J-A26037-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN RE: ESTATE OF SARAH ANN WEIBLEY            IN THE SUPERIOR COURT
    BENNER, AN ALLEGED INCAPACITATED                        OF
    PERSON                                             PENNSYLVANIA




    APPEAL OF: DAVID K. WEIBLEY

                                                     No. 1772 MDA 2016


                Appeal from the Order Entered October 18, 2016
              in the Court of Common Pleas of Cumberland County
                      Orphans' Court at No(s): 21-16-0711


BEFORE: BOWES, J., OLSON, J., and RANSOM, J.

MEMORANDUM BY RANSOM, J.:                         FILED JANUARY 11, 2018

        Appellant, David K. Weibley, appeals from the order entered October

18, 2016, finding Sarah Ann Weibley Benner to be a totally incapacitated

person and appointing her mother, Kimberly J. Hessbruegge, to act as a

plenary guardian of her person. We affirm and deny Appellant’s application

to correct the original record.1

____________________________________________


1 In March 2017, Appellant filed an application to correct the record pursuant
to Pa.R.A.P. 1926, seeking to have his pre-hearing memorandum added to
the certified record. See Application, 3/8/17, at 1-6. The trial court
responded that it did not consider Appellant’s pre-hearing memorandum in
reaching its decision, as it was a self-serving statement by Appellant’s counsel
as to what she thought the evidence would show, and for those reasons, the
court did not make the application part of the record. See Response, 3/31/17,
at 1. In April 2017, a motions panel denied the application without prejudice
for Appellant to renew his request before the merits panel. See Order,
4/18/17, at 1.
J-A26037-17



     We adopt the following statement of facts from the trial court’s opinion,

which in turn is supported by the record.    See Trial Court Opinion (TCO),

2/21/17, at 1-3. Ms. Weibley Benner is a nineteen-year-old woman diagnosed

with Down Syndrome, cystic fibrosis, and other serious health conditions. In

June 2016, two months prior to Ms. Weibley Benner’s eighteenth birthday, Ms.

Hesbruegge commenced the instant action by filing a petition to appoint a

guardian of Ms. Weibley Benner’s person and estate.

     In July 2016, the court issued a rule to show cause why Ms. Weibley

Benner should not be adjudged an incapacitated person and appointed Mark

Bayley, Esquire, to serve as Ms. Weibley Benner’s attorney. An evidentiary

hearing was held in October 2016. As a result of testimony and evidence

introduced at that hearing, the court made the following findings:

     [Ms. Weibley Benner] requires extensive treatment and
     monitoring, as well as life-saving medications and frequent
     assessments by various specialists.

     [Ms. Weibley Benner]’s intellectual abilities are significantly
     limited. Her IQ is a mere [forty] compared to an average IQ of
     one hundred . . . She essentially functions at the level of a [five-
     year-old] child. Accordingly, [Ms. Weibley Benner] is unable to
     comprehend complex issues. She will drop her head without any
     further response when faced with anything that requires an
     answer of more than [one or two] words. She is unable to perform
     the necessary activities of daily living without prompting from a
     caregiver. She is also unable to effectively receive, understand
     and evaluate information, or to make sound decisions, regarding
     her medical care. Neither can she understand the need for her
     medications, nor is she able to self-administer those medications
     without oversight and prompting. She is also limited in her ability
     to ensure her own well-being and safety. Finally, she is totally
     incapable of managing her own finances.


                                    -2-
J-A26037-17


     [Ms. Weibley Benner] has primarily resided with her mother since
     2013. She visits periodically with her father, pursuant to previous
     custody orders. According to [Ms. Weibley Benner]’s pediatrician,
     her mother has a good understanding of [Ms. Weibley Benner]’s
     limitations and needs. [Ms. Weibley Benner]’s father admitted
     that he failed to abide by certain provisions of the custody orders
     requiring both parents to work together on [Ms. Weibley Benner]’s
     behalf.

