In re M.R. , 2021 Ohio 3012 ( 2021 )

[Cite as In re M.R., 2021-Ohio-3012.]
COURT OF APPEALS
TUSCARAWAS COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
IN RE: M.R. : Hon. W. Scott Gwin, P.J.
: Hon. William B. Hoffman, J.
: Hon. John W. Wise, J.
:
:
: Case No. 2021 AP 03 0008
:
:
: OPINION
CHARACTER OF PROCEEDING: Civil appeal from the Tuscarawas County
Court of Common Pleas, Juvenile Court
Division, Case No. 20JN00264
JUDGMENT: Affirmed in part; dismissed in part
DATE OF JUDGMENT ENTRY: August 31, 2021
APPEARANCES:
For - Appellee For - Appellant
LISA VITALE ARNOLD MONICA DERAMUS
389 16TH St. S.W. 203 Front Street S.E.
New Philadelphia, OH 44663 New Philadelphia, OH 44663
[Cite as In re M.R., 2021-Ohio-3012.]
Gwin, P.J.
{¶1} Appellant appeals the judgment entries of the Tuscarawas County Court of
Common Pleas, Juvenile Division.
Facts & Procedural History
{¶2} M.R. was born on February 17, 2012. Appellant M.J. is M.R.’s maternal
grandmother (“Grandmother”). In September of 2020, M.R.’s mother overdosed in front
of the child at a hotel, where the child was living with her parents. Appellee Tuscarawas
County Department of Job and Family Services (“TCDJFS”) thus became involved with
the family. As part of a safety plan implemented through TCDJFS, M.R. was placed with
a paternal aunt. Grandmother was given supervised visitation.
{¶3} The magistrate held a shelter care hearing on October 28, 2020. Skylar
Smolak (“Smolak”) of TCDJFS, testified that when she arrived at the hotel and was
looking for a family placement for M.R., she completed a criminal background and CPS
history check on Grandmother. Smolak and her supervisor deemed Grandmother an
unsuitable placement because she had two juveniles living in her home on probation for
charges related to drugs and domestic violence. A paternal aunt was approved as a
placement for M.R. The safety plan provided that M.R. would live with her aunt and that
M.R.’s aunt would supervise visitation between M.R. and Grandmother. After the safety
plan was put into place, M.R.’s parents cancelled multiple appointments with Smolak.
Grandmother called Smolak, asking to be considered for placement, and suggested
Smolak contact the probation officer for the juveniles living in her home. Smolak
contacted the probation officer, who did not recommend Grandmother for placement of
M.R. However, Grandmother was granted unsupervised visitation at that point.
Tuscarawas County, Case No. 2021 AP 03 0008 3
{¶4} On October 27, 2020, when Smolak contacted M.R.’s aunt to schedule a
home visit, the aunt informed Smolak that she gave M.R. to Grandmother. Thus, Smolak
contacted the court to issue an emergency pick-up order due to the violation of the safety
plan. Smolak discovered that, while the safety plan was in place, M.R.’s mother, M.R.’s
father, and Grandmother executed and filed in Knox County a grandparent power of
attorney, giving Grandmother certain rights over the child. The grandparent power of
attorney was written on a form from Nevada, and was not signed by a judge.
{¶5} On October 29, 2020, TCDJFS filed a complaint for neglect, dependency,
and custody of M.R. The complaint alleged as follows: the paternal aunt sent the child
to reside with Grandmother, thereby breaching the safety plan; while the safety plan was
in place and without notifying TCDJFS, M.R.’s mother, M.R.’s father, and Grandmother
executed a grandparent power of attorney giving Grandmother rights over the child; this
power of attorney violated the safety plan; Grandmother has two juveniles in her home
who are on probation for delinquency convictions related to drugs and domestic violence;
there are concerns about the conditions of Grandmother’s home; and the parents have a
history of involvement with children’s services in Coshocton County.
{¶6} On October 29, 2020, the trial court placed M.R. in the temporary custody
of TCDJFS. On the same date, the trial court appointed Gerrit denHeijer as the guardian
ad litem for the child.
{¶7} Grandmother filed a motion to intervene, motion for temporary custody,
motion for discovery, and motion for in-camera interview with M.R.
Tuscarawas County, Case No. 2021 AP 03 0008 4
{¶8} The trial court held an adjudicatory and dispositional hearing on December
21, 2020. M.R.’s parents both stipulated that M.R. is a neglected and dependent child.
Both also stipulated to a disposition of temporary custody to TCDJFS.
{¶9} The trial court issued a judgment entry on December 28, 2020. The trial
court denied Grandmother’s motion to intervene, and found the remainder of her motions
moot. The court granted Grandmother supervised visitation with M.R.
{¶10} On February 10, 2021, Grandmother filed a request for findings of fact and
conclusions of law stating as follows, “movant timely requests that the Judge enter
specific findings of fact and conclusions of law in support of the December 22, 2020
decision to deny the movant’s motion for leave to intervene.” The trial court denied the
motion on February 22, 2021.
