[Cite as In re I.B., 2015-Ohio-4181.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION Nos. 102373 and 102853
IN RE: I.B. A Minor Child [Appeal By M.L., Grandmother]
JUDGMENT: AFFIRMED
Civil Appeal from the Cuyahoga County Court of Common Pleas Probate Division and Juvenile Court Division Case Nos. 2014 GRD 199316 and AD-14912510
BEFORE: E.T. Gallagher, J., Celebrezze, A.J., and Laster Mays, J.
RELEASED AND JOURNALIZED: October 8, 2015 ATTORNEY FOR APPELLANT
L. Bryan Carr 1392 SOM Center Road Mayfield Heights, Ohio 44124
ATTORNEY FOR APPELLEE
Van M. Lowry Van M. Lowry & Associates Hanna Building, Suite 248 1422 Euclid Avenue Cleveland, Ohio 44115
For C.C.D.C.F.S.
Timothy J. McGinty Cuyahoga County Prosecutor
BY: Yvonne C. Billingsley Assistant Prosecuting Attorney Cuyahoga County Division of Children and Family Services 3955 Euclid Avenue, Room 305E Cleveland, Ohio 44115
Guardian Ad Litem
Amy L. Nash 1180 Winston Road South Euclid, Ohio 44121
Also listed
Michael Fields 2994 East 128th Street Cleveland, Ohio 44120 EILEEN T. GALLAGHER, J.:
{¶1} In this consolidated appeal, appellant, M.L. (“appellant”), appeals a probate
court order that awarded appellee, M.F. (“appellee”), guardianship of I.B., a minor child.
She also appeals an order of the juvenile court that dismissed her complaint for legal
custody of I.B. Between the two appeals, appellant raises the following five assignments
of error:1
1. The juvenile court erred in dismissing appellant’s complaint and terminating the temporary custody order, as the juvenile court had (and continues to have) exclusive jurisdiction over the minor child.
2. The trial court erred in denying appellant’s motion to certify jurisdiction; the trial court lacked jurisdiction to rule and establish a guardian for the child; the trial court’s guardianship order is void.
3. The trial court erred in awarding guardianship to [M.F.] and utilized an incorrect test to analyze guardianship.
4. The trial court erred (and violated Civ.R. 53) in issuing a defective judgment entry.
5. Evidentiary rulings prejudiced appellant.
{¶2} We find no merit to the appeal and affirm the trial court’s judgment.
I. Facts and Procedural History
{¶3} I.B. lost her mother, R.B. (“Mother”), to cancer in June 2014. I.B., who was
Appellant actually assigns six errors between the two appeals. However, the sole 1
assignment of error in the juvenile court appeal mirrors the second assignment of error in the probate court appeal. We therefore discuss these assigned errors together and count them as one assignment of error. The other assigned errors are discussed out of order for the sake of methodology. 12 years old at the time, was left with no parent because her father’s whereabouts were
unknown. At the time of Mother’s death, Mother and I.B. had been living with appellee
for approximately three months. Appellee is Mother’s ex-boyfriend and the father of
Mother’s other two children.
{¶4} Mother nominated appellee to serve as I.B.’s guardian in her last will and
testament. Appellee, who was willing and able to serve as I.B.’s guardian, filed an
application for guardianship in the Cuyahoga County Probate Court following Mother’s
death. Appellant, I.B.’s maternal grandmother, also filed an application to be appointed
I.B.’s guardian. The court employed Kathleen Russo (“Russo”), a social worker, to
investigate the applicants, complete home studies, and make a recommendation.
{¶5} The court held a hearing on the competing applications for guardianship.
Russo testified that she interviewed both applicants, visited their homes, and investigated
their backgrounds and economic circumstances. Appellee had three criminal convictions
that he did not disclose on his guardianship application. Russo discovered from the
common pleas court docket that appellee pleaded guilty to felonious assault in 2001 and
possession of drugs in 2004. Russo also discovered that appellee pleaded guilty to one
count of misdemeanor domestic violence in 2012. Russo did not think appellee’s prior
convictions should disqualify him from serving as I.B.’s guardian because he is a loving
father, and the convictions resulted from sporadic incidents spread out over almost 12
years. (Tr. 22-23.)
