In re A.K.
For Appellees Attorney Matthew T. Fekete 725 Boardman-Canfield Rd., Unite L-1 Youngstown, Ohio 44512
For Appellant Attorney Scott C. Essad Attorney Christopher J. Newman Henderson, Covington, Messenger, Newman & Thomas Co., L.P.A. 6 Federal Plaza Central, Suite 1300 Youngstown, Ohio 44503
DONOFRIO, J.
{¶1} Appellant Boardman Local School District Board of Education appeals the decision of the Mahoning County Common Pleas Court, Juvenile Division, denying its motion to intervene in the custody case involving A.K.
{¶2} This case is one of two interrelated cases рresently before this court. The two cases paralleled each other below in the general and juvenile divisions of the Mahoning County Common Pleas Court. They each involved the same parties (or those desiring to be parties).
{¶3} A.K. moved from Las Vegas, Nevada to Boardman, Ohio in April 2007 to live with her aunt and uncle, Katherine and Anthony Grosso. On June 26, 2007, the Grossos filed for custody of A.K. in juvenile court in a pleading entitled, “Agreed Complaint for Custody.” They alleged that A.K. was dependent, noting her parents did not contest their assumption of custody. The Grossos provided a copy of this complaint to Boardman School District officials with the intention оf enrolling A.K. in its schools. The school treasurer informed them, though, that an actual court order of custody was required to enroll her.
{¶4} On August 7, 2007, following a hearing, a juvenile court magistrate adjudicated A.K. dependent pursuant to
{¶5} Despite this official change in custody, Boardman School District still declined to admit A.K. unless the Grossos paid $800 per month in tuition, an amount
{¶6} Subsequently, the magistrate heard testimony and denied the petition for a permanent injunction in September 2007. The Grossos filed objections and the district responded. The trial court held a hearing on the objections, allowed additional testimony, and took the matter under advisement. Meanwhile, on October 23, 2007, the trial court reinstated the temporary restraining order allowing A.K. to attend Boardman schools tuition-free.
{¶7} On December 19, 2007, the trial court adopted the magistrate‘s decision denying the preliminary injunction. The court added “no just reason for delay” language and stated that the order is a final appealable order.
{¶8} The Grossos appеaled, asking this court to stay the trial court‘s order denying the preliminary injunction and the order dissolving the temporary restraining order. State ex rel. Grosso v. Boardman Twp. Local School Dist., 7th Dist. No. 08-MA-3. After considering oral arguments at the stay hearing, the trial court record, and the pertinent law, this court granted the Grosso‘s stay request and issued an injunction pending the appeal that allowеd A.K. to remain in Boardman public schools “without charging tuition to any private individual.” 01/25/08 J.E. This court also partially remanded the matter to the trial court to complete the case on its merits and held the appeal in abeyance pending the outcome of the trial court‘s decision.
{¶9} Meanwhile, in the juvenile court case and over five months after its custody determination, Boardman School District filed a motion on February 4, 2008, entitled, “Motion of Boardman Local District Board of Education to Intervene and to Vacate or Amend the August 29, 2007 Order of this Court.” In that motion, the ruling
{¶10} Back in the mandamus action (upon remand from this court), Boardman School District filed an answer and the trial court set the case for a non-oral hearing. On May 9, 2008, the trial court reversed its previous position (as reflected in its December 19, 2007 denial of the preliminary injunction) and granted the petition for writ of mandamus. The trial court found that
{¶12} The district raises one assignment of error which states:
{¶13} “The trial сourt erred when it denied the Boardman Local School District Board of Education‘s motion to intervene.”
{¶14} Boardman School District‘s February 4, 2008 motion was entitled, “Motion of Boardman Local District Board of Education to Intervene and to Vacate or Amend the August 29, 2007 Order of this Court.” Logic dictates that a non-party cаnnot file a motion to vacate or amend in a case to which they have not yet been made a party. Therefore, the threshold issue that presents itself is whether the district could intervene in this custody action. In its motion and on appeal, the district claims (without explanation) that it is entitled to intervention as of right pursuant to
{¶15} Whether the district could intervene in this custody action initially implicates two rules of procedure –
{¶16}
{¶17} “Upon timely application anyone shall be permitted to intervene in an action: (1) when a statute of this stаte confers an unconditional right to intervene; or (2) when the applicant claims an interest relating to the property or transaction that is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the aрplicant‘s ability to protect that interest, unless the applicant‘s interest is adequately represented by existing parties.”
