[Cite as In re Guardianship of Hyde , 2024

- Ohio

- 1878.]



## IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

IN RE: GUARDIANSHIP OF ARIANA HYDE :

:

: APPEAL NO . C

- 230576 TRIAL NO. 2018003726

O P I N I O N.

Appeal From : Hamilton County Probate Court

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: May 17, 2024

Glenda A. Smith
, for Appellant Melissa Payne,

Resch, Root, Philipps & Graham, LLC, and Derek Graham
, for Appellee Advocacy and Protective Services, Inc.OHIO FIRST DISTRICT COURT OF APPEALS

2 B ERGERON , Judge.


### {¶1} Following years of mental health challenges and a severe mental health

related incident, Ariana Hyde (at age 18) was involuntarily committed to the care of
the Southern Ohio Developmental Center (“SODC”). G iven Ms. Hyde’s serious mental

health and cognitive diagnoses, appellee Advocacy and Protective Services, Inc.
(“APSI”) filed an application for guardianship. Appellant Melissa Payne (Ms. Hyde’s

mother) also sought guardianship at the same time

. But b ecause Ms. Payne struggle d

to acknowledge and address her daughter’s mental health , the probate court opted to

appoint APSI as guardian. Years later, f rustrated with the delayed efforts to transition

Ms. Hyde to a less restrictive environment, Ms. Payne moved to remove APSI as

guardian and to appoint herself as guardian. Following a hearing, the magistrate

denied the motions, citing APSI’s attentiveness and its plan (created in partnership

with SODC) to transition Ms. Hyde to a less restrictive setting. Ms. Payne objected to
the magistrate’s decision, but the probate court denied her objections and adopted the
magistrate’s d ecision. Ms. Payne now appeals

. 

### {¶2} At the outset, we acknowledge that it is clear from the record that Ms.
Payne loves her daughter and is doing her best to look out for her daughter’s interests.

Unfortunately, the legal inquiry before us is not simply whether the parent genuinely

cares for the child

. When a child has significant needs, and a probate court has

determined that the child’s best interests are served by a different guardian, we cannot

overturn that decision of the probate court unless it fails to comply with the governing

lega l standards

. After a thorough and complete review of the record
, we ultimately
affirm the probate court’s judgment denying Ms. Payne’s motions

.OHIO FIRST DISTRICT COURT OF APPEALS

3 I.



### {¶3} Ms. Hyde presented as a typical child until she began to experience

psychotic symptoms at age 13. Between the ages of 13 and 15, she was hospitalized

repeatedly (some of her hospitalizations resulted from medication non

- compliance
while in Ms. Payne’s care ). During this time, she engaged in self

- harm. Ultimately,

she was diagnosed with schizophrenia with catatonia and developmental disabilities.

She returned to school and was placed on an Individualized Education Plan because

she began struggling to keep up with her clas swork. But even with th is support

structure , she could not stay on top of her studies
, and she eventually dropped out of

school.



### {¶4} In 2017, Ms. Hyde went to live with her grandmother. Ms. Payne was

working and completing nursing school at the time and felt that the grandmother

would have more time to supervise her . But while living with her grandmother, Ms.
Hyde jumped from the fifth floor of her grandmother’s apartment building in a suicide

attempt. Following this incident, she was again hospitalized and was ultimately

involuntarily committed to SODC pursuant to a civil commitment order. She has

resided in SODC since age 18, and s he is now 24 years old. The record demonstrates

that she has made substantial progress and is stabilized, but she is not capable of

independently carrying out the activities of daily life.



### {¶5} In 2018, APSI, a private, nonprofit entity dedicated to protecting the

rights of adults in Ohio with developmental disabilities, filed an application for

guardianship of Ms. Hyde . Ms. Payne filed a competing application. Because the

probate court did “not believe [Ms. Payne] will be able to make all requisite decisions

necessary to properly provide for Ariana’s needs given her reluctance to fully acceptOHIO FIRST DISTRICT COURT OF APPEALS

4 her daughter’s mental health diagnosis[,]” in February 2019, it appointed APSI as the

legal guardian of Ms. Hyde.



### {¶6} Ms. Payne and Ms. Hyde reunite at weekly visits where Ms. Payne takes

her daughter from the SODC’s facility for about eight hours at a time. By all accounts,

everything seems to proceed well during the se visits. As a result, Ms. Payne has

requested overnight visits, but so far, A PS I has denied her request s . Ms. Payne
provides Ms. Hyde with personal hygiene products and clothing. It is undisputed that

she has capably advocated for her daughter’s needs, including her quality of care at

SODC and he r transi tion to a less restrictive environment.



