In re L.M. , 2021 Ohio 1630 ( 2021 )

[Cite as In re L.M., 2021-Ohio-1630.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
PREBLE COUNTY
IN RE: :
L.M., et al. : CASE NOS. CA2020-12-017
CA2020-12-018
:
OPINION
: 5/10/2021
:
:
APPEAL FROM PREBLE COUNTY COURT OF COMMON PLEAS
JUVENILE DIVISION
Case Nos. 20193112 18798; 20204059 18890
Rebecca Barthelemy-Smith, 7821 North Dixie Drive, Dayton, Ohio 45414, for appellant
Martin P. Votel, Preble County Prosecuting Attorney, Sean Brinkman, 101 East Main Street,
Eaton, Ohio 45320, for appellee, Preble County Job and Family Services Division
Mother, pro se
Father, pro se
Jacob Kovach, 115 West Main Street, Eaton, Ohio 45320, guardian ad litem
S. POWELL, J.
{¶ 1} Appellant, the maternal grandmother of Li.M. and La.M. ("Grandmother"),
appeals the decision of the Preble County Court of Common Pleas, Juvenile Division,
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denying her motions to intervene in the proceedings involving Li.M. and La.M., initiated by
appellee, Preble County Children Services ("PCCS"), after the children were separately
removed from the care of their mother ("Mother") and father ("Father"). For the reasons
outlined below, we affirm the juvenile court's decision.1
Facts and Procedural History
{¶ 2} Grandmother is the maternal grandmother of Li.M., born May 16, 2019, and
La.M., born April 22, 2020. Neither Mother nor Father is a party to this appeal.
{¶ 3} On November 20, 2019, PCCS obtained emergency custody of Li.M. after the
child was found by law enforcement officers in her Mother's and Father's care during the
execution of a drug-related search warrant. The next day, November 21, 2019, PCCS filed
a complaint alleging Li.M. was a dependent child. PCCS also requested the juvenile court
grant it temporary custody of Li.M.
{¶ 4} On December 10, 2019, the juvenile court adjudicated Li.M. a dependent
child. The juvenile court also granted PCCS' request for temporary custody of Li.M.
{¶ 5} On January 8, 2020, Grandmother moved to intervene in the temporary
custody proceedings regarding Li.M. Grandmother also moved for legal custody of Li.M.
Grandmother's motion to intervene, however, was not accompanied by the necessary
pleading, as defined in Civ.R. 7(A), setting forth the claim or defense for which intervention
was sought as required by Civ.R. 24(C).
{¶ 6} On April 23, 2020, PCCS obtained emergency custody of La.M. after the child
was born testing positive for illegal substances. Shortly thereafter, on April 29, 2020, PCCS
filed a complaint alleging La.M. was an abused and dependent child. Just as it had done
1. Pursuant to Loc.R. 6(A), we have sua sponte removed this case from the accelerated calendar for the
purposes of issuing this opinion.
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in its complaint regarding Li.M., PCCS also requested the juvenile court grant it temporary
custody of La.M.
{¶ 7} On May 7, 2020, Grandmother moved to intervene in the temporary custody
proceedings regarding La.M. Grandmother also moved for legal custody of La.M. Just as
before, Grandmother's motion to intervene was not accompanied by the necessary
pleading, as defined in Civ.R. 7(A), setting forth the claim or defense for which intervention
was sought as required by Civ.R. 24(C).
{¶ 8} On August 13, 2020, the juvenile court adjudicated La.M. an abused and
dependent child. The juvenile court also granted PCCS' request for temporary custody of
La.M.
Hearing on Grandmother's Motions to Intervene
{¶ 9} On September 14, 2019, the juvenile court held a hearing on both of
Grandmother's motions to intervene. During this hearing, the juvenile court heard testimony
from Grandmother and from Leah Johnson, an intake investigator with PCCS. Neither
Mother nor Father appeared at this hearing.
{¶ 10} Regarding La.M., Grandmother testified that she had never taken care of,
been in the same room with, or even seen anything other than photographs of La.M.
following her birth on April 22, 2020. However, as it relates to Li.M., Grandmother testified
that she had provided financial support, clothing, diapers, and "sometimes" formula for Li.M
during the six months that Mother, Father, and Li.M. lived with her after Li.M.'s birth on May
16, 2019. But, even then, Grandmother testified that she only provided this assistance
when Mother had extinguished the benefits she received from the Ohio Department of
Health's special supplemental nutritional program for women, infants, and children ("WIC").
{¶ 11} Grandmother also testified that she had only taken care of Li.M. when Mother
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"would take off and leave [her] with the baby" and "wouldn't come home for like two days."
Grandmother later testified that Mother would actually leave Li.M. with her for "like three
days and then sometimes there was four days," something that Grandmother claimed
Mother did "[a]t least every week" for a period of approximately six months. Thereafter,
when asked if Mother was primary caregiver for Li.M., Grandmother testified that Mother
was "supposed to be," but that she "helped" Mother, "you know take care of [Li.M.] too."
