MEMORANDUM DECISION
                                                                  Apr 17 2015, 10:00 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                 ATTORNEYS FOR APPELLEE
Frederick A. Turner                                    Gregory F. Zoeller
Bloomington, Indiana                                   Attorney General of Indiana
                                                       Frances Barrow
                                                       Deputy Attorney General
                                                       Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

In Re:                                                     April 17, 2015
                                                           Court of Appeals Cause No.
The Guardianship of Sharon                                 53A05-1407-GU-320
Izzo,
                                                           Appeal from the Monroe Circuit
Appellant                                                  Court
                                                           The Honorable Stephen R. Galvin,
                                                           Judge
                                                           Cause No. 53C07-1402-GU-12




Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 53A05-1407-GU-320 | April 17, 2015        Page 1 of 9
                                           Case Summary                   1




[1]   In the spring and summer of 2013, Indiana Adult Protective Services (“APS”)

      received calls concerning seventy-seven-year-old Appellant Sharon Izzo, calls

      expressing doubt that Izzo was able to make appropriate health care and

      financial decisions. In February of 2014, APS petitioned for the appointment of

      a guardian over Izzo’s person and estate. After a first hearing, the trial court

      appointed a guardian ad litem (“GAL”) and temporary guardian. Following a

      second hearing, the trial court found that Izzo suffered from cognitive problems

      and mental illness and that she was not capable of making appropriate personal

      and financial decisions. The trial court appointed a guardian for Izzo’s person

      and estate. On appeal, Izzo contends that APS introduced insufficient evidence

      to sustain the trial court’s judgment. We affirm.



                             Facts and Procedural History
[2]   In May and June of 2013, APS received calls regarding Izzo and expressing

      doubts that she could make appropriate health care and financial decisions. On

      June 25, 2013, Physician’s Assistant Vanessa Beard examined Izzo and later

      opined that Izzo was incapacitated at the time and that “[d]ue to cognitive

      problems and mental illness she [was] not able to care for herself without




      1
        Oral argument was held in this case on March 26, 2015, at Ivy Tech Community College in
      Lafayette, Indiana. We would like to thank the faculty, staff, and students of Ivy Tech for their
      hospitality and counsel for the high quality of their arguments.

      Court of Appeals of Indiana | Memorandum Decision 53A05-1407-GU-320 | April 17, 2015           Page 2 of 9
      assistance.” Ex. 1. The report was signed by neurologist Dr. Jamie Bales. On

      July 8, 2013, APS opened an official investigation into Izzo’s situation.


[3]   On December 10, 2013, Dr. Jameson Way examined Izzo and later submitted a

      report, in which he found Izzo incapacitated and diagnosed her with

      schizoaffective disorder and frontal lobe dysfunction. On February 10, 2014,

      APS filed a “verified petition for appointment of guardian over person and

      estate of incapacitated person” regarding Izzo. Appellant’s App. pp. 6-8. On

      March 11, 2014, the trial court held a hearing, after which it appointed Terri

      Francis as GAL and Elizabeth Ruh as temporary guardian for Izzo. On April

      14, 2014, Dr. Way issued another report, in which he stated that he had

      examined Izzo again, still found her to be incompetent, and noted her history of

      schizoaffective disorder, neuropathy, COPD, depression, and urinary

      incontinence.


[4]   On April 21, 2014, GAL Francis filed a report, during the preparation of which

      she interviewed twenty-four persons and reviewed the court file on Izzo’s case.

      Dr. William Schmalz, who was seeing Izzo every four weeks to monitor her

      medications, wrote a letter indicating his belief that Izzo was in need of a

      guardian. Ruh told GAL Francis that she was concerned that Izzo’s daughter

      Elizabeth Izzo was causing Izzo unnecessary stress by micro-managing her

      care. Wendy Scott of APS told GAL Francis that she believed a guardian

      would insulate Izzo from the “family drama[,]” including her son Bill Izzo

      borrowing money from Izzo. Appellant’s App. p. 31.



      Court of Appeals of Indiana | Memorandum Decision 53A05-1407-GU-320 | April 17, 2015   Page 3 of 9
[5]   Elizabeth and her daughter Michelle White both told GAL Francis that they

      believed Izzo needed a guardian. Elizabeth and White expressed concerns

      about Izzo’s diet, a neighbor that may have stolen pain medication from Izzo,

      Izzo’s ability to properly care for her cat, and their belief that Izzo’s neighbors

      were intoxicated and could not “look in on Mrs. Izzo.” Appellant’s App. p. 31.

