J-A05002-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: INTEREST OF A.N.C.               :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                                        :
                                        :
                                        :
APPEAL OF: T.J.C.                       :
                                        :         No. 82 WDA 2016

              Appeal from the Order Entered December 17, 2015
               In the Court of Common Pleas of Indiana County
              Orphans Court Division at No(s): No. 32-02-0192


BEFORE:   GANTMAN, P.J., BENDER, P.J.E., and MOULTON, J.

MEMORANDUM BY GANTMAN, P.J.:                       FILED MARCH 06, 2017

     Appellant, T.J.C. (“Mother”), appeals from the order, entered in the

Indiana County Court of Common Pleas Orphans’ Court, that removed

Mother and M.J.C., Jr. (“Father”) as co-guardians of their daughter, A.N.C.

(“Daughter”), appointed Professional Elder Care Services, Inc. (“PECS”) as

Daughter’s guardian, and authorized PECS to select Daughter’s primary

caregiver. We affirm.

     The relevant facts and procedural history of this care are as follows.

Mother and Father are the natural parents of Daughter, who is severely and

permanently physically and developmentally disabled, and who requires

continuous care.    Daughter is the beneficiary of an irrevocable trust, the

purpose of which is to maintain Daughter’s well-being. The trust owns the

residence, where Daughter lives with Mother, Father, and her sister, M.A.C.

Mother and Father have been Daughter’s primary caregivers throughout her
J-A05002-17


life.   After Daughter turned 18, Mother and Father filed a petition to

adjudicate Daughter an incapacitated person and appoint a guardian.           On

May 27, 2014, the court adjudicated Daughter an incapacitated person and

appointed Mother and Father as Daughter’s plenary co-guardians.

        On June 30, 2015, Father filed an emergency petition to remove

Mother as co-guardian and exclude Mother from the residence.              In his

petition, Father alleged Mother had physically and verbally abused Daughter.

In late June 2015 or early July 2015, Father filed a divorce complaint.

Father also filed a protection from abuse (“PFA”) petition on Daughter’s

behalf against Mother in early July 2015. Father subsequently withdrew the

PFA petition after Mother agreed to remove herself from the residence. On

July 15, 2015, Daughter’s guardian ad litem also filed an emergency petition

to temporarily remove Mother as co-guardian and exclude Mother from the

residence until the court held a hearing.

        On October 13, 2015, Mother filed an emergency petition to remove

Father as co-guardian and exclude Father from the residence.              Mother

alleged Father had abused and neglected Daughter. By order dated October

15, 2015, the Orphans’ Court appointed PECS as Daughter’s temporary

guardian    and   ordered   Mother   and    Father   to   undergo   psychological

evaluations to assess their fitness to serve as Daughter’s co-guardians. On

October 23, 2015, the Orphans’ Court appointed Dr. Carolyn Menta, a

clinical psychologist, to conduct Mother’s and Father’s evaluations.


                                     -2-
J-A05002-17


     The Orphans’ Court conducted a hearing on Mother’s and Father’s

petitions on August 25, 2015, which continued on December 17, 2015. At

the August 25th hearing, Daughter’s guardian ad litem withdrew her

emergency petition.     During the hearing, the Orphans’ Court heard

testimony from a number of people, including: Mother; Father; Daughter’s

sister; Dr. Menta; LuAnn Caryl, a representative of Liberty Healthcare

Services, Adult Protective Services; Mary Hagan, trust administrator; Dr.

Judith Rein, Mother’s treating psychologist; and Diana Reffner, a registered

nurse employee of PECS.

     By order dated December 17, 2015, the court removed both Mother

and Father as Daughter’s co-guardians, appointed PECS as Daughter’s

guardian, and authorized PECS to select Daughter’s primary caregiver.

Mother filed a timely notice of appeal on January 8, 2016. On January 11,

2016, the Orphans’ Court ordered Mother to file a concise statement of

errors complained of on appeal pursuant to Pa.R.A.P. 1925(b); Mother timely

complied on February 1, 2016.

