[Cite as In re L.D., 2013-Ohio-2713.] COURT OF APPEALS FAIRFIELD COUNTY, OHIO FIFTH APPELLATE DISTRICT
IN THE MATTER OF: : JUDGES: : Hon. W. Scott Gwin, P.J. L.D., J.D., B.D. : Hon. Sheila G. Farmer, J. : Hon. Patricia A. Delaney, J. : : Case Nos. 13-CA-14 : 13-CA-15 : 13-CA-16 : : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Juvenile Division, Case Nos. 2009-AB-0094, 2009-AB-0095, 2009- AB-0096
JUDGMENT: Affirmed
DATE OF JUDGMENT: June 26, 2013
APPEARANCES:
For Appellant For Appellee
AARON R. CONRAD JULIE S. BLAISDEL 120½ East Main Street 239 West Main Street, Suite 101 Lancaster, OH 43130 Lancaster, OH 43130
For Roberta Prevette Guardian ad Litem
ADRIENNE LARIMER KRISTI McANAUL 118 West Chestnut Street 660 Hill Road, North Lancaster, OH 43130 Pickerington, OH 43147
For L.D. For J.D.
JERROLD SCHWARTZ JASON DONNELL P.O. Box 482 P.O. Box 670 Pickerington, OH 43147 Pickerington, OH 43147
For B.D. For Charles Mack
JAMES DYE CHRISTINA MCGILL P.O. Box 161 123 South Broad Street, Suite 240 Pickerington, OH 43147 Lancaster, OH 43130
For Michael Butterbaugh
DAVID TAWNEY 117 West Main Street, Suite 208 Lancaster, OH 43130 Fairfield County, Case Nos. 13-CA-14, 13-CA-15, and 13CA-16 2
Farmer, J.
{¶1} On September 22, 2009, L.D., born December 23, 2003, J.D., born March
14, 2005, and B.D., born March 6, 2008, were found to be dependent children and
placed in the temporary custody of appellee, Fairfield County Child Protective Services.
Mother of the children is Roberta Prevette; father of L.D. is Michael Butterbaugh and
father of J.D. and B.D. is Charles Mack. Appellant, Lucas Davis, believed he was the
father of the three children, but genetic testing confirmed he was not.
{¶2} On February 28, 2012, appellant filed motions to intervene in the three
separate actions. By entries filed March 2, 2012, the trial court denied the motions.
{¶3} On March 10, 2011, appellee filed motions for permanent custody of the
children. Hearings were held on August 21, and November 20, 2012. By entries filed
January 8, 2013, the trial court granted permanent custody of the children to appellee.
Findings of fact and conclusions of law were attached to the entries.
{¶4} Appellant filed an appeal and this matter is now before this court for
consideration. Assignment of error is as follows:
I
{¶5} "THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING LUCAS
DAVIS' MOTION TO INTERVENE."
{¶6} Appellant claims the trial court erred in denying his motions to intervene.
We disagree.
{¶7} Appellant concedes he is not the biological father of the three children, but
argues he has the right to intervene having raised and cared for the children, and he is
the biological father of their half-sibling, J.D., born March 2, 2002. Fairfield County, Case Nos. 13-CA-14, 13-CA-15, and 13CA-16 3
{¶8} Appellee and the guardian ad litem argue appellant’s appeal is untimely.
The trial court denied appellant's motion to intervene on March 2, 2012 and the notice of
appeal was filed on February 5, 2013.
{¶9} R.C. 2505.02 governs final orders. Subsection (B) states the following:
(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:
(1) An order that affects a substantial right in an action that in effect
determines the action and prevents a judgment;
(2) An order that affects a substantial right made in a special
proceeding or upon a summary application in an action after judgment;
(3) An order that vacates or sets aside a judgment or grants a new
trial;
(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.
(5) An order that determines that an action may or may not be
maintained as a class action; Fairfield County, Case Nos. 13-CA-14, 13-CA-15, and 13CA-16 4
(6) An order determining the constitutionality of any changes to the
Revised Code***;
(7) An order in an appropriation proceeding that may be appealed
pursuant to division (B)(3) of section 163.09 of the Revised Code.
{¶10} A denial of a motion to intervene is an interlocutory order. Based upon the
finding of the lack of paternity, appellant was not a party to the actions pursuant to
Juv.R. 2(Y) which states, " '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."
