The opinion
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Department of Public Welfare :
:
v. :
:
Mikeisha Gant, : No. 1652 C.D. 2014
Appellant : Argued: June 15, 2015
BEFORE: HONORABLE MARY HANNAH LEAVITT, Judge1
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ANNE E. COVEY, Judge
OPINION BY
JUDGE COVEY FILED: June 29, 2016
Mikeisha Gant (Gant) appeals from the Lancaster County Common
Pleas Court’s (trial court) July 8, 2014 order declaring that Gant is a medically-
compromised adult in need of protective services under the Adult Protective
Services Act (Act or Act 70)2 and granting the Department of Public Welfare’s
(DPW)3 Petition for Special Relief (Petition). The issues for this Court’s review
are: (1) whether the trial court erred in finding that Gant is an adult in need of
protective services under the Act; (2) whether the trial court erred by restricting
1
This case was assigned to the opinion writer before January 4, 2016, when Judge
Leavitt became President Judge.
2
Act of October 7, 2010, P.L. 484, 35 P.S. §§ 10210.101-103, 301-309, 501-507, 701-
704 (effective April 7, 2011).
3
Effective November 24, 2014, DPW was officially renamed the Department of Human
Services. See Act of June 13, 1967, P.L. 31, added by Section 2 of the Act of September 24,
2014, P.L. 2458, 62 P.S. § 103(a) (effective November 24, 2014). However, because this appeal
was filed prior to the official name change, we will refer to Appellee as DPW herein.
Gant’s eligibility for DPW’s Medical Assistance benefits; (3) whether Gant was
afforded sufficient notice that DPW would seek to enjoin interference with Gant’s
ability to consent to protective services; and, (4) whether DPW and the trial court
deprived Gant of her due process rights. Upon review, we affirm in part, reverse in
part and vacate in part.
BACKGROUND
Gant, who was 28 years of age at the time of the hearings, suffers
from advanced-stage sickle cell anemia which causes her consistent, severe pain.
She is bed-ridden and catheterized, and is fed every two hours through a feeding
tube. She must also be moved every two hours in order to avoid pressure wounds
(i.e., bedsores).4 Gant takes a significant amount of medication, including pain
medications. Since 2011, she has participated in DPW’s Consolidated Waiver
Program (Waiver Program),5 which permits Medical Assistance recipients to
receive nursing home-type care and services in their homes. Within the Waiver
Program are two service models: the Agency-Directed Model and the Consumer-
Directed Model. Under the Agency-Directed Model, independent home healthcare
4
Pressure wounds occur when blood and oxygen are impeded from getting to tissue and
it begins to die. The wounds begin superficially but, as pressure remains, they get deeper. See
Reproduced Record (R.R.) at 67a.
5
The federal Medicaid program authorizes states “to offer, under a waiver of statutory
requirements, an array of home and community-based services that an individual needs to avoid
institutionalization.” 42 C.F.R. § 441.300; see also 42 U.S.C. § 1396n(c). Essentially, the
federal government “waives” certain regulations for community-based programs under which
intermediate care facilities are required to operate. The Commonwealth’s Medical Assistance
program is authorized by Article IV of the Public Welfare Code, Act of June 13, 1967, P.L. 31,
as amended, 62 P.S. §§ 401–493, and must be administered as required by Title XIX of the
Social Security Act, 42 U.S.C. § 1396-1396(w-5), and any associated regulations. See 55 Pa.
Code § 1101.11(b).
2
service providers employ persons responsible for the recipient’s care.6 Under the
Consumer-Directed Model, a DPW service coordinator (SC) assists the recipient in
developing an individual support plan under which the recipient employs care
workers which, oftentimes, are family members.7 Pursuant to Gant’s Individual
Support Plan revised in July 2013, her primary care was provided under a
Consumer-Directed Model by her mother Abadella Gant (Mother), and
occasionally by Gant’s father Michael Gant (Father) who is also her power-of-
attorney (POA).
In October 2013,8 Gant was transported to Lancaster Regional
Medical Center’s (LRMC) emergency room in critical condition due to a severe,
pervasive infection caused by feeding tube leakage, and approximately 11 pressure
wounds on her stomach, chest, back and head sufficiently deep to reach her bones.
While there, she became unresponsive, stopped breathing and had to be intubated.
LRMC staff also discovered that Gant was malnourished and dehydrated. On
October 24, 2013, Gant coded and had to be resuscitated. She was unable to
receive and/or communicate information or consent to treatment. Due to LRMC’s
inability to keep an intravenous line in place for delivery of necessary antibiotics,
6
“Agency-Directed” does not mean DPW-directed, but rather independent in-home care
agency-directed. Family members may qualify to participate in a recipient’s care under the
Agency-Directed Model. See R.R. at 80a-81a; see also DPW Br. at 4
7
See Section 103 of the Act (service plan defined). 35 P.S. § 10210.103.
If DPW determines that a recipient is not receiving sufficient care under the Consumer-
Directed Model, it may switch the recipient to an Agency-Directed Model to ensure that proper
in-home care is provided by skilled personnel. See R.R. at 66a.
8
The exact date is not evident from this record. DPW’s October 18, 2013 records reflect
that she was admitted at least as of that date. See Supplemental Reproduced Record (S.R.R.) at
28b.
3
LRMC staff recommended that Gant be transferred to Hershey Medical Center.9
Mother purportedly refused to permit the transfer. Based upon Gant’s condition
and Mother’s refusal, LRMC requested that DPW’s Under-60 Protective Services
Unit10 conduct an investigation.
On October 24, 2013, DPW sought an emergency order from the trial
court’s Orphan’s Court Division (Orphan’s Court) at Docket No. 2377 of 2013,
seeking DPW agent Denise Getgen’s (Getgen)11 appointment as Gant’s emergency
guardian “in order to insure placement and admission to Hershey Medical Center
and to consent to all necessary medical interventions on [Gant’s] behalf . . . .”
Reproduced Record (R.R.) at 18a. DPW’s Petition for Adjudication of Incapacity
and for the Appointment of a Plenary Guardian of the Person and of the Estate
(Guardianship Petition) reflected:
3. [DPW’s] [U]nder[-]60 [P]rotective [S]ervice [U]nit[]
received a report of need on or around October 24, 2013
requesting an investigation of the care and services
provided to [Gant] at the time of her admission to
[LRMC]. Despite receiving waiver services through
[DPW,] [Gant] was in deplorable physical condition.
4. Upon admission, it was observed [Gant] had multiple
stage 4 skin wounds, had a severe infection of the blood,
9
Because of Gant’s condition, her medications had to be delivered directly into her
bones, rather than into her veins.
10
DPW’s Under-60 Protective Services Unit provides protective services for adults aged
18 to 59 in accordance with the Act. See R.R. at 64a; see also 35 P.S. § 10210.103. “Protective
services” are defined in Section 103 of the Act as “[t]hose activities, resources and supports
provided to adults under this [A]ct to detect, prevent, reduce or eliminate abuse, neglect,
exploitation and abandonment.” 35 P.S. § 10210.103.
11
Getgen is the Chief of the Commonwealth Department of Aging’s Consumer
Protection/Protection Services Division. However, she became a DPW agent under a
memorandum of understanding between DPW and the Department of Aging, and has been
assisting DPW with its implementation of the Act. See R.R. at 64a.
4
was severely dehydrated and malnourished and had a
leaking feeding tube in her abdomen. . . .
5. Despite there being no cost due to insurance coverage,
[Gant]’s mother and caregiver would not permit
physician[-]ordered nursing visits in the home. [Gant]
requires a skilled level of care and is unable to perform
any activities of daily living and instrumental activities of
daily living.
6. [Gant] has repeatedly been hospitalized in February
2011, September 2012, and November 2012, at Lancaster
General Hospital for infection and dehydration.
7. [Gant] suffers from severe sickle cell anemia, seizure
disorder, contractures, multiple decubitus ulcers, chronic
and extreme physical pain that is currently being
managed with narcotic medications and receives nutrition
through a feeding tube. . . . [Getgen] will testify
concerning [Gant]’s medical conditions and lack of
capacity at this time. [Gant] is unable to communicate
or process information at this time.
....
9. . . . [O]n October 24, 2013, the family was informed
[LRMC was] unable to deliver pain medication through
veins due to the severity of her sickle cell anemia. In
fact, pain medication had to be administrated through
[Gant]’s bones. All professionals involved in this
matter . . . believe [Gant] must be transported, on an
emergency basis, to Hershey Medical Center, [which
is] better able to care for [Gant]’s extensive needs and
pain management. [Gant]’s caregivers and parents
refuse to permit this to occur[,] indicating no one
understands the situation. [Gant]’s mother offered that
all that needed to be done was to flush pain medications
into the feeding tube, which is not an option. [Gant]’s
pain is excruciating, her wounds are significant and she
will potentially die[] if the appropriate treatment is
not emergently administered.
5
10. [DPW] believes that [Gant] is at risk and will suffer
irreparable harm as a result of her stage 4 ulcers, severe
infection and no intravenous access. Any one of these
issues could lead to her death. [Gant] needs immediate
placement in a medical center equipped to deal with her
significant medical issues in order to sustain her life.
11. [Getgen], as agent for [DPW] [O]ver[-]60
[P]rotective [S]ervices [U]nit, shall be appointed
temporary emergency guardian of [Gant]’s person and
estate in order to insure placement and or admission to
Hershey Medical Center and to consent to all necessary
medical interventions on behalf of [Gant] who is only 28
years of age. At the time of a permanent hearing, a
guardianship agency will in all likelihood need to be
appointed.
WHEREFORE[, DPW] respectfully requests this Court
to direct a citation to [Gant], as to why she should not be
adjudicated an incapacitated person and an emergency
and plenary guardian of her person and estate be
appointed.
R.R. at 17a-19a (emphasis added). Appended to the Guardianship Petition were
photographs of Gant and her wounds, and copies of Gant’s Lancaster General
Hospital records. See R.R. at 17a, 20a-28a. Based upon her investigation, Getgen
verified that the statements contained in the Guardianship Petition were true and
correct to the best of her knowledge. See R.R. at 29a.
By October 26, 2013 order, the Orphan’s Court appointed Linda
Timberlake, Esquire as Gant’s counsel, scheduled an emergency hearing for later
that day and a permanent hearing for October 28, 2013. See R.R. at 11a. An
6
emergency hearing was held12 and, by October 26, 2013 order, Getgen was
appointed Gant’s temporary emergency guardian. See R.R. at 44a. Gant was
transferred to Hershey Medical Center that day. The Guardianship Petition was
filed with the Orphan’s Court on October 29, 2013. On November 1, 2013, the
Orphan’s Court issued a Preliminary Decree scheduling the Guardianship Petition
hearing for December 4, 2013, which was later continued and, ultimately,
cancelled.13 See R.R. at 9a-10a, 13a-15a.
