Parents Serving As Guardian of Their Child Can Be Removed Ex Parte Upon Sufficient Evidence That Notice to the Parent Could Potentially Cause Further Harm to Ward

In re Guardianship of Spangler, 11th Dist. No. 2007-G-2800, 2007-G-2802, 2011-Ohio-6686. After the Supreme Court of Ohio affirmed the trial courts decision to remove incompetent wards parents as his guardian, upon remand, the Eleventh District Court of Appeals addressed the substantive issues raised with regard to the underlying decision to remove the parents as guardians. The ward is a young adult suffering from mental retardation, autism and other cognitive disorders. As he became older, he began to engage in violent episodes, requiring that his parents obtain voluntary guardianship over him and place him with outside, private caregivers. The wards parents proved to lack stability and engage in impulsive decision making, which the evidence demonstrated was detrimental to the emotional and mental stability of the ward. The guardians misconduct culminated in the wards mother getting arrested for trespassing on the caregivers property while intoxicated. As a result, the court issued an ex parte removal of the guardians and appointed a temporary guardian. A hearing was held subsequent to the ex parte removal, which was continued upon agreement while the former guardians sought psychological and substance abuse evaluations and therapy. Eventually the parents were permanently removed as guardian of their son.

The court explained that they derived their authority to remove the guardians ex parte from R.C. 2111.02(B)(2), which governs the probate courts ability to appoint ex parte an interim guardian without giving notice to the ward. In the courts subsequent removal of the guardians, the court relied upon its position as superior guardian of wards and that guardians are officers of the court subject to the courts control under R.C. 2111.50(A)(1). The court justified the guardians removal finding there was sufficient evidence that the ward could potentially suffer further harm by providing notice of the ex parte removal of the guardian to the guardian due to her proven impulsive behavior. Therefore, the court held that the temporary removal of a guardian can be made ex parte when: (1) the ward could sustain irreparable harm unless immediate temporary relief is granted; and (2) the temporary order would not provide protection for the ward if the guardian was given immediate notice.