[Cite as In re I.B., 2015-Ohio-4181.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION 

Nos. 102373 and 102853 

IN RE: I.B. 

A Minor Child

[Appeal By M.L., Grandmother]

JUDGMENT:

AFFIRMED

Civil Appeal from the 

Cuyahoga County Court of Common Pleas 

Probate Division and Juvenile Court Division 

Case Nos. 2014 GRD 199316 and AD-14912510 

BEFORE: E.T. Gallagher, J., Celebrezze, A.J., and Laster Mays, J. 

RELEASED AND JOURNALIZED: October 8, 2015 
ATTORNEY FOR APPELLANT

L. Bryan Carr 

1392 SOM Center Road 

Mayfield Heights, Ohio 44124 

ATTORNEY FOR APPELLEE

Van M. Lowry 

Van M. Lowry & Associates 

Hanna Building, Suite 248 

1422 Euclid Avenue 

Cleveland, Ohio 44115 

For C.C.D.C.F.S.

Timothy J. McGinty 

Cuyahoga County Prosecutor 

BY: Yvonne C. Billingsley 

Assistant Prosecuting Attorney 

Cuyahoga County Division of 

Children and Family Services 

3955 Euclid Avenue, Room 305E 

Cleveland, Ohio 44115 

Guardian Ad Litem

Amy L. Nash 

1180 Winston Road 

South Euclid, Ohio 44121 

Also listed

Michael Fields 

2994 East 128th Street 

Cleveland, Ohio 44120 
EILEEN T. GALLAGHER, J.: 

{¶1} In this consolidated appeal, appellant, M.L. (“appellant”), appeals a probate 

court order that awarded appellee, M.F. (“appellee”), guardianship of I.B., a minor child. 

She also appeals an order of the juvenile court that dismissed her complaint for legal 

custody of I.B. Between the two appeals, appellant raises the following five assignments 

of error:1

1. The juvenile court erred in dismissing appellant’s complaint and 

terminating the temporary custody order, as the juvenile court had (and 

continues to have) exclusive jurisdiction over the minor child. 

2. The trial court erred in denying appellant’s motion to certify 

jurisdiction; the trial court lacked jurisdiction to rule and establish a 

guardian for the child; the trial court’s guardianship order is void. 

3. The trial court erred in awarding guardianship to [M.F.] and utilized an 

incorrect test to analyze guardianship. 

4. The trial court erred (and violated Civ.R. 53) in issuing a defective 

judgment entry. 

5. Evidentiary rulings prejudiced appellant. 

{¶2} We find no merit to the appeal and affirm the trial court’s judgment.

I. Facts and Procedural History

{¶3} I.B. lost her mother, R.B. (“Mother”), to cancer in June 2014. I.B., who was 

 1

 Appellant actually assigns six errors between the two appeals. However, the sole 

assignment of error in the juvenile court appeal mirrors the second assignment of error in the probate 

court appeal. We therefore discuss these assigned errors together and count them as one assignment 

of error. The other assigned errors are discussed out of order for the sake of methodology. 
12 years old at the time, was left with no parent because her father’s whereabouts were 

unknown. At the time of Mother’s death, Mother and I.B. had been living with appellee 

for approximately three months. Appellee is Mother’s ex-boyfriend and the father of 

Mother’s other two children. 

{¶4} Mother nominated appellee to serve as I.B.’s guardian in her last will and 

testament. Appellee, who was willing and able to serve as I.B.’s guardian, filed an 

application for guardianship in the Cuyahoga County Probate Court following Mother’s 

death. Appellant, I.B.’s maternal grandmother, also filed an application to be appointed 

I.B.’s guardian. The court employed Kathleen Russo (“Russo”), a social worker, to 

investigate the applicants, complete home studies, and make a recommendation. 

{¶5} The court held a hearing on the competing applications for guardianship. 

Russo testified that she interviewed both applicants, visited their homes, and investigated 

their backgrounds and economic circumstances. Appellee had three criminal convictions 

that he did not disclose on his guardianship application. Russo discovered from the 

common pleas court docket that appellee pleaded guilty to felonious assault in 2001 and 

possession of drugs in 2004. Russo also discovered that appellee pleaded guilty to one 

count of misdemeanor domestic violence in 2012. Russo did not think appellee’s prior 

convictions should disqualify him from serving as I.B.’s guardian because he is a loving 

father, and the convictions resulted from sporadic incidents spread out over almost 12 

years. (Tr. 22-23.) 

