## In the Court of Appeals Second Appellat e District of Texas at Fort Worth

___________________________ No. 02

- 19

- 00233

- CV

___________________________

On Appeal from Probate Court No. 2 Tarrant County, Texas Trial Court No. 2018

- GD00257

- 2
Dissenting Memorandum Opinion by Chief Justice Sudderth 

### I N THE 

### G UARDIANSHIP OF 

### N.P., AN 

### I NCAPACITATED 

### P ERSON2 DISSENTING MEMO RA NDUM OPINION Leading questions with “ yes ” or “ n o ” answers do not clear and convincing
evidence make . At least that is what the trial judge

— who was the sole judge of the credibility of the witnesses and weight to be given their testimony

— determined.
Bec au se I would not dis turb the trial court ’ s asse ss ment of the w e ight of the evidence on appeal, I respect fully dissent. Because guardianship is a judicial process by which citizens may be de prived of
their rights and liberties, t he Texas Le gislat ure has ena ct ed a protective statutory scheme with two maj or obstacles to obtaining full guar dianship over a proposed ward

. First, proof of certain essential findings must be by clear and convincing evidence. 1 Second, before a guardian may be appo i nted

— indeed, at a ll stages of the proceedings,

even after a guar di anship has been approved

— the court is required to determine whether less restrictive alternatives to a full guardianship exist that would avoid the

nee d for a full guardianship. 2

1 For e xample , prior to appointin g a guar dian for a proposed ward, the court must find by clear and convincin g evidence that the proposed ward is incapacitated , that appointment of a guardian w ould be in the proposed w ard ’ s bes t interests , and that the appointmen t of a guardian w ould prot ect the proposed ward ’ s rights or property. Te x. Est. Code Ann. § 1101.101(a)(1)( A

– C).

2 Before appoint ing a guardian, the court must find by clear and convincing evidence tha t “ alte rnatives to guardianship tha t would avoid the ne ed for th e appoi ntment of a guardian

. . . and

. . . supports and services ava ilable to the proposed ward that would avoid the need for the appointment of a guar dian have been considered and dete rmined not t o be fe asible. ” Te x. Est. Code Ann

. § 1 101.101(a )(1)( D

– E ) ; see id. § 1151.351 ( requiring supports and services to be3 Th e sta tut ory scheme makes se n s e. Certainly , the removal of a person ’ s fu n damental rights is of such weight and g ravity that due process should require an applicant to just i fy , in a clear and convincing manner, that nothing short of a full guardianship is needed be fore a proposed war d is permanently deprived of her rights

. Clear and convincing proof is that “ degree of proof which will produce in the mind of [ the factfinder ] a firm belief or conviction as to the truth of the allegations sought to
be established. ” T ransp. Ins. Co. v . M oriel , 879 S.W.2d 10, 31 (Tex. 1994) (quoting State v. Addington , 588 S.W.2d 569, 570 (Tex. 1979))

. By adopt ing the clear and convincing standard in th ese proceeding s , the legislature deliberately impose d a stringent burden of proof on the applicants here to establish that the permanent removal of N.P. ’ s right to vo te, marry, and operate a motor vehicle would be in her best interest and would serve to protect her rights or
property. The burden of proof fell to the applicant s to offer clear and convincing
p roof , 3 and it was t he duty of the judge to hold the applica nt s to the sta ndard

considered when the guardian communicates the ward ’ s Bill of Rights to the ward); § 105 4 .104 ( requiring supports an d services to be consi d ered during court v isits) ; § 1201. 052 (requiring supports and services to be consi dered during the court ’ s annual review).

3 The majority ’ s observation that many courts in Texas have promul gated checklists and other procedures to ensure that guardianship p r oceedings be “ smoot h and expeditious ” does not ab rogate the need to provide the requisite proof.