### {¶7} In August 2022, Ms. Payne moved to remove APSI from the position of

guardian of Ms. Hyde and to appoint herself as guardian. In January 2023, the

probate court convened a hearing on the motions. Ms. Payne called four witnesses:

Dr. Stuart Bassman (the chief psychologist at SODC), Jill Esz (a supervisor at SODC),

Kristina Ga i ble (a regional director at APSI), and she testified as well

. The APSI

employee directly assigned to Ms. Hyde (Mr. Potter) could not attend the hearing

because of his paternity leave.



### {¶8} Dr. Bassman testified regarding his role as chief psychologist, Ms.
Hyde’s significant progress while at SODC, SODC’s plans to move her to a less
restrictive facility “within weeks,” his communications with Ms. Payne and Mr. Potter
, Ms. Hyde’s lack of any unmet needs, and his lack of concern with A PS I’s performance

as guardian.



### {¶9} Ms. Esz shared her role as a liaison between the agency, families, courts,

and other entities, her understanding regarding Ms. Hyde’s stability with her

medication, her relationship with Ms. Payne and her observations that Ms. Payne hasOHIO FIRST DISTRICT COURT OF APPEALS

5 her daughter’s best interest s at heart and has served as a good advocate, the attempts
to move Ms. Hyde to a less restrictive facility, Ms. Hyde’s desire to have an apartment

(which she will have at the new facility), APSI’s support in moving her to a less

restrictive setting, and her observations that APSI has acted in her best interest s and

has met its responsibilities as guardian.



### {¶10} Ms. Ga i ble communicated APSI’s role as court appointed guardian, her
role overseeing Ms. Hyde’s direct assigned representative (Mr. Potter), Mr. Potter’s

visits with Ms. Hyde, Mr. Potter’s training, Ms. Hyde’s dislike for her current

placement at SODC, the team’s challenges in finding a less restrictive placement

suitable for her , and her current involuntary commitment at SODC

. 

### {¶11} And finally, Ms. Payne testified to Mr. Potter’s lack of attendance at the

annual mental health hearings, her visits with her daughter , what she provides, her
concerns with Ms. Hyde’s care and quality of life at the SODC facility, her

communication with Mr. Potter and Ms. Esz, the denial of an overnight visit pass, and

her perception that APSI sought to block the move into a less restrictive setting. She

also shared that she feels that she acts in her daughter’s best interest s while Mr. Potter

does not.



### {¶12} APSI called one witness: Amanda Lee (a residential care supervisor at

SODC). Ms. Lee discussed her regular interaction with Ms. Hyde over the past two

and a half years, her observation that her needs are being met, APSI ’s ability to meet

her needs, her need for 24

- hour care, and her failure to express any desire to stay

overnight with her mother.



### {¶13} The magistrate issue d his decision denying the motion to remove APSI

as guardian (and therefore, he also denied Ms. Payne’s motion to be appointedOHIO FIRST DISTRICT COURT OF APPEALS

6 guardian). In response, Ms. Payne filed objection s arguing that APSI breached its duty
of care to Ms. Hyde, that the court should apply the “best interest” standard to

terminate APSI’s guardianship, and that she has a constitutional right to the

maintenance of the parent

- child relationship. In October 2023, the probate court

denied her objections and adopted the decision of the magistrate. Ms. Payne now
appeals.

II

. 

### {¶14} The decisions of probate courts regarding guardianship matters are not

reversed on appeal absent an abuse of discretion. See In re Guardianship of Keane , 7th Dist. Carroll No. 19 CA 0934, 2020

- Ohio

- 1105, ¶ 65, citing In re Estate of

Bednarczuk
, 80 Ohio App.3d 548, 551, 609 N.E.2d 1310 (12th Dist.1992). An abuse of
discretion occurs when “a court exercis[es] its judgment, in an unwarranted way, in
regard to a matter over which it has discretionary authority.” Johnson v. Abdullah,

166 Ohio St.3d 427, 2021

- Ohio

- 3304, 187 N.E.3d 463, ¶ 35. And “[w]hen reviewing

the trial court’s [factual] findings, this court must be guided by the presumption that
the trial court’s findings were correct.” In re Guardianship of Rahbek
, 3d Dist. Shelby

No. 17

- 19

- 11, 2020

- Ohio

- 3223, ¶ 22, citing In re Guardianship of Slone
, 3d Dist.

