In re Guardianship of Spangler

[Cite as In re Guardianship of Spangler, 126 Ohio St.3d 339, 2010-Ohio-2471.]

IN RE GUARDIANSHIP OF SPANGLER.

[Cite as In re Guardianship of Spangler, 126 Ohio St.3d 339, 2010-Ohio-2471.]

Guardianships — Removal of guardian — County boards of developmental

disabilities have no authority to petition probate court for removal of

guardian of incompetent adult — Probate court, under its plenary

authority as superior guardian, may sua sponte conduct proceedings to

remove guardian.

(No. 2009-0121 — Submitted December 2, 2009 — Decided June 9, 2010.)

APPEAL from the Court of Appeals for Geauga County, Nos. 2007-G-2800 and

2007-G-2802, 2008-Ohio-6978.

__________________

SYLLABUS OF THE COURT

County boards of developmental disabilities have not been granted the express or

implied authority to file a motion to remove the guardian of an

incompetent adult; however, the probate court, with its plenary authority

as the superior guardian, may upon notice from a county board of

developmental disabilities conduct proceedings to remove a guardian.

__________________

LANZINGER, J.

{¶ 1} In this case we are asked to determine whether a county board of

developmental disabilities has the statutory authority and standing to file a motion

to remove a guardian of an incompetent adult. We hold that county boards of

developmental disabilities have not been granted the express or implied authority

to file a motion to remove the guardian of an incompetent adult; however, the

probate court, with its plenary authority as the superior guardian, may upon notice

from a county board of developmental disabilities conduct proceedings to remove

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a guardian. We, therefore, affirm in part, vacate in part, and remand for further

proceedings.

Case History

{¶ 2} Appellee John Spangler is currently 22 years old and suffers from

autism, mental retardation, and mitochondrial disease. After John turned 18, his

parents, appellees Gabriele and Joseph Spangler, filed an application to be

appointed John’s permanent guardians. Appellant Geauga County Board of

Mental Retardation and Developmental Disabilities1 (the “board”) participated in

the hearings on the matter and supported the parents’ application. At one of those

hearings, the probate court warned the mother:

{¶ 3} “I’m going to give some consideration to appointing a guardian ad

litem to go out and do investigation as to whether you’re the most suitable

guardians or not. It’s very important that he has someone who cares a lot about

him, and obviously you do.

{¶ 4} “And I haven’t heard anything from your husband yet, but

apparently from the interactions that others have had, they feel that he is a very

caring individual, too.

{¶ 5} “But you do have to be making good decisions. And I will be

attempting to judge the decisions that you’re making.

{¶ 6} “If you’re not making decisions that are in your son’s best

interests, in terms of placement, I would consider appointing someone other than

you and your husband to be your son’s guardian.”

{¶ 7} Ultimately, on July 18, 2006, as a result of John’s mental and

physical conditions, the probate court appointed the parents unlimited guardians

of John’s person.

1. During the pendency of this cause, the General Assembly passed 2009 Sub.S.B. No. 79

(effective October 6, 2009), which changed the name of county boards of mental retardation and

developmental disabilities to county boards of developmental disabilities.

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{¶ 8} Three months later, the board filed a motion to remove the parents

as John’s guardians and to appoint Advocacy and Protective Services, Inc.

(“APSI”) as successor guardian. The motion alleged that the mother had created

conflict with John’s providers and threatened to remove him from their care. The

motion was supported by a letter from John’s current provider, who stated that

there was “an immediate danger to the welfare and safety of John.” The probate

court granted the motion to remove on a temporary basis, appointed APSI as

temporary guardian for John, and set the matter for hearing the following week.

At that hearing, the board and the parents agreed to a six-month continuance of

the hearing and the appointment of APSI as temporary guardian.

{¶ 9} In January 2007, however, the parents moved for an emergency

order removing APSI and appointing the father as guardian. APSI responded

with a motion to dismiss the parents’ emergency motion and requested joinder of

the board as a necessary party and appointment of a guardian ad litem. The

parents opposed the motion to join the board as a party and later filed a motion to

dismiss the board’s motion for removal of the parents as guardians, arguing that

the board had no statutory authority or standing to file such a motion. The

probate court denied the parents’ motion to remove APSI and set a hearing in

April 2007 on whether the parents would be permitted to serve as John’s

guardians.

