*1 MDO оf an case, may be convicted the offender In such a not recovered. was case. proven in a properly specification
Conclusion not to offer- apply does holding our Chandler the foregoing, Based on Accordingly, recovered or tested. drugs cases where no trafficking to-sell negative. in the question is answered certified accordingly.
Judgment Lundberg JJ., concur. Cupp, O’Connor, Pfeifer, Stratton, Lanzinger, Brown, C.J., participating. Haines, Defender, A. Assistant and Kristopher Ohio Public
Timothy Young, Defender, pеtitioner. Public General, Mizer, General, Solicitor Benjamin C. Cordray, Attorney
Richard Solicitor, Mallory, Lamb and Diane P. and William Carney, Deputy Stephen General, respondent. Attorneys Assistant David E. Romaker Dobson, Attorney, and County Prosecuting
Paul A. Wood curiae, for amicus Jr., Prosecuting Attorney, support respondent Assistant Attorneys Association. Prosecuting Ohio Spangler. Guardianship re Guardianship Spangler,
[Cite as In re
developmental statutory disabilities has the authority and file a standing to motion to incompetent remove an adult. We hold that county boards of developmental disabilities not granted implied have been the or authority to file a motion to adult; remove an incompetent however, court, with its plenary authority as superior guardian, may from a county notice disabilities conduct proceedings We, a guardian. therefore, affirm in part, part, vacate in and remand for further proceedings. History
Cаse Appellee Spangler currently John is 22 years autism, old and suffers {¶ from 2} retardation, mental and mitochondrial disease. After John turned his par- ents, appellees Joseph Spangler, Gabriele and an application filed to be appointed permanent guardians. John’s Appellant Geauga County Board Mental Retar- (the “board”) dation and Developmental Disabilities1 participated hearings on the matter supported parents’ application. At one of hearings, those court wаrned the mother: “I’m going give some consideration to appointing a litem ad out and do go investigation you’re as to whether the most suitable not. It’s very important him, that he has someone who cares a lot about obviously you do. During cause, pendency (effective
1. Assembly passed this the General 2009 Sub.S.B. No. 79 6, 2009), changed developmen- October which name boards of mental retardation and tal boards of disabilities. your yet, apparently husband but from anything “And I haven’t heard had, caring a very feel that he is they have that others from interactions individual, too. attempting And I will be decisions. making good “But do have to be you you’re making. judge the decisions interests, in your son’s best making decisions you’re “If
6}{¶ than you other appointing I someone would consider placement, terms your guardian.” to be son’s your husband 18, 2006, physical of John’s mental on result Ultimately, July
7}{¶ of John’s conditions, parents unlimited appointed person. later, to remove the board filed motion Three months *3 (“APSI”) Services, Inc. and Advocacy and Protective appoint
John’s to mother had created conflict motion that the guardian. alleged as successor The motion remove him from their care. The and threatened to providers with John’s there stated that supported by provider, a from John’s current who was letter court safety probate and of John.” The “an to the welfare danger was immediate basis, appointed tempo- on APSI as temporary motion to remove a granted the At John, hearing following for week. guardian for and set the matter the rary a continuance of the parents agreed the and the to six-month hearing, that board temporary guardian. as hearing appointment and the APSI 2007, however, for order January parents emergency In the moved an {¶ 9} a guardian. responded and father as with removing APSI the APSI appointing joinder of the requested motion the motion and parents’ emergency to dismiss The necessary parents as a and a ad litem. party appointment board a to motion the as a and later filed motion opposed join party the to board that parents guardians, arguing for as dismiss the board’s motion removal or to file a motion. statutory authority standing the board had no such a in hearing to APSI and set parents’ court denied the motion probate to serve as John’s April parents permitted 2007 on whether the would be guardians. as a probate joined board April hearing, Before its to purposes prosecuting to removal for motion
