[Cite as In re J.J., 2018-Ohio-3915.]

                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                    SANDUSKY COUNTY

In re J.J. and B.J.                               Court of Appeals No. S-18-009

                                                  Trial Court No. 21630062
                                                                  21730217

                                                  DECISION AND JUDGMENT

                                                  Decided: September 27, 2018

                                          *****

         {¶ 1} This matter is before the court on the September 20, 2018 motion of

appellant, A.C., for reconsideration of our decision in In re J.J., 6th Dist. No. S-18-009,

2018-Ohio-3819. Appellee, Sandusky County Department of Job and Family Services,

filed a response, and did not object to the requested relief. We find the motion well-

taken.

         {¶ 2} Appellant claims her appeal as to B.J. was dismissed in error. Appellant

observes on March 27, 2018, we dismissed B.J.’s case (case No. 21730217) stating a

single notice of appeal was filed for both trial court cases, In re J.J., case No. 21630062,
and In re B.J., case No. 21730217. However, appellant argues a second notice of appeal

was then filed as to B.J., but was not properly docketed. Thus, appellant requests we

reconsider our dismissal of the appeal as to B.J., and issue a decision regarding B.J. as

expeditiously as possible.

       {¶ 3} The standard applied to a motion for reconsideration, timely filed pursuant

to App.R. 26, is set forth in Matthews v. Matthews, 5 Ohio App.3d 140, 143, 450 N.E.2d

278 (10th Dist.1981):

              The test generally applied [upon the filing of a motion for

       reconsideration in the court of appeals] is whether the motion for

       reconsideration calls to the attention of the court an obvious error in its

       decision or raises an issue for our consideration that was either not

       considered at all or was not fully considered by us [the court] when it

       should have been.

       {¶ 4} Here, upon review of the record and our decision, we find, in accordance

with Matthews, that appellant has brought to our attention an issue which was not

considered. We therefore grant appellant’s motion for reconsideration, and issue the

following revised decision regarding B.J.

                                                                 MOTION GRANTED:

2.
                       IN THE COURT OF APPEALS OF OHIO
                           SIXTH APPELLATE DISTRICT
                              SANDUSKY COUNTY

In re J.J. and B.J.                             Court of Appeals No. S-18-009

                                                Trial Court No. 21630062
                                                                21730217

                                                DECISION AND JUDGMENT

                                                Decided: September 27, 2018

                                         *****

       Angelina Wagner, for appellant.

       Dean E. Ross, for appellee.

                                         *****

       SINGER, J.

       {¶ 5} This is an appeal from the March 8, 2018 judgment of the Sandusky County

Court of Common Pleas, Juvenile Division, terminating the parental rights of appellant,

A.C., the mother of J.J. and B.J., and granting permanent custody of the children to

appellee, Sandusky County Department of Job and Family Services (“appellee” or

“agency”). For the reasons that follow, we affirm the judgment.

       {¶ 6} Appellant set forth one assignment of error:

3.
                      1. The granting of Permanent Custody in regards to Mother,

              [A.C.], was against the manifest weight of the evidence.

                                           Background

       {¶ 7} Appellant is the biological mother of four children. Appellant’s two

youngest children, J.J., born in April 2016, and B.J., born in September 2017, are the

subject of the permanent custody award in this appeal (“the children”). J.J., Sr. is the

biological father of the children (“father”). Father voluntarily relinquished his parental

rights to the children and is not a party to this appeal.

       {¶ 8} Appellant met father on the internet, and she traveled from the Columbus area

to Fremont to meet father. At the time, father was a convicted felon and Tier I sex offender

who was on community control. Thereafter, appellant became pregnant with J.J.

       {¶ 9} Appellee became involved with appellant the day after J.J. was born.

Appellee received a referral that appellant was homeless, unable to care for J.J., and in

the past, appellant’s other children had been removed from her care. The next day,

Meagan Myers, an investigator for appellee, met with appellant who reported she and J.J.

would be living with T.W.

       {¶ 10} Three days later, Investigator Myers conducted a home visit at T.W.’s

apartment and raised concerns with appellant regarding father due to his mental disability

and angry outbursts as well as his threat to remove J.J. from appellant’s care. A week

later, Myers conducted another home visit and T.W. raised concerns regarding appellant

having contact with father and lying about it. T.W. also said appellant was on the phone

so much with father that it interfered with appellant’s ability to care for J.J. In addition,

4.
appellant had been disrespectful to T.W. Myers was concerned with appellant’s

cognitive reasoning in caring for J.J. and her ability to protect J.J.

       {¶ 11} Four days later, appellee was notified that appellant and J.J. were no longer

able to live with T.W. due to appellant’s continued lack of respect towards T.W.,

appellant’s arguing and fighting, and continued contact with father. That day, Gabrielle

Henry, an ongoing caseworker for appellee, sought and was granted an ex parte order for

temporary custody of J.J.

       {¶ 12} On April 25, 2016, appellee filed a complaint in dependency and neglect.

A shelter care hearing was held that day, and the magistrate found J.J. to be a dependent

and neglected child. The magistrate ordered interim temporary custody of J.J. with

appellee should continue.

       {¶ 13} On July 27, 2016, father was arrested for and charged with domestic

violence, a first-degree misdemeanor. Father was accused of holding appellant down on

the couch, choking her and threatening to slash her throat. The next day, a notice of

probation violation was filed with respect to father’s arrest for domestic violence.

       {¶ 14} In August 2016, father pled no contest to an amended charge of domestic

menacing, a second-degree misdemeanor, and was sentenced to jail and placed on three

years of probation. As a condition of his probation, father was ordered to have no contact

with appellant. Due to his probation violation, father’s community control was revoked

and he was ordered to serve time in jail.

       {¶ 15} On February 28, 2017, appellant was charged with menacing, a first-degree

misdemeanor, for threatening to hit a caseworker during a supervised visit with J.J. at

5.
appellant’s home. Appellant subsequently pled no contest to an amended charge of

menacing, a fourth-degree misdemeanor, and was sentenced to 12 months of probation.

      {¶ 16} On March 14, 2017, a report of a probation violation was filed with respect

to father. Despite the no-contact order, father had contact with appellant in December

2016, which resulted in appellant becoming pregnant.

      {¶ 17} In September 2017, appellant gave birth to B.J., and the next day appellee

filed a request for an order of emergency temporary custody; the order was granted.

      {¶ 18} On September 25, 2017, a complaint in dependency was filed regarding

B.J. That same day, a shelter care hearing was held and appellee was awarded interim

temporary custody of B.J.

      {¶ 19} On November 8, 2017, appellee moved for permanent custody of J.J., and

on January 12, 2018, appellee moved for permanent custody of B.J. On January 31,

2018, a permanent custody hearing regarding both children was held.

      {¶ 20} On March 8, 2018, the juvenile court issued its findings of fact, conclusions

of law and judgment entry, and granted permanent custody of J.J. and B.J. to appellee.

Appellant appealed.

                                       The Hearing

      {¶ 21} Appellee called numerous witnesses at the January 30, 2018 hearing,

including father’s grandmother, agency workers and the Court Appointed Special

Advocate/ guardian ad litem (“CASA/GAL”). Appellant did not testify nor did she call

any witnesses to testify. The relevant testimony is summarized below.

6.
                                          Grandmother

        {¶ 22} Father’s grandmother testified to the following. Father is 32 years old and

grandmother is his legal guardian. Father has lived with grandmother his whole life.

Father has ADHD, is bipolar, cannot read and has trouble writing.

        {¶ 23} Grandmother met appellant sometime before J.J. was born. The police

banged on grandmother’s door one morning and appellant was with the police. Appellant

had been in the basement of the apartment complex where grandmother and father lived,

and the police wanted to know why father “went and got her.” Grandmother informed

the police father did not get appellant because father was on house arrest, could not drive

and does not have a car. Appellant wanted to stay, as it was cold outside, but the police

said she could not stay. The police took appellant to the police station then sent her back

home.

        {¶ 24} Grandmother said the basement of the apartment complex where appellant

had stayed was horrible - it was unfinished, nasty, dirty and there was no bathroom.

        {¶ 25} The next time grandmother saw appellant, father was still under house

arrest and appellant was outside of the apartment complex. Father said appellant was his

girlfriend and he wanted her to stay, but grandmother told appellant she had to leave or

grandmother would call the police; appellant left.

        {¶ 26} Grandmother saw appellant again about two or three months later;

appellant was pregnant. Grandmother found out appellant and father had been in the

basement “and let nature take its course.” Grandmother did not believe it was father’s

7.
baby, but it was. Grandmother testified she did not know appellant, but was not fond of

her because appellant would not let them see J.J. when he was born.

       {¶ 27} Father was charged with domestic menacing with respect to appellant.

Appellant never lived with father and grandmother. Although there was a no-contact

order barring contact between appellant and father, appellant became pregnant with B.J.

by father.

       {¶ 28} Appellant called the grandmother about two weeks before the hearing and

said father still comes over to appellant’s house and they have sex. Appellant then hung

up.

       {¶ 29} Grandmother testified she can hear appellant and father on the phone for

hours fighting and making up. Appellant bought father two phones and she pays the

phone bill. Grandmother does not think it would be safe for appellant and father to be

together, as father is bipolar and flies off the handle in an instant.

                                             Investigator

       {¶ 30} Meagan Myers, investigative supervisor and keeper of the records for

appellee, testified the agency opened a dependency investigation in April 2016, regarding

appellant’s ability to care for J.J. Appellee had received four calls regarding appellant,

including two calls stating appellant was pregnant, one call stating appellant came to

Sandusky County “to run from the agency” in Fairfield County, and another call stating

appellant had mental health problems and father was disabled.

8.
                                            Supervisor

       {¶ 31} Linda Ackerman, a supervisor for appellee, testified she is the supervisor of

two current employee who work with appellant, and she supervised two former

employees who had worked with appellant. Ackerman stated appellant has had

supervised visitation with J.J. for two hours, twice a week, since April 2016. Initially, the

visits occurred at the agency’s visitation room, then some visits were moved to

appellant’s apartment. However, there was an incident with a former agency worker

where appellant became upset and threatened the worker. Thereafter, appellant was put

on “high-risk visit” and all visits took place at the agency’s visitation room. Visits were

also monitored on a video screen due to the instability of appellant’s behaviors. After

B.J. was born, B.J. was added to the supervised visits.

