[Cite as In re Guardianship of Carpenter, 2016-Ohio-3389.]

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

MARION COUNTY 

 

IN RE: THE GUARDIANSHIP OF: CASE NO. 9-15-34 

 EDEMA JODENE CARPENTER. 

[EDEMA JODENE CARPENTER - O P I N I O N 

 APPELLANT]. 

 

Appeal from Marion County Common Pleas Court 

Probate Division 

Trial Court No. 12-GDN-0035 

Judgment Reversed 

Date of Decision: June 13, 2016 

 

APPEARANCES: 

Brian C. Cook for Appellant 

Kevin P. Collins for Appellee, Maria L. Hypes 

Brent W. Yager for Appellee, Marion County Prosecutor 

 
Case No. 9-15-34 

-2- 

WILLAMOWSKI, J. 

{¶1} Ward-appellant E. Jodene Carpenter (“Carpenter”) brings this appeal 

from the judgment of the Court of Common Pleas of Marion County, Probate 

Division, denying her motion to be represented by independent counsel of her 

choice for the purpose of challenging the guardianship and denying her motion to 

be present at a hearing regarding a motion to restrict who may visit her. The 

motions were opposed by the Guardian, Maria Lisa Hypes (“Hypes”), who had 

filed the motion to restrict Carpenter’s visitors. For the reasons set forth below, 

the judgments are reversed. 

{¶2} On January 9, 2013, the trial court found Carpenter to be incompetent 

and appointed Hypes to be her guardian. Doc. 15. On July 14, 2015, Carpenter 

personally signed a motion for authorization to be represented by independent 

counsel for the purpose of evaluating the continued necessity of the guardianship 

or to introduce a less restrictive alternative to the guardianship. Doc. 80. The 

motion specified that she wished to be represented by Brian C. Cook (“Cook”) and 

requested authority to sign an engagement letter or, in the alternative, to have the 

guardian sign the engagement letter. Id. The motion indicated that Carpenter was 

not indigent and was not requesting court-appointed counsel. Id. A copy of an 

unsigned engagement letter was attached as an exhibit to the motion. Id. 
Case No. 9-15-34 

-3- 

{¶3} A hearing was held on the motion on July 21, 2015. At the hearing, it 

was indicated that Cook and Hypes were present, but Carpenter was not present 

and received no personal notification of the hearing. Doc. 82 and 113. Although 

both Cook and Hypes spoke at the hearing, no testimony was given and no 

evidence was presented. Cook indicated that he was contacted by Carpenter’s 

daughter and brother asking him to speak with Carpenter because Carpenter 

wished to terminate the guardianship, or at least alter the terms of the 

guardianship. Tr. 2-4. Cook spoke with Carpenter with his law partner present 

and determined that in his opinion, Carpenter wished to terminate the 

guardianship, so he contacted Hypes to request that he be permitted to review the 

file. Tr. 3-5. The trial court stated as follows at the hearing. 

I don’t disagree that [Carpenter] has the right to independent 

counsel. I have a difficulty with the method in which this was 

done. You have also usurped the authority of the guardian and 

the Court who’s the superior guardian for Miss Carpenter. This 

Court has determined that she is incompetent. If you want to 

have a review, you should have contacted Miss Hypes regarding 

this. She may have cooperated with you in having you look at 

the file. 

Tr. 6. Hypes then stated that she thought the motion was nothing more than an 

interference with the guardianship and that she did not wish Cook to speak with 

Carpenter. Tr. 7. Hypes also indicated that in her opinion, it was Carpenter’s 

daughter who influenced Carpenter to seek the end of the guardianship, not 

Carpenter. Tr. 8. The trial court specifically stated that Cook did not represent 
Case No. 9-15-34 

-4- 

Carpenter at the hearing. Tr. 17. The trial court indicated that it did need to speak 

to Carpenter, but the record does not indicate that such a visit occurred prior to the 

ruling by the trial court. Tr. 20. 

