[Cite as In re Guardianship of Smith, 2014-Ohio-2119.]



                                    IN THE COURT OF APPEALS

                           TWELFTH APPELLATE DISTRICT OF OHIO

                                           BUTLER COUNTY




IN THE MATTER OF GUARDIANSHIP                            :
OF:                                                          CASE NO. CA2013-09-165
                                                         :
        JAMES DOUGLAS SMITH                                       OPINION
                                                         :         5/19/2014

                                                         :

                                                         :



              APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
                              PROBATE DIVISION
                             Case No. PG13-03-0050



Tamara Sack, 9435 Waterstone Boulevard, Suite 140, Cincinnati, Ohio 45249, for James
Douglas Smith

Fred S. Miller, Baden & Jones Building, 246 High Street, Hamilton, Ohio 45011, for
appellants Douglas Smith and Delores Smith

Onda, LaBuhn, Rankin & Boggs Co., LPA, Derek L. Graham, 266 North Fourth Street, Suite
100, Columbus, Ohio 43215, for appellee, Advocacy & Protective Services, Inc.



        M. POWELL, J.

        {¶ 1} Appellants, Delores and Douglas Smith (hereinafter referred to respectively as

Mother and Father and collectively as appellants), appeal a decision of the Butler County

Court of Common Pleas, Probate Division, appointing appellee, Advocacy and Protective

Services, Inc. (APSI), guardian of the person of their adult son, James D. Smith.
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        {¶ 2} James is a 29-year-old man who has lived with appellants his whole life. He

has an IQ of 58, may be autistic, and suffers from selective mutism, Pervasive

Developmental Disorder NOS, and Anxiety Disorder NOS. While he was quite verbal as a

young child, over time he stopped talking. Primarily, James verbally communicates only with

Mother (James speaks to her in complete sentences). James communicates daily with

Father by leaving notes for him; occasionally, James speaks to Father. James graduated

from high school at age 22. He has not been enrolled in any work or vocational programs or

any activities since graduating from high school. James has not received any counseling

relating to his mutism.

        {¶ 3} Since 1998, James has a history of communicating with various individuals and

places (such as hospitals, township officials, a restaurant) in a threatening way (via letters, e-

mails, and telephone calls). In June 2012, he was charged with telephone harassment for

repeatedly calling the police (according to Mother, James called the police to ask them a

question; when they did not call back, James kept calling them back). As a result of these

criminal charges, James first spent a week in jail and then three weeks in a psychiatric

hospital. He was ultimately found not competent to stand trial and was referred to the

probate court for guardianship proceedings.

        {¶ 4} On March 12, 2013, appellants filed an application in the probate court to be

appointed guardians of James' person and estate. On May 15, 2013, APSI filed an
                                                                                              1
application in the probate court to be appointed guardian of James' person.                       On August 5,

2013, the probate court held a hearing on both applications for guardianship. A court-

ordered Comprehensive Evaluation of James (Joint Exhibit 2) was completed in May 2013 by




1. APSI's application states that it is a "not-for-profit corporation [that] contracts with the Ohio Department of
Developmental Disabilities to provide guardianship (of the person only) and other protective services to Ohio
adults who have mental retardation and/or other developmental disabilities."
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the Southwest Ohio Developmental Center and was admitted into evidence at the

guardianship hearing.       A Statement of Expert Evaluation completed by a licensed

psychologist was also admitted into evidence at the hearing (Joint Exhibit 1).

         {¶ 5} James is appellants' only child. At the hearing, Mother testified that when he

was younger, James was diagnosed with "uneven development" and "some mild retardation";

yet, he is also "very smart in some ways." She testified that James is an excellent reader,

writes letters, and uses the computer she and her husband bought him. She surmised

James learned how to use a computer and send e-mails by himself as neither she nor her

husband use the computer.

         {¶ 6} With regard to his daily routine, she testified that James likes to stay up all

night, eats two meals every night, typically sleeps until noon, and around 6:00 p.m. will tell

appellants if he wants to go somewhere. Because James does not eat food prepared by

Mother (with the exception of Thanksgiving and Christmas), he writes down what he wants to

eat and drink and Father goes out and gets James' order. When James wants to go

somewhere in the evening, appellants will drive him around for hours and "go wherever he

wants to go," be it Dayton, Oxford, or Fairfield (all in Ohio) or to a store such as Walmart or

Barnes and Noble in Lexington, Kentucky. Appellants and James live in Hamilton, Ohio.

According to Mother, James loves to record things, ride in a car, go to Walmart and Barnes

and Noble, sing, and do karaoke. He used to play the piano and wants to travel around the

world.

         {¶ 7} Mother also testified James takes care of his personal hygiene, such as

showering, shaving, and getting dressed. James used to get his own clothes out of the

closet but she now picks out his clothes. Occasionally, she must redirect James when he

wants to wear his pajamas out. James does not do his laundry but can use a microwave.

