[Cite as In re B.I.C., 2012-Ohio-3519.]


STATE OF OHIO                     )                    IN THE COURT OF APPEALS
                                  )ss:                 NINTH JUDICIAL DISTRICT
COUNTY OF WAYNE                   )

IN RE GUARDIANSHIP OF B.I.C.                           C.A. No.     11CA0028



                                                       APPEAL FROM JUDGMENT
                                                       ENTERED IN THE
                                                       WAYNE COUNTY PROBATE COURT
                                                       COUNTY OF WAYNE, OHIO
                                                       CASE No.   G-66149-03

                                  DECISION AND JOURNAL ENTRY

Dated: August 6, 2012



        DICKINSON, Judge.

                                           INTRODUCTION

        {¶1}     Craig C. moved to terminate the guardianship of Harry and Mary B. over his

minor child, B.I.C.       The probate court granted his motion because it determined that the

guardianship was temporary and that the conditions that necessitated it no longer existed. Harry

and Mary have appealed, assigning as error that the probate court applied the incorrect test for

deciding whether to terminate the guardianship and that its factual findings were against the

manifest weight of the evidence.          We affirm because the probate court properly analyzed

whether there was good cause to terminate the guardianship and its findings that the guardianship

was temporary and that there was good cause to terminate it were not against the manifest weight

of the evidence.
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                                         BACKGROUND

       {¶2}    When B.I.C. was seventeen months old, Harry and Mary, B.I.C.’s maternal

grandparents, applied to the probate court to be appointed his guardians. B.I.C.’s mother agreed

to the guardianship. Craig received notice of the proceeding, but did not consent or object to the

application.   According to a letter that Harry and Mary’s lawyer sent to Craig about the

application, Harry and Mary were seeking “to be named as temporary guardians” of B.I.C., they

intended to “cover[ ] him with medical insurance coverage,” and they would “not be requesting

any child support . . . while he remains in their care.” Upon review of the application, the

probate court determined that a guardianship was necessary and appointed Harry and Mary as

B.I.C.’s guardians. Under the court’s letters of guardianship, the guardianship was over B.I.C.’s

person only, did not contain any limitations, and was for an indefinite period.

       {¶3}    In 2007, three years after the court appointed Harry and Mary as B.I.C.’s

guardians, Craig moved to terminate the guardianship. He later withdrew his motion. According

to Craig, the reason that he withdrew his motion was because, although he was ready for B.I.C.

to come live with him, he had not had much visitation time with B.I.C. and decided that he

wanted to develop their relationship more before asking B.I.C. to undergo such a large transition.

He, therefore, sought, instead, to increase his visitation time over the next few years.

       {¶4}    In 2011, Craig again moved to terminate the guardianship. Following a hearing,

the probate court granted his motion. The court found that the guardianship was only meant to

be temporary and that the reasons for it no longer existed. It, therefore, determined that there

was good cause to terminate it under Section 2111.46 of the Ohio Revised Code. Harry and

Mary have appealed the probate court’s decision, assigning four errors.
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                             TERMINATION OF GUARDIANSHIP

       {¶5}    Harry and Mary’s first assignment of error is that the probate court applied the

incorrect test when it decided whether to terminate the guardianship. Their second assignment of

error is that the court incorrectly found that the guardianship was meant to be temporary and that

there were conditions present at the time that the guardianship was created that, once remedied,

rendered the guardianship no longer necessary. Their third assignment of error is that the court

incorrectly terminated the guardianship absent a showing that there had been a change in

circumstances in B.I.C.’s home environment.            Because these assignments of error raise

interrelated issues, we will consider them together.

       {¶6}    Regarding the correct test for termination of a guardianship, under Section

2111.46 of the Ohio Revised Code, “[if] a guardian has been appointed for a minor before the

minor is over fourteen years of age, the guardian’s power shall continue until the ward arrives at

the age of majority, unless removed for good cause or unless the ward selects another suitable

guardian.” In general, “the decision to grant or deny a motion to remove a guardian lies within

the sound discretion of the probate court.” In re Guardianship of Spangler, 11th Dist. Nos.

2007-G-2800, 2007-G-2802, 2011-Ohio-6686, ¶ 67; In re Guardianship of Godsey, 2d Dist. No.

