Graham v. Dept. of Children and Families

Citation: 970 So. 2d 438Docket: 4D07-996

Court: District Court of Appeal of Florida; December 4, 2007; Florida; State Appellate Court

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Laurence Graham appeals several trial court orders concerning the guardianship of his mother, Betty Pat Graham, including a judgment of guilt for contempt, the appointment of a plenary guardian, and the denial of his motion for continuance. The Department of Children and Families (DCF) had filed a petition on November 8, 2005, claiming Betty was incapacitated due to mental illness and alleging that both Laurence and his brother Luke were attempting to conceal her and misappropriate her assets, which included significant real estate and a Merrill Lynch account. DCF determined that Luke was the sibling most suitable to act in Betty's best interests.

Following concerns about a $200,000 transfer from Betty's joint account with Laurence, the trial court appointed Catholic Charities as her emergency temporary plenary guardian and took measures to secure her assets. Laurence subsequently sought to be appointed as her guardian, citing a health care advance directive that named him as her surrogate. In response, Catholic Charities filed a petition compelling Laurence to disclose Betty's whereabouts and show cause for his potential contempt. Although Laurence filed responses, he failed to appear in court. Ultimately, Luke was appointed as Betty's temporary plenary guardian. The appellate court reversed the trial court's decisions.

Laurence filed an emergency motion to continue the hearing regarding the petition for a permanent guardian and a motion for an order to show cause. His counsel argued insufficient preparation time due to recent retention and the need for additional evidence. The trial court denied the continuance motion, subsequently denied the motion to dismiss and request for particulars, and found Laurence Graham in contempt of court for violating court orders related to the guardianship of Betty Pat Graham. The court determined that Laurence knowingly violated its orders by participating in the removal of Betty and failing to disclose her location. Sentencing was scheduled, with Laurence required to appear with Betty, but the court withheld sentencing for 90 days to allow the parties to reassess the situation in the context of guardianship rather than contempt.

Laurence appealed, claiming the trial court erred in finding him guilty of indirect criminal contempt for two reasons: a lack of adherence to procedural requirements under Florida Rule of Criminal Procedure 3.840 and insufficient evidence of a court order violation. The appellate court agreed with the first argument, noting that failure to comply with Rule 3.840 constitutes fundamental reversible error. Laurence contended that the contempt order was based on a non-affidavit statement from Catholic Charities, he had not received notice of the proceedings, and he was improperly served. Rule 3.840(a) stipulates that an order for contempt must be based on an affidavit or personal knowledge, specifying essential facts, and must provide reasonable time for the defendant to prepare a defense.

Laurence's arguments regarding an insufficient affidavit and lack of notice are rejected, but it is affirmed that he was not properly served. The order noted that copies were sent to Laurence and his attorney, which fails to meet the requirements of Rule 3.840. Citing Giles v. Renew, the court emphasizes that the order must be personally served, not just sent via facsimile to an attorney. Laurence's lack of personal service warrants a reversal. 

Further, Laurence claims that the trial court's appointment of Luke Graham as Betty's temporary plenary guardian effectively revoked her valid Advance Directive without necessary proof or notice, violating sections 765.105 and 744.3115 of the Florida Statutes. The court agrees that the trial court did not comply with section 744.3115, which mandates determining the validity of any Advance Directive before appointing a guardian. The trial court previously acknowledged the Directive as valid when appointing Catholic Charities as the emergency temporary guardian but later contradicted this by stating that Luke's authority would exist regardless of any valid Advance Directive. This action effectively revoked Betty's Directive without proper grounds or evidence, violating statutory requirements.

Laurence Graham's claim of inadequate notice is rejected since notifications were sent to his attorney, and no specific notice form is mandated by law. Luke Graham contends that under section 744.331(6)(b) of the Florida Statutes, the burden lies with the health care surrogate to present the designation to the court for validity assessment. This statute requires courts to explore alternatives to guardianship before appointing a guardian for an incapacitated person. However, the court finds no obligation for a health care surrogate to prove the validity of the designation. Section 765.202(7) establishes that a properly executed health care surrogate designation creates a rebuttable presumption of the principal's intent, which Luke Graham does not contest regarding the Directive's execution. The Directive aligns with section 765.202, implying that it presumes Betty intended to designate Laurence as her surrogate. Consequently, the court reverses and remands for the trial court to determine the Directive's validity and any grounds for its revocation under section 765.105. 

The trial court's appointment of Luke Graham as temporary plenary guardian following a contempt ruling is challenged by Laurence, who argues insufficient evidence of Betty's incapacity per section 744.331. The ruling on mental capacity is subject to review only for clear error, requiring clear and convincing evidence for incapacity claims at adjudicatory hearings, which must occur within 14 days following the examining committee's report. Laurence cites LeWinter v. Guardianship of LeWinter as precedent, where a similar incapacity finding was reversed due to lack of competent evidence and timing issues concerning the examining committee's report.

Two of the three examining committee reports regarding Betty Graham's mental capacity were submitted prior to a hearing on February 8, 2007, with submissions dated November 21, 2006, and December 8, 2006. Laurence Graham provided a sworn affidavit from Dr. Clyde Rouse Jr., Betty's psychiatrist for two years, stating her condition had improved as of January 20, 2007. Dr. Rouse noted that Betty appeared well and showed no psychiatric symptoms, confirming she had appointed her son Larry as her health care surrogate. He opined that she was competent to make financial and legal decisions. Additionally, a report from Dr. David Trader, dated February 14, 2007, confirmed Betty's sufficient mental capacity for decision-making. Due to the evidence indicating Betty's improvement and the timing of the committee reports, the court found insufficient evidence to prove her incapacity. Consequently, the guardianship proceeding was reversed and remanded for dismissal. The court did not address Laurence's motion to continue, deeming it moot. The document also references a prior petition by Betty's attorney, Sheridan Weissenborn, concerning guardianship proceedings, which was denied due to lack of standing. The court addressed concerns over due process regarding Betty's relocation to California but maintained that jurisdiction remained with the Florida court despite her move.