On November 8, 2013, Gant was transferred from Hershey Medical
Center to Select Specialty Hospital in Harrisburg for rehabilitation. On November
21, 2013, Robert Howse, M.D. evaluated Gant’s capacity. He concluded that, with
the exception of Mother’s and Father’s difficulty maintaining relationships with
doctors or institutions sufficient to provide Gant stable and reliable access to
medically-necessary opioids and the withdrawal that occurs as a result, Gant is
completely capable of making her own choices regarding her care and has not been
the victim of physical abuse or neglect.
By December 11, 2013 letter, DPW terminated Gant’s Waiver
Program services.14 See R.R. at 119a. Also on December 11, 2013, DPW filed the
12
The trial court’s opinion reflects: “There is no transcript of this hearing. It is this
Court’s understanding that it was held without a Court Reporter being present.” Trial Court Op.
at 3.
13
The Petition reflects that the December 4, 2013 guardianship hearing was continued.
See R.R. at 4a. The trial court’s opinion states that the guardianship proceeding was cancelled,
and that DPW filed a motion to withdraw the temporary emergency guardianship on December
20, 2013. See Trial Court Op. at 4. At the February 27, 2014 hearing, DPW’s counsel
acknowledged that since Gant’s capacity was redeemed after her hospitalization, the
Guardianship Petition was no longer before the trial court. See R.R. at 64a.
14
The notice was not made part of the record before this Court. DPW’s counsel stated at
the June 16, 2014 hearing that DPW did not provide Waiver Program services in Gant’s home
after December 20, 2013, when Gant appealed her Waiver Program termination to DPW’s
7
subject Petition seeking an order “permitting [DPW] to continue to direct [Gant’s]
health care pending a hearing,”15 because “[w]ithout the involvement of the [trial
c]ourt, under the [Act’s] emergency intervention procedures, [Gant] will return
home and not have the skilled care she needs and this time she may not survive.”
R.R. at 8a. By December 13, 2013 order, the trial court authorized Getgen “to
consent to medical treatment and selection of treatment and care providers for
[Gant], to insure she receives proper medical treatment, pending further [o]rder of
th[e] Court.” R.R. at 45a. On January 31, 2014, the trial court scheduled a hearing
on the Petition and appointed Patricia L. Dunlevy Williams (Dunlevy Williams),
Esquire as Gant’s counsel. Due to her significant improvement, Gant was released
from Select Specialty Hospital in February 2014.16
A hearing was held on February 27, 2014, at which Getgen, Bayada
Home Care nurse Montsho Garman (Garman), and DPW’s Office of Long-Term
Bureau of Hearings and Appeals (BHA). See R.R. at 66a, 119a; see also Trial Court Op. at 4.
The trial court stated: “The record does not reflect the status of the administrative appeal
regarding [DPW’s] termination of Waiver Services.” Trial Court Op. at 4 n.4. DPW was
nevertheless still involved in Gant’s medical care. Getgen explained:
When an appeal is filed, what we sort of agree to, the [f]ederal
[g]overnment, [sic] is that we would provide some level of service
while that appeal is pending. So, typically, the person gets either
the level of service that they were getting; although, it might not be
the same model of service needed. . . . We had a meeting [February
26, 2014] about attempting to put in Agency[-Directed] Model
services.
R.R. at 66a.
15
Although not specified in the Petition, DPW contends that its purpose was to enjoin
Mother’s interference with Gant’s services pursuant to Section 304(c) of the Act. See R.R. at
119a-123a. DPW’s argument is primarily in support of an injunction, even though it did not
expressly seek an injunction, or address the legal standard for an injunction. See DPW Br. at 2,
9.
16
The exact date is not evident from the record.
8
Living director Virginia Rogers (Rogers) testified for DPW. Getgen reported that
she observed Gant in critical condition at LRMC, was “pretty hands-on” regarding
her medical care, and had significant interaction with Gant’s medical care
providers at LRMC, Hershey Medical Center and Select Specialty Hospital. R.R.
at 65a. She explained that the LRMC doctors presented her with two options when
they could not gain intravenous access – do nothing and provide Gant hospice care,
or treat her infection aggressively at Hershey Medical Center. Since she
understood that Hershey Medical Center was Gant’s best option, she authorized the
transfer. Getgen described:
[Gant] was not receiving adequate care and services . . .
to make sure her nutrition was maintained, make sure
that she did not develop or minimize the risk of
developing pressure wounds or open sores, have things
like medication . . . delivered properly, those kinds of
things. I know that there were issues with all of that.
R.R. at 65a. Getgen declared that she discussed her decision-making with Gant
when Gant was able to communicate, but when Gant declined certain treatment
that physicians deemed necessary, Getgen nevertheless authorized it. She
explained that DPW sought “involuntary intervention because the refusals and the
care and services that were not being provided really did put [Gant] at risk of
death, serious physical injury, or serious bodily injury.” R.R. at 72a.
Getgen stated that when Gant was returned home in February 2014,
her physical condition no longer constituted an emergency; however, due to her
previous condition and her significant medications, DPW explored re-entering her
in the Waiver Program under the Agency-Directed Model to ensure that she
continued to receive proper care. Specifically, she described that DPW outfitted
Gant with a special pressure-relief mattress and other durable medical equipment,
9
retained Bayada to provide additional nursing services including repositioning, and
wound and feeding tube care, and recommended social services intervention to
ensure that Gant’s medications were obtained, stored and delivered properly.
Getgen clarified that despite taking narcotic pain medications, Gant’s
pain is constant, and to avoid it becoming more severe, Gant is medicated prior to
wound care, repositioning and therapy. Getgen reported that Gant’s parents
resisted the additional nursing services and medication dispensing devices, and
consistently failed to answer inquiries regarding Gant’s care plan. She stated that,
on February 26, 2014, Getgen, the Gants, Rogers, Garman, DPW Support
Coordination staff and Gant’s treating physician Peter A. Hurtubise, D.O.’s (Dr.
Hurtubise) nurse practitioner Polly Sue Gockley (Gockley), met to discuss Gant’s
care plan and the possibility of reinstating her to the Waiver Program under the
Agency-Directed Model. Getgen expressed that although no consensus was
reached, she was able to observe that with the DPW-ordered home nurse aides and
physician support, Gant’s condition had not deteriorated, and that she was “very
much the same as she was at Select Specialty [Hospital].” R.R. at 68a.
Getgen acknowledged that Gant was not currently in an emergency
situation, and that private in-home service agencies could effectively provide
Gant’s care. However, she testified:
I continue to be concerned that she is not getting turned
and repositioned adequately to ensure that she doesn’t
develop pressure sores, and we go backwards and the
pressure sores deteriorate again.
I continue to be concerned about the level of medication
she’s getting, and ensuring that she’s getting the right
medicine at the right time. . . .
10
I do get concerned when we don’t get responses in terms
of, how is it going in the house? Or we get a response
that’s not accurate . . . . If we can’t get a good
collaboration or cooperation, if we can’t get people in-
house consistently, if we can’t get meds being given in
the manner that they’re directed . . . to be given, those are
big concerns still.
R.R. at 68a-69a. Thus, she asserted that DPW’s oversight is necessary to be sure
that Gant’s care plan is consistently implemented. She acknowledged that DPW’s
oversight would be unnecessary if it was satisfied that Gant’s care plan was met
without resistance and that her condition did not decline. She related that the
Agency-Directed Model protects Gant in that the home health agencies would
notify DPW of abuse and/or signs of neglect. Getgen agreed that DPW could be
satisfied if Gant presented a care plan approved by the trial court; however, Gant
has never taken that step.
Garman testified that she cared for Gant three times weekly for
approximately four weeks prior to the hearing, under a care plan prepared by Dr.
Hurtubise.17 She described that Mother often interrupted her interactions with
Gant and answered for her, particularly in refusing treatment and repositioning.
She described explaining Gant’s need for repositioning not only to prevent sores
but to prevent breathing problems, and then documenting the refusals. Garman
articulated that Mother was defensive when she attempted to determine if Mother
was familiar with a particular procedure necessary for Gant’s care.
17
Garman reported that, at the February 26th meeting the evening before the hearing, Dr.
Hurtubise reduced her visit frequency to twice weekly because Gockley was going to provide
wound care one day per week.
11
Regarding Gant’s medications, Garman stated:
Medications have been an issue in this home. There have
been two times -- I introduced something called a
Mediplanner. It allows you to, me as the nurse, to come
in one time during one of my visits during the week and
pre-fill the med box for morning, noon, evening, and
nighttime with all of the meds, so that [Mother] would be
able to administer the medications at specific times.
There have been two occasions where the Mediplanner
was incorrect when I came back. One day I came back
and all of the morning and noon across the board from
Sunday to Saturday were just completely missing. And
then all the evening pills from evening to bedtime were
present.
And with the amount of narcotics and the fact she’s on
Dilantin for seizures, gabapentin for pain, these types of
medications can’t really be missed, so I was alarmed.
And when I tried to speak to [Mother] about it, she
actually ignored me during that particular visit.
The next time I visited, there was another occasion where
I noticed that the Oxycontin – there were three Oxycontin
in two of the slots in the evening, and she’s only
supposed to take two. The Dilantin was -- the bottle had
changed 200mg tablets were previously ordered and now
there were 100mg tablets in the home. She’s supposed to
get 400mg, so that changes the number of tablets that are
going to be in [the] Mediplanner. [Mother] told me that
she moved those around.
So I think that there’s a cognitive problem with her
understanding the patient’s basic medication regimen.
And that’s a safety issue that I had to report to Dr.
Hurtubise. . . . It has nothing to do with [Gant]
personally. Anytime there [are] discrepancies in the
12
Mediplanner when I come, I have to report that to the
physician.
R.R. at 76a. She described that since her goal is for the family to be independent,
she repeatedly attempted to teach Mother how to use the Mediplanner, but was met
with verbal abuse.
Garman reported that Mother’s repeated speaking for Gant was a “red
flag” that abuse may be occurring. R.R. at 77a. She acknowledged that although
Gant is not currently in an emergency situation, based upon her observations, it
would be unsafe for Gant to remain in her home with Mother as her primary
caregiver. Garman recalled that, on approximately three occasions, Mother called
and told her not to come and, on other occasions, Mother made her wait for
extended periods of time before affording her access to Gant. She also referenced
an incident on February 26th in which Mother pulled her into the bathroom, locked
the door and asked her not to testify at the February 27 th hearing. Garman declared
that neither she nor Bayada are willing to continue serving Gant under such
conditions.18
Rogers testified that although she did not meet Gant until February
26th, she was familiar with Gant’s Individual Support Plan, which a DPW SC was
assisting the Gants to execute. See Supplemental Reproduced Record (S.R.R.) at
2b-25b. She related that she was also familiar with the SC’s notes, which reflected
that there had been difficulties with the Gant family’s cooperation, and that Mother
questioned why the SC had to visit so often since “her daughter is terminally ill
and . . . her health is not going to get better and it is a waste of [their] time for SC
to bother them all of the time.” R.R. at 82a. Rogers recalled that Gant was not
18
According to the record, although Garman was eventually replaced, Bayada still
provides Gant’s care. See R.R. at 117a.
