In Re: N.T. Appeal of: N.T.

• Court: Superior Court of Pennsylvania
• Decided: February 16, 2022
• Docket: 878 MDA 2021
• Status: Unpublished

Opinion

J-S34014-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: N.T., AN ALLEGED : IN THE SUPERIOR COURT OF INCAPACITATED PERSON : PENNSYLVANIA : : APPEAL OF: N.T. : : : : : No. 878 MDA 2021

Appeal from the Order Entered May 10, 2021 In the Court of Common Pleas of Berks County Orphans' Court at No(s): 87387

BEFORE: DUBOW, J., McLAUGHLIN, J., and McCAFFERY, J.

MEMORANDUM BY DUBOW, J.: FILED FEBRUARY 16, 2022

Appellant, N.T., appeals from the May 10, 2021 Order that adjudicated

her incapacitated and appointed a plenary guardian of her person and estate.

Appellant raises challenges to the sufficiency and weight of the evidence. After

careful review, we affirm.

On July 10, 2020, Liberty Healthcare, Inc.1 (the “Agency”), received a

report of need regarding Appellant, which alleged self-neglect. After

investigation, on September 15, 2020, the Agency filed a Petition for

Appointment of Permanent Guardian of Person and Estate asserting that

Appellant was, inter alia, malnourished, over medicated, in danger of eviction,

uncooperative with services, suffering from mental health disorders, and

____________________________________________

1 The Pennsylvania Department of Human Services contracts with Liberty Healthcare, Inc., to provide adult protective services throughout Pennsylvania. J-S34014-21

unable to provide for her own basic needs. At the time, Appellant was 55

years old and residing alone in a long-term motel. Appellant is diagnosed with

personality disorder, body dysmorphic disorder, and obsessive-compulsive

disorder. Appellant has four adult children who were each served with a copy

of the Agency’s petition.

The trial court held hearings on March 29, 2021, April 20, 2021, and

May 4, 2021. On March 29, 2021, the trial court heard testimony from Nora

Callinan, M.D., Appellant’s primary care physician; Kenneth R. Carroll, Ph.D.,

who completed a psychological evaluation on Appellant; and Trinidad Diaz-

Cruz, an Agency investigator.

Dr. Callinan testified as an expert in family medicine. In sum, Dr.

Callinan testified that she began treating Appellant in July 2020 and had a

total of five visits with Appellant, one in-person and four phone visits. Dr.

Callinan stated that she had ongoing concerns that Appellant was not taking

her prescription opiates appropriately for chronic neck and back pain2,

appeared malnourished, and did not have appropriate transportation to obtain

groceries and medical interventions. Dr. Callinan testified that she contacted

the Agency to express her concerns and consulted with Dr. Carroll to perform

a psychological exam on Appellant to determine whether Appellant had the

capacity to make decisions. Dr. Callinan explained that, ultimately, she had

2 Appellant has an ongoing prescription from her previous primary care physician for 40 milligrams of OxyContin every 12 hours and 30 milligrams of Oxycodone every six hours as needed for severe pain.

-2- J-S34014-21

to dismiss Appellant from her medical practice because Appellant was verbally

abusive to office staff on a consistent basis, and it was not possible to have a

“good therapeutic relationship” with Appellant. N.T. Hearing, 3/29/21, at 37.

Finally, Dr. Callinan opined that, based on her interactions with Appellant, she

had concerns about Appellant’s ability to receive information, consider the

information, and make reasonable decisions about her healthcare as well as

concerns about Appellant’s ability to obtain food.

Dr. Carroll testified as an expert in psychology and psychological

evaluation for competency. He explained that he performed a psychological

evaluation of Appellant in Dr. Callinan’s office.3 Dr. Carroll testified that

Appellant was uncooperative with the evaluation, but he was able to observe

her actions for an hour. Dr. Carroll informed the court that Appellant exhibited

pressured, rapid, disorganized speech and switched from topic to topic. Dr.

