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. 4 IN THE SUPREME COURT OF THE STATE OF SOUTH DAKOTA * * * * IN THE MATTER OF THE GUARDIANSHIP AND CONSERVATORSHIP OF NICOLE TRINA STEVENSON * * * * APPEAL FROM THE CIRCUIT COURT OF THE SECOND JUDICI AL CIRCUIT LINCOLN COUNTY, SOUTH DAKOTA * * * * THE HONORABLE STUART L. TIEDE Judge * * * *

MARTY J. JACKLEY Attorney General DANIEL J. TODD Special Assistant Attorney General Pierre, South Dakota Attorneys for appellee Guardian South Da kota Department of Social Services. JOHN A. HAMILTON South Dakota Advocacy Services, Inc. Sioux Falls, South Dakota Attorneys for appellee protected person Nicole Trina Stevenson

. RICHARD L. JOHNSON Sioux Falls , South Dakota Attorney for appellant Moth er D o lores G. Overholtzer

. THOMAS M. KELLER Sioux Falls , South Dakota Attorney for appellee Father Wayne Stevenson

. * * * * CONSIDERED ON BRIEFS ON NOVEMBER 6 , 2012 OPINION FILED 

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- KONENKAMP, Justice [¶ 1. ] T he circuit court ordered a mother’ s removal as guardian and conservator for her disabled adult daughter, after the mother failed to address adequately her daughter’s obesity and transition to more independent living

. The mother appeals. B ackground [¶ 2. ] Nicole Trina Stevenson was born in 1985 with cerebral palsy and developmental disabilities. D o lores Overholtzer and Wayne Stevenson are Nicole’s biological parents. They were married at the time Nicol e wa s born, but divorced in
1995

. After Nicole turned 18, a California court appointed D o lores as Nicole ’ s guardian and conservator . In 2006, Wayne and D o lores stipulated that D o lores and Nicole co uld move to South Dakota with Do lores’s new husband, Harry Ov erholtzer

. [¶ 3. ] In August 2007, D o lores petitioned for guardianship and conservatorship in South Dakota. Wayne objected, contesting jurisdiction and requesting appoint ment as Nicole’s guardian or co

- guardian

. Wayne also sought appointment o f an attorney for Nicole. After a hearing, the court appointed William H. Golden to represent Nicole, and deferred ruling on the petition for gu ardianship. Golden was directed to conduct an investigation and make a recommendation to the
court. He issued a letter report, dated October 29, 2008. I n November 2008, D o lores was appointed Nicole’ s guardian and conservator. Wayne was granted visitation to be exercised through South Dakota Achieve. [¶ 4. ] D o lores and Wayne were unable to cooperate on visitation. Wayne felt D o lores deliberately frustrated his scheduled visits. D o lores insisted that Nicole#26168

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- was capable of making her own decision s and that Nicole did not want to visit with her father. Wayne claimed D o lores was not acting in Nicole’s best interests because she allowed Nicole to gain an immense amount of weight over the years

. Nicole weighed over 300 pounds . D o lores believed Nicole’s weight gain was a result of medication, inability to exercise, and genetics. [¶ 5. ] In Janua ry 2010, Golden was permitted to withdraw as Nicole ’ s attorney because he had obtained new employment. No new attorney was appointed. In April, Wayne petitioned for (1) removal of D o lores as Nicole’s guardian, (2) appointment of the South Dakota Guardian ship Project or anot her independent party as Nicole’s guardian, (3) determination of conservatorship, and (4) appoint ment of an attorney for Nicole. [¶ 6. ] At a hearing in June 2010, Wayne called Golden to testify. His October 2008 report was admitted into evidence. Golden informed the court through h is report and testimony that Nicole was highly dependent on D o lores and that transition to an independent living facility would be in Nicole’ s best interests. He cited the fact that when the part ies lived in California, they agreed that it would be in Nicole’s best interests to transfer to an independent living situation. Golden also reported that D o lores had influence over Nicole’s contact with Wayne, which caused Nicole great anxiety , although Golden d id not believe D o lores was “ overtly attempting to prevent Nicole from visiting with her father[.]” Golden recommended that ( 1 ) a n outside guardian be appointed for Nicole ; ( 2 ) D o lores should act as
conservator ; and ( 3 ) visitation be allowed betwee n Wayne and Nicole , but it should#26168

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- not be “ forced .” Visitation had “ cause d undue anxiety for Nicole and [had] been counterproductive in her relationship with her father.” [¶ 7. ] At the conclusion of the hearing, the court issued an oral ruling. It recognized that “some questions have been raised with respect to this issue of independent living and the pace that [D o lores] is taking in preparing Nicole for that kind of adjustment . . . [and] with respect to the issue of visitation by the father.” But the court decided not to order removal of the guardian at th at time. Rather, it gave D o lores more time to work toward transferring Nicole to independent living. [¶ 8. ] In November 2010, D o lores petitioned the court to appoint an attorney
to represent Nicole. Relying on SDCL 29A

