HomeMy WebLinkAbout03-23-10
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Wednesday, October 7, 2009
Carlisle, Pennsylvania
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(The following proceedings were held at 12:50 p.m.:)
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4 THE COURT: Good afternoon. As I understand
5 it from our discussions in chambers, there's no rule issue
6 as to need for a guardian, a plenary guardian of the person
7 and estate. Is that correct, Mr. Kerr?
8 t~IIt. RERR: Your Honor, I have written
9 interrogatories submitted by Mary Lewis Russell, his
10 physician at the Spina Bifida Clinic in Pittsburgh. I think
11 you indicated you would at least like to have them.
12 THE COURT: My understanding, since that's
13 not an issue, Mr. Engle, you agree that can be admitted as
14 an exhibit?
15 Iii. ENGLE: Yes, we do, Your Honor.
16 THE COURT: And Mr. Masland --
17 lit. MAS7~AND: I have no objection, Your
18 Honor. And may be appropriate at this time to note before
19 we get into this that my client Sean Aveni is not present in
20 the courtroom.
21 It is my recommendation that he not be
22 required to be present, and it's my understanding that the
23 parties and counsel agree it's not necessary nor in Sean's
24 best interest to be present at this time. However, if Your
25 Honor would like to speak to him later in chambers, he would
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~ be able to do that.
2 I TSE COURT: Okay. Is that correct, Mr. Kerr?
3 lit. KERR: Yes.
4 NII2. ENGLE: Yes, Your Honor.
5 THE COURT: Okay. Good enough.
6 tit. KERR: Would you like me to hand the
7 interrogatories up to you?
8 THE COURT: Yes. We will mark that as
9 Petitioner's 1. And the petition filed yesterday was the
10 petition to intervene?
11 lit. ENGLE: That's correct.
12 THE COURT: Obviously, we're going to allow
13 the father to intervene and be part of these proceedings.
14 So my determination today is whether one, both, and to what
15 extent the parents will be guardians; is that correct?
16 Int. ENGLE: That's our understanding.
17 lit. KERR: Yes, Your Honor.
18 THE COURT: Okay. Good. So Exhibit 1 is
19 admitted; and, Mr. Kerr, y ou may proceed.
20 Int. Kerr: Okay. I will call Anita Aveni.
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22 ANITA AVENI,
23 having been duly sworn, testified as follov-s:
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DIRECT EXAMINATION
2 BY MR. KERB:
3 Q Could you state your name for the record?
4 A Anita Marie Aveni.
5 Q Where do you reside?
6 A 51 Kensington Drive.
~ Q Where is that?
8 A In Camp Hill.
9 Q Okay. And when did you move there?
10 A August 12th.
11 Q Of this year?
12 A Yes.
13 Q Okay. And with whom do you reside?
14 A My mother and father.
15 Q And who else?
16 A And Sean.
1~ Q And are you the Petitioner seeking an
18 appointment as guardian over the person of Sean Aveni?
19 A Yes, I am.
20 Q And is Sean Aveni your son?
21 A Yes, he is.
22 Q Can you tell me why you left Johnstown?
23 A There was too much controversy between Mark
24 and I, and it was upsetting Sean. He was starting to refuse
25 to eat. Every time Mark and I got into a fight, he would
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crawl back to his room crying. He would tell daddy, you
leave mommy alone, and I couldn't put Sean through that
anymore.
Q And why would he need a guardian?
A Because he can't take care of himself.
Q And can you describe his physical condition?
A He has spina bifida thoracic level. He has
no control or feeling from the nipple line down. He needs
to be cathetered and he has a bowel program. He has a
MIC-KEY tube where he gets administered his medicines. He's
very, very high risk for infections. He has restrictive
lung disease. He has problems breathing. He is scoliosis,
lordosis, and kyphosis; and he mentally is probably, I would
say, second, third grade level.
Q Okay. At the time of his birth, were you
employed full time?
A I was on disability. I was having problems
with my pregnancy. But, yes, I was employed full time.
Q Where did you work?
A Fashion Bug.
Q And what did you do relative to your
employment after Sean was born?
A I quit my job.
Q Why did you quit your job?
A Because I didn't want or trust anybody to
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take care of my son.
Q And can you describe for the Court your daily
activities relative to caring for Sean?
A Well, we would get up in the morning. We
would give him his meds and run water through his tube.
Then we would have to vent his tube, cath him, and lift him
out of bed and take him where he wanted to be if it was the
living room, the computer room, giving him a bath because he
can't --
Q Excuse me for interrupting. Why would you
have to cath him?
A He has no bowel or bladder control. And if
the urine is left in the bladder too long, he would get an
infection. They believe one infection actually put him on a
respirator.
Q And that -- that has happened before?
A Yes, it has twice.
Q Okay. Did your husband assist you with these
activities?
A When he was home, he would cath him and put
him to bed at night.
Q Did he do anything else beyond those two
activities?
A No.
Q What are your concerns relative to your
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1 husband having Sean for overnight periods?
2 A I'm just afraid. Mark has never been one to
3 detect an infection or something wrong with break down, with
4 sores. It could land him into the hospital, could actually
5 take his life. And I don't want to see that happen.
6 Q Was there times over the past 19 and a half
7 years that you expressed concern to your husband about the
8 care he was providing for Sean?
9 A Yes. He wasn't washing his hands before
10 cathing. He was leaving syringes in his bed and dirty baby
11 wipes. When he would get up in the morning, there would be
12 dirty baby wipes in the bed. There would be feces or
13 Betadine left on his legs and his testicles.
14 Q What is Betadine?
15 A Antiseptic we use when we cath Sean to try to
16 get rid of bacteria and germs before we insert the catheter.
1~ Q Anything else?
18 A He just -- he would drink out of containers
19 out of the refrigerator even if he had a cold when Sean
20 would be drinking the same thing.
21 Q Is your husband able to bathe Sean?
22 A No. He hasn't bathed him in 13 years.
23 Q Who has done that?
24 A I have done that. The nurses aides that we
25 have, they have not bathed him. They have assisted in
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lifting into the tub and out of the tub. That is all. I
2 have bathed him all of his life.