Crawford No. 3

- 04

- 13, 2004

- Ohio

- 6041, ¶ 3.



### {¶15} In her first assignment of error, Ms. Payne contends that the magistrate

did not make a best interest s finding and that the record supports a determination that

it is in the best interest s of Ms. Hyde to appoint her mother as her guardian. Before

analyzing this assignment of error, we must sketch the statutory background. R.C.
Chapter 2111 governs guardians and conservatorships , b ut it fails to address the

process of removal of the guardian of an incompetent ward. R.C. Chapter 2109, on theOHIO FIRST DISTRICT COURT OF APPEALS

7 other hand, governs fiduciaries appointed by the probate court with respect to

financial matters. It contains a provision that specifically enumerates the permissible
reasons to remove a fiduciary: “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.” R.C. 2109.24.



### {¶16} Because R.C. Chapter 2111 does not contain a removal standard for

guardians of incompetent wards, Ohio courts have generally borrowed the removal

standard of R.C. 2109.24 to apply to the removal of such guardians. See, e.g.
, In re
Spangler
, 11th Dist. Geauga Nos. 2007

- G

- 2800 and 2007

- G

- 2802, 2011

- Ohio

- 6686,

¶ 25. Based on the arguments presented by the parties, we have no reason to question

this conclusion. Moreover , probate courts serve as the “superior guardian” of any

ward. R.C. 2111.50(A)(1). And their “ultimate concern is the welfare of the ward.” In

re Spangler at ¶ 54. Therefore, courts have interpreted the best interests of the ward

as a basis for the removal of a guardian that is authorized by the catchall provision of

R.C. 2109.24. I

d. at ¶ 32.


### {¶17} Here, Ms. Payne maintain s that the magistrate erred by not using the

best interest s standard in evaluating the removal of the guardian. But “in an appeal

from a ruling on objections to a magistrate ’ s decision, an appellate court reviews the

trial court ’ s judgment, not the magistrate ’ s decision. ” Frey v. Amazon Home

Warranty LLC

, 10th Dist. Franklin No. 23AP

- 114, 2023

- Ohio

- 3899, ¶ 8, citing Vice v.

Sexton
, 4th Dist. Scioto No. 10CA3371, 2011

- Ohio

- 1647, ¶ 24.


### {¶18} Turning to the probate court’s decision, while it adopted the

magistrate’s factual findings and legal conclusions, based on the evidence presentedOHIO FIRST DISTRICT COURT OF APPEALS

8 at the hearing, it also separately concluded “that none of the criteria for removal of a

guardian set forth in R.C. 2109.24 had been met and the Court cannot find that it is in
the ward’s best interests to remove the guardian.” While it would facilitate our review

if the probate court explained its reasoning for its best interest s finding, nonetheless,

the court established that it considered Ms. Hyde’s best interest s in its decision to

maintain APSI as her guardian

. 

### {¶19} And further, the record supports this best interest s conclusion. Because
of Ms. Hyde’s significant mental health needs and cognitive delays, she is not capable

of independently carrying out the activities of daily life and requires 24

- hour care.

Nevertheless, Ms. Payne questioned the delay in moving her daughter to a less

restrictive setting

. But the record explains the basis for the delay. H er daughter’s care
team determined that a less restrictive setting with apartment

- style living
, 24

- hour

staffing
, and remote monitoring would be most appropriate for her needs and further

her development. Members of her care team emphasized the importance of finding

the right placement to ensure that she did not experience any developmental setbacks

following her transition. T estimony at the hearing established that locatin g this type

of placement proved extremely challenging
, and after much effort, her care team
finally found a n appropriate placemen t

. 

### {¶20} T he magistrate determined (and the court adopted th e finding) “that

APSI has done a good job of making decisions regarding the care of Ariana Hyde,
sometimes under difficult circumstances” and that “APSI and SODC have a good plan

to transition Ariana to a less restrictive environment which will be in line w ith her
future needs.” The testimony presented at the hearing demonstrated that APSI has

been involved and has been actively working toward the goal of identifying a lessOHIO FIRST DISTRICT COURT OF APPEALS

9 restrictive placement that will meet her complex needs. Additionally, while certain

testimony established that Ms. Payne is a good advocate for her daughter, we see no

indication that APSI took any measures to interfere with her advocacy. Therefore, the
trial court did not abuse its discretion when it denied Ms. Payne’s motion to remove

APSI as guardian.



### {¶21} Thus, we overrule her first assignment of error.

III.



