Lead Opinion
{¶ 3} M.N. was adjudicated a dependent child. When she was two months old, the agency placed her in the home of her mother's cousin, Frank R., and his wife, Kari. In November 2006, Kelvin P. was established as M.N.'s father, and the court ordered supervised visitation and implemented a case plan with the goal of reunification. In late May 2007, Kelvin went to prison and visitation ceased. In early June, Kim's parents, Dorothy and Leonard N., moved to intervene in the case and requested visitation. The court did not immediately act on the motions. Dorothy and Leonard subsequently moved for custody of M.N., and Wayne County Children Services moved for a six-month extension.
{¶ 4} The trial court held a hearing on Dorothy and Leonard's motion to intervene. After hearing the evidence, the trial court denied their motion and subsequently "dismissed" their pending motions for visitation and custody. Dorothy and Leonard have appealed. They have argued that the trial court incorrectly denied their motion to intervene and incorrectly "dismissed" their motions for visitation and custody without holding a hearing. The trial court did not err as a matter of law or abuse its discretion by denying Dorothy and Leonard's motion to intervene. This Court has not considered Dorothy and Leonard's second assignment of error because they have failed to provide a relevant argument or a citation to any authority in support of their proposition. See App. R. 12(A)(2), 16(A). *3
{¶ 6} The concurring opinion has suggested that the abuse of discretion standard applies to this Court's review, not only of motions for permissive intervention under Rule 24(B), but also to its review of motions to intervene as of right under Rule 24(A). In support, the concurrence pointed out that, according to the Eighth District's opinion in In re Schmidt, 8th Dist. Nos. 48122, 48123, 48124 48144,
{¶ 7} In reviewing the trial court's denial of the grandparents' motion to intervene, the Supreme Court first, in a paragraph, specifically dealt with Rule 24(A): "Likewise, the Smiths had nolegal interest in the care and custody of their grandson, which would have allowed them to intervene as of right pursuant to Civ. R. 24(A)."Schmidt,
{¶ 8} Having disposed of whether the grandparents had a right to intervene under Rule 24(A), the Supreme Court did not end its analysis. Rather, it moved on to a new issue: "The final issue properly before the court is whether the juvenile court abused its discretion in failing to grant the Smiths' motion to intervene." Schmidt,
{¶ 9} If Dorothy and Leonard had a right to intervene in this case, the trial court would not have had discretion to deprive them of that right. Accordingly, to the extent their motion to intervene was based on Rule 24(A), this Court's standard of review is de novo. On the other hand, to the extent they sought permissive intervention under Rule 24(B), the trial court had discretion to grant or deny their motion, and this Court's review is limited to determining whether the trial court abused its discretion.
{¶ 10} Dorothy and Leonard do not meet the definition of a "party" to a juvenile proceeding under Rule 2(Y) of the Ohio Rules of Juvenile Procedure. Further, grandparents have no constitutional right of association with their grandchildren, In re Whitaker,
{¶ 11} In this case, M.N.'s grandparents have cited In re Schmidt for the proposition that a "third party" may intervene in a custody case if he has "some `colorable' interest" in the subject of the suit. This is a broad reading of the Ohio Supreme Court's analysis of then Section
{¶ 12} Rule 24(A) provides for intervention as of right for any timely applicant who meets the requirements of the rule. Under Rule 24(A)(2), an applicant "shall be permitted to intervene in an action" if he "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 applicant's ability to protect that interest, unless the applicant's interest is adequately represented by existing parties." A mere claim of right, however, will not suffice. Grandparents do not have a right to intervene without evidence that they have a legal interest in the care and custody of their grandchild. See Schmidt,
{¶ 13} In Schmidt, grandparents moved to intervene in a permanent custody case involving their grandson. The Ohio Supreme Court, in affirming the denial of their motion, pointed out that the grandparents "had no legal interest in the care and custody of their grandson" that would have allowed them to intervene under Rule 24(A) of the Rules of Civil Procedure. Schmidt,
{¶ 14} Under Subsection (B)(2) of Rule 24, a trial court has discretion to allow "[p]ermissive intervention . . . when an applicant's claim or defense and the main action have a question of law or fact in common. . . . 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." Regardless of whether an applicant argues for intervention as of right or permissive intervention, he must adhere to the requirements of part (C) of the rule. Under that subsection, any motion for intervention "shall be accompanied by a pleading, as defined in Civ. R. 7(A), setting forth the claim or defense for which intervention is sought." Civ. R. 24(C). Dorothy and Leonard did not include a qualifying pleading with their motion as is required by Rule 24(C). Even if they had met this requirement, however, the trial court did not err or abuse its discretion by denying their motion to intervene.
