[Cite as In re Guardianship of Sweeney, 2016-Ohio-3260.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 103285




        IN RE: GUARDIANSHIP OF TERESE SWEENEY

                                  [Appeal by Julie Sweeney]



                                   JUDGMENT:
                             REVERSED AND REMANDED


                                     Civil Appeal from the
                            Cuyahoga County Court of Common Pleas
                                       Probate Division
                                 Case No. 2011 GRD 150554

        BEFORE: Jones, A.J., Boyle, J., and Celebrezze, J.

        RELEASED AND JOURNALIZED: June 2, 2016
FOR APPELLANT

Julie T. Sweeney, pro se
445 Alfreton Court
Severna Park, Maryland 21146


ATTORNEYS FOR APPELLEE

Franklin J. Hickman
John R. Harrison
Hickman & Lowder Co, L.P.A.
1300 East 9th Street, Suite 1020
Cleveland, Ohio 44114
LARRY A. JONES, SR., A.J.:

       {¶1} In this appeal, movant-appellant, Julie Sweeney, challenges the probate court’s

decision denying her request to intervene in this guardianship proceeding, as well as other

actions taken by the court. We find that Julie has standing only as it relates to the court’s

decision regarding her motion to intervene (first assignment of error), and reverse the

court’s decision denying same. We disregard her remaining two assignments of error.

I. Factual and Procedural Background

       {¶2} The ward of this guardianship proceeding is Terese Sweeney, a

developmentally disabled woman in her 50s. She is one of the nine living children of

John and Regina Sweeney.1 At all relevant times, Terese’s parents, and two of her

siblings — Cecile Muehrecke, a medical doctor, and appellee James Sweeney — have

resided in the Cleveland area.2 The remaining siblings live out of the state of Ohio; Julie

lives in Maryland.   Terese has remained close and connected to her parents and all of her

siblings, but, presumably because of their proximity to Terese and Cecile’s medical

expertise, her parents, James, and Cecile particularly worked together in making certain

that Terese’s day-to-day needs were met.3

       {¶3} Terese was born in the Cleveland area, and has lived there her entire life.

She resided with her family through young adulthood, at which time she went to live in a



       There were ten Sweeney children, but one, John Sweeney III, passed away in 1994.
       1



       Terese’s mother passed away in 2014.
       2



       The record demonstrates that the out-of-state siblings frequently traveled to Cleveland and
       3
group home that was founded, in part, by her parents.                 She has worked at various

“workshops” run by the Cuyahoga County Board of Developmental Disabilities, and has

gained much fulfilment through her work.            Terese’s parents expressed their “intent and

desire” that Terese continue to reside in the Cleveland area. See January 16, 2013

Nomination of Guardian and January 19, 2013 Nomination of Guardian.

       {¶4} In 2009, Terese’s mother became her guardian.                 In 2011, because of the

mother’s declining health, James took over as successor guardian. Around the same time,

the family had concerns about Terese’s care, and she was moved out of the home where

she had been living.       She moved in with James while the family addressed how to

proceed.    There were many suggestions among the family members, one of which,

proposed by at least Julie, was that Terese move to the east coast, where several of the

siblings lived.

       {¶5} Julie’s suggestion did not come to be, however, and Terese eventually

relocated to a group home in Fairview Park, a Cleveland suburb. Tensions in the family

developed as James, citing concerns for Terese’s smooth transition to her new home,

limited Terese’s visitors and visits out of the home.

       {¶6} In late December 2011, James did allow Terese to travel to Julie and another

sister’s homes. After that visit, Julie expressed concerns to the family about Terese

having an “itchy rash,” which was later confirmed to be scabies.               James addressed the

concerns with the group home manager and various measures were taken to attempt to


would spend time with Terese, and Terese traveled out of state to their homes as well.
alleviate the rash.   Julie and other siblings also expressed concerns about other physical

health issues (oral hygiene and nail grooming), as well as mental health issues.