2002-CA-69, 2003-Ohio-2692, ¶ 9 n.1. In Masitto v. Masitto, 22 Ohio St. 3d 63 (1986), the

Ohio Supreme Court held, however, that, if a parent has relinquished his custodial rights to his

child’s grandparents, the probate court may not modify the child’s placement unless it is in the

child’s best interest under the test for modification of custody under Section 3109.04(B) of the

Ohio Revised Code. Id. at 67.

       {¶7}    In Masitto, the Ohio Supreme Court explained that “[w]hether . . . a parent

relinquishes rights to custody is a question of fact” to be determined by the trial court. Masitto v.
                                                 4


Masitto, 22 Ohio St. 3d 63, 66 (1986). In that case, the Supreme Court upheld the trial court’s

finding that Mr. Masitto had relinquished his right to custody, explaining that Mr. Masitto had

“signed a written instrument whereby he consented to the appointment [of a guardian]” and

“later consented to a divorce decree which in essence incorporated his agreement . . . .” Id. at 64,

66.

       {¶8}    This Court has not previously considered the circumstances under which a parent

should be deemed to have relinquished his custodial rights to his child who has been placed in a

guardianship. The Ohio appellate courts that have considered the question have, universally,

looked at whether the guardianship was permanent or temporary in nature. In re Adkins, 11th

Dist. No. 2006-L-250, 2007-Ohio-4629, ¶ 19; In re Guardianship of Dillon, 5th Dist. No.

05CA008, 2005-Ohio-5217, ¶ 25; In re Guardianship of Smith, 12th Dist. No. CA2002-12-012,

2003-Ohio-4247, ¶ 10; In re Guardianship of Godsey, 2d Dist. No. 2002-CA-69, 2003-Ohio-

2692, ¶ 11; In re Termination of Guardianship of Hendrickson, 152 Ohio App. 3d 116, 2003-

Ohio-1220, ¶ 16 (7th Dist.); In re Guardianship of Zornes, 4th Dist. No. 96CA35, 1997 WL

441854, *4 (Aug. 4, 1997). Those courts have recognized that, in a custody dispute between a

parent and third party, a parent who is suitable has a paramount right to custody of his child.

Godsey, 2003-Ohio-2692, at ¶ 11; see In re Perales, 52 Ohio St. 2d 89, 97 (1977) (“[P]arents

who are ‘suitable’ persons have a ‘paramount’ right to the custody of their minor children unless

they forfeit that right by contract, abandonment, or by becoming totally unable to care for and

support those children.”) (quoting Clark v. Bayer, 32 Ohio St. 299, paragraph one of the syllabus

(1877)). They have also reasoned that “a parent’s agreement to surrender temporary custody,

through a guardianship or otherwise, is not a relinquishment of a parent’s right to preferential

treatment in a subsequent determination of custody.” Godsey, 2003-Ohio-2692, at ¶ 11. “In
                                                  5


such a case . . . a parent typically must establish nothing more than current suitability to be a

parent.” Id. We agree with the conclusion that a parent who has only temporarily relinquished

custody of his child to a third party has not forfeited his paramount right to custody of the child.

       {¶9}    Regarding whether Harry and Mary’s guardianship was temporary or permanent,

the probate court found that it was temporary because Craig did not specifically waive any of his

parental rights and because the letter that Harry and Mary’s lawyer sent to Craig while their

application was pending made a reference to what would happen “while [B.I.C.] remains in their

care.” Harry and Mary have asserted that its finding was incorrect, arguing, in essence, that the

finding was against the manifest weight of the evidence. As recently clarified by the Ohio

Supreme Court, when reviewing the manifest weight of the evidence in a civil case, this 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 and a

new trial ordered.” Eastley v. Volkman, __ Ohio St. 3d __, 2012-Ohio-2179, ¶ 20 (quoting

Tewarson v. Simon, 141 Ohio App. 3d 103, 115 (9th Dist. 2001)).

       {¶10} As the probate court noted in its decision, Harry and Mary did not assert that the

guardianship was permanent until Craig moved to terminate it. Rather, in the letter that they sent

Craig at the time of their application, they wrote that they had petitioned “to be named as

temporary guardians” for B.I.C. While Mary testified that she understood “temporary” to mean

until B.I.C. was 18, the probate court was entitled not to believe her, considering that her

application did not ask for the guardianship to last until that time. The probate court’s letters of

guardianship also do not indicate that the guardianship will last until B.I.C.’s eighteenth

birthday. It merely provides that the guardianship will be for an “[i]ndefinite” length. See In re
                                                6


Guardianship of Godsey, 2d Dist. No. 2002-CA-69, 2003-Ohio-2692, ¶ 12 (concluding that it

was reasonable for the trial court to find that a guardianship that was for an indefinite length to

be temporary in nature). Furthermore, Harry and Mary have not argued that the passage of time

converted what was initially a temporary guardianship into a permanent one. Upon review of the

record, we conclude that the probate court did not lose its way when it found that Harry and

Mary’s guardianship of B.I.C. was temporary.