{¶6} Appellee is the father of I.B.’s two half siblings. Russo testified that I.B. is 
bonded with her half siblings, and that Mother wanted I.B. to remain with her siblings 

after her death. I.B. calls appellee “Dad,” and they appear to have a father-daughter 

relationship. A therapist who was providing intense in-home counseling for appellee’s 

son indicated to Russo that appellee is an attentive father who is very engaged with his 

children. (Tr. 42.) The therapist also indicated that if appellee is appointed I.B.’s 

guardian, she will provide counseling services to I.B. in addition to her brother. 

Appellee and the children were also receiving grief counseling through The Hospice of 

the Western Reserve. 

{¶7} Russo reported that appellee’s home appeared safe and appropriate. The 

home is equipped with smoke detectors and fire extinguishers. The bedroom I.B. shares 

with her half-sister is furnished with two beds. Appellee told Russo, and testified at trial, 

that he does not keep guns in the home because he worries about the children’s curiosity 

of them. 

{¶8} Appellee testified that he met Mother when she was three months pregnant 

with I.B. and has known I.B. her whole life. I.B. continued to live with appellee after her 

Mother’s death and was still living with him at the time of the hearing and was enrolled in 

a school in appellee’s neighborhood. Appellee testified that he walks I.B. and the other 

children to school in the morning, and his girlfriend, M.H., walks them home in the 

afternoon because appellee is usually working at that time of day. 

{¶9} Appellee testified that he can read and write “a little bit,” but never graduated 

from high school and does not have a GED. (Tr. 125.) However, he earns a living 
working on houses that are being rehabilitated. Appellee also receives income from two 

rental houses he owns in Cleveland. M.H. lives in the upstairs apartment of the duplex 

where appellee lives with his children. Appellee pays a mortgage on the house and, 

according to appellee, M.H. pays rent and watches the children when he is not home. 

{¶10} Appellee testified that he views I.B. as his own daughter. Mother gave 

appellee the original copy of her will because she wanted appellee to be I.B.’s guardian. 

(Tr. 105.) Appellee acknowledged that he cannot offer I.B. the same kinds of material 

things that appellant can provide, but he can meet her needs and be a father. (Tr. 104.) 

He explained: 

I can give her what she needs, you know. I can’t take her to Disney World 

like her grandparents, but I can take her to the park and give her ice cream. 

I mean, I can be father as I’ve been doing for the last 12 years. I mean, 

I’ve been there for the last 12 years. I mean, I can — that’s all I can do is 

just be a father to her. I can give her— make sure she has clean clothes, 

new shoes on her feet, you know, go to school. 

{¶11} Appellant testified that she lives in Cleveland Heights, where she has lived 

with her husband (“Husband”)2

 for over 20 years. Husband is an electrician who has 

worked for ArcelorMittal for approximately 30 years. Husband has medical insurance 

through his employer and, if appellant is appointed I.B.’s guardian, I.B. will be added to 

his medical insurance plan. Appellant and Husband live a comfortable, middle-class 

lifestyle. 

{¶12} Mother and I.B. lived with appellant and Husband for over a year following 

 2

 Appellant’s husband is I.B.’s step-grandfather.
I.B.’s birth. Mother moved out of appellant’s home to live with her grandmother 

because she and appellant disagreed on matters that were important to Mother. I.B. 

continued to have a relationship with appellant after moving out and spent weekends with 

her when Mother was having her other babies. (Tr. 253.) Mother and I.B. moved back 

home with appellant in June 2013, where they remained until March 2014, when they 

again moved out because of conflict. This time, Mother moved in with appellee. 

Appellant testified that I.B. has her own bedroom in appellant’s house, and that her 

half-siblings also have a bedroom for when they come to visit. 

 {¶13} According to appellant, appellee is preventing her from maintaining a 

relationship with I.B. Appellant testified that, at the time of the hearing on September 

26, 2014, she had not seen I.B. since June 2014. She testified that if she were I.B.’s 

guardian she would foster the relationships between I.B. and her half-brother and 

half-sister because they are also appellant’s grandchildren. She explained: “Those are 

my grandchildren, I want to see my grandchildren.” (Tr. 256.) Appellee testified that he 

encourages I.B.’s relationship with appellant and pays her telephone bill so she can 

communicate with all of her extended family. 

