      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D), this                    FILED
      Memorandum Decision shall not be regarded as              May 24 2017, 9:58 am
      precedent or cited before any court except for the
      purpose of establishing the defense of res judicata,           CLERK
                                                                 Indiana Supreme Court
      collateral estoppel, or the law of the case.                  Court of Appeals
                                                                      and Tax Court




      ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Frederick A. Turner                                      Curtis T. Hill, Jr.
      Bloomington, Indiana                                     Attorney General of Indiana
                                                               Frances Barrow
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana


                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Guardianship of Sharon Izzo,                            May 24, 2017

      Appellant-Defendant,                                    Court of Appeals Case No.
                                                              53A05-1610-GU-2447
              v.                                              Appeal from the Monroe Circuit
                                                              Court.
                                                              The Honorable Stephen R. Galvin,
      State of Indiana,                                       Judge.
      Appellee-Plaintiff.                                     Trial Court Cause No.
                                                              53C07-1402-GU-12




      Shepard, Senior Judge

[1]   The trial court determined that Sharon Izzo, a seventy-nine-year-old who is

      subject to a guardianship, should move permanently to the nursing home where

      she had been temporarily placed for physical rehabilitation. Izzo appeals. We

      conclude there is ample evidence to support the court’s decision.


      Court of Appeals of Indiana | Memorandum Decision 53A05-1610-GU-2447 | May 24, 2017    Page 1 of 5
[2]   In June 2014, after a hearing at which Izzo was represented by counsel, the

      court adjudicated Izzo to be an incapacitated person and appointed Elizabeth

      Ruh as the guardian of her person and estate. Izzo lived alone in an apartment

      and wanted to stay there despite cognitive challenges. The court ruled that Ruh

      could not permanently change Izzo’s residence without prior court approval,

      but short-term emergency stays were permissible. Izzo appealed, and this Court

      affirmed. In re Guardianship of Izzo, Cause No. 53A05-1407-GU-320 (Ind. Ct.

      App. Apr. 17, 2015).


[3]   On October 2, 2015, Ruh filed a petition for an order to move. The court held a

      hearing at which Ruh clarified she was not seeking an immediate order to move

      Izzo to a nursing home but was concerned about Izzo’s declining health. The

      Court concluded “no action is necessary on the petition at this time.”

      Appellant’s App. p. 8. The court instructed Ruh that she was “empowered to

      make emergency changes in Ms. Izzo’s residence, at any time, in order to

      ensure Ms. Izzo’s health and safety.” Id.


[4]   On July 29, 2016, Izzo was hospitalized, followed by a temporary placement in

      a nursing home for physical rehabilitation. On August 25, 2016, Ruh filed a

      second petition, requesting permission to change Izzo’s residence to the nursing

      home. The court granted Ruh’s petition after two evidentiary hearings,

      concluding it was in Izzo’s best interests.




      Court of Appeals of Indiana | Memorandum Decision 53A05-1610-GU-2447 | May 24, 2017   Page 2 of 5
[5]   Izzo argues the court erred in determining that she should permanently change

      her residence. The statute that governs changing the residence of an

      incapacitated adult provides:

              A guardian (other than a temporary guardian), a volunteer
              advocate for seniors, or a volunteer advocate for incapacitated
              adults appointed under IC 29-3-8.5 may, with the approval of
              and under such conditions as may be imposed by the court after
              notice and hearing, change the physical presence of the protected
              person to another place in Indiana or to another state if the court
              finds that such a change is in the best interests of the protected
              person. Upon such a change, the guardianship may be limited or
              terminated by the court.

      Ind. Code § 29-3-9-2 (2006).


[6]   “All findings, orders, or other proceedings under this article shall be in the

      discretion of the court unless otherwise provided in this article.” Ind. Code

      § 29-3-2-4 (2001). The parties agree that the appropriate standard of review is

      abuse of discretion. An abuse occurs only when the decision of the court is

      clearly against the logic and effect of the facts and circumstances presented. In

      re Guardianship of Atkins, 868 N.E.2d 878 (Ind. Ct. App. 2007), trans. denied. We

      consider only the evidence most favorable to the prevailing party, and we

      neither reweigh the evidence nor reassess witness credibility. Chavis v. Patton,

      683 N.E.2d 253 (Ind. Ct. App. 1997).


[7]   During a hearing on Ruh’s first petition for order to move, Ruh told the court

      Izzo needed extensive medical treatment, including monthly doctor’s

      appointments and frequent changes in medication. Izzo was diagnosed with

      asthmatic bronchitis and needed to stop smoking, but she had smoked in her
      Court of Appeals of Indiana | Memorandum Decision 53A05-1610-GU-2447 | May 24, 2017   Page 3 of 5
       apartment and allowed neighbors to smoke there. The court denied the request

       but informed Ruh she should file another petition if Izzo’s health degenerated.


[8]    During a September 6, 2016, evidentiary hearing on Ruh’s second petition to

       move Izzo, Ruh reported that Izzo had become prone to recurring lung

       infections and had been hospitalized twice since the last hearing. Her medical

       condition was so perilous that “she would have qualified for Hospice Services

       in her home” without further intervention. Tr. p. 32. As of September 6, Izzo

       was undergoing physical rehabilitation at a nursing home, and Izzo’s mental

       and physical health had improved during her stay.


[9]    At a second hearing on September 20, 2016, medical reports indicated Izzo had

       been diagnosed with mild dementia, hypertension, COPD, and osteoarthritis,

       among other conditions. Tr. Ex. Vol. p. 4. The court heard evidence that Izzo

       denied the seriousness of her medical conditions and lacked insight into her

       limitations. When Izzo lived in her apartment, her neighbors had accessed her

       medications, gave her a prescription pill for which she had no prescription, and

       smoked in her presence. Izzo also experienced an incident where a neighbor

       left threatening voice mails. Prior to Izzo’s hospitalization, a home health

       evaluator determined Izzo had pneumonia and was slightly malnourished.


[10]   Izzo’s physical health and mental acuity had greatly improved while living at

       the nursing home, which several witnesses attributed to the controlled

       environment and oversight of her medicine. An Alzheimer’s educator who had

       worked with Izzo for several years was concerned her mental and physical


       Court of Appeals of Indiana | Memorandum Decision 53A05-1610-GU-2447 | May 24, 2017   Page 4 of 5
       health would deteriorate if she returned to her apartment because she had a

       history of refusing to follow guidance from home health care providers.


[11]   Even Izzo’s witnesses, who had provided home health care and transportation

       services to Izzo for years, indicated that a “change of venue” from the

       apartment or a move to a “different home environment” would be good for

       Izzo, citing reports of neighbors sharing medication with her and instances of

       her giving food away. Tr. pp. 63, 66. Izzo’s doctor stated she needed to be in a

       non-smoking environment.


[12]   The trial court appropriately accommodated Izzo’s desire for independence,

       first by instructing that Ruh could not move Izzo without court approval, and

       second by holding several thorough hearings on the second petition. The

       record amply supports the court’s finding that a permanent move to the nursing

       home was in Izzo’s best interests, and the decision was not against the logic and

       effect of the facts and circumstances of the case. Izzo points to other evidence

       indicating that her medical conditions were not as severe as Ruh depicted and

       that she could live safely in her apartment, but this argument is a request to

       reweigh the evidence.


[13]   For the reasons stated above, we affirm the judgment of the trial court.


[14]   Affirmed.


       Robb, J., and Mathias, J., concur.




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