In the Matter of Genevieve Bush, an Incapacitated (memorandum)

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J-A12035-14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 IN THE MATTER OF GENEVIEVE BUSH, AN INCAPACITATED PERSON IN THE SUPERIOR COURT OF PENNSYLVANIA APPEAL OF: MARY BUSH No. 1694 EDA 2013 Appeal from the Order May 14, 2013 in the Court of Common Pleas of Chester County at No.: 1509-1720 IN THE MATTER OF GENEVIEVE BUSH, AN INCAPACITATED PERSON IN THE SUPERIOR COURT OF PENNSYLVANIA APPEAL OF: MARY BUSH No. 1861 EDA 2013 Appeal from the Order May 24, 2013 in the Court of Common Pleas of Chester County at No.: June Term, 2013, No. 1509-1720 J-A12035-14 IN THE MATTER OF GENEVIEVE BUSH, AN INCAPACITATED PERSON IN THE SUPERIOR COURT OF PENNSYLVANIA APPEAL OF: MARY BUSH No. 1863 EDA 2013 Appeal from the Order May 24, 2013 in the Court of Common Pleas of Chester County at No.: June Term, 2013, No. 1509-1720 BEFORE: SHOGAN, J., STABILE, J., and PLATT, J.* MEMORANDUM BY PLATT, J.: FILED JUNE 24, 2014 In this consolidated appeal, Appellant, Mary Bush, appeals from the orders of May 14, 2013, removing her as co-guardian of the person of Genevieve Bush and appointing Elizabeth M. Srinivasan, Esq., as coguardian of the person; May 24, 2013, ordering removal of Appellant and her personal effects from Genevieve setting up visitation, and dictating the terms by which Appellant may be used as a caretaker in the discretion of the co-guardians of the person; and er of June 8, 2012 for preventing Appellees, Joseph and Michael Bush, from entering the property to inventory the estate, and failing to maintain current email or ____________________________________________ * Retired Senior Judge assigned to the Superior Court. -2- J-A12035-14 telephone contact information, as she had been ordered. After careful review, we affirm. The trial court has previously set forth a thorough and complete factual history of the case, which a panel of this Court adopted in whole at In re Bush, 53 A.2d 927 (Pa. Super. 2012) (unpublished memorandum). (See Trial Court Opinion, 6/24/11, at 1-4). To summarize briefly, since the death of her husband, Fabian Bush, on June 25, 2004, the care of Genevieve Bush and her estate have been a matter of contention between her daughter, Appellant, and her three surviving sons, Appellees Michael, Joseph, and Justin Bush. Appellant systematically isolated Mrs. Bush from her sons and their families, prevented Appellees from entering the estate property, and otherwise kept Mrs. Bush away from Appellees. She further persuaded Mrs. Bush to transfer the family home to her for $10.00, and thereafter pay for thousands of dollars of renovations out of the estate. On June 24, 2011, the court found Mrs. Bush to be an incapacitated person, and appointed Appellant and Appellee Michael Bush as co-guardians of her person and Appellee Joseph Bush as guardian of the estate. Appellant appealed the decision and we affirmed. (See In re Bush, Nos. 2726 and 2746 EDA 2011, unpublished memorandum at *3 (Pa. Super. 2012)). Most recently, on June 8, 2012, the trial court ordered that Appellees, with twenty-3- J-A12035-14 property without Appellant present, perform an inventory of the estate, and schedule visits with Mrs. Bush under supervision of a neutral third party. -four-hour notice by email that they would visit the next day. The following day, on June 9, 2012, Appellant was present when that afternoon (although she had been ordered to maintain a working phone line and email address), and then called the police when Appellees entered the basement to begin the property inventory. Appellees attempted to third party, scheduled appointments with Mrs. Bush so she would not be home during planned visits, and ultimately confessed at a hearing that Mrs. Bush had been hospitalized several times and would be having surgery that she had not told the other guardians about. The inventory and visits never took place as ordered. On July 23, 2012, Appellant filed a petition to remove Appellee Michael Bush as co-guardian of the person. On August 8, 2012, Appellees Michael and Joseph Bush filed a petition for contempt of Appellant and, on August 31, 2012, they filed a petition to remove Appellant as co-guardian of the person. On November 16, 2012, Appellant filed a petition to remove Appellee Joseph Bush as a guardian of the estate. -4- J-A12035-14 The trial court consolidated the petitions into one hearing, and after