3 Q And what have you been able to do based on
4 your experience with caring for these conditions over the
5 last 19 and a half years?
6 A I've been able to tell a difference in Sean
7 when these things are happening, when I need to seek
8 doctor's care like I did down here in Camp Hill. I knew
9 something was wrong, took him to a urologist, and found out
10 he has two kidney stones. I know when my son is sick. I
11 know when he's not acting right and needs to be seen by a
12 professional.
13 Q Was -- was there occasions when you would
14 have to care for him because he went into seizure status?
15 A Yes, he has been seizure free I would say at
16 least 10 years. I was the one that detected the seizures at
17 16 months. I was also told when he was having one of his
18 seizures that I was looking for things to be wrong with my
19 son. We ended up in the emergency room with seizures.
20 Q And could you explain to the Court how
21 fragile his condition is?
22 A Any infection could take his life. He
23 doesn't have the capacity, the lung capacity to fight these
24 things. He doesn't have the strength to cough up the mucus.
25 It's just a daily you have to be aware of what's going on.
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Eventually, he will be ventilated supported where he
2 wouldn't be able to breathe on his own. The pulmonologist
3 said we need to be aware that will happen but trying to keep
4 him healthy to prevent that from happening sooner than it
5 should is my main concern.
6 4 Okay. You might have heard reference to
7 guardianship petition that your husband filed a day or so
8 ago. And I'm going to represent to you that paragraph 3 of
9 that petition states that Sean resides in his domicile in
10 Cambria County. Where does Sean live?
11 A He lives at 51 Kensington Drive, Camp Hill,
12 PA.
13 Q Where does he attend school?
14 A West Shore School District.
15 Q And what type of educational services does he
16 receive?
17 A He receives homebound instruction. The
18 teacher comes to the home because he doesn't -- he can't be
19 around kids that are sick. And he receives OT and PT and
20 speech therapy.
21 Q So who provides the physical therapy?
22 A The school.
23 4 Okay. And you -- and you say that he's
24 receiving occupational therapy as well?
25 A Yes.
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Q Where is his primary care physician located?
2 A Camp Hill, Dr. Katherine Gallagher.
3 THE COURT: But is that just since August?
4 THE WITNESS: Yes.
5 THE COURT: Okay.
6 BY I+Ilt. KERB;
~ Q And have all the medical records from
8 Johnstown been forwarded to the primary care physician here
9 in this area?
10 A Yes, they have.
11 Q And where are his nurse and medical aides
12 located?
13 A They're located here as well.
14 Q And you mentioned he has a urologist now in
15 this area?
16 A Yes, Dr. Prudencio.
17 Q Is that because he developed kidney stones?
18 A Yes. I thought there was something wrong,
19 and they did a CAT Scan and found an infection and kidney
20 stones.
21 Q Now, did Sean have nurses and aides back in
22 Johnstown?
23 A Yes, he did.
24 Q What was their primary function?
25 A The primary function was to help me lift Sean
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1 because he was getting too hard to lift. They helped me
2 lift him in and out of vehicles, in and out of bed, in and
3 out of the bathtub. They would cath him once I felt
4 comfortable with them and just, basically, a companion while
5 I was doing dishes or laundry.
6 THE COURT: You're not saying that you don't
7 want his father to have any time with Sean?
8 THE WITNESS: No. I'm not saying that at
9 all. I'm just saying overnights and long periods of time it
10 scares me that Mark has never picked up on the infections..
11 And I'm afraid that if going untreated I could lose my son
12 altogether. And I just don't want that to happen.
13 THE COURT: Well, there was talk about
14 overnights on weekends and things like that.
15 THE WITNESS: Yes. But then they said about
16 summer, all summer long. He would have him from June, July,
17 and August. I just don't -- I mean --
18 THE COURT: So you're okay with the weekends?
19 THE WITNESS: I'm okay with weekends. I have
20 no problem with weekends as long as -- I don't have a
21 vehicle. The van that I took from the house, the brake
22 lining rotted. I lost my brakes while driving the van. It
23 has no brakes, and the frame of the vehicle is rusted
24 through. I can't even drive that.
25 THE COURT: And I understood that you didn't
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have a problem him staying for a length of time when his
2 father was on vacation?
3 THE FTITNESS: I have a problem with it. I
4 don't like it. But I -- no. I have to give a little, but
5 it scares me. I mean, I would probably -- on those times,
6 I would like to stay with my grandmother so that I could
7 check on Sean while he's with Mark because my grandmother
8 resides in Johnstown. So I could stay with her. I would
9 even be willing to go up and cath him for Mark.
10 THE COURT: Okay.
11 BY IrIlt. KERB:
12 Q Back to the nurses and medical aides that he
13 had in Cambria County that you said assisted you in lifting.
14 What was the degree of medical training of the nurses?
15 A LPNs and certified nurses aides.
16 Q And was that because throughout social
17 service agenc ies you weren't able to get an RN or someone of
18 a higher leve l?
19 A Correct. Unless he was on the ventilator, we
20 could not get an RN.
21 Q Does that cause you any concern?
22 A They don't have to keep up with education,
23 and there are a lot of things that are new out there they're
24 not aware of. And it scares me.
25 Q And just to put this testimony on the record
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about the Spina Bifida Clinic, how often do you take him to
2 the Spina Bifida Clinic?
3 A Once a year. And if I have any problems, I
4 call them.
5 Q Where is that located?
6 A Pittsburgh, Allegheny County.
7 Q Is that at Children's Hospital?
8 A Yes, it is.
9 Q So those types of medical personnel aren't in
10 Cambria County?
11 A No, they're not.
12 Q What -- what degree of medical personnel does
13 he see at the Spina Bifida Clinic?
14 A He sees neurosurgery, orthopedics,
15 rehabilitation, and physical medicine, urology, social
16 services if we need them, occupational therapy, and physical
17 therapy. They come in and evaluate him, and then we have a
18 nurse coordinator who I speak often with if he feel there's
19 a problem.
