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### S T A T E O F M I C H I G A N

**C O U R T O F A P P E A L S**

In re GUARDIANSHIP OF DOROTHY REDD.

GARY REDD,

Appellant, FOR PUBLICATION September 19, 2017

9:15 a.m.

v No. 335152

Oakland Probate Court JENNIFER CARNEY and NICHOLE LEGARDY,

as Co

- Guardians for DOROTHY REDD, a Legally Incapacitated Person, LC No. 2014

- 356995

- GA

Appellees.

Before: G ADOLA

, P .J., and C AVANAGH and S WARTZLE , JJ.

S WARTZLE

, J

.

Dorothy Redd is an elderly woman with several relatives who care a great deal for her. One of her sons, Gary Redd, was appointed guardian of Dorothy 1 in 2014

. Two years later, Gary’s daughter, Nichole Legardy, sought to remove Gary as guardian because she alleged that

he was no longer “suitable ” to serve in that role under Michigan’s Estates and Protected Individuals Code (EPIC). The probate court agreed, removed Gary as guardian, and appointed Nichole in his place. 2 Gary now appeals, claiming that the probate court applied the wrong

standard for removal as well as the wrong burden of proof . As explained below, we con clude

that the probate court did not err in re moving Gary as Dorothy’s guardian , and we affirm

.

1 Because of the number of relatives with the same last name, we use first names to refer to the family members involved in this case.

2 The probate court also removed Gary as conse rvator, though he does not take issue with this removal in his statement of questions presented. MCR 7.212(C)(5).- 2

- I. BACKGROUND

Dorothy is 93 years old and is the mother of five adult children: Gary, Michael Redd,

J erome Redd, Sean Burke, and Antonio Burke . At Dorothy ’ s request, Gary has held power of
attorney over her affairs since at least 2005.

In 2012, Dorothy was living in her home in Detroit with three of her sons, Jerome, Sean

, and Michael. According to a report prepared by Dorothy ’ s guardian ad litem in 2014, while living in that home, Dorothy ’ s physical and mental condition deteriorated. Dorothy weighed less than 100 pounds an d suffered from episodes of delusion. These health

- related matters culminated in June 2012, when Gary received a phone call that Dorothy was roaming the streets in her nightgown telling neighbors that thirty or forty people were in her home trying to kill her. In the days following this incident, Gary moved Dorothy into his home, where she resided until August 2016.

In June 2014, Gary filed a petition with the Oakland County Probate Court seeking appoint ment as Dorothy ’ s guardian. Jerome and his daughter, Katrina Tao

- Muhammad, opposed the petiti on and argued that Gary was preventing Dorothy from visiting with family. The probate court found that Dorothy lacked the capacity to care for herself and appointed Gary and an attorney, Jennifer Carney, as co

- guardians.

Over the next two years, several disputes arose between the family members. Several family members continued to argue that Gary was preventing Dorothy from visiting family and argued that Gary was unduly influencing Dorothy against her family members. Jerome and Katrina also questioned whether Gary was properly managing Dorothy ’ s assets and whether Gary should be added to the lease on Dorothy ’ s old home. Michael, among other family members, requested that the probate court prevent Gary from evicting him and Dorothy ’ s other family membe rs from her old home. The probate court entered numerous orders aimed at facilitating Dorothy ’ s visitation with her family members, improving the accounting of Dorothy ’ s finances, and preventing the eviction of Dorothy ’ s family members from her old

home. The probate court nevertheless refused to remove Gary as Dorothy ’ s guardian, despite several motions seeking his removal.

In August 2016, the probate court changed course after learning of a physical altercation between Gary and Nichole regarding Doroth y ’ s lack of visitation with family members. The probate court heard testimony from several past and current members of the family, a police officer, and several unrelated individuals. In all, seventeen persons testified. Of those seventeen persons, at least ten testified that Gary was unduly influencing Dorothy ’ s opinions of her family and was preventing her from carrying on relationships with various family members. Importantly, sev eral persons who previously supported Gary ’ s guardianship now believed that Gary was an unsuitable guardian. Among these individuals were Gary ’ s daughter, Nichole, and Dorothy ’ s co

- guardian, Carney. The probate court found particularly insightful a polic e officer ’ s testimony that while Gary had brought Dorothy to the police station as part of a court

- ordered visit with several family members, he blocked her from interacting substantively with her family members and seemed to be undermining the entire visi t

.- 3

- For her part, Dorothy testified that she wished for Gary to continue as her guardian. The probate court concluded, however, that i t was only required to honor her preference when that person was suitable to serve as guardian . Ultimately, the probate court found that Gary ’ s unwilli ngness to facilitate relationship s between Dorothy and various family members rendered Gary u nsuitable to continue as her guardian. The probate court removed him as guardian and appointed Nichole as co

- guardian with Carney. Gary appeals this decision as of right.

