[Cite as In re Guardianship of Carpenter, 2016-Ohio-3389.]




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




IN RE: THE GUARDIANSHIP OF:                                  CASE NO. 9-15-34

       EDEMA JODENE CARPENTER.

[EDEMA JODENE CARPENTER -                                    OPINION
 APPELLANT].



                 Appeal from Marion County Common Pleas Court
                                  Probate Division
                           Trial Court No. 12-GDN-0035

                                     Judgment Reversed

                             Date of Decision: June 13, 2016



APPEARANCES:

        Brian C. Cook for Appellant

        Kevin P. Collins for Appellee, Maria L. Hypes

        Brent W. Yager for Appellee, Marion County Prosecutor
Case No. 9-15-34



WILLAMOWSKI, J.

       {¶1} Ward-appellant E. Jodene Carpenter (“Carpenter”) brings this appeal

from the judgment of the Court of Common Pleas of Marion County, Probate

Division, denying her motion to be represented by independent counsel of her

choice for the purpose of challenging the guardianship and denying her motion to

be present at a hearing regarding a motion to restrict who may visit her. The

motions were opposed by the Guardian, Maria Lisa Hypes (“Hypes”), who had

filed the motion to restrict Carpenter’s visitors. For the reasons set forth below,

the judgments are reversed.

       {¶2} On January 9, 2013, the trial court found Carpenter to be incompetent

and appointed Hypes to be her guardian. Doc. 15. On July 14, 2015, Carpenter

personally signed a motion for authorization to be represented by independent

counsel for the purpose of evaluating the continued necessity of the guardianship

or to introduce a less restrictive alternative to the guardianship. Doc. 80. The

motion specified that she wished to be represented by Brian C. Cook (“Cook”) and

requested authority to sign an engagement letter or, in the alternative, to have the

guardian sign the engagement letter. Id. The motion indicated that Carpenter was

not indigent and was not requesting court-appointed counsel. Id. A copy of an

unsigned engagement letter was attached as an exhibit to the motion. Id.




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       {¶3} A hearing was held on the motion on July 21, 2015. At the hearing, it

was indicated that Cook and Hypes were present, but Carpenter was not present

and received no personal notification of the hearing. Doc. 82 and 113. Although

both Cook and Hypes spoke at the hearing, no testimony was given and no

evidence was presented. Cook indicated that he was contacted by Carpenter’s

daughter and brother asking him to speak with Carpenter because Carpenter

wished to terminate the guardianship, or at least alter the terms of the

guardianship. Tr. 2-4. Cook spoke with Carpenter with his law partner present

and determined that in his opinion, Carpenter wished to terminate the

guardianship, so he contacted Hypes to request that he be permitted to review the

file. Tr. 3-5. The trial court stated as follows at the hearing.

       I don’t disagree that [Carpenter] has the right to independent
       counsel. I have a difficulty with the method in which this was
       done. You have also usurped the authority of the guardian and
       the Court who’s the superior guardian for Miss Carpenter. This
       Court has determined that she is incompetent. If you want to
       have a review, you should have contacted Miss Hypes regarding
       this. She may have cooperated with you in having you look at
       the file.

Tr. 6. Hypes then stated that she thought the motion was nothing more than an

interference with the guardianship and that she did not wish Cook to speak with

Carpenter. Tr. 7. Hypes also indicated that in her opinion, it was Carpenter’s

daughter who influenced Carpenter to seek the end of the guardianship, not

Carpenter. Tr. 8. The trial court specifically stated that Cook did not represent


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Carpenter at the hearing. Tr. 17. The trial court indicated that it did need to speak

to Carpenter, but the record does not indicate that such a visit occurred prior to the

ruling by the trial court. Tr. 20.

