In re C.W.

[Cite as In re C.W., 2014-Ohio-2934.]
STATE OF OHIO, COLUMBIANA COUNTY

IN THE COURT OF APPEALS

SEVENTH DISTRICT

IN THE MATTER OF THE ) CASE NOS. 13 CO 44
GUARDIANSHIPS OF: ) 13 CO 45
) 13 CO 46
C.W. )
D.W. ) OPINION
K.Y. )
)
)

CHARACTER OF PROCEEDINGS: Civil Appeals from the Court of Common
Pleas, Probate Division, of Columbiana
County, Ohio
Case Nos. 11 GDMI 48; 11 GDMI 49; 11
GDMI 50

JUDGMENT: Affirmed.

APPEARANCES:

For Appellants Norman & Marilyn VanPelt: Atty. Brian J. Macala
117 South Lincoln Avenue
Salem, Ohio 44460-3101

For Appellee James & Lisa Youngblood: Atty. Charles C. Amato
Atty. Lynsey Lyle-Opalenik
Amato Law Office
991 Main Street
Wellsville, Ohio 43968

JUDGES:

Hon. Cheryl L. Waite
Hon. Gene Donofrio
Hon. Mary DeGenaro
Dated: June 26, 2014
[Cite as In re C.W., 2014-Ohio-2934.]
WAITE, J.

{¶1} These three appeals arise out of the Probate Division of the

Columbiana County Court of Common Pleas regarding the removal of Appellants,

Norman and Marilyn VanPelt, as guardians and the appointment of a successor

guardian over three orphan children (C.W., D.W. and K.Y.). Although there are three

separate appeals, the issues in each are identical. The guardianships arose after the

mother of the children was murdered by her estranged boyfriend, who then

committed suicide. This boyfriend was the father of two of the children. Appellants

were appointed guardians of the children, as they had previously cared for the

children as foster parents. In January of 2013, Appellee James Youngblood, the

paternal grandfather of two of the children, filed a motion to become the successor

guardian of the children after Appellants had denied him his companionship rights.

At the hearing on the motion to appoint a successor guardian, a prior guardian ad

litem testified that she heard Appellant Norman VanPelt say that the child D.W. was

acting unruly due to his “black blood.” (Tr. p. 13.) The child is bi-racial, the mother

being Caucasian and the father African American. The court eventually granted the

motion to appoint Appellee as successor guardian.

{¶2} On appeal, Appellants argue that the court erred by allowing a former

guardian ad litem to testify. Appellants contend that the evidence should have been

excluded because it was irrelevant, since the guardian ad litem's term had expired

prior to the date of the hearing. Although the guardian ad litem had been appointed

for a limited purpose and her guardianship ended prior to the hearing to appoint a

successor guardian, it is apparent from the record that her testimony was relevant.
 -2-

She had direct personal knowledge of the condition of the children and their

interaction with Appellants within eight months of the filing of Appellee's motion to be

appointed successor guardian.

{¶3} Appellants also argue that the court's decision was against the manifest

weight of the evidence. Appellee presented evidence that Appellants abused one of

the children, used a racial slur regarding one of the children, forced the children to kill

animals as part of their chores, and flaunted the court's visitation orders. Appellants

presented no evidence at the hearing. The weight of the evidence supports the

court's decision. Appellants' arguments are without merit and the judgment of the

trial court is affirmed.

History of the Case

{¶4} Rachel W. was the natural mother of minor children C.W. (d.o.b.

8/1/09), D.W. (d.o.b 7/17/06) and K.Y. (d.o.b. 7/23/08). Steven Youngblood was the

natural father of C.W. and K.Y. D.W.'s father has never been involved in the child's

life nor participated in any court proceeding regarding the child. At the request of the

Columbiana County Department of Jobs and Family Services (CCDJFS), the child

D.W. was placed in the foster care of Appellants Norman and Marilyn VanPelt on

March 1, 2008 after being adjudicated an abused, neglected or dependent child.

