In re Guardianship of T.M.D.-D , 2021 Ohio 3249 ( 2021 )

[Cite as In re Guardianship of T.M.D.-D, 2021-Ohio-3249.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
WASHINGTON COUNTY
In Re: Guardianship of T.M.D.-D.: Case No. 20CA36
:
: DECISION AND
RELEASED 9/15/2021 : JUDGMENT ENTRY
______________________________________________________________________
APPEARANCES:
Ryan B. Green, The Ryan B. Green Law Firm, LLC, Columbus, Ohio, for appellant.
Timothy C. Loughry, Loughry, Buell & Sipe, LLC, Marietta, Ohio, and Paul Giorgianni,
Giorgianni Law LLC, Columbus, Ohio, for appellee.
______________________________________________________________________
Hess, J.
{¶1} C.D. (“Father”) appeals from a judgment of the Washington County Court
of Common Pleas, Probate Division, denying his motion to terminate the guardianship
of his child, T.M.D.-D. Father maintains that the probate court abused its discretion by
relying on facts outside the record, changing the language of its prior orders, finding the
guardianship was permanent rather than temporary, and not terminating the temporary
guardianship. For the reasons that follow, we reject his contentions and affirm the
probate court’s judgment.
I. FACTS AND PROCEDURAL HISTORY
{¶2} On July 3, 2017, T.M.D.-D., the son of Father and K.D. (“Mother”), was
born in Ohio. On March 16, 2018, S.S. (“Aunt”), the child’s maternal aunt, filed an
application in the probate court to be appointed the child’s guardian. The application
states that a guardianship is necessary because “the ward’s interests will be promoted
by the appointment of a guardian. The ward’s mother is in a rehabilitation facility and
the ward’s father is a full[-]time student in CO. The applicant is willing and able to
Washington App. No. 20CA36 2
provide for the ward’s basic needs.” The application form has places for an applicant to
indicate whether the type of guardianship applied for is “non-limited,” “limited,” “person
and estate,” “estate only,” or “person only.” On Aunt’s application, the “non-limited” and
“person and estate” options are marked. The application form has places for an
applicant for a limited guardianship to list the limited powers requested and indicate
whether the length of the guardianship requested is “indefinite” or “definite to” a date
specified by the applicant. On Aunt’s application, the “definite to” option is marked and
the date specified is July 3, 2035, i.e., the child’s eighteenth birthday. Mother and Father
signed waiver of notice and consent forms stating: “We, the undersigned, do each of us
hereby waive the issuing and service of notice, and voluntarily enter our appearance
herein. We do hereby consent to the appointment of [Aunt].”
{¶3} On April 12, 2018, the probate court issued a judgment finding that a
guardianship was necessary and appointing Aunt guardian of the child’s person and
estate “with the powers conferred as described, and limited to those powers contained
in the [l]etters of [g]uardianship issued by this Court.” The letters of guardianship gave
Aunt power over the child’s person and estate and specified that the powers “until
revoked” were for an “[i]ndefinite time period.”
{¶4} On November 13, 2019, Father moved to terminate the guardianship. The
probate court conducted a hearing on the motion at which Father testified that he
previously instituted an action in juvenile court seeking full custody of the child. He lives
in Colorado, and around the time, was a full-time student enrolled in two bachelor’s
degree programs, was interning as a deputy probation officer in Larimer County’s Eighth
Judicial District, and was enrolled in a vocational rehabilitation program. Father testified
Washington App. No. 20CA36 3
that Aunt’s attorney, Timothy Loughry, approached him about coming to an agreement
in the juvenile court case while he was in school. He agreed to the guardianship and
intended that it would last until he graduated and was in a better position to care for the
child. Father testified that he was never advised that the guardianship was permanent
and would not have agreed to a permanent guardianship. Father introduced into
evidence a February 6, 2018 email he sent to his vocational rehabilitation coordinator
and copied to Loughry which states:
Tim Loughry may reach out to you, as he is helping to resolve custody
proceedings in Ohio regarding my son. I wanted to give you a heads up,
so if he gives you a jingle please know you have my expressed [sic]
consent to discuss this matter with him.
If you need a release for him to communicate with you please let me
know. The conversation is generally regarding giving my son’s aunt the
legally [sic] ability to make decisions on my behalf and whether or not the
VA would honor that if she were to be named by the court a residential
custodial guardian while I’m in the Vocation Rehabilitation and
Employment program.