{¶ 15} The testimony revealed that Wayne County Children Services, Dorothy, and Leonard knew, before M.N. was born, that she could not be placed in Dorothy and Leonard's home because of Leonard's criminal history. Dorothy testified that, after the agency told her that her home was excluded for purposes of placement, she did not ask the agency or the court for visitation or custody because she felt that she would be "wasting [her] time." The result was that, at the time of the hearing on the motion to intervene, M.N.'s grandparents had never seen their nine-month-old granddaughter. M.N. had been in the care of Frank and Kari continuously since she was two months old. Prior to moving to intervene, M.N.'s grandparents had "never obtained, through statute, court order, or other means, any legal right to custody or visitation with their granddaughter]." In re Schmidt,
{¶ 16} They have argued that, because M.N. was removed from her mother's care at birth and placed with other relatives, they were never afforded an opportunity to assume parental duties or even to visit with her and establish a bond. Dorothy testified that someone at the agency told her she could not see the baby and that she should not contact Frank and Kari directly. Dorothy testified that she waited to approach the court because she had hoped that M.N.'s father would obtain custody. She further testified that she called the agency on a few occasions regarding Christmas and Easter gifts for M.N., but was never given the opportunity to visit her.
{¶ 17} In the first nine months of M.N.'s life, her grandparents never obtained a legal right to custody or visitation with her through court order or other means. The agency caseworker testified that she had contact with M.N.'s grandparents several times, but they never asked about visitation. Although Dorothy and Leonard had been in touch with M.N.'s father earlier in the case, they never went with him to any visits or requested permission to do so. There was no evidence that Dorothy or Leonard had assumed any aspect of parental duties for M.N.'s benefit. Thus, they have no legal right or interest in the care and custody of their granddaughter that would provide a basis for intervention as of right under Rule 24(A). See Schmidt,
{¶ 18} The trial court did not err or abuse its discretion by denying the motion to intervene. See In re CM.,
{¶ 20} Ohio law provides various methods for grandparents to obtain a legal right of access to their grandchildren outside of the juvenile custody situation. See e.g., R.C.
Judgment affirmed.
The Court finds that 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 Wayne, 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 instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App. R. 30.
Costs taxed to appellant.
CLAIR E. DICKINSON FOR THE COURT
MOORE, P. J. CONCURS
Concurrence Opinion
CONCURS, SAYING:
{¶ 22} While I agree with the result reached by the majority, I write separately to espouse the standard of review that applies when grandparents appeal from a trial court's denial of their motion to intervene in custody proceedings. *11
{¶ 23} In re M.S. set forth this Court's standard of review as follows:
"An appellate court reviews a decision regarding a motion to intervene under an abuse of discretion standard. In re C .M, 9th Dist. No. 21720,
, at ¶ 2004-Ohio-1984 18 , citing In re Goff, 11th Dist. No. 2001-P-0144,, at ¶ 2003-Ohio-6768 11 . * * * `[Intervention by grandparents in a permanent custody proceeding is appropriate where the grandparents have a legal right to or a legally protectable interest in the custody or visitation with their grandchild, where the grandparents have stood in loco parentis to their grandchild, or where the grandparents have exercised significant parental control over, or assumed parental duties for the benefit of, their grandchild. Where any of these circumstances are present, a denial of grandparents' motion to intervene would constitute an abuse of discretion.' (Emphasis omitted.) In re C. M. at ¶ 21, quoting In re Goff at ¶ 15." In re M.S., 9th Dist. No. 22158,, at ¶ 2005-Ohio-10 30 .
We have consistently applied this standard in such appeals. See In reCM., supra. See, also, State ex rel. Strategic Capital Investors, Ltd.v. McCarthy (1998),
{¶ 24} In re Schmidt involved an appeal from a trial court's denial of two grandparents' motion to intervene pursuant to Civ. R. 24(A). SeeIn the Matter of: Schmidt (Jan. 10, 1985), 8th Dist. Nos. 48122, 48123, 48124 48144, at *3. After the appellate court affirmed the trial court's decision to deny the intervention, the grandparents further appealed to the Ohio Supreme Court. The Ohio Supreme Court analyzed the grandparents' claim that they should have been allowed to intervene as a matter of right under both R.C.
{¶ 25} As the majority found that the trial court properly denied the grandparents' motion to intervene in this matter, I concur in the Court's judgment. *1