           {¶4} On August 3, 2015, a motion signed by Carpenter was filed requesting

again that she be represented by Cook and be permitted to attend a hearing that

Hypes had requested to restrict Carpenter’s visits with her daughter. Doc. 92. The

trial court held a hearing on August 6, 2015, concerning Hypes’ request for the

daughter to only have supervised visits. Doc. 95.                         Carpenter was not at the

hearing. Id. On August 13, 2015, the trial court granted the motion for supervised

visits. Doc. 95. The trial court on that same day denied Carpenter’s request to be

represented by Cook. Doc. 96. Carpenter appeals from these judgments and

raises the following assignments of error on appeal.1

                                     First Assignment of Error

           The probate court erred when it denied Carpenter’s motion to
           hire independent counsel of her choice for purposes relating to
           guardianship review and termination because a ward has such a
           right under the Ohio Revised Code.

                                   Second Assignment of Error

           The probate court’s decision to proceed with a hearing on
           Carpenter’s motion to hire independent counsel of her choice
           without giving notice to Carpenter and without her attendance
           violated her right to due process of law as guaranteed by the
           Fourteenth Amendment of the United States Constitution and
           Article 1, Section 16, of the Ohio Constitution.

1
    Two separate notices of appeal were filed, one for each judgment entry. Doc. 146 and 149.

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                            Third Assignment of Error

       The probate court’s decision to proceed with a hearing on a
       motion by [Hypes] to restrict Carpenter’s access to her family,
       without providing for Carpenter’s attendance, participation,
       and/or legal representation after she filed a motion requesting to
       attend, participate and have legal representation, violated her
       right to due process of the law as guaranteed by the Fourteenth
       Amendment of the United States Constitution and Article 1,
       Section 16, of the Ohio Constitution.

In the interest of clarity, we will address the assignments of error out of order.

       {¶5} Carpenter claims in the second assignment of error that the trial court

erred in holding a hearing on her motion without providing her notice of the

hearing or allowing her to attend the hearing. Carpenter’s initial motion requested

that she be permitted to hire independent counsel of her choice for the purpose of

either challenging the need to continue the guardianship or, in the alternative,

challenging the extent of the guardianship. Pursuant to statute, at any time after

the expiration of one hundred twenty days from the date of the original

appointment of the guardian, a ward, the ward’s attorney, or any other interested

party may request a review of the guardianship. R.C. 2111.49(C). The statute

also requires that if such a motion is filed, a hearing shall be held in accordance

with R.C. 2111.02. Id. The very language of the statute implies that a ward may

have an independent attorney to challenge the guardianship.             At a hearing

challenging the guardianship, there is no doubt that “R.C. 2111.49(C) expressly

incorporates the hearing requirements relating to original appointments of

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Case No. 9-15-34


guardians to proceedings concerning the continued necessity of guardianships.”

State ex rel. McQueen v. Cuyhoga Cty. Court of Common Pleas, Probate Division,

135 Ohio St.3d 291, 2013-Ohio-65, 986 N.E.2d 925, ¶ 17.             The hearing

requirements in a guardianship are set forth in R.C. 2111.02. If the hearing

concerns the appointment of a guardian for an alleged incompetent, the alleged

incompetent has all of the following rights.

       (a) The right to be represented by independent counsel of the
       alleged incompetent’s choice;

       (b) The right to have a friend or family member of the alleged
       incompetent’s choice present;

       (c) The right to have evidence of an independent expert
       evaluation introduced;

       (d) If the alleged incompetent is indigent, upon the alleged
       incompetent’s request:

       (i) The right to have counsel and an independent expert
       evaluator appointed at court expense;

       (ii) If the guardianship * * * is appealed, the right to have
       counsel appointed and necessary transcripts for appeal prepared
       at court expense.

R.C. 2111.02(C)(7). Additionally, if a ward challenges the continuation of the

guardianship, the burden rests on the guardian to show by clear and convincing

evidence that the ward is incompetent. R.C. 2111.49(C).