       {¶ 32} Ackerman observed appellant attended all scheduled visits but made little

to no parenting progress since April 2016, despite completing parenting classes.

Appellant needed cueing during visits by workers, who offered advice or instruction. In

addition, appellant often became overwhelmed and distracted when caring for both

children during the two hour visits. Ackerman opined appellant is not able to

independently provide care for her children as she seeks constant assistance from workers

during visits. Ackerman classified appellant’s actions as “attention-seeking type

behaviors.”

       {¶ 33} Ackerman testified appellant has not been able to progress out of the

agency’s visitation room because Ackerman cannot trust that appellant will have good

9.
judgment with the children and keep them safe. Ackerman stated most people are able to

move out of the visitation room and into the community within three months.

         {¶ 34} Ackerman noted appellant did not follow the protection order with respect

to father, who was violent with appellant, and if appellant is still in a relationship with

father, “that is a completely unsafe situation.”

         {¶ 35} Ackerman acknowledged that appellant loves her children very much and

cares deeply for them, but appellant does not make good choices. Ackerman observed

that appellant could parent the children if someone lived with her to cue her and remind

her what she should and should not do, so that the basic needs of the children could be

met.

                                      Help Me Grow Worker

         {¶ 36} Rachel Calvillo, a home visitor employed by Help Me Grow, testified she

received a referral regarding J.J. when he was about six days old. Help Me Grow is a

voluntary program which provides assistance with and information about development,

parenting and family support. Appellant self-referred for services for B.J. following B.J.’s

birth.

         {¶ 37} Calvillo testified appellant told her she had two other children who were not

in her care, and appellant was involved with Help Me Grow with her other children.

Appellant’s oldest child was with a family member and the daughter was in an adoptive

placement after appellant consented to permanent custody.

         {¶ 38} Calvillo had discussions with appellant regarding safety issues in the home

environment and how issues change as children get older. She also had talks with

10.
appellant about safety with respect to who you choose to have around your children.

Appellant had partners in the past who were sex offenders or were violent with her but

she continued to have contact with them. Calvillo had conversations with appellant as to

why those relationships would be detrimental to her children and why it was important to

make positive choices and discontinue contact.

       {¶ 39} Calvillo was not surprised that appellant was still together with father

because the entire time Calvillo and appellant talked about that relationship not being

positive, appellant continued to see father and became pregnant. Calvillo testified

appellant does not have a support system so she turns to father or his family.

       {¶ 40} Calvillo would generally see appellant and the children every two weeks

and appellant was really good at attending visits or calling to reschedule if she had to

cancel a visit. During visits, appellant actively participated with her children and

appropriately applied the activities Calvillo taught her. Calvillo noticed it was tough for

appellant to balance the visits now with two children, and appellant would sometimes get

frustrated. Calvillo noted appellant needs cues and help with adjusting activities for the

next area of development as the children get older. Calvillo opined if the children were

in appellant’s home, appellant would do best having regular support with her to give

reminders and cues. Calvillo did not know of anyone who could help out appellant.

       {¶ 41} Calvillo testified appellant did not put her own needs aside and her children’s

needs first when picking men. While appellant loves the children and is bonded with them,

she has a pattern of unhealthy relationships which is a safety concern for the children.

Appellant attended and was successfully discharged from counseling, but still made the

11.
choice to continue to see father. Appellant would benefit from more counseling because

she has had trauma, stress and loss in her life.

       {¶ 42} Calvillo observed that appellant has a routine when visiting the children,

and adjusting that routine or skipping a step would be difficult for appellant. Since

children are always changing, it is a concern that appellant is not capable of adapting.

                                            Caseworker

       {¶ 43} Gabrielle Henry, the ongoing caseworker, testified to the following. She is

appellant’s current caseworker and was assigned to work with appellant in April of 2016.

At that time, only J.J. was born. A case plan was put in place which included: a

therapeutic assessment, and to follow all recommendations; housing; parenting and

relationship. Appellant completed the parenting services, attended counseling, found a

place to live and visited regularly with the children at the agency. In addition, after

working with a job coach, appellant received her STNA (State Tested Nursing Assistant)

certificate and held a job for about three or four months.

       {¶ 44} Henry was aware that appellant does not have custody of her two older

children, and one has disabilities. Appellant was diagnosed with bipolar, borderline

personality disorder, borderline intelligence, posttraumatic stress disorder (“PTSD”) and

anxiety.

       {¶ 45} Despite attending counseling, appellant still has a temper and anger issues,

and had an altercation with an agency worker in early 2017. Appellant also became

angry with Henry regarding the no-contact order, and yelled at Henry. Another time,

12.
appellant got mad and “flipped off” Henry instead of dealing with the problem and

talking it out.

       {¶ 46} Henry was told that when appellant first met father and was staying in the

basement, appellant called her ex-boyfriend, R., and asked him about the situation. R.

told appellant to get out as she could get raped, but she ignored the advice. Appellant

told Henry she got “the little scary tummy feeling” when in the basement, but did not

listen. Appellant learned what red flags are, but she does not listen to them.

       {¶ 47} Henry recalled in September 2016, appellant went to Columbus and was

unable to return to Fremont because someone had stolen all of her money, $600, and

appellant had not purchased a roundtrip ticket. Henry stated this was an example of

appellant not preparing or following through.

       {¶ 48} When appellant became pregnant with B.J., appellant said the baby was not

father’s child because she did not want father to go to jail for violating the no-contact

order. Henry stated there was confusion about whether appellant was supposed to be on

bed rest while pregnant with B.J. Appellant told Henry she quit her job, in April 2017,

because the doctors said she needed to be on bed rest, but appellant walked to court and

the farmers’ market. Henry reviewed the records and found no mention of bed rest.

       {¶ 49} Henry noted appellant has purchased two phones and a pair of boots for

father. While appellant was in the hospital to give birth to B.J., father was calling her and

asking her for $300 to buy a scooter.

13.
       {¶ 50} Henry was not surprised that appellant was still with father and having sex

with him because she loves him and is not ready to give him up. Henry had heard that

appellant may be pregnant again.

       {¶ 51} Henry testified appellant can only apply the skills she learned for a minute.

Henry said appellant is a reactor and has difficultly transitioning. Appellant knows she

picks bad men, but continues to do it. Henry opined appellant makes the same unhealthy

decisions for her and her family, and because of this, cannot keep her children safe.

       {¶ 52} Henry stated J.J. and B.J. are in the same foster home and the foster parents

are very open to adopting the children if the court grants permanent custody to appellee.

                                           CASA/GAL

       {¶ 53} Kay Yeagle testified she was the CASA/GAL appointed to represent J.J. and

B.J. Yeagle authored a report and recommendation, which was filed on January 23, 2018,

in which she set forth her concerns and recommendations regarding custody of J.J. and B.J.

       {¶ 54} According to Yeagle’s report, she was appointed to represent J.J. in May

2016, and B.J. in September 2017. Yeagle undertook an independent investigation to

determine J.J. and B.J.’s best interests. Yeagle observed the children at their foster home,

talked to the foster mother, spoke with Caseworker Henry, watched appellant’s visits with

J.J. and B.J. and reviewed documents like the complaint, police reports, case plans and

agency records.

       {¶ 55} In her report, Yeagle’s concerns regarding appellant included that appellant

does not have the knowledge, skills and emotional maturity to cope with the children

outside of a structured, supervised two hour visit and appellant does not have the skills and

14.
ability to make decisions in the best interest of the children.        As a result, Yeager

recommended that permanent custody of J.J. and B.J. be awarded to appellee for purposes

of adoption, as J.J has been in foster care for 20 months and deserves stability and

permanency, and B.J has been in foster care since she was four days old and deserves

stability and permanency. Yeagle testified her recommendations are in the children’s best

interests.

                                    Juvenile Court’s Decision

       {¶ 56} On March 8, 2018, the juvenile court issued its findings of fact, conclusions

of law and judgment entry in which it granted permanent custody of J.J. and B.J. to

appellee. The court made the following specific findings, by clear and convincing

evidence, with respect to appellant: J.J. and B.J. were each, separately adjudicated

dependent; appellant had two other children removed from her care - one child was

placed with relatives, the other child was placed in the permanent custody of another

county; appellant has issues with anxiety, PTSD, borderline personality disorder and bi-

polar disorder; due to appellant’s on-going problems with decision-making, she puts J.J.

and B.J. in jeopardy; appellant has failed to adequately and appropriately demonstrate her

ability to implement the skills necessary to keep J.J. and B.J. safe; and, appellee offered

appellant numerous resources to assist in having the children returned, including: case

management and case planning; counseling; Help Me Grow; parent aide; parent

education; transportation and, visitation services.

       {¶ 57} The court also made the following generalized findings: neither child could

be placed with appellant within a reasonable time and should not be placed with

15.
appellant; despite reasonable case planning and diligent efforts by appellee to assist

appellant to remedy the problems which caused the children to be placed outside of the

home, appellant continuously and repeatedly failed to remedy those problems; appellant,

through her actions or inactions, is unable to adequately and appropriately provide food,

clothing, shelter and other basic necessities for the children, and/or is unable to prevent

the children from suffering physical, emotional or mental abuse or neglect; both children

have made progress in their current placements and have responded very well to the

stable and consistent environment; the children need a legally secure placement; and,

appellee has made reasonable efforts to return the children to appellant.

       {¶ 58} The juvenile court specifically concluded that J.J. has been in the

temporary custody of appellee for 12 or more months of a consecutive 22 month period.

