[Cite as In re J.W., 2011-Ohio-5191.]
COURT OF APPEALS
FAIRFIELD COUNTY, OHIO
FIFTH APPELLATE DISTRICT
: JUDGES:
IN THE MATTER OF: : William B. Hoffman, P.J.
: Sheila G. Farmer, J.
J.W. AND P.W. : Julie A. Edwards, J.
:
: Case Nos. 11-CA-2, 11-CA-3,
: 11-CA-4 and 11-CA-5
:
:
: OPINION
CHARACTER OF PROCEEDING: Civil Appeal from Fairfield County
Court of Common Pleas, Probate
Division, Case Nos. 00066857 and
00066856
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT ENTRY: October 3, 2011
APPEARANCES:
For Appellants For Appellant Echo Brown
SUSAN WASSERMAN STEVEN D. ROWE
5350 East Main Street ERICA ANN PROBST
Columbus, Ohio 43213 Kemp, Schaeffer & Rose Co., LPA
88 West Mount Street
Columbus, Ohio 43213
For Guardian Jeffrey Feyko
JOHN SNIDER
Stebelton Aranda & Snider
109 N. Broad Street, Ste. 200
Lancaster, Ohio 43130
[Cite as In re J.W., 2011-Ohio-5191.]
Edwards, J.
{¶1} Appellants, Echo Brown, J.W. and P.W., appeal from the December 14,
2010, Entries of the Fairfield County Probate Court.
STATEMENT OF THE FACTS AND CASE
{¶2} On October 7, 2010, Jeffrey Feyko filed an Application in Fairfield County
Probate Case No. 00066856 to be appointed the Guardian of appellant J.W. The
application alleged that appellant J.W. was incompetent due to senile dementia, mental
impairment and an inability to care for himself. On the same date, Feyko filed an
application in Fairfield County Probate Case No. 00066857 to be appointed the
Guardian of appellant P.W. The application alleged that appellant P.W. was
incompetent due to dementia, mental impairment and an inability to care for herself.
Feyko had no relationship to either appellants J.W. or P.W. On the same day, Feyko
filed expert evaluations in both cases from a licensed physical opining that
guardianships should be established for both appellants J.W. and P.W.
{¶3} A hearing on the applications was scheduled for October 28, 2010.
{¶4} On October 7, 2010, Feyko also filed motions in both cases asking that
the court grant him the authority to place and maintain appellants J.W. and P.W. in a
nursing home and/or medical facility and to sign any documents required by the same
during the pendency of the applications for guardianship. Pursuant to Entries filed in
both cases on the same day, the motions were granted.
{¶5} Thereafter, appellants P.W. and J.W. filed an objection in both cases to
the appointment of Feyko as Guardian. In their objections, they asked that if the trial
court determined that Guardianships were necessary, appellant Echo Brown, the
Fairfield County App. Case Nos. 11-CA-2, 11-CA-3, 11-CA-4 and 11-CA-5 3
spouse of their grandson, be appointed their Guardian. Appellants J.W. and P.W., on
October 14, 2010, filed waivers of notice and consent, indicating that they consented to
the appointment of appellant Echo Brown as Guardian. Appellant Echo Brown, on
October 14, 2010, filed applications in both cases to be appointed Guardian. In her
applications, she indicated that the prospective wards were incompetent by reason of
“mental impairment as a result of mental or physical illness or disability.”
{¶6} As memorialized in Entries filed in both cases on October 22, 2010, the
trial court scheduled an oral hearing on the objection to Jeffrey Feyko as Guardian for
November 29, 2010.
{¶7} On October 22, 2010, Charlene Miller, a court investigator, filed reports in
both cases on the proposed guardianship. She recommended that Jeffrey Feyko be
appointed Guardian for both appellant J.W. and appellant P.W. because they needed
assistance to care for their personal, medical and/or financial decisions.
{¶8} Subsequently, on November 4, 2010, Rebecca Cooper, a Certified Long
Term Care Ombudsman from Catholic Social Services, filed a letter with the trial court
objecting to the appointment of Feyko as Guardian. Cooper, in her letter, indicated that
her office had been contacted in order to investigate a complaint that appellants J.W.
and P.W. were being held against their will at Crestview Manor Nursing Home and that
she was aware that Feyko had applied for Guardianship after receiving a referral from
Crestview. Cooper, in her letter, stated, in relevant part, as follows:
{¶9} “Mr. Feyko requested and was granted a motion providing him with the
authority to place and maintain the proposed ward in a nursing home facility and/or
medical facility during the pendency of the application for guardianship. According to
Fairfield County App. Case Nos. 11-CA-2, 11-CA-3, 11-CA-4 and 11-CA-5 4
both the nursing home staff and Adult Protective Services staff, the immediate health
and well-being of the proposed ward mandate continued nursing home placement.
