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HomeMy WebLinkAbout07-09-02IN RE: : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA APPOINTMENT OF A GUARDIAN : OF THE PERSON OF : MILDRED J. GERBER, : ORPHANS COURT DIVISION an alleged incapacitated person, : : Petitioner. : NO. 21-01-92 PETITION FOR REVIEW HEARING COUNT I 1. Petitioner is Marilyn Jo Gerber, daughter of incapacitated person, Mildred J. Gerber, in the above-captioned action, who has a residence at 42 Drexel Place, New Cumberland, Pennsylvania 17070. 2. Respondent is Frederick E. Gerber, II, currently Guardian over the person of Mildred J. Gerber in the above-referenced matter by Opinion and Order of the Court dated December 21, 2001. 3. On March 27, 2002 an Order of Court dated March 25, 2002 was entered directing that the personal guardian of Mildred J. Gerber was required to allow Petitioner to visit with her mother for four (4) continuous hours each week when Petitioner can arrange to be where her mother is located. A true and correct copy of the Order is attached hereto marked as "Exhibit A" and incorporated herein by reference. 4. Petitioner has requested access visits with her mother, Mildred J. Gerber for the following dates: (a) April 7, 12, 17, and 247 2002; (b) May 1, 7, 21, 26, and 31, 2002; (c) June 7, 14, 24 or 28, 2002. Visitations were requested for either June 24, or June 28, 2002 at the Guardian's option with respect to which a reply was not received timely from the Guardian. 5. The Guardian has failed or refused to respond promptly to requests for visits, oRen not doing so until the eve of a requested visit or at times on the day of the visit. 6. Access visits on April 17, May 21, and May 26, 2002 were canceled by the Guardian; Marilyn Gerber was unavoidably not able attend an access visit on June 14, 2002, and promptly notified Jane Heflin. 7. As of on or about December 21,2001, Mildred J. Gerber has been removed from the Commonwealth of Pennsylvania and has been residing with Jane Heflin, her daughter, at 270 North Garfield Street, Lombard, Illinois. 8. Mildred J. Gerber, was only scheduled to visit her daughter in Chicago for the Christmas Holiday. See, Answer to New Matter of Mildred J. Gerber. 9. Mildred J. Gerber has not returned to her New Cumberland residence since the Guardian's removal of her to Chicago in December, 2001. 10. The Guardian and Jane Heflin have refused to allow any access visits with Mildred J. Gerber by Petitioner to occur at Jane Heflin's home, where Mildred J. Gerber is located. 11. Visitations with Mildred J. Gerber are permitted only to occur at the Embassy Suites, Lombard, Illinois, and a hotel room located therein and at no other location. 2 12. The Guardian demands by and through his legal counsel inter alia that the following conditions be met regarding access visits: (a) Access visits occur only on Mondays, Wednesdays and Fridays; (b) Thirty (30) days advance notice of requested dates as provided to the Guardian; (c) The access visits to be conducted only at the Embassy Suites in Lombard, Illinois; (d) No Holiday visits will be allowed; and (e) Access visitations are to be conducted only between 10:00 a.m. and 2:00 p.m. (CDT). See correspondence of Guardian's counsel, Richard C. Rupp, Esquire, dated May 30, 2002, a true and correct copy of which is attached hereto marked as Exhibit "B" and incorporated herein by reference. 13. The Guardian fails or refuses to provide information to Petitioner regarding Mildred J. Gerber's Alzheimer's activities at her Adult Day Care facility or generally concerning Mildred J. Gerber's daily or weekly routine. 14. Guardian fails and refuses to allow Petitioner to accompany Mildred J. Gerber to any Alzheimer's activities, Adult Day Care center activities or otherwise even attend and observe such activities without participation, to allow Petitioner to obtain a further understanding of her mother's condition, ascertain activities enjoyable and productive for Mildred J. Gerber, to foster better interaction with her mother, all to the best interests of Mildred J. Gerber. 15. Petitioner has requested that visits occur between 1:00 p.m. and 5:00 p.m. (CDT) on dates when Petitioner can accommodate her work schedule. 16. Petitioner is willing to support, attend and assist in any of the daily activities of Mildred J. Gerber during visitations. 17. Petitioner is a per diem nurse, engaged on varying shifts, including evenings and nights; Petitioner does not receive thirty (30) days advance notice of her work schedule but receives at times less than two (2) weeks notice of scheduled work shifts; Petitioner often works a five (5) day per week schedule allowing limited interim time-off for travel; the Guardian's imposition of a 10:00 a.m. (CDT) visit is unreasonable and excessively physically demanding on Petitioner. 