In re T.S.
{¶ 1} Appellants Daniel and Elizabeth Starr appeal an order denying their motion to intervene in an action brought by the Jackson County Job and Family Services agency to determine whether T.S. is neglected or dependent and for an award of temporary custody. As it appeared we may not have jurisdiction to consider this matter because the order from which they are appealing may not be a final appealable order, we ordered the Starrs to file a memorandum addressing this jurisdictional issue. See Magistrate's Order, November 1, 2017. In response, the Starrs filed a memorandum in support of jurisdiction which contends that the order affected "a substantial right" to intervene in the proceeding. The Starrs concede that grandparents have no legal right of access to their grandchildren, but argue that the Ohio General Assembly has provided statutory *778procedures that "impact the role of grandparents" in neglect and dependency cases and therefore gives grandparents the right to intervene as a party. They also contend that they stood in loco parentis and have a right to be joined as parties to the proceedings.
{¶ 2} We find that the trial court's order did not meet the requirements of
I. PROCEDURAL HISTORY
{¶ 3} In August 2017, the agency filed a complaint in the Court of Common Pleas of Jackson County, Juvenile Division, concerning T.S.
{¶ 4} The juvenile court granted the agency immediate emergency custody and the child was placed in foster care. An adjudication hearing to determine whether the child was neglected and dependent was set for October 25, 2017. In September 2017, the Starrs filed a motion for temporary and legal custody pursuant to
{¶ 5} On September 29, 2017, the trial court denied the Starrs' motion to intervene. The Starrs' appealed the order denying their motion to intervene on October 23, 2017. The juvenile court docket indicates that no further activity has occurred in the juvenile court since the Starrs filed their appeal. There is no indication that the adjudicatory hearing set for October 25, 2017 occurred, the trial court has issued no further entries or orders, and the Starrs' motion for legal custody is still pending.
II. LAW AND ANALYSIS
A. Jurisdiction
{¶ 6} Ohio law provides that appellate courts have jurisdiction to review only final orders or judgments. Section 3(B)(2), Article IV, Ohio Constitution ;
{¶ 7} For purposes of this appeal, the relevant portions of
(B) An order is a final order that may be reviewed, affirmed, modified, or reversed, with or without retrial, when it is one of the following:
* * *
(2) An order that affects a substantial right in an action made in a special proceeding or upon a summary application in an action after judgment;
* * *
(4) An order that grants or denies a provisional remedy and to which both of the following apply:
(a) The order in effect determines the action with respect to the provisional remedy and prevents a judgment in the action in favor of the appealing party with respect to the provisional remedy.
(b) The appealing party would not be afforded a meaningful or effective remedy by an appeal following final judgment as to all proceedings, issues, claims, and parties in the action.
1. Analysis under
{¶ 8} A judgment entry qualifies as a final, appealable order under
{¶ 9} Although a juvenile custody hearing is a special proceeding, a juvenile court order must also affect a "substantial right" to be a final, appealable order under
{¶ 10} The Starrs concede that grandparents have no common law right to custody or visitation. See In re Martin ,
{¶ 11} The Starrs contends that the trial court should allow them to intervene *780as a party because the "General Assembly has provided dispositional options which impact the role of grandparents in dependency and neglect cases." They contend that
A grandparent is a necessary party to juvenile cases only if: (1) the grandparent has a legal right to or a legally protectable interest in custody or visitation with the child, In re Schmidt (1986),, 336 [ 25 Ohio St.3d 331 ], (2) the grandparent is the child's legal custodian, In re Bowman (1995), 496 N.E.2d 952 [ 101 Ohio App.3d 599 ], or (3) the child's parent is under age 18, 656 N.E.2d 355 Juv.R. 2(Y) .
In re Hilyard , 4th Dist. Vinton Nos. 05CA630 to 05CA639,
{¶ 12} None of the statutes the Starrs cite give grandparents a legal right to or a legally protectable interest in custody.
{¶ 13} The Starrs cite two subsections in
{¶ 14}
{¶ 15} The Starrs argue that when the court denied their motion to intervene, the court "was denying their right to seek an Order placing the legal custody of [T.S.] with them." However, contrary to their assertion, the order denying their motion to intervene does not address their custody motion. The record below indicates that the juvenile court has not ruled on the Starrs' separate custody motion or taken any other action after the Starrs filed their notice of appeal. It appears that T.S. has not yet been adjudicated dependent or neglected.
