[Cite as In re Guardianship of Atkins, 2019-Ohio-2276.]



                                     IN THE COURT OF APPEALS

                           TWELFTH APPELLATE DISTRICT OF OHIO

                                          CLERMONT COUNTY




IN RE:                                                :

       THE GUARDIANSHIP OF                            :   CASE NO. CA2018-08-061
       DAVID SCOTT ATKINS
                                                      :        OPINION
                                                                6/10/2019
                                                      :

                                                      :

                                                      :




           APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS
                            PROBATE DIVISION
                           Case No. 2017 GI 1416



Durkee & Uhle, LLC, Richard B. Uhle, Jr., 284 North Street, Batavia, Ohio 45103, for
appellee

Mark J. Tekulve, 785 Ohio Pike, Cincinnati, Ohio 45245, for appellant



         PIPER, J.

         {¶ 1} Appellant, Diandra Stevens, appeals a decision of the Clermont County Court

of Common Pleas, Probate Division, appointing appellee, Scott Atkins, guardian of the

couple's child.

         {¶ 2} Diandra and Scott were married, and had two children before divorcing in 2004.

Both children are autistic and require special care. Following the divorce, Diandra was
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designated custodial parent of both children. However, five years later, Scott was granted

custody of the children and each parent had approximately equal parenting time. Diandra

appealed the change of custody, and this court affirmed. Atkins v. Stevens, 12th Dist.

Clinton No. CA2012-04-009, 2012-Ohio-6177.

      {¶ 3} When the parties' older child, David, turned 18, Diandra filed an application in

the probate court to be appointed his guardian. The parties agree that David requires a

guardian because he is unable to care for himself given his degree of autism. However,

Scott also applied to be appointed his guardian. The matter was therefore litigated before a

magistrate. During the hearing, both parties submitted medical records, expert evaluations,

and testimony from lay witnesses.

      {¶ 4} The magistrate issued a decision appointing Scott guardian. Diandra then filed

objections to the magistrate's decision, which were overruled by the probate court. Diandra

now appeals the probate court's decision, raising the following assignments of error, which

we will combine for discussion as the issues are interrelated.

      {¶ 5} Assignment of Error No. 1:

      {¶ 6} THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN

APPOINTING APPELLEE AS GUARDIAN.

      {¶ 7} Assignment of Error No. 2:

      {¶ 8} THE TRIAL COURT'S DETERMINATION THAT APPELLEE WAS THE MORE

SUITABLE PERSON TO BE GUARDIAN WAS AGAINST THE MANIFEST WEIGHT OF

THE EVIDENCE.

      {¶ 9} Diandra argues in her assignments of error that the probate court erred in

appointing Scott as David's guardian because the decision is against the manifest weight of

the evidence.

      {¶ 10} In matters relating to guardianship, the probate court is required to act in the
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best interest of the ward. In re Guardianship of Collins, 12th Dist. Warren No. CA2013-08-

072, 2014-Ohio-5750, ¶ 9. 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 Smith, 12th Dist. Butler No. CA2013-09-165, 2014-Ohio-2119, ¶

19. An abuse of discretion constitutes more than an error of law or judgment; it requires a

finding that the trial court acted unreasonably, arbitrarily, or unconscionably. In re E.S.K.,

12th Dist. Clermont No. CA2018-07-053, 2019-Ohio-1588, ¶ 41.

       {¶ 11} When determining whether a court's decision is against the manifest weight of

the evidence, an appellate court weighs the evidence and all reasonable inferences,

considers the credibility of witnesses, and determines whether in resolving conflicts in the

evidence, the finder of fact clearly lost its way and created such a manifest miscarriage of

justice that the judgment must be reversed. In re S.M., 12th Dist. Warren Nos. CA2018-08-

088 thru CA2018-08-091 and CA2018-08-094 thru CA2018-08-097, 2019-Ohio-198, ¶ 16.

The presumption in weighing the evidence is in favor of the finder of fact. In re C.Y., 12th

Dist. Butler Nos. CA2014-11-231 and CA2014-11-236 thru CA2014-11-238, 2015-Ohio-1343,

¶ 25. If the evidence is susceptible to more than one construction, an appellate court is

bound to give the evidence the interpretation that is consistent with the judgment. In re K.M.,

12th Dist. Butler No. CA2019-01-015, 2019-Ohio-1833, ¶ 46.

