Court of Appeals of Texas, Second District, Fort Worth
IN THE GUARDIANSHIP OF A.E., AN INCAPACITATED PERSON
PROBATE COURT NO. 2 OF TARRANT COUNTY TRIAL COURT NO.
GABRIEL, PITTMAN, and BIRDWELL, JJ.
T. PITTMAN JUSTICE
an appeal from the denial of an uncontested guardianship
application. In nine issues, Appellants H.E. and P.E.
challenge the probate court's denial of their application
to be appointed guardians of the person of their
intellectually-disabled adult daughter, A.E. Because we hold
the probate court abused its discretion in denying the
guardianship, we reverse and remand.
has a moderate intellectual disability and moderate
encephalopathies. She has an IQ between 50 and 55, and she
lives with her mother, H.E., and her father, P.E. Shortly
before her eighteenth birthday, A.E.'s parents filed an
application for guardianship of her person. See Tex.
Est. Code Ann. § 1103.001 (West 2014) (providing that a
person may file an application for a minor who, because of an
incapacity, will require a guardianship after the proposed
ward is no longer a minor). A.E. turned eighteen two weeks
before the hearing on the application.
guardianship was not contested by A.E.'s court-appointed
attorney ad litem. At the hearing, A.E.'s parents
testified about the need for a guardianship and introduced a
certificate of medical examination from A.E.'s treating
physician stating that she may decline to treat A.E. in the
future due to A.E.'s inability to give informed consent.
The court investigator testified that she did not believe a
guardianship was necessary because supports and services and
alternatives to guardianship were sufficient, but she
conceded that she would change her mind on that point if
A.E.'s doctor refused to treat A.E.
conclusion of the hearing, the probate court denied the
guardianship application, finding that A.E.'s parents had
not shown by clear and convincing evidence that supports and
services and alternatives to guardianship were not feasible.
The probate court subsequently filed findings of fact and
conclusions of law, including findings that A.E. had not
experienced any problems in receiving medical treatment since
becoming an adult (that is, in the two weeks between her
eighteenth birthday and the hearing) and that A.E. is
agreeable to allowing her parents to assist her in making
medical treatment decisions. The probate court further
concluded that it is not in A.E.'s best interest to take
away her rights and appoint a guardian; that A.E.'s
rights do not need to be protected by the appointment of a
guardian; and that all of A.E.'s needs are being met.
H.E. and P.E., now appeal.
review a probate court's guardianship determinations for
an abuse of discretion. In re Guardianship of
Alabraba, 341 S.W.3d 577, 579 (Tex. App.- Amarillo 2011,
no pet.); In re Guardianship of Parker, No.
2-06-217-CV, 2007 WL 4216255, at *4 (Tex. App.-Fort Worth
Nov. 29, 2007, no pet.) (mem. op.). A trial court abuses its
discretion if the court acts without reference to any guiding
rules or principles, that is, if the act is arbitrary or
unreasonable. Low v. Henry, 221 S.W.3d 609, 614
(Tex. 2007); Cire v. Cummings, 134 S.W.3d 835,
838-39 (Tex. 2004). A trial court also abuses its discretion
by ruling without supporting evidence. Ford Motor Co. v.
Garcia, 363 S.W.3d 573, 578 (Tex. 2012). But an abuse of
discretion does not occur when the trial court bases its
decision on conflicting evidence and some evidence of
substantive and probative character supports its decision.
Unifund CCR Partners v. Villa, 299 S.W.3d 92, 97
(Tex. 2009); Butnaru v. Ford Motor Co., 84 S.W.3d
198, 211 (Tex. 2002) (op. on reh'g).
guardianship proceedings, legal and factual sufficiency are
not independent, reversible grounds of error but are factors
to consider in assessing whether the trial court abused its
discretion. In re Guardianship of Erickson, 208
S.W.3d 737, 743 (Tex. App.-Texarkana 2006, no pet.); see
In re J.P.C., 261 S.W.3d 334, 336 (Tex. App.-Fort Worth
2008, no pet.) (noting that in appropriate cases, legal and
factual sufficiency are relevant factors in assessing whether
the trial court abused its discretion). "We view the
evidence in the light most favorable to the probate
court's decision, and an abuse of discretion does not
occur when the court's decision is based on conflicting
evidence." In re Guardianship of Laroe, No.
05-15-01006-CV, 2017 WL 511156, at *5 (Tex. App.-Dallas Feb.
8, 2017, pet. denied) (mem. op.).
and P.E. argue that the probate court abused its discretion
by: (1) not finding that A.E. is totally incapacitated; (2)
not finding it is in A.E.'s best interest to have H.E.
and P.E. appointed as her guardians of the person; (3) not
finding that A.E.'s rights or property will be protected
by the appointment of a guardian; (4) not finding that
alternatives to guardianship are infeasible; (5) not finding
that supports and services available to A.E. are infeasible;
(6) not finding that H.E. and P.E. are eligible to act as
guardians and are entitled to be appointed; (7) not finding
that there is evidence of A.E.'s incapacity by recurring
acts or occurrences in the preceding six months that are not
isolated instances of negligence or bad judgment; (8)
creating a new standard as to whether there is a necessity
for a guardianship; and (9) denying the guardianship
application when it met all of the factual and legal
requirements and was not otherwise contested. We discuss the
evidence and the law relating to these issues together.
