In Re: Sabatino, M.
3836 EDA 2015
| Pa. Super. Ct. | Nov 30, 2016Background
- Mother filed guardianship petition (Sept. 2014) seeking plenary guardian for her adopted son, Michael Sabatino (age 26), alleging pervasive developmental disorder, impulse control disorder, and severe anxiety; petition asserted no less-restrictive alternative.
- DRN (Disability Rights Network of PA) entered appearance for Sabatino and sought to represent him; the court appointed Diane Zabowski as counsel for Sabatino (Jan. 2015) and later granted DRN amicus status with leave to participate.
- The court appointed neuropsychologist Dr. Barbara Malamut to perform an independent evaluation (reporting she found Sabatino "totally incapacitated"); county paid for the report.
- At the contested hearing (July–Sept. 2015) parties stipulated to admission of Dr. Malamut’s report; DRN called and cross‑examined the doctor but the court initially required DRN to pay the doctor’s court appearance fee if DRN wanted her live.
- Orphans’ Court adjudicated Sabatino "totally incapacitated" and appointed a limited guardian of the person (authority over medical decisions, contracts with consultation on monetary obligations, oversight of services, and assistance with family visits).
- Superior Court affirmed the adjudication and counsel‑appointment rulings, but reversed the order obligating DRN to pay Dr. Malamut’s court appearance fee and remanded for a hearing on allocation of that fee.
Issues
| Issue | Plaintiff's Argument (DRN) | Defendant's Argument (Mother/Orphans' Court) | Held |
|---|---|---|---|
| Whether Sabatino had right to chosen counsel (DRN/Darr) after court appointed Zabowski | Court wrongly removed client’s chosen counsel; Sabatino had right to counsel of choice even with disabilities | Court could appoint independent counsel when client had diminished capacity and when appearance/entanglements risked unfair advantage | Appointment of Zabowski and removal of Darr was harmless error; DRN retained participation as amicus and could fully advocate; affirmed |
| Whether appointed counsel (Zabowski) should be disqualified for allegedly advocating guardianship | Zabowski breached duties (RPC 1.2, 1.7, 1.6) by advancing best‑interests over client’s objectives and revealing confidences | Zabowski acted under RPC 1.14 (diminished capacity): balanced client wishes and protective action; conduct appropriate | Denial of disqualification affirmed; Zabowski’s conduct lawful under Rule 1.14 |
| Whether clear and convincing evidence supported adjudication of incapacity and limited guardianship | Evidence showed Sabatino could receive/evaluate info with supports; Peery requires supports to be considered as less‑restrictive alternative | Dr. Malamut’s neuropsychological evaluation and court observation showed pervasive deficits and susceptibility to undue influence; limited guardianship is least restrictive needed | Adjudication of total incapacity and appointment of limited guardian affirmed |
| Whether DRN should pay independent evaluator’s court appearance fee | DRN argued it was improper to require the party representing the alleged incapacitated person to fund court testimony of the court‑appointed evaluator | Court had ordered county to pay for the evaluation report and conditioned live testimony on which party called the witness | Superior Court reversed: county should bear cost for testimony; remanded for hearing to determine whether DRN’s use of the evaluator required any allocation |
Key Cases Cited
- Weber v. Lancaster Newspapers, Inc., 878 A.2d 63 (Pa. Super. 2005) (standard for counsel disqualification and deference to right to counsel of choice)
- McCarthy v. Southeastern Pa. Transp. Auth., 772 A.2d 987 (Pa. Super. 2001) (new trial required if record lacks facts supporting disqualification and error affected outcome)
- Yacoub v. Lehigh Valley Medical Associates, P.C., 805 A.2d 579 (Pa. Super. 2002) (harmless‑error definition)
- In re Estate of Rosengarten, 871 A.2d 1249 (Pa. Super. 2005) (right to retain counsel discussed in guardianship/elder contexts)
- United States v. Gonzalez‑Lopez, 548 U.S. 140 (U.S. 2006) (erroneous denial of counsel of choice is structural error; court distinguished its applicability here)
- In re Peery, 727 A.2d 539 (Pa. 1999) (ability to function with supports affects incapacity analysis)
- In re Hyman, 811 A.2d 605 (Pa. Super. 2002) (standard of review and burden for incompetency findings)
- In re Myers’ Estate, 150 A.2d 525 (Pa. 1959) (presumption of competence; petitioner bears burden by clear and convincing evidence)
- Pavex, Inc. v. York Fed. Sav. & Loan Ass'n, 716 A.2d 640 (Pa. Super. 1998) (abuse of discretion standard for allocation of expert fees)