In re Rosenberg

KRAUSER, C.J. Merilee Rosenberg, appellant, underwent brain surgery, in 2008, for Parkinson’s disease. Unable thereafter to manage her financial affairs due to the side effects of her surgery and her Parkinson’s disease, she consented to the appointment of a guardian over her property by the Circuit Court for Montgomery County. Two years later, believing that she had sufficiently recovered to resume control over her affairs, she urged the court-appointed guardian of her property to request a hearing, before the Montgomery County circuit court, to determine whether the property guardianship should be terminated. After a hearing was held, as requested, the Montgomery County circuit court denied her request to terminate the ³⁰⁸ guardianship.

That decision prompted this appeal, which presents three issues. Rephrased so as to facilitate review, they are: I. Whether the circuit court applied an incorrect legal standard in deciding to continue the guardianship of the property; II. Whether the circuit court erred in failing to consider a less restrictive alternative to guardianship; and III. Whether there was sufficient evidence to support the circuit court’s decision to continue the guardianship of the property.

Because we conclude that the circuit court did not apply the correct legal standard in declining to terminate the guardianship of Ms. Rosenberg’s property, we vacate that decision and remand for further proceedings. On remand, it is our view that the circuit court may consider less restrictive alternatives to a full guardianship of property, if it deems such a course of action fitting and appropriate. Background Ms. Rosenberg was born in 1942. After earning a Ph.D. in French, she was employed as a professor of French and German at the University of Tennessee.

Then, after moving to Washington, D.C., and earning a law degree, she worked as an attorney for the United States Department of Veterans Affairs, where she specialized in federal contract law. When Ms. Rosenberg was 54 years old, she was diagnosed as suffering from Parkinson’s disease. During the ten-year period that followed, her condition deteriorated, and, despite “massive doses” of medication, her symptoms worsened. As a consequence, her neurologist, Thomas Hyde, M.D., suggested that she undergo “deep brain stimulation.” 1 ³⁰⁹ When she was admitted to Suburban Hospital, in the summer of 2008, for that procedure, two physicians examined her “to determine whether she was competent to consent to medical treatment and handle her financial matters.” After they found that she was competent to consent to medical treatment, though not competent to manage her finances, they obtained her consent to undergo deep brain stimulation.

Following that surgery, Ms. Rosenberg experienced, in the words of Dr. Hyde, “some postoperative medical problems that impaired her cognitive function”; in fact, she was, at least initially, “much worse off after the surgery than ... before.” When the time came to discharge her to “an acute rehabilitation facility,” the hospital filed a petition, in the Circuit Court for Montgomery County, seeking the appointment of “a temporary and permanent guardian of the property” for Ms. Rosenberg. A guardian was necessary, the hospital opined, “to manage Ms. Rosenberg’s finances and property to assist in creating a discharge plan” and then “to consent to decisions regarding long term care.” The hospital further stated that Robert McCarthy, Esquire, appellee, was willing to serve as temporary and permanent guardian of Ms. Rosenberg’s property and was qualified for appointment under Maryland law, 2 and that Ria Rochvarg, Esquire, was “willing to serve as the attorney for [Ms. Rosenberg] if appointed by the Court.” The circuit court promptly entered orders appointing Ms. Rochvarg as counsel to represent Ms. Rosenberg and Mr. McCarthy as the temporary guardian of her property. Although Ms. Rochvarg, as counsel ³¹⁰ for Ms. Rosenberg, initially requested that the guardianship petition be denied, Ms. Rosenberg ultimately consented to an order appointing Mr. McCarthy as the guardian of her property* Mr. McCarthy, in his words, acted as “a heavy-handed guardian of the property” and, as he later admitted, “a pseudo-guardian of the person” (presumably, he meant “quasi-guardian”). He hired Ms. Felice Grunberger, a social worker, to act as his “private case manager” and to make sure that Ms. Rosenberg’s needs were addressed.

While Mr. McCarthy saw the guardianship as indefinite, Ms. Rosenberg did not. In her view, the arrangement was temporary and solely one that applied to her property and not her person. In fact, she claimed that when she discussed the matter with Ms. Rochvarg, she was advised by her that it “should take about three months to recover and then [they] could have the guardianship dismissed.” After Ms. Rosenberg was discharged from Suburban Hospital, she was admitted to a rehabilitation hospital and then a nursing home and, after that, an assisted-living facility. The following year, as Ms. Rosenberg’s condition gradually improved, it was agreed that she would move to an apartment in Washington, D.C. Mr. McCarthy signed the lease for Ms. Rosenberg.

Assisted by Ms. Grunberger, as well as an aide, who visited three days a week, four or five hours at a time, Ms. Rosenberg began living in the apartment in July 2010. Ms. Grunberger, among other things, monitored Ms. Rosenberg’s medications, as she was then taking eight different medications for various illnesses, 3 and the aide helped her to shop for groceries and to perform such routine chores as preparing meals, grooming, bathing, and dressing. At some point, Ms. Rosenberg felt she was now capable of living on her own. Mr. McCarthy felt otherwise.