20 Q And have they indicated to you what the
21 greatest danger to Sean is in terms of something that could
22 happen quickly that would take his life ?
23 A A re spiratory infection. Any infection could
24 take his life. He had a urinary tract infection and ended
25 up on a ventilator. We thought we were going to lose him
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because of a urinary tract infection. They could find
2 nothing else.
3 Q When he was born, how long did they tell you
4 the life expectancy would be?
5 A They estimated seven years.
6 Q How old is he?
~ A Nineteen years. He will be twenty next
8 month.
9 Q These custodial arrangements require a
10 lengthy period of time?
11 A Yes. Yes. I know when my son is sick.
12 Q I've presented you with what's been marked as
13 Petitioners No . 2. Can you tell me what that is?
14 A It's a representative pay report for Sean's
15 Social Security.
16 Q And what does -- what -- what is meant by a
17 representative pay?
1B A I decide where his Social Security, SSI goes
19 for his care.
20 Q And are you identified on that form as -- as
21 the representative?
22 A Yes, I am.
23 Q Is your husband also a representative?
24 A No, he isn't.
25 Q And how long have you been the representative
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for his Social Security?
2 A Since he's been receiving SSI.
3 Q And how -- how are those funds distributed to
4 Sean? How -- how would they get to you?
5 A We used them to provide a roof over his head,
6 clothing, food, anything we needed, medicine.
7 Q And -- and how would those funds get to you?
8 A They were directly deposited into our
9 checking account.
10 Q Okay. Now since the time that you left
11 Johnstown, has Sean continued to get those funds?
12 A I got September's. And October's was sent to
13 51 Kensington Drive.
14 Q How did you get September's?
15 A Mark sent it by money order.
16 THE COURT: Wait. Does it come in a check or
17 --
18 THE WITNESS: It was direct deposited in our
19 checking account. But since I left home, Mark sent a money
20 order for September's. And October's came as a check in the
21 mail.
22 BY I~Ilt. KERB:
23 Q And it's being sent directly to you in
24 Cumberland County?
25 A Yes, it is.
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Q But you left in August, right?
A Yes, I did.
Q Have you received August's funds?
A No, I haven't.
Q Has your husband given you a reason why those
funds weren't also sent to you via money order?
A No, they weren't.
Q Has he given you a reason?
A No, he hasn't.
Q And at some point, you left. Did you call
him and say, Sean needs money?
A I asked him to. Sean and I both needed
money. We had prescriptions that needed to be picked up,
and he shut off my MAC card or his MAC card. Mine was taken
to Turkey by accident by my niece. Mark changed the PIN
number so I couldn't call the bank and get information on
our checking account.
Q How much money did he send to you?
A I believe it was $701.40.
Q And how much does Sean receive monthly from
the Social Security Administration?
A Around $701.40.
Q And you've never received that for August?
A No, I haven't.
Q Now, I'm going to represent to you that
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1 paragraph 20 of your husband's Petition to Intervene says
2 the Petitioner has been the primary custodian for Sean A.
3 Aveni's estate. Is that an accurate statement?
4 A No, it is not.
5 Q Who has been the primary custodian for his
6 estate?
~ A I have been.
8 Q Okay. Paragraph 19 of his Petition to
9 Intervene says that Petitioner has shared equally in the --
10 Petitioner, meaning your husband, has shared equally in the
11 management of Sean Aveni's medical conditions and necessary
12 medical treatments. Is that statement true?
13 A No, it's not.
14 Q Who has basically handled his medical
15 conditions and necessary medical treatments?
16 A I have. I have made every doctor's
17 appointments. I've gone to every doctor's appointment.
18 I've stayed at the hospital when he's been admitted. I
19 never came home until he came home except when I had him
20 when I gave birth emergency C-section. He didn't get
21 discharged. That's the only time he's been in Children's
22 Hospital by himself.
23 Q There's been discussion that you left on
24 August 12th and relocated to Cumberland County?
25 A Yes.
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4 Is there talk of divorce over the years
2 between you and your husband?
3 A Yes, many years. I even asked Mark to leave
4 and Sean and I would stay in the house, and he refused to
5 leave.
6 Q And why did you stay for so long?
7 A I didn't want to do this to Sean.
6 Q Was there -- were you concerned about Mark's
9 ability to manage his medical conditions if you left?
10 A I would never have left Sean there.
11 Q Okay. Have you taken Sean on family
12 vacations?
13 A For 19 years every July my family and I go on
14 vacations. Mark has participated twice in the 19 years, and
15 he does take his vacation while we're on vacation. And he
16 stays home and does his golfing or whatever it has he wanted
17 to do. He doesn't participate in family vacations.
18 Q Do you have the resources to care for Sean?
19 A I have the ability to care for my son
20 financially. I have a backing of my family.
21 NIIt. KERR: Okay. No further questions, Your
22 Honor.
23 THE COURT: Cross-examine, Mr. Engle.
24 1rIIt. ENGLE: Thank you, Your Honor.
25
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~ CROSS EXAMINATION
2 BY MR. ENGLE:
3 Q Ma'am, you said ou _
y quit working when Sean -
4 after Sean was born; is that correct?
5 A Yes, I did.
6 Q And you haven't worked since then?
~ A No, I haven't.
B Q And you don't have any employment here?
9 A No, I don't.
10 Q Have you looked for any sort of employment
11 here.
12 A No. I take care of my son.
13 Q And you don't intend on seeking any sort of
14 paying job, correct?
15 A No, I do not.
16 Q So you're going to totally rely upon the
17 financial support of your family I'm assuming?
18 A Yes.
19 Q And with regard to the management of the
20 funds, you had indicated that you were Sean's primary estate
21 manager; is tha t correct?
22 A Correct.
23 Q And was some of the money that was -- Sean
24 was receiving o f the $701.40, was that being utilized for
25 household expen ses as well?
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A Of course, yes.
Q The mortgage?
A Yes. That was a roof over his head.
Q Utilities?
A Yes. It went right in the checking account,
food, groceries.