K.Y. was placed in foster care with Appellants shortly after the child was born in

2008. C.W. was placed in foster care with Appellants on September 22, 2010, when

the child was one year old. It was on that date that the mother of the children, Rachel
 -3-

W., was murdered by her estranged boyfriend Steven Youngblood. Youngblood then

turned the gun on himself and committed suicide.

{¶5} On August 8, 2011, Appellants filed a petition for guardianship of the

children in the probate division of the court of common pleas. The probate court

issued an interim order on August 16, 2011, appointing Appellants as temporary

guardians. The paternal grandparents James and Lisa Youngblood joined the

guardianship action, and the maternal grandfather and step-grandmother, Allan and

Nancy W., filed an application for guardianship as well. A hearing was scheduled for

September 28, 2011, but the parties informed the court that an agreed entry had

been formulated in which Appellants would be co-guardians and the grandparents

would have visitation rights once per month. The agreed entry was approved and

filed on December 7, 2011.

{¶6} On December 20, 2011, Appellants filed a motion to suspend the

visitation rights of Appellee and the maternal grandfather. Tere Rufener was

appointed on February 15, 2012, as guardian ad litem for the proceedings. On May

2, 2012, a hearing was held and the motion to suspend visitation was denied. The

guardian ad litem's duties terminated on May 10, 2012.

{¶7} On January 31, 2013, Appellee filed a motion to show cause in

contempt against Appellants for failure to allow visitation and a motion to appoint a

successor guardian.

{¶8} On March 22, 2013, Appellants filed petitions to adopt the three

children.
 -4-

{¶9} On April 11, 2013, the probate court found Appellants in contempt for

denying court-ordered visitation to Appellee. Appellants were allowed to purge their

contempt by giving Appellee visitation every other weekend from Friday to Sunday.

All pending motions were stayed while the contempt was being purged. On August

8, 2013, the court found that Appellants had purged their contempt, and a hearing on

the adoption petition was set for September 27, 2013. The hearing took place, but

no decision was made.

{¶10} On October 2, 2013, the court heard Appellee's petition for successor

guardianship. Four witnesses testified: former guardian ad litem Tere Rufener,

Reverend Roosevelt Thompson, MaryAnne Grace (maternal grandmother of the

children), and Appellee. Rufener testified that Norman VanPelt used a racial epithet

and about the poor conditions of Appellants’ home, and the loving relationship

between the children and Appellee. Rev. Thompson gave mainly character

testimony about Appellee and noted the loving relationship between Appellee and the

children. Ms. Grace spoke about the relationship between the Appellants and the

children. Appellee testified that Appellants abused the children, beating them in the

face until they drew blood and tying them to a chair as discipline, their refusal to allow

visitation and failure to allow telephone communication with the children. Appellee

also testified to Appellants’ denial that they had to obey court orders and that they

had been held in contempt for disobeying court-ordered visitation. He also related

Appellants’ failure to get D.W. enrolled in school, that they forced the children cut the
 -5-

heads off of chickens, told them their father was burning in hell, and testified

generally as to the dangerous conditions in the home.

{¶11} The court held an in camera inspection of the children and then

rescheduled the remainder of the hearing for a later date. On October 9, 2013, the

parties filed a joint notice with the court stating that no more evidence would be

submitted, waiving final argument and allowing the court to proceed with judgment.

We note that Appellants had presented no evidence.

{¶12} On October 30, 2013, the court granted the motion to appoint Appellee

as successor guardian. Appellants filed a motion for stay of execution, which was

denied on October 31, 2013. In the judgment entry denying the stay, the court stated

that Appellants had expressed racist sentiments with regard to one of the children,

and there was uncontroverted evidence that one or more of the children had been

subjected to physical abuse. For these and other reasons, the court found it in the

best interests of the children to remove Appellants as guardians and appoint

Appellee as successor guardian. These timely appeals followed.

