[Cite as In re Guardianship of Hoffman, 2017-Ohio-8023.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                              MARION COUNTY




IN RE:                                                     CASE NO. 9-17-06

THE GUARDIANSHIP OF:
                                                           OPINION
       ELIZABETH H. HOFFMAN



                 Appeal from Marion County Common Pleas Court
                                 Probate Division
                           Trial Court No. 16-GDN-032

                                    Judgment Affirmed

                           Date of Decision: October 2, 2017



APPEARANCES:

        Todd A. Workman for Appellant

        M. Elizabeth Martindell for Appellee
Case No. 9-17-06


WILLAMOWSKI, J.

       {¶1} Respondent-appellant Elizabeth H. Hoffman (“Hoffman”) appeals the

judgment of the Probate Division of the Marion County Court of Common Pleas

that granted an emergency guardianship over her and named M. Elizabeth

Martindell as guardian. For the reasons set forth below, the judgment of the lower

court is affirmed.

                          Facts and Procedural History

       {¶2} In the summer of 2016, Hoffman fell inside her home and was unable

to get up. January 18 Hearing Tr. 12. She laid in her house for several days after

this fall until she was discovered. November 18 Hearing Tr. at 10. On July 28,

2016, she went to the intensive care unit at the hospital. After she received

treatment for her injuries, Hoffman was admitted to the Kindred Nursing Home

and Rehabilitation Community (“Kindred”) for recovery on August 9, 2016. Id.

On November 15, 2016, the attorney for Kindred submitted an application for the

appointment of an emergency guardian for the estate and person of Hoffman at the

Probate Division of the Marion County Court of Common Pleas. Doc. 1. An

expert evaluation of Hoffman’s condition was affixed to this application. Docs. 4,

5. On November 16, 2016, the trial court found that a guardianship of the person

of Hoffman was appropriate and appointed M. Elizabeth Martindell (“Martindell”)

as emergency guardian. Doc. 5. The trial court then ordered a hearing on this

matter be held on November 18, 2016. Id.


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      {¶3} At the hearing on November 18, 2016, Melissa Scott (“Scott”), the

director of nursing at the Kindred facility where Hoffman was recovering, testified

about Hoffman’s mental and physical condition. November 18 Hearing Tr. 3. In

her testimony, Scott stated that the staff at Kindred was concerned about

Hoffman’s safety if a guardian was not appointed.        Id.   Scott testified that

Hoffman did not have running water at her home for roughly a year as of October

2016, her utilities had been shut off, and she had become a hoarder, having no

clear pathways through her house. Id. at 3, 5. Scott explained that Kindred had

attempted to rectify the issues with the utility company by setting up an

arrangement with Hoffman’s bank, but Hoffman believed that her bank was

embezzling money from her account and refused to use online bill paying. Id. at

5. Scott also testified that Hoffman’s condition had improved since her admission

to Kindred. Id. at 7. She stated that Hoffman was not always cooperative,

refusing to comply with the nursing home staff and believing that the protein

shakes she was being served were “poison.” Id.

      {¶4} Hoffman was also at this hearing. Id. at 6. While Scott was testifying,

Hoffman interrupted her and challenged her testimony. Id. During this outburst,

the trial judge informed Hoffman that her attorney was her advocate and would

speak for her during cross examination. Id. at 6-7. At this point, Hoffman

indicated that she was not aware that her attorney represented her, saying that she

believed the attorney next to her was the representative of her doctor.         Id.


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Hoffman then testified, saying she did not need a guardian. Id. at 9. During her

testimony, she claimed that the nursing home was giving her a medication she was

allergic to, asserted that her bank was embezzling money from her, and refused to

say where she was going when she left Kindred because she was being “harassed”

by the nursing home staff.       Id. at 11-12, 13, 16.   After hearing Hoffman’s

testimony, the trial court extended the emergency guardianship for another thirty

days. Id. at 21.

       {¶5} On December 15, 2016, the trial court extended the guardianship until

January 18, 2017 and set another hearing date on the guardianship. Docs. 26, 28.

At the hearing on January 18, 2017, Scott again testified about Hoffman’s mental

and physical condition. January 18 Hearing Tr. at 6. Scott described Hoffman as

a difficult patient who refused to take her medication at times, yelled at the

nursing home staff, and was often confused about her meal schedule. Id. at 7-8.