~ Q And when you left Mr. Aveni, you also left
8 him with the sizeable amount of credit card debt; is that
9 right?
10 A Yes.
11 Q Approximately $20,000?
12 A Approximately.
13 Q Did you advise him of that amount of debt?
14 A He was aware of that when I lift.
15 Q But shortly -- only shortly before you left?
16 A Some of it.
17 Q Now, you had indicated that Sean had to go to
18 the hospital on at least two occasions; is that correct?
19 A Oh, he went to the hospital on more than two
20 occasions. He was on a respirator on two occasions.
21 Q When was that approximately?
22 A Approximately six years ago and approximately
23 -- I don't know eight, nine years ago.
24 Q And that was when he was in your care as
25 well?
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A Yes.
Q And were either of those times directly the
result of something that Mr. Aveni did or did not do for
Sean?
A Not him or I.
Q Pardon?
A Not him or I that I know of.
Q Now, you indicated that the primary function
of the nurse aides that attend to Sean in Cambria County
were to lift Sean, to cath him, and to serve as companion;
is that correct?
A Correct.
Q And that you were the only one who bathed
him?
A Yes, I am.
Q And it's your testimony that none of those
nurses ever bathed him?
A Never.
Q Are you aware or do you know if those nurses
keep notes?
A Yes, I am aware.
Q Have you seen those notes before?
A I probably have seen them.
Q And if I showed some of those to you, would
you be familiar with those?
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1 A Probably.
2 I~4t. ENGLL: Your Honor, may I approach?
3 BY [fit . ENGLE
4 Q Ma'am, I'm going to show you what appear to
5 be some notes. Will you identify them for me, please?
6 A Yes, they're Megan Miller's, nurse.
~ Q She was one of the nurses in Cambria County?
8 A Yes, she was the last one.
9 Q Who was the other nurse that assisted Sean?
10 A We had a nurse named Teresa, Pat Duncan.
11 Q How about Phyllis?
12 A Phyllis was an aide. She wasn't a nurse.
13 Q And let me show you specific passage. These
14 are date d August 8th. On this note -- of 2009. And some of
15 these ar e very, very difficult to read. But the handwritten
16 portions are relatively easier. Can you look on there and
17 tell me if they've given him medications in the past?
18 A Yes, they've given medications.
19 Q Okay. So they don't just cath him? I
20 mean --
21 A That's routine, getting him up. Whatever I
22 haven't finished in the morning.
23 Q They check him for infections?
24 A Well, I guess would try to notice if there's
25 an infection.
24
Q Okay. But it indicates in the nurses notes
2 no signs of infection, powder was applied. You would agree
3 with me they would check him for infections?
4 A Yes.
5 Q All right. With regard to this date on
6 August 8th, there's a note there. Can you read that?
7 A Tub bath given, hair washed, and patient
8 shaved. Senokot in tub. Soaked in tub for short while.
9 Lotion applied.
10 Q So they participated in a tub bath of Sean?
11 A Well, they sat in the bathroom while he was
12 in the tub. They didn't give him a bath.
13 Q Okay. But nonetheless, they are still
14 capable of that?
15 A Of sitting in the bath -- in the bathroom
16 while I'm giving him a bath, yes, or sitting in there while
17 he's soaking in his Aveno skin care.
18 Q Okay. Did you ever report these nurses or
19 express any concern to their supervisors regarding the
20 quality of care that Sean was given under their watch?
21 A I've only reported Pat Duncan who I fired
22 because of the care that Sean was receiving.
23 Q How long was Pat caring for him
24 approximately?
25 A Approximately six months to a year maybe.
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Q All right. And you don't have any -- you
don't have any concerns regarding the care that either
Phyllis or Megan was giving him to you?
A Phyllis is not able to cath him. Phyllis is
not able to give any of that, not give meds, nothing.
Megan, I liked Megan.
Q All right. And all his doctors, all Sean's
primary care physicians, the urologist, the Spina Bifida
Clinic and so forth, those are all in Cambria County or
Allegheny? They were at the time of August 12?
A They were -- Allegheny County was Children's
Hospital. And the pediatrician was in Johnstown.
Q And your husband in the past, he's cathed
Sean, correct?
A Yes, he has.
Q Any concerns other than him not washing his
hands?
A Well when I walk out in the living room and
he has his hands down his pants and he goes in to cath Sean,
I have a problem with that.
Q Any physicals or direct hospitalizations
caused by my client?
A I can't say yes. I can't say no. He has
dropped a catheter and picked it up and used it.
Q And when he was in school in Johnstown, he
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was also receiving physical therapy and occupational
therapy?
A Yes, at home.
Q And would you agree with me that type of
assistance in still available for Sean in Cambria County?
A If I stop it in Cumberland County, yes.
Q And would you also agree with me that -- that
Mark loves Sean and wouldn't want to see anything happen to
Sean?
A Yes, I think Mark loves his son.
lit. KERR: Those are all the questions I
have, Your Honor.
THE COURT: Mr. Masland?
IrIIt. L~SLAND: Thank you, Your Honor. I only
have a couple just to maybe complete the record.
CROSS ERAMINATION
BY tit . MASLAND ;
Q Miss Aveni, when you were reciting the list
of the various ailments Sean has, I might have missed it.
But did you mention hydrocephalus?
A No. I believe -- I didn't. He has
hydrocephalus, water on the brain. And he has shunts and
never had a shunt revision. Doctor said he has outgrown the
need for the shunt. We don't pump it anymore. But it is
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possible for him to have a malfunction, a shunt malfunction.
Q Thank you. Regarding his schooling, it's my
understanding that although he graduated from high school in
Cambria County he's eligible because of his condition for
continued education for the next how many years?
A I believe it's the next 3 until he's 21, goes
on 22. But he graduated just as a social thing to graduate
with his peers and his friends from school.
Q Okay. So does he have a couple more years in
school?
A Yes. He didn' t receive a diploma.
MR. MAS7~AND: Thank you. I have nothing
further.
THE COURT: Thank you, ma'am.
MR. KERB: May I ask a follow-up question?
THE COURT: Okay. Hold on, ma'am.