{¶4} On August 3, 2015, a motion signed by Carpenter was filed requesting 

again that she be represented by Cook and be permitted to attend a hearing that 

Hypes had requested to restrict Carpenter’s visits with her daughter. Doc. 92. The 

trial court held a hearing on August 6, 2015, concerning Hypes’ request for the 

daughter to only have supervised visits. Doc. 95. Carpenter was not at the 

hearing. Id. On August 13, 2015, the trial court granted the motion for supervised 

visits. Doc. 95. The trial court on that same day denied Carpenter’s request to be 

represented by Cook. Doc. 96. Carpenter appeals from these judgments and 

raises the following assignments of error on appeal.1

First Assignment of Error 

The probate court erred when it denied Carpenter’s motion to 

hire independent counsel of her choice for purposes relating to 

guardianship review and termination because a ward has such a 

right under the Ohio Revised Code. 

Second Assignment of Error 

The probate court’s decision to proceed with a hearing on 

Carpenter’s motion to hire independent counsel of her choice 

without giving notice to Carpenter and without her attendance 

violated her right to due process of law as guaranteed by the 

Fourteenth Amendment of the United States Constitution and 

Article 1, Section 16, of the Ohio Constitution. 

 

1

 Two separate notices of appeal were filed, one for each judgment entry. Doc. 146 and 149. 
Case No. 9-15-34 

-5- 

Third Assignment of Error 

The probate court’s decision to proceed with a hearing on a 

motion by [Hypes] to restrict Carpenter’s access to her family, 

without providing for Carpenter’s attendance, participation, 

and/or legal representation after she filed a motion requesting to 

attend, participate and have legal representation, violated her 

right to due process of the law as guaranteed by the Fourteenth 

Amendment of the United States Constitution and Article 1, 

Section 16, of the Ohio Constitution. 

In the interest of clarity, we will address the assignments of error out of order. 

{¶5} Carpenter claims in the second assignment of error that the trial court 

erred in holding a hearing on her motion without providing her notice of the 

hearing or allowing her to attend the hearing. Carpenter’s initial motion requested 

that she be permitted to hire independent counsel of her choice for the purpose of 

either challenging the need to continue the guardianship or, in the alternative, 

challenging the extent of the guardianship. Pursuant to statute, at any time after 

the expiration of one hundred twenty days from the date of the original 

appointment of the guardian, a ward, the ward’s attorney, or any other interested 

party may request a review of the guardianship. R.C. 2111.49(C). The statute 

also requires that if such a motion is filed, a hearing shall be held in accordance 

with R.C. 2111.02. Id. The very language of the statute implies that a ward may 

have an independent attorney to challenge the guardianship. At a hearing 

challenging the guardianship, there is no doubt that “R.C. 2111.49(C) expressly 

incorporates the hearing requirements relating to original appointments of 
Case No. 9-15-34 

-6- 

guardians to proceedings concerning the continued necessity of guardianships.” 

State ex rel. McQueen v. Cuyhoga Cty. Court of Common Pleas, Probate Division, 

135 Ohio St.3d 291, 2013-Ohio-65, 986 N.E.2d 925, ¶ 17. The hearing 

requirements in a guardianship are set forth in R.C. 2111.02. If the hearing 

concerns the appointment of a guardian for an alleged incompetent, the alleged 

incompetent has all of the following rights. 

(a) The right to be represented by independent counsel of the 

alleged incompetent’s choice; 

(b) The right to have a friend or family member of the alleged 

incompetent’s choice present; 

(c) The right to have evidence of an independent expert 

evaluation introduced; 

(d) If the alleged incompetent is indigent, upon the alleged 

incompetent’s request: 

(i) The right to have counsel and an independent expert 

evaluator appointed at court expense; 

(ii) If the guardianship * * * is appealed, the right to have 

counsel appointed and necessary transcripts for appeal prepared 

at court expense. 

R.C. 2111.02(C)(7). Additionally, if a ward challenges the continuation of the 

guardianship, the burden rests on the guardian to show by clear and convincing 

evidence that the ward is incompetent. R.C. 2111.49(C). 

