[Cite as In re C.W.,
2014-Ohio-2934.]
STATE OF OHIO, COLUMBIANA COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
IN THE MATTER OF THE ) CASE NOS. 13 CO 44
GUARDIANSHIPS OF: )
13 CO 45
) 13 CO 46
C.W. )
D.W. ) OPINION
K.Y. )
)
)
CHARACTER OF PROCEEDINGS: Civil Appeals from the Court of Common
Pleas, Probate Division, of Columbiana
County, Ohio
Case Nos. 11 GDMI 48; 11 GDMI 49; 11
GDMI 50
JUDGMENT: Affirmed.
APPEARANCES:
For Appellants Norman & Marilyn VanPelt: Atty. Brian J. Macala
117 South Lincoln Avenue
Salem, Ohio 44460-3101
For Appellee James & Lisa Youngblood: Atty. Charles C. Amato
Atty. Lynsey Lyle-Opalenik
Amato Law Office
991 Main Street
Wellsville, Ohio 43968
JUDGES:
Hon. Cheryl L. Waite
Hon. Gene Donofrio
Hon. Mary DeGenaro
Dated: June 26, 2014
[Cite as In re C.W., 2014-Ohio-2934.]
WAITE, J.
{¶1} These three appeals arise out of the Probate Division of the
Columbiana County Court of Common Pleas regarding the removal of Appellants,
Norman and Marilyn VanPelt, as guardians and the appointment of a successor
guardian over three orphan children (C.W., D.W. and K.Y.). Although there are three
separate appeals, the issues in each are identical. The guardianships arose after the
mother of the children was murdered by her estranged boyfriend, who then
committed suicide. This boyfriend was the father of two of the children. Appellants
were appointed guardians of the children, as they had previously cared for the
children as foster parents. In January of 2013, Appellee James Youngblood, the
paternal grandfather of two of the children, filed a motion to become the successor
guardian of the children after Appellants had denied him his companionship rights.
At the hearing on the motion to appoint a successor guardian, a prior guardian ad
litem testified that she heard Appellant Norman VanPelt say that the child D.W. was
acting unruly due to his “black blood.” (Tr. p. 13.) The child is bi-racial, the mother
being Caucasian and the father African American. The court eventually granted the
motion to appoint Appellee as successor guardian.
{¶2} On appeal, Appellants argue that the court erred by allowing a former
guardian ad litem to testify. Appellants contend that the evidence should have been
excluded because it was irrelevant, since the guardian ad litem's term had expired
prior to the date of the hearing. Although the guardian ad litem had been appointed
for a limited purpose and her guardianship ended prior to the hearing to appoint a
successor guardian, it is apparent from the record that her testimony was relevant.
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She had direct personal knowledge of the condition of the children and their
interaction with Appellants within eight months of the filing of Appellee's motion to be
appointed successor guardian.
{¶3} Appellants also argue that the court's decision was against the manifest
weight of the evidence. Appellee presented evidence that Appellants abused one of
the children, used a racial slur regarding one of the children, forced the children to kill
animals as part of their chores, and flaunted the court's visitation orders. Appellants
presented no evidence at the hearing. The weight of the evidence supports the
court's decision. Appellants' arguments are without merit and the judgment of the
trial court is affirmed.
History of the Case
{¶4} Rachel W. was the natural mother of minor children C.W. (d.o.b.
8/1/09), D.W. (d.o.b 7/17/06) and K.Y. (d.o.b. 7/23/08). Steven Youngblood was the
natural father of C.W. and K.Y. D.W.'s father has never been involved in the child's
life nor participated in any court proceeding regarding the child. At the request of the
Columbiana County Department of Jobs and Family Services (CCDJFS), the child
D.W. was placed in the foster care of Appellants Norman and Marilyn VanPelt on
March 1, 2008 after being adjudicated an abused, neglected or dependent child.
K.Y. was placed in foster care with Appellants shortly after the child was born in
2008. C.W. was placed in foster care with Appellants on September 22, 2010, when
the child was one year old. It was on that date that the mother of the children, Rachel
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W., was murdered by her estranged boyfriend Steven Youngblood. Youngblood then
turned the gun on himself and committed suicide.
{¶5} On August 8, 2011, Appellants filed a petition for guardianship of the
children in the probate division of the court of common pleas. The probate court
issued an interim order on August 16, 2011, appointing Appellants as temporary
guardians. The paternal grandparents James and Lisa Youngblood joined the
guardianship action, and the maternal grandfather and step-grandmother, Allan and
Nancy W., filed an application for guardianship as well. A hearing was scheduled for
September 28, 2011, but the parties informed the court that an agreed entry had
been formulated in which Appellants would be co-guardians and the grandparents
would have visitation rights once per month. The agreed entry was approved and
filed on December 7, 2011.