       {¶7} In March 2012, another out-of-state sister came to Cleveland for a visit and, in

addition to the skin issues, also shared her concern with the family about Terese’s mental

health because she saw Terese have crying episodes.     The concern about Terese’s crying

episodes, along with the rash, again generated much family discussion, during which hurt

feelings and frustrations abounded. During this time, Cecile asked to be removed from

the family email threads.

       {¶8} In November 2012, Julie filed a motion for review of the guardianship, citing

“changed circumstances in the health and welfare” of Terese; she amended her motion in

January 2013 to include out-of-state siblings Rosemary Hsu, Francis Sweeney, Regina

Sweeney, and Margaret Muldoon (collectively “movants”).        The movants filed a motion

for mediation, which the trial court granted; the movants and James attempted,

unsuccessfully, to mediate their concerns.

       {¶9} In August 2013, James filed a guardian report, which noted that there were no

major changes in Terese’s physical or mental condition.      In October 2013, the movants

challenged James’s report by filing a motion for an investigation of Terese’s medical

condition and for a supplemental report.

       {¶10} In June 2014, the movants filed a motion to intervene under Civ.R. 24(A), for

visitation and for further relief; James opposed the motion. In August 2014, a hearing

before a magistrate was held on the movants’ motion.     In September 2014, the magistrate
issued a decision denying the movants’ request to intervene and set the matter for a review

hearing for the purpose of investigating the movants’ allegations against James.        The

magistrate also assigned a court investigator to the case.   The movants filed objections to

the magistrate’s decision.

       {¶11} In November 2014, the court overruled movants’ objections and adopted the

magistrate’s decision.   The court also agreed with the magistrate’s recommendation that

the matter be set for a review hearing so that the movants could “fully express their

concerns regarding the care received by [Terese] and [whether] the actions of [James are]

appropriate.”

       {¶12} In January 2015, the court’s investigator filed her report, in which she

recommended that James continue as Terese’s guardian.         Four days of review hearings

were held in January, February, and March 2015.          At the conclusion of the hearings,

James and the movants were permitted to file closing briefs, which they did. One of the

movants’ requests to the court in their closing brief was that James be removed as Terese’s

guardian and be replaced with a “suitable alternative to be determined by the Probate

Court.” The movants also indicated in their brief that Julie was “able and willing to make

application to the Court to become Terese’s guardian.”

       {¶13} In May 2015, the magistrate issued his decision that upheld, for the most

part, James’s conduct and set forth a formal visitation schedule and guidelines for

communication. Over James’s objection, the court allowed movants to file objections to
the magistrate’s decision.4 In June 2015, the court overruled movants’ objections, and

adopted the magistrate’s recommendation to allow James to continue as the guardian, as

well as the recommended visitation schedule and communication guidelines.

       {¶14} In July 15, Julie, pro se, appealed; the other movant siblings did not join her

in this appeal. Julie has assigned the following three assignments of error for our review:

       I.   The probate court improperly denied appellant’s motion to intervene.

       II. The probate court failed to enter orders in the best interest of the ward
       to uphold her rights and to remove the guardian.

       III. The probate court’s decision failed to comport with the law and the
       evidence.



II. Law and Analysis

Julie’s Standing to Appeal

       {¶15} James contends that Julie “lacked standing to intervene in this case” and

therefore, we “should dismiss this appeal for lack of standing without the need for oral

argument.”    This court requested that Julie show cause as to how she, as a nonparty, has

standing to appeal.    See Motion Nos. 487930, 488702, and 489329. After review, we

find that Julie has standing to appeal the denial of her motion to intervene.

       {¶16} Generally, unless a person is a party in the lower court case, he or she does

not have standing to appeal.      In re Stanley, 9th Dist. Summit Nos. 20128, 20131, and

20132, 2000 Ohio App. LEXIS 4803, 7 (Oct. 11, 2000). An appeal may generally be


       4
        James’s objection was based on the movants’ nonparties status.
instituted by a party who is able to “demonstrate a present interest in the subject matter of

the litigation which has been prejudiced by the judgment of the lower court.” Willoughby

Hills v. C.C. Bar’s Sahara, Inc., 64 Ohio St.3d 24, 26, 591 N.E.2d 1203 (1992). To have

standing to appeal an order in a guardianship proceeding, the person claiming an interest in

the proceeding must have taken the “necessary procedural steps to protect that claimed

interest.” In re Guardianship of Santrucek, 120 Ohio St.3d 67, 2008-Ohio-4915, 896

N.E.2d 683, ¶ 5.

