In Re: The Guardianship of Sharon Izzo (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: April 17, 2015
• Docket: 53A05-1407-GU-320
• Status: Published

Opinion

MEMORANDUM DECISION Apr 17 2015, 10:00 am Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Frederick A. Turner Gregory F. Zoeller Bloomington, Indiana Attorney General of Indiana Frances Barrow Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

In Re: April 17, 2015 Court of Appeals Cause No. The Guardianship of Sharon 53A05-1407-GU-320 Izzo, Appeal from the Monroe Circuit Appellant Court The Honorable Stephen R. Galvin, Judge Cause No. 53C07-1402-GU-12

Bradford, Judge.

Court of Appeals of Indiana | Memorandum Decision 53A05-1407-GU-320 | April 17, 2015 Page 1 of 9 Case Summary 1

[1] In the spring and summer of 2013, Indiana Adult Protective Services (“APS”)

received calls concerning seventy-seven-year-old Appellant Sharon Izzo, calls

expressing doubt that Izzo was able to make appropriate health care and

financial decisions. In February of 2014, APS petitioned for the appointment of

a guardian over Izzo’s person and estate. After a first hearing, the trial court

appointed a guardian ad litem (“GAL”) and temporary guardian. Following a

second hearing, the trial court found that Izzo suffered from cognitive problems

and mental illness and that she was not capable of making appropriate personal

and financial decisions. The trial court appointed a guardian for Izzo’s person

and estate. On appeal, Izzo contends that APS introduced insufficient evidence

to sustain the trial court’s judgment. We affirm.

Facts and Procedural History [2] In May and June of 2013, APS received calls regarding Izzo and expressing

doubts that she could make appropriate health care and financial decisions. On

June 25, 2013, Physician’s Assistant Vanessa Beard examined Izzo and later

opined that Izzo was incapacitated at the time and that “[d]ue to cognitive

problems and mental illness she [was] not able to care for herself without

1 Oral argument was held in this case on March 26, 2015, at Ivy Tech Community College in Lafayette, Indiana. We would like to thank the faculty, staff, and students of Ivy Tech for their hospitality and counsel for the high quality of their arguments.

Court of Appeals of Indiana | Memorandum Decision 53A05-1407-GU-320 | April 17, 2015 Page 2 of 9 assistance.” Ex. 1. The report was signed by neurologist Dr. Jamie Bales. On

July 8, 2013, APS opened an official investigation into Izzo’s situation.

[3] On December 10, 2013, Dr. Jameson Way examined Izzo and later submitted a

report, in which he found Izzo incapacitated and diagnosed her with

schizoaffective disorder and frontal lobe dysfunction. On February 10, 2014,

APS filed a “verified petition for appointment of guardian over person and

estate of incapacitated person” regarding Izzo. Appellant’s App. pp. 6-8. On

March 11, 2014, the trial court held a hearing, after which it appointed Terri

Francis as GAL and Elizabeth Ruh as temporary guardian for Izzo. On April

14, 2014, Dr. Way issued another report, in which he stated that he had

examined Izzo again, still found her to be incompetent, and noted her history of

schizoaffective disorder, neuropathy, COPD, depression, and urinary

incontinence.

[4] On April 21, 2014, GAL Francis filed a report, during the preparation of which

she interviewed twenty-four persons and reviewed the court file on Izzo’s case.

Dr. William Schmalz, who was seeing Izzo every four weeks to monitor her

medications, wrote a letter indicating his belief that Izzo was in need of a

guardian. Ruh told GAL Francis that she was concerned that Izzo’s daughter

Elizabeth Izzo was causing Izzo unnecessary stress by micro-managing her

care. Wendy Scott of APS told GAL Francis that she believed a guardian

would insulate Izzo from the “family drama[,]” including her son Bill Izzo

borrowing money from Izzo. Appellant’s App. p. 31.

