Appeal from the Superior Court of the District of Columbia (INTVP67-03) (Hon. Kaye K. Christian, Trial Judge).
The opinion of the court was delivered by: Wagner, Senior Judge
Before WASHINGTON, Chief Judge, FARRELL, Associate Judge and WAGNER, Senior Judge.*fn1
Appellant, Antoine L. McMillan, appeals from an order of the trial court appointing appellee, Darrel S. Parker, as his conservator. He argues for reversal on the principal grounds that: (1) he was denied the attorney of his choice, a meaningful opportunity to present his case, and the right to remain silent; (2) the evidence was insufficient to support a prima facie case that he is an incapacitated individual who requires a conservator to protect his property; (3) the trial court was not impartial; and (4) the trial court erred in denying without prejudice his motion to transfer his estate assets to Maryland where he resides. We affirm the decision of the trial court with the exception of its ruling denying payment from appellant's funds for the expert witness, Dr. Ballard, which must be reconsidered consistent with this opinion.
The evidence showed that appellant suffers from cerebral palsy as the result of injuries suffered at birth. He became entitled to substantial funds as the result of the settlement of a medical malpractice action. Both of his parents agreed to the appointment of a guardian of his estate. Appellee, Rene Fox, was appointed guardian of his estate and served in that capacity for some thirteen years. When appellant reached his eighteenth birthday, appellee Fox brought a Petition for a General Proceeding in the Probate Division of the Superior Court seeking the appointment of a conservator to receive and manage appellant's funds. She alleged in the petition that appellant is incapacitated and that the appointment of a conservator was necessary because the subject "has property that will be wasted or dissipated unless property management is provided" and "money is needed for the support, care and welfare of the subject." She requested the appointment of appellee, Darrel S. Parker, Esquire, as conservator, stating that Mr. Parker was familiar with conservatorship proceedings and would make an excellent role model for appellant, Mr. McMillan. The court appointed Barbara E. Brown, Esquire, as counsel for appellant, and Dr. Ronald D. Wynne, a clinical psychologist, as Examiner. After several days of evidentiary hearings, the trial court entered findings of fact, conclusions of law and an order in which it determined that appellant is an incapacitated individual within the meaning of the statute and that the appointment of a conservator of his estate was required in his best interest. The trial court denied without prejudice appellant's request to transfer his case to Maryland. Additional facts relevant to the issues appellant raises on appeal are set forth in the sections discussing those issues.
Appellant argues that there were "structural defects" in the proceedings that require reversal. Specifically, appellant argues that he was denied his rights to counsel of his choice, a meaningful opportunity to present his case, the right to remain silent, and an impartial judge. We consider each of these claims in turn.
A. Rights to Counsel of Choice and To Present A Case
Under the Guardianship Act, an individual alleged to be incapacitated has the right to "'be represented by counsel and is entitled to present evidence and to cross-examine witnesses . . . .'" In re Orshansky, 804 A.2d 1077, 1093 (D.C. 2002) (quoting D.C. Code §§ 21-2041 (h), -2054 (e) (2001)). After a petition is filed, the court is required to appoint counsel for the alleged incapacitated person unless that individual is represented by counsel. D.C. Code § 21-2041 (d); see also Super. Ct. Prob. R. 321 (d) (requiring the court to appoint counsel concurrently with scheduling a hearing). "If the petition discloses that the subject [i.e., the alleged incapacitated person] is represented by counsel, the Court shall appoint such person unless good cause to the contrary exist[s]." Super. Ct. Prob. R. 321 (d). An attorney retained by the subject after the appointment of counsel by the court must file a "notice of appearance" and serve a copy of same on all persons entitled to notice and appointed counsel, among others. Super. Ct. Prob. R. 305 (b). The rule provides a procedure for the filing of objections to retained counsel and an ex parte hearing on any objections filed. Super. Ct. Prob. R. 305 (b)(2), (3) and (4). The appearance of appointed counsel terminates if and when the notice of appearance of retained counsel becomes effective. Super. Ct. Prob. R. 305 (b)(5).
