The opinion
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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: E.M.G., AN ALLEGED : IN THE SUPERIOR COURT OF
INCAPACITATED PERSON : PENNSYLVANIA
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APPEAL OF: E.M.G. :
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: No. 447 EDA 2021
Appeal from the Order Entered January 25, 2021
In the Court of Common Pleas of Monroe County Orphans' Court at
No(s): No. 2019-00090
BEFORE: BOWES, J., OLSON, J., and COLINS, J.*
MEMORANDUM BY OLSON, J.: FILED AUGUST 16, 2021
Appellant, E.M.G.1, appeals from the order entered on January 25, 2021,
denying her petition for the termination of her co-guardianship. We affirm.
We briefly summarize the facts and procedural history of this case as
follows. On May 20, 2019, M.T., R.G., and J.A.G., three of Appellant’s six
adult children, filed a petition to appoint themselves as co-guardians of the
estate and person for Appellant because Appellant was diagnosed with bipolar
disorder with psychotic features. On June 28, 2019, after a hearing wherein
Appellant was represented by appointed counsel, the orphans’ court
adjudicated Appellant incapacitated and appointed the three aforementioned
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* Retired Senior Judge assigned to the Superior Court.
1 As this appeal deals with Appellant’s mental health diagnoses, we use initials
as opposed to names so as to protect Appellant’s identity and insure privacy.
The caption has been amended accordingly.
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children as co-guardians of Appellant’s person and estate. After the co-
guardianship was established, Appellant resided at Love Lighthouse Personal
Care Home in Treichlers, Pennsylvania. Thereafter, when improvements in
Appellant’s mental health condition were observed, the co-guardians secured
a rental property located on Hollow Road in East Stroudsburg, Pennsylvania
for Appellant.2 On May 27, 2020, Appellant was evaluated remotely by video
by her former treating physician, Dr. Rivikumari Gollapalli. Based upon
Appellant’s reports that she lived by herself and handled all aspects of daily
living, Dr. Gollapalli opined that Appellant could manage her own affairs and
finances. On October 3, 2020, however, Appellant was admitted to St. Luke’s
Hospital pursuant to Section 302 of the Mental Health Procedures Act because
she experienced delusions. See 50 P.S. § 7302. She was later discharged
without an involuntarily commitment. On October 26, 2020, Appellant filed a
pro se petition seeking a review hearing to terminate the co-guardianship. The
orphans’ court appointed counsel to represent Appellant, ordered an
independent psychiatric evaluation, and held a review hearing on January 8,
2021.
At the review hearing, Appellant presented a letter from Dr. Gollapalli
and medical documentation from St. Luke’s hospital. Appellant and her friend,
Kelly Zimmerman, a licensed practical nurse (LPN), testified. R.G. also
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2 Appellant initially lived alone. In December 2020, one of Appellant’s sons
moved into the residence to live with Appellant. They both currently reside
there.
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testified and she presented the court-ordered psychiatric evaluation
conducted by Dr. Alyssa Reed on December 15, 2020, medical records dated
June 24, 2020, and a medical summary dated July 14, 2020, as well as various
Facebook posts authored by Appellant. Dr. Reed’s psychiatric evaluation
indicated that Appellant has “anxiety disorders, Paranoid Schizophrenia,
Bipolar disorder[-]unspecified. She [was] also declining medication and
need[ed] to follow up for treatment management[.]” N.T., 1/8/2021, at 4.
By opinion and order entered on January 25, 2021, the orphans’ court denied
Appellant relief and continued the co-guardianship. This timely, counseled
appeal resulted.3
On appeal, Appellant presents the following issue for our review:
Whether the [orphans’] court erred in denying [Appellant’s]
motion to terminate guardianship since there was adequate
testimony that [Appellant] is able to care for herself both
physically and financially[?]
Appellant’s Brief at 4 (superfluous capitalization omitted).