{¶ 16} We find that the statutory provisions governing juvenile proceedings do not give the Starrs a "legal right to or a legally protectable interest in custody" and therefore they have no "substantial right" to intervene as grandparents and be joined as parties. The trial court's denial of the motion to intervene does not prevent the Starrs from pursuing their motion for legal custody.
{¶ 17} The Starrs argue that they have a right to intervene because they acted in loco parentis for T.S. by providing financial support to T.S.'s mother. The Starrs cite no legal support for their contention that a grandparent who acts in loco parentis and has a legal right to intervene on this ground. See In re D.D.O. , 11th Dist. Lake No. 2011-L-054,
{¶ 18} In In re Hilyard, supra , we cited In re Schmidt ,
Grandparents possess limited legal rights in juvenile proceedings through the operation of the Juvenile Rules. Specifically,Juv.R. 2(Y) defines a "party" as "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." (Emphasis added.) Thus, this rule grants a child's grandparents the right to be automatically joined as necessary parties to a custody hearing if, and only if, the child's parent or parents are under the age of majority.
In re H.W. ,
{¶ 19} Because grandparents have no constitutional, statutory or common law right to intervene in juvenile custody proceedings, the only other remaining possible source conferring a "substantial right" is in "a rule of procedure."
{¶ 20} The underlying dependency/custody proceeding is a special proceeding governed by statute and the Ohio Rules of Juvenile Procedure. The Ohio Rules of Juvenile Procedure do not have an intervention procedure like the one set forth in
2. Analysis under
{¶ 21} For an order to qualify as a final appealable order under
{¶ 22} In proceedings governed by the Ohio Rules of Civil Procedure, an order denying a motion to intervene may be a final, appealable order under
{¶ 23} Because the Ohio Rules of Juvenile Procedure do not provide for an intervention procedure, we use
{¶ 24} In In re C.J. , 8th Dist. Cuyahoga Nos. 94210,
{¶ 25} The Starrs contend that the order is a final order under
{¶ 26} We find that the court's order denying the Starrs' motion to intervene in the underlying juvenile custody proceeding did not deny a "provisional remedy" and is not a final, appealable order under
{¶ 27} The juvenile court's order denying the Starrs' motion to intervene is not a final, appealable order under
{¶ 28} As we noted in In re R.R., supra , there is a split among the districts and some courts have held that an order denying a motion to intervene in a juvenile custody proceeding is a final, appealable order. See In re N.M. ,
Accordingly, we find that the denial of Grandfather's third motion to intervene was a final, appealable order, because the ruling was made during the permanent custody phase of the proceeding. Grandfather's first two motions to intervene were made during the emergency custody and temporary custody phases, respectively, and the denials of these two motions were interlocutory orders; thus, res judicata does not bar our review of the case at hand.
In re N.M. , at ¶ 12 (appellate court reviewed the order denying grandfather's motion to intervene before the juvenile court (1) issued a final order awarding permanent custody or (2) ruled on the grandfather's
{¶ 29} Because we find a grandparent has no "substantial right" to intervene in a juvenile custody proceeding, we need not make a distinction between the emergency, temporary, and permanent phases of the proceeding for our analysis under
IV. CONCLUSION
{¶ 30} A grandparent has no "substantial right" to intervene in a juvenile custody proceeding. The Starrs' motion to intervene was not made as part of a provisional remedy as it was not attendant upon or an aid to another proceeding. Therefore, the juvenile court's order does not affect a substantial right and is not a final appealable order under
{¶ 31} The clerk shall serve a copy of this order on all counsel of record and unrepresented parties at their last known *786addresses by ordinary mail and record service on the docket. SO ORDERED.
Abele, J. and McFarland, J.: Concur.
Notes
A second child was also named in the complaint but this appeal does not concern that child.
The Starrs' motion to intervene cited no legal authority in support of this motion, so we presume they filed it pursuant to
Additionally, the Starrs contend that the order denying their motion to intervene bars them from seeking custody and visitation in their other lawsuits. They argue that they "may be deemed to have made a collateral attack on this order in their other actions." Any potential collateral attack issues that might arise in other cases is too speculative, remote and unripe for our consideration. Moreover, it is irrelevant to our finality analysis under