[Cite as In re J.W., 2011-Ohio-5191.]


                                        COURT OF APPEALS
                                     FAIRFIELD COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


                                               :   JUDGES:
IN THE MATTER OF:                              :   William B. Hoffman, P.J.
                                               :   Sheila G. Farmer, J.
          J.W. AND P.W.                        :   Julie A. Edwards, J.
                                               :
                                               :   Case Nos. 11-CA-2, 11-CA-3,
                                               :   11-CA-4 and 11-CA-5
                                               :
                                               :
                                               :   OPINION




CHARACTER OF PROCEEDING:                            Civil Appeal from Fairfield County
                                                    Court of Common Pleas, Probate
                                                    Division, Case Nos. 00066857 and
                                                    00066856

JUDGMENT:                                           Reversed and Remanded

DATE OF JUDGMENT ENTRY:                             October 3, 2011

APPEARANCES:

For Appellants                                      For Appellant Echo Brown

SUSAN WASSERMAN                                     STEVEN D. ROWE
5350 East Main Street                               ERICA ANN PROBST
Columbus, Ohio 43213                                Kemp, Schaeffer & Rose Co., LPA
                                                    88 West Mount Street
                                                    Columbus, Ohio 43213

For Guardian Jeffrey Feyko

JOHN SNIDER
Stebelton Aranda & Snider
109 N. Broad Street, Ste. 200
Lancaster, Ohio 43130
[Cite as In re J.W., 2011-Ohio-5191.]


Edwards, J.

        {¶1}     Appellants, Echo Brown, J.W. and P.W., appeal from the December 14,

2010, Entries of the Fairfield County Probate Court.

                                STATEMENT OF THE FACTS AND CASE

        {¶2}     On October 7, 2010, Jeffrey Feyko filed an Application in Fairfield County

Probate Case No. 00066856 to be appointed the Guardian of appellant J.W. The

application alleged that appellant J.W. was incompetent due to senile dementia, mental

impairment and an inability to care for himself. On the same date, Feyko filed an

application in Fairfield County Probate Case No. 00066857 to be appointed the

Guardian of appellant P.W. The application alleged that appellant P.W. was

incompetent due to dementia, mental impairment and an inability to care for herself.

Feyko had no relationship to either appellants J.W. or P.W. On the same day, Feyko

filed expert evaluations in both cases from a licensed physical opining that

guardianships should be established for both appellants J.W. and P.W.

        {¶3}     A hearing on the applications was scheduled for October 28, 2010.

        {¶4}     On October 7, 2010, Feyko also filed motions in both cases asking that

the court grant him the authority to place and maintain appellants J.W. and P.W. in a

nursing home and/or medical facility and to sign any documents required by the same

during the pendency of the applications for guardianship. Pursuant to Entries filed in

both cases on the same day, the motions were granted.

        {¶5}     Thereafter, appellants P.W. and J.W. filed an objection in both cases to

the appointment of Feyko as Guardian. In their objections, they asked that if the trial

court determined that Guardianships were necessary, appellant Echo Brown, the
Fairfield County App. Case Nos. 11-CA-2, 11-CA-3, 11-CA-4 and 11-CA-5                   3


spouse of their grandson, be appointed their Guardian. Appellants J.W. and P.W., on

October 14, 2010, filed waivers of notice and consent, indicating that they consented to

the appointment of appellant Echo Brown as Guardian. Appellant Echo Brown, on

October 14, 2010, filed applications in both cases to be appointed Guardian. In her

applications, she indicated that the prospective wards were incompetent by reason of

“mental impairment as a result of mental or physical illness or disability.”

       {¶6}   As memorialized in Entries filed in both cases on October 22, 2010, the

trial court scheduled an oral hearing on the objection to Jeffrey Feyko as Guardian for

November 29, 2010.

       {¶7}   On October 22, 2010, Charlene Miller, a court investigator, filed reports in

both cases on the proposed guardianship. She recommended that Jeffrey Feyko be

appointed Guardian for both appellant J.W. and appellant P.W. because they needed

assistance to care for their personal, medical and/or financial decisions.

       {¶8}   Subsequently, on November 4, 2010, Rebecca Cooper, a Certified Long

Term Care Ombudsman from Catholic Social Services, filed a letter with the trial court

objecting to the appointment of Feyko as Guardian. Cooper, in her letter, indicated that

her office had been contacted in order to investigate a complaint that appellants J.W.

and P.W. were being held against their will at Crestview Manor Nursing Home and that

she was aware that Feyko had applied for Guardianship after receiving a referral from

Crestview. Cooper, in her letter, stated, in relevant part, as follows:

       {¶9}   “Mr. Feyko requested and was granted a motion providing him with the

authority to place and maintain the proposed ward in a nursing home facility and/or

medical facility during the pendency of the application for guardianship. According to
Fairfield County App. Case Nos. 11-CA-2, 11-CA-3, 11-CA-4 and 11-CA-5                    4

both the nursing home staff and Adult Protective Services staff, the immediate health

and well-being of the proposed ward mandate continued nursing home placement.

