In the Matter of Harper Appeal of Harper

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE MATTER OF HELEN HARPER, AN IN THE SUPERIOR COURT OF
ALLEGED INCAPACITATED PERSON, PENNSYLVANIA
Appellee
APPEAL OF: ROBERT J. HARPER
No. 91 EDA 2016
Appeal from the Order Entered November 25, 2015
In the Court of Common Pleas of Delaware County
Civil Division at No(s): 2015-0597
BEFORE: PANELLA, SHOGAN, and PLATT,* JJ.
MEMORANDUM BY SHOGAN, J.: FILED JANUARY 05, 2017
This is a pro se appeal by Appellant, Robert J. Harper (“Robert”), the
son of Helen Harper (“Helen”), from the Delaware County Common Pleas
Orphans’ Court decision deeming Helen, age ninety-seven, an incapacitated
person and appointing Jacquelyn Goffney, Esquire, as Guardian ad litem
(“GAL”). Appellee is the Delaware County Office of Services for the Aging
(“COSA”). We affirm.
On October 8, 2015, COSA filed a Petition for Adjudication of
Incapacity and Appointment of a Plenary Guardian of the Person and Estate
on behalf of Helen. Robert was represented by counsel in the proceedings
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
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before the orphans’ court. COSA alleged that Helen lived in deplorable
conditions, and her financial affairs were in disarray. The orphans’ court
entered a preliminary decree on October 14, 2015, and held an evidentiary
hearing on November 23, 2015. The orphans’ court entered a final decree
on November 25, 2015, and appointed Ms. Goffney and Robert as co-
guardians of Helen’s person and Ms. Goffney and Dana Breslin, Esquire, as
co-guardians of Helen’s estate. Robert filed a notice of appeal on December
23, 2015. Both Robert and the orphans’ court complied with Pa.R.A.P. 1925.
Robert is proceeding pro se on appeal.
The orphans’ court described the conditions of Helen’s home as
follows:
At the time the Petition at Issue was filed, Helen Harper
was 97 years old. For some time prior to the Petition being filed,
Helen Harper resided with her son, Robert Harper. While Helen
Harper was residing with Robert, COSA received a report of need
concerning Helen Harper and Donna Smith was the COSA case
manager assigned to investigate that report. Donna testified
that she had to visit the house in which Robert and Helen Harper
resided four times before she was able to meet with Helen. The
exterior of the house was in poor condition looking as if the roof
needed to be replaced and the lawn not having been mowed in
quite some time. Upon entering the house, Donna testified that
she was confronted with a strong odor and a cluttered mess with
piles of various items stacked nearly to the ceiling. The clutter
was so dense that it appeared to Donna that there was only one
path through the house to Helen Harper’s room with access to all
other rooms being blocked. After interviewing Helen Harper,
Donna took Helen to a doctor who found Helen to be dirty with
rashes and dry skin. As a result, Donna recommended that
Helen Harper be evaluated for mental capacity.
Helen Harper was evaluated by Dr. Kenneth Carroll, a
forensic geriatric psychologist, who prepared a Psychological
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Assessment and testified in Court. Dr. Carroll reported that
Robert Harper was, at first, resistant to the evaluation but after
a brief discussion consented to it. Dr. Carroll, just like Donna
Smith, described the home as an awful mess both outside and
inside with junk piled to the ceiling. Dr. Carroll observed that
Helen is unable to walk and relies on others to move from her
wheelchair to her bed. During the evaluation, Helen Harper
could not remember when she married, when her husband died
or how many children she had. Helen Harper believed she was
in an apartment rather than her own home despite remarking
that she put up the hallway wallpaper years ago. In addition,
Helen Harper was unable to identify her doctor or any health
problems and Dr. Carroll testified that Helen Harper knew
nothing about her finances. Dr. Carroll reported that Helen
Harper was completely isolated but never mistreated by Robert
Harper. Based on his interaction with Helen Harper, Dr. Carroll
diagnosed Helen Harper with moderate dementia, probably
Alzheimer’s and recommended that a guardian be appointed for
her person and estate to ensure her health, safety and financial
security. Dr. Carroll recommended a guardian because he
believes that Helen Harper can no longer safely reside in her
home due to its disrepair and because Robert has been resistant
to assistance and his ability to care for Helen Harper is doubtful.
