In re T.E.

2024 Ohio 3410

• Court: Ohio Court of Appeals
• Decided: September 6, 2024
• Docket: C-240144
• Status: Published

Opinion

[Cite as In re T.E., 2024-Ohio-3410.]

IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

IN RE: T.E. : APPEAL NO. C-240144 TRIAL NO. 2023003936 :

: O P I N I O N.

Appeal From: Hamilton County Court of Common Pleas, Probate Division

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: September 6, 2024

Alicia A. Epps, Petitioner, pro se. OHIO FIRST DISTRICT COURT OF APPEALS

CROUSE, Judge.

{¶1} Petitioner Alicia Epps appeals from the trial court’s entry denying her

objections to, and adopting, a magistrate’s decision that dismissed Epps’s application

to be appointed guardian of her allegedly incompetent granddaughter T.E. and denied

her motion to order a family member to make T.E. available for a medical examination.

Because Epps did not present clear and convincing evidence that T.E. was

incompetent, we hold that the trial court did not err in dismissing the application for

guardianship or denying Epps’s related motion concerning a medical evaluation, and

we affirm its judgment.

I. Factual and Procedural Background

{¶2} In September of 2023, Epps filed an application in the Hamilton County

Court of Common Pleas, Probate Division, to be appointed as guardian of her

granddaughter T.E. The application claimed that 19-year-old T.E. was on the autism

spectrum. Epps also filed a document titled “application for court to appoint

physician.” The allegations in this document were somewhat disjointed, but essentially

stated that Epps had scheduled a doctor’s appointment for T.E., and T.E. had refused

to attend. It contained additional allegations unrelated to a doctor’s appointment,

including allegations that T.E. graduated from high school in 2022, that she had been

on an Individualized Education Plan (“IEP”) while in school, and that T.E.’s mother,

who had recently passed away, was unable to enroll T.E. in college because of a

“deceitful family member.”

{¶3} On October 3, 2023, the trial court issued an entry appointing a

physician to examine T.E. An amended entry was subsequently issued, providing that

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the examining doctor was required to submit an expert evaluation by November 30,

2023, or the case would be dismissed.

{¶4} On November 13, 2023, Epps filed a “motion for court to have Krystal

Gulley return purposed [sic] ward.” While the allegations in this motion are hard to

follow, it seemingly asserted that T.E. was being intentionally held by Gulley, who was

Epps’s niece and T.E.’s cousin, and that Gulley manipulated T.E., refused to bring her

to doctor’s appointments, and would not let her see Epps.

{¶5} A hearing on Epps’s filings was held before a probate court magistrate

on December 8, 2023. Epps testified that she was unaware of T.E.’s current living

arrangements and that T.E. had not yet been evaluated by a doctor, despite the fact

that Epps had communicated to Gulley the necessity of such evaluation. Epps’s

testimony failed to address why she believed that T.E. was in need of a guardian and

why she believed that T.E. was incompetent due to being on the autism spectrum.

{¶6} Gulley testified that T.E. currently lives with her, and that she opposed

Epps’s request for T.E. to be evaluated by a doctor. Gulley explained that T.E.’s mother,

prior to her recent death, never had T.E. evaluated for the concerns expressed by Epps

and that T.E.’s family did not share Epps’s concerns regarding T.E.’s competence.

Gulley stated that T.E. recently graduated from high school. She further testified as to

Epps’s relationship with T.E., stating that Epps has made no effort to see T.E. and that

she believed Epps was trying to obtain guardianship of T.E. so that she could have

control of the apartment where T.E. had resided with her mother. Gulley stated that

T.E. was 19, had a mind of her own, and did not want to live with Epps. She explained

that T.E.’s distrust of Epps stemmed from Epps’s attempt to stab Gulley in front of

T.E. Gulley further told the court that Epps has not allowed T.E. to retrieve any of her

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belongings from her old apartment, and that Epps has filed numerous charges against

Gulley.

{¶7} T.E. also took the stand and was questioned by the magistrate. She told

the court that she lives with Gulley and that she did not want to see a doctor because

she does not feel like there is anything wrong with her. The court questioned T.E. about

her future, and she stated that she does not have a job, but that she would like to go to

college and was interested in art. T.E. explained that Epps currently lives in the

apartment where she used to reside with her mother and that she does not want to

move back into that apartment with Epps. The magistrate allowed Epps to question

T.E. about that sentiment, and T.E. responded that she did not trust Epps, referencing

an incident in which Epps had pulled a knife on someone who T.E. did not name. Epps

tried to insinuate that Gulley had taken T.E. from her old apartment, but T.E. clearly

stated that she left of her own free will.

{¶8} At the conclusion of the hearing, the magistrate stated, “I’m not a

psychiatrist, neither are you, neither is anyone in this room. But I also had, you know,

great concern early on in this case whether there was even sufficient probable cause to

even start the process. We had a hearing solely on that a long time ago. And even at

that hearing I remember saying this is real, real, thin. There’s barely enough to even

proceed.” The magistrate further acknowledged that T.E. was able to provide coherent

answers to his questions, discuss her plans for the future, and vocalize that she did not

want to move back in with Epps for a variety of reasons. He recognized the fact that

T.E. had an IEP while in high school and that she could potentially have a learning

disability, but stated that utilization of an IEP did not equate to legal incompetence.

The magistrate concluded the hearing by stating that he was going to deny both Epps’s

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motion to have T.E. seen by a doctor and her application for guardianship, and that

the case would be dismissed. He subsequently issued an entry in accordance with that

pronouncement.

{¶9} Epps filed an objection to the magistrate’s decision. The objection did

not set forth a clear challenge to the decision, but stated that T.E. “is being held by

Krystal Gulley who refuses to have her seen for purposes of guardianship and is a

danger to [T.E.].” The trial court issued an entry scheduling a hearing on Epps’s

objection on March 4, 2024.

