In re Guardianship of Markle

[Cite as In re Guardianship of Markle, 2023-Ohio-1271.]
COURT OF APPEALS
TUSCARAWAS COUNTY, OHIO
FIFTH APPELLATE DISTRICT
IN THE MATTER OF JUDGES:
Hon. W. Scott Gwin, P.J.
THE GUARDIANSHIP OF Hon. John W. Wise, J.
Hon. Andrew J. King, J.
JOHN K. MARKLE
Case No. 2022 AP 07 0019
Respondent-Appellant
OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas,
Probate Division, Case No. 2018 GD 16815
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: April 18, 2023
APPEARANCES:
For Appellee For Appellant
KRISTINE W. BEARD MARK A. PERLAKY
125 East High Avenue 120 N. Broadway
New Philadelphia, Ohio 44663 New Philadelphia, Ohio 44663
Guardian ad Litem
PAUL HERVEY
4700 Dressler Avenue, NW
Canton, Ohio 44718
Tuscarawas County, Case No. 2022 AP 07 0019 2
Wise, J.
{¶1} Appellant, John K. Markle, appeals from the July 6, 2022, Judgment Entry
by the Tuscarawas County Court of Common Pleas. Appellee is the Tuscarawas County
Probate Court. The relevant facts leading to this appeal are as follows.
STATEMENT OF THE FACTS AND CASE
{¶2} In 2012, Appellant was committed to inpatient treatment by the Summit
County Probate Court. Appellant was described as acutely psychotic, unable to adhere
to outpatient treatment, out of touch with reality, exhibiting poor insight and judgment, and
a substantial risk of harm to himself and others. Later in 2012, he stabilized and was
discharged.
{¶3} In 2015, an application for guardianship was filed in Tuscarawas County.
Appellant was institutionalized after a psychotic break. The request for guardianship was
granted.
{¶4} Appellant was detained at Heartland. Appellant had a long history of
delusions and hallucinations including delusions of being a wizard with magical powers.
While at Heartland, Appellant followed through with his medication and stabilized. On
December 12, 2016, Appellant’s guardianship was terminated.
{¶5} In 2018, Appellant had another psychotic break. He attempted suicide
multiple times by attempting to hang himself and jump in front of a moving vehicle.
Appellant’s parents filed an application for emergency guardianship. Instead of
medication, Appellant had been taking herbs to treat his mental health. He had to be given
forced injections of his medicine to treat his schizophrenia. He remained non-compliant
through November of 2018.
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{¶6} On April 11, 2019, an expert completed an evaluation of Appellant. The
evaluation found Appellant had poor insight and was not complying with treatment.
{¶7} On April 23, 2019, Appellant convinced the court to allow him to return to
independent living.
{¶8} By May of 2019, Appellant was being exploited by transient friends he
allowed to live in his apartment. His home was infested with cockroaches and bedbugs,
and he was about to be evicted. Appellant again refused to take medication. Appellant
was then admitted to Sprenger Health Center.
{¶9} Appellant has since filed several motions to terminate his guardianship. The
requests were denied and Appellant remained at Sprenger.
{¶10} On February 14, 2022, Dr. Royak conducted a competency evaluation of
Appellant. Dr. Royak found Appellant was competent and no longer needed to be under
the court’s guardianship.
{¶11} On February 15, 2022, Appellant filed his annual report, a statement of
expert evaluation, a supplemental guardian report, and a letter mailed by the guardian to
Appellant.
{¶12} On March 9, 2022, the trial court held a termination of guardianship hearing
before a magistrate.
{¶13} At the hearing, Appellant’s guardian pointed out that Appellant was doing
well, and the evaluating doctor indicated the guardianship was no longer necessary. The
trial court expressed its concern about terminating the guardianship, that Appellant would
stop taking his medication. The trial court also noted that no expert report was admitted
into evidence recommending the guardianship continue.
Tuscarawas County, Case No. 2022 AP 07 0019 4
{¶14} Dr. Royak testified that at the time of his evaluation, Appellant could look
after himself and manage his day-to-day affairs. Dr. Royak believed Appellant was
competent when he performed the evaluation.
{¶15} Appellant then testified that he lived at Sprenger Healthcare for the past
year. He understood his diagnosis as schizophrenia and bipolar disorder, but could only
name some of the medications he was taking. His guardian and an employee from
Sprenger provided information about the rest of his medication.
{¶16} Appellant expressed his interest in the guardianship ending. He noted he
wanted to be freer, to come and go when he wanted and not be locked into the facility.