“ Ev erybody else is doing it ” is not a sub stitute for following the standards imp o sed by law.4 imposed by law

. 4 Here , havin g found that the applicants had failed to discharge their
burden of proof as to N.P ’ s right to vote, marry, and operate a m otor vehicle , the

court d ecl ined to award a full guardianshi p an d i nstead elected a li mited guardianship allowing N.P. to retain her righ t to vote, marry, and operate a motor vehicle

. As proof with regard to these three rights , the trial court ha d befo re it the following evidence: (1) testimony of Father , (2) testim ony of Mother , (3) N.P

. ’ s own

test imony, (4 ) Dr. Nagir eddy ’ s Certificate of Medical Examination , a nd (4 ) Dr

. Nagireddy ’ s affidavit

. While all four provide some evidence , in the form of opinions,
that N.P. ’ s right to vo te, marry, and operate a motor vehicl e s hould be removed , n one provide any underlying facts or rea s ons to support the opi nions offered

. 5
A s to F a ther ’ s testimony, he provided on ly the bares t and most minimum of evidence, all of which was elicited from lead ing questions to which Father simpl y

t estified “ yes ” : Q: Do you also concur with Dr. Nag ireddy that your daughter should retain no rights , in clu ding the right to vote, determine whether she gets married, determine her residence or operate a motor vehicle; do you concur with tha t?

4 Likewise , the ma jority ’ s observation that, according to Estat e s Code Sec ti on 1055. 10 1, the rules relating to witn ess es a nd evidence in guardianship proceedings are applied o nly “ to the extent practicab le ” is misplaced. Tex. Est. Code Ann. § 1055.101. The clear and convincing stand ard o f proof is not a mere rule of evidence or procedure; it is the l aw, and it should b e ap plied whether practicable or not.

5 Nor was any evidence offered of “ recurring acts or occurrences in the preced ing six months ” related to N.P. ’ s capacity to vot e, to marry , or to operat e a motor vehicle. See Te x. Est. Code Ann

. § 11 01. 102.5 A: Yes.

. . . . Q: An d in fac t, if you told her to do something and she said yes, would you say that she ’ s jus t a p assive participant and doesn ’ t fully understand what she ’ s consen tin g to? A: Yes.

. . . . Q: And she is not a ble to indepen dent ly vote without und ue influenc e. Is that correct? A: Yes.

. . . . Q: And do you al so agree w ith the doct or that your daughter cannot
. . . make personal decisions regarding residence, voting, operating a motor vehicle, or marriage? A : Y es . Moth e r ’ s testimo ny was even mo re tru n cated : Q: Did you understand all the answers t hat your husband gave? A : Yes, sir. Q: If I ask you those same questions, or they ask you those same questions, would your answers be substantially the same? A: Yes. And , as to these t hree specific rights

— the right to vote, the right to m arry , and
the ri ght to operate a motor vehicle

— N. P

. ’ s testimony provided even less
information. At best, N.P. provided no testimony about these three ri ghts specifically6 an d o nly general evidence indicating that she neede d her family ’ s support to make

“ t h e rig ht decisions ” : Q:

. . . So since you ’ ve tur ned 18

- - A: Yes. Q: Okay. You are an adult. A: Yes. Q: And did yo u know that you can do wha t yo u want? A: Yeah , but I can ’ t. Q: Oh, but you can ’ t? Why ca n ’ t you? A: Because I don ’ t thi nk I would make the right decisions. Q: You don ’ t believe that you would make the right decisions? A: No. I don’ t think I would.

