Clark v. MalicoteClark v. Malicote
George P. Montgomery, 45 North Market Street, Batavia, Ohio 45103, for defendant, Nichole Malicote
Lawrence E. Barbiere, Kurt M. Irey, 5300 Socialville-Foster Road, Suite 200, Mason, Ohio 45040, for intervenor-appellant, Brandon Shaw
O P I N I O N
HENDRICKSON, J.
{¶1} Intervenor-appellant, Brandon Shaw, appeals a decision of the Clermont County Juvenile Court dismissing his motion to intervene in an action filed by plaintiff-appellee, Brian Clark. For the reasons outlined below, we affirm the decision of the juvenile court.
{¶3} Shaw first became aware of the likelihood that he was the biological father of B.C. approximately ten months after the child‘s birth. Prior to that time, Malicote advised Shaw that he was not the father. Shortly after becoming aware of the likelihood of his paternity, Shaw paid to undergo a DNA test. The results of the test, returned on April 27, 2009, indicated that there was a 99.69% probability that Shaw was B.C.‘s biological father.
{¶4} Ten days later, on May 7, 2009, Clark filed a complaint against Malicote seeking to be declared the father of B.C. Clark also prayed for an order designating him the residential parent and legal custodian of the child or, alternatively, a shared parenting plan. On June 24, 2009, the juvenile court ordered Clark to submit to DNA test. The results of the test indicated that there was a 0.00% probability that Clark was the biological father of B.C. The results were admitted into evidence in Clark‘s action on July 30, 2009.
{¶5} On October 22, 2009, Shaw moved to intervene in Clark‘s action for the purpose of establishing parentage rights pursuant to
{¶7} “THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT BY DENYING HIS MOTION TO INTERVENE IN DIRECT CONVRAVENTION OF OHIO LAW.”
{¶8} Shaw argues that he should be permitted to intervene in Clark‘s action because
{¶9} We review the juvenile court‘s decision dismissing Shaw‘s motion to intervene for an abuse of discretion. Kleemeyer v. Hummel (May 6, 1996), Brown App. No. CA95-10-017, at 12-13. An abuse of discretion connotes that the court‘s decision was unreasonable, arbitrary, or unconscionable, and not merely an error of law or judgment. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219.
{¶10} Our discussion of the present matter is guided by the legislative enactment commonly referred to as Ohio‘s Uniform Parentage Act,
{¶11} “The current version of the Ohio Parentage Act supplies three primary mechanisms by which the father-child relationship may be established. First, the relationship may be established by a civil action, as provided in
ORC §§ 3111.01 to3111.18 . * * * Second, the father-child relationship may be established by an acknowledgment of paternity, as provided inORC §§ 3111.20 to3111.35 . * * * Third, the father-child relationship may be established by an administrative determination of paternity, as provided inORC §§ 3111.38 to3111.54 .” Furniss, The Uncertain Status of Non-Marital Children Under Ohio Inheritance Laws (2009), 20 Ohio Prob. L.J. 45.
{¶12} As indicated, Clark and Malicote signed an acknowledgement of paternity on May 23, 2008. Under
{¶13} Shaw‘s motion to intervene cites
{¶14} Despite the confusion exhibited by the parties, Clark‘s action is most properly construed as a legal custody action. Although the issue of custody has never been litigated, Malicote currently possesses sole legal custody and residential parent status over B.C. by operation of
{¶15} “An unmarried female who gives birth to a child is the sole residential parent and legal custodian of the child until a court of competent jurisdiction issues an order designating another person as the residential parent and legal custodian.”