In a letter ³¹¹ to “interested persons,” 4 dated August 2, 2010, Mr. McCarthy wrote that the move to the Washington, D.C., apartment would, in his view, “be a complete disaster,” as Ms. Rosenberg both lacked “the capacity to organize her own affairs” and suffered from “very poor judgment.” Ms. Rosenberg could live independently, he opined, but it would require the help of “twenty-four hour aides” at a prohibitive cost. Predictably, Ms. Rosenberg had an entirely different view of her capabilities. Asserting that she was now able to handle the challenge of independent living, she urged Mr. McCarthy to seek a review hearing before the circuit court for the purpose of determining whether the guardianship should be terminated, and, thereafter, he filed a motion to set a review hearing “for the possible modification and/or termination” of her guardianship. A hearing was held, at Mr. McCarthy’s request, on July 27, 2010.

At that time, the circuit court, at Mr. McCarthy’s suggestion, appointed Patricia T. Nay, M.D., to perform an independent medical evaluation of Ms. Rosenberg to “determine” if she had “recovered from the disability requiring [the] imposition” of the guardianship “to an extent” that it was now “appropriate” to terminate that guardianship. Upon making that appointment, the court ordered that, after Dr. Nay’s report was completed, a hearing be held on Ms. Rosenberg’s motion to terminate guardianship. The court then declared that, at that hearing, Dr. Nay’s report would be admitted as substantive evidence and that no testimony from Dr. Nay or any other person need be taken, though, it added, Dr. Nay could be “subpoenaed by any party.” ³¹² In late September 2010, four weeks before the scheduled hearing, Dr. Nay submitted her independent medical evaluation. In the summary of that report, Dr. Nay opined: Mrs. Rosenberg has dementia secondary to Parkinson’s disease and self neglect.

She has impaired executive functioning. Her overall situation is exacerbated by her narcissism. She can make and communicate only simple and limited decisions concerning her person and property. She requires a guardian of property and a guardian of person.

She requires 24-hour supervision in a structured environment at this time to keep her safe and meet her needs. If that is her apartment, then she requires 24-hour private duty caregivers. She does not have the mental capacity to understand the nature of a guardianship of person or property and cannot consent to the appointment of a guardian. Several days after the submission of that evaluation, Ira E. Zimmerman, Esquire, entered his appearance on behalf of Ms. Rosenberg, and, shortly thereafter, at the scheduled motions hearing, he indicated that he wanted to call Dr. Hyde to the stand.

To enable him to do so, the hearing was then rescheduled for January 4, 2011. At that hearing, Dr. Hyde opined that, although Ms. Rosenberg “has some cognitive limitations,” they do not “rise to the level of incompetency” and that she does not presently suffer from dementia. Rather, in Dr. Hyde’s view, Ms. Rosenberg’s “poor judgment is not any worse than multiple people in our society who are deemed not to be incompetent.” He did caution, however, “that she needs assistance” and that she should “maintain the aide ... and the case worker.” Cheryl Floyd, Esquire, a trial attorney employed by the United States Department of Justice and a friend of Ms. Rosenberg for nearly thirty years, also testified at the hearing. Ms. Floyd stated that she would be willing to serve as attorney-in-fact for Ms. Rosenberg, “in the event that Ms. ³¹³ Rosenberg was hospitalized or for some other reason could not continue to handle her finances.” She declined, however, to offer to serve as a guardian of Ms. Rosenberg’s property.

At the conclusion of the January 4th hearing, the circuit court denied Ms. Rosenberg’s motion to terminate the guardianship of her property, observing that, as it was not considering “whether to establish a guardianship” but only whether to terminate one, it was not required to apply a clear and convincing evidence standard. It then said that its decision was “controlled by the statute,” that is, § 13-221 of the Estates and Trusts Article, which merely required it to determine “whether there has been a cessation of the disability.” And, in making that determination, the circuit court asserted that it should consider “what is in the best interest of Ms. Rosenberg.” After hearing the testimony of Dr. Hyde and considering the report of Dr. Nay, the independent medical examiner, the court thus stated that it did not “have some comfort and reliance that [Ms. Rosenberg] is indeed in a position to manage her affairs and to manage her property” and denied Ms. Rosenberg’s request to terminate the guardianship. This appeal followed. Discussion At the outset, we note what is and what is not at issue before us.

Ms. Rosenberg raises several contentions of error, based upon her interpretation of the Maryland statutory scheme addressing guardianships of property, namely, Title 13, Subtitle 2 of the Estates and Trusts Article. She does not, however, contend that that statutory scheme violates her constitutional right to due process of law. Consequently, our analysis shall focus on statutory (and rule) interpretation, and we will refrain from exploring in detail any due process issues. I. Ms. Rosenberg contends that the circuit court erred in failing to require Mr. McCarthy, the guardian of her property, to prove, by clear and convincing evidence, that the guardian ³¹⁴ ship of her property should be continued.