Court of Appeals of Indiana | Memorandum Decision 53A05-1407-GU-320 | April 17, 2015 Page 3 of 9 [5] Elizabeth and her daughter Michelle White both told GAL Francis that they

believed Izzo needed a guardian. Elizabeth and White expressed concerns

about Izzo’s diet, a neighbor that may have stolen pain medication from Izzo,

Izzo’s ability to properly care for her cat, and their belief that Izzo’s neighbors

were intoxicated and could not “look in on Mrs. Izzo.” Appellant’s App. p. 31.

Elizabeth and White believed that Izzo could no longer balance her checkbook

or handle her financial affairs.

[6] GAL Francis registered concern that three medical professionals had opined

that Izzo was in need of a guardian and with the number of allegations that

family members were too involved in Izzo’s affairs. GAL Francis

recommended that a guardian be appointed to assist in Izzo’s financial and

personal affairs, noting that “[a] guardianship would allow the children to be

just that, children to Mrs. Izzo.” Appellant’s App. p. 36.

[7] On June 10, 2014, the trial court held a second hearing. Ruh opined that Izzo

was in need of a guardian because she was, at times, unable to recall exactly

what her doctors had told her and there had been “significant confusion”

regarding medical issues. Tr. p. 52. Ruh also affirmed that Izzo “could use

some assistance with her finances and … some insulation from some aggressive

family members[.]” Tr. p. 53. GAL Francis testified that she stood by the

recommendation she made in her April 21, 2014, report that a guardian be

appointed for Izzo.

Court of Appeals of Indiana | Memorandum Decision 53A05-1407-GU-320 | April 17, 2015 Page 4 of 9 [8] Following the hearing and also on June 11, 2014, the trial court issued an order

appointing a guardian for Izzo, an order providing in part as follows:

The Petitioner, Wendy Scott for Unit 10 [APS], appears in person and with deputy prosecuting attorney Robert Miller for a hearing on the Petition for Guardianship of Sharon Izzo. Temporary Guardian Elizabeth Ruh is present in person. Sharon Izzo is present with her attorney, Frederick Turner. [GAL] Terri Francis is present. Witnesses are sworn and evidence is taken. The court FINDS as follows: 1. Sharon Izzo suffers from cognitive problems and mental illness such that she is not able to care for herself without assistance. Ms. Izzo has been diagnosed with schizoaffective disorder and frontal lobe dysfunction. She also suffers from mild dementia. 2. As noted by Dr. Jameson Way, Sharon Izzo is not capable of making personal and financial decisions due to her inability to comprehend the long-term implications of her actions. Dr. William Schmalz and Dr. Vanessa Baird have reached similar conclusions. 3. [GAL] Terri Francis has thoroughly investigated this matter. Ms. Francis has interviewed 24 witnesses and reviewed the available medical records. Ms. Francis recommends that a professional guardian such as Elizabeth Ruh be appointed for Ms. Izzo. 4. Sharon Izzo is hereby adjudicated an incapacitated adult. 5. Elizabeth Ruh should be appointed guardian for Sharon Izzo. IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED THAT: 1) Elizabeth Ruh, d/b/a Personal Financial Services, LLC, is appointed as the Guardian of the person and estate of Sharon Izzo.

Appellant’s App. p. 45.

Court of Appeals of Indiana | Memorandum Decision 53A05-1407-GU-320 | April 17, 2015 Page 5 of 9 Discussion and Decision [9] Izzo contends that APS produced insufficient evidence to sustain its finding

that she needed assistance with her finances and with keeping certain family

members at bay. APS contends that the trial court did not abuse its discretion

in appointing a guardian for Izzo’s person and estate.

[10] Indiana Code section 29-3-2-4(a) provides that “[a]ll findings, orders, or other

proceedings under this article shall be in the discretion of the court unless

otherwise provided in this article.” “Thus, we apply the abuse of discretion

standard to review the trial court’s findings and order.” In re Guardianship of

Atkins, 868 N.E.2d 878, 883 (Ind. Ct. App. 2007) (citing In re Guardianship of

V.S.D., 660 N.E.2d 1064, 1066 (Ind. Ct. App. 1996)), trans. denied. “An abuse

of discretion occurs when the trial court’s decision is clearly against the logic

and effect of the facts and circumstances presented.” Id. (citing J.M. v. N.M.,

844 N.E.2d 590, 602 (Ind. Ct. App. 2006), trans. denied.). “When reviewing the

trial court’s findings and judgment, we consider only the evidence most

favorable to the prevailing party, and we neither reweigh the evidence nor

reassess witness credibility.” Appeal of Wickersham, 594 N.E.2d 498, 501 (Ind.