Father testified that at the time, he anticipated being in the referenced program for two
years. He also testified that during a March 9, 2018 pretrial conference in the juvenile
court case at which Loughry was present, Father told a magistrate that he needed help
with his son and that the guardianship “would only be for a couple of years.” Father
testified that he did not see the guardianship application until about 10 days after the
probate court issued the letters of guardianship.
{¶5} Father testified that he is now in a position to care for the child. He
completed his bachelor’s degrees on “an accelerated basis,” earning a Bachelor of
Social Work from Colorado State University and a Bachelor of Science from Charter
Oak State College in May 2019. He finished the vocational rehabilitation program. He
Washington App. No. 20CA36 4
is pursuing a master’s degree online but has classes only three hours a week. He
indicated that he might pursue a law degree in the future. Father testified that he is not
employed but has the financial means to provide for the child and expected to become a
full-time probation officer upon completion of his internship. Father testified that since
the creation of the guardianship, he has visited the child and communicated with him via
phone calls and FaceTime. Father had “a list” of objections to the way Aunt cared for
the child but would not elaborate on the subject.
{¶6} Aunt testified that she and Father “never really discussed” the duration of
the guardianship at the time it was established, but she intended it to be “indefinite” and
last until the child turned 18 or graduated from high school. According to Aunt, the
guardianship was in place for over a year before Father mentioned it being short term or
the child moving to Colorado. Aunt testified that Mother is a drug addict, and the reason
for the guardianship was “[t]o take care of [the child] and provide what his Mother could
not. To keep him here in a family environment, to where he would grow up with his
siblings in a house. And his cousins and his grandparents.” Aunt testified that her and
Father’s main concern was to keep Mother away from the child. Aunt and Father
agreed that Mother should only have supervised visitation with the child and needed to
be sober for at least five years and living in her own home “to have any kind of parental
rights.” But Aunt and Father knew “it wasn’t looking good for that.” Aunt testified that
she is married and has four children. Aunt and Father discussed the child living with her
because Father “was in school, and he wanted [the child] to stay and grow up in a
house with children and siblings and family. Something that he himself never had.”
When the guardianship application was filed, Father talked about moving to Ohio “[t]o
Washington App. No. 20CA36 5
be closer to [the child]” and how he was looking at jobs in Cincinnati, Columbus, and
Parkersburg. Aunt testified that she and Father discussed her enrolling the child in
preschool when he turned three and discussed “long[-]term plans for parenting time” but
never “put anything in [sic] paper.” Aunt testified that the child is integrated into her
family, that she provides for his needs, and that she is willing and able to continue doing
so and serving as his guardian.
{¶7} L.D. (“Grandmother”), the child’s maternal grandmother, testified that the
guardianship was established because of Mother’s “addiction problems.” Grandmother
was unaware of Father specifically asking anyone in her family to take the child until he
turned 18. However, Grandmother believed the guardianship would last until the child
finished school. Around the time the guardianship was established, Father told
Grandmother that he enjoyed her family’s dynamics and how “that’s what he wanted for
his son” “[b]ecause he did not have that as a child growing up.” Grandmother explained
that family dynamics meant “[t]he brothers, and nieces and nephews, all being there
with [the child].” Father never discussed the child moving to Colorado to live with him or
said anything that made Grandmother believe the guardianship would end before the
child turned 18. Father told Grandmother that after he finished school, he planned to
come to Ohio to be closer to her family and the child. Grandmother testified that the
child is integrated into her family and calls Aunt “Mom.”
{¶8} The probate court denied the motion to terminate and ordered “that the
guardianship shall continue in full force and effect until the child’s 18th birthday.” The
court stated that resolution of the case turned on whether the guardianship “was meant
to be [t]emporary or [p]ermanent (i.e., until age 18).” If the guardianship was temporary,
Washington App. No. 20CA36 6
the court could remove the guardian for “good cause” under R.C. 2111.46. If the
guardianship was permanent, the court had to apply R.C. 3109.04(E)(1)(a) and could
only terminate the guardianship if there had been an adverse change in the custodial
environment and a change of custody was in the best interest of the child. The court
stated:
The Court having considered the evidence presented in this matter
finds by clear and convincing evidence that both parents relinquished
custody through the signing of the consents and that the guardianship * * *
was meant to be a permanent guardianship until the child reached age 18.
The application clearly stated that it was non-limited and would last until
the child’s 18th birthday on July 3, 2035. Although the letters of
guardianship issued on April 12, 2018, state that the time period was for
an indefinite time period rather than age 18, the Court finds said
discrepancy irrelevant for the fact that the Court clerk prepared the [l]etters
rather than the attorney and this Court did not catch its mistake. The
Court believed at the time it issued the letters that said guardianship was
to last until the child’s 18th birthday based on the application and consents
filed.