II. ANALYSIS

A. STANDARD OF REVIEW

We review the probate court’s dispositional rulings for a n abuse of discretion

. In re Bibi Guardianship , 315 Mich App 323, 328; 890 NW2d 387 (2016). A probate court abuses its discretion when it chooses an outcome outside the range of reasonable and principled

outcomes. Id. at 329. We rev iew the probate court’s findings of fact for clear error. Id . at 328.

A factual finding is clearly erroneous when this Court is left wit h a definite and firm conviction

that a mistake has been made. Id . at 329. We review de novo any statutory or constitutional interpretation by the probate court

. Id . at 328.

B

. GUARDIANSHIP FOR INC APACITATED INDIVIDUA LS UNDER THE EPIC

Article V, part 3 of the EPIC, MCL 700.5301 et seq ., concerns the appointment of guardians for incapacitated individuals (“wards”)

. Under MCL 700.5303(1), an individual “ in his or her own behalf, or any person interested in the individual ’ s welfare, may ” file a petition seeking a finding of incapacity and the appointment of a guardian. “ T he court may appoint a guardian if the court finds by clear and convincing evidence both that the individual for whom a guardian is sought is an incapacitated individual and that the appointment is necessary as a means of providing continuing care and supervision of the incapacitated individual, with each finding supported separately on the record. ” MCL 700.5306(1). The EPIC sets forth a prioritized list of persons who c ould be appointed as guardian, including a person who the ward “chooses to serve as guardian,” but only if that person is “suitable and willing to serve.” MCL 700.5313(2)(b).

If a guardian is appointed, the ward is granted a number of rights by statute. MCL 700.5306a. Relevant to this case, the ward is granted the right to “ choose the person who will serve as guardian, if the chosen person is suitable and willing to serve

. ” MCL 700.5306a(1)(aa).

The EPIC also includes provisions for removing a guardia n. MCL 700.5310. In this matter, Gary was removed after a petition was filed under MCL 700.5310(2) , which provides that “[t] he ward or a person interested in the ward ’ s welfare may petition for an order removing the guardian, appointing a successor guardian, modifying the guardianship ’ s terms, or terminating the guardianship. ”

C

. A GUARDIAN CAN BE RE MOVED IF HE IS NO LO NGER “SUITABLE”

T here is no dispute that Dorothy is incapacitated and the appointment of a guardian was appropriate. Because Dor othy wished for Gary to serve as her guardian, and because Gary was willing to serve, Gary was entitled to remain as her guardian under MCL 700.5313(2)(b) unless there was sufficient ground for his removal under MCL 700.5310.- 4

- The EPIC does not set forth a specific standard for removal of a guardian. MCL 700.5310 provides the right to petition for an order removing a guardian, but it is otherwise silent as to how a probate court is to determine whether the guardian should be removed. While MCL

700.5313 ex plicitly states that a person who is “suitable and willing” can be appointed a guardian in certain circumstances, the section does not similarly state that the same standard applies to remove a person as guardian. The remaining provisions of the EPIC deal ing with guardians for incapacitated individuals provide little insight on this matter

.

In construing the meaning of a particular provision in statute , in the absence of a definition, we turn first to the statutory context. McCormick v Carrier , 487 Mich 180, 190

- 192; 795 NW2d 517 (2010). Elsewhere in th e EPIC, the Legislature provided for the appointment and removal of a guardian for a minor, as well as the appointment and removal of a conservator for a minor or incapacitated person. In the first circum stance, the Legislature set forth the same standard for appointment and removal of a minor’s guardian

— when the appointment or removal serves the minor’s welfare. Compare MCL 700.5212 with MCL 700.5219(1). In the second circumstance, the Legislature set forth different standards for appointment and removal of a

conservator . F or the appointment, the potential conservator must explain “the basis of the claim to priority for appointment,” MCL 700.5404(2), an d the court can consider several enumerated factors, including whether the potential conservator is “suitable and willing to serve,” MCL 700.5409(1)(h). For the removal, however, a petitioner must simply establish that removal of a

current conservator wou ld be “for good cause.” MCL 700.5414. Given how appointments and removals are handled in other parts of the EPIC, little can be gleaned from those parts on the appropriate standard for removal of a guardian in the incapacitated

- individuals context.