Carroll testified that he observed manic behavior but noted that Appellant was

taking thirty-four medications at the time, many of which were stimulants that

could be causing the behavior.4 Dr. Carroll testified that, in his opinion, at the

time of the evaluation Appellant was incapacitated and noted that “[m]aybe if

she was off the medicines or other circumstances she might present ____________________________________________

3 Appellant did not receive prior notice of the psychological evaluation and thought she was going to a scheduled medical appointment with her primary care physician.

4For example, Appellant was taking high doses of Adderall, Prozac, BuSpar, and Wellbutrin, which Dr. Carroll opined were all stimulants as well as using an asthma inhaler, which Dr. Carrol testified could “contribute to agitation and anxiety.” N.T. Hearing, 3/29/21, at 74-75.

-3- J-S34014-21

differently.” Id. at 63-64. Finally, Dr. Carroll testified that, based on the

testimony he heard that day in court, his opinion that Appellant was

incapacitated had not changed.

Ms. Diaz-Cruz testified that she visited Appellant at the motel on several

occasions. Ms. Diaz-Cruz testified regarding pictures that she took of

Appellant’s motel room and explained the reason for the clutter “could be

health wise, it could be hoarding, it could be a psychological disorder.” Id. at

82. Ms. Diaz-Cruz stated that Appellant often pays her rent late, and the

Agency paid her rent on one occasion. She informed the court that Appellant

receives social security income as well as food stamps. Ms. Diaz-Cruz

attempted to implement community-based services, which were discontinued

after Appellant was non-compliant with providing her bank statements to the

Community Assistance Office. Ms. Diaz-Cruz explained that a guardianship

petition became necessary when Appellant was non-cooperative with

community-based services.

At the conclusion of Ms. Diaz-Cruz’s testimony, the court decided to

continue the hearing for a 30-day period to allow Appellant time to cooperate

with her new primary care physician, to adjust her medications, and to

cooperate with an agency named Holcomb Behavioral Health Services

(“Holcomb”) to receive community-based services.

On April 20, 2021, the hearing commenced. The court heard testimony

from Thomas Klonis, Esq. The Agency presented testimony from Robert

Whited, Director of Holcomb’s mobile psychological rehabilitation program.

-4- J-S34014-21

Appellant presented testimony from Meredith Gable, D.O., Appellant’s new

primary care doctor and Albert Fombu, M.D., Appellant’s treating psychiatrist.

Mr. Klonis testified that he had known Appellant for approximately

twenty-five years after representing Appellant in her divorce and trying to help

her in various ways. Mr. Klonis informed the court that in the past Appellant

was evicted from subsidized housing because of her ongoing hoarding

behaviors, that Appellant continued to have transportation issues, but that he

believed Appellant could manage her own financial affairs based on his

interactions with Appellant.

Mr. Whited testified that Appellant was not compliant with his agency,

Holcomb, declined peer support, declined a case manager, failed to show up

for appointments, and refused to fill out paperwork for community-based

services. Mr. Whited explained that Holcomb is set up to teach the participants

to access programs and services for themselves, and that Appellant had not

made any progress. Mr. Whited explained that if Appellant did not begin

cooperating, she would likely be discharged in a few months.

Dr. Gable, Appellant’s new primary care physician, testified that after

Appellant’s first office visit, she determined that Appellant’s “narcotic

regimen[] was inappropriate and out of scale to her diagnoses” and referred

Appellant to a specialist to wean her narcotics. N.T. Hearing, 4/20/21, at 21.

Dr. Gable was unaware if Appellant had followed up with the specialist.

Dr. Fombu, Appellant’s psychiatrist, testified that, in his opinion,

Appellant was competent to make decisions. Dr. Fombu expressed concern

-5- J-S34014-21

that Appellant’s medications need to be adjusted and Appellant is resistant to

that. Dr. Fombu informed the court that he believed Appellant needed

community-based services to support her.

On May 4, 2020, the court held its final hearing. The Agency presented

testimony from Ms. Diaz-Cruz and Mr. Whited. Appellant presented testimony

from Steven Evans, D.O., Appellant’s current pain management doctor.