Appellant contends that “she met her burden of establishing by a fair
preponderance of the evidence that she has [re]gained her capacity” to care
for herself both physically and financially and, therefore, the orphans’ court
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3 On February 23, 2021, Appellant filed a notice of appeal. On February 23,
2021, the orphans’ court directed Appellant to file a concise statement of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant
complied timely on March 12, 2021. On March 12, 2021, the orphans’ court
filed a statement pursuant to Pa.R.A.P. 1925(a), relying upon its prior opinion
filed on January 25, 2021. On March 23, 2021, Appellant’s counsel filed an
application to withdraw with this Court. By per curiam order entered on May
3, 2021, we denied relief.
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erred by failing to terminate the co-guardianship. Id. at 11-18. More
specifically, Appellant claims that she presented a report from Dr. Gollapalli
“dated May 27, 2020, indicating Appellant was alert, oriented and competent
to handle her own finances and her estate.” Id. at 12-13. Appellant
“acknowledges that separate evaluations were conducted at her request[,]”
but that “those evaluations were conducted during a short period of time, over
the telephone, and with providers who had no prior knowledge of Appellant or
her mental health capabilities.” Id. at 13. Relying upon her testimony from
the review hearing, Appellant posits that she clearly answered “direct
questions without going off on tangents” and is able to live on her own, cook
and clean by herself, administer insulin for her diabetes four times a day, and
knows she receives a monthly social security check despite being declared
incapacitated. Id. at 14-15. Appellant asserts that the orphans’ court
erroneously “put substantial weight on … the fact that Appellant was not taking
any psychotropic medication to address her mental health” when there was
evidence that she had adverse reactions to the medication prescribed. Id. at
15-16. Appellant further argues that the orphans’ court erred by relying upon
“social media posts authored by Appellant that were directed at or towards
public officials and/or inter-county governmental agencies” regarding “her
frustration over the guardianship proceedings[.]” Id. at 16. Finally, Appellant
maintains that the orphans’ court erred by relying on testimony that, before
the co-guardianship was established, Appellant was financially victimized by a
former paramour, “[s]ince there was no other evidence … to suggest []
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Appellant had fallen victim to any other financial scams by any other party[.]”
Id. at 17. Accordingly, Appellant argues that the orphans’ court abused its
discretion in denying Appellant’s petition to terminate the co-guardianship.
Id. at 18.
An incapacitated person is defined as “an adult whose ability to receive
and evaluate information effectively and communicate decisions in any way is
impaired to such a significant extent that he [or she] is partially or totally
unable to manage his [or her] financial resources or to meet essential
requirements for his [or her] physical health and safety.” 20 Pa.C.S.A.
§ 5501. “The court shall conduct a review hearing promptly if the
incapacitated person, guardian or any interested party petitions the court for
a hearing for reason of a significant change in the person's capacity, a change
in the need for guardianship services or the guardian's failure to perform his
[or her] duties in accordance with the law or to act in the best interest of the
incapacitated person.” 20 Pa.C.S.A. § 5512.2(a). “Except when [a review]
hearing is held to appoint a successor guardian, the burden of proof, by clear
and convincing evidence, shall be on the party advocating continuation of
guardianship or expansion of areas of incapacity.” 20 Pa.C.S.A. § 5512.2(b).
However, we have also determined that “while the initial burden of proving
incapacity is a clear and convincing standard, the incapacitated person has
the burden of establishing that he [or she] has regained capacity only by a
fair preponderance of the evidence.” In re Estate of Rosengarten, 871
A.2d 1249, 1255 (Pa. Super. 2005). “The orphans' court's factual findings
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receive the same deference accorded factual findings of a jury, but we must
ensure that the decision of the court is free from legal error.” Id. at 1253.
“In the case of a petition for removal of a guardian, our Court's role is to
determine whether the orphans' court abused its discretion. The power of the
orphans' court to remove a guardian is an inherent right, which will not be
disturbed unless there is a gross abuse of discretion.” In re Estate of
Border, 68 A.3d 946, 959 (Pa. Super. 2013). “Because the orphans' court
sits as the finder of fact, it determines the credibility of the witnesses and, on
review, this Court will not reverse its credibility determinations absent an
abuse of discretion.” In re Estate of Zeevering, 78 A.3d 1106, 1108 (Pa.
