[Cite as In re Guardianship of Waters, 2013-Ohio-4132.]



                                    IN THE COURT OF APPEALS

                           TWELFTH APPELLATE DISTRICT OF OHIO

                                           WARREN COUNTY




IN THE MATTER OF:                                         :
                                                              CASE NO. CA2012-04-035
        THE GUARDIANSHIP OF                               :
        JULIA WATERS                                                OPINION
                                                          :          9/23/2013

                                                          :

                                                          :



             APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS
                             PROBATE DIVISION
                             Case No. 2011 2031



Gray and Duning, John C. Kaspar, 130 East Mulberry Street, Lebanon, Ohio 45036, for
Respondent-Appellant, Julia Waters

Carol Garner-Stark, 9435 Waterstone Boulevard, Suite #140, Cincinnati, Ohio 45249, for
Petitioners-Appellees, Lisa Frye and Gretchen Gibbons-Black, Co-Guardians



        FAIN, J.

        {¶ 1} Julia Waters appeals from an order of the trial court finding her incompetent,

and appointing co-guardians of her person. The order is not against the manifest weight of

the evidence. Nor did the trial court err in declining to find that a less restrictive alternative to

the guardianship exists. Accordingly, the order of the trial court from which this appeal is

taken is affirmed.
                                                                              Warren CA2012-04-035

                         I. Facts Established at Guardianship Hearing

        {¶ 2} Waters had lived in Trinity Manor, an independent living facility in Middletown,

Ohio, for about five years. At some point, she sustained a hip fracture while living there, as a

result of which she was treated at the Atrium Medical Center in January 2011. When she

was discharged from the hospital, she was taken to The Cedars of Lebanon, an assisted

living center in Lebanon, Ohio. She did not like being at The Cedars and wanted to return to

her apartment at Trinity Manor. At the time of the guardianship hearing, in August and

October 2011, Waters had been paying her rent at Trinity Manor, hoping to return, but was

still at The Cedars.

        {¶ 3} In its Judgment Entry overruling objections to the magistrate's decision and

adopting that decision as the order of the trial court, the trial court found the following facts:

                     In the case sub judice, the Application for Appointment of
                     Guardian stated that [Waters] is incompetent by reason of
                     dementia. The Statement of Expert Evaluation filed on April 19,
                     2011 was completed by Dr. [Rakesh M.] Kaneria at Atrium
                     Medical Center. The evaluation stated [Waters] is mentally
                     impaired as a result of a psychosis and dementia diagnoses.
                     Said Evaluation was completed on January 11, 2011 and the
                     parties stipulated to the report being admitted into evidence at
                     trial. * * * Dr. Kaneria noted in the evaluation that [Waters] was
                     disoriented, physically impaired,1 paranoid, and incapable of
                     caring for herself on a daily basis. In conclusion, Dr. Kaneria
                     recommended that a guardianship be established. [Waters']
                     objection questions the reliability of Dr. Kaneria's expert
                     evaluation alleging [Waters] was under the influence of
                     hydrocodone while the evaluation was being administered. Dr.
                     Kaneria's evaluation was completed on January 11, 2011, not
                     April 19, 2011 as proposed by [Waters]. The evaluation
                     specifies that [Waters] was not under the influence of
                                      2
                     hydrocodone and that none of her medications at the time
                     would have cause[d] mental impairments. There is no evidence


1. Waters was hospitalized as a result of a hip fracture, which had completely healed at the time of the
guardianship hearing.

2. Dr. Kaneria's evaluation does not list hydrocodone as one of the medications Waters was under at the time,
and does not otherwise mention hydrocodone.


                                                    2
                                                                               Warren CA2012-04-035

                     that causes the Court to question the validity of the Expert
                     Evaluation.

                     Though the Expert Evaluation was completed nine months
                     before trial, Dr. Kaneria's findings were later corroborated by
                     the Investigator's Report and trial testimony. In the Court
                     Investigator's Report filed on May 25, 2011, Ms. Lewis stated
                     [Waters] is incapable of handling her own finances, preparing
                     her meals, and driving. Also, [Waters] is on numerous
                     medications which she is unable to administer herself. Ms.
                     Lewis noted [Waters] has impaired memory and judgment
                     skills. Ms. Lewis interviewed [Waters'] brother and sister who
                     both claim [Waters] suffers from a long-term mental illness.
                                                                                    3
                     During the last couple years, [Waters] has fractured her wrists
                     and hip. She refused elderly services offered by Adult
                     Protective Services and would not submit to psychiatric
                     treatment at Cedars [of Lebanon]. Based upon the foregoing,
                     Ms. Lewis found a guardianship of the person was necessary.
                     [Footnote omitted.]

