[Cite as In re Guardianship of Weimer, 2019-Ohio-4295.]




                            IN THE COURT OF APPEALS OF OHIO
                               SECOND APPELLATE DISTRICT
                                   MONTGOMERY COUNTY

                                                     :
                                                     :
 IN THE MATTER OF THE                                :    Appellate Case No. 28327
 GUARDIANSHIP OF RICHARD E.                          :
 WEIMER                                              :    Trial Court Case No. 2018-GRD-193
                                                     :
                                                     :    (Appeal from Probate Court)
                                                     :
                                                     :
                                                     :

                                             ...........

                                             OPINION

                          Rendered on the 18th day of October, 2019.

                                             ...........

REBECCA BARTHELEMY-SMITH, Atty. Reg. No. 0003474, 7821 North Dixie Drive,
Dayton, Ohio 45414
      Attorney for Appellant Barbara Turner

EDWARD M. SMITH, Atty. Reg. No. 0010272, 109 North Main Street, Suite 500, Dayton,
Ohio 45402
      Attorney for Appellee Richard Weimer

                                            .............
                                                                                         -2-


FROELICH, J.

       {¶ 1} Barbara Turner, daughter of Richard E. Weimer, appeals from a judgment of

the Montgomery County Court of Common Pleas, Probate Division, which dismissed her

application for guardianship of her father. For the following reasons, the probate court’s

judgment will be affirmed.

                                  I. Procedural History

       {¶ 2} On July 24, 2018, Turner filed an application, pursuant to R.C. 2111.03, for

the appointment of a guardian for Weimer’s person and property.            The application

included a Statement of the Next of Kin of Proposed Ward (R.C. 2111.03(D)), which

indicated that Weimer had four adult daughters and was married to Geraldine Weimer.

The record reflects that Weimer and Geraldine married in March 2018, when Weimer was

83 years old and Geraldine was 86 years old.

       {¶ 3} No Statement of Expert Evaluation was attached to Turner’s application, and

the application itself did not indicate the reason Turner believed Weimer to be

incompetent. However, Turner’s Applicant’s Report1 stated that Weimer was unable to

perform many basic tasks of daily living by himself, that he previously had been diagnosed

with onset of dementia, and that his hygiene and appearance had deteriorated. Turner

claimed that Weimer’s wife was isolating him from his daughters. Concurrent with the

filing of the application, Turner filed a motion for order of independent expert evaluation,

stating that she did “not have access to proposed ward in order to take him to a qualified

physician for evaluation of his mental condition” and requesting an order requiring an



1An Applicant’s Report is required by Rule 66.1(A)(2) of the Local Rules of the
Montgomery County Probate Court.
                                                                                        -3-


independent expert to evaluate her father. The same day, the probate court granted the

motion for an independent expert evaluation and scheduled a hearing for September 11,

2018.

        {¶ 4} Notice of the guardianship application and the scheduled September 11

hearing was personally served on Weimer on July 31, 2018.           It is unclear whether

Weimer was served with the motion and order for an expert evaluation, although the

record reflects that he had personal knowledge of them.

        {¶ 5} On the same day (July 31), the court’s investigator filed an investigator’s

report on the guardianship petition. The report indicated that the investigator met with

Weimer and his wife at Weimer’s home. According to the investigator, the home was

cluttered and had stacks on the floor, creating a high risk of accidents. Weimer was

neatly and appropriately dressed, and reported being capable of eating, dressing,

transferring to a bed, toileting, and bathing. The investigator noted no impairments to

Weimer’s speech, thought process, and affect, but noted impairments to Weimer’s

orientation (person, place, time) and memory. The investigator reported that Weimer

knew he had four daughters, that two lived out of state, and that he had revoked one

power of attorney; he had forgotten that Turner also had one. The investigator wrote

that Weimer “seem[ed] to know of his finances and financial obligations.”

        {¶ 6} The investigator found that Weimer had a good understanding of the concept

of guardianship and that Weimer was opposed to it. Weimer reported to the investigator

that he (Weimer) would consult with his attorney. The report noted that no Statement of

Expert Evaluation had been provided, but also indicated that there was no need for

additional medical, psychiatric, or psychological testing. The investigator’s report stated
                                                                                        -4-


that the appointment of an independent expert evaluator was needed.

        {¶ 7} On August 9, 2018, Turner moved for an order referring Weimer to Sparks

Psychological Services for an independent expert evaluation. The probate court granted

the motion, stating that Weimer “will attend the appointment for evaluation at the date and

time schedule[d] with Sparks Psychological Services office.        Applicant, Barbara A.

Turner shall bring Richard E. Weimer to said appointment.”