       {¶6} Although, R.C. 2111.49 does not specify that a ward needs to be given

notice of a hearing on a motion, R.C. 2111.47 specifically provides that a ward


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who has been deemed incompetent, as well as the guardian, must be given notice

prior to the termination of the guardianship. Since R.C. 2111.49(C) states that any

hearing on the continuation of the guardianship should comply with the

requirements of R.C. 2111.02, this would include the requirement that the alleged

incompetent/ward be given notice of the proceedings and be permitted to attend

the proceedings if practicable. R.C. 2111.04(A)(2)(a)(i). The appointment of a

guardian does not deprive a ward of their status as a party who is entitled to notice

of hearings because he or she still has an interest in the proceedings. In re

Guardianship of Richardson, 172 Ohio App.3d 410, 2007-Ohio-3462, 875 N.E.2d

129 (8th Dist.) (reversed in part on other grounds by In re Guardianship of

Richardson, 120 Ohio St.3d 438, 2008-Ohio-6696, 900 N.E.2d 174).

       {¶7} In this case, the initial motion was filed by Carpenter. A review of the

record indicates that no notice of the hearing on Carpenter’s motion was given to

Carpenter. Although Hypes was given notice due to her status as guardian of

Carpenter, this is not sufficient notice to Carpenter in this case. Most guardianship

proceedings are not adversarial in nature. However, when the ward has indicated

that he or she would like independent counsel to challenge the necessity of

continuing the guardianship and the guardian objects, that is a clear indication that

the desires of the ward and the determination made by the guardian are adverse to

one another. Thus, the guardian cannot represent his or her own interest, as

guardian, in court and also represent the contrary wishes of the ward since they

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Case No. 9-15-34


conflict. In that situation, it only stands to reason that the ward should be entitled

to appear on his or her own behalf and tell the trial court what his or her wishes

are.

       {¶8} The trial court itself agreed that it would need to speak with the ward

personally to determine the ward’s wishes. The record contains no evidence that

the trial court ever spoke with the ward prior to ruling on the motion. The record

is also clear that the trial court did not consider Cook to be Carpenter’s attorney at

the hearing.    Thus, the hearing was held on Carpenter’s motion without

Carpenter’s knowledge, without Carpenter’s presence, and with no one to protect

Carpenter’s interests. This is a clear denial of due process. Carpenter should have

received notice of the hearing on her motion and been allowed an opportunity to

be heard on her case. To hold otherwise would be to prevent any ward whose

guardian opposed the motion for independent counsel from having a meaningful

hearing before a trial court. For this reason, the second assignment of error is

sustained.

       {¶9} In the first assignment of error, Carpenter claims that the trial court

erred by denying her motion for independent counsel of her choice. As stated

above, when a ward wishes to challenge a guardianship, he or she is entitled to

independent counsel of his or her choice. Carpenter has the money to pay for

counsel, so the determination of who that counsel should be is hers alone, not that

of the trial court. The trial court in this case determined that although Carpenter

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had the right to independent counsel, Cook should not be that counsel because he

spoke to the ward without the guardian’s knowledge.                             However, there is no

requirement that a ward has to have his or her choice of independent counsel

approved by the guardian.2 If that were the case, the counsel would not be the

choice of the ward, but the choice of the guardian. The statutes provide that a

ward has the right to independent counsel of his or her choice to challenge a

guardianship. See R.C. 2111.02 and 2111.49. The statute also provides that a

challenge to a guardianship may be filed by the ward’s attorney, thus implying that

a ward may have his or her own attorney even though he or she is incompetent.

As discussed above, the trial court took no steps to determine what the actual

wishes of Carpenter were, instead relying solely on the statements of Hypes as to

what her beliefs were regarding the situation. No evidence was actually presented

to the trial court regarding the motion. Instead, all that was presented were

statements of attorneys in argument as to what the decision of the trial court

should be. “The arguments of counsel in the role of advocate * * * are not

evidence, and lawyers in making those arguments are not witnesses.” Sneary v.

Baty, 3d Dist. Allen No. 1-96-13, 1996 WL 479579 (Aug. 14, 1996). Since there

was no evidence to support the judgment of the trial court in this matter, the trial


2
  The only restriction is that the ward lacks authority to enter into a contract with the attorney, which would
prevent the attorney from collecting a fee for representation without approval from either the guardian or
the trial court. At the time Cook and Carpenter met to discuss his possible representation of her, she had no
restrictions on with whom she could visit. The mere indication at the hearing that Cook was contacted
initially by Carpenter’s daughter and brother on Carpenter’s behalf does not indicate that Cook acted in any
way inappropriately or unethically by agreeing to meet with Carpenter without the consent of the guardian.

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court abused its discretion in denying the motion for independent counsel of

Carpenter’s choosing. The first assignment of error is sustained.

      {¶10} In the third assignment of error, Carpenter alleges that the trial court

erred by holding a hearing regarding Hypes’ motion to restrict her visitation with

her daughter without providing notice to Carpenter or requiring the attendance of

Carpenter after Carpenter filed a motion requesting such notice and permission to

attend the hearing. A review of the statutes indicates that there is no statutory

provision for a ward to challenge a decision of a guardian. See Revised Code

Chapter 2111. However, the Ohio Supreme Court requires trial courts to have

such a process.

      The probate division of a court of common pleas that establishes
      guardianships shall adopt local rules governing the
      establishment of guardianships that do all of the following:

      ***

      (B) Establish a process for submitting in electronic format or
      hard copy comments and complaints regarding the performance
      of guardians appointed by the court and for considering such
      comments and complaints. The process shall include each of the
      following:

      (1) The designation of a person for accepting and considering
      comments and complaints;

      (2) A requirement that a copy of the submitted comment or
      complaint be provided to the guardian who is the subject of the
      comment or complaint;

      (3) A requirement that the court give prompt consideration to
      the comment or complaint and take appropriate action;

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      (4) A requirement that the court maintain a record regarding
      the nature and disposition of the comment or complaint;

      (5) A requirement that the court notify the person making the
      comment or complaint and the guardian of the disposition of the
      comment or complaint.

Sup.R. 66.03. Local Rule 66.1 of the Marion County Probate Court provides that

a ward may appear before the court. Even after a finding of incompetency, a ward

continues to have certain rights. Among these rights are the rights to have her

personal opinions considered, to speak privately with an attorney or another

advocate, to petition the court to modify a guardianship, and to bring a grievance

against the guardian. Ohio Guardianship Guide, by the Ohio Attorney General,12-

14. Additionally, in a proceeding in which the guardian and the ward appear to

have adverse interests, “the court shall appoint a guardian ad litem” to represent

the ward. R.C. 2111.23.

      {¶11} Here, Carpenter filed a motion stating her objections to the

guardian’s motion to restrict her visitors. Carpenter’s motion indicated that she

wished to be present and participate in the hearing on the matter. By local rule,

the ward has a right to be present at court proceedings. However, no notice of the

hearing date was sent to Carpenter, even after she requested such notice. No

notice of the hearing date was sent to Cook, even though the motion indicated that

Carpenter wished him to represent her at the hearing. No guardian ad litem was

appointed for Carpenter, even though the motion indicated that Carpenter’s wishes

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were adverse to those of Hypes. The entry granting Hypes’ motion indicated that

neither Carpenter nor an independent representative for Carpenter was present to

argue Carpenter’s position.     Although there is no statutory mechanism for

Carpenter’s objections to Hypes’ actions, the superintendence rules do require the

trial court to have a mechanism for such a challenge. There is nothing in the

record to indicate that Carpenter’s stated interests were given any consideration by

the trial court. The trial court has a responsibility to consider the wishes of the

ward, yet the record contains no indication that the trial court spoke with

Carpenter prior to entering a ruling. The trial court also failed to abide by its own

rule providing a ward with the right to appear at the hearing. Therefore, Carpenter

was denied her due process and the third assignment of error is sustained.

       {¶12} Having found error prejudicial to the appellant, the judgment of the

Marion County Court of Common Pleas, Probate Division is reversed and the

matter is remanded for further proceedings.

                                                                Judgment Reversed
                                                                   And Remanded


PRESTON and ROGERS, J.J., concur.

/hls




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