ASSIGNMENT OF ERROR NO. 1

THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY

ALLOWING THE TESTIMONY OF A FORMER GUARDIAN AD LITEM

OVER THE OBJECTION OF THE APPELLANTS.

{¶13} Appellants argue that the court committed reversible error by allowing

former guardian ad litem Tere Rufener to testify at the hearing on the motion to

appoint a successor guardian. Rufener had been the guardian ad litem during a
 -6-

proceeding dealing with whether Appellee's visitation rights should be terminated.

Rufener testified that a racial comment was made by Norman VanPelt to the effect

that child D.W. was unruly due to his “black blood.” (Tr., p. 13). Appellants objected

to the testimony on grounds of relevance, and the objection was overruled.

Appellants believe this ruling was erroneous and invalidated the court's ultimate

decision. In support, Appellants primarily rely on Evid.R. 402 and Sup.R. 48(D)

regarding the duties of a guardian ad litem.

{¶14} Evid.R. 402 states that “[a]ll relevant evidence is admissible * * *.” Trial

judges have broad discretion in the admission or exclusion of relevant evidence.

Rigby v. Lake Cty., 58 Ohio St.3d 269, 271, 569 N.E.2d 1056 (1991). In a trial to the

bench, the court is presumed to have considered only admissible evidence, unless

the record indicates otherwise. State Farm Mut. Auto Ins. Co. v. Travelers Prop.

Caus., 5th Dist. No. CT2001–0065, 2002-Ohio-3687, ¶70.

{¶15} Sup.R. 48(D) states in pertinent part:

In order to provide the court with relevant information and an informed

recommendation regarding the child's best interest, a guardian ad litem

shall perform, at a minimum, the responsibilities stated in this division,

unless impracticable or inadvisable to do so.

***

(13) A guardian ad litem shall make reasonable efforts to become

informed about the facts of the case * * *.
 -7-

{¶16} Appellants argue that the former guardian ad litem's testimony was

irrelevant, primarily because they claim it was stale. Appellants contend that the

guardian ad litem's observations occurred 17 months prior to the hearing on the

motion to appoint a successor guardian. The record reflects that her guardianship

ended in May of 2012, only 8 months prior to the time the motion to appoint a

successor guardian was filed in January of 2013. Although the hearing on the motion

was not held until October 2013, her actual testimony relates to the time leading up to

the filing of the motion, and based on that earlier date of January 2013, her

observations are not particularly stale or outdated. We find no abuse of discretion in

the court's reliance on evidence that occurred during or just before the time period

encompassed by the motion being heard, particularly in light of the fact that no

evidence was submitted by Appellants and the testimony was uncontroverted.

{¶17} Appellants also argue that Rufener was not appointed guardian ad litem

for purposes of the motion to appoint a successor guardian, and that only a guardian

ad litem appointed for the specific purpose of the hearing at hand should have been

allowed to testify. Appellants present no caselaw that supports their argument.

Sup.R. 14(D)(4) states: “A guardian ad litem shall appear and participate in any

hearing for which the duties of a guardian ad litem or any issues substantially within a

guardian ad litem's duties and scope of appointment are to be addressed.”

(Emphasis added.) Although Rufener was appointed guardian ad litem in an earlier

proceeding, her observations during that time do not immediately become irrelevant

when her guardianship terminated on May 10, 2012. Her duties as guardian ad
 -8-

litem, under Sup.R. 48(D)(13) included meeting with the children, parents, foster

parents and any other significant individuals with relevant knowledge, to visit the

children in their residence, to review records, and perform any other investigation

necessary to make an informed recommendation. Appellants do not deny that

Rufener performed all these tasks. Since she had direct knowledge of the children at

their residence gained while Appellants were the foster parents, testifying about

these observations in a subsequent guardianship proceeding involving Appellants

and the children falls squarely within the scope of a guardian ad litem's duties under

Sup.R. 48. That such information might be relevant to the issue of whether

Appellants should continue to be guardians was up for the court to decide, and it is

not difficult to see that it would be relevant in this case.

