COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71258 IN RE: GUARDIANSHIP OF : JOURNAL ENTRY BRYAN J. JAWORSKI : AND : OPINION Appellant : : : DATE OF ANNOUNCEMENT OF DECISION : JUNE 26, 1997 CHARACTER OF PROCEEDING : Civil appeal from : Court of Common Pleas : Probate Division : Case No. 1121545 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For appellant: THOMAS L. BRUNN Attorney at Law Hohmann, Boukis & Brunn 520 Standard Building 1370 Ontario Street Cleveland, Ohio 44113 For appellee: JANE M. VARGA Attorney at Law Twin Lakes Office Building 5851 Pearl Road, #205A Parma Heights, Ohio 44130 - 2 - ABOOD, J.: This is an appeal from a judgment of the Cuyahoga County Common Pleas Court, Probate Division, in which the trial court denied appellant Theodore M. Jaworski's application for guardian- ship and granted the application of appellee Susan E. Poole for guardianship of the person of Bryan Joseph Jaworski. In support of his appeal, appellant sets forth the following assignment of error: THE TRIAL COURT ABUSED ITS DISCRETION BY GRANTING APPELLEES [SIC] APPLICATION FOR GUARDIANSHIP CONTRARY TO THE MANIFEST WEIGHT OF THE EVIDENCE AND THE BEST INTEREST OF THE WARD. The facts that are relevant to the issue raised on appeal are as follows. Appellant Theodore Jaworski and appellee Susan E. Poole, fka Jaworski, are the parents of Bryan Joseph Jaworski, who is moderately "mentally retarded." The Jaworskis were divorced in June 1986 and, pursuant to the divorce decree, appellee was named the custodial parent of Bryan. Due to his regressive and violent behavior, in 1987 Bryan was placed with the Cuyahoga County Board of Mental Retardation and Developmental Disabilities ("CCBMRDD") in a residential setting at Richmond House. When Bryan turned eighteen, pursuant to R.C. 2111.02, each parent filed an Applica- tion for Appointment of Guardianship of Bryan. On January 4, 1996, - 3 - the matter came for hearing before a magistrate of the Probate Division of the Cuyahoga County Court of Common Pleas. At the hearing, appellant and appellee stipulated to the expert evaluation by the licensed clinical psychologist, Dr. Wohl, and the court adjudicated Bryan to be incompetent, pursuant to R.C. 2111.01, by reason of mental retardation. Evidence was then presented by the applicants on the issue of which one would be appointed guardian of Bryan. The record reveals that at the time of the hearing, Bryan was living at Monticello House, a CCBMRDD residential facility, and was alternating weekend visits at his respective parental homes. Bryan attends the East Cleveland Developmental Center for training and schooling through the CCBMRDD program. Both his step-father and maternal grandfather testified that Bryan has a good relationship with both parents and benefits from his group home placement. The testimony of his parents reveals that both parents are involved with his school and group-home life. On June 3, 1996, the magistrate issued his report, which found, inter alia, that "both parents appear to have cooperated regarding visitation and other issues relating to his care. Therefore, it appears that either parent could serve suitably as Guardian for Bryan's medical and personal decision making. *** [Appellee] has demonstrated a willingness to cooperate with visi- tation plans and [appellant's] involvement." The magistrate recommended that the application of appellee be granted as to - 4 - Bryan's person only, based upon "her past performance as legal custodian and her representations made in open court" and that the application of appellant be denied. Appellant timely filed his objection to the report of the magistrate as being against the weight and quality of the evi- dence. On August 15, the court overruled appellant's objections to the report and entered judgment for the appellee. Appellant has timely appealed the judgment. In his sole assigned error, appellant complains that the trial court abused its discretion by granting appellee's application for guardianship contrary to the manifest weight of the evidence and the best interest of Bryan. Specifically, appellant contends that the magistrate based his decision on the presumption that appellee should be granted the guardianship due to her past performance as the primary caregiver and that this presumption is in violation of R.C. 3109.04(C). R.C. 3109.04(C) governs the allocation of parental rights and responsibilities for the care of children in any divorce, legal separation or annulment proceeding and, hence, has no application to the matter before us. R.C. Sections 2111.01 and 2111.02 confer upon the probate court exclusive jurisdiction regarding the appointment of guardians. The procedural requirements for a person applying for appointment as guardian are set forth in R.C. 2111.03. Both appellant and appellee properly submitted their applications for guardianship, and such applications were heard by a magistrate - 5 - of the probate court in accordance with the statutory mandates. In evaluating applications for the appointment of a guardian, the probate court must engage in a two part determination: (1) it must first determine that a guardian is required; and (2) it must determine who shall be appointed guardian. In re Medsker (1990), 66 Ohio App.3d 219. In this matter appellant does not challenge the determination that a guardian is required. The probate court's primary responsibility in choosing who shall serve as guardian is to ensure that the person appointed will promote the best interests of the ward. In re Guardianship of Elliott (Sep. 16, 1991), Madison App. No. CA91-01-002, unreported. The probate court has broad discretion in appointing guardians and in the absence of an abuse of discretion the decision of the probate court will not be set aside by an appellate court. In re Estate of Bednarczuk (1992), 80 Ohio App.3d 548. "The term 'abuse of discretion' connotes more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable." Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219. Upon thorough consideration of the law and the evidence presented at the hearing, this court cannot find that the trial court abused its discretion in awarding the guardianship of the person of Bryan Joseph Jaworski to appellee. Accordingly, this court finds that the appellant's sole assignment of error is not well taken. - 6 - Upon consideration whereof, this court finds that substantial justice has been done the party complaining, and the judgment of the Cuyahoga County court of common pleas, probate division is affirmed. - 7 - It is ordered that appellee recover of appellant his 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 Cuyahoga County Court of Common Pleas, Probate Division, 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. PATRICIA BLACKMON, P.J. and DIANE KARPINSKI, J. CONCUR JUDGE *CHARLES D. ABOOD *SITTING BY ASSIGNMENT: Charles D. Abood, retired judge of the Sixth District Court of Appeals, sitting by assignment of the Supreme Court of Ohio. N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E), unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .