[Cite as In re Guardianship of Spangler, 126 Ohio St.3d 339, 2010-Ohio-2471.]




                         IN RE GUARDIANSHIP OF SPANGLER.
[Cite as In re Guardianship of Spangler, 126 Ohio St.3d 339, 2010-Ohio-2471.]
Guardianships — Removal of guardian — County boards of developmental
        disabilities have no authority to petition probate court for removal of
        guardian of incompetent adult — Probate court, under its plenary
        authority as superior guardian, may sua sponte conduct proceedings to
        remove guardian.
    (No. 2009-0121 — Submitted December 2, 2009 — Decided June 9, 2010.)
  APPEAL from the Court of Appeals for Geauga County, Nos. 2007-G-2800 and
                            2007-G-2802, 2008-Ohio-6978.
                                 __________________
                               SYLLABUS OF THE COURT
County boards of developmental disabilities have not been granted the express or
        implied authority to file a motion to remove the guardian of an
        incompetent adult; however, the probate court, with its plenary authority
        as the superior guardian, may upon notice from a county board of
        developmental disabilities conduct proceedings to remove a guardian.
                                 __________________
        LANZINGER, J.
        {¶ 1} In this case we are asked to determine whether a county board of
developmental disabilities has the statutory authority and standing to file a motion
to remove a guardian of an incompetent adult. We hold that county boards of
developmental disabilities have not been granted the express or implied authority
to file a motion to remove the guardian of an incompetent adult; however, the
probate court, with its plenary authority as the superior guardian, may upon notice
from a county board of developmental disabilities conduct proceedings to remove
                                SUPREME COURT OF OHIO




a guardian. We, therefore, affirm in part, vacate in part, and remand for further
proceedings.
                                       Case History
        {¶ 2} Appellee John Spangler is currently 22 years old and suffers from
autism, mental retardation, and mitochondrial disease. After John turned 18, his
parents, appellees Gabriele and Joseph Spangler, filed an application to be
appointed John’s permanent guardians.             Appellant Geauga County Board of
Mental Retardation and Developmental Disabilities1 (the “board”) participated in
the hearings on the matter and supported the parents’ application. At one of those
hearings, the probate court warned the mother:
        {¶ 3} “I’m going to give some consideration to appointing a guardian ad
litem to go out and do investigation as to whether you’re the most suitable
guardians or not. It’s very important that he has someone who cares a lot about
him, and obviously you do.
        {¶ 4} “And I haven’t heard anything from your husband yet, but
apparently from the interactions that others have had, they feel that he is a very
caring individual, too.
        {¶ 5} “But you do have to be making good decisions. And I will be
attempting to judge the decisions that you’re making.
        {¶ 6} “If you’re not making decisions that are in your son’s best
interests, in terms of placement, I would consider appointing someone other than
you and your husband to be your son’s guardian.”
        {¶ 7} Ultimately, on July 18, 2006, as a result of John’s mental and
physical conditions, the probate court appointed the parents unlimited guardians
of John’s person.


1. During the pendency of this cause, the General Assembly passed 2009 Sub.S.B. No. 79
(effective October 6, 2009), which changed the name of county boards of mental retardation and
developmental disabilities to county boards of developmental disabilities.




                                              2
                               January Term, 2010




       {¶ 8} Three months later, the board filed a motion to remove the parents
as John’s guardians and to appoint Advocacy and Protective Services, Inc.
(“APSI”) as successor guardian. The motion alleged that the mother had created
conflict with John’s providers and threatened to remove him from their care. The
motion was supported by a letter from John’s current provider, who stated that
there was “an immediate danger to the welfare and safety of John.” The probate
court granted the motion to remove on a temporary basis, appointed APSI as
temporary guardian for John, and set the matter for hearing the following week.
At that hearing, the board and the parents agreed to a six-month continuance of
the hearing and the appointment of APSI as temporary guardian.
       {¶ 9} In January 2007, however, the parents moved for an emergency
order removing APSI and appointing the father as guardian. APSI responded
with a motion to dismiss the parents’ emergency motion and requested joinder of
the board as a necessary party and appointment of a guardian ad litem. The
parents opposed the motion to join the board as a party and later filed a motion to
dismiss the board’s motion for removal of the parents as guardians, arguing that
the board had no statutory authority or standing to file such a motion. The
probate court denied the parents’ motion to remove APSI and set a hearing in
April 2007 on whether the parents would be permitted to serve as John’s
guardians.
       {¶ 10} Before the April 2007 hearing, the probate court joined the board
as a party to the removal proceedings for purposes of prosecuting its motion to
remove the parents as guardians and denied the parents’ motion to dismiss the
board’s motion. At a second hearing two months later, John filed his own motion
to dismiss the board from the case, arguing that the board lacked statutory
standing to be considered a party. Acknowledging the motion, the court stated:
       {¶ 11} “That issue has previously been addressed.