         {¶ 8} Mother testified that in the past, it has been difficult to get James to medical
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appointments; however, James has been more compliant since the probate court's

involvement. James likes to go to the emergency room (ER) and until a year before the

hearing, Mother would take him to the ER a couple of times a week for abdominal and heart

pain (according to his mother, James has a "fast heart rate"). Once there, James would

typically be diagnosed with acid reflux and constipation. James still goes to the ER but less

often.

         {¶ 9} James only socializes with appellants. Mother testified that James needs

friends and that he was always happy in school and loved being around other children. As a

result, she would like James to attend a day program. However, while James is initially

agreeable to the idea, he subsequently states he does not want to go. The record shows

that appellants are in their late 60s, and that Mother suffers from diabetes, acid reflux, and

thyroid issues. With regard to the guardianship proceedings, Mother testified that James

wants to stay at home with appellants.

         {¶ 10} James' Comprehensive Evaluation recommended that several additional

assessments and medical examinations be done. Mother testified that if she became James'

guardian, she would cooperate with the additional evaluations and testing and that she would

comply with any follow-up recommendations and treatment. She denied refusing to comply

with past recommendations.         However, her testimony was contradicted by the

Comprehensive Evaluation. According to findings within the report, with the exception of

when appellants followed up with a contracted psychiatrist some years ago, attempts by the

Butler County Board of Developmental Disabilities Services (BCBDDS) to engage James in

services on several occasions over the years have either been consistently blocked by

appellants or not followed through.

         {¶ 11} Traci Craig, an APSI employee who would be assigned to work with James,

testified that APSI was a neutral party whose goal was to insure that James would receive
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the services he needs and have his needs and wants met. Craig testified she was unable to

meet James because Mother did not allow it. Craig, however, read James' Comprehensive

Evaluation and talked to BCBDDS representatives. Craig testified that the short-term plan for

James would be to place him in a small group home in Hamilton, Ohio and have him undergo

several assessments and medical examinations so that his needs could be determined

without any outside interference. James would have his own bedroom and would have 24-

hour care. James could stay there if he liked it or go to another place. Craig could not

formulate a long-term plan for James as she had not met him yet. Craig acknowledged that

removing James from appellants' house could be very traumatic. However, she believed "it

may be a better fit for him" in the long term.

       {¶ 12} According to findings in the Comprehensive Evaluation, Mother reported she is

"bullied" by her son to transport him to the ER, she is sometimes afraid of him because he

threatens her and Father, and James is "aggressive" and "bullies" them "to get his way."

Findings within the report further stated that James "urinates on himself and/or the floor

instead of using the bathroom facilities," and as a result, the home is "saturated with urine

and rotting."

       {¶ 13} In a post-hearing memorandum, James' court-appointed attorney stated that (1)

although she had face-to-face contact with James during two home visits, he never spoke

directly to her and Mother served as the "go-between"; (2) although she never gave her

former office address to either James or appellants, James sent several letters to that

address, which he likely found on the internet; (3) in his letters, James told his attorney he did

not want a guardian; and (4) notwithstanding James' selective mutism, he appears to be

highly motivated to communicate and has some native intelligence that needs cultivating.

       {¶ 14} By decision filed on August 7, 2013, the probate court appointed APSI as

guardian of James' person. The probate court found that given (1) appellants' struggle over
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the years to control James' actions and behaviors, (2) the fact that James has actually been

controlling appellants' lives as a result of his compulsive behaviors, and (3) James' behaviors,

including demanding to be driven around for hours at night, urinating on himself or the floor

instead of using bathroom facilities, and reportedly being aggressive and bullying appellants

"to get his way," it was in the best interest of James to appoint APSI as guardian of his

person.

       {¶ 15} Appellants appeal, raising one assignment of error:

       {¶ 16} THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANTS WHEN

IT DID NOT GRANT THEIR APPLICATION TO BE GUARDIAN OF THEIR SON.

       {¶ 17} Appellants first argue the probate court erred in appointing APSI as guardian of

their son's person because APSI is a virtual stranger to James; by contrast, appellants have

a unique insight regarding James' needs and issues, and how to best care and manage him;

and James wants to live with them in the only home he has known and where he feels

comfortable.

       {¶ 18} When considering an application for appointment of a guardian, a probate court

must (1) first determine that a guardian is required, and (2) also determine who shall be

appointed guardian. In re Guardianship of Simmons, 6th Dist. Wood No. WD-02-039, 2003-

Ohio-5416, ¶ 17. In matters relating to guardianship, the probate court is required to act in

the best interest of the ward. In re Estate of Bednarczuk, 80 Ohio App.3d 548, 551 (12th

Dist.1992). "'Best interests' means the permanent welfare of the ward in his relation to

society in view of all the circumstances." In re Briggs, 9th Dist. Summit No. 18117, 1997 WL

416331, *3 (July 9, 1997).

