IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2021 ND 196

In the Matter of the Guardianship of M.H., an incapacitated person

T.F., Petitioner and Appellee

v.

M.H., ward, Respondent and Appellee

and

J.H., Respondent and Appellant

No. 20210069

Appeal from the District Court of Morton County, South Central Judicial 

District, the Honorable Bruce A. Romanick, Judge.

AFFIRMED.

Opinion of the Court by Jensen, Chief Justice.

Heather M. Krumm, Mandan, ND, for petitioner and appellee; submitted on 

brief.

Cynthia Wagner Goulet, Bismarck, ND, for respondent and appellee; 

submitted on brief.

Travis D. Iversen, Bismarck, ND, for respondent and appellant; submitted on 

brief.

FILED 

IN THE OFFICE OF THE 

CLERK OF SUPREME COURT 

OCTOBER 28, 2021 

STATE OF NORTH DAKOTA
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Guardianship of M.H.

No. 20210069

Jensen, Chief Justice.

[¶1] J.H. appeals from an order and findings of fact denying his petition to 

remove T.F. as guardian of M.H., appoint himself as guardian, and remove 

contact restrictions T.F. placed on his contact with M.H. On appeal, J.H. argues 

the district court abused its discretion in denying his motion to remove T.F. as 

guardian and refusing to remove restrictions T.F. placed on his contact with 

M.H. He argues the finding that he is unable to civilly structure his contact 

with M.H. is clearly erroneous. Because the district court did not abuse its 

discretion in ordering T.F. remain M.H.’s guardian and its findings of fact are 

not clearly erroneous, we affirm.

I

[¶2] J.H. and T.F. are the parents of M.H., who is an adult. J.H. and T.F. were 

previously married and divorced. T.F. has been M.H.’s guardian since 2015.

M.H. resides in an apartment, with a roommate, that is continuously staffed 

by HIT, Inc., a non-profit organization providing services to people with 

disabilities.

[¶3] In September 2020, J.H. filed a notice of petition, motion, and brief 

regarding the guardianship. In his petition and motion, J.H. argued that T.F. 

should be removed as guardian and he should be appointed guardian pursuant 

to N.D.C.C. § 30.1-28-07(1). In his brief, he argued T.F. abused her discretion 

in limiting his contact with M.H.

[¶4] In December 2020, the district court held a guardianship review hearing. 

T.F., J.H., M.H., and several other witnesses testified at the hearing. The courtappointed visitor testified the consensus among HIT, Inc. staff was that J.H. 

caused problems for M.H. T.F. testified that she restricted J.H.’s contact with 

M.H. because of his outbursts towards the staff, which negatively affects M.H.

[¶5] Following the hearing the district court denied the change of guardian, 

found J.H. “is unable to civilly attempt to structure his contact with [M.H.] 
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through [T.F.],” and found the restriction placed on J.H.’s contact with M.H. 

were for M.H.’s benefit. J.H. appealed.

II

[¶6] J.H. challenges the district court’s denial of his request to replace T.F. as 

M.H.’s guardian. “[C]ourts in Uniform Probate Code jurisdictions apply the 

abuse of discretion standard when reviewing a trial court’s selection of a 

guardian and conservator.” In re Guardianship of B.K.J., 2015 ND 191, ¶ 4, 

867 N.W.2d 345 (internal citations omitted). “A court abuses its discretion if it 

acts in an arbitrary, unreasonable, or unconscionable manner, its decision is 

not the product of a rational mental process leading to a reasoned 

determination, or it misinterprets or misapplies the law.” Id. (internal citations 

omitted).

[¶7] “On petition of the ward or any person interested in the ward’s welfare, 

the court may remove a guardian and appoint a successor if in the best 

interests of the ward.” N.D.C.C. § 30.1-28-07(1). Under N.D.C.C. § 30.1-28-

11(1), “[a]ny competent person or a designated person from a suitable 

institution, agency, or nonprofit group home may be appointed guardian of an 

incapacitated person.” Priority for appointment as guardian is given to 

specified individuals, including to “[a] parent of the incapacitated person[.]” 

N.D.C.C. § 30.1-28-11(3)(d). “With respect to persons having equal priority, the

court shall select the one it deems best qualified to serve.” N.D.C.C. § 30.1-28-

11(4).

[¶8] As her parents, J.H. and T.F. have equal priority to serve as M.H.’s 

guardian. N.D.C.C. § 30.1-28-11(3)(d). In denying J.H.’s request to be guardian, 

the district court found the following with regard to J.H.: M.H.’s staff were 

fearful of J.H., J.H. has not managed M.H.’s paperwork, J.H.’s behavior 

towards M.H.’s staff is unacceptable, and J.H. provided no evidence that he has

changed from his last interaction with the staff or prior inappropriate

interactions with T.F. The court’s findings also outlined the positive impact T.F. 

has as a guardian on M.H. The court noted in its findings the court-appointed 

visitor’s report, which concluded it would be in M.H.’s best interests for T.F. to 

continue as guardian. After our review of the record, we conclude the court did 
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not act arbitrarily, unreasonably, or unconscionably, and it made a reasoned 

determination of guardianship. The court did not abuse its discretion and we 

affirm the court order re-appointing T.F. as M.H.’s guardian and declining to 

appoint J.H. as M.H.’s guardian.

III

[¶9] J.H. argues the district court erroneously found he is unable to civilly 

structure his contact with M.H. We apply the clearly erroneous standard under 

N.D.R.Civ.P. 52(a) when reviewing findings of fact in a guardianship

proceeding. In re Guardianship of B.K.J., 2015 ND 191, ¶ 4 (citing references 

omitted). “A finding of fact is clearly erroneous if it is induced by an erroneous 

view of the law, if no evidence exists to support the finding, or if, on the entire 

record, [this Court is] left with a definite and firm conviction a mistake has 

been made.” Id. (citing references omitted).