                     All of the health professionals at Cedars, who have assisted in
                     [Waters'] care over the past nine months, testified [Waters] is
                     unable to take proper care of herself. While [Waters] presented
                     two witnesses who testified as to her ability to live
                     independently, neither has interacted with [Respondent] over
                     the course of the past year. Nor does their testimony align with
                     the pictures of [Waters'] apartment that were submitted into
                     evidence by Petitioner. The condition of [Waters'] apartment
                     shown in Plaintiff's [sic] Exhibits 1-12 reveals the residence is
                     cluttered, unclean, and full of empty pizza boxes. Given
                     [Waters'] history of paranoia and psychosis, the Court finds
                     [Waters'] accusation that her relatives are responsible for her
                     apartment’s disarray to be unfounded.

                     The most telling evidence of [Waters'] mental health condition
                     and paranoia was her eccentric and somewhat
                                                                                    4
                     incomprehensible testimony at the October 4, 2011 trial.
                     [Waters] was oriented regarding the date and location of the
                     hearing, but her testimony was often unresponsive to
                     questions. When asked if she wanted the court to deny the
                     guardianship, [Waters] replied, "Oh definitely because those
                     people in that building, we have wristbands on. They had a
                     wristband on here when I hurt it like Martha Stewart wristband."


3. We have only found evidence in the record that Waters sustained the fracture of one wrist during that time.

4. The hearing before the magistrate was conducted on August 9, 2011, and October 4, 2011. Waters testified
on October 4, 2011.


                                                     3
                                                                               Warren CA2012-04-035

                     * * * . [Waters] was offered physical therapy and stated she
                     would accept it now if she could return to Trinity Manor,
                     because in the past she "was always willing, I just couldn't
                     present yourself without your social security card and that was
                     stolen when I went with my preacher." * * * . When asked
                     which bank her money was in, she responded, "Fifth Third, but
                     they're saying they're going to take our bank accounts, move
                     them to another state. Leave us with thirty dollars a month and
                     this new company came from overseas so they have Cedars of
                     Lebanon and Cedarview [Health Care and Rehab, which is
                     affiliated with The Cedars of Lebanon] and they say that they
                     take everything from us. We’ll live on thirty dollars a month." *
                     **.

                     [Waters'] objection contends that her physical ailments have
                     healed to the extent she no longer is in need of full-time care
                     and is ready to leave Cedars. The Court does not contest that
                     the hip injury which originally brought [Waters] to Cedars has
                     subsided. However, the Court concludes [Waters] suffers from
                     psychosis, paranoia, dementia, and physical infirmity. As a
                                                             5
                     result of these irreversible diagnoses, [Waters] is no longer
                     able to properly care for herself. Based upon the testimony
                     presented, the Expert Evaluation, and the Investigator's Report,
                     the Court finds by clear and convincing evidence that [Waters]
                     is an incompetent person.

                     ***

                     [Waters'] objection contends that a guardianship is not
                     necessary because she is able to dress and feed herself. She
                     argues she is capable of handling her finances because she
                     has continued to pay her rent to Trinity Manor. Thus, [Waters]
                     believes returning to Trinity Manor without a guardianship in
                     place is a practical less restrictive alternative, because she can
                     apply for assisted living services that would satisfy her need for
                     around the clock care. However, numerous witnesses testified
                     at trial regarding [Waters'] tendency to refuse services and
                     therapy.

                     [Waters] argues that her prior history of declining elderly
                     services and therapy implies that she is stubborn, not in need of
                     a guardian. Yet, over the course of the past few years,
                     [Waters] has repeatedly failed to act in her own best interest.
                     For example, the Investigator's Report states [Waters] walked
                     around her apartment for days with a fractured hip before

5. In the prognosis section of his expert evaluation, Dr. Kaneria checked the "no" box to the question: "Is the
condition reversible."


                                                     4
                                                                     Warren CA2012-04-035

                    calling for medical assistance. She also refused physical
                    therapy in 2011 to help her heal her broken wrist and was
                    sleeping on the floor at her old apartment. [Waters] refuses to
                    take her mental health medications at times because she is
                    convinced she has been misdiagnosed. * * * These decisions
                    do not indicate [Waters] is stubborn, rather they exhibit
                    [Waters'] extreme disregard for her own health and safety.

                    After careful consideration, the Court concludes returning to
                    Trinity Manor is not a suitable alternative for [Waters]. At this
                    time, she is in need of full time professional care and
                    assistance with her medical decisions. [Waters'] objection
                    declares she is willing to employ similar resources to facilitate
                    her own full time care at Trinity Manor. However, she has had
                    multiple opportunities in the past to do so and failed to take
                    advantage of services offered to her. Without a guardianship of
                    the person in place, [Waters] may very well refuse to cooperate
                    and choose to resort back to her previous lifestyle. Also, due to
                    the lack of involvement by [Waters'] family, no other viable
                    alternative exists. The Court finds a guardianship of the person
                    of [Waters] is reasonable, necessary, and in her best interest.