{¶6} Appellee is the father of I.B.’s two half siblings. Russo testified that I.B. is bonded with her half siblings, and that Mother wanted I.B. to remain with her siblings
after her death. I.B. calls appellee “Dad,” and they appear to have a father-daughter
relationship. A therapist who was providing intense in-home counseling for appellee’s
son indicated to Russo that appellee is an attentive father who is very engaged with his
children. (Tr. 42.) The therapist also indicated that if appellee is appointed I.B.’s
guardian, she will provide counseling services to I.B. in addition to her brother.
Appellee and the children were also receiving grief counseling through The Hospice of
the Western Reserve.
{¶7} Russo reported that appellee’s home appeared safe and appropriate. The
home is equipped with smoke detectors and fire extinguishers. The bedroom I.B. shares
with her half-sister is furnished with two beds. Appellee told Russo, and testified at trial,
that he does not keep guns in the home because he worries about the children’s curiosity
of them.
{¶8} Appellee testified that he met Mother when she was three months pregnant
with I.B. and has known I.B. her whole life. I.B. continued to live with appellee after her
Mother’s death and was still living with him at the time of the hearing and was enrolled in
a school in appellee’s neighborhood. Appellee testified that he walks I.B. and the other
children to school in the morning, and his girlfriend, M.H., walks them home in the
afternoon because appellee is usually working at that time of day.
{¶9} Appellee testified that he can read and write “a little bit,” but never graduated
from high school and does not have a GED. (Tr. 125.) However, he earns a living working on houses that are being rehabilitated. Appellee also receives income from two
rental houses he owns in Cleveland. M.H. lives in the upstairs apartment of the duplex
where appellee lives with his children. Appellee pays a mortgage on the house and,
according to appellee, M.H. pays rent and watches the children when he is not home.
{¶10} Appellee testified that he views I.B. as his own daughter. Mother gave
appellee the original copy of her will because she wanted appellee to be I.B.’s guardian.
(Tr. 105.) Appellee acknowledged that he cannot offer I.B. the same kinds of material
things that appellant can provide, but he can meet her needs and be a father. (Tr. 104.)
He explained:
I can give her what she needs, you know. I can’t take her to Disney World like her grandparents, but I can take her to the park and give her ice cream. I mean, I can be father as I’ve been doing for the last 12 years. I mean, I’ve been there for the last 12 years. I mean, I can — that’s all I can do is just be a father to her. I can give her— make sure she has clean clothes, new shoes on her feet, you know, go to school.
{¶11} Appellant testified that she lives in Cleveland Heights, where she has lived
with her husband (“Husband”)2 for over 20 years. Husband is an electrician who has
worked for ArcelorMittal for approximately 30 years. Husband has medical insurance
through his employer and, if appellant is appointed I.B.’s guardian, I.B. will be added to
his medical insurance plan. Appellant and Husband live a comfortable, middle-class
lifestyle.
{¶12} Mother and I.B. lived with appellant and Husband for over a year following
Appellant’s husband is I.B.’s step-grandfather. 2 I.B.’s birth. Mother moved out of appellant’s home to live with her grandmother
because she and appellant disagreed on matters that were important to Mother. I.B.
continued to have a relationship with appellant after moving out and spent weekends with
her when Mother was having her other babies. (Tr. 253.) Mother and I.B. moved back
home with appellant in June 2013, where they remained until March 2014, when they
again moved out because of conflict. This time, Mother moved in with appellee.
Appellant testified that I.B. has her own bedroom in appellant’s house, and that her
half-siblings also have a bedroom for when they come to visit.
{¶13} According to appellant, appellee is preventing her from maintaining a
relationship with I.B. Appellant testified that, at the time of the hearing on September
26, 2014, she had not seen I.B. since June 2014. She testified that if she were I.B.’s
guardian she would foster the relationships between I.B. and her half-brother and
half-sister because they are also appellant’s grandchildren. She explained: “Those are
my grandchildren, I want to see my grandchildren.” (Tr. 256.) Appellee testified that he
encourages I.B.’s relationship with appellant and pays her telephone bill so she can
communicate with all of her extended family.
