Friday, September 28, 2012

Down the Memory Hole

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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