       {¶ 19} A probate court has broad discretion in appointing guardians, and decisions

regarding the appointment of a guardian will not be reversed on appeal absent an abuse of

discretion. In re Guardianship of Snider, 12th Dist. Warren No. CA92-11-101, 1993 WL
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471477, *3 (Nov. 15, 1993). Ohio does not have a statutory preference for the appointment

of guardians. In re Guardianship of P.D., 4th Dist. Washington No. 08CA5, 2009-Ohio-3113,

¶ 23. Although courts generally select the next of kin, those with familial ties, or someone

acceptable to such persons on the theory that they will be the ones most concerned with the

ward's welfare, they are not required to do so. Id. A probate court may appoint a stranger as

guardian if it is in the best interest of the ward. Id.

       {¶ 20} "At all times, the probate court is the superior guardian of wards who are

subject to its jurisdiction, and all guardians who are subject to the jurisdiction of the court

shall obey all orders of the court that concern their wards or guardianships."               R.C.

2111.50(A)(1). Because the probate court is the superior guardian, "the appointed guardian

is simply an officer of the court subject to the court's control, direction, and supervision," and

has, therefore, "no personal interest in his or her appointment or removal."                In re

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

       {¶ 21} Appellants unquestionably love and care for their son and have cared for him

and provided for his educational, medical, and social needs to the best of their ability.

However, a thorough review of the record supports the probate court's findings that

appellants have struggled over the years in controlling James' actions and behaviors, and

that their lives are in fact controlled by their son as a result of his compulsive behaviors. The

record also shows that appellants have been either unwilling or unable to engage James in

needed services over the years, and that they either cannot or will not make hard decisions

necessary for James. At the end of the guardianship hearing, the probate court expressed

its concern, were it to appoint appellants as guardian, whether they would "be able to do the

things that are necessary to get [James] into the place where he can at least have a

functioning basis," as their love for him "can get in the way of making tough decisions that

need to be made sometimes." If, on the other hand, the court were to appoint APSI as
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guardian, "there would be a neutral person in between that could say * * * no, when the

answer needs to be no."

          {¶ 22} James' Comprehensive Evaluation reported that James (1) currently "might not

be exposed to situations or experiences that would foster his learning or independence," (2)

is seemingly "functioning somewhat lower [than] his intellectual abilities would typically

indicate," (3) "appears to be an autistic individual who has regressed over the years due to

living in isolation" and appellants' refusal "to allow professional staff to engage him in

services," and (4) understands what is spoken to him and can follow multi-step directions.

The Comprehensive Evaluation also reported that during her collateral interview, Mother

failed to acknowledge or recognize James' threatening communication with others as being a

significant issue, and in fact believed people were "making a mountain out of a mole hill

regarding Jim's phone calls and letters."

          {¶ 23} In light of the foregoing, we find the probate court did not err in appointing APSI,

a detached and neutral third party, as guardian of James' person. See In re Guardianship of

P.D., 2009-Ohio-3113 (no abuse of discretion in appointing an objective third party as the

guardian of an autistic child with other developmental disabilities, rather than the child's aunt,

where the aunt was unable to impose structure in the child's life, where the child would do

whatever he wanted to when living with his aunt, and where the aunt, who very much loved

the child, either could not or would not make many of the hard decisions necessary for the

child).

          {¶ 24} Appellants also argue the probate court erred in not considering less drastic

alternatives to appointing APSI as guardian of James' person, such as providing appellants

with in-home assistance or the opportunity to seek education and guidance regarding James.

          {¶ 25} R.C. 2111.02(C)(5) requires a probate court to consider a less restrictive

alternative to guardianship if such evidence is introduced at the guardianship hearing. A
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probate court may deny a guardianship if it finds a less restrictive alternative exists. R.C.

2111.02(C)(6); Davis v. Cuyahoga Cty. Adult Protective Services, 8th Dist. Cuyahoga No.

77116, 2000 WL 1513752 (Oct. 12, 2000). In the case at bar, no evidence of a less

restrictive alternative to guardianship was presented at the hearing. Because the probate

court "was presented with no evidence to consider, it could not have erred by failing to do

so." In re Guardianship of Bauer, 3d Dist. Seneca No. 13-06-15, 2006-Ohio-4843, ¶ 10.

       {¶ 26} In light of the foregoing, we find that the probate did not abuse its discretion in

appointing APSI, rather than appellants, as guardian of James' person. The probate court

had the responsibility of determining what is in the best interest of James and it made a

difficult, yet proper, decision. See In re Briggs, 1997 WL 416331.

       {¶ 27} Appellants' assignment of error is accordingly overruled.

       {¶ 28} Judgment affirmed.


       HENDRICKSON, J., concurs.


       RINGLAND, P.J., concurs separately.


       RINGLAND, P.J., concurring separately.

       {¶ 29} I concur with the majority opinion, however, I write separately out of concern for

the effects of a sudden, full-time transfer of James to a group home. I would urge the trial

court to consider whether it would be in the best interests of James to effectuate the change

in custody slowly and incrementally. As an autistic 29 year old, James has relied wholly on

his parents for his entire life. As a result, it is likely he will not be amenable to such a sudden

and dramatic change in his living situation. I would therefore implore the trial court to

evaluate whether small steps taken in stages during this transition may help to alleviate the

trauma for both the parents and James.


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