Guardianship. Fulton Probate Court. Before Judge Koll.
Judgment reversed and case remanded with direction.
Ichter Thomas, Cary Ichter, Reid D. Shannon, for appellants.
Findling Law Firm, Drew Findling, Marissa Goldberg, for appellee.
MCFADDEN, Judge. Doyle, P. J., Boggs, Ray and Branch, JJ., concur. Andrews, P. J., and Barnes, P. J., dissent.
This appeal is fro 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 [330 Ga.App. 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 [330 Ga.App. 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 conservatorship 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 [330 Ga.App. 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) and 29-5-11 (d) ...