J-S13030-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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: MICHAEL                     :
 KRONENWETTER                           :
                                        :
                                        :
                                        :   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 MAY 31, 2019

     Michael Kronenwetter (“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

Teri A. Burgeson, 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, we remand for a more detailed orphans’ court opinion.

     As noted above, this appeal involves guardianship proceedings

instituted on May 14, 2018, by Father, 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

____________________________________
* Retired Senior Judge assigned to the Superior Court.
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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.

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

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

Two witnesses testified at that hearing regarding the services provided to

M.E.K.: Tonya Hildebrant, his intellectual disability supports 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.    Father offered 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. Because the court

was unable to hear the testimony of Father and Mother, the matter was

relisted for August 20, 2018. The Order scheduling the hearing specifically

stated that the issues regarding the admission of Dr. Schmidt’s deposition

would be addressed at the reconvened hearing.

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

David E Grine.    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) Burgeson Exhibit 1, a Power

of Attorney signed by M.E.K. on March 9, 2012, appointing Mother as his

agent. The admissibility of Dr. Schmidt’s deposition was never discussed on

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the record, and the notes of testimony do not indicate that it was admitted

into evidence, although the original deposition is in the certified record. 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 in the best interests of M.E.K.”

Order, 8/20/2018.

       Father subsequently filed this timely appeal. On September 27, 2018,

the orphans’ court ordered him 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,

asserting the orphan’s court abused its discretion in appointing Mother as

M.E.K.’s permanent guardian when Father testified he was ready, willing and

able to be M.E.K.’s guardian.1           Father also argued the court abused its

discretion in not appointing Mother and Father as joint guardians, when it

directed them to work out an appropriate schedule for M.E.K. See Concise

Statement of Errors Complained Of On Appeal, 10/15/2018, at 1-2.

       In response, the orphans’ court filed the following opinion:

              AND NOW, this 19 day of November, 2018, this Court has
       received [Father’s] Statement of Matters Complained of on
       Appeal. The Court would rely on its Order of August 20, 2018 and
       briefly expound on a few matters.

____________________________________________


1Father raises another issue on appeal, which does not require the assistance
of a trial court opinion to resolve.

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             “The Court may appoint as guardian any qualified individual,
       a corporate fiduciary, a nonprofit corporation, a guardianship
       support agency under Subchapter F (relating to guardianship
       support) or a county agency.” 20 Pa.C.S.A. § 5511(f). After a
       hearing on this matter the Court appointed the natural mother,
       Teri A. Burgeson as the permanent guardian. From the evidence
       presented, including a power of attorney recognized by both
       parents, Teri A. Burgeson was the most qualified individual and/or
       entity to provide continuing care, adequately act in M.E.K.’s best
       interests, and when applicable effectuate his decisions. The Court
       also noted [Father’s] significant role in M.E.K.’s life, especially in
       regards to M.E.K.’s remarkable athletic endeavors. Therefore, the
       Court ordered both parents to work together for M.E.K.’s
       continued benefit by establishing a schedule for M.E.K.

            The Court relies on its previous opinion in this matter and
       respectfully requests that the decision remain undisturbed.[2]

Orphans’ Court Opinion, 11/19/2018, at 1.

       As noted above, Father’s issue on appeal challenges the underlying

bases for the court’s appointment of 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).

       Unfortunately, based on the sparse opinion filed by Senior Judge Grine,

we are unable to determine whether his order appointing Mother as M.E.K.’s

permanent guardian constituted an abuse of discretion. Indeed, Senior Judge

Grine does not indicate in his opinion whether he reviewed the notes of

____________________________________________


2 We have been unable to locate any “previous opinion” in the record. The
only other filing by the orphans’ court in this matter is the August 20, 2018,
order, which does not provide any basis for the court’s ruling.


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testimony from the June 28th hearing, presided over by President Judge

Masson, or any of the exhibits entered at that hearing.       Moreover, we are

particularly troubled by the court’s reference to the power of attorney as a

reason to appoint Mother as guardian, when Mother confirmed that M.E.K.

read at a first-grade level in 2012, when the document was executed. See

N.T., 8/20/2018, at 82.

      The lack of a more complete explanation of the facts upon which the

court relied to reach its decision that M.E.K. is an incapacitated person, and

Mother is the most qualified individual to serve as his guardian and move

M.E.K. to North Carolina, severely impedes our ability to review Father’s

appeal and determine if the court has complied with the requirements of 20

Pa.C.S. § 5512.1(a), (c), and (e).

      Accordingly, we remand this case to the orphans’ court to issue a more

detailed explanation of the reasons for its decision, and the facts relied upon

to reach that decision, within 45 days of the receipt of the certified record. In

particular, we direct the court to explain the weight it gave to the power of

attorney given the intellectual disability of M.E.K. at the time he purportedly

signed the document.

      Case    remanded    for   further   proceedings    consistent   with   this

Memorandum. Panel jurisdiction retained.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/31/2019




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