13
interested in having people she did not know provide her services, but stated that it
would be agreeable, if she got to know the people involved. See R.R. at 83a.
Based upon her interactions with the family, Rogers opined:
I believe that [Gant] is a very vulnerable person. She is
essentially in her room 24 hours a day with no access to
open the door to anybody else. Her parents are there, so I
think that there is the possibility that she may not have
the opportunity sometimes to make her own decisions.
So I think that that is one reason why she is not a good
candidate for self-direction [as required by the
Consumer-Directed Model].
R.R. at 82a. After Rogers’ testimony, the trial court continued the February 27,
2014 hearing.
The Petition hearing was scheduled to resume on March 21, 2014.
See R.R. at 47a. However, rather than conducting a hearing that day, off-the-
record settlement discussions occurred. See R.R. at 49a. After the parties failed to
reach an agreement, Father filed a Petition for Hearing Final Portion of Hearing on
April 11, 2014. Therein, Father also asked the trial court to permit Dunlevy
Williams to withdraw in lieu of private counsel Eric Schelin Rothermel’s
appearance. Additionally, Father requested the trial court to vacate Getgen’s
authority based upon the evidence presented at the February 27, 2014 hearing. See
R.R. at 48a-52a. By April 24, 2014 order, the trial court scheduled the hearing to
continue on June 16, 2014 and approved Gant’s counsel change, but did not vacate
Getgen’s authority. See R.R. at 53a.
On June 16, 2014, Gant, her parents and Dr. Hurtubise testified on
Gant’s behalf. Gant related over the telephone that because her blood cells are
sickle-shaped, they do not flow properly and the resulting lack of oxygen makes
her feel weak and causes her excruciating pain. She recalled that she has
14
experienced symptoms and been hospitalized regularly since she was two years
old. She described that she has been bed-ridden for five or six years, she takes
numerous medications through her feeding tube every two hours, she is on oxygen,
she is catheterized and uses a feeding tube and, as a result, her parents must help
her brush her teeth and bathe, etc.19 She explained that she must lie on her side
because she experiences more pain when on her back. Gant stated that her mother
feeds her, dispenses her medications, and cares for her wounds on days the nurses
are not scheduled.
Gant stated that, before her October 2013 hospitalization, Dr. Stuart
Hartman (Dr. Hartman) visited her monthly, Dr. Hurtubise visited her every two or
three months, and a nurse visited regularly to check her vital signs and care for her
wounds. Gant recalled that in the days leading up to her October 2013 LRMC
admission, her feeding tube began leaking uncontrollably which caused her skin to
soften and tear and the feeding tube to dislodge. She described that she could not
eat, she lost weight and her medications could not be regulated. She does not
recall her treatment at LRMC, but recalls being intubated when she arrived at
Hershey Medical Center, and the staff drilling a hole into her knee to administer
antibiotics.
Gant recounted an incident at Select Specialty Hospital when she was
experiencing back pain and Getgen informed her that she was to undergo a CAT
scan. She asked Getgen to delay the test because she was in such pain that her legs
were contracting. She reported that Getgen nevertheless authorized the test, and
19
Gant reported that in addition to her symptoms, she has no feeling in her left foot, and
multiple infarcts all over her body. Infarcts result from the abnormal blood cells coagulating and
cutting off blood and oxygen supplies to the bones, causing severe pain. See R.R. at 97a.
15
when the staff pushed her contracted legs to flatten them out, she was screaming in
pain and crying.20 She also recalled Getgen reducing her family’s visiting hours,
but bargaining that if she sat in a chair, her visiting hours would be restored and/or
the Waiver Program issues would be dropped. She recollected Getgen telling her
that she did not want to be Gant’s guardian, and she only visited Gant once since
she returned home.
Gant described that since her February 2014 return home, she receives
nursing care three times per week, and Dr. Hurtubise visits her. She expressed:
I want to be able to make decisions for me on my own. I
don’t need a guardian. I’m 29 years old. I don’t need
anybody to make decisions for me, medically or
anything.
And on top of that, I want to be able to have whoever I
want to hire. I feel like it should be my choice who I
want to come in, and I want my [M]other to be my care
giver. And I don’t understand why it has to be that way
because we’ve done nothing wrong.
R.R. at 95a.
Dr. Hurtubise testified that he has been Gant’s doctor since February
2013. He explained that while Dr. Hartman managed Gant’s pain, he cares for her
other medical issues. He described that he visits Gant at home approximately
every three to six months as needed, and that his nurse practitioner Gockley visits
weekly to assist with her wound care. Dr. Hurtubise articulated that Gant’s
medical condition and her thin body place her at an extremely high risk for
bedsores which, even under the best circumstances, would be inevitable for her.
20
Gant claims that her left leg has been swollen ever since.
16
He also expressed that Gant’s condition and resulting lower extremity contractures
make moving her extremely painful.
Dr. Hurtubise recounted from his two to three home visits before
Gant’s October 2013 hospitalization that although Gant’s bed needed to be
updated, her “care seemed to be very reasonable considering her limitations from
her parents.” R.R. at 98a. He recalled Mother being physically and emotionally
attentive to Gant, and diligent with respect to Gant’s hygiene and wound care. He
asserted that Gant’s parents never refused his care advice.
Dr. Hurtubise explained that he now manages Gant’s medications and
has seen Gant on five occasions since her release, and Gockley visits her every one
to two weeks. He described that they oversee her wound care and are working on
optimizing her nutrition. He observed Mother reposition Gant, and is aware that
Mother provides her medications, maintains her nutrition and contacts him if she
has questions. He concluded based upon his observations that Mother “is doing an
excellent job.” R.R. at 100a. He specifically testified:
I can’t imagine anyone rendering any better care, whether
it be a trained nurse or otherwise.
We work really hard with [Mother] to help educate her as
to what things she needs to be aware of. She’s been very
receptive and actually very intelligent and picks these
suggestions up very quickly.
So I personally think that the care has been very, very
good. And [Gant] . . . has clearly stated that she feels
that she’s done a good job. I believe that.
R.R. at 100a-101a. However, Dr. Hurtubise described that the differences of
opinion between Getgen and Mother regarding Gant’s care has created “a very
toxic environment for [Mother] who is, I think, truly interested in [Gant’s] best
17
interest but felt that there was often an accusatory or a damning kind of tone to
the[ir] interactions.” R.R. at 100a. He also disagreed with Garman’s concerns
regarding Mother’s care for Gant. In particular, despite not being aware of claims
that Gant’s medications have been mismanaged, he clarified that since Gant’s pain
levels may not be constant, medication delivery may not be consistent. He also
stated that since Garman is no longer assigned to Gant’s case, he has not received
any negative reports from Bayada.
Dr. Hurtubise related that although Gant has lived far longer than
most sickle cell patients, he suspects that she will succumb to her condition within
the next 10 years, probably due to a massive stroke or heart attack related to her
blood clotting. When asked whether there is anything other than Gant’s general
medical condition which places her at imminent risk of death or bodily injury, Dr.
Hurtubise responded:
Sure, related to her medications. . . . [Gant] is on a very
complex cocktail of medicines which carry high risk and
certainly, again, I think [Mother’s] done an incredibly
good job of making sure she gets the medications at an
appropriate time.
However, it’s still -- these are still dangerous medicines,
and they can change things . . . in a very short period of
time.
R.R. at 101a. Dr. Hurtubise’s questioning continued:
Q. And since your time of overseeing that, have there
been any specific concerns that you’ve seen with respect
to medications?
A. You know, I think with just the sheer amount of pain
medicines that she requires, it’s always a concern for me
because these are -- they have a tremendously high street
18
value and the risk would be of somebody breaking into
the house and trying to steal them.
However, the Gants have been very diligent with
maintaining oversight and awareness of where the
medicines are at any given time. We did request at one
point with the home health agency and with the POA that
a lockbox be given to the patient. Even that wouldn’t
necessarily deter a theft. You know, it might prevent
somebody else from getting into the medicines who
doesn’t have access.
I can say they’ve done a great job with the medication
that I do not have any concerns.
R.R. at 101a-102a. He informed the trial court that he would like to re-hospitalize
Gant for insertion of a subclavian line or port for pain management in order to
reduce the amount of high-level medicines Gant must control at home.
Dr. Hurtubise pronounced that since Gant is cognitively able to make
decisions regarding her care, “whatever [she] decides for herself is what we should
stick with. . . . She’s very comfortable in her home environment as expressed
several times[;] she feels that the care that’s rendered by her family is the best care
that she could get.” R.R. at 102a. Regarding repositioning, he stated that Gant’s
pain will dictate its risk versus benefit and that, as long as Gant is of sound mind,
she can refuse to be moved even if it is not in her best interests. Dr. Hurtubise
related that the services that his office, Bayada and Mother are providing are
proper for Gant’s health and welfare. He described that Gant’s condition is
stabilized, and that “she’s as good as she’s going to be for a while. . . . [I]t will
only be a matter of time before she does run into trouble again.” R.R. at 109a.
Mother testified that Gant enrolled in DPW’s Waiver Program
approximately 2½ years before the hearing, under which she and Charlotte Toney
19
were approved as Gant’s paid caregivers. She described that, under the Waiver
Program, SC Monica Lugo would visit two or three times annually to ensure that
Gant was being cared for properly. She stated that she feeds and cleans Gant,
repositions her three or four times daily and dispenses her medications.
Mother recounted that Gant’s feeding tube has leaked since 2010, but
got worse in the fall of 2013. She explained that when gauze packing did not
work, Gant was no longer effectively being fed, hydrated or medicated, thus
resulting in her October 2013 hospitalization. She stated that while they awaited
the arrival of a new feeding tube part, Gant’s condition worsened.21 She recalled
that when Gant became abnormally dehydrated, she called an ambulance. Mother
specifically disputed that Gant had 11 sores when she was admitted to LRMC,
since the staff counted the holes drilled into her bones for peripherally-inserted
central catheter (PICC) lines.22 She testified that in the days leading up to the
DPW report, LRMC staff had the same feeding tube difficulties, whereby liquids
escaped and pooled around Gant’s legs causing additional pressure wounds.
