In re Guardianship of E.M.

2022 Ohio 862

• Court: Ohio Court of Appeals
• Decided: March 18, 2022
• Docket: S-21-011
• Status: Published

Opinion

[Cite as In re Guardianship of E.M., 2022-Ohio-862.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT SANDUSKY COUNTY

In re Guardianship of E.M. Court of Appeals No. S-21-011

Trial Court No. 20132015

DECISION AND JUDGMENT

Decided: March 18, 2022 *****

John A. Coble, Joseph F. Albrechta, and Jordan A. Treece, for appellant.

Andrew R. Mayle, Ronald J. Mayle, and Benjamin Padanilam, for appellees.

***** PIETRYKOWSKI, J.

{¶ 1} Appellant, C.M., appeals the June 23, 2021 judgment of the Sandusky

County Probate Court which denied her objections to the magistrate’s decision denying

her application to terminate the guardianship of her daughter, E.M. Because we find that

the court erred in limiting testimony regarding the formation and purpose of the

guardianship, we reverse. I. Facts and Procedural History

{¶ 2} E.M., the ward, was born premature in 2008. At age two she was diagnosed

with cerebral palsy. E.M. has physical limitations, a speech delay, and some behavioral

concerns and requires various therapies and medical interventions. In August 2012,

appellant and E.M.’s father divorced and custody was awarded to appellant.

{¶ 3} In July 2013, appellees, C.C. and D.C., paternal grandparents of E.M., filed

an application for guardianship of the person of their granddaughter. The stated reason

for the indefinite guardianship was that “neither parent is able to provide proper medical

and educational care and assistance for [E.M.].” The guardianship powers requested

were for “medical, educational and custody matters as to [E.M.].” Appellant and E.M.’s

father signed a waiver of notice and consent to appellees being appointed guardians. The

guardianship was finalized on August 19, 2013.

{¶ 4} On July 23, 2014, appellant filed an application to terminate guardianship;

the stated reason was: “It is in the best interest [o]f Ward that the Mother be restored to

full custody, care and [c]ontrol. The Guardianship is no longer necessary and Mother can

provide for all of the Ward’s needs.” A guardian ad litem was appointed for E.M.

On August 5, 2015, appellant filed a motion to reduce guardian powers to a limited

guardianship under R.C. 2111.02(B). Appellant specifically requested that she would

like continued assistance with E.M.’s medical and educational needs but desired to regain

custody. A hearing on the application was held on November 23, 2015. Thereafter, on

2. December 22, 2015, the magistrate issued his decision denying the motions to either

terminate or reduce the guardianship powers. The court concluded:

The evidence presented at the hearing is clear that the ward’s health

has not significantly changed making guardianship no longer necessary.

Also, on July 2, 2013 [C.M.] executed consent to the appointment of [C.

and D.C.] as guardians of [E.M.]. That consent was filed with the Court

and was not withdrawn prior to the appointment of the [C.s] on August 19,

2013.

The Letters of Guardianship issued in this case indicate that the

[appellees] are appointment (sic) guardians of the person of [E.M.] for an

indefinite time period. This Court finds that by consenting to the indefinite

guardianship in this case both [C.M.] and [E.M.] contractually relinquished

their right to custody.

Even if she did not contractually relinquish her rights to custody,

[C.M.] provided no good cause for removal of the [appellees] as guardians.

{¶ 5} On June 17, 2020, appellant again filed an application to terminate

guardianship. Appellant stated that prior to and during the guardianship she had been a

fit parent and that she agreed to appellees’ being E.M.’s guardians temporarily as they

were able to provide the necessary medical care. Appellant stated that the “exigent”

medical care had been provided that that she is now able to provide the medical and

educational care that the ward needs. On the same day, appellant filed a request that a

3. transcript from the August 16, 2013 hearing on the original application for appointment

of guardian; she stated that the transcript would aid in establishing the temporary nature

of the guardianship; the motion was denied because the court concluded that the tapes

were no longer in existence.

{¶ 6} On July 20, 2020, appellees filed a motion to dismiss based on the doctrine

of res judicata. Appellees argued that the court’s December 22, 2015 judgment entry

found that appellant consented to the indefinite guardianship and that the purpose of the

guardianship, the ward’s medical issues, had not resolved. Thus, appellant could not

establish good cause for terminating the guardianship. Appellant opposed the motion

arguing that in juvenile custody matters, the application of res judicata is inappropriate

due to the continuing jurisdiction of the court until the juvenile reached the age of

majority. Appellant further asserted that the current application involved facts arising

from 2015 forward.

