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In the Matter of the

January 9, 2013

IN THE MATTER OF THE GUARDIANSHIP AND CONSERVATORSHIP OF NICOLE TRINA STEVENSON


APPEAL FROM THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT LINCOLN COUNTY, SOUTH DAKOTA THE HONORABLE STUART L. TIEDE Judge

The opinion of the court was delivered by: Konenkamp, Justice

#26168-a-JKK

CONSIDERED ON BRIEFS ON NOVEMBER 6, 2012

[¶1.] The circuit court ordered a mother's removal as guardian and conservator for her disabled adult daughter, after the mother failed to address adequately her daughter's obesity and transition to more independent living. The mother appeals.

Background

[¶2.] Nicole Trina Stevenson was born in 1985 with cerebral palsy and developmental disabilities. Delores Overholtzer and Wayne Stevenson are Nicole's biological parents. They were married at the time Nicole was born, but divorced in 1995. After Nicole turned 18, a California court appointed Delores as Nicole's guardian and conservator. In 2006, Wayne and Delores stipulated that Delores and Nicole could move to South Dakota with Delores's new husband, Harry Overholtzer.

[¶3.] In August 2007, Delores petitioned for guardianship and conservatorship in South Dakota. Wayne objected, contesting jurisdiction and requesting appointment as Nicole's guardian or co-guardian. Wayne also sought appointment of an attorney for Nicole. After a hearing, the court appointed William

H. Golden to represent Nicole, and deferred ruling on the petition for guardianship. Golden was directed to conduct an investigation and make a recommendation to the court. He issued a letter report, dated October 29, 2008. In November 2008, Delores was appointed Nicole's guardian and conservator. Wayne was granted visitation to be exercised through South Dakota Achieve.

[¶4.] Delores and Wayne were unable to cooperate on visitation. Wayne felt

Delores deliberately frustrated his scheduled visits. Delores insisted that Nicole was capable of making her own decisions and that Nicole did not want to visit with her father. Wayne claimed Delores was not acting in Nicole's best interests because she allowed Nicole to gain an immense amount of weight over the years. Nicole weighed over 300 pounds. Delores believed Nicole's weight gain was a result of medication, inability to exercise, and genetics.

[¶5.] In January 2010, Golden was permitted to withdraw as Nicole's attorney because he had obtained new employment. No new attorney was appointed. In April, Wayne petitioned for (1) removal of Delores as Nicole's guardian, (2) appointment of the South Dakota Guardianship Project or another independent party as Nicole's guardian, (3) determination of conservatorship, and

(4) appointment of an attorney for Nicole.

[¶6.] At a hearing in June 2010, Wayne called Golden to testify. His

October 2008 report was admitted into evidence. Golden informed the court through his report and testimony that Nicole was highly dependent on Delores and that transition to an independent living facility would be in Nicole's best interests. He cited the fact that when the parties lived in California, they agreed that it would be in Nicole's best interests to transfer to an independent living situation. Golden also reported that Delores had influence over Nicole's contact with Wayne, which caused Nicole great anxiety, although Golden did not believe Delores was "overtly attempting to prevent Nicole from visiting with her father[.]" Golden recommended that (1) an outside guardian be appointed for Nicole; (2) Delores should act as conservator; and (3) ...


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