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       {¶ 12} “It’s my view that they are an interested party, that the Agency is
required to provide services, they had information, that preserves this ward
allowing them to participate as a party for purposes of assisting the Court in
making a decision regarding this issue of who is going to be the guardian.
       {¶ 13} “In fact, I don’t know how this would have been brought to the
Court if the Agency been notified [sic], so I’m the one that says they are going to
be, continue a party at least as long [as] this issue is pending.”
       {¶ 14} After a third hearing and an in camera interview with John, the
matter was submitted to the probate court. In its entry, the trial court found that
the statutory obligations imposed on the board for John’s benefit are fiduciary in
nature and the board therefore had standing to file the motion to remove the
parents. The probate court then found that despite John’s need for structure and
consistency in his life, his mother “repeatedly, impulsively sought changes in
John’s placements and services without giving due consideration to the opinion of
professionals working with John and without having first secured alternative more
appropriate services.” Moreover, John’s father “is either unable or unwilling to
intercede objectively and assertively in disputes that have arisen between care
providers and his wife.” Finding that there was good cause and that it was in
John’s best interest, the probate court removed the parents as John’s guardians
and ordered that ASPI continue as the legal guardian for his person.
       {¶ 15} The parents and John separately appealed to the Eleventh District
Court of Appeals. In a split decision, the appellate court reversed. The lead
opinion concluded that the board had not been granted the statutory authority,
express or implied, to file a motion to remove a guardian and thus lacked general
standing to petition the court to remove the guardian. The concurrence focused
on R.C. Chapters 2109 and 2111 and determined that the board was not the real
party in interest and thus lacked standing. The dissent viewed the general duties




                                           4
                                January Term, 2010




of the board as sufficient to establish the board as an “interested party,” allowing
the board to object to the guardian.
       {¶ 16} We accepted the board’s discretionary appeal to determine whether
a board of mental retardation and developmental disabilities has the authority and
standing to request that a probate court remove a guardian of an incompetent adult
and whether the probate court has the authority to conduct proceedings to remove
a guardian upon the board’s request. In re Guardianship of Spangler, 121 Ohio
St.3d 1498, 2009-Ohio-2511, 907 N.E.2d 323.
                                  Legal Analysis
       Powers and Duties of County Boards of Developmental Disabilities
       {¶ 17} “Each county shall have its own county board of developmental
disabilities.” R.C. 5126.02(A). County boards, being creatures of statute, have
no more authority than that specifically conferred upon them or clearly implied by
the statute. See D.A.B.E., Inc. v. Toledo-Lucas Cty. Bd. of Health, 96 Ohio St.3d
250, 2002-Ohio-4172, 773 N.E.2d 536; Burger Brewing Co. v. Thomas (1975), 42
Ohio St.2d 377, 379, 71 O.O.2d 366, 329 N.E.2d 693. Implied powers are those
that are incidental or ancillary to an expressly granted power; the express grant of
power must be clear, and any doubt as to the extent of the grant must be resolved
against it. State ex rel. A. Bentley & Sons Co. v. Pierce (1917), 96 Ohio St. 44,
47, 117 N.E. 6.
       {¶ 18} The general powers and duties of county boards of developmental
disabilities are set forth in R.C. 5126.05(A), which gives the boards authority to
do the following:
       {¶ 19} “(1) Administer and operate facilities, programs, and services as
provided by this chapter and Chapter 3323. of the Revised Code and establish
policies for their administration and operation;