Findings Required Before Appointment of a Guardian
interpreting a statute, we look first and foremost to its
text." United States v. Alvarez-Sanchez, 511
U.S. 350, 356, 114 S.Ct. 1599, 1603 (1994) (Thomas, J.).
Under the Estates Code, the probate court could not appoint a
guardian of the person for A.E. unless the court found by
clear and convincing evidence that:
(A)[A.E.] is an incapacitated person;
(B)it is in [A.E.'s] best interest to have the court
appoint a person as [her] guardian;
(C) [A.E.'s] rights . . . will be protected by the
appointment of a guardian;
(D) alternatives to guardianship that would avoid the need
for the appointment of a guardian have been considered and
determined not to be feasible; and
(E) supports and services available to [A.E.] that would
avoid the need for the appointment of a guardian have been
considered and determined not to be feasible.
See Tex. Est. Code Ann. § 1101.101(a)(1) (West
probate court would be further required to find by a
preponderance of the evidence that A.E.'s parents are
eligible for and entitled to the appointment and that A.E.
either (i) is totally without capacity to care for herself
and to manage her property, or (ii) lacks the capacity to do
some, but not all, of the tasks necessary to care for herself
or to manage her property. See id. §
1101.101(a)(2)(B), (D). Any determination of A.E.'s
incapacity would have to be "evidenced by recurring acts
or occurrences in the preceding six months and not by
isolated instances of negligence or bad judgment."
See id. § 1101.102 (West 2014).
The Evidence Before the Probate Court
and P.E.'s evidence included their own testimony, a
certificate of medical examination and affidavit from
A.E.'s treating physician, and the court
investigator's testimony. The probate court also had
before it the court investigator's report and a brief
report from A.E.'s attorney ad litem.
Testimony of A.E.'s Parents
mother, H.E., testified that A.E.'s intellectual
disability is one that will not change. A.E. has a tendency
to agree with whatever is said to her yet would not
necessarily understand what was being asked of her or the
significance of saying yes to a question. H.E. stated that
A.E. is not capable of making medical decisions even with
help, A.E. does not have the capacity to execute a power of
attorney or supported decision-making agreement, and A.E.
would not understand such a document even if it were
explained to her. Also, A.E. would not be able to understand
a consent form given to her by a doctor.
further testified that A.E.'s school has a program for
special needs children, that she can empty the dishwasher,
and that she is learning to fold towels at a volunteer job.
At her volunteer job, A.E. also takes chairs off tables at a
restaurant and sets out salt and pepper containers on the
tables. If her clothes are laid out for her, she can
partially dress herself. A.E. had not yet been denied medical
treatment, but she had not been to the doctor in the two
weeks since she had turned eighteen. P.E., A.E.'s father,
testified that he agreed with all of his wife's
Testimony and Documentary Evidence from A.E.'s
application for guardianship is based on a proposed
ward's alleged incapacity, the applicant must provide the
court with a letter or certification that (1) complies with
Estates Code section 1101.103 and (2) shows that a physician
or psychologist has examined the proposed ward. Id.
§ 1101.104 (West Supp. 2017). Section 1101.103 provides
that the letter or certification must include a description
of the nature, degree, and severity of the proposed
ward's incapacity and be provided by a Texas-licensed
physician who has examined the proposed ward no more than 120
days before the date of the application's filing.
Id. § 1101.103 (West 2014) (specifying certain
functions and abilities of the proposed ward that the letter
or certificate must address).
treating physician provided the required doctor's
certificate, which A.E.'s parents produced at the
hearing. In the certificate, A.E.'s doctor stated that
A.E. has moderate encephalopathies and a moderate
intellectual disability, with no possibility for improvement.
According to her doctor, A.E. is unable to initiate and make
responsible decisions regarding:
• complex business, managerial, or financial decisions;
• a personal bank account;
• safely operating a motor vehicle;
• voting in a public election;
• determining her own residence;
• administering her own medication;
• attending to basic activities of daily living without
supports and services;
• attending to instrumental activities of daily living
(like shopping, cooking, and cleaning); and
• consenting to medical, dental, or psychological
doctor indicated that A.E. would not be able to understand
the guardianship hearing. While the doctor found that, with
supports and services, A.E. can make responsible decisions
about basic daily activities like bathing, grooming,
dressing, walking, and toileting, she further stated that she
believed A.E. is unable to handle making any other decisions.
The doctor concluded that A.E. is totally incapacitated. The
least restrictive placement the doctor considered appropriate
for A.E. is with A.E.'s family.
separate affidavit, the doctor stated that, in her medical
opinion, A.E. is totally incapacitated. She further swore to
her belief that A.E. is unable to adequately handle
any decisions for herself even with assistance and that A.E.
does not have the capacity to execute a power of attorney or
a supported decision-making agreement. See Decker v.
Decker, 192 S.W.3d 648, 652 (Tex. App.-Fort Worth 2006,
no pet.) ("The term 'mental capacity' means that
the grantor at the time of the execution of the [instrument]
must have had sufficient mind and memory to understand the
nature and effect of his act."). Finally, A.E.'s
doctor swore that she may withhold treatment from A.E.
because A.E. cannot provide informed consent and has no legal
guardian to consent on her behalf.
The Court Investigator's Initial Report
court investigator's initial report, admitted as evidence
at the hearing, the investigator noted that:
• H.E. reported that A.E. reads and writes at a
first-grade level, has limited fine motor skills, and
functions socially like a ten- or twelve-year-old;
• A.E.'s conversation was limited and difficult to