IN RE: B.L., ADJUDICATED DEPENDENT CHILD. [MARY A. GIBSON - APPELLANT]
CASE NOS. 1-15-65, 1-15-66, 1-15-67 and 1-15-68
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT ALLEN COUNTY
May 16, 2016
2016-Ohio-2982
PRESTON, J.
Aрpeals from Allen County Common Pleas Court Juvenile Division Trial Court Nos. 2014 JG 31530, 2014 JG 31531, 2014 JG 31532, and 2014 JG 31533
OPINION
APPEARANCES:
Jason N. Flower for Appellant
Robert H. Meyer, IV and F. Stephen Chamberlain for Appellee, Hilary Lanker
PRESTON, J.
{¶1} Appellant, Mary A. Gibson (“Gibson“), appeals the September 29, 2015 judgment entries of the Allen County Court of Common Pleas, Juvеnile Division, denying her motions to intervene and amended motions to intervene in custody proceedings involving her four minor grandchildren, all of whom share the initials “B.L.” (the “children“). For the reasons that follow, we affirm.
{¶2} On May 7, 2014, the trial court held a shelter-care hearing and issued, in lieu of shelter care, protective orders requiring that any contact between the children and their father, Brandon Lyle (“Lyle“), be supervised by the Agency. (Case No. 2014 JG 31530, Doc. No. 2); (Case No. 2014 JG 31531, Doc. No. 2);
{¶3} The next day, appellee, the Allen County Children Services Board (“Agency“), filed complaints alleging the children to be dependent under
{¶4} On August 26, 2014, following an August 4, 2014 dispositional hearing, the trial сourt ordered that the children remain in Lanker‘s custody, subject to protective supervision by the Agency. (Case No. 2014 JG 31530, Doc. No. 41); (Case No. 2014 JG 31531, Doc. No. 36); (Case No. 2014 JG 31532, Doc. No. 36); (Case No. 2014 JG 31533, Doc. No. 36).
{¶5} On June 30, 2015, Gibson filed a motion to intervene in each child‘s casе. (Case No. 2014 JG 31530, Doc. No. 64); (Case No. 2014 JG 31531, Doc. No. 56); (Case No. 2014 JG 31532, Doc. No. 56); (Case No. 2014 JG 31533, Doc. No. 56). On July 15, 2015, Lanker filed responses in opposition to Gibson‘s
{¶6} On August 19, 2015, Gibson filed amended motions to intervene. (Case No. 2014 JG 31530, Doc. Nо. 89); (Case No. 2014 JG 31531, Doc. No. 79); (Case No. 2014 JG 31532, Doc. No. 79); (Case No. 2014 JG 31533, Doc. No. 79). Gibson‘s amended motions to intervene were substantially similar to the original motions, except that much of the argument was moved under a heading titled, “Memorandum.” (Id.); (Id.); (Id.); (Id.). Gibson also filed objections to the magistrate‘s decisions. (Id.); (Id.); (Id.); (Id.).
{¶7} On September 2, 2015, Lanker filed responses in opposition to Gibson‘s objections to the magistrate‘s decisions and in opposition to Gibson‘s motions to intervene. (Case No. 2014 JG 31530, Doc. Nos. 90, 91); (Case No. 2014 JG 31531, Doc. Nos. 80, 81); (Case No. 2014 JG 31532, Doc. Nos. 80, 81); (Case No. 2014 JG 31533, Doc. Nos. 80, 81).
{¶9} Gibson filed her notices of aрpeal on October 23, 2015. (Case No. 2014 JG 31530, Doc. No. 116); (Case No. 2014 JG 31531, Doc. No. 102); (Case No. 2014 JG 31532, Doc. No. 102); (Case No. 2014 JG 31533, Doc. No. 102). She raises three assignments of error for our review, which we consider together.
Assignment of Error No. I
The Court erred in applying Civil Rule 24 in a custody proceeding in the Juvenile Division of the common pleas court.
Assignment of Error No. II
The Court erred in holding “Civ.R. 24(C) requires that it must be accompanied by a pleading setting for [sic] the claim for which intervention is sought” and holding that Mary Gibson‘s Motion to Intervene contained no such pleading.
Assignment of Error No. III
The Court fаiled to follow proper procedure before applying Civil Rule 24 in a juvenile proceeding.
{¶10} In her first, second, and third assignments of error, Gibson argues that the trial court abused its discretion in denying her motions to intervene. Specifically, Gibson argues that, by аpplying
{¶11} We begin by addressing Gibson‘s argument that Matter of Smith prohibited the trial court from applying
The Civil Rules are not applicable to custody proceedings in the juvenile division of the common pleas court. See
Civ.R. 1 ; Squires v. Squires (1983), 12 Ohio App.3d 138. Juvenile court рroceedings, with six specific exceptions, are governed byR.C. chapter 2151 and the Ohio Rules of Juvenile Procedure.Juv.R. 1(A) &(C) .
Therefore, persons wishing to be made parties to a custody action in the juvenile court must look to the Juvenile Rules for guidance, since they have no right to intervene under
Civ.R. 24 .