       {¶ 4} We have reviewed the record, including the transcripts of the hearings before

the magistrate, Dr. Kaneria's expert evaluation, the special investigator's report, and the

twelve photographs admitted in evidence at the hearing. We conclude that, with the

exceptions noted above in the footnotes to this opinion, the evidence in the record supports

the trial court's findings of fact.

                                II. The Course of Proceedings

       {¶ 5} Ryan Insprucker, Kara Frederick, Amy Spears, and Lisa Lucas, of LifeSpan,

Inc., have applied to be co-guardians of the person of the Respondent, Julia Waters. There

is no application for a guardianship of her estate.

       {¶ 6} The application, opposed by Waters, was heard before a magistrate on two

dates, August 9 and October 4, 2011. At the conclusion of the hearing, the magistrate

approved the application, found Waters to be incompetent, and appointed the Petitioners as

co-guardians of Waters' person. The trial court immediately adopted the magistrate's



                                               5
                                                                     Warren CA2012-04-035

decision, subject to objection. Waters objected, contending that the evidence did not support

a finding that she was incompetent and, in the alternative, that her return to Trinity Manor,

with around-the-clock services, was a suitable, less restrictive alternative, rendering the

establishment of a guardianship unnecessary.

       {¶ 7} The trial court overruled Waters' objection, and entered a Judgment Entry

adopting the decision of the magistrate as the order of the trial court. From the guardianship

order, Waters appeals.

  III. The Guardianship Order Is Not Against the Manifest Weight of the Evidence

       {¶ 8}   Waters' first assignment of error is as follows:

       {¶ 9} THE      TRIAL     COURT'S      DETERMINATION          THAT     APPELLANT        IS

INCOMPETENT IS CONTRARY TO THE MANIFEST WEIGHT OF THE EVIDENCE.

       {¶ 10} This appeal involves the understandable desire of a senior citizen to preserve

as much independence as possible during her declining years.

       {¶ 11} A probate court may appoint a guardian of the person of an incompetent, upon

finding both incompetency, by clear and convincing evidence, and the necessity of appointing

a guardian.    R.C. 2111.02(A); R.C. 2111.02(C)(3).         "Incompetent" is defined in R.C.

2111.01(D) as "any person who is so mentally impaired as a result of a mental or physical

illness or disability, or mental retardation, or as a result of chronic substance abuse, that the

person is incapable of taking proper care of the person's self or property * * * ." In the case

before us, the petitioners sought, and obtained, only an order of guardianship of Waters'

person, not her property.

       {¶ 12} In this assignment of error, Waters contends the trial court's finding of

incompetency is against the manifest weight of the evidence. The manifest-weight-of-the-

evidence standard of appellate review set forth in State v. Thompkins, 78 Ohio St.3d 380,



                                              6
                                                                     Warren CA2012-04-035

678 N.E.2d 541 (1997), applies in civil cases. Eastley v. Volkman, 132 Ohio St.3d 328,

2012-Ohio-2179, 972 N.E.2d 517,¶ 17-23. Under Thompkins:

           Weight of the evidence concerns "the inclination of the greater amount
           of credible evidence, offered in a trial, to support one side of the issue
           rather than the other. It indicates clearly to the jury that the party
           having the burden of proof will be entitled to their verdict, if, on
           weighing the evidence in their minds, they shall find the greater
           amount of credible evidence sustains the issue which is to be
           established before them. Weight is not a question of mathematics, but
           depends on its effect in inducing belief." (Emphasis added.) Black's
           [Law Dictionary (6 Ed.1990)], supra, at 1594.

           When a court of appeals reverses a judgment of a trial court on the
           basis that the verdict is against the weight of the evidence, the
           appellate court sits as a "'thirteenth juror'" and disagrees with the fact-
           finder's resolution of the conflicting testimony. Tibbs [v. Florida], 457
           U.S. at 42, 102 S.Ct. at 2218, 72 L.Ed.2d at 661. See also State v.
           Martin (1983), 20 Ohio App.3d 172, 175, 20 OBR 215, 219, 485
           N.E.2d 717, 720-721 ("The court, reviewing the entire record, weighs
           the evidence and all reasonable inferences, considers the credibility of
           witnesses and determines whether in resolving conflicts in the
           evidence, the jury clearly lost its way and created such a manifest
           miscarriage of justice that the conviction must be reversed and a new
           trial ordered. The discretionary power to grant a new trial should be
           exercised only in the exceptional case in which the evidence weighs
           heavily against the conviction.").

State v. Thompkins at 387.