{¶ 10} Before the April 2007 hearing, the probate court joined the board

as a party to the removal proceedings for purposes of prosecuting its motion to

remove the parents as guardians and denied the parents’ motion to dismiss the

board’s motion. At a second hearing two months later, John filed his own motion

to dismiss the board from the case, arguing that the board lacked statutory

standing to be considered a party. Acknowledging the motion, the court stated:

{¶ 11} “That issue has previously been addressed.

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{¶ 12} “It’s my view that they are an interested party, that the Agency is

required to provide services, they had information, that preserves this ward

allowing them to participate as a party for purposes of assisting the Court in

making a decision regarding this issue of who is going to be the guardian.

{¶ 13} “In fact, I don’t know how this would have been brought to the

Court if the Agency been notified [sic], so I’m the one that says they are going to

be, continue a party at least as long [as] this issue is pending.”

{¶ 14} After a third hearing and an in camera interview with John, the

matter was submitted to the probate court. In its entry, the trial court found that

the statutory obligations imposed on the board for John’s benefit are fiduciary in

nature and the board therefore had standing to file the motion to remove the

parents. The probate court then found that despite John’s need for structure and

consistency in his life, his mother “repeatedly, impulsively sought changes in

John’s placements and services without giving due consideration to the opinion of

professionals working with John and without having first secured alternative more

appropriate services.” Moreover, John’s father “is either unable or unwilling to

intercede objectively and assertively in disputes that have arisen between care

providers and his wife.” Finding that there was good cause and that it was in

John’s best interest, the probate court removed the parents as John’s guardians

and ordered that ASPI continue as the legal guardian for his person.

{¶ 15} The parents and John separately appealed to the Eleventh District

Court of Appeals. In a split decision, the appellate court reversed. The lead

opinion concluded that the board had not been granted the statutory authority,

express or implied, to file a motion to remove a guardian and thus lacked general

standing to petition the court to remove the guardian. The concurrence focused

on R.C. Chapters 2109 and 2111 and determined that the board was not the real

party in interest and thus lacked standing. The dissent viewed the general duties

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of the board as sufficient to establish the board as an “interested party,” allowing

the board to object to the guardian.

{¶ 16} We accepted the board’s discretionary appeal to determine whether

a board of mental retardation and developmental disabilities has the authority and

standing to request that a probate court remove a guardian of an incompetent adult

and whether the probate court has the authority to conduct proceedings to remove

a guardian upon the board’s request. In re Guardianship of Spangler, 121 Ohio

St.3d 1498, 2009-Ohio-2511, 907 N.E.2d 323.

Legal Analysis

Powers and Duties of County Boards of Developmental Disabilities

{¶ 17} “Each county shall have its own county board of developmental

disabilities.” R.C. 5126.02(A). County boards, being creatures of statute, have

no more authority than that specifically conferred upon them or clearly implied by

the statute. See D.A.B.E., Inc. v. Toledo-Lucas Cty. Bd. of Health, 96 Ohio St.3d

250, 2002-Ohio-4172, 773 N.E.2d 536; Burger Brewing Co. v. Thomas (1975), 42

Ohio St.2d 377, 379, 71 O.O.2d 366, 329 N.E.2d 693. Implied powers are those

that are incidental or ancillary to an expressly granted power; the express grant of

power must be clear, and any doubt as to the extent of the grant must be resolved

against it. State ex rel. A. Bentley & Sons Co. v. Pierce (1917), 96 Ohio St. 44,

47, 117 N.E. 6.