{¶ 7} On September 15, 2020, the magistrate denied the motion finding that the

doctrine of res judicata did not “strictly comply” but limited any evidence of “good

cause” for the guardians’ removal to evidence from December 22, 2015 to the present.

{¶ 8} A hearing on the application was held on September 30, 2020. Testimony

was presented by appellant and her husband, E.M.’s maternal grandfather, aunt, father,

and E.M.’s parental grandmother (appellee) and uncle. The court also conducted an in-

camera interview of E.M.

4. {¶ 9} On December 7, 2020, the magistrate denied the application. The court first

noted that the ward’s health had not significantly changed. The court stated that

appellant, by consenting to the guardianship, “contractually relinquish[ed]” her right to

custody, and, regardless, appellant failed to demonstrate good cause to remove the

guardians. The court explained:

[T]he purpose for which the guardianship [sic] has not changed.

[C.M.] did provide evidence that she is financially able to provide for the

ward. Also, evidence was presented that [C.M.] can provide health

insurance for the ward. However, the focus is not on [C.M’s] financial

ability to care for the ward. The focus is “good cause” to remove the

guardians. [C.M.’s] financial ability to care for the ward does not equate to

good cause for the removal of the current guardians.

{¶ 10} Appellant filed objections to the magistrate’s decision challenging the

finding that appellant gave up her right to custody of E.M. or that an indefinite

guardianship was properly characterized as permanent. Appellant further challenged the

magistrate’s refusal to admit testimonial and documentary evidence relating to the origin

and purpose of the guardianship. Appellant also challenged the magistrate’s findings that

the ward’s health had not significantly changed. Finally, appellant disputed the court’s

interpretation as to what constituted good cause to terminate a guardianship.

5. {¶ 11} On June 23, 2021, the court denied the objections finding, upon

independent review of the record, no clear error warranting reversal of the magistrate’s

decision. This appeal followed.

II. Assignments of Error

Assignment of Error No. 1: The Sandusky County Probate Court

erred by denying this application to terminate guardianship.

Assignment of Error No. 2: The Sandusky County Probate Court

erred by refusing to admit relevant and probative proffered evidence.

Assignment of Error No. 3: The Sandusky County Probate Court

erred by failing to conduct an independent review as required by Civ.R. 53.

III. Discussion

A. Jurisdiction of the Probate Court

{¶ 12} During the pendency of the case, an issue was raised by this court, sua

sponte, regarding the jurisdiction of the Sandusky County Probate Court to establish a

guardianship over E.M. who was subject to a prior custody determination in Seneca

County, Ohio. Specifically, appellant was granted legal custody of E.M. during the

divorce proceedings. The parties provided supplemental briefing on the issue. Appellant

further requested to supplement the record with judgments pertaining to the divorce

proceedings.

{¶ 13} It is clear that probate courts have exclusive jurisdiction to establish and

administer guardianships. R.C. 2101.24(A)(1)(e). The court’s proper or improper

6. exercise of such jurisdiction, conferred as a matter of law, is distinct from the court’s

subject-matter jurisdiction; the Ohio Supreme Court has explained such distinction as

follows:

The term “jurisdiction” is also used when referring to a court’s

exercise of its jurisdiction over a particular case. See State v. Parker, 95

Ohio St.3d 524, 2002-Ohio-2833, 769 N.E.2d 846, ¶ 20 (Cook, J.,

dissenting); State v. Swiger (1998), 125 Ohio App.3d 456, 462, 708 N.E.2d

1033. “‘The third category of jurisdiction [i.e., jurisdiction over the

particular case] encompasses the trial court’s authority to determine a

specific case within that class of cases that is within its subject matter

jurisdiction. It is only when the trial court lacks subject matter jurisdiction

that its judgment is void; lack of jurisdiction over the particular case merely

renders the judgment voidable.’” Parker at ¶ 22 (Cook, J., dissenting),

quoting Swiger, 125 Ohio App.3d at 462, 708 N.E.2d 1033.

Pratts v. Hurley, 102 Ohio St.3d 81, 2004-Ohio-1980, 806 N.E.2d 992, ¶ 12.