{¶16} Clark‘s complaint requests an order designating him the residential parent and legal custodian of B.C. Therefore, the complaint should be interpreted as a petition for legal custody under
{¶17}
{¶18} There is no doubt that Shaw, as the biological father of B.C., has an interest in the subject matter of Clark‘s legal custody proceeding. Civ.R. 24 authorizes interested parties to intervene in an action as a matter of right or permissively under certain circumstances. However, permitting Shaw to intervene under Civ.R. 24 may be troublesome on two fronts. First, Shaw‘s paternity results are in the record only by virtue of his motion to
{¶19} The juvenile court was right to deny Shaw‘s motion to intervene, but its analysis was flawed. The court reasoned that Shaw could not intervene in Clark‘s action because the acknowledgment of paternity had become final and enforceable. As a result, the court concluded, B.C. was the child of Clark as if born to him in lawful wedlock. In support, the court cited Jennifer C. v. Tony M.D., Clermont App. No. CA2005-01-005, 2005-Ohio-5050.
{¶20} Jennifer C. involved an acknowledgement of paternity that had not become final and enforceable because the statutory requirements had not been fulfilled. Here, there is no dispute that the acknowledgement signed by Clark and Malicote satisfied the requirements set forth in
{¶21} We emphasize that our holding today does not foreclose Shaw from pursuing relief as the biological father of B.C. A finding that the acknowledgment in the case at bar is final as to Clark means that Clark is B.C.‘s “legal father” at present. In re Guardianship of Elliott, Putnam App. No. 12-10-02, 2010-Ohio-5405, ¶22. Such a finding does not automatically divest Shaw of his rights as the biological father of B.C., however. In other words, the finality of the acknowledgment does not amount to a permanent deprivation of Shaw‘s parental rights as would an adoption or an award of permanent custody to a children services agency.
{¶22} One potential avenue for Shaw to pursue is to file is own civil paternity action under
{¶23} If Shaw pursues his own action and the necessary parties are joined, this would place the issues of Shaw‘s and Clark‘s paternity simultaneously before the juvenile court. The court could then decipher what ruling would be in B.C.‘s best interests in view of the convoluted facts and circumstances of this particular case. Cf. Weikle v. Peake, Union App. No. 14-2000-09, 2000-Ohio-1711. On one hand, the Ohio Supreme Court has lauded finality over perfection in cases involving determinations of parentage, visitation, and child support. Strack v. Pelton, 70 Ohio St.3d 172, 175, 1994-Ohio-107. On the other hand, in the words of our own court, it is not necessarily in B.C.‘s best interests to “perpetuate the fiction that
{¶24} Based upon the foregoing analysis, we conclude that the juvenile court did not abuse its discretion in denying Shaw‘s motion to intervene in Clark‘s action. Kleemeyer, Brown App. No. CA95-10-017 at 12-13. Accordingly, Shaw‘s first assignment of error is overruled.
Assignment of Error No. 2:
{¶26} “THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT IN FAILING TO AFFORD APPELLANT AN OPPORTUNITY TO BE HEARD AND TO ACCORD DUE PROCESS OF LAW AND EQUAL PROTECTION OF THE LAWS OF OHIO AND THE UNITED STATES.”
{¶27} Shaw contends that his fundamental rights as the biological father of B.C. require that he be afforded due process before those rights are terminated.
{¶28} We do not find it appropriate to address Shaw‘s constitutional argument at this time because the issue is not yet ripe for review. See, e.g., In re M.D., Butler App. No. CA2006-09-223, 2007-Ohio-4646, ¶19. Shaw is a third party to which the acknowledgement signed by Clark and Malicote and the statutes pertaining thereto have not actually been applied yet. As Shaw concedes in his intervenor brief, filed with the juvenile court on March 31, 2010, the acknowledgment statutes “specifically apply only to Brian Clark and Nichole Malicote.” (Emphasis in original.) On the other hand, if Shaw were to file his own paternity action and was foreclosed from maintaining the action due to the finality of the acknowledgment signed by Clark and Malicote, then he may acquire standing to attack the constitutionality of the acknowledgment statutes as applied to him.
{¶30} Due to the fact that Shaw‘s constitutional argument was not properly raised at the juvenile court level, and because the issue is not yet ripe for review, we decline to address his second assignment of error at this time.
{¶31} Judgment affirmed.
POWELL, P.J., and RINGLAND, J., concur.