     Mother raises two issues for our review:

        DID THE COURT ABUSE ITS DISCRETION IN REMOVING
        [MOTHER] AS A CO-GUARDIAN OF THE PERSON OF
        [DAUGHTER] AS BEING IN THE BEST INTEREST OF
        [DAUGHTER] AFTER SPECIFICALLY FINDING THAT THERE
        HAD BEEN NO ABUSE, NEGLECT, OR BREACH OF DUTY ON
        THE PART OF [MOTHER]?

        DID THE COURT ABUSE ITS DISCRETION IN NOT
        REQUIRING [FATHER] OF [DAUGHTER] TO BE REMOVED
        FROM THE HOUSE WHERE [DAUGHTER] RESIDED AFTER

                                   -3-
J-A05002-17


         REMOVING…FATHER AS A CO-GUARDIAN ALONG WITH
         [MOTHER] THEREBY NEGATING THE PURPOSE FOR THE
         REMOVAL OF…FATHER OF [DAUGHTER] AS A CO-
         GUARDIAN?

(Mother’s Brief at 5).

      In her issues combined, Mother argues the court had no cause to

remove her as a guardian of Daughter and failed to remove Father from the

residence after removing him as co-guardian of Daughter.         Mother claims

she is not bipolar but suffers instead from situational mixed anxiety and

depressive disorder. Nevertheless, she insists the court made up its mind

that Mother was mounting a fight over the parents’ divorce and equitable

distribution instead of Daughter’s best interests. Mother concludes the case

should be remanded for a new hearing so she can introduce evidence that

she is not bipolar and that her interest in caring for Daughter has nothing to

do with equitable distribution; and for the court to explain why it removed

Father as co-guardian but did not order him out of the residence.          We

disagree.

      Appellate review of selection of a guardian is subject to an abuse of

discretion standard.     In re Duran, 769 A.2d 497 (Pa.Super. 2001).

“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.”     Id. at 506

(quoting Harman ex rel. Harman v. Borah, 562 Pa. 455, 469, 756 A.2d

                                     -4-
J-A05002-17


1116, 1123 (2000)).

     In response to Mother’s first issue the court directed our attention to

Dr. Menta’s testimony:

        With regard to [Mother], Dr. Menta testified that Mother
        was cooperative with the evaluation. Mother denied any
        abusive behavior toward [Daughter], and raised concerns
        about Father continuing to serve as guardian.

        Dr. Menta spoke with [Daughter’s sister] as part of the
        evaluation, and [Daughter’s sister] confirmed that Mother
        had been verbally aggressive toward [Daughter] and
        physically aggressive toward her. Dr. Menta also spoke
        with Dr. Judith Rein, who is [Mother]’s current therapist.
        Dr. Menta also considered information she received from
        prior treatment through the Community Guidance Center
        as well as the multiple reports of temper outbursts and
        moodiness.

        Dr. Menta completed her psychological testing on Mother.
        Dr. Menta administered the Minnesota Multiphasic
        Personality Inventory, which is a screening measure that is
        widely used to give a broad view of someone’s
        psychological functioning as well as their personality and
        coping style, the child abuse potential in[ventory], which
        looks at traits that have been found to be consistent with
        individuals who perpetrate…physical child abuse, and the
        parent stress index, which is a measure of the parent’s
        overall level of stress as well as the level of stress that
        they experience in relation to the child.       Dr. Menta
        concluded that overall in putting together the information
        from the clinical interview and the psychological testing,
        my impression is that [Mother] is struggling with bipolar
        disorder that has not been treated.

        With regard to Mother’s ability to serve as guardian for
        [Daughter],   Dr.    Menta      made     the   following
        recommendation:

           I would very strongly recommend that she see a
           psychiatrist and be put on medication to help
           moderate her mood. There is no doubt in my mind

                                   -5-
J-A05002-17


           that [Mother] cares for [Daughter] and has had a
           good relationship with her much of the time, but with
           bipolar disorder comes a good deal of impulsivity,
           difficulty controlling and regulating one’s mood,
           there can be irrational behavior, but with medication
           management on an ongoing basis, that can be very
           controlled, so that behavior can be much more
           consistent so once she is in treatment on a steady
           basis, it’s quite possible that she could be fit to act
           as guardian, but if it goes untreated, I am not
           comfortable recommending her as guardian.