Both the guardian and the child’s maternal grandmother also
believed based on their conversations with the father that the guardianship
would last until age 18. The only person who thinks otherwise is the
father. However, by his own testimony he stated that he became aware
that the end date of the guardianship was listed as age 18 when he got a
copy of the application in late April 2018, approximately 7 to 10 days after
the entry appointing a guardian and letters of guardianship were filed.
Why then, the Court wonders, did he wait until approximately August 2019
to start questioning the guardian about the issue and then wait until
November 2019, approximately 1 ½ years after discovering that the
guardianship would last until age 18, to file a motion to terminate. The
Court believes the father misses his son, as any parent would, and now
regrets his decision to enter into a guardianship. However, it is clear to
the Court now, as it was in April 2018, that the guardianship was meant to
be permanent until the child’s 18th birthday.
* * * In the present case there is no change in circumstances with
respect to the guardian or ward. Since the guardianship was granted two
and a half years ago, the guardian and child are both doing well with the
situation. No evidence was presented that the guardian is not providing
for the child. Nothing has changed with either of them. It is still in the
child’s best interest to continue living with the guardian.”
Washington App. No. 20CA36 7
{¶9} Subsequently, Aunt moved to terminate the guardianship of the estate,
asserting it was unnecessary. The court granted the motion and issued revised letters
of guardianship indicating Aunt has power over the child’s person only and that her
powers “until revoked” are for a “[d]efinite time period to July 3, 2035 (Date of Minor’s
18th Birthday).” The same day, Father filed a notice of appeal from the entry denying
his motion to terminate the guardianship.
II. ASSIGNMENTS OF ERROR
{¶10} Father presents the following assignments of error:
1. The trial court abused its discretion in using facts that were not part of
the record and changing the language of its prior orders in order to
reach it [sic] preferred outcome.
2. The trial court abused its discretion in finding the guardianship to be
permanent.
3. The trial court abused its discretion when it did not terminate the
temporary guardianship.
III. LAW AND ANALYSIS
A. Standard of Review
{¶11} We will not reverse a probate court’s ruling on a motion to remove a
guardian absent an abuse of discretion. In re Guardianship of Zornes, 4th Dist.
Lawrence No. 96CA35, 1997 WL 441854, *5 (Aug. 4, 1997). An abuse of discretion is
“an unreasonable, arbitrary, or unconscionable use of discretion, or * * * a view or action
that no conscientious judge could honestly have taken.” State v. Brady, 119 Ohio St.3d
375, 2008-Ohio-4493, 894 N.E.2d 671, ¶ 23. In addition, we will not reverse a trial
court’s factual findings if they are supported by “some competent, credible evidence.”
Beaver v. Beaver, 4th Dist. Pickaway No. 18CA5, 2018-Ohio-4460, ¶ 29. “[W]e are
Washington App. No. 20CA36 8
mindful that the trial court is in the best position to judge credibility of testimony because
it is in the best position to observe the witness’s gestures and voice inflections.” Id.B. General Principles
{¶12} “ ‘The right of a parent to the custody of his or her child is one of the oldest
fundamental liberty interests recognized by American courts.’ ” In re H.R.P.T., 4th Dist.
Scioto No. 20CA3915, 2021-Ohio-2285, ¶ 33, quoting In re Thompkins, 115 Ohio St.3d
409, 2007-Ohio-5238, 875 N.E.2d 582, ¶ 10. “Consequently, ‘[p]arents have a
constitutionally protected due process right to make decisions concerning the care,
custody, and control of their children, and the parents’ right to custody of their children is
paramount to any custodial interest in the children asserted by nonparents.’ ” Id.,quoting In re Mullen, 129 Ohio St.3d 417, 2011-Ohio-3361, 953 N.E.2d 302, ¶ 11.
“ ‘The general rule in Ohio regarding original custody awards in disputes between a
parent and a nonparent is that “parents who are ‘suitable’ persons have a
‘paramount’ right to the custody of their minor children unless they forfeit that right by
contract, abandonment, or by becoming totally unable to care for and support those
children.” ’ ” Id. at ¶ 34, quoting Masitto v. Masitto, 22 Ohio St.3d 63, 65, 488 N.E.2d
857 (1986), quoting In re Perales, 52 Ohio St.2d 89, 97, 369 N.E.2d 1047 (1977).
“Parents who have relinquished custody through waiver, contract or consent are bound
by their agreement to do so, and thus lose the preferential status in subsequent custody
actions.” Zornes at *3, citing Masitto at 65.