18. Petitioner, at her sole expense arranges single day travel to Chicago for purposes of conducting the visitation with her mother in accordance with the Court Order of March 25, 2002. 19. As a result of Guardian's scheduling requirements and the accommodations imposed by the Guardian at the location of each visit, all visitations have been terminated less than the four (4) hours directed by the Court in its Order of March 25, 2002. 20. Visitations with Mildred J. Gerber are typically confined and isolated to a small Embassy Suites Hotel room, personally supervised by the presence of the Guardian on April 7 and 12, 2002 and by Jane Heflin and a private social worker engaged by the Guardian on other visitation dates. 21. Jane Heflin, who has attended and/or supervised the visitations, other than April 7 and 12, 2002 and the Guardian who has attended and supervised the visits of April 7 and 12, 2002 have and continue to exhibit hostile, negative and derogatory comments about and toward Marilyn Gerber concerning the visitations, conduct personal business during and to the disruption of the visits, and 4 provoke early termination of visits all in the presence of Mildred J. Gerber and contrary to her best interests. 22. Petitioner has requested that visitations include activities such as walks with her mother either in the Hotel or outside other locations (weather permitting); shopping for clothes, or other items; visits at the Adult Day Care Center or any other place enjoyed or frequented by Mildred J. Gerber; and visits at Jane Heflin's home; however, all such requests have been refused. 23. Visitation requirements imposed by the Guardian and the confinement of visits to an Embassy Suites hotel room, foster an oppressive, strange, disorienting, confining and impersonal environment which are not in the best interests of Mildred J. Gerber, but serve to create anxiety, frustration, agitation and interference with the development of a meaningful, personal visit and interaction by the Petitioner with her mother, contrary to the best interests and the physical condition of Mildred J. Gerber. 24. The Guardian and Jane Heflin continue a course of conduct to hinder, delay and deny access by Petitioner with her mother. 25. Petitioner is a licensed nurse with geriatric care experience whereby third-party supervision of visits with Mildred J. Gerber is not required. 26. As a result of the foregoing, the Guardian has failed to fulfill or perform his duties in accordance with the Order of Court dated March 25, 2002, his appointment plenary Guardian by prior Order of Court on December 21,2001 and thereby act in the best interests of incapacitated Mildred J. Gerber. WHEREFORE, Petitioner respectfully requests that this Honorable Court: A. Order a Review Hearing pursuant to the requirements of 20 Pa. C.S.A. § 5512.2 with respect specifically to the visitations, their location, timing, supervision and related issues; B. Direct a finding of contempt of the Guardian for non-compliance with the Order of Court dated March 25, 2002; C. Direct an Order allowing visitation by the Petitioner with her mother at Jane Heflin's home, or other residence or location where she may be situated; D. Direct an Order allowing visitation, attendance, participation and observation of Mildred J. Gerber by Petitioner at her Adult Day Care center, Alzheimer activities or other locations; E. Direct an Order allowing private visitation with Mildred J. Gerber by her daughter, Marilyn Gerber without third-party supervision; and F. Direct an Order for such other relief as may be just or proper. COUNT II 27. Petitioner incorporated herein by reference its allegations set forth in paragraphs 1 through 26, the same as though set forth at length. 28. Mildred J. Gerber has been removed from her home in New Cumberland and the Commonwealth of Pennsylvania for a period in excess of six (6) months. 29. Mildred J. Gerber has been removed, isolated, and not allowed or offered contact with her friends, neighbors, church and community in the New Cumberland area of her primary home. 30. Upon information and belief, Mildred J. Gerber is not cared for on a daily basis or attended to by any supervised, licensed nursing or other medical personal care providers in her home setting; on the contrary, Mildred J. Gerber is attended to by non-certified and unsupervised homemakers who are without medical training and licensing or CPR certifications. 31. Mildred J. Gerber's physical condition continues to deteriorate, inclusive of weight loss and lack of nutrition. 32. Upon information and belief, a full and complete medical evaluation has not been completed of Mildred J. Gerber, and as of December 2001, she continues to be removed and isolated from the care and treatment of her prior attending primary physicians and care givers, who attended to her both prior to and after the appointment of the Guardian. 