six days of testimony, entered the above-described orders finding Appellant in contempt, removing her as co-guardian, and ordering her to remove herself separate appeals1 from the orders on June 11 and June 21, 2013.2 Appellant raises six questions for our review: A. Did the [trial c]ourt err in refusing to allow a treating physician to testify as a sanction in a series of off the record hearings? B. Did the [trial c]ourt err in admitting and hearing evidence regarding a complaint that was filed by [Appellant] with the disciplinary board? C. Did the [trial c]ourt err in removing [Appellant] []as a guardian of the person, when there was no evidence that any of her actions endangered the health and welfare of the incapacitated? D. Did the [trial] court err in holding [Appellant] in contempt of the June 8, 2012 order, when there was insufficient evidence that she timely received or violated the specific mandates of the order? E. Did the [trial c]ourt err in refusing to remove [Appellee] Michael Bush as co-guardian of the person? F. Did the court demonstrate a sufficient ongoing bias[] against [Appellant] sufficient that the court should have sua sponte recused [itself]? ____________________________________________ 1 This Court consolidated the appeals sua sponte by order of July 31, 2013. (See Per Curiam Order, 7/31/13). 2 on June 28, 2013 and July 12, 2013. The trial court entered a Rule 1925(a) opinion on September 20, 2013. See Pa.R.A.P. 1925. -5- J-A12035-14 t 8-9).3 allow Dr. [Doris] Lebischak, a treating physician, to testify as a sanction in Rule 2119 of the Pennsylvania Rules of Appellate Procedure provides, there are questions to be argued; and shall have at the head of each part in distinctive type or in type distinctively displayed the particular point treated therein, followed by such discussion and citation of authorities as are deemed pertinent see also Estate of Lakatosh need not reach the mer section pertaining to these issues consists unsupported by any citation of authority. of general statements The argument portion of an appellate brief must include a pertinent discussion of the particular point omitted). ____________________________________________ 3 -seven page brief fails to comply with Rule of Appellate Procedure 2135, because it exceeds thirty pages without certifying that it nonetheless complies with our limit of 14,000 words in a principal brief. See exceed 30 pages when produced by a word processor or typewriter shall be deemed to meet the limitations in paragraph (a)(1). . . . In all other cases, the attorney or the unrepresented filing party shall include a certification -6- J-A12035-14 Here, in support of her first issue, Appellant presents twelve pages of self-serving recitation of the factual history of the case without a single citation to relevant case law or authority to support her position. -40). Thus, she has waived this challenge. (See See Lakatosh, supra at 1381. Moreover, it would not merit relief. The may prescribe the practice relating to depositions, discovery, production of documents and perpetuation of testimony. To the extent not provided for by such general rule or special order, the practice relating to such matters shall conform to the practice in the Trial or Civil Division of the local Court of Common Pleas. In re Hyman Court Rule 3.6). Here, Appellant attempts to challenge the preclusion of the testimony of psychiatrist Doris Lebischak, MD, who issued a report to support -guardian of the person of Genevieve Bush. (See fairness, the court permitted Appellees to retain an expert, Susan Rushing, JD MD, to examine Mrs. Bush as well. (See Trial Ct. Op., 6/24/11, at 5). rs. Bush at least twice, costing them over $5,000.00 with no evaluation performed. (See N.T. Hearing, report, since she had prevented Michael and Joseph from acquiring a report -7- J-A12035-14 of the relating to depositions, discovery, production of documents and perpetuation Hyman, supra at 608, we discern no abuse of discretion. admitting as evidence and hearing testimony regarding a complaint that was filed by [Appellant] with the She argues that the limited admission of a redacted disciplinary complaint with the [c]ourt without any recourse other than to attempt to prove that her allegations with the Disciplinary Board were true, something that the Id. at 43). We disagree. exclude evidence is well-settled: When we review a trial court ruling on admission of evidence, we must acknowledge that decisions on admissibility are within the sound discretion of the trial court and will not be overturned absent an abuse of discretion or misapplication of law. In addition, for a ruling on evidence to constitute reversible error, it must have been harmful or prejudicial to the complaining party. An abuse of discretion is not merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will, as shown by the evidence or the record, discretion is abused. Phillips v. Lock, 86 A.3d 906, 920 (Pa. Super. 