REDIRECT EXAMINATION
BY MR. KERB:
Q Counsel is asking you about the availability
of physical therapy, nurses and aides in Cambria County.
And I thought you said only if you stop it in Cumberland
County. Could you explain that?
A Well, I don't believe you can have two school
districts paying for the same service. Being that it's
28
coming from the West Shore School District, that's where the
2 physical therapy and the occupational therapy take place.
3 If he wouldn't -- he can't be in school in two different
4 places.
5 I Q And is it --
~ EXAMINATION
8 BY THE COURT:
9 Q What happens when you're on vacation?
10 A We go on vacation in ask July usually.
11 Q Okay.
12 A And then --
13 Q So it doesn't -- so those programs aren't
14 continued?
15 A In the month of July, we are. And we get the
16 hours in before or after we get home from vacation. I've
17 become very good friends with the therapist and the teacher.
18 So we work aro und so he doesn't miss anything. But it's
19 only for one week in July does he have school.
20 Q Wait. I'm confused.
21 A It's called extended school year.
22 Q Okay.
23 A Where he gets just a week in July.
24 Q So from that week in through September, the
25 program stops?
29
A Yes.
2 THE COURT: I understand.
9 REDIRECT EXAMINATION (cont'd)
5 BY MR. KERR:
6 Q Is the fact that he may not be able to get
7 these services in Cambria County and in Cumberland County
8 one of the reasons for your insistence that your husband be
9 physically present on any custodial visits?
10 A Can you explain that? I don't understand
11 what you're asking me.
12 Q If -- if Sean would go and visit his father
13 in Cambria County, would nurses, aides, and physical
19 therapists be able to be there?
15 A I really don't know how that works. I don't
16 know -- I would do it without the aides and the nurses. I
17 don't even need them.
18 Q Is that the reason you want your husband to
19 be physically present if your husband is visiting him or in
20 his custody?
21 A Yes. I want my husband to be the one that's
22 taking care of him, not somebody else.
23 MR. KERR: Okay. No further questions.
24 THE COURT: Any follow-up on that?
25 MR. ENGLE: No, Your Honor.
30
THE COURT: Mr. Masland, any follow-up?
2 MR. MASLAND: No, Your Honor.
3 THE COURT: Now you may step down. Okay.
4 Let's here from dad.
5 MR. ENGLE: Sure. Mr. Aveni, take the stand,
6 please.
8 MARK RICHARD AVENI,
9 having been duly satorn, testified as folloF-s
10 DIRECT EXAMINATION
11 BY MR. ENGLE:
12 Q All right. Sir, your name?
13 A Mark Richard Aveni.
14 Q And, sir, what's your address?
15 A 220 Erford Lane, Johnstown, Pennsylvania.
16 Q And that's in Cambria Count ~
y, correct.
17 A Correct.
18 Q And, sir, where do you work?
19 A Store manager for Dollar Tree.
20 Q And is that near where you live?
21 A It's approximately one 10th of a mile from
22 where I live.
23 Q Now, I want to skip right to your son because
24 I know the Judge wants to hear about your son. With regard
25 to the care you 've provided to Sean since he was born, can
31
you tell us about that?
2 A Well, I cathed -- when I'm working open to
3 close, I would come home from work at 9:20. I would put
4 Sean to bed. First, I would get his bed ready, pull his
5 sheets down, put the bed down, get all his cathing stuff
6 ready, prime his kangaroo pump, get his medicine.
~ And when it was bedtime, I would pick Sean up
8 off the floor, put him in bed. I would cath him, give him
9 his medicine, give him his breathing treatment. I would set
10 the timer on the stove for an hour to let the kangaroo run
11 for an hour at full speed for his water and put his BiPAP
12 on.
13 Q Now, how many medications is Sean on?
14 A He gets three at night and four in the
15 morning. He gets Conlia (phonetic), Stitchman (phonetic) in
16 the evening and then gets Singular in the morning with an
17 Albuteral breathing treatments at both times, one in the
18 evening and one in the morning, and then Senokot once a
19 week.
20 Q And did you and your wife work as a team to
21 care for Sean?
22 A Yes.
23 Q And what about the nurses or the nurses aides
24 that were there during the day? How would they help out?
25 A They would come at 8:00 in the morning. I
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would leave for work at about quarter to 8. They would, I
guess, finish giving Sean his medicine, get him up, cath him
if it needed to be done when they got there. And then
usually in the summertime, Sean would be calling me at 9:30
in the morning and saying he was on his way up to where I
worked.
Q And what is your work schedule? Can you tell
the Judge in general terms?
A I work open to close on Mondays, Tuesdays,
off Wednesdays, and Thursdays 8 to 5. Friday I work 12 to
9:30 and Saturday 8 to 5. And then it varied when I worked
on Sundays. I would work 8 to 7:30 and Monday 8 to 5.
Tuesdays I would be off. Wednesdays and Thursdays 8 to 5.
Fridays I went off, and Saturday I alternate either in the
evening or closing shift or the opening shift.
Q So what I'm hearing there is essentially
there's three days a week where you're not working; is that
correct?
A That's correct.
Q And so you would be responsible in the
morning to help get Sean up and get him dressed and so
forth?
A She would usually get him up in the mornings.
I would put him to bed every evening. If I needed to help
her I would help her, but she usually got him up in the
33
mornings.
2 Q And the nurses aides would not be there when
3 you were there?
4 A That's correct. She scheduled the nurses
5 aides around my work schedule so they weren't there when I
6 was home.
~ Q That's because you would help with Sean?
8 A Right.
9 Q And if you were to have Sean in your care and
10 custody and you would be working, would you utilize the
11 nurses aides to assist you?
12 A Yes, I would.
13 Q And your wife testified that you've never
14 bathed Sean?
15 A I helped Anita get him in the bathtub. I
16 never actually gave him a bath. When I was home and help
17 many of times the both of us would carry him into the
18 bathroom, put him into the bathtub. She would physically
19 give him a bath. And when it was time, we would drain the
20 tub and both pick him up and carry him back into his bed so
21 I was in assistance in that form, yes.
22 Q And would you feel comfortable being the one
23 who was primarily to care for Sean if he was to live with
24 you during the summer?