{¶14} Appellant’s son testified that appellant had a close relationship with I.B. 

According to appellant’s son, appellant “always pushed her to do good in school.” (Tr. 

234.) He explained: 

She kept her active and she would teach her like she did me when I was 

little. She taught her to have to clean, you still have to do chores as a child, 

you still have to do your — anything that an adult says you should listen to, 

she was teaching her manners, but they always talked, they had fun, they’d 
sit and watch movies. 

{¶15} Both appellant and Husband testified they were concerned about I.B. having 

a relationship with appellant’s other son, R.B., because he is a convicted Tier III sex 

offender. Appellant testified that she no longer has a relationship with R.B. because she 

does not approve of his lifestyle. (Tr. 258.) 

{¶16} I.B. and one of her aunts sing in a choir of which R.B. is the choir director. 

Appellee testified he had heard that R.B. was a sex offender but did not know whether it 

was true and knew little about the alleged circumstances of his conviction. Appellee 

further stated that I.B. did not spend time with R.B., nor does she speak to him on the 

phone. However, he admitted that R.B. has picked I.B. up at home to take her to choir 

practice when her aunt was unavailable to take her. 

{¶17} Appellant’s mother, I.B.’s great-grandmother, testified in support of 

appellee’s application rather than that of her own daughter. She believed appellee would 

provide a good home for I.B., that he has been a good father, and that separating I.B. from 

her siblings would be “devastating.” I.B.’s maternal great aunt, S.B., also testified in 

favor of appellee. When asked her opinion of appellee, she stated: 

[Appellee] is a quiet person, he doesn’t talk unless he has something to say. 

 But I found him to be very good with the children and he does a good job 

with them. When I go over there, you know, they’re playing, they’re 

happy, and he’s the only father that [I.B.] has ever known. 

(Tr. 196-197.) 

{¶18} Russo testified that both appellant and appellee were suitable guardians. 

Despite appellee’s criminal history, Russo recommended that appellee be appointed I.B.’s 
guardian because he is “capable and sincere in his efforts to provide a stable and 

nurturing home.” Russo testified she was also concerned appellant would separate I.B. 

from her siblings if she were appointed guardian and recognized that Mother wanted 

appellee to be I.B.’s guardian because she wanted I.B. to live with her siblings. I.B. did 

not testify at the trial. However, according to Russo, I.B. expressed a desire to live with 

appellee and that she considers appellee’s home to be her home. 

{¶19} Following the hearing, appellant filed a complaint for legal custody in the 

Juvenile Court Division of the Cuyahoga County Common Pleas Court. The complaint 

alleged that I.B. was a neglected, dependent child, and sought legal custody of I.B. Two 

days later, appellant filed a motion to certify jurisdiction to the juvenile court in the 

probate court. Meanwhile, the juvenile court issued an order granting temporary custody 

of I.B. to appellant. However, the juvenile court later dismissed the complaint and 

terminated the temporary custody order for lack of jurisdiction, and the probate court 

denied appellant’s motion to certify jurisdiction to the juvenile court. 

{¶20} In November 2014, a probate court magistrate issued a decision awarding 

guardianship of I.B. to appellee. The magistrate’s decision states, in relevant part: 

While not related by blood, [appellee] is the only father [I.B.] has ever 

known. He presented as a very loving and involved parent with [I.B.]’s 

best interests in mind. [Appellee] is clearly not a perfect person, but has 

done his best with [I.B.] and desires to keep her with her half-siblings. 

After suffering the tragedy of losing her mother, it would be devastating to 

tear her away from the place she considers her home and from her 

half-siblings and to require her to start over again in a new school. 

[Appellee] has made every effort to keep [I.B.] involved with her maternal 

family. Many of [appellant]’s own family members testified in support of 

[appellee]’s Application. 
Based on the nomination in the Last Will and Testament of [Mother], 

considering the Court Investigator’s report and recommendation as required 

by law, including the reported preference of the minor child and the 

testimony presented in this case, it is the recommendation of this Magistrate 

that the Application for Appointment of Guardian of the Person of [I.B.] 

filed by [appellee] be granted without bond. Ohio law requires that the 

nomination of the decedent should be followed if it is in the child’s best 

interests. 

{¶21} The trial court determined that “immediate relief was justified” and issued 

its decision simultaneously with the magistrate’s decision. Appellant filed a notice of 

appeal before the trial court could rule on objections to the magistrate’s decision. 