        {¶ 8} In late August 2018, Weimer and his wife moved to Scioto County, Ohio.

        {¶ 9} On September 4, 2018, Weimer, through counsel, moved to dismiss the

guardianship application. He asserted that the application failed to state a claim under

R.C. Chapter 2111 in that it failed to specify how he was allegedly incompetent. Weimer

argued that Turner failed to comply with the requirement to support the application with a

Statement of Expert Evaluation, as required by Sup.R. 66(A). Weimer also argued that

he was not, in fact, incompetent, and he submitted expert evaluations from two of his

physicians, Dr. Andrew Diller and Dr. Frank E. Cunningham, both of whom concluded

that the request for guardianship should be denied. Additionally, Weimer stated that he

and his wife had moved to another county and were no longer residents of Montgomery

County. Further, he claimed that his wife would be the proper guardian, if one were

necessary. Weimer’s motion to dismiss described animosity by Turner and one of her

sisters toward Weimer’s new wife, Geraldine, and alleged that Turner’s guardianship

application was a “selfish” act on Turner’s part.

        {¶ 10} An initial hearing on the application was held before a magistrate on

September 11, 2018.2 No testimony was presented regarding Weimer’s competence,


2   Counsel for both Turner and Weimer appeared on their clients’ behalf, and Turner was
                                                                                         -5-


and the discussion mainly focused on the court’s jurisdiction to proceed in light of

Weimer’s relocation to another county.        The magistrate stated the court needed to

resolve its jurisdiction before addressing whether Weimer should be required to have

another evaluation. The magistrate ordered the parties to file additional memoranda

concerning the probate court’s jurisdiction, and he continued the hearing until October 9,

2018. The magistrate apparently conducted another hearing on October 9, 2018, but a

transcript of that hearing is not in the record.3

       {¶ 11} On October 11, 2018, Weimer moved to vacate the entry ordering an

independent expert evaluation and referring him to Sparks Psychological Services,

claiming that Turner had sought an evaluation from Dr. Diller, one of the physicians who

had provided an evaluation, and the matter was moot. Turner did not respond to this

motion.

       {¶ 12} On November 7, 2018, the magistrate determined that the probate court

had jurisdiction over the guardianship proceeding despite Weimer’s relocation, but

concluded that it should dismiss the guardianship application based on the two expert

evaluations it had received.       The magistrate reasoned with respect to the expert

evaluations:

               * * * Discussions with counsel for the applicant indicated that she had

       tried to secure an evaluation from Dr. Andrew Diller of the assisted living

       facility, but he indicated that he could not give her an evaluation since he


also present for the hearing. The transcript reflects that Weimer was not present.
3 Turner’s November 21, 2018 objection to the magistrate’s decision states that the
probate court held two hearings, both of which related to jurisdiction, and no testimony
was taken regarding the necessity of a guardianship.
                                                                                         -6-


       had not examined Mr. Weimer recently.

              Dr. Andrew Diller ultimately did do an evaluation on August 13, 2018

       indicating that Mr. Weimer is competent and that a guardianship is

       unnecessary. An additional expert evaluation was submitted by Dr. Frank

       Cunningham indicating that he evaluated Mr. Weimer on August 29, 2018,

       has been his physician for almost 5 years, and that Mr. Weimer is

       competent and that a guardianship is unnecessary. Both the examinations

       and reports were performed and submitted on behalf of Mr. Weimer

       subsequent to this court’s order for Mr. Weimer to submit to an examination.

       Though not at Sparks Psychological Services as requested by the applicant,

       the prospective ward did substantially, if not indirectly, comply with this

       court’s order.

       {¶ 13} On the same day, the probate court adopted the magistrate’s decision and

dismissed the guardianship application.

       {¶ 14} Turner objected to the magistrate’s decision, arguing that the magistrate

erred in dismissing the application before an independent evaluation was performed, in

accordance with the court’s orders.       Turner further claimed that the dismissal was

inappropriate prior to a hearing on whether a guardianship was necessary. Weimer

opposed the objections, again arguing Turner failed to obtain a Statement of Expert

Evaluation prior to filing her application, that he was competent, that he had substantially

complied with the order by the court to undergo an expert evaluation, and that the probate

court lacked jurisdiction over the action. A transcript of the September 11, 2018 hearing

was filed on January 4, 2019; the record does not contain a transcript of the October 9,
                                                                                          -7-


2018 hearing.