     At the hearing, [Ms. Weibley Benner]’s counsel stated that he was
     unable to give his client’s position because of her inability to
     understand the nature of the proceedings. He further stated that
     he felt a plenary guardian was needed because of her
     incapacitation.

See TCO at 1-3 (internal citations to the record omitted).        Following the

hearing, the court granted Ms. Hesbruegge’s petition and appointed her the

plenary guardian of Ms. Weibley Benner’s estate.

     Appellant timely appealed and filed a court-ordered Pa.R.A.P. 1925(b)

statement of errors complained of on appeal.       The trial court issued a

responsive opinion.

     On appeal, Appellant raises five questions for our review:

     1. Was there clear and convincing evidence to support the
     Orphans’ Court determination that Sarah Ann Weibley Benner is
     totally incapacitated and in need of a plenary guardian of her
     person and estate?

     2. Did the Orphans’ Court err by failing to make specific findings
     of fact as required by 20 Pa.C.S. § 5512.1(a)?

     3. Did the Orphans’ Court err by failing to provide a meaningful
     hearing on the issue of whether Ms. Weibley Benner was
     incapacitated, whether she needs a guardian, and the terms of
     any guardianship order?




                                    -3-
J-A26037-17


       4. Assuming arguendo that Ms. Weibley Benner is either totally or
       partially incapacitated, did the Orphans’ Court err in failing to
       consider less restrictive alternatives?

       5. Did the Orphans’ Court err by failing to ensure that Ms. Weibley
       Benner received adversarial legal representation?

Appellant’s Brief at 5 (answers omitted).2

       When reviewing a decree entered by the Orphans’ Court,

       this Court must determine whether the record is free from legal
       error and the court's factual findings are supported by the
       evidence. Because the Orphans’ Court sits as the fact-finder, it
       determines the credibility of the witnesses and, on review, we will
       not reverse its credibility determinations absent an abuse of that
       discretion. However, we are not constrained to give the same
       deference to any resulting legal conclusions. Where the rules of
       law on which the court relied are palpably wrong or clearly
       inapplicable, we will reverse the court’s decree.

In re Estate of Rosser, 821 A.2d 615, 618 (Pa. Super. 2003) (internal

quotation marks and citations omitted); see also Estate of Haertsch, 649

A.2d 719, 720 (Pa. Super. 1994) (noting that appointment of a guardian is

within the sound discretion of the trial court).

       Appellant first contends that there was not clear and convincing

evidence to support the trial court’s determination that 1) Ms. Weibley Benner

is totally incapacitated and 2) that Ms. Weibley Benner is in need of a plenary

guardian of her person and estate.3 See Appellant’s Brief at 34-35. Appellant
____________________________________________


2 The argument section of Appellant’s brief does not address the above
questions in the order they are numbered. We will nevertheless address them
in the order presented.

3 The trial court suggests that Appellant did not raise these issues at the
hearing but does not find that he has waived them pursuant to Pa.R.A.P. 302.



                                           -4-
J-A26037-17



argues that testimony introduced at the hearing established that Ms. Weibley

Benner is capable of learning new skills that could change her capacity

assessment and that a plenary guardianship is not the least restrictive

alternative that could protect her interests. Id. at 35-39.

       The Pennsylvania Estates and Fiduciaries Code defines an “incapacitated

person” as

       an adult whose ability to receive and evaluate information
       effectively and communicate decisions in any way is impaired to
       such a significant extent that he is partially or totally unable to
       manage his financial resources or to meet essential requirements
       for his physical health and safety.

20 Pa.C.S. § 5501. The finding may be as to either financial resources or

physical health and safety. See Syno v. Syno, 594 A.2d 307, 310 (Pa. Super.

1991).