He wished to see his friends more, but would not be returning to New Philadelphia where
he had trouble with some friends. He disclosed his income and expenses for each month.
He wished to finish schooling and indicated that he was well enough to get back on his
feet.
{¶17} Next, Appellant’s parents testified that Appellant was looking and acting
better than he ever had previously. They see him more often and know he is currently
safe as he is. His mother is worried that it would be unsafe for Appellant to live in the
Canton area, and that he would return to his past activities which resulted in multiple
hospitalizations.
{¶18} On March 14, 2022, the Magistrate issued a decision recommending that
the guardianship of Appellant continue indefinitely.
{¶19} On March 25, 2022, Appellant filed an Objection to the Magistrate’s
Decision.
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{¶20} On June 27, 2022, the trial court held an objection hearing. At the objection
hearing, Dr. Royak testified again. He said in February of 2022 during their meeting,
Appellant was competent and could look after himself. He said he could not opine upon
Appellant’s current state.
{¶21} On July 6, 2022, the trial court overruled Appellant’s Objection to the
Magistrate’s Decision.
ASSIGNMENTS OF ERROR
{¶22} Appellant filed a notice of appeal and herein raises the following Assignment
of Error:
{¶23} “I. THE TRIAL COURT ERRED IN DENYING TERMINATION OF THE
APPELLANT’S GUARDIANSHIP OF HIS PERSON AND ESTATE.”
I.
{¶24} Appellant argues the trial court erred in denying Appellant’s request to
terminate his court-ordered guardianship. We disagree.
{¶25} Ohio law presumes that once an individual is found to be incompetent, he
or she remains incompetent, but this presumption is rebuttable. In re Guardianship of
Pinkney 8th Dist. Cuyahoga No. 102577, 2015-Ohio-2709, ¶8, citing In re Guardianship
of Michael, 10th Dist. Franklin No. 07AP-264, 2007-Ohio-5967.
{¶26} A guardianship must be terminated upon “satisfactory proof” that the
necessity for the guardianship no longer exists. R.C. §2111.47. “Satisfactory proof” to
rebut the presumption of continued incompetence has been offered as that which “causes
the presumption to disappear,” or “counterbalances the presumption,” or “leaves the case
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in equipoise.” Michael at ¶6, quoting In re Guardianship of Breece, 173 Ohio St. 542, 184
N.E.2d 386 (1962).
{¶27} As an appellate court we neither weigh the evidence nor judge the credibility
of the witnesses. Our role is to determine whether there is relevant, competent, and
credible evidence upon which the fact-finder could base its judgment. Cross Truck Equip.
Co. v. Joseph A. Jeffries Co., 5th Dist. Stark No. CA5758, 1982 WL 2911 (February 10,
1982). Accordingly, judgments supported by some competent, credible evidence going to
all essential elements of the case will not be reversed as being against the manifest
weight of the evidence. C.E. Morris Co. v. Foley Const. Co., 54 Ohio St.2d 279, 376
N.E.2d 578 (1978).
{¶28} On a review for manifest weight, the standard in a civil case is identical to
the standard in a criminal case: A reviewing court is to examine the entire record, weigh
the evidence and all reasonable inferences, consider the credibility of witnesses and
determine “whether in resolving conflicts in the evidence, the jury [or finder of fact] clearly
lost its way and created such a manifest miscarriage of justice that the conviction
[decision] must be reversed and a new trial ordered.” State v. Martin, 20 Ohio App.3d
172, 175, 485 N.E.2d 717 (1st Dist.1983). See also, State v. Thompkins, 78 Ohio St.3d
380, 1997-Ohio-52, 678 N.E.2d 541; Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-
2179, 972 N.E.2d 517.
{¶29} In weighing evidence, we are always mindful of the presumption in favor of
the trial court’s factual findings. Eastley at ¶21. “If the evidence is susceptible of more
than one construction, the reviewing court is bound to give it that interpretation which is
consistent with the verdict and judgment, most favorable to sustaining the verdict and
Tuscarawas County, Case No. 2022 AP 07 0019 7
judgment.” Eastley at ¶21, quoting Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d
77, 80, 461 N.E.2d 1273 (1984). Therefore, an appellate court will defer to the finder of
fact on issues of weight and credibility of evidence, as long as a rational basis exists in
the record for its decision. State v. Ricer, 5th Dist. Ashland No. 17-COA-023, 2018-Ohio-
426, 106 N.E.3d 819, ¶12.
