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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN RE: M.E.K., AN ALLEGED               :   IN THE SUPERIOR COURT OF
    INCAPACITATED ADULT INDIVIDUAL          :         PENNSYLVANIA


    APPEAL OF: M.K.




                                            :   No. 1362 WDA 2018

                 Appeal from the Order Entered August 20, 2018
                  In the Court of Common Pleas of Elk County
                    Orphans' Court at No(s): No. 2018-0029

BEFORE:      BENDER, P.J.E., OTT, J., and STRASSBURGER*, J.

MEMORANDUM BY OTT, J.:                                FILED AUGUST 13, 2019

        M.K. ("Father") appeals from the order entered August 20, 2018, in the

Elk County Court of Common Pleas, Orphans' Court Division, finding his adult

son, M.E.K., to be an incapacitated person and appointing T.A.B., M.E.K.'s

mother ("Mother"), as permanent guardian of his person and estate.            On

appeal, Father contends the orphans' court abused its discretion when it

appointed Mother as M.E.K.'s permanent guardian.         For the reasons below,

affirm.

        After initial review by this panel, we remanded the case to the orphans'

court to provide   a   more detailed opinion explaining the factual basis for its

order appointing Mother as M.E.K.'s guardian. The orphans' court complied

with our directive, and, on June 27, 2019, issued        a   supplemental opinion

explaining the reasons for its decision.




      Retired Senior Judge assigned to the Superior Court.
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         As we noted in our prior memorandum, Father    instituted guardianship

proceedings on May 14, 2018, seeking (1) an adjudication of incapacity for his

adult son, M.E.K., and (2) appointment as M.E.K.'s permanent guardian. The

petition alleged that M.E.K., now 24 years old, was diagnosed with Down's

Syndrome at birth, and is "unable to make and communicate responsible

decisions about his person and estate" without the assistance of Father and

Mother. Petition for Adjudication of Incapacity and Appointment of Emergency

and Permanent Guardian of the Estate and Person, 5/14/2018, at ¶ 18. The

petition also alleged that Mother intended to relocate to North Carolina in May

of 2018, and take M.E.K. with her. See id. at   ¶ 12.

         An initial hearing was held on June 28, 2018, before the Honorable

Richard Masson, President Judge of the Elk County Court of Common Pleas.'

At that hearing, two witnesses testified regarding the services provided to

M.E.K.: Tonya Hildebrant, his intellectual disability support coordinator since

2005, and Jennifer Greenthaner,    a   community program specialist.   M.E.K.'s

individual support plan, prepared by Hildebrant in April of 2018, was entered

into evidence as Petitioner's Exhibit 2. Because the court was unable to hear




1-We note with approval that, prior to the initial hearing, the orphans' court
appointed John R. Thomas, Esq., as counsel for M.E.K., the alleged
incapacitated person. See Order, 5/16/2018. Attorney Thomas represented
M.E.K.'s interests throughout the guardianship proceedings.



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the testimony of Father and Mother, the matter was relisted for August 20,

2018.2

        The August 20, 2018, hearing was presided over by visiting Senior Judge

David    E   Grine. At the beginning of the hearing, Mother and Father stipulated

that M.E.K.     is in need   of   a   guardian, so that the testimony could focus on the

identification of the most appropriate appointment.3 Both Mother and Father

testified, and two exhibits were entered into evidence: (1) Petitioner's Exhibit

3, an individual education plan (IEP) for M.E.K. dated October 16, 2012, and

(2) Respondent's Exhibit 1,            a   Power of Attorney signed by M.E.K. on March 9,

2012, appointing Mother as his agent. At the conclusion of the hearing, Senior

Judge Grine entered an order (1) declaring M.E.K. an incapacitated person,

(2) appointing Mother as the permanent guardian of his person and estate,

and (3) directing the parties to            "attempt to work out an appropriate schedule



2 Father attempted to offer into evidence the deposition of M.E.K.'s family
physician, Robert J. Schmidt, M.D. However, Mother objected because she
claimed she did not receive notice of the deposition. The court took the matter
under advisement, and indicated it would address the admissibility of the
deposition at the relisted hearing. See N.T., 6/28/2018, at 3-6, 60. However,
the admissibility of Dr. Schmidt's deposition was never discussed on the record
at the August 20, 2018, hearing, and the notes of testimony do not indicate
that it was admitted into evidence, although the original deposition is in the
certified record.

3 M.E.K.'s appointed attorney stated that he was unable to "dispute or consent
to that stipulation" because M.E.K. was "unable to verbalize [] consistently
what his position is regarding whether or not he needs a guardian or who that
guardian should be." N.T., 8/20/2018, at 4.



