In re R.B.

2020 Ohio 5134

• Court: Ohio Court of Appeals
• Decided: November 2, 2020
• Docket: 1-20-05
• Status: Published

Opinion

[Cite as In re R.B., 2020-Ohio-5134.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT ALLEN COUNTY

IN RE:

R.B., CASE NO. 1-20-05

ADJUDICATED DEPENDENT CHILD. OPINION [CARRIE B. - APPELLANT]

Appeal from Allen County Common Pleas Court Juvenile Division Trial Court No. 2019 JG 36391

Judgment Affirmed

Date of Decision: November 2, 2020

APPEARANCES:

Shannon A. Hiler fka McAlister for Appellant Case No. 1-20-05

SHAW, P.J.

{¶1} Appellant, Carrie B. (“Carrie”), brings this appeal from the December

19, 2019 judgment of the Allen County Common Pleas Court, Juvenile Division,

declining her request to be joined and intervene as a third party in the matter of the

Adjudicated Dependent minor child, R.B. On appeal, Carrie argues that the trial

court erred by denying her motion to intervene as a third party.

Background

{¶2} R.B. was born in August of 2019. Her parents are Amber C. and Devin1

B. Amber and Devin did not live together. Carrie is Devin’s mother and paternal

grandmother of R.B.

{¶3} On September 24, 2019, a complaint was filed alleging that R.B. was a

Dependent and Abused Child. The complaint alleged that R.B. tested positive for

THC at birth, that Amber admitted to the continued use of marijuana, that Amber

was unable to care for R.B., and that Amber had lost custody of two other children

in Kentucky through children services.

{¶4} On September 30, 2019, a shelter care hearing was held wherein

findings of fact were made by the trial court. In addition to Amber’s drug issues,

and the issues related to Amber losing custody of two other children listed in the

1 The first name of R.B.’s father is spelled differently at various points in the record, sometimes “Devon” and other times “Devin.” In his own affidavit of indigency his name is listed as “Devin” thus we will use this spelling.

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complaint, findings of fact were made that Amber had difficulty paying her rent,

that she was unable to maintain employment, that she refused agency assistance for

daycare, and that she had a prior conviction in Kentucky for permitting minors to

use illegal drugs. Further, since the complaint had been filed, R.B. had been taken

to the emergency room with a skull fracture and bruising on her legs and back as

well as other injuries. Amber alleged the injuries were sustained when R.B. fell out

of bed.

{¶5} The trial court determined that there was probable cause to believe that

R.B. was in immediate danger from her surroundings and that removal was

necessary to prevent immediate or threatened physical or emotional harm. In

addition, the trial court found that there was probable cause to believe that the

conduct, conditions, or surroundings of R.B. were endangering her health, welfare,

or safety. It was determined that the continued residence of R.B. in her home would

be contrary to her best interests. R.B. was then placed in the temporary custody of

Carrie, her paternal grandmother, in lieu of shelter care pending adjudication and

disposition.

{¶6} An amended complaint was filed October 2, 2019, adding abuse

allegations related to R.B.’s skull fracture and bruising. A doctor had informed the

children’s services agency that the injuries were inconsistent with how Amber stated

that they occurred.

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{¶7} On October 18, 2019, a case plan was filed with the permanency goal

of reunifying R.B. with her parents, Amber and Devin.

{¶8} On October 21, 2019, Carrie filed a “Motion to be joined and intervene

as a third party.” She argued that R.B. had been in her care since the shelter care

hearing, that she wished to be granted legal custody of R.B., and that such an

allocation would be in R.B.’s best interest. Further, she alleged that Amber was

unfit and unable to provide for the minor child, and that Devin, her son, was not in

a position to care for the child on a full-time basis. On that same date Carrie also

filed a motion for legal custody of R.B., and a motion for visitation in the event that

her motion for legal custody was not granted.

{¶9} On October 21, 2019, an adjudicatory hearing and dispositional hearing

was held before a magistrate. At the hearing the parties indicated that they had

reached an agreement, which was read into the record, wherein R.B. was found to

be a dependent child pursuant to R.C. 2151.04(C) and R.C. 2151.04(D), and the

abuse allegation was dismissed. For disposition R.B. was placed in the temporary

custody of Carrie, “a suitable member of the child’s extended family.” (Doc. No.

47). Both parents were in agreement with R.B. being placed in Carrie’s temporary

custody. That order would terminate on September 23, 2020, unless a motion to

terminate, modify, or extend was filed with the trial court by August 23, 2020. On

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December 2, 2019, the trial court filed an entry adopting the magistrate’s decision

with regard to adjudication and disposition.

{¶10} On November 1, 2019, a GAL report was filed. The report stated,

inter alia, that Amber desired to have R.B. returned to her care and Devin expressed

his desire that R.B. remain with his mother, Carrie, until he could take care of R.B.

on his own.