Charles Harper, Helen Harper’s son and Robert’s brother,
testified that Robert has resided with Helen Harper since 2001
but Charles has not visited Helen Harper in her home since 2014
because Robert would not allow it. Charles testified that, in
2013, Robert discovered that Helen Harper’s real estate taxes
had not been paid and that Robert as agent under power of
attorney for Helen Harper made three withdrawals from Helen
Harper’s account totaling nearly $70,000.00. Charles also
testified that, since Helen Harper was admitted to a nursing
home, Charles has been able to visit Helen Harper. Based on his
observations and the nursing home reports, Charles testified that
Helen Harper’s condition improved in the nursing home and, as a
result, Charles does not think that Robert should be appointed
guardian of Helen Harper.
Robert Harper testified that he has been caring for Helen
Harper since 2001 and that he believes he can handle the duties
and responsibilities of being Helen Harper’s guardian with the
assistance of a home health aide. Robert also testified that,
while Helen Harper was under his care, he filed for bankruptcy
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on behalf of Helen Harper, sold properties owned by Helen
Harper in order to be able to pay real estate taxes, and the Fire
Department placed a Do Not Enter on the house in which Robert
and Helen Harper resided because the clutter was so thick inside
that, if a fire were to ignite inside, it would be too dangerous for
fire fighters to go inside to fight the blaze. Robert also testified
that he does not work and has no income relying, instead, on
Helen Harper’s social security income of approximately
$2,300.00 per month to provide for himself and Helen Harper.
To save money, Robert testified that he heats the house with
electric space heaters and has done so for about four years.
Jacquelyn Goffney, Esquire, Helen Harper’s court-
appointed Guardian Ad Litem, addressed the Court and reported
that Helen Harper filed for Chapter 13 bankruptcy because she
had approximately $260,000.00 of debt. Ms. Goffney also
reported that she identified additional problems with Helen
Harper Harper’s accounts and estate planning. Just as Donna
Smith and Dr. Kenneth Carroll reported, Ms. Goffney reported
that the house in which Robert and Helen Harper resided smelled
awful and contained an obscene amount of clutter.
Helen Harper also addressed the Court and expressed her
opinion that Robert Harper takes excellent care of her. Helen
Harper knew nothing about her financial situation and expressed
a desire to return home because she thinks she can care for
herself.
Orphans’ Court Opinion, 3/10/16, at 2–4.
Robert raises the following two issues on appeal:
A. Whether the lower court abused its discretion in appointing
a guardian ad litem on behalf of Helen Harper over her
objection and contrary to evidence?
B. Whether the lower court erred in denying the Appellant’s
request for an independent evaluation and less restrictive
options in violation of her due process rights?
Appellant’s Brief at 6.
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Our standard of review of the findings of an orphans’ court is
deferential. In re Ware, 814 A.2d 725, 731 (Pa. Super. 2002). 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.” In re Estate of Devoe, 74 A.3d
264, 267 (Pa. Super. 2013). “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.”
In re Fiedler, 132 A.3d 1010, 1018 (Pa. Super. 2016), appeal denied, 145
A.3d 166 (Pa. 2016).
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). We have long stated that the
appointment of a guardian lies within the sound discretion of the trial court.
Estate of Haertsch, 649 A.2d 719, 720 (Pa. Super. 1994). “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) (quoting Harman ex rel. Harman v. Borah,
756 A.2d 1116, 1123 (Pa. 2000)).
Pennsylvania law defines a guardian as a person lawfully
invested with the power, and charged with the duty, of taking
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care of the person and/or managing the property and rights of
another person, who, for defect of age, understanding or self-
control is considered incapable of administering his own affairs.
Two classes of guardians have long been recognized at law: (1)
guardian of the person being invested with the care of the
person of the [incapacitated person], and (2) guardian of the
estate being entrusted with the control of the property of the
[incapacitated person]. The spheres of authority of a guardian
of the person and of a guardian of the estate are distinct and
mutually exclusive.
The guardian of the [incapacitated person’s] person is the
person having primary physical responsibility for the care and
custody of the [incapacitated person]. However, natural
guardianship confers no inherent right to intermeddle with the
property of the [incapacitated person], and the natural guardian
has no inherent authority to demand or power to receive, hold or
manage the [incapacitated person’s] property unless the natural
guardian has also been appointed as guardian of the
[incapacitated person’s] estate.
Rock v. Pyle, 720 A.2d 137, 141 (Pa. Super. 1998) (citations omitted).