33. Contrary to prior testimony of the Guardian that he would be available to visit with Mildred J. Gerber on weekends and deployment for his military duties was not anticipated, the Guardian has had little, if any, personal contact with Mildred J. Gerber in Chicago, and continues his occupation and service as a director of Health Care Operations for the U. S. Army, Office of the U. S. Surgeon General, which duties have required him to be outside the state of his primary residence, Pennsylvania and Illinois where Mildred J. Gerber is presently located, for extended periods in January, February, March and May. 34. The Guardian's activities and duties preclude effective communication with Petitioner regarding visitation and other issues concerning Mildred J. Gerber; the Guardian fails and/or refuses to communicate with Petitioner even for mere confirmations or coordination of visitation dates, requiring substantial communications through legal counsels for Petitioner and Guardian resulting in additional unwarranted expense. 35. The location where Mildred J. Gerber currently resides, being the home of Jane Heflin, is inadequate in size and structure to allow sufficient mobility and freedom of movement by Mildred J. Gerber; such home lacks personal privacy for Mildred J. Gerber and is smaller in area than Mrs. Gerber's New Cumberland residence. Jane Heflin's home is a two-story structure and contains steep stairs both within and from outside the home; said home contains no yard or adequate outdoor area for use by Mildred J. Gerber; said home is believed not to be handicapped accessible or otherwise sufficiently equipped to accommodate the needs of Mildred J. Gerber. Mildred J. Gerber is confined to a limited living area with a single bed in a small room and she does not have her personal property, furniture and possessions to orient and remind her of her family home in New Cumberland. 36. Jane Heflin, and/or other household members, who currently provide daily assistance to Mildred J. Gerber are not licensed or trained to recognize or attend to Mildred J. Gerber's physical or medical needs. 37. Mildred J. Gerber's home of thirty-four (34) years in New Cumberland is and remains available to accommodate her and her Estate, upon information and belief, has sufficient assets to provide for her daily care needs at this home, under proper licensed medical and care supervision; in addition, Petitioner remains willing and available to provide care and assistance to her mother at this location without charge. 38. As the result of the foregoing, the Guardian has failed to fulfill and perform his duties in accordance with the Order of Court dated December 21, 2001 and March 25, 2002, in his appointment as the plenary Guardian and act in the best interests of Mildred J. Gerber. WHEREFORE, Petitioner respectfully requests this Honorable Court to order in accordance with 20 Pa. C.S.A. § 5512.2 a review hearing and issue an order: A. Directing an immediate report of the Guardian in accordance with 20 Pa. C.S.A. § 5521(c)(1)(i); B. Directing regular reporting on a monthly basis in accordance with 20 Pa. C.S.A. § 5521 (c)(1)(ii) with regard to incapacitated persons physical and medical condition; C. Directing the return of Mildred J. Gerber to her home in New Cumberland, under proper care and supervision at her home by licensed nursing or medical personnel and allowing additional visitation and direct care by Petitioner to Mildred J. Gerber. D. Directing a full and complete independent medical evaluation of Mildred J. Gerber and production of all medical, care giver and treatment records for Mildred J. Gerber. E. Making specific findings in accordance with 20 Pa. C.S.A. § 5512.1 (b), pertaining to the general care, maintenance and custody of Mildred J. Gerber, designating the place for Mildred J. Gerber to live and directing that Mildred J. Gerber receive such training, education, medical and psychological services and social and vocational opportunities as appropriate to assist her in the development of maximum self-reliance and independence; 9 F. Such other relief as may be just or proper including the removal of Fred E. Gerber, II as his appointment as Guardian over the person of Mildred J. Gerber. Respectfully submitted, CALD~/ELL & KEARNS Stanley J.A. l~sl~wski, Esquire Attorney ID# 37422 3631 North Front Street Harrisburg, PA 17110-1533 Dated: 7/'~/l..-' (717) 232-7661 01-601/41640 Attorney for Petitioner, Marilyn J. Gerber 10 VERIFICATION I, Marilyn Jo Gerber, verify that the averments in the foregoing Petition are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. 4904, relating to unswom falsification to authorities.