In re Guardianship of Bair

[Cite as In re Guardianship of Bair, 2026-Ohio-4322.] IN THE OHIO COURT OF APPEALS FIFTH APPELLATE DISTRICT TUSCARAWAS COUNTY, OHIO IN RE GUARDIANSHIP OF: Case No. 2026 AP 05 0009 CHRISTOPHER MATTHEW BAIR Opinion And Judgment Entry Adult Incompetent Appeal from the Tuscarawas County Court of Common Pleas, Probate Division, Case No. 2026 GD 17157 Judgment: Affirmed Date of Judgment Entry: October 29, 2026 BEFORE: Willam B. Hoffman; Craig R. Baldwin; Robert G. Montgomery, Judges APPEARANCES: RICHARD D. HIXSON, for Appellant Christopher Matthew Bair; MARK A. PERLAKY, for Defendant-Appellee Ohio Network for Innovation. Montgomery, J. {¶1} Appellant, Christopher Matthew Bair, appeals from the judgment of the Tuscarawas County Court of Common Pleas, Probate Division, finding him incompetent and appointing Ohio Network for Innovation as guardian of his person only. For the reasons below, we AFFIRM.  ASSIGNMENT OF ERROR {¶2} “I. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IT DETERMINED THAT APPELLANT WAS INCOMPETENT AND THAT A GUARDIANSHIP WAS REQUIRED.” STATEMENT OF THE CASE {¶3} On February 26, 2026, Ohio Network for Innovation (“ONI”), by and through its designated representative Cynthia Dover, filed an Application for Emergency Guardianship of the proposed ward, Christopher Matthew Bair (“Appellant”) as well as an application for an indefinite guardian of the person only. In support of both applications, ONI presented a statement of expert evaluation from Dr. Florence Kimbo, numerous letters/statements from family members, and other historical information. Regarding the emergency application, the court conducted an ex parte hearing, without Appellant present, and ultimately granted the emergency guardianship that lasted 72 hours. On March 2, 2026, the court extended the emergency guardianship. {¶4} On March 18, 2026, the court conducted a hearing to determine the indefinite application for guardianship of the person only. The following individuals were present: Cynthia Dover with ONI, Attorney Mark Perlaky on behalf of ONI, Appellant, and Appellant’s court-appointed attorney, Paul Hervey, Esq. Attorney Hervey informed the Magistrate that his client is opposed to the guardianship, but Appellant did not wish to speak at the hearing. After reviewing the entire record – including the statement of expert evaluation, the investigator’s report, the family’s statements, and hearing testimony from witnesses, the court determined that Appellant was incompetent and appointed ONI as guardian of the person only.  {¶5} Appellant filed objections to the magistrate’s decision. Appellant argued that “there was insufficient proof that he is incompetent and that a guardianship is the least- restrictive means of protecting him.” On April 6, 2026, the trial court overruled the objections and adopted the magistrate’s decision. Appellant timely filed an appeal. STATEMENT OF FACTS {¶6} This case originated when ONI received a referral from the Tuscarawas County Alcohol, Drug Addiction, and Mental Health Services (“ADAMS”) Board in February of 2026, that included a Statement of Expert Evaluation completed by Dr. Florence Kimbo with Heartland Behavioral Health, a psychiatric hospital in Massillon, Ohio. Appellant was a patient at Heartland Behavioral Health and was transported there from the Tuscarawas County Jail where he was being held on domestic violence and menacing charges. The criminal case resulted in a no contact order against Appellant, meaning he is no longer allowed on the property, but Appellant continues to believe he owns the property. {¶7} Appellant’s criminal charges stem from an incident in January of 2026 with his brother, Justin Bair (“Justin”), who was listed as the victim. At the emergency guardianship hearing, on February 26, 2026, the court stated the following: Christopher has lived on the Bair's property for the past two years and in fact believes that he owns it, according to Justin. In early January, Christopher threatened to 'blow off' Justin's head over a dispute about bottled water. He was arrested and charged with misdemeanor domestic violence and menacing and possibly burglary and taken to the county jail. He was transferred to Heartland later in the month and there he has remained. The concern of Ms. Dover and Christopher's family is that when he is released, he will be homeless, as