{¶ 18} The general powers and duties of county boards of developmental

disabilities are set forth in R.C. 5126.05(A), which gives the boards authority to

do the following:

{¶ 19} “(1) Administer and operate facilities, programs, and services as

provided by this chapter and Chapter 3323. of the Revised Code and establish

policies for their administration and operation;

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{¶ 20} “(2) Coordinate, monitor, and evaluate existing services and

facilities available to individuals with mental retardation and developmental

disabilities;

{¶ 21} “(3) Provide early childhood services, supportive home services,

and adult services, according to the plan and priorities developed under section

5126.04 of the Revised Code;

{¶ 22} “(4) Provide or contract for special education services pursuant to

Chapters 3306., 3317., and 3323. of the Revised Code and ensure that related

services, as defined in section 3323.01 of the Revised Code, are available

according to the plan and priorities developed under section 5126.04 of the

Revised Code;

{¶ 23} “(5) Adopt a budget, authorize expenditures for the purposes

specified in this chapter and do so in accordance with section 319.16 of the

Revised Code, approve attendance of board members and employees at

professional meetings and approve expenditures for attendance, and exercise such

powers and duties as are prescribed by the director;

{¶ 24} “(6) Submit annual reports of its work and expenditures, pursuant

to sections 3323.09 and 5126.12 of the Revised Code, to the director, the

superintendent of public instruction, and the board of county commissioners at the

close of the fiscal year and at such other times as may reasonably be requested;

{¶ 25} “(7) Authorize all positions of employment, establish

compensation, including but not limited to salary schedules and fringe benefits for

all board employees, approve contracts of employment for management

employees that are for a term of more than one year, employ legal counsel under

section 309.10 of the Revised Code, and contract for employee benefits;

{¶ 26} “(8) Provide service and support administration in accordance with

section 5126.15 of the Revised Code;

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{¶ 27} “(9) Certify respite care homes pursuant to rules adopted under

section 5123.171 of the Revised Code by the director of developmental

disabilities.”

{¶ 28} Nothing in R.C. 5126.05(A) grants the board either express or

implied power to file a motion to remove a guardian. The trial court, however,

relied on another statute that it read as imposing fiduciary obligations on the

board. R.C. 5126.15(B) provides:

{¶ 29} “The individuals employed by or under contract with a board to

provide service and support administration shall do all of the following:

{¶ 30} “(1) Establish an individual's eligibility for the services of the

county board of developmental disabilities;

{¶ 31} “(2) Assess individual needs for services;

{¶ 32} “(3) Develop individual service plans with the active participation

of the individual to be served, other persons selected by the individual, and, when

applicable, the provider selected by the individual, and recommend the plans for

approval by the department of developmental disabilities when services included

in the plans are funded through medicaid;

{¶ 33} “(4) Establish budgets for services based on the individual's

assessed needs and preferred ways of meeting those needs;

{¶ 34} “(5) Assist individuals in making selections from among the

providers they have chosen;

{¶ 35} “(6) Ensure that services are effectively coordinated and provided

by appropriate providers;

{¶ 36} “(7) Establish and implement an ongoing system of monitoring the

implementation of individual service plans to achieve consistent implementation

and the desired outcomes for the individual;

{¶ 37} “(8) Perform quality assurance reviews as a distinct function of

service and support administration;

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{¶ 38} “(9) Incorporate the results of quality assurance reviews and

identified trends and patterns of unusual incidents and major unusual incidents

into amendments of an individual's service plan for the purpose of improving and

enhancing the quality and appropriateness of services rendered to the individual;

{¶ 39} “(10) Ensure that each individual receiving services has a

designated person who is responsible on a continuing basis for providing the

individual with representation, advocacy, advice, and assistance related to the

day-to-day coordination of services in accordance with the individual's service

plan. The service and support administrator shall give the individual receiving

services an opportunity to designate the person to provide daily representation. If

the individual declines to make a designation, the administrator shall make the

designation. In either case, the individual receiving services may change at any

time the person designated to provide daily representation.” (Emphasis added.)

{¶ 40} As noted above, both R.C. 5126.15(B)(6) and (10) would appear to

require that county board of developmental disabilities employees work with

appointed guardians to ensure that services are properly coordinated for

individuals receiving their services. In addition, employees are required to

monitor the implementation of individual service plans. R.C. 5126.15(B)(7).

However, ensuring coordination of services and monitoring their implementation

do not amount to an express or implied authority to initiate legal proceedings to

seek the removal of an appointed guardian, even if that guardian interferes with

service providers.

