Case Spotlight: Guardianship of a Minor, A Major Victory

Originally published by Paul Romano.

Romano & Sumner had one of its most gratifying victories recently in the South Texas town of Victoria. The case involved the guardianship of a minor who we’ll refer to as HMT.

Guardianship Background: Orphaned Child

This case began on January 30, 2015. HMT was 11 years old and her mother, Helen, passed away unexpectedly from Kidney stones.  My client, Donna, worked with Helen at her nail salon and had helped Helen raise HMT since she 3 months old. HMT affectionately referred to my client as “Momma Donna” and considered her to be part of her family even though Momma Donna was white and HMT was Vietnamese.

The Family Abuses Assets

Helen’s family had recently immigrated to the Unites States from Vietnam. Shortly after Helen’s death the family took control of Helen’s assets including the nail salon and Helen’s house. They quickly began using those assets for their own benefit.

Momma Donna verbally protested against what she believed was the fleecing of young HMT’s estate by her biological family. In retaliation, the “family” cut off all contact between Momma Donna and HMT.

Attorney Intervention and Litigation

I became involved in the case because HMT went to school with the son of an attorney friend of mine from Victoria named Will Sciba. Will is a personal injury lawyer so he referred Momma Donna to me.

When I first talked to Donna I didn’t think she had a chance of becoming HMT’s guardian.  I almost refused to take her case because I didn’t want to waste her money. I don’t typically take on lost causes regardless of a client’s willingness to pay.  I’m not exactly sure why I took this case other than I believed Donna sincerely loved HMT and that for some reason I trusted her when she told me that Helen’s family was mistreating HMT.

Filing the Application for Guardianship

HMT’s aunt filed the first application for guardianship, and I soon filed a contest and a competing application on behalf of Momma Donna. Given that a blood related aunt has priority to be guardian over a non-relative, I knew that the only chance my client had of winning was to be able to prove that the aunt should be disqualified for her mistreatment of HMT and that appointment of Momma Donna as guardian would be beneficial for HMT.  

Guardian Ad Litem and Visitation

I first requested that a Guardian ad Litem be appointed by the court to represent HMT’s best interests and to conduct an investigation into her welfare.   

After the Guardian ad Litem issued her report condemning the behavior of the aunt and other family members for their mistreatment of HMT, I petitioned the court to allow Momma Donna to have visitation with HMT on a regularly scheduled basis. Additionally, I requested that a Temporary Guardian be appointed for HMT who could monitor the visitation schedule and who would have the power to change the residence of HMT (who was then residing with the family).

After a contentious hearing, II successfully secured visitation for my client and the appointment of a Temporary Guardian.

Motion for Security of Costs

The family attempted to use procedural trickery not only to appeal the visitation order to the court of appeals but also to attempt to transfer the proceedings to determine custody of HMT to nearby DeWitt County.

After several hard-fought battles at the court of appeals and in the DeWitt County District Court, I succeeded in preserving the visitation order as well as maintaining the Guardianship proceedings in Victoria County.  Once these victories were secured, I immediately filed a Motion for Security for Costs with the Victoria County Court.

This motion requested the court to require the Family Applicants (HMT’s grandmother and a cousin had filed separate applications for guardianship in an attempt to increase their chances of success) to pay the collective costs of the three court appointed attorneys (around $65,000 at that point). We based this motion on the bad faith actions the Family Applicants had taken thus far in the guardianship proceeding.

Child’s Right to Choose

Blood relatives typically have the advantage over those outside of the bloodline in a guardianship proceeding for a minor child.  However, the Texas Estates Code establishes that when a minor child is 12 or older they have the right to choose their own guardian. The court still has the ability to veto that choice if it finds that it is not in the best interest of the child.

The family’s mistreatment of HMT became even more readily apparent to the various attorneys who had been appointed by the court on HMT’s behalf, and these attorneys were all willing to testify against the family at the upcoming guardianship trial.  Even more importantly, during the delay period, HMT turned 12.

Statement of Choice of Guardian

Less than a month before trial, and within a week of the hearing on my Motion for Security for Costs, the temporary guardian of HMT filed a “Statement of Choice of Guardian” signed by HMT in which she indicated her preference for Momma Donna to serve as her permanent guardian.  

Additionally, the temporary guardian used her authority to change HMT’s residence to Momma Donna’s house. The Statement of Choice of Guardian was the final nail in the coffin for the Family Applicants because they all dismissed their applications for guardianship just prior to the hearing on the motion for security for costs. The risk of being ordered to pay attorney’s fees in the amount of $65,000.00 was enough to scare the family away.

Momma Donna was appointed permanent guardian of HMT and they now live together as a family with Momma Donna’s husband Tim.  What this case proved to me is that the definition of “family” cannot be limited by blood or race, but must be expanded to include those who love one another like a family should.

 

Consult an Experienced Guardianship Attorney

If you have questions about the guardianship process and whether it is right for you we recommend that you consult an experienced guardianship attorney. At Romano & Sumner, we have a great deal of experience with the guardianship process. If you have any questions, or would like to make an appointment to talk with us, please don’t hesitate to contact us today.

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