Following a limited remand to rule on the objections, appellant’s two consolidated 

appeals are now ripe for review. 

II. Law and Analysis

A. Jurisdiction

{¶22} In the sole assignment of error raised in appellant’s appeal from the juvenile 

court, appellant argues the juvenile court erred in dismissing her complaint and 

terminating the temporary custody order. In the second assignment of error presented in 

her appeal from the probate court, appellant argues the probate court erred in denying her 

motion to certify jurisdiction to the juvenile court. In both assignments of error, she 

contends the juvenile court had exclusive jurisdiction pursuant to R.C. 2151.23(A) to 

determine the custody of I.B. because she alleged I.B. to be a neglected and dependant 

child. 

{¶23} R.C. 2151.23(A)(1) provides that the juvenile court has “exclusive original 

jurisdiction” over a variety of actions including complaints seeking custody of “any child 
who, on or about the date specified in the complaint, * * * is alleged * * * to be a[n] * * * 

abused, neglected, or dependent child.” Appellant’s complaint for legal custody alleged 

that I.B. was a dependent child. 

{¶24} The probate court, however, awarded the guardianship of I.B. to appellee 

pursuant to R.C. 2101.24(A)(1)(e), which provides that the probate court has exclusive 

jurisdiction to appoint and remove guardians. The parties’ respective guardianship 

applications charged the probate court with the responsibility of determining who should 

serve as I.B.’s guardian. However, a guardian of a minor child has legal custody of the 

child. R.C. 2111.07; see In re L.H., 8th Dist. Cuyahoga No. 97977, 2012-Ohio-4062. 

Legal custody of a child and guardianship of a child are exactly the same in all respects 

but name, and the two statutes provide each court with “exclusive jurisdiction.” The two 

provisions seemingly create concurrent and potentially conflicting jurisdiction in the two 

courts. 

{¶25} However, R.C. 2151.23(A)(2) provides that the juvenile court has exclusive 

jurisdiction “to determine the custody of any child not a ward of another court of this 

state.” (Emphasis added.) This provision is apparently aimed at preventing forum 

shopping and conflicting judgments by precluding two courts of competent jurisdiction 

from simultaneously deciding identical issues. Indeed, the Ohio Supreme Court reached 

this conclusion in In re Poling, 64 Ohio St.3d 211, 594 N.E.2d 589 (1992). 

{¶26} In Poling, the Ohio Supreme Court was asked to decide whether a juvenile 

court has jurisdiction to determine the custody of dependent children where the domestic 
relations court had previously determined and granted custody of the children to their 

mother. The Poling court concluded that, although a domestic relations court retains 

continuing jurisdiction to modify its custody decision, the juvenile court also has 

jurisdiction to make custody awards related to children who are properly subject to its 

jurisdiction. Id. at 215. However, the court explained: 

If children whose custody is determined under a divorce decree, pursuant to 

R.C. 3109.04 are construed to be “wards” of that court, then a juvenile court 

would not have jurisdiction to determine their custody under 

R.C. 2151.23(A)(2). 

The Poling court concluded that the children in that case were not “wards” of the 

domestic relations court and explained: 

When a court in a divorce case grants custody of a child, the court is not 

traditionally placing itself in the position of guardian of that child. Rather, 

in a broad sense the court is making a judicial determination as to whom the 

child’s custodian is to be, whether it be a parent or otherwise. Nor does the 

court consider the child a “ward” of that court, even though the court retains 

jurisdiction to modify custody and support. Hence, we conclude that the 

phrase any child not a “ward of another court” in R.C. 2151.23(A)(2) 

cannot be construed to prohibit a juvenile court from changing custody of 

children subject to a divorce decree entered pursuant to former 

R.C. 3109.04. 

{¶27} In contrast to the domestic relations court, R.C. 2111.50(A)(1) expressly 

provides that the probate court “is the superior guardian of wards who are subject to its 

jurisdiction.” R.C. 2111.01(B) defines “ward” as “any person for whom a guardian is 

acting or for whom the probate court is acting pursuant to section 2111.50 of the Revised 

Code.” Appellee’s guardianship application invoked the probate court’s jurisdiction and 
made I.B. a ward of the probate court. See In re Clendenning, 145 Ohio St. 82, 92, 60 

N.E.2d 676 (1945). 