{¶14} Appellant’s son testified that appellant had a close relationship with I.B.
According to appellant’s son, appellant “always pushed her to do good in school.” (Tr.
234.) He explained:
She kept her active and she would teach her like she did me when I was little. She taught her to have to clean, you still have to do chores as a child, you still have to do your — anything that an adult says you should listen to, she was teaching her manners, but they always talked, they had fun, they’d sit and watch movies.
{¶15} Both appellant and Husband testified they were concerned about I.B. having
a relationship with appellant’s other son, R.B., because he is a convicted Tier III sex
offender. Appellant testified that she no longer has a relationship with R.B. because she
does not approve of his lifestyle. (Tr. 258.)
{¶16} I.B. and one of her aunts sing in a choir of which R.B. is the choir director.
Appellee testified he had heard that R.B. was a sex offender but did not know whether it
was true and knew little about the alleged circumstances of his conviction. Appellee
further stated that I.B. did not spend time with R.B., nor does she speak to him on the
phone. However, he admitted that R.B. has picked I.B. up at home to take her to choir
practice when her aunt was unavailable to take her.
{¶17} Appellant’s mother, I.B.’s great-grandmother, testified in support of
appellee’s application rather than that of her own daughter. She believed appellee would
provide a good home for I.B., that he has been a good father, and that separating I.B. from
her siblings would be “devastating.” I.B.’s maternal great aunt, S.B., also testified in
favor of appellee. When asked her opinion of appellee, she stated:
[Appellee] is a quiet person, he doesn’t talk unless he has something to say. But I found him to be very good with the children and he does a good job with them. When I go over there, you know, they’re playing, they’re happy, and he’s the only father that [I.B.] has ever known.
(Tr. 196-197.)
{¶18} Russo testified that both appellant and appellee were suitable guardians.
Despite appellee’s criminal history, Russo recommended that appellee be appointed I.B.’s guardian because he is “capable and sincere in his efforts to provide a stable and
nurturing home.” Russo testified she was also concerned appellant would separate I.B.
from her siblings if she were appointed guardian and recognized that Mother wanted
appellee to be I.B.’s guardian because she wanted I.B. to live with her siblings. I.B. did
not testify at the trial. However, according to Russo, I.B. expressed a desire to live with
appellee and that she considers appellee’s home to be her home.
{¶19} Following the hearing, appellant filed a complaint for legal custody in the
Juvenile Court Division of the Cuyahoga County Common Pleas Court. The complaint
alleged that I.B. was a neglected, dependent child, and sought legal custody of I.B. Two
days later, appellant filed a motion to certify jurisdiction to the juvenile court in the
probate court. Meanwhile, the juvenile court issued an order granting temporary custody
of I.B. to appellant. However, the juvenile court later dismissed the complaint and
terminated the temporary custody order for lack of jurisdiction, and the probate court
denied appellant’s motion to certify jurisdiction to the juvenile court.
{¶20} In November 2014, a probate court magistrate issued a decision awarding guardianship of I.B. to appellee. The magistrate’s decision states, in relevant part:
While not related by blood, [appellee] is the only father [I.B.] has ever known. He presented as a very loving and involved parent with [I.B.]’s best interests in mind. [Appellee] is clearly not a perfect person, but has done his best with [I.B.] and desires to keep her with her half-siblings. After suffering the tragedy of losing her mother, it would be devastating to tear her away from the place she considers her home and from her half-siblings and to require her to start over again in a new school. [Appellee] has made every effort to keep [I.B.] involved with her maternal family. Many of [appellant]’s own family members testified in support of [appellee]’s Application. Based on the nomination in the Last Will and Testament of [Mother], considering the Court Investigator’s report and recommendation as required by law, including the reported preference of the minor child and the testimony presented in this case, it is the recommendation of this Magistrate that the Application for Appointment of Guardian of the Person of [I.B.] filed by [appellee] be granted without bond. Ohio law requires that the nomination of the decedent should be followed if it is in the child’s best interests.
{¶21} The trial court determined that “immediate relief was justified” and issued
its decision simultaneously with the magistrate’s decision. Appellant filed a notice of
appeal before the trial court could rule on objections to the magistrate’s decision.