{¶6} On December 20, 2011, Appellants filed a motion to suspend the
visitation rights of Appellee and the maternal grandfather. Tere Rufener was
appointed on February 15, 2012, as guardian ad litem for the proceedings. On May
2, 2012, a hearing was held and the motion to suspend visitation was denied. The
guardian ad litem's duties terminated on May 10, 2012.
{¶7} On January 31, 2013, Appellee filed a motion to show cause in
contempt against Appellants for failure to allow visitation and a motion to appoint a
successor guardian.
{¶8} On March 22, 2013, Appellants filed petitions to adopt the three
children.
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{¶9} On April 11, 2013, the probate court found Appellants in contempt for
denying court-ordered visitation to Appellee. Appellants were allowed to purge their
contempt by giving Appellee visitation every other weekend from Friday to Sunday.
All pending motions were stayed while the contempt was being purged. On August
8, 2013, the court found that Appellants had purged their contempt, and a hearing on
the adoption petition was set for September 27, 2013. The hearing took place, but
no decision was made.
{¶10} On October 2, 2013, the court heard Appellee's petition for successor
guardianship. Four witnesses testified: former guardian ad litem Tere Rufener,
Reverend Roosevelt Thompson, MaryAnne Grace (maternal grandmother of the
children), and Appellee. Rufener testified that Norman VanPelt used a racial epithet
and about the poor conditions of Appellants’ home, and the loving relationship
between the children and Appellee. Rev. Thompson gave mainly character
testimony about Appellee and noted the loving relationship between Appellee and the
children. Ms. Grace spoke about the relationship between the Appellants and the
children. Appellee testified that Appellants abused the children, beating them in the
face until they drew blood and tying them to a chair as discipline, their refusal to allow
visitation and failure to allow telephone communication with the children. Appellee
also testified to Appellants’ denial that they had to obey court orders and that they
had been held in contempt for disobeying court-ordered visitation. He also related
Appellants’ failure to get D.W. enrolled in school, that they forced the children cut the
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heads off of chickens, told them their father was burning in hell, and testified
generally as to the dangerous conditions in the home.
{¶11} The court held an in camera inspection of the children and then
rescheduled the remainder of the hearing for a later date. On October 9, 2013, the
parties filed a joint notice with the court stating that no more evidence would be
submitted, waiving final argument and allowing the court to proceed with judgment.
We note that Appellants had presented no evidence.
{¶12} On October 30, 2013, the court granted the motion to appoint Appellee
as successor guardian. Appellants filed a motion for stay of execution, which was
denied on October 31, 2013. In the judgment entry denying the stay, the court stated
that Appellants had expressed racist sentiments with regard to one of the children,
and there was uncontroverted evidence that one or more of the children had been
subjected to physical abuse. For these and other reasons, the court found it in the
best interests of the children to remove Appellants as guardians and appoint
Appellee as successor guardian. These timely appeals followed.
ASSIGNMENT OF ERROR NO. 1
THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY
ALLOWING THE TESTIMONY OF A FORMER GUARDIAN AD LITEM
OVER THE OBJECTION OF THE APPELLANTS.
{¶13} Appellants argue that the court committed reversible error by allowing
former guardian ad litem Tere Rufener to testify at the hearing on the motion to
appoint a successor guardian. Rufener had been the guardian ad litem during a
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proceeding dealing with whether Appellee's visitation rights should be terminated.
Rufener testified that a racial comment was made by Norman VanPelt to the effect
that child D.W. was unruly due to his “black blood.” (Tr., p. 13). Appellants objected
to the testimony on grounds of relevance, and the objection was overruled.
Appellants believe this ruling was erroneous and invalidated the court's ultimate
decision. In support, Appellants primarily rely on Evid.R. 402 and Sup.R. 48(D)
regarding the duties of a guardian ad litem.
{¶14} Evid.R. 402 states that “[a]ll relevant evidence is admissible ….” Trial
judges have broad discretion in the admission or exclusion of relevant evidence.
Rigby v. Lake Cty., 58 Ohio St.3d 269, 271,
569 N.E.2d 1056 (1991). In a trial to the
bench, the court is presumed to have considered only admissible evidence, unless
the record indicates otherwise. State Farm Mut. Auto Ins. Co. v. Travelers Prop.
Caus., 5th Dist. No. CT2001–0065,
2002-Ohio-3687, ¶70.
{¶15} Sup.R. 48(D) states in pertinent part:
In order to provide the court with relevant information and an informed
recommendation regarding the child's best interest, a guardian ad litem
shall perform, at a minimum, the responsibilities stated in this division,
unless impracticable or inadvisable to do so.
…
(13) A guardian ad litem shall make reasonable efforts to become
informed about the facts of the case ….