{¶28} Thus, pursuant to R.C. 2151.23(A)(2), the juvenile court could not 

determine I.B.’s custody because she was a ward of the probate court when appellant filed 

her complaint for legal custody. See In re Miller, 33 Ohio App.3d 224, 515 N.E.2d 635 

(8th Dist.1986) (holding that once the probate court appoints a guardian for a minor, the 

juvenile court is without jurisdiction to grant custody of the ward to another person, until 

the guardianship has been terminated). 

{¶29} Moreover, even if the juvenile court maintained concurrent jurisdiction to 

determine the custody issue in this case, the Ohio Supreme Court has held that 

[a]s between courts of concurrent jurisdiction and coextensive jurisdiction, 

the one whose power is first invoked by the institution of proceedings and 

the service of the required process acquires the right to adjudicate upon the 

whole issue and to settle the rights of the parties to the exclusion of all other 

tribunals. 

State ex rel. Balson v. Harnishfeger, 55 Ohio St.2d 38, 39, 377 N.E.2d 750 (1978). 

{¶30} Appellee’s guardianship application was pending before appellant filed her 

complaint for legal custody in the juvenile court. Indeed, appellant did not file the 

complaint until two days after the probate court trial. Appellant’s complaint seeking 

legal custody in the juvenile court is the kind of forum shopping barred by virtue of R.C. 

2151.23(A)(2). The juvenile court properly dismissed the case for lack of jurisdiction 

and the probate court’s order appointing appellee as I.B.’s guardian is a valid judgment. 

{¶31} The sole assignment of error in appellant’s appeal from the juvenile court’s 

judgment, and the second assignment of error in her appeal from the probate court’s 
judgment are overruled. 

B. Court’s Journal Entry

{¶32} In the third assignment of error in appellant’s probate appeal, she argues the 

probate court’s final order granting the guardianship is defective and violated Civ.R. 53 

because it did not “adopt, reject, or modify” the magistrate’s decision. 

{¶33} The court’s final order was issued simultaneously with the magistrate’s 

decision. Instead of issuing a separately filed journal entry, the court’s journal entry 

granting appellee’s guardianship application and denying appellant’s application appears 

at the end of the magistrate’s decision. As such, appellant argues that the trial court’s 

final order, and appellant’s objections thereto, are “of no effect and, indeed, futile.” 

{¶34} However, in a space following the magistrate’s decision but before the 

court’s final order, the following language appears in bold: 

Counsel and parties will take notice that under the provisions of Rules 73 

and 53(D)(4)(e)(ii) of the Ohio Rules of Civil Procedure, immediate relief 

is justified and Letters of Guardianship will be issued forthwith. 

Objections to this decision may be filed with[in] 14 days commencing from 

the date on which this decision is filed, but the relief ordered herein is 

subject to automatic stay caused by the filing of timely objections. 

{¶35} Civ.R. 53(D)(4)(e)(i) authorizes the court to issue an interim order before 

the parties have had time to file objections to a magistrate’s report, and states: 

The court may enter a judgment either during the fourteen days permitted 

by Civ.R. 53(D)(3)(b)(i) for the filing of objections to a magistrate’s 

decision or after the fourteen days have expired. If the court enters a 
judgment during the fourteen days permitted by Civ.R. 53(D)(3)(b)(i) for 

the filing of objections, the timely filing of objections to the magistrate’s 

decision shall operate as an automatic stay of execution of the judgment 

until the court disposes of those objections and vacates, modifies, or 

adheres to the judgment previously entered. 

{¶36} Nothing in the magistrate’s decision or the court’s interim order precluded 

appellant from filing objections to the magistrate’s decision. Indeed, Civ.R. 

53(D)(4)(e)(i) contemplates the filing of objections after the court’s judgment where the 

court files its judgment before the time for filing objections has expired. Furthermore, 

we remanded the case to the probate court to rule on appellant’s objections before 

proceeding with the appeals, and the probate court overruled appellant’s objections and 

adopted the magistrate’s order. Therefore, the probate court’s judgment granting 

guardianship of I.B. to appellee is a valid, final order. 

{¶37} Appellant also argues, within this assigned error, that the trial court erred in 

appointing appellee as guardian pursuant to R.C. 2111.02(B). However, 

R.C. 2111.02(B) governs the appointment of “a limited guardian with specific limited 

powers.” The probate court awarded the guardianship of I.B. to appellee pursuant to 

R.C. 2111.02(A), which does not limit the guardian’s powers. The propriety of the 

court’s judgment appointing appellee to serve as I.B.’s guardian pursuant to R.C. 

