Lead Opinion
{¶ 2} Charles Fell was born on January 21, 2004. The Guernsey County Children's Services Board ("Agency") sought immediate temporary custody of the child due to concerns regarding the mental health of the mother, Martha Fell. The father, Jeff Stevens, has chosen not to be a part of his son's life. The Agency placed the child in foster care with Kevin and Lori Sullivan, the appellants, two days after his birth.
{¶ 3} On April 14, 2004, Charles Fell was found to be a dependent child. The Agency continued to have temporary custody over the child, and chose to continue to have the appellants serve as the child's foster parents. On June 10, 2004, the Agency filed for permanent custody of Charles Fell.
{¶ 4} In July 2004, the Agency discovered that there were biological relatives of the child who would be willing to adopt the child. Following the preferential treatments in the Ohio Administrative Code, the Agency began investigating these relatives, the Ashcraft's, as a possible permanent placement for the minor. In September, 2004, a new case plan was approved by the Juvenile Court of Guernsey County, Ohio, which provided that Charles Fell would continue to stay with the appellants, but also provided that he would spend three days a week with the Ashcraft family.
{¶ 5} On September 17, 2004, the appellants filed a Motion for Legal Custody of Charles Fell pursuant to R.C.
{¶ 6} "I. The trial court erred in ruling that because a motion for permanent custody had been filed, the foster parents did not have a right to intervene in this matter.
{¶ 7} "II. The trial court erred in ruling that because the foster parents did not have a right to intervene in the permanent custody hearing, the foster parents were prohibited from litigating their motion for custody."
{¶ 9} We do not have in the record before this court any judgment entry either granting or denying the Agency's Motion for Permanent Custody. Nor do we have any Judgment Entry granting a disposition and placement of the minor child. In a direct appeal, a reviewing court may only consider what is contained in the trial court record. See, e.g.,State v. Ishmail (1976),
{¶ 10} A Motion to Intervene can take one of two forms. Civ.R. 24(A)(2) sets forth the relevant requirements for intervention of right: "(A) Upon timely application anyone shall be permitted to intervene in an action: * * * (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant's interest is adequately represented by existing parties."
{¶ 11} "Thus, the application must be timely and the applicant must show three conditions exist:
{¶ 12} "`* * * (1) that he claims an interest relating to the property or transaction which is the subject of the action; (2) that he is [so] situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest; and (3) that the existing parties do not adequately represent his interest.' (Footnote omitted.) McCormac, Ohio Civil Rules Practice (1970) 80-81, Section 4.36." Blackburn v. Hamoudi (1986),
{¶ 13} Civ.R. 24(A) (2) sets forth the relevant requirements for permissive intervention: "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 action 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."
{¶ 14} "Appellants do not have a valid interest in the permanent custody proceeding that will not be adequately protected unless appellants are allowed to intervene. At a permanent custody proceeding the only determination to be made is whether parental rights should be terminated. Schmidt, [1986),
{¶ 15} Accordingly, the denial of the motion to intervene is not a final appealable order since the denial of the motion did not affect a substantial right. See Holibaugh v. Cox (1958),
{¶ 16} Nor did the trial court's dismissal of the appellant's motion for custody affect a substantial right so as to make the denial of the motion a final appealable order pursuant to R.C.
{¶ 17} The only disposition option available at a permanent custody hearing held pursuant to R.C.
{¶ 18} Until the child has been permanently awarded to the Agency, the wishes or rights of the foster parents are mere expectancies. In re:Hunt (Nov. 11, 1985), 4th Dist. No. 1762. On the record before us, it has not been determined that there is no possibility of reuniting this child with his mother. That may happen. It is also possible that all parental rights may never be terminated because, based on the facts and circumstances of this case, perhaps the best interests of the child would be served by maintaining temporary custody. These determinations have yet to be made, at least on the record before this court. Until such a decision is made, any consideration of custody would be counterproductive of the case plan goals, and would be premature. In r: McDaniel, 11th Dist. Nos. 2002-L-158, 2002-L-159, 2004-Ohio-2595 at ¶ 28.
{¶ 19} For the foregoing reasons, appellants' assignments of error are dismissed as being premature.
Gwin, P.J., and Farmer, J., concur.
Hoffman, J., concurs in part; dissents in part
Dissenting Opinion
{¶ 20} I concur in the majority's decision to dismiss appellants' appeal as it relates to the denial of appellant's motion to intervene. However, I reach this conclusion not for the reason relied upon by the majority; i.e., because this Court is now aware the permanent custody issue has been held and concluded and the parties will have an opportunity to litigate the issues presented herein in these appeals. I believe such analysis avoids the issue of determining whether the denial of appellants' motion to intervene is a final appealable order at this time. The fact we are aware there are two appeals separately pending in this Court from an entry granting the agency permanent custody should not effect whether appellants' instant appeal of the denial of their motion to intervene was a final appealable order when entered on November 29, 2004.
{¶ 21} Nevertheless, I concur in the majority's dismissal of this portion of the appeal. The denial of appellants' motion to intervene is not a final order under R.C.
{¶ 22} I respectfully dissent from the majority's decision to also dismiss appellants' appeal of the dismissal of their motion for custody. Unlike their motion to intervene, I find dismissal of their motion for custody did affect their substantial right and determined that action.
{¶ 23} The trial court dismissed appellants' motion for custody as being moot in light of appellee's pending motion for permanent custody. Though it may have been later rendered moot by the trial court's subsequent grant of permanent custody to the agency, I do not believe it was moot at the time the trial court dismissed it (November 29, 2004). Accordingly, I believe this Court ought to address the merits of appellants' second assignment of error.
{¶ 24} Appellants' motion for custody was made pursuant to R.C.