{¶18} Whether Boardman School District could intervene as of right in this custody action is essentially a question of standing. “The question of standing is whether a litigant is entitled to have a court determine the merits of the issues presented.” Ohio Contrs. Assn. v. Bicking (1994), 71 Ohio St.3d 318, 320, 643 N.E.2d 1088. “Whether established facts confer standing to assert a claim is a matter of law.” Portage Cty. Bd. of Commrs. v. Akron, 109 Ohio St.3d 106, 2006-Ohio-954, 846 N.E.2d 478, at ¶90. Appellate courts review questions of law under a de novo standard of review. Skirvin v. Kidd, 174 Ohio App.3d 273, 2007-Ohio-7179, 881 N.E.2d 914, at ¶14.
{¶19} As already indicated, the district claims intervention as of right pursuant to
{¶20} The Grossos cite to In re Goff, 11th Dist. No. 2003-P-0068, 2003-Ohio-6087. In that case, grandparents sought to intervene in dependency proceedings brought by the county department of job and family services. Their grandchild was born as the result of a rape committed by their son against his stepdaughter. The juvenile court denied their motion to intervene and the Eleventh District affirmed on appeal. The court noted that grandparents have no constitutional right of association with their grandchildren.
{¶21} Goff illustrates the point that a juvenile court is “required to join only those parties with colorable rights to custody or visitation.” Id. at ¶16, citing In re Hoffman, 5th Dist. Nos. 2002-CA-0419 and 2002-CA-0422, 2003-Ohio-1241, at ¶22. In Goff, the court noted that the grandparents had “never obtained, prior to their motion to intervene, through statute, court order, or other means, any legal right to custody or visitation with their grandson.” Id. See, also, In re Wood (June 28, 1999), 7th Dist. No. 240. Nor was it in the best interests of the child to allow them to intervene. Id. at ¶17.
{¶22} In this case, Boardman School District has no legal right to custody or visitation with A.K. Nor is it concerned with A.K.‘s best interests. Indeed, its only stated interest in A.K. is a pecuniary one. And it is not even A.K.‘s pecuniary interest the district is concerned with; it is the district‘s own pecuniary interest. Consequently, it cannot be said the trial court erred in denying the Boardman School District‘s motion to intervene as of right.
{¶23} Even if the district had been entitled to intervention as of right, the Grоssos posit that the district‘s motion was fatally untimely.
{¶24} “In determining the timeliness of a mоtion to intervene pursuant to
{¶25} Applying those factors to this case, Boardman School District‘s motion to intervene was untimely for the following reasons. First, the custody action had already proceeded to final judgment when Boardman School District sought intervention. In this type of situation, the Ohio Supreme Court has held that “[i]ntervention after final judgment has been entered is unusual аnd ordinarily will not be granted.” State ex rel. First New Shiloh Baptist Church v. Meagher (1998), 82 Ohio St.3d 501, 503-504, 696 N.E.2d 1058.
{¶26} Second, there was no allowable purpose for which Boardman School District sought intervention as of right. The action in which the district sought to intervene only concerned A.K.‘s custody and what was in her best interests. The district sought only to protect its own financial interest. The juvenile court‘s designation оf who is to bear the costs of educating A.K. is dictated solely by statute. The district‘s own input or opinion on that issue is irrelevant. The district‘s avenue of redress on this matter lies with the General Assembly, not the courts.
{¶28} In conclusion, based on the facts and circumstances of this case, Boardman School District has failed to demonstrate that it was entitled to intervention as of right undеr case law and the applicable statutory scheme as it is presently constructed. There is the other avenue of intervention available under
{¶29} Accordingly, Boardman School District‘s sole assignment of error is without merit.
Vukovich, P.J., concurs.
Celebrezze, J., concurs.
Judge of the Eighth District Court of Appeals Sitting by Assignment