Guardianship of Sharon Izzo v. State of Indiana (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this FILED Memorandum Decision shall not be regarded as May 24 2017, 9:58 am precedent or cited before any court except for the purpose of establishing the defense of res judicata, CLERK Indiana Supreme Court collateral estoppel, or the law of the case. Court of Appeals and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Frederick A. Turner Curtis T. Hill, Jr. Bloomington, Indiana Attorney General of Indiana Frances Barrow Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Guardianship of Sharon Izzo, May 24, 2017

Appellant-Defendant, Court of Appeals Case No. 53A05-1610-GU-2447 v. Appeal from the Monroe Circuit Court. The Honorable Stephen R. Galvin, State of Indiana, Judge. Appellee-Plaintiff. Trial Court Cause No. 53C07-1402-GU-12

Shepard, Senior Judge [1] The trial court determined that Sharon Izzo, a seventy-nine-year-old who is

subject to a guardianship, should move permanently to the nursing home where

she had been temporarily placed for physical rehabilitation. Izzo appeals. We

conclude there is ample evidence to support the court’s decision.

Court of Appeals of Indiana | Memorandum Decision 53A05-1610-GU-2447 | May 24, 2017 Page 1 of 5 [2] In June 2014, after a hearing at which Izzo was represented by counsel, the

court adjudicated Izzo to be an incapacitated person and appointed Elizabeth

Ruh as the guardian of her person and estate. Izzo lived alone in an apartment

and wanted to stay there despite cognitive challenges. The court ruled that Ruh

could not permanently change Izzo’s residence without prior court approval,

but short-term emergency stays were permissible. Izzo appealed, and this Court

affirmed. In re Guardianship of Izzo, Cause No. 53A05-1407-GU-320 (Ind. Ct.

App. Apr. 17, 2015). [3] On October 2, 2015, Ruh filed a petition for an order to move. The court held a

hearing at which Ruh clarified she was not seeking an immediate order to move

Izzo to a nursing home but was concerned about Izzo’s declining health. The

Court concluded “no action is necessary on the petition at this time.”

Appellant’s App. p. 8. The court instructed Ruh that she was “empowered to

make emergency changes in Ms. Izzo’s residence, at any time, in order to

ensure Ms. Izzo’s health and safety.” Id. [4] On July 29, 2016, Izzo was hospitalized, followed by a temporary placement in

a nursing home for physical rehabilitation. On August 25, 2016, Ruh filed a

second petition, requesting permission to change Izzo’s residence to the nursing

home. The court granted Ruh’s petition after two evidentiary hearings,

concluding it was in Izzo’s best interests.

Court of Appeals of Indiana | Memorandum Decision 53A05-1610-GU-2447 | May 24, 2017 Page 2 of 5 [5] Izzo argues the court erred in determining that she should permanently change

her residence. The statute that governs changing the residence of an

incapacitated adult provides:

A guardian (other than a temporary guardian), a volunteer advocate for seniors, or a volunteer advocate for incapacitated adults appointed under IC 29-3-8.5 may, with the approval of and under such conditions as may be imposed by the court after notice and hearing, change the physical presence of the protected person to another place in Indiana or to another state if the court finds that such a change is in the best interests of the protected person. Upon such a change, the guardianship may be limited or terminated by the court.

Ind. Code § 29-3-9-2 (2006). [6] “All findings, orders, or other proceedings under this article shall be in the

discretion of the court unless otherwise provided in this article.” Ind. Code

§ 29-3-2-4 (2001). The parties agree that the appropriate standard of review is

abuse of discretion. An abuse occurs only when the decision of the court is

clearly against the logic and effect of the facts and circumstances presented. In

re Guardianship of Atkins, 868 N.E.2d 878 (Ind. Ct. App. 2007), trans. denied. We

consider only the evidence most favorable to the prevailing party, and we

neither reweigh the evidence nor reassess witness credibility. Chavis v. Patton,

683 N.E.2d 253 (Ind. Ct. App. 1997). [7] During a hearing on Ruh’s first petition for order to move, Ruh told the court

Izzo needed extensive medical treatment, including monthly doctor’s

appointments and frequent changes in medication. Izzo was diagnosed with

asthmatic bronchitis and needed to stop smoking, but she had smoked in her Court of Appeals of Indiana | Memorandum Decision 53A05-1610-GU-2447 | May 24, 2017 Page 3 of 5

apartment and allowed neighbors to smoke there. The court denied the request

but informed Ruh she should file another petition if Izzo’s health degenerated. [8] During a September 6, 2016, evidentiary hearing on Ruh’s second petition to

move Izzo, Ruh reported that Izzo had become prone to recurring lung

infections and had been hospitalized twice since the last hearing. Her medical

condition was so perilous that “she would have qualified for Hospice Services

in her home” without further intervention. Tr. p. 32. As of September 6, Izzo

was undergoing physical rehabilitation at a nursing home, and Izzo’s mental

and physical health had improved during her stay. [9] At a second hearing on September 20, 2016, medical reports indicated Izzo had

been diagnosed with mild dementia, hypertension, COPD, and osteoarthritis,

among other conditions. Tr. Ex. Vol. p. 4. The court heard evidence that Izzo

denied the seriousness of her medical conditions and lacked insight into her

limitations. When Izzo lived in her apartment, her neighbors had accessed her

medications, gave her a prescription pill for which she had no prescription, and

smoked in her presence. Izzo also experienced an incident where a neighbor

left threatening voice mails. Prior to Izzo’s hospitalization, a home health

evaluator determined Izzo had pneumonia and was slightly malnourished. [10] Izzo’s physical health and mental acuity had greatly improved while living at

the nursing home, which several witnesses attributed to the controlled

environment and oversight of her medicine. An Alzheimer’s educator who had

worked with Izzo for several years was concerned her mental and physical

Court of Appeals of Indiana | Memorandum Decision 53A05-1610-GU-2447 | May 24, 2017 Page 4 of 5

health would deteriorate if she returned to her apartment because she had a

history of refusing to follow guidance from home health care providers. [11] Even Izzo’s witnesses, who had provided home health care and transportation

services to Izzo for years, indicated that a “change of venue” from the

apartment or a move to a “different home environment” would be good for

Izzo, citing reports of neighbors sharing medication with her and instances of

her giving food away. Tr. pp. 63, 66. Izzo’s doctor stated she needed to be in a

non-smoking environment. [12] The trial court appropriately accommodated Izzo’s desire for independence,

first by instructing that Ruh could not move Izzo without court approval, and

second by holding several thorough hearings on the second petition. The

record amply supports the court’s finding that a permanent move to the nursing

home was in Izzo’s best interests, and the decision was not against the logic and

effect of the facts and circumstances of the case. Izzo points to other evidence

indicating that her medical conditions were not as severe as Ruh depicted and

that she could live safely in her apartment, but this argument is a request to

reweigh the evidence. [13] For the reasons stated above, we affirm the judgment of the trial court. [14] Affirmed.

Robb, J., and Mathias, J., concur.

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