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In re B.E.V.

Court of Appeals of Ohio, Eleventh District, Lake

August 5, 2019

IN THE MATTER OF: B.E.V.

          Appeal from the Lake County Court of Common Pleas, Probate Division, Case No. 2010 GU 0085.

         Judgments: Affirmed.

          Terri L Lamb, pro se, (Appellant).

          Cari Dalessio Fonner, pro se, (Appellee).

          OPINION

          CYNTHIA WESTCOTT RICE, J.

         {¶1} Appellant, Terri L. Lamb, the paternal grandmother of minor child B.E.V. (D.O.B. August 4, 2005), appeals the Lake County Probate Court's decision denying her request to replace her daughter, Cari Dalessio (n.k.a Fonner), as guardian of B.E.V. against guardian's wishes, and the subsequently-denied motion for relief from judgment. For the reasons set forth herein, the judgments of the Lake County Probate Court are affirmed.

         {¶2} When B.E.V. was about one year old, his father was sentenced to, and began serving, a prison term of fifteen years to life. With his mother's whereabouts unknown, he began residing with his paternal grandmother, Ms. Lamb, who had rights according to a Caretaker Authorization Affidavit filed with the Lake County Juvenile Court. Following her graduation from college, B.E.V.'s paternal aunt, Ms. Fonner, was appointed guardian on July 21, 2010 for an indefinite period of time. B.E.V. moved in with Ms. Fonner, where he currently resides with her and her husband, Jasen Fonner. B.E.V.'s father is not expected to be released from prison before B.E.V., now 13, reaches the age of majority.

         {¶3} Until recently, Ms. Lamb lived in an in-law suite at Ms. Fonner's residence and saw B.E.V. routinely. She has since purchased a home nearby with B.E.V.'s father's girlfriend. On September 20, 2018, Ms. Lamb filed an Application for Appointment of (Successor) Guardian of Minor. Ms. Fonner opposed the change in guardianship and the probate court held a hearing on November 8, 2018, to determine if there was good cause to remove Ms. Fonner as guardian. B.E.V.'s father attended the hearing via phone.

         {¶4} At the close of the hearing, the court held an in-camera hearing with B.E.V., in which he apparently expressed no issues with either the Guardian or the Applicant. However, on November 29, 2018, apparently with the help of his school guidance counselor, B.E.V. sent a letter to the court expressing that he was nervous during the in-camera interview and that he wanted to live with his grandmother instead of his aunt.

         {¶5} Nevertheless, on December 18, 2018, the court denied Ms. Lamb's Application for Appointment of (Successor) Guardian of Minor, finding no "good cause" to remove Ms. Fonner as guardian. Ms. Lamb filed a motion for relief from judgment, which the court denied on February 5, 2019. Numerous guardian complaints have been filed since, which have been resolved by the court.

         {¶6} Ms. Lamb now appeals the December 18, 2018 and February 5, 2019 judgments. We review both under an abuse of discretion standard. Matter of Guardianship of Rosenberger, 11th Dist. Lake No. 2017-L-120, 2018-Ohio-3533, ¶13 ("The probate court's decisions in guardianship proceedings are generally reviewed under an abuse of discretion standard."); In re Guardianship of Brunstetter, 11th Dist. Trumbull No. 2002-T-0008, 2002-Ohio-6940, ¶12, citing Griffey v. Rajan, 33 Ohio St.3d 75 (1987) ("A ruling on a motion for relief from judgment is left to the sound discretion of the trial court. The trial court's decision will not be overturned on appeal absent an abuse of that discretion."). "The phrase 'abuse of discretion' is one of art, connoting judgment exercised by a court which neither comports with reason nor the record." In re K.Q., 11th Dist. Ashtabula No. 2017-A-0060, 2018-Ohio-906, ¶14.

         {¶7} Ms. Lamb sets forth three assignments of error for our review. We address her second assignment of error first:

         {¶8} The trial court erred and abused its discretion by failing to determine that habitual drunkenness, drug abuse and child endangerment are sufficient to constitution "good cause" for the requested substitution of guardianship in this case.

         {¶9} Under this assigned error, Ms. Lamb focuses primarily on the actions and record of Mr. Fonner, pointing out he has five DUI convictions in the past 20 years, and asserting that he is a drug addict. As Ms. Lamb correctly notes in her brief, however, in evaluating whether "good cause" exists for removal, the primary focus is upon the actions of the Guardian. "[W]hile the effect on the ward is certainly a consideration under the 'good cause' standard, its primary focus is the actions of the guardian." In re Guardianship of Spangler, 11th Dist. Geauga Nos. 2007-G-2800, and 2007-G-2802, 2011-Ohio-6686, ¶62. "Thus, a guardian may be removed when proven to be exercising authority in a manner adverse, antagonistic, or hostile to the best interests of the ward." (Citations omitted.) I ...


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