Following a limited remand to rule on the objections, appellant’s two consolidated
appeals are now ripe for review.
II. Law and Analysis
A. Jurisdiction
{¶22} In the sole assignment of error raised in appellant’s appeal from the juvenile
court, appellant argues the juvenile court erred in dismissing her complaint and
terminating the temporary custody order. In the second assignment of error presented in
her appeal from the probate court, appellant argues the probate court erred in denying her
motion to certify jurisdiction to the juvenile court. In both assignments of error, she
contends the juvenile court had exclusive jurisdiction pursuant to R.C. 2151.23(A) to
determine the custody of I.B. because she alleged I.B. to be a neglected and dependant
child.
{¶23} R.C. 2151.23(A)(1) provides that the juvenile court has “exclusive original
jurisdiction” over a variety of actions including complaints seeking custody of “any child who, on or about the date specified in the complaint, * * * is alleged * * * to be a[n] * * *
abused, neglected, or dependent child.” Appellant’s complaint for legal custody alleged
that I.B. was a dependent child.
{¶24} The probate court, however, awarded the guardianship of I.B. to appellee
pursuant to R.C. 2101.24(A)(1)(e), which provides that the probate court has exclusive
jurisdiction to appoint and remove guardians. The parties’ respective guardianship
applications charged the probate court with the responsibility of determining who should
serve as I.B.’s guardian. However, a guardian of a minor child has legal custody of the
child. R.C. 2111.07; see In re L.H., 8th Dist. Cuyahoga No. 97977, 2012-Ohio-4062.
Legal custody of a child and guardianship of a child are exactly the same in all respects
but name, and the two statutes provide each court with “exclusive jurisdiction.” The two
provisions seemingly create concurrent and potentially conflicting jurisdiction in the two
courts.
{¶25} However, R.C. 2151.23(A)(2) provides that the juvenile court has exclusive
jurisdiction “to determine the custody of any child not a ward of another court of this
state.” (Emphasis added.) This provision is apparently aimed at preventing forum
shopping and conflicting judgments by precluding two courts of competent jurisdiction
from simultaneously deciding identical issues. Indeed, the Ohio Supreme Court reached
this conclusion in In re Poling, 64 Ohio St.3d 211, 594 N.E.2d 589 (1992).
{¶26} In Poling, the Ohio Supreme Court was asked to decide whether a juvenile
court has jurisdiction to determine the custody of dependent children where the domestic relations court had previously determined and granted custody of the children to their
mother. The Poling court concluded that, although a domestic relations court retains
continuing jurisdiction to modify its custody decision, the juvenile court also has
jurisdiction to make custody awards related to children who are properly subject to its
jurisdiction. Id. at 215. However, the court explained:
If children whose custody is determined under a divorce decree, pursuant to R.C. 3109.04 are construed to be “wards” of that court, then a juvenile court would not have jurisdiction to determine their custody under R.C. 2151.23(A)(2).
The Poling court concluded that the children in that case were not “wards” of the
domestic relations court and explained:
When a court in a divorce case grants custody of a child, the court is not traditionally placing itself in the position of guardian of that child. Rather, in a broad sense the court is making a judicial determination as to whom the child’s custodian is to be, whether it be a parent or otherwise. Nor does the court consider the child a “ward” of that court, even though the court retains jurisdiction to modify custody and support. Hence, we conclude that the phrase any child not a “ward of another court” in R.C. 2151.23(A)(2) cannot be construed to prohibit a juvenile court from changing custody of children subject to a divorce decree entered pursuant to former R.C. 3109.04.
{¶27} In contrast to the domestic relations court, R.C. 2111.50(A)(1) expressly
provides that the probate court “is the superior guardian of wards who are subject to its
jurisdiction.” R.C. 2111.01(B) defines “ward” as “any person for whom a guardian is
acting or for whom the probate court is acting pursuant to section 2111.50 of the Revised
Code.” Appellee’s guardianship application invoked the probate court’s jurisdiction and made I.B. a ward of the probate court. See In re Clendenning, 145 Ohio St. 82, 92, 60
N.E.2d 676 (1945).
