[Cite as In re Guardianship of Chieu, 2018-Ohio-4937.]



                                    IN THE COURT OF APPEALS

                           TWELFTH APPELLATE DISTRICT OF OHIO

                                           BUTLER COUNTY




IN THE MATTER OF THE                                     :
GUARDIANSHIP OF:                                                  CASE NO. CA2018-05-112
                                                         :
                THICH MINH CHIEU                                          OPINION
                                                         :                12/10/2018

                                                         :

                                                         :



              APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
                              PROBATE DIVISION
                             Case No. PG16-08-0135



Repper-Pagan Law, Ltd., Christopher J. Pagan, 1501 First Avenue, Middletown, Ohio 45044
and Carl Ferris, 225 Court Street, P.O. Box 541, Hamilton, Ohio 45012, for appellants

Hong Van Thi Nguyen, 8604 Beckett Pointe Drive, West Chester, Ohio 45069, appellee, pro
se



        PIPER, J.

        {¶ 1} Appellants, Thich Minh Chieu and members of his family, appeal a decision of

the Butler County Court of Common Pleas, Probate Division, appointing appellee, Hong Van

Nguyen, guardian of Chieu.1

        {¶ 2} When Chieu was 16 years old, he wed through an arranged marriage. He



1. According to Loc.R. 6(A), we sua sponte remove this appeal from the accelerated calendar for the purpose of
issuing this opinion.
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then had seven children with his legal wife. In 1975, Chieu and his family moved to America

from Vietnam due to political unrest. Chieu also fathered Nguyen and another child with a

different woman, who he considered his soul mate and true wife.2 Nguyen eventually came

to live in West Chester, Ohio.

        {¶ 3} Chieu later rejected private life and devoted himself to Buddhism. He entered a

Buddhist temple in Seattle, Washington to live and train. Chieu eventually became the

temple's abbot or "master." Chieu remained at the temple as its leader for 32 years, and

planned on living permanently there until his death. However, Chieu was diagnosed with

dementia and his overall health began to decline.

        {¶ 4} When Nguyen learned that Chieu lost five of his teeth, she became concerned

that her father was being medically neglected. She also became concerned Chieu was not

receiving his medication correctly and was not being properly clothed. Nguyen asked service

agencies in Seattle to investigate Chieu's well-being based on her concerns. Although the

investigators did not find evidence of neglect, Nguyen traveled from West Chester to Seattle

to inquire about her father's health. After Chieu's healthcare providers refused to speak with

Nguyen without a power of attorney ("POA"), Chieu executed the necessary paperwork and

named Nguyen his agent and guardian through a durable POA. With her authority as POA

for Chieu, and with his consent, Nguyen eventually decided to gather Chieu's belongings

from the temple so she could provide for his care.

        {¶ 5} Nguyen and Chieu returned to West Chester where she began to provide for

his care. Chieu moved into Nguyen's home, and Nguyen obtained Social Security benefits

for Chieu in Ohio. Once Nguyen moved for guardianship of Chieu, a court investigator


2. Chieu's legal wife and children seemingly dispute Nguyen's parentage and deny her claim that Chieu
considered her mother his soul mate. The record contains sparse information about Chieu's marriage, love-life,
and familial history. However, the core issue on appeal is jurisdiction, which does not require a fully-developed
factual record regarding who Chieu considered his true wife. We therefore offer limited background information
for the sole purpose of context and to foster understanding of how the parties relate. However, we do not take
any disputed facts into consideration when determining the merits of the appeal.
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interviewed Chieu regarding Nguyen's petition. The investigator issued a report indicating

that Chieu resided in West Chester and that Chieu consented to the guardianship. The court

found Chieu incompetent based on his dementia and appointed Nguyen his guardian.

       {¶ 6} Several months after Nguyen's appointment, some members of Chieu's family –

including his legal wife, some of his children, and a niece and nephew – filed a motion to

dismiss the appointment of Nguyen as guardian for lack of jurisdiction. The probate court

appointed Chieu counsel because the issue had become contested, and Chieu's counsel

also moved the court to dismiss the guardianship for lack of jurisdiction.

       {¶ 7} A magistrate heard the matter and denied the motion. Chieu's family filed

objections to the magistrate's decision, and Chieu's attorney appeared on his behalf at the

objection hearing. The probate court overruled the objections and adopted the magistrate's

recommendation. Chieu's family members, as well as Chieu through his appointed counsel,

now appeal the probate court's decision.

