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In re The Guardianship of Atkins

Court of Appeals of Ohio, Twelfth District, Clermont

June 10, 2019

IN RE: THE GUARDIANSHIP OF DAVID SCOTT ATKINS

          APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS PROBATE DIVISION Case No. 2017 GI 1416

          Durkee & Uhle, LLC, Richard B. Uhle, Jr., for appellee

          Mark J. Tekulve, for appellant

          OPINION

          PIPER, J.

         {¶ 1} Appellant, Diandra Stevens, appeals a decision of the Clermont County Court of Common Pleas, Probate Division, appointing appellee, Scott Atkins, guardian of the couple's child.

         {¶ 2} Diandra and Scott were married, and had two children before divorcing in 2004. Both children are autistic and require special care. Following the divorce, Diandra was designated custodial parent of both children. However, five years later, Scott was granted custody of the children and each parent had approximately equal parenting time. Diandra appealed the change of custody, and this court affirmed. Atkins v. Stevens, 12th Dist. Clinton No. CA2012-04-009, 2012-Ohio-6177.

         {¶ 3} When the parties' older child, David, turned 18, Diandra filed an application in the probate court to be appointed his guardian. The parties agree that David requires a guardian because he is unable to care for himself given his degree of autism. However, Scott also applied to be appointed his guardian. The matter was therefore litigated before a magistrate. During the hearing, both parties submitted medical records, expert evaluations, and testimony from lay witnesses.

         {¶ 4} The magistrate issued a decision appointing Scott guardian. Diandra then filed objections to the magistrate's decision, which were overruled by the probate court. Diandra now appeals the probate court's decision, raising the following assignments of error, which we will combine for discussion as the issues are interrelated.

         {¶ 5} Assignment of Error No. 1:

         {¶ 6} THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN APPOINTING APPELLEE AS GUARDIAN.

         {¶ 7} Assignment of Error No. 2:

         {¶ 8} THE TRIAL COURT'S DETERMINATION THAT APPELLEE WAS THE MORE SUITABLE PERSON TO BE GUARDIAN WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

         {¶ 9} Diandra argues in her assignments of error that the probate court erred in appointing Scott as David's guardian because the decision is against the manifest weight of the evidence.

         {¶ 10} In matters relating to guardianship, the probate court is required to act in the best interest of the ward. In re Guardianship of Collins, 12th Dist. Warren No. CA2013-08-072, 2014-Ohio-5750, ¶ 9. A probate court has broad discretion in appointing guardians, and decisions regarding the appointment of a guardian will not be reversed on appeal absent an abuse of discretion. In re Smith, 12th Dist. Butler No. CA2013-09-165, 2014-Ohio-2119, ΒΆ 19. An abuse of discretion constitutes more than an error of law or judgment; it requires a finding ...


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