2111.02(A) and other applicable code provisions is the subject of appellant’s first 

assignment of error in her appeal from probate court. We will therefore discuss 

appellant’s argument regarding the propriety of appellee’s appointment as guardian with 

that assigned error. 
{¶38} Accordingly, the third assignment of error is overruled. 

C. Evidentiary Rulings

{¶39} In the fourth assignment of error, appellant argues she was unfairly 

prejudiced by improper evidentiary rulings. She contends the probate court erroneously 

allowed (1) undisclosed witnesses to testify at trial, and (2) the admission of hearsay and 

character evidence. 

{¶40} The admission or exclusion of evidence is within the sound discretion of the 

trial court, and we will not disturb the trial court’s judgment on evidentiary matters absent 

an abuse of that discretion. O’Brien v. Angley, 63 Ohio St.2d 159, 163, 407 N.E.2d 490 

(1980). The term “abuse of discretion” implies that the court’s attitude is unreasonable, 

arbitrary or unconscionable. Jakubs v. Borally, 8th Dist. Cuyahoga No. 101756, 

2015-Ohio-2696, ¶ 12. “The abuse of discretion standard is a highly deferential 

standard, and this court is not free to merely substitute its judgment for that of the trial 

court.” Kontra v. Kontra, 8th Dist. Cuyahoga No. 98126, 2012-Ohio-4293, ¶ 13; Rex v. 

Conner, 8th Dist. Cuyahoga Nos. 81210 and 81810, 2003-Ohio-4561, ¶ 19. 

1. Undisclosed Witnesses

{¶41} Appellant argues she was prejudiced by the testimony of undisclosed 

witnesses who were permitted to testify at trial over her objection. 

{¶42} Civ.R. 26 governs discovery, and its purpose is to prevent trial by ambush. 

Anderson v. Nunnari, 8th Dist. Cuyahoga No. 77241, 2000 Ohio App. LEXIS 5337, * 8 

(Nov. 16, 2000). To that end, Civ.R. 37 permits a court to exclude testimony of an 
undisclosed witness as a discovery sanction. Huffman v. Hair Surgeon, Inc., 19 Ohio 

St.3d 83, 482 N.E.2d 1248 (1985). However, the exclusion of reliable and probative 

evidence is a severe sanction. Thus, the exclusion of witnesses as a sanction is permitted 

only when the nondisclosure of witnesses causes unfair surprise that results in prejudice 

to the opposing party. Id. 

{¶43} In this case, the record is devoid of any evidence that appellee willfully 

concealed the identities of his witnesses. The undisclosed witnesses consist of 

appellant’s own children, her mother, and one of Mother’s closest friends. Since all but 

one of the undisclosed witnesses were members of appellant’s own family, it seems 

unlikely that their testimony was a surprise. Indeed, they could have supported 

appellant’s guardianship application if they believed she was a more suitable guardian 

than appellee. Further, none of the testimony portrayed appellant in a negative light. 

The testimony of the witnesses, including that of the one non-family member, was limited 

to their observations and opinions of appellee as a father figure in I.B.’s life. This is 

exactly the kind of testimony one would expect at a guardianship hearing. 

{¶44} Moreover, appellant has not made any argument either in the trial court or 

on appeal to demonstrate she was unfairly surprised or prejudiced by these witnesses. 

Therefore, the trial court acted within its discretion when it allowed these undisclosed 

witnesses to testify at the guardianship hearing. 

2. Character Evidence and Hearsay
{¶45} Appellant argues a letter from the assistant principal at I.B.’s school was 

inappropriately admitted into evidence without proper authentication or acceptance by the 

court. She contends the letter constituted hearsay and character evidence. 

{¶46} In the letter, the assistant principal states that I.B. “is molding into a great 

young lady,” and that “she sets a great example for her younger siblings” who also attend 

the school. The letter also indicates that the school is aware of Mother’s death and that 

the school provides a variety of services to assist her “not only academically but 

socially/emotionally as well.” 

{¶47} The letter, which was marked as plaintiff’s exhibit No. 2, was offered but 

never accepted into evidence. Appellant objected to its admission into evidence, but the 

court never made a ruling. There is also no indication as to whether the court considered 

the letter or not. The magistrate’s decision does not mention it in her decision, but 

recounts witness testimony that I.B. is performing well in school and that appellee is 

involved in her school. 