       {¶ 8} While the parties and probate court addressed whether Chieu's family had

standing to raise the motion to dismiss, we focus our review on the statutory basis of R.C.

2111.02(A). Regardless of which parties lacked standing, Chieu himself is a party to this

appeal and has standing.

       {¶ 9} Normally, we note that a "person seeking to appeal the decision of a probate

court in a guardianship proceeding must have been a party to those proceedings to have

standing to appeal the probate court's decision." In re Guardianship of Santrucek, 120 Ohio

St.3d 67, 2008-Ohio-4915, ¶ 14. The Ohio Supreme Court has noted that being related to

the ward is not enough to confer standing, nor is receiving notice of the proceedings. Id.

Instead, the court determined that "additional action is required to become a party with the

right to appeal. Filing an application to be appointed guardian is one avenue to becoming a

party, but a person may also file a motion to intervene pursuant to Civ.R. 24." Id. The record

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is clear that Chieu's family did not file a motion to intervene, and merely challenged

jurisdiction. While Chieu's family may not have proper standing to challenge the probate

court's jurisdiction, we still address the merits of the appeal because Chieu also challenges

jurisdiction in this in rem proceeding. The following assignment of error has been raised for

our consideration:

        {¶ 10} THE        PROBATE          COURT         LACKED        JURISDICTION           OVER        THE

GUARDIANSHIP.

        {¶ 11} Chieu argues that the probate court lacked subject matter and personal

jurisdiction to appoint Nguyen guardian so that the motion to dismiss should have been

granted.

        {¶ 12} Jurisdiction requires that a court have statutory or constitutional power to

adjudicate the case, and the term encompasses jurisdiction over the subject matter and over

the person. Pratts v. Hurley, 102 Ohio St. 3d 81, 2004-Ohio-1980, ¶ 11. Subject matter

jurisdiction, which speaks of the power of the court to adjudicate the merits of a case, can

never be waived and may be challenged at any time. Id. According to 2101.24(A)(e),

probate courts have exclusive subject matter jurisdiction to appoint and remove guardians.

        {¶ 13} "Guardianship proceedings, including the removal of a guardian, are not

adversarial but rather are in rem proceedings involving only the probate court and the ward."

In re Guardianship of Spangler, 126 Ohio St.3d 339, 2010-Ohio-2471, ¶ 53. "When

jurisdiction is in rem, due process requires the res of the action to be within the court's

territorial jurisdiction in order for subject matter jurisdiction to exist." In re Guardianship of

Richardson, 172 Ohio App.3d 410, 2007-Ohio-3462, ¶ 44 (2d Dist.).3

        {¶ 14} According to R.C. 2111.02(A), "if found necessary, a probate court on its own



3. Chieu incorrectly argues that the probate court lacks personal jurisdiction over him based on a lack of
minimum contacts with Ohio as if he were a defendant in a civil case rather than a ward in an in rem proceeding.
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                                                                       Butler CA2018-05-112

motion or on application by any interested party shall appoint * * * a guardian of the person *

* * provided the person for whom the guardian is to be appointed is a resident of the county

or has a legal settlement in the county."

       {¶ 15} Residence requires the "actual physical presence at some abode coupled with

an intent to remain at that place for some period of time" while a legal settlement "connotes

living in an area with some degree of permanency greater than a visit lasting a few days or

weeks." State ex rel. Florence v. Zitter, 106 Ohio St.3d 87, 2005-Ohio-3804, ¶ 19.

       {¶ 16} Therefore, for the probate court to have exercised proper jurisdiction, including

both subject matter and personal jurisdiction, over the guardianship issue, Chieu must have

been either a resident of or had a legal settlement in Butler County. After reviewing the

record, we find that the Butler County Probate Court properly held jurisdiction in this matter.

       {¶ 17} The record contains a limited factual basis given Chieu's request that the

probate court focus only on jurisdiction during the hearing. Even so, there are sufficient

undisputed facts in the record to establish that at the time the probate court appointed

Nguyen as guardian in October 2016, it had proper jurisdiction because, at a minimum, Chieu

had already established his legal settlement in West Chester, Ohio. Specifically, the

evidence establishes that Chieu left Seattle and settled in his daughter's home in a manner

that denotes an ongoing stay rather than a short visit.