2014) (citation omitted). -8- J-A12035-14 Evidence is rel existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be admissible, except as value is outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of Brady v. Urbas, 80 A.3d 480, 483-84 (Pa. Super. 2013). Appellant cherry-picks citations to Pennsylvania Disciplinary Board Rule 89.5 and Rule of Disciplinary Enforcement 209, both regarding supports the proposition . . . that evidence submitted to the Disciplinary ef, at 42). one[s] filing petition after petition, contempt after contempt . . . manipulating people, [and] doing whatever you got to do to keep this to impeach her testimony with a redacted complaint filed by Appellant with the Pennsylvania Disciplinary Board against counsel for Appellees. (N.T. Hearing, 2/27/13, at 149; see id. at 150-51). After hearing argument on the issue, the court determined that a highly-redacted version of the complaint was admissible for the -9- J-A12035-14 whether or not there was a good2/28/13, at 13-14; see N.T. Hearing, 2/27/13, at 155-56). It is welladverse witness by introducing evidence that the witness has made one or Rissi v. Cappella, 918 A.2d 131, 139 (Pa. Super. 2007) (citations omitted). Thus, the existence of was relevant to impeach her credibility in light of her claims that Appellees were responsible for the protracted to show that the voluminous litigation has not been one sided. [The court] admitted a redacted version of the disciplinary complaint to protect the identity of others named in the complaint. The exhibit was relevant for that purpose, see also Phillips, supra at 920; Brady, supra at 483relief.4 ____________________________________________ 4 formal proceeding results in the imposition of private discipline or dismissal of all the charges, the proceeding shall cease to be open to the public when the decision to impose private discipline or dismiss the charges becomes final, unless the respondent-attorney requests that the record of the , at id. at 11), the right to confidentiality or publicity of a disciplinary hearing clearly rests with counsel for Appellees, not Appellant. - 10 - J-A12035-14 guardian per se, absent any showing of any adverse effect on the estate or rights of any beneficiary by reason of such animosity, does not constitute Id. at 44). We disagree. Our standard of review in guardianship matters is wellselection of a guardian for a person adjudicated incapacitated lies within the discretion of the trial court whose decision will not be reversed absent an abuse of discretion. Estate of Haertsch, 649 A.2d 719, 720 (Pa. Super. 1994) (citation omitted). Pennsylvania law defines a guardian as a person lawfully invested with the power, and charged with the duty, of taking care of the person and/or managing the property and rights of another person, who, for defect of age, understanding or selfcontrol is considered incapable of administering his own affairs. Two classes of guardians have long been recognized at law: (1) guardian of the person being invested with the care of the person of the [incapacitated person], and (2) guardian of the estate being entrusted with the control of the property of the [incapacitated person]. The spheres of authority of a guardian of the person and of a guardian of the estate are distinct and mutually exclusive. person having primary physical responsibility for the care and custody of the [incapacitated person]. However, natural guardianship confers no inherent right to intermeddle with the property of the [incapacitated person], and the natural guardian has no inherent authority to demand or power to receive, hold or guardian [i has also been appointed as guardian of the Rock v. Pyle, 720 A.2d 137, 141 (Pa. Super. 