the  Bairs have a restraining order against him. Justin is sure Christopher will return to his property and he's not allowed to be there. After the arrest, law enforcement found knives and other items stolen from Bairs’ home to Christopher's cabin, according to the Bairs. Justin stated that his brother is psychotic and delusional and has been so for many years. Justin testified that all of Christopher's family - parents and two additional siblings – is in agreement with this emergency guardianship and guardianship in general in hopes Christopher will finally get the help he needs. See Judgment Entry, Feb. 26, 2026. {¶8} On March 18, 2026, at the hearing for indefinite guardianship, Ms. Dover testified regarding Appellant’s nearly 30-year history of mental illness, as related to her by Appellant’s family members. Dr. Florence Kimbo, who has treated Appellant since January 16, 2026, opined that he suffers from severe schizoaffective disorder, that he is incapable of making sound decisions, and that he lacks insight into his condition. Appellant is prescribed several medications but is often non-compliant. The Court Investigator's Report noted that Appellant required an order for forced medication while he was at Heartland Behavioral Health. Although Appellant opposed the guardianship and had a court-appointed attorney, Appellant did not offer any independent evidence to counter the significant evidence supporting the application. After considering the entire record, the magistrate appointed ONI as guardian of the person only of Appellant. The trial court overruled Appellant’s objections and Appellant timely appealed.  STANDARD OF REVIEW {¶9} An appellate court reviews the appointment of a guardian under an “abuse of discretion” standard. In re Guardianship of Riva, 2006-Ohio-5547 (5th Dist.); In re Guardianship of Anderson, 2013-Ohio-2012, ¶ 12 (2d Dist.); In re Guardianship of Cicchella, 2014-Ohio-5703 (11th Dist.). To find an abuse of discretion, we must determine that the trial court's decision was unreasonable, arbitrary or unconscionable and not merely an error of law or judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217 (1983); In re Guardianship of Borland, 2003-Ohio-6870, ¶ 8 (5th Dist.). {¶10} The probate court’s appointment of a guardian will not be reversed as an abuse of discretion if it is supported by competent, credible evidence. In re Guardianship of Pond, 2022-Ohio-4023, ¶ 8 (5th Dist.); In re Guardianship of Miller, 2010-Ohio-2159 (3d Dist.); In re Guardianship of Waller, 2011-Ohio-313 (1st Dist.). The fact that the reviewing court would have reached a different result is not enough, without more, to find error. Sertz v. Sertz, 2012- Ohio-2120, ¶ 31 (11th Dist.), quoting State v. Beechler, 2010-Ohio-1900, ¶ 67 (2d Dist.). LAW AND ANALYSIS {¶11} Revised Code Chapter 2111 governs guardianship in Ohio. It provides that the “probate court is the superior guardian of wards who are subject to its jurisdiction.” R.C. 2111.50(A)(1); In re Barrett, 2025-Ohio-2660 (5th Dist.). “When found necessary, the probate court on its own motion or on application by any interested party shall appoint * * * a guardian of the person, the estate, or both, of a minor or incompetent[.]” R.C. 2111.02(A). In appointing any guardian, the probate court must always act in the best interest of the proposed ward. In re Estate of Bednarczuk, 80 Ohio App.3d 548, 551 (12th Dist.1992); R.C. 2111.50(C); In re Sondergeld, 1981 Ohio App. LEXIS 13531, *3-4 (2d Dist.).  {¶12} Prior to the appointment of a guardian, the court shall conduct a hearing on the matter, and the hearing shall be conducted in accordance with the requirements set forth in R.C. 2111.02(C). There must be clear and convincing proof that the proposed ward is incompetent, as that term is defined under Ohio law. In re Guardianship of Rudy, 65 Ohio St.3d 394, 396 (1991); In re Guardianship of Swank, 1999 Ohio App. LEXIS 2811, *5 (5th Dist.). R.C. 2111.02(D) defines “incompetent” as: “(1) Any person who is so mentally impaired, as a result of a mental or physical illness or disability, as a result of intellectual disability, or as a result of chronic substance abuse, that the person is incapable of taking proper care of the person’s self or property * * *.” In Sondergeld, the Second District succinctly stated: In any guardianship matter the court has two things