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{¶16} Appellants argue that the former guardian ad litem's testimony was
irrelevant, primarily because they claim it was stale. Appellants contend that the
guardian ad litem's observations occurred 17 months prior to the hearing on the
motion to appoint a successor guardian. The record reflects that her guardianship
ended in May of 2012, only 8 months prior to the time the motion to appoint a
successor guardian was filed in January of 2013. Although the hearing on the motion
was not held until October 2013, her actual testimony relates to the time leading up to
the filing of the motion, and based on that earlier date of January 2013, her
observations are not particularly stale or outdated. We find no abuse of discretion in
the court's reliance on evidence that occurred during or just before the time period
encompassed by the motion being heard, particularly in light of the fact that no
evidence was submitted by Appellants and the testimony was uncontroverted.
{¶17} Appellants also argue that Rufener was not appointed guardian ad litem
for purposes of the motion to appoint a successor guardian, and that only a guardian
ad litem appointed for the specific purpose of the hearing at hand should have been
allowed to testify. Appellants present no caselaw that supports their argument.
Sup.R. 14(D)(4) states: “A guardian ad litem shall appear and participate in any
hearing for which the duties of a guardian ad litem or any issues substantially within a
guardian ad litem's duties and scope of appointment are to be addressed.”
(Emphasis added.) Although Rufener was appointed guardian ad litem in an earlier
proceeding, her observations during that time do not immediately become irrelevant
when her guardianship terminated on May 10, 2012. Her duties as guardian ad
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litem, under Sup.R. 48(D)(13) included meeting with the children, parents, foster
parents and any other significant individuals with relevant knowledge, to visit the
children in their residence, to review records, and perform any other investigation
necessary to make an informed recommendation. Appellants do not deny that
Rufener performed all these tasks. Since she had direct knowledge of the children at
their residence gained while Appellants were the foster parents, testifying about
these observations in a subsequent guardianship proceeding involving Appellants
and the children falls squarely within the scope of a guardian ad litem's duties under
Sup.R. 48. That such information might be relevant to the issue of whether
Appellants should continue to be guardians was up for the court to decide, and it is
not difficult to see that it would be relevant in this case.
{¶18} There was no basis for excluding Rufener's testimony on grounds of
relevance, and the first assignment of error is overruled.
ASSIGNMENT OF ERROR NO. 2
THE REMOVAL OF THE APPELLANTS AS CO-GUARDIANS OF THE
MINOR CHILD WAS AN ABUSE OF DISCRETION AS THAT
REMOVAL WAS AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE.
{¶19} Appellants argue that the decision of the trial court was against the
manifest weight of the evidence. Appellate review of a decision removing a guardian
and appointment of a successor guardian is a review for abuse of discretion, not
manifest weight of the evidence. A guardian is deemed to be an officer of the
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probate court. In re Clendenning, 145 Ohio St. 82, 93,
60 N.E.2d 676 (1945). The
power of the probate court is superior to that of guardians appointed by the court.
Id.; R.C. 2111.50(A)(1). Except for the disposition of gifts from a ward's estate, the
power of the court relative to one declared a ward is to be exercised in the best
interests of the ward. R.C. 2111.50(C)(1). A probate court's decision regarding
matters involving guardianships will not be reversed on appeal unless the probate
court's decision amounts to an abuse of discretion. In re Estate of Bednarczuk,
80
Ohio App.3d 548, 551,
609 N.E.2d 1310 (1992). It is well-settled that probate courts
have broad discretion when appointing and removing guardians, and their decisions
will not be reversed absent a showing of an abuse of that discretion. Id.; In re
Guardianship of Skrobut, 7th Dist. No. 97CA18 (Apr. 30, 1998). An “abuse of
discretion” is more than an error of judgment, it implies that the trial court acted
unreasonably, arbitrarily or unconscionably. Blakemore v. Blakemore,
5 Ohio St.3d
217, 219,
450 N.E.2d 1140 (1983).
{¶20} Factual determinations of the court will not be disturbed if supported by
some competent, credible evidence. C.E. Morris v. Foley Const. Co., 54 Ohio St.2d
279,
376 N.E.2d 578 (1978), syllabus. On review, the findings of a trier of fact are
presumptively correct. Seasons Coal Co., Inc. v. City of Cleveland,
10 Ohio St.3d 77,
80-81,
461 N.E.2d 1273 (1984).
{¶21} Although R.C. 2111.50(A)(2)(c) allows the court to limit or deny any
power to a guardian for good cause shown, courts have generally relied on the
provisions of R.C. 2109.24, dealing with the removal of fiduciaries, as the standard
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for removing a guardian. We have repeatedly held that R.C. 2109.24 governs the
removal of guardians by the probate court. In re Guardianship of Monus, 7th Dist.