       {¶17} In Santrucek, the party attempting to appeal was the daughter (an Arizona

resident) of a 96-year-old woman; the daughter attempted to challenge the trial court’s

subject matter jurisdiction.   The ward (the 96-year-old mother) had been moved from

Michigan to Ohio by her other daughter, who resided in Ohio and who filed an application

in Ohio to be designated the mother’s guardian.    The Arizona daughter contended that her

mother had been moved involuntarily, and filed a motion challenging the Ohio court’s

subject matter jurisdiction.   The Arizona daughter had filed a petition for appointment of

conservator in Michigan, which under Michigan law, operates similar to guardian of estate

in Ohio.

       {¶18} The trial court ruled that it had jurisdiction, and the Arizona daughter

appealed. The Fifth Appellate District held that the daughter did not have standing and

dismissed her appeal. In re Guardianship of Santrucek, 5th Dist. Licking No. 06CA130,

2007-Ohio-3427.

       {¶19} On appeal to the Ohio Supreme Court, the court held that a person who has
not applied to be appointed the guardian of an Ohio resident, and also has taken no other

step to become a party to the guardianship proceedings, does not have standing to appeal

decisions of the probate court. Santrucek, 120 Ohio St.3d 67, 2008-Ohio-4915, 896

N.E.2d 683, at ¶ 8-12.    The court specifically stated that the daughter could have filed a

motion to intervene.     “Ordinarily, in order to have the right to appeal, one must either

have been a party to the case in the trial court or have attempted to intervene as a party.”

Painter and Dennis, Ohio Appellate Practice, Section 1:27 (2007 Ed.). Thus, a person

who is not a party to an action and has not attempted to intervene as a party lacks standing

to appeal. In re Addington, 4th Dist. Scioto No. 94 CA 2271, 1995 Ohio App. LEXIS

3240, 5 (July 31, 1995), citing State ex rel. Jones v. Wilson, 48 Ohio St.2d 349, 358

N.E.2d 605 (1976).

       {¶20} But guardianship proceedings are different in nature from other civil actions.

 Specifically, guardianship proceedings are not adversarial; rather, they are in rem

proceedings involving only the probate court and the ward.      Santrucek at 69.   Because

of the nature of the proceedings, therefore, the “requirements for standing to appeal are

more elaborate.” Id.      For example, in Santrucek, the Arizona daughter, who sought to

appeal, as mentioned, had not filed a motion to intervene, and therefore, had not been a

party to the trial court proceeding.   The Ohio Supreme Court stated that in order to have

standing to appeal, she had to have been a party and had “an interest that was prejudiced

by the decision of the probate court * * *.” Id. The court noted that the daughter’s

interest would have been challenging Ohio’s jurisdiction and protecting her Michigan
petition for being named conservator.

       {¶21} Here, Julie did attempt to become a party in the proceedings by filing a

motion to intervene.      For the reasons stated above, because of the nature of the

proceedings, the filing of the motion to intervene does not automatically grant her standing

to appeal, however.    Our review of the record demonstrates that, although Julie and her

movant siblings were not parties, the trial court afforded them considerable opportunity to

be heard and participate.       But, because of her nonparty status, Julie was foreclosed from

Terese’s medical records, which she unsuccessfully sought to obtain. We find that that

constitutes an interest in the proceeding and that Julie was prejudiced from her ability to

pursue it because of the trial court’s denial of her motion to intervene.   She, therefore, has

standing to file this appeal.      Januzzi v. Hickman, 61 Ohio St.3d 40, 45, 572 N.E.2d 642

(1991).   Her standing is limited, however, to appealing the denial of her motion to

intervene. See In re D.S., 9th Dist. Summit No. 24554, 2009-Ohio-4658, ¶ 7. We now

consider the merits of Julie’s motion to intervene.

