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In re Guardianship of Brosamer

Court of Appeals of Michigan

May 16, 2019

In re Guardianship of LISA BROSAMER.
v.
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.

          PER CURIAM.

         In this 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.

         I. BASIC FACTS

         Lisa is 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.

         On 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."

         II. APPLICATION OF MCL 330.1536

         On 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.

         The 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).

         MCL 330.1536 provides:

(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 the transfer.
(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 ...

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