Robert’s first issue asserts that the orphans’ court abused its discretion
in appointing a GAL on behalf of Helen. Robert challenges COSA’s
contention that Helen had to be removed from the home due to substantial
medical circumstances maintaining “there was no substantial proof.”
Robert’s Brief at 15. He suggests that the testimony of psychologist Dr.
Kenneth Carroll, that Helen lived in deplorable conditions, does not “equate[]
to incapacity.” Id.Robert contends that Helen was removed from the home against her
will. Robert’s Brief at 16. He urges that Helen’s forgetfulness is due merely
to her age. Id. Robert maintains that Helen was mentally competent “by
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clear and convincing evidence,” yet he does not cite to anything in the
record as support for his assertion. Id. at 17.
Robert also avers that the orphans’ court shifted the burden of proof to
him. Robert’s Brief at 17. He suggests that the orphans’ court failed to
comply with 20 Pa.C.S. § 5512.1, which provides:
§ 5512.1. Determination of incapacity and appointment of
guardian
(a) Determination of incapacity.--In all cases, the court shall
consider and make specific findings of fact concerning:
(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.
(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).
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Robert also maintains the orphans’ court failed to give consideration to
Helen’s choice of GAL in contravention of 20 Pa.C.S. § 5511, which provides,
in part:
§ 5511. Petition and hearing; independent evaluation
* * *
(f) Who may be appointed guardian.--The court may appoint as
guardian any qualified individual . . . . If appropriate, the court
shall give preference to a nominee of the incapacitated person.
20 Pa.C.S. § 5511 (emphasis added). Robert’s Brief at 19. Robert submits
that “if [Helen] needed a guardian, then, in such event, [he] was the best
person to be appointed.” Robert’s Brief at 20. Robert’s argument is
conclusory and unsubstantiated by reference to the record.
COSA argues that the issue is waived because Robert failed to include
it in his Pa.R.A.P. 1925(b) statement. COSA’s Brief at 2. While Robert may
not have stated the issue in his appellate brief in the exact terms as
presented in the concise statement, it is sufficiently suggested therein.
Thus, we decline to find waiver. In the alternative, COSA relies on the
orphans’ court’s explanation and the evidence presented at the November
23, 2015 hearing. COSA’s Brief at 2. We rely on the orphans’ court’s
explanation, as well.
At the November 23, 2015 evidentiary hearing, all parties
were given a full and fair opportunity to present their case. Dr.
Kenneth Carroll, a forensic geriatric psychologist, testified and
recommended a guardian because Helen Harper suffers from
moderate dementia, probably Alzheimer’s and was not receiving
adequate care or support from Robert Harper who was living
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with Helen Harper and who contested the Petition on the
grounds that a guardian was unnecessary because of his care.
Dr. Carroll’s diagnosis of moderate dementia, probably
Alzheimer’s was based on his clinical testing of Helen Harper and
his substantive observations such as Helen Harper’s inability to
walk, inability to remember when her husband died, inability to
remember how many children she had, inability to describe her
physical and mental condition and her inability to articulate any
understanding of her finances. Dr. Carroll’s recommendation
that a guardian be appointed was based on his perception of
Helen Harper’s home environment. When Dr. Carroll evaluated
Helen Harper at her home, Dr. Carroll noted that the house was
an awful mess inside and outside and emitted a displeasing odor.
Based on those observations, Dr. Carroll reported that Robert
Harper’s ability to care for and support Helen Harper is doubtful
as Helen Harper was not, at that time, receiving adequate care
and support. This evidence of record wholly satisfies the
requirement of 20 Pa.C.S. §5518 that the Petitioner provide
evidence of incapacity from a qualified individual.
Finding that Helen Harper is an incapacitated person is
even more appropriate after considering the factors listed In 20
Pa.C.S. § 5512.1(a) because the lack of adequate care and
support for Helen Harper is further supported by the record.
Both Donna Smith, the COSA case manager, and Jacquelyn
Goffney, Esquire, the Guardian Ad Litem, corroborated Dr.
Carroll’s report and testimony that Helen Harper’s house was
malodorous, in a concerning state of disrepair and clogged with
junk inside. Robert Harper even testified that, while he and
Helen Harper were residing in the house, the Fire Department
placed a Do Not Enter [sign] on the house because the clutter
was so thick inside that, if a fire were to ignite inside, it would be
too dangerous for fire fighters to go inside to fight the blaze.