[¶10] The district court found J.H. “is unable to civilly attempt to structure his 

contact with [M.H.] through [T.F.].” The court also found M.H. is in need of 

significant structure in her life, and that J.H. has been disruptive both to M.H. 

and her staff. J.H. does not contend the findings were induced by an erroneous 

view of the law. There is evidence in the record to support the findings, and we 

are not left with a definite and firm conviction a mistake has been made. We 

conclude the court’s finding that J.H. is unable to civilly structure his contact 

with M.H. is not clearly erroneous.

IV

[¶11] J.H. challenges the restrictions T.F. placed on his contact with M.H. We 

have not previously stated our standard of review for a guardian’s decision to 

limit contact between the ward and a family member. J.H. argues the standard 

of review is abuse of discretion. T.F. argues the standard of review is clearly 

erroneous relying on a decision of the Nebraska Supreme Court. In re 

Guardianship and Conservatorship of Karin P., 271 Neb. 917, 716 N.W.2d 681 

(Neb. 2006).
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[¶12] Section 30.1-28-12(3), N.D.C.C., requires a guardian to “make provision 

for the care, comfort, and maintenance of the ward[.]” At least one jurisdiction 

has construed the language “care, comfort, and maintenance” to include control 

of the ward’s visitation and held delegating visitation decisions to the guardian 

is appropriate. See In re Guardianship and Conservatorship of Karin P., 716 

N.W.2d 681, 690 (Neb. 2006).

[¶13] T.F. argues N.D.C.C. § 50-25.3, dealing with visitation of vulnerable 

adults, controls the district court’s decision to uphold her contact restrictions 

on J.H. Section 30.1-26-01(2), N.D.C.C., defines “incapacitated person” to 

include any adult person who is impaired by reason of mental illness or mental 

deficiency. Section 50-25.3-01(7), N.D.C.C., defines “vulnerable adult” as an 

adult who has substantial mental or functional impairment or an adult 

experiencing visitation restrictions while under the care of a caregiver. While 

“incapacitated person” and “vulnerable adult” are not synonymous in every 

case, M.H. is a vulnerable adult.

[¶14] Under N.D.C.C. § 50-25.3-02, a “caregiver may not unreasonably or 

arbitrarily deny or restrict visitation to a family member . . . or communication 

or interaction between a vulnerable adult and a family member[.]” The district 

court “may impose conditions on visitation,” “may prohibit contact between the 

petitioner and the vulnerable adult when contact is not in the best interest of 

the vulnerable adult” and may not compel visitation when the vulnerable adult 

“expresses a desire to not have visitation with the petitioner.” N.D.C.C. §§ 50-

25.3-03(5)–(7).1

1 A law enacted in the 2021 Legislative Session expressly permits a guardian’s restrictions on contact 

with the ward. Section 30.1-28-12.2, N.D.C.C., provides a guardian may restrict visitation, 

communication, and interaction with the ward if it is in the best interests of the ward. If the restriction 

is challenged, the district court may “impose conditions on visitation, communication, and interaction 

between the restricted party and the ward” or “prohibit visitation, communication, or interaction 

between the restricted party and the ward” if the visitation, communication, or interaction is not in 

the best interests of the ward. N.D.C.C. § 30.1-28-12.2(7)-(8). However, because the law was not 

enacted at the time of the hearing, it is not addressed in this opinion.
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[¶15] T.F., as guardian of M.H., exercised her discretion in enacting 

restrictions between M.H. and J.H. for the benefit of M.H. The district court 

made a finding of fact as to whether T.F. unreasonably or arbitrarily denied 

contact between J.H. and M.H., and found that the restrictions were for M.H.’s 

benefit. We agree with T.F. that the standard of review is clearly erroneous as 

the district court must make a finding of fact as to whether the guardian 

arbitrarily denied or restricted visitation between the vulnerable adult and a 

family member when considering a challenge under N.D.C.C. § 50-25.3-02. “A

finding of fact is clearly erroneous if it is induced by an erroneous view of the 

law, if no evidence exists to support the finding, or if, on the entire record, [this 

Court is] left with a definite and firm conviction a mistake has been made.” In 

re Guardianship of B.K.J., 2015 ND 191, ¶ 4 (citing references omitted).

[¶16] T.F. testified that she restricted J.H.’s contact with M.H. because of his 

outbursts directed at M.H.’s staff, which negatively affects M.H. M.H. gave 

conflicting testimony related to seeing J.H., but at the December hearing, 

shook her head no to wanting to see J.H. more and answered “no” to J.H. 

coming to her apartment. The district court found the restrictions on J.H.’s 

contact were for M.H.’s benefit, a finding which is supported by the visitor’s 

report. J.H. does not assert the court misapplied the law in making a finding 

that T.F. acted for M.H.’s benefit in placing the contact restrictions. There is 

evidence in the record to support the finding, and we are not left with a definite 

and firm conviction a mistake has been made. We conclude the finding is not 

clearly erroneous and we accordingly affirm the court’s order denying to 

remove the restrictions placed by T.F.

V

[¶17] J.H.’s other arguments are not necessary to our decision. The district 

court did not abuse its discretion in ordering T.F. remain as guardian of M.H. 

and denying J.H.’s request to be guardian. The district court’s findings related 

to J.H.’s contact with M.H. are not clearly erroneous. Accordingly, we affirm 

the district court’s findings of fact and order.
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[¶18] Jon J. Jensen, C.J.

Gerald W. VandeWalle

Daniel J. Crothers

Jerod E. Tufte

Gary Lee, D.J.

[¶19] The Honorable Gary Lee, D.J., sitting in place of McEvers, J., 

disqualified.