       {¶ 59} The juvenile court comprehensively and generally concluded: neither J.J.

nor B.J. could be placed with appellant within a reasonable time, and should not be

placed with appellant; the permanent placement of J.J. and B.J. in appellee’s custody is

clearly in each child’s best interest; appellee made reasonable efforts for J.J. and B.J. to

return home, which efforts were unsuccessful; and, appellee made reasonable efforts to

establish a permanency plan for J.J. and B.J. for the children’s placement in appellee’s

permanent custody with the goal of finding an adoptive family/home for the children.

                                          The Appeal
                                 Standard - Permanent Custody

       {¶ 60} A juvenile court’s decision in a permanent custody case will not be reversed

on appeal unless it is against the manifest weight of the evidence. In re A.H., 6th Dist.

16.
Lucas No. L-11-1057, 2011-Ohio-4857, ¶ 11, citing In re Andy-Jones, 10th Dist. Franklin

Nos. 03AP-1167 and 03AP-1231, 2004-Ohio-3312, ¶ 28. “The underlying rationale of

giving deference to the findings of the juvenile court rests with the knowledge that the

juvenile judge is best able to view the witnesses and observe their demeanor, gestures and

voice inflections, and use these observations in weighing the credibility of the proffered

testimony.” Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984).

Furthermore, “[e]very reasonable presumption must be made in favor of the judgment and

the findings of facts [of the juvenile court].” Karches v. Cincinnati, 38 Ohio St.3d 12, 19,

526 N.E.2d 1350 (1988). Therefore, a judgment supported by some competent, credible

evidence going to all essential elements of the case is not against the manifest weight of

the evidence. Id.; C.E. Morris Co. v. Foley Constr. Co., 54 Ohio St.2d 279, 376 N.E.2d

578 (1978), syllabus.

       {¶ 61} The juvenile court may grant permanent custody of a child to a children

services agency if the court finds, by clear and convincing evidence: (1) the existence of at

least one of the four factors set forth in R.C. 2151.414(B)(1)(a) through (d), and (2) the

child’s best interest is served by granting permanent custody to the agency. In re M.B.,

10th Dist. Franklin No. 04AP755, 2005-Ohio-986, ¶ 6; R.C. 2151.353(A)(4).

       {¶ 62} R.C. 2151.414(B)(1)(a) provides that “the child cannot be placed with either

parent within a reasonable period of time or should not be placed with either parent.” R.C.

2151.414(E) requires a juvenile court to find that a child cannot be placed with either of

the child’s parents within a reasonable time or should not be placed with either parent if

any one of sixteen factors are met. R.C. 2151.414(E)(1) - (16).

17.
       {¶ 63} To satisfy the best interest prong of the permanent custody test, appellee was

required to establish, by clear and convincing evidence, that permanent custody to the

agency is in the best interest of the children based on an analysis under R.C. 2151.414(D).

The juvenile court must consider all relevant factors, including: the interaction and

interrelationship of the children with their parents, siblings, relatives, foster caregivers and

out-of-home providers; the wishes of the children; the custodial history of the children;

and, the children’s need for permanence.

       {¶ 64} Clear and convincing evidence requires proof which “produce[s] in the mind

of the trier of facts a firm belief or conviction as to the facts sought to be established.”

Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the syllabus.

In order to determine whether a juvenile court based its judgment on clear and convincing

evidence, the reviewing court examines the record to decide whether the trier of fact had

sufficient evidence before it to satisfy the appropriate degree of proof. State v. Schiebel,

55 Ohio St.3d 71, 74, 564 N.E.2d 54 (1990).

                                Appellant’s Assignment of Error

       {¶ 65} Appellant argues the juvenile court’s granting of permanent custody to

appellee was against the manifest weight of the evidence. Appellant notes the court

found, pursuant to R.C. 2151.414(E), the children could be placed with her or should not

be placed with her. In support, the court found appellant had “issues” with PTSD,

anxiety and other mental health issues, but no experts testified at the hearing and no

psychological reports were admitted. Appellant observes the only testimony as to her

mental health diagnoses was provided by the caseworker.

18.
       {¶ 66} Appellant contends, due to the lack of evidence regarding her mental health

“issues,” the court’s conclusion that these issues prevented her from parenting was not

supported by clear and convincing evidence. Likewise, appellant claims no evidence was

presented regarding the nature and extent of her cognitive difficulties, thus there was no

clear and convincing evidence that her cognitive deficiencies prevented her from

parenting.

       {¶ 67} Appellee counters the juvenile court considered the totality of the

circumstances and conducted a review of all of the evidence and files. Appellee contends

by reviewing stipulated exhibits and the testimony of the witnesses, it is evident there is

ample clear and convincing evidence to support the juvenile court’s finding that

permanent custody to appellee was in the children’s best interest. Appellee claims the

relevant factors here include R.C. 2151.414(E)(1), (4), (14) and (16). Appellee submits

the court based its decision of many factors and the record is replete with evidence

supporting the court’s position without considering appellant’s mental health.

       {¶ 68} The record shows the juvenile court concluded that J.J. has been in

appellee’s temporary custody for more than 12 months of a consecutive 22-month period.

See R.C. 2151.414(B)(1)(d). The record supports this conclusion. The court further

concluded that the children could not be returned to appellant within a reasonable time

because appellant did not remedy the conditions causing the children’s removal from the

home. See R.C. 2151.414(B)(1)(a) and R.C. 2151.414(E)(1), respectively. In making

such a decision, R.C. 2151.414(E) requires the juvenile court to consider all of the

relevant evidence, and outlines factors the court shall consider. If the court finds, by

19.
clear and convincing evidence, the existence of any one of the factors, “the court shall

enter a finding that the child cannot be placed * * * should not be placed with [the]

parent.

          {¶ 69} R.C. 2151.414(E)(1) provides:

                 Following the placement of the child outside the child’s home and

          notwithstanding reasonable case planning and diligent efforts by the agency

          to assist the parents to remedy the problems that initially caused the child to

          be placed outside the home, the parent has failed continuously and

          repeatedly to substantially remedy the conditions causing the child to be

          placed outside the child’s home. In determining whether the parents have

          substantially remedied those conditions, the court shall consider parental

          utilization of medical, psychiatric, psychological, and other social and

          rehabilitative services and material resources that were made available to

          the parents for the purpose of changing parental conduct to allow them to

          resume and maintain parental duties.

          {¶ 70} A review of the record reveals that despite participating in case plan

services, counseling and parenting programs, appellant failed to adequately and

appropriately demonstrate her ability to implement the skills necessary to care for J.J. and

B.J., anticipate and address their developmental needs, and keep them safe. The issues

which caused the children to be removed from appellant’s home included her problems

with decision-making, her challenges caring for the children and her relationship with

father, and all of these issues persist.

20.
       {¶ 71} We find the juvenile court’s conclusion that appellant failed to remedy the

conditions which caused J.J. and B.J. to be placed outside of the home is supported by

clear and convincing evidence in the record. See R.C. 2151.414(E)(1). We further find

the juvenile court properly concluded J.J. and B.J. cannot and should not be placed with

appellant. See R.C. 2151.414(B)(1)(a).

       {¶ 72} Turning to the second prong of the permanent custody analysis, the best

interest of the children, the record shows J.J. had been in his foster home for a year and a

half, almost his entire life, when appellee moved for permanent custody. B.J. had been in

the same foster home as her brother for four months, her whole life, when appellee

moved for permanent custody. The children were doing very well in their foster home

and the foster parents were very interested in adopting the children. Given the children’s

young ages, they were not able to express their wishes. The record further shows the

interaction of the children and appellant during the supervised visitations was mostly

appropriate, however appellant needed help and assistance from others several times

during each visit.

       {¶ 73} Upon review, the juvenile court considered J.J. and B.J.’s need for a legally

secure permanent placement, and recognized an award of permanent custody would

facilitate an adoptive placement. The court noted the CASA/GAL, following an

investigation, opined that permanent custody was in the children’s best interest.

Likewise, caseworker Henry recommended permanent custody as being in the children’s

best interest.

21.
       {¶ 74} The juvenile court acknowledged appellant’s love for J.J. and B.J., but

found appellant cannot independently care for the children and keep them safe. The court

also found J.J. and B.J. are in need of a legally secure placement, but appellant is unable

to provide a permanent home for the children.

       {¶ 75} Based on the foregoing, we find the juvenile court had before it clear and

convincing evidence that granting permanent custody of J.J. and B.J. to appellee was in

the children’s best interest. We further find the juvenile court’s decision to grant

permanent custody of J.J. and B.J. to appellee is supported by competent, credible

evidence and is not against the manifest weight of the evidence. Accordingly, appellant’s

assignment of error is found not-well taken.

       {¶ 76} On consideration whereof, the judgment of the Sandusky County Court of

Common Pleas, Juvenile Division, is affirmed. Appellant is ordered to pay the court costs

of this appeal pursuant to App.R. 24.

                                                                         Judgment affirmed.

       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.

Arlene Singer, J.                               ____________________________
                                                        JUDGE
Thomas J. Osowik, J.
                                                ____________________________
James D. Jensen, J.                                     JUDGE
CONCUR.
                                                ____________________________
                                                        JUDGE

22.
       This decision is subject to further editing by the Supreme Court of
  Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
       version are advised to visit the Ohio Supreme Court’s web site at:
                http://www.supremecourt.ohio.gov/ROD/docs/.

23.


                                                                                04/29/2020

            IN THE SUPREME COURT OF THE STATE OF MONTANA                              Case Number: DA 19-0142

                                        DA 19-0142

                                                                       FILED
 STATE OF MONTANA,
                                                                        APR 2 9 2020
              Plaintiff and Appellee,                                 Bowen Greenwood
                                                                    Clerk of Suprerne Court
                                                                       State of Montana

       v.                                                         ORDER

BRANDON LEE EASTERBROOKS,

              Defendant and Appellant.

      Counsel for Appellant Brandon Lee Easterbrooks filed a motion and brief asking to
be allowed to withdraw from this appeal on grounds that counsel has been unable to find
any nonfrivolous issues to raise on appeal, pursuant to § 46-8-103(2), MCA,and Anders v.
California, 386 U.S. 738, 87 S. Ct. 1396 (1967). This Court granted Easterbrooks time to
respond, but no response was filed.
      The Court has now independently examined the record pursuant to § 46-8-103(2),
MCA,and Anders. We conclude no arguments with potential legal merit can be raised in
Easterbrooks's appeal in this case.
      Therefore,                                                                 •
      IT IS ORDERED that this appeal is DISMISSED.
      The Clerk is directed to provide copies ofthis Order to all counsel of record and to
Easterbrooks personally
      DATED this ZI day of April, 2020.