In this case, consistent with D.C. Code § 21-2041 (d) and Super. Ct. Prob. R. 321 (d), the court appointed counsel to represent appellant at the same time that it scheduled a hearing on the petition for a general proceeding to appoint a conservator for him. Appellees contend that there is no showing that any lawyer appeared who was prepared to replace court appointed counsel and represent appellant generally in opposition to the petition of appellant's guardian to appoint a conservator, the sole issue scheduled for trial. Appellees' contention is borne out by the record. On the date of the scheduled initial hearing, C. Sukari Hardnett filed an application for admission pro hac vice; however, her application stated that it was "for the limited purpose of asking [the] Court to transfer Antoine McMillan's estate to Maryland. . . ." The issues raised by the pending petition for the appointment of a conservator concerned whether appellant is an incapacitated individual as defined in D.C. Code § 21-2011 (11) and whether a conservator of his estate should be appointed because he had "property that [would] be wasted or dissipated unless property management is provided." See D.C. Code § 21-2051 (b)(1) (2001). There is no indication that Ms. Hardnett sought to represent appellant in addressing these issues.
Appellant does not dispute that no attorney purporting to be retained by him ever filed a notice of appearance in compliance with Super. Ct. Prob. R. 305 (b). Nevertheless, he contends that he demonstrated adequately his request to have counsel of his choice through a pleading filed in his guardianship case, the pro hac vice petition of Ms. Hardnett, and the request of Ms. Hardnett's local sponsoring attorney, Coleman Foster, made in open court to have her admitted pro hac vice. Appellant argues that these representations are tantamount to the notice of appearance required under Super. Ct. Prob. R. 305 (a)(2). Under the circumstances presented, we are not persuaded that the trial court erred by not treating these actions as tantamount to notice under Rule 305. First, Rule 305 sets forth procedures related to the appearance of counsel for an alleged incapacitated person in an intervention proceeding. Ms. Hardnett did not purport to be seeking to be counsel for that purpose. Second, Rule 305 requires counsel to file a notice of appearance with copies to persons listed therein, who then have an opportunity to file objections, which triggers the requirement for a hearing. See Super. Ct. Prob. R. 305 (b). That did not occur here.
A pleading filed by Mr. Foster in the separate guardianship proceeding shows that he represented appellant's mother, Linda McMillan, who filed the complaint seeking to remove the guardian as appellant's next friend.*fn2 The guardianship case involved appellant's estate when he was a minor which would be terminated when he reached majority. The petition pending before the trial court in this case concerned an alleged adult incapacitated person who required a conservator to protect his property. Even assuming that the pleading in the guardianship case could be considered as a request to represent appellant in the intervention proceeding, and we do not so conclude, the pleading in the guardianship case does not suggest that anyone was seeking to appear for appellant and address all the issues raised in the intervention proceeding. While that pleading stated that appellant had developed a trusting relationship with the attorneys at Hardnett and Associates and requested the appointment of William D. Jackson of the same firm to replace appellant's court appointed guardian, it did not indicate that either Foster, Jackson or Hardnett was prepared to represent appellant in this general intervention proceeding. The trial court was in the second day of hearings on the petition to appoint a conservator when Mr. Foster appeared in court to move Ms. Hardnett's admission pro hac vice. At that time, he represented that Ms. Hardnett was appellant's legal representative in Maryland, having drafted on his behalf a living trust and health care proxy, but he did not indicate that Ms. Hardnett sought to change the limited scope of the representation as stated in her application for admission pro hac vice. Thus, it does not appear that the court had before it any counsel retained by appellant who was ready to enter an appearance on appellant's behalf to replace court appointed counsel in this general intervention proceeding. Under these circumstances, the requirement for an ex parte hearing under Rule 305 was never triggered. Therefore, we find no error in the court's failure to hold a hearing under Super. Ct. Prob. R. 305 (b)(3) and in allowing court appointed counsel to continue to represent appellant in the intervention proceeding.
The trial court did undertake an inquiry to determine whether to grant Ms. Hardnett's application to appear pro hac vice.That inquiry included testimony from appellant concerning whether an attorney-client relationship existed or whether he had, in fact, selected Ms. Hardnett as his attorney.*fn3 The trial court concluded that appellant had not selected Ms. Hardnett as his counsel and that she had been selected by and represented appellant's parents, which presented a conflict of interest. Appellant argues that the trial court applied an improper standard in determining whether to permit Ms. Hardnett to appear as counsel pro hac vice. He contends that the trial court failed to evaluate whether he had the capacity to contract for Ms. Hardnett's legal services. Appellant also argues that there was no evidence to support a finding that he did not possess sufficient understanding to contract for legal representation. Appellees respond that the issue was not whether appellant ...