Scott said that Hoffman often called 9-1-1 and reported on the nursing home staff.

Id. at 10. However, on the morning of the hearing, Hoffman fell while getting off

the bus, and the bus driver said their transportation service would no longer be

able to pick up Hoffman because of her physical condition. Id. at 11. Scott

testified that the nursing home regimen appeared to have been helping Hoffman

and that she had concerns about Hoffman’s ability to care for herself if she was

released from Kindred. Id. at 6, 8. During Scott’s testimony, Hoffman interrupted

the examination and called Scott a liar. Id. at 7.


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       {¶6} Hoffman then testified. Id. at 20. In her testimony, Hoffman refused

to give her date of birth for the record, would not tell the court about her plans if

the guardianship were terminated, and admitted that she had brain damage from an

accident. Id. at 20, 25, 29. At the conclusion of her testimony, Hoffman stated

that she “[did] not want the d*** Court to harass [her] anymore” and accused the

nursing home of “kidnapping” her.         Id. at 29.    The court then ordered a

guardianship, appointing Martindell as guardian. Doc. 53. In its judgment entry,

the trial court relied upon the evaluation of Dr. Parminder Singh in which

Hoffman was diagnosed as having a mental illness and the evaluation of Dr.

Timothy Spare in which Hoffman’s mental and physical condition was discussed

in detail. Id.

                                Assignment of Error

       {¶7} Hoffman filed notice of appeal on March 7, 2017. Doc. 59. On

appeal, Hoffman raises one assignment of error, which reads as follows:

       The trial court erred to the prejudice of the Appellant when it
       granted petitioners’ motion for guardianship absent clear and
       convincing evidence and such determination was against the
       manifest weight of the evidence.

In her brief, Hoffman argues that the trial court erred by making a determination

against the manifest weight of the evidence. In particular, appellant argues that

the information at the hearing did not address the present condition of Hoffman




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but addressed her past condition. On the basis of these arguments, Hoffman

requests that this Court reverse the trial court’s award of guardianship.

                                  Legal Standard

       {¶8} “In a guardianship hearing, the issue is whether the individual is

‘presently incompetent and in need of a guardian.’” Matter of Guardianship of

Sauber, 3d Dist. Seneca Nos. 13-16-37 and 13-16-38, 2017-Ohio-1317, ¶ 14,

quoting In re Al Bani, 9th Dist. Summit No. 27348, 2014-Ohio-5783, ¶ 22,

quoting In re Guardianship of Thomas, 148 Ohio App.3d 11, 20, 771 N.E.2d 882,

889 (10th Dist.2002). Under R.C. 2111.01(D)(1), an incompetent person is

       Any person who is so mentally impaired, as a result of a mental
       or physical illness or disability, as a result of intellectual
       disability, or as a result of chronic substance abuse, that the
       person is incapable of taking proper care of the person’s self or
       property or fails to provide for the person’s family or other
       persons for whom the person is charged by law to provide.

R.C. 2111.01(D)(1).

       {¶9} Incompetency must be established by clear and convincing evidence

before a guardian may be appointed by the trial court. R.C. 2111.02(C)(3). Clear

and convincing evidence is “proof which is more than a mere ‘preponderance of

the evidence,’ but not to the extent of such certainty as is required ‘beyond a

reasonable doubt’ in criminal cases, and which will produce in the mind of the

trier of facts a firm belief or conviction as to the facts sought to be established.”

State v. Keith, 3d Dist. Crawford No. 13-17-01, 2017-Ohio-5488, ¶ 26, quoting



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Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the

syllabus. On review of a guardianship, an appellate court “will examine the record

to determine whether the trier of facts had sufficient evidence before it to satisfy

the requisite degree of proof.” Sauber at ¶ 15, citing Cross.

       {¶10} “The trial court is granted broad discretion in matters involving the

appointment of a guardian for one alleged to be incompetent.” In re Guardianship

of Miller, 187 Ohio App.3d 445, 2010-Ohio-2159, 932 N.E.2d 420, ¶ 3, citing In

re Guardianship of Slone, 3d Dist. Crawford No. 3-04-13, 2004-Ohio-6041.