{¶10} “I believe that this motion is based upon competing interests.
Crestview Manor is currently suing these individuals, and it is assumed that their referral
to Mr. Feyko was made under their assumption that the money owed will be more easily
obtained through a guardian. I am also aware that the Adult Protective Services
caseworker, Patty, has previously and currently represented herself to our
agency as an employee of Mr. Feyko. The Adult Protective Services caseworker
therefore demonstrates a conflict of interest in her role to make recommendations that
these individuals require continued nursing home placement during the pending status
of the guardianship application.”
{¶11} Appellants J.W. and P.W., on November 10, 2010, filed letters in both
cases asking that they be provided with legal representation in order to contest Jeffrey
Feyko’s Applications for Guardianship. They requested that an oral hearing be held so
that they could testify on their own behalf. In response to such letter. Charlene Miller,
the Court Investigator, made a return visit to Crestview Manor Nursing Home and spoke
with appellants J.W. and P.W. In a letter to the court filed on November 19, 2010, Miller
indicated that she explained to them and they were not indigent, that the trial court could
not appoint them counsel and that they would need to seek counsel on their own. Miller,
in her letter, further indicated that appellants J.W. and P.W. were “shocked and upset
stating that they never wrote to the court requesting an attorney”, although they
admitted the letter contained their signatures.
Fairfield County App. Case Nos. 11-CA-2, 11-CA-3, 11-CA-4 and 11-CA-5 5
{¶12} A hearing on Feyko’s Applications for Guardianship was held on
November 29, 2010. At the hearing, both appellant J.W. and P.W., who were not
represented by counsel, indicated to the trial court that they wanted appellant Echo
Brown to be the Guardian. The only witness to testify was Patricia Ciripompa, an
investigator for Adult Protective Services (APS) who is employed by Fairfield County
Job and Family Services. Ciripompa testified that APS has had nine referrals regarding
appellants J.W. and P.W. starting in 2000. She testified that in 2000, appellant J.W. was
identified with a history of alcohol and drug abuse and that the house was very
cluttered. She testified that the caregiver, who was a relative, had a hard time because
appellants J.W. and P.W. did not comply and would not allow APS into their house. In
2003, a caseworker attempted to get into the home, which had a bad odor coming from
it, but was refused admittance and the case was closed. The following is an excerpt
from Ciripompa’s testimony:
{¶13} “Q. What is your understanding, Patty, with regard to [appellants J.W. and
P.W.] accepting or agreeing to accept the services of any family member who has
offered to assist them in the past?
{¶14} “A. Since the time of our first referral and in getting to know a little bit more
of the family history throughout all nine referrals, what we have encountered is a very
consistent pattern.
{¶15} “Q. Which is?
{¶16} “A. [Appellants J.W. and P.W.] will accept help temporarily in crisis from
any of their family members, but then very shortly afterward will threaten the family
members, accuse them of stealing, accuse them of abuse, kick them out of the house.
Fairfield County App. Case Nos. 11-CA-2, 11-CA-3, 11-CA-4 and 11-CA-5 6
At one point they accepted home health temporarily, but then it was reported to us on,
during I think back in 2009 that, uh, one nurse was threatened with a gun by [appellant
J.W.] Um, family members have tried, I think multiple family members have tried and
multiple family members have reported us, to us over time. Um, [appellants J.W. and
P.W.] are, ‘agitated, argumentative and threatening me,’ whoever the caregiver was at
the time reporting, ‘horribly.’
{¶17} “‘There are guns in the home and they, [appellants J.W. and P.W.], do
threaten to use them.’ ‘[Appellants J.W. and P.W.] accuse us, family members, of
stealing.’ We were contacted when [appellants J.W. and P.W.], um, were in their home
at one point by a family member who was frantic and said they are tearing self (sic) up
and they are very confused and they are livid that some of their things were thrown
away in an attempt to clean the home. At one point a family member told us, ‘I feel
strongly that these folks need placement for care. They have run off all the family who
could or would try to help them and there is no one left to take care of them.’ ‘They are
confused, shaky and argumentative.’ Every family member that we’ve, whom we have
talked with, um, in the past, consistently, has been concerned about others in the family
blaming them for one thing or another. They blame, have blamed each other.
[Appellants J.W. and P.W.] have kind of kept this going. This is a pattern of always
stirring the pot with family members and making sure that they were always in a state of
turmoil.” Transcript at 8-10.
