In re Estate of Davis

MCFADDEN, Judge. This appeal is from a probate court order dismissing, for lack of probable cause, a petition for appointment of a guardian and/or conservator for an allegedly incapacitated adult. The appellants correctly assert that the probate court, having previously found sufficient probable cause to warrant filing of the petition, erred in dismissing it without requiring an evaluation of the proposed ward. Such an evaluation was mandated by OCGA §§ 29-4-11 and 29-5-11 as a prerequisite to the court’s finding that there is not probable cause to believe the proposed ward is in need of a guardian and/or conservator. Accordingly, the probate court’s erroneous dismissal order must be reversed and the case remanded with direction that the required evaluation be completed. On October 1, 2013, Vicky Davis and Tabitha Davis filed a verified petition for appointment of a guardian and/or conservator for Radric Davis a/k/a Radric Dudley. According to the petition, the proposed ward “has a history of psychological problems,” has been institutionalized on at least three occasions, and has been diagnosed with bipolar disorder and schizophrenia. The petitioners also alleged that, as a result of his psychological problems and abuse of a variety — 98 — of drugs, the proposed ward has engaged in violent behavior, including assaulting a patron in a bar and almost coming to blows with another shopper at a mall, and that he sent out messages via Twitter describing in “graphic and profane terms” alleged sexual escapades with various women. The petition also stated that court records indicate the proposed ward has been in jail in Fulton County at least five times since 2005 on charges involving drugs, aggravated assault, and aggravated assault with a deadly weapon, although the court records are not attached to the petition. The petitioners further alleged that although the proposed ward has made millions of dollars over the course of a successful music career, he has no savings, no insurance, and has failed to pay income taxes, resulting in significant liability to the Internal Revenue Service. The petitioners sought to have the proposed ward’s mother, Vicky Davis, appointed guardian of his person and conservator of his property. Upon review of the petition, the probate court initially determined that sufficient evidence existed to believe that the proposed ward was in need of a guardian and/or conservator. The court ordered a licensed clinical social worker to evaluate the proposed ward, ordered the proposed ward to submit to the evaluation, and ordered that notice be given to the proposed ward and all interested persons listed in the petition. The notice to the proposed ward explained that he was required to attend the evaluation, but did not have to respond to questions. The evaluation as initially scheduled did not take place because the proposed ward had been transferred from the Fulton County jail to the DeKalb County jail and the probate court was not aware of the transfer prior to the evaluation date. The evaluation was rescheduled, and notice of the new date was provided to the parties and all interested individuals. On November 22, 2013, the date of the rescheduled evaluation, the social worker went to the DeKalb County jail to evaluate the proposed ward, but he refused to meet with the evaluator without his attorney present. The social worker waited for an hour, but the attorney did not appear, so no evaluation was conducted. The social worker filed a report with the probate court, indicating that no evaluation had taken place due to the proposed ward’s refusal to meet without his attorney present and stating that “[t]his evaluator does not have enough information ... to make a finding.” The evaluator further provided that she was unable to make findings concerning mental illness of the proposed ward “without proper evaluation.” Despite the lack of an evaluation or any findings by the social worker, the probate court issued an order dismissing the petition. The court determined that there was no probable cause to support a finding that the proposed ward was in need of a guardian and/or — 99 — conservator, noting that the only documentation provided by the petitioners to support their claims of ongoing psychological problems, drug abuse, and criminal charges were news reports. The order was signed by a judicial hearing officer exercising the jurisdiction of the probate court. The petitioners filed a motion for reconsideration of the order dismissing their petition, requesting that the court either schedule another evaluation of the proposed ward and require his attorneys to appear or schedule a hearing on their petition. They also filed a transcript of a probation revocation hearing held on September 26, 2013, in which a psychiatrist who had examined the proposed ward and his medical records testified about the proposed ward’s need for inpatient psychiatric treatment. According to the psychiatrist, the medical records show that the proposed ward has been off of his prescribed anti-psychotic and mood stabilizing medications and has a history of bipolar disorder and schizophrenia and substance abuse. In his meeting with the proposed ward, the psychiatrist learned that he has a co-morbid substance use disorder, specifically the use of marijuana and a prescription cough syrup containing codeine, which can be extremely addictive, and promethazine, which can cause psychosis. The psychiatrist was unable to state whether the proposed ward’s behavior was based more on the primary psychiatric issue or on the substance abuse issue. He did note that the proposed ward’s behavior had improved in the 13 days since his arrest, but could not conclude definitively that the problem was only substance abuse. After reviewing the motion for reconsideration and the attached exhibits, the probate court denied the motion. The petitioners appeal. 