{¶ 14} This court has previously analyzed the authority of and interplay between

the Ohio probate, domestic relations, and juvenile courts to determine custody issues

observing:

With three distinct courts having the potential authority to determine

the custody of a minor also comes the potential for conflict if more than one

court attempts to exercise jurisdiction over the custody and care of the same

7. minor. Faced with conflicts between a probate court and a domestic or

juvenile court’s exercise of jurisdiction on this issue, Ohio courts have held

that the first court to properly exercise jurisdiction over the custody of a

minor retains exclusive jurisdiction. See, e.g., Addams v. State (1922), 104

Ohio St. 475, 135 N.E. 667; In re Pushcar, 110 Ohio St.3d 332, 853 N.E.2d

647, 2006-Ohio-4572, citing In re Asente (2000), 90 Ohio St.3d 91, 734

N.E.2d 1224; In the Matter of the Guardianship of Pierce, 4th Dist. No

03CA2712, 2003-Ohio-3997.

Addressing a dispute concerning jurisdiction between a court of

common pleas and a probate court, the Ohio Supreme Court in Addams

held that where a decree of divorce containing an order regarding the

custody, care and control of minor children of the divorce remains in force,

a probate court cannot legally interfere with the custody either by habeas

corpus or letters of guardianship. Addams at 479, 135 N.E. 667.

In re Guardianship of N.P., 6th Dist. Fulton No. F-10-030, 2011-Ohio-3846, ¶ 13-14.

See In re Guardianship of Dick, 12th Dist. Warren No. CA98-154, 1999 WL 1037509, *2

(Nov. 15, 1999), citing Loetz v. Loetz, 63 Ohio St.2d 1, 3-4, 406 N.E.2d 1093, Hoffman v.

Hoffman, 15 Ohio St. 427 (1864).

{¶ 15} Based on the cases above, we conclude the Sandusky County Probate Court

did not have jurisdiction to issue letters of guardianship to appellees. However, our

analysis does not end here. As a general matter, a judgment made by a court in its

8. erroneous exercise of jurisdiction over a particular case cannot be collaterally attacked as

it is voidable, not void. Pratts at ¶ 32; see In re Guardianship of Dick at *3. In Dick, a

case analogous to the facts presented herein, the parents of the minor wards were

divorced in 1993 and a shared parenting agreement was ordered. In 1994, the paternal

grandparents filed an application to be appointed guardians in probate court. Id. at *1.

The application for a non-limited, indefinite guardianship stated that the guardianship

was necessary because the children had been in their custody for nearly one year. Id.

{¶ 16} In 1997, appellant-mother filed an application to terminate the

guardianship. Prior the hearing, the parties stipulated that the probate court had

jurisdiction over the matter. Id. The application was ultimately dismissed and mother

appealed. Id.

{¶ 17} On appeal, mother raised the issue of jurisdiction arguing that the domestic

relations court had continuing jurisdiction of custody matters pertaining to the minor

children; thus, the probate court did not have jurisdiction to award letters of guardianship.

Id. The court rejected the argument noting that during the probate proceedings, appellant

failed to file any of the divorce documents with the probate court and submitted an

affidavit that she had no knowledge of any custody proceedings concerning the children

in any other jurisdiction. Id. at *2. The court then found that because appellant had

failed to contest jurisdiction and the three-year duration of the guardianship at issue, she

waived the jurisdiction argument. Id. at *3.

9. {¶ 18} Reviewing the arguments of the parties and the relevant case law, we must

conclude that the trial court did not have jurisdiction over the initial guardianship

proceedings. However, the judgment at issue was voidable, as opposed to void, and

because appellant failed to contest the court’s jurisdiction, she in fact consented to the

guardianship, we must conclude that she waived the argument and submitted to the

jurisdiction of the court.

{¶ 19} As to appellant’s motion to supplement the record, during the hearing

below appellant proffered the same exhibits not to contest jurisdiction but to demonstrate

that C.M.’s attorney during the divorce proceedings was the same attorney representing

appellees in the guardianship application process. Appellant argued that this evidenced

the consensual nature of the guardianship and further bolstered the fact that the

guardianship was meant to be temporary. Upon review and at this stage in the

proceedings, we deny appellant’s motion. Upon remand the admission of the Seneca

County divorce documents can be revisited.

{¶ 20} We now turn to the merits of appellant’s appeal.