       In determining whether a trial court’s decision to appoint a
       guardian is against the manifest weight of the evidence, a court
       of appeals must be guided by the presumption that the findings
       of the trier of fact were correct. The rationale of giving
       deference to the findings of the trial court rests with the
       knowledge that the trial judge is best able to view the witnesses
       and observe their demeanor, gestures and voice inflections, and
       use these observations in weighing the credibility of the
       proffered testimony. Therefore, a judgment supported by
       competent, credible evidence, going to all the essential elements
       of the case, will not be reversed as being against the manifest
       weight of the evidence.

(Citations omitted.)   Slone at ¶ 9, citing Seasons Coal Co., Inc. v. City of

Cleveland, 10 Ohio St.3d 77, 79-80, 461 N.E.2d 1273, 1276-1278 (1984).

                                  Legal Analysis

       {¶11} In this case, the record contains ample evidence to support a finding

that Hoffman is incompetent to take care of herself and is in need of a guardian.

First, the trial court reviewed two medical evaluations.        Doc. 53.   The first



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evaluation diagnosed Hoffman with schizophrenia/schizoaffective disorder. Id.

The doctor stated that Hoffman was mentally ill and needed to take certain

medications to treat this condition. Id. This evaluation concluded that Hoffman

was impaired as to her comprehension and judgment. Id. A second evaluation by

a psychiatrist stated that Hoffman was suffering from obsessive compulsive

disorder and paranoia. Id. This report expressed concern that Hoffman’s living

conditions at home were a danger to her health and that she was unaware of her

physical condition or her health needs. Id. Both reports concluded that Hoffman

was in need of a guardianship as she was not capable of providing for her own

health and safety. Id.

       {¶12} Second, the behavior of Hoffman at the hearings on November 18,

2016, and January 18, 2016, suggests the need for a guardian.         At multiple

junctures, Hoffman interrupted Scott while she was testifying and exhibited a

confused, combative behavior.     Hoffman was unsure as to who her attorney

represented, claimed the bank was embezzling funds, and accused the nursing

home and the court of being complicit in kidnapping her. When asked, Hoffman

could not demonstrate that she could care for herself, refusing to state where she

planned on staying if she was released from the guardianship.         During her

testimony, Hoffman also admitted that she had brain damage, that she was in poor

physical condition at the time of her fall in the summer, and that her time in the

nursing home had been beneficial to her health.


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       {¶13} Third, Scott’s testimony discussed Hoffman’s behavior, her medical

condition, and the care the nursing home was providing to Hoffman. Scott’s

testimony established that Hoffman was in need of the regimen that the nursing

home could provide. Scott explained that Hoffman did not have water at her

home, did not have utility service at her house, and was a hoarder who did not

have clear pathways through her house. She also described the incident that led to

Hoffman’s stay at the nursing home, saying that Hoffman had fallen, could not get

up, and was discovered several days later with serious injuries. At the nursing

home, Hoffman had fallen four or five times with injury and was no longer able to

use the bus service she relied upon for transportation as the result of a fall. Scott

described Hoffman’s combative behavior, which involved refusal to take

medication and insults directed at the staff. The regimen also appeared to be

helpful to Hoffman as her wounds had healed. Apparently, Hoffman was not able

to remember whether she had eaten her meals or taken her medication without the

help of the nursing home staff.

       {¶14} We do not find evidence in the record that would suggest that the

trial court abused its discretion in ordering a guardianship for Hoffman. While

Hoffman asserts that the guardianship was awarded in response to her past

physical condition rather than her present physical condition, we find ample

evidence in the record that addresses her present physical and mental condition.

Scott testified as to Hoffman’s ongoing care at the nursing home and Hoffman’s


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recent behavior in response to the nursing home staff. Scott’s testimony even

included a discussion of a fall that Hoffman had the morning of the trial. Further,

the trial court was able to observe Hoffman’s present physical and mental

condition as she testified on her own behalf before the trial court. After reviewing

the record, we find that the trial court, in reaching its decision, relied upon some

competent credible evidence. Thus, we do not find that the trial court’s judgment

was rendered against the manifest weight of the evidence. For these reasons,

Hoffman’s sole assignment of error is overruled.

                                    Conclusion

       {¶15} Having found no error prejudicial to the appellant in the particulars

assigned and argued, the judgment of the Probate Division of the Marion County

Court of Common Pleas is affirmed.

                                                               Judgment Affirmed

PRESTON, P.J. and SHAW, J., concur.

/hls




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