      Elizabeth and White believed that Izzo could no longer balance her checkbook

      or handle her financial affairs.


[6]   GAL Francis registered concern that three medical professionals had opined

      that Izzo was in need of a guardian and with the number of allegations that

      family members were too involved in Izzo’s affairs. GAL Francis

      recommended that a guardian be appointed to assist in Izzo’s financial and

      personal affairs, noting that “[a] guardianship would allow the children to be

      just that, children to Mrs. Izzo.” Appellant’s App. p. 36.


[7]   On June 10, 2014, the trial court held a second hearing. Ruh opined that Izzo

      was in need of a guardian because she was, at times, unable to recall exactly

      what her doctors had told her and there had been “significant confusion”

      regarding medical issues. Tr. p. 52. Ruh also affirmed that Izzo “could use

      some assistance with her finances and … some insulation from some aggressive

      family members[.]” Tr. p. 53. GAL Francis testified that she stood by the

      recommendation she made in her April 21, 2014, report that a guardian be

      appointed for Izzo.




      Court of Appeals of Indiana | Memorandum Decision 53A05-1407-GU-320 | April 17, 2015   Page 4 of 9
[8]   Following the hearing and also on June 11, 2014, the trial court issued an order

      appointing a guardian for Izzo, an order providing in part as follows:


              The Petitioner, Wendy Scott for Unit 10 [APS], appears in
              person and with deputy prosecuting attorney Robert Miller for a
              hearing on the Petition for Guardianship of Sharon Izzo.
              Temporary Guardian Elizabeth Ruh is present in person. Sharon
              Izzo is present with her attorney, Frederick Turner. [GAL] Terri
              Francis is present. Witnesses are sworn and evidence is taken.
              The court FINDS as follows:
                 1. Sharon Izzo suffers from cognitive problems and mental
                     illness such that she is not able to care for herself without
                     assistance. Ms. Izzo has been diagnosed with
                     schizoaffective disorder and frontal lobe dysfunction. She
                     also suffers from mild dementia.
                 2. As noted by Dr. Jameson Way, Sharon Izzo is not capable
                     of making personal and financial decisions due to her
                     inability to comprehend the long-term implications of her
                     actions. Dr. William Schmalz and Dr. Vanessa Baird
                     have reached similar conclusions.
                 3. [GAL] Terri Francis has thoroughly investigated this
                     matter. Ms. Francis has interviewed 24 witnesses and
                     reviewed the available medical records. Ms. Francis
                     recommends that a professional guardian such as
                     Elizabeth Ruh be appointed for Ms. Izzo.
                 4. Sharon Izzo is hereby adjudicated an incapacitated adult.
                 5. Elizabeth Ruh should be appointed guardian for Sharon
                     Izzo.
              IT IS THEREFORE ORDERED, ADJUDGED, AND
              DECREED THAT:
                 1) Elizabeth Ruh, d/b/a Personal Financial Services, LLC, is
                     appointed as the Guardian of the person and estate of
                     Sharon Izzo.

      Appellant’s App. p. 45.


      Court of Appeals of Indiana | Memorandum Decision 53A05-1407-GU-320 | April 17, 2015   Page 5 of 9
                                  Discussion and Decision
[9]    Izzo contends that APS produced insufficient evidence to sustain its finding

       that she needed assistance with her finances and with keeping certain family

       members at bay. APS contends that the trial court did not abuse its discretion

       in appointing a guardian for Izzo’s person and estate.


[10]   Indiana Code section 29-3-2-4(a) provides that “[a]ll findings, orders, or other

       proceedings under this article shall be in the discretion of the court unless

       otherwise provided in this article.” “Thus, we apply the abuse of discretion

       standard to review the trial court’s findings and order.” In re Guardianship of

       Atkins, 868 N.E.2d 878, 883 (Ind. Ct. App. 2007) (citing In re Guardianship of

       V.S.D., 660 N.E.2d 1064, 1066 (Ind. Ct. App. 1996)), trans. denied. “An abuse

       of discretion occurs when the trial court’s decision is clearly against the logic

       and effect of the facts and circumstances presented.” Id. (citing J.M. v. N.M.,

       844 N.E.2d 590, 602 (Ind. Ct. App. 2006), trans. denied.). “When reviewing the

       trial court’s findings and judgment, we consider only the evidence most

       favorable to the prevailing party, and we neither reweigh the evidence nor

       reassess witness credibility.” Appeal of Wickersham, 594 N.E.2d 498, 501 (Ind.

