In re B.E.V. ( 2019 )

[Cite as In re B.E.V., 2019-Ohio-3153.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY, OHIO
IN THE MATTER OF: B.E.V. : OPINION
:
CASE NO. 2019-L-020
:
Appeal from the Lake County Court of Common Pleas, Probate Division, Case No.
2010 GU 0085.
Judgments: Affirmed.
Terri L. Lamb, pro se, 36938 Stevens Boulevard, Willoughby, OH 44094 (Appellant).
Cari Dalessio Fonner, pro se, 29 East Shore Boulevard, Timberlake, OH 44095
(Appellee).
CYNTHIA WESTCOTT RICE, J.
{¶1} Appellant, Terri L. Lamb, the paternal grandmother of minor child B.E.V.
(D.O.B. August 4, 2005), appeals the Lake County Probate Court’s decision denying her
request to replace her daughter, Cari Dalessio (n.k.a Fonner), as guardian of B.E.V.
against guardian’s wishes, and the subsequently-denied motion for relief from judgment.
For the reasons set forth herein, the judgments of the Lake County Probate Court are
affirmed.
{¶2} When B.E.V. was about one year old, his father was sentenced to, and
began serving, a prison term of fifteen years to life. With his mother’s whereabouts
unknown, he began residing with his paternal grandmother, Ms. Lamb, who had rights
according to a Caretaker Authorization Affidavit filed with the Lake County Juvenile
Court. Following her graduation from college, B.E.V.’s paternal aunt, Ms. Fonner, was
appointed guardian on July 21, 2010 for an indefinite period of time. B.E.V. moved in
with Ms. Fonner, where he currently resides with her and her husband, Jasen Fonner.
B.E.V.’s father is not expected to be released from prison before B.E.V., now 13,
reaches the age of majority.
{¶3} Until recently, Ms. Lamb lived in an in-law suite at Ms. Fonner’s residence
and saw B.E.V. routinely. She has since purchased a home nearby with B.E.V.’s
father’s girlfriend. On September 20, 2018, Ms. Lamb filed an Application for
Appointment of (Successor) Guardian of Minor. Ms. Fonner opposed the change in
guardianship and the probate court held a hearing on November 8, 2018, to determine if
there was good cause to remove Ms. Fonner as guardian. B.E.V.’s father attended the
hearing via phone.
{¶4} At the close of the hearing, the court held an in-camera hearing with
B.E.V., in which he apparently expressed no issues with either the Guardian or the
Applicant. However, on November 29, 2018, apparently with the help of his school
guidance counselor, B.E.V. sent a letter to the court expressing that he was nervous
during the in-camera interview and that he wanted to live with his grandmother instead
of his aunt.
{¶5} Nevertheless, on December 18, 2018, the court denied Ms. Lamb’s
Application for Appointment of (Successor) Guardian of Minor, finding no “good cause”
to remove Ms. Fonner as guardian. Ms. Lamb filed a motion for relief from judgment,
which the court denied on February 5, 2019. Numerous guardian complaints have been
filed since, which have been resolved by the court.
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{¶6} Ms. Lamb now appeals the December 18, 2018 and February 5, 2019
judgments. We review both under an abuse of discretion standard. Matter of
Guardianship of Rosenberger, 11th Dist. Lake No. 2017-L-120, 2018-Ohio-3533, ¶13
(“The probate court’s decisions in guardianship proceedings are generally reviewed
under an abuse of discretion standard.”); In re Guardianship of Brunstetter, 11th Dist.
Trumbull No. 2002-T-0008, 2002-Ohio-6940, ¶12, citing Griffey v. Rajan, 33 Ohio St.3d
75 (1987) (“A ruling on a motion for relief from judgment is left to the sound discretion of
the trial court. The trial court’s decision will not be overturned on appeal absent an
abuse of that discretion.”). “The phrase ‘abuse of discretion’ is one of art, connoting
judgment exercised by a court which neither comports with reason nor the record.” In re
K.Q., 11th Dist. Ashtabula No. 2017-A-0060, 2018-Ohio-906, ¶14.
{¶7} Ms. Lamb sets forth three assignments of error for our review. We
address her second assignment of error first:
{¶8} The trial court erred and abused its discretion by failing to
determine that habitual drunkenness, drug abuse and child
endangerment are sufficient to constitution “good cause” for the
requested substitution of guardianship in this case.
