[Cite as In re Guardianship of Carpenter, 2016-Ohio-3389.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
MARION COUNTY
IN RE: THE GUARDIANSHIP OF: CASE NO. 9-15-34
EDEMA JODENE CARPENTER.
[EDEMA JODENE CARPENTER - OPINION
APPELLANT].
Appeal from Marion County Common Pleas Court
Probate Division
Trial Court No. 12-GDN-0035
Judgment Reversed
Date of Decision: June 13, 2016
APPEARANCES:
Brian C. Cook for Appellant
Kevin P. Collins for Appellee, Maria L. Hypes
Brent W. Yager for Appellee, Marion County Prosecutor
Case No. 9-15-34
WILLAMOWSKI, J.
{¶1} Ward-appellant E. Jodene Carpenter (“Carpenter”) brings this appeal
from the judgment of the Court of Common Pleas of Marion County, Probate
Division, denying her motion to be represented by independent counsel of her
choice for the purpose of challenging the guardianship and denying her motion to
be present at a hearing regarding a motion to restrict who may visit her. The
motions were opposed by the Guardian, Maria Lisa Hypes (“Hypes”), who had
filed the motion to restrict Carpenter’s visitors. For the reasons set forth below,
the judgments are reversed.
{¶2} On January 9, 2013, the trial court found Carpenter to be incompetent
and appointed Hypes to be her guardian. Doc. 15. On July 14, 2015, Carpenter
personally signed a motion for authorization to be represented by independent
counsel for the purpose of evaluating the continued necessity of the guardianship
or to introduce a less restrictive alternative to the guardianship. Doc. 80. The
motion specified that she wished to be represented by Brian C. Cook (“Cook”) and
requested authority to sign an engagement letter or, in the alternative, to have the
guardian sign the engagement letter. Id. The motion indicated that Carpenter was
not indigent and was not requesting court-appointed counsel. Id. A copy of an
unsigned engagement letter was attached as an exhibit to the motion. Id.
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{¶3} A hearing was held on the motion on July 21, 2015. At the hearing, it
was indicated that Cook and Hypes were present, but Carpenter was not present
and received no personal notification of the hearing. Doc. 82 and 113. Although
both Cook and Hypes spoke at the hearing, no testimony was given and no
evidence was presented. Cook indicated that he was contacted by Carpenter’s
daughter and brother asking him to speak with Carpenter because Carpenter
wished to terminate the guardianship, or at least alter the terms of the
guardianship. Tr. 2-4. Cook spoke with Carpenter with his law partner present
and determined that in his opinion, Carpenter wished to terminate the
guardianship, so he contacted Hypes to request that he be permitted to review the
file. Tr. 3-5. The trial court stated as follows at the hearing.
I don’t disagree that [Carpenter] has the right to independent
counsel. I have a difficulty with the method in which this was
done. You have also usurped the authority of the guardian and
the Court who’s the superior guardian for Miss Carpenter. This
Court has determined that she is incompetent. If you want to
have a review, you should have contacted Miss Hypes regarding
this. She may have cooperated with you in having you look at
the file.
Tr. 6. Hypes then stated that she thought the motion was nothing more than an
interference with the guardianship and that she did not wish Cook to speak with
Carpenter. Tr. 7. Hypes also indicated that in her opinion, it was Carpenter’s
daughter who influenced Carpenter to seek the end of the guardianship, not
Carpenter. Tr. 8. The trial court specifically stated that Cook did not represent
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Carpenter at the hearing. Tr. 17. The trial court indicated that it did need to speak
to Carpenter, but the record does not indicate that such a visit occurred prior to the
ruling by the trial court. Tr. 20.
