[Cite as In re Guardianship of Shear, 2017-Ohio-8169.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 105330




                  IN RE: GUARDIANSHIP OF
              MARSHA LYNN SHEAR, INCOMPETENT

                           [Appeal by Marsha Lynn Shear]




                                           JUDGMENT:
                                            AFFIRMED


                                     Civil Appeal from the
                            Cuyahoga County Court of Common Pleas
                                       Probate Division
                                Case No. 2009 GRD 1039690B

        BEFORE: McCormack, J., E.A. Gallagher, P.J., and Celebrezze, J.

        RELEASED AND JOURNALIZED: October 5, 2017
APPELLANT

Marsha L. Shear, pro se
1348 Brookline Road, #A103
Cleveland, OH 44121-2570


ATTORNEY FOR APPELLEE

David L. Drechsler
Buckingham, Doolittle & Burroughs
1375 East Ninth Street, Ste. 1700
Cleveland, OH 44114
TIM McCORMACK, J.:

      {¶1} Marsha L. Shear, ward of the Cuyahoga County Probate Court, appeals the

decision of the trial court regarding her motion to review, in which she requested

termination of the guardianship over her.       Following a review of the record and

arguments in this case, we affirm the trial court’s decision denying the termination of

guardianship.

      {¶2} On October 25, 2016, Ms. Shear filed a motion to review the guardianship

over her.   The magistrate conducted a hearing on the motion on November 14, 2016.

Ms. Shear and her brother, Howard Shear, who is also her guardian, attended the hearing.

 Thereafter, the magistrate issued a decision recommending the guardianship be

continued. Ms. Shear filed objections to the magistrate’s decision. The trial court

overruled the objections and adopted the magistrate’s decision. In doing so, the trial

court found that Ms. Shear failed to provide satisfactory proof that the necessity for the

guardianship no longer exists pursuant to R.C. 2111.47 and, therefore, the motion to

terminate guardianship should be denied.

       {¶3} Ms. Shear now appeals the trial court’s decision.      In her pro se appellate

brief, however, Ms. Shear fails to set forth actual assignments of error pursuant to App.R.

16. Notwithstanding the omission, we construe the thrust of her appeal, as stated in her

“Questions Presented,” is whether the guardianship over her should continue.

Appellee-guardian, Mr. Shear, likewise responds to this issue.
       {¶4} The probate court has broad discretion regarding the appointment of

guardians.    In re Guardianship of Poulos, 8th Dist. Cuyahoga No. 96366,

2011-Ohio-6472, ¶ 16, citing In re Estate of Bednarczuk, 80 Ohio App.3d 548, 551, 609

N.E.2d 1310 (12th Dist.1992). Decisions regarding the appointment of guardians will

not be reversed absent an abuse of that discretion. Id.

       {¶5} Regarding the termination of a guardianship, Ohio law presumes that once a

person is found to be incompetent, he or she remains incompetent.      In re Guardianship

of Pinkney, 8th Dist. Cuyahoga No. 102577, 2015-Ohio-2709, ¶ 8, citing Poulos at ¶ 18;

In re Guardianship of Michael, 10th Dist. Franklin No. 07AP-264, 2007-Ohio-5967.

This presumption, however, is rebuttable.   Id.

       {¶6} Under R.C. 2111.47, a guardianship may be terminated “upon satisfactory

proof that the necessity for the guardianship no longer exists.” “Satisfactory proof” is

evidence that “causes the presumption to disappear where such evidence to the contrary []

counterbalances the presumption * * *.” Michael at ¶ 6, quoting In re Breece, 173 Ohio

St. 542, 184 N.E.2d 386 (1962).        Therefore, the sole issue before the court in a

proceeding to terminate the guardianship of an incompetent is whether the ward has

presented “satisfactory proof that the necessity for the guardianship no longer exists,” and

where such “satisfactory proof” is presented, the court is under a mandatory duty to

terminate the guardianship. See Breece, supra.

       {¶7} Here, the magistrate held a hearing on Ms. Shear’s motion to review the

guardianship and, thus, terminate the guardianship.       As the hearing commenced, the
magistrate took notice of a statement of expert evaluation filed in December 2015 by the

ward’s regular psychiatrist, Gretchen Gardner, M.D., in which Dr. Gardner indicated a

need for an ongoing guardianship.      Ms. Shear’s guardian also presented a more recent

statement of expert evaluation filed on November 9, 2016, that was prepared by John

Sanitato, M.D. Dr. Sanitato indicated a need for a continuing guardianship as well.

       {¶8} The guardian testified that his sister’s mental status has declined to the point

where he believes that nursing home placement will be necessary and he believes the

guardianship should be continued.      He explained that his sister requires long-term care

because she does not take care of herself, and he referred to Dr. Sanitato’s report.

       {¶9} Thereafter, Ms. Shear testified in a rather incoherent manner.        She stated

that the guardianship process is a fraud, she has been “decompensated based upon what

claims have been fictitiously made,” and she has been the victim of identity theft.     Ms.

Shear presented the court with spreadsheets concerning her monthly bills, to which she

repeatedly referred in response to the magistrate’s questions.        When the magistrate

explained to Ms. Shear that she needed to provide evidence for the court to consider, she

was unable to do so.

       {¶10} In his findings of fact, the magistrate noted that Ms. Shear has been under

guardianship since 2000 and both experts in the case agreed that guardianship should

continue.   The magistrate further noted that Dr. Sanitato’s recent report included a

“lengthy narrative statement” that established that Ms. Shear, who had been diagnosed

with Schizoaffective Disorder and Bipolar Disorder, suffers from “severe thought
disorder, aggressive behavior, and grandiose and paranoid delusions” that requires

“ongoing injectable medication.”

       {¶11} In denying Ms. Shear’s motion, the magistrate found that Ms. Shear failed to

provide any relevant information that would support termination of the guardianship.

Rather, the magistrate stated, the information Ms. Shear presented at the hearing was

“rambling, tangential, and not in the least bit supportive of terminating the guardianship.”

 While noting that Ms. Shear is “an intelligent, educated woman,” the magistrate found

that she “unfortunately, has no insight into her mental illness.”   The magistrate therefore

determined that Ms. Shear failed to meet her burden of proof to demonstrate restored

mental capacity and the guardian continues to sustain his burden of clear and convincing

evidence of the ward’s mental disability. In adopting the magistrate’s decision, the court

agreed that Ms. Shear presented no evidence to warrant termination of the guardianship

and the guardian was acting in Ms. Shear’s best interest.

       {¶12} In light of the above, we find that the trial court did not abuse its discretion

in refusing to terminate the guardianship over Ms. Shear. Ms. Shear was unable to

produce any “satisfactory proof” that the necessity for the guardianship no longer existed.

       {¶13} Ms. Shear’s sole assignment of error is overruled.

       {¶14} Judgment affirmed.

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

       The court finds there were reasonable grounds for this appeal.
       It is ordered that a special mandate issue out of this court directing the probate

court 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.



___________________________________________________
TIM McCORMACK, JUDGE

EILEEN A. GALLAGHER, P.J., and
FRANK D. CELEBREZZE, JR., J., CONCUR