{¶18} Based on the foregoing, Ciripompa opined that no family member should
be appointed Guardian, but rather that an objective third-party who was not living or
residing with appellants J.W. and P.W. should be appointed.
Fairfield County App. Case Nos. 11-CA-2, 11-CA-3, 11-CA-4 and 11-CA-5 7
{¶19} On cross-examination by appellant Echo Brown’s counsel, Ciripompa
stated that she had not consulted with appellant Echo Brown. She testified that she
thought that appellants J.W. and P.W. should have round-the-clock care in a nursing
home.
{¶20} Pursuant to Entries filed in both cases on December 14, 2010, the trial
court overruled and dismissed the objections to the Applications of Jeffrey Feyko as
Guardian and granted Feyko’s Applications. The trial court, in its Entries, found
appellant Echo Brown to be unsuitable to serve as a Guardian and found both appellant
J.W. and appellant P.W. to be incompetent.
{¶21} On January 11, 2011, appellant Echo Brown filed Notices of Appeal from
the trial court’s two December 14, 2010 Entries. Her appeals were assigned Case Nos.
11 CA 2 and 11 CA 3. On the same date, appellant P.W. filed a Notice of Appeal from
the trial court’s December 14, 2010, Entry in her case. Her appeal was assigned Case
No. 11 CA 4. Also on January 11, 2011, appellant J.W. filed a Notice of Appeal from
the trial court’s December 14, 2010, Entry in his case. His appeal was assigned Case
No. 11 CA 5. Pursuant to a Judgment Entry filed on January 27, 2011, this Court
consolidated the appeals.
{¶22} On April 25, 2011, a Suggestion of Death was filed, stating that appellant
J.W. had passed away on April 20, 2011.
{¶23} Appellants now raise the following assignments of error on appeal:
{¶24} “I. THE TRIAL COURT ERRED AS A MATTER OF LAW BY APPROVING
THE APPLICATION FOR GUARDIANSHIP OF J.W. AND P.W. BECAUSE IT DID NOT
Fairfield County App. Case Nos. 11-CA-2, 11-CA-3, 11-CA-4 and 11-CA-5 8
COMPLY WITH THE MANDATES SET FORTH IN SECTION 2111.02 OF THE OHIO
REVISED CODE.
{¶25} “II. THE TRIAL COURT ORDER APPROVING THE APPLICATION FOR
GUARDIANSHIP OF J.W. AND P.W. WAS IN ERROR BECAUSE THE APPLICANT
DID NOT PROVIDE CLEAR AND CONVINCING EVIDENCE OF J.W. AND P.W.’S
INCOMPETENCE.
{¶26} “III. THE TRIAL COURT ORDER APPROVING THE APPLICATION FOR
GUARDIANSHIP OF J.W. AND P.W. WAS IN ERROR BECAUSE THERE EXISTED
LESS RESTRICTIVE ALTERNATIVES.”
I
{¶27} Appellants Echo Brown and P.W.,1 in their first assignment of error, argue
that the trial court erred by approving the Application for Guardianship of appellant P.W.
because the same did not comply with the mandates set forth in R.C. 2111.02.
{¶28} R.C. 2111.02 states, in relevant part, as follows: “(C) Prior to the
appointment of a guardian or limited guardian under division (A) or (B)(1) of this section,
the court shall conduct a hearing on the matter of the appointment. The hearing shall be
conducted in accordance with all of the following: …
{¶29} “(3) If the hearing concerns the appointment of a guardian or limited
guardian for an alleged incompetent, the burden of proving incompetency shall be by
clear and convincing evidence;…
1
Due to the Suggestion of Death of J.W. that was filed with this Court on April 25, 2011, the assignments
shall be addressed in relation to appellants P.W. and Echo Brown only.
Fairfield County App. Case Nos. 11-CA-2, 11-CA-3, 11-CA-4 and 11-CA-5 9
{¶30} “(7) If the hearing concerns the appointment of a guardian or limited
guardian for an alleged incompetent, the alleged incompetent has all of the following
rights:
{¶31} “(a) The right to be represented by independent counsel of the alleged
incompetent's choice;
{¶32} “(b) The right to have a friend or family member of the alleged
incompetent's choice present;
{¶33} “(c) The right to have evidence of an independent expert evaluation
introduced;
{¶34} “(d) If the alleged incompetent is indigent, upon the alleged incompetent's
request:
{¶35} “(i) The right to have counsel and an independent expert evaluator
appointed at court expense;
{¶36} “(ii) If the guardianship, limited guardianship, or standby guardianship
decision is appealed, the right to have counsel appointed and necessary transcripts for
appeal prepared at court expense.”