1998) (citations omitted). - 11 - J-A12035-14 Here, the evidence presented at the hearings establishes that estate. She has brothers and their families from seeing Mrs. Bush. (See N.T. Hearing, 2/27/13, at 213, 219; N.T. Hearing, 2/28/13, at 14, 38-39, 213-14). Appellees established that she refused to work with the Family Services therapist or suspend her litigation against Appellees, which was funded by See N.T. Hearing, 2/27/13, at 117; N.T. Hearing, 2/28/13, at 41-42) the other guardians, including several significant injuries and hospitalizations, and failed to maintain valid email and telephone numbers. (See N.T. Hearing, 2/28/13, at 42, 79-80, 108, 124, 161-67; N.T. Hearing, 3/20/13, at 5-7). She has acted violently toward the other guardians on several occasions. (See N.T. Hearing, 2/27/13, at 214, 232; N.T. Hearing, 2/28/13, at 43, 58, 83-84). t the -site visit, and repeatedly prevented Appellees from conducting the inventory of the estate by imposing restrictions on their access and calling the police. (See N.T. Hearing, 2/27/13, at 132, 136, 142; N.T. Hearing, 2/28/13, at 51-52, 64-68, 71-72). in the estate such as coins and tools in her own inventory, in violation of the - 12 - J-A12035-14 requirement to account as holder of the power of attorney over Mrs. Bush. (See N.T. Hearing, 2/27/13, at 140-41; N.T. Hearing, 2/28/13, at 86). each of the duty to assert the best interests of Mrs. have isolated Mrs. Bush from her own family and have intermeddled with her estate. See Rock, supra at 141. Thus, the trial court did not abuse its discretion in removing Appellant as guardian of the person of Genevieve Bush. See Haertsch, supra at 720. This issue does not merit relief. contempt of [its] ord virtually no evidence of [her] intent to violate the o Id. at 50, 55). We disagree. When considering an appeal from an [o]rder holding a party in contempt for failure to comply with a court [o]rder, our scope of review is narrow: we will reverse only upon a showing the court abused its discretion. We also must consider that: Each court is the exclusive judge of contempts against its process. The contempt power is essential to the administration of justice from falling into disrepute. When reviewing an appeal from a contempt order, the appellate court must place great reliance upon the discretion of the trial judge. - 13 - J-A12035-14 The court abuses its discretion if it misapplies the law or exercises its discretion in a manner lacking reason. Additionally, [i]n proceedings for civil contempt of court, the general rule is that the burden of proof rests with the complaining party to demonstrate, by [a] preponderance of the evidence that the defendant is in noncompliance with a court order. However, a mere showing of noncompliance with a court order, or even misconduct, is never sufficient alone to prove civil contempt. Moreover, we recognize that: To sustain a finding of civil contempt, the complainant must prove certain distinct elements: (1) that the contemnor had notice of the specific order or decree which he is alleged to have disobeyed; (2) that the act (3) that the contemnor acted with wrongful intent. Habjan v. Habjan, 73 A.3d 630, 637 (Pa. Super. 2013) (citations and quotation marks omitted). actual knowledge of the order, despite never having been personally served Marian Shop v. Baird, 670 A.2d 671, 673 (Pa. Super. 1996) (citation omitted); see also Fenstamaker v. Fenstamaker, 487 knowledge sufficient to place her on notice of personal responsibility to that a contempt citation for disobedience to the order could not be said to Commonwealth v. Fladger, 378 A.2d 440, 443 (Pa. Super. 1977); cf. Godfrey v. Godfrey, 894 A.2d 776, 781 (Pa. Super. 2006) (holding that, where appellant failed to inform the court of change of - 14 - J-A12035-14 service resulted in insufficient notice did not preclude contempt finding). First, Appellant claims that she did not have twenty-four-hour notice of the June 8, 2012 order. (See in relevant part: Joseph Bush, as Guardian of the Estate, may have access to the property at 1628 Glenside Road, West Chester, Pennsylvania, at any reasonable time he elects, providing at least 24 hours notice to Mary Bush by email[a], so that she can unlock or otherwise provide access to the property. [a] Mary Bush shall provide Joseph and Michael Bush with working phone number and email address. Failure to do so is grounds for sanctions. (Order, 6/08/12, at 2 ¶ 5). At 3:12 p.m. on June 8, 2012, counsel for Appellees sent an email to counsel for Appellan visit the property at 4:00 p.m. on June 9 to conduct the ordered inventory. Appellee Joseph Bush also emailed Appellant directly himself. (See Order, 5/24/13, at 