[Cite as In re Guardianship of Rose, 2017-Ohio-694.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CHAMPAIGN COUNTY
IN THE MATTER OF THE : GUARDIANSHIP OF TONYA ROSE : : C.A. CASE NO. 2016-CA-10 : : T.C. NO. 2016GI1 : : (Civil Appeal from Common : Pleas Court, Probate Division) : :
...........
OPINION
Rendered on the ___24th ___ day of _____February_____, 2017.
S. TODD BRECOUNT, Atty. Reg. No. 0065276, 115 N. Main Street, Suite A, Urbana, Ohio 43078 Attorney for Plaintiff-Appellee
DAVID J. FIERST, Atty. Reg. No. 0043954, 2533 Far Hills Avenue, Dayton, Ohio 45419 Attorney for Defendant-Appellant
.............
FROELICH, J.
{¶ 1} Tonya Rose appeals from a judgment of the Champaign County Court of
Common Pleas, Domestic Relations-Juvenile-Probate Division, which found Rose to be
incompetent and ordered that a guardian of her person be appointed for her. For the
following reasons, the trial court’s judgment will be affirmed. -2-
I. Facts and Procedural History
{¶ 2} For the past 20 years, Rose has resided in Champaign County at Vancrest
of Urbana, an extended care facility. Rose has difficulty speaking and paraplegia
secondary to a brain injury caused by a chiropractic neck injury. Dr. Joshua Richards, a
licensed physician at Vancrest of Urbana and Rose’s physician for 28 years, reported that
Rose has a post-ischemic brain injury, delusional thought disorder (schizophrenia), and
pseudobulbar affect. In January 2016, Rose was 54 years old.
{¶ 3} On January 19, 2016, Staci Cottrill filed an application, pursuant to R.C.
2111.03, for the appointment of a guardian for Rose (person only). The application was
accompanied by a Statement of Expert Evaluation, completed by Dr. Richards. Dr.
Richards wrote that Rose’s “paranoia [and] delusional thought processes cause her to
refuse to take her antipsychotic medication.” Rose’s parents were identified as her next
of kin, and they both signed a waiver of notice and consent to the appointment of Cottrill
or another suitable person as Rose’s guardian. Cottrill has no familial relationship with
Rose; she is associated with Volunteers for Adult Life Enhancements (“VALE”).
{¶ 4} Pursuant to R.C. 2111.041, a court investigator completed an investigation
and filed a report with the probate court. The report also concluded that a guardianship
of Rose’s person was necessary.
{¶ 5} Rose opposed the appointment of the guardian, and an attorney was
appointed to represent her. In March 2016, Rose requested a second expert evaluation.
The court ordered a second evaluation to be completed by Dr. Richard Darr,1 and he filed
1 Rose had originally requested that a different physician conduct the second evaluation. When that physician would not accept Rose’s insurance for a second evaluation opinion, the parties requested guidance from the court, and the court ordered Dr. Darr to complete -3-
a report with the court on April 20, 2016. Dr. Darr also concluded that a guardianship
should be established.
{¶ 6} The trial court held a hearing on the guardianship application on April 25,
2016. Rose stipulated to the reports provided by the physicians, but she testified on her
own behalf in opposition to the guardianship. At the conclusion of the hearing, the court
found, based on Rose’s testimony and the expert evaluations, that Rose was incompetent
by reason of mental and physical impairments, that Rose was incapable of taking care of
herself, and that a guardianship was necessary. The court appointed Cottrill as the
guardian of Rose’s person. The next day, the court filed a written judgment entry
reflecting its oral ruling.
{¶ 7} Rose asked the trial court to stay the guardianship decision. That motion
was denied. Rose appeals the trial court’s appointment of a guardian.
II. Appointment of Guardian for Rose
{¶ 8} Rose’s sole assignment of error claims that the trial court “did not find by
clear and convincing evidence that Tonya Rose was in need of a guardianship.” Citing
Steele v. Hamilton Cty. Community Mental Health Bd., 90 Ohio St.3d 176, 736 N.E.2d 10
(2000), Rose asserts that “mere presence of psychosis, dementia, mental retardation,
or some other form of mental illness or disability is insufficient in itself to constitute
incompetence.” Id. at 186-187, quoting Appelbaum & Gutheil, Clinical Handbook of
Psychiatry and the Law, at 220. Rose contends that, after 20 years in a nursing home,
there was no evidence as to “why a guardianship is now necessary.”
