COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67715 : IN THE MATTER OF: : : JOSEPH FURGIONE : : JOURNAL ENTRY : : and : : OPINION : : : : : DATE OF ANNOUNCEMENT NOVEMBER 2, 1995 OF DECISION: CHARACTER OF PROCEEDING: Civil appeal from Probate Court Case No. 1098737 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Appellant Lana Shockey: For Appellee Louis R. Bragg: LANA J. SHOCKEY, Pro Se ALBERT E. FOWERBAUGH, ESQ. 112 Cross Street 505 National City Bank Bldg. Phillippi, WV 26416 629 Euclid Avenue Cleveland, Ohio 44114 -2- -3- PATRICIA ANN BLACKMON, J.: Appellant, Lana Shockey, appeals a decision from the trial court appointing Appellee, Louis Bragg, as guardian for Shockey's father, Joseph Furgione. Although they are not separately defined in her brief, Shockey's arguments set forth the following errors: I. JOSEPH FURGIONE WAS NOT REPRESENTED BY LEGAL COUNSEL AS PRESCRIBED BY LAW. II. NO TRANSCRIPT OF HEARING WAS KEPT OR RECORDING OF HEARING. III. NO INDEPENDENT EVALUATION MEDICALLY OR PSYCHIATRICALLY. IV. NEXT OF KIN WAS NOT DULLY (sic) NOTIFIED OR SENT COPIES OF REFEREE'S DECISION IN TIME TO APPEAL THE DECISION, OR NEVER SENT COPY OF JUDGMENT ENTRY WITH JUDGE'S NAME ON IT SIGNED UNTIL TOO LATE TO APPEAL THE DECISION. V. NEXT OF KIN NOT IN ALL THE HEARINGS: FIRST 15 MIN. REFEREE'S HEARING WAS KEPT OUT. VI. AN INCOMPETENT PERSON CANNOT WAIVE HIS RIGHT TO A LAWYER, AND BE HIS OWN LAWYER, PRO SE, AS HE IS INCOMPETENT TO BEGIN WITH. VII. JUDGE CORRIGAN WAS [FURGIONE'S] JUDGE ON A ASSAULT AND BATTERY AND SENTENCED HIM TO 6 MONTHS IN JAIL WHICH [HE] SPENT IN THE INFIRMARY. THERE IS A CONFLICT OF INTEREST OF THIS JUDGE BEING THE PROBATE JUDGE IN THIS HEARING, AND ALREADY TRIED JOSEPH FURGIONE IN THE PAST. For the reasons set forth below, we affirm the decision of the trial court. The apposite facts follow. On March 15, 1994, Louis Bragg filed an Application for Appointment of Guardian of Alleged Incompetent. In his application, Bragg alleged that seventy-four year old Joseph Furgione was incompetent due to dementia. In a statement of expert -4- valuation, Dr. Shila Matthew also concluded that Furgione suffered from senile dementia. According to Dr. Matthew, Furgione had been exhibiting bizarre, agitated, and violent behavior since Summer 1993. Furgione was described as unable to care for himself and "a danger to self and others in an unsupervised setting." A court investigator found the condition of Furgione's home "deplorable" and described his personal hygiene as "extremely poor." A competency hearing was held on May 18, 1994. According to the report of referee Alan Shankman, the hearing was attended by Joseph Furgione and his wife, Eloise, Louis Bragg and his attorney, Albert Fowerbaugh, Attorney Cheryl Gregerson for Lana Shockey, and Debra White of Adult Protective Services. In his June 21, 1993 report, the referee concluded that Furgione was mentally incompetent, that his in-court demeanor evidenced inadequate judgment ability, and that his wife was incapable of taking care of him. The application for guardianship was granted. This appeal followed. In his first and sixth assignments of error, Shockey argues that Furgione was not represented by legal counsel as prescribed by law. Although the referee's report indicates that Furgione waived his right to counsel in open court, Shockey maintains that Furgione, as an incompetent, could not waive his right to a lawyer. Under R.C. 2111.02(C)(7)(a), an alleged incompetent has the right to be represented by independent counsel of his choice. However, a party may waive his right to counsel. Shockey gives us no evidence indicating that Furgione did not understand the -5- proceedings or that he was unable to make an intelligent waiver of his right to counsel. We also find no such evidence in the App.R. 9 statement of proceedings. Absent such evidence, we overrule Shockey's first and sixth assignments of error. Shockey also argues that the probate court erred in not transcribing the competency hearing. R.C. 2111.02(C)(4) provides as follows: Upon request of the applicant, the alleged incompetent for whom the appointment is sought or his counsel, or any interested party, a recording or record of the hearing shall be made. (Emphasis added.) In this case, there is no evidence of a request for a transcript of the competency hearing. Absent such a request, we find that the probate court did not err in failing to transcribe the competency hearing. Shockey's second assignment of error is overruled. In her fourth and fifth assignments of error, Shockey argues that she was not properly notified of the competency hearing. R.C. 2111.04(2)(b) provides that in the appointment of a guardian for an incompetent, notice shall be given to the next of kin of the alleged incompetent who are known to reside in the state of Ohio. The statute makes no provision for notice to next of kin who reside outside the state. See In re Guardianship of Bissmeyer (1988), 49 Ohio App.3d 42 (provision that notice need only be given to next of kin who reside in same state found not to violate due process, equal protection, or privileges and immunities). At the time of -6- the hearing, Lana Shockey was a resident of West Virginia. Consequently, we overrule Shockey's fourth and fifth assignments of error. Shockey next argues that the probate court erred in failing to order an independent medical or psychiatric evaluation of Furgione. R.C. 2111.03.1 authorizes the court to appoint physicians and other qualified persons to examine the alleged incompetent in order to determine whether a guardianship is necessary. Our review of the record reveals that Furgione was evaluated by a licensed physician and by a Probate Court investigator. Reports were prepared and submitted to the probate court for consideration. Shockey's third assignment of error is overruled. In her seventh assignment of error, Shockey argues that a conflict of interest existed which should have precluded Judge John E. Corrigan from deciding Furgione's case. According to Shockey, Judge Corrigan presided over an assault and battery case against Furgione in which he was sentenced to six months in jail and should not have handled Furgione's competency hearing. R.C. 2701.03 sets forth the procedure for disqualifying a judge. Under the statute, a party seeking to disqualify a judge for bias or prejudice may file an affidavit of prejudice with the clerk of the supreme court within three days of the hearing in the pending action. In this case, Shockey does not argue and the record does not reveal that any such affidavit was filed. This court has no jurisdiction either to order the disqualification or to void the trial court's judgment. Kondrat v. Ralph Ingersoll -7- Publishing Co. (1989), 56 Ohio App.3d 173, 174. Shockey's seventh assignment of error is without merit. Judgment affirmed. -8- It is ordered that Appellee recover of Appellant its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Probate Court 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. Exceptions. PATTON, C.J., and JAMES D. SWEENEY, J., CONCUR. PATRICIA ANN BLACKMON JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journaliza- .