       {¶ 12} Diandra argues that the probate court's decision was against the manifest

weight of the evidence, and thus an abuse of discretion, because, among other things, the

court failed to apply proper weight to: Scott's past criminal history, Scott's denial of Diandra's

parenting time, and Scott's failure to keep David current on his vaccinations. Diandra also

asserts that she would make a better guardian for David given her education and profession,

which includes assisting those with autism. However, a review of the record indicates that

the probate court's decision was not against the manifest weight of the evidence and that no
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abuse of discretion occurred.

       {¶ 13} The evidence at the hearing showed that David had been in Scott's custody for

six years and had progressed in his behavioral issues since Scott placed David in a public-

school program. For example, when David first started the program, he exhibited 100

minutes a day of aggressive behavior, which had since decreased to 20 minutes for the

entire quarter. Scott continually assisted with David's education and employed, at his own

expense, several experts to guide him, including an education attorney and a behavioral

analyst. The evidence demonstrates that David has done well, and continues to do well

regarding education and ongoing care.

       {¶ 14} Diandra asserts that the court did not give enough weight to the fact that Scott

was convicted of OVI and domestic violence in 2002 and 2004 respectively. However, Scott

has not been a repeat offender, and there was no evidence that Scott is violent or has trouble

with alcohol. The probate court determined that Scott's having no convictions in the interim

14 years demonstrates that he has "dealt appropriately with these issues and that this is not

a recurring pattern of behavior." We agree and find no abuse of discretion in the probate

court's finding. Diandra was unable to produce any evidence that Scott continues to engage

in domestic violence or that he has a problem with alcohol or that Scott's past behavior

negatively impacts David.

       {¶ 15} While Diandra does not believe the court gave enough consideration to her

education and professional knowledge, the record indicates that the court considered that

Diandra is well educated and has professional knowledge of autism. However, the court

noted that "there are other factors besides education that go into the determination of

guardianship." We agree.

       {¶ 16} The record establishes that David needs structure in his life, and has had such

while in Scott's care. While in Scott's custody, David's behavior improved greatly as
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evidenced by David's interaction with peers, an increased ability to handle his emotions, and

a decrease in self-harming behavior. David has not required hospitalization for any behavior-

related issues since custody was transferred to Scott, which is an important measure of

David's well-being. These strides were made because of the resources Scott implemented

for his son. The court noted that Scott, though he lacks the same formal education as

Diandra, was "more open, flexible and focused on David as a person than [Diandra]."

       {¶ 17} The record also demonstrates that despite Diandra's education and work

experience, Scott was the parent more likely to be transparent when communicating with the

other parent regarding David. While Diandra testified that Scott withheld parenting time from

her and that she would facilitate shared parenting time, Scott testified that he experienced

lack of communication and parenting time because of Diandra. The court found Scott more

"open and his testimony to be more straightforward" than Diandra. We will not disturb that

credibility determination.

       {¶ 18} Nor will we disturb the first-hand observation of the court that "the temperament

and demeanor displayed by [Scott] is more consistent with that which is required to discharge

the fiduciary duties of a guardian than that displayed by [Diandra]." The court heard

evidence that Diandra has shown a tendency to overreact in response to some issues and

reacts too quickly to other issues to gain control over David or his medical needs. As noted

earlier, David requires consistency and structure in his life, and Scott had provided such for

the six years prior to the hearing date while maintaining an appropriate disposition in handling

his son's holistic care.

       {¶ 19} We note the record contains an abundance of information that both parents are

attentive, compassionate, and obviously have great concern for David's continued well-being

and development. However, the depth of their commitment to David also demonstrates a

continued disagreement regarding David's treatment and needs. As such, a single guardian
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is in David's best interest. Based on the evidence and testimony from the hearing, the

probate court determined that Scott was the more "appropriate person to tend to David's best

interests." We find no abuse of discretion in this decision, as such was supported by the

manifest weight of the evidence. Diandra's two assignments of error are therefore overruled.

      {¶ 20} Judgment affirmed.


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




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