{¶ 9} R.C. 2111.02(A) authorizes a probate court to appoint, “if necessary,” a
the evaluation. -4-
guardian of the person, the estate, or both, of an incompetent person residing in the
county. An “incompetent” includes “[a]ny person who is so mentally impaired, as a result
of a mental or physical illness or disability, as a result of intellectual disability, or as a
result of chronic substance abuse, that the person is incapable of taking proper care of
the person’s self or property.” R.C. 2111.01(D)(1).
{¶ 10} R.C. 2111.02 sets forth the procedures for the appointment of a guardian.
R.C. 2111.02(C) requires the court to conduct a hearing on the matter of appointment,
during which “the burden of proving incompetency shall be by clear and convincing
evidence.” R.C. 2111.02(C)(3). The Ohio Supreme Court has defined “clear and
convincing evidence” as “the measure or degree of proof that will produce in the mind of
the trier of fact a firm belief or conviction as to the allegations sought to be established.
It is intermediate, being more than a mere preponderance, but not to the extent of such
certainty as required beyond a reasonable doubt as in criminal cases. It does not mean
clear and unequivocal.” In re Estate of Haynes, 25 Ohio St.3d 101, 104, 495 N.E.2d 23
(1986).
{¶ 11} The evidence before the probate court consisted of the expert evaluations,
to which the parties stipulated, and Rose’s testimony. Dr. Richards indicated that Rose
refuses to take her prescribed medication, “as she is paranoid and thinks staff is trying to
control her.” In the “Additional Comments” portion of his expert evaluation, Dr. Richards
wrote that Rose
Has pseudobulbar affect which causes her to cry frequently when
discussing her living situation and interacting with others. Becomes
agitated frequently, throws food in cafeteria, suspicious of other residents. -5-
Thinks others are out to get her (residents and staff) when talking with one
she describes seeing other people in the room who pass through the walls
and windows. Describes being sexually assaulted, in the past has thought
she was impregnated by staff. According to staff, she refuses to wear
clothes at times, will not accept their assistance with hygiene and dressing.
Is very suspicious that staff are trying to hide medication in her food.
Refuses to believe that, at present, she is not on medication.
Dr. Richards’s report recommended that a guardianship be established.
{¶ 12} Dr. Darr’s expert report read similarly. He wrote that Rose’s “paranoid
behavior [was] affecting judgment and personal care.” Dr. Darr noted Rose’s “marked
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[Cite as In re Guardianship of Rose, 2017-Ohio-694.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CHAMPAIGN COUNTY
IN THE MATTER OF THE : GUARDIANSHIP OF TONYA ROSE : : C.A. CASE NO. 2016-CA-10 : : T.C. NO. 2016GI1 : : (Civil Appeal from Common : Pleas Court, Probate Division) : :
...........
OPINION
Rendered on the ___24th ___ day of _____February_____, 2017.
S. TODD BRECOUNT, Atty. Reg. No. 0065276, 115 N. Main Street, Suite A, Urbana, Ohio 43078 Attorney for Plaintiff-Appellee
DAVID J. FIERST, Atty. Reg. No. 0043954, 2533 Far Hills Avenue, Dayton, Ohio 45419 Attorney for Defendant-Appellant
.............
FROELICH, J.
{¶ 1} Tonya Rose appeals from a judgment of the Champaign County Court of
Common Pleas, Domestic Relations-Juvenile-Probate Division, which found Rose to be
incompetent and ordered that a guardian of her person be appointed for her. For the
following reasons, the trial court’s judgment will be affirmed. -2-
I. Facts and Procedural History
{¶ 2} For the past 20 years, Rose has resided in Champaign County at Vancrest
of Urbana, an extended care facility. Rose has difficulty speaking and paraplegia
secondary to a brain injury caused by a chiropractic neck injury. Dr. Joshua Richards, a
licensed physician at Vancrest of Urbana and Rose’s physician for 28 years, reported that
Rose has a post-ischemic brain injury, delusional thought disorder (schizophrenia), and
pseudobulbar affect. In January 2016, Rose was 54 years old.
{¶ 3} On January 19, 2016, Staci Cottrill filed an application, pursuant to R.C.