Super. 2013) (citation omitted).
Here, the orphans’ court determined:
In reviewing all of the evidence in this case, [] a plenary guardian
is still necessary and the current co-guardians are the best
individuals to serve in this capacity. It is clear from the medical
evidence, the testimony of co-guardian [R.G.], and especially the
testimony of [Appellant], that she has a mental health condition
that impairs her ability to make personal decisions and manage
her finances. [Kelly] Zimmerman testified that she believes
[Appellant] could manage her own affairs. However, she is not
qualified to offer a professional opinion,[4] and as such, we accept
the testimony as a fact witness the same as [] the other testimony
[from] [R.G.] and [Appellant]. Although [] Zimmerman has seen
[Appellant] at times and talks to her on the [tele]phone, she does
not see [Appellant’s] behavior on a daily basis. Therefore, [the
orphans’ court] placed more weight on the testimony of [R.G.]
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4 Zimmerman was not providing Appellant medical care and Appellant did not
offer Zimmerman as an expert at the review hearing. N.T, 1/8/2021, at 12.
Instead, Zimmerman testified that she “like[d] to check on” Appellant and
considered her a good friend. Id. at 10.
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concerning [Appellant’s] ability to address her own needs and
finances.
[R.G.] was credible and convincing that her mother has a serious
mental health condition, that [Appellant] refuses medication
prescribed to help that condition, and that as a result, she cannot
manage her own affairs. In addition to the significant history of
mental health commitments, lost housing, delusional and
irrational behavior, and financial fraud perpetrated on her by
others, [Appellant] has continued to exhibit similar behaviors
when not on her medications. This condition appears to get better
at times, but worsen[ed] more recently. This may be in part to
[Appellant’s] current refusal to take her medications.
As [R.G.] testified, her mother continues to have delusions about
the FBI, about her doctor and the administrator of the personal
care home being complicit with each other in trying to kill her, and
[she is unable] to live on her own. [Appellant] herself confirmed
her delusional thought process when describing her notification to
the FBI about the Gambino crime family from what she witnessed
as a child allegedly living in the same neighborhood. Her
testimony about it in court was disjointed and did not make sense.
She also misconstrue[d] her doctor’s attempt to give her a long-
lasting anti-psychotic shot for her mental health as [an attempt]
to kill her. [Appellant] also [criticized,] in a paranoid manner[,]
the actions of those at the personal care home where she
previously resided and her family and others who claim she has a
mental health condition.
[I]t is clear from the record that [Appellant] does not have
sufficient funds to live on her own, and she either cannot be
accepted into low-income housing and/or refuses to cooperate
with agencies that could assist her in that regard, including
[Mental Health and Developmental Services] and the Agency on
Aging. She also would not be able to transport herself to doctor’s
appointments, grocery shopping, etc. While [Appellant] maintains
that she is able to drive, she does not have the means to afford a
vehicle. And, other than family, the only other person that might
be able to assist [Appellant] is Ms. Zimmerman, who lives quite a
distance from her. [R.G.’s] testimony was convincing that her
mother cannot live on her own without the assistance of a
guardianship of both her person and estate.
The psychiatric evaluation conducted December 15, 2020 also
confirms the continued need for a guardianship. [Appellant’s]
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thoughts and statements were not organized, she could not stay
on topic, and she told grandiose stories the entire session. She
was found to have limited insight into her mental health condition
and refused to accept a diagnosis of paranoid schizophrenia and
bipolar disorder[-]unspecified. [Appellant’s] judgment was found
to be impaired – moderate and her cognition was distracted with
a scattered thought process. The psychiatric evaluation showed
a serious mental health condition. Unfortunately, [Appellant’s]
refusal to accept the diagnosis and accept treatment, including
medication, puts her at significant risk if there was no
guardianship and she did not have near-constant supervision.