       A person is presumed to be mentally competent; the burden of proving

otherwise is on the petitioner by clear or convincing evidence.      See In re

Hyman, 811 A.2d 605, 608 (Pa. Super. 2002); see also 20 Pa.C.S. §

5511(a). Clear and convincing evidence “is the highest burden in our civil law

and requires that the fact-finder be able to come to clear conviction, without

hesitancy, of the truth of the precise fact in issue.” In re estate of Heske,


____________________________________________


See Pa.R.A.P. 302 (noting that issues not raised in the lower court are waived
for purposes of appeal). While a party must make a timely and specific
objection at the appropriate stage of the proceedings to preserve an issue for
review, we find that Appellant’s 1925(b) is sufficient to preserve a general
challenge to the trial court’s determinations at a final hearing. Accordingly,
we will also decline to find waiver in this instance.

                                           -5-
J-A26037-17



647 A.2d 243, 244 (Pa. Super. 1994) (internal citations and quotations

omitted).

      The court may appoint a plenary guardian only upon finding that the

person is totally incapacitated and in need of such services. See 20 Pa.C.S.

§ 5512.1(c). The statute provides that, to establish incapacity,

      the petitioner must present testimony, in person or by deposition
      from individuals qualified by training and experience in evaluating
      individuals with incapacities of the type alleged by the petitioner,
      which establishes the nature and extent of the alleged incapacities
      and disabilities and the person’s mental, emotional and physical
      condition, adaptive behavior and social skills. The petition must
      also present evidence regarding the services being utilized to meet
      essential requirements for the alleged incapacitated person’s
      physical health and safety, to manage the person’s financial
      resources or to develop or regain the person’s abilities; evidence
      regarding the types of assistance required by the person and as
      to why no less restrictive alternatives would be appropriate; and
      evidence regarding the probability that the extent of the person’s
      incapacities may significantly lessen or change.

20 Pa.C.S. § 5518. When determining incapacity, the court should consider

and make specific findings of fact concerning the following factors:

      (1) The nature of any condition or disability which impairs the
      individual’s capacity to make and communicate decisions.

      (2) The extent of the individual’s capacity to make and
      communicate decisions.

      (3) The need for guardianship services, if any, in light of such
      factors as the availability of family, friends and other supports to
      assist the individual in making decisions and in light of the
      existence, if any, of advance directives such as durable powers of
      attorney or trusts.




                                     -6-
J-A26037-17


      (4) The type of guardian, limited or plenary, of the person or
      estate needed based on the nature of any condition or disability
      and the capacity to make and communicate decisions.

      (5) The duration of the guardianship.

      (6) The court shall prefer limited guardianship.

20 Pa.C.S. § 5512.1(a).

      In the instant matter, the evidence was sufficient to support the court’s

determination that Ms. Weibley Benner was totally incapacitated with respect

to her ability to manage her financial resources and her ability to meet the

essential requirements for her physical health and safety, which the court

stated on the record following the testimony of two expert witnesses and Ms.

Weibley Benner’s school teacher. See 20 Pa.C.S. § 5512.1(a). The court

found that due to Ms. Weibley Benner’s developmental disabilities, she was

unable to receive and evaluate information or communicate decisions, and

was unable to manage her financial resources or meet essential requirements

for her health and safety.

      Ms. Weibley Benner functions at approximately the level of a five-year-

old child. Her adaptive functioning is not likely to significantly improve and,

as time goes on, will likely decline. Ms. Weibley Benner speaks in one to two

word responses, and will not respond if she is feeling anxious, shy, or

unfamiliar with the person to whom she is speaking.

      She is unable to understand complex issues and perform the necessary

activities of daily living without prompting from a caregiver, though she has

shown improvement by following routines with trusted caretakers. Further,


                                     -7-
J-A26037-17



she has complex medical needs which include taking twelve medications

several times a day, regular monitoring by doctors, and the potential for open

heart surgery in her future.     Based upon Ms. Weibley Benner’s level of

cognitive function, she is not able to effectively receive, understand, evaluate,

or make sound decisions regarding her care. While she may verbally identify

her medications, she cannot understand the need for them or self-administer

the medications without oversight or prompting. She is not always able to

communicate to her teacher when she is not feeling well. Further, Appellant’s

expert witness admitted that Ms. Weibley Benner cannot give informed

consent to surgery, or execute a power of attorney. Ms. Weibley Benner can

assist in cooking a meal, but is unable to cook and feed herself if left to her

own devices.    She does not understand why she needs to eat or how to

construct a well-balanced diet. Due to her compliant nature, she is limited in

her ability to ensure her safety and well-being.

