Posts Tagged ‘superior guardian’

Ohio Probate Judge Describes Court as “Superior Guardian”

DECEMBER 27, 2011 VOLUME 18 NUMBER 44
Carl Smith is a developmentally disabled young man living in Ohio. When he reached age 18, his mother Peggy Smith applied to the local probate court for appointment as his guardian. She was appointed, and Carl continued to live with her for the next several years.

In 2005 James Stewart moved into the Smith home. Mr. Stewart was a recently-released felon; he had spent fourteen years in the Ohio prison system after a rape conviction. Mr. Stewart and Ms. Smith later married.

In 2007 Carl Smith reported that his stepfather had slapped him. Without any further evidence of violence, authorities simply closed their investigation. In 2008 Carl reported that his stepfather had beaten him with a belt; caregivers at his day program observed cuts and bruises, and a report was filed. Mr. Stewart was charged with a felony for the alleged abuse, and he represented himself at trial. He was convicted.

Meanwhile, the probate court learned of the assault charge and scheduled its own hearing into Carl’s care and living arrangements. Concerned about his safety, the probate judge removed Mrs. Stewart (the former Ms. Smith) as guardian and appointed a private fiduciary to make placement and treatment decisions for Carl. Carl moved into a group home with two other developmentally disabled residents and a full-time caregiver.

Mrs. Stewart appealed her removal as guardian. The Ohio Court of Appeals agreed that her removal was premature as the criminal charges against Mr. Stewart had not yet been resolved. At about the same time, the same Court of Appeals also reversed the conviction of Mr. Stewart on the assault charge, finding that he should not have been allowed to represent himself in his criminal trial.

The county prosecutor made a decision not to re-try Mr. Stewart on the assault charge, since he had already served as much jail time as he would get if there was another trial. Mrs. Stewart then sought approval to return Carl’s guardianship to her, and to bring him back into her — and her husband’s — home.

The Ohio probate judge declined to make Mrs. Stewart the guardian for her son once again. After a court-appointed investigator reported that Carl was frightened of Mr. Stewart and happy in his current environment, the judge ruled that Mrs. Stewart had exposed her son to potential and actual harm.

In a guardianship case, ruled the probate judge, the court is the “superior guardian” and ultimately responsible for decisions about placement, care and welfare. The appointed guardian “is simply an officer of the court subject to the court’s control, direction and supervision.” With that responsibility, it is incumbent on the probate court to investigate and act on any concerns about the well-being of wards in guardianship proceedings.

Mrs. Stewart appealed again. She argued that the probate court had disobeyed the earlier Court of Appeals instruction by not returning Carl to her care, and that it had no jurisdiction to initiate its own investigation into Carl’s living arrangements.

In its second view of the guardianship matter (and its third look at the Stewart/Smith family) the Court of Appeals dismissed Mrs. Stewart’s allegations. It agreed with the probate judge that the court is the “superior guardian,” and that a guardian’s actions are always subject to the court’s review. The appellate court quoted a 2010 Ohio Supreme Court decision (In Re: Guardianship of Spangler) in which the state’s high court had ruled that “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.” In Re: Guardianship of Smith, December 16, 2011.

In addition to Ohio, courts in Mississippi and Washington have described their local probate courts as the “superior guardian” in recent guardianship disputes. What does that mean? As a practical matter, it means that court-appointed guardians — even when they are also the parents or other close family member — are responsible to the probate judge for their decisions about care and placement. The probate judge may investigate, may enter restrictive orders and may even remove guardians when it appears necessary for the ward’s safety or well-being.

©2017 Fleming & Curti, PLC