In re Guardianship of Smith
Rendered on the 24th day of September, 2010.
Adult Prоtective Services, 4110 N. High Street, 2nd Floor, Columbus, OH 43214 Plaintiff-Appellee
Peggy L. Stewart, 2318 Paradise Lane, Springfield, OH 45502 Defendant-Appellant, pro se
GRADY, J.:
{¶ 1} This matter is before the court on a timely notice of appeal filed by Peggy L. Stewart, from а final order of the Probate Court removing Stewart as the duly-appointed guardian of her son, Carl Verland Smith.
{¶ 2} Smith has Down syndrome. He was raised to adulthood
{¶ 3} On June 17, 2009, the Probate Court, citing an investigation and recommendation of its Court Investigator, оrdered Smith removed from Stewart‘s home and detained in a temporary residence recommended by the Clark County Board of Mental Retardation and Developmental Disabilities (“MRDD“). The order further states that “[a] hearing on the suitability of the current guardian” would be held by the Probate Court on June 23, 2009. A return of service endorsed on the order indicates it was served on Stewart on June 18, 2009.
{¶ 4} When the matter came on for hearing on June 23, 2009, the court took testimony from Stewart, from Lori West, an investigator for MRDD, and from Andrew Picek, an Assistant County Prosecutor. Stewart confirmed that on June 17, 2009, she had married James Stewart. West testified concerning James Stewart‘s relationship with Carl Smith, that Smith was fearful of James Stewart, and that James Stewart had inflicted injuries on Smith using a belt. Picek confirmed that James Stewart had been convicted of misdemeanor assault as a result. West also testified
{¶ 5} At the conclusion of the hearing on June 23, 2009, the court found that Peggy Stewart had cоmpromised Smith‘s safety and the duty of care she owed him by allowing Smith to come into contact with James Stewart. The court terminated Stewart‘s appointment as Smith‘s guardian. On June 23, 2009, the court granted the application of Advocaсy and Protective Services, Inc., of Columbus, Ohio, to be appointed guardian of Smith‘s person. (Dkt 27). On June 26, 2009, the court journalized its order terminating Peggy Stewart‘s appointment. The court also ordered Advocacy and Protective Serviсes, Inc. “to ensure reasonable visitation between Peggy (Smith) Stewart and Carl Smith.” (Dkt. 26). Stewart filed a notice of appeal from that final order.
FIRST ASSIGNMENT OF ERROR
{¶ 6} “THE TRIAL COURT ABUSED ITS DISCRETION TO THE PREJUDICE OF APPELLANT WHEN IT REMOVED APPELLANT AS GUARDIAN OF HER SON AT THE PROMPTING OF AN MRDD INVESTIGATOR WHICH USURPED HER STATUTORY AUTHORITY.”
{¶ 7} The record contains a written report filed on June 17,
{¶ 8} Stewart argues that Lori West acted outside the authority conferred by
{¶ 9} A question arises as to whether Stewart has standing to complain that West exceeded her authority. In any event, we need not determine whether West did, because the record fails to reflect that Stewart raised the matter of West‘s authority in the Probate Court as an objection to the proceedings the court held. Error not raised in the trial court, where it may be cured, is waived and may not be assigned on appeal. State ex rel. Quarto Mining Co. v. Foreman, 79 Ohio St.3d 78, 1997-Ohio-71.
{¶ 10} Stewart also complains that neither shе nor any of the other next-of-kin of Carl Smith that were identified by Advocacy
{¶ 11}
{¶ 12}
{¶ 13} The appointment of Advocacy and Protective Services, Inc., as Carl Smith‘s guаrdian (Dkt. 27) was neither an interim nor emergency appointment. The appointment was therefore voidable because it lacked the notice to next-of-kin that
{¶ 14} Stewart has standing to complain that she did not receive
{¶ 15}
{¶ 16} Stewart filed the notice commencing this appeal on July 23, 2009. (Dkt. 31). The notice designates the Probate Court‘s order “entered in this аction on the 26th day of June, 2009” as the order appealed from. That order is the order of the Probate Court removing Stewart as Smith‘s guardian. The order of June 23, 2009, appointing Advocacy and Protective Services, Inc. preceded the order from which the appeal was taken. However, because that order of appointment involved issues of fact and law separate from the order from which the appeal was taken, the notice of appeal that was filed from the order of June 26, 2009 fails to preserve the notice error in the order of appointment of June 23, 2009, of which Stewart now complains.