Although Maryland Code, § 13-221 of the Estates and Trusts Article (“ET”), is, in her words, “silent as to the standard of proof and as to who bears the burden of persuasion,” she maintains that In re Lee, 132 Md.App. 696, 714 , 754 A.2d 426 (2000), is not. In that case, this Court declared that, before a guardianship of the person may be imposed, the petitioner must establish by clear and convincing evidence the “need” for such a guardianship. Id. at 714 , 754 A.2d 426 . The same standard, Ms. Rosenberg maintains, should be imposed on the party (in this case Mr. McCarthy) seeking to continue the guardianship.

We disagree. Termination of a guardianship of property falls under ET § 13-221, which provides: (a) Petition to terminate.—The minor or disabled person, his personal representative, the guardian, or any other interested person may petition the court to terminate the guardianship proceedings. (b) Cause for termination.—A guardianship proceeding shall terminate upon: (1) The cessation of the minority or disability; (2) The death or presumptive death of the minor or disabled person; (3) Transfer of all the assets of the estate to a foreign fiduciary; or (4) Other good cause for termination as may be shown to the satisfaction of the court. (c) Rights and procedures.—Termination and final distribution of the estate of a former minor or disabled person shall be made in compliance with the provisions of the Maryland Rules, applying to a fiduciary.

ET § 13-221. 5 This statute simply states that the “minor or disabled person, his personal representative, the guardian, or any other ³¹⁵ interested person may petition the court to terminate the guardianship proceedings” and that a guardianship “shall terminate” upon the occurrence of any of a list of triggering events, which includes the “cessation of the disability.” Id. § 13-221(a)-(b). Subsection (b)(4), a catch-all provision, states that a guardianship shall terminate upon “[o]ther good cause for termination as may be shown to the satisfaction of the court.” In the context of a revocation of probation hearing, which, like the case at bar, “is a civil proceeding,” Gibson v. State, 328 Md. 687, 690 , 616 A.2d 877 (1992), the Court of Appeals has held that “references in our decisions to the reasonable satisfaction of the trial court mean that the trial judge must find the essential facts ... by a preponderance of the evidence.” Wink v. State, 317 Md. 330, 340-41 , 563 A.2d 414 (1989). Although the “satisfaction of the court” language appears only in subsection (b)(4), which might suggest that it is applicable only to that subsection, we have no reason to conclude that a different quantum of evidence would apply to subsections (1) through (3). Henriquez v. Henriquez, 413 Md. 287, 297 , 992 A.2d 446 (2010) (observing that “court may ³¹⁶ neither add nor delete language so as to reflect an intent not evidenced in the plain and unambiguous language of the statute; nor may it construe the statute with forced or subtle interpretations that limit or extend its application”) (citations omitted).

Indeed, it is fair and reasonable to assume that the “satisfaction of the court” standard enunciated in subsection (b)(4) was intended to apply to all four subsections, and we so hold. We find further support for this interpretation in Wink, 317 Md. at 338 , 563 A.2d 414 (emphasis added), where the Court of Appeals said: “Here, as in civil cases generally, [the legally requisite] degree [of persuasiveness] is only that the fact finder conclude that the existence of the fact sought to be proved is more likely than unlikely.” In other words, the general rule in civil cases is that a matter at issue must be proved by a preponderance of the evidence, Addington v. Texas, 441 U.S. 418, 423 , 99 S.Ct. 1804 , 60 L.Ed.2d 323 (1979), and nothing in ET § 13-221 states or even suggests otherwise. Moreover, we must assume that, if the General Assembly had intended that a clear and convincing standard was to apply to a question whether a guardianship of the property should be terminated, it would have said so, as it did when it addressed the appointment and the termination of a guardianship of the person. Compare ET § 13-221 (termination of guardianship of property) with ET § 13-705 6 (appointment of ³¹⁷ guardian of person) and ET § 13—708(b)(7) 7 (termination of guardianship of person) (providing for “hearing, similar to that provided for in § 13-705 of this subtitle”).

The absence of such language in ET § 13-221 leaves us to conclude that the evidentiary standard for terminating a guardianship of property is a preponderance of the evidence and not clear and convincing evidence, even though we confess that, on occasion, and some would suggest even more often than that, a guardianship of the property amounts to a guardianship of the person. As Ms. Rosenberg has not raised any constitutional challenge to the Maryland statutes concerning guardianships of property, we simply have no basis upon which to read a “clear and convincing” standard into ET § 13-221. We turn now to consider who, that is, which party bears the burden of proof, in a proceeding to terminate a guardianship of property. Subsection (c) of ET § 13-221 instructs that termination “shall be made in compliance with the provisions of the Maryland Rules, applying to a fiduciary,” that is, Title 10 of the Maryland Rules. ³¹⁸ When we turn to Title 10, we find, in Rule 10-305, that a “guardianship of the property