{¶11} Therefore, no statutory or substantive right was denied. We conclude a
timely appeal was pursued in this case.
{¶12} On the issue of appellant's right to intervene, our standard of review is
limited to an abuse of discretion. Peterman v. Village of Pataskala, 122 Ohio App.3d
758 (5th Dist.1997). In order to find an abuse of discretion, we must determine the trial
court's decision was unreasonable, arbitrary or unconscionable and not merely an error
of law or judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217 (1983).
{¶13} Civ.R. 24 governs intervention and states the following:
(A) Intervention of right
Upon timely application anyone shall be permitted to intervene in
an action: (1) when a statute of this state confers an unconditional right to
intervene; or (2) when the applicant claims an interest relating to the Fairfield County, Case Nos. 13-CA-14, 13-CA-15, and 13CA-16 5
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.
(B) 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} Appellant is not the biological father of the children. It is appellant’s
position that for years, he believed he was the biological father of the children and
raised them.
Free access — add to your briefcase to read the full text and ask questions with AI
[Cite as In re L.D., 2013-Ohio-2713.] COURT OF APPEALS FAIRFIELD COUNTY, OHIO FIFTH APPELLATE DISTRICT
IN THE MATTER OF: : JUDGES: : Hon. W. Scott Gwin, P.J. L.D., J.D., B.D. : Hon. Sheila G. Farmer, J. : Hon. Patricia A. Delaney, J. : : Case Nos. 13-CA-14 : 13-CA-15 : 13-CA-16 : : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Juvenile Division, Case Nos. 2009-AB-0094, 2009-AB-0095, 2009- AB-0096
JUDGMENT: Affirmed
DATE OF JUDGMENT: June 26, 2013
APPEARANCES:
For Appellant For Appellee
AARON R. CONRAD JULIE S. BLAISDEL 120½ East Main Street 239 West Main Street, Suite 101 Lancaster, OH 43130 Lancaster, OH 43130
For Roberta Prevette Guardian ad Litem
ADRIENNE LARIMER KRISTI McANAUL 118 West Chestnut Street 660 Hill Road, North Lancaster, OH 43130 Pickerington, OH 43147
For L.D. For J.D.
JERROLD SCHWARTZ JASON DONNELL P.O. Box 482 P.O. Box 670 Pickerington, OH 43147 Pickerington, OH 43147
For B.D. For Charles Mack
JAMES DYE CHRISTINA MCGILL P.O. Box 161 123 South Broad Street, Suite 240 Pickerington, OH 43147 Lancaster, OH 43130
For Michael Butterbaugh
DAVID TAWNEY 117 West Main Street, Suite 208 Lancaster, OH 43130 Fairfield County, Case Nos. 13-CA-14, 13-CA-15, and 13CA-16 2
Farmer, J.
{¶1} On September 22, 2009, L.D., born December 23, 2003, J.D., born March
14, 2005, and B.D., born March 6, 2008, were found to be dependent children and
placed in the temporary custody of appellee, Fairfield County Child Protective Services.
Mother of the children is Roberta Prevette; father of L.D. is Michael Butterbaugh and
father of J.D. and B.D. is Charles Mack. Appellant, Lucas Davis, believed he was the
father of the three children, but genetic testing confirmed he was not.
{¶2} On February 28, 2012, appellant filed motions to intervene in the three
separate actions. By entries filed March 2, 2012, the trial court denied the motions.
{¶3} On March 10, 2011, appellee filed motions for permanent custody of the
children. Hearings were held on August 21, and November 20, 2012. By entries filed
January 8, 2013, the trial court granted permanent custody of the children to appellee.
Findings of fact and conclusions of law were attached to the entries.
{¶4} Appellant filed an appeal and this matter is now before this court for
consideration. Assignment of error is as follows:
I
{¶5} "THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING LUCAS
DAVIS' MOTION TO INTERVENE."
{¶6} Appellant claims the trial court erred in denying his motions to intervene.
We disagree.
{¶7} Appellant concedes he is not the biological father of the three children, but
argues he has the right to intervene having raised and cared for the children, and he is
the biological father of their half-sibling, J.D., born March 2, 2002. Fairfield County, Case Nos. 13-CA-14, 13-CA-15, and 13CA-16 3
{¶8} Appellee and the guardian ad litem argue appellant’s appeal is untimely.