                                                              Chief Justice
      6ULeAlt.
        .    „_
    -----
       e9 4vb
           ‘Justices fC
                      ----

7


280 F.Supp. 402 (1968)
DOCK LOADERS AND UNLOADERS OF FREIGHT CARS AND BARGES, ILA LOCAL UNION NO. 854, as an entity and as the representative of all of its members affected herein, and Leonard Steib, Mack Hunt, John Dunbar and Ernest Dede, Plaintiffs,
v.
W. L. RICHESON & SONS, INC., Defendant.
Civ. A. No. 66-767.
United States District Court E. D. Louisiana, New Orleans Division.
February 13, 1968.
Alvin B. Jones, Benjamin E. Smith, New Orleans, La., for plaintiffs.
Michael J. Molony, Jr., New Orleans, La., for defendant.
John W. Ormond, New Orleans, La., for General Truck Drivers, Chauffeurs, Warehousemen & Helpers, Local No. 270.
RUBIN, District Judge:
The defendant, W. L. Richeson & Sons, Inc. (Richeson), is engaged in the business of ocean freight forwarding. It handles shipments both for import and export. It employs members of both the General Truck Drivers, Chauffeurs, Warehousemen and Helpers Local No. 270 (The Teamsters) and the Dock Loaders and Unloaders of Freight Cars and Barges, ILA Local Union No. 854 (The ILA), and it has maintained a collective bargaining relationship with both unions for over ten years.
In addition to the many other phases of its business, Richeson handles the *403 shipment of large rolls of newsprint paper. In this operation, the newsprint rolls are imported into this country from Canada and Finland and discharged directly from ships onto the top floor of the Poydras Street Wharf on the river front in the City of New Orleans. This work is handled by members of the ILA employed by a stevedoring company. The paper is stored in the Poydras Street Wharf and delivered in small quantities as it is called for by the customers of the paper companies. The rolls of newsprint are shipped to customers of the companies for whom they are stored either by truck or rail car.
The work assignment in dispute in this case involves the movement of the rolls from the top floor of the Poydras Street Wharf to the trucks. Essentially, there are four separate operations involved in the movement of these paper rolls. Because of the size and weight of the rolls, they must be moved from their location on the second floor to the edge of an opening on the second floor by a forklift truck. The rolls are then hooked onto a crane and lowered by the crane operator onto the bed of the truck or rail car.[1] After the rolls are placed on the rail car or truck, they are unhooked from the crane by a Richeson employee. The basic dispute precipitating this litigation is whether the employees represented by the Teamsters or by the ILA should operate the forklift and hook and unhook the rolls of newsprint.
Prior to October, 1965, there was a ramp leading to the second floor of the defendant's facility and the rolls of newsprint were transported by forklift from the second floor storage area directly to the bed of the trucks. However, in October 1965, the ramp was removed and the present method of loading was put into effect. Under both the old and the new systems of loading, the work in dispute has been performed principally by employees represented by the Teamsters.
After the change in operation, the ILA informed the defendant that it claimed the work of operating the forklift and hooking and unhooking the rolls.
When the ILA claim was rejected, it filed a grievance pursuant to its collective bargaining agreement with the defendant.[2] This resulted in a determination by the grievance committee awarding the operation of the forklift and the hooking operation to the ILA.[3]
After the award was made, the ILA filed suit in State court alleging that the defendant had violated its collective bargaining agreement with the ILA by refusing to assign the disputed work to its members. Then plaintiffs[4] filed this action under Section 301 of the Labor-Management Relations Act of 1947[5] alleging that the defendant had breached its collective bargaining agreement with the ILA by assigning these jobs to members of the Teamsters, and by refusing to remove members of that union from the disputed jobs and to replace them with members of the ILA pursuant to the grievance committee decision. The plaintiffs sought damages and a preliminary injunction ordering the defendant to assign the disputed work to the ILA.
On February 28, 1967, the defendant advised the Teamsters that in order to protect itself from any liability arising out of the suit pending in this Court, the defendant would not employ Teamsters members to perform the disputed *404 work after March 10, 1967. On March 2, 1967, the Teamsters replied by notifying the defendant that they continued to claim the disputed work and that, in support of this claim, the union had filed a grievance under its contract with the defendant. On March 6, 1967, the Teamsters sent a telegram to the defendant stating that if the Teamsters members were not permitted to continue performing the disputed work, the union would strike and picket as of March 13, 1967. Thereafter a Section 10(l)[6] injunction proceeding was instituted in this Court; this resulted in a stipulation by the parties not to engage in acts of picketing pending the outcome of the litigation.
In the meantime, on March 7, 1967, the defendant filed an unfair labor practice charge with the National Labor Relations Board (N.L.R.B.) alleging that there was a jurisdictional dispute within the meaning of Section 8(b) (4) (ii) (D) of the National Labor Relations Act. A Section 10(k)[7] hearing was held, and, on August 1, 1967, the N.L.R.B. issued its decision awarding the work to the Teamsters. The defendant then brought the present motion "to dismiss and/or for summary judgment." It contends that (1) the N.L.R.B. decision takes precedence over the result reached by the grievance committee, and (2) since the defendant's work assignment was in accordance with the N.L.R.B. decision, it is not liable for damages under Section 301.
The defendant asserts, and the plaintiffs concede, that the N.L.R.B. determination of the work assignment dispute is a final decision for purposes of determining whether the defendant's motion is premature. The Court agrees. Any other conclusion would lead to the anomalous result of allowing the losing party in the 10(k) proceeding to prevent the employer from reaping the full benefit of that proceeding, since review of the 10(k) decision can be had only if the losing union commits an unfair labor practice[8]  an event entirely within the control of the losing union. Therefore, I turn now to a consideration of whether the action of the N.L.R.B. in awarding the disputed work to employees of the defendant represented by the Teamsters bars an award of damages to the plaintiffs.[9]
There would seem to be no question that, as between a grievance committee award of disputed jobs to certain employees and a conflicting N.L.R.B. allocation of the same jobs to different employees, the later takes "precedence." New Orleans Typographical Union No. 17 v. N.L.R.B., 5 Cir., 1966, 368 F.2d 755, 767. However, the issue before this Court is whether deference to the "precedence" given a N.L.R.B. decision requires more than that, after a N.L.R.B. decision inconsistent with a prior grievance committee award, the jobs in dispute be assigned to the employees designated by the N.L.R.B.: Does that "precedence" also require the Court to deny damages under Section 301, accruing prior to such a N.L.R.B. decision, to a union whose members were not assigned the disputed jobs despite a grievance committee award requiring such an assignment?
Counsel have cited the Court no case that deals explicitly with this question. However, the language used by the United States Supreme Court in Carey v. Westinghouse Electric Corporation, 1964, 375 U.S. 261, 84 S.Ct. 401, 11 L.Ed.2d 320, suggests that an action for damages *405 by the ILA, in the face of an award of the disputed work to the Teamsters by the N.L.R.B., is barred.
In the Carey case Westinghouse and the IUE had entered into a collective bargaining agreement under the terms of which Westinghouse agreed, inter alia, to recognize the IUE as the exclusive bargaining agent for "all production and maintenance employees" at a certain plant. The agreement also contained a grievance procedure authorizing the use of arbitration in case of unresolved disputes involving claimed violations of the agreement. The IUE filed a grievance asserting that Westinghouse was employing persons not represented by the IUE to do production and maintenance work. When Westinghouse refused to arbitrate, the IUE sought an order from the New York courts compelling arbitration. The New York courts refused. The United States Supreme Court granted certiorari and reversed. In doing so, it discussed the effect of a conflict between an arbitration award and a later N.L.R.B. decision in the following language:
"Should the Board disagree with the arbiter by ruling, for example, that the employees involved in the controversy are members of one bargaining unit or another, the Board's ruling would, of course, take precedence; and if the employer's actions had been in accord with that ruling, it would not be liable for damages under § 301." 375 U.S. at 272, 84 S.Ct. at 409.
The quoted language, of course, is dicta, for the specific issue before the Court in Carey was only whether arbitration could be compelled. However, in the absence of authority to the contrary, or of persuasive reasons for reaching the opposite result, the language of the Supreme Court commands respect.
Plaintiffs have cited no authorities reaching a result contrary to that suggested by the Supreme Court. However, they have argued that:
"To read Carey as [holding that the N.L.R.B.'s decision precludes a suit for damages sustained "prior to the work award"] would operate to establish a rule which makes compliance with labor agreements optional with the parties and does violence to the policy considerations of the Act as announced in Lincoln Mills and the established jurisprudence thereunder."
This argument fails to take adequately into account the Congressional policy enunciated in Section 10(k) that makes the statutory jurisdictional dispute procedure take precedence over contractual arbitration. If the parties were free to race to the forum, one to the arbitrator and the other to N.L.R.B., there is the counter risk that the party who successfully reached arbitration first would imperil the effectiveness of the statutory remedy by making an employer liable in damages even when his position had been correct under the standards considered appropriate by the N.L.R.B. pursuant to its statutory mandate. National policy indeed encourages arbitration, as Lincoln Mills clearly holds. National policy also requires the resolution of jurisdictional disputes under Section 10(k). Full reach cannot be given to both remedies. And it would be inconsistent to subject the party whose cause has prevailed in a final judgment under a statutory procedure to liability for damages occasioned while it was seeking its statutory remedy. Therefore, in the light of Carey, I must conclude that damages may not be recovered here. The motion for summary judgment is therefore
Granted.
NOTES
[1]  The crane is operated by an employee of Ryan Stevedoring Co., Inc. The operation of this crane is not in dispute.
[2]  The defendant is a member of the New Orleans Steamship Association, which bargains with the ILA on an association-wide basis.
[3]  The Teamsters are not a party to this collective-bargaining agreement and did not participate in the grievance proceeding.
[4]  Plaintiffs are the ILA and certain of its members, who are suing "individually and as the representatives of all of the members of [the ILA]. * * *"
[5]  29 U.S.C.A. § 185(a).
[6]  29 U.S.C.A. § 160(l).
[7]  29 U.S.C.A. § 160(k).
[8]  N. L. R. B. v. International Longshoremen's & Warehousemen's Union, 9 Cir., 1967, 378 F.2d 33; N. L. R. B. v. Local 991, International Longshoremen's Association, 5 Cir., 1964, 332 F.2d 66.
[9]  The plaintiffs no longer assert their demand for an injunction ordering defendant to employ members of the ILA in the disputed jobs. In this regard, see New Orleans Typographical Union No. 17 v. N. L. R. B., 5 Cir., 1966, 368 F.2d 755.