Retu rning to the appointment of a guardian for an incapacitat ed individual under MCL

700.5313

, while that section does not directly state that the same standard applies to removal, it does provide some guidance on the matter

. Specifically, the section general ly sets forth the priority of potential guardians . In several places, however, the section further provides that the court may appoint someone else when a previously identified or designated person is not “suitable or willing to serve.” See, e.g., MCL 70 0.5313(3),(4). While this language certainly applies to persons who were identified

- but

- disqualified prior to any appointment, it also would appear to apply to a person who was previously designated (and appointed) as a guardian but who no longer is “suit able or willing to serve.” In this case, the standard for appointment

— suitable and willing to serve

— would be the standard for removal as well. We find such a reading to be a reasonable construction of the statute, especially considering that the purpose of this part of the EPIC is to protect incapacitated individuals with guardians who have the skills and willingness to act in the best interests of those individuals. Macomb County Prosecutor v Murphy , 464 Mich 149, 158; 627 NW2d 247 (2001). Thus, we hol d that to remove a guardian under MCL 700.5310, the probate court must find that the guardian is no longer suitable and willing to serve.- 5

- D

. WHETHER A GUARDIAN I S “SUITABLE”

We must next construe the meaning of “suitable,” as t he EPIC does not define the term, nor is there controlling authority de fining the term in this context

. Beginning again with
statutory context, McCormick , 487 Mich at 190

- 192, t he overarching purpose of a guardian

under the EPIC is to provide “ for the wa rd’s care, custody, and c ontrol,” MCL 700.5314. In doing so, the EPIC prohibits certain financial self

- dealing by the guardian with respect to the

ward . S ee MCL 700.5313(1) . Moreover, the code provides that a guardian could be someone

who served in that role out

- of

- state if the person is otherwise “qualified, and serving in good standing.” MCL 700.5313(2)(A). Finally, the EPIC sets forth several specific duties of a guardian, including to provide for the ward’s financial, medica l, and social well

- being as well to

make an account ing to the court or other interested individuals. MCL 700.5314

. The EPIC thus

makes cl ear that the guardian’s focus of concern must be on the ward, that decisions made on

behalf of the ward must b e in the interests of the ward and not the guardia n, and that the guardian must be qualified to achieve the purposes set forth in the EPIC

.

Looking to authoritative dictionaries for further guidance, Anzaldua v Neogen Corp , 292 Mich App 626, 632; 808 NW2d 804 (2011), Black’s Law Dictionary (8th ed, p 147 6) defines

“suitable” as “fit and appropriate for [its] intended purpose.” Similarly

, Merriam Webster’s Collegiate Dictionary (11 th e d, p 1248) defines the term as “adapted to a use or purpose” or “able/qualified.” Taken together, the statutory context and guidance from authoritative

dictionaries co nfirm that a “ suitable ” guardian is one who is qualified and able to provide for the

ward’ s care, custody , and control

. With respect to whether an existing guardian remains suitable,

i t logically follows that particularly relevant evidence would include (1) evidence on whether the guardian was still qualified and able, and (2) evidence on whether the guardian did, in fact, satisfactorily provide for the ward’s care, custody, and control in the past.

E

. THE S T ANDARD OF PROOF NEED ED

TO SHOW THAT A GUARDIAN IS N OT “SUITABLE”

With respect to the evidentiary standard to use on whether a current, ward

- preferre d guardian should be removed

, the EPIC does not explicitly provide for one. As with the previous question s , then, we look first to the statutory context of the EPIC. When initially determining whether a person needs a guardian, the EPIC specifically states that the probate court must find “by clear and convincing evidence” that an individual is incapacitated and that the appointment of a guardian is necessary

. MCL 700.5306(1)

. Unlike the initial

- determination stage, however,

the Legislature chose not to set forth a particular evidentiary standard with respect to whether a person is unsuitable to be named

— or to remain as

— a guardian. See MCL 700.5310; MCL

700.5313 (2)

. We must construe this “ omission of a provision in one statute that is included in

another statute . . . as intentional. ” Donkers v Kovach , 277 Mich App 366, 371; 745 NW2d 154 (2007). Accordingl y, we conclude that the Legislature did not intend to apply the “ clear and convincing evidence” standard to the question of a person’s suitability to remain a guardian.- 6

