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In re Estate of Schneider

Court of Appeals of Missouri, Western District

March 26, 2019


          Appeal from the Circuit Court of Callaway County, Missouri The Honorable Deborah Daniels, Judge

          Before Division Three: Mark D. Pfeiffer, Presiding Judge, and Lisa White Hardwick and Anthony Rex Gabbert, Judges.



         Mr. Robert Schneider ("Robert")[1] appeals from the ruling of the Circuit Court of Callaway County, Missouri, Probate Division ("probate court"), removing him as conservator and guardian of Mr. Lawrence David Schneider ("Larry") and granting Ms. Carol Hinchie's ("Carol") petition to be appointed successor conservator and guardian. We affirm.

         Factual and Procedural Background[2]

         Larry is a mentally disabled adult. Larry lived with his parents, Robert and Martha Schneider, who had been appointed his co-guardians and co-conservators. After Martha's death on May 8, 2015, Robert was Larry's primary caregiver and served as Larry's sole guardian and conservator. Larry received personal assistant services through Finck Supported Living and case management services through Callaway County Social Services. Carol, who is Robert's daughter and Larry's adult sister, also helped with Larry. The family plan was that Carol would become more involved with Larry's care as her parents got older, and when they both died, she would care for Larry.

         At an annual meeting held in February 2016 to update and develop the next year's individual support plan for Larry, Larry's support coordinator/case manager with Callaway County Special Services noted that Larry was very close to his sister Carol and his entire family, he attended church each Sunday with family, family members were the most important individuals in his life, and it was important that Larry's daily routine remain as consistent as possible.

         In the summer of 2016, Robert met Ms. Mary Gallagher ("Mary") through a dating website. Carol and her brother Mr. Steven Schneider ("Steve") were concerned about the relationship because Mary represented herself on the website to be a widow when she was actually married. They were also concerned about Mary's ability to manage finances since she had filed for bankruptcy the same year she met Robert. Despite Carol and Steve's concerns, Robert had Mary and Kevin, her fourteen-year-old son, move into his home in December 2016. About that time, he also requested that Callaway County Special Services involve Mary in decision-making for Larry and stated that he and Mary were going to "train" Larry in the home. Also in December 2016, Robert and Mary traveled out-of-state and left Larry in the care of Kevin overnight. When Carol came to the farm the next morning and found Larry had been alone overnight with Kevin, she reported the incident to Callaway County Special Services. Carol and Steve were concerned about Larry's safety in the care of a fourteen-year-old boy.

         In January 2017, Finck Supported Living contacted Callaway County Special Services to report that the personal assistant staff was concerned that when their shift was over, Larry was left at home with fourteen-year-old Kevin, who would play with technology in his room and not monitor Larry. There was also a report that the personal attendant found a broken glass at the end of the stairway, which could have harmed Larry, while Kevin was in his room with the door shut. Larry's support coordinator/case manager with Callaway County Special Services expressed to Robert that it was not a good idea for Larry to be left alone with Kevin, but Robert stated that he was fine with it.

         Robert and Mary were married on February 25, 2017, and two days later, Robert added Mary as joint tenant with right of survivorship to his personal checking account, into which he regularly deposited funds from Larry's conservatorship account, commingling the funds without having sought court approval. Within a week of the marriage, Robert retitled his farm jointly with Mary. On March 1, 2017, Robert filed a letter with the probate court requesting that Carol be removed as Larry's successor guardian and that Mary be appointed.

         After Robert's marriage, he made major changes in Larry's life. Robert took Larry off all behavioral health medicines without consulting with a physician. Robert revoked Callaway County Special Services' authorization to release information to Carol and Steve. He curtailed Carol's visits with Larry. Robert changed Larry's doctor, his case manager, discontinued his personal assistant services, and stopped attending St. Peter's Catholic Church where the family had worshipped every Sunday. Larry's personal assistant and case manager were concerned about the effect these changes had on Larry, including increased anxiety, weight loss, and regression in skills.

