Petriello v. Indresano

• Decision Date: 03 June 2015
• Docket Number: 14–P–136.,Nos. 14–P–135,s. 14–P–135
• Parties: Rose PETRIELLO v. Albert INDRESANO. (and a companion case).
• Court: Appeals Court of Massachusetts

87 Mass.App.Ct. 438

31 N.E.3d 1159

Rose PETRIELLO

v.Albert INDRESANO.

(and a companion case¹ ).

Nos. 14–P–135

14–P–136.

Appeals Court of Massachusetts, Norfolk.

Argued Oct. 9, 2014.

Decided June 3, 2015.

Sarah W. Peterson, Wellesley, for the defendants.

Frank Hadley Wright, III, for the plaintiff.

Present: BERRY, HANLON, & CARHART, JJ.

Opinion

HANLON

, J.

The defendants, Albert Indresano, Jr. (Albert), and Joseph Indresano (Joseph), seek review of G.L. c. 258E harassment prevention orders (orders) issued against them.^{2 , 3} They argue that Veronica Higgins–Sullivan, acting under a power of attorney (POA) executed by the plaintiff, Rose Petriello, lacked standing to apply for these orders on Petriello's behalf. The defendants also claim that the abusive conduct that Higgins–Sullivan alleged did not meet the requirements for issuing the orders. Although we are satisfied that Higgins–Sullivan had standing to apply for the orders, due to the very sparse record before us, we are constrained to conclude that there was insufficient evidence to support issuance of the orders under G.L. c. 258E.

Background. The judge heard the following evidence, largely based on the testimony of Higgins–Sullivan, which the judge apparently credited. Petriello lived with Albert Indresano Sr. as a domestic partner, for approximately forty-five years, beginning in 1956; Albert, Sr., had four children, Albert, Joseph, Rosemary Indresano, and Joanne McKeage. After Albert Sr.'s death, Petriello moved to 51 Smith Street in Wellesley, a property belonging to a trust that Albert Sr. had established for her benefit. On December 6, 2005, Petriello executed a health care proxy, appointing Albert as her health care agent; she named Joseph as the alternate.

In April, 2013, Petriello, then approximately eighty-eight years old, had a knee operation at Newton–Wellesley Hospital. Afterwards, she went to Elizabeth Seton Residence, a rehabilitation facility in Wellesley Hills. On May 22, 2013, Petriello executed a new health care proxy, appointing Higgins–Sullivan as her health care agent.⁴ Petriello left Elizabeth Seton Residence on June 6, 2013, and moved directly to Waterstone, an assisted living facility in Wellesley Hills (Waterstone). Higgins–Sullivan testified that Petriello wanted to move from her 51 Smith Street home because “the trust was broken”—her bills and expenses were not being paid in accordance with Albert Sr.'s will, and neither Albert nor Joseph would allow Petriello to have access to her own checkbook.

Higgins–Sullivan had agreed to replace Albert as health care agent after Petriello telephoned her in April, 2013. During the telephone call, Petriello was “very upset” because Albert, Joseph, and Rosemary “claimed that [Petriello] had an abortion in 1956.” Higgins–Sullivan testified that Petriello, an eighty-eight year old practicing Catholic, denied the accusation and “it upset [her] to no end.” Apparently, one of the Indresanos then took the telephone from Petriello; however, Higgins–Sullivan stayed on the line as “[she] was afraid for [Petriello],” because the three Indresanos “were yelling, screaming, carrying on.” “After they hung up [Higgins–Sullivan] immediately called the Wellesley police.”⁵

Higgins–Sullivan also testified that, although Petriello had been living alone at 51 Smith Street, Albert and Joseph had gone in and out of the house as they pleased, allowing her no privacy.⁶ Petriello telephoned Higgins–Sullivan daily complaining about the Indresanos; because Petriello “was so very upset she was calling [Higgins–Sullivan] more. It was almost like it was ... like a blow by blow description of what was going on with [Petriello].”⁷

Before Petriello moved to Waterstone, Albert and Joseph went to Waterstone and instructed the staff not to have contact with her because Albert and Joseph did not want her to move from 51 Smith Street. Higgins–Sullivan believed that Albert and Joseph were asked by the Waterstone staff to leave the premises. The Waterstone staff scheduled a car to pick up Petriello when she was discharged from Elizabeth Seton Residence, but Albert and Joseph canceled it. In addition, Joanne canceled a moving van that had been scheduled to move Petriello's belongings from 51 Smith Street to Waterstone; also, the locks at 51 Smith Street were changed, preventing Petriello from gaining access to her furniture and other belongings.