- We find additional guidance by considering whether the question of suitability is left to
the discretion of the probate court. In In re Williams Estate , 133 Mich App at 11

, this Court answered that question by comparing two provisions of the EPIC. Specifically, MCL 700.5313(3) 3 provides in relevant part that “ [i] f there is no person chosen, nominated, or named under subsection (2), or if none of the persons listed in subsection (2) are suitable or willing to serve, the court may appoint as a guardian an individu al who is related to the individual who is the subject of the petition in the following order of preference. ” The Williams Estate court
concluded that the Legislature ’ s use of the term “ may ” in this provision indicated that the appointment of an individu al under MCL 700.5313(3) was to be committed to the discretion of

the probate court

. In re Williams Estate , 133 Mich App at 10

- 11.

Unlike in Williams Estate

, however, the probate court ’ s determination in this case was made under the immediately preceding subsection , which states that the probate court “ shall appoint a person, if suitable and willing to serve

, ” who is preferred by the guardian. MCL 700.5313(2) (emphasis added). The Legislature ’ s use of the word “ shall ” in this context

“ indicates a mandatory and imperative directive. ” Fradco, Inc v Dep ’ t of Treasury , 495 Mich 104, 114; 845 NW2d 81 (2014). Thus, this mandatory directive indicates that a standard giving significant discretion to the probate court is not the correct one to use here.

Where a statute fails to state the standard that probate courts are to use to establish a particular fact, the d efault standard in civil cases

— preponderance of the evidence

— applies. Mayor of Cadillac v Blackburn , 306 Mich App 512, 522; 857 NW2d 529 (2014). B ecause the Legislature has not explicitly provided otherwise, we conclude that a probate court must use the preponderance

- of

- the

- evidence standard when determining whether a person is “suitable” to serve as a ward’s guardian under M CL 700.5313(2) Although this reading means that one

standard

— clear and convincing evidence

— applies to whether a person should become a ward,

but a different standard

— preponderance of the evidence

— applies to whether a particular person

is suitable to be th e ward’s guardian, such a bifurcated system is found elsewhere in the EPIC.

In the child

- welfare context , for example , the Legislature similarly set forth a clear

– and

convincing

- evidence standard for the probate court’s determination that a child should c ome within the protective custody of the c ourt, MCL 712A.2; MCL 712A.19b(3), but then remained

silent on the standard to use for best

- interests determination s , MCL 712A.19b(5). This Court interpreted the omission of a standard in the latter context as int entional and applied the preponderance

- of

- the

- evidence standard. See In re Moss , 301 Mich App 76, 90 and n 2; 836 NW2d 182 (2013). That our Court has previously understood the Legislature to have adopted

bifurcated standards elsewhere in the EPIC lends f urther support to our conclusion here.

Applying th is statutory analysis to the case at hand, before the probate court could remove Gary as Dorothy’s guardian, it was required to find, by a preponderance of the evidence, that Gary was not qualified or able to provide for his mother’s care, custody, and control.

3 The former version of this statute, which is substantially the same as the current version, was codified at MCL 700.454(3).- 7

- Particularly relevant evidence on this question would include whether Gary did, in fact, satisfactorily provide for his mother’s care, custody, and control in the past

.

F

. THE PROBATE COURT PROPERLY APPLI ED

THE PREPONDERANCE OF THE EVIDENCE STANDAR D

Gary claim s on appeal that the probate court applied the wrong standard to his removal. Gary points this Court to the following passage he claims indicates that the probate court erroneously used a discretionary standard :

You know, I

— it is interesting in this trial

— you know, and the question is Gary Redd ’ s suitability, and that ’ s what we ’ re

— we ’ re trying to figure out. I have

to decide that.

. . . And I don ’ t know, Gary ’ s

— you s ay it ’ s their burden of proof. Yeah, admittedly some evidence has to be presented by someone that Dorothy

Redd ’ s preference, you know, her person nominated is not suitable so logically it

would come from them.

But when we think of somebody having a burde n of proof, we think of the standard of proof where it ’ s

— there ’ s clear and convincing evidence with regard to the need for a guardian. There isn ’ t really a

— a standard of proof stated for determining whether one ’ s suitable. It ’ s a fact question, I guess, to be decided by the Judge, and then, a decision to appoint is an exercise of discretion by the Judge. So I have to find whether Gary Redd is suitable or not.