{¶4} On August 3, 2015, a motion signed by Carpenter was filed requesting
again that she be represented by Cook and be permitted to attend a hearing that
Hypes had requested to restrict Carpenter’s visits with her daughter. Doc. 92. The
trial court held a hearing on August 6, 2015, concerning Hypes’ request for the
daughter to only have supervised visits. Doc. 95. Carpenter was not at the
hearing. Id. On August 13, 2015, the trial court granted the motion for supervised
visits. Doc. 95. The trial court on that same day denied Carpenter’s request to be
represented by Cook. Doc. 96. Carpenter appeals from these judgments and
raises the following assignments of error on appeal.1
First Assignment of Error
The probate court erred when it denied Carpenter’s motion to
hire independent counsel of her choice for purposes relating to
guardianship review and termination because a ward has such a
right under the Ohio Revised Code.
Second Assignment of Error
The probate court’s decision to proceed with a hearing on
Carpenter’s motion to hire independent counsel of her choice
without giving notice to Carpenter and without her attendance
violated her right to due process of law as guaranteed by the
Fourteenth Amendment of the United States Constitution and
Article 1, Section 16, of the Ohio Constitution.
1
Two separate notices of appeal were filed, one for each judgment entry. Doc. 146 and 149.
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Third Assignment of Error
The probate court’s decision to proceed with a hearing on a
motion by [Hypes] to restrict Carpenter’s access to her family,
without providing for Carpenter’s attendance, participation,
and/or legal representation after she filed a motion requesting to
attend, participate and have legal representation, violated her
right to due process of the law as guaranteed by the Fourteenth
Amendment of the United States Constitution and Article 1,
Section 16, of the Ohio Constitution.
In the interest of clarity, we will address the assignments of error out of order.
{¶5} Carpenter claims in the second assignment of error that the trial court
erred in holding a hearing on her motion without providing her notice of the
hearing or allowing her to attend the hearing. Carpenter’s initial motion requested
that she be permitted to hire independent counsel of her choice for the purpose of
either challenging the need to continue the guardianship or, in the alternative,
challenging the extent of the guardianship. Pursuant to statute, at any time after
the expiration of one hundred twenty days from the date of the original
appointment of the guardian, a ward, the ward’s attorney, or any other interested
party may request a review of the guardianship. R.C. 2111.49(C). The statute
also requires that if such a motion is filed, a hearing shall be held in accordance
with R.C. 2111.02. Id. The very language of the statute implies that a ward may
have an independent attorney to challenge the guardianship. At a hearing
challenging the guardianship, there is no doubt that “R.C. 2111.49(C) expressly
incorporates the hearing requirements relating to original appointments of
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guardians to proceedings concerning the continued necessity of guardianships.”
State ex rel. McQueen v. Cuyhoga Cty. Court of Common Pleas, Probate Division,
135 Ohio St.3d 291, 2013-Ohio-65, 986 N.E.2d 925, ¶ 17. The hearing
requirements in a guardianship are set forth in R.C. 2111.02. If the hearing
concerns the appointment of a guardian for an alleged incompetent, the alleged
incompetent has all of the following rights.
(a) The right to be represented by independent counsel of the
alleged incompetent’s choice;
(b) The right to have a friend or family member of the alleged
incompetent’s choice present;
(c) The right to have evidence of an independent expert
evaluation introduced;
(d) If the alleged incompetent is indigent, upon the alleged
incompetent’s request:
(i) The right to have counsel and an independent expert
evaluator appointed at court expense;
(ii) If the guardianship * * * is appealed, the right to have
counsel appointed and necessary transcripts for appeal prepared
at court expense.
R.C. 2111.02(C)(7). Additionally, if a ward challenges the continuation of the
guardianship, the burden rests on the guardian to show by clear and convincing
evidence that the ward is incompetent. R.C. 2111.49(C).
