knutsen & Stermer, Chartered, 102 Parkway Drive, Post Office Box 514, Montevideo, MN 56265 (for respondent Chippewa County)

 

Kevin Rhoda, 5982 County Road 22, Brainerd, MN 56401 (pro se respondent)

 

 

††††††††††† Considered and decided by Lansing, Presiding Judge; Shumaker, Judge; and Halbrooks, Judge.

 

U N P U B L I S H E D†† O P I N I O N

SHUMAKER, Judge

††††††††††† Appellant contends that the district court abused its discretion when it denied her petition to be appointed guardian and conservator of her adult disabled son on the ground that such appointment would not be in her sonís best interests.† Because the record supports the district courtís exercise of its discretion, we affirm.

FACTS

Dustin Rhoda has a condition known as spina bifida/Arnold-Chiari malformation, which is permanent and will never improve.† He is dependent on a ventilator for breathing, must be fed through a stomach tube, and has a tracheostomy.† He has also been diagnosed as being moderately mentally retarded.† He requires 24-hour daily nursing care by medical professionals trained to address his special needs.† He was born on June 26, 1986, and since September 1986 has lived either in hospitals or group homes.† Throughout Dustinís life, his mother, appellant Barbara Rhoda, has assisted with his care to the extent of her ability.

Dustin reached age 18 on June 26, 2004.† Appellant filed with the district court a petition dated September 2, 2004, for appointment to be Dustinís guardian and conservator.† Chippewa County Family Services objected to the petition and noted its intent to request appointment of an alternative guardian and conservator.† The district court held a two-day evidentiary hearing and denied appellantís petition on the ground that it would not be in Dustinís best interests if she were to serve as his guardian and conservator.† Salient aspects of the evidence adduced at the hearing follow.

Since March 25, 2002, Dustin has lived in a group home known as Morning View in Montevideo.† He is thriving in that setting and has achieved substantial independence, relative to his limitations.† He also is able to socialize with other residents, staff, and visitors.† One of his physicians, Dr. Paul Kubic, testified that socialization is very important for Dustinís health.† And, during a visit prior to the hearing, Dr. Kubic commented on his observations of Dustinís condition:

I must admit he was in excellent physical condition from a viewpoint of his respiratory status.† I donít know that I have ever seen him better.† And he seemed to me from a cognitive viewpoint both his receptive skills and his expressive language skills probably as adept as I have seen him in two or three years.† And Iím sure his caretakers and his mother would agree with that.† He seemed to be very focused, surprisingly focused for that late in the day, and was very much in charge of his, all his facilities.† I was very impressed with how good Dustin looked.

 

At Morning View, Dustin receives appropriate specialized nursing services from registered nurses or licensed practical nurses on a one-to-one basis.† Both of Dustinís physicians, Dr. Kubic and Dr. Nancy Kammer, testified that Dustinís care at the group home is adequate.

If appellant were appointed as Dustinís guardian and conservator, she would move him into a handicapped-accessible apartment that she has rented in Clara City, about five miles from her own residence.† The apartment is 20 miles from the office of Dustinís primary-care physician.

Appellant has been actively involved in Dustinís care since he moved into Morning View.† This includes ordering supplies for him, taking him to medical appointments, assisting him with educational tasks, and providing general support and socialization.† However, appellant has not been able to work harmoniously with Dustinís nurses.† She has refused to allow nurses to participate in Dustinís doctor appointments, has often been divisive and confrontational with the nursing staff, and has required multiple meetings with staff members to resolve relatively minor issues.† Although Dr. Kammer testified that parents are encouraged to speak up for their children and that sometimes medical personnel are intimidated by parental advocacy, Dustinís nurses have said that they would not continue to provide services to Dustin if appellant were his guardian.† The alternative source of nursing services in the area does not have adequate staff to provide 24-hour daily care to Dustin.† If full nursing services are not available to Dustin, he would have to be hospitalized.† As Dr. Kubic indicated, ďAnything is better than being institutionalized in a large childrenís hospital.Ē

On this evidence and the record as a whole, the district court concluded that it would not be in Dustinís best interests to become his motherís ward because (1) she has sometimes demonstrated poor judgment; (2) he would be placed in a situation in which valuable and important opportunities for socialization would be scarce; (3) ď[w]ithout adequate socialization, Dustin will become depressed and this may make his health situation more complicatedĒ; and (4) the inability to obtain adequate nursing services for Dustin would require his hospitalization, which would not serve his best interests.

