In re D.S.
Dated: September 9, 2009
BELFANCE, Judge.
{¶1} Appellant, Darla Hernandez, the maternal grandmother (“Grandmother“) of D.S., has appealed from a judgment of the Summit County Court of Common Pleas, Juvenile Division. For the reasons set forth below, we affirm the judgment of the trial court.
FACTS
{¶2} Chandra R. (“Mother“) is the mother of D.S., born on May 16, 2007. Paternity of the child was never established. Summit County Children Services Board (“CSB“) was alerted to concerns regarding Mother‘s care of the infant through a referral made the day after her birth. CSB visited Mother and D.S. at the home of the child‘s maternal great grandmother, where they were staying. At the time, the CSB caseworker believed that although Mother had limited knowledge of infant care, there was a reliable support system within that home. During follow-up visits, however, Mother seemed confused, was unable to answer basic questions regarding the care of the child, and was resistant to receiving services or having any continued CSB
{¶3} On January 4, 2008, Grandmother moved to intervene, and on June 10, 2008, she moved for legal custody of the child. Both motions were denied by a magistrate, who found no evidence that Grandmother had acted in loco parentis. Following the filing of objections by Grandmother, the trial judge found that Grandmother was not entitled to intervene absent a showing that she stood in loco parentis to the child, but granted her leave to present evidence on this issue prior to the start of the permanent custody hearing. The record does not reflect that Grandmother presented any such evidence in the time provided, but the trial judge did not enter judgment on the motion until she also ruled on the custody question before the court. In addition, the trial judge found that Grandmother was entitled to have her motion for legal custody determined on its merits regardless of her party status.
{¶4} Ultimately, CSB moved for permanent custody and Mother moved for legal custody to be awarded to Grandmother. Following a hearing, the trial court granted CSB‘s motion for permanent custody and denied all other dispositive motions. The trial court found that D.S. could not or should not be placed with a parent within a reasonable time and that permanent custody was in the best interest of the child. Grandmother has appealed from the final judgment and has assigned one error for review. Mother has not appealed.
STANDING
{¶6} CSB has argued that Grandmother lacks standing to appeal the judgment of the trial court because she was not a party to the proceedings below. According to CSB‘s position, Grandmother was entitled to have her motion for legal custody considered by the trial court, but lacks standing to challenge the denial of her motion in the court of appeals because she was not a party to the trial court proceedings. Grandmother has not responded to this argument.
{¶7} This Court has previously held that where a grandparent files a motion to intervene and a motion for legal custody, and where the motion to intervene is denied and permanent custody is granted to the agency, the grandparent has standing to contest the denial of the motion to intervene, but does not have standing to challenge the permanent custody decision on appeal. See In re Voshel (May 3, 1995), 9th Dist. No. 2913, at *2, and In re Stanley (Oct. 11, 2000), 9th Dist. Nos. 20128, 20131, 20132, at *3, citing Whiteside, Ohio Appellate Practice (1996 Edition) 30, Section 1.27.
{¶8} Our research has disclosed that other Ohio courts have reached different conclusions on this question. The second district has held that even where a grandparent lacked party status, the grandparent had standing to challenge a dispositional order by virtue of having filed a motion for legal custody and being permitted to testify in support of that motion. In re P.P., 2nd Dist. No. 19582, 2003-Ohio-1051, at ¶21. The fifth district has similarly held that a grandparent had standing to challenge the denial of a custodial decision by virtue of having filed a motion for legal custody and being permitted to testify in support of that motion. In re Travis Children (1992), 80 Ohio App.3d 620, 625-626. But, see, In re Bailey (Mar. 15, 2001), 5th Dist. Nos. 2000AP110071, 2000AP110073, and 2000AP110082, at *7 (holding that a non-party grandparent lacked standing to challenge a custodial decision on appeal). See, also, In re T.N.W., 8th Dist. No 89815, 2008-Ohio-1088, at ¶ 7 (holding that grandmother had standing to appeal the
{¶9} In other contexts, the Supreme Court has reached a result which seems to support the prior decisions of this Court. See, e.g., State ex rel. Sawicki v. Court of Common Pleas of Lucas Cty., 121 Ohio St.3d 507, 2009-Ohio-1523, at ¶18 (“As a nonparty, Associated lacks standing to challenge the court of appeals’ determination on the merits.“) and State ex rel. Beacon Journal Publishing Co. v. Bond, 98 Ohio St.3d 146, 2002-Ohio-7117, at ¶48 (“Because the Beacon Journal was not a party to the criminal action in the court of common pleas, it lacks standing to appeal the trial court‘s order.“).
{¶10} Furthermore, because of the rather unique nature of permanent custody proceedings, we are not inclined to attempt to draw analogies from other areas of law on this point. See, e.g., In re Guardianship of Santrucek, 120 Ohio St.3d 67, 2008-Ohio-4915, at ¶14 (holding that one may become a party to a guardianship proceeding either by filing an application to be appointed guardian or by filing a motion to intervene.)
{¶11} We observe that one of the statutes in
{¶12} The issue is brought into stark relief by the facts in the present case. Here, the movant complied fully with the procedural requirements of
MOTION TO INTERVENE
{¶14} Intervention by a grandparent has been said to be appropriate where the grandparent has a legal right to or a legally protectable interest in custody or visitation with a grandchild, where the grandparent has stood in loco parentis to the grandchild, or where the grandparent has exercised significant parental control over, or assumed parental duties for the benefit of, his or her grandchild. In re Schmidt (1986), 25 Ohio St.3d 331, 336-337.
{¶15} Ohio courts have also indicated that a grandparent does not have inherent legal rights based simply on the family relationship. See, e.g., In re H.W., 114 Ohio St.3d 65, 2007-Ohio-2879, at ¶9. “[T]he emphasis placed on family unity by
{¶17} Based upon this record, we conclude that the trial court did not err when it denied Grandmother‘s motion to intervene. Grandmother‘s assignment of error is overruled.
CONCLUSION
{¶18} Grandmother‘s assignment of error is overruled. The judgment of the Court of Common Pleas, Juvenile Division, is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is
Costs taxed to Appellant.
EVE V. BELFANCE
FOR THE COURT
WHITMORE, J.
DICKINSON, P. J.
CONCUR
APPEARANCES:
RHONDA KOTNIK, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant Prosecuting Attorney, for Appellee.