[Cite as Guardianship of Basista, 2015-Ohio-3730.]


                                   IN THE COURT OF APPEALS

                               ELEVENTH APPELLATE DISTRICT

                                     GEAUGA COUNTY, OHIO


GUARDIANSHIP OF NICOLE BASISTA                        :          OPINION

                                                      :
                                                                 CASE NO. 2015-G-0012




Civil Appeal from the Geauga County Court of Common Pleas, Probate Division.
Case No. 11 PG 000206.

Judgment: Reversed and remanded.


Suzanne M. Jambe, Terry M. Brennan, James A. Loeb, and Emily V. Myers, Baker &
Hostetler, LLP, PNC Center, 1900 East Ninth Street, Suite 3200, Cleveland, OH 44114-
3482 (For Appellant Ronald Basista).

Sandra A. Dray, Sandra A. Dray, Co., L.P.A., 1111 Mentor Avenue, Painesville, OH
44077 (For Appellee Marijana Glass).



TIMOTHY P. CANNON, P.J.

        {¶1}    Appellant, Ronald Basista, appeals the judgment of the Geauga County

Court of Common Pleas, Probate Division, granting appellee, Marijana Glass’, motion to

dismiss appellant’s application to establish visitation with their daughter, Nicole Basista.

Based on the following, we reverse and remand.

        {¶2}    Mr. Basista and Ms. Glass were married and have one child together,

Nicole, who suffers from Noonan’s Syndrome.1 In 2012 and 2013, the parties litigated


1. For a complete factual recitation, see In re Guardianship of Basista (Basista I), 11th Dist. Geauga No.
2013-G-3140, 2014-Ohio-1349.
the issue of Mr. Basista’s visitation with Nicole in the probate court, as Nicole is a ward

of the court.     In the prior action, Mr. Basista filed a motion to establish visitation.

Thereafter, Ms. Glass filed a motion to dismiss arguing there are no parental rights to

visitation with an incompetent adult and the probate court’s jurisdiction does not extend

to ordering visitation with an adult ward against the ward’s wishes. After conducting an

in-camera interview with Nicole, the magistrate recommended granting Ms. Glass’

motion to dismiss, stating that Nicole “was adamant that she does not want to spend

time with her father.” The magistrate found that “Nicole demonstrated during the in-

camera interview that she is capable, as an adult, of making her own choices and

having her own opinion.” The magistrate concluded:

                Nicole is an adult woman with a developmental disability who has
                the capacity and right to decide who she wants to spend time with.
                Currently, she does not want to spend time with her father.

                Ohio law makes it clear that Nicole has the right to be treated
                equally as a citizen under the law, and the right to choose with
                whom she wishes to communicate and spend time with.

      {¶3}      The trial court affirmed the decision of the magistrate, and Mr. Basista

appealed. In affirming the decision of the probate court, we reasoned:

                Here, Nicole is over the age of 18. The record demonstrates that
                Nicole does not wish to visit with her father, Mr. Basista. Although
                Nicole is the subject of guardianship, it does not necessarily
                establish that she cannot express her own wishes and desires.
                Indeed, Nicole, although suffering from a developmental disability,
                has the right to be treated equally as a citizen under the law. R.C.
                5123.62(N). Nicole has the ‘right to communicate freely with
                persons of [her] choice in any reasonable manner [she] chooses,’
                R.C. 5123.62(I), as well as ‘participate in decisions that affect [her]
                life.’ R.C. 5123.62(Q).

                ***




                                               2
             As the ‘superior guardian,’ the probate court is granted authority to
             address matters of visitation with wards of the court. The probate
             court, after conducting an interview, determined that Nicole, an
             adult woman with a developmental disability, is able to express her
             own wishes, to wit: she does not want to establish visitation with
             her father. The court found that Nicole had the ability to reason and
             the capacity to express her wishes, essentially finding that she was
             capable of determining what was in her own best interest.
             Therefore, the court did not require input from any other source.

             Mr. Basista objects to the court making this determination and
             ‘blocking [him] from acquiring and introducing evidence of any type
             in support of his Motion.’ This assigned error essentially claims he
             was not afforded his right to due process. However, before one can
             invoke the right to due process, there must be some recognized
             right to exercise. As previously stated, Mr. Basista has not provided
             us with any legal authority to support his argument that he has a
             right to visitation with Nicole, an adult woman. Consequently, it
             cannot be concluded that Mr. Basista was denied the due process
             protections that he seeks, i.e., the right to cross-examine the GAL
             and the right to present additional evidence.

             The situation may be different if the ward was unable or incapable
             of expressing his or her desire with regard to visitation or parenting
             time. However, there is nothing in the record to suggest that is the
             case. To the contrary, by appointment of an independent GAL, and
             by conducting an in camera interview with Nicole, the probate court
             took precautions to make sure she was capable of expressing her
             desire to the satisfaction of the court. Nothing requires the probate
             court to consider Mr. Basista’s assessment of Nicole’s capabilities.

Basista I, supra, ¶25-29 (emphasis sic.).

      {¶4}   After our decision in Basista I, Mr. Basista filed a subsequent motion to

establish visitation. In this motion, Mr. Basista maintained that since the denial of his

first motion to establish visitation, the following had occurred: (1) Nicole told

Chesterland Police Officer Allen Dodge that she “misses” her father, and (2) Nicole

moved to Texas with Ms. Glass. To this motion, Mr. Basista attached the affidavit of

Officer Dodge. Officer Dodge averred that he saw Nicole at a festival on May 24, 2013;

that Nicole informed Officer Dodge to tell her father “hello”; and that she “misses him.”



                                            3
Mr. Basista also filed a motion for an order appointing a guardian ad litem to investigate

Nicole’s situation and to order a psychologist to examine Nicole.

       {¶5}   Ms. Glass filed a motion to dismiss Mr. Basista’s motions. In granting Ms.

Glass’ motion to dismiss, the trial court found the following:

              As the Court of Appeals stated, Mr. Basista claimed in the previous
              matters that he ‘was not afforded his right to due process.’ But, the
              Court held, ‘before one can invoke the right to due process there
              must be some recognized right to exercise. * * * Mr. Basista has not
              provided us with any legal authority to support his argument that he
              has a right to visitation with Nicole, an adult woman.

              The Court finds that The Court of Appeals’ disposition of that issue
              is the law of the case. Mr. Basista has no legally cognizable right to
              visitation with Nicole. * * * As the Court of Appeals in the earlier
              proceedings noted, there is no legal authority for the proposition
              that lies at the heart of Mr. Basista’s case: that the Probate Court
              may order visitation with an adult ward. As a matter of law, Mr.
              Basista has no enforceable right to visitation with Nicole.

       {¶6}   Mr. Basista filed a timely notice of appeal and asserts the following

assignments of error:

              [1.] The trial court erred in holding that the March 31, 2014 decision
              of the Eleventh District Court of Appeals is dispositive of the issues
              Mr. Basista raised in his subsequent Motion to Establish Visitation
              with Nicole Basista and Motion and Application for Appointment of
              Guardian Ad Litem under the doctrine of law of the case.

              [2.] The trial court erred in denying Ronald Basista’s Motion to
              Establish Visitation with Nicole Basista without first investigating
              Nicole’s wishes regarding her relationship with her father, Mr.
              Basista.

              [3.] The trial court erred in denying Ronald Basista’s Motion and
              Application for Appointment of Guardian Ad Litem.

       {¶7}   Under his first assignment of error, Mr. Basista argues the law of the case

doctrine does not apply because this appeal involves a different evidentiary record

documenting Nicole’s wishes regarding her relationship with appellant. Conversely, Ms.



                                             4
Glass maintains that both the affidavit of Officer Dodge and the relocation of Nicole to

Texas is not new evidence as it was before the trial court in Mr. Basista’s motion to stay

execution of the judgment denying his prior application for visitation and his identical

request for stay filed in this court in Basista I. In fact, Ms. Glass points out that Mr.

Basista attached the same affidavit of Officer Dodge and again informed the trial court

of the relocation to Texas in his motion to establish visitation on December 9, 2014.

       {¶8}   In Nolan v. Nolan, 11 Ohio St.3d 1 (1984), the Supreme Court of Ohio

explained the “law of the case” doctrine, stating:

              [T]he doctrine provides that the decision of a reviewing court in a
              case remains the law of that case on the legal questions involved
              for all subsequent proceedings in the case at both the trial and
              reviewing levels. * * * The doctrine is considered to be a rule of
              practice rather than a binding rule of substantive law and will not be
              applied so as to achieve unjust results. * * * However, the rule is
              necessary to ensure consistency of results in a case, to avoid
              endless litigation by settling the issues, and to preserve the
              structure of superior and inferior courts as designed by the Ohio
              Constitution.

Id. at 3

       {¶9}   Accordingly, “where at a rehearing following remand a trial court is

confronted with substantially the same facts and issues as were involved in the prior

appeal, the court is bound to adhere to the appellate court’s determination of the

applicable law.” Id. In contrast, “when subsequent proceedings involve different legal

issues or different evidentiary records, the doctrine does not apply.” Johnson v. Morris,

108 Ohio App.3d 343, 349 (4th Dist.1995).

       {¶10} The law of the case doctrine is not applicable to the issue before the court

because the issue here is different from the issue in Basista I. In Basista I, Mr. Basista

was asserting a right to see Nicole in spite of her desire not to see him. Here, Mr.



                                             5
Basista is asserting that circumstances have changed, and Nicole has expressed a

desire to communicate with him and that Nicole “misse[d] him.”            The new request

purports essentially that Nicole wants to visit with her father and, therefore, it is in her

best interest to do so.

       {¶11} Because we find the law of the case doctrine inapplicable, Mr. Basista’s

first assignment of error is with merit.        Under his second assignment of error, Mr.

Basista maintains the trial court erred in not investigating Nicole’s wishes “in light of this

new evidence.”

       {¶12} In our previous case, we held Mr. Basista was not deprived of due process

because he had no right to visit Nicole. Basista I at ¶28. Nicole is an adult and had

previously expressed a desire not to see Mr. Basista. If she now, or sometime in the

future, wishes to visit Mr. Basista, and Mr. Basista is amenable to such visitation, they

may make such an arrangement.            Nothing in this opinion or our previous opinion

precludes these individuals from communicating whether they want to engage in some

form of visitation. Mr. Basista still has no right to visit Nicole if she does not want to see

him. The issue therefore is whether the trial court should have conducted a further

hearing to determine if Nicole’s desire to communicate with Mr. Basista has changed,

and if so, what is in Nicole’s best interest.

       {¶13} The probate court, as the “superior guardian,” is the ultimate arbiter of

whether it is in the best interest of a ward for an individual to have visitation. The

probate court acknowledged its role in the underlying judgment entry. In dismissing Mr.

Basista’s motion, it appears the court’s decision was based on the law of the case

doctrine, stating: “The Court finds and determines that Mr. Basista’s pending motion for




                                                6
visitation fails to state a claim for which the Court may grant relief.” It denied the

pending motion for visitation and for appointment of a guardian ad litem on that basis,

without any type of hearing. It is clear, however, if the trial court determined that Nicole

now wished to visit or communicate with her father and that it was in her best interest to

visit or communicate with him, it could have, within its discretion, held a hearing on the

issue and possibly issue an order allowing such visitation. In other words, if warranted,

it could have granted some relief.

       {¶14} In further support of his argument, Mr. Basista cites to In re Guardianship

of Flohr, 5th Dist. Ashland No. 2014CA00082, 2014-Ohio-5847, wherein the probate

court suspended all contact between an adult child and the ward until the adult child met

certain conditions.

       {¶15} In its opinion, the Fifth Appellate District distinguished Basista I, stating:

                 Appellee relies upon the [Eleventh] District Court of Appeals[’]
                 recent opinion in In re Basista[.] Therein, a father sought visitation
                 with his daughter, an adult ward. The [Eleventh] District found a
                 ward’s parent does not have an absolute right to visitation when the
                 ward is of majority age. * * * The ward in Basista expressly stated
                 she did not want to visit with her father. * * * We find Basista to be
                 distinguishable. The evidence in the instant action does not
                 establish the Ward did not want to see Appellant.

                 While we [agree] with [the adult child] * * * there is no clearly
                 established right of familial association of an adult child and his
                 parent, we, nonetheless, find [the adult child] has a clearly
                 established right to association with another consenting adult.

Id. at ¶18-19.

       {¶16} The court in Flohr then focused its analysis on whether the adult child was

afforded his right to due process prior to the probate court prohibiting his right to

associate with his father, the ward. In reversing and remanding the matter, the Fifth




                                               7
District determined the adult child was denied his right to due process as he was not

provided notice that the probate court’s hearing would include restricting his right to

associate with his father. Id. at ¶24.

       {¶17} Unlike the instant case, the probate court in Flohr denied the adult child’s

contact with his father without affording him procedural due process. As we recognized

in Basista I,

                [a]ppellate courts have * * * recognized the authority of the probate
                court to govern visitation between a ward of the court and a family
                member. See In the Matter of the Guardianship of McElhany, 9th
                Dist. Summit No. 18423, 1998 Ohio App. LEXIS 71 (Jan. 14, 1998)
                (affirming a probate court’s judgment that ordered restricted
                visitation between a ward and her sister); [In re Constable, 12th
                Dist. Clermont No. CA99-05-039, 2000 Ohio App. LEXIS 2467
                (June 12, 2000)] (affirming the probate court’s judgment that it was
                in the best interest of the ward to limit his father’s visitations and
                make such visitations supervised).

Basista I at ¶24. Nevertheless, “[t]his court’s research reveals no authority that grants a

ward’s parent an absolute right to visitation when the ward is of majority age.” Id.

       {¶18} As previously discussed, if Nicole, as an adult woman, truly desires to visit

Mr. Basista, nothing in this court’s previous or current analyses precludes her and Mr.

Basista from making such arrangements.

       {¶19} Because we find the trial court erred in applying the law of the case

doctrine, we find merit in appellant’s second assignment of error. Upon remand, the

probate court, within its discretion, could order a hearing on the issue of visitation based

on whether the trial court felt Mr. Basista presented sufficient evidence to establish that

Nicole’s desire to communicate with him has changed. If, upon remand, the trial court

does not determine Mr. Basista met this burden, the trial court is not required to hold an

evidentiary hearing, but may, in its discretion, do so.



                                              8
       {¶20} Mr. Basista’s second assignment of error is with merit to the extent

indicated.

       {¶21} Under his third assignment of error, Mr. Basista argues the trial court erred

in denying his motion and application for appointment of a guardian ad litem to

determine the wishes of Nicole with regard to visitation. Based on the analysis and

disposition under Mr. Basista’s first and second assignments of error, we find this

assignment of error to be moot. It will only need to be addressed in the event the trial

court, in its discretion, decides to have a further hearing on the motion for visitation.

       {¶22} Based on the opinion of this court, the judgment of the Geauga County

Court of Common Pleas, Probate Division, is hereby reversed and remanded for

proceedings consistent with this opinion.



CYNTHIA WESTCOTT RICE, J.,

THOMAS R. WRIGHT, J.,

concur.




                                              9