       {¶10} “I believe that this motion is based upon competing interests.

Crestview Manor is currently suing these individuals, and it is assumed that their referral

to Mr. Feyko was made under their assumption that the money owed will be more easily

obtained through a guardian. I am also aware that the Adult Protective Services

caseworker, Patty, has previously and currently represented herself to our

agency as an employee of Mr. Feyko. The Adult Protective Services caseworker

therefore demonstrates a conflict of interest in her role to make recommendations that

these individuals require continued nursing home placement during the pending status

of the guardianship application.”

       {¶11} Appellants J.W. and P.W., on November 10, 2010, filed letters in both

cases asking that they be provided with legal representation in order to contest Jeffrey

Feyko’s Applications for Guardianship. They requested that an oral hearing be held so

that they could testify on their own behalf. In response to such letter. Charlene Miller,

the Court Investigator, made a return visit to Crestview Manor Nursing Home and spoke

with appellants J.W. and P.W. In a letter to the court filed on November 19, 2010, Miller

indicated that she explained to them and they were not indigent, that the trial court could

not appoint them counsel and that they would need to seek counsel on their own. Miller,

in her letter, further indicated that appellants J.W. and P.W. were “shocked and upset

stating that they never wrote to the court requesting an attorney”, although they

admitted the letter contained their signatures.
Fairfield County App. Case Nos. 11-CA-2, 11-CA-3, 11-CA-4 and 11-CA-5                      5


      {¶12} A hearing on Feyko’s Applications for Guardianship was held on

November 29, 2010. At the hearing, both appellant J.W. and P.W., who were not

represented by counsel, indicated to the trial court that they wanted appellant Echo

Brown to be the Guardian. The only witness to testify was Patricia Ciripompa, an

investigator for Adult Protective Services (APS) who is employed by Fairfield County

Job and Family Services. Ciripompa testified that APS has had nine referrals regarding

appellants J.W. and P.W. starting in 2000. She testified that in 2000, appellant J.W. was

identified with a history of alcohol and drug abuse and that the house was very

cluttered. She testified that the caregiver, who was a relative, had a hard time because

appellants J.W. and P.W. did not comply and would not allow APS into their house. In

2003, a caseworker attempted to get into the home, which had a bad odor coming from

it, but was refused admittance and the case was closed. The following is an excerpt

from Ciripompa’s testimony:

      {¶13} “Q. What is your understanding, Patty, with regard to [appellants J.W. and

P.W.] accepting or agreeing to accept the services of any family member who has

offered to assist them in the past?

      {¶14} “A. Since the time of our first referral and in getting to know a little bit more

of the family history throughout all nine referrals, what we have encountered is a very

consistent pattern.

      {¶15} “Q. Which is?

      {¶16} “A. [Appellants J.W. and P.W.] will accept help temporarily in crisis from

any of their family members, but then very shortly afterward will threaten the family

members, accuse them of stealing, accuse them of abuse, kick them out of the house.
Fairfield County App. Case Nos. 11-CA-2, 11-CA-3, 11-CA-4 and 11-CA-5                  6


At one point they accepted home health temporarily, but then it was reported to us on,

during I think back in 2009 that, uh, one nurse was threatened with a gun by [appellant

J.W.] Um, family members have tried, I think multiple family members have tried and

multiple family members have reported us, to us over time. Um, [appellants J.W. and

P.W.] are, ‘agitated, argumentative and threatening me,’ whoever the caregiver was at

the time reporting, ‘horribly.’

       {¶17} “‘There are guns in the home and they, [appellants J.W. and P.W.], do

threaten to use them.’ ‘[Appellants J.W. and P.W.] accuse us, family members, of

stealing.’ We were contacted when [appellants J.W. and P.W.], um, were in their home

at one point by a family member who was frantic and said they are tearing self (sic) up

and they are very confused and they are livid that some of their things were thrown

away in an attempt to clean the home. At one point a family member told us, ‘I feel

strongly that these folks need placement for care. They have run off all the family who

could or would try to help them and there is no one left to take care of them.’ ‘They are

confused, shaky and argumentative.’ Every family member that we’ve, whom we have

talked with, um, in the past, consistently, has been concerned about others in the family

blaming them for one thing or another.        They blame, have blamed each other.