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in   the best interests of M.E.K." Order, 8/20/2018. Father subsequently filed

this timely appeal.4

         Both of the issues Father raises on appeal assert the orphans' court

abused its discretion in appointing Mother as M.E.K.'s permanent guardian.               It
is   well -established that   "[t]he selection of a guardian for     a   person adjudicated

incapacitated lies within the discretion of the trial court whose decision will not

be reversed absent an abuse of          discretion." Estate        of Haertsch,   649 A.2d

719, 720 (Pa. Super. 1994).           "An abuse of discretion exists when the trial

court has rendered       a   judgment that   is   manifestly unreasonable, arbitrary, or

capricious, has failed to apply the law, or was motivated by partiality,

prejudice, bias, or ill will."   In re Duran,      769 A.2d 497, 506 (Pa. Super. 2001).

         First, Father contends the court abused its discretion in appointing

Mother as guardian when she "never filed an Answer to the Petition, nor did

she file   a   Petition on her own behalf nor did she file     a   Petition to Intervene in

the action filed by [Father]."         Father's Brief at 9.        We find this argument

specious.

         Section 5511 of the Probate, Estates and Fiduciaries Code explicitly

provides that the court "may appoint as guardian any qualified individual"


4    On September 27, 2018, the orphans' court ordered Father to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Father complied with the court's directive and filed a concise statement on
October 15, 2018. As noted supra, the orphans' court filed an initial opinion
in support of its decision on November 19, 2018. However, we directed the
court to provide a more detailed explanation for its decision, and the facts
relied upon to reach that decision.      The court complied, and filed a
supplemental opinion on June 27, 2019.
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whose interests do not "conflict with those of the incapacitated person[.]" 20

Pa.C.S.   §   5511(f). Father cites no authority requiring            a   person to take some

affirmative action      -   such as filing   a   petition for appointment, answering           a

petition filed by another interested party, or seeking to intervene in an action

filed by another interested party       -    before being appointed guardian. Indeed,

there   is no such    requirement in the statute or common law. As Mother                   is a

"qualified individual" whose interests do not conflict with M.E.K., the orphans'

court had the authority to appoint her as guardian.

        Next, Father challenges the court's underlying bases for appointing

Mother as M.E.K.'s permanent guardian, particularly when Father was "ready,

willing and able to be the guardian" and had "acted as            a   joint legal and physical
custodian of M.E.K. since [his] birth[.]"            Father's Brief at 15.        Specifically,

Father asserts the trial court erred in relying upon          a   March 2012 document,

purportedly executed by M.E.K., appointing Mother as his power of attorney.

See Father's Brief at 11-14. He maintains M.E.K. did not have the "intellectual

capacity to fully appreciate the legal consequences" of the document, and

Mother took steps to hide the power of attorney from Father.                       Id. at   14.

Moreover, Father emphasizes he was "engaged in every aspect of M.E.K.'s

life." Id. at 16.       He insists Mother's intended move with M.E.K. to North

Carolina      will   deprive   M.E.K.   of the      programs and            community -based

employment opportunities he now enjoys which allow him to be integrated

into the community. See id. at 17.



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      In addressing this argument in its supplemental opinion, the orphans'

court preliminarily stated both Father and Mother agreed that M.E.K. was

diagnosed with Down's Syndrome,5 and stipulated to the fact that he is in

need of   a   guardian. See Explanation of the Reasons for the Court's Decision,

6/27/2019, at      2.   With regard to its decision to appoint Mother as M.E.K.'s

sole guardian, the court opined:

     In support of this decision, the Court relied upon evidence and
     testimony presented during the two hearings conducted on June
     28, 2018 and August 20, 2018. When asked who M.E.K. wanted
     to live with during an individual support program meeting around
     April 2018, M.E.K. initially indicated he wanted to go with
     [Mother], but M.E.K. changed his mind back and forth. Ms.
     Hildebrant also testified that [Father] challenged M.E.K.'s decision
     to move with [Mother] during that meeting.            After M.E.K.
     expressed his opinion that he wished to move with [Mother],
     [Father] indicated to everyone in the room, including M.E.K., that
     M.E.K. and [he] made a list of all the things M.E.K. would miss if
     he were to go with [Mother] to North Carolina. [Mother] testified
     that, on or around May 11, 2018, the night prior to her leaving for
     North Carolina, she asked M.E.K. if he wanted to go to North
     Carolina, and if he did, they would be leaving in the morning, and
     if he did not, she would call [Father] so that he could stay with
     him. According to [Mother's] testimony, M.E.K. said he wanted to
     go with her to North Carolina. Ms. Hildebrant expressed that
     based on her experience[] working with M.E.K. and having visits
     around M.E.K. and [Mother], [Mother] gives him the opportunity
     to make his own choices.
           Furthermore, testimony from [Father] indicated that M.E.K.
      does not manage his own money; [Mother] manages M.E.K.'s
      money and is the payee for M.E.K.'s social security benefits.
      [Mother] also testified that she files tax returns on M.E.K.'s behalf