{¶28} Thus, pursuant to R.C. 2151.23(A)(2), the juvenile court could not
determine I.B.’s custody because she was a ward of the probate court when appellant filed
her complaint for legal custody. See In re Miller, 33 Ohio App.3d 224, 515 N.E.2d 635
(8th Dist.1986) (holding that once the probate court appoints a guardian for a minor, the
juvenile court is without jurisdiction to grant custody of the ward to another person, until
the guardianship has been terminated).
{¶29} Moreover, even if the juvenile court maintained concurrent jurisdiction to determine the custody issue in this case, the Ohio Supreme Court has held that
[a]s between courts of concurrent jurisdiction and coextensive jurisdiction, the one whose power is first invoked by the institution of proceedings and the service of the required process acquires the right to adjudicate upon the whole issue and to settle the rights of the parties to the exclusion of all other tribunals.
State ex rel. Balson v. Harnishfeger, 55 Ohio St.2d 38, 39, 377 N.E.2d 750 (1978).
{¶30} Appellee’s guardianship application was pending before appellant filed her
complaint for legal custody in the juvenile court. Indeed, appellant did not file the
complaint until two days after the probate court trial. Appellant’s complaint seeking
legal custody in the juvenile court is the kind of forum shopping barred by virtue of R.C.
2151.23(A)(2). The juvenile court properly dismissed the case for lack of jurisdiction
and the probate court’s order appointing appellee as I.B.’s guardian is a valid judgment.
{¶31} The sole assignment of error in appellant’s appeal from the juvenile court’s
judgment, and the second assignment of error in her appeal from the probate court’s judgment are overruled.
B. Court’s Journal Entry
{¶32} In the third assignment of error in appellant’s probate appeal, she argues the
probate court’s final order granting the guardianship is defective and violated Civ.R. 53
because it did not “adopt, reject, or modify” the magistrate’s decision.
{¶33} The court’s final order was issued simultaneously with the magistrate’s
decision. Instead of issuing a separately filed journal entry, the court’s journal entry
granting appellee’s guardianship application and denying appellant’s application appears
at the end of the magistrate’s decision. As such, appellant argues that the trial court’s
final order, and appellant’s objections thereto, are “of no effect and, indeed, futile.”
{¶34} However, in a space following the magistrate’s decision but before the
court’s final order, the following language appears in bold:
Counsel and parties will take notice that under the provisions of Rules 73 and 53(D)(4)(e)(ii) of the Ohio Rules of Civil Procedure, immediate relief is justified and Letters of Guardianship will be issued forthwith. Objections to this decision may be filed with[in] 14 days commencing from the date on which this decision is filed, but the relief ordered herein is subject to automatic stay caused by the filing of timely objections.
{¶35} Civ.R. 53(D)(4)(e)(i) authorizes the court to issue an interim order before
the parties have had time to file objections to a magistrate’s report, and states:
The court may enter a judgment either during the fourteen days permitted by Civ.R. 53(D)(3)(b)(i) for the filing of objections to a magistrate’s decision or after the fourteen days have expired. If the court enters a judgment during the fourteen days permitted by Civ.R. 53(D)(3)(b)(i) for the filing of objections, the timely filing of objections to the magistrate’s decision shall operate as an automatic stay of execution of the judgment until the court disposes of those objections and vacates, modifies, or adheres to the judgment previously entered.
{¶36} Nothing in the magistrate’s decision or the court’s interim order precluded
appellant from filing objections to the magistrate’s decision. Indeed, Civ.R.
53(D)(4)(e)(i) contemplates the filing of objections after the court’s judgment where the
court files its judgment before the time for filing objections has expired. Furthermore,
we remanded the case to the probate court to rule on appellant’s objections before
proceeding with the appeals, and the probate court overruled appellant’s objections and
adopted the magistrate’s order. Therefore, the probate court’s judgment granting
guardianship of I.B. to appellee is a valid, final order.
{¶37} Appellant also argues, within this assigned error, that the trial court erred in
appointing appellee as guardian pursuant to R.C. 2111.02(B). However,
R.C. 2111.02(B) governs the appointment of “a limited guardian with specific limited
powers.” The probate court awarded the guardianship of I.B. to appellee pursuant to
R.C. 2111.02(A), which does not limit the guardian’s powers. The propriety of the
court’s judgment appointing appellee to serve as I.B.’s guardian pursuant to R.C.