20 Cal.App.4th 948 (1993)
24 Cal. Rptr.2d 582
LARRY POASTER, as Public Guardian, etc., Petitioner,
v.
THE SUPERIOR COURT OF STANISLAUS COUNTY, Respondent; COUNTY OF STANISLAUS, Real Party in Interest.
Docket No. F018643.
Court of Appeals of California, Fifth District.
November 30, 1993.
*949 COUNSEL
Michael H. Krausnick, County Counsel, and Harry P. Drabkin, Deputy County Counsel, for Petitioner.
No appearance for Respondent.
Daniel E. Lungren, Attorney General, Roderick E. Walston, Chief Assistant Attorney General, Carol Ann White and Mary Jane Hamilton, Deputy Attorneys General, for Real Party in Interest.
*950 OPINION
ARDAIZ, J.

FACTS AND PROCEDURAL HISTORY
The County of Stanislaus brought an action on behalf of Kayla Marie L. (hereinafter Kayla) against Robert Wayne L. (hereinafter Robert) to establish that Robert is the father of Kayla, and to obtain reimbursement from Robert for public assistance moneys allegedly paid by the county for the support of Kayla. Robert, the alleged father, was himself a minor. No one petitioned to be appointed as a guardian ad litem to appear on behalf of Robert in the action. The district attorney therefore petitioned the superior court to have a guardian ad litem appointed to appear on behalf of Robert. The court, acting upon the petition, appointed the Public Guardian of Stanislaus County to be the guardian ad litem of the minor defendant Robert.
The public guardian was given no advance notice of his appointment as Robert's guardian ad litem. After learning of the appointment, the public guardian filed a motion to vacate the appointment. The motion was made upon the ground that the court had no jurisdiction to appoint the public guardian to be Robert's guardian ad litem, and requested that the order of appointment be vacated. The court denied the motion.
The public guardian then petitioned this court for a writ of mandamus directing the superior court to vacate its order denying the public guardian's motion to vacate the appointment. We issued an order to show cause.

DISCUSSION
There is no dispute that a minor defendant cannot appear in a civil action except by a guardian of the estate or a guardian ad litem. Code of Civil Procedure section 372 provides in relevant part: "When a minor, an incompetent person, or a person for whom a conservator has been appointed is a party, such person shall appear either by a guardian or conservator of the estate or by a guardian ad litem appointed by the court in which the action or proceeding is pending, or by a judge thereof, in each case. A guardian ad litem may be appointed in any case when it is deemed by the court in which the action or proceeding is prosecuted, or by a judge thereof, expedient to appoint a guardian ad litem to represent the minor, incompetent person, or person for whom a conservator has been appointed, notwithstanding that such person may have a guardian or conservator of the estate and may have appeared by the guardian or conservator of the estate. The guardian or *951 conservator of the estate or guardian ad litem so appearing for any minor, incompetent person, or person for whom a conservator has been appointed shall have power, with the approval of the court in which the action or proceeding is pending, to compromise the same, to agree to the order or judgment to be entered therein for or against the ward or conservatee, and to satisfy any judgment or order in favor of the ward or conservatee or release or discharge any claim of the ward or conservatee pursuant to such compromise."
The terms "guardian" and "guardian of the estate" and "guardian ad litem" are not expressly defined by any California statute. One of the purposes of California's "Guardianship-Conservatorship Law" (Prob. Code, § 1400 et seq.) was "to limit guardianships to minors and to retain conservatorships for adults." (14 Cal. Law Revision Com. Rep. (Dec. 1978) p. 509; see also 12 Witkin, Summary of Cal. Law (9th ed. 1990) Wills and Probate, § 821.) Black's Law Dictionary (6th ed. 1990) page 706, defines "guardian" as "A person lawfully invested with the power, and charged with the duty, of taking care of the person and managing the property and rights of another person, who, for defect of age, understanding, or self-control, is considered incapable of administering his own affairs. One who legally has responsibility for the care and management of the person, or the estate, or both, of a child during its minority." Black's Law Dictionary also points out that: "A general guardian is one who has the general care and control of the person and estate of a ward; while a special guardian is one who has special or limited powers and duties with respect to a ward, e.g., a guardian who has the custody of the estate but not of the person, or vice versa, or a guardian ad litem." (Ibid.)[1] A "guardian ad litem" is "... a special guardian appointed by the court in which a particular litigation is pending to represent an infant, ward or unborn person in that particular litigation, and the status of guardian ad litem exists only in that specific litigation in which the appointment occurs." (Black's Law Dict., supra, p. 706.)
The procedure by which a guardian ad litem is appointed for a minor defendant is set forth in Code of Civil Procedure section 373, which states in relevant part:
"When a guardian ad litem is appointed, he or she shall be appointed as follows:
".... .... .... .... .... .... ....
*952 "(b) If the minor is the defendant, upon the application of the minor, if the minor is of the age of 14 years, and the minor applies within 10 days after the service of the summons, or if under that age, or if the minor neglects to apply, then upon the application of a relative or friend of the minor, or of any other party to the action, or by the court on its own motion."
(1a) Petitioner contends that the superior court exceeded its powers in appointing the public guardian as a guardian ad litem for a minor defendant in this action. We disagree.
Government Code section 27430 authorizes a county board of supervisors to create the office of public guardian.[2] The public guardian's duties are described in Probate Code section 2920, which states:
"If any person domiciled in the county requires a guardian or conservator and there is no one else who is qualified and willing to act and whose appointment as guardian or conservator would be in the best interest of the person:
"(a) The public guardian may apply for appointment as guardian or conservator of the person, the estate, or the person and estate.
"(b) The public guardian shall apply for appointment as guardian or conservator of the person, the estate, or the person and estate, if the court so orders. The court may make an order under this subdivision on motion of an interested person or on the court's own motion in a pending proceeding or in a proceeding commenced for that purpose. The court shall not make an order under this subdivision except after notice to the public guardian for the period and in the manner provided in Chapter 3 (commencing with Section 1460) of Part 1, consideration of the alternatives, and a determination by the court that the appointment is necessary. The notice and hearing under this subdivision may be combined with the notice and hearing required for appointment of a guardian or conservator."[3]
Petitioner argues that because subdivisions (a) and (b) of Probate Code section 2920 use the phrase "guardian ... of the person, the estate, or the person and the estate," the court is powerless to appoint a public guardian to serve only in the limited capacity of a guardian ad litem. We do not agree. In *953 our view, when a minor has had a "guardian of the estate" appointed to manage the minor's estate, the precise reason why Code of Civil Procedure section 372 expressly allows the minor to "appear ... by" that guardian, without the additional appointment of a guardian ad litem, is that the guardian of the estate already possesses the powers of a guardian ad litem. The powers held by a guardian ad litem to act on behalf of a minor in a civil action are included within the powers held by guardian of the estate to manage the minor's financial affairs. Because the court unquestionably has the power, under Probate Code section 2920, to appoint the public guardian to serve as a guardian of the minor's estate, we conclude that the court also has the power to appoint the public guardian to exercise a portion of the powers of a guardian of the estate (namely the powers of a guardian ad litem) under the appropriate circumstances.[4]
Further, petitioner appears to conclude that the terms "guardian" and "guardian ad litem" are separate legal entities. However, the designation of "ad litem" appended to the designation of guardian generally defines the powers or obligations of the guardian. (2), (1b) In effect, the designation of a guardian ad litem is the appointment of a guardian with limited powers.[5] Thus, the definition of a guardian ad litem is one form of a special guardian which is a guardian with limited powers. (Black's Law Dict., supra, at p. 706). The form of the designation generally defines the powers. This is illustrated by other special guardians. For example, a "guardian by appointment of court" was, at common law, a guardian who had "custody of the infant until the attainment of full age." (Black's Law Dict. (rev. 4th ed. 1968) at p. 834.) A "guardian by nature" was "the father, and, on his death, the mother, of a child." (Black's Law Dict. (6th ed. 1990) at p. 706.) This guardianship extended "only to the custody of the person of the child to the age of majority." (Ibid.) A "guardian for nurture" was "the father, or, at his decease, the mother of a child." (Id. at p. 707.) This kind of guardianship "at common law extended only to the person, and ended when the infant arrived at the age of fourteen." (Ibid.)[6] Therefore, we determine the word "guardian" in the first clause of Probate Code section 2920 can thus be construed as *954 including within it the term "guardian ad litem," to the extent the guardian's powers are so restricted.
We also emphasize that any appointment of a public guardian as guardian ad litem should comply with the procedural requirements of Probate Code section 2920, as well as with the more general procedural requirements (for appointment of any guardian ad litem) of Code of Civil Procedure section 373.[7] Finally, we deem it prudent to mention that this petition for extraordinary relief does not raise, and we expressly do not address, the issue of when a minor's natural parent may be excused from acting as guardian ad litem in favor of a public guardian.
The order to show cause is discharged. The petition is denied.
Stone (W.A.), Acting P.J., and Vartabedian, J., concurred.
NOTES
[1]  Probate Code section 2401, subdivision (a), points out that a guardian of the estate "has the management and control of the estate...." (See also Prob. Code, § 2400, subd. (b); and 1 Johnstone & House, Cal. Conservatorships and Guardianships (1993) §§ 2.33 & 2.37.) Similarly, Probate Code section 2351, subdivision (a), states that a guardian of the person "has the care, custody, and control of, and has charge of the education of, the ward...." (See also Prob. Code, § 2350, subd. (b); and 1 Johnstone & House, supra, at § 2.30.)
[2]  Subdivision (a) of Government Code section 27430 states: "In any county the board of supervisors may by ordinance create the office of public guardian and subordinate positions which may be necessary and fix compensation therefor."
[3]  Probate Code section 2900, not applicable here, expressly permits the public guardian to take possession or control of property of a minor in some circumstances even before the public guardian is appointed as guardian of the minor's estate, so long as the public guardian intends to apply for appointment.
[4]  For a discussion of the powers held by a guardian ad litem, see, in addition to Code of Civil Procedure section 372 itself, Berry v. Chaplin (1946) 74 Cal. App.2d 652, 657-658 [169 P.2d 442], J.W. v. Superior Court (1993) 17 Cal. App.4th 958, 964-965 [22 Cal. Rptr.2d 527], and 4 Witkin, Cal. Procedure (3d ed. 1985) Pleading, sections 65 and 66. We recognize that, just as Code of Civil Procedure section 372 itself states, a court may in some circumstances appoint a guardian ad litem even though a minor of the guardian's estate has already been appointed.
[5]  "Ad litem" means "[f]or the suit; for the purposes of the suit; pending the suit." (Black's Law Dict., supra, at p. 43.)
[6]  Another purely historical example of limited powers by designation was a "guardian in chivalry." This special guardianship arose as the result of service to a knight. "In the tenure by knight's service, in the feudal law, if the heir of the feud was under the age of twenty-one, being a male, or fourteen, being a female, the lord was entitled to the wardship (and marriage) of the heir, and was called the `guardian in chivalry.' This wardship consisted in having the custody of the body and lands of such heir, without any account of the profits." (Ibid.) There does not appear to be much call for such a special guardianship under our present system.
[7]  Probate Code section 2920, subdivision (b), provides as noted in pertinent part: "The court shall not make an order under this subdivision except after notice to the public guardian for the period and in the manner provided in Chapter 3 (commencing with Section 1460) of Part 1...." The petition does not challenge the appointment here on lack of notice. We do not, therefore, address whether there may be any deficiency in the procedure followed. Rather, petitioner rests his challenge upon the power of the court generally.