(Orphans’ Court Opinion, filed February 11, 2016, at 4-6) (internal quotation

marks and citations to record omitted).      Here, Dr. Menta conducted a

psychological evaluation of Mother. Daughter’s sister confirmed that Mother

had been verbally and physically aggressive toward Daughter.         Dr. Menta

consulted with Mother’s current therapist, considered records of Mother’s

prior treatment at Community Guidance Center, and concluded Mother is

struggling with untreated bipolar disorder. As a result, Dr. Menta strongly

recommended that Mother see a psychiatrist and begin medication.           Dr.

Menta suggested Mother could possibly be a guardian for Daughter in the

future if Mother received ongoing treatment and medication, but Dr. Menta

was uncomfortable recommending Mother as a guardian for Daughter at the

current time. Based on Dr. Menta’s testimony, and given Daughter’s severe

and permanent limitations, which make it impossible for Daughter to protect

herself from any act of verbal and/or physical aggression, the court removed

Mother as guardian of Daughter’s person.     Given these circumstances, we

see no reason to disturb the court’s decision to remove Mother as a guardian


                                    -6-
J-A05002-17


of Daughter.

      In response to Mother’s second issue the court stated:

         In closing, the [c]ourt notes that the second issue set forth
         in Mother’s Concise Statement of the [Errors] Complained
         of on Appeal is telling, and it summarizes the [c]ourt’s
         belief about Mother’s position in this matter. The [c]ourt
         believes that Mother viewed the struggle over guardianship
         of [Daughter] as a struggle over the “equitable
         distribution” of the family residence. In other words, the
         parent who was allowed to remain as guardian of the
         person, would be permitted to stay in the residence owned
         by the trust created for [Daughter’s] benefit. The [c]ourt
         refused to take property issues into consideration, but
         rather, stated that the best interest of [Daughter] is what
         is guiding this proceeding and the [c]ourt’s decision in this
         matter.

(Id. at 7-8) (internal citations to record omitted). Importantly, by virtue of

its December 17th order, the Orphans’ Court did not either allow or forbid

Mother or Father to continue to occupy the residence.       Rather, the court

authorized Daughter’s newly-appointed guardian to act in Daughter’s best

interest and determine who should serve as Daughter’s primary caregiver

and manage Daughter’s time with her family.       Therefore, Mother’s second

claim fails. Accordingly, we affirm.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/6/2017


                                       -7-
                                                                                                     Circulated 02/23/2017 11:06 AM




                   IN THE COURT OF COMMON PLEAS OF INDIANA COUNTY, PENNSYLVANIA
                                                                   ORPHAN'S COURT DIVISION


              IN RE:            Interest of            ;A, N. (:,..                  \ an
                                Incapacitated Person.                                            NO. 32-02-0192




--- -   ------·--'-'---'-'-'----               .
                                                           (_)PINION PURSUANT TO Pa.R.,A .. p. 1 ~2?(c1J


                                AND NOW, this                             "~    day of February, 2016, the Court


              submits this Opinion pursuant to Pa.R.C.P. 192 S(a):


                                   {\.     ~
                                                   1
                                                        C'..., ,      1   (hereinafterY~hKW) is a 20 year old young


              lady who suffers from severe and permanent disabilities that resulted


              from trauma suffered during her birth.' 11.wikl'w; is essentially non-verbal,


              and cannot ambulate without assistance.


                                                                     · is   Dw~iis   mother (hereinafter "Mother") and


                        l'Y\.   ::r. e.,           Jr., is.~t'('::>father (hereinafter "Father"). Mother and


               Father raised             Uw,1!d:a,y and             served as her primary caregivers during her


              childhood and young adult life, and shortly after.~MJ~·~ 18th birthday, a



               I   A medical malpractice action was filed on Nikki's behalf, and a sum of money was awarded
               to Nikki and placed into a trust for her benefit.
                        Petition to Adjudicate as an Incapacitated Person and Appoint Guardian


                        was filed by Mother and Father.                          By Final Decree dated May 27, 2014,


                        }wu;J\.vtiU was adjudicated to be an incapacitated person, and Mother and

                         Father were appointed as plenary guardians of the estate and person of

                        T\.. ,.,.~e)(..
----------'-'-'-   ..   ~~---··             ...   ·····::.          _                            ---··   ·-·--·-···-- ·--- --·-----·-----··    ---- -- ·-······ ··---·




                                          Until approximately             June of 2015, Mother, Father, and ~<iu:Jiilw?