Although she acknowledged that LRMC experienced difficulties inserting a PICC
line, she did not believe that Gant was transferred to Hershey Medical Center for
that reason, but rather on Getgen’s order.
Mother declared that, although there have been several people
involved with Gant’s care since she was released from the hospital in February
2014, she still provides the same care she always has. She related feeling
21
Notably, the August 12, 2013 SC notes reflect that although Gant’s bed was padded,
Mother and Father had requested pressure pads to make Gant more comfortable. See S.R.R. at
29b.
22
PICC lines are used to deliver antibiotics, nutritional supplements and fluids into the
body.
20
uncomfortable when Garman came to care for Gant, since it did not appear that
Garman knew how to provide wound care until Gockley showed her, and because
she seemed to be investigating rather than providing medical care. Mother stated
that Garman was rough with Gant and, when she asked Garman to take her time,
Garman responded that she had only 45 minutes for each patient. She related that
Gant eventually asked that Garman be replaced. Mother explained that after the
February 26th meeting, she invited Garman into the bathroom to be sure there were
no hard feelings about her being replaced. She also disputed that Garman raised
medication issues with her.
Mother described that when she met Getgen at LRMC on October 24,
2013, Getgen discussed services necessary to help Gant at home. Other than
Getgen’s order to move Gant to Hershey Medical Center, she had little interaction
with Getgen. Mother stated that Getgen never visited Gant after she returned
home, but Mother and Rogers attended the February 26th meeting to discuss Gant’s
care plan. She testified that although she was present when Gant made her medical
service decisions, she did not interfere with those decisions.
Father testified that he and Mother were Gant’s primary caregivers
since birth, and they continued to care for her under the Waiver Program until a
guardian was appointed. He recalled that once Gant qualified for the Waiver
Program, SCs would visit and assess Gant every six months. Otherwise, his
interactions on Gant’s behalf were as her POA. He claimed that he has never
interfered with Gant’s ability to obtain care and, in fact, returned every one of
Getgen’s calls to be sure he knew what her next move would be. He described that
when Getgen asserted they did not return telephone calls was at the time when
Gant was in the hospital, and the time when no one answered the door for Garman
21
was because she was at the wrong address. He also recalled Garman’s demeanor
changing after Gant complained that Garman was rough with her.
Getgen testified for DPW in rebuttal that Gant’s testimony
notwithstanding, she did not order Gant to undergo the painful CAT scan, but
explained to Gant why the physician ordered it. She also explained that she did not
reduce the family’s visiting hours, but rather Hershey Medical Center imposed the
restrictions due to the family’s abuse thereof. Getgen described the family’s
treatment of her as aggressive, threatening, difficult and accusatory, and that such
behavior upset Gant who then also became aggressive.23 She explained that
although her sickle cell patients are often hospitalized and have pressure wounds,
she has never witnessed the type of deterioration Gant displayed in October 2013.
Getgen related that she was particularly concerned when Mother told her she did
not reposition Gant when it was too painful for her. Getgen witnessed Mother
refuse medical treatment on Gant’s behalf, and there is history of similar behavior
in DPW’s records as far back as May 2013. See S.R.R. at 26b-34b. Getgen
related:
Under protective service law, we offer a care plan to
mitigate or eliminate risk and so part of that would be to
look at what care is provided and to try to develop a plan
that would adequately meet their needs. If . . . you’re
unable under the waiver to ensure someone’s health and
welfare, we can terminate the waiver. So that’s one
option.
R.R. at 132a. Based upon her investigations and observations, Getgen attributed
Gant’s lack of success in the Waiver Program to Mother’s inability to meet Gant’s
23
In light of the difficulties and Dr. Hurtubise’s oversight, Getgen specifically asked that
the trial court terminate her responsibility for Gant’s medical care decisions. See R.R. at 133a.
22
needs. Getgen concluded that even if Gant is reinstated to the Waiver Program
under the Agency-Directed Model, Mother should not be Gant’s paid caregiver.
In light of the foregoing evidence, on July 8, 2014, the trial court
granted DPW’s Petition, “find[ing] that [] Gant is a medically[-]compromised adult
in need of protective services as defined under the [Act],” and granted the
following relief:
(1) [] Gant’s autonomy with respect to medical
treatment shall be preserved.
(2) [Medical Assistance] services shall be available for
[Gant] as long as she is eligible for those services, except
for Consumer-Directed Services through the
Commonwealth’s Home and Community-Based Services
Programs. This Order should not be construed to limit
any other rights [] Gant may have under the [Medical
Assistance] Program.
(3) All prescription medications for [] Gant shall be
coordinated by [] Gant’s primary care physician.
(4) No person shall interfere with the provision of
services to [] Gant or her right to consent to the provision
of services.
(5) The Order that appoints [] Getgen as agent with the
authority to select and to consent to medical treatment,
which is dated December 13, 2013, is vacated.
R.R. at 54a-55a. Gant appealed to this Court.24
24
On August 5, 2014, Gant filed her appeal with the Superior Court. On September 17,
2014, the Superior Court transferred the appeal to this Court.
An intermediate appellate court shall “review an order disposing of a petition for special
relief under an abuse of discretion standard of review.” Kulp v. Kulp, 920 A.2d 867, 870 (Pa.
Super. 2007). The Act appears to have been modeled after the Older Adults Protective Services
Act, Act of July 1, 1988, P.L. 381, as amended, 35 P.S. §§ 10225.101–10225.5102, applicable to
persons age 60 and over. Our research has disclosed only one case involving this Court’s
standard of review exclusively under the Older Adults Protective Services Act. Therein, this
Court applied an abuse of discretion standard. See In the Interest of M.B., 686 A.2d 877 (Pa.
Cmwlth. 1996). “[T]his Court has found an abuse of discretion where a [fact finder] ignored
‘substantial, uncontradicted evidence in the record, and the strong inferences drawn from it . . .
23
1. Adult in Need of Protective Services
Gant argues that the trial court erred in finding that she was an adult in
need of protective services under the Act. Specifically, Gant contends that clear
and convincing evidence did not support the trial court’s conclusion that she
required involuntary protective services.
The General Assembly declared the Commonwealth’s policy in
Section 102 of the Act:
(1) Adults who lack the capacity to protect themselves
and are at imminent risk of abuse, neglect, exploitation or
abandonment must have access to services necessary to
protect their health, safety and welfare.
(2) Adults have the right to make choices, subject to
the laws and regulations of this Commonwealth,
regarding their lifestyles, relationships, bodies and health,
even when those choices present risks to themselves or
their property.
(3) Adults have the right to refuse some or all
protective services.
(4) Information about protective services should be
provided in a safe place and in a safe, understandable and
responsive manner.
(5) The Commonwealth must provide for the
detection, prevention, reduction and elimination of
abuse, neglect, exploitation and abandonment and
establish a program of protective services for adults in
need of them.
.’” Philly Int’l Bar, Inc. v. Pa. Liquor Control Bd., 973 A.2d 1, 3 (Pa. Cmwlth. 2008) (quoting
Pa. Dep’t of Transp. v. Mazzarini, 919 A.2d 295, 302 (Pa. Cmwlth. 2007)).
24
(6) Adults have the right to receive services in the most
integrated settings and in the manner least restrictive of
individual liberties.
35 P.S. § 10210.102 (emphasis added).
Section 304(b)(1) of the Act, 35 P.S. § 10210.304(b)(1), specifies that
protective services shall be provided only with the adult’s consent, unless
otherwise ordered by a court or provided under Section 307 of the Act. Section
307(a)(1) of the Act, provides: “Where there is clear and convincing evidence
that, if protective services are not provided, the adult is at imminent risk of death,
serious injury[25] or serious bodily injury,[26] the agency may petition the court for
an emergency order to provide the necessary services.” 35 P.S. § 10210.307(a)(1)
(emphasis added). The clear and convincing “standard of evidence requires
evidence so ‘clear, direct, weighty, and convincing as to enable either a judge or
jury to come to a clear conviction, without hesitancy, of the truth of the precise
facts in issue.’”27 In re S.H., 96 A.3d 448, 454 n.7 (Pa. Cmwlth. 2014) (quoting
Suber v. Pa. Comm’n on Crime & Delinquency, 885 A.2d 678, 682 (Pa. Cmwlth.
2005)).
25
“Serious injury” is defined in Section 103 of the Act as “[a]n injury that: (1) causes a
person severe pain; or (2) significantly impairs a person’s physical or mental functioning, either
temporarily or permanently.” 35 P.S. § 10210.103.
26
“Serious bodily injury” is defined in Section 103 of the Act as “[i]njury that: (1) creates
a substantial risk of death; or (2) causes serious permanent disfigurement or protracted loss or
impairment of the function of a body member or organ.” 35 P.S. § 10210.103.
27
Cases involving a significant loss of freedom or livelihood generally require clear and
convincing evidence. See In the Matter of Lawrence D. Greenberg, 749 A.2d 434 (Pa. 2000)
(professional license reinstatement proceedings); In re: B., N.M., 856 A.2d 847 (Pa. Super. 2004)
and In re Interest of B.L.L., 787 A.2d 1007 (Pa. Super. 2001) (parental rights
termination/dependency proceedings); In re S.B., 777 A.2d 454 (Pa. Super. 2000) (involuntary
commitment proceedings).
25
The Act does not define “imminent risk.”28 Section 1903(a) of the
Statutory Construction Act of 1972 provides that when words in a statute are
undefined, they must be accorded “their common and approved usage[.]” 1
Pa.C.S. § 1903(a). “Where a court needs to define an undefined term, it may
consult definitions in statutes, regulations or the dictionary for guidance, although
such definitions are not controlling.” Adams Outdoor Adver., LP v. Zoning
Hearing Bd. of Smithfield Twp., 909 A.2d 469, 483 (Pa. Cmwlth. 2006). Merriam-
Webster’s Collegiate Dictionary (11th ed. 2004) defines “imminent” as “to
project, threaten, . . . : ready to take place; esp: hanging threateningly over one’s
head . . . .” Id. at 621 (emphasis added).29 “Risk” is defined as the “possibility of
loss or injury [or] PERIL[;] . . . someone or something that creates or suggests a
hazard[.]” Id. at 1076 (emphasis added).
A. October 26, 2013 Emergency Guardianship Order30
Section 304(b)(2) of the Act, 35 P.S. § 10210.304(b)(2), specifies that
nothing in the Act will prevent DPW from seeking guardianship under the Probate,
Estates and Fiduciaries Code (Code).31 Section 5511(a) of the Code authorizes the
trial court to appoint a guardian for incapacitated persons upon petition and a
28
Despite being long-established and similar in language and purpose, the Older Adults
Protective Services Act similarly fails to define “imminent risk.” See Donaldson v. Butler Cnty.,
118 A.3d 1253 (Pa. Cmwlth. 2015).
29
“Immediate,” on the other hand, is defined as “acting or being without the intervention
of another object, cause, or agency[;] . . . occurring, acting or accomplished without loss or
interval of time . . . .” Merriam-Webster’s Collegiate Dictionary at 620.