2111.03, for the appointment of a guardian for Rose (person only). The application was
accompanied by a Statement of Expert Evaluation, completed by Dr. Richards. Dr.
Richards wrote that Rose’s “paranoia [and] delusional thought processes cause her to
refuse to take her antipsychotic medication.” Rose’s parents were identified as her next
of kin, and they both signed a waiver of notice and consent to the appointment of Cottrill
or another suitable person as Rose’s guardian. Cottrill has no familial relationship with
Rose; she is associated with Volunteers for Adult Life Enhancements (“VALE”).
{¶ 4} Pursuant to R.C. 2111.041, a court investigator completed an investigation
and filed a report with the probate court. The report also concluded that a guardianship
of Rose’s person was necessary.
{¶ 5} Rose opposed the appointment of the guardian, and an attorney was
appointed to represent her. In March 2016, Rose requested a second expert evaluation.
The court ordered a second evaluation to be completed by Dr. Richard Darr,1 and he filed
1 Rose had originally requested that a different physician conduct the second evaluation. When that physician would not accept Rose’s insurance for a second evaluation opinion, the parties requested guidance from the court, and the court ordered Dr. Darr to complete -3-
a report with the court on April 20, 2016. Dr. Darr also concluded that a guardianship
should be established.
{¶ 6} The trial court held a hearing on the guardianship application on April 25,
2016. Rose stipulated to the reports provided by the physicians, but she testified on her
own behalf in opposition to the guardianship. At the conclusion of the hearing, the court
found, based on Rose’s testimony and the expert evaluations, that Rose was incompetent
by reason of mental and physical impairments, that Rose was incapable of taking care of
herself, and that a guardianship was necessary. The court appointed Cottrill as the
guardian of Rose’s person. The next day, the court filed a written judgment entry
reflecting its oral ruling.
{¶ 7} Rose asked the trial court to stay the guardianship decision. That motion
was denied. Rose appeals the trial court’s appointment of a guardian.
II. Appointment of Guardian for Rose
{¶ 8} Rose’s sole assignment of error claims that the trial court “did not find by
clear and convincing evidence that Tonya Rose was in need of a guardianship.” Citing
Steele v. Hamilton Cty. Community Mental Health Bd., 90 Ohio St.3d 176, 736 N.E.2d 10
(2000), Rose asserts that “mere presence of psychosis, dementia, mental retardation,
or some other form of mental illness or disability is insufficient in itself to constitute
incompetence.” Id. at 186-187, quoting Appelbaum & Gutheil, Clinical Handbook of
Psychiatry and the Law, at 220. Rose contends that, after 20 years in a nursing home,
there was no evidence as to “why a guardianship is now necessary.”
{¶ 9} R.C. 2111.02(A) authorizes a probate court to appoint, “if necessary,” a
the evaluation. -4-
guardian of the person, the estate, or both, of an incompetent person residing in the
county. An “incompetent” includes “[a]ny person who is so mentally impaired, as a result
of a mental or physical illness or disability, as a result of intellectual disability, or as a
result of chronic substance abuse, that the person is incapable of taking proper care of
the person’s self or property.” R.C. 2111.01(D)(1).
{¶ 10} R.C. 2111.02 sets forth the procedures for the appointment of a guardian.
R.C. 2111.02(C) requires the court to conduct a hearing on the matter of appointment,
during which “the burden of proving incompetency shall be by clear and convincing
evidence.” R.C. 2111.02(C)(3). The Ohio Supreme Court has defined “clear and
convincing evidence” as “the measure or degree of proof that will produce in the mind of
the trier of fact a firm belief or conviction as to the allegations sought to be established.
It is intermediate, being more than a mere preponderance, but not to the extent of such
certainty as required beyond a reasonable doubt as in criminal cases. It does not mean
clear and unequivocal.” In re Estate of Haynes, 25 Ohio St.3d 101, 104, 495 N.E.2d 23
(1986).
{¶ 11} The evidence before the probate court consisted of the expert evaluations,
to which the parties stipulated, and Rose’s testimony. Dr. Richards indicated that Rose
refuses to take her prescribed medication, “as she is paranoid and thinks staff is trying to
control her.” In the “Additional Comments” portion of his expert evaluation, Dr. Richards
wrote that Rose
Has pseudobulbar affect which causes her to cry frequently when
discussing her living situation and interacting with others. Becomes
agitated frequently, throws food in cafeteria, suspicious of other residents. -5-
Thinks others are out to get her (residents and staff) when talking with one
she describes seeing other people in the room who pass through the walls
and windows. Describes being sexually assaulted, in the past has thought
she was impregnated by staff. According to staff, she refuses to wear
clothes at times, will not accept their assistance with hygiene and dressing.