                                         5
                            SUPREME COURT OF OHIO




        {¶ 20} “(2) Coordinate, monitor, and evaluate existing services and
facilities available to individuals with mental retardation and developmental
disabilities;
        {¶ 21} “(3) Provide early childhood services, supportive home services,
and adult services, according to the plan and priorities developed under section
5126.04 of the Revised Code;
        {¶ 22} “(4) Provide or contract for special education services pursuant to
Chapters 3306., 3317., and 3323. of the Revised Code and ensure that related
services, as defined in section 3323.01 of the Revised Code, are available
according to the plan and priorities developed under section 5126.04 of the
Revised Code;
        {¶ 23} “(5) Adopt a budget, authorize expenditures for the purposes
specified in this chapter and do so in accordance with section 319.16 of the
Revised Code, approve attendance of board members and employees at
professional meetings and approve expenditures for attendance, and exercise such
powers and duties as are prescribed by the director;
        {¶ 24} “(6) Submit annual reports of its work and expenditures, pursuant
to sections 3323.09 and 5126.12 of the Revised Code, to the director, the
superintendent of public instruction, and the board of county commissioners at the
close of the fiscal year and at such other times as may reasonably be requested;
        {¶ 25} “(7)   Authorize    all   positions     of   employment,   establish
compensation, including but not limited to salary schedules and fringe benefits for
all board employees, approve contracts of employment for management
employees that are for a term of more than one year, employ legal counsel under
section 309.10 of the Revised Code, and contract for employee benefits;
        {¶ 26} “(8) Provide service and support administration in accordance with
section 5126.15 of the Revised Code;




                                         6
                               January Term, 2010




        {¶ 27} “(9) Certify respite care homes pursuant to rules adopted under
section 5123.171 of the Revised Code by the director of developmental
disabilities.”
        {¶ 28} Nothing in R.C. 5126.05(A) grants the board either express or
implied power to file a motion to remove a guardian. The trial court, however,
relied on another statute that it read as imposing fiduciary obligations on the
board. R.C. 5126.15(B) provides:
        {¶ 29} “The individuals employed by or under contract with a board to
provide service and support administration shall do all of the following:
        {¶ 30} “(1) Establish an individual's eligibility for the services of the
county board of developmental disabilities;
        {¶ 31} “(2) Assess individual needs for services;
        {¶ 32} “(3) Develop individual service plans with the active participation
of the individual to be served, other persons selected by the individual, and, when
applicable, the provider selected by the individual, and recommend the plans for
approval by the department of developmental disabilities when services included
in the plans are funded through medicaid;
        {¶ 33} “(4) Establish budgets for services based on the individual's
assessed needs and preferred ways of meeting those needs;
        {¶ 34} “(5) Assist individuals in making selections from among the
providers they have chosen;
        {¶ 35} “(6) Ensure that services are effectively coordinated and provided
by appropriate providers;
        {¶ 36} “(7) Establish and implement an ongoing system of monitoring the
implementation of individual service plans to achieve consistent implementation
and the desired outcomes for the individual;
        {¶ 37} “(8) Perform quality assurance reviews as a distinct function of
service and support administration;



                                         7
                            SUPREME COURT OF OHIO




       {¶ 38} “(9) Incorporate the results of quality assurance reviews and
identified trends and patterns of unusual incidents and major unusual incidents
into amendments of an individual's service plan for the purpose of improving and
enhancing the quality and appropriateness of services rendered to the individual;
       {¶ 39} “(10) Ensure that each individual receiving services has a
designated person who is responsible on a continuing basis for providing the
individual with representation, advocacy, advice, and assistance related to the
day-to-day coordination of services in accordance with the individual's service
plan. The service and support administrator shall give the individual receiving
services an opportunity to designate the person to provide daily representation. If
the individual declines to make a designation, the administrator shall make the
designation. In either case, the individual receiving services may change at any
time the person designated to provide daily representation.” (Emphasis added.)
       {¶ 40} As noted above, both R.C. 5126.15(B)(6) and (10) would appear to
require that county board of developmental disabilities employees work with
appointed guardians to ensure that services are properly coordinated for
individuals receiving their services.   In addition, employees are required to
monitor the implementation of individual service plans. R.C. 5126.15(B)(7).
However, ensuring coordination of services and monitoring their implementation
do not amount to an express or implied authority to initiate legal proceedings to
seek the removal of an appointed guardian, even if that guardian interferes with
service providers.
       {¶ 41} Furthermore, the General Assembly could have specifically
included language granting a county board of developmental disabilities the
authority to file a motion to remove an uncooperative guardian. County boards of
developmental disabilities have been granted authority to initiate legal
proceedings for the protection of an adult with mental retardation or a
developmental disability in other contexts.     For example, a county board of