C. Statutory Standard for Termination of a Guardianship
{¶13} The probate court found that when a parent consents to a guardianship
and later seeks to terminate it, the statutory standard for termination depends on
Washington App. No. 20CA36 9
whether the parent relinquished his or her paramount right to custody when consenting
to the guardianship. The probate court found that if the parent agreed to a temporary
guardianship, R.C. 2111.46 applies, which states: “When a guardian has been
appointed for a minor before the minor is over fourteen years of age, the guardian’s
power shall continue until the ward arrives at the age of majority, unless removed for
good cause or unless the ward selects another suitable guardian.” The court explained
that because the parent retains the right to preferential treatment in a subsequent
custody determination, the parent can meet the good cause standard with evidence that
he or she “is able and suitable to be a parent.” The probate court found that if the
parent agreed to a permanent guardianship, R.C. 3109.04(E)(1)(a) applies, which
states:
The court shall not modify a prior decree allocating parental rights and
responsibilities for the care of children unless it finds * * * that a change
has occurred in the circumstances of the child, the child’s residential
parent, or either of the parents subject to a shared parenting decree, and
that the modification is necessary to serve the best interest of the child.
{¶14} The probate court relied on Masitto for the proposition that R.C.
3109.04(E)(1)(a) applies to a motion to terminate a permanent guardianship. Masitto
upheld a trial court’s decision to proceed under former R.C. 3109.04(B), now R.C.
3109.04(E)(1)(a), where a parent requesting a change in custody forfeited his natural
rights to custody of his child by consenting to a guardianship and divorce decree that
referenced it. Masitto at 65-66. We observe that in Masitto, the appeal arose from a
domestic relations court’s ruling on a motion for a change in custody, not a probate
court’s ruling on a motion to terminate the guardianship. See id. at 64-65; id. at 68-69
(Celebrezze, C.J., dissenting).
Washington App. No. 20CA36 10
{¶15} We also observe that in In re Spriggs, 4th Dist. Scioto No. 89-CA-1803,
1990 WL 54871 (Apr. 24, 1990), we implied that former R.C. 3109.04(B) applied to a
motion to terminate a permanent guardianship. See Spriggs at *2 (“Based upon the
probate court’s finding of fact that [the mother] did not contract away her rights to
custody, the probate court was not required to apply the stringent test of ‘the best
interest of the child’ under R.C. 3109.04 * * * but rather, simply could have applied the
‘good cause’ test of R.C. 2111.46 for termination of guardianship”). However, we did
not make a holding to that effect because we upheld the probate court’s determination
that the guardianship in that case was temporary. Id. And in a subsequent case
involving a permanent guardianship, we stated that the parent had to “meet the
requirements of R.C. 2111.46 for termination of the guardianship” and made no mention
of R.C. 3109.04. Zornes, 4th Dist. Lawrence No. 96CA35, 1997 WL 441854, at *4. We
did, however, observe that the phrase “good cause” in R.C. 2111.46 “is broad enough to
encompass the child’s best interest.” Zornes at *4, fn. 3, citing Spriggs.
{¶16} Because Father does not challenge the probate court’s finding that R.C.
2111.46 applies to a motion to terminate a temporary guardianship and R.C.
3109.04(E)(1)(a) applies to a motion to terminate a permanent guardianship, we need
not address the issue further.
D. First Assignment of Error
{¶17} In his first assignment of error, Father contends that the probate court
abused its discretion because it used “facts that were not part of the record” and
changed “the language of its prior orders.” Father asserts that this case is similar to In
re Guardianship of B.I.C., 9th Dist. Wayne No. 11CA0028, 2012-Ohio-3519, and that
Washington App. No. 20CA36 11
the guardianship should be presumed temporary because the letters of guardianship
stated that it was indefinite. Father maintains that the probate court made up facts to
find the guardianship was permanent when it stated:
Despite the fact that the [a]pplication was for a non-limited guardianship,
the attorney wanted to make it clear on the form that it was to continue
until the child turned 18 and so the date of the child’s 18th birthday was
written in under the limited guardianship part of the form to show the intent
that it would last until age 18, even though it was not a limited
guardianship.
Father asserts that “neither Attorney Loughry nor the Court ever testified about the
[a]pplication.”
{¶18} Competent and credible evidence supports the probate court’s finding of
fact about the application. Aunt signed the guardianship application but testified that
she did not fill it out. Although Attorney Loughry did not testify, it appears that he also
signed the application in his capacity as Aunt’s attorney. The probate court could
reasonably infer that he approved the language in the application, regardless of whether
he personally filled it out,1 because he wanted to make it clear that the guardianship
was to last until the child turned 18. The application specifically requested that duration
for the guardianship even though the form used required only limited guardianship
applicants to state a requested duration, and Aunt sought a non-limited guardianship.