2111.02(A) and other applicable code provisions is the subject of appellant’s first
assignment of error in her appeal from probate court. We will therefore discuss
appellant’s argument regarding the propriety of appellee’s appointment as guardian with
that assigned error. {¶38} Accordingly, the third assignment of error is overruled.
C. Evidentiary Rulings
{¶39} In the fourth assignment of error, appellant argues she was unfairly
prejudiced by improper evidentiary rulings. She contends the probate court erroneously
allowed (1) undisclosed witnesses to testify at trial, and (2) the admission of hearsay and
character evidence.
{¶40} The admission or exclusion of evidence is within the sound discretion of the
trial court, and we will not disturb the trial court’s judgment on evidentiary matters absent
an abuse of that discretion. O’Brien v. Angley, 63 Ohio St.2d 159, 163, 407 N.E.2d 490
(1980). The term “abuse of discretion” implies that the court’s attitude is unreasonable,
arbitrary or unconscionable. Jakubs v. Borally, 8th Dist. Cuyahoga No. 101756,
2015-Ohio-2696, ¶ 12. “The abuse of discretion standard is a highly deferential
standard, and this court is not free to merely substitute its judgment for that of the trial
court.” Kontra v. Kontra, 8th Dist. Cuyahoga No. 98126, 2012-Ohio-4293, ¶ 13; Rex v.
Conner, 8th Dist. Cuyahoga Nos. 81210 and 81810, 2003-Ohio-4561, ¶ 19.
1. Undisclosed Witnesses
{¶41} Appellant argues she was prejudiced by the testimony of undisclosed
witnesses who were permitted to testify at trial over her objection.
{¶42} Civ.R. 26 governs discovery, and its purpose is to prevent trial by ambush.
Anderson v. Nunnari, 8th Dist. Cuyahoga No. 77241, 2000 Ohio App. LEXIS 5337, * 8
(Nov. 16, 2000). To that end, Civ.R. 37 permits a court to exclude testimony of an undisclosed witness as a discovery sanction. Huffman v. Hair Surgeon, Inc., 19 Ohio
St.3d 83, 482 N.E.2d 1248 (1985). However, the exclusion of reliable and probative
evidence is a severe sanction. Thus, the exclusion of witnesses as a sanction is permitted
only when the nondisclosure of witnesses causes unfair surprise that results in prejudice
to the opposing party. Id.
{¶43} In this case, the record is devoid of any evidence that appellee willfully
concealed the identities of his witnesses. The undisclosed witnesses consist of
appellant’s own children, her mother, and one of Mother’s closest friends. Since all but
one of the undisclosed witnesses were members of appellant’s own family, it seems
unlikely that their testimony was a surprise. Indeed, they could have supported
appellant’s guardianship application if they believed she was a more suitable guardian
than appellee. Further, none of the testimony portrayed appellant in a negative light.
The testimony of the witnesses, including that of the one non-family member, was limited
to their observations and opinions of appellee as a father figure in I.B.’s life. This is
exactly the kind of testimony one would expect at a guardianship hearing.
{¶44} Moreover, appellant has not made any argument either in the trial court or
on appeal to demonstrate she was unfairly surprised or prejudiced by these witnesses.
Therefore, the trial court acted within its discretion when it allowed these undisclosed
witnesses to testify at the guardianship hearing.
2. Character Evidence and Hearsay {¶45} Appellant argues a letter from the assistant principal at I.B.’s school was
inappropriately admitted into evidence without proper authentication or acceptance by the
court. She contends the letter constituted hearsay and character evidence.
{¶46} In the letter, the assistant principal states that I.B. “is molding into a great
young lady,” and that “she sets a great example for her younger siblings” who also attend
the school. The letter also indicates that the school is aware of Mother’s death and that
the school provides a variety of services to assist her “not only academically but
socially/emotionally as well.”
{¶47} The letter, which was marked as plaintiff’s exhibit No. 2, was offered but
never accepted into evidence. Appellant objected to its admission into evidence, but the
court never made a ruling. There is also no indication as to whether the court considered
the letter or not. The magistrate’s decision does not mention it in her decision, but
recounts witness testimony that I.B. is performing well in school and that appellee is
involved in her school.