. . . . Q: Okay . And do you want this j udge, Judge Allen h ere, to day, to grant this guardianship

- - A: Yes. Q:

- - that would appoint your mom and dad to be your guardian? A: Yes. Q:

. . . And w hy do you want them to be your g uardian? A: Because I ’ m not capable of doing th ings withou t my family. While the Certific ate of Medical Examination c arried with it the impr imatur o f a medical doctor, on th e issue of whether N.P. ’ s right s to vote, to marry , or to operate7 a motor vehicle should be remo v ed, Dr. Nagireddy ’ s con clusio ns we re likewi s e
cursory. At one place in the form, Dr. Nag ireddy simply responded with check marks

to the following prompt: “ Is the Proposed Ward abl e to initiate and make responsible
decisions concerning himself or herself rega rding the following

. ” As to t he three

c ategories, “ Safely operate a motor v ehicle, ” “ Vote in a pub lic election, ” and “ Mak e decisions regard ing marriage, ” Dr

. N agireddy checked “ No

. ” At a second place on the form , Dr. Nagireddy checked a box la bele d, “ Total ” to in dic ate that “ T he Proposed Ward is totally without capa city (1) to care for himsel f or herself and (2) to

m anage his or her property. ” 6 An d, finally, in Dr. Nagireddy ’ s affidavit , the doctor
averred that , “ Based on my medical exp erti se a nd to a reasona ble medical probability,
withou t a guardian, I do not believe that there are av a ilable supports and services that would enable [N.P.] to

. . . ( d) make personal decisions regarding residence, voting,
opera ting a motor vehicle, or mar riag e. ”
The evidence re cited above was all that was offer e d to support the divesting of
N.P. of her rights to vote, to marry , and to operate a motor vehicl e. Even looking at
the evidence in light most favorable to the applicants , rather than th e fa ctfinder (which wou ld reverse the standard of revi ew on appeal ), I have no difficulty

6 As th e m ajority points out, at one place on the fo r m, Dr. Nagireddy checked two c ontra dictory boxes in error, rather than co rrectly choosing between two options, but the maj ority did not find the error to be “ material. ” Whi le it might not be material to the is sue s befor e us, it does highlight the ha zard s of checklist evidence and migh t giv e a trial judge pause to consider the reliability of other evidence provided through ch eck marks on the same document

.8 understanding how, at the conclusion of the hearing, the trial court was not persuaded by clear and convin cing evidence of the need to divest N

. P

. of her right to vote, or of her right to mar ry , or of her right to operate a motor vehi c le. 7
As to the issue of supports and services, the entire guardianship proce ss is premised on the concept that courts must seek any less rest ric tive alternatives , b oth
formal and informa l, to full guar dianship if support s and services exist and are
feasi ble. 8 Tex. Est. Code Ann. § 1001.001. In this c ase, s upports and services means
resources and assista nce

— both formal and infor mal

— that would enable N.P

. to make personal decisions regard ing v oting, marr ying , an d operatin g a motor vehicle. 9
Id. § 100 2

. 0 3 1

. By requiring judges to consider supports and services al ternatives
before ordering a full guardianship , t he law ju xtaposes the desire t o prot ect a

7 To the extent that the majority f aults the trial judge for not “ closely q uestion[ing] ” the witnesses here, the majorit y misplaces the b urden of providing clear and convincin g evidence . The burden is not on the judge to su pply the
e vidence. Moreover, the judge is not an advocate and shou ld no t be faulted for not act ing like one.

8 The ma jority observes that “ [n]o witness or report or med ical examination suggested that anythi n g less than a full guardianship o f the person wo uld be appropriate for [N.P.] or that any feasible alternatives to gua rdia nship o r feasib le
s upp orts and services existed that would avoid the need for a full guardiansh ip. ” With respect, that also re verses the burden of proof.

9 At best , under the limite d guardianship N.P. could only attempt to operate a motor vehicle. The legal operation of a m ot or vehicle requi res a license. To receive a Tex as driver ’s li cense, N

. P

. would have to take and pass both “kno wle dge and driving tests. ” Tex

. De p ’ t of Public Safety, How to A pply for a Texas D river License , https://www.dp s.texas .gov/driverlicense/ appl yforlicense.htm (last visited Dec. 4 , 2020 ).9 proposed ward from making bad or ha rmful d ecisions against th e right of an
individual t o self

- determinat i on, the freedom of choice , and the opportunity f or human development through learning from decisions made. Fu ll guardianship
contradicts th e prom otion of se lf