{¶6} Although, R.C. 2111.49 does not specify that a ward needs to be given 

notice of a hearing on a motion, R.C. 2111.47 specifically provides that a ward 
Case No. 9-15-34 

-7- 

who has been deemed incompetent, as well as the guardian, must be given notice 

prior to the termination of the guardianship. Since R.C. 2111.49(C) states that any 

hearing on the continuation of the guardianship should comply with the 

requirements of R.C. 2111.02, this would include the requirement that the alleged 

incompetent/ward be given notice of the proceedings and be permitted to attend 

the proceedings if practicable. R.C. 2111.04(A)(2)(a)(i). The appointment of a 

guardian does not deprive a ward of their status as a party who is entitled to notice 

of hearings because he or she still has an interest in the proceedings. In re 

Guardianship of Richardson, 172 Ohio App.3d 410, 2007-Ohio-3462, 875 N.E.2d 

129 (8th Dist.) (reversed in part on other grounds by In re Guardianship of 

Richardson, 120 Ohio St.3d 438, 2008-Ohio-6696, 900 N.E.2d 174). 

{¶7} In this case, the initial motion was filed by Carpenter. A review of the 

record indicates that no notice of the hearing on Carpenter’s motion was given to 

Carpenter. Although Hypes was given notice due to her status as guardian of 

Carpenter, this is not sufficient notice to Carpenter in this case. Most guardianship 

proceedings are not adversarial in nature. However, when the ward has indicated 

that he or she would like independent counsel to challenge the necessity of 

continuing the guardianship and the guardian objects, that is a clear indication that 

the desires of the ward and the determination made by the guardian are adverse to 

one another. Thus, the guardian cannot represent his or her own interest, as 

guardian, in court and also represent the contrary wishes of the ward since they 
Case No. 9-15-34 

-8- 

conflict. In that situation, it only stands to reason that the ward should be entitled 

to appear on his or her own behalf and tell the trial court what his or her wishes 

are. 

{¶8} The trial court itself agreed that it would need to speak with the ward 

personally to determine the ward’s wishes. The record contains no evidence that 

the trial court ever spoke with the ward prior to ruling on the motion. The record 

is also clear that the trial court did not consider Cook to be Carpenter’s attorney at 

the hearing. Thus, the hearing was held on Carpenter’s motion without 

Carpenter’s knowledge, without Carpenter’s presence, and with no one to protect 

Carpenter’s interests. This is a clear denial of due process. Carpenter should have 

received notice of the hearing on her motion and been allowed an opportunity to 

be heard on her case. To hold otherwise would be to prevent any ward whose 

guardian opposed the motion for independent counsel from having a meaningful 

hearing before a trial court. For this reason, the second assignment of error is 

sustained. 

{¶9} In the first assignment of error, Carpenter claims that the trial court 

erred by denying her motion for independent counsel of her choice. As stated 

above, when a ward wishes to challenge a guardianship, he or she is entitled to 

independent counsel of his or her choice. Carpenter has the money to pay for 

counsel, so the determination of who that counsel should be is hers alone, not that 

of the trial court. The trial court in this case determined that although Carpenter 
Case No. 9-15-34 

-9- 

had the right to independent counsel, Cook should not be that counsel because he 

spoke to the ward without the guardian’s knowledge. However, there is no 

requirement that a ward has to have his or her choice of independent counsel 

approved by the guardian.2

 If that were the case, the counsel would not be the 

choice of the ward, but the choice of the guardian. The statutes provide that a 

ward has the right to independent counsel of his or her choice to challenge a 

guardianship. See R.C. 2111.02 and 2111.49. The statute also provides that a 

challenge to a guardianship may be filed by the ward’s attorney, thus implying that 

a ward may have his or her own attorney even though he or she is incompetent. 

As discussed above, the trial court took no steps to determine what the actual 

wishes of Carpenter were, instead relying solely on the statements of Hypes as to 

what her beliefs were regarding the situation. No evidence was actually presented 

to the trial court regarding the motion. Instead, all that was presented were 

statements of attorneys in argument as to what the decision of the trial court 

should be. “The arguments of counsel in the role of advocate * * * are not 

evidence, and lawyers in making those arguments are not witnesses.” Sneary v. 

