Nebraska Department of Health & Human Services v. Gilmore

Irwin, Chief Judge,

dissenting.

I respectfully dissent from the conclusion reached by the majority that the Department had standing to bring the present action for removal of Aehul as guardian of her son Michael. There is no authority for concluding that the Legislature intended to attach to the phrase “person interested” (“in the welfare of a ward,” § 30-2616(a)) a meaning significantly different from that attached to the phrase “interested person” as defined in § 30-2209(21). Under the statutory definition of “interested person,” there is no authority for concluding that the present record establishes the Department to be an “interested person,” which *886establishment is a prerequisite to finding that the Department had standing to bring this action.

There is no dispute that the requirement of standing is fundamental to a court’s exercising jurisdiction. Ritchart v. Daub, 256 Neb. 801, 594 N.W.2d 288 (1999). Only a party who has standing may invoke the jurisdiction of the court. Rice v. Adam, 254 Neb. 219, 575 N.W.2d 399 (1998). To have standing to invoke a tribunal’s jurisdiction, one must have some legal or equitable right, title, or interest in the subject of the controversy. Ritchart v. Daub, supra. Standing requires that a litigant have such a personal stake in the outcome of the controversy as to warrant invocation of a court’s jurisdiction and justify the exercise of the court’s remedial powers on the litigant’s behalf. Id. Finally, for a party to establish standing to bring suit, it is necessary to show that the party is in danger of sustaining direct injury as a result of anticipated action, and it is not sufficient that one has merely a general interest common to all members of the public. Id.

The threshold issue in the present case is whether the Department had standing to bring this action. The record fails to establish that the Department had standing, and, accordingly, the county court’s order removing Aehul as Michael’s guardian should be reversed and the petition dismissed. None of the grounds for standing asserted by the Department are supported by the record in this case, and there is no authority for the grounds for standing espoused by the majority opinion.

The Department alleged in the petition that this action was being filed pursuant to § 30-2619 and Neb. Rev. Stat. § 83-383(2) (Reissue 1999). Neither of these provisions, however, acts to grant the Department standing to seek the removal of Aehul; both of these sections provide a mechanism for the initial appointment of a guardian and have no application to seeking removal of an already-appointed guardian. Even if § 30-2619 could be invoked to seek the appointment of a new guardian when somebody else is already serving in that role, a finding for which no authority has been discovered, for the Department to have standing under § 30-2619, the Department would have to demonstrate that it is a “person interested in [Michael’s] welfare.” On appeal, the Department argued that standing to bring the present action was conferred by § 30-2623, which specifically confers upon “the *887ward or any person interested in his welfare” standing to seek the removal or resignation of an already-appointed guardian. As such, the issue appears to come down to whether the Department is a “person interested” in Michael’s welfare.

There is no definition, either in the statutes or in case law, for the term “person interested.” There is, however, a definition in § 30-2209(21) for the term “interested person.” That definition specifically includes heirs, devisees, children, spouses, creditors, beneficiaries, and others having a property right in or claim against a ward’s estate, as well as persons having priority for appointment as personal representative. The record presented to us in this case contains nothing to support a finding that the Department is an “interested person” under this definition of the term, which term is used throughout the Nebraska Probate Code. Significantly, it does appear from the record that the person who was ultimately appointed as Michael’s successor guardian may well have satisfied the definition of “interested person” and could have sought Aehul’s removal.

The only portion of the definition which could arguably apply to the Department is that “interested person” includes “creditors .. . and any others having a property right in or claim against ... the estate” of Michael. See § 30-2209(21). The record before us does not indicate that the Department is a creditor or has a property right in or claim against Michael’s estate. Specifically, the record before us does not contain any evidence to indicate what portion of Michael’s care was actually paid for by the Department, if any; does not contain any evidence to indicate that payment for any of these services made the Department a creditor; and at most indicates that the Department assists families such as Michael’s by coordinating services, applying for funding for families, and paying for some of the services received.

The Department argued on appeal that “Michael had been in the care of the Department and Envisions[,] who have posed a growing concern as to [Aehul’s] ability to serve as Michael’s guardian.” Brief for appellee at 6. The record, however, does not indicate that Envisions is operated under or by the Department such that Michael has been “in the care of the Department” and contains no evidence to indicate that Michael’s care at the *888Envisions facility in any way provided the Department with a property right in or claim against Michael’s estate.