{¶9} Under this assigned error, Ms. Lamb focuses primarily on the actions and
record of Mr. Fonner, pointing out he has five DUI convictions in the past 20 years, and
asserting that he is a drug addict. As Ms. Lamb correctly notes in her brief, however, in
evaluating whether “good cause” exists for removal, the primary focus is upon the
actions of the Guardian. “[W]hile the effect on the ward is certainly a consideration
under the ‘good cause’ standard, its primary focus is the actions of the guardian.” In re
Guardianship of Spangler, 11th Dist. Geauga Nos. 2007-G-2800, and 2007-G-2802,
2011-Ohio-6686, ¶62. “Thus, a guardian may be removed when proven to be
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exercising authority in a manner adverse, antagonistic, or hostile to the best interests of
the ward.” (Citations omitted.) Id., at ¶51. In this case, Ms. Fonner’s actions include
allowing Mr. Fonner to continue driving B.E.V. despite his record until the court ordered
he no longer drive B.E.V. at all.
{¶10} While Mr. Fonner’s history of DUIs is uncontroverted, only one of the
traffic records Ms. Lamb presents includes children as passengers; though Ms. Lamb
asserts there were other instances in which Mr. Fonner drove B.E.V. while under the
influence, no evidence was shown in support. The court, however, resolved this
concern by ordering that Mr. Fonner not drive B.E.V. anymore whatsoever, regardless
of alcohol consumption. With this issue resolved, we cannot say the court abused its
discretion in finding no good cause on these grounds to remove Ms. Fonner as
guardian.
{¶11} Ms. Lamb also asserts that Mr. Fonner is a drug addict and that Ms.
Fonner drives B.E.V. while she is intoxicated. Ms. Fonner disputes this, however, and
no evidence to support either assertion was presented at the hearing or on appeal. The
probate court, as trier of fact, had the benefit of hearing the witnesses testify firsthand.
“On the trial of a case, either civil or criminal, the weight to be given the evidence and
the credibility of the witnesses are primarily for the trier of the facts.” State v. DeHass,
10 Ohio St.2d 230 (1967). Without more, we cannot say the court abused its discretion
in apparently deciding Ms. Fonner’s actions were not adverse, antagonistic, or hostile to
the best interests of B.E.V.
{¶12} Ms. Lamb’s second assignment of error is without merit.
{¶13} Ms. Lamb’s first assignment of error states:
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{¶14} The trial court erred and abused it discretion by its reliance upon
erroneous determinations of fact that are contrary to the facts in the
record.
{¶15} R.C. 2111.46 governs the guardianship of minors, and states, in pertinent
part:
{¶16} When a guardian has been appointed for a minor before the minor
is over fourteen years of age, the guardian’s power shall continue
until the ward arrives at the age of majority, unless removed for
good cause or unless the ward selects another suitable guardian.
After the selection is made and approved by the probate court and
the person selected is appointed and qualified, the powers of the
former guardian shall cease.
{¶17} It is well established that “it is within the sound discretion of the trial court
to determine whether good cause exists to terminate a guardianship.” In re Termination
of Guardianship of Hendrickson, 152 Ohio App.3d 116, 2003-Ohio-1220, ¶11 (7th Dist.).
See also In Re Henry Arch, 8th Dist. Cuyahoga No. 45601, 1983 WL 3065, *4 (“The
decision as to whether good cause for removal was shown was within the sound
discretion of the trial court. It was the trier’s responsibility to weigh the evidence and
judge the credibility of the witnesses.”).
{¶18} Specifically, Ms. Lamb asserts that Ms. Fonner was appointed limited
Guardian, not unlimited Guardian for an indefinite period of time as the court stated in
its magistrate decision which was adopted in its entirety by the court. Ms. Lamb also
disputes that she moved out “due to family disagreements.” She states that it has
“always been her intention to obtain her own residence and to reinstate her caretaker
status of [B.E.V.].” Finally, Ms. Lamb also takes issues with the finding of the court that
a “change in guardians may not require a change in schools for the ward.” She points
to her testimony at the hearing stating unequivocally that no change in schools would be
necessary if B.E.V. were to reside with her. Ms. Fonner questioned the veracity of the
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statement. Ms. Lamb also argues that, in light of the letter B.E.V. wrote to the the court,
it erred in finding B.E.V. was “comfortable with both Guardian and Applicant, and has
expressed no issues to the Court with either of them.” Disagreeing, as she does, with
these factual findings, and noting Mr. Fonner’s DUI record and Ms. Fonner’s purported
drinking habits, Ms. Lamb asserts the court erred in finding no good cause existed to
remove her as guardian.