Ms. Diaz-Cruz confirmed that Appellant continued to have transportation

issues, partly due to the location of the motel where she lived being

inconvenient to public transportation and outside the area of the medical

transportation service otherwise available to Appellant. Mr. Whited informed

the court that Appellant had not made any progress with Holcomb since the

last court date.

Dr. Evans testified that he had been treating Appellant since March 2021

for chronic pain after Appellant’s primary care physician referred Appellant to

“prevent her from going through withdraw[al] by suspending the medication

and then to wean her and switch her to less toxic medications.” N.T. Hearing,

5/4/21, at 56. Dr. Evans explained that Appellant is currently prescribed 235

morphine medical equivalents per day, over twice the 90 morphine medical

equivalents limit recommended by the state of Pennsylvania. Dr. Evans

testified that he needed to see Appellant’s radiology imaging before he could

make any changes to her medication, but Appellant had failed to arrange for

the imaging to be provided to Dr. Evans after two visits with him. Dr. Evans

testified that during his interactions with Appellant, she has displayed

-6- J-S34014-21

“pressured speech” and “not much dialogue, its mostly monologue on her part,

which is problematic with the people who are involved in her care[.]” Id. at

66. Dr. Evans confirmed it would be helpful to have someone in place to help

Appellant request her medical records.

Finally, Appellant testified on her own behalf. In sum, she testified that

she attends every medical appointment, is looking for improved housing, is

cooperative with services, and can manage her own affairs.

At the conclusion of the hearing, the trial court found that the Agency

presented clear and convincing evidence that Appellant was an incapacitated

person and needed guardianship of her person and estate. Appellant filed a

Motion for Reconsideration, which the trial court denied.

Appellant timely appealed. Appellant filed a Pa.R.A.P. 1925(b)

Statement and the trial court relied on its June 8, 2021 Opinion and Order in

lieu of a Rule 1925(a) Opinion.

Appellant raises the following issues for our review:

A. Did the court err in finding that [Appellant] is an incapacitated person when [the Agency] did not introduce clear and convincing evidence of incapacity?

B. Did the court err in conflating [Appellant’]s poverty with an inability to manage financial resources?

C. Did the court err in conflating overmedication, or even addiction, with incapacity?

D. Did the court err by failing to consider substantial evidence of [Appellant]’s ability to access medical care and community supports?

Appellant’s Br. at 7.

-7- J-S34014-21

It is well-settled that “[t]he findings of a judge of the orphans’ court

division, sitting without a jury, must be accorded the same weight and effect

as the verdict of a jury, and will not be reversed by an appellate court in the

absence of an abuse of discretion or a lack of evidentiary support.” In re

Jackson, 174 A.3d 14, 23 (Pa. Super. 2017) (citation omitted). “This rule is

particularly applicable to findings of fact which are predicated upon the

credibility of the witnesses, whom the judge has had the opportunity to hear

and observe, and upon the weight given to their testimony.” Id. (citation

omitted). This Court’s “task is to ensure that the record is free from legal

error and to determine if the [o]rphans’ [c]ourt’s findings are supported by

competent and adequate evidence and are not predicated upon capricious

disbelief of competent and credible evidence.” Id. (citation omitted)

Consequently, “[o]ur 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,

including, as here, the allegedly incapacitated person.” In re Hyman, 811

A.2d 605, 608 (Pa. Super. 2002). “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.” Harman ex rel. Harman v. Borah, 756 A.2d

1116, 1123 (Pa. 2000). Notably, for an appellant to establish an abuse of

discretion, it is “not sufficient to persuade the appellate court that it might

-8- J-S34014-21

have reached a different conclusion under the same factual situation.”

Fancsali v. Univ. Health Ctr., 761 A.2d 1159, 1162 (Pa. 2000).

Instantly, Appellant avers that the Agency did not present clear and

convincing evidence to adjudicate her incapacitated. Appellant’s Br. at 7.

Appellant argues that the Agency failed to present evidence that Appellant

was unable to manage her finances or that her use of medications

compromised her ability to receive and evaluate information effectively. Id.

at 21, 25. Appellant also challenges the weight of the evidence, arguing that

the trial court placed too much weight on the Agency’s expert witnesses while

disregarding the opinions of her treating physicians, and failed to consider that

Appellant receives medical and community-based services to meet her needs.