{¶48} Nevertheless, even if the court considered the letter, its admission into 

evidence was harmless. It offered no opinion on the appropriateness of appellee as a 

guardian, nor did it mention appellant. It simply described I.B.’s character, which was 

not the subject of this debate. Arguably the comment regarding the school’s services 

would weigh in favor of appellee because the school is in appellee’s school district. 

However, appellee testified I.B. was receiving counseling services and help with her 
homework. Therefore, any consideration of this letter by the trial court was duplicative 

of other evidence in the record and therefore harmless. 

{¶49} The fourth assignment of error is overruled. 

D. Guardianship Appointment

{¶50} In appellant’s first assignment of error in the probate appeal, appellant 

argues the probate court failed to apply the correct test when it found appellee the more 

suitable guardian. She contends the appointment of appellee as I.B.’s guardian is not in 

I.B.’s best interest. 

{¶51} “In making a determination as to who should serve as a guardian, the 

probate court’s primary responsibility is to ensure that the person appointed will act in the 

best interests of the ward.” In re Guardianship of Hilt, 6th Dist. Sandusky No. S-14-010, 

2015-Ohio-3186, ¶ 20, quoting In re Guardianship of Thomas, 148 Ohio App.3d 11, 

2002-Ohio-1037, 771 N.E.2d 882, ¶ 96 (10th Dist.). The probate court’s determination 

regarding a guardianship is generally within the sound discretion of the trial court subject 

to reversal only for an abuse of discretion. In re Guardianship of Muehrcke, 8th Dist. 

Cuyahoga No. 81353, 2003-Ohio-176, ¶ 21. 

{¶52} R.C. 2111.121(A) provides, in relevant part, that “[a] person may nominate 

in a writing * * * another person to be the guardian of the nominator’s minor * * * 

children.” R.C. 2111.121(B) instructs the probate court that “[e]xcept for good cause 

shown or disqualification, the court shall make its appointment in accordance with the 

person’s most recent nomination.” Mother nominated appellee to serve as I.B.’s 
guardian in her will. Thus, pursuant to R.C. 2111.121(B), the probate court was required 

to appoint appellee as guardian unless there was a good reason not to, i.e., it would not be 

in the child’s best interest. 

{¶53} The probate court found that appellant could provide a stable home, health 

insurance, a good education, and the love of a grandmother. She could also give I.B. 

more material things and vacations out of town. Appellant focuses on the court’s 

finding that appellee is “not a perfect person.” However, appellee can also provide a 

stable home, a decent education, and fatherly love. Although appellee admitted he could 

not take I.B. to Disney World, he could provide love and support while guaranteeing that 

she grow up with her siblings, which was her mother’s wish. 

{¶54} Thus, the trial court found both applicants to be suitable guardians. Neither 

guardian would be against I.B.’s best interest. However, because the probate court was 

required to defer to the nomination of appellee in Mother’s will, “except for good cause 

shown,” it was compelled to award the guardianship to appellee. 

{¶55} Moreover, the magistrate’s decision clearly shows that I.B.’s best interest 

was the driving factor in its analysis. For example, the court noted that “[a]fter suffering 

the tragedy of losing her mother, it would be devastating to tear her away from the place 

she considers her home and from her half siblings and to require her to start over again in 

a new school.” The court also acknowledged that it considered I.B.’s stated preference 

and found it significant that “[m]any of [appellant’s] own family members testified in 
support of [appellee]’s application.” Thus, the court considered both the nomination in 

Mother’s will and I.B.’s best interest. Indeed, the magistrate’s decision concludes with a 

statement that “Ohio law requires that the nomination of the decedent should be followed 

if it is in the child’s best interest.” 

{¶56} The trial court applied the appropriate test for appointing a guardian of a 

minor child. Furthermore, the evidence supports the court’s conclusion that awarding the 

guardianship to appellee was in I.B.’s best interest. 

{¶57} The first assignment of error is overruled. 

{¶58} Judgment affirmed. 

It is ordered that appellee recover from appellant costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate be sent to the common pleas court, probate and 

juvenile divisions, to carry this judgment into execution. 

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of 

the Rules of Appellate Procedure. 

EILEEN T. GALLAGHER, JUDGE 

FRANK D. CELEBREZZE, JR., A.J., and 

ANITA LASTER MAYS, J., CONCUR