IRVIN V. PARKER

COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO.  2-02-258-CV

W. RAY IRVIN, JR.	APPELLANT

V.

LORETTA PARKER	APPELLEE

------------

FROM COUNTY COURT AT LAW NO. 1 OF WICHITA COUNTY

------------

OPINION

------------

This case involves a property dispute between Appellee Loretta Parker, the sister of Noma Bishop Irvin, deceased, in her capacity as the administratrix of Noma’s estate, and Appellant Ray Irvin, Noma’s widower.  Ray appeals the portion of the trial court’s judgment ordering Prudential Insurance Company of America to turn over to Loretta the proceeds of an annuity purchased during Ray and Noma’s marriage.  In four issues, Ray asserts that the evidence is legally and factually insufficient to support the jury’s finding that the Prudential annuity was purchased with Noma’s separate property funds, and he argues that the trial court erred in admitting a prior pleading as an admission against interest and in charging the jury with respect to the abandoned pleading.  We affirm in part and reverse and remand in part.

I.  FACTUAL AND PROCEDURAL BACKGROUND

Noma owned and inherited substantial property when her first husband Garland Bishop died in 1965.  Noma later married Ray in 1968 and remained married to him until her death in May 1998.  At the time of Noma’s death, her will named her brother-in-law, Bobby Joe Parker as the executor, but it did not name an alternate executor.  But because Bobby Joe Parker had died in 1993, Noma’s sister, Loretta, applied to be the administratrix of Noma’s estate when Noma died.  On July 28, 1998, the trial court signed an order admitting Noma’s will to probate and appointing Loretta as the will’s administratrix.

Under the terms of Noma’s will, her estate passed to Loretta, Loretta’s siblings, and Loretta’s children.  On December 11, 1998, Loretta filed a petition to recover property belonging to Noma’s estate and requested, among other things, that Ray return two certificates of deposit totaling $70,000 and $75,000 that Loretta alleged were Noma’s separate property.  Through discovery, Loretta determined that the $75,000 had been used to purchase an annuity from Prudential.  On October 18, 1999, Loretta filed a petition against Ray and Prudential, asserting that Ray had taken $75,000 of Noma’s separate property, purchased an annuity from Prudential in 1996, made himself the owner of the annuity, and thereby converted Noma’s separate property.

On December 17, 2001, Ray, Loretta, and Prudential signed an agreement regarding the annuity issued to Ray in 1996.  Prudential acknowledged that although Ray claimed he was entitled to the proceeds of the annuity, Loretta likewise claimed that she was entitled to the annuity because she alleged that the annuity was purchased with Noma’s separate property.  The parties agreed that the claims were adverse and conflicting and would be determined in the pending lawsuit.  Prudential further agreed to freeze the annuity and to distribute the annuity and its proceeds only when presented with the trial court’s final determination of who was entitled to the funds from the annuity.  Loretta then nonsuited Prudential, and Loretta and Ray agreed not to name Prudential as a defendant in the pending lawsuit.

In February 2002, Loretta tried her case against Ray.  During trial, Loretta offered evidence that on October 18, 1993, Noma and Ray opened AmWest Savings Association account number 11-136970-0 with a $75,000 deposit. The name on the account was “W. Ray Irvin, Jr. or Noma G. Irvin, Trustees for Loretta Parker.”  Thomas Barber, who is a certified public accountant, testified for Loretta as a tracing expert and stated that the account was set up as a revocable trust.  Barber testified that, on October 19, 1994, Ray withdrew $75,006.98 from AmWest Account No. 11-136970-0 by obtaining a check made payable to “W RAY IRVIN JR OR NOMA G IRVIN TRUSTEES FOR LORETTA PARKER.”

On the same day, Noma and Ray opened account number 132700348 at Guaranty Federal Bank, and it was also named “W RAY IRVIN OR NOMA G IRVIN ITF LORETTA PARKER.”  Barber testified that five days later, on October 24, Ray deposited $75,000 in the Guaranty Federal account.  Then, on January 24, 1996, Ray withdrew $75,046.24 from the Guaranty Federal account and purchased the annuity at issue from Prudential Insurance Company.

Purdom Keeling, the Prudential representative who sold Noma and Ray the annuity, testified that he primarily worked with Ray in persuading them to purchase the annuity.  Keeling testified that when he sold the annuity, Noma pulled out the checkbook, and Ray signed the check.
(footnote: 1)  The Prudential annuity listed Noma and Ray as co-annuitants, Ray as the sole owner of the annuity, and Loretta as the beneficiary, if living, and Ray’s estate as the alternate beneficiary.

Ray testified that he and Noma received $500 a month from the Prudential annuity.  Ray stated that shortly after Noma’s death, the Prudential annuity was garnished, and he was “not getting any good out of it.”  While he offered no testimony as to the present value of the Prudential annuity at the time of trial, in a portion of Ray’s deposition that was read to the jury, Ray estimated the present value of the annuity on February 9, 1999 to be approximately $70,000.

As we discuss more fully below, Loretta and Ray presented competing evidence and arguments as to the origin of the purchase money for the Prudential annuity.  Loretta attempted to trace the $75,000 purchase money back to Noma’s separate property while Ray offered evidence to suggest that Loretta could not trace the funds back to Noma’s separate property and that the purchase money was presumed to have come from the couple’s community estate.

After considering all of the evidence and testimony before it, the jury answered Question One as follows:

Do you find from clear and convincing evidence, that the Prudential Annuity was purchased with separate property funds of Noma Bishop Irvin?

Answer: Yes.

The jury also determined that Noma did not knowingly consent to Ray being the owner of the Prudential annuity on the date of purchase.  Based on these findings, the trial court signed a judgment ordering Prudential to turn over the proceeds of the annuity to Noma’s estate.
(footnote: 2)
II.  ABANDONED PLEADING

Before turning to Ray’s sufficiency complaints, we will address his fourth issue concerning whether the trial court erred in admitting a prior pleading as an admission against interest and by charging the jury on the admission in the abandoned pleading.  In Ray’s response to Loretta’s petition to recover estate property, Ray pleaded, “The C.D. which appears to have been the separate property of Noma was used to purchased [sic] a Prudential annuity (copy attached).”

When Loretta offered the abandoned pleading at trial, the court conducted a bench conference concerning its admissibility.  At the conclusion of the conference, both sides agreed that the abandoned pleading was admissible for a limited purpose, and Ray stated that he had ”[n]o objection” to the abandoned pleading’s admission.
See generally

Long v. Knox
, 155 Tex. 581, 291 S.W.2d 292, 294 (1956) (“[A]n admission against interest in an abandoned pleading may be used in evidence against the pleader, but is not conclusive.” );
Kirk v. Head
, 137 Tex. 44, 152 S.W.2d 726, 729 (1941);
Hughes v. Fort Worth Nat’l Bank
, 164 S.W.2d 231, 232 (Tex. Civ. App.—Fort Worth 1942, writ ref’d).  Because Ray withdrew his objection to the admissibility of the abandoned pleading and therefore did not obtain a ruling from the trial court concerning the issue that he now raises on appeal, we conclude that Ray waived his complaint concerning the admissibility of his abandoned pleading.
(footnote: 3)
Tex. R. App. P.
 33.1(a);
see also

Tex. R. Evid.
 103(a)(1);
Bushell v. Dean
, 803 S.W.2d 711, 712 (Tex. 1991) (op. on reh’g).

Further, we hold that Ray failed to preserve any error with respect to the abandoned pleading jury instruction because he did not object to the charge concerning that instruction.
See

Tex. R. Civ. P.
 274 (“Any complaint as to a question, definition, or instruction, on account of any defect, omission, or fault in pleading, is waived unless specifically included in the objections.”);
State Dep’t of Highways & Pub. Transp. v. Payne
, 838 S.W.2d 235, 239-41 (Tex. 1992);
Wilgus v. Bond
, 730 S.W.2d 670, 672 (Tex. 1987).  Accordingly, we overrule issue four.

