In re Guardianship of LISA BROSAMER.
LENAWEE COMMUNITY MENTAL HEALTH AUTHORITY, Respondent-Appellant. PATRICIA BROSAMER, Guardian of LISA BROSAMER, a legally protected person, Petitioner-Appellee,
Lenawee Probate Court LC No. 79-033680-DD
Before: Redford, P.J., and Markey and K. F. Kelly, JJ.
guardianship case, respondent appeals as of right the probate
court's order enjoining respondent from transferring a
protected individual, Lisa Brosamer (Lisa), from one
community residential placement-College Avenue-where Lisa has
resided since 2009, to another residential
placement-Westhaven. Respondent contends on appeal that (1)
the probate court erroneously applied MCL 330.1536 and
effectively rewrote the statute, and (2) the probate court
abused its discretion by granting permanent injunctive
relief. We disagree and affirm.
severely intellectually disabled and unable to care for
herself or manage her estate. Her mother, Lucille, was
Lisa's predecessor guardian and cared for Lisa in her
home from Lisa's birth on February 22, 1961 through
October 3, 2006, when, based upon Lucille's declining
health, Lisa transitioned to a residential treatment facility
at 3376 Marvin Drive, Adrian, MI 49221. On March 7, 2008,
Lisa was transferred to another facility at 451 South Main
Street, Adrian, MI 49221. Finally, on March 1, 2009, Lisa was
transferred to her current residence at College Avenue.
Petitioner was appointed successor plenary guardian of Lisa
on December 2, 2009.
September 26, 2018, petitioner filed the petition that led to
this appeal. Petitioner contended that respondent was
planning to transfer Lisa from College Avenue to another
community placement at Westhaven, and sought an ex parte
order denying the transfer on the ground that it would be
detrimental to Lisa pursuant to MCL 330.1536. The probate
court granted ex parte relief and later held a full hearing.
In lieu of testimony, respondent presented three affidavits
from its employees indicating that the transfer would not be
detrimental to Lisa, and therefore, respondent was
statutorily entitled to move forward with the transfer.
Petitioner presented four witnesses familiar with Lisa's
situation who all testified that such a move would be
detrimental to Lisa. Lisa's lawyer-guardian ad litem
indicated that, in his opinion, the probate court should
favor the testimony of petitioner because of petitioner's
heavy involvement in the welfare of Lisa, and because
petitioner's history with Lisa made petitioner the most
capable of predicting the outcome of a transfer. The probate
court summarized the affidavits provided by respondent and
the testimony from the evidentiary hearing and concluded that
the "move certainly does appear to be something that
would be detrimental to Lisa."
APPLICATION OF MCL 330.1536
appeal, respondent argues that the probate court clearly
erred in determining that transferring Lisa from College
Avenue would be detrimental to her wellbeing. It argues that
the probate court judicially revised MCL 330.1536 and created
a right for plenary guardians to veto the decisions of mental
health authorities where the Legislature did not intend for
such a veto to exist. We disagree. Although respondent frames
its argument on appeal as one regarding statutory
interpretation, respondent's argument actually concerns
the probate court's factual findings.
probate court's factual findings are reviewed for clear
error and its dispositional rulings for an abuse of
discretion. In re Lundy Estate, 291 Mich.App. 347,
352; 804 N.W.2d 773 (2011). A finding is clearly erroneous
when, even though there is evidence to support it, "a
reviewing court is left with a definite and firm conviction
that a mistake has been made." In re Vansach
Estate, 324 Mich.App. 371, 385; 922 N.W.2d 136 (2018)
(quotation marks omitted). "An abuse of discretion
occurs when the court's decision falls outside the range
of reasonable and principled outcomes," or when the
court fails "to operate within the correct legal
framework." Vansach, 324 Mich.App. at 385
(quotation marks omitted). Further, "[t]he reviewing
court will defer to the probate court on matters of
credibility, and will give broad 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.W.2d 181 (1993).
(1) A resident in a center may be transferred to any other
center, or to a hospital operated by the department, if the
transfer would not be detrimental to the resident and the
responsible community mental health services program approves
(2) The resident and his or her nearest relative or guardian
shall be notified at least 7 days prior to any transfer,
except that a transfer may be effected earlier if
necessitated by an emergency. In addition, the resident may
designate 2 other persons to receive the notice. If the
resident, his or her nearest relative, or guardian objects to
the transfer, the department shall provide an opportunity to
appeal the transfer.
(3) If a transfer is effected due to an emergency, the
required notices shall be given as soon as possible, but not
later than ...