       {¶ 15} On February 22, 2019, the probate court overruled the objections, adopted

the magistrate’s decision, and dismissed the guardianship application. 4 The probate

court overruled any objections to the magistrate’s factual findings on the ground that the

transcript was not timely filed. As to Turner’s objection to the dismissal of her application

without a hearing on the merits, the court stated:

              * * * The Court finds that Barbara’s Objections fail to provide any

       reason to grant her another hearing. First, even if the Court were to accept

       that Barbara did not have sufficient opportunity to obtain a statement of

       expert evaluation for the Court’s consideration prior to filing the

       guardianship application, once the Court granted the Motion for Order of

       Referral to Expert Evaluation Barbara still failed to take immediate action

       pursuant to the Order to timely schedule an appointment for Richard with

       the mental health expert she selected. Barbara does not argue, and the

       record does not demonstrate, that she did not have an opportunity to timely

       arrange an appointment for Richard to be evaluated by Sparks

       Psychological Services.

              Second, and more importantly, although the Court previously

       ordered Richard to submit to an examination with Sparks Psychological

       Services because the Court believed the examination to be beneficial in

       determining whether a guardianship was necessary, Richard’s filing of two



4 The probate court did not expressly address its jurisdiction, but we infer that the probate
court adopted the magistrate’s conclusion that it had jurisdiction over the action.
                                                                                          -8-


      expert evaluations subsequent to the Court’s Order rendered any additional

      evaluations unwarranted and unnecessary.           Notably, Barbara filed her

      initial Motion for Order for Independent Expert Evaluation pursuant to R.C.

      2111.031.    R.C. 2111.031 expressly states that “in connection with an

      application for the appointment of a guardian for an alleged incompetent,

      the court may appoint physicians and other qualified persons to examine,

      investigate, or represent the alleged incompetent, to assist the court in

      deciding whether a guardianship is necessary.” (Emphasis added.)

             Since R.C. 2111.031 is explicitly limited to assisting the Court in its

      determination of “whether a guardianship is necessary,” the Court acted

      within its discretion under the statute when it declined to enforce its previous

      order for the independent expert evaluation with Sparks Psychological

      Services after finding that Richard “did substantially, if not indirectly, comply

      with this court’s order” and relied on the two expert evaluations he filed in

      determining that Barbara’s application for guardianship should be

      dismissed. See In re Guardianship of Ray, 4th District Jackson No. 657,

      1991 Ohio App. LEXIS 4308, *10 (Sept. 16, 1991). * * *

      {¶ 16} Turner appeals the probate court’s judgment, claiming that the probate court

“erred in dismissing the guardianship and denying the independent examination.”

                  II. Dismissal of Turner’s Guardianship Application

      {¶ 17} Turner claims that the probate court erred in dismissing her application

without requiring Weimer to submit to an independent expert evaluation. Turner submits

that “the Court should enforce its own orders.” Turner further claims that she was not
                                                                                           -9-


provided an opportunity to present evidence that a guardianship was necessary, nor did

she have an opportunity to cross-examine the physicians who filed expert reports for

Weimer. Turner argues that she was denied due process as a result.

       {¶ 18} R.C. 2111.02(A) authorizes a probate court to appoint, “if necessary,” a

guardian of the person, the estate, or both, of an incompetent person residing in the

county. An “incompetent” includes “[a]ny person who is so mentally impaired, as a result

of a mental or physical illness or disability, as a result of intellectual disability, or as a

result of chronic substance abuse, that the person is incapable of taking proper care of

the person’s self or property.” R.C. 2111.01(D)(1).

       {¶ 19} A person applying for appointment as a guardian must file an application, in

accordance with R.C. 2111.03, and the court must provide written notice to the alleged

incompetent person in accordance with R.C. 2111.04. At the time of service of notice

upon the alleged incompetent person, the court must require a probate court investigator

to investigate the circumstances of the alleged incompetent person. The investigator’s

report is to include a recommendation regarding the necessity for a guardianship or a less

restrictive alternative, among other requirements. R.C. 2111.041(A).

       {¶ 20} R.C. 2111.031 permits the probate court to “appoint physicians and other

qualified persons to examine, investigate, or represent the alleged incompetent, to assist

the court in deciding whether a guardianship is necessary.”

       {¶ 21} Prior to the appointment of a guardian, the court must conduct a hearing on

the matter of appointment, during which “the burden of proving incompetency shall be by

clear and convincing evidence.” R.C. 2111.02(C)(3). The Ohio Supreme Court has

defined “clear and convincing evidence” as “the measure or degree of proof that will
                                                                                       -10-


produce in the mind of the trier of fact a firm belief or conviction as to the allegations

sought to be established. It is intermediate, being more than a mere preponderance, but

not to the extent of such certainty as required beyond a reasonable doubt as in criminal

cases. It does not mean clear and unequivocal.” In re Estate of Haynes, 25 Ohio St.3d

101, 104, 495 N.E.2d 23 (1986).