[Appellants J.W. and P.W.] have kind of kept this going. This is a pattern of always

stirring the pot with family members and making sure that they were always in a state of

turmoil.” Transcript at 8-10.

       {¶18} Based on the foregoing, Ciripompa opined that no family member should

be appointed Guardian, but rather that an objective third-party who was not living or

residing with appellants J.W. and P.W. should be appointed.
Fairfield County App. Case Nos. 11-CA-2, 11-CA-3, 11-CA-4 and 11-CA-5                 7


        {¶19} On cross-examination by appellant Echo Brown’s counsel, Ciripompa

stated that she had not consulted with appellant Echo Brown. She testified that she

thought that appellants J.W. and P.W. should have round-the-clock care in a nursing

home.

        {¶20} Pursuant to Entries filed in both cases on December 14, 2010, the trial

court overruled and dismissed the objections to the Applications of Jeffrey Feyko as

Guardian and granted Feyko’s Applications. The trial court, in its Entries, found

appellant Echo Brown to be unsuitable to serve as a Guardian and found both appellant

J.W. and appellant P.W. to be incompetent.

        {¶21} On January 11, 2011, appellant Echo Brown filed Notices of Appeal from

the trial court’s two December 14, 2010 Entries. Her appeals were assigned Case Nos.

11 CA 2 and 11 CA 3. On the same date, appellant P.W. filed a Notice of Appeal from

the trial court’s December 14, 2010, Entry in her case. Her appeal was assigned Case

No. 11 CA 4. Also on January 11, 2011, appellant J.W. filed a Notice of Appeal from

the trial court’s December 14, 2010, Entry in his case. His appeal was assigned Case

No. 11 CA 5. Pursuant to a Judgment Entry filed on January 27, 2011, this Court

consolidated the appeals.

        {¶22} On April 25, 2011, a Suggestion of Death was filed, stating that appellant

J.W. had passed away on April 20, 2011.

        {¶23} Appellants now raise the following assignments of error on appeal:

        {¶24} “I. THE TRIAL COURT ERRED AS A MATTER OF LAW BY APPROVING

THE APPLICATION FOR GUARDIANSHIP OF J.W. AND P.W. BECAUSE IT DID NOT
Fairfield County App. Case Nos. 11-CA-2, 11-CA-3, 11-CA-4 and 11-CA-5                                  8


COMPLY WITH THE MANDATES SET FORTH IN SECTION 2111.02 OF THE OHIO

REVISED CODE.

        {¶25} “II. THE TRIAL COURT ORDER APPROVING THE APPLICATION FOR

GUARDIANSHIP OF J.W. AND P.W. WAS IN ERROR BECAUSE THE APPLICANT

DID NOT PROVIDE CLEAR AND CONVINCING EVIDENCE OF J.W. AND P.W.’S

INCOMPETENCE.

        {¶26} “III. THE TRIAL COURT ORDER APPROVING THE APPLICATION FOR

GUARDIANSHIP OF J.W. AND P.W. WAS IN ERROR BECAUSE THERE EXISTED

LESS RESTRICTIVE ALTERNATIVES.”

                                                        I

        {¶27} Appellants Echo Brown and P.W.,1 in their first assignment of error, argue

that the trial court erred by approving the Application for Guardianship of appellant P.W.

because the same did not comply with the mandates set forth in R.C. 2111.02.

        {¶28} R.C. 2111.02 states, in relevant part, as follows: “(C) Prior to the

appointment of a guardian or limited guardian under division (A) or (B)(1) of this section,

the court shall conduct a hearing on the matter of the appointment. The hearing shall be

conducted in accordance with all of the following: …

        {¶29} “(3) If the hearing concerns the appointment of a guardian or limited

guardian for an alleged incompetent, the burden of proving incompetency shall be by

clear and convincing evidence;…




1
 Due to the Suggestion of Death of J.W. that was filed with this Court on April 25, 2011, the assignments
shall be addressed in relation to appellants P.W. and Echo Brown only.
Fairfield County App. Case Nos. 11-CA-2, 11-CA-3, 11-CA-4 and 11-CA-5                    9


          {¶30} “(7) If the hearing concerns the appointment of a guardian or limited

guardian for an alleged incompetent, the alleged incompetent has all of the following

rights:

          {¶31} “(a) The right to be represented by independent counsel of the alleged

incompetent's choice;

          {¶32} “(b) The right to have a friend or family member of the alleged

incompetent's choice present;

          {¶33} “(c) The right to have evidence of an independent expert evaluation

introduced;

          {¶34} “(d) If the alleged incompetent is indigent, upon the alleged incompetent's

request:

          {¶35} “(i) The right to have counsel and an independent expert evaluator

appointed at court expense;

          {¶36} “(ii) If the guardianship, limited guardianship, or standby guardianship

decision is appealed, the right to have counsel appointed and necessary transcripts for

appeal prepared at court expense.”