       {¶ 13} We conclude that the trial court's finding of incompetency is not against the

manifest weight of the evidence. For the most part, the trial court did not find Waters'

testimony credible. The trial court rejected Waters' claim that the state of disarray found in

her apartment in late February 2011 had been caused by her relatives, not by her. That

disarray, the fact that Waters had waited for days to seek medical attention for her fractured

hip, her refusal of physical therapy, and her refusals to take prescribed mental health

medications because of her belief that she has been misdiagnosed, all support the trial

court's conclusion that she cannot be relied upon to take proper care of herself.

       {¶ 14} The trial court's finding of incompetency is also supported by the expert


                                              7
                                                                               Warren CA2012-04-035

evaluation of the psychiatrist, Dr. Kaneria. In that evaluation, Dr. Kaneria found impairment

of Waters' orientation, speech, motor behavior, thought process, affect, memory,

concentration and comprehension, and judgment. Dr. Kaneria described these impairments:

"Disoriented with time and situation, garbled speech, psychomotor agitation + tremor,

disorganized thoughts, labile affect, poor short term memory, poor concentration, poor

comprehension, poor judgment." Dr. Kaneria checked the "no" box to the question: "Do you

believe the individual is capable of caring for the individual's activities of daily living or making

decisions concerning medical treatments, living arrangements and diet?" In his explanation

for this answer, Dr. Kaneria wrote: "Poor self-care, limited social support, no medical card,

needs rehab and physical therapy after hip surgery, but refusing ECF/Rehab. Very paranoid,

would not allow assistance."

        {¶ 15} Finally, the trial court considered the testimony of Waters, herself. Like the trial

court, we have only a transcript of her testimony. Like the trial court, we find that some of her

responses were lucid, but many were not. Some of her testimony, on direct examination, as
                             6
well as on cross-examination, was not responsive to the question asked, and exhibited

disorientation and paranoia. In characterizing some of her responses as exhibiting paranoia,

we distinguish between a testifying litigant's rational belief that her interests may be adversely

affected by court proceedings, and an irrational distrustfulness of others not based on

objective reality.

        {¶ 16} To be sure, Waters presented some evidence from employees at Trinity Manor

that she had been doing well while caring for herself during her residency there. But on this

record, we conclude that the trial court could reasonably find, by clear and convincing

evidence, that the contrary evidence on this subject, which was more recent, was more


6. Waters' cross-examination, covering just six and one-half pages of transcript, was not aggressive; it was at
most mild, if not gentle.


                                                     8
                                                                      Warren CA2012-04-035

persuasive.

       {¶ 17} Finally, Waters cites Cruzan by Cruzan v. Director, Missouri Dept. of Health,

497 U.S. 261, 110 S.Ct. 2841, 111 L.Ed.2d 224 (1990), for the proposition that: "It is

assumed, however, that Ms. Waters has the right to refuse medical treatment." We read

Cruzan to stand for the proposition "that a competent person has a constitutionally protected

liberty interest in refusing unwanted medical treatment * * *." Id. at 278. In our view, that

does not preclude consideration of a persistent, irrational refusal to accept medical treatment

as evidence of incompetency.

       {¶ 18} We conclude that the trial court's finding of incompetency is not against the

manifest weight of the evidence. Waters' first assignment of error is overruled.

     IV. The Trial Court Did Not Err in Finding that a Guardianship Is Necessary

       {¶ 19} Waters' second assignment of error is as follows:

       {¶ 20} THE TRIAL COURT’S DETERMINATION THAT A GUARDIANSHIP IS

NECESSARY IS IN ERROR, AS A LESS RESTRICTIVE ALTERNATIVE TO

GUARDIANSHIP EXISTS.

       {¶ 21} Besides finding that Waters was incompetent to care for her own person, the

trial court was required to find that a guardianship of her person was necessary. In this

assignment of error, Waters argues that the trial court should have found that her return to

Trinity Manor was a less restrictive alternative to a guardianship of her person.

       {¶ 22} The trial court rejected this argument, finding from Waters' multiple rejections of

assistance that she could not be relied upon to provide for her own care if she were to return

to her life at Trinity Manor, without a guardianship. For all of the reasons set forth in Part III,

above, we conclude that there is competent and credible evidence to support this finding.

       {¶ 23} Waters' second assignment of error is overruled.



                                               9
                                                                 Warren CA2012-04-035

                                     V. Conclusion

       {¶ 24} Both of Waters' assignments of error having been overruled, the judgment of

the trial court is affirmed.


       FROELICH and HALL, JJ., concur.



       (Hon. Mike Fain, Hon. Jeffrey E. Froelich, and Hon. Michael T. Hall, Second District
Court of Appeals, sitting by assignment of the Chief Justice of the Supreme Court of Ohio).




                                           10
