In the matter of Mary D. Freeman

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3513-08T33513-08T3

In the matter of

Mary D. Freeman,

An Incapacitated Person.

______________________________

 

Submitted December 8, 2009 - Decided

Before Judges Parrillo and Lihotz.

On appeal from Superior Court of New Jersey, Chancery Division, Probate Part, Monmouth County, Docket No. P-372-08.

Thomas Freeman, appellant pro se.

Joan Crowley, attorney for respondent James Freeman.

PER CURIAM

Appellant Thomas Freeman appeals from a February 24, 2009 order of the Chancery Division, Probate Part, restraining him from the residence of his mother, Mary Freeman, from 7:00 a.m. to 1:00 p.m., Monday through Friday, and denying his cross-motion to be appointed her co-guardian. We affirm.

Briefly, by way of background, Mary Freeman is a housebound eighty-four year old widow with six adult children. She lives with one of her children, appellant, in her home in Wall Township, which, it is anticipated, appellant will inherit upon his mother's death.

Mary had suffered a stroke in June 2006, which left her with severe aphasia and hemiparesis, and she has trouble ambulating and speaking. As a result, she now requires "personal assistance of an intimate nature such as bathing, toileting, [and] dressing." By a March 27, 2008 Judgment of Incapacitation, respondent James Freeman, appellant's brother, was appointed guardian of his mother. Pursuant to Mary's Power of Attorney and Advanced Health Care Directive, respondent employed Caregiver Resources to provide licensed home health aides to assist in caring for his mother. The home health aides were the same sex as his mother and were "trained to take care of her." A hospice nurse also visits Mary approximately two hours each workday.

According to respondent, appellant has consistently insulted, criticized, and confronted his mother's health aides, so as to have interfered with her care. As a result of his obstructive behavior, all twenty-five health aides hired in a ten-month period refused to return to care for Mary, and Caregiver Resources indicated the agency would no longer provide services due to appellant's conduct. Appellant's other siblings represent that he is prone to violent outbursts, and Mary suffered from sores on her buttocks while in his care.

On December 19, 2008, respondent filed a complaint and order to show cause for restraints against appellant, to prevent him from verbally communicating with his mother's home health aides and from being in their presence in the home between 7:00 a.m. to 1:00 p.m., when they are caring for the mother. Appellant answered and cross-moved to be appointed his mother's co-guardian. Thereafter, respondent filed a letter brief and certifications from himself and two sisters in opposition to appellant's cross-motion and in support of the verified complaint for an order for restraints.

The probate judge issued an order to show cause to proceed in a summary manner pursuant to Rule 4:83-1 and set a February 13, 2009 return date. On February 10, 2009, respondent filed a supplemental certification and attached thereto a list of health aides who resigned due to appellant's conduct; an August 20, 2008 federal criminal complaint charging appellant with possession of child pornography; appellant's arrest report for domestic violence; and five police event reports, two of which detailed appellant's violent, aggressive conduct against his brothers and the home health aides.

At the February 13, 2009 hearing, the judge reviewed respondent's certifications, considered appellant's responses and entertained oral argument on the cross-applications. Based thereon, the judge denied appellant's application to become co-guardian, finding that "it is in the best interest of the ward that . . . Mr. James Freeman remain her guardian in this matter." The judge also ordered that appellant be restrained from the house from 7:00 a.m. to 1:00 p.m. to allow all heath aides access to the home, and from communicating with the home health care aides.

On appeal, appellant raises the following issues, none of which were presented below:

I. THIS APPELLANT IS ENTITLED TO THE RIGHTS OF LIBERTY AND PROPERTY.

II. THE COURT RULES WERE VIOLATED IN SUCH A WAY AS TO PREJUDICE THE COURT AND DENY APPELLANT DUE PROCESS OF LAW.

III. THE PROBATE COURT HAD NO JURISDICTION TO ORDER SANCTIONS (RESTRAINTS) IN THIS CASE, SO APPELLANT WAS DENIED DUE PROCESS OF LAW.

We have considered each of these issues in light of the record, the applicable law, and the arguments of counsel and appellant pro se, and we are satisfied that none of them is of sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(A) and (E). We add only the following comments.