         On March 13, 2017, Carol petitioned the probate court pursuant to section 475.097[3] to appoint a guardian ad litem for the limited purpose of investigating Robert's guardianship and conservatorship of Larry. At the same time, Carol also filed a motion to remove Robert as Larry's guardian and conservator pursuant to section 475.082.5. Robert moved to dismiss Carol's motion for removal on the grounds that she lacked standing to pursue the motion to remove. On April 12, 2017, the probate court held a hearing to address only the petition for appointment of a guardian ad litem. Neither Carol's motion to remove nor Robert's motion to dismiss was noticed up, considered, or ruled upon by the probate court. After hearing testimony from Carol and Robert, the probate court declined to appoint Carol as guardian ad litem and conservator ad litem and, instead, determined that the court "need[ed] to appoint an attorney to file a report to the Court about how Larry is getting along and what needs to be done with regard to his financial concerns." [Tr. 72]

         After the probate court appointed Ms. Cynthia Kramer as attorney and guardian ad litem ("the GAL") for Larry, the GAL reported on her investigations. Her first report was filed May 31, 2017. She reported that "[t]he conservator, Robert Schneider, Larry's father, currently transfers the entire amount of Larry's social security benefit," as well as the income Larry earned by working at a sheltered workshop, into Robert's joint checking account with Mary. The GAL determined that "[t]he co-mingling of Larry's funds with those of the conservator, and especially now in an account that can be accessed by an individual who is not a court[-]appointed conservator is concerning and warrants further investigation." The GAL also reported that "[t]he expenses being allocated to Larry do not appear to be substantiated with any type of source documentation." The GAL concluded:

[T]here are significant concerns about Robert's decision-making in regard to allowing access to decisions about Larry's funds and well-being to his new wife, to whom he has only been married a few months and known for a year or less. Another concern regarding appropriate decision-making includes leaving Larry for supervision by a 14 year old boy, who barely knows Larry. In addition, there are concerns due to Larry being removed from contact with his familiar relationships, such as St. Peters, his sister and her family, his [a]unt, and his brother.

         On October 11, 2017, the GAL submitted her final report and recommendation to the probate court. With regard to Robert's management of Larry's benefits, the GAL found Robert:

appears to have ceased co-mingling of Larry's funds; has removed access to the account from any other person than himself; has recently started to make direct purchases on behalf of Larry from Larry's account; that substantiation of expenses such as room and board have still not occurred; that compliance with accounting requirements for allocation of expenses has still not occurred; and that [Robert] appears to be having difficulty understanding the need for proper accounting and allocation of Larry's funds.

         With regard to Robert's management of Larry's medical condition, the GAL found that:

Larry has experienced multiple medical concerns during the two years following the death of his mother; that Larry has exhibited symptoms of an underlying medical or psychological change during the two years following the death of his mother; and that [Robert] has raised these concerns with physicians but has not consistently followed up on screenings or treatment for these conditions.

         With regard to the least restrictive environment provided by Robert for Larry, the GAL found that:

Larry's 50 year pattern of activities has been completely changed in the past 9 months; that Larry's support team of familiar individuals has been completely changed in the past 9 months, including changing medical professionals, restricting the access of Larry to close family members such as Carol and Steve, and introducing numerous and continuous additional activities that keep Larry out of the home and away from his familiar routine; that the family environment for Larry has changed substantially in the past 9 months by the introduction of
[Robert]'s new wife Mary and her 14 year old son to the family home; and that no substantiation as to how these changes support Larry's rights to autonomy and self-determination has been provided but instead the reason given for these changes by [Robert] are related to his relationship with his new wife.

         The GAL recommended that Robert and Carol be named as co-guardians of Larry, "with full knowledge that [Robert] has stated unequivocally that he will not speak with Carol and that he would rather see Larry placed in a 'State' home than be placed with Carol due to her rejection of his new wife." However, the GAL secondarily recommended that, if Robert cannot put aside his past animosity with Carol, Carol be named guardian for Larry.