{¶11} On December 13, 2019, a hearing was held on Carrie’s motion to be

joined as a third party and to intervene. Carrie testified at the hearing that she

wanted to take legal custody of R.B., that she believed Amber was unfit, and that

Devin was in agreement that Carrie should take legal custody of R.B. The agency

and the GAL did not take a position with regard to Carrie’s motion to intervene

while Devin did support the motion through his attorney. Amber objected to

Carrie’s intervention in this matter.

{¶12} On December 19, 2019, the trial court filed a judgment entry denying

Carrie’s motion to intervene. In support of its decision, the trial court cited, at

length, a recent decision from this Court, In re A.T., 3d Dist. Crawford Nos. 3-19-

07, 3-19-08, 3-19-09, 2019-Ohio-5038, wherein we affirmed the trial court’s denial

of a grandparent’s motion to intervene in a children’s services case. In that case this

Court analyzed the legal authority and determined that a grandparent cannot

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intervene as of right pursuant to Civ.R. 24(A), citing as support In re Schmidt, 25

Ohio St.3d 331, 496 N.E.2d 952 (1985).

{¶13} We then analyzed whether a grandparent could “permissively”

intervene pursuant to Civ.R. 24(B) The A.T. decision determined that for a

grandparent to be able to intervene in a permanent custody proceeding, the

grandparent has to have stood in loco parentis to the grandchild. A.T. at ¶ 14. We

quoted the legal definition of “in loco parentis” as,

“ ‘ “The term ‘in loco parentis’ means ‘charged, factitiously, with a parent’s rights, duties, and responsibilities.” ’ State v. Noggle, 67 Ohio St.3d 31, 33, 1993-Ohio-189, 615 N.E.2d 1040, quoting Black’s Law Dictionary (6 Ed. 1990) 787. A person who stands in loco parentis to a child has assumed similar duties to that of a guardian or custodian, only not through legal proceedings. Id.”

In re A.T., ¶ 16, quoting In re J.B., 8th Dist. Cuyahoga No. 103521, 2016-Ohio-

5513, ¶ 48, quoting State v. Burgett, 3d Dist. Marion No. 9-09-14, 2009-Ohio-5278,

¶ 23.

{¶14} The trial court reasoned that although Carrie had temporary custody

of R.B., she only assumed care and control of R.B. under the “express legal

approval” of the trial court. (Emphasis sic) (Doc. No. 60). “She therefore does not

have standing as a person who has acted in loco parentis.” (Id.)

{¶15} Further, the trial court noted our reasoning that a trial court had an

obligation to protect a child’s parents as parties to the action and permitting

intervention would give the parents additional party opponents. The trial court

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emphasized that the case plan approved and adopted by the trial court had a goal of

reunification with the parents and the case plan and services were designed with that

goal in mind.

{¶16} Finally, the trial court stressed that the denial of intervention did not

preclude the grandparents from being considered for placement as legal custodians

of R.B. if reunification was not possible. Carrie now appeals the trial court’s denial

of her motion to intervene, asserting the following assignment of error for our

review.

Assignment of Error Appellant alleges that the trial court committed error by failing to allow [Carrie] to intervene in this matter and be joined as a third party.

{¶17} In her assignment of error, Carrie argues that the trial court erred by

denying her motion to intervene in this matter. Specifically, she contends that the

trial court failed to make sufficient findings to deny her motion, that as temporary

custodian of R.B. Carrie had been acting in loco parentis contrary to the trial court’s

finding, that the trial court misapplied In re A.T., 3d Dist. Crawford Nos. 3-19-07,

3-19-08, 3-19-09, 2019-Ohio-5038, and that the trial court had issued inconsistent

judgments in other cases regarding whether a grandparent could intervene in a

permanent custody proceeding.

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Standard of Review

{¶18} “ ‘In reviewing the trial court’s denial of a motion to intervene, the

proper standard of review is whether the trial court’s action constituted an abuse of

discretion.’ ” In re A.T., 3d Dist. Crawford No. 3-19-07, 2019-Ohio-5038, ¶ 12,

quoting Weikle v. Peake, 3d Dist. Union No. 14-2000-09, 2000 WL 1049310, *4

(July 27, 2000) and State ex rel. Merrill v. Ohio Dept. of Natural Resources, 130

Ohio St.3d 30, 2011-Ohio-4612, 955 N.E.2d 935, ¶ 41 (holding that “[w]hether

intervention is granted as of right or by permission, the standard of review is whether

the trial court abused its discretion in allowing intervention.”). To constitute an

abuse of discretion, a trial court’s decision must be unreasonable, arbitrary, or

capricious. Mousa v. Saad, 3d Dist. Marion No. 9-18-12, 2019-Ohio-742, ¶ 29;

Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). The abuse of discretion

standard is deferential and does not permit an appellate court to simply substitute its

judgment for that of the trial court. In re C.M., J.B., 4th Dist. Athens Nos. 17CA16,

17CA17, 2017-Ohio-9037, ¶ 40, citing State v. Darmond, 135 Ohio St.3d 343, 2013-

Ohio-966, ¶ 34.