{¶19} Father also claims the probate court changed the letters of guardianship
from granting a temporary guardianship to granting a permanent one when it stated:
Although the letters of guardianship issued on April 12, 2018, state that
the time period was for an indefinite time period rather than age 18, the
Court finds said discrepancy irrelevant for the fact that the Court clerk
prepared the [l]etters rather than the attorney and this Court did not catch
1 During oral argument, Attorney Loughry indicated that he did not complete the portion of the application
requesting that the guardianship last until the child turned 18 and suggested that he did not know who
handwrote that information on application. However, those facts are not part of the record on appeal.
Washington App. No. 20CA36 12
its mistake. The Court believed at the time it issued the letters that said
guardianship was to last until the child’s 18th birthday based on the
application and consents filed.
In his reply brief, Father characterizes the court’s statement about its belief as an
attempt by the judge to “clarify the record for the first and only time in his Judgment
Entry years later and thus evade cross-examination, which offends due process, is
improper, unethical and changed the outcome of the case.”
{¶20} Father’s contention that the probate court improperly modified the letters
of guardianship is not well taken. Contrary to what Father suggests, the letters of
guardianship reasonably could be interpreted to grant Aunt’s request for a guardianship
until the child turned 18. It is true that the letters of guardianship stated that the
guardianship duration was indefinite instead of definite until the child turned 18.
However, in this context there is no practical difference between the duration requested
and the duration granted because even though the court did not specify an end date for
Aunt’s powers, they would terminate by operation of law when the child turned 18. In re
Guardianship of Hollins, 114 Ohio St.3d 434, 2007-Ohio-4555, 872 N.E.2d 1214,
syllabus (“When a guardianship is predicated exclusively on a ward’s minor status, the
guardian’s power and the probate court’s jurisdiction both terminate when the ward
reaches the age of majority”).
{¶21} The fact that the letters of guardianship did not denominate the
guardianship’s term as temporary or permanent entitled Father to a presumption that
the guardianship was temporary but only in the absence of clear and convincing
evidence to the contrary. Spriggs, 4th Dist. Scioto No. 89-CA-1803, 1990 WL 54871, at
*2. Here, the probate court found by clear and convincing evidence that the
Washington App. No. 20CA36 13
guardianship was permanent. As we will explain in the next section, that finding is
supported by some competent, credible evidence, and Father’s reliance on B.I.C. is
misplaced.
{¶22} For the foregoing reasons, we overrule the first assignment of error.
E. Second Assignment of Error
{¶23} In his second assignment of error, Father contends that the probate court
abused its discretion when it found the guardianship was permanent. Father maintains
that the record clearly establishes that the guardianship was temporary. Father directs
our attention to an uncertified copy of an April 12, 2018 agreed entry from the juvenile
court proceeding which he attached to his appellate brief. He asserts that the entry
designated him “sole residential and legal custodian” and that while it indicates the
parties agreed to a guardianship, “[t]here was no mention that the [g]uardianship was
permanent.” He claims Attorney Loughry proposed a temporary guardianship, and
Father agreed because he was busy with college, an internship, and a vocational
rehabilitation program. Father also claims Attorney Loughry knew Father believed the
guardianship was temporary based on statements he made in the February 6, 2018
email and at the March 9, 2018 pretrial conference. Father maintains that there is
evidence he intended the guardianship to be temporary and that Attorney Loughry and
Aunt never told him they intended it to be permanent. He suggests Aunt actually
intended for the guardianship to be temporary because she testified that she intended it
to be “indefinite” and contemplated Mother regaining parental rights. He claims Aunt
and Grandmother provided no basis for their belief that the guardianship would last until
the child turned 18 or finished school. He maintains that the guardianship application’s
Washington App. No. 20CA36 14
stated reasons for the guardianship “do not indicate permanency as schooling and even
rehabilitation are temporary in nature.” Father also claims that he did not see the
application until after the court issued the letters of guardianship. He suggests it was
logical for him to finish college and the vocational rehabilitation program before moving
to terminate the guardianship because that was the parties’ agreement, and the letters
of guardianship “confirmed” his understanding that the guardianship was temporary.