Contrary to appellant's contention, the jurisdiction of the court in this matter is clear. All matters relating to guardianships must be "filed with the Surrogate of the county of venue as the deputy clerk of the Superior Court, Chancery Division, Probate Part. . . ." R. 4:83-2. "A guardian of the person of a ward shall exercise authority over matters relating to the rights and best interest of the ward's personal needs," to the extent adjudicated by the probate court, N.J.S.A. 3B:12-57f, including "provid[ing] for the care, comfort and maintenance . . . of the ward," N.J.S.A. 3B:12-57f(3), and "[i]f necessary institut[ing] an action that could be maintained by the ward including but not limited to, actions alleging fraud, abuse, undue influence and exploitation." N.J.S.A. 3B:12-57f(10).

Under Rule 4:83-1, "all actions in the Superior Court, Chancery Division, Probate Part, shall be brought in a summary manner by the filing of a complaint and issuance of an order to show cause pursuant to R. 4:67." A summary action pursuant to Rule 4:67-1(a) is brought via an order to show cause supported by a verified complaint pursuant to Rule 1:6-6. R. 4:67-2(a). Rule 1:6-6 provides,

[i]f a motion is based on facts not appearing of record or not judicially noticeable, the court may hear it on affidavits made on personal knowledge, setting forth only facts which are admissible in evidence to which the affiant is competent to testify and which may have annexed thereto certified copies of all papers or parts thereof referred to therein.

[R. 1:6-6 (emphasis added).]

"The court, if satisfied with the sufficiency of the application, shall order the defendant to show cause why final judgment should not be rendered for the relief sought." R. 4:67-2(a).

Here, respondent's complaint was brought pursuant to his authority as guardian of his mother and was properly before the probate court. Indeed, appellant not only responded without objection, but he invoked the jurisdiction of the court in his cross-motion for appointment as co-guardian. There can be no dispute therefore that the court was one of competent jurisdiction to resolve the matter.

Moreover, the proceedings were conducted in accordance with the rules of court and appellant was afforded full due process. Although he now complains that respondent was allowed to file a supplemental certification and related materials after appellant's reply and cross-motion, nothing in the court rules prohibits these submissions. To the contrary, Rule 1:6-2 permits the filing of opposition to appellant's cross-motion.

As to the content of these submissions, suffice it to say, respondent and his two sisters certified as to their personal experiences with appellant, including appellant's obstructive and hostile behavior concerning his mother's healthcare. Respondent's certification, for example, details how appellant insulted his mother's home health aides. Respondent's sisters also detailed appellant's insulting, sometimes violent behavior, as well as appellant's treatment of their mother.

As noted, respondent attached to his supplemental certification a list of nurses who resigned, a criminal complaint against appellant, and arrest and event reports relating to his interactions with his family. The list of nurses who resigned constitutes information referenced in his certification, about which respondent had personal knowledge and was therefore competent to testify. Similarly, respondent had personal knowledge of appellant's interactions with the police, and respondent's certification states that appellant "has been arrested a number of times, and has pled guilty to various misdemeanors." Since respondent had personal knowledge of this evidence, these documents were properly annexed to respondent's certification. R. 1:6-6.

Lastly, appellant claims deprivation of a property interest without due process of law. He bases this argument on a putative interest in his mother's estate, but offers no legal support that such mere expectancy is entitled to due process protection. In any event, we have already explained why appellant has been afforded all the process due.

 
Affirmed.

To the extent any of the appended materials may have been improperly included, any such error was harmless beyond any doubt since there is absolutely no indication any such evidence influenced the judge to reach a result she would not have otherwise reached. See State v. Barden, 195 N.J. 375, 394 (2008) (citing Rule 2:10-2). The judge focused on respondent's certifications and affidavits, which are based solely on personal experiences and knowledge, R. 4:67-2(a), R. 1:6-6. The judge noted that "[appellant is] not allowing the workers to come in and help her. He's causing a problem when they come in. They quit. They won't go into the home." At the hearing, the judge did not refer to, or rely upon appellant's arrest report, the police event reports or appellant's criminal complaint.

(continued)

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A-3513-08T3

December 31, 2009