                                        8
                                 January Term, 2010




developmental disabilities may file a complaint with the probate court to provide
protective services for an abused or neglected incompetent adult when the board
cannot secure consent for such services from either the adult or the guardian and
there is a substantial risk of immediate physical harm or death. R.C. 5126.33(A)
and (D). A county board of developmental disabilities may also apply to the
probate court for a temporary restraining order against anyone interfering with an
investigation of reported abuse or neglect or with the provision of services
designed to prevent or correct abuse or neglect of an adult with mental retardation
or a developmental disability. R.C. 5126.32. But neither of these statutes applies
because there has been no refusal of services and no allegation of abuse or neglect
or of substantial risk of immediate physical harm or death.
       {¶ 42} The board argues that no statute or rule limits a county board of
developmental disabilities to the procedures in R.C. 5126.33 to protect the health,
safety, and welfare of individuals under its care and supervision. Yet the absence
of a limitation on the board’s authority does not determine the question. Because
the board is governed by statute, there must be an express or implied grant of
authority allowing county boards of developmental disabilities to file a motion to
remove a guardian. The general duty under R.C. 5126.055(A)(4) “to ensure the
health, safety, and welfare of individuals receiving services from a county board
of developmental disabilities” does not equate to or imply a grant of authority to
interfere with the appointment of a guardian by the probate court.
       {¶ 43} Similarly, the board’s reliance on R.C. 305.14(C) as authority to
file such a motion is misplaced. That statute allows the board to hire legal
counsel without authorization from the common pleas court; it does not allow the
board to initiate any legal action it chooses.
       {¶ 44} We therefore hold that a county board of developmental
disabilities does not have the statutory authority to file a motion in the probate
court to remove a guardian.



                                           9
                             SUPREME COURT OF OHIO




                       Probate Court Is the Superior Guardian
       {¶ 45} Amicus curiae the state of Ohio and the board in its third
proposition of law urge that, irrespective of the powers and duties of a county
developmental disabilities board, the probate court has plenary authority to act
upon the information brought before it and to remove the parents as guardians for
their son. We agree.
       {¶ 46} As we have previously stated, “[i]t is a well-settled principle of law
that probate courts are courts of limited jurisdiction and are permitted to exercise
only the authority granted to them by statute and by the Ohio Constitution.
Corron v. Corron (1988), 40 Ohio St.3d 75, 77, 531 N.E.2d 708.” In re Hollins,
114 Ohio St.3d 434, 2007-Ohio-4555, 872 N.E.2d 1214, ¶ 11. The general grant
of jurisdiction to probate courts regarding guardians is comprehensive. R.C.
2101.24 states:
       {¶ 47} “(A)(1) Except as otherwise provided by law, the probate court has
exclusive jurisdiction:
       {¶ 48} “* * *
       {¶ 49} “(e) To appoint and remove guardians, conservators, and
testamentary trustees, direct and control their conduct, and settle their accounts.
       {¶ 50} “* * *
       {¶ 51} “(C) The probate court has plenary power at law and in equity to
dispose fully of any matter that is properly before the court, unless the power is
expressly otherwise limited or denied by a section of the Revised Code.”
       {¶ 52} In addition, the probate court is the “superior guardian,” and other
guardians must obey all probate orders: “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).




