In Regard to the Guardianship/Conservatorship of Bruce M. Van Sickle

Summary

The Supreme Court of North Dakota addresses appeals arising from the guardianship and conservatorship of Bruce M. Van Sickle. The court dismisses as untimely the appeal from the order appointing Guardian and Protective Services, declines to dismiss as moot challenges to the ward’s placement and related orders, and affirms the district court’s rulings. It holds that a locked unit of a basic care facility is not a “mental health facility” under N.D.C.C. § 30.1-28-12(2), and that the proposed transferor bears the burden of proving a placement is the least restrictive alternative.

Holdings

1. The court lacked jurisdiction to consider David Van Sickle's appeal from the order appointing Guardian and Protective Services as guardian and conservator because the notice of appeal was filed nearly one year after service of notice of entry and was untimely.
2. The appeals from the orders concerning the ward's placement and the motion for a new trial were not dismissed as moot because the issues were capable of repetition yet evading review.
3. The district court did not abuse its discretion by refusing to permit David Van Sickle to participate in the hearing and testify by telephone.
4. A locked and secured unit of a basic care facility is not a mental health facility within the meaning of N.D.C.C. § 30.1-28-12(2); therefore, GPS had authority to place the ward at Edgewood Vista without first obtaining a court order.
5. The party proposing to transfer a ward to a more restrictive living arrangement bears the burden of proving by clear and convincing evidence that the proposed placement is the least restrictive alternative available.
6. The district court's finding that Edgewood Vista was the least restrictive alternative for the ward's placement was not clearly erroneous.
7. The district court did not err in refusing to remove Guardian and Protective Services as guardian.
8. The district court did not abuse its discretion in denying the motion for a new trial.

Questions Presented

1. Whether the Supreme Court had jurisdiction over David Van Sickle's appeal from the July 30, 2003 order appointing Guardian and Protective Services as guardian and conservator.
2. Whether appeals concerning the December 15, 2003 and July 8, 2004 orders were moot after the ward left Edgewood Vista.
3. Whether the district court abused its discretion by refusing to permit David Van Sickle to testify by telephone.
4. Whether a locked and secured dementia unit of a basic care facility is a mental health facility under N.D.C.C. § 30.1-28-12(2), requiring a guardian to obtain a court order before placing a ward there.
5. Which party bears the burden of proving that a proposed residential placement is the least restrictive alternative and whether Edgewood Vista was the least restrictive placement.
6. Whether the district court erred by refusing to remove Guardian and Protective Services as guardian.
7. Whether the district court abused its discretion in denying the motion for a new trial based on newly discovered evidence and alleged procedural errors.

Disposition

other