{¶11} Grandmother filed an appeal, purporting to appeal both the December 28,
2020 judgment entry and the February 22, 2021 judgment entry, and assigning the
following as error:
{¶12} “I. THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION TO
INTERVENE AS A PARTY PURSUANT TO JUV.R. 2(Y) AND CIV.R. 24.”
I.
{¶13} In the first portion of her assignment of error, Grandmother argues the trial
court abused its discretion in denying her motion to intervene. In its appellate brief and
in a motion to dismiss filed on June 21, 2021, appellee contends a portion of
Grandmother’s appeal was not timely filed. We agree with appellee.
{¶14} While an order granting a motion to intervene in a juvenile court proceeding
is not a final appealable order, an order denying a grandparent’s motion to intervene in a
Tuscarawas County, Case No. 2021 AP 03 0008 5
neglect and dependency action is a final, appealable order. Green v. Evans, 5th Dist.
Tuscarawas No. 2020AP030011, 2021-Ohio-498; In re C.C., 12th Dist. Preble Nos.
CA2007-030005, CA2007-03-006, CA2007-Ohio-4361; In re Goff, 11th Dist. Portage No.
2001-P-0144, 2003-Ohio-6768.
{¶15} Appellate Rule 4(A)(1) provides that, “a party who wishes to appeal from an
order that is final upon its entry shall file the notice of appeal required by App.R. 3 within
30 days of that entry.” The trial court issued the order denying the motion to intervene on
December 28, 2020. The record indicates the notice of filing of this entry was issued to
the parties, including counsel for Grandmother, on the same day. Thus, Grandmother’s
notice of appeal was due by January 28, 2021. Grandmother filed her notice of appeal
on March 22, 2021, over fifty days later. Because Grandmother did not timely appeal the
denial of her motion to intervene, this Court is without jurisdiction to consider that portion
of Grandmother’s assignment of error. State ex rel. Pendell v. Adams Cty. Bd. of
Elections, 40 Ohio St.3d 58, 531 N.E.2d 713 (1998).
{¶16} Grandmother contends that her request for findings and fact and
conclusions of law extended her time for appeal. We disagree. Appellate Rule 4(B)(2)(d)
provides that an exception to the appeal period in Appellate Rule 4(A) “applies in a civil
case or juvenile proceedings, if a party files any of the following, if timely and appropriate
* * * (d) a request for findings of fact and conclusions of law under Civ.R. 52.” In this case,
as detailed below, Grandmother’s request for findings of fact and conclusions of law was
not timely. Accordingly, the exception contained in App.R. 4(B)(2)(d) is not applicable in
this case and the time for appealing the December 28, 2020 order was not extended.
Bonnette v. Bonnette, 9th Dist. Lorain No. 12CA010175, 2013-Ohio-981.
Tuscarawas County, Case No. 2021 AP 03 0008 6
{¶17} In the second portion of her assignment of error, Grandmother contends the
trial court committed error and abused its discretion in denying her request for findings of
fact and conclusions of law. We disagree.
{¶18} Civil Rule 52 requires that a request for findings of fact and conclusions of
law be made, “before the entry of judgment pursuant to Civ.R. 58, or not later than seven
days after the party filing the request has been given notice of the court’s announcement
of its decision, whichever is later * * *.” We review the trial court’s denial of a request for
findings of fact and conclusions of law under an abuse of discretion standard. Sayre v.
Furgeson, 3rd Dist. Shelby No. 17-15-16, 2016-Ohio-3500.
{¶19} We find the trial court did not abuse its discretion in denying Grandmother’s
request for findings of fact and conclusions of law pursuant to Civil Rule 52, because her
request was not timely. The trial court issued its entry denying the motion to intervene on
December 28, 2020. Accordingly, any request for findings and fact and conclusions of
law was due January 4, 2021. Grandmother did not file her request until February 10,
2021, well over seven days after the trial court’s judgment. The trial court thus properly
overruled the motion. Costakos v Costakos, 10th Dist. Franklin No. 03AP-959, 2004-
Ohio-2138.
{¶20} Accordingly, Grandmother’s assignment of error is overruled in part and
dismissed in part. The portion of Grandmother’s assignment of error arguing the trial
court committed error and abused its discretion in denying her request for findings of fact
and conclusions of law is overruled. We are without jurisdiction to consider the portion of
Grandmother’s assignment of error containing arguments about the merits of the trial
court’s denial of her motion to intervene.
Tuscarawas County, Case No. 2021 AP 03 0008 7
{¶21} The February 22, 2021 judgment entry of the Tuscarawas County Court of
Common Pleas, Juvenile Division, is affirmed. The appeal from the December 28, 2021
judgment entry of the Tuscarawas County Court of Common Pleas, Juvenile Division, is
dismissed.
By Gwin, P.J.,
Hoffman, J., and
Wise, John, J., concur