       {¶ 18} The record contains evidence that in July 2016, Chieu left the temple with this

daughter and flew to Ohio using one-way tickets. No return travel arrangements were ever

made. Chieu executed the necessary paperwork to make Nguyen his agent and preferred

guardian, and he continued to agree with her guardianship after he had been living in

Nguyen's Ohio home. A Social Security statement included in the record demonstrates that

as of August 2016, Chieu was "living in the State of Ohio," and that Chieu received mail at

Nguyen's West Chester home. Chieu established and received benefits in Ohio, which

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                                                                                   Butler CA2018-05-112

demonstrates his intent to remain in Ohio for an ongoing period rather than a few days or

weeks.

        {¶ 19} The record also contains minutes from a meeting held by the Chua Viet Nam

Administration Council, which occurred in September 2016. At that meeting, the council

discussed Chieu's absence from the temple and his living with Nguyen. The council noted

that Chieu left the temple accompanied by his daughter, and "with his wise consent." After

noting that Nguyen had valid and legal paperwork showing her control over Chieu's health

and social concerns, the council voted not to ask Chieu to return to the temple to act as its

master.4

        {¶ 20} The meeting minutes indicate that members of the council considered

Nguyen's request that before Chieu return to the temple as master, the temple hire someone

to provide 24-hour care, allow Chieu's children to care for their father at the temple, and that

a previous caregiver have no contact with Chieu upon his return. However, the council

worried that meeting these requests would force the temple to act as a "Nursing Home," and

voted not to ask Chieu to return to the temple "in order to avoid future legal proceedings

regarding responsibilities as a Nursing Home and a patient." Moreover, the council indicated

that it agreed with and respected Nguyen's decision to care for Chieu in Ohio and did not ask

Chieu to return from Ohio "due to burdens and high responsibility for the Temple to bear in

the future."

        {¶ 21} The probate court also heard testimony from one of Chieu's children from his

legal marriage, specific to the family's contention that Chieu should not have left the temple

and that no one agreed to his living with Nguyen.                      During his testimony, the child




4. The file contains multiple letters from members of the temple indicating their desire to have Chieu return to
the temple for purposes of living out the remainder of his days as a devoted monk and dying in the temple.
However, the temple has not abandoned its decision that Chieu will not be asked to return to the temple as
master.
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acknowledged that the family trusted Nguyen to take care of Chieu and understood his stay

with Nguyen was to exceed "a few weeks. Maybe a few months."

       {¶ 22} The probate court further considered information contained in the

Investigator's Report, which was compiled by a court-appointed investigator and filed as part

of Nguyen's petition for guardianship. Within the report, the investigator stated Chieu's

residence as Nguyen's West Chester address, and noted Chieu's agreement with the

ongoing guardianship in Ohio. Specifically, the investigator noted that Chieu "wants his

daughter to continue taking care of him and helping him," and that Chieu "is in agreement

with the guardianship."

       {¶ 23} The evidence contained in the record clearly demonstrates Chieu's legal

settlement in West Chester, Ohio was established at the time the probate court appointed

Nguyen guardian in October 2016. Chieu voluntarily executed a POA and went with his

daughter to Ohio, and has shown his continual agreement with the guardianship. He has

continued receiving benefits and correspondence at the West Chester address, which also

demonstrates Chieu's residency in Ohio with a degree of permanency greater than a mere

visit lasting a few days or weeks.

       {¶ 24} This is especially true where Chieu's biological family supported Chieu being in

Nguyen's care for months, and not filing any motions disagreeing with Nguyen's guardianship

until several months had passed. Nor did the family file motions to intervene. Moreover, the

temple voted not to ask Chieu to return to lead its congregation based on its fear of being

held to the legal standards of providing Chieu care as a nursing home. There is simply no

indication in the record that Chieu planned on leaving Nguyen's care or her home in West

Chester to return to Seattle or that he was in any condition to do so.

       {¶ 25} While Chieu argues that the probate court lacked subject matter and personal

jurisdiction, the record clearly indicates that the relevant statute conferred proper jurisdiction

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and that the probate court was authorized to appoint a guardian in this case because Chieu

had established, at the very least, a legal settlement in West Chester at the time Nguyen

petitioned the Butler County court.

      {¶ 26} Whether Nguyen is a proper guardian was not challenged at the time she

petitioned for guardianship and that issue was not addressed at the hearing below. Instead,

the only decision made by the probate court was that it held proper jurisdiction to appoint

Nguyen guardian. We agree, and therefore overrule Chieu's single assignment of error.

      {¶ 27} Judgment affirmed.


      HENDRICKSON, P.J., and RINGLAND, J., concur.




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