B. Admission of Evidence

{¶ 21} Appellant’s second assignment of error will be addressed first as it is

dispositive. Appellant argues that during the September 30, 2020 hearing on appellant’s

application to terminate the guardianship, the court erred by refusing to allow her to

present certain evidence relevant to whether there was good cause to terminate the

guardianship. Specifically, the court excluded evidence surrounding the origin and

10. nature of the guardianship. According to appellant, this error was exacerbated by the fact

that no recording or transcript of the 2013 hearing exists. Appellees counter that the

presentation of such evidence was barred by res judicata as the issue of whether the

guardianship was temporary or permanent was decided during the 2014 proceeding

relative to appellant’s first application to terminate.

{¶ 22} As set forth above, when the court denied appellees’ motion to dismiss the

application it found that res judicata did not “strictly” apply to bar the action. The court

did, however, limit the evidence of “good cause” to “evidence from December 22, 2015

to the present” concluding that any prior evidence was barred.

{¶ 23} Thereafter, at multiple points during the September 30, 2020 hearing,

appellant attempted to introduce evidence relating to the nature and purpose of the

guardianship as understood by the parties at its 2013 inception. The court consistently

sustained objections to the testimony. The purpose of the proffered testimony was to

juxtapose the origins of the guardianship with its current status. For example, appellant

proffered:

[C.M.] would testify, that she already has, that she was told that it

was temporary. That she was told and directed by the [appellees]. And that

she was assured of certain things relative to the guardianship and its

duration, its indefinite duration as well as the fact that it was set up for

certain very specific purposes, which, again, are reflected in the documents

themselves in the Court file in order to provide certain educational and

11. medical advantages to [E.M.] that her parents at the time were not able to

provide her with. And that would be her testimony that cannot – we cannot

illicit due to the objection.

{¶ 24} The magistrate’s December 22, 2015, decision denying appellant’s first

motion to terminate the guardianship found that “the ward’s health has not significantly

changed making a guardianship no longer necessary.” The court stated that appellant

consented to the indefinite guardianship and, as such, she “contractually relinquished

[her] right to custody.” The court then stated that even if appellant had not relinquished

custody, she failed to demonstrate “good cause” to terminate appellees as guardians.

{¶ 25} Whether the purpose of the guardianship at its inception in 2013 was the

ward’s health concerns or the provision of monetary aid for such concerns including

insurance for medical care and therapies is relevant to the current proceedings. Such

information was clearly important to aid the court determining whether the purpose of the

guardianship had been fulfilled and no longer necessary.

{¶ 26} In limiting appellant’s presentation of evidence at the hearing, the court’s

conclusion that any evidence as to the purpose of the guardianship was barred by the

court’s 2015 decision is erroneous. It is well-settled that absent a permanent

relinquishment of custody, a parent has a paramount right to the custody of their child.

See In re Guardianship of Smith, 12th Dist. Preble No. CA2002-12-012, 2003-Ohio-

4247, ¶ 9. Thus, in cases involving the guardianship of a minor child, in determining

whether good cause exists to terminate the guardianship, the focus cannot be limited to

12. the unfitness of the guardian; rather, the court, in determining what is in the best interest

of the child, must also examine the fitness of the natural parent who is still entitled to

preferential treatment. In re Guardianship of Godsey, 2d Dist. Clark No. 2002-CA-69,

2003-Ohio-2692, ¶ 11-12.

{¶ 27} Upon review of the record in the proceedings below, we find that the trial

court failed to give preferential treatment to appellant as E.M.’s natural parent. This is

evidenced in its refusal to allow evidence surrounding the inception of the guardianship.

Under the present facts we stress that the trial court needs to determine whether good

cause exists to terminate the guardianship by examining all the relevant evidence.

{¶ 28} Because we find that the court improperly limited evidence during the

hearing, we must reverse the judgment and remand the matter for a new hearing.

Appellant’s second assignment of error is well-taken. Based on this finding, we find that

appellant’s first and third assignments of error are moot and not well-taken.

III. Conclusion

{¶ 29} The June 23, 2021 judgment of the Sandusky County Probate Court is

reversed and the matter is remanded for a new hearing in accordance with this decision.

Pursuant to App.R. 24, appellees are ordered to pay the costs of this appeal.

Judgment reversed.

13. In re Guardianship of E.M. S-21-011

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

Mark L. Pietrykowski, J. ____________________________ JUDGE Gene A. Zmuda, J. ____________________________ Stephen W. Powell, J. JUDGE CONCUR. ____________________________ JUDGE

Judge Stephen W. Powell, Twelfth District Court of Appeals, sitting by assignment of the Chief Justice of the Supreme Court of Ohio.

This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.

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