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- 309, D o lores asserted that Nicole desir ed an attorney to represent her and that it would be in her best interests if an attorney represented her, because her interests may be different from those of her parents in r egard to guardianship and visitation. Wayne again sought to end D o lores’s role as guardian and conservator. He alleged that D o lores failed to act in Nicole’s best interests by allowing her weight to reach in excess of 300 pounds and failing to move her i nto independent housing. Wayne also asked for an attorney for Nicole. [¶ 9. ] A t the November 2010 hearing , t he court appointed attorneys Elizabeth Overmoe and John Hamilton of South Dakota Advocacy Services to represent Nicole. The court defe rred the issue of terminating D o lores ’ s rol e as guardian to allow Hamilton and Overmoe time to review the record and consult with Nicole and prepare a report for the court with their recommendations.#26168

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- [¶ 10. ] After Overmoe and Hamilton submitted th eir investigative report, a hearing was held in June 2011. Several witnes ses testified

. Overmoe and Hamilton questioned the witnesses and gave closing arguments. Their report, although previously given to the parties and the court, was not admitted i nto evidence. At the conclusion of the hearing, counsel for D o lores asked to cross examine Hamilton about certain statements made in the investigative report. Counsel argued that Hamilton and Overmoe acted “in the role of an expert” when the y prepared the ir report for the court. The court refused to allow them to testify. It concluded that Overmoe and Hamilton provided their report “in their role as advocate[s] for their client[.]” Noting that the document was not under oath , the court remarked that “[i] t may be little or no different than if they stood up and said what’s in the best inte rests of their client in lieu of oral argument.” [¶ 11. ] In September 2011, the court issued findings of fact, conclusions of law, and an order terminating D o lo res’s appointment as guardian and conservator. D o lores appeals, asserting the court abused its discretion in removing her and barring her attorney from cross - examining Hamilton and Overmoe about their investigative report

. A nalysis and Decision [¶ 12. ] D o lores argues that th e investigative report was in the nature of an expert report because it contained facts and statements from other parties. By preventing her from questioning Hamilton and Overmoe, the court, she contends , denied her due proce ss of law. Wayne responds that the report was never received into evidence and was considered by the court to be equivalent to an argument by#26168

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- counsel on behalf of Nicole. Moreover, Wayne argues that the court did not rely on the investigative report when terminating D o lores’s role as guardian. From Wayne 's point of view, the information in the report as “clearly cumulative and harmless[.]” [¶ 13. ] Attorneys Overmoe and Hamilton similarly argue that the information in the report was much the sa me as the other evidence offered at the hearing

. They contend that any error in receiving the report was harmless, and if D o lores “wanted to have ‘authority’ to cross

- examine, she should have requested that South Dakota Advocacy Services be appointed in s ome other capacity, such as guardian ad litem, court representative, etc.” [¶ 14. ] South Dakota courts have authority to “appoint an attorney for the person alleged to need protection, either upon the filing of the petition or at any time therea fter, if requested by the person alleged to need protection, if the person expresses a desire to contest the petition, or if the court determines that an appointment is otherwise needed to protect the person ’ s interests.” SDCL 29A

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- 309. Alternatively, i f the protected person is not represented by an attorney, “the court shall either appoint a court representative to make an investigation and recommendation concerning the relief requested in the petition, or shall order the person alleged to need protecti on to attend the hearing on the petition.” Id. A “court representative” has the duty to “ make a recommendation to the court concerning the relief requested in the petition and shall submit a written report unless the court otherwise orders. ” SDCL 29A

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- [¶ 15. ] Here, the court appointed Hamilton and Overmoe to represent Nicole. It did not appoint them to be court representatives. Yet the court ordered them to “conduct such investigation as they deem necessary in order to provide the c our t with recommendations as to the best interests of Nicole Trina Stevenson.” Additionally, the court directed the attorneys for Wayne and D o lores to make available all relevant records in possession of the parties related to Nicole’s visitation and indepen dent living issues and ordered Wayne and D o lores to provide all necessary consent s and waivers for Nicole’s attorneys to speak with relevant persons and agencies regarding Nicole. Yet n o parties were to “initiate contact with staff members a t South Dakota Advocacy Services without their respective attorney present[.]” [¶ 16. ] Many courts have grappled with defining the role of appointed advocates in cases involving protected persons

. See In re M.R. , 638 A.2d 1274, 1285 (N.J. 1994 ); see also Gro ss v. Rell , 40 A.3d 240, 260 (Conn. 2012); In re Guardianship of Griesinger , 804 N.W.2d 527, 529