{¶24} Father asserts that “[t]he instant matter is closely aligned with other cases
in which the [g]uardianship was found to be temporary,” citing In re Guardianship of
Godsey, 2d Dist. Clark No. 2002-CA-69, 2003-Ohio-2692; In re Guardianship of Smith,
12th Dist. Preble No. CA2002-12-012, 2003-Ohio-4247; and B.I.C. He suggests this
case is distinguishable from cases in which courts have found guardianships to be
permanent because in those cases, “the definition of a permanent guardianship and the
consequences thereof (a loss of parental rights) were expressly discussed with the
party consenting to the [g]uardianship.” He directs our attention to In re Guardianship of
Dillon, 5th Dist. Holmes No. 05CA008, 2005-Ohio-5217, and In re Guardianship of
Sanders, 118 Ohio App.3d 606, 693 N.E.2d 1101 (2d Dist.1997).
{¶25} “Given a parent’s paramount right to custody under Ohio law, absent clear
and convincing evidence to the contrary, a guardianship that does not denominate its
term as being either temporary or permanent, should be presumed to be temporary in
nature.” Spriggs, 4th Dist. Scioto No. 89-CA-1803, 1990 WL 54871, at *2. “Clear and
convincing evidence is that measure or degree of proof which is more than a mere
‘preponderance of the evidence,’ but not to the extent of such certainty as is required
‘beyond a reasonable doubt’ in criminal cases, and which will produce in the mind of the
Washington App. No. 20CA36 15
trier of facts a firm belief or conviction as to the facts sought to be established.” Cross
v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the syllabus.
“[W]hether a parent permanently relinquishes rights to custody by consent to a
guardianship, i.e., whether the guardianship was intended to be temporary or
permanent, ultimately is a factual question and will not be disturbed if supported by
some competent, credible evidence.” Zornes, 4th Dist. Lawrence No. 96CA35, 1997
WL 441854, at *4.
{¶26} Here, the letters of guardianship did not denominate the term of the
guardianship as temporary or permanent; however, some competent, credible evidence
supports the probate court’s finding by clear and convincing evidence that it was meant
to be permanent. It is not obvious that the child needed a permanent guardianship from
the reasons for the guardianship listed on Aunt’s application. However, the application
specifically requested that the guardianship last until the child’s eighteenth birthday, and
the parents signed forms giving their unqualified consent to the guardianship.
{¶27} Aunt gave testimony which supports the conclusion that the guardianship
was permanent. Aunt testified that she intended the guardianship to last until the child
turned 18 or graduated from high school. Although Aunt contemplated the possibility of
Mother having unspecified parental rights in the future if she met certain criteria, Aunt
testified that was unlikely to occur, and there is no evidence the parties agreed to
terminate the guardianship if it did. Aunt acknowledged she and Father did not explicitly
discuss the duration of the guardianship when it was established. However, she testified
about conduct of Father which indicates that he intended the guardianship to be
permanent. Father expressed that he wanted the child to live with Aunt so that unlike
Washington App. No. 20CA36 16
Father, the child would grow up in a house with children and family. Father talked about
long-term plans for parenting time, moving to Ohio to be closer to the child, and job
hunting in and near Ohio. Aunt testified that the guardianship was in place for over a
year before Father ever discussed it being short term or the child moving to Colorado.
{¶28} Grandmother also gave testimony which supports the conclusion that the
guardianship was permanent. She believed the guardianship would last until the child
finished school and testified about conduct of Father which supports that belief. Father
commented about how he enjoyed the dynamics in Grandmother’s family and how
“that’s what he wanted for his son.” Father did not discuss the child moving to Colorado
or otherwise suggest the guardianship would end before the child turned 18. To the
contrary, he discussed moving to Ohio after he finished school to be closer to the child.
{¶29} The February 6, 2018 email does not compel a conclusion that the
guardianship was temporary. The email contains language about Aunt being “named
by the court a residential custodial guardian while [Father is] in the Vocation
Rehabilitation and Employment program.” Although the email discusses the
appointment occurring while Father is in the program, it is not clear from the language
used whether the appointment would terminate upon his completion of the program.
{¶30} The probate court, which was in the best position to evaluate the credibility
of testimony, did not believe Father’s testimony about the guardianship being
temporary. The court questioned why, after receiving the guardianship application in
late April 2018 and seeing the guardianship end date listed, Father waited “until
approximately August 2019 to start questioning the guardian about the issue” and
waited “until November 2019, approximately 1 ½ years after discovering that the
Washington App. No. 20CA36 17
guardianship would last until age 18, to file a motion to terminate.” The court believed
Father “misses his son, as any parent would, and now regrets his decision to enter into
a guardianship.”