{¶18} There was no basis for excluding Rufener's testimony on grounds of

relevance, and the first assignment of error is overruled.

ASSIGNMENT OF ERROR NO. 2

THE REMOVAL OF THE APPELLANTS AS CO-GUARDIANS OF THE

MINOR CHILD WAS AN ABUSE OF DISCRETION AS THAT

REMOVAL WAS AGAINST THE MANIFEST WEIGHT OF THE

EVIDENCE.

{¶19} Appellants argue that the decision of the trial court was against the

manifest weight of the evidence. Appellate review of a decision removing a guardian

and appointment of a successor guardian is a review for abuse of discretion, not

manifest weight of the evidence. A guardian is deemed to be an officer of the
 -9-

probate court. In re Clendenning, 145 Ohio St. 82, 93, 60 N.E.2d 676 (1945). The

power of the probate court is superior to that of guardians appointed by the court.

Id.; R.C. 2111.50(A)(1). Except for the disposition of gifts from a ward's estate, the

power of the court relative to one declared a ward is to be exercised in the best

interests of the ward. R.C. 2111.50(C)(1). A probate court's decision regarding

matters involving guardianships will not be reversed on appeal unless the probate

court's decision amounts to an abuse of discretion. In re Estate of Bednarczuk, 80

Ohio App.3d 548, 551, 609 N.E.2d 1310 (1992). It is well-settled that probate courts

have broad discretion when appointing and removing guardians, and their decisions

will not be reversed absent a showing of an abuse of that discretion. Id.; In re

Guardianship of Skrobut, 7th Dist. No. 97CA18 (Apr. 30, 1998). An “abuse of

discretion” is more than an error of judgment, it implies that the trial court acted

unreasonably, arbitrarily or unconscionably. Blakemore v. Blakemore, 5 Ohio St.3d

217, 219, 450 N.E.2d 1140 (1983).

{¶20} Factual determinations of the court will not be disturbed if supported by

some competent, credible evidence. C.E. Morris v. Foley Const. Co., 54 Ohio St.2d

279, 376 N.E.2d 578 (1978), syllabus. On review, the findings of a trier of fact are

presumptively correct. Seasons Coal Co., Inc. v. City of Cleveland, 10 Ohio St.3d 77,

80-81, 461 N.E.2d 1273 (1984).

{¶21} Although R.C. 2111.50(A)(2)(c) allows the court to limit or deny any

power to a guardian for good cause shown, courts have generally relied on the

provisions of R.C. 2109.24, dealing with the removal of fiduciaries, as the standard
 -10-

for removing a guardian. We have repeatedly held that R.C. 2109.24 governs the

removal of guardians by the probate court. In re Guardianship of Monus, 7th Dist.

Nos. 03 MA 128, 03 MA 129, 03 MA 130, 03 MA 131, 03 MA 132, 03 MA 153, 2004-

Ohio-2808, ¶12; In Matter of Guardianship of Weiss, 7th Dist. No. 96 C.A. 135, 1997

WL 433554, p. *2 (July 28, 1997).

{¶22} R.C. 2109.24 states: “The court may remove any fiduciary * * * for

habitual drunkenness, neglect of duty, incompetency, or fraudulent conduct, because

the interest of the property, testamentary trust, or estate that the fiduciary is

responsible for administering demands it, or for any other cause authorized by law.”

In interpreting R.C. 2109.24, we held in Guardianship of Weiss that: “[I]t is

discretionary with the trial court as to whether a guardian should be removed, and

such removal may be based upon any just cause when the interest of justice

demands it. The trial court need not find that the guardian's actions amounted to

violations of the law or that his actions caused injury to the Ward or the Ward's

estate.” Id. “To warrant the removal of a guardian, a trial court need only find that

the best interest of the Ward will be served by said guardian's removal.” Id.