Petriello moved to Waterstone on June 6, 2013. According to Higgins–Sullivan, Petriello initially enjoyed her life there, as “she's a very sociable person” and was interacting with other residents. On June 17, 2013, Petriello executed the POA, designating Higgins–Sullivan as her attorney-in-fact, effective that date. Sometime after Petriello moved to Waterstone, Albert and Joseph began visiting her there. Petriello told Higgins–Sullivan that she had moved from 51 Smith Street to get away from the Indresanos, but “they were camping out at Waterstone.... [I]t was the same as if she was still at 51 Smith Street.... [I]t was just a constant ... belittling, abuse.”⁸

In approximately July, 2013, Petriello “got very depressed.” According to Higgins–Sullivan, “She wouldn't eat. She wouldn't get dressed. She didn't, wouldn't bathe and a psychiatric nurse was called in.... She was in a bad way.” The ensuing psychiatric evaluation revealed that “there had to be a complete break from the Indresanos.” Petriello was sent to the “Newton–Wellesley Hospital in the emergency room,” until a room in a locked ward became available for her at Mount Auburn Hospital. In a letter dated July 24, 2013, Dr. James A. Evans, Petriello's treating psychiatrist at Mount Auburn Hospital, determined that Petriello no longer had the capacity to make her own decisions due to dementia, and invoked the existing health care proxy. Around the same time, Dr. Evans suggested to Higgins–Sullivan that she obtain a harassment order against the Indresanos on Petriello's behalf. Higgins–Sullivan did so; on July 29, 2013, a judge of the Dedham Division of the District Court Department issued ex parte harassment prevention orders, one against Albert and the other against Joseph, and scheduled a hearing after notice for August 7, 2013.^{9 , 10}

Petriello returned to Waterstone after she was discharged from Mount Auburn Hospital, and after the initial orders had been issued. Petriello's health care providers at Mount Auburn Hospital told Higgins–Sullivan not to discuss with Petriello anything pertaining to the Indresanos because it was too upsetting for her.¹¹

Allison Schnaer was a “protective service supervisor” at Springwell, “an agency that receives [and investigates] reports of abuse and neglect for people who are over the age of sixty.” Schnaer testified that in April, 2013, Springwell received an elder abuse report with Petriello as the alleged victim. The report was “screened

in” by a supervisor because the allegations fit Springwell's “definition[ ] of abuse.”¹² Schnaer first met Petriello at the discharge planning meeting at Mount Auburn Hospital; her second meeting with Petriello was at Waterstone, to check on her after she was discharged from Mount Auburn Hospital. In conversation with Schnaer, Petriello brought up the pending harassment order hearing; she told Schnaer that “she was in agreement with the restraining order.” According to Higgins–Sullivan, Petriello told a Springwell representative that she no longer wanted to see or to talk to the Indresanos. During its investigation, Springwell “did substantiate the allegations” of elder abuse; an ongoing service plan was created for Petriello in an attempt to “help her stay safe in her community and at Waterstone and reduce the emotional abuse that was going on.” Schnaer testified that the risks to Petriello changed due to her hospitalization and move to assisted living; however, at the time of the hearing, Petriello's case with Springwell was still “ongoing.”

At the close of the evidence, the judge denied the defendants' oral motions for directed verdicts. The judge stated that, in applying the law to the case, the standard would be based on “an eighty eight year old woman,” and that he had “no problem finding physical harm to her when she went to the emergency room.”¹³ The judge extended the orders against Albert and Joseph for one year, that is, until August 8, 2014.¹⁴

Discussion. Standing. It appears, and the defendants do not argue otherwise, that the POA was valid and that it was in full force and effect at the time that Higgins–Sullivan sought the harassment prevention orders.¹⁵ Nonetheless, the defendants argue that Higgins–Sullivan, despite the POA, did not have standing to seek the orders on Petriello's behalf. In their view, designation as a guardian ad litem would have sufficed, but not a POA.

The effect of a written POA is a legal issue. McQuade v. Springfield Safe Deposit & Trust Co., 333 Mass. 229, 233, 129 N.E.2d 923 (1955)

. “[The court] must put [itself] in the place of the parties to the instrument and give its words their plain and ordinary meaning in the light of the circumstances and in view of the subject matter.... The rule of construction that a power of attorney must be strictly interpreted does not go to the extent of destroying the purpose of the power.” Ibid. See Grabowski v. Bank of Boston, 997 F.Supp. 111, 125 (D.Mass.1997) (“In most respects, a power of attorney is interpreted in the same manner as any other contract.... A contract must be interpreted as a whole and effect must be given to all of its provisions in order to effectuate its overall purpose. See J.A. Sullivan Corp. v. Commonwealth, 397 Mass. 789, 795 [494 N.E.2d 374 (1986) ]. In interpreting a contract, the court ‘must give effect to the parties' intentions and construe the language to give it reasonable meaning wherever possible.’ Shea v. Bay State Gas Co., 383 Mass. 218, [224–225, 418 N.E.2d 597 (1981) ]”).

Here, the POA explicitly granted to Higgins–Sullivan the authority to “exercise or...