       {¶11} Because Harry and Mary’s guardianship was temporary in nature, the trial court

did not have to determine whether terminating it was in B.I.C.’s best interest under Section

3109.04(B). Instead, the court correctly only considered whether there was good cause to

terminate the guardianship. Harry and Mary’s first, second, and third assignments of error are

overruled.

                                         GOOD CAUSE

       {¶12} Harry and Mary’s fourth assignment of error is that the probate court’s finding

that there was good cause to terminate the guardianship was against the manifest weight of the

evidence. They have argued that Craig is a stranger to B.I.C. and refuses to involve himself in

his son’s life. They have further argued that Craig has refused to contact B.I.C.’s school or

attend parent/teacher conferences, that he failed to attend B.I.C.’s tonsillectomy, and that he has

a history of violence against members of his family. Regarding Craig’s history of violence, they

have argued that Craig physically abused B.I.C.’s mother, that he admitted to giving B.I.C. “butt-

whooping[s]” in the past, and that he admitted that he continues to give “butt-whooping[s]” to

his two-year-old daughter.

       {¶13} Craig testified that he monitors B.I.C.’s school performance through B.I.C.’s

school’s website, which lets him review his grades. He said that the reason he has not attended
                                                  7


many of B.I.C.’s activities or his surgery is because Harry and Mary either have not told him

about the events or have told him at the last minute when it was too late for him to change his

work schedule. He also testified that, although there was a time that he “put [his] hands on

[B.I.C.’s mother],” it only happened one time and he received anger-management counseling

afterward, which helped him to get much better control over his temper. He also testified that he

had not spanked B.I.C. since 2007, disciplining him with yelling and time-outs instead. But see

R.C. 2919.22(B)(3) (prohibiting corporal punishment only if it “is excessive under the

circumstances and creates a substantial risk of serious physical harm to the child.”). He further

testified that he did not think there was any need for the guardianship and that he believed he was

in a position to have B.I.C. living full time in his house.

       {¶14} B.I.C.’s mother testified that Craig abused her multiple times during their

marriage, not only on the occasion that led to his domestic violence conviction. His current wife,

however, testified that she had been in a relationship with Craig since 2005 and that he had never

struck her. While Mary testified that there was an occasion when B.I.C. did not want to go with

Craig because Craig had “reamed his ass” the prior weekend, Craig and his wife explained that

an “ass reaming” meant yelling.

       {¶15} The probate court found that, although Craig was convicted of domestic violence

in 2003, there was no evidence that he had had any issues since that time. To the contrary, it

found that he had altered his behavior as a result of counseling and had altered the way he

disciplines B.I.C. It also found that Craig was “now able to provide food, clothing, and shelter

for his son and is in a long-term stable marriage.” It, therefore, concluded that the reasons for

the guardianship no longer existed.
                                                 8


       {¶16} We conclude that the probate court did not lose its way when it found that Craig

was a suitable parent and that the reasons for the guardianship no longer existed.             Its

determination that there was good cause to terminate the guardianship is not against the manifest

weight of the evidence. Harry and Mary’s fourth assignment of error is overruled.

                                         CONCLUSION

       {¶17} The probate court applied the correct test when it decided whether to terminate

Harry and Mary’s guardianship of B.I.C., and its decision was not against the manifest weight of

the evidence. The judgment of the Wayne County Probate Court is affirmed.

                                                                               Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Wayne County

Probate Court, County of Wayne, State of Ohio, to carry this judgment into execution. A

certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellants.


                                                     CLAIR E. DICKINSON
                                                     FOR THE COURT
                                                 9




MOORE, P. J.
BAIRD, J.
CONCUR.

(Baird, J., retired of the Ninth District Court of Appeals, sitting by assignment pursuant to §6(C),
Article IV, Constitution.)


APPEARANCES:

RENEE J. JACKWOOD, Attorney at Law, for Appellants.

NORMAN R. “BING” MILLER, JR., Attorney at Law, for Appellee.