Nos. 03 MA 128, 03 MA 129, 03 MA 130, 03 MA 131, 03 MA 132, 03 MA 153, 2004-
Ohio-2808, ¶12; In Matter of Guardianship of Weiss, 7th Dist. No. 96 C.A. 135, 1997
WL 433554, p. *2 (July 28, 1997).
{¶22} R.C. 2109.24 states: “The court may remove any fiduciary … for
habitual drunkenness, neglect of duty, incompetency, or fraudulent conduct, because
the interest of the property, testamentary trust, or estate that the fiduciary is
responsible for administering demands it, or for any other cause authorized by law.”
In interpreting R.C. 2109.24, we held in Guardianship of Weiss that: “[I]t is
discretionary with the trial court as to whether a guardian should be removed, and
such removal may be based upon any just cause when the interest of justice
demands it. The trial court need not find that the guardian's actions amounted to
violations of the law or that his actions caused injury to the Ward or the Ward's
estate.” Id. “To warrant the removal of a guardian, a trial court need only find that
the best interest of the Ward will be served by said guardian's removal.”
Id.
{¶23} Prior to 2007, R.C. 2109.24 stated: “The court may remove any such
fiduciary, after giving the fiduciary not less than ten days' notice, for habitual
drunkenness, neglect of duty, incompetency, or fraudulent conduct, because the
interest of the trust demands it, or for any other cause authorized by law.” Appellants
contend that this prior version gave the courts more leeway in removing fiduciaries
and that the caselaw interpreting the prior statute should not be relied on. Both
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versions are substantially the same and allow for removal either for cause or simply
in the interest of the guardianship. Appellants’ argument is not supported by the
actual wording of the two versions of the statute. Appellants acknowledge that the
court's decision to remove a guardian will not be reversed absent an abuse of
discretion and that the court's findings are presumed to be correct.
{¶24} Appellants argue that the guardian ad litem's testimony is not credible,
particularly the statement about the racial slur, because she said she was shocked by
the statement, yet had not revealed it earlier. The purpose of the hearing for which
Rufener was made a guardian ad litem was to determine whether Appellee’s
visitation should be suspended. Assuming Rufener was truthful in stating she was
shocked by this comment, it would have been difficult to introduce the information
into that hearing. Appellants and Appellants’ behavior were not the subject of the
specific hearing for which she was gathering information. If she had tried to testify
about the comment, it likely would have been objected to and stricken from the
record because it had no relevance to the subject of the hearing; whether Appellee
should have his visitation rights terminated. In the subsequent hearing regarding the
removal of Appellants as guardians and the appointment of a successor guardian,
though, the comment appears to be highly relevant, and would go to the character
and attitudes of the guardians toward the children and their paternal grandparent.
{¶25} Appellants focus on the supposedly erroneous admission of this racial
comment as a reason for overturning the trial court's judgment, overlooking the many
other facts in the record that support the judgment. Rufener testified about the poor
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living conditions of Appellants’ home, including the fact that all three children (two
girls and a boy) had to share a bedroom. Appellants would not allow the children to
use the telephone to call their grandparents. Appellee testified as to Appellants’
interference with visitation, refusal to obey court orders, their statements that they did
not have to obey court orders and were above the judge, their contempt conviction,
and that they gloated over their belief that their adoption petition would be granted
and they would never have to allow visitation with Appellee again. The adoption
petition, though, was not ruled on. Appellee testified that Appellants failed to register
D.W. in school on time, that they abuse the children by striking them in the face so
hard that they drew blood, they tie them to chairs as discipline, and that they make
the children perform gruesome chores such as cutting the heads off of chickens.
Appellants did not rebut any of this evidence, and it is difficult if not impossible to
reverse a case on evidentiary grounds with no evidence in the record opposing the
evidence relied on by the court. Appellants' second assignment of error is overruled.
Conclusion
{¶26} Appellants object to the judgment of the trial court removing them as
guardians and appointing a successor guardian on grounds of improper admission of
evidence and manifest weight of the evidence. First, they object that the court
allowed former guardian ad litem Tere Rufener to testify because she was not
currently the guardian ad litem. They believe her testimony was irrelevant. The
guardian ad litem had first-hand information about the children and the parties for a
13-month period that encompassed at least a part of the time period relevant to the
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motion to appoint a successor guardian, and the trial court had broad discretion in
allowing her to testify. Second, Appellants' dispute the court's judgment based on the
manifest weight of the evidence. While this is the incorrect standard used for our
review, Appellee established that Appellants beat the children, tied them to a chair as
discipline, did not provide adequate housing, refused to obey visitation orders, and
said they would continue to refuse to obey visitation orders in the future. Appellants
failed to present any evidence themselves. There is substantial evidence supporting
the trial court’s judgment and it is affirmed as to all three cases on appeal.
Donofrio, J., concurs.
DeGenaro, P.J., concurs.