                         resided together                    as an intact family unit in a residence owned in the


                         name of the trust created for~~:,                            benefit.           On June 30, 2015, Father


                         filed an Emergency Petition to Remove Guardian, alleging therein that


                         Mother had subjected ·~~to                        physical and verbal abuse, and requesting


                         that Mother              be removed as guardian                 and excluded from the family


                          residence.

                                          This Court             denied    the    emergency request                                           for          relief,       and


                          scheduled a hearing to address the merits of the Petition.                                                                 After several


                          continuances,               a hearing was held before this Court on December 17,




                          2~~·:,sister,           M,. A; C~               also resided in the family residence during much of
                         J>DMtjihN~ young    life, but no longer lives in the family home.


                                                                                  2
                       2015.                       In addition to the Emergency Petition to Remove Guardian filed by


                       Father, the Court also addressed the Emergency Petition to Remove


                       Guardian filed by Mother on October 13, 2015.3


                                                    Section 551 5 of the Decedents, Estates and Fiduciaries Code


____ -----------------~g~~-~--_!~e
                 -                                             --·   """
                                                                           removal
                                                                               -·······   ·•
                                                                                               of   a guardian,       a_nd i11       9ging···-· -~(), -~Lf!!_pJy      _
             ·······----·····--·-··-----------··    ···-····                                                                     .

                       incorporates Section 3182 and Section 3183 of the Code. 20 Pa.CS.A.


                       Section 551 5.                                See also In re Estate of Border, 68 A.3d 946 {Pa.Super.


                        201 3) ..                                                                                                                     Section


                        3182 addresses the grounds for removal, and Section 3183 addresses the


                        procedure for removal.


                                                    The Court believes that Section 3182(5) is particularly relevant


                        in this matter; Section 3182{5) provides as follows:


                                                    Section 31 82. Grounds for removal


             3
                 ln addition to the emergency petitions filed by Father and Mother, a Petition for Emergencv
             Relief was filed on July 1 5, 201 5, by Sarah P. Ross, Esquire, court-appointed                                                  counsel for,ba-i~e.l(
             however, this Petition was subsequently withdrawn by                                             nr:il   m,otion of Attorney Ross. The relief
             requested in the Petition for Emergency Relief filed by'~~el/'t,counsel                                                 included removing
             Mother as co-guardian until a hearing on the matter, prohibiting Mother from occupying the
             family residence owned by the trust, and prohibiting Mother from removing                                                       :,y · from    the
                                                                                                                                           )~



                                                                                                         3
                                                            The court shall have exclusive power to remove a personal


                                                             representative when he:


                                                            (5) when, for any other reason, the interests of the estate are


                                                                 likely to be jeopardized by his continuance in office.


.... ···-·-··· ·--··-···-·-----   - ·-------'--"'---
                                     ---···--·-
                                                             Dr. Carolyn_~enta,    a clinical psychologist, __w~~~-i!~~-:~~ by Or~~~-        _

                                                of Court to conduct a psychological evaluation on :                 Mo Yhe'N'""    f   and


                                                       \-ovrhw    : to   determine fitness to serve as a guardian         forP~~       Dr.


                                                Menta testified at the hearing held on December 17, 2015.


                                                             With regard to       MO vht.iv)           Dr. Menta testified that Mother


                                                was cooperative with the evaluation.                (Hearing Transcript, p. 10). Mother


                                                 denied any abusive behavior toward ~jflw. and raised concerns about


                                                 Father continuing to serve as guardian. Id.


                                                             Dr. Menta spoke with         M, A. C~ )              Nikki's sister, as part


                                                 of the evaluation, and         fV\_ {~, (:_,       · confirmed that Mother "had been

                                                 verbally aggressive toward~liflri and physically aggressive toward her."




                                         residence. The Court denied the emergency relief, and scheduled a hearing on the merits of the
                                         Petition, however as stated above, the Petition was withdrawn by oral motion.