30
Although this order is not directly at issue in this case, Gant raises it in her argument
and, because the circumstances of the emergency guardianship were incorporated in the Petition
and were relied upon by the parties and the trial court, we will likewise discuss it.
31
20 Pa.C.S. §§ 5501-5555.
26
hearing and “upon the presentation of clear and convincing evidence.” 20
Pa.C.S. § 5511(a) (emphasis added). Section 5511(e) of the Code requires that, in
addition to the incapacitated person’s name, age and address, and the names and
addresses of other relevant parties, an emergency guardianship petition shall
contain
the reasons why guardianship is sought, a description of
the functional limitations and physical and mental
condition of the alleged incapacitated person, the steps
taken to find less restrictive alternatives, the specific
areas of incapacity over which it is requested that the
guardian be assigned powers . . . .
20 Pa.C.S. § 5511(e) (emphasis added). Section 5513 of the Code authorizes the
trial court to grant emergency guardianships if there is clear and convincing
evidence that “failure to make such appointment will result in irreparable harm to .
. . the alleged incapacitated person.”32 20 Pa.C.S. § 5513. Moreover,
[t]he appointment of a guardian lies within the discretion
of the trial court and will be overturned only upon an
abuse of discretion. 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
32
We acknowledge that Section 5513 of the Code under which the emergency
guardianship petition was filed requires clear and convincing evidence of “irreparable harm.” 20
Pa.C.S. § 5513. Black’s Law Dictionary defines “irreparable injury” as “[a]n injury that cannot
be adequately measured or compensated by money and is therefore often considered remediable
by injunction.” Id. at 856. Because “imminent” refers to timing, and “irreparable” is a matter of
degree, these terms are not mutually exclusive and, therefore, use of the term “irreparable” in
Section 5513 of the Code does not in any way modify the requirements under the Act.
An emergency guardianship obtained under Section 5513 of the Code is effective for up
to 72 hours. 20 Pa.C.S. § 5513. An emergency order may extend the guardianship for up to 20
days thereafter. Id. A full hearing must be conducted for an emergency guardianship to continue
after the emergency order expires. Id.
27
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 . . . v.
Borah, . . . 756 A.2d 1116, 1123 ([Pa.] 2000) (citations
and quotations omitted).
In re Duran, 769 A.2d 497, 506 (Pa. Super. 2001).
Here, based upon LRMC’s report, Getgen investigated Gant’s
circumstances at DPW’s request and deemed them sufficient to warrant emergency
intervention as of October 26, 2013. There is nothing in the Act or case law that
prohibited the trial court from making its assessment based solely on the
Guardianship Petition.33 No one disputes that when the Orphan’s Court entered its
October 26, 2013 order, Gant was incapable of making medical decisions, and that
her parents refused LRMC’s medical advice that she be immediately transferred to
Hershey Medical Center for life-saving treatment. Accordingly, on October 26,
2013, the Orphan’s Court properly determined that Gant was an adult in need of
protective services.
B. December 13, 2013 Protective Services Order
DPW had the burden of proving with clear and convincing evidence
that, without protective services, Gant was “at imminent risk of death, serious
injury or serious bodily injury[.]” 35 P.S. § 10210.307(a)(1). “Protective services”
are defined in Section 103 of the Act as “[t]hose activities, resources and supports
33
[T]he judge was required to make his decision in an extremely
short period of time. Under the circumstances the failure to
conduct a fuller hearing and/or to elicit testimony from the
witnesses . . . cannot be a basis for a finding of error. Under the
statute, the judge was required to hold a hearing consistent with
what was feasible in the circumstances, and we believe he fulfilled
that obligation.
In re Estate of Dorone, 534 A.2d 452, 455 (Pa. 1987) (quotation marks and footnote omitted).
28
provided to adults under this [A]ct to detect, prevent, reduce or eliminate abuse,
neglect, exploitation and abandonment.”34 35 P.S. § 10210.103. “Adult” is
defined as “[a] resident of this Commonwealth between 18 and 59 years of age
who has a physical or mental impairment that substantially limits one or more
major life activities.” Id. “Adult in need of protective services[]” is defined as
“[a]n adult who needs the assistance of another person to obtain protective
services in order to prevent imminent risk to person or property.” Id. (emphasis
added).
Gant’s capacity had changed by the time DPW filed the Petition. At
that time, Gant had been in rehabilitation at Select Specialty Hospital for nearly a
month. The Guardianship Petition, the Orphan’s Court’s October 26, 2013 order
and Dr. Howse’s report were appended to the Petition. The Petition which
contained the following averments:
8. [Gant’s] parents continued to be challenging
throughout [Gant’s] hospitalizations, despite the fact, due
to the medical decisions made by [] Getgen, [Gant] has
stabilized and has regained capacity.
9. [Gant’s] capacity was evaluated by Dr. [] Howse on
November 21, 2013 and the results were published to
[DPW] and Counsel on December 5, 2013 and then
forwarded to Counsel for [Gant] and Counsel for the
Gant family. . . .
10. Of grave concern to [DPW is] the quality of care
administered to [Gant], in the home setting, which almost
cost her life. [Gant’s] parents are not providing the level
and quality of care required to sustain the waiver
program in the home. [Gant’s] parents have a history of
34
The Act’s definition is identical to the “protective services” definition in Section 103 of
the Older Adults Protective Services Act. See 35 P.S. § 10225.103.
29
rejecting the services provided in their home and
rejecting the medical professionals that make
recommendations to them. A continuation of this
behavior will result in the removal of waiver services.
11. [Gant] has had a history of hospital admissions as a
result of multiple stage four skin wounds, severe
infection of the blood, severe dehydration and
malnutrition. [Gant’s] parents tend to blame medical
personnel for physical problems suffered by [Gant].
12. [Gant] suffers from severe sickle cell anemia, seizure
disorder, contractures, multiple decubitus ulcers, chronic
and extreme physical pain that is currently being
managed with narcotic medications and receives nutrition
through a feeding tube.
13. Pursuant to . . . Section 307(a)(1) [of the Act,]
Section 307 - Involuntary intervention by emergency
court order, a Court can enter an emergency order to
provide necessary services where there is clear and
convincing evidence that, if protective services are not
provided, the adult is at imminent risk of death,
serious injury or serious bodily injury.
14. Because [Gant] has capacity, has made it clear, to []
Getgen and [DPW], she intends to return to the home
where she has chronically received substandard care, and
will not agree to the level of services required to sustain
her life, it is essential that the Court permit [DPW] to
continue managing [Gant’s] health care.
15. Because [Gant] has capacity, the guardianship action
must be withdrawn as [DPW] cannot sustain [its] burden
to establish the requisite lack of capacity to have a
plenary guardian appointed for [Gant].
16. Medical records for [Gant] document the poor
condition she is in at the time of each hospital admission,
including stage four sores that cause pain. Pain causes
the need for pain medication. Pain medication causes the
30
need for monitoring and a way to administer pain
medication which cannot be done through traditional
methods due to the severity of [Gant’s] current disease
process. The record is replete with examples of [Gant’s]
mother and paid caregiver not performing in a manner
that is required to sustain [Gant’s] life and the funding of
the waiver program. It is well documented, in every
hospital setting, [Gant’s] mother and often her father
interfere with treatment.
17. Without the involvement of the Court, under the .
. . Act[’s] emergency intervention procedures, [Gant]
will return home and not have the skilled care she
needs and this time she may not survive. The Act
does not require a lack of capacity for the Court to
enter an emergency order for services, but only
requires a showing, by clear and convincing evidence,
but for the involvement of the Court, [Gant] is at
imminent risk of death, serious injury or serious
bodily injury.
R.R. at 6a-8a (emphasis added).
Dr. Howse’s report stated, in relevant part:
[Gant’s] thinking about her disease, treatments and
prognosis was about as medically accurate as most lay
persons understanding of their acute and chronic
illnesses. Her goals are for comfort care, punctuated with
all the acute care necessary to return to living at home,
but not enough to be more functional if it costs more pain
or work. Her expectation of personal recovery is low,
even though her dream of it is high. Her personal agency
for achieving any further function is low, and cannot be
improved.
She has chosen her present course of action. Her
reasoning about it is consistent and intact, repetitive and
historic. Understanding of her medical situation is intact,
based on fact and intact memory with logical
relationships of facts and cause and effect. She is not
31
entirely trusting of doctors, and less trusting when her
personal goals are not achieved by their proposed
regimens. The insistence of her medical professionals
that she improve her function and cooperate with
rehabilitative care will always be met with resistance.
She has no interest in this. Her appreciation of her
ongoing morbidity does not match the appreciation of her
physicians, but nonetheless is consistent, repetitive,
goal[-]oriented and based in fact as she understands it.
She wants to return to her home for her family to care for
her, and have whatever acute interventions she must as
time goes forward. She is not interested in hospice[-
]based care for this very reason, even though this would
be the best way for her to have the right dose of opioid
medication supplied without interruption.
[] Gant can direct her medical decision[-]making. She
can choose between disparate potential courses of action.
She can understand her medical diagnoses and treatment
options. She can reliably participate in informed consent
for medical procedures and decision[-]making. She can
appreciate the consequences of these diagnoses and
treatments or their refusal. She can demonstrate intact
reasoning with which to apply her long[-]term personal
goals and values to these choices. She should have a
power of attorney for these decisions because of her
physical debility and her expected ongoing episodes of
acute illness which are likely to cause temporary
decision[-]making incapacity.
R.R. at 33a-34a.
The Petition and Dr. Howse’s report put the trial court on notice that
Gant had regained her capacity and was again fully capable of making her medical
decisions. The Petition did not allege that Gant was in imminent risk of serious
injury or death while she was indefinitely hospitalized, but rather speculated that if
and when she returned home without skilled care, she may face such risk. See
Petition ¶ 17 and Getgen’s testimony at R.R. at 68a-69a. Speculation is not
32
evidence that is “so ‘direct, weighty, and convincing as to enable . . . a judge . . . to
come to a clear conviction, without hesitancy, of the truth of the precise facts in
issue.’” S.H., 96 A.3d at 454 n.7 (quoting Suber, 885 A.2d at 682). Thus, when
the trial court issued its December 13, 2013 order pursuant to Section 307(a) of the
Act, there was not clear and convincing evidence that without protective services
Gant was “at imminent risk of death, serious injury or serious bodily injury.” 35
P.S. § 10210.307(a)(1). Accordingly, we hold that Gant was not an adult in need
of protective services on December 13, 2013, when the trial court authorized
Getgen to make Gant’s medical decisions pending a hearing on the Petition.