The trial court denied appellant's motion to intervene on March 2, 2012 and the notice of
appeal was filed on February 5, 2013.
{¶9} R.C. 2505.02 governs final orders. Subsection (B) states the following:
(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:
(1) An order that affects a substantial right in an action that in effect
determines the action and prevents a judgment;
(2) An order that affects a substantial right made in a special
proceeding or upon a summary application in an action after judgment;
(3) An order that vacates or sets aside a judgment or grants a new
trial;
(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.
(5) An order that determines that an action may or may not be
maintained as a class action; Fairfield County, Case Nos. 13-CA-14, 13-CA-15, and 13CA-16 4
(6) An order determining the constitutionality of any changes to the
Revised Code***;
(7) An order in an appropriation proceeding that may be appealed
pursuant to division (B)(3) of section 163.09 of the Revised Code.
{¶10} A denial of a motion to intervene is an interlocutory order. Based upon the
finding of the lack of paternity, appellant was not a party to the actions pursuant to
Juv.R. 2(Y) which states, " '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."
{¶11} Therefore, no statutory or substantive right was denied. We conclude a
timely appeal was pursued in this case.
{¶12} On the issue of appellant's right to intervene, our standard of review is
limited to an abuse of discretion. Peterman v. Village of Pataskala, 122 Ohio App.3d
758 (5th Dist.1997). In order to find an abuse of discretion, we must determine the trial
court's decision was unreasonable, arbitrary or unconscionable and not merely an error
of law or judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217 (1983).
{¶13} Civ.R. 24 governs intervention and states the following:
(A) Intervention of right
Upon timely application anyone shall be permitted to intervene in
an action: (1) when a statute of this state confers an unconditional right to
intervene; or (2) when the applicant claims an interest relating to the Fairfield County, Case Nos. 13-CA-14, 13-CA-15, and 13CA-16 5
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.
(B) 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} Appellant is not the biological father of the children. It is appellant’s
position that for years, he believed he was the biological father of the children and
raised them. The children were initially placed with appellant's aunt, Donetta Hart, and
he lived in the same home. See, Memorandum Entries filed December 1, 2009.1
Appellant concedes the children were not placed with him, but with his aunt. Day 1 T. at
105. By entries filed February 2, 2010, the trial court ordered supervised visitation with
appellant, thereby finding placement where appellant would be present was not
1 The entries list Ms. Hart as appellant's "cousin" when in fact she is appellant's aunt. Fairfield County, Case Nos. 13-CA-14, 13-CA-15, and 13CA-16 6
permitted. Appellant has not taken care of the children since April 2010. Day 1 T. at
108. The social worker testified appellant did not successfully comply with his case
plan. Day 2 T. at 24.
{¶15} We note L.D. and J.D. were born during coverture. Appellant and their
mother were married on February 9, 2002 and were divorced in 2005, but remained
together until November 2008. Day 1 T. at 51-52.
{¶16} Appellant never sought custody of the children and in fact, stipulated he
was not able to assume custody or care for any of the children, but sought placement of
the children's half-sibling, his biological child, with his half-sister, Echo Fox. Day 1 T. at
60-61; Stipulations filed August 21, 2012.
{¶17} In consideration of all of the variables, we find the trial court did not abuse
its discretion in denying appellant's motion to intervene.
{¶18} The sole assignment of error is denied.
{¶19} The judgments of the Court of Common Pleas of Fairfield County, Ohio,
Juvenile Division are hereby affirmed.
By Farmer, J.
Gwin, P.J. and
Delaney, J. concur.
_______________________________
SGF/sg 522 JUDGES [Cite as In re L.D., 2013-Ohio-2713.]
IN THE COURT OF APPEALS FOR FAIRFIELD COUNTY, OHIO
FIFTH APPELLATE DISTRICT
IN THE MATTER OF: : : L.D., J.D., B.D. : JUDGMENT ENTRY : : : CASE NOS: 13-CA-14 : 13-CA-15 : 13-CA-16
For the reasons stated in our accompanying Memorandum-Opinion, the
judgments of the Court of Common Pleas of Fairfield County, Ohio, Juvenile Division,
are affirmed. Costs to appellant.
JUDGES