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.
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[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.
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[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
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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
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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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