Howard v. Jenkins (In re Howard)
Howard v. Jenkins (In re Howard)
Opinion of the Court
This appeal arises from Sarah Howard Jenkins's
Vivian is ninety-two years old. She is deaf and partially blind, uses a wheelchair, and has been cared for in her home by her daughter Risie since 2012. In July 2017, Vivian's daughter Sarah filed a petition for guardianship of the person and estate of Vivian, citing Vivian's declining health and inability to manage her finances and care. Sarah alleged that, while her sister Risie had been living with their mother, Risie had transferred a significant amount of Vivian's money to Risie's personal checking account, directed that numerous payments be made from Vivian's accounts for Risie's expenses, and failed to properly care for Vivian. Vivian filed a motion to dismiss on which the court never ruled.
The original guardianship hearing was set for September 12, 2017, but was continued on a motion filed by Vivian. At the subsequent hearing, held on February 7, 2018, Vivian argued that the petition should be denied because the statutorily required medical evaluation had not been performed. The court stated that the argument was premature. Dr. Robin Perry testified that she has been treating Vivian for approximately two years. Vivian's attorney objected that Dr. Perry's testimony should be excluded pursuant to the doctor-patient privilege, which Vivian had not waived. The court took the argument under advisement. Dr. Perry testified to examining Vivian on March 21, 2017, and testified to Vivian's medical conditions, including moderate-to-severe age-related dementia. Dr. Perry's professional evaluation was entered into evidence as petitioner's exhibit 1.
Sarah testified about the events giving rise to her guardianship petition. During Sarah's testimony, the court noted the time of day and stated that it was clear that the hearing could not be completed in *774the time remaining and that it would need to be continued. The court ordered that Vivian remain in Risie's care until the next hearing but said that the rest of the family should have access to Vivian. The court then noted that both the court and the bailiff had concerns about Vivian's current medical condition and stated,
The court security officer is concerned about her. I am concerned about her. I want her taken and evaluated and I want a report back on whether she needs to remain where she is at on Second Street in her home or does she need to be placed in an assisted living facility or a medical wing of a hospital. Based on what I've heard so far, what I see and the court's bailiff's concerns observing her, I'm concerned about her and I want this done. So I want Ms. Jenkins and Ms. Risie Howard, I am appointing both of you to see that your mother gets to a doctor. And if you want to use Dr. Perry, let's just use Dr. Perry.
The court continued the hearing and issued a written order requiring the sisters to obtain a professional medical evaluation on Vivian the following day, February 8. The court's order required that the evaluation address Vivian's medical condition(s) and provide recommendations as to her future care, including but not limited to continued care at home, full-time nursing-home care, or assisted-living care. Vivian filed a notice of appeal stating that she was immediately appealing this order pursuant to Rule 2(a)(12) of the Arkansas Rules of Appellate Procedure-Civil.
We review probate proceedings de novo, but we will not reverse a finding of fact by the circuit court unless it is clearly erroneous. Donley v. Donley ,
Although Vivian has appealed only the order requiring her to undergo a professional medical evaluation, her first point on appeal attacks the court's subject-matter jurisdiction over the entire case and seeks dismissal of Sarah's guardianship petition. Vivian claims that, because a professional evaluation was not attached to the petition for guardianship, the court had no power to hear the matter or issue the order from which she appeals. She presents the issue as one of subject-matter jurisdiction. We disagree.
Whether Sarah has fully complied with the statutory requirements
In a recent guardianship case, we addressed a similar issue and explained,
At oral argument, [appellant's] counsel made clear that this was an argument about the circuit court's jurisdiction to issue the original guardianship order, asserting that the petition's deficiencies meant that the court lacked jurisdiction to issue the order. We disagree. The law has long recognized a difference between a lack of jurisdiction and the erroneous exercise of jurisdiction. See, e.g. , Cato v. Craighead Cty. Circuit Court ,2009 Ark. 334 , at 5,322 S.W.3d 484 , 488 (citing Erin, Inc. v. White Cty. Circuit Court ,369 Ark. 265 , 268,253 S.W.3d 444 , 446 (2007) ). Moreover, in other cases in which we have found that the statutory requirements for obtaining a guardianship were not met, we have reversed rather than dismissed for lack of jurisdiction, indicating that a deficiency in the evidence presented to obtain the guardianship order does not strip the court of jurisdiction. See Autry v. Beckham ,2014 Ark. App. 692 , at 7,450 S.W.3d 247 , 251.
Baptist Health Med. Ctr. v. First Cmty. Bank of Batesville ,
Vivian also specifically challenges the court's authority to issue the professional-evaluation order from which she appeals. Arkansas Code Annotated section 28-65-212, which requires that a professional evaluation be performed within six months of the hearing, specifically states that "[i]f no professional evaluations performed within the last six (6) months are available, the court will order an independent evaluation."
*776All of Vivian's remaining arguments relate to the sufficiency or admissibility of the evidence supporting Sarah's guardianship petition.
Affirmed.
Gruber, C.J., and Klappenbach, J., agree.
Portions of our record also refer to the appellee as Sarah Howard Jenkins Hobbs. For clarity, we have used the name by which she refers to herself in the appellee's brief.
On appeal, Sarah argues that Risie, not Vivian, is the true appellant. While we note that Risie's various roles in the case have caused some procedural confusion (she has, at various times, appeared as counsel of record for her mother and is also a fact witness in the case), Risie is not a party and has not claimed to bring an appeal on her own behalf. Vivian, a named party in the case, has appealed, and we recognize her as the appellant.
Arkansas Code Annotated section 28-65-212(a)(1) (Repl. 2012) requires that a professional evaluation be performed prior to the court hearing on any petition for guardianship (with a few exceptions that do not apply here). The statute later provides additional guidance as to what the evaluation must entail. It must have been completed within six months of the hearing.
Moreover, Vivian has waived this argument by voluntarily complying with the court's professional-evaluation order. A person who voluntarily complies with an order may not appeal the order. See, e.g. , Hall v. Hall ,
Vivian argues that Dr. Perry's testimony should have been excluded pursuant to doctor-patient privilege and HIPPA, that Dr. Perry's testimony and evaluation form are insufficient to support the petition, and that the guardianship petition was contrary to Vivian's wishes as expressed in a succession of healthcare directives and durable powers of attorney.
The statute does not allow for an immediate appeal from an order removing a fiduciary for failure to give a new bond or render an accounting required by the court or an order appointing a special administrator.
Reference
- Full Case Name
- In the MATTER OF the GUARDIANSHIP OF Vivian HOWARD Vivian Howard v. Sarah Howard Jenkins
- Cited By
- 2 cases
- Status
- Published