{¶31} The probate court was free to believe Aunt and Grandmother’s testimony
about the guardianship being permanent and not believe Father’s testimony to the
contrary. It was reasonable for the court to expect Father to take some action with
respect to the guardianship sooner than he did if he intended it to be temporary. The
guardianship application plainly requested that the guardianship last until the child
turned 18. Even though the letters of guardianship did not state that the guardianship
was permanent or would last until the child turned 18, the document gave no indication
that the parties had agreed to terminate the guardianship once Father completed
college and was in a better position to care for the child. Under these circumstances,
one would expect Father to, at the very least, contact Aunt upon receipt of the
application to question why it contradicted their agreement and none of the court
documents mentioned that agreement.
{¶32} Father’s reliance on the agreed entry from the juvenile court proceeding
which he attached to his appellate brief is misplaced. The probate court was
presumably aware of this entry because it is signed by the same judge who presided
over the probate court proceedings. However, Father did not introduce this entry into
evidence during the hearing on the motion to terminate, and the probate court’s entry on
the motion to terminate makes no mention of it. “A reviewing court should consider only
the evidence that the trial court had before it.” Saunders v. Holzer Hosp. Found., 176
Ohio App.3d 275, 2008-Ohio-1032, 891 N.E.2d 1202, ¶ 8, fn. 2.
Washington App. No. 20CA36 18
{¶33} Even if we could consider the entry, it is not dispositive of whether the
guardianship was permanent or temporary. The entry states that Mother, Father, and
Aunt agreed it was “in the best interest of the child that [Father] be named residential
parent and legal custodian of [the child].” However, they also agreed Aunt would apply
to be the child’s guardian and that the parents would consent to her appointment. The
entry does not state that the guardianship is permanent or temporary. The entry
acknowledges the guardianship could terminate, stating: “Should the guardianship of
the person of the minor child be terminated for any reason, the parties agree to mediate
the issue of residential parent and legal custodian of the minor child. Should mediation
be unsuccessful, the parties agree that no change in circumstances must be alleged or
proven and that the only issue to be heard and decided by this Court will be what is in
the best interest of the child.” (Emphasis added.) But this language does not suggest
termination was inevitable or expected to occur once Father completed college and was
better positioned to care for the child. Notably, there are reasons a guardianship might
terminate before a child turns 18 even though the parents intended to permanently
relinquish custody to the guardian, such as death or disability of the guardian.
{¶34} Godsey and B.I.C. are inapposite. In Godsey, the Second District Court of
Appeals affirmed a judgment terminating a guardianship. Godsey, 2d Dist. Clark No.
2002-CA-69, 2003-Ohio-2692, ¶ 1, 19. In doing so, the appellate court held that the
probate court did not err when it found that the guardianship was temporary. Id. at ¶ 10.
The appellate court noted the probate court’s observations that (1) the guardians “did
not request a guardianship for a ‘definite’ duration, such as until [the child’s] eighteenth
birthday”; (2) the “letters of guardianship, which described the guardianship as being for
Washington App. No. 20CA36 19
an ‘indefinite time period,’ reasonably could be interpreted as granting a temporary
guardianship”; and (3) a finding that the guardianship was temporary was consistent
with the mother’s testimony and the fact that the child’s “need for medical insurance was
the expressed reason for the * * * guardianship application.” Id. at ¶ 12.
{¶35} In B.I.C., the Ninth District Court of Appeals also affirmed a judgment
terminating a guardianship. B.I.C., 9th Dist. Wayne No. 11CA0028, 2012-Ohio-3519, at
¶ 17. The father did not consent or object to the guardianship application, and the
appellate court held that the probate court did not err when it found the resulting
guardianship was temporary. Id. at ¶ 2, 10. The appellate court explained that the
guardians did not assert that the guardianship was permanent until the father moved to
terminate it. Id. at ¶ 10. At the time they applied to be guardians, their attorney sent the
father a letter stating that they sought “ ‘to be named as temporary guardians.’ ” Id. at ¶
2, 10. One of the guardians testified that she understood “temporary” to mean until the
child was 18, but “the probate court was entitled not to believe her, considering that her
application did not ask for the guardianship to last until that time.” Id. at ¶ 10. The
appellate court noted that the letters of guardianship did not indicate the guardianship
would last until the child turned 18 but instead stated that the “the guardianship will be
for an ‘[i]ndefinite’ length.” Id.
{¶36} This case is distinguishable from Godsey and B.I.C. The letters of
guardianship in all three cases stated that the guardianship was for an indefinite period
of time. However, in this case, the guardianship application explicitly requested that the
guardianship last until the child turned 18. As we previously explained, the letters of
guardianship reasonably could be interpreted to grant that request. In addition, in this
Washington App. No. 20CA36 20
case, there is some competent, credible evidence that the parties intended the
guardianship to be permanent, and the probate court did not believe Father’s testimony
to the contrary.