{¶48} Nevertheless, even if the court considered the letter, its admission into
evidence was harmless. It offered no opinion on the appropriateness of appellee as a
guardian, nor did it mention appellant. It simply described I.B.’s character, which was
not the subject of this debate. Arguably the comment regarding the school’s services
would weigh in favor of appellee because the school is in appellee’s school district.
However, appellee testified I.B. was receiving counseling services and help with her homework. Therefore, any consideration of this letter by the trial court was duplicative
of other evidence in the record and therefore harmless.
{¶49} The fourth assignment of error is overruled.
D. Guardianship Appointment
{¶50} In appellant’s first assignment of error in the probate appeal, appellant
argues the probate court failed to apply the correct test when it found appellee the more
suitable guardian. She contends the appointment of appellee as I.B.’s guardian is not in
I.B.’s best interest.
{¶51} “In making a determination as to who should serve as a guardian, the
probate court’s primary responsibility is to ensure that the person appointed will act in the
best interests of the ward.” In re Guardianship of Hilt, 6th Dist. Sandusky No. S-14-010,
2015-Ohio-3186, ¶ 20, quoting In re Guardianship of Thomas, 148 Ohio App.3d 11,
2002-Ohio-1037, 771 N.E.2d 882, ¶ 96 (10th Dist.). The probate court’s determination
regarding a guardianship is generally within the sound discretion of the trial court subject
to reversal only for an abuse of discretion. In re Guardianship of Muehrcke, 8th Dist.
Cuyahoga No. 81353, 2003-Ohio-176, ¶ 21.
{¶52} R.C. 2111.121(A) provides, in relevant part, that “[a] person may nominate
in a writing * * * another person to be the guardian of the nominator’s minor * * *
children.” R.C. 2111.121(B) instructs the probate court that “[e]xcept for good cause
shown or disqualification, the court shall make its appointment in accordance with the
person’s most recent nomination.” Mother nominated appellee to serve as I.B.’s guardian in her will. Thus, pursuant to R.C. 2111.121(B), the probate court was required
to appoint appellee as guardian unless there was a good reason not to, i.e., it would not be
in the child’s best interest.
{¶53} The probate court found that appellant could provide a stable home, health
insurance, a good education, and the love of a grandmother. She could also give I.B.
more material things and vacations out of town. Appellant focuses on the court’s
finding that appellee is “not a perfect person.” However, appellee can also provide a
stable home, a decent education, and fatherly love. Although appellee admitted he could
not take I.B. to Disney World, he could provide love and support while guaranteeing that
she grow up with her siblings, which was her mother’s wish.
{¶54} Thus, the trial court found both applicants to be suitable guardians. Neither
guardian would be against I.B.’s best interest. However, because the probate court was
required to defer to the nomination of appellee in Mother’s will, “except for good cause
shown,” it was compelled to award the guardianship to appellee.
{¶55} Moreover, the magistrate’s decision clearly shows that I.B.’s best interest
was the driving factor in its analysis. For example, the court noted that “[a]fter suffering
the tragedy of losing her mother, it would be devastating to tear her away from the place
she considers her home and from her half siblings and to require her to start over again in
a new school.” The court also acknowledged that it considered I.B.’s stated preference
and found it significant that “[m]any of [appellant’s] own family members testified in support of [appellee]’s application.” Thus, the court considered both the nomination in
Mother’s will and I.B.’s best interest. Indeed, the magistrate’s decision concludes with a
statement that “Ohio law requires that the nomination of the decedent should be followed
if it is in the child’s best interest.”
{¶56} The trial court applied the appropriate test for appointing a guardian of a
minor child. Furthermore, the evidence supports the court’s conclusion that awarding the
guardianship to appellee was in I.B.’s best interest.
{¶57} The first assignment of error is overruled.
{¶58} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to the common pleas court, probate and
juvenile divisions, to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
EILEEN T. GALLAGHER, JUDGE
FRANK D. CELEBREZZE, JR., A.J., and ANITA LASTER MAYS, J., CONCUR