{¶23} Prior to 2007, R.C. 2109.24 stated: “The court may remove any such

fiduciary, after giving the fiduciary not less than ten days' notice, for habitual

drunkenness, neglect of duty, incompetency, or fraudulent conduct, because the

interest of the trust demands it, or for any other cause authorized by law.” Appellants

contend that this prior version gave the courts more leeway in removing fiduciaries

and that the caselaw interpreting the prior statute should not be relied on. Both
 -11-

versions are substantially the same and allow for removal either for cause or simply

in the interest of the guardianship. Appellants’ argument is not supported by the

actual wording of the two versions of the statute. Appellants acknowledge that the

court's decision to remove a guardian will not be reversed absent an abuse of

discretion and that the court's findings are presumed to be correct.

{¶24} Appellants argue that the guardian ad litem's testimony is not credible,

particularly the statement about the racial slur, because she said she was shocked by

the statement, yet had not revealed it earlier. The purpose of the hearing for which

Rufener was made a guardian ad litem was to determine whether Appellee’s

visitation should be suspended. Assuming Rufener was truthful in stating she was

shocked by this comment, it would have been difficult to introduce the information

into that hearing. Appellants and Appellants’ behavior were not the subject of the

specific hearing for which she was gathering information. If she had tried to testify

about the comment, it likely would have been objected to and stricken from the

record because it had no relevance to the subject of the hearing; whether Appellee

should have his visitation rights terminated. In the subsequent hearing regarding the

removal of Appellants as guardians and the appointment of a successor guardian,

though, the comment appears to be highly relevant, and would go to the character

and attitudes of the guardians toward the children and their paternal grandparent.

{¶25} Appellants focus on the supposedly erroneous admission of this racial

comment as a reason for overturning the trial court's judgment, overlooking the many

other facts in the record that support the judgment. Rufener testified about the poor
 -12-

living conditions of Appellants’ home, including the fact that all three children (two

girls and a boy) had to share a bedroom. Appellants would not allow the children to

use the telephone to call their grandparents. Appellee testified as to Appellants’

interference with visitation, refusal to obey court orders, their statements that they did

not have to obey court orders and were above the judge, their contempt conviction,

and that they gloated over their belief that their adoption petition would be granted

and they would never have to allow visitation with Appellee again. The adoption

petition, though, was not ruled on. Appellee testified that Appellants failed to register

D.W. in school on time, that they abuse the children by striking them in the face so

hard that they drew blood, they tie them to chairs as discipline, and that they make

the children perform gruesome chores such as cutting the heads off of chickens.

Appellants did not rebut any of this evidence, and it is difficult if not impossible to

reverse a case on evidentiary grounds with no evidence in the record opposing the

evidence relied on by the court. Appellants' second assignment of error is overruled.

Conclusion

{¶26} Appellants object to the judgment of the trial court removing them as

guardians and appointing a successor guardian on grounds of improper admission of

evidence and manifest weight of the evidence. First, they object that the court

allowed former guardian ad litem Tere Rufener to testify because she was not

currently the guardian ad litem. They believe her testimony was irrelevant. The

guardian ad litem had first-hand information about the children and the parties for a

13-month period that encompassed at least a part of the time period relevant to the
 -13-

motion to appoint a successor guardian, and the trial court had broad discretion in

allowing her to testify. Second, Appellants' dispute the court's judgment based on the

manifest weight of the evidence. While this is the incorrect standard used for our

review, Appellee established that Appellants beat the children, tied them to a chair as

discipline, did not provide adequate housing, refused to obey visitation orders, and

said they would continue to refuse to obey visitation orders in the future. Appellants

failed to present any evidence themselves. There is substantial evidence supporting

the trial court’s judgment and it is affirmed as to all three cases on appeal.

Donofrio, J., concurs.

DeGenaro, P.J., concurs.