J-A26045-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

                                               IN THE SUPERIOR COURT OF
IN RE: JORDAN SCARPELLI AN ALLEGED                   PENNSYLVANIA
INCAPACITATED PERSON

APPEAL OF JUDITH L. SCARPELLI,
MOTHER




                                                    No. 244 MDA 2014


                    Appeal from the Decree January 14, 2014
                  In the Court of Common Pleas of York County
                      Orphans' Court at No(s): 67-13-1740


BEFORE: BOWES, J., MUNDY, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                     FILED NOVEMBER 07, 2014

       Judith L. Scarpelli (“Mother”) appeals from a decree declaring her

daughter, Jordan Scarpelli (“Daughter”), incapacitated and appointing

Joseph Stallings (“Father”)1 plenary guardian of Daughter and her estate.

We affirm.



____________________________________________


1
  On October 31, 2013, a different judge than the judge herein awarded
Father joint legal and physical custody of Daughter. This had no legal effect
because Daughter attained 18 years of age ten days prior to the order.
Although Father is not Daughter’s biological father, he is the father of
Daughter’s half-sister, Savannah, and the trial court in its 1925(a) opinion
refers to him as “Father.” Accordingly, we do the same.
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      The trial court aptly set forth the pertinent factual and procedural

history as follows:

                  Jordan, the alleged incapacitated person, is an
            adult individual of 18 years who has a diagnosis of
            Down [S]yndrome. Jordan's biological father has not
            been a part of her life for at least 17 of her 18 years.
            In the summer of 1999, when Jordan was three
            years of age, Mother and Father began dating and
            cohabitating.    They     continued     to    cohabitate
            intermittently until 2005, when the relationship
            between Mother and Father was finally dissolved.
            Mother and Father's relationship resulted in the birth
            of Savannah Stallings—Jordan's 11 year old sister.
            Father and Jordan developed a strong bond during
            these periods of cohabitation, and Father has been
            acting in loco parentis. Jordan refers to Father as
            "daddy" and indicates that she misses him.

                   Father continued to play an active role in
            Jordan's life despite the dissolution of his relationship
            with Mother. Since 2004, Father has attended nearly
            all Jordan's medical appointments and has been
            involved in her education plan through Dallastown
            High School. Father was awarded joint legal and
            physical custody of Jordan pursuant to an order
            entered October 31, 2013; however, Jordan had
            attained 18 years of age just ten days prior to the
            entry of said order. Jordan has become increasingly
            isolated since that time, as Mother has withheld
            Jordan from Father and several of Jordan's relatives
            on both sides of the family. Jordan has also been
            separated from her sister by virtue of the fact that
            Father has primary physical custody of Savannah
            Stallings.

                  On October 31, 2013, Father filed a [p]etition
            seeking the adjudication of Jordan as an


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J-A26045-14


              incapacitated person, which proposed that he serve
              as Jordan's guardian. Mother then filed to the same
              docket a [p]etition dated January 10, 2014, which
              urged the court to appoint her as Jordan's guardian.
              A hearing was held on January 13, 2014 where
              Mother, Father, Jordan and their respective counsel
              were present.[2] An order was entered January 14,
              2014 declaring Jordan incapacitated and appointing
              Father plenary guardian of the person and the
              estate. On February 7, 2014[,] Mother filed a notice
              of appeal and statement of errors complained of on
              appeal . . . .

Trial Court Opinion, 4/4/2014 (“Trial Court Opinion”), at 1-3.

       Mother raises a single issue for review:

              [I.]   Whether the lower court abused its discretion
                     in appointing the Mother's former boyfriend --
                     who is neither the biological father nor a
                     relative -- plenary guardian of the Mother's
                     eighteen-year-old daughter, a person with
                     Down Syndrome, as opposed to the mother
                     who has cared for her daughter since birth.

Appellant’s Brief at 6.

              Our review of the trial court's determination in a
              competency case is based on an abuse of discretion
              standard, recognizing, of course, that the trial court
              had the opportunity to observe all of the witnesses. .
              ..



____________________________________________


2
  At the hearing, the trial court heard testimony from the parties, an expert
psychologist, Mother’s family members, and various witnesses regarding the
care of Daughter while she was a minor.



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In re Hyman, 811 A.2d 605, 608 (Pa.Super.2002) (citing In re Myers’

Estate, 150 A.2d 525, 526 (Pa.1959)). “A trial court's discretion must be

exercised on the foundation of reason; 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).