25 A Absolutely. I mean, I can take care of my
34
son. Absolutely.
2 Q When Sean was in the hospital, I believe your
3 wife testified he had two respiratory incidents?
4 A One was in the mid '90s and one was 2005.
5 Q And did you also go to the hospital as well?
6 A I was there both times absolutely. We -- the
7 first time, it was an experience I hope I never have to deal
8 with ever again in my lifetime. Sean was on the 9th floor
9 in Children's Hospital. He was having difficulty breathing.
10 They got an ICU doctor to come up and look at Sean. She did
11 not like the way Sean was breathing.
12 They took him down to the Intensive Care
13 Unit. And Anita and I were at the foot of Sean's bed; and
14 all of the sudden, his oxygen level went from 100 to 40
15 right in front of our eyes. And they made us leave, and it
16 was probably the longest 2 hours I ever spent sitting in a
17 hallway.
18 And when the double doors opened up and the
19 doctors came up, the first question was he alive. And they
20 said yes, and they told us that they had to get some social
21 workers to talk to us to prepare us for what we were about
22 to see because we both wanted to go in and see him
23 immediately.
24 So the social workers came, prepared us
25 because Sean was on an oscillating ventilator. He was ice
35
1 cold. And it was going bop, bop, bop. And Sean was just
2 laying there, and he was like that for I would say a good 24
3 to 36 hours until they were able to put him onto a
4 conventional ventilator.
5 And he was there for 21 days, and we were
6 there. I was there for 21 days with him sleeping in the
7 waiting rooms, living in the hospitals. I didn't leave
8 Sean's bedside neither the 2 times he was there.
9 Q Now, do you have other r elatives in the
10 Cambria County area where you live that can assist you in
11 caring for Sean as well?
12 A Yeah. My brother and my mother and father
13 live there. Absolutely.
14 Q And your brother is here in court with us
15 today?
16 A Yes, he is.
17 Q And do you think you have the capacity and
18 the ability to care for your son if it's during the summer,
19 if it's during the weekend?
20 A Yes, I do. I know my son. I know his needs.
21 And I could take care of him, yes, sir.
22 lit. ENG7~E: All right. I have nothing
23 further, Your Honor.
24 THE COURT: Mr. Masland, d o you have any
25 questions?
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MR. MASLAND: No, Your Honor.
MR. RERR: May I ask him some questions,
Your Honor?
THE COURT: Absolutely.
CROSS EXAMINATION
BY MR. KERR:
Q Mr. Aveni, you indicated in response to your
lawyer's question that you have a brother, mother, and
father out there who are able to care for your son; is that
true?
A Yes.
Q Are they able to cath him?
A No.
Q Okay. And how many times does he have to be
cathed each day?
A Four times a day.
Q Did your wife ever speak to you about
syringes you left in the bed?
A I was listening to her testimony. And maybe
I could recall one time in 19 years that that happened. But
it wasn't -- it -- if it did happen, it was by accident. I
would never do that on purpose.
Q I don't think anyone is suggesting you would
do it on purpose.
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A I am just saying I heard her say that and --
Q How about the dirty wipes left in his bed
from cleaning his behind?
A Maybe one time on that occasion too, yeah.
Q How about the Betadine not being wiped off
and feces left on his leg?
A No. I know how to cath my son, and I know
how to take care of him. And I know how to cath him and
clean him up before he goes to bed. So I don't know what
she was talking about there.
Q Your testimony is she never spoke to you
about any issue like that?
A No.
Q Have you ever dropped the cath to the floor
and then picked it up and put it back in?
A No. No. I mean, I know if I would drop a
catheter on the floor I would get another catheter. I mean,
we have boxes of them in the home. I know that's careless.
That would be something that would give him an infection.
So no.
Q So -- so if an RN were to testify that she
witnessed you do that, there's no way that happened?
A No. Not to my knowledge, no.
1~Ilt. KERB: Okay. That's all the questions I
have for now.
38
THE COURT: Any follow-up?
2 MR. ENGLE: No, Your Honor.
4 EXAMINATION
5 BY THE COURT:
6 Q She mentioned that if your son were in
7 Johnstown for any length of time that she could stay at her
8 grandmother's? Would you have any objecti on to her staying?
9 A I wouldn't need my wife to stay in Johnstown.
10 Q While you're working?
11 A I would have -- all I have to do, Your Honor,
12 is make a phon e call to Interim Health and talk to Deb
13 Beckner. And she told me that Sean would have his aides and
14 nurses back tomorrow if I needed them.
15 Q That's if you -- if he came to live with you
16 but --
1? I A Like we talked about if he would come to live
18 with me in the summertime.
19 THE COURT: Any follow-up on what I asked?
20 MR. 1CERR: No, Your Honor.
21 ---------
22 RECROSS EXAMINATION
23 BY MR. ENGLE:
24 Q Mr. Aveni, I think where the Judge is going
25 with this is do you have any problems allowing your wife to
39
come and help care for him during the summer if she were to
2 come up there?
3 A I don't need her to come and help.
4 Q But if she would want to?
5 A I wouldn't have any problem with that. That
6 is Sean's mom. I mean, I'm not going to deny her to come
7 and be with him to see if he was okay. But I'm his dad too.
8 And I love him more than anything in this world, and I would
9 never do anything to ever hurt him.
10 THE COURT: Thank you.
11 THE WITNESS: You're welcome.
12 THE COURT: When is mom's vacation in the
13 summer? You said July. Is it always the same week in July?
14 MS. AVENI: No. My sister is in the Air
15 Force, so it's when she can come home. She's in Guam right
16 now, so I don't know when she will be home.
17 THE COURT: How do you know it will be July?
18 MS. AVENI: We always make it for July.
19 There's four of us.
20 THE COURT: Okay. Anything else?
21 MR. KERR: Two other witnesses, Your Honor,
22 if you care to hear from them.
23 THE COURT: Who are they, and what are they
24 going to say?
