On September 15, 2022, the Ohio Court of Appeals affirmed a Probate Court decision appointing a guardian despite a spotty record of the proceedings below. In In re Guardianship of S.B., the proposed was suffered a traumatic brain injury. In 2004, the ward’s father filed a petition for guardianship and was appointed guardian. In 2007, the guardian filed a petition to terminate the guardianship. Multiple requests were submitted by both the guardian and the ward to terminate the guardianship and, in 2010, the guardianship was terminated. In 2021, attorney Joseph Jerger filed a new petition, asking the Probate Court to appoint him as guardian and a hearing was held on December 10, 2021. Although a court investigator filed a report and there were two expert evaluations (written evaluation attached to the petition and a court ordered evaluation), the only witness to testify was the proposed ward. The proposed ward’s response to questions was reported as “unintelligible” 27 times in the transcript. The proposed ward had suffered strokes and his counsel conceded his speech was slow and slurred.
On appeal, the ward raised two eoors occured below:
- The trial court technology failed to preserve a complete record upon which an appeal may be taken; and
- The trial court abused its discretion when it determined that appellant was a person in need of a guardian.
Despite a requirement that appointment of a guardian requires clear and convincing evidence, the Court of Appeals affirmed. The proposed ward’s counsel did not object to the proceedings based on the inability to understand his client’s responses and the duty to provide a transcript for appellate review falls upon the appellant because it is appellant’s burden to show error on appeal.
The ward also alleged the Probate Court abused its discretion appointing a guardian. In that regard, the Court of Appeals held the decision to appoint a guardian is within the sound discretion of the trial court and will not be reversed absent an abuse of discretion. An abuse of discretion indicates that the trial court was unreasonable, arbitrary, or unconscionable in its ruling. “A reviewing court will not reverse a judgment appointing a guardian as an abuse of discretion if it is supported by competent, credible evidence.” Evidence supporting the appointment must be clear and convincing, which means evidence which will provide in the mind of the trier of facts a firm belief or conviction as to the facts sought to be established. Despite the poor record below, the court investigator’s report and the expert evaluations supported the decision to appoint a guardian and the ward’s testimony showed he did not know the name of the nursing home where he resided or how he came to be there. Also, he could not articulate where he would live if discharged from the nursing home. However, the ward’s testimony also showed he knew the name of the town where he lived, he knew his date of birth, how much Social Security funds he received and was able to correctly answer simple math problems. He admitted he did not want to take medications because he did not know what they were and tasted bad. On this record, the judgment below was affirmed.
Commentary
The decision below should have been reversed and remanded for further proceedings. At least, that should have happened if the case was heard in Georgia. The decision does not indicate whether the ward’s attorney objected to entry of the reports relied on below, but those documents were hearsay. It is well established in Georgia that hearsay alone cannot support a verdict or decision. See, e.g., Bailey v. Newsome, 52 Ga. App. 693 (1935) Hill Aircraft & Leasing Corp. v. Tyler, 161 Ga. App. 267 (1982) (“inadmissible hearsay evidence is without probative value to support a verdict in this state”). That means, if the case was in Georgia, the non-hearsay portion of the record below should include “clear and convincing” evidence to support the decision or the decision should be reversed. The Court of Appeals recited testimony that the ward knew which town he lived in, knew how much Social Security paid him, and knew he didn’t want to take medications because they tasted bad and he didn’t know what they were. When that testimony is compared to his inability to articulate where he would live if discharged, it is far from clear and convincing that the ward could not make and communicate significant decisions. Furthere, the mere fact that one’s speech is slow and slurred says nothing about one’s decision-making capacity. If the paramount concern is the welfare of the ward, then there should be a clear record, capable of review, before the State takes away someone’s rights.
The Court’s decision begs the question “how much record is enough?” What if the entire recording was corrupted and the court reporter could not prepare a transcript? Would the hearsay report and evaluations be enough? In other civil cases the burden is properly assigned to the appellant, but a guardianship proceeding is not like other civil cases. Unless the Court holds otherwise, the primary right a ward retains is the right to petition that the guardianship be terminated.
The Court’s note that the ward’s attorney did not object to the preceedings based on his inability to understand the ward’s responses is nonsense. The appeal was premised on an inadequate record due to faulty technology, not slow and slurred speech. To object based on court technology, the ward’s attorney would have been required to know the court’s technology would fail before the event occurred. If the Court was looking for a right for any reason basis to affirm the decision below, a better stance would be to hold that counsel should have arraigned for a court reporter to be present instead of relying on the court’s recording technology. That, at least, would pass the smell test (unless the ward was indigent and could not afford a court reporter).