Is very suspicious that staff are trying to hide medication in her food.
Refuses to believe that, at present, she is not on medication.
Dr. Richards’s report recommended that a guardianship be established.
{¶ 12} Dr. Darr’s expert report read similarly. He wrote that Rose’s “paranoid
behavior [was] affecting judgment and personal care.” Dr. Darr noted Rose’s “marked
physical disability” and that her paranoid psychosis resulted in “marked agitated behavior
resulting in marked difficulty in providing personal care and providing necessary
emotional support -- long [history] of paranoid delusions – reported to be exacerbated by
refusal to take psychotropic medications. Patient appears to [have] above average
intelligence but paranoid [sic] prevents appropriate judgment.”
{¶ 13} Rose testified on her own behalf, with the assistance of Katheryn Ryan, who
was familiar with Rose and could help interpret her speech. For purposes of clarity, the
court repeated Rose’s direct testimony, saying:
For the record let me try to repeat that answer. They don’t believe in that
and Miss Rose pointed to the Bible. She also stated they don’t believe in
witches, demons or wizards and that they don’t believe there’s a lot of
sorcery going on. In Jesus’s name. Amen. And I would also note for the
record that Miss Rose is nodding her head up and down in the affirmative -6-
at what the Court just repeated.”
On cross-examination, Rose stated that she did not want a guardian, and “I don’t see
where I need one.” Rose stated that she did not know Cottrill well.
{¶ 14} The court asked Rose about her medication. Rose stated that the staff did
not bring her medication; instead, “they give me shots without my permission.” When
asked if she would take medication if it were brought to her, Rose responded, “Probably
not. * * * Unless the neurosurgeon says to.” (The neurosurgeon had treated Rose’s initial
injuries in 1993 and is no longer her treating physician.) Rose stated that she did not
want to take her medicine because “It’s the law” and “free will.” Rose’s attorney later
stated, “I believe that my client is basically calling out her personal autonomy and
suggesting that the medical world has offered her no solution to her problems and that
she places her stock in her simple faith in God.”
{¶ 15} We agree with Rose that a guardian cannot be appointed simply because
the putative ward has a physical or mental illness or disability. See, e.g., Steele, 90 Ohio
St.3d at 187 (“[I]t is clear that mental illness and incompetence are not one and the
same.”); In re Guardianship of Worth, 2d Dist. Darke No. 1430, 1997 WL 335559, * 3
(June 20, 1997) (“We agree with Worth that a guardian cannot be appointed simply
because the putative ward suffers from physical ailments.”). As stated above, to be
incompetent, Rose must be “so mentally impaired, as a result of a mental or physical
illness or disability,” that she is “incapable of taking proper care” of herself or her
property. See R.C. 2111.01(D)(1).
{¶ 16} Upon review of the record, the trial court had clear and convincing evidence
from which to find that Rose was incompetent. Dr. Richards diagnosed Rose with -7-
delusional thought disorder (schizophrenia); Dr. Darr stated that Rose had paranoid
psychosis. There was evidence that, due to her paranoia and delusions, Rose had
stopped taking her psychotropic medication. Dr. Darr indicated that Rose’s paranoid
psychosis was affecting her judgment and personal care. Dr. Richards also indicated
that Rose was frequently agitated, was paranoid and suspicious of staff, had delusions
about being impregnated, had visual hallucinations about people traveling through walls,
threw food, refused to wear clothes at times, and was unwilling to accept assistance from
staff members with her hygiene and dressing. The trial court thus had clear and
convincing evidence that, not only had Rose been diagnosed with a mental illness and
physical disabilities, but that her mental illness, in particular, resulted in Rose’s being so
mentally impaired that she was incapable of taking proper care of herself.
{¶ 17} Rose’s assignment of error is overruled.
III. Conclusion
{¶ 18} The trial court’s judgment will be affirmed.
HALL, P.J. and DONOVAN, J., concur.
Copies mailed to:
S. Todd Brecount David J. Fierst Hon. Lori L. Reisinger