{¶30} In support of the termination of guardianship, Appellant argues the facts in
In re Bolander, 88 Ohio App.3d 498, 504, 624 N.E.2d 322, 325 (11th Dist.1993) are very
close to the facts of this case. In Bolander, a woman filed for termination of her
guardianship. The trial court did not grant the termination of guardianship, and Bolander
appealed. Bolander submitted an expert report based upon two meetings. The report
found that Bolander had no impairments in intellectual functioning of sufficient severity to
warrant a diagnosis of dementia, and that she had sufficient mental capabilities to handle
her day-to-day affairs. No other evidence was submitted. The Eleventh District Court of
Appeals found the trial court had erred in denying the guardianship’s termination, as the
only evidence presented was an expert report, based upon multiple meetings, disputing
the diagnosis and finding Bolander was capable of managing her day-to-day affairs.
{¶31} In contrast to Bolander, the Twelfth District Court of Appeals found in In
Matter of Guardianship of Smead, 12th Dist. Warren No. CA96-07-067, 1997 WL 50144,
that the trial court did not err in refusing to terminate the guardianship in May of 1996. At
the termination hearing, Smead produced an expert report stating that she was competent
in December of 1995 when examined one time. The expert said he no longer knew of
Smead’s present condition. However, the Twelfth District noted this report was only one
Tuscarawas County, Case No. 2022 AP 07 0019 8
factor the trial court considered at hearing in May of 1995 when they affirmed the trial
court’s decision not to terminate Smead’s guardianship.
{¶32} Similar to Smead, in the case sub judice, Appellant submitted the testimony
of Dr. Royak, whom after one meeting determined Appellant was capable of managing
his finances and property, his condition had stabilized, and that the guardianship should
be terminated. However, four months later, Dr. Royak stated he was unable to provide a
definitive answer on Appellant’s current state, only his opinion as to the February 14,
2022, meeting. Dr. Royak could not recall details from the meeting, how long he met with
Appellant, or where he met with Appellant. The trial court found Dr. Royak’s testimony not
to be persuasive.
{¶33} Also, the trial court noted Appellant has a lengthy history of guardianships,
releases and relapses. While on the stand Appellant was unable to tell the court all of the
medications he had to take and dosages. He had to ask assistance from his guardian and
an employee of Sprenger Healthcare. Appellant did not have an accurate accounting of
cost of living as his plan was to make $800 a month, spend $400 on rent and $70 on
internet. He did not know the costs of groceries, utilities, or home furnishings.
{¶34} Appellant’s parents also testified at trial in support of continued
guardianship. They said this is the best he has ever behaved. That under the court’s
supervision Appellant has been clean and compliant with medication. When not under a
guardianship, Appellant has frequently stopped medication, had psychological breaks,
and each time becomes more difficult for Appellant to accept treatment.
{¶35} Therefore, upon review of the entire record, we conclude the trial court did
not clearly lose its way and create such a manifest miscarriage of justice that the decision
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must be reversed. The trial court’s determination that Appellant requires a guardian is not
against the manifest weight of the evidence.
{¶36} Accordingly, Appellant’s sole Assignment of Error is overruled.
{¶37} For the foregoing reasons, the judgment of the Court of Common Pleas,
Probate Division, Tuscarawas County, Ohio, is hereby affirmed.
By: Wise, J.
Gwin, P. J., concurs.
King, J., dissents.
JWW/br 0404
Tuscarawas County, Case No. 2022 AP 07 0019 10
King, J., dissents,
{¶ 38} I respectfully dissent from the majority's opinion to uphold the probate
court's decision to continue the guardianship. I do not believe the possibility that a ward
may return to incompetency is sufficient to overcome all the evidence here that the ward
is presently competent. Therefore, the probate court erred by not terminating the
guardianship.
{¶ 39} Before getting to the merits, there is a potential question whether the
probate court's appearance as appellee was appropriate here. Not only was the probate
court a non-party below, but it now assumes a directly adversarial position to the ward.
This invites question of whether this is appropriate under the appellate rules and R.C.
Chapter 2111. For example, there are issues of how R.C. 2111.01 and R.C. 2111.50
should be interpreted together whenever the probate court acts as the "superior
guardian," and whether that authority includes appearing as a party. This action also leads
to question whether the trial court can continue to act as a neutral non-party after
assuming an adversarial position. But the appellant did not raise this issue so this court
appropriately did not address it.
{¶ 40} As set forth in the majority opinion, once a ward has been found
incompetent, there is a presumption the incompetency remains. But the Supreme Court
of Ohio has noted this presumption disappears when evidence equal to or greater than
that presumption is presented. In re Guardianship of Breece, 173 Ohio St. 542, 555, 184
N.E.2d (1962). Because both the quantity and quality of evidence presented are sufficient
to overcome that presumption, the analysis here revolves around whether, under R.C.