25 MR. KERR: One is Mickey Sourbeer who's an
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RN who's a sister of my client who would go out every
November during hunting season for two weeks and help Anita.
And her testimony would be that she's
witnessed Mr. Aveni drop the catheter on the floor, put it
right back. I also have the physical therapist that cared
for Sean since he was two-years-old available by telephone.
And she's in a unique position to have been able to observe
the care that both mom and dad have provided, and she's
available with her cell phone if you would like to hear from
her.
THE COURT: What's she going to say?
MR. RERR: I think she's going to say that
the mother provided exceptional care and the father's care
wasn't as good.
THE COURT: All right. I'll hear from both
witnesses.
MR. RERR: Okay. I'll call Mickey Sourbeer
then.
MICKEY LEIGH SOURBEER
having been duly sr~orn, testified as follops:
DIRECT EXAMINATION
BY MR. 1CERR:
4 Based on the way you said I do, I think
you're going to have to speak up or bring the microphone a
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little closer to you. Can you state your name for the
record?
A Mickey Leigh Sourbeer.
Q Where do you live?
A Lancaster County.
Q Lancaster County. And what is your
employment?
A I am an RN, registered nurse.
Q Where do you work?
A I work at Willow Valley Retirement Community.
Q And was there occasions when you went out to
Johnstown to help your sister with the care of Sean?
A Yes.
Q And can you describe those for the Court?
A Anita was the primary caregiver. I would
help her lift him because she had no other help lifting him.
I would help her give Sean medicine via his MIC-KEY button,
help her bathe him, play with him, and assist her in
anything she needed done.
Q And what type -- how long of periods were
these for?
A Sometimes two weeks, three weeks, long
weekends, multiple times, whenever I could get off work.
Q Were you able to observe her husband caring
for his son?
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A Sometimes, yes.
Q And can you describe those for the Court?
A I observed Mark. I would lay in bed with
Sean while Ma rk would give him his medicine and cath him at
night. And I observed him dropping a catheter on the floor,
pick it up, a nd continued to cath Sean with it.
THE COURT: When was that?
THE WITNESS: Probably about two years ago.
MR. KERR: I have nothing further, Your
Honor.
CROSS EXAMINATION
BY MR. RERR:
Q Miss Sourbeer, you said you're Anita Aveni's
sister?
A Aveni, yes.
Q Other than that one incident when you saw my
client drop a cath and continue to use it, did you otherwise
note his care was inappropriate?
A Yes.
Q It was?
A Yes.
Q How so?
A He was sick one time with a horrible cough,
and he was drinking iced tea out of the iced tea container
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and gave Sean iced tea out of that same container.
Q And how long ago was that?
A Probably the last time I was back there
probably maybe -- over six months ago. I would also be
talking to Sean on the phone while Anita went to the store
because Sean would holler for his father to answer him and
he wouldn't answer him. So I would talk to Sean on the
phone while his mother went to the pharmacy to pick medicine
up or something. And I would talk to Sean until Anita got
home.
Q But you weren't present then, correct?
A No.
1~2. ENGLE: That's all the questions I have.
THE COURT: Mr. Masland, do you have any
questions?
@~2. MASLAND: No, I don't, Your Honor. Than k
you.
THE COURT: Thank you, ma'am.
NH2. I~RR: This is John Kerr. You're on a
voice box speakerphone in a courtroom before the Honorable
Edward Guido. And I would like to ask you some questions,
and then other counsel will also ask you questions. Are you
willing to engage in that?
MS. REPAK: I am. I have a limited time
frame .
44
IrIlt. KERB: About how much time do you have?
2 MS. REPAK: I probably have about 10 minutes.
3 1~Ilt. KERB: Okay. I will be very quick then.
4 I'm sorry. You have to be sworn in first.
6 ANTOINETTE REPAK,
~ having been duly sNOrn, testified as follows:
8 DIRECT EXAMINATION
9 BY MR. KERB :
10 Q Can you state your name for the record?
11 A My name is Antoinette Repak .
12 Q And do you know Sean Aveni?
13 A I do.
14 Q How do you know him?
15 A I have been Sean's physical therapist since
16 he has been three years old.
17 Q And in that capacity, where would you provide
18 his physical therapy services?
19 A When Sean was well, I would provide the
20 services in the school setting. And there was a period when
21 Sean was bro ught to an outpatient clinic where I provided
22 services. B ut most recently over the past several years,
23 his services have been provided in the home due to health
24 concerns.
25 I Q And while providing these services, did you
45
1 I have occasion to meet Anita and Mark Aveni?
2 A Yes.
3 Q And tell us a little bit about Anita's
4 interactions with her son or any observations you have about
5 her care for her son.
6 A Well Anita, has always been the primary
7 caregiver that I interacted with. She -- she's been the one
8 that's been at home; and she was the one that would bring
9 Sean to the clinic for me to do outpatient services with.
10 When Sean was in school and there was
11 occasions that he became ill, she would be the one that
12 would call and would come to get him. So she's been the
13 primary caregiver that I've interacted with and since Sean
14 has been three years old.
15 Q And have you had occasion to see Mark Aveni
16 through -- through any of these interactions as all?
17 A I -- I have. Mark has been there on
18 occasion. Primarily, though, I have not seen him do direct
19 care so much with Sean. I have seen him play with Sean and
20 interact with him and seen him feed him. But 2 can't say
21 that I've actually seen him give direct care such as Anita
22 has with catheterization and bathing. I cannot say -- I
23 can't attest to that.
24 lei. KERB: Okay. That's all the questions I
25 have. Other I counsel may have questions for you.
46
THE WITNESS: Okay.
2 MR. ENGLE: I don't have any questions, Your
3 Honor.
4 THE COURT: Mr. Masland?
6 CROSS EXAMINATION
7 BY MR. KERR:
8 4 I'm not sure this was specifically asked.
9 I'm Sean's attorney. But you have seen Anita provide the
10 primary care; is that correct?
11 A That is correct.
12 Q Did you ever have any problems with the care
13 she provided?