Ct. App. 1992).

[11] Indiana Code section 29-3-5-3(a) provides, in part, that

if it is alleged and the court finds that: (1) the individual for whom the guardian is sought is an incapacitated person or a minor; and

Court of Appeals of Indiana | Memorandum Decision 53A05-1407-GU-320 | April 17, 2015 Page 6 of 9 (2) the appointment of a guardian is necessary as a means of providing care and supervision of the physical person or property of the incapacitated person or minor; the court shall appoint a guardian under this chapter.

Indiana Code section 29-3-1-7.5 defines an “incapacitated person as follows:

“Incapacitated person” means an individual who: (1) cannot be located upon reasonable inquiry; (2) is unable: (A) to manage in whole or in part the individual’s property; (B) to provide self-care; or (C) both; because of insanity, mental illness, mental deficiency, physical illness, infirmity, habitual drunkenness, excessive use of drugs, incarceration, confinement, detention, duress, fraud, undue influence of others on the individual, or other incapacity[.]

1. Incapacity due to Mental Illness and Mental Deficiency [12] We conclude that APS produced sufficient evidence to sustain the trial court’s

finding that Izzo suffered from mental illness such that she was unable to

manage her affairs properly. Neurologists Drs. Bales and Way both submitted

reports finding Izzo to be incompetent. Dr. Way diagnosed Izzo with

schizoaffective disorder and frontal lobe dysfunction, opining that Izzo was

“totally incapable of personal & financial decisions[.]” Appellant’s App. p. 10.

Dr. Bales’s report indicated that “[d]ue to cognitive problems and mental illness

[Izzo] is not able to care for herself without assistance.” Appellant’s App. p.

14A. Dr. Bales opined that Izzo could live on her own with daily assistance

Court of Appeals of Indiana | Memorandum Decision 53A05-1407-GU-320 | April 17, 2015 Page 7 of 9 and needed help with decision making, grocery shopping, managing her

finances, and safety issues. Taken together, these reports amply support a

finding that Izzo suffered from an incapacitating mental illness or mental

deficiency. Izzo points to evidence in the record that would support a

conclusion that she was not mentally incapacitated to the point that a

guardianship would be necessary. This argument, however, is merely an

invitation to reweigh the evidence, which we will not do.

2. Whether Appointment of a Guardian was Necessary [13] We conclude that there is also sufficient evidence to support the trial court’s

conclusion that Izzo’s incapacity warranted the appointment of a guardian.

“Laura” of Comfort Keepers told GAL Francis that Izzo was in need of a

guardian, and Elizabeth and White both told GAL Francis the same thing, both

believing that Izzo could no longer balance her check book or handle her

financial affairs. Educator Dana Thompson told GAL Francis that Izzo “is

impressionable and tends to agree with whomever she is speaking to at the

time[,]” is a poor decision maker, and needed a professional guardian.

Appellant’s App. p. 35. Ruh testified that Izzo needed assistance with her

finances and insulation from aggressive family members. GAL Francis also

concluded that a guardian should be appointed for Izzo to “alleviate the stress

and dysfunction that stands between Mrs. Izzo and her children.” Appellant’s

App. p. 36. Izzo’s argument on this point again amounts to nothing more than

an invitation to reweigh the evidence, which we will not do. APS produced

Court of Appeals of Indiana | Memorandum Decision 53A05-1407-GU-320 | April 17, 2015 Page 8 of 9 sufficient evidence to sustain a finding that appointment of a guardian for Izzo

was necessary.

[14] We affirm the judgment of the trial court.

Riley, J., and Robb, J., concur.

Court of Appeals of Indiana | Memorandum Decision 53A05-1407-GU-320 | April 17, 2015 Page 9 of 9