Id. at 26, 28-30. Appellant’s claims do not entitle her to relief.

Under Pennsylvania law, an incapacitated person is “an adult whose

ability to receive and evaluate information effectively and communicate

decisions in any way is impaired to such a significant extent that [s]he is

partially or totally unable to manage [her] financial resources or to meet

essential requirements for [her] physical health and safety.” 20 Pa.C.S. §

5501 (emphasis added). “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.” 20 Pa.C.S. § 5511(a). A person is presumed to be

mentally competent, and the burden is on the petitioner to prove incapacity

by clear and convincing evidence. In Re Myers' Estate, 150 A.2d 525, 526

-9- J-S34014-21

(Pa. 1959). We have explained that “[t]he standard of clear and convincing

evidence is defined as testimony that is so ‘clear, direct, weighty and

convincing as to enable the trier of fact to come to a clear conviction, without

hesitance, of the truth of the precise facts in issue.’” In re R.N.J., 985 A.2d

273, 276 (Pa. Super. 2009) (citation omitted).

Further, when making a determination of incapacity, 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)

Here, in its final order, the trial court complied with Section 5512.1 and

found that Appellant suffered from conditions or disorders that “impair her

cognitive functioning and capacity to receive and evaluate information

effectively and to make and communicate sound decisions concerning the

management of her living conditions, financial affairs, and physical health and

- 10 - J-S34014-21

safety.” Final Order, 5/10/21, at ¶3. The court found clear and convincing

evidence to adjudicate Appellant incapacitated pursuant to Section 5501 and

concluded that Appellant needed a plenary guardian of her person and estate

to continue indefinitely until further order of the court.

Upon review, we discern no abuse of discretion. In making its decision,

the trial court credited the expert testimony Dr. Callinan who relayed concerns

about Appellant’s ability to receive information, consider the information, and

make reasonable decisions about her healthcare. The court also credited the

expert testimony of Dr. Carroll, who opined that Appellant was incapacitated,

and submitted an expert psychological report concluding that Appellant was

incapacitated and in need of guardianship services. The court also credited

testimony from Ms. Diaz-Cruz, who testified that Appellant was non-compliant

with community-based services, continued to have issues with transportation,

and needed the Agency’s financial assistance paying her rent for one month.

Mr. Whited confirmed that Appellant remained non-compliant with

community-based services, even after the court gave Appellant a chance to

comply in the middle of the proceedings.

Notably, Appellant’s own witnesses expressed concern about her ability

to receive and evaluate information and/or care for herself. Dr. Evans

expressed concern that Appellant’s inability to engage in dialogue made it

difficult to provide medical care and Dr. Fombu explained that Appellant was

resistant to necessary reductions in her medication and in need of community-

- 11 - J-S34014-21

based services. Finally, the court had the opportunity to observe and interact

with Appellant through more than three hearings. The trial court opined:

Throughout the course of these multiple proceedings [Appellant] had to be continually chastised by the court and her own attorney to stop shouting at witnesses or speaking over witnesses and the [c]ourt. [Appellant]’s inability to receive and evaluate information effectively or to meaningfully cooperate with professionals attempting to assist her with vital matters, including medical treatment, safe living conditions, transportation and food, was not only described in detail by virtually every witness[], it was observed first hand by the [c]ourt.

Trial Court Opinion and Order, filed 6/8/21, at 6.

Upon review, we conclude that the record is free from legal error and

the trial court’s findings are supported by competent and adequate evidence.

Appellant essentially asks us to reassess the court’s determination of

credibility of the witnesses, and to reweigh the testimony and evidence

presented during the hearings. We cannot and will not do so. Accordingly,

Appellant’s claims do not garner relief.

In conclusion, the Agency presented clear and convincing evidence to

adjudicate Appellant incapacitated and appoint a plenary guardian of her

person and estate.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 02/16/2022

- 12 -