14 A No. Anita has always been very particular
15 about the care and the caregivers especially over the most
16 recent years when Sean has been more susceptible to illness
17 and, you know, does take extra precautions not to let people
18 come into the home that are ill and make sure that you wash
19 your hands before you work with Sean so that he does not
20 take any chances in becoming ill again.
21 MR. MASLAND: Okay. Thank you. I have
22 nothing further, Your Honor.
23 THE COURT: Do you have any questions?
24 MR. KERB: I do not. Thank you very much.
25 THE WITNESS: You're welcome. Is that all?
47
THE COURT: That's it. You may be excused.
2 Do you wish to present any other testimony?
3 MR. ENGLE: No, we do not, Your Honor.
4 THE COURT: And Mr. Masland, do you want to
5 tell me the preferences of the Guardian ad Litem and/or your
6 client?
~ NII2. 1~SLAND: My client's preference and it's
8 my believe that it is also appropriate for the mother to be
9 the primary guardian. If Your Honor believes it's
10 appropriate to have co-guardians, that I think certainly
11 could be worked out. But I think the primary guardian
12 should be the mother.
13 My client has difficulty expressing himself
14 with respect to how he wants to see his father. I know he
15 loves his father. I know he wants to see his father, but he
16 gets very emotional in terms of saying whether he wants to
17 visit or whether he wants to go there and things like that.
18 So I have not pressed him on that issue, but I know he does
19 care very much for his father and his mother and prefers his
20 mother as the primary guardian.
21 THE COURT: I wasn't clear. When does school
22 end?
23 M3. AVENI: Usually the beginning of June.
24 THE COURT: I thought you said something
25 about July.
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M3. AVENI: July he has extended school year.l
It's like summer school.
THE COURT: So he is off in June but then
goes back in July.
MS. AVFNI: Until actually -- yeah.
back to -- he shows regression when he doesn't have
schooling. He forgets things.
THE COURT: So he's been done in June
goes back in July. He's done then until when?
It comes)
He
MS. AVENI: The end of July. Then he's done
until September.
THE COURT: Okay. Good enough.
AND NOW, this 7th day of October 2009, after
hearing, we find Sean A. Aveni to be an incapacitated
person. His mother, Anita M. Aveni, and his father --
what's your full name? I'm sorry.
I~Il2. AVENI: Mark Richard.
THE COURT: Mark Richard -- Mark R. Aveni,
are appointed plenary guardians of his person. His mother,
Anita M. Aveni, is appointed plenary guardian of his estate.
Anita M. Aveni shall be the primary plenary
guardian of the person of Sean A. Aveni, and he shall reside
with her. Provided however, that he shall visit with his
father every other weekend -- he shall visit with his father
as follows:
49
1. Every other weekend from -- I heard
2 you're workin g on Friday. When do you want --
3 [rot. AVENI: 16th of October would be fine,
9 that weekend.
5 THE COURT: But did you want each weekend
6 from Friday or from Satur day until --
~ Irat. AVENI: Friday to Sunday.
B THE COURT: Friday to Sunday. What time
9 Friday?
10 Irgt. AVENI: 4:00.
11 THE COURT: Okay. And are you going to meet
12 halfway?
13 M3. AVENI: I don't have a vehicle.
14 lit. AVENI: Yes. Breezewood.
15 THE COURT: Is that halfway?
16 NIlt. AVENI: (The witness nods his head.)
17 THE COURT: Okay. But --
18 NIIt. FCERR: The vehicles are a difficulty,
19 Your Honor.
20 THE COURT: Okay. But she has family.
21 MS. AVENI: Providing the roads -- if there's
22 a snow storm.
23 MR. AVENI: Your Honor, I would not even
24 attempt if the weather was bad to even put them into that
25 predicament.
50
THE COURT: Here is the bottom line. Based
2 upon what I heard today, both parents, God bless you, love
3 this child dearly. And while you may not get along with
4 each other, both of you would give your life for this child.
5 I think you can work it out. If it's snowing or -- and you
6 don't have a vehicle and your parents don't want to drive in
7 the snow, I don't think he's going to insist on that.
B I think he's going to say let's make it next
9 weekend, see how the weather is. And the bottom line is the
10 only remedy if it doesn't work out would be to come back to
11 me and say he or she is not abiding by the court order; I
12 want him held in contempt.
13 And if there's a snow storm and he insisted
14 that you bring him out, I'm not going to hold you in
15 contempt. Okay. So -- but I don't think you have to come
16 back to me. I really think when you put aside your own
17 differences that you both have Sean's interest at heart. So
18 every other weekend from Friday at 4:00 p.m. until Sunday at
19 -- he's a Steelers fan, right?
20 LyIlt. AVENI: Yes, he is.
21 THE COURT: We got a problem if there's a
22 1:00 game. Can we make it 6:00 Sunday?
23 MR. AVENI: Yes.
24 THE COURT: Sunday at 6:00 p.m.
25 2. From the end of school in June until the
51
beginning of school in July and from the end of school in
2 July until the beginning of school in September.
3 During the periods of Father's visitation
4 with Sean, Mother may visit with Sean in Johnstown as often
5 as she desires provided that it does not reasonably
6 interfere with Father's schedule.
~ I know you two will work that out too so that
8 -- it's perfect. Your grandma is there. You can spend some
9 time there and check up. But I'm sure dad will take care of
10 him.
11 Visitation -- strike that. Transportation
12 shall be handled by the parties meeting at a mutually agreed
13 upon place in Breezewood, Pennsylvania. Does that cover
14 everything?
15 lit. KERB; I believe so, Your Honor.
16 THE COURT: Okay. Good.
17 Int. KERR: Unless you want to put something
18 in about they'll speak with each other about holidays and
19 things like that?
20 THE COURT: I mean, he's an adult. And I'm
21 sure that dad recognizes that he loves his mom and mom
22 recognizes he loves his dad and vice versa. If you can't
23 work out the holidays, get back to me; but I'm satisfied you
24 will. All right. Good luck. I'm amazed by both of you in
25 a good way. The love that you have to give to this boy is
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