                                                                                                4
                    (Hearing Transcript,                    p. 12).    Dr. Menta also spoke with Dr. Judith Rein


                    "who is: MoH1Vv''5 .· current therapist."                          lg.   Dr. Menta also considered


                    information                   that     she received     "from        prior   treatment     through                 the


                    Community                    Guidance Center as well as the multiple reports of temper


___   ··   __ ,     outbursts and moodiness."
                  -------------······--······.
                                     ·······-··········
                                                    .•.... •.....
                                                                 (Hearing Transcript,
                                                                                   ··--
                                                                                        p. 13).
                                                                                        -------- --------     ---   ---   ----- ----------------   -- --




                                         Dr. Menta completed psychological testfng on Mother; Dr. Me.rita ·


                     administered the Minnesota Multiphasic Personality Inventory, "which is a


                     screening                   measure that       is widely         used" to give a "broad view of


                     someone's                   psychological      functioning        as well as their personality and


                     coping style," the child abuse potential indicator, which "looks at traits


                     that          have           been      found     to   be     consistent      with     individuals                who


                      perpetrate ..... physical child abuse," and the parent stress index, "which is


                      a measure of the parent's overall level of stress as well as the level of


                      stress that they experience in relation to the child."                             (Hearing Transcript,


                      pgs. 8, 9, and 12). Dr. Menta concluded that "[o]verall in putting together


                      the information from the clinical interview, and the psychological testing,




                                                                                  5
---·-·------····----




                       my impression is that'    ~\o\1vN   !is struggling with bipolar disorder that has


                       not been treated." (Hearing Transcript, p. 13).


                                With regard to Mother's ability to serve as guardian for          ~i~
                       Dr. Menta made the following recommendation:


   . ---------~:------------·------_:_1_~~-ld s!r?~gly __':::o~mend that sh~    ~~~-~~~~-~!~~ and ___
                                                                                                  be        ,_


                                put on medication to help moderate her mooa.               There is no


                                doubt in my mind that fv1o l'hw cares for her daughter and has


                                had a good relationship with her much of the time, but with


                                 bipolar disorder comes a good deal of impulsivity,            difficulty


                                controlling     and regulating one's mood, there can be irrational


                                 behavior,    but with     medication   management on an ongoing


                                 basis, that can be very controlled, so that behavior can be much


                                 more consistent so once she is in treatment on a steady basis,


                                 it's quite possible that she could be fit to act as guardian, but if


                                 it goes untreated, I am not comfortable recommending her as


                                 guardian."     (Hearing Transcript, p. 1 5).




                                                                  6
-----------




                                                      On the basis of this testimony, and given ~~J, severe and


                                    permanent limitations               that make it impossible for her to protect herself


                                    from any act of verbal and/or physical aggression, this Court granted


                                     Father's Petition to Remove Guardian, and entered an order removing


_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _________________ -~lo_thW'     as the Q_!.l_~_rdia".l of_th_e perso~4                     _

                                                                                                       ·-·-·   .....   -··
                                                       In closing, the Court notes that the second issue set forth Tn-- -


                                     Mother's Concise Statement of the Matters Complained of on Appeal is


                                     telling, and it summarizes the Court's belief about Mother's position in


                                     this matter.               The Court believes that Mother viewed the struggle over


                                      guardianship of the person as a struggle over the "equitable distribution"


                                      of the family residence.                 In other words, the parent who was allowed to


                                      remain as guardian of the person, would be permitted to stay in the


                                      residence owned by the trust created for                        D~~: benefit.              The Court


                                      refused to take property issues into consideration, but rather, stated that




                                       4   The Court notes that Mother's Petition to Remove Guardian also was granted, and the
                                       Court removed             r"a...YhW ·      ., as guardian   of the person. An independent, third party
                                       entity was appointed as guardian of the person for\'vcu..l14vte.v-.


                                                                                           7
·---·-·--·                                                                          --------·




                  "the best interest of 3't.lM+t4'r ',is what is guiding this proceeding and the


                  Court's decision in this matter." (Hearing Transcript, p. 180).




                                                              BY THE COURT:

                                                                l    ~BL---
                                                              Thomas M. Bianco, Judge




   I hereby C TIFY that this document is recorded in
   the Clerk o he Orphans' court Office of Indiana
   County, Pe Sylvania




                      Patricia Streams-Warman
                      Clerk of the Orphans' Court
                                                          8