Analysis

{¶19} In this case, Carrie is seeking to intervene to become a party. Juvenile

Rule 2(Y) defines parties to a juvenile court proceeding. It reads,

“Party” means a child who is the subject of a juvenile court proceeding, the child’s spouse, if any, the child’s parent or

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parents, or if the parent of a child is a child, the parent of that parent, in appropriate cases, the child’s custodian,2 guardian, or guardian ad litem, the state, and any other person specifically designated by the court.

Juv.R. 2(Y).

{¶20} Carrie does not fall into a category of a person who is automatically

made a party to a juvenile court proceeding. However, if an individual is not

automatically made a party to a juvenile court proceeding, “[a] juvenile court may

rely on Civ.R. 24 in exercising its discretion under Juv.R. 2(Y)[,]” to allow a party

to intervene. In re B.L., 3d Dist. Allen Nos. 1-15-65, 1-15-66, 1-15-67, and 1-15-

68, 2016-Ohio-2982, ¶ 13. Importantly, the Rules of Civil Procedure are not binding

upon a juvenile court, but courts have found that the civil rules can provide

discretionary guidance. In the Matter of R.R., 4th Dist. Athens No. 17CA21, 2017-

Ohio-8928, ¶ 23 (“Most appellate districts have held either expressly or, by

implication in their analyses, that Civ.R. 24 provides guidance to the trial court in

juvenile custody proceedings.”) (Emphasis sic.).

{¶21} In this case, Carrie argues that although she was not automatically a

party to this case under Juv.R. 2(Y), she should have been allowed to intervene as a

2 For reference, custodian is defined in Juv.R. 2(H): “Custodian” means a person who has legal custody of a child or a public children’s services agency or private child-placing agency that has permanent, temporary, or legal custody of a child.” (Emphasis added.) Thus Carrie would not qualify as a “custodian” because she does not have “legal custody” of R.B., merely temporary custody.

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third party pursuant to Civil Rule 24, which generally governs intervention in civil

cases. It reads as follows.

(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 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.

(C) Procedure. A person desiring to intervene shall serve a motion to intervene upon the parties as provided in Civ.R. 5. The motion and any supporting memorandum shall state the grounds for intervention and shall be accompanied by a pleading, as defined in Civ.R. 7(A), setting forth the claim or defense for which intervention is sought. The same procedure shall be followed when a statute of this state gives a right to intervene.

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Notably, “[b]oth Juv.R. 2(Y) and Civ.R. 24(B) imbue the trial court with discretion

to permit intervention under the appropriate circumstances.” (Emphasis added.) In

the Matter of B.A., 7th Dist. Noble Nos. 16NO0433, 2017-Ohio-1019, ¶ 21.

{¶22} In analyzing Civ.R. 24 in this matter, Carrie first contends that she

should have been able to intervene as of right pursuant to Civ.R. 24(A). However,

the Supreme Court of Ohio has been clear that, “The law does not provide

grandparents with inherent legal rights based simply on the family relationship.” In

re H.W., 114 Ohio St.3d 65, 2007-Ohio-2879, ¶ 9, citing In re Whitaker, 36 Ohio

St.3d 213, 215 (1988). Juvenile Rule 2(Y) “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.” (Emphasis added.) In

re H.W. at ¶ 10. Under the circumstances of this case, since neither Amber nor

Devin are juveniles, and since the Supreme Court of Ohio has indicated there are

not inherent legal rights for grandparents based on the family relationship, there is

no legal basis for an intervention as of right under Civ.R. 24(A).

{¶23} Thus we must determine if the trial court abused its discretion in

denying Carrie’s motion to intervene under the non-binding Civil Rule 24(B).

Regarding this provision, Carrie contends that she has grounds to permissively

intervene because she is standing “in loco parentis” of R.B. since R.B. was placed

in her temporary custody at the shelter care hearing. As we have noted previously,

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“[s]ome appellate districts in Ohio have held that a grandparent has an appropriate

basis from which to intervene in a permanent custody proceeding when that

grandparent has stood in loco parentis to his or her grandchild.” In re A.T., 3d Dist.

Crawford No. 3-19-07, 2019-Ohio-5038, ¶ 14, citing In re C.M., 4th Dist. Athens

No. 17CA16, 2017-Ohio-9037, ¶ 63, citing In re N.M., 8th Dist. Cuyahoga No.