to determine; first, whether there are circumstances or conditions or both which would justify the appointment of a guardian; and, secondly, whether a guardianship is necessary even though these circumstances or conditions exist. * * * There is no hard and fast rule on which a Probate Court may rely to show the necessity for the appointment of a guardian of an incompetent person. It rests within the sound discretion of the court, the controlling consideration being the welfare of the prospective ward, and in the absence of an abuse of discretion such appointment will not be set aside. In any case, though, the court should be fully satisfied that the interests of the prospective ward, regardless of the desires of anyone else, require the appointment.  Id. at *3-4, quoting 26 Ohio Jurisprudence 2d 408-11.1 {¶13} Thus, when considering an application for appointment of a guardian, a probate court must determine: (1) that a guardian is in fact required; and (2) who shall be appointed guardian. In re Myers, 2017 Ohio App. LEXIS 1113, *9-10 (5th Dist.), citing, In re Guardianship of Simmons, 2003-Ohio-5416, ¶17 (6th Dist.). In determining who should serve as guardian, the probate court's primary responsibility is to ensure that the person appointed will act in the individual’s best interest. Myers, *10 (“In the absence of a written nomination by the ward of who shall be appointed guardian, the probate court is required to choose a guardian who will promote the best interests of the ward.”) {¶14} Here, after reviewing the record in its entirety, we conclude that the trial court did not abuse its discretion in finding that Appellant is incompetent based on his mental illness, severe schizophrenia, and non-compliance with medication. At the full hearing, the court considered all the evidence previously presented including Dr. Kimbo’s statement of expert evaluation, historical information concerning Appellant’s long-standing history of mental illness, and statements from family members who supported the guardianship. Ms. Dover further noted that Appellant’s brother informed police that he believed Appellant might hurt him because Appellant believed his brother was replaced by a different person. (T. at 6- 7). Appellant’s family members reported to Ms. Dover that Appellant had experienced hallucinations, inconsistently took his medication, and that Appellant’s mental health issues spanned thirty plus years. 1 Further, R.C. 2111.02(C) provides that evidence of a less restrictive alternative to guardianship may be introduced, and, if introduced, shall be considered by the court. A probate court may deny guardianship if it finds a less restrictive alternative to guardianship exists. R.C. 2111.02(C)(6). Pond, at ¶ 6. In this case, no less restrictive alternative was introduced.  {¶15} Ms. Dover also reviewed Appellant's past medical history that established repeated hospitalizations. Ms. Dover further testified: “He will start to comply with the medication, a Court order will be issued and he will follow that, and then once the Court order is over * * * he won't take the medication anymore and it ends up getting him back in trouble again.” Tr. at 10. The evidence clearly established that Appellant was currently and frequently hallucinating, seldom taking his medications properly, and was the subject of numerous mental hospitalizations spanning several decades. {¶16} Appellant did not offer any independent Statement of Expert Evaluation, nor did he request an independent evaluation. Other than his verbal opposition to the guardianship, Appellant did not offer any evidence on his own behalf to contradict the evidence presented by ONI. Appellant’s opposition is simply insufficient to overcome the plethora of evidence indicating that a guardian was necessary. ONI is an agency committed to working with individuals like Appellant and is more than suitable to serve as guardian. ONI will no doubt make decisions on Appellant’s behalf that are in his best interest. Thus, the trial court properly appointed ONI as guardian of the person only of Appellant. Appellant’s sole assignment of error is overruled.  CONCLUSION {¶17} Appellant’s sole assignment of error is overruled. The judgment of the Tuscarawas County Court of Common Pleas, Probate Division, is affirmed. {¶18} Costs to Appellant. By: Montgomery, J. Hoffman, P.J. and Baldwin, J. concur.