By Nicole Killoran
In re Guardianship of
A.S., 2012 VT
70 (mem.).
As you might imagine, being a developmentally disabled adult
trying to gain some modicum of independence is a difficult and sensitive
process. Today’s case shows us that it
can be equally complicated trying maintain control over the records evaluating
your disability.
Our story revolves around A.S., who went through special
education in primary and secondary school, and was placed in an involuntary
guardianship (with her parents as guardians) when she turned eighteen in
2003. At the time, A.S. did not have the
option for a voluntary Guardianship as the law did not allow someone with
mental and developmental disabilities to seek a voluntary guardianship. In 2010, however, the Legislature amended the
guardianship statutes to allow it, and A.S. sought to “amend” her guardianship
to be voluntary.
As part of A.S.’s petition, the probate court, in compliance
with the guardianship statutes, ordered an evaluation. As laid out in statute, the scope of this evaluation
requirement depends, in large part, on the nature of the guardianship sought. This is important because once a guardianship
is approved, the guardian has legal authority to make decisions for the ward—even
if the ward disagrees or wants something different.
A voluntary guardianship involves an evaluation only as to
whether the petitioner “understands the nature, extent and consequences of the
guardianship requested and the procedures for revoking the guardianship.” In other words, does the ward understand what
is going on and what is happening to her?
Is she making a truly voluntary decision?
Involuntary guardianships, as you might imagine, involve more
extensive evaluation. Whether the court
is creating, modifying, or terminating such a guardianship, the scope of the
evaluation requires the evaluator to describe the “nature and degree of the
respondent’s disability, if any, and the level of the respondent’s
intellectual, developmental, and social functioning.” Such reviews are fairly intrusive, but they
are intended to determine if the individual truly qualifies for an involuntary
guardianship—meaning that he or she is unable to make certain life choices and
that the power to do so should be legally removed and given to a separate guardian.
The problem in this case arose with the level of evaluation
ordered. Given the confusion between
what is required for a voluntary guardianship (a low level evaluation) and what
is required to withdraw from an involuntary one (a higher level evaluation, the
probate court appears to have mixed and matched language in its order from the
two evaluation standards. The probate court
gave the order to Rutland Mental Health
Services (RMHS) who conducted A.S.’s evaluation.
RMHS conducted and delivered to the probate court an
evaluation of A.S. that was extensive and closer to the involuntary
guardianship standard. A.S.’s guardian
objected. He argued that under the
voluntary guardianship statute, RMHS needed only evaluate whether A.S.
understood the “nature, extent and consequences of the guardianship,” and the
procedure for revoking it. But RMHS went
the extra mile, and addressed the “nature and degree” of A.S.’s disability, and
her developmental, intellectual, and social functioning abilities. The probate court agreed with the guardian.
The court ordered the evaluation returned to RMHS, with
direction to delete any language referencing A.S.’s developmental,
intellectual, and social functioning.
Once the evaluation was in RMHS’s hands, however, it didn’t quite know
whether to destroy it, return it to the court under seal, or keep it in A.S.’s
file. RMHS asked the court for
clarification.
Before the probate court received this request, it granted
A.S.’s petition for voluntary guardianship.
Two weeks later the court directed RMHS to return the evaluation to the probate
court under seal. Guardian filed a
motion to set aside this later order, claiming that once the probate court granted
the voluntary guardianship, it no longer had any jurisdiction. The probate court denied guardian’s motion,
and guardian appealed.
On appeal, the SCOV is asked to interpret several aspects of
the guardianship statutes. Guardian
argued that the probate court lacked jurisdiction, which prevented the records
from being corrected. Guardian further
argued that the probate court did not consider A.S.’s best interests. RMHS argued that the court had every right to
order the records returned to it under seal.
The immediate question for the SCOV is whether the probate
court properly denied Guardian’s motion for relief. Ordinarily, the SCOV reviews an appeal from such
a denial with a deferential and sensitive eye.
The SCOV will usually overturning the decision below only if the trial
court appeared to have abused its discretion.
But for today’s case, the SCOV approaches the matter as one of statutory
interpretation. That’s where the gloves
come off because when it comes to interpreting the meaning of statutes, the
SCOV, like Muhammad Ali, is the king of the ring and owes no deference to the
courts below.
The SCOV begins by addressing the question of whether the
probate court’s jurisdiction ended when it granted A.S. a voluntary
guardianship. Guardian insisted that the
guardianship was an independent action. RMHS insisted it was a modification of the
pre-existing involuntary guardianship.