In addition, the last sentence of the definition of “interested person,” that the meaning as it relates to particular persons may vary and must be determined according to the particular proceeding, see § 30-2209(21), does not broaden the scope of who may qualify as an “interested person.” Indeed, in a variety of contexts, many other jurisdictions have indicated that this last sentence serves to allow courts to find that the parties who might otherwise qualify as “interested persons” do not qualify in a particular proceeding. See, Estate of Thorne, 704 A.2d 315 (Me. 1997) (intervention in probate proceeding); In re Estate of Juppier, 81 S.W.3d 699 (Mo. App. 2002) (challenge to appointment of guardian); Taylor v. Taylor, 47 S.W.3d 377 (Mo. App. 2001) (settlement of conservatorship estate); Matter of Walker, 875 S.W.2d 147 (Mo. App. 1994) (appointment of guardian and conservator); Estate of Miles v. Miles, 298 Mont. 312, 994 P.2d 1139 (2000) (probate of will). See, also, In re Marital Trust Under Last Will and Testament of Wilfred Wolfson, No. C7-00-131, 2000 WL 978723 (Minn. App. July 18, 2000) (not designated for permanent publication) (petition for appointment of cotrustee and removal of trustee). “The last sentence of the statutory provision does not broaden the definitional reach of ‘interested person.’ ” Estate of Thorne, 704 A.2d at 318.

Consistently with this interpretation, other jurisdictions have generally held that to be an “interested person,” a litigant must possess a present financial or property interest in the estate of the protected person. See, Estate of Thorne, supra; In re Estate of Juppier, supra; Taylor v. Taylor, supra; Matter of Walker, supra; Estate of Miles v. Miles, supra; In re Marital Trust Under Last Will and Testament of Wilfred Wolfson, supra. “An interested person ... will always possess an interest in the estate itself.” Estate of Thorne, 704 A.2d at 318. In fact, in In re Estate of Juppier, supra, the Missouri Court of Appeals held that paternal grandparents were not “interested persons” for the purpose of seeking the removal of their grandchild’s guardian, because they lacked a financial interest in the grandchild’s estate. To grant standing to someone with a purely sentimental or filial interest in a ward or protected person would *889be in direct contravention of legislative intent. Matter of Walker, supra.

The record before us fails to include any evidence from which it could be determined that the Department satisfies the statutory definition of “interested person.” The majority opinion does not dispute this conclusion, but, rather, concludes that the definition of “interested person” is not controlling because the guardian removal statute, § 30-2623, uses the phrase “person interested” instead of “interested person.”

There is no authority for the majority’s conclusion that “person interested” should be given some different and vastly broader meaning than the term “interested person.” Significantly, neither statute nor case law defines the term “person interested” to suggest that the ordering of the two words should result in a different meaning. Similarly, there is no authority for concluding that the Legislature was recognizing the need to grant the right to seek removal of an established guardian to “a neighbor, an old friend, the child of an old friend, a member of the clergy, a banker, a lawyer, a doctor, or someone else who has been professionally acquainted with the person needing such help.” There is no authority for the proposition that such people will frequently come forward “out of simple charity” or for the proposition that “the above statutes are worded to allow people without a legal interest” to invoke the power of the court. Indeed, it is a longstanding and undisputed proposition that people without a legal interest explicitly cannot “bring the matter to the local court’s attention.” See Ritchart v. Daub, 256 Neb. 801, 594 N.W.2d 288 (1999). That is the very crux of the jurisdictional requirement of standing.

The problem with a public agency such as the Department “coming forward” on matters such as the present case is that there is no authority for such an agency to invoke the jurisdiction of a court to seek the removal of a guardian such as Aehul. This should be particularly so when the record fails to establish that the agency, like the Department herein, is “quite likely to be supplying financial assistance for the ward,” as the majority herein concludes. Although the majority’s conclusion that “the county judge, under the applicable standard of review, can make the determination of whether the petitioner is really interested in the *890welfare of the person subject to the proceedings” is correct, the county judge’s determination must be guided by legal rules. The only established legal rules in this situation are those that guide the determination of whether the Department is an “interested person,” and under the applicable standard of review, the county court committed reversible error in finding that the Department had standing. As such, I would find that the Department lacked standing and that the county court’s order removing Aehul as Michael’s guardian should be reversed.