party proceedings to dismiss the parents’ remove the as and denied the motion parents later, his own At a John filed motion hearing board’s motion. second two months case, statutory lacked arguing that the board to dismiss the board from motion, the court stated: standing party. Acknowledging a to be considered previously “That issue has been addressed. my Agency “It’s view that are an interested that the is they party, services, information, required provide they preserves had this ward a in allowing participate party purposes assisting them Court making going this issue of who is to be the regarding decision fact, “In I don’t know how this have the Court if brought would been [sic], be, I’m Agency they bеen notified so the one that says going continue a at this is party long pending.” least issue [as] John, an After third and in with hearing camera interview the matter entry, was submitted to the court. In its the trial court found that the statutory obligations imposed fiduciary on board John’s benefit are in nature and the board had standing therefore file the motion to remove the court then found parents. despite John’s need for structure life, in consistency and his his mother “repeatedly, impulsively changes in sought placements John’s and services without due giving оpinion consideration to the with professionals working John without first having secured alternative Moreover, more services.” appropriate John’s father “is either unable or unwill- ing objectively to intercede assertively disputes that have arisen between providers care Finding his wife.” that there was cause that it good was interest, John’s best guard- removed the as John’s ians and ordered that ASPI legal continue as the for his person. The parents and John separately appealed to the Eleventh District decision, a split Court Appeals. appellate court reversed. The lead opinion concluded that the had not granted statutory been authority, implied, to file motion to general remove a and thus lacked *4 standing to petition the to remove guardian. The concurrence focused on R.C. and 2111 Chapters 2109 and determined that the board was not the real in interest thus party and lacked standing. general dissent viewed duties of the board as sufficient to establish the board an party,” “interested object allоwing the board to accepted discretionary We board’s appeal to determine whether a
{¶ 16}
board of mental
developmental
retardation and
has
authority
and
standing
request
a guardian
of an incompetent
adult and whether the
court has
authority
to conduct proceedings to
remove a
guardian upon
request.
board’s
re Guardianship
Spangler,
1498,
Legal Analysis
and
County
Powers
Duties
Boards Developmental Disabilities
county
county
“Each
shall have its own
developmental
disabili-
{¶ 17}
5126.02(A).
boards,
ties.”
Cоunty
statute,
R.C.
no
being creatures of
have more
by the
clearly implied
them or
conferred
specifically
than that
authority
Health, 96 Ohio St.3d
D.A.B.E.,
Cty. Bd.
Inc. v. Toledo-Lucas
See
statute.
(1975), 42
536;
v. Thomas
{¶ 18} 5126.05(A), authority gives which the boards set forth in R.C. disabilities arе following: do the facilities, “(1) provid- and services as programs, and operate Administer policies and establish of the Revised Code Chapter this and 3323. chapter
ed operation; administration and for their “(2) Coordinate, monitor, services and facilities existing and evaluate disabilities; retardation and
available to individuals with mental services, “(3) services, home supportive childhood early Provide under section services, priorities developed to the according plan adult Code; 5126.04 of the Revised “(4) pursuant services special Provide or contract for education 3306., 3317., and ensure that related and 3323. of the Revised Code
Chapters Code, services, are available in section 3323.01 of the Revised as defined section 5126.04 of the developed to the under according plan priorities Code; Revised “(5) the purposes specified authorize Adopt budget, expenditures Code, of the Revised and do so in accordance with section 319.16 chapter
this meetings at employees professional attendance of board members and approve attendance, powers and exercise such and duties as approve expenditures director; by the prescribed “(6) expenditures, pursuant annual of its work and reports Submit director, Code, superinten- of the Revised to the sections 3323.09 and 5126.12 instruction, at the close of and the board of commissioners public dent of reasonably requested; be may and at such other times as year the fiscal *5 “(7) compensation, employment, all of establish positions Authorize {¶ 25} benefits for all board fringe schedules and salary but not limited including that are management employees for approve employment contracts of employees, of under section 309.10 year, employ legal more than one counsel for a term of benefits; Code, employee for Revised and contract with accordance “(8) administration support service and Provide {¶ 26} Code; of the Revised section 5126.15 section adopted rules under “(9) homes pursuant care Certify respitе
{¶ 27} disabilities.” of the director by the Revised Code of 5123.171 5126.05(A) implied board either grants Nothing in R.C. {¶ 28} however, court, relied on trial a motion to remove to file power board. R.C. on the fiduciary obligations imposing that it read as another státute 5126.15(B)provides: to provide contract with board by or under employed “The individuals