{¶ 41} Furthermore, the General Assembly could have specifically

included language granting a county board of developmental disabilities the

authority to file a motion to remove an uncooperative guardian. County boards of

developmental disabilities have been granted authority to initiate legal

proceedings for the protection of an adult with mental retardation or a

developmental disability in other contexts. For example, a county board of

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developmental disabilities may file a complaint with the probate court to provide

protective services for an abused or neglected incompetent adult when the board

cannot secure consent for such services from either the adult or the guardian and

there is a substantial risk of immediate physical harm or death. R.C. 5126.33(A)

and (D). A county board of developmental disabilities may also apply to the

probate court for a temporary restraining order against anyone interfering with an

investigation of reported abuse or neglect or with the provision of services

designed to prevent or correct abuse or neglect of an adult with mental retardation

or a developmental disability. R.C. 5126.32. But neither of these statutes applies

because there has been no refusal of services and no allegation of abuse or neglect

or of substantial risk of immediate physical harm or death.

{¶ 42} The board argues that no statute or rule limits a county board of

developmental disabilities to the procedures in R.C. 5126.33 to protect the health,

safety, and welfare of individuals under its care and supervision. Yet the absence

of a limitation on the board’s authority does not determine the question. Because

the board is governed by statute, there must be an express or implied grant of

authority allowing county boards of developmental disabilities to file a motion to

remove a guardian. The general duty under R.C. 5126.055(A)(4) “to ensure the

health, safety, and welfare of individuals receiving services from a county board

of developmental disabilities” does not equate to or imply a grant of authority to

interfere with the appointment of a guardian by the probate court.

{¶ 43} Similarly, the board’s reliance on R.C. 305.14(C) as authority to

file such a motion is misplaced. That statute allows the board to hire legal

counsel without authorization from the common pleas court; it does not allow the

board to initiate any legal action it chooses.

{¶ 44} We therefore hold that a county board of developmental

disabilities does not have the statutory authority to file a motion in the probate

court to remove a guardian.

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Probate Court Is the Superior Guardian

{¶ 45} Amicus curiae the state of Ohio and the board in its third

proposition of law urge that, irrespective of the powers and duties of a county

developmental disabilities board, the probate court has plenary authority to act

upon the information brought before it and to remove the parents as guardians for

their son. We agree.

{¶ 46} As we have previously stated, “[i]t is a well-settled principle of law

that probate courts are courts of limited jurisdiction and are permitted to exercise

only the authority granted to them by statute and by the Ohio Constitution.

Corron v. Corron (1988), 40 Ohio St.3d 75, 77, 531 N.E.2d 708.” In re Hollins,

114 Ohio St.3d 434, 2007-Ohio-4555, 872 N.E.2d 1214, ¶ 11. The general grant

of jurisdiction to probate courts regarding guardians is comprehensive. R.C.

2101.24 states:

{¶ 47} “(A)(1) Except as otherwise provided by law, the probate court has

exclusive jurisdiction:

{¶ 48} “* * *

{¶ 49} “(e) To appoint and remove guardians, conservators, and

testamentary trustees, direct and control their conduct, and settle their accounts.

{¶ 50} “* * *

{¶ 51} “(C) The probate court has plenary power at law and in equity to

dispose fully of any matter that is properly before the court, unless the power is

expressly otherwise limited or denied by a section of the Revised Code.”

{¶ 52} In addition, the probate court is the “superior guardian,” and other

guardians must obey all probate orders: “At all times, the probate court is the

superior guardian of wards who are subject to its jurisdiction, and all guardians

who are subject to the jurisdiction of the court shall obey all orders of the court

that concern their wards or guardianships.” R.C. 2111.50(A)(1).

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{¶ 53} Guardianship proceedings, including the removal of a guardian, are

not adversarial but rather are in rem proceedings involving only the probate court

and the ward. In re Guardianship of Santrucek, 120 Ohio St.3d 67, 2008-Ohio-

4915, 896 N.E.2d 683, ¶ 5. 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. In re Guardianship of Daugherty (Mar. 9,

1984), 7th Dist. Nos. 83-C-24 and 83-C-29, 1984 WL 7676. The guardian,

therefore, has no personal interest in his or her appointment or removal. Id.