      Further, Ms. Weibley Benner does not understand the concept of money

and is incapable of managing her finances. She does not understand bank

accounts, bills, or checks, and is only beginning to learn to identify coins.

Although she is able to perform volunteer work, it is solely under intense

supervision. Essentially, the testimony showed that while Ms. Weibley Benner

is able to learn new skills through routine training, her ability to understand

finance or complex medical issues is unlikely to improve. Accordingly, her

ability to receive and evaluate information effectively and communicate

decisions is unlikely to ever improve.

                                      -8-
J-A26037-17



       Thus, the court’s finding of incapacity was supported by the record,

including the testimony of Ms. Weibley Benner’s primary care physician; two

psychologists, including Appellant’s expert witness; Ms. Weibley Benner’s

special   education     teacher;     Ms.       Hesbruegge;   and   Appellant    himself.

Accordingly, the court properly determined that Ms. Weibley Benner is

incapable of managing her financial resources or to meet essential

requirements for her physical health and safety. See 20 Pa.C.S. § 5501.

       Appellant also argues that guardianship is not the least restrictive

alternative for Ms. Weibley Benner’s care, because she had a support network

that adequately met her needs. See Appellant’s Brief at 39-42.                 Appellant

argues that the deficiencies in his communication with Ms. Hessbruegge is not

an appropriate reason to impose a guardianship. Id. at 42.

       The Code recognizes the legislature’s intent to establish a system

permitting incapacitated persons to participate as fully as possible in all

decisions effecting them and accomplish the objectives of the Code through

the use of the least restrictive alternative.4         As noted above, the need for

guardianship services, if any, should be evaluated “in light of such factors as

the availability of family, friends and other supports to assist the individual in

making decisions and in light of the existence, if any, of advance directives

such as durable powers of attorney or trusts.” See In re Peery, 727 A.2d
____________________________________________


4 We have previously observed that the least restrictive alternative concept
“means that services are not provided to persons at a level that is more
intensive or restrictive than is necessary for that person to live a normal life.”
See Estate of C.W., 640 A.2d 427, 433 (Pa. Super. 1994).

                                           -9-
J-A26037-17



539, 541 (Pa. 1999); see also 20 Pa.C.S. § 5512.1(a)(3). However, where

the court determines, based upon clear and convincing evidence, that an

individual’s “ability to receive and evaluate information effectively and

communicate decisions in any way is impaired to such a significant extent that

he is . . . totally unable to manage his financial resources or to meet essential

requirements for his physical health and safety,” the court may appoint a

plenary guardian of the person and estate. See 20 Pa.C.S. § 5501.

        Here, the court determined that Ms. Weibley Benner is an incapacitated

person unable to manage her financial resources or to meet essential

requirements for her physical health and safety, and this determination was

supported by clear and convincing evidence.          Further, the court heard

extensive testimony regarding Ms. Weibley Benner’s family and support

system. This system included both parents and their contentious history and

marked inability to co-parent. The court properly determined that a plenary

guardianship was the most appropriate avenue to provide for Ms. Weibley

Benner’s continued care, including her schooling, living arrangements,

medical appointments, and other decisions related to her day-to-day life that

Ms. Weibley Benner is incapable of making for herself.           Finally, a less

restrictive alternative, such as a power of attorney, would not be appropriate,

as Ms. Weibley Benner cannot understand the execution of such a power.

Thus, a plenary guardianship was the least restrictive alternative to establish

care.




                                     - 10 -
J-A26037-17



      Second, Appellant argues that the court did not make specific findings

of fact as required by 20 Pa.C.S. § 5512.1(a). See Appellant’s Brief at 51.

Appellant contends that the court did not make separate findings regarding

the factors listed in 20 Pa.C.S. § 5512.1(a), and that the court did not make

separate findings regarding capacity and the need for a guardian. Id. at 51-

52.

