The respondent, R.G., appeals an order of the probate court granting the petition for guardianship filed by his mother. The respondent argues that: (1) the trial court erred in finding legal incapacity beyond a reasonable doubt; and (2) the petitioner failed to carry her burden of proof with respect to the necessity for a guardianship and that it was the least restrictive alternative available. We affirm.
RSA 464-A:8, IV (2004) establishes a legal presumption of capacity in a proceeding to establish a guardianship. Under this statute, the burden of proof is on the petitioner to establish beyond a reasonable doubt that the proposed ward is incapacitated and in need of a guardian. The court may appoint a guardian of the person after finding "in the record" that: (1) the proposed ward is incapacitated; (2) the guardianship is necessary to provide continuing care, supervision, and rehabilitation of the individual; (3) there are no available resources which are suitable with respect to the proposed ward's welfare, safety and rehabilitation; and (4) guardianship is appropriate as the least restrictive form of intervention consistent with the preservation of the civil rights and liberties of the proposed ward. RSA 464-A:9 (2004). "Available alternative resource" is defined as "alternatives to guardianship including, but not limited to, services such as visiting nurses, homemakers, home health aides, adult day care and multipurpose senior citizen centers; powers of attorney, representative and protective payees; and board and care residential care facilities." RSA 464-A:2, II (Supp. 2012). We have held that nothing in the plain language of the statute requires that the trial court "provide written illumination of all facts used in making its ultimate findings" that the statutory prerequisites for a guardianship have been met. In re Guardianship of Kapitula, 153 N.H. 492, 495 (2006).
Because the respondent challenges the sufficiency of the evidence, we review the record to determine whether it supports the probate court's finding that the petitioner proved these statutory components beyond a reasonable doubt. In re Guardianship of G.S., 157 N.H. 470, 474 (2008). In conducting this review, we examine whether the probate court's actual or implicit factual findings on the statutory components required for guardianship are reasonably supported by competent evidence. Id. We defer to the trial court's judgment on such issues as resolving conflicts in testimony, measuring the credibility of witnesses and determining the weight to be given testimony. Id. "The findings of fact of the judge of probate are final unless they are so plainly erroneous that such findings could not be reasonably made." RSA 567-A:4 (2007). Accordingly, we do not reweigh the evidence to determine whether we would have ruled differently. In re Guardianship of G.S., 157 N.H. at 474.
The trial court found that the respondent had been incarcerated for approximately sixteen months prior to the hearing on the guardianship petition. He had discharged his appointed counsel in his criminal case. He was subsequently appointed standby counsel but had not conferred with counsel at the time of the guardianship hearing, although jury selection in the criminal matter was scheduled to begin on the following Monday. In the six months prior to the filing of the petition, the respondent had voiced suicidal ideation, including a plan to "off himself" when he got to the state prison. The petitioner also observed the respondent's eyes roll back toward his head and his incoherent babbling. She testified that the respondent did not understand the risks he was assuming in representing himself in the criminal case or the consequences of a conviction on the pending charges.
The respondent testified against the advice of his counsel at the guardianship hearing. The trial court had the benefit of observing the conduct and demeanor of the respondent during the course of the hearing. Citing in part the respondent's testimony, the trial court found that the evidence presented established that the respondent was incapacitated due to his unaddressed compromised mental cognition. The court also found that the respondent's "referenced decision making and the actions he has taken in the pending criminal prosecution are not seen as the product of an informed and rational weighing of relevant information and evaluation of attendant risks and potential consequences." Because these findings of fact are not plainly erroneous, we affirm the trial court's findings. See RSA 567-A:4.
The respondent also argues that the trial court erred in finding that a guardianship was the least restrictive alternative available, and applied an incorrect legal standard in reaching its determination. We note at the outset that the respondent did not file a motion for reconsideration in the trial court bringing the legal standard issue to the attention of the court. Accordingly, we conclude that he did not preserve this issue for our review. See, e.g., Starr v. Governor, 151 N.H. 608, 611 (2004); see also Bean v. Red Oak Prop. Mgmt., 151 N.H. 248, 250 (2004) (failure of appealing party to comply with requirements of appellate review may be considered by supreme court regardless of whether opposing party objects on those grounds). Nevertheless, given the interest affected by the trial court's order and the procedural history of this case, we review this issue under our plain error rule. See Sup. Ct. R. 16-A. The plain error rule allows us to consider errors not raised in the trial court; we have cautioned, however, that it will be used sparingly, its use limited to those circumstances in which a miscarriage of justice would otherwise result. State v. Kay, 162 N.H. 237, 240 (2011). To find plain error: (1) there must be an error; (2) the error must be plain; (3) the error must affect substantial rights; and (4) the error must seriously affect the fairness, integrity or public reputation of judicial proceedings. Id. In this case, we find no error.
"Least restrictive form of intervention" means that "the guardianship imposed on the ward represents only those limitations necessary to provide him or her with needed care and rehabilitative services, and that the ward shall enjoy the greatest amount of personal freedom and civil liberties consistent with his or her mental and physical limitations." RSA 464-A:2, XIV (2004). In support of his claim of error, the respondent cites an excerpt from the trial court order that notes the absence of any evidence that a guardianship was unnecessary and that available alternatives or less restrictive forms of guardianship existed. We do not agree with the respondent that this language indicates that the trial court shifted the burden of proof to him. Rather, our review of the record indicates that this language was included in the trial court's narrative to support its finding that the petitioner had met her burden and the respondent presented no evidence to rebut it. Because the trial court's findings are not clearly erroneous and the guardianship is limited in scope, we affirm the trial court's order. See In re Guardianship of G.S., 157 N.H. 470, 476 (2008) (proposed ward's confinement at New Hampshire State Prison rendered many options included in statutory definition of "available alternative resource" unworkable).
HICKS, CONBOY, and BASSETT, JJ., ...