{¶ 29} following: do all of the administration shall support and service “(1) services of the eligibility for the an individual’s Establish 30} {¶ disabilities; of developmental “(2) services; for individual needs Assess {¶ 31} “(3) participation with the active plans individual service Develop 32} {¶ individual, and, when served, by other selected persons to be individual individual, for plans and recommend by selected provider applicable, included disabilities when services department approval medicaid; through plans in the are funded “(4) on the individual’s assessed for services based budgets Establish needs; those ways meeting preferred
needs and “(5) among providers from making individuals selections Assist 34} {¶ chosen; they have “(6) provided by and effectively coordinated Ensure that services providеrs;
appropriate “(7) system monitoring implement ongoing and an Establish implementation to achieve consistent plans individual service implementation of individual; desired outcomes and the “(8) a distinct function of service assurance reviews as quality Perform administration; support
and “(9) reviews and identified quality results of assurance Incorporate the into major unusual incidents incidents and unusual patterns trends improving plan purpose for the of an individual’s service amendments individual; to the of services rendered quality appropriateness enhancing “(10) a designated services has receiving that each individual Ensure the individual continuing providing basis on a responsible who is person advice, day-to-day to the and assistance related advocacy, representation, with plan. service with the individual’s services in accordance coordination an receiving services give shall the individual administrator support service *6 opportunity designate person to to provide daily representation. If individual declinеs to make a designation, the administrator shall make the case, designation. In either the individual services receiving may change any at added.) person time the designated provide to daily representation.” (Emphasis above, 5126.15(B)(6) (10) As noted both R.C. would to appear {¶ 40} that require county board of developmental disabilities work employees with appointed guardians to ensure services are properly coordinated for individu- receiving addition, als their services. employees required to monitor the implementation 5126.15(B)(7). However, individual service plans. R.C. ensur- ing coordination of services and monitoring their implementation do not amount to an express or implied authority to legal initiate proceedings seek the removal of an appointed guardian, if even with interferes service providers. Furthermore, the General Assembly could have specifically
{¶ included 41} language granting board of developmental disabilities the authority file a motion to remove an uncooperative guardian. County boards of develop- mental disabilities granted have been authority to initiate legal proceedings for protection of an adult with mental retardation or a developmental disability in other contexts. For example, a county board of developmental may file a complaint with court to provide protective services for an abused neglected or incompetent adult when the board cannot secure consent for such services from either the adult or the guardian and thеre is a substantial risk physical 5126.33(A) (D). immediate harm or death. R.C. A county board of developmental disabilities may also apply court for a temporary restraining order against anyone interfering with an investigation of reported abuse or neglect or with the provision of designed services to prevent or correct neglect abuse or of an adult with mental retardation a developmental disabili- ty. R.C. 5126.32. But neither of these statutes applies because there has been no refusal of services and no allegation of neglect abuse or or of substantial risk of immediate harm physical or death. argues board that no statute or rule limits a county procedures disabilities to the health, R.C. protect 5126.33to
safety, and welfare of individuals under its care and supervision. Yet the absence aof limitation on the board’s authority does not question. determine the Because statute, governed board is there an express must be or implied grant authority allowing county boards of developmental disabilities to file a motion to 5126.055(A)(4) remove a guardian. general duty under R.C. “to ensure the health, safety, welfare individuals receiving services from a county of developmental disabilities” does not equate to or imply grant authority interfere with appointment of a guardian by the court. 305.14(C) authority to such on R.C. file Similarly, the board’s reliance legal allows to hire counsel That statute the board misplaced.