Matter of Smith at *1. As an unreported decision decided before May 1, 2002—when the Supreme Court Rules for the Reporting of Opinions were modified—Matter of Smith is not controlling authority. See Watson v. Neff, 4th Dist. Jackson No. 08CA12, 2009-Ohio-2062, ¶ 16, citing former Rep.Op.R. 2(G)(1)-(2). Rather, it is merely “persuasive authority.” Id. at ¶ 16, fn. 2. For the reasons below, we decline to follow Matter of Smith to the extent it stands for the proposition that
{¶12}
“Party” means a child who is the subject of a juvenile court proceeding, the child‘s spouse, if any, the child‘s parent or parents, or if the parent of a child is a child, the parent of that parent, in appropriate cases, the child‘s custodian, guardian, or guardian ad litem, the state, and any other person specifically designated by the court.
See In re Fintel, 3d Dist. Seneca No. 13-07-33, 2008-Ohio-734, ¶ 12. Because Lyle—Gibson‘s son and the children‘s father—is not himself a minor, Gibson
{¶13} A juvenile court may rely on
Upon timely application anyone may be permitted to intervene in an action: (1) when a statute of this state confers a conditional right to intervene; or (2) when an applicant‘s claim or defense and the main actiоn have a question of law or fact in common. When a party to an action relies for ground of claim or defense upon any statute or executive order administered by a federal or state governmental officer or agency or upon any regulation, order, requirement or agreement issued or made pursuant to the statute or executive order,
the officer or agency upon timely application may be permitted to intervene in the action. In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.
See In re K.L., 5th Dist. Tuscarawas No. 2015 AP 040016, 2015-Ohio-4598, ¶ 13.
{¶15} Regardless of whether the party desiring intervention argues for intervention as of right under
A person desiring to intervene shall serve a motion to intervene upon the parties as provided in
Civ.R. 5 . The motion and any supporting memorandum shall state the grounds for intervention and shall be accompanied by a pleading, as defined inCiv.R. 7(A) , setting forth the claim or defense for which intervention is sought. The same procedure shall be followed when a statute of this state gives a right to intervene.
See In re M.N. at ¶ 14.
There shall be a complaint and an answer; a reply to a counterclаim denominated as such; an answer to a cross-claim, if the answer
contains a cross-claim; a third-party complaint, if a person who was not an original party is summoned under the provisions of
Civ.R. 14 ; and a third-party answer, if a third-party complaint is served. No other pleading shall be allowed, except that the court may order a reply to an answer or a third-party answer.
See Deutsche Bank Natl. Trust Co. v. Hill, 5th Dist. Perry No. 14 CA 00021, 2015-Ohio-1575, ¶ 32.
{¶16} In denying Gibson‘s motions to intervene, the trial court adopted the magistrate‘s decisions. (Case No. 2014 JG 31530, Doc. No. 94); (Case No. 2014 JG 31531, Doc. Nо. 83); (Case No. 2014 JG 31532, Doc. No. 83); (Case No. 2014 JG 31533, Doc. No. 83). Referring to the pleading requirement of
{¶17} Despite Gibson‘s argument to the contrary, our review of the record reveals that Gibson‘s June 30, 2015 motions to intervene were not accompanied
{¶18} Even aside from this procedural issue, we note that Gibson‘s motions to intervene and amended motions to intervene failed to inform the trial court on what specific basis Gibson believed she qualified for permissive intervention under
Ms. Gibson has an interest in the welfare and care of the minor child, as she is the paternal grandmother; her son, the minor child‘s father, Brandon Lyle, is currently incarcerated and will not be released until after the minor child reaches the age of majority; the best interest of the minor child may be served by allowing Ms. Gibson to become a party to this matter; and a failure to allow Ms. Gibson‘s intervention, may impair or impede her rights to her grandchild, as her rights are currently not adequately rеpresented by the existing parties, Allen County Children Services Board and the minor child‘s mother.
(Case No. 2014 JG 31530, Doc. Nos. 64, 89); (Case No. 2014 JG 31531, Doc. Nos. 56, 79); (Case No. 2014 JG 31532, Doc. Nos. 56, 79); (Case No. 2014 JG 31533, Doc. Nos. 56, 79).
{¶19} As the Supreme Court of Ohio explained in In re H.W., “The law does not provide grandparents with inherent legal rights based simply on the family relationship.” In re H.W., 114 Ohio St.3d 65, 2007-Ohio-2879, at ¶ 9, citing In re Whitaker, 36 Ohio St.3d 213, 215 (1988). However, there are avenues through which grandparents can acquire legal rights that would support a motion to intervene. See id. For example, a statute that Gibson cites on appeal,
{¶20} Aside from Gibson‘s failure to accompany her filings with plеadings, Gibson‘s motions to intervene and amended motions to intervene, including her memoranda in support of her amended motions to intervene, do not indicate on what basis—such as through
{¶21} Gibson‘s assignments of error are overruled.
Judgments Affirmed
WILLAMOWSKI and ROGERS, J.J., concur.
/jlr