          {¶37} Appellants specifically maintain, in part, that appellant P.W. was denied

her right to be represented by independent counsel of her choice at the November 29,

2010, oral hearing. As is stated above, appellants P.W., on November 10, 2010, filed

letter asking that she be provided with legal representation in order to contest Jeffrey

Feyko’s Application for Guardianship. In a letter to the court filed on November 19,

2010, Charlene Miller, the court investigator, indicated that she explained to appellant

P.W. that she was not indigent, that the trial court could not appoint her counsel and
Fairfield County App. Case Nos. 11-CA-2, 11-CA-3, 11-CA-4 and 11-CA-5                     10


that she would need to seek counsel on her own. Miller, in her letter, further indicated

that appellant P.W. was “shocked and upset” and indicated that she never wrote to the

court requesting an attorney, although she admitted the letter contained their

signatures.

       {¶38} We note that, under R.C. 2111.02(C)(7)(a), the alleged incompetent is

afforded the right to be represented by independent counsel of his or her choice. At the

hearing on November 29, 2010, appellant P.W., who previously had filed a written

request for counsel with the trial court, was unrepresented by counsel, and was not

advised of her right to be represented by independent counsel. No inquiry was made

into either her desire to obtain counsel or her financial ability to do so. Based on the fact

that, despite her written request for counsel, she later indicated to Charlene Miller that

she had never requested an attorney, the trial court should have inquired into such

matter to ensure that appellant P.W. was not confused as to her rights. We note that

there is no indication that appellant P.W. waived her right to counsel. In contrast, see In

the Matter of Furgione (Nov. 2, 1995), Cuyahoga App. No. 67715, 1995 WL 643709. In

such case, the alleged incompetent waived his right to counsel in open court and there

was no evidence that he was unable to make an intelligent waiver of his right to

counsel.

       {¶39} Based on the foregoing, appellants’ first assignment of error is sustained.
Fairfield County App. Case Nos. 11-CA-2, 11-CA-3, 11-CA-4 and 11-CA-5                11


                                               II, III

       {¶40} Appellants, in their second and third assignments of error, argue that the

trial court erred in approving Feyko’s Application for Guardianship of appellant P.W.

when there was not clear and convincing evidence of her incompetence and where

there existed less restrictive alternatives.

       {¶41} Based on our disposition of appellants’ first assignment of error,

appellants’ second and third assignments of error are moot.

       {¶42} Accordingly, the judgment of the Fairfield County, Probate Division, is

reversed and this matter is remanded for further proceedings.




By: Edwards, J.

Farmer, J. concurs

Hoffman, P.J. dissents

                                                         ______________________________



                                                         ______________________________



                                                         ______________________________

                                                                  JUDGES

JAE/d0729
Fairfield County App. Case Nos. 11-CA-2, 11-CA-3, 11-CA-4 and 11-CA-5                  12



Hoffman, P.J., dissenting

       (¶43) I respectfully dissent from the majority opinion.

       (¶44) There is no record evidence to demonstrate P.W. was indigent.           The

court’s investigator Charlene Miller explained to P.W. she was ineligible for appointed

counsel. Appellee argues the applications for appointment by both Feyko and Brown

indicate sufficient assets to render P.W. ineligible. Notably P.W. offers no rebuttal to

this argument in her reply brief to this Court.

       (¶45) Given the fact P.W. did not contest the appointment of a guardian but

merely desired Echo Brown be selected, and given the fact Echo Brown was

represented by counsel at the hearing, I find P.W.’s interests were adequately

protected. There is no affirmative record indication of the denial of the right to counsel

nor did P.W. request a continuance to secure counsel.

       (¶46) I would overrule Appellant’s first assignment of error.



                                                  ________________________________
                                                  HON. WILLIAM B. HOFFMAN
[Cite as In re J.W., 2011-Ohio-5191.]


              IN THE COURT OF APPEALS FOR FAIRFIELD COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT


IN THE MATTER OF:                              :
                                               :
           J.W. AND P.W.                       :
                                               :
                                               :
                                               :       JUDGMENT ENTRY
                                               :
                                               :
                                               :
                                               :       CASE NOS. 11-CA-2, 11-CA-3,
                                                       11-CA-4 AND 11-CA-5




    For the reasons stated in our accompanying Memorandum-Opinion on file, the

judgment of the Fairfield County Court of Common Pleas, Probate Division, is reversed

and remanded to the trial court for further proceedings. Costs assessed to Jeffrey

Feyko.




                                                   _________________________________


                                                   _________________________________


                                                   _________________________________

                                                                JUDGES
