IN THE SHELBY CIRCUIT COURT, The Honorable Charles D. O'Connor, Judge, Cause No. CP-86-49.
Neal, Ratliff, C.j. Concurs IN Result; Staton, J. Concurs.
Respondent-appellant, Ancil Hartman (Hartman), was found to be an endangered adult, as defined in IND. CODE 4-27-7-2, by the Shelby Circuit Court from which judgment he appeals.
On March 7, 1986, the Prosecuting Attorney of Shelby County filed a Petition for Protective Services for Hartman alleging that, after an investigation by the Adult Protective Services Unit, Hartman was an endangered adult as defined by IND. CODE 4-27-7-2 by reason of his advanced age, and because he was harmed or was threatened with harm as a result of neglect and exploitation of his property. A hearing was set for March 21, 1986, notice was given, and, with Hartman present with counsel, the hearing was conducted on that date.
The uncontradicted evidence is as follows: Hartman is 85 years of age and is beset with medical and physical difficulties. As a result of diabetes of long standing, his left leg and right middle toe have been amputated. He has had retinal hemorrhage with resulting damage and, despite a lens transplant and a cataract operation, is nearly blind. He has acute myocardial infarction and congestive heart failure. He suffers from renal insufficiency, and he had had an appendectomy and a cholecystectomy. On occasions he suffers from abdominal pain, and is often confused and lethargic. He has been hospitalized many times, once for 83 consecutive days. He was married to his present wife, Peggy, age 47, on August 17, 1985, who then left him after six weeks. He lived alone until the Monday prior to the hearing at which time she reconciled with him. He lived alone in a residence the hygienic qualities of which were described by a public health nurse as "absolutely awful". Record at 159. Neighbors looked after him and called an ambulance for him at least 25 times over a three-year period. Having no telephone, Hartman signaled emergencies by turning on the porch light. He tried on occasion to drive but should not. He does not take his medicine or eat right, and has no one to prepare his diabetic diet. Three children live away and cannot care for him on a daily basis. He is stubborn and will agree to nothing. There is evidence that his wife has taken advantage of him financially.
At the close of the evidence the trial court, in the presence of the parties and on the record, announced its judgment. It found that Hartman was an endangered adult as defined by the statute by reason of infirm health and advanced age. As affects the issues here, it found:
"[T]he the Respondent is unable or lacks the capacity to make the determination to provide or give consent to be receptive to Protective Services, conclude that . . . that Mr. Hartman has reached this stage as a result of neglect and as a result of exploitation of his property. The evidence is . . . is significantly available to conclude that Mrs. Hartman has taken advantage of the situation and has created some conditions that are tremendously adverse to Mr. Hartman, and by her testimony and the evidence that . . . has been presented to me that . . . I'm able to conclude that she is not capable of providing the care and attention that Mr. Hartman needs and requires." (Our emphasis.)
The trial court found that a protective order should issue and outlined the terms thereof, which are not at issue here on appeal. At the Conclusion of the recital of its judgment the trial court requested the prosecuting attorney to prepare an entry. A written entry, signed by the trial court and entered on the record on the same day, reiterated the judgment announced in trial court except that portion quoted above concerning Hartman's capacity to consent, which was omitted, and the order did not specifically find that, by reason of infirm health and advanced age, Hartman was incapable of either managing his property or caring for himself, or both. The order, as relevant here, reads as follows:
The Court finds that Respondent, Ancil Hartman, is an endangered adult as defined by IC 4-27-7-2 by reason of infirm health and advanced age, and that Respondent has been harmed and threatened with harm as a result of neglect and exploitation of his property.
The Court, therefore, determines that a Protective Order shall issue and the objectives of said Protective Order are that Respondent be given the appropriate medical and residential care . . . ."
The two issues, as stated by Hartman, are ...