While the probate court mentioned the exercise of discretion in ap pointing a guardian, reading

the probate court’s comments as a whole, it is clear that the probate court understood that whether Gary was “ suitable ” was a question of fact that must be decided before the court could

determine whether to honor Dorothy ’ s sta ted preference. Thus, on the question of suitability, the probate court did not apply a discretionary standard. Rather, it correctly understood th at the question was a factual one, requiring a factual finding based on record evidence. The probate

court further correctly placed the burden of proof on Nichole as the moving party. Therefore, w e find no fault with respect to the probate court’s determination that suitability was a question of fact and that the moving party had the burden.

G

. THE PROBATE COURT DID NOT

CLEARLY ERR IN ITS FACTUAL F INDINGS

Gary also argues that the evidence did not support removing him as Dorothy ’ s guardian and replacing him with Nichole

. While Gary takes issue with several of the probate court ’ s specific factual findings, his arguments amount to an attack on the probate court’s credibility

determinations of the various witnesses who testified in this matter. I t is well

- established, however, that we “will defer to the probate court on matters of credibility, and will give b road deference to findings made by the probate court because of its unique vantage point regarding witnesses, their testimony, and other influencing factors not readily available to the reviewing

court.” In re Erickson Estate , 202 Mich App 329, 331; 508 N W2d 181 (1993).

This intra

- family dispute ha s been highly contentious for years, and the re was wide disagreement by various members about the best course of care for Dorothy. Still, ten of the- 8

- seventeen testifying witnesses either directly testified or s trongly implied that Gary was exerting undue influence over Dorothy and that Gary prevent ed Dorothy from maintaining relationships with several family members. Importantly, Gary ’ s own daughter, Nichole, and Dorothy ’ s co

guardian, Carney (a lawyer unrelate d to any of the family members) , testified that Gary was preventing Dorothy from seeing family members and exerting undue influence over her. Th ese

account s w ere further supported by a police officer ’ s testimony that Gary was not facilitating

visitation w ith Dorothy ’ s family members.

Part of a guardian ’ s responsibility is to provide for the ward ’ s social well

- being. Nearly all witnesses agreed that Dorothy was very family

- oriented and wished to have a relationship with her family members. The record amply supports that Gary was not willing to facilitate these relationships, and was, in fact, actively impeding them

. Moreover, there was evidence presented that Nichole had long attem pted to mend the family discord and had opened her home to all family m embers as a meeting place. Based on our review of this and the rest of the record

evidence

, we conclude that the probate court did not clearly err with respect to its factual findings and did not abuse its discretion by removing Gary as guardian and repla cing him with

Nichole under MCL 700.5310 and 700.5313

.

H

. REMAND TO A DIF FERENT JUDGE IS NOT WARRANTED

Finally, Gary argues that this case should be remanded to a different judge because the judge currently presiding over the matter is biased against Gary. We disagree.

“ The general concern when deciding whether to remand to a different trial judge is

whe ther the appearance of justice will be better served if another judge presides over the case. ” Bayati v Bayati , 264 Mich App 595, 602; 691 NW2d 812 (2004)

. This Court “ may remand to a different judge if the original judge would have difficulty in putting aside previously expressed views or findings, if reassignment is advisable to preserve the appearance of justice, and if reassignment will not entail excessive waste or duplication. ” Id . at 602

- 603.

The bulk of Gary ’ s arguments simply take issue with th e fact that the probate court ’ s factual findings and legal rulings were not in his favor. As explained above, we find no error with respect to the probate court’s findings and rulings here. Moreover, “ repeated rulings against a party, no matter how erron eous, or vigorously or consistently expressed, are not disqualifying. ”

Id . at 603. The party seeking reassignment must demonstrate that the probate judge would be

“ unable to rule fairly on remand. ” Id

. We conclude that Gary has failed to establish that the

current probate judge would be unable to rule fairly on remand. Moreover, we find that reassignment would only “ entail excess waste or duplication ,” id . at 602

- 603, given the probate

court ’ s familiarity with this lengthy and complicated dispute.

III. CONCLUSION

Under the EPIC, a “suitable” guardian is one who is qualified and able to provide for the ward’s care, custody, and control. W hen a preponderance of the evidence weighs against the suitability of the ward’s current choice for guardian , th e probate court must remove that per son as guardian. W e hold that the probate court did not clearly err in concluding that a preponderance of the evidence weighed against G ary’s ongoing suitability as guardian

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- Affirmed.

/s/ Brock A. Swartzle

/s/ Mich ael F. Gadola /s/ Mark J. Cavanagh