{¶19} First, the magistrate’s decision, which the court adopted in its entirety, and
the court’s 2010 judgment entry appointing Ms. Fonner as Guardian does not state
whether the appointment was limited or unlimited. However, the Letter of Guardianship
signed by the court contemporaneously with the judgment states Ms. Fonner’s guardian
powers are over the ward’s person only and “those guardianship powers, until revoked,
are for an indefinite time period.” Decidedly, the box indicating limitations on the
guardianship powers is left unmarked. Thus, we find no error with the court’s finding
that Ms. Fonner was appointed unlimited guardian for an indefinite period of time.
{¶20} Furthermore, even assuming that Ms. Lamb moved out without family
disputes, and that B.E.V. would decidedly not have to change schools, these point to
reasons why Ms. Lamb would be an appropriate guardian. But the standard is not
whether another individual would make an appropriate, or even better, guardian. The
standard, pursuant to R.C. 2111.46, is whether there is good cause to remove the
current guardian.
{¶21} As to the court’s finding that B.E.V. was “comfortable with both Guardian
and Applicant, and has expressed no issues to the Court with either of them,” B.E.V.’s
letter to the court does not convince us that this finding is untrue or has changed.
B.E.V.’s letter does not express issues with either one, but merely expresses a
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preference for living with Ms. Lamb. At the hearing, the court talked one on one with
B.E.V. in order to ascertain any issues or problems with Ms. Fonner or Ms. Lamb as
guardian. He expressed none during the in-camera interview, nor in his subsequent
letter. Thus, we do not find that the court abused its discretion.
{¶22} Thus, and in light of our discussion of the Fonner’s drinking habits under
the second assignment of error, Ms. Lamb’s first assignment of error is without merit.
{¶23} Ms. Lamb’s third assignment of error states:
{¶24} The trial court erred as a matter of law in failing to vacate the
current appointment of guardianship that was issued in direct
violation of Lake County Probate Court Rule 66.10(B).
{¶25} Lake County Probate Court Rule 66.10(B) states, in pertinent part:
{¶26} When proceedings for the appointment of a guardian of a minor are
presented to this Court, the following shall apply:
{¶27} * * *
{¶28} (B) The Court will not establish a guardianship solely for the
purpose of school enrollment.
{¶29} Ms. Lamb asserts that the appointment of Ms. Fonner as guardian was
entirely predicated on enrolling B.E.V. in the school district in which Ms. Fonner resided.
She asserts that Ms. Fonner was unable to name another reason for Ms. Fonner’s
appointment instead of Ms. Lamb’s appointment. At the hearing, however, Ms. Fonner
testified that while the school district was part of the reasoning, they also considered
Ms. Lamb’s age. From elsewhere in the record, it appears the parties also considered
that Ms. Lamb did not have her own residence at the time of the appointment.
{¶30} Moreover, the magistrate’s decision appointing Ms. Fonner as Guardian
shows the decision to appoint Ms. Fonner was approved by his family, including his
father and paternal grandmother. The decision states, in pertinent part, “[t]he family had
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decided that [Ms. Fonner] would be his guardian and care for him when she finished
college. She is now an R.N. employed with the Cleveland Clinic. * * * [Ms. Lamb] is in
agreement with her daughter’s appointment as guardian.” Thus, we do not find the
court erred in finding the appointment of Ms. Fonner as guardian was not based solely
on school enrollment.
{¶31} Furthermore, we note that vacating an appointment of guardian would not
automatically re-establish her as B.E.V.’s caretaker, as she asserts. The Caretaker
Authorization Affidavit itself states that caretaker status terminates, inter alia, when the
child ceases to live with the grandparent who signed the Affidavit. Thus, it was not the
appointment of Ms. Fonner as guardian that terminated Ms. Lamb’s caretaker status,
but that B.E.V. no longer lived with Ms. Lamb. Even if we were to find the probate court
erred in not vacating the appointment of guardian, which we do not, it would not
automatically restore Ms. Lamb to caretaker status.
{¶32} Ms. Lamb’s third assignment of error is without merit.
{¶33} For the reasons set forth herein, the judgments of the Lake County
Probate Court are affirmed.
MATT LYNCH, J.,
MARY JANE TRAPP, J.,
concur.
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