III.  SUFFICIENCY OF THE EVIDENCE

In his first three issues, Ray challenges the legal and factual sufficiency of the evidence to support the jury’s finding in question one that the Prudential annuity was purchased with Noma’s separate property funds.  Specifically, Ray maintains that Loretta failed to trace the money used to purchase the annuity back to Noma’s separate property and thereby failed to overcome the presumption that, at the time of Noma’s death, the Prudential annuity was included in the community estate.
See

Tex. Fam. Code Ann.
 § 3.003(a) (Vernon 1998).  We agree.

A.	Characterization of Property

Property possessed by either spouse during or on the dissolution of marriage is presumed to be community property.
Id
.;
Boyd v. Boyd
, 131 S.W.3d 605, 612 (Tex. App.—Fort Worth 2004, no pet.);
Evans v. Evans
, 14 S.W.3d 343, 346 (Tex. App.—Houston [ 14
th
 Dist.] 2000, no pet.).  This presumption applies not only to dissolution by divorce, but also by death.
Lee v. Lee
, 43 S.W.3d 636, 641 (Tex. App.—Fort Worth 2001, no pet.);
Evans
, 14 S.W.3d at 346;
Smith v. Lanier
, 998 S.W.2d 324, 331 (Tex. App.—Austin 1999, pet. denied).  To overcome this presumption, a party claiming certain property as separate property must establish by clear and convincing evidence the separate character of the property through tracing.
Tex. Fam. Code Ann.
 § 3.003(b);
Boyd
, 131 S.W.3d at 612 (citing
McElwee v. McElwee
, 911 S.W.2d 182, 188 (Tex. App.—Houston [1
st
 Dist.] 1995, writ denied));
Evans
, 14 S.W.3d at 346.

Separate property will retain its character though a series of exchanges so long as the party asserting separate ownership can overcome the community presumption by tracing the assets on hand during the marriage back to property that, because of its time and manner of acquisition, is separate in character.
Cockerham v. Cockerham
, 527 S.W.2d 162, 167 (Tex. 1975);
Boyd
, 131 S.W.3d at 612 (“Tracing involves establishing the separate origin of the property through evidence showing the time and means by which the spouse originally obtained possession of the property.”);
Evans
, 14 S.W.3d at 346.  On the other hand, if the evidence shows that separate and community property have become so commingled as to defy resegregation and identification, the community presumption prevails.
Boyd
, 131 S.W.3d at 612.  As a general rule, mere testimony that property was purchased with separate funds, without any tracing of the funds, is insufficient to rebut the community presumption.
Id
. (citing
Zagorski v. Zagorski
, 116 S.W.3d 309, 316 (Tex. App.—Houston [14
th
 Dist.] 2003, pet. denied) (op. on reh’g)).  We resolve any doubt as to the character of property in favor of the community estate.
Id
. (citing
Akin v. Akin
, 649 S.W.2d 700, 703 (Tex. App.—Fort Worth 1983, writ ref’d n.r.e.)).

While the burden of tracing is difficult, it is not an impossible burden to sustain.
Id.
;
Latham v. Allison
, 560 S.W.2d 481, 484 (Tex. Civ. App.—Fort Worth 1977, writ ref’d n.r.e.).  “Whether the presumption as to the community character of marital property is overcome is a question for the jury.”
Lanier
, 998 S.W.2d at 332 (citing
Orrill v. Orrill
, 271 S.W.2d 173, 175-76 (Tex. Civ. App.—Texarkana 1954, no writ)).

B.	Standards of Review

Because the burden of proof at trial was clear and convincing evidence, on appeal we apply higher standards of legal and factual sufficiency review than is ordinarily employed in civil cases.
Tex. Fam. Code Ann.
 § 3.003(b);
In re J.F.C.
, 96 S.W.3d 256, 265-66 (Tex. 2002);
In re C.H
., 89 S.W.3d 17, 25-26 (Tex. 2002);
Boyd
, 131 S.W.3d at 611;
Zagorski
, 116 S.W.3d at 313-14.  In reviewing the evidence for legal sufficiency, we must determine “whether the evidence is such that a factfinder could reasonably form a firm belief or conviction” that the separate property characterization was proven.
J.F.C.
, 96 S.W.3d at 265-66.  We must review all the evidence in the light most favorable to the finding and judgment.
Id.
 at 266.  This means that we must assume that the factfinder resolved any disputed facts in favor of its finding if a reasonable factfinder could have done so.
Id.
  We must also disregard all evidence that a reasonable factfinder could have disbelieved.
Id.
  We must consider, however, undisputed evidence even if it does not support the finding.
Id.

C.	Application of Law to the Facts

We begin with the presumption that the $75,000 used to purchase the Prudential annuity is properly characterized as community property.
See

Tex. Fam. Code Ann.
 § 3.003(a);
Boyd
, 131 S.W.3d at 612;
Evans
, 14 S.W.3d at 346.  Loretta argues that she overcame the community presumption by establishing with clear and convincing evidence the separate character of the annuity’s funds through tracing.
See

Tex. Fam. Code Ann.
 § 3.003(b);
Boyd
, 131 S.W.3d at 611-12;
Evans
, 14 S.W.3d at 346;
McElwee
, 911 S.W.2d at 189.  For the following reasons, we disagree.

Loretta first points out that Ray did not object to the inventory, appraisement, and list of claims she filed on behalf of Noma’s estate, and which was approved by the trial court, that listed a claim against Ray for $75,000 “for conversion of separate property funds of Noma Bishop Irvin which were used by W. Ray Irvin, Jr. to purchase [the Prudential annuity].”  She argues that although the approval of an inventory and appraisement is not conclusive of the title to the property listed in such, it is prima facie proof of that fact.
See Krueger v. Williams
, 163 Tex. 545, 359 S.W.2d 48, 50 (1962);
Garner v. Long
, 106 S.W.3d 260, 266 (Tex. App.—Fort Worth 2003, no pet.);
see also Robles v. Robles
, 965 S.W.2d 605, 620-21 (Tex. App.—Houston [1
st
 Dist.] 1998, pet. denied) (op. on reh’g) (stating that inventory is not conclusive evidence of property’s character);
Balaban v. Balaban
, 712 S.W.2d 775, 779 (Tex. App.—Houston [1
st
 Dist.] 1986, writ ref’d n.r.e.) (stating that “county court cannot change ownership of property by simply approving an inventory,” which is not conclusive evidence of title).

Next, Loretta argues that the jury could have considered Ray’s abandoned pleading, in which he pleaded in pertinent part:  “The C.D. which appears to have been the separate property of Noma was used to purchased [sic] a Prudential annuity (copy attached).”  We first observe that Ray qualified his admission against interest in his abandoned pleading by stating that the Prudential annuity was purchased with property that “appear[ed] to have been” Noma’s separate property.  Moreover, as we stated above, while an admission against interest in an abandoned pleading may be used in evidence against the pleader, it is not conclusive of the fact asserted.
See

Knox
, 155 Tex. 581, 291 S.W.2d at 294;
Kirk
, 137 Tex. 44, 152 S.W.2d at 729;
Hughes
, 164 S.W.2d at 232.

Loretta also argues that the jury heard Ray repeatedly admit in his deposition that the money used to purchase the Prudential annuity was Noma’s.  Loretta directs us to portions of Ray’s deposition testimony, in which he was asked whose $75,000 was used to buy the annuity, and Ray responded, “It was Noma’s money.”  But Ray denied knowing that she had inherited the $75,000 used to purchase the Prudential annuity.  Ray stated, “I don’t know about inherited,” but said, “It was hers, and that’s acknowledged.”  Even assuming that this testimony may be interpreted as referring to the money used to purchase the annuity as the same money she inherited, which is not clear, in most cases, mere testimony that property was purchased with separate funds, without any tracing of the funds, is insufficient to rebut the community presumption.
See Schmeltz v. Garey
, 49 Tex. 49, 60-61 (Tex. 1878);
Boyd
, 131 S.W.3d at 614;
Zagorski
, 116 S.W.3d at 316;
Ganesan v. Vallabhaneni
, 96 S.W.3d 345, 354 (Tex. App.—Austin 2002, pet. denied);
Osorno v. Osorno
, 76 S.W.3d 509, 512 (Tex. App.—Houston [14
th
 Dist.] 2002, no pet.);
Bahr v. Kohr
, 980 S.W.2d 723, 728-29 (Tex. App.—San Antonio 1998, no pet.);
Robles
, 965 S.W.2d at 616;
McElwee
, 911 S.W.2d 189;
 see also Mendoza v. Fid. & Guar. Ins. Underwriters, Inc
., 606 S.W.2d 692, 694 (Tex. 1980) (stating that testimonial declarations which are contrary to a party’s position are merely some evidence and generally are not conclusive upon the admitter).

Here, we cannot hold that the trial court’s approval of Loretta’s inventory and appraisement, the abandoned pleading, and Ray’s testimony collectively constitute legally sufficient evidence to rebut the community presumption as applied to the funds used to purchase the Prudential annuity.  Well-established case law requires that the party seeking to rebut the community presumption must trace the assets on hand during the marriage back to property that, because of its time and manner of acquisition, is separate in character.
Cockerham
, 527 S.W.2d at 167;
Boyd
, 131 S.W.3d at 612.  Thus, taking into consideration the approved inventory and appraisement, Ray’s abandoned pleading, and his testimony, we must review the evidence to determine whether Loretta corroborated these assertions by tracing the funds used to purchase the Prudential annuity to Noma’s separate property.