                                         10
                                January Term, 2010




       {¶ 53} 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 Santrucek, 120 Ohio St.3d 67, 2008-Ohio-
4915, 896 N.E.2d 683, ¶ 5. 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. In re Guardianship of Daugherty (Mar. 9,
1984), 7th Dist. Nos. 83-C-24 and 83-C-29, 1984 WL 7676. The guardian,
therefore, has no personal interest in his or her appointment or removal. Id.
       {¶ 54} It is also clear that the probate court has the plenary authority to
investigate guardians. We agree with the analysis used in In re Guardianship of
Herr (Sept. 2, 1998), 5th Dist. No. 98-CA-16-2, 1998 WL 666986. In Herr, the
attending physician and nursing staff at a nursing home contacted the probate
court with concerns that a guardian was unreasonably denying treatment of
emergency conditions to her ward due to the cost.          After the probate court
summoned the guardian for a hearing and removed her, she appealed, arguing that
the court did not have authority sua sponte to order her appearance in probate
court. The court of appeals held that the nursing home’s communication was
sufficient cause to allow the probate court to conduct a hearing concerning the
removal of the appellant as guardian. The appellate court stated: “Without the
inherent power to sua sponte consider removal, the court could find itself bound
to a guardian acting contrary to the interest of the ward, if no interested party is
available to initiate the proceedings by motion or petition.” Id. at *2.
       {¶ 55} The parents do not contest that had the board sent a letter to the
probate court, the court could have sua sponte initiated a hearing on whether to
remove them as guardians.          Instead, they seem to argue that because the
information came in the form of a motion from the board, the probate court was
barred from acting. Form, however, should not be allowed to triumph over the
substance of the issue involved.



                                         11
                             SUPREME COURT OF OHIO




       {¶ 56} We also do not agree that it is mere speculation that the probate
court would have acted if the board had simply notified the court of what had
occurred with John’s service providers.         The board had participated in the
hearings on the parents’ request to be appointed guardians, and although the board
ultimately supported the application, it expressed concern over several of the
mother’s decisions regarding her son.         Information obtained from the board
actually led the probate court to warn the mother that the court would not hesitate
to appoint another guardian if she failed to make good decisions. There was
sufficient cause for the probate court to call the guardian in for a hearing after it
heard allegations that, three months later, one of the guardians arrived
unexpectedly late at night and intoxicated at the home of John’s service providers
and threatened to remove him from a stable placement.
       {¶ 57} Because the court of appeals did not address the merits of the
probate decision to remove the parents as guardians, this matter must be
remanded to that court for resolution of the parents’ second through fourth
assignments of error.
                                    Conclusion
       {¶ 58} We hold that the General Assembly has not granted a county board
of developmental disabilities the express or implied power to file a motion to
remove a guardian. Nonetheless, the plenary power of the probate court as the
superior guardian allows it to investigate whether a guardian should be removed
upon receipt of sufficient information that the guardian is not acting in the ward’s
best interest. Thus, the court of appeals erred when, based on its holding that the
board lacked standing, it summarily ruled that the trial court erred in removing the
parents as guardians and when it mooted the assignment of error challenging the
removal order as being against the manifest weight of the evidence. We therefore
affirm the judgment of the Eleventh District in part, vacate it in part, and remand




                                         12
                                January Term, 2010




the matter to the court of appeals for resolution of the parents’ second and third
assignments of error.
                                                          Judgment affirmed in part
                                                                and vacated in part,
                                                               and cause remanded.
       LUNDBERG STRATTON, O’CONNOR, and CUPP, JJ., concur.
       PFEIFER and O’DONNELL, JJ., concur in part and dissent in part.
       BROWN, C.J., not participating.
                              __________________
       O’DONNELL, J., concurring in part and dissenting in part.
       {¶ 59} While I concur with the majority that a county board of
developmental disabilities does not have the express or implied authority to file a
motion to remove the guardian of an incompetent adult, I respectfully dissent
from the majority’s holding that the probate court, with its plenary authority as the
superior guardian, may, upon notice from a county board of developmental
disabilities, conduct proceedings to remove a guardian.
       {¶ 60} The Geauga County Board of Developmental Disabilities filed a
motion in the probate court to remove Joseph and Gabriele Spangler as guardians
of their son, John. The Spanglers moved to dismiss the motion, arguing that the
board lacked statutory authority and standing to file such a motion. The probate
court joined the board as an interested party in the matter, denied the Spanglers’
motion to dismiss, and then removed them as John’s guardians. On appeal, the
Eleventh District Court of Appeals reversed the decision of the probate court,
concluding that the board did not have the statutory authority to file a motion to
remove a guardian and thus had no standing to seek removal of a guardian.
       {¶ 61} The board appealed that decision to this court, and we accepted for
review three propositions of law: (1) a county board of developmental disabilities
has the right and the ability to request the probate court to take action in the best