C. July 8, 2014 Protective Services Order
Thereafter, at the hearings, DPW acknowledged that it had withdrawn
the Guardianship Petition because Gant regained her capacity during her
hospitalization.35 However, the fact that Gant regained her capacity does not alter
the possibility that Gant may be an adult in need of protective services. Although
Section 102(1) of the Act expressly requires that adults who are incapacitated and
are at imminent risk “must have access to services necessary to protect their
health, safety and welfare[,]” there is no requirement in the Act that incapacity
precede protective services. 35 P.S. § 10210.102(1) (emphasis added). Further,
neither the definitions of “adult,” “adult in need of protective services,” and
“protective services,” nor applicable Sections 102(2) (relating to legislative
purpose and choice), 304 (relating to provision of services), 307 (relating to
involuntary intervention), 308 (relating to rights of protective services clients) of
35
Accordingly, Getgen also asked the trial court to remove her as Gant’s Act 70 decision-
maker.
33
the Act require that the adult be incapacitated. In fact, Section 304(b) of the Act,
35 P.S. § 10210.304(b), specifies that protective services shall be provided only
with the adult’s consent, unless otherwise ordered by a court or provided under
Section 307 of the Act. Therefore, it is clear that the General Assembly intended
for protective services to be available even to capable persons.
DPW bore the burden of proving with clear and convincing evidence
that, without protective services, Gant was “at imminent risk of death, serious
injury or serious bodily injury.” 35 P.S. § 10210.307(a)(1). DPW witnesses
confirmed that Waiver Services were terminated on or about December 20, 2013,
and that Gant’s condition had not deteriorated since her return home. We
acknowledge that at that time and during the pendency of the hearings, her care
was being closely overseen by Getgen, Bayada nurse’s aides, nurses and her
physician and, therefore, the care she was receiving did not place her at any greater
risk than her terminal condition itself. We also recognize that Gant’s “goals are for
comfort care, punctuated with all the acute care necessary to return to living at
home, but not enough to be more functional if it costs more pain or work.” R.R. at
33a. Gant has further made it clear that she would choose Mother’s care over that
provided by anyone else, even though that decision may have led to her October
2013 hospitalization.
However, in addition to Section 102 of the Act, in Section 401(a) of
the Public Welfare Code, which was intended to guide DPW’s actions, the General
Assembly declared that its intent is “to promote the self-sufficiency of all the
people of the Commonwealth.” 62 P.S. § 401(a). Moreover,
[t]he right to refuse medical treatment is deeply rooted in
our common law. This right to bodily integrity was
recognized by the United States Supreme Court over a
century ago when it proclaimed ‘no right is held more
34
sacred, or is more carefully guarded, by the common law,
than the right of every individual to the possession and
control of his own person. . . .’ Union Pac[]. R[y.] Co. v.
Botsford, 141 U.S. 250, 251 . . . (1891).
Duran, 769 A.2d at 503.36 Our Supreme Court held:
This right, however, is not absolute. The right of the
patient to abstain from medical treatment must be
balanced against interests of the state. The four state
interests most commonly recognized by the courts are: 1)
protection of third parties; 2) prevention of suicide; 3)
protection of the ethical integrity of the medical
community; and 4) preservation of life.
In re Fiori, 673 A.2d 905, 910 (Pa. 1996).37 The Fiori Court stated: “Of these four
interests, [the state’s interest in preserving life] is the most significant. It
36
Although Duran is distinguishable from the instant case, the court’s explanation
regarding the state’s interests, and the Commonwealth citizen’s right to decline medical care are
nevertheless applicable.
37
The state’s primary focus in protecting third parties is on whether the individual has
dependents and, since Gant has none, that state interest is not applicable here. See Fiori.
Further, because there are no claims implicating the Commonwealth’s interest in compromise of
the medical community’s ethical integrity, those interests are not applicable in this case. Id.
The Pennsylvania Superior Court explained:
When evaluating the state’s interest in protecting third parties, ‘the
primary focus is on whether the patient has dependents who would
be left emotionally and financially bereft were the patient to refuse
medical treatment.’ Fiori, [673 A.2d] at 910. When evaluating the
state’s interest in protecting the ethical integrity of the medical
profession, courts should recognize that it is well within the
parameters of medical ethics to abide by a patient’s direction to
abstain from treatment under certain circumstances. Wons [v. Pub.
Health Trust of Dade Cnty., 500 So.2d 679,] 686 [(Fla. App. 3
Dist. 1987)]. ‘Medical ethics do not require medical intervention
in disease at all costs.’ [In the Matter of] Conroy, [486 A.2d
1209,] 1224 [(N.J. 1985)]. ‘It is not necessary to deny a right of
self-determination to a patient in order to recognize the interests of
doctors, hospitals, and medical personnel in attendance on the
35
encompasses the separate, but related, concerns of preserving the life of the
particular individual and also safeguarding the sanctity of all life.” Id. at 910
(citations omitted).38 The Pennsylvania Superior Court held:
When examining the state’s interest in preserving the
lives of its citizens, an important distinction must be
drawn between protecting the state’s citizens from
injuries by a third party and protecting citizens from
themselves. See Fosmire [v. Nicoleau, 555 N.E.2d 77,]
81 [(N.Y. 1990)]. While the state has a substantial
interest in protecting its citizens from each other, its
interest is relatively low when the acts of one
individual do not injure others or impact the public at
large. Id. ‘This is consistent with the primary function
of the state to preserve and promote liberty and the
personal autonomy of the individual.’ Id. at 82. Finally,
while the state’s interest in preventing suicide is a natural
corollary to its interest in preserving life, it is generally
considered as a distinct state interest for purposes of
balancing the state’s interests with the rights of an
individual to refuse medical treatment. See [In the
Matter of] Conroy, [486 A.2d 1209,] 1224 [(N.J. 1985)].
Nevertheless,
declining life-sustaining medical treatment may
not properly be viewed as an attempt to commit
suicide. Refusing medical intervention merely
allows the disease to take its natural course; if
patient.’ Superintendent of Belchertown State Sch[.] v. Saikewicz,
373 Mass. 728, 370 N.E.2d 417, 426–427 (1977). ‘Indeed, if the
patient’s right to informed consent is to have any meaning at
all, it must be accorded respect even when it conflicts with the
advice of the doctor or the values of the medical profession as a
whole.’ Conroy, [486 A.2d] at 1225.
Duran, 769 A.2d at 503-04 (emphasis added).
38
The Fiori Court concluded that even “a [persistent vegetative state (PVS)] patient’s
right to self-determination outweighs any interests the state may have in maintaining life[-]
sustaining treatment for the patient[.]” Fiori, 673 A.2d at 910.
36
death were eventually to occur, it would be the
result, primarily, of the underlying disease, and
not the result of a self-inflicted injury. In
addition, people who refuse life sustaining
medical treatment may not harbor a specific
intent to die, rather, they may fervently wish
to live, but to do so free from unwanted
medical technology[.]
Id. (internal citations omitted). “On balance, the right
to self-determination ordinarily outweighs any
countervailing state interests, and competent persons
generally are permitted to refuse medical treatment,
even at the risk of death.” Id. at 1225.
Duran, 769 A.2d at 504 (emphasis added).
No one disputes that Gant has a debilitating, terminal illness that
places her in perpetual peril of malnourishment, dehydration and severe pressure
wounds, resulting in her need for medical assistance and heavy narcotics. All
parties agree that even if Gant is monitored by DPW and receives the best medical
care available, there is no guarantee that she will not again be hospitalized near
death.39 The parties also agree that institutionalization is not in Gant’s best
interests and, for various reasons, in-home care is best for her.
The record further reflects that although Mother may occasionally
attempt to direct Gant’s care, it is only with Gant’s best interests at heart. We are
not convinced that Mother interferes with Gant’s care, but rather expresses
differences of opinion. With the exception of Mother’s choice not to have Gant
transferred to Hershey Medical Center in October 2013, the circumstances of
which are not clear here, there is nothing in this record proving that Gant’s choice
of her Mother’s care is harmful, or not in Gant’s best interests. Mother’s
39
At argument, both counsel confirmed that Gant has been hospitalized several times
since the trial court’s order was issued.
37
interactions with Gant’s care providers appear to have been to reinforce Gant’s
wishes, and to be sure that Gant’s needs were handled with the same care Mother
would provide. Moreover, several months before Gant’s October 2013
hospitalization for infection and severe pressure wounds, Mother and Father had
requested pads for her bed to prevent such wounds and make Gant more
comfortable. See S.R.R. at 29b. DPW did not provide a special mattress for that
purpose until February 2014. Thus, even with DPW’s oversight, Gant’s physical
condition will continue to decline. Accordingly, DPW has failed to prove by clear
and convincing evidence that, without protective services, Gant was “at imminent
risk of death, serious injury or serious bodily injury.” 35 P.S. § 10210.307(a)(1).
The trial court was presented with a competent adult who desires services provided
by people who know and love her. She also wishes to determine when and under
what circumstances she will accept recommended and preventative care. This is
clearly her right.
Further, in its July 2014 order, the trial court stated: “The Court
further finds that protective services are necessary to protect and maintain [Gant’s]
fragile health, safety and welfare.” R.R. at 55a. However, “[p]rotective
services[]” are defined in Section 103 of the Act as “[t]hose activities, resources
and supports provided to adults under this [A]ct to detect, prevent, reduce or
eliminate abuse, neglect, exploitation and abandonment.” 35 P.S. § 10210.103
(emphasis added). The order did not contain a finding by the trial court that
Mother or anyone else “abuse[d], neglect[ed], exploit[ed or] abandon[ed]” Gant.
Id. Therefore, there is no basis on which the trial court could have concluded that
Gant was an adult in need of protective services.
38
In addition, with the exception of Paragraph (2), the trial court’s July
8, 2014 order preserves Gant’s autonomy regarding her medical treatment and
continues her doctor’s coordination of her medical treatment. See R.R. at 54a-55a.
The trial court’s order carefully guards Gant’s choice to remain at home and to
make her medical decisions with “only such services as are necessary to remove
the conditions creating [her] established need,” 35 P.S. § 10210.103(b), provided
“in the manner least restrictive of [her] individual liberties.” 35 P.S. §
10210.102(6). Under the circumstances, we fail to see what protective services
remain necessary.40 Without clear and convincing evidence to the contrary, we
40
DPW has not promulgated regulations under the Act. According to Section 15.91(a) of
DPW’s Regulations under the Older Adults Protective Services Act,
[p]rotective services activities include the following:
(1) Administering protective services plans.