Despite that obvious warning and concern, Robert Harper
testified that he heated the home with electric space heaters for
the last four years.
The testimony of Charles Harper, Jacquelyn Goffney,
Esquire and Robert Harper himself also reveals that Helen
Harper’s financial situation was in dire straits as a result of
Robert Harper’s stewardship as agent under power of attorney
for Helen Harper over the last few years. Robert Harper failed to
pay taxes on several pieces of real estate owned by Helen
Harper which required him, as agent, to make about $70,000.00
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worth of withdrawals of Helen Harper’s funds to make partial
payment. To make further payment of previously unpaid real
estate taxes, Robert Harper sold real property owned by Helen
Harper. Robert Harper also allowed Helen Harper to accrue
approximately $260,000.00 of debt resulting in the institution of
bankruptcy proceedings. Lastly, Robert Harper testified that he
is not employed and has not been employed for some time so,
while he and Helen Harper were residing together, Robert Harper
was relying on Helen Harper’s $2,300.00 per month to support
both himself and Helen Harper.
Considering this record as created at the November 23,
2015 evidentiary hearing and recounted above, the Petitioner,
COSA, easily satisfied its burden of proving by clear and
convincing evidence that Helen Harper is an incapacitated person
pursuant to the requirements of 20 Pa.C.S. §§ 5511, 5518 and
5512.1(a). Not only does Helen Harper suffer from moderate
dementia, probably Alzheimer’s which impacts her cognitively to
the point where she cannot remember who her doctor is and
what her finances are but the record revealed that Helen Harper
also does not have a sufficient support system in place to render
her not incapacitated as per the Supreme Court of
Pennsylvania’s analysis in In re Peery [727 A.2d 539 (Pa.
1999)]. As such, there was no less restrictive alternative to
guardianship available to the [c]ourt. The [c]ourt, therefore,
appointed Jacquelyn Goffney, Esquire and Robert Harper Co-
Guardians of the Person of Helen Harper and appointed
Jacquelyn Goffney, Esquire and Dana Breslin, Esquire Co-
Guardians of the Estate of Helen Harper. Despite the record
revealing that the level of care provided by Robert Harper to
Helen Harper was deficient, the [c]ourt appointed Robert Harper
Co-Guardian of the Person of Helen Harper because it was
evident from the record that Robert Harper had great affection
for and is devoted to his mother, Helen Harper.
Orphans’ Court Opinion, 3/10/16, at 7–9.
Robert also argues that the orphans’ court erred in denying his request
for an independent evaluation. Robert’s Brief at 22. He wholly fails to cite
to the record where such denial occurred. In support of his argument,
Robert refers to the relevant statute, which provides as follows:
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§ 5511. Petition and hearing; independent evaluation
(a) Resident.--The court, upon petition and hearing and upon
the presentation of clear and convincing evidence, may find a
person domiciled in the Commonwealth to be incapacitated and
appoint a guardian or guardians of his person or estate. The
petitioner may be any person interested in the alleged
incapacitated person’s welfare. The court may dismiss a
proceeding where it determines that the proceeding has not
been instituted to aid or benefit the alleged incapacitated person
or that the petition is incomplete or fails to provide sufficient
facts to proceed. . . . In addition, notice of the petition and
hearing shall be given in such manner as the court shall direct to
all persons residing within the Commonwealth who are sui juris
and would be entitled to share in the estate of the alleged
incapacitated person if he died intestate at that time, to the
person or institution providing residential services to the alleged
incapacitated person and to such other parties as the court may
direct, including other service providers. . . .
20 Pa.C.S. § 5511(a) (second emphasis added). Robert suggests that
because “only those persons who are sui juris and would be entitled to share
in the alleged incapacitated person’s estate are required to be notified of
impending incapacitation proceedings,” the class of individuals entitled to
challenge the adjudication “should be limited to these same intestate heirs
and the alleged incapacitated person himself.” Robert’s Brief at 24. As
noted in the emphasis above, the language of the statute itself belies the
propriety of such a claim. See also In re Hyman, 811 A.2d 605, 607-608
(Pa. Super. 2002) (“Any person interested in the alleged incapacitated
person’s welfare may petition the court for a judicial determination that the
person is indeed incapacitated and for the appointment of a guardian.”).
Robert also cites to section (d) of the statute, which provides:
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(d) Independent evaluation.--The court, upon its own motion
or upon petition by the alleged incapacitated person for cause
shown, shall order an independent evaluation which shall meet
the requirements of section 5518 (relating to evidence of
incapacity). The court shall give due consideration to the
appointment of an evaluator nominated by the alleged
incapacitated person.