         The probate court held a status hearing on October 12, 2017. The probate court, "on its own motion, determine[d] that there [was] reason to believe that the court-appointed conservator [was] not performing the duties required of a conservator under Section 475.097 based on the [GAL] report filed on 10/11," [Tr. 90] and on Robert's disregard after the April hearing of the directions from the probate court concerning the management of Larry's finances. The probate court further determined "that an emergency exist[ed] because of the jeopardy that this conduct may create for the continued receipt of federal and state benefits." [Tr. 92] The probate court appointed Carol as emergency conservator ad litem to have control of and manage Larry's finances. A hearing on Carol's petition to be appointed successor guardian and conservator was set for November 9, 2017.

         At the November 9th hearing, Carol, Steve, Larry's Callaway County Special Services case manager, and the Finck Supported Living manager testified that Robert had failed to act in Larry's best interests. The Finck Supported Living manager was concerned primarily about Larry being at home alone with Mary's fourteen-year-old son when the personal assistant left for the day and about Robert not considering that an issue. Larry's Callaway County Special Services case manager also expressed concerns for Larry's safety when he was at home alone with Kevin. She also testified that there were reports that Larry had untreated medical conditions in December 2016; that Robert had taken Larry off all of his behavioral health medications; and that Robert and Mary were establishing new goals for Larry that Finck thought were too advanced for him. In January 2017, Robert revoked his authorization to release information to Carol and Steve. Larry's case manager also noted reports of concern expressed by the Finck Supported Living manager regarding Larry's noncompliance, regression in skills, and enhanced anxiety and confusion.

         Robert blamed the GAL and others for his failure to comply with the probate court's directives regarding Larry's finances. He did not see anything wrong with leaving Larry, who has the mental cognition of a three- to four-year-old, with a fourteen-year-old boy ("What's wrong with 14?"). And he did not want Carol or Steve to receive any information about Larry, not because of Larry, but because of the way they were treating him (Robert) and Mary. Robert testified that he did not want to work with Carol as co-guardian and co-conservator.

         On November 14, 2017, the GAL filed a supplement to her attorney and guardian ad litem final report.

         Regarding conservatorship and management of benefits, the GAL noted that Robert's annual report as conservator for Larry was due on October 31, 2017, but had not been filed. She also noted that even after going to the Social Security Administration to obtain information regarding the proper accounting and expenditure for Larry's benefits, Robert remained "confused regarding Larry's status as a disabled adult rather than a child, as well as unclear regarding appropriate dispersing and accounting for Larry's funds." She also reported that Robert had not indicated any initiative in obtaining information regarding the requirements of a conservator in Missouri. Consequently, the GAL recommended to the probate court that Robert be removed as conservator and that Carol be appointed.

         Regarding guardianship, the GAL noted that Robert's annual report as guardian was due on October 31, 2017, but had not been filed. The GAL determined that "[t]he evidence at the hearing on November 11, 2017[, ] substantiated that [Robert] is struggling to separate his statutory responsibility and duties as Guardian from his role as Larry's parent and from his relationship with his new wife." Consequently, the GAL concluded that Robert was no longer able to act as the sole guardian for Larry, and recommended that Robert and Carol be named as co-guardians. Alternatively, if Robert was unable or unwilling to share guardianship with Carol, she recommended that Carol be named guardian for Larry.

         On December 26, 2017, Robert and Carol both filed post-hearing statements, and the GAL filed the attorney and guardian ad litem's post-hearing supplemental statement with regard to the parties' ability to cooperate in a co-guardianship during the period November 9, 2017, through December 26, 2017. The GAL found there was substantial evidence that Robert was a loving father to Larry, but that Robert's ability to serve as conservator and guardian "had been compromised to the extent that he cannot meet the statutory obligations imposed for serving as a sole Conservator or Guardian." The GAL found there was substantial evidence that Carol "is a loving sister and that she can meet the statutory obligations imposed on a sole Conservator and Guardian for Larry and that she will also continue to attempt to maintain and facilitate Larry's relationship with his father." Due to Robert's ...

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