As we detailed above, Loretta’s tracing expert, Thomas Barber, testified about AmWest Savings account number 11-136970-0 and used bank records to show how the $75,000 in the AmWest account eventually was used to purchase the Prudential annuity.
(footnote: 4)  On cross-examination, however, Barber conceded that he did not know the source of the $75,000 used to open AmWest Savings account number 11-136970-0 in October 1993.  Moreover, Barber agreed that he was not able to testify as to “what the nature of that property might be.”  Thus, while Loretta’s own tracing expert followed the documentary evidence pertaining to AmWest Savings account number 11-136970-0
after
 it was created in October 1993, he did not offer any evidence tracing the initial $75,000 back to Noma’s separate property.

In her brief, Loretta asks the rhetorical question, “[W]here did the money come from to buy the significant assets of Ray and Noma Irvin, including the Prudential annuity?”  Loretta argues that because Noma never worked outside the house during her marriage to Ray, she brought into her marriage with Ray only the funds she inherited when her first husband died.  Loretta also argues that the evidence at trial demonstrated that Ray “never earned any money so to speak of during their marriage[,] [a]nd he did not have any assets of any significance.”  Loretta concludes that the “only reasonable inference” the jury could draw concerning the $75,000 at issue is that the money came from Noma’s separate property.  We reject this contention.

Loretta testified that, over the course of the couple’s thirty-year marriage,

Noma never worked outside the house but that Ray was involved in the real estate business.  Through the testimony of Noma’s and the Garland Bishop Estate’s CPA, Jerry Mathis, Loretta established that when Garland Bishop died, his and Noma’s combined community property estate was valued at around $256,000.  Mathis testified that, among other assets, the Garland Bishop Estate continued to operate a partnership business through 1988.  Mathis, relying on income tax returns, testified to various distributions from the Garland Bishop Estate made to Noma during her marriage to Ray.  Mathis, however, testified that portions of the distributions were principal, and other portions constituted income.  For example, in 1986, Noma received a $98,180.77 distribution.  Mathis testified that $11,098.56 was income and the remaining $87,082.21 was principal.  Mathis produced and testified on only seven income tax returns that the Garland Bishop Estate filed during the twenty-three years it operated its partnership business.  For the other sixteen years, Mathis made assumptions as to how much money was distributed.

Loretta testified that the only assets Ray brought into the marriage were an old Pontiac and an office building on Tenth Street.  While Ray stated in his deposition that until he retired around 1990, he was involved in “[s]ome little real estate activity” that was “not much of anything,” at trial Ray testified more specifically about the sources of his income during his marriage to Noma.  Ray testified that Noma did not receive social security, but he earned around $580 a month in social security.  Ray also testified that he had a promissory note on a piece of property at 1910 Collins that generated roughly $350 a month. Additionally, Ray said he earned $300 a month from property at 2417 Tenth Street.  While married to Noma, Ray sold his mother’s house on Cedar and personal belongings for $18,000.
(footnote: 5)
 Aside from the purchase price of Ray’s mother’s house, Loretta did not dispute any of Ray’s testimony concerning his sources of income during his marriage to Noma.
See

id
. (stating that, under a legal sufficiency review, we must consider undisputed evidence even if it does not support the challenged finding).

Loretta produced no evidence suggesting that Ray and Noma segregated Noma’s separate property from the rest of the couple’s money, and the evidence produced demonstrates a complete lack of separate treatment of the couple’s property.  Loretta produced no bank records or documentary evidence showing when all of Loretta’s separate funds came into the marriage, how they were segregated from the community estate, and whether separate funds were transferred from accounts containing both Noma’s separate property and Ray and Noma’s community property.
See

Bahr
, 980 S.W.2d at 729;
Anderson v. Gilliland
, 677 S.W.2d 105, 107 (Tex. App.—Dallas 1984),
rev’d on other grounds
, 684 S.W.2d 673 (Tex. 1985) (affirming court of appeals’s holding that separate funds were not properly traced).  Further, Loretta produced no evidence to corroborate Ray’s testimony as to what type of property was used to purchase the Prudential annuity.
See Schmeltz
, 49 Tex. at 60-61;
Boyd
, 131 S.W.3d at 616;
Zagorski
, 116 S.W.3d at 316;
Ganesan
, 96 S.W.3d at 354;
Osorno
, 76 S.W.3d at 512;
Bahr
, 980 S.W.2d at 728-29;
Robles
, 965 S.W.2d at 616;
McElwee
, 911 S.W.2d at 189.  “When tracing separate property, it is not enough to show that separate funds
could
 have been the source of a subsequent deposit of funds.  Such conjecture does not constitute sufficient evidence to sustain appellant’s burden of tracing to overcome the community property presumption.”
Latham
, 560 S.W.2d at 485 (emphasis supplied);
see McKinley v. McKinley
, 496 S.W.2d 540, 543-44 (Tex. 1973).  In short, based on the evidence before it, the jury was left to rely on surmise and speculation to reach the finding that the funds used to purchase the Prudential annuity came from Noma’s separate property—a leap that is impermissible under the law.
See McKinley
, 496 S.W.2d at 543-44;
Latham
, 560 S.W.2d at 485.

Loretta may have produced some evidence at trial that Noma’s separate property funds were used to purchase the Prudential annuity, but this is not enough to constitute clear and convincing evidence.
See J.F.C.
, 96 S.W.3d at 264-65 (“Requiring only ‘[a]nything more than’ a mere scintilla of evidence does not equate to clear and convincing evidence.”).  We have carefully reviewed the record, and under the applicable standard of review, giving due deference to the jury’s determinations, we conclude that the evidence is legally insufficient to establish that the Prudential annuity was purchased with Noma’s separate property funds.
See id.
 at 265-66;
Boyd
, 131 S.W.3d at 611-12.  Accordingly, we sustain Ray’s first issue.
(footnote: 6)
IV.  CONCLUSION

Having sustained Ray’s first issue, we reverse the trial court’s judgment insofar as it orders Prudential to turn over the proceeds of the annuity to Noma’s estate.  Because Loretta failed to prove by legally sufficient evidence that the Prudential annuity was purchased with funds from Noma’s separate property, the community presumption governs the characterization of the Prudential annuity.
See

Tex. Fam. Code Ann.
 § 3.003(a);
Boyd
,131 S.W.3d at 612;
Evans
, 14 S.W.3d at 346.  We remand the case for a distribution of the Prudential annuity and its proceeds in accordance with the terms of Noma’s will concerning her one-half community interest.  We affirm the judgment in all other respects.

ANNE GARDNER

JUSTICE

PANEL A:	CAYCE, C.J.; HOLMAN and GARDNER, JJ.

DELIVERED:  June 17, 2004

FOOTNOTES
1:During trial, Loretta offered considerable medical evidence regarding Noma’s declining physical and mental health over the last ten years of her life to show that she was dependant on her husband and that she did not fully understand her financial dealings.  But Keeling testified that, in his dealings with Noma, he did not see any indication that she was unable to function mentally.

2:The trial court’s judgment also disposes of other property, but Ray’s appeal concerns only the portion of the judgment pertaining to the Prudential annuity.

3:In fact, after Ray’s counsel asked the trial court to explain to the jury the circumstances surrounding the limited admissibility of the abandoned pleading, Ray’s counsel added to the trial court’s and Loretta’s counsel’s explanations, stating in open court, “And I believe, your Honor, that the case -- that while that might be admitted, it’s not conclusive evidence.”  The trial court responded, “Correct.”  Thus, even if we determined that Ray did not waive any error in the abandoned pleading’s admission, it could be argued that Ray invited the error of which he now complains.
See Gen. Chem. Corp. v. De La Lastra
, 852 S.W.2d 916, 920 (Tex. 1993).

4:Barber also traced AmWest Savings account number 11-136605-2, which was opened on December 13, 1991 with a $70,000 deposit.  Barber testified that on December 21, 1992, Ray withdrew $70,172.37 from AmWest account number 11-136605-2 and purchased an annuity from Ford Life Insurance Company, which later became Sun America Life Insurance Company. Barber testified that on December 29, 1997, Ray received a check totaling $70,007.53 from Sun America payable to Ray and Noma.  On January 14, 1998, Ray endorsed the $70,007.53 Sun America check and deposited it plus an additional $5,000 into account number 189495215 at First American Bank.  That account was styled “W. Ray Irvin P.O.D. Noma G. Irvin or Loretta Parker.”  Roughly one month after Noma died in May 1998, Ray changed the First American Bank account to “W. Ray Irvin P.O.D. David Paul Irvin,” who is Ray’s son.  Barber testified that in July 1998 Ray withdrew $55,000.00 and $5,000 from another account to purchase a house.  Ray later withdrew the balance of First American Bank account number 189495215 and purchased a CD at DFW Musicians Credit Union.  Barber conceded that he did not know the source of the funds deposited in AmWest account number 11-136605-2.

5:Ray testified that he sold it for $75,000, but under the applicable standard of review, we look to the evidence of the buyer’s testimony and the deed showing a purchase price of $18,000.
See

J.F.C.
, 96 S.W.3d at 266.

6:In light of our disposition of Ray’s first issue, we do not address his second or third issues.
See
Tex. R. App. P.
 47.1 (stating opinion need only address every issue necessary to final disposition of the appeal).


Order                                                                                Michigan Supreme Court
                                                                                Lansing, Michigan

  November 2, 2005                                                                                Clifford W. Taylor,
                                                                                Chief Justice

  128006                                                                                Michael F. Cavanagh
                                                                                Elizabeth A. Weaver
                                                                                Marilyn Kelly
                                                                                Maura D. Corrigan
  PEOPLE OF THE STATE OF MICHIGAN,                                                                     Robert P. Young, Jr.
            Plaintiff-Appellee,                                                                        Stephen J. Markman,
                                                                                Justices

  v                                                                 SC: 128006
                                                                    COA: 249781
                                                                    Oakland CC: 02-186542-FC
  TREMAINE NIGEL MOSES,
           Defendant-Appellant.

  _________________________________________/

        On order of the Court, the application for leave to appeal the December 28, 2004
  judgment of the Court of Appeals is considered, and it is DENIED, because we are not
  persuaded that the question presented should be reviewed by this Court.

                           I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
                     foregoing is a true and complete copy of the order entered at the direction of the Court.
                           November 2, 2005                    _________________________________________
           s1026                                                               Clerk