{¶ 17} The first assignment of error is overruled.
{¶ 18} “THE TRIAL COURT‘S DECISION TO REMOVE APPELLANT AS GUARDIAN IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.”
{¶ 19} On the trial of a case, either civil or criminal, the weight tо be given the evidence and the credibility of the witnesses are primarily matters for the trier of facts to determine. State v. DeHass (1967), 10 Ohio St.2d 230. “The underlying rationale of giving deference to the findings of the trial court rests with the knowledge that the trial judge is best able to view the witnesses and observe their demeanor, gestures, and voice inflections, and use these observations in weighing the credibility of the proffered testimony.” Seasons Coal Co., Inc. v. City of Cleveland (1984), 10 Ohio St.3d 77, 80. Therefore, “[j]udgments supported by some competent, credible evidеnce going to all the essential elements of the case will not be reversed by a reviewing court as being against the manifest weight of the evidence.” C.E. Morris Co. v. Foley Construction Co. (1978), 54 Ohio St.2d 279, 280.
{¶ 20} “In a removal, it is discretionary with the probate court as to whether the guardian should be removed, and such removal may be based upon any just cause when the interest of the trust demands it. In re Estate of Jarvis (1980), 67 Ohio App.2d 94, 21 O.O.3d 411, 425 N.E.2d 939. The probate court need not find that the guardian‘s action amounted to violations of the law or that
{¶ 21} The Probate Court found that it is in the best interest of Carl Smith to remove Peggy Stewart as his guardian because she allowed her relationship with James Stewart to compromise the duty of care and prоtection she owed Carl Smith as his guardian. The court cited James Stewart‘s conviction for misdemeanor assault for the injuries James Stewart inflicted on Carl Smith, for which Stewart was sentenced to ninety days in jail. The court relied on the testimony of Lori West to find that, even after James Stewart was ordered to have “no contact” with Carl Smith, Peggy Stewart allowed them to be together. Peggy Stewart disputed that fact in her testimony.
{¶ 22} The cornerstone of the Probate Court‘s finding that it is the best interest of Carl Smith to terminate Peggy Stewart‘s appointment as her son‘s guardian is the proposition that James Stewart poses a danger to Carl Smith‘s safety and well-being, which was largely predicated on James Stewart‘s conviction for assault
{¶ 23} On August 8, 2010, we reversed James Stewart‘s conviction. State v. Stewart, Clark App. No. 2009-CA-36, 2010-Ohio-3657. We found that the trial court erred in allowing Stewart to represent himself in defending against the assault charge, and we vacated Stеwart‘s conviction and remanded the case for a new trial. Though our decision was rendered long after Peggy Stewart‘s appointment had been terminated, the fact that James Stewart‘s conviction has been reversed necessarily undermines the Probate Court‘s reliance on the fact of that conviction to find as it did.
{¶ 24} In our view, the better course is to reverse the Probate Court‘s order terminating Peggy Stewart‘s appointment as her son‘s guardian, which would allow the Probate Court to defer action on the matter until after the issue of James Stewart‘s criminal liability is settled. We note that Stewart was initially charged with a misdemeanor domestic violence offense, but was subsequently indicted for the felony offense of assault by a caretaker against
{¶ 25} We are also concerned that the form of notice that was served on Peggy Stewart on June 18, 2009, stating that on June 23, 2009 “a hearing on the suitability of the current guardian” would be held, wholly failed to notify Stewart of the causes against which she must defend should she wish to retain her appointment. Had Stewart been made aware of those causes she might have better marshaled evidence and arguments opposing her termination and appreciated the need to retain an attorney to represent her. Perhaps she was aware of those considerations. However, due process imposes a burden on a proponent of a claim to give notice of the causes of a proposed legal action sufficient to allow a person whose interests may be adversely аffected an effective opportunity to be heard concerning them. Where, as here, the resulting order severed the connection with her child that Peggy Stewart had enjoyed throughout his life, that need is manifest.
{¶ 26} The second assignment of error is sustained. The judgment from which the appeal was taken will be reversed and the
DONOVAN, P.J. And FROELICH, J., concur.
Copies mailed to:
Adult Protective Services
Peggy L. Stewart
Hon. Richard P. Carey