                                         13
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interest of the ward, (2) the county board has standing to move the probate court
to remove an unsuitable guardian, and (3) the county board has standing to
participate in the probate court proceedings as an interested party.          In re
Guardianship of Spangler, 121 Ohio St.3d 1498, 2009-Ohio-2511, 907 N.E.2d
323.
       {¶ 62} In its merit brief, the board merged its third proposition of law into
the second and added a third proposition of law focused on the authority of the
probate court, not the standing of the county board: “A probate court has authority
to initiate and conduct proceedings to remove a guardian based on a motion from
a Board of Developmental Disabilities.” As the board did not raise this issue in
its memorandum in support of jurisdiction, it is not properly before us, and we
should decline to address it now. See In re Timken Mercy Med. Ctr. (1991), 61
Ohio St.3d 81, 87, 572 N.E.2d 673 (holding that an issue not raised or even
alluded to in appellant’s memorandum in support of jurisdiction is not properly
before the court); Estate of Ridley v. Hamilton Cty. Bd. of Mental Retardation &
Dev. Disabilities, 102 Ohio St.3d 230, 2004-Ohio-2629, 809 N.E.2d 2, ¶ 18
(declining to address an argument not raised by appellant in its memorandum in
support of jurisdiction).
       {¶ 63} Here, if the issue were properly before us, I would disagree with
the majority’s conclusion that a probate court has plenary authority to act upon
the information brought before it irrespective of the powers and duties of a county
board. As we stated in In re Guardianship of Hollins, 114 Ohio St.3d 434, 2007-
Ohio-4555, 872 N.E.2d 1214, “probate courts are courts of limited jurisdiction
and are permitted to exercise only the authority granted to them by statute and by
the Ohio Constitution.” Id. at ¶ 11, citing Corron v. Corron (1988), 40 Ohio St.3d
75, 77, 531 N.E.2d 708. R.C. 2101.24(C) grants the probate court “plenary power
at law and in equity to dispose fully of any matter that is properly before the
court.” (Emphasis added.)




                                        14
                                  January Term, 2010




       {¶ 64} The matter before the probate court in this case concerned a
motion to remove John’s parents as his guardians filed by the Geauga County
Board of Developmental Disabilities.           Thus, the question for this court’s
determination would be whether the board’s motion was properly before the
probate court. Because a county board of developmental disabilities does not
have the express or implied authority to file a motion to remove the guardian of
an incompetent, its motion to remove the Spanglers as John’s guardians was never
properly before the court. Consequently, the court lacked the plenary power to
remove John’s parents as his guardians, and in doing so, the court exceeded its
limited statutory jurisdiction.
       {¶ 65} Accordingly, I would affirm the decision of the Eleventh District
Court of Appeals and remand the case to the trial court for further proceedings.
       PFEIFER, J., concurs in the foregoing opinion.
                                  __________________
       David P. Joyce, Geauga County Prosecuting Attorney, and J.A. Miedema,
Assistant Prosecuting Attorney; and Hickman & Lowder Co., L.P.A., Franklin J.
Hickman, and Judith C. Saltzman, for appellant Geauga County Board of
Developmental Disabilities.
       Ohio Legal Rights Service, Derek S. Hamalian, Jason C. Boylan, and
Kerstin Sjoberg-Witt, for appellee John Spangler.
       Law Office of Pamela Walker Makowski and Pamela Walker Makowski,
for appellees Joseph and Gabriele Spangler.
       Richard Cordray, Attorney General, Benjamin C. Mizer, Solicitor General,
David M. Lieberman, Deputy Solicitor General, and Elizabeth G. Hartnett,
Assistant Attorney General, urging reversal for amicus curiae state of Ohio.
       Shane Egan, urging reversal for amicus curiae Advocacy and Protective
Services, Inc.
                             ______________________



                                          15