- 30 (Iowa Ct. App. 2011); In re Lee , 754 A.2d 426, 438

- 39 (Md. Ct. App. 2000 ); In re C.W. , 414 N.W.2d 277, 279 ( Neb. 1987) ; In re Guardianship of Jennifer M. , 7 79 N.W.2d 436 , 439 (Wis. Ct. App. 2009) (statutes identify the different roles of appointed advocates)

. Traditionally, an attorney is appointed to zealously advocate for a protected person ’ s wishes , regardless of whether those wishes are in that person ’ s best interests

. A c ourt representative (or guardian ad litem) , on the other hand, is appoi nted to act in a protected person ’ s best interests.#26168

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- [¶ 17. ] In cases where the role of the appointed advocate is unclear, the result can be advocacy of th e protected person’s wishes “diluted by excessive concern for the client’s best interests [.]” M.R. , 638 A.2d at 1285. More problematic, however,

are certain procedural and evidentiary dilemmas when an appointed attorney takes on the role of a court repre sentative

. Although there may be some overlapping of responsibilities, i n many cases , the two roles might require different positions. Also, a court representative can communicate directly with all the parties, whereas

an attorney usually communicate s wi th the client and other counsel. [¶ 18. ] In this case, the role of the attorney s was not clear. W hen attorney G o l den was appointed to represent Nicole, he submitted a report to the court with his recommendation s . He also testified and was subje ct to cross examination. Attorneys Hamilton and Overmoe similarly were appointed to represent Nicole and submitted a report to the court with their recommendation s . But , in contrast to Golden, they were not allowed to testify

. [¶ 19. ] Because of the potential procedural and evidentiary problems, a court should be clear what role it intends the appointed advocate to assume, keeping in mind that the attorne y’s role is not to determine the protected person ’s best interests , but , after advice and a ssistance, to advocate a decision that the client desires . Indeed, the role of an attorney for a protected person should be no different than that of an attorney representing any other client , “ as far as reasonably possible

. ” See S.D. Rules of Profession al Conduct, App. ch. 16

- 8, Rule 1.14. If, on the other hand, the court wishes to have an investigative report submitted on the#26168

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- best interests of the protected person, a court representative is the proper appointment. [¶ 20. ] Nonetheless, c ertai n distinguishing f eatures in this case support the court’s decision. T he court made clear when it appoint ed Hamilton and Overmoe that no communications were to occur with the parties without the presence of opposing counsel. Moreover, although directed t o issue a report to the court, that report was not entered into evidence at the hearing. Rather, it was considered by the court to be argument of counsel advocating for Nicole. Finally, there is no indication that the court relied on the report when it e ntered its findings of fact and conclusions of law. Therefore, while it was confusing for the court to direct Overmoe and Hamilton to prepare a report and make “such recommendations to the

c ourt as they deem necessary and advisable in the best interests o f Nicole,” that
statement alone did not convert Hamilton and Overmoe into court representatives. And even assu ming error in disallowing cross examination , the material they presented in their report and recommendation was cumulative of the material alread y in the record and presented in court. [¶ 21. ] D o lores next argues that the court abused its discretion when it removed her as Nicole’s guardian and conservator. She believes the court erred when it blamed her for Nicole’s weight problem . She directs us to the letter from Dr. Dierks in which he opined that Nicole’s weight is “multifactorial,” caused by her cerebral palsy, limited physical activity, and medications. She further faults the court for concluding that she failed to act in Nicole’s best interests, because the record “is replete” with evidence otherwise. Finally, D o lores argues that the court#26168

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- erred when it concluded that she frustrated Wayne’s visitation with Nicole, “because the evidence established that Wayne Stevenson was getting all of the visitation he wanted with Nicole, and that Nicole had a good relationship with Wayne.” [¶ 22. ] Based on our review of the evidence, we conclude that the court did not abuse its discretion in removing D o lores as Nicole’s guardian and conservator. Everyone agreed in 2004 that moving Nicole into an independent residential living situation would be in her best interests. By 2011, D o lores had not made s ignificant progress toward that goal. Moreover, although D o lores did not overtly disc ourage Nicole’s relationship with Wayne, she did not dispute that her attitude toward Wayne affected Ni cole and caused Nicole anxiety about her relationship with her father. O n the issue of Nicole’s weight, even accepting D o lores’s reasons for Nicole’s

we ight gain

— medication, genetics, etc.

— D o lores did not dispute that she ha d failed to promptly and aggressively manage the issue. One cannot doubt D o lores ’ s sincerity when her attorney writes, “Every day of D o lores’ s life was dedicated to fostering Nico le’s quality of life.” Still, Nicole ’ s long

- term needs had to be addressed. [¶ 23. ] D o lores ’ s request for appellate attorney’ s fees is denied. [¶ 24. ] Affirm ed

. [¶ 25. ] GILBERTSON, Chief Justice, and ZINTER and WILBUR, Justic es,

concur. [¶ 26. ] SEVERSON, Justice, deeming himself disqualified did not participate.