Finally, [Appellant’s] own testimony showed the level of her
impairment. [Appellant] could not answer [certain] simple
questions without [veering] off-topic. She had to be re-directed
by her counsel several times and exhibited some signs of
paranoia. [Examples of paranoid testimony] included [references
to] others entrapping her into hospitalization and the
aforementioned attempt on her life by her psychiatric doctor. She
also named the personal care administrator as being complicit in
that attempt on her life. [Appellant] also denied that a prior
paramour, [C.S.], took advantage of her financially, even though
testimony at the initial guardianship hearing showed otherwise.
She also denies the need for mental health treatment, [claims]
that she had [been] false[ly] diagnos[ed], and [claims] that she
is not schizophrenic or bipolar. Her insight to her condition is
severely limited. While [Appellant] may be able to cook for herself
and take care of her personal needs, she is not able to make sound
and rational decisions about her needs or her health, and it
appears very unlikely that she could live on her own, both from a
personal standpoint and certainly financially.
Orphans’ Court Opinion, 1/25/2021, at 5-8.
Upon review of the record and applicable law, we agree with the
orphans’ court assessment. Prior to the co-guardianship, Appellant’s
mortgage was foreclosed, and she was subsequently evicted twice thereafter,
because she relied on her former paramour to pay the couple’s living expenses
and he did not. N.T., 1/8/2021, at 16-17. Appellant denied that her former
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paramour took advantage of her financially. Id. at 39. Appellant has not
worked since 2008. Id. at 17. Her sole income is $940.00 per month which
she receives from her deceased husband’s social security benefits. Id. at 18
and 28. The co-guardians fear that if they did not assist Appellant, she would
not have “a stable living situation.” Id. at 48. A psychiatric evaluation
conducted on July 1, 2020 determined that Appellant suffers from paranoid
schizophrenia and bipolar disorder and that she was refusing medication and
treatment. Id. at 4. Appellant testified that she only receives medical care
for diabetes and she would not acknowledge that she has been diagnosed with
paranoid schizophrenia and bipolar disorder. Id. at 45. Instead, Appellant
testified that she has been falsely diagnosed as bipolar and schizophrenic and
that her children, a personal care facilitator, and doctor were complicit in
trying to kill her. Id. at 40-44; 55-59. Appellant made references to the FBI
and Gambino crime family. Id. at 39. Appellant also made false claims on
Facebook that local public officials, the trial court, and the co-guardians were
part of a conspiracy to implement an illegal guardianship. Id. at 54. She
believes that local politicians also colluded to silence her from environmental
advocacy and speaking out against the fracking industry. Id. at 59. Appellant
refuses services from the Agency of Aging and Mental Health and
Developmental Services. Id. at 47, 49-51. Appellant does not have a valid
driver’s license. Id. at 35-36. She exercises limited judgment in keeping her
living area clean and keeps rotten food in her refrigerator. Id. at 46.
Appellant also has periodontal disease and “her teeth are rotting in her
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gums[.]” Id. at 49. The co-guardians are “trying to find the right
[psychotropic] medications” for Appellant because she refuses to take them
as prescribed due to adverse reactions and various side-effects. Id. at 53.
In this case, the co-guardians proved by clear and convincing evidence
that the continuation of Appellant’s co-guardianship was necessary. Likewise,
Appellant failed to prove by a preponderance of the evidence that she has
regained the capacity for autonomous self-care. Here, the orphans’ court
found the psychiatric evaluation and R.G.’s testimony more credible than the
evidence presented by Appellant. We will not usurp those credibility
determinations. Based upon all of the foregoing evidence, we conclude that
Appellant’s ability to receive and evaluate information is impaired to such a
significant extent that she is unable to manage her financial resources or meet
the essential requirements for her physical health and safety. As such, the
orphans’ court did not abuse its discretion in denying Appellant’s request to
terminate the co-guardianship. Accordingly, Appellant’s sole appellate issue
fails.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/16/2021
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