2 n.1). Although Appellant was required to supply Appellees and the court at 108). Appellant herself concedes that she received an email and a phone (N.T. Hearing, 2/27/13, at 164). She ma - 15 - J-A12035-14 (Id. at 167). Therefore, Appellees provided notice to Appellant and her counsel as required by the order. Although Appellant claimed she did not receive a copy of the order until she went to the state police, she had personal knowledge of its contents and cannot claim she was unfairly surprised. See Marian Shop, supra at 673; Fladger, supra at 443. Furthermore, her claim that she did not have at least twenty- contempt determination. See Godfrey, supra at 781. This argument does not merit relief. Second, Appellant argues that she did not intend to violate the order and refused to comply with the demands of her brothers that were not she claims that the order only permitted Joseph Bush to enter the estate for during the attempted June 9, 2012 visit violated the order and justified her actions in refusing to leave the property, calling the police, and preventing the inventory from occurring. (See id. at 52-54). - 16 - J-A12035-14 Appellant cites no authority for her claim that a her. See Pa.R.A.P. 2119(a). Furthermore, the court found Appellant in contempt for violating multiple aspects of the June 8, 2012 order. (See Order, 5/24/13, at 1-3 n.1). For example, she was at the estate on June 9, 2012, and prevented the inventory from occurring that day. that on- (Compare Order, 6/08/12, at 2 ¶ with N.T. Hearing, 2/27/13, at 131-32). As of the May 24, 2013 contempt order, she had prevented any inventory from taking place as ordered. (See Order, 5/24/13, at 3 n.1 (finding that Appellant the June 8, (Compare Order, 6/08/12, at 2 n.1, with N.T. Hearing, 2/27/13, at 164). party caregiver t court-ordered visits never occurred. (Compare Order, 6/08/12, at 2-3 ¶ 6, with N.T. 2/28/13, at 120-24). She removed Mrs. Bush from the estate or refused to answer the door at times when Appellees had scheduled visits. (See 67). She has posted and refused to remove handwritten signs on Mrs. - 17 - J-A12035-14 araging her brothers. (Compare Order, 6/08/12, at 3 ¶¶ 6, 7, with N.T. 2/28/13, at 81-82). 5/24/13, at 3 n.1). The trial court did not abuse its discretion in finding Appellant in contempt. See Habjan, supra merit. Michael Bush when he was described as violating the criminal law of Pennsylvania and admitted that he had sexually assaulted his mother in the violated the Wiretap Act by recording a conversation with Chester County Family Services counselor Kurt Walser and that he was unfit to be a Id. at 56, 60; see id. at 57-58). We disagree. adjudicated incapacitated lies within the discretion of the trial court whose Haertsch, supra at 720. Here, Appellant first claims that Appellee Michael Bush violated the Wiretap Act, 18 Pa.C.S.A. § 5703, because he recorded a meeting with counselor Kurt Walser. She cites only to general case law regarding the eople in - 18 - J-A12035-14 -58); see also Pa.R.A.P. 2119(a). Furthermore, this allegation is completely contradicted by the record. At the hearings, Counselor Walser testified: Q. During the session with Michael and Mary, did there come a time when Mary accused Michael of recording the session? A. Well, there was the first session, Michael and Joe wanted to record it, and I said, well, I was kind of surprised, and I thought no one ever recorded my session. And then they felt well, now I understand why they wanted to record it, because So the first session, they forgot recording, because we talked about recording and what other issues were. Q. The first session was just with Michael and Joseph? A. Michael and Joseph. . . . * * * Q. Did there come a time when you actually allowed them to record a session with just them? A. Yeah, Michael, when Michael and I had a session, he says, Kurt, can I reco objection. And then when we had a joint session, Mary noticed good idea to record it, because it sets a negative tone, because we see, we [are] exploring is there any good faith on. (N.T. Hearing, 2/27/13, at 63-65). Thus, the record does not support permission in violation of the Wiretap Act. Nor does she develop any argument as to how recording counseling sessions would make Michael unfit - 19 - J-A12035-14 as a guardian for Mrs. Bush. (See -57). This claim does not merit relief. Second, Appellant concocts an allegation of sexual abuse against Appellee Michael Bush. Taking a