5 The court emphasized that it relied upon Dr. Schmidt's deposition only for
this diagnosis, which neither parent contested. See Explanation of the
Reasons for the Court's Decision, 6/27/2019, at 2.


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      every year. [Mother] testified that while she takes M.E.K. to most
      of his appointments, such as the eye doctor and dentist, [Father]
      takes M.E.K. to the dermatologist. [Mother] also testified that
      while she is the payee on M.E.K.'s social security benefits, M.E.K.
      has been learning how to take care of himself and do things such
      as manage his own bank account. M.E.K. has learned to subtract
      money and put his checks in the bank. Ms. Hildebrant indicated
      that based on her home visits, M.E.K. is very well taken care of
      from what she can observe. Ms. Hildebrant testified that M.E.K.
      indicates that while with his father, he goes out to eat all of the
      time, but when with his mother, Ms. Hildebrant has observed
      during home visits that [Mother] typically prepared healthy meals.
      Ms. Hildebrant indicated that most of the home visits were while
      M.E.K. was with [Mother].

             While the court considered [M.E.K.'s] involvement in
      activities in and around Elk County, Pennsylvania, that he would
      be able to continue participating in, including working at Elcam,
      testimony from [Mother] indicated that she has begun to get
      M.E.K. involved in activities in North Carolina. M.E.K. was to have
      an appointment at Johnston County Industries where they would
      train him for a job similar to what he does with Elcam.
      Furthermore, he was enrolled in the Special Olympics in North
      Carolina. [Mother] testified about her desire for M.E.K. to become
      familiar with the area she moved to in North Carolina because
      "that's where [M.E.K.] is going to end up one day, when his father
      and I are gone, with his sisters." M.E.K. also has a substantial
      amount of family members living in North Carolina. These family
      members include his two sisters, two nephews, his niece and his
      brother-in-law. In the Elk County area, M.E.K.'s family would
      include [Father] and maternal grandmother. While it seems that
      [Father] does take M.E.K. to the majority of his activities,
      especially those involving sports, [Mother] is the main caretaker
      of M.E.K. as she takes him to the majority of his appointments,
      works to teach M.E.K. life skills, such as managing his money, and
      is the payee of his social security benefits.

Id. at 3-4 (record citations omitted).
      Based upon our review of the record, we find no abuse of discretion and

conclude the court's supplemental explanation provides ample justification for

its decision to appoint Mother as sole permanent guardian. See      Haertsch,

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supra. In particular, we emphasize the court's determination that Mother's
reasons for moving M.E.K. to North Carolina reflected her concern for M.E.K.'s

future. See Explanation of the Reasons for the Court's Decision, 6/27/2019,

at 4.    Indeed, Mother testified she believed it was beneficial for M.E.K. to

remain in North Carolina "[b]ecause that's where [he's] going to end up one

day, when his father and I are gone, with his sisters." N.T., 8/20/2018, at

70. She further stated:

        I think he needs to learn the area. He needs to grow and learn
        more how to take care of himself, how to get himself around, how
        to deal with the area, and I think North Carolina can give him that.
Id.
        We note that, in our prior memorandum, we expressed concern that the

orphans' court may have relied on Mother's power of attorney as       a   reason to

appoint her as M.E.K.'s sole guardian.        We were troubled by the fact that

M.E.K. may have not been intellectually capable of understanding the

ramifications of such     a   document at the time he signed it.   However, in its

supplemental explanation, the orphans' court stated the power of attorney

executed by M.E.K. in 2012 "did not carry any weight in [the] Court's decision

to appoint [Mother] as guardian of M.E.K." Explanation of the Reasons for the

Court's Decision, 6/27/2019, at 5.

        Therefore, because we find Father has failed to establish the orphans'

court abused its discretion when it appointed Mother as permanent guardian

of M.E.K., we affirm the order on appeal.

        Order affirmed.

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Judgment Entered.


                 7,41!Zef.,_
J seph D. Seletyn,   Es
Prothonotary


Date: 8/13/2019




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