Baty, 3d Dist. Allen No. 1-96-13, 1996 WL 479579 (Aug. 14, 1996). Since there 

was no evidence to support the judgment of the trial court in this matter, the trial 

 

2

 The only restriction is that the ward lacks authority to enter into a contract with the attorney, which would 

prevent the attorney from collecting a fee for representation without approval from either the guardian or 

the trial court. At the time Cook and Carpenter met to discuss his possible representation of her, she had no 

restrictions on with whom she could visit. The mere indication at the hearing that Cook was contacted 

initially by Carpenter’s daughter and brother on Carpenter’s behalf does not indicate that Cook acted in any 

way inappropriately or unethically by agreeing to meet with Carpenter without the consent of the guardian. 
Case No. 9-15-34 

-10- 

court abused its discretion in denying the motion for independent counsel of 

Carpenter’s choosing. The first assignment of error is sustained. 

{¶10} In the third assignment of error, Carpenter alleges that the trial court 

erred by holding a hearing regarding Hypes’ motion to restrict her visitation with 

her daughter without providing notice to Carpenter or requiring the attendance of 

Carpenter after Carpenter filed a motion requesting such notice and permission to 

attend the hearing. A review of the statutes indicates that there is no statutory 

provision for a ward to challenge a decision of a guardian. See Revised Code 

Chapter 2111. However, the Ohio Supreme Court requires trial courts to have 

such a process. 

The probate division of a court of common pleas that establishes 

guardianships shall adopt local rules governing the 

establishment of guardianships that do all of the following: 

* * * 

(B) Establish a process for submitting in electronic format or 

hard copy comments and complaints regarding the performance 

of guardians appointed by the court and for considering such 

comments and complaints. The process shall include each of the 

following: 

(1) The designation of a person for accepting and considering 

comments and complaints; 

(2) A requirement that a copy of the submitted comment or 

complaint be provided to the guardian who is the subject of the 

comment or complaint; 

(3) A requirement that the court give prompt consideration to 

the comment or complaint and take appropriate action; 
Case No. 9-15-34 

-11- 

(4) A requirement that the court maintain a record regarding 

the nature and disposition of the comment or complaint; 

(5) A requirement that the court notify the person making the 

comment or complaint and the guardian of the disposition of the 

comment or complaint. 

Sup.R. 66.03. Local Rule 66.1 of the Marion County Probate Court provides that 

a ward may appear before the court. Even after a finding of incompetency, a ward 

continues to have certain rights. Among these rights are the rights to have her 

personal opinions considered, to speak privately with an attorney or another 

advocate, to petition the court to modify a guardianship, and to bring a grievance 

against the guardian. Ohio Guardianship Guide, by the Ohio Attorney General,12-

14. Additionally, in a proceeding in which the guardian and the ward appear to 

have adverse interests, “the court shall appoint a guardian ad litem” to represent 

the ward. R.C. 2111.23. 

{¶11} Here, Carpenter filed a motion stating her objections to the 

guardian’s motion to restrict her visitors. Carpenter’s motion indicated that she 

wished to be present and participate in the hearing on the matter. By local rule, 

the ward has a right to be present at court proceedings. However, no notice of the 

hearing date was sent to Carpenter, even after she requested such notice. No 

notice of the hearing date was sent to Cook, even though the motion indicated that 

Carpenter wished him to represent her at the hearing. No guardian ad litem was 

appointed for Carpenter, even though the motion indicated that Carpenter’s wishes 
Case No. 9-15-34 

-12- 

were adverse to those of Hypes. The entry granting Hypes’ motion indicated that 

neither Carpenter nor an independent representative for Carpenter was present to 

argue Carpenter’s position. Although there is no statutory mechanism for 

Carpenter’s objections to Hypes’ actions, the superintendence rules do require the 

trial court to have a mechanism for such a challenge. There is nothing in the 

record to indicate that Carpenter’s stated interests were given any consideration by 

the trial court. The trial court has a responsibility to consider the wishes of the 

ward, yet the record contains no indication that the trial court spoke with 

Carpenter prior to entering a ruling. The trial court also failed to abide by its own 

rule providing a ward with the right to appear at the hearing. Therefore, Carpenter 

was denied her due process and the third assignment of error is sustained. 

{¶12} Having found error prejudicial to the appellant, the judgment of the 

Marion County Court of Common Pleas, Probate Division is reversed and the 

matter is remanded for further proceedings. 

Judgment Reversed 

And Remanded 

PRESTON and ROGERS, J.J., concur. 

/hls