(2) Receiving and maintaining records of reports of abuse.
(3) Conducting investigations of reported abuse.
(4) Conducting assessments and developing service plans.
(5) Petitioning the court.
(6) Providing emergency involuntary intervention.
(7) Arranging for available services needed to fulfill service
plans[.]
(8) Purchasing, on a temporary basis, . . . services determined by
a service plan to be necessary to reduce, correct or eliminate abuse,
neglect, exploitation or abandonment of an older adult when the
services are not available within the existing resources of the
agency or other appropriate provider.
6 Pa. Code § 15.91(a).
39
hold that the trial court erred by declaring Gant an adult in need of protective
services. Therefore, that portion of the trial court’s order is reversed.
2. Waiver Program Service Eligibility
Gant also argues that the trial court erred in Paragraph (2) of its order
by restricting her eligibility for DPW’s Medical Assistance benefits. “Section
403[(b)] of the Public Welfare Code, . . . 62 P.S. [§] 403(b)] requires DPW to
promulgate regulations as to eligibility for, and the nature and extent of, public
assistance. DPW having done so, its regulations have the force and effect of law.”
Brog v. Dep’t of Pub. Welfare, 401 A.2d 613, 615-16 (Pa. Cmwlth. 1979). Section
308(a)(3) of the Act directs that “[a]n appeal of a denial of services by [DPW] . . .
shall be conducted according to the provisions of the rules and regulations issued
by [DPW] under . . . the Public Welfare Code.” 35 P.S. § 10210.308(a)(3).
DPW’s Regulations permit participants released from its Waiver Program to
appeal from DPW’s action. See 55 Pa. Code § 275.1(a)(2), (4); see also Bussoletti
v. Dep’t of Pub. Welfare, 59 A.3d 682 (Pa. Cmwlth. 2012); Chambers v. Dep’t of
Pub. Welfare, 19 A.3d 1 (Pa. Cmwlth. 2011).
Arguably, if these same protective services were applicable under the Act, or if
regulations are promulgated that are in line with the above provisions, even in the absence of an
order declaring Gant in need of such services, DPW would nevertheless be obligated to Gant to
accept and investigate abuse reports, petition the court and seek emergency involuntary
intervention and provide services as necessary as listed above. See Sections 102 (stating the
Commonwealth’s policy to provide adults with access to necessary services), 103 (defining adult
in need of protective services and protective services), 302 (requiring reporting), 303 (requiring
report investigations), 304 (requiring adult consent for protective services), 307 (relating to
emergency intervention by court order) of the Act. 35 P.S. §§ 10210.102, .103, .302, .303, .304,
.307.
40
Section 275.1(b) of DPW’s Regulations specify, in pertinent part:
The objectives of appeals and fair hearing will be as
follows:
(1) To afford applicants and recipients an
opportunity for an impartial, objective review of
decisions, actions and delays, or in actions made by
County Assistance Offices and [DPW].
(2) To settle the issue or issues raised by the client in
requesting a hearing and to produce a clear and
definitive decision setting forth the findings of [DPW].
(3) To contribute to uniformity in the application of
[DPW’s] regulations.
(4) To reveal aspects of [DPW’s] regulations that
are deficient, inequitable, or constitute a
misconstruction of law.
55 Pa. Code § 275.1(b) (emphasis added). Section 275.4 of DPW’s Regulations
requires that DPW’s Bureau of Hearings and Appeals (BHA) hold a hearing before
a hearing officer. 55 Pa. Code § 275.4. Section 275.3(a) of DPW’s Regulations
grants appellants the right to appear at the hearing and present evidence. 55 Pa.
Code § 275.3(a). BHA’s Director will issue a written decision that may be
appealed to DPW’s Secretary and, thereafter, to this Court. 55 Pa. Code §
275.4(h)(4); see also Chambers.
In the instant case, the parties stated that DPW terminated Gant from
its Waiver Program and that Gant appealed from that decision. Neither DPW’s
termination notice, nor Gant’s appeal therefrom are contained in this record, and
there was no record evidence offered regarding that process. At argument, counsel
41
informed this Court that a hearing had been held, and that BHA’s decision was
stayed pending the outcome of this appeal.
DPW’s Regulations do not authorize the trial court to decide whether
and under what circumstances Gant is entitled to Medical Assistance.41 Even this
Court’s review cannot occur until DPW’s final decision has been issued and an
appeal filed therefrom. The Pennsylvania Supreme Court has held:
When the Legislature has seen fit to enact a pervasive
regulatory scheme and to establish a governmental
agency possessing expertise and broad regulatory and
remedial powers to administer that statutory scheme, a
court should be reluctant to interfere in those matters and
disputes which were intended by the Legislature to be
considered, at least initially, by the administrative
agency. Full utilization of the expertise derived from the
development of various administrative bodies would be
frustrated by indiscriminate judicial intrusions into
matters within the various agencies’ respective domains.
Feingold v. Bell of Pa., 383 A.2d 791, 793 (Pa. 1977). Thus, neither the trial court
nor this Court has jurisdiction to decide Gant’s eligibility for the Waiver Program
until Gant has exhausted her administrative remedies.42 Accordingly, the trial
court lacked jurisdiction to restrict Gant’s eligibility for DPW’s Medical
41
The fact that the trial court permitted Gant to participate in the Waiver Program under
an Agency-Directed Model does not change the fact that the trial court was not authorized to
determine Gant’s Medical Assistance and/or Waiver Program eligibility.
42
We acknowledge that we lack jurisdiction to decide whether Gant is generally eligible
for Medical Assistance benefits, or specifically whether, thereunder, Gant should continue in
DPW’s Waiver Program under an Agency-Directed or Consumer-Directed Model. However,
considering the compelling facts and argument presented in this case, the important benefits
provided to Gant by DPW’s Waiver Program to date, and recognizing the Mother’s critical role
in Gant’s daily care, the record evidence strongly suggests that Gant should remain in DPW’s
Waiver Program with Mother as her DPW-paid caregiver.
42
Assistance benefits, and erred by doing so. Thus, Paragraph (2) of the trial court’s
order is vacated.
3. Injunction Notice Sufficiency
Gant next argues that she was not afforded sufficient notice that DPW
sought to enjoin Mother’s alleged interference with Gant’s ability to consent to
protective services. We acknowledge that Section 304(c) of the Act provides that
“[i]f any person interferes with the provision of services or the right of an adult to
consent to provision of services, [DPW] may petition the court for an order
enjoining the interference.”43 35 P.S § 10210.304(c). Although the Petition
repeatedly averred that Gant’s parents interfered with her care, its prayer for relief
sought only “an [o]rder permitting [DPW] to continue to direct [Gant’s] health care
pending a hearing.” R.R. at 8a. In addition, the Petition did not refer to Section
304(c) of the Act or seek an order enjoining Mother’s alleged interference.
Moreover, the following exchange during the June 16, 2014 hearing reflects that
the parties and the Court were unclear as to whether the Petition encompassed
Section 304(c) of the Act:
[Gant’s Counsel] MR. ROTHERMEL: . . . [T]here’s no
[Section] 304 in the petition.
[DPW’s Counsel] MS. CHEUVRONT: We are operating
under Act 70 of which [Section] 304 is a component of
43
Section 304(c) of the Older Adults Protective Services Act similarly provides: “If any
person interferes with the provision of services or interferes with the right of an older adult to
consent to provision of services, the agency may petition the court for an order enjoining such
interference.” 35 P.S § 10225.304(c); see also 6 Pa. Code § 15.91(e). Our research has
disclosed no cases where an injunction has been sought under either the Act or the Older Adults
Protective Services Act.
43
Act 70 and doesn’t in any way construe the law the way
you have chosen to.
MR. ROTHERMEL: Just from a very normative
standpoint of the law, if you’re going to give someone
notice and an opportunity to be heard as required by due
process, you don’t pick and choose what portions of the
statute you want to put in a petition and go to a hearing
on.
MS. CHEUVRONT: I would ask the court to take
judicial notice that when someone files a guardianship
under Title 20 or a custody action under Title 23, we
don’t allege each and every section of the statute for
them to be operative,
THE COURT: Mr. Cherry.
[DPW’s Counsel] MR. CHERRY: Just a little bit of a
history. This is actually the third day we’ve been here.
The first day was testimony back in February. At that
time, the Judge made it clear to us that he wanted the
Commonwealth to seek the least restrictive situation for
[] Gant. We came back in March and we orally
modified what we were looking for. There was a
consent order being discussed amongst all the parties,
and clearly, and I made it perfectly clear at that time, that
I was operating under [Section] 304(c). So if nothing
else, there was an oral motion at that time to proceed
under that.
MS. CHEUVRONT: And nothing was on the record.
There was no record. We went back into chambers. We
were under the illusion we had an agreement and when
the topic of how would [Mother] get paid, it all fell apart.
That was the only component for which we could not
agree.
MR. ROTHERMEL: Well, when I get into this case and I
review the record --
44
MS. CHEUVRONT: You didn’t review the record
because it’s right there.
MR. ROTHERMEL: Well, you just admitted that there
was nothing on the record to give anybody any
knowledge of [Section] 304.
MR. CHERRY: I think the previous counsel should have
informed him of everything that occurred. However, I’m
open to the fact that that may not have happened and he
didn’t have the history. But what was perfectly clear is
when we spent that entire second day here working on
a consent order, it was operating under [Section]
304(c). All the parties knew that we were operating
under, including the Judge, and we did leave here
believing we had an agreement.
MR. ROTHERMEL: Well, one, it’s not on the record.
And, two, anything about consent orders or
negotiations are deemed irrelevant under the law.
MR. CHERRY: It’s on the record now.
....
THE COURT: The question is now before this Court and
as it developed is that we have consent -- it’s really by
request. This is still a voluntary proceeding, the
underlying essence.
MS. CHEUVRONT: Yes. Request for waiver services.
THE COURT: [Gant] wanted services. [Gant] received
services. There was a blip in the services that were being
performed. She was hospitalized. She was brought back.
She still is receiving services, but if I understand what the
position is and what was brought to the Court’s attention
over the course of the two prior hearings, and I’ve never
heard [Gant] saying that she wanted all services
withdrawn. Today she said she wanted services
withdrawn.
45
MS. CHEUVRONT: She did.
THE COURT: Once again, which brings right into my
wheelhouse.
MS. CHEUVRONT: It does.
MR. ROTHERMEL: What I’m trying to show, Your
Honor, is it’s my understanding that the Commonwealth
is trying to say that [Gant’s] parents, and in particular[,
Mother], is interfering with those services.