1. Evaluation of proposed ward. The appellants assert that the probate court abused its discretion by not ordering that an evaluation of the proposed ward be rescheduled and conducted after he had refused to participate in the previously-scheduled evaluation without his attorney present. We agree. OCGA §§ 29-4-11, 29-4-12, 29-5-11 and 29-5-12 set forth frameworks for consideration of petitions for guardianship and for conser-vatorship of proposed wards. Upon the filing of such a petition, the court must review it and make an initial determination of whether there is probable cause to believe that the proposed ward is in need of a guardian or conservator. OCGA §§ 29-4-11 (a) and 29-5-11 (a). If the court makes an initial determination that probable cause does not exist, it is to dismiss the petition. OCGA §§ 29-4-11 (b) and 29-5-11 (b). But, if the court makes an initial finding of probable cause, the court “shall” order an evaluation of the proposed ward. OCGA §§ 29-4-11 (c) (1) (C), (d) (1) and 29-5-11 (c) (1) (C), (d) (1). And upon that — 100 — initial review of the petition and determination that there is probable cause to believe that the proposed ward is in need of a guardian or conservator, the court must appoint a licensed physician, psychologist, or clinical social worker to evaluate the proposed ward. OCGA §§ 29-4-11 (a), (d) (1) and 29-5-11 (a), (d) (1). Once appointed, the physician, psychologist or social worker is to conduct the evaluation, which may include a self-report of the proposed ward, questions and observations of the proposed ward, and a review of medical records. OCGA §§ 29-4-11 (d) (3) and29-5-ll (d) (3). During the evaluation, the proposed ward may remain silent and may have legal counsel present, although counsel may not participate in the evaluation. OCGA §§ 29-4-11 (d) (2) and 29-5-11 (d) (2). The physician, psychologist or social worker must then file a written report with the court no later than seven days after the evaluation. OCGA §§ 29-4-11 (d) (4) and 29-5-11 (d) (4). The report is to state, among other things, the circumstances and elements of the evaluation, list all persons and sources of information consulted, describe the proposed ward’s mental and physical condition, and describe the needs of the proposed ward. OCGA §§ 29-4-11 (d) (5) and 29-5-11 (d) (5). After the evaluation report has been filed, the court is to review the report and the pleadings in order to make another probable cause determination. OCGA §§ 29-4-12 (a) and 29-5-12 (a). If, after the review, the court finds no probable cause to support a finding that the proposed ward is in need of a guardian or conservator, then the court is to dismiss the petition. OCGA §§ 29-4-12 (b) and 29-5-12 (b). But, if the court finds probable cause, it is to schedule a hearing on the petition. OCGA §§ 29-4-12 (c) and 29-5-12 (c). Here, it is undisputed that the probate court initially complied with the statutory mandates by determining that probable cause existed to believe that the proposed ward was in need of a guardian or conservator, and by ordering that the proposed ward be evaluated by a licensed clinical social worker. But, the required evaluation never took place. Rather, as explained above, the initially scheduled evaluation at the Fulton County jail did not occur because, unbeknownst to the court, the proposed ward had been transferred to another jail. And as also recounted above, the rescheduled evaluation at the new jail also did not take place because the proposed ward refused to be evaluated without his attorney present. The evaluator then filed a report with the probate court indicating that no evaluation had taken place because the proposed ward had refused to meet without his attorney present. So, the evaluator made none of the required findings as to the proposed ward’s capacity or whether he — 101 — meets the standards for a guardian or conservator; she expressly informed the court that she did “not have enough information ... to make a finding.” Indeed, in its order dismissing the petition, the probate court actually acknowledged that the proposed ward had refused to meet with the evaluator and that the evaluator had concluded that she did not have enough information to make a finding as to capacity and the need for a guardian or conservator. Nevertheless, the court went on to make its own finding that there was no probable cause to support a finding that the proposed ward was in need of a guardian or conservator. Based on that finding of no probable cause, the probate court dismissed the petition pursuant to OCGA §§ 29-4-12 (b) and 29-5-12 (b). But, under those Code sections, such a finding and order of dismissal can be made only after the court has reviewed the required evaluation report. So, the undisputed facts in the record establish that the trial court erred in failing to require that the statutorily-mandated evaluation take place and that the evaluation report be filed before making a probable cause determination and dismissing the petition. In arguing otherwise, the dissent mistakenly claims that our decision somehow “wrest[s] discretion from the probate courts of Georgia.” It does no such thing. This decision does nothing more than apply the plain language of the applicable Code sections to the undisputed facts. The dissent misstates what in fact occurred by writing that “the proposed ward exercised his right not to speak to the evaluator and to insist that his counsel be present. .. . [The court] had no power to compel him to cooperate and speak to the evaluator.” Certainly, the dissent is correct that, as provided in OCGA §§ 29-4-11 (d) (3) and 29-5-11 (d) (3), the proposed ward may remain silent during the evaluation, when it eventually occurs, and have counsel present. But contrary to the dissent’s misstatement of the facts, the proposed ward did not exercise his right to remain silent during an evaluation. No evaluation ever took place. The proposed ward refused to meet with the social worker or be evaluated because his attorney was not present. Under such circumstances, the probate court should have rescheduled the evaluation. Because the court failed to do so and improperly dismissed the petition without an evaluation having been conducted and without the requisite evaluation report having been submitted for the court’s consideration, the dismissal order must be reversed and the case remanded with direction that the evaluation be conducted and the report submitted. — 102 — 2. Remaining enumerations. Because of our holding above, we need not address the appellants’ remaining enumerations of error, concerning the delegation of duties to a judicial hearing officer, the finding of no probable cause, and the denial of the motion for reconsideration. Judgment reversed and case remanded with direction. Doyle, P. J., Boggs, Ray and Branch, JJ., concur. Andrews, P. J., and Barnes, P. J., dissent.