a motion is court; it does not allow the board pleas from the common without authorization it any legal action chooses. initiate *7 of disabilities does hold that a board We therefore {¶ 44} in court to file a motion the remove statutory authority probate the to have guardian. Superior Is the
Probate Court Guardian proposition the and the in its third of Amicus curiae state of Ohio {¶ 45} that, law of and duties of a urge irrespective powers the board, to act probate plenary authority court has guardians to as for their brought information before it and son. agree. We stated, is a of previously principle have well-settled law that “[i]t As we
{¶ 46}
to
jurisdiction
permitted
are courts of limited
and are
exercise
probate courts
statute
the Ohio Constitution.
only
authority granted
by
to them
(1988),
75, 77,
Hollins,
40
531
In re
Corron v.
Ohio St.3d
N.E.2d 708.”
Corron
¶
434,
{¶ 47} jurisdiction: exclusive “ * * *
{¶ 48} “(e) conservators, and appoint guardians, testamentary To and remove {¶ 49} conduct, trustees, accounts. direct and control their settle their “ * * * “(C) in power at law and probate plenary equity court has court, unless the dispose any power matter that is before the is fully properly limited aby otherwise or denied section of the Revised Code.” expressly addition, is the probate “superior guardian,” In court and other times, all “At all court obey probate probate must orders: is the subject wards to its and all superior jurisdiction, who are subject jurisdiction obey who to the of the court shall all orders the court 2111.50(A)(1). guardianships.” their wards or R.C. concern Guardianship including guardian, removal of are not proceedings, proceedings involving only probate adversarial but rather are in rem court Santrucek, 67, and the In re 120 Ohio St.3d 2008-Ohio- Guardianship ward. ¶ 683, superior guardian, 5. court is the probate 896 N.E.2d Because the control, court’s subject of the court to the is an officer appointed guardian simply (Mar. 1984), 7th Guardianship Daugherty In re direction, supervision. therefore, has no 83-C-29,1984 guardian, WL 7676. The Dist. Nos. 83-C-24 and or removal. Id. appointment interest his her personal authority plenary that the court has the probate It is also cleаr Guardianship in In re analysis with the used investigate guardians. agree We Herr, 98-CA-16-2, 2, 1998), 666986. Herr 5th Dist. No. 1998 WL (Sept. contacted the nursing probate staff at a home attending physician nursing treatment of unreasonably denying that a was court with concerns due to the cost. After the emergency conditions to her ward her, appealed, arguing she hearing summoned the for a and removed her authority sponte appearance court did not have sua order communication nursing court of held that the home’s appeals court. The concerning hearing was sufficient cause to allow the conduct appellate court stated: “Without appellant the removal *8 removal, sponte sua consider the court could find itself power the inherent ward, if no interested guardian acting contrary bound to a to the interest of the at *2. proceedings by petition.” is available to initiate the motion or Id. party not that had the board sent a letter to the parents do contest court, hearing court sua initiated a on whether to probate sponte the could have Instead, that because the guardians. they argue remove them as seem board, in court was probate information came the form of a motion from the the Form, however, over the acting. triumph barred from should not be allowed to substance of the issue involved. speculation probate do not that it is mere that the agree We also if notified the court of what had occurred simply
would have acted the board had in on participated hearings with The board had thе providers. John’s service ultimately request appointed guardians, although to be and the board parents’ it concern over several of the mother’s application, expressed supported led actually her son. Information obtained from the board regarding decisions appoint to warn that the court would not hesitate to probate the mother cause good if she failed to make decisions. There was sufficient guardian another in after it heard guardian hearing court to call the probate later, that, unexpectedly months one of the arrived allegations three providers at the home of John’s service and night late at and intoxicated him placement. threatened to remove from a stable of the Because the court of did not address the merits appeals must be remanded to parents guardians, decision to remove the this matter assignments fourth parents’ through that court for resolution of the second error.