THE COURT: And she may have. I haven’t found that
as a fact yet which necessitated the filing of the
emergency. You have an emergency order which is what
was the basis of the [Section] 307(a)(1) relief that was at
least initially granted on an emergency basis.
....
MR. ROTHERMEL: So do I understand it then that the
testimony that was provided in February when the
Commonwealth presented [its] case in chief did not go
towards things that were happening with regards to
apparent interference with services?
THE COURT: It did up to a point --
MR. CHERRY: Up till February because that’s when the
hearing was. We couldn’t have addressed anything after
February.
....
THE COURT: . . . I think [Section] 304 is before the
Court for me to decide because this is an ongoing
protective -- voluntary protective services case that ended
up as an emergency and right now it’s back as a
voluntary protective services case before the Court.
And I think it’s in [Gant’s] best interest that we know
what’s going on so an appeal is taken from whatever.
46
R.R. at 120a-123a (emphasis added).
It is clear from the face of the Petition and this exchange that the
Petition was intended for relief pursuant to Section 307 of the Act, i.e., for an order
permitting DPW to direct Gant’s medical care because she is an adult in need of
protective services. At the hearing six months later, DPW claimed that Section
304(c) of the Act was inferred, and alternatively argued that it modified the
Petition in the context of the settlement discussions in March 2014 to include
Section 304(c) of the Act or, at the very least, midway through the June 2014
hearing.44
Notwithstanding, Pennsylvania Rule of Civil Procedure No. 1021(a)
requires that: “Any pleading demanding relief shall specify the relief sought.
Relief in the alternative or of several different types . . . may be demanded.”45
Pa.R.C.P. No. 1021(a) (emphasis added). “The party seeking the injunction must
establish that (1) the right to relief is clear, (2) there is an urgent necessity to avoid
an injury which cannot be compensated for by damages, and (3) greater injury will
44
Gant’s court-appointed counsel was present at the February and March 2014 court
proceedings. The trial court’s April 24, 2014 order approved Gant’s request to replace Attorney
Dunlevy Williams with Rothermel.
45
In a case involving the Older Adults Protective Services Act, this Court has held:
[T]he procedures mandated for petition practice under the Rules . .
. provide sufficient safeguards to protect an older adult’s
constitutional right to notice and an opportunity to be heard.
Pa.R.C.P. [No.] 206.2 provides for answers to be filed to petitions.
Implicit in Rule 206.2 is that the respondent be given notice of the
petition so as to be able to respond in an answer. The Rules also
provide for such procedures as court[-]ordered discovery regarding
disputed issues of fact, evidentiary hearings and argument by the
parties. See Pa.R.C.P. [No.] 206.5 through 206.7.
In Interest of M.B., 686 A.2d 877, 882 (Pa. Cmwlth. 1996) (italics added).
47
result in refusing rather than granting the relief requested.” Big Bass Lake Cmty.
Ass’n v. Warren, 23 A.3d 619, 626 (Pa. Cmwlth. 2011) (emphasis added). Each of
the above requirements must be satisfied before an injunction will be ordered. Id.
The Petition does not request or even reference injunctive relief or the legal criteria
necessary to establish a right thereto.
Further,
An appellate court is limited to considering only those
facts that have been duly certified in the record on
appeal. For purposes of appellate review, that which is
not part of the certified record does not exist. Documents
attached to a brief as an appendix or reproduced record
may not be considered by an appellate court when they
are not part of the certified record.
B.K. v. Dep’t of Pub. Welfare, 36 A.3d 649, 657 (Pa. Cmwlth. 2012) (citations
omitted). Moreover, Pennsylvania Rule of Evidence (Pa.R.E.) 408(a) states:
Evidence of the following is not admissible--on behalf
of any party--either to prove or disprove the validity . . .
of a disputed claim or to impeach by a prior inconsistent
statement or a contradiction:
(1) furnishing, promising, or offering--or accepting,
promising to accept, or offering to accept--a valuable
consideration in compromising or attempting to
compromise the claim; and
(2) conduct or a statement made during compromise
negotiations about the claim.
Pa.R.E. 408(a) (emphasis added). Section 6141(c) of the Judicial Code also
provides: “Except in an action in which final settlement and release has been
pleaded as a complete defense, any settlement or payment referred to in
subsections (a) and (b) [relating to personal injuries and property damage] shall not
48
be admissible in evidence on the trial of any matter.” 42 Pa.C.S. § 6141(c). This
Court has explained:
‘The general rule is that an offer to compromise is not
admissible in evidence at trial as an admission that what
is offered is rightfully due or that liability exists.’
Rochester Mach. Corp. v. Mulach Steel Corp., . . . 449
A.2d 1366, 1368 ([Pa.] 1982). An offer to compromise is
generally defined ‘as the settlement of differences by
mutual concessions; an adjustment of conflicting claims.’
Id.
Hooker v. State Farm Fire & Cas. Co., 880 A.2d 70, 85 (Pa. Cmwlth. 2005).
Finally, “the basic elements of procedural due process are adequate
notice, the opportunity to be heard, and the chance to defend oneself before a fair
and impartial tribunal having jurisdiction over the case.” Commonwealth v.
Turner, 80 A.3d 754, 764 (Pa. 2013), cert. denied, ___ U.S. ___, 134 S. Ct. 1771
(2014) (emphasis added). Excluding reference to purported settlement
negotiations and looking only at the Petition and the certified record, we must
conclude that DPW intended the Petition to obtain and Gant understood that DPW
was seeking “an [o]rder permitting [DPW] to continue to direct [Gant’s] health
care pending a hearing[,]” and nothing more. R.R. at 8a. Placing the amendment
on the record during the June 2014 hearing after Gant had testified hardly afforded
Gant sufficient notice to prepare a proper defense. Thus, we hold that Gant was
not afforded adequate notice that the Petition sought an injunction pursuant to
Section 304(c) of the Act.
4. Due Process Afforded
Gant argues that DPW and the trial court deprived her of her due
process rights. She specifically argues that the Petition fails to specify “how she
49
was at immediate risk,” why involuntary protective services were necessary, the
period for which they were required or what services were necessary to remove the
conditions creating the need. Gant Br. at 32.
In order to determine whether the basic elements have been met,
“[the] courts examine procedural due process questions in two steps: the first asks
whether there is a life, liberty, or property interest that the state has interfered with;
and the second examines whether the procedures attendant to that deprivation
were constitutionally sufficient.” Turner, 80 A.3d at 764 (emphasis added).
Here, because there is no question that Gant’s life and liberty are at issue, this
Court need only determine whether the procedures afforded her were sufficient.
In its Petition, DPW requested “an [o]rder permitting [DPW] to
continue to direct [Gant’s] health care pending a hearing” to determine whether she
was an adult in need of protective services. R.R. at 8a. Based upon the history, as
reflected in the incorporated October 2013 emergency guardianship petition and
order, the trial court determined that, pursuant to Section 307(a) of the Act, DPW’s
guardianship should continue until it could hear evidence. It is unclear why it took
the trial court until January 31, 2014 to schedule the protective services hearing, or
why after the March 2014 settlement negotiations were unsuccessful the trial court
scheduled the rest of the hearing some three months later, and then only after
Father moved the Court to do so. Nevertheless, there is nothing in this record that
reflects that Gant was not notified of the Petition or the hearings, or that she did not
have the opportunity to be heard or to defend herself before the trial court. Turner.
Moreover, Gant’s claims that the Petition was deficient are without
merit. We acknowledge that the Act does not specify what the Petition should
contain, that DPW has yet to promulgate regulations in that regard and that the
50
nearly identical Older Adults Protective Services Act’s petition requirements are
illustrative. Section 15.72 of DPW’s Regulations under the Older Adults
Protective Services Act provides:
(a) Contents. The petition which the agency files for an
emergency court order of involuntary intervention shall
state the following information:
(1) The name, age and physical description of the older
adult insofar as these facts have been ascertained.
(2) The address or other location where the older adult
can be found.
(3) The name and relationship of a guardian, caregiver or
other responsible party residing with the older adult,
when applicable.
(4) A description of how the older adult is at imminent
risk of death or serious physical harm.
(5) The physical and mental status of the older adult, to
the extent known.
(6) The attempts made by the agency to obtain the
informed consent of the older adult, or the older adult's
court appointed guardian, when applicable, to the
provision of protective services by the agency.
(7) The specific short-term, least restrictive, involuntary
protective services which the agency is petitioning the
court for an order to provide.
(8) A description of how the proposed services would
remedy the situation or condition which presents an
imminent risk of death or serious physical harm.
(9) A statement showing why the proposed services are
not overbroad in extent or duration and why less
restrictive alternatives as to their extent or duration are
not adequate.
51
(10) A statement that other voluntary protective services
have been offered, attempted or have failed to remedy the
situation.
(11) A statement that reasonable efforts have been made
to communicate with the older adult in a language the
older adult understands in the case of an older adult who
is hearing impaired or who does not understand the
English language.
(12) Other relevant information deemed appropriate by
the agency.
....
(c) Affidavits. Allegations which are not based upon
personal knowledge shall be supported by affidavits
provided by persons having that knowledge. The
affidavits shall be attached to the petition.
(d) Emergency order duration. In the petition, the agency
shall request an emergency order of a specific duration
which may not exceed 72 hours from the time the order is
granted. The agency shall request the court of common
pleas to hold a hearing when the initial emergency order
expires to review the need for an additional emergency
court order or other continued court and protective
services involvement, or both. The issuance of an
emergency order is not evidence of the competency or
incompetency of the older adult.
6 Pa. Code § 15.72.
Applying the relevant portions of the Older Adults Protective Services
Act and its attendant Regulations to this case, we hold that the Petition afforded
Gant adequate notice of DPW’s claims of imminent risk, why involuntary
protective services were necessary, the period for which they were required and
what services were necessary to remove the conditions creating the need, and that
she had sufficient opportunity to defend herself from those claims. Thus, with the
52
exception of inadequate process afforded Gant regarding DPW’s purported
injunctive relief request, we hold that DPW and the trial court did not deprive Gant
of her due process rights.
Based upon the foregoing, Paragraph (2) of the trial court’s order is
vacated. The trial court’s ruling that Gant is an adult in need of protective services
is reversed. The remaining portions of the trial court’s order are affirmed.
___________________________
ANNE E. COVEY, Judge
53
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Department of Public Welfare :
:
v. :
:
Mikeisha Gant, : No. 1652 C.D. 2014
Appellant :
ORDER
AND NOW, this 29th day of June, 2016, Paragraph (2) of the
Lancaster County Common Pleas Court’s July 8, 2014 order is vacated. The trial
court’s ruling that Mikeisha Gant is an adult in need of protective services is
reversed. The remaining portions of the trial court’s order are affirmed.
___________________________
ANNE E. COVEY, Judge