      While the court did not, perhaps, read each finding in order, the record

reflects that all six factors were considered and a finding was issued, and the

record supports those findings. The court found that Ms. Weibley Benner is

diagnosed with Down’s Syndrome, which significantly impairs her capacity to

make and communicate decisions. See 20 Pa.C.S. §5512.1(a)(1)-(2). Next,

the court found that Ms. Weibley Benner was in need of a plenary guardianship

to assist her despite her support system. Id. at (a)(3)-(4). As discussed

supra, although she has a family support system, a guardianship is necessary

to make decisions for her medical care and future living arrangements. Both

Appellant and Ms. Hesbruegge testified about their relationship and care of

Ms. Weibley Benner. The guardianship was to be indefinite in length, as Ms.

Weibley Benner’s condition was not likely to improve but, instead, to

deteriorate as she ages. Id. at (a)(5). Finally, though a limited guardianship

is preferred, due to the nature of Ms. Weibley Benner’s intellectual disabilities,

the court found a limited guardianship was not appropriate. Id. at (a)(6).

Accordingly, we decline to find that the court abused its discretion in this

instance.

                                     - 11 -
J-A26037-17



      Third, Appellant argues that the court erred by failing to provide a

“meaningful hearing” on the issue of Ms. Weibley Benner’s incapacity. See

Appellant’s Brief at 44.     Appellant claims that despite the fact that he

responded to the petition, requested a motion to continue to allow for a

capacity assessment to be completed, and filed a pre-hearing memorandum,

the court rushed the hearing. Id. at 44-45.

      Appellant has waived this issue for failure to raise it before the lower

court, either at the hearing, or in any other filing prior to his Pa.R.A.P. 1925(b)

statement. See Pa.R.A.P. 302 (noting that issues not raised in the lower court

are waived and cannot be raised for the first time on appeal); see also In re

S.C.B., 990 A.2d 762, 767 (Pa. Super. 2010) (noting that to preserve an issue

for review, a party must make a timely and specific objection at the

appropriate stage of the proceedings). This Court may not consider a claim

which was not called to the trial court’s attention at the time any error could

have been corrected. See S.C.B., 990 A.2d at 767. Accordingly, because

Appellant did not object to the length of the hearing or to the court’s alleged

refusal to allow him to present further witnesses, he has waived this claim on

appeal. Id.

      Fourth, Appellant argues that the court erred in failing to consider less

restrictive alternatives for Ms. Weibley Benner’s care. As we have already

resolved the issue of whether the court failed to consider less restrictive

alternatives, we will not examine this issue further.




                                      - 12 -
J-A26037-17



      Finally, Appellant argues that the court erred in failing to ensure Ms.

Weibley Benner received adversarial legal representation.      See Appellant’s

Brief at 15. Essentially, Appellant contends that the court erred by allowing

Ms. Weibley Benner’s court-appointed counsel to assume the role of a

guardian ad litem and failed to make meaningful attempts to communicate

with her, failed to contact witnesses regarding her capabilities, and failed to

explore less-restrictive alternatives to plenary guardianship. Id.

      However, Appellant has waived this issue for failure to raise it before

the lower court, either at the hearing, or in any other filing prior to his

Pa.R.A.P. 1925(b) statement.     See Pa.R.A.P. 302 (noting that issues not

raised in the lower court are waived and cannot be raised for the first time on

appeal); see also In re S.C.B., 990 A.2d 762, 767 (Pa. Super. 2010) (noting

that to preserve an issue for review, a party must make a timely and specific

objection at the appropriate stage of the proceedings). This Court may not

consider a claim which was not called to the trial court’s attention at the time

any error could have been corrected. See S.C.B., 990 A.2d at 767; see also

Pa.R.A.P. 302.   Accordingly, because Appellant did not object to counsel’s

representation at the hearing or in any filings before the court, he has waived

this issue for purposes of appeal. Id.




                                     - 13 -
J-A26037-17



      Application to correct the record denied. Order affirmed. Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/11/2018




                                   - 14 -