104498, 2016-Ohio-7967, ¶¶ 13-14; In re C.M., 9th Dist. Summit No. 21720, 2004-

Ohio-1984, ¶ 21; In re D.T., 10th Dist. Franklin No. 07AP-853, 2008-Ohio-2287, ¶

11; In re B. Children, 12th Clermont No. 2007-06-077, 2008-Ohio-354, ¶ 22.

{¶24} “In loco parentis ‘exists when [a] person undertakes care and control

of another in absence of such supervision by [the] latter’s natural parents and in

absence of formal legal approval * * *.’ ” In re N.M., supra, at ¶ 15, quoting Black's

Law Dictionary 787 (6th Ed.1990).

“The term ‘in loco parentis’ means ‘charged, factitiously, with a parent’s rights, duties, and responsibilities.’ ” State v. Noggle, 67 Ohio St.3d 31, 33, 1993-Ohio-189, 615 N.E.2d 1040, quoting Black's Law Dictionary (6 Ed. 1990) 787. A person who stands in loco parentis to a child has assumed similar duties to that of a guardian or custodian, only not through legal proceedings. Id.

In re J.B., 8th Dist. Cuyahoga No. 103521, 2016-Ohio-5513, ¶ 48, quoting State v.

Burgett, 3d Dist. Marion No. 9-09-14, 2009-Ohio-5278, ¶ 23; In re A.T. at ¶ 16.

{¶25} In this case, the trial court found that Carrie only “assumed the care

and control of the Child under the express legal approval of this Court. She therefore

does not have standing as a person who has acted in loco parentis.” (Emphasis sic.)

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The record supports the trial court’s determination in that there is no indication in

the record that Carrie assumed any duties in caring for R.B. prior to the trial court’s

order, which means Carrie only assumed her duties through a court order.

{¶26} However, this was not the only reason that the trial court denied

Carrie’s motion to intervene. The trial court also reasoned that it had an obligation

to protect the interests of the children’s parents as parties to the action and that by

permitting Carrie’s intervention, the parties, especially Amber, would have another

party opponent. (Doc. No. 66) citing In re A.T. at ¶ 19.

{¶27} In addition, the trial court was persuaded by the following passage that

this Court quoted In re A.T., 3d Dist. Crawford No. 3-19-07, 2019-Ohio-5038, ¶ 20:

if the maternal grandparents seek placement as an alternative to a grant of permanent custody, then they do not need to be afforded party status to present that * * *. If a child cannot be reunited to the family home in a reasonable time and an alternative placement is required, then the maternal grandparents technically do not need to intervene to be afforded party status to be considered for the placement of the child as they are persons within the preferred class of people the statute provides should be considered for alternate placement.

The trial court directly quoted this language from the In re A.T. opinion and the trial

court was evidently keenly aware of the possibility that Carrie could still seek legal

custody as an alternative to a grant of permanent custody, if the case came to that

point. Further, the trial court emphasized that, “the Movant’s goal of legal custody

to herself is contrary to the permanency goal stated in the case plan as adopted by

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the court.” (Doc. No. 66). The current case plan seeks reunification and Amber

expressed to the GAL that her desire was to be reunited with R.B.

{¶28} We are aware that there are some slight factual differences between

this case and the case of In re A.T.; however, the legal reasoning is readily applicable

to the case before us, particularly in a discretionary matter.3 Under the specific facts

and circumstances of this case, we cannot find that the trial court abused its

discretion by denying Carrie’s motion to intervene, particularly where Carrie still

has the opportunity to be considered for legal placement of R.B. if reunification does

not occur.4 For these reasons, Carrie’s assignment of error is overruled.

Conclusion

{¶29} For the foregoing reasons Carrie’s assignment of error is overruled and

the judgment of the Allen County Common Pleas Court, Juvenile Division, is

affirmed.

PRESTON and WILLAMOWSKI, J.J., concur.

3 We note another case out of this Court, In re B.L., 3d Dist. Allen Nos. 1-15-65, 1-15-66, 1-15-67, and 1- 15-68, 2016-Ohio-2982, discussed the necessity of including pleadings with a motion to intervene in order to satisfy Civ.R. 24(C). However this issue was not addressed by the trial court, therefore we will not address it either. 4 We are aware of the two cases attached to the brief by Carrie from the same juvenile court wherein grandparents were permitted to intervene. Those cases are not before us for review, and one predates our opinion release of In re A.T., discussed at length herein. The fact that disparate holdings are coming out of the same juvenile court is not necessarily of concern given that it is a discretionary matter; however, given that the juvenile court is evidently issuing different rulings regarding grandparent intervention in cases such as this, it is very important for the trial court to state its reasons for granting or denying a motion to intervene so that the determination can be adequately reviewed.

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