{¶37} Appellants specifically maintain, in part, that appellant P.W. was denied
her right to be represented by independent counsel of her choice at the November 29,
2010, oral hearing. As is stated above, appellants P.W., on November 10, 2010, filed
letter asking that she be provided with legal representation in order to contest Jeffrey
Feyko’s Application for Guardianship. In a letter to the court filed on November 19,
2010, Charlene Miller, the court investigator, indicated that she explained to appellant
P.W. that she was not indigent, that the trial court could not appoint her counsel and
Fairfield County App. Case Nos. 11-CA-2, 11-CA-3, 11-CA-4 and 11-CA-5 10
that she would need to seek counsel on her own. Miller, in her letter, further indicated
that appellant P.W. was “shocked and upset” and indicated that she never wrote to the
court requesting an attorney, although she admitted the letter contained their
signatures.
{¶38} We note that, under R.C. 2111.02(C)(7)(a), the alleged incompetent is
afforded the right to be represented by independent counsel of his or her choice. At the
hearing on November 29, 2010, appellant P.W., who previously had filed a written
request for counsel with the trial court, was unrepresented by counsel, and was not
advised of her right to be represented by independent counsel. No inquiry was made
into either her desire to obtain counsel or her financial ability to do so. Based on the fact
that, despite her written request for counsel, she later indicated to Charlene Miller that
she had never requested an attorney, the trial court should have inquired into such
matter to ensure that appellant P.W. was not confused as to her rights. We note that
there is no indication that appellant P.W. waived her right to counsel. In contrast, see In
the Matter of Furgione (Nov. 2, 1995), Cuyahoga App. No. 67715, 1995 WL 643709. In
such case, the alleged incompetent waived his right to counsel in open court and there
was no evidence that he was unable to make an intelligent waiver of his right to
counsel.
{¶39} Based on the foregoing, appellants’ first assignment of error is sustained.
Fairfield County App. Case Nos. 11-CA-2, 11-CA-3, 11-CA-4 and 11-CA-5 11
II, III
{¶40} Appellants, in their second and third assignments of error, argue that the
trial court erred in approving Feyko’s Application for Guardianship of appellant P.W.
when there was not clear and convincing evidence of her incompetence and where
there existed less restrictive alternatives.
{¶41} Based on our disposition of appellants’ first assignment of error,
appellants’ second and third assignments of error are moot.
{¶42} Accordingly, the judgment of the Fairfield County, Probate Division, is
reversed and this matter is remanded for further proceedings.
By: Edwards, J.
Farmer, J. concurs
Hoffman, P.J. dissents
______________________________
______________________________
______________________________
JUDGES
JAE/d0729
Fairfield County App. Case Nos. 11-CA-2, 11-CA-3, 11-CA-4 and 11-CA-5 12
Hoffman, P.J., dissenting
(¶43) I respectfully dissent from the majority opinion.
(¶44) There is no record evidence to demonstrate P.W. was indigent. The
court’s investigator Charlene Miller explained to P.W. she was ineligible for appointed
counsel. Appellee argues the applications for appointment by both Feyko and Brown
indicate sufficient assets to render P.W. ineligible. Notably P.W. offers no rebuttal to
this argument in her reply brief to this Court.
(¶45) Given the fact P.W. did not contest the appointment of a guardian but
merely desired Echo Brown be selected, and given the fact Echo Brown was
represented by counsel at the hearing, I find P.W.’s interests were adequately
protected. There is no affirmative record indication of the denial of the right to counsel
nor did P.W. request a continuance to secure counsel.
(¶46) I would overrule Appellant’s first assignment of error.
________________________________
HON. WILLIAM B. HOFFMAN
[Cite as In re J.W., 2011-Ohio-5191.]
IN THE COURT OF APPEALS FOR FAIRFIELD COUNTY, OHIO
FIFTH APPELLATE DISTRICT
IN THE MATTER OF: :
:
J.W. AND P.W. :
:
:
: JUDGMENT ENTRY
:
:
:
: CASE NOS. 11-CA-2, 11-CA-3,
11-CA-4 AND 11-CA-5
For the reasons stated in our accompanying Memorandum-Opinion on file, the
judgment of the Fairfield County Court of Common Pleas, Probate Division, is reversed
and remanded to the trial court for further proceedings. Costs assessed to Jeffrey
Feyko.
_________________________________
_________________________________
_________________________________
JUDGES