{¶10} Instead of holding the hearing, the trial court, on February 9, 2024,

issued an entry denying Epps’s objection, adopting the magistrate’s decision, and

entering final judgment. The entry stated that the testimony of the putative ward was

sufficient to warrant dismissal and that the hearing set for March 4, 2024, was vacated.

Epps now appeals, raising four assignments of error for our review.

II. Guardianship Application Properly Dismissed

{¶11} In her first assignment of error, Epps argues that the trial court erred in

vacating the hearing on her objection to the magistrate’s decision. In her second

assignment of error, she argues that the trial court erred in reviewing an audio

recording of the proceedings before the magistrate without conducting a hearing on

her objection.

{¶12} Epps does not separately argue these assignments of error in her brief,

and she provides no legal citation or argument in support thereof. The entirety of

Epps’s brief is dedicated to arguing her remaining two assignments of error. App.R.

12(A)(2) provides that an appellate court “may disregard an assignment of error

presented for review if the party raising it fails to identify in the record the error on

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which the assignment of error is based or fails to argue the assignment separately in

the brief, as required under App.R. 16(A).” Accordingly, pursuant to App.R. 12(A)(2),

we disregard Epps’s first and second assignments of error and decline to address them.

{¶13} In both her third and fourth assignments of error, Epps argues that the

trial court erred in dismissing her application to be appointed guardian of T.E. and in

denying her objection to the magistrate’s decision. We address these assignments of

error together.

{¶14} A probate court’s decision regarding the appointment of a guardian is

reviewed for an abuse of discretion. In re Glasgow, 2022-Ohio-1366, ¶ 16 (12th Dist.);

In re Guardianship of Waller, 2011-Ohio-313, ¶ 16 (1st Dist.). “The term ‘abuse of

discretion’ implies that the court’s attitude is unreasonable, arbitrary, or

unconscionable.” Garry v. Borger, 2023-Ohio-905, ¶ 14 (1st Dist.), citing Berk v.

Matthews, 53 Ohio St.3d 161, 169 (1990).

{¶15} The appointment of a guardian by a probate court is provided for in R.C.

2111.02. This statute provides that “[i]f found necessary, a probate court on its own

motion or on application by any interested party shall appoint, subject to divisions (C)

and (D) of this section and to section 2109.21 and division (B) of section 2111.121 of

the Revised Code, a guardian of the person, the estate, or both, of a minor or

incompetent.” A guardianship proceeding is not adversarial. Waller at ¶ 16. “[T]he

probate court must act in the best interests of the incompetent person.” Id.

{¶16} As relevant to this appeal, a person is incompetent when the person “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).

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The trial court must conduct a hearing before appointing a guardian for an allegedly

incompetent person. R.C. 2111.02(C). At the hearing, the applicant for a guardianship

bears the burden of establishing incompetency by clear and convincing evidence. R.C.

2111.02(C)(3); In re Glasgow at ¶ 15. 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 trier of facts a firm belief or conviction

as to the facts sought to be established.’” In re K.H., 2008-Ohio-4825, ¶ 42, quoting

Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the syllabus.

{¶17} Following our review of the record, we hold that Epps failed to meet her

burden of establishing by clear and convincing evidence that T.E. was incompetent.

Other than alleging in her application for guardianship that T.E. was on the autism

spectrum, Epps provided no evidence that T.E. was incompetent or that she was, in

fact, autistic. Various filings in the record and testimony at the hearing before the

magistrate indicated that T.E. had utilized an IEP while in high school. But as the

magistrate noted, utilization of an IEP established, at best, that T.E. may have had a

learning disability, which is not the equivalent of incompetence.

{¶18} The evidence in the record establishes that T.E.’s family, including her

mother prior to her death, did not believe that T.E. was incompetent or on the autism

spectrum. T.E. graduated from high school and was able to articulately convey to the

magistrate that she had an interest in art and would like to attend college. T.E. also

articulately explained her distrust of Epps.

{¶19} Frankly, the record contains no evidence, let alone clear and convincing

evidence, that T.E. was so mentally impaired that she was incapable of taking proper

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care of herself or her property. See R.C. 2111.01(D)(1). Because Epps failed to present

clear and convincing evidence that T.E. was incompetent, the trial court did not abuse

its discretion in dismissing her application to be appointed guardian of T.E. See In re

Guardianship of Swank, 1999 Ohio App. LEXIS 2811 (5th Dist. June 16, 1999)

(affirming the trial court’s denial of the requested guardianship because there was not

clear and convincing evidence of incompetency).

{¶20} Epps also argues that the trial court erred in denying her objection to

the magistrate’s decision, which concerned the denial of her motion to order Gulley to

make Epps available for a medical examination. We find no error in the denial of this

motion. As we have explained, the record contained no evidence that Epps was

incompetent. Further, neither T.E. nor her family believed that she was autistic or

incompetent, and T.E. was able to articulately discuss her history with Epps and plans

for her future. The record establishes that there was no justification or basis to order

T.E. to submit to a medical examination. To hold otherwise would set a dangerous

precedent in which individuals exhibiting no signs of incompetency could be forced to

submit to medical examinations against their will.

{¶21} We accordingly hold that the trial court did not abuse its discretion in

adopting the magistrate’s decision that denied Epps’s motion to have Gulley make

Epps available for a medical examination and dismissed the application for

guardianship. The third and fourth assignments of error are overruled, and the

judgment of the trial court is affirmed.

Judgment affirmed.

BOCK, P.J., and ZAYAS, J., concur.

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Please note:

The court has recorded its entry on the date of the release of this opinion.