Conclusion Assembly granted has hold that the General We a motion tо remove power to file express implied or superior court as the Nonetheless, of the plenary power a guardian. should be removed guardian whether investigate allows it to in the ward’s best acting that is not information of sufficient receipt when, holding on its Thus, erred based appeals the court interest. in removing trial court erred ruled that the standing, summarily it board lacked challenging of error assignment when it mooted the and of the evidence. We weight the manifest being against removal order as in part, in vaсate it part, of the Eleventh District judgment affirm the therefore parents’ appeals court of for resolution remand the matter of error. assignments and third second in part affirmed
Judgment in part, and vacated and cause remanded. Lundberg Cupp, JJ., O’Connor, concur. Stratton, JJ., in part. concur in and dissent part O’Donnell, Pfeifer Brown, C.J., not participating. dissenting part. J., concurring part
O’Donnell, that a majority I concur with the While a motion to implied authority have the file disabilities does not adult, I dissent from the incompetent rеspectfully of an remove the court, authority as the plenary with its majority’s holding *9 a of county notice from board superior guardian, may, upon disabilities, guardian. to remove a proceedings conduct Disabilities filed a motion County Developmental Board of Geauga The Spangler and Gabriele of Joseph in the court to remove probate motion, son, arguing that the Spanglers moved dismiss their John. probate to file such a motion. The statutory authority standing lacked board matter, Spanglers’ in denied thе joined party as an interested court dismiss, guardians. appeal, them as John’s On motion to and then removed court, probate the decision of the Appeals District Court of reversed Eleventh statutory authority to file a motion to did not have the concluding the board a to seek removal of standing a and thus had no remove court, accepted and we that decision to this appealed The board (1) county a three of law: propositions review in court to take action ability probatе right request
has the and the
349
(2)
ward,
best interest of the
board has
to move the
county
standing
probate
(3)
county
standing
court to remove an unsuitable
board has
guardian,
in
participate
probate
court
as an interested
In re
proceedings
party.
1498,
majority’s conclusion that a plenary authority has to act information it brought irrespective before powers and duties of Hollins, board. As we stated In re Guardianship Ohio 2007- St.3d Ohio-4555, 872 N.E.2d “probate courts are courts of jurisdiction limited are permitted only to exercise the authority granted by to them statute and by ¶ 11, the Ohio Constitution.” Id. at citing (1988), Corron v. Corron 40 Ohio St.3d 75, 77, 2101.24(C) 531 N.E.2d grants 708. R.C. the probate “plenary power at law and in equity dispose fully any matter that is properly before the addеd.) court.” (Emphasis matter before the court in this case concerned a motion to parents
remove John’s as his guardians filed the Geauga County Board of Thus, Developmental Disabilities. question for this court’s determination would be whether the board’s motion was properly before the court. Because a county board of developmental disabilities does not have the implied authority to file a motion to incompetent, remove the of an its motion to Spanglers remove the properly Jоhn’s was never before the court. Consequently, the court lacked plenary power to remove John’s so, guardians, as his and in doing the court exceeded its limited statutory jurisdiction. *10 I Accordingly, would affirm the decision of the Eleventh District Court Appeals and remand the case to the trial court for proceedings. further J., foregoing opinion. concurs
Pfeifer, Miedema, Attorney, and J.A. County Prosecuting Joyce, Geauga P. David Co., L.P.A., Franklin J. and Hickman & Lowder Attorney; Prosecuting Assistant Saltzman, Board Geauga County Hickman, apрellant for and Judith C. Disabilities. Developmental Hamalian, C. and Kerstin Service, Boylan, S. Jason Rights Derek Legal
Ohio Spangler. John Sjoberg-Witt, appellee Makowski, for Pamela Walker Makowski and of Pamela Walker
Law Office Spangler. Joseph and Gabriele appellees General, General, Mizer, Benjamin C. Solicitor Cordray, Attorney
Richard Hartnett, General, Lieberman, and Elizabeth G. Solicitor Deputy David M. of Ohio. General, for amicus curiae state Attorney urging reversal Assistant Protective Advocacy curiae reversal amicus Egan, urging Shane Services, Inc. Appellee. Bess, Ohio, Appellant, v. State Bess,
[Cite as State v.
350,