{¶6} Although, R.C. 2111.49 does not specify that a ward needs to be given
notice of a hearing on a motion, R.C. 2111.47 specifically provides that a ward
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who has been deemed incompetent, as well as the guardian, must be given notice
prior to the termination of the guardianship. Since R.C. 2111.49(C) states that any
hearing on the continuation of the guardianship should comply with the
requirements of R.C. 2111.02, this would include the requirement that the alleged
incompetent/ward be given notice of the proceedings and be permitted to attend
the proceedings if practicable. R.C. 2111.04(A)(2)(a)(i). The appointment of a
guardian does not deprive a ward of their status as a party who is entitled to notice
of hearings because he or she still has an interest in the proceedings. In re
Guardianship of Richardson, 172 Ohio App.3d 410, 2007-Ohio-3462, 875 N.E.2d
129 (8th Dist.) (reversed in part on other grounds by In re Guardianship of
Richardson, 120 Ohio St.3d 438, 2008-Ohio-6696, 900 N.E.2d 174).
{¶7} In this case, the initial motion was filed by Carpenter. A review of the
record indicates that no notice of the hearing on Carpenter’s motion was given to
Carpenter. Although Hypes was given notice due to her status as guardian of
Carpenter, this is not sufficient notice to Carpenter in this case. Most guardianship
proceedings are not adversarial in nature. However, when the ward has indicated
that he or she would like independent counsel to challenge the necessity of
continuing the guardianship and the guardian objects, that is a clear indication that
the desires of the ward and the determination made by the guardian are adverse to
one another. Thus, the guardian cannot represent his or her own interest, as
guardian, in court and also represent the contrary wishes of the ward since they
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conflict. In that situation, it only stands to reason that the ward should be entitled
to appear on his or her own behalf and tell the trial court what his or her wishes
are.
{¶8} The trial court itself agreed that it would need to speak with the ward
personally to determine the ward’s wishes. The record contains no evidence that
the trial court ever spoke with the ward prior to ruling on the motion. The record
is also clear that the trial court did not consider Cook to be Carpenter’s attorney at
the hearing. Thus, the hearing was held on Carpenter’s motion without
Carpenter’s knowledge, without Carpenter’s presence, and with no one to protect
Carpenter’s interests. This is a clear denial of due process. Carpenter should have
received notice of the hearing on her motion and been allowed an opportunity to
be heard on her case. To hold otherwise would be to prevent any ward whose
guardian opposed the motion for independent counsel from having a meaningful
hearing before a trial court. For this reason, the second assignment of error is
sustained.
{¶9} In the first assignment of error, Carpenter claims that the trial court
erred by denying her motion for independent counsel of her choice. As stated
above, when a ward wishes to challenge a guardianship, he or she is entitled to
independent counsel of his or her choice. Carpenter has the money to pay for
counsel, so the determination of who that counsel should be is hers alone, not that
of the trial court. The trial court in this case determined that although Carpenter
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had the right to independent counsel, Cook should not be that counsel because he
spoke to the ward without the guardian’s knowledge. However, there is no
requirement that a ward has to have his or her choice of independent counsel
approved by the guardian.2 If that were the case, the counsel would not be the
choice of the ward, but the choice of the guardian. The statutes provide that a
ward has the right to independent counsel of his or her choice to challenge a
guardianship. See R.C. 2111.02 and 2111.49. The statute also provides that a
challenge to a guardianship may be filed by the ward’s attorney, thus implying that
a ward may have his or her own attorney even though he or she is incompetent.
As discussed above, the trial court took no steps to determine what the actual
wishes of Carpenter were, instead relying solely on the statements of Hypes as to
what her beliefs were regarding the situation. No evidence was actually presented
to the trial court regarding the motion. Instead, all that was presented were
statements of attorneys in argument as to what the decision of the trial court
should be. “The arguments of counsel in the role of advocate * * * are not
evidence, and lawyers in making those arguments are not witnesses.” Sneary v.