Instead of ruling, though, the SCOV ducks and weaves from
this question to come at it from another angle.
Shifting ground, the SCOV offers a new combination to
approach the problem. It notes that when
the Legislature amended the guardianship statutes, it eliminated the
requirement that a person seeking voluntary guardianship be evaluated for
mental illness or retardation (the latter term is an anachronism from the older
statute that the SCOV apologizes upfront for using).
In making these changes, the Legislature also left the “depth
of disability” language in the statute where the person is seeking to modify or
terminate an involuntary guardianship, ensuring that a conversion or
termination would require a more in-depth evaluation.
According to the SCOV, the probate court here intended (or
should have intended) that A.S. be evaluated according to the less-exacting standard,
even though the actual evaluation considered the depth of A.S.’s disability
under the more-exacting standard.
This is no matter, though, for the SCOV next engages in a
bit of judicial rope-a-dope: whatever the probate court’s intent, the
evaluation is what it is, and even if it went deeper than intended, the court had
jurisdiction over the records after the guardianship proceedings ended under
the records provision of the guardianship statutes. But! Even
though the probate court had jurisdiction, the SCOV concludes that it exceeded
the bounds of its discretion in ordering RMHS to deliver the records to the
court under seal because it failed to consider the sensitive privacy concerns
at issue and ignored Guardian’s objections.
When the probate court ordered the evaluation sealed and
returned, its primary concern, as stated in its order, was that if RMHS
retained the records it might trigger RMHS’s legal obligations and impact A.S.’s
federal benefits. But not only was there
no evidence or findings to this effect, guardian objected strenuously to the
records being sealed, preferring to deal directly with RMHS in amending the
records. In other words: in an attempt
to fix the result of its rather amorphous order, the court ignored what A.S.
herself, through her guardian protecting her best interests, wanted done with
the evaluation.
The SCOV concludes that the probate court exceeded the
boundaries of the guardianship records provision, and therefore abused its
discretion. A.S. and her guardian win
the appeal.
Justice Dooley concurs in the result of the SCOV’s opinion,
but writes separately to take issue with the SCOV’s interpretation of the
probate court’s discretion in deciding the disposition of guardianship
evaluation records. Justice Burgess
joins in his opinion.
The Concurrence reveals some background to this controversy
that did not make it into the majority opinion.
When RMHS asked the court to clarify what it wanted done with the
evaluation once RMHS received the records, RMHS indicated that if the court
told it to destroy them, it would not be obligated under the Developmental
Disabilities Act to reassess A.S. and determine whether she was still disabled,
bringing into question her qualification for federal benefits. In other words: tell us to erase it, and there
is a possibility that A.S. no longer qualifies for public welfare benefits. The probate court, cognizant of this risk,
chose another alternative, albeit one that the guardian did not prefer.
The Concurrence labels the probate court’s sealing decision an
“expungement”—an attempt to rewrite history for a beneficial result. But, the concurrence argues, nothing in the
guardianship statutes gives the probate court authority to “expunge” an
evaluation in order to interfere with the relationship between a “federally
funded social agency and the federal agency that funds it.”
The Concurrence takes issue with the SCOV’s interpretation
of the guardianship records provision as granting the probate court explicit or
inherent authority over the evaluation.
The language of the statute authorizes distribution of the evaluation to
a select number of specified parties, with direction that the records remain
confidential and unshared. The same
provision authorizes the court to restrict access to the evaluation or portions
of it by a party’s or the court’s own motion.
The Concurrence reads this language not as a go-ahead for
the probate court to “expunge” the records, but as permission to restrict
access to the named parties due to confidentiality concerns.
Nothing in the statute authorizes the probate court’s “expungement,”
nor does the Concurrence believe the statute gave the probate court control
over RMHS’s work product, noting that the probate court demanded both the evaluation,
within its control, and the
evaluator’s notes, outside of its control.
Finally, the Concurrence labels the probate court’s attempt
to correct its own mistake trying to “put the genie back in the bottle.” No matter what its mistake, the probate court
cannot erase history “in Orwellian fashion to pretend that it reached some
other conclusion.”
The probate court’s attempt to “rewrite history” has yet to
be resolved, as the case was remanded to the probate court. Whether you agree with the reasoning of the Majority
or the Concurrence, the destiny of A.S.’s evaluation records is still up in the
air. But as mistakes go, at least this
one hasn’t yet been thrust down the memory hole.
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