{¶ 54} It is also clear that the probate court has the plenary authority to

investigate guardians. We agree with the analysis used in In re Guardianship of

Herr (Sept. 2, 1998), 5th Dist. No. 98-CA-16-2, 1998 WL 666986. In Herr, the

attending physician and nursing staff at a nursing home contacted the probate

court with concerns that a guardian was unreasonably denying treatment of

emergency conditions to her ward due to the cost. After the probate court

summoned the guardian for a hearing and removed her, she appealed, arguing that

the court did not have authority sua sponte to order her appearance in probate

court. The court of appeals held that the nursing home’s communication was

sufficient cause to allow the probate court to conduct a hearing concerning the

removal of the appellant as guardian. The appellate court stated: “Without the

inherent power to sua sponte consider removal, the court could find itself bound

to a guardian acting contrary to the interest of the ward, if no interested party is

available to initiate the proceedings by motion or petition.” Id. at *2.

{¶ 55} The parents do not contest that had the board sent a letter to the

probate court, the court could have sua sponte initiated a hearing on whether to

remove them as guardians. Instead, they seem to argue that because the

information came in the form of a motion from the board, the probate court was

barred from acting. Form, however, should not be allowed to triumph over the

substance of the issue involved.

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{¶ 56} We also do not agree that it is mere speculation that the probate

court would have acted if the board had simply notified the court of what had

occurred with John’s service providers. The board had participated in the

hearings on the parents’ request to be appointed guardians, and although the board

ultimately supported the application, it expressed concern over several of the

mother’s decisions regarding her son. Information obtained from the board

actually led the probate court to warn the mother that the court would not hesitate

to appoint another guardian if she failed to make good decisions. There was

sufficient cause for the probate court to call the guardian in for a hearing after it

heard allegations that, three months later, one of the guardians arrived

unexpectedly late at night and intoxicated at the home of John’s service providers

and threatened to remove him from a stable placement.

{¶ 57} Because the court of appeals did not address the merits of the

probate decision to remove the parents as guardians, this matter must be

remanded to that court for resolution of the parents’ second through fourth

assignments of error.

Conclusion

{¶ 58} We hold that the General Assembly has not granted a county board

of developmental disabilities the express or implied power to file a motion to

remove a guardian. Nonetheless, the plenary power of the probate court as the

superior guardian allows it to investigate whether a guardian should be removed

upon receipt of sufficient information that the guardian is not acting in the ward’s

best interest. Thus, the court of appeals erred when, based on its holding that the

board lacked standing, it summarily ruled that the trial court erred in removing the

parents as guardians and when it mooted the assignment of error challenging the

removal order as being against the manifest weight of the evidence. We therefore

affirm the judgment of the Eleventh District in part, vacate it in part, and remand

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the matter to the court of appeals for resolution of the parents’ second and third

assignments of error.

Judgment affirmed in part

and vacated in part,

and cause remanded.

LUNDBERG STRATTON, O’CONNOR, and CUPP, JJ., concur.

PFEIFER and O’DONNELL, JJ., concur in part and dissent in part.

BROWN, C.J., not participating.

__________________

O’DONNELL, J., concurring in part and dissenting in part.

{¶ 59} While I concur with the majority that a county board of

developmental disabilities does not have the express or implied authority to file a

motion to remove the guardian of an incompetent adult, I respectfully dissent

from the majority’s holding that the probate court, with its plenary authority as the

superior guardian, may, upon notice from a county board of developmental

disabilities, conduct proceedings to remove a guardian.

{¶ 60} The Geauga County Board of Developmental Disabilities filed a

motion in the probate court to remove Joseph and Gabriele Spangler as guardians

of their son, John. The Spanglers moved to dismiss the motion, arguing that the

board lacked statutory authority and standing to file such a motion. The probate

court joined the board as an interested party in the matter, denied the Spanglers’

motion to dismiss, and then removed them as John’s guardians. On appeal, the

Eleventh District Court of Appeals reversed the decision of the probate court,

concluding that the board did not have the statutory authority to file a motion to

remove a guardian and thus had no standing to seek removal of a guardian.