Tuscarawas County, Case No. 2022 AP 07 0019 11
2111.47, appellant presented "satisfactory proof that the necessity for the guardianship
no longer exists[.]" I believe that evidence was indeed produced.
{¶ 41} First, the only expert here testified the ward was no longer incompetent;
there is no contrary expert testimony. Regarding the probate court's evaluation of the
expert testimony, the probate court appeared to discount that conclusion because largely
Dr. Royak's memory had dimmed in the four months since his evaluation of Markle. The
probate court's delay in scheduling the hearing to receive the expert's testimony cannot
be used to create a credibility issue adverse to the ward.
{¶ 42} Moreover, the probate court appeared to additionally discount Dr. Royak's
testimony because he could not speak to the ward's present state because, again, the
hearing was held four months after his evaluation. In both cases, the delay between the
evaluation and the hearing was held against the ward. Yet, the ward had no ability to
expedite the hearing. In my view, the basis for finding Dr. Royak not credible was
artificially created and not truly substantive. Accordingly, it was improper to discount his
testimony.
{¶ 43} Second, the guardian, like Dr. Royak, recommended that the guardianship
be terminated. The guardian also informed the court that Markle was doing fantastic.
Further, the majority opinion notes Markle's parents stated this is the best he has ever
behaved. The sum of the witness testimony supported the conclusion that guardianship
was no longer necessary. In the absence of contrary evidence about the ward's present
state, this ordinarily represents satisfactory proof under R.C. 2111.47.
Tuscarawas County, Case No. 2022 AP 07 0019 12
{¶ 44} In opposition to all this evidence that the guardianship of Markle was no
longer necessary, was the probate court's observation about Markle's repeated failures
to live independently. The probate court states this as follows:
The pattern is consistent: John gets hospitalized or institutionalized,
he gets proper nutrition and most importantly his proper medications, and
he 'gets better.' He then is released, he stops taking his medications and
falls back into manic/psychotic behaviors, which often result in criminal
charges being filed against him. Contemporaneously, his housing situations
quickly spiral downward, becoming filthy and unsafe, even when home
health aides are hired to assist.
{¶ 45} It is noteworthy the probate court acknowledges that Markle 'gets better'
with medication and proper nutrition. Whenever Markle got 'better' the prior guardianships
were terminated, but not this time. So, in essence, the probate court continued the
guardianship here to ensure compliance with his prescribed diet and medications. In my
view, this reason alone is insufficient to continue the guardianship here.
{¶ 46} Understandably, the probate court was concerned ending the fourth
guardianship will inevitably lead to a fifth guardianship. But it remains speculation that
those situations will repeat themselves, let alone that Markle will cease taking his
medications. Aside from his past failures, the only apparent evidence that Markle will fail
to sustain his medication regime was that he could not recall the names of his medications
or his dosages. This by itself is not unusual for people taking many medications, and it
Tuscarawas County, Case No. 2022 AP 07 0019 13
certainly does not indicate he will cease taking them. In my view, there needed to be
evidence that presently, Markle cannot sustain his medication regime which will result in
the symptoms returning that made the guardianship necessary to begin with.
{¶ 47} Moreover, I question whether the facts before us support a finding that
Markle is presently incompetent as defined by R.C. 2111.01. So, if this were a
determination in the first instance, I doubt there is clear and convincing evidence under
the present circumstances here to impose a guardianship under R.C. 2111.02. This is
because the sole reason for guardianship ultimately returns to speculation about future
noncompliance and thus future incompetency. Even assuming the General Assembly
intended the standard for continuing the guardianship be lower than imposing it initially, I
conclude Markle met the standard under R.C. 2111.47 to terminate it.
{¶ 48} I think it is also important to note the reasoning here, employed against the
facts presented, likely results in the guardianship never being terminated. This is contrary
to the scheme established by the General Assembly. In situations like this, where
medication can seemingly restore an individual to competency, the legislature plainly
provided a way for the guardianship to terminate. The facts here support a finding that
Markle has returned to competency. When those facts exist, the language of the statute
is mandatory in effect, i.e., the probate court shall terminate guardianship in such a case.
Tuscarawas County, Case No. 2022 AP 07 0019 14
{¶ 49} Reading a "three strikes and you're out" rule into this statutory scheme is
beyond the authority of the judiciary and I therefore dissent.