      {¶ 22} In support of its decision that it would not enforce its previous order that

Weimer undergo an expert evaluation from Sparks Psychological Services, the probate

court relied on In re Guardianship of Ray, 4th Dist. Jackson No. 657, 1991 WL 179418

(Sept. 16, 1991).     In that case, the alleged incompetent person underwent an

examination by a neurologist, who found no major neurologic abnormalities, but

determined that Ray’s memory deficit was “so profound that she was markedly impaired

and possibly had an ‘Alzheimer [sic] type problem.’ ” Id. at *1.         The neurologist

recommended that Ray also receive a CT scan and EEG. The applicant, one of Ray’s

children, subsequently moved for an order requiring Ray to submit to the CT scan and

EEG; the court granted the motion. Ray did not receive the testing, and the appellant

later argued that the appellees (who were appointed Ray’s guardians) should be held in

contempt for failing to bring Ray for the scheduled medical tests.

      {¶ 23} The trial court overruled the contempt motion, finding that the CT scan and

EEG were no longer “essential” or “particularly relevant” in light of Ray’s subsequent

consent to a guardian and a durable power of attorney selecting appellees as her

guardians. The Fourth District affirmed, stating that “the trial court did not abuse its

discretion pursuant to R.C. 2111.031 in failing to enforce its previous order since the

parties had agreed that a guardianship was necessary, and the only remaining issue was
                                                                                          -11-

who would be appointed guardian(s).” Ray at *4.

       {¶ 24} Ray is factually distinguishable since the parties in this case did not agree

that a guardianship was required and the issue of Weimer’s competence remained in

dispute. Regardless, given the factual circumstances before us, we conclude that the

probate court did not abuse its discretion in this case when it failed to enforce its order to

require Weimer to undergo an evaluation by Sparks Psychological Services.

       {¶ 25} Turner filed her first motion for an independent expert evaluation on July 24,

2018, in conjunction with her application for guardianship. This motion did not request

an evaluation by a particular physician or other qualified expert. Turner’s August 9

motion requested an evaluation by Sparks Psychological Services.              When Weimer

moved to vacate the orders requiring an independent evaluation as moot due to his

evaluations by Drs. Diller and Cunningham, Turner did not oppose the motion. In its

decision, the probate court noted that Turner had attempted to obtain an evaluation from

Dr. Andrew Diller, and Turner has not disputed that representation. The probate court

reasonably concluded that Diller’s expert evaluation, in particular, satisfied Turner’s

request that her father receive an independent expert evaluation and that a third

evaluation was no longer necessary to assist the court in its determination of whether a

guardianship was necessary. Accordingly, the probate court did not abuse its discretion

by not enforcing its prior order that Weimer be evaluated by Sparks Psychological

Services.

       {¶ 26} Moreover, we find no fault with the probate court’s dismissal of the

guardianship application without an evidentiary hearing on Weimer’s competence. The

probate court had received two expert evaluations, both of which were performed after
                                                                                        -12-


the application was filed and which concluded that Weimer was competent and that

guardianship was not necessary. Dr. Diller spent 30 minutes performing his evaluation;

Dr. Cunningham spent 80 minutes.        Both doctors noted “mild cognitive impairment”

regarding Weimer’s orientation and memory, but believed that Weimer was capable of

caring for his activities of daily living, making decisions, and managing his finances and

property. Both indicated that Weimer’s condition was stable and that he did not require

a guardian.

      {¶ 27} Furthermore, guardianship proceedings “are not adversarial but rather are

in rem proceedings involving only the probate court and the ward. 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. The guardian, therefore, has

no personal interest in his or her appointment or removal.” (Citations omitted.) In re

Guardianship of Spangler, 126 Ohio St.3d 339, 2010-Ohio-2471, 933 N.E.2d 1067, ¶ 53.

While R.C. 2111.02(C) requires a hearing “[p]rior to the appointment of a guardian,” there

is no requirement if a guardian is not appointed, since the focus of that provision is to

protect the rights of the prospective ward, not the prospective guardian. In this case, the

probate court did not violate Turner’s due process rights, if any, when it granted a motion

to dismiss based on a lack of evidence of incompetence, particularly when it had two

expert evaluations concluding that Weimer was competent and Turner had not opposed

the motion to vacate the requirement that Weimer submit to a third evaluation.

      {¶ 28} Turner’s assignment of error is overruled.

                                     III. Conclusion

      {¶ 29} The probate court’s judgment will be affirmed.
                                               -13-


                               .............



WELBAUM, P.J. and TUCKER, J., concur.


Copies sent to:

Rebecca Barthelemy-Smith
Edward M. Smith
Beth Hess
Brenda Collins
Rebecca Kleismit
Hon. Alice O. McCollum