{¶ 61} The board appealed that decision to this court, and we accepted for

review three propositions of law: (1) a county board of developmental disabilities

has the right and the ability to request the probate court to take action in the best

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interest of the ward, (2) the county board has standing to move the probate court

to remove an unsuitable guardian, and (3) the county board has standing to

participate in the probate court proceedings as an interested party. In re

Guardianship of Spangler, 121 Ohio St.3d 1498, 2009-Ohio-2511, 907 N.E.2d

323.

{¶ 62} In its merit brief, the board merged its third proposition of law into

the second and added a third proposition of law focused on the authority of the

probate court, not the standing of the county board: “A probate court has authority

to initiate and conduct proceedings to remove a guardian based on a motion from

a Board of Developmental Disabilities.” As the board did not raise this issue in

its memorandum in support of jurisdiction, it is not properly before us, and we

should decline to address it now. See In re Timken Mercy Med. Ctr. (1991), 61

Ohio St.3d 81, 87, 572 N.E.2d 673 (holding that an issue not raised or even

alluded to in appellant’s memorandum in support of jurisdiction is not properly

before the court); Estate of Ridley v. Hamilton Cty. Bd. of Mental Retardation &

Dev. Disabilities, 102 Ohio St.3d 230, 2004-Ohio-2629, 809 N.E.2d 2, ¶ 18

(declining to address an argument not raised by appellant in its memorandum in

support of jurisdiction).

{¶ 63} Here, if the issue were properly before us, I would disagree with

the majority’s conclusion that a probate court has plenary authority to act upon

the information brought before it irrespective of the powers and duties of a county

board. As we stated in In re Guardianship of Hollins, 114 Ohio St.3d 434, 2007-

Ohio-4555, 872 N.E.2d 1214, “probate courts are courts of limited jurisdiction

and are permitted to exercise only the authority granted to them by statute and by

the Ohio Constitution.” Id. at ¶ 11, citing Corron v. Corron (1988), 40 Ohio St.3d

75, 77, 531 N.E.2d 708. R.C. 2101.24(C) grants the probate court “plenary power

at law and in equity to dispose fully of any matter that is properly before the

court.” (Emphasis added.)

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{¶ 64} The matter before the probate court in this case concerned a

motion to remove John’s parents as his guardians filed by the Geauga County

Board of Developmental Disabilities. Thus, the question for this court’s

determination would be whether the board’s motion was properly before the

probate court. Because a county board of developmental disabilities does not

have the express or implied authority to file a motion to remove the guardian of

an incompetent, its motion to remove the Spanglers as John’s guardians was never

properly before the court. Consequently, the court lacked the plenary power to

remove John’s parents as his guardians, and in doing so, the court exceeded its

limited statutory jurisdiction.

{¶ 65} Accordingly, I would affirm the decision of the Eleventh District

Court of Appeals and remand the case to the trial court for further proceedings.

PFEIFER, J., concurs in the foregoing opinion.

__________________

David P. Joyce, Geauga County Prosecuting Attorney, and J.A. Miedema,

Assistant Prosecuting Attorney; and Hickman & Lowder Co., L.P.A., Franklin J.

Hickman, and Judith C. Saltzman, for appellant Geauga County Board of

Developmental Disabilities.

Ohio Legal Rights Service, Derek S. Hamalian, Jason C. Boylan, and

Kerstin Sjoberg-Witt, for appellee John Spangler.

Law Office of Pamela Walker Makowski and Pamela Walker Makowski,

for appellees Joseph and Gabriele Spangler.

Richard Cordray, Attorney General, Benjamin C. Mizer, Solicitor General,

David M. Lieberman, Deputy Solicitor General, and Elizabeth G. Hartnett,

Assistant Attorney General, urging reversal for amicus curiae state of Ohio.

Shane Egan, urging reversal for amicus curiae Advocacy and Protective

Services, Inc.

______________________

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