- determination as well as t he deve lopment of the
skil ls neces sary for sel f

- determination. And a c hiev ing the right balance between these competin g desires

— the desire to prevent harm and the desire to foster self

de termination

— is of criti cal im portance because, in reality, once a ful l guard ianshi p is

esta blis hed, it is unlikely, if not impossible, to u ndo it

. The law recognizes that with support and g uidance from others, even those
with severe intellectual dis abilities might be able to mak e some choices and decisions
for themselves and , i f so, should be all owe d to do so. F amily members, friends , an d

t rusted advi sors are a type of inform al support s and services and, in fact, are t he type of supports and services that everyone in society who cares about ma king s ound
choices uses from time t o time. Just as in dividu al s without intellectual disabilities
of ten consult family members, friends , or truste d advisors in making important life decisions, those with intellectual disabilit ies should be allowed to do so befor e their
decision

- makin g right s are perma nently s tripped f rom them. Contrary to Dr. Nag ir eddy ’ s opinion that there were no available suppo rts and
services that would enable N.P

. to make decisions about voting, marr ying , or operating a motor vehicle, the record esta blishe d tha t N.P. has availa ble suppo rts and
services to her. N .P. ack nowledged that she needed h elp from her family to make10 goo d choices. Her appreciation for the need of assistance from her family in this regard, combined with her family ’ s obviou s will ingness to provide such assistance, i s eviden ce that supports and services

— albei t uns tructured and informal

— are currently
availab le as an alternative to full guardianship. I take particular issue with regard to N.P. ’s right to vote . The right to vote i s a preciou s one ; permanent disen fran chisemen t s hould not be imposed on such mea ger evi dence as was provided here

. As to Father ’ s “ yes ” answer to the question of whether N.P. is not able to independently vote without undue influ ence, I w ould
p ostulate that most vote rs, at some point, have di scussed with others ( including fa mily
members or t rusted friends ) how they will vote and why

. Given N.P. ’ s tes timony that
she relies on her family to help her make good decisions , I wou ld expect her to do the

same . See king a nd consider ing such i nput and advice does not mean that the voter is

not “ indepe ndently vot[ ing] without undue in f luence. ” It simply acknowl edges that

voters make informed decisions of this nature by considering the opinions of those they trust
. If it wer e not so, then why w ould cand idates and causes seek end orsement from influentia l members of the commun ity?
That this was an uncontested c ase should not relax these standards. In deed, in
such cir cumstances, height ened vigilance might be required t o ensu re that a proposed

w ard ’s rig hts are not being tram pled upon by those who

— even wi th laudabl e and
benevolent motivations and with sincere con viction that full guardi anship is necessary

to protect the propos ed ward fro m harm

— would seek to exer cise more contr ol over11 an individua l than th e law or evidence allows. 10 In these proceedings, wh en the sta kes are so high, the trial court rightfully acts as a gatekeeper, and I cannot fault the trial
court here for assuming that r ole

. Because ther e is some eviden ce supporting th e trial co u rt ’ s det ermination that
alternativ es to a full guardianshi p were both feasible and available , and because the
evidence offered was scant, thus su pporting the trial court ’ s determinatio n that the clear and convincing burden of pro of had not been met, I wou ld h old t hat the trial

court did no t abuse its discretion by granting a limited guardianship in lieu of a full

one as to N.P. ’ s right to vote, to marry , and to ope rate a moto r vehicle.
Bec ause the majority holds otherwise, I respe ctfully dissent

.

/s/ Bonnie Sudderth Bonnie Sudderth Ch ief Justice
Delivered: December 10, 2020

10 Indeed, Dr . Nagireddy rec ommended that N.P. not attend the gua rd i anship hearing at all, opining that she would not be able to “ attend, unde rstand, and participate ” in i t. The rec o rd bel ies this opinion an d pro vides an example of why the trial court cannot relax standards and acce pt all ev idence offered as tr ue just bec ause no one argued the point

.