Baty, 3d Dist. Allen No. 1-96-13, 1996 WL 479579 (Aug. 14, 1996). Since there
was no evidence to support the judgment of the trial court in this matter, the trial
2
The only restriction is that the ward lacks authority to enter into a contract with the attorney, which would
prevent the attorney from collecting a fee for representation without approval from either the guardian or
the trial court. At the time Cook and Carpenter met to discuss his possible representation of her, she had no
restrictions on with whom she could visit. The mere indication at the hearing that Cook was contacted
initially by Carpenter’s daughter and brother on Carpenter’s behalf does not indicate that Cook acted in any
way inappropriately or unethically by agreeing to meet with Carpenter without the consent of the guardian.
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court abused its discretion in denying the motion for independent counsel of
Carpenter’s choosing. The first assignment of error is sustained.
{¶10} In the third assignment of error, Carpenter alleges that the trial court
erred by holding a hearing regarding Hypes’ motion to restrict her visitation with
her daughter without providing notice to Carpenter or requiring the attendance of
Carpenter after Carpenter filed a motion requesting such notice and permission to
attend the hearing. A review of the statutes indicates that there is no statutory
provision for a ward to challenge a decision of a guardian. See Revised Code
Chapter 2111. However, the Ohio Supreme Court requires trial courts to have
such a process.
The probate division of a court of common pleas that establishes
guardianships shall adopt local rules governing the
establishment of guardianships that do all of the following:
***
(B) Establish a process for submitting in electronic format or
hard copy comments and complaints regarding the performance
of guardians appointed by the court and for considering such
comments and complaints. The process shall include each of the
following:
(1) The designation of a person for accepting and considering
comments and complaints;
(2) A requirement that a copy of the submitted comment or
complaint be provided to the guardian who is the subject of the
comment or complaint;
(3) A requirement that the court give prompt consideration to
the comment or complaint and take appropriate action;
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(4) A requirement that the court maintain a record regarding
the nature and disposition of the comment or complaint;
(5) A requirement that the court notify the person making the
comment or complaint and the guardian of the disposition of the
comment or complaint.
Sup.R. 66.03. Local Rule 66.1 of the Marion County Probate Court provides that
a ward may appear before the court. Even after a finding of incompetency, a ward
continues to have certain rights. Among these rights are the rights to have her
personal opinions considered, to speak privately with an attorney or another
advocate, to petition the court to modify a guardianship, and to bring a grievance
against the guardian. Ohio Guardianship Guide, by the Ohio Attorney General,12-
14. Additionally, in a proceeding in which the guardian and the ward appear to
have adverse interests, “the court shall appoint a guardian ad litem” to represent
the ward. R.C. 2111.23.
{¶11} Here, Carpenter filed a motion stating her objections to the
guardian’s motion to restrict her visitors. Carpenter’s motion indicated that she
wished to be present and participate in the hearing on the matter. By local rule,
the ward has a right to be present at court proceedings. However, no notice of the
hearing date was sent to Carpenter, even after she requested such notice. No
notice of the hearing date was sent to Cook, even though the motion indicated that
Carpenter wished him to represent her at the hearing. No guardian ad litem was
appointed for Carpenter, even though the motion indicated that Carpenter’s wishes
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were adverse to those of Hypes. The entry granting Hypes’ motion indicated that
neither Carpenter nor an independent representative for Carpenter was present to
argue Carpenter’s position. Although there is no statutory mechanism for
Carpenter’s objections to Hypes’ actions, the superintendence rules do require the
trial court to have a mechanism for such a challenge. There is nothing in the
record to indicate that Carpenter’s stated interests were given any consideration by
the trial court. The trial court has a responsibility to consider the wishes of the
ward, yet the record contains no indication that the trial court spoke with
Carpenter prior to entering a ruling. The trial court also failed to abide by its own
rule providing a ward with the right to appear at the hearing. Therefore, Carpenter
was denied her due process and the third assignment of error is sustained.
{¶12} Having found error prejudicial to the appellant, the judgment of the
Marion County Court of Common Pleas, Probate Division is reversed and the
matter is remanded for further proceedings.
Judgment Reversed
And Remanded
PRESTON and ROGERS, J.J., concur.
/hls
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