       Ct. App. 1992).


[11]   Indiana Code section 29-3-5-3(a) provides, in part, that


               if it is alleged and the court finds that:
                    (1) the individual for whom the guardian is sought is an
                    incapacitated person or a minor; and


       Court of Appeals of Indiana | Memorandum Decision 53A05-1407-GU-320 | April 17, 2015   Page 6 of 9
                  (2) the appointment of a guardian is necessary as a means of
                  providing care and supervision of the physical person or
                  property of the incapacitated person or minor;
               the court shall appoint a guardian under this chapter.

       Indiana Code section 29-3-1-7.5 defines an “incapacitated person as follows:

               “Incapacitated person” means an individual who:
                   (1) cannot be located upon reasonable inquiry;
                   (2) is unable:
                       (A) to manage in whole or in part the individual’s
                       property;
                       (B) to provide self-care; or
                       (C) both;
               because of insanity, mental illness, mental deficiency, physical
               illness, infirmity, habitual drunkenness, excessive use of drugs,
               incarceration, confinement, detention, duress, fraud, undue
               influence of others on the individual, or other incapacity[.]


                1. Incapacity due to Mental Illness and Mental
                                  Deficiency
[12]   We conclude that APS produced sufficient evidence to sustain the trial court’s

       finding that Izzo suffered from mental illness such that she was unable to

       manage her affairs properly. Neurologists Drs. Bales and Way both submitted

       reports finding Izzo to be incompetent. Dr. Way diagnosed Izzo with

       schizoaffective disorder and frontal lobe dysfunction, opining that Izzo was

       “totally incapable of personal & financial decisions[.]” Appellant’s App. p. 10.

       Dr. Bales’s report indicated that “[d]ue to cognitive problems and mental illness

       [Izzo] is not able to care for herself without assistance.” Appellant’s App. p.

       14A. Dr. Bales opined that Izzo could live on her own with daily assistance

       Court of Appeals of Indiana | Memorandum Decision 53A05-1407-GU-320 | April 17, 2015   Page 7 of 9
       and needed help with decision making, grocery shopping, managing her

       finances, and safety issues. Taken together, these reports amply support a

       finding that Izzo suffered from an incapacitating mental illness or mental

       deficiency. Izzo points to evidence in the record that would support a

       conclusion that she was not mentally incapacitated to the point that a

       guardianship would be necessary. This argument, however, is merely an

       invitation to reweigh the evidence, which we will not do.


        2. Whether Appointment of a Guardian was Necessary
[13]   We conclude that there is also sufficient evidence to support the trial court’s

       conclusion that Izzo’s incapacity warranted the appointment of a guardian.

       “Laura” of Comfort Keepers told GAL Francis that Izzo was in need of a

       guardian, and Elizabeth and White both told GAL Francis the same thing, both

       believing that Izzo could no longer balance her check book or handle her

       financial affairs. Educator Dana Thompson told GAL Francis that Izzo “is

       impressionable and tends to agree with whomever she is speaking to at the

       time[,]” is a poor decision maker, and needed a professional guardian.

       Appellant’s App. p. 35. Ruh testified that Izzo needed assistance with her

       finances and insulation from aggressive family members. GAL Francis also

       concluded that a guardian should be appointed for Izzo to “alleviate the stress

       and dysfunction that stands between Mrs. Izzo and her children.” Appellant’s

       App. p. 36. Izzo’s argument on this point again amounts to nothing more than

       an invitation to reweigh the evidence, which we will not do. APS produced



       Court of Appeals of Indiana | Memorandum Decision 53A05-1407-GU-320 | April 17, 2015   Page 8 of 9
       sufficient evidence to sustain a finding that appointment of a guardian for Izzo

       was necessary.


[14]   We affirm the judgment of the trial court.


       Riley, J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 53A05-1407-GU-320 | April 17, 2015   Page 9 of 9
