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In re Freeman

December 31, 2009

IN THE MATTER OF MARY D. FREEMAN, AN INCAPACITATED PERSON.


On appeal from Superior Court of New Jersey, Chancery Division, Probate Part, Monmouth County, Docket No. P-372-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 8, 2009

Before Judges Parrillo and Lihotz.

Appellant Thomas Freeman appeals from a February 24, 2009 order of the Chancery Division, Probate Part, restraining him from the residence of his mother, Mary Freeman, from 7:00 a.m. to 1:00 p.m., Monday through Friday, and denying his cross-motion to be appointed her co-guardian. We affirm.

Briefly, by way of background, Mary Freeman is a housebound eighty-four year old widow with six adult children. She lives with one of her children, appellant, in her home in Wall Township, which, it is anticipated, appellant will inherit upon his mother's death.

Mary had suffered a stroke in June 2006, which left her with severe aphasia and hemiparesis, and she has trouble ambulating and speaking. As a result, she now requires "personal assistance of an intimate nature such as bathing, toileting, [and] dressing." By a March 27, 2008 Judgment of Incapacitation, respondent James Freeman, appellant's brother, was appointed guardian of his mother. Pursuant to Mary's Power of Attorney and Advanced Health Care Directive, respondent employed Caregiver Resources to provide licensed home health aides to assist in caring for his mother. The home health aides were the same sex as his mother and were "trained to take care of her." A hospice nurse also visits Mary approximately two hours each workday.

According to respondent, appellant has consistently insulted, criticized, and confronted his mother's health aides, so as to have interfered with her care. As a result of his obstructive behavior, all twenty-five health aides hired in a ten-month period refused to return to care for Mary, and Caregiver Resources indicated the agency would no longer provide services due to appellant's conduct. Appellant's other siblings represent that he is prone to violent outbursts, and Mary suffered from sores on her buttocks while in his care.

On December 19, 2008, respondent filed a complaint and order to show cause for restraints against appellant, to prevent him from verbally communicating with his mother's home health aides and from being in their presence in the home between 7:00 a.m. to 1:00 p.m., when they are caring for the mother. Appellant answered and cross-moved to be appointed his mother's co-guardian. Thereafter, respondent filed a letter brief and certifications from himself and two sisters in opposition to appellant's cross-motion and in support of the verified complaint for an order for restraints.

The probate judge issued an order to show cause to proceed in a summary manner pursuant to Rule 4:83-1 and set a February 13, 2009 return date. On February 10, 2009, respondent filed a supplemental certification and attached thereto a list of health aides who resigned due to appellant's conduct; an August 20, 2008 federal criminal complaint charging appellant with possession of child pornography; appellant's arrest report for domestic violence; and five police event reports, two of which detailed appellant's violent, aggressive conduct against his brothers and the home health aides.

At the February 13, 2009 hearing, the judge reviewed respondent's certifications, considered appellant's responses and entertained oral argument on the cross-applications. Based thereon, the judge denied appellant's application to become co-guardian, finding that "it is in the best interest of the ward that . . . Mr. James Freeman remain her guardian in this matter." The judge also ordered that appellant be restrained from the house from 7:00 a.m. to 1:00 p.m. to allow all heath aides access to the home, and from communicating with the home health care aides.

On appeal, appellant raises the following issues, none of which were presented below:

I. THIS APPELLANT IS ENTITLED TO THE RIGHTS OF LIBERTY AND PROPERTY.

II. THE COURT RULES WERE VIOLATED IN SUCH A WAY AS TO PREJUDICE THE COURT AND DENY ...


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