D E C I S I O N

Appellant does not challenge the district courtís determination that Dustin is an incapacitated person under Minn. Stat. ß 524.5-102, subd. 6 (2004), who is in need of a guardian and conservator.† Nor does she dispute that Chippewa County Family Services is an interested person within the purview of Minn. Stat. ß 524.5-303 (2004).† Her sole contention on appeal is that she should have been appointed as Dustinís guardian and conservator and that the district court abused its discretion in denying her petition for that appointment.

The ďappointment of a guardian is uniquely within the discretion of the appointing court.Ē† In re Guardianship of Stanger, 299 Minn. 213, 215, 217 N.W.2d 754, 755 (1974).† The appellate court will not interfere with the discretion of the district court unless it is shown that that discretion clearly has been abused.† In re Guardianship of Kowalski, 478 N.W.2d 790, 792 (Minn. App. 1991).† In deciding whom to appoint as the guardian and conservator of an incapacitated person, the court must consider the personís best interests.† Minn. Stat. ß 524.5-309(b) (2004); see In re Guardianship of Schober, 303 Minn. 226, 230, 226 N.W.2d 895, 898 (1975) (stating that the ďbest interest of the ward should be the decisive factor in making any choice on his behalfĒ).

Under Minnesota law, appellant, as Dustinís parent, enjoys first priority for consideration for appointment as guardian and conservator.† Minn. Stat. ßß 524.5-309(a)(5), -413(a)(6) (2004).† However, as appellant acknowledges, the court may decline to appoint a person with priority status, or a person with no priority, if the wardís best interests would be better served by appointing another.† Id.

Appellant notes that Dustinís physicians support her appointment as guardian and conservator.† Dr. Kubic indicated that appellant ďpossesses all the skills to care for Dustin medically and psychologically, and in my experience has always made good decisions concerning his medical management.Ē† And Dr. Kammer characterized appellant as a ďGillette mother,Ē that is, someone who has acquired more knowledge about a condition than nurses might have and who can provide information to medical personnel in advance of their recognition of a problem.

The district court did not denigrate the level of appellantís knowledge of Dustinís condition or her awareness of his needs.† Rather, the court was most concerned about Dustinís future environment and care if appellant were to become his guardian and conservator.† There was ample evidence that Dustin is receiving appropriate, specialized professional care in his group-home setting from nurses who are familiar with him and his particular needs.† In this setting, he is doing well physically and psychologically.

The evidence shows that if appellant were appointed as Dustinís guardian and conservator, the environment would change from a group home where several other people are always present to an apartment where a single nurse would be present but othersólikely mostly family membersówould be present from time to time.† The court properly concluded that this new setting would pose a risk of diminution of opportunities for socialization that Dustin currently has, all to his detriment.

More critically, the evidence revealed a substantial risk that moving Dustin to an apartment would result in a shortage of available nursing care for him and, in that event, he would have to be hospitalized, clearly to his serious detriment.

Although a reasonable inference to draw from the extensive testimony is that appellant is a loving mother who wants the very best for Dustin and who is willing to be an assertive advocate for his care, there is a more compelling inference to be drawn: If Dustin is removed from a setting in which proper care has been demonstrated and in which he has thrived and is instead placed in a setting that poses serious risks to his well-being, the district court properly exercises its discretion when it chooses the positive known as opposed to the potentially negative unknown.† The court did so and did not abuse its discretion in denying appellantís petition for appointment as Dustinís guardian and conservator.

Affirmed.