20 Pa.C.S. § 5511(d). In his reply brief, Robert references a document he
presented at the November 23, 2015 hearing purporting to be Helen’s
request for an independent evaluation. Robert’s Reply Brief at Appendix A;
N.T., 11/23/15, at 60. Robert continues in his assertion that medical
records did not support Helen’s incapacitation and that the orphans’ court
appointment of a guardian ad litem was against the weight of the evidence.
Robert’s Brief at 27–28.
Once again, we look to the decision of the orphans’ court, which found
as follows:
The record overwhelmingly supports a finding that Helen
Harper is an incapacitated person who requires the appointment
of a guardian of her person and estate. Helen Harper was
properly served with notice of the Petition and the hearings in
this matter as required by 20 Pa.C.S. § 5511(a). At the initial
hearing on November 9, 2015, Robert George, Esquire, counsel
for COSA, submitted into evidence an Affidavit of Service which
was notarized and signed by Jane Ervin who attested that she
had “personally served, read to, explained and left a copy of the
CITATION WITH IMPORTANT NOTICE, Preliminary Decree, and
accompanying Petition” upon Helen Harper. In light of the
absence of Helen Harper at the November 9, 2015 hearing, the
significance of the allegations regarding Helen Harper’s condition
and finances, and John Nilan, Esquire appearing as opposing
counsel on behalf of Robert Harper, the [c]ourt appointed
Jacquelyn Goffney, Esquire Guardian Ad Litem on behalf of Helen
Harper and scheduled this matter for an evidentiary hearing to
be held on November 23, 2015. At no point from the moment
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the Petition was filed until the appealed Final Decree was signed,
did Helen Harper request counsel or an independent evaluation.
Instead, the [c]ourt proactively appointed a Guardian Ad Litem
for Helen Harper in order to ensure that the rights and best
interest of Helen Harper were protected throughout this entire
process.
Orphans’ Court Opinion, 3/10/16, at 6–7 (footnote omitted).
Here, the evidence presented establishes that Robert has failed to act
in the best interests of Helen’s person and estate. He has prevented his
brother Charles from visiting Helen since May of 2014. N.T., 11/23/15, at
29, 36. COSA presented the testimony of Dr. Carroll, the forensic geriatric
psychologist, who prepared a Psychological Assessment dated August 3,
2015, and testified in court regarding Helen’s condition. Upon assessing
Helen, Dr. Carroll asked Helen to assess her circumstances “and she said
there was nothing wrong.” N.T., 11/23/15, at 47. “She did not realize she
was losing weight . . . and she could not recall whether she had anything to
eat that day or the day before.” Id. Dr. Carroll’s report noted that:
All memory functions are impaired, including remote recall. She
had difficulty recounting her history. She is unsure when she
married, or when her husband died, and she is unsure how many
children she has. She is confused about her whereabouts; she
does not believe she is in her own home, but in some apartment
elsewhere. . . . [S]he is otherwise disoriented to place, and she
is completely disoriented to time.
Psychological Assessment, 8/3/15, at 1. Dr. Carroll opined that Helen “has
moderate dementia, which seriously limits her ability to recall and integrate
information, to assess situations, to consider options, to adapt to change, to
make decisions, to have the judgment needed to make plans, and the
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initiative to carry them out.” Id. at 3. Dr. Carroll stated that Helen required
“the assistance of a guardian of both her person and her estate.” Id.
Despite record evidence that Robert provided deficient care to Helen,
the orphans’ court appointed him as a Co-Guardian of the Person of Helen
“because it was evident from the record that Robert Harper had great
affection for and is devoted to his mother, Helen Harper.” Orphans’ Court
Opinion, 3/10/16, at 9. The evidence before the orphans’ court was
sufficient good cause as to why Robert’s appointment as the sole guardian of
either Helen’s person or estate was not appropriate.
Considering the record as a whole, there is support for the orphans’
court’s conclusion that there existed no less restrictive options available.
Moreover, because the orphans’ court considered the necessity of an
independent co-guardian and articulated a sound evidentiary basis for its
decision, we discern no abuse of discretion in the decision of the orphans’
court. Estate of Haertsch, 649 A.2d 719. Thus, we have no hesitation in
affirming the decision of the orphans’ court.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/5/2017
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