{¶37} Smith is also inapposite. In that case, the Twelfth District Court of
Appeals affirmed a probate court’s judgment terminating a guardianship. Smith, 12th
Dist. Preble No. CA2002-12-012, 2003-Ohio-4247, at ¶ 1. In doing so, the appellate
court held that reliable, credible evidence supported the probate court’s finding that the
guardianship was temporary. Id. at ¶ 12. The appellate court noted that the mother
testified that she never intended to give up permanent custody, that documents she
signed regarding the guardianship did not refer to the placement as permanent, and that
one document provided “for termination with mutual consent of the parties.” Id. at ¶ 13.
The appellate court observed that the guardianship application did “not indicate it is
permanent” and that the guardians’ attorney sent the application to the mother with a
letter stating that she had the “ ‘right to file an application with the court to assert the
guardianship is no longer necessary.’ ” Id. There was evidence that when the mother
agreed to the guardianship, “she was unable to care for herself or her children
physically, emotionally or financially.” Id. at ¶ 14. There was also evidence she had
been told “she needed to take care of herself and get her life together before she would
be able to take care of the children,” and the mother testified that she granted the
guardianship for that reason. Id.
{¶38} This case is distinguishable from Smith. Here, unlike in Smith, the
guardianship application requested that the guardianship last until the child turned 18,
and as detailed above, there is additional evidence which supports the conclusion that
Washington App. No. 20CA36 21
the guardianship was permanent. Moreover, it is evident that the probate court in Smith
found the mother’s testimony that she never intended to give up permanent custody of
her children credible, but in this case, the probate court did not find credible Father’s
testimony about the guardianship being temporary.
{¶39} Father’s reliance on Dillon and Sanders is misplaced. In Dillon, the
appellate court held the probate court properly found a guardianship was permanent
because “[t]he clear language of the guardianship application” showed the child’s
grandparents sought a guardianship until the child turned 18, and the entry granting the
application “unequivocally” established that the probate court “fully explained the affect
[sic] of the guardianship to mother” at the hearing on the application. Dillon, 5th Dist.
Holmes No. 05CA008, 2005-Ohio-5217, at ¶ 26. In Sanders, the appellate court upheld
a finding that a guardianship was permanent, noting that the guardian testified that she
believed the guardianship was permanent and that the probate judge took judicial notice
of the fact that at the guardianship application hearing, he told the mother and guardian
that the guardianship was permanent and would be in effect until the child turned 18.
Sanders, 118 Ohio App.3d at 613-614, 693 N.E.2d 1101.
{¶40} In this case, it is not apparent that Father attended the guardianship
application hearing, and there is no evidence the probate court gave him information
similar to the information the probate courts gave the parents in Dillon and Sanders.
Such evidence would undoubtedly be helpful in resolving whether the parties intended
the guardianship to be permanent or temporary. Nonetheless, as we previously
explained, some competent, credible evidence supports the probate court’s finding by
Washington App. No. 20CA36 22
clear and convincing evidence that the guardianship in this case was meant to be
permanent. Accordingly, we overrule the second assignment of error.
F. Third Assignment of Error
{¶41} In his third assignment of error, Father contends that the probate court
abused its discretion when it did not terminate the “temporary” guardianship. Father
asserts that by consenting to a temporary guardianship, he did not relinquish his right to
“preferential treatment in a subsequent determination of custody” and is entitled to
custody of the child so long as he is able and suitable to be a parent. Father maintains
that there is good cause to terminate the guardianship because he is able and suitable
to be parent, and the original reasons for the guardianship no longer exist.
{¶42} Father’s argument is predicated on the assumption that we will sustain his
second assignment of error and conclude the guardianship was temporary. However,
we overruled Father’s second assignment of error. Consequently, we overrule the third
assignment of error.
IV. CONCLUSION
{¶43} Having overruled the assignments of error, we affirm the probate court’s
judgment.
JUDGMENT AFFIRMED.
Washington App. No. 20CA36 23
JUDGMENT ENTRY
It is ordered that the JUDGMENT IS AFFIRMED and that appellant shall pay the
costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the
Washington County Common Pleas Court, Probate Division, to carry this judgment into
execution.
Any stay previously granted by this Court is hereby terminated as of the date of
this entry.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
Abele, J. & Wilkin, J.: Concur in Judgment and Opinion.
For the Court
BY: ________________________________
Michael D. Hess, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.