        A guardian of the person is responsible for all of an incapacitated

person’s care and custody. In re Estate of Border, 68 A.3d 946, 956

(Pa.Super.2013) (citing 20 Pa.C.S. § 5521). The selection of a guardian for

an incapacitated person lies within the trial court’s discretion. Estate of

Haertsch, 649 A.2d 719, 720-21 (Pa.Super.1994). The Probate, Estates,

and Fiduciary Code (“the Code”)3 gives the trial court broad discretion to

appoint as guardian “any qualified individual”4 or agency, 20 Pa.C.S. § 5511,

but the court should select the guardian based on the best interests of the

incapacitated person. In re Duran, 769 A.2d 497, 506 (Pa.Super.2001)

(citing In re Estate of Dorone, 535 A.2d 452, 454 (Pa.1987)). Section

5511(f) states that “[i]f appropriate, the court shall give preference to a

____________________________________________


3
    20 Pa.C.S. § 101 et seq.
4
  The term “any qualified individual” is not defined by statute, and the
relevant statutory provisions do not delineate a set of factors a court must
consider in appointing a guardian.



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nominee of the incapacitated person.” 20 Pa.C.S.A. § 5511(f); Duran,

supra.

      Mother does not dispute that Daughter is an “incapacitated person” as

defined in Section 5501 of the Code. Appellant’s Brief at 23. Instead, Mother

argues the trial court erred in not appointing her as her Daughter’s guardian

because she is well qualified to care for Daughter, due to her role as primary

caretaker since Daughter’s birth. Id. at 25. In support, she alleges (1) that

she demonstrated her ability to provide for all of Daughter’s medical, dental

and optical needs, and (2) that there is no evidence that she has failed to

provide Daughter with proper parental care. Id. at 29. She contends that

the appointment of Father as Daughter’s guardian, “a third party who is in

no way biologically or legally related to [Daughter],” gives him total and

unfettered control of her affairs to the exclusion of Mother, and that the

“great abuse that has now occurred is that . . . Mother has lost all custodial

and parental rights to her biological child, [Daughter],” whom Mother has

raised from birth. Id.

      The trial court found Father would serve Daughter’s best interests by

promoting and maintaining a close network of supportive family members,

providing a stable living environment, and effectuating Daughter’s desire to

maintain a relationship with her Mother, Father, and her half-sister. Trial

Court Opinion, at 3-6. Unlike in custody proceedings, no presumption exists

in guardianship proceedings in favor of selecting a family member as a


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guardian of an incapacitated person. Compare 23 Pa.C.S. § 5327(b)

(custody procedure) with 20 Pa.C.S. § 5511 (guardianship procedure).5

Presumably, if the General Assembly intended to include such a presumption

in guardianship proceedings, it would have included one in 20 Pa.C.S. §

5511(f) similar to 23 Pa.C.S. § 5327(b). The absence of a presumption from

section 5511(f) indicates that the General Assembly does not approve of this

presumption in guardianship proceedings.

       The party most capable and willing to attend to Daughter’s daily needs

and development must be selected as her guardian.       Dr. Peter Thomas, a
____________________________________________


5
 Section 5327(b) of the Custody Act, which details the presumption in cases
concerning primary physical custody between a parent and a third party,
provides:

              In any action regarding the custody of the child
              between a parent of the child and a nonparent,
              there shall be a presumption that custody shall
              be awarded to the parent. The presumption in
              favor of the parent may be rebutted by clear and
              convincing evidence.

23 Pa.C.S.A. § 5327 (emphasis added). Conversely, Section 5511(f) of the
Code provides that the court may appoint any qualified individual, and
that a family relationship to the incapacitated person shall not be considered
as an interest adverse to the incapacitated person. See 20 Pa.C.S.A. §
5511(f) (“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. .
. . . Any family relationship to such individual shall not, by itself, be
considered as an interest adverse to the alleged incapacitated person”).
Noticeably absent from the guardianship provision is any suggestion that a
family relationship to the incapacitated person shall be a beneficial interest
to the incapacitated person. See id.