### {¶22} Turning to Ms. Payne’s second assignment of error, she challenges the

court’s determination that the guardian satisfied industry standard guidelines,

alleging that the guardian failed to exercise due diligence and make decisions for her

daughter in pursuit of her least restrictive alternative.



### {¶23} As an initial matter, it is important to note that APSI serves as the
guardian in this case. Ms. Payne’s brief references actions of APSI ’s assigned

representative

— Mr. Potter

— and argues that “he” failed to meet industry standards.

But ultimately, APSI, not Mr. Potter, was appointed as Ms. Hyde’s guardian.

Therefore, we evaluate Ms. Payne’s arguments with respect to APSI’s role as guardian.



### {¶24} Ms. Payne seemingly equates “industry standard guidelines” to t he

provision on guardianship found in the Ohio Rules of Superintendence for the Courts.

See Sup.R. 66. But these rules “ are administrative directives only and do not function

as, or have the force of, law in the same manner as rules of practice and procedure. ”

In re Guardianship of Bernie
, 12th Dist. Butler No. CA2018

- 01

- 005, 2019

- Ohio

- 334,

¶ 27, citing Pettit v. Pettit
, 12th Dist. Fayette No. CA2011

- 08

- 018, 2012

- Ohio

- 1801.
Consequently, they “do not provide a ground for reversal.” Id. at ¶ 28.OHIO FIRST DISTRICT COURT OF APPEALS

10 

### {¶25} And regardless, the record does not support Ms. Payne’s arguments

that APSI violated the se rules. Ms. Payne asserts that APSI failed to meet the following

responsibilities of a guardian to their ward:

(B) Exercising due diligence

A guardian shall exercise due diligence in making decisions that are in

the best interest of a ward, including but not limited to communicating

with the ward and being fully informed about the implications of the

decisions.

(C) Least restrictive alternative

Unless otherwise approved by the probate division of a court of common

pleas, a guardian shall make a choice or decision for a ward that best

meets the needs of the ward while imposing the least limitations on the
ward’s rights, freedom, or ability to cont rol the ward’s environment. To

determine the least restrictive alternative, a guardian may seek and
consider an independent assessment of the ward’s functional ability,

health status, and care needs.

Sup.R. 66.09(B) and (C).



### {¶26} We first consider APSI’s performance with respect to Sup.R. 66.09(B).

All three SO D C employees who Ms. Payne called as witnesses expressed that they did

not have any concerns with APSI’s performance as guardian. And further, Ms. Esz

indicated that APSI supported moving Ms. Hyde to a less restrictive setting and that

she had observed APSI acting in her best interest s

. And the 2021 guardian’s report

discussed at the hearing demonstrated that M r . Potter had five visits with Ms. Hyde

during that year. Ms. Ga i ble (an APSI supervisor) clarified that these visits do notOHIO FIRST DISTRICT COURT OF APPEALS

11 encompass all of the interactions between Ms. Hyde and Mr. Potter but rather are

limited to visits that meet specific criteria: the visits must be face

- to

- face and discuss

her wants, needs, placement, services, and any necessary changes.



### {¶27} Turning to Sup.R. 66.09(C), the record provides ample evidence

demonstrat ing APSI’s efforts (along with the rest of Ms. Hyde’s support team) to

transition her to a less restrictive placement. Ms. Hyde was placed in S OD C on a court

ordered, involuntary basis. While the process to transition her placement took

substantial time, and Ms. Hyde expressed her dissatisfaction with her placement at

SODC
, her care team made significant efforts to secure her an appropriate placement

that could sufficiently meet her complex needs. They wanted to be certain that her

placement would be stable and sustainable to ensure she would not have to return to

S OD C and have her progress disrupted. The process also required a placement

provider to accept Ms. Hyde as a client (which was out of the control of APSI). And

ultimately, shortly after the hearing, in April 2023, Ms. Hyde was transitioned from

S OD C to a less restrictive, apartment

- style placement that her care team felt could

provide her with sufficient support.


### {¶28} In light of the record and the applicable law, we overrule Ms. Payne’s

second assignment of error.

* * *



### {¶29} Considering the foregoing analysis, we overrule both of Ms. Payne ’s

assignment s of error and affirm the judgment of the trial court

.

J udgment affirmed

.

B OCK , P.J., and C ROUSE , J ., concur.OHIO FIRST DISTRICT COURT OF APPEALS

12 Please note :
The court has recorded its entry on the date of the release of this opinion

.