Civ.R. 24(A) Intervention

       {¶22} Julie filed her motion to intervene under Civ.R. 24(A), which governs

intervention of right, and provides as follows:

       (A) Intervention of right. Upon timely application anyone shall be
       permitted to intervene in an action: (1) when a statute of this state confers
       an unconditional right to intervene; or (2) when the applicant claims an
       interest relating to the property or transaction that is the subject of the action
       and the applicant is so situated that the disposition of the action may as a
       practical matter impair or impede the applicant’s ability to protect that
       interest, unless the applicant’s interest is adequately represented by existing
       parties.
(Emphasis added.)

       {¶23} The Ohio Supreme Court has referred to the liberal construction generally

accorded Civ.R. 24 in favor of intervention. State ex rel. Watkins v. Eighth Dist. Court of

Appeals, 82 Ohio St.3d 532, 534, 696 N.E.2d 1079 (1998). One objective a liberal

construction of Civ.R. 24(A) serves is judicial economy, by avoiding a multiplicity of

actions.   Creter v. Council of City of Westlake, 8th Dist. Cuyahoga No. 49848, 1985 Ohio

App. LEXIS 6764, 2 (Aug. 1, 1985).

       {¶24} Our review of a judgment granting or denying a motion to intervene is the

abuse of discretion standard.             In re R.W., 8th Dist. Cuyahoga No. 101742,

2015-Ohio-1031, ¶ 13. A court abuses its discretion when it acts in an unreasonable,

arbitrary, or unconscionable manner. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219,

450 N.E.2d 1140 (1983).5

       {¶25} In denying Julie’s motion to intervene, the trial court relied on In re

Guardianship of Spangler, 126 Ohio St.3d 339, 2010-Ohio-2471, 933 N.E.2d 1067.

Spangler did provide, as the trial court referenced, that nonparties to a guardianship

proceeding with information relating to the guardianship may relay their information and

concerns to the court.      The Spangler court reasoned that the probate court, as “superior

guardian,” has the authority to receive information from nonparties, and also to remove a


       5
         “Commentators suggest that the discretion afforded the trial court under the intervention as of
right provisions of Civ.R. 24(A), which provides that the court ‘shall’ permit intervention, is a more
limited form of discretion than the discretion afforded by Civ.R. 24(B) for permissive intervention.”
In re J.T.F., 2d Dist. Greene No. 12-CA-03, 2012-Ohio-2105, ¶ 21.
guardian on its own.

       {¶26} But Spangler is somewhat distinguishable from this case, in that it involved a

county board of developmental disabilities that sought to intervene, while this case

involves a sibling who sought to intervene. We recognize that Julie being related to

Terese does not in and of itself confer party status upon Julie.         See Santrucek, 120 Ohio

St.3d 67, 2008-Ohio-4915, 896 N.E.2d 683, at ¶ 12.

But, under the circumstances in this case, we find that Julie had an interest in the

proceeding (attempting to obtain Terese’s medical records), her interest may be impeded

by not being a party, and it is not presently aligned with James’s interest.6 Thus, with the

liberal construction of Civ.R. 24(A) in mind, balanced with the unique nature of guardian

proceedings, we find that the trial court abused its discretion in this case by not allowing

Julie to intervene.

       {¶27} In light of the above, the first assignment of error is sustained. The second

and third assignments of error are disregarded.

       {¶28} Judgment reversed as it relates to the denial of Julie’s motion to intervene;

                                                                                                       7
case                                           remanded.



       It is ordered that appellant recover of appellee costs herein taxed.



       6
         Any attempt Julie may make to obtain Terese’s medical records will be governed by the
Health Information Portability and Accountability Act of 1996 (“HIPPA”).
       7
        Because Julie was the only movant who appealed, this court’s judgment relates solely to her.
      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this court directing the Cuyahoga

County Court of Common Pleas Probate Division to carry this judgment into execution.




      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.




LARRY A. JONES, SR., ADMINISTRATIVE JUDGE

MARY J. BOYLE, J., and
FRANK D. CELEBREZZE, JR., J., CONCUR