statement entirely out of context, she Id. at 58). hearing testim Q. Now, during this session, did Mr. Michael Bush tell you that he was a trained and licensed EMT? A. in the past. Q. And that was his way to justify that he could take care of his mother; is that correct? A. Well, that was one, another reason[] why he would be able to take care of mother in addition to other things that he, that he had time. Q. And do you think it would be appropriate for him to take care A. Well [Counsel for Appellees]: THE COURT: Objection, your Honor. Sustained. [Counsel for Appellant]: Q. In your report, you say that Michael used the words, I had A. Well, that was a big issue because, you know, the issue her and physical aspect of she had diapers. And he used that word. And [Appellant] read that as this was a perverse way of - 20 - J-A12035-14 seeing mother. What I understood Michael was saying, his words using it, he was able to, he would be comfortable cleaning mother. So I felt his intent was he would be capable of taking into it, whether mother wanted to have that, or would it be strong reactions in [Appellant], and the emotional level got up, and that they worded into other stuff. But I did not see that that would be a perverse way. (N.T. Hearing, 2/27/13, at 67-69). Thus, the record demonstrates that this physical aspects of care to Mrs. Bush as a guardian of the person, which would, in fact, weigh in his favor. See Rock, supra at 141. On review, we tendency to overreach to an offhand comment instead of focusing on /13, not err or abuse its discretion in declining to remove Appellee Michael Bush as guardian of the person. See Haertsch, supra at 720. This issue lacks merit. against [her] and should have sua sponte Brief, at 60). This issue is waived. Preliminari no recusal motion had ever been made, and therefore this issue had been - 21 - J-A12035-14 Id. at 61; see also Trial Ct. Op., during the proceedings was a recusal motion made, thus this issue should be demonstrated a fixed bias and that her failure to preserve this issue on appea [A] party seeking recusal or disqualification must raise the objection at the earliest possible moment, or that party will suffer the consequence of being time barred. When circumstances arise during the course of a trial still the duty of the party, who asserts that a judge should be disqualified, to allege by petition the bias, prejudice or unfairness necessitating recusal. A failure to produce a sufficient plea will result in a denial of the recusal motion. Failure to request recusal before the trial judge has ruled on the substantive matter before him or her precludes the right to have a judge disqualified. Judicial bias may not be raised for the first time during post-trial proceedings. Crawford v. Crawford, 633 A.2d 155, 159-60 (Pa. Super. 1993) (citations and quotation marks omitted). Here, Appellant did not file a motion to recuse with the trial court. (See the issue on appeal. Crawford, supra at 159. waived. - 22 - Therefore, her claim is J-A12035-14 Moreover, even The party who asserts a trial judge must be disqualified bears the burden of producing evidence establishing bias, prejudice, or unfairness necessitating recusal, and the decision by a judge against whom a plea of prejudice is Commonwealth v. Whitmore, 912 A.2d 827, 834 (Pa. 2006) (citation and quotation marks omitted). Furthermore, it is wellper se Chadwick v. Caulfield, 834 A.2d 562, 571 (Pa. Super. 2003), appeal denied, 853 A.2d 359 (Pa. 2004), cert. denied, 543 U.S. 875 (2004). Here, Appellant claims that the court has a fixed bias against her and credence to testimony from [third parties] that had not seen Mrs. Bush in however, shows that the trial judge has proven herself a fair and patient jurist throughout the long history and multiple hearings for this case, See Chadwick, supra at 571. credibility of witnesses and all conflicts in testimony are to be resolved by finde In re Adoption of A.C.H., 803 A.2d 224, 228 (Pa. Super. 2002) (citation omitted). We will not substitute our judgment for the trial - 23 - J-A12035-14 court regarding determinations of credibility. Thus, we would conclude that, even if Appellant had moved for and thus, the trial court would not have abused its discretion by refusing to recuse itself. Whitmore, supra is waived and would not merit relief. Orders affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 6/24/2014 - 24 -

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