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clinical psychologist, testified that in September 2012 (one year and four

months prior to the hearing in the present matter), he had examined

Daughter, Mother, and Father. He also conducted a follow-up evaluation with

Mother in April 2013 (nine months prior to the hearing). The trial court

credited Dr. Thomas’s testimony and explained as follows:

           Based on his assessment of Mother and Father, Dr.
           Thomas described Father as possessing ‘a fairly good
           set of skills for parenting, for nurturing, for dealing
           with child behavior problems, for leadership, and for
           his ability to provide basic care.’. Dr. Thomas also
           expressed      having   ‘very   significant’  concerns
           regarding Mother’s mental health, the instability in
           Mother’s life, and [Daughter]’s safety when under
           Mother’s care. Testimony offered by members of
           Mother’s own family, including her sister and
           grandfather, demonstrates the close bond between
           Father and [Daughter], as well as the positive impact
           Father has had on [Daughter]’s life.

Trial Court Opinion, at 4. The testimony further demonstrated that Father

makes a concerted effort to take Daughter to activities, such as boating,

hiking, camping, rafting, biking, Zumba classes, trampolining, and rock

climbing. N.T. at 27, 49-50. See also Appellee’s Brief at 6. Accordingly,

the trial court’s finding that Father is qualified to act as guardian is

reasonable and supported by the evidence.

     Given Daughter’s limited cognitive functioning, social skills, and

communication skills, a guardian who will maintain family ties “ensures

Jordan will have someone to care for her when Mother and Father are

unavailable or unable to do so.” Trial Court Opinion at 4. The trial court


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noted that “Father appears to have a genuine interest in keeping Jordan

connected to her entire family, including her Mother.” Id. (citing N.T. at 43-

44, 50, 61). The testimony established that Father maintains a good

relationship with Daughter’s maternal grandparents and great grandmother

despite Mother terminating her communications with them. N.T. at 83. This

is consistent with his behavior throughout 2002 to 2009, during which time

he maintained a relationship with Daughter when Mother sent Daughter to

her maternal grandparents on weekends. N.T. 34-35. On the other hand, the

trial court found that Mother lacked the same desire to maintain family ties.

See Trial Court Opinion at 5. The trial court reasoned:

            The testimony indicates Mother has cut ties with her
            sister, mother, grandfather, and great-grandmother.
            There is also evidence that, when [Daughter] turned
            18 years[’] old, Mother told Father he would never
            see [Daughter] again and that all future
            communications must go through her attorney.
            Mother has in fact withheld [Daughter] from Father
            since that time, which has also resulted in
            [Daughter]’s separation from her [half-]sister,
            Savannah. We believe the effect of appointing
            Mother plenary guardian would result in the
            total exclusion of Father from [Daughter]’s life,
            and it would also severely limit the time
            [Daughter] is able to spend with her [half-
            ]sister.

Trial Court Opinion, at 5 (emphasis added). Mother’s own family testified

that her erratic behavior has negatively influenced Daughter. See id.; N.T.

at 78-85. Additionally, Mother placed her own conflict with Father over




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Daughter’s interest in developing a healthy relationship with Daughter’s half-

sister. Trial Court Opinion at 5.

      Given Father’s pattern of facilitating contact between the parties,

Father’s appointment as guardian advances Daughter’s expressed desires of

maintaining   a   relationship   with   Mother,   Father,   and   her   half-sister

Savannah.

      The trial court implicitly found that Mother also would meet the

requirements of being a guardian. See Trial Court Opinion at 6 (“We find

both Mother and Father are loving parents capable of caring [for] Jordan.”);

Appellee’s Brief at 8. However, the trial court also explained that appointing

Mother and Father as co-guardians was impractical because it “would not

further Jordan’s best interests given the parents’ inability to effectively

communicate with one another to resolve disputes amicably.” Id. at 6 (citing

N.T. at 34, 38-39). The trial court observed that Mother’s testimony

indicates she would not even consider a co-guardian arrangement, which is

also reflected in her counsel’s desire for the trial court to choose one parent

over the other. See id. (citing N.T. at 123, 162-63). The trial court

reasonably found that Father would provide a steadier home life, significant

contacts with Daughter’s family and extended family, and a willingness to

work with Mother toward Daughter’s best interests. Id. See also N.T. 166-

68. The trial court reasoned that the best way to assure that both parents




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will see Daughter is by awarding guardianship to Father, given Father’s

desire to promote and maintain family ties. See Trial Court Opinion, at 5-6.

      In applying the correct statutory framework and following prior cases

by this Court and the Supreme Court, the trial court’s decision to appoint

Father as guardian was reasonable and supported by the record. We discern

no error.

      Decree affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/7/2014




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