This included, for instance, Grandmother once taking Li.M. to the doctor because Mother
and Mother's "boyfriend" were "fighting at the time."2
{¶ 12} Johnson then testified. Johnson, who, as noted above, was an intake
investigator with PCCS, testified that she spoke with Grandmother as part of her inspection
of Grandmother's home for "possible kinship placement." During this time, Johnson testified
that Grandmother told her that she "did help [Mother] with care for [Li.M.]. But not as the
primary care giver." Johnson also testified that Grandmother told her that she was just
"helping [Mother] out" with Li.M. Johnson further testified that while speaking to Mother that
it was her, and not Grandmother, who was the primary caregiver for Li.M.
Juvenile Court's Decision Denying Grandmother's Motions
{¶ 13} On November 14, 2020, the juvenile court issued a decision denying
Grandmother's two motions to intervene. In so holding, the juvenile court initially stated:
Here, [Grandmother] asserted no "right" to custody of, or
visitation with, her granddaughters. She certainly has a "desire"
for such, but she never obtained, through statute, court order,
or other means, any legal right to custody or visitation. Her
concern for her granddaughters cannot be construed as a legal
interest that falls within the scope of Civ.R. 24. Certainly both
O.R.C. Chapter 2151 and the civil and juvenile rules should be
liberally construed to protect the interests of all concerned
parties, but the caselaw on this issue emphasizes that unless a
2. From the record, and taking Grandmother's testimony as a whole, it is unclear if Mother's "boyfriend" and
Father are the same person.
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child's extended family in some manner has filled the role of
parent, the law does not require that extended family members
be made parties to custody proceedings. The Court thus needs
to look as to whether [Grandmother] ever stood in loco parentis
to [Li.M.] and/or [La.M.]. Did [Grandmother] ever exercise
significant parental control over, or assume any parental duties
for the benefit of her granddaughters?
(Emphasis sic.)
{¶ 14} Answering that question in the negative, the juvenile court stated:
The testimony does not indicate that [Grandmother] ever stood
in loco parentis or that she exercised significant parental control
over or assumed parental duties for the benefit of [Li.M.] or
[La.M.]. The Court understands [Grandmother's] concern for
her granddaughters [but] rejecting her motion to intervene does
not mean that she will have no role in their lives. Here, though,
[Grandmother] has not met her burden of proving a legal right to
intervention or that a permissive right of intervention should be
granted. As such, [Grandmother's] Motion to Intervene is
denied.
(Emphasis sic.)
Appeal and Grandmother's Single Assignment of Error
{¶ 15} Grandmother now appeals, raising one assignment of error for review
challenging the juvenile court's decision denying both of her motions to intervene.
Specifically, Grandmother's single assignment of error states:
THE LOWER COURT ABUSED IT'S (sic) DISCRETION IN
REFUSING TO GRANT [GRANDMOTHER'S] MOTION TO
INTERVENE IN BOTH CASES INVOLVING THE MINOR
CHILDREN.
Rule of Law: Civ.R. 24(A), (B), and (C)
{¶ 16} This appeal involves the juvenile court's application of Civ.R. 24(A), (B), and
(C) to the case at bar. "Civ.R. 24 authorizes interested parties to intervene in an action as
a matter of right or permissively under certain circumstances." Clark v. Malicote, 12th Dist.
Clermont No. CA2010-07-049, 2011-Ohio-1874, ¶ 18. The rule regarding intervention of
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right is set forth in Civ.R. 24(A) and states:
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.
{¶ 17} Based on the plain language found in Civ.R. 24(A), intervention of right
requires the intervenor to satisfy four elements: (1) "the intervenor must claim an interest
relating to the property or transaction that is the subject of action;" (2) "the intervenor must
be so situated that the disposition of the action may, as a practical matter, impair or impede
the intervenor's ability to protect his or her interest;" (3) "the intervenor must demonstrate
that his or her interest is not adequately represented by the existing parties;" and (4) "the
motion to intervene must be timely." Classic Props., Inc. v. Bd. of Trustees of Goshen Twp.,
12th Dist. Clermont No. CA2001-05-051, 2002-Ohio-287, citing Peterman v. Pataskala, 122
Ohio App.3d 758, 760-761 (5th Dist.1997). "Failure of the party seeking to intervene to
satisfy each requirement of Civ.R. 24(A) * * * will result in denial of the right to intervene."
Liberty Twp. v. Woodland View, 12th Dist. Butler No. CA2001-02-038, 2001 Ohio App.
LEXIS 3641, *4 (Aug. 20, 2001), citing Fairview Gen. Hosp. v. Fletcher, 69 Ohio App.3d
827, 831 (10th Dist.1990).
{¶ 18} Unlike intervention of right under Civ.R. 24(A), the rule regarding permissive
intervention is set forth in Civ.R. 24(B), which states:
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
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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.
{¶ 19} However, "[r]egardless of whether the party desiring intervention argues for
intervention as of right under Civ.R. 24(A) or permissive intervention under Civ.R. 24(B),
Civ.R. 24(C) sets forth the procedure for filing a motion to intervene." In re B.L., 3d Dist.
Allen Nos. 1-15-65 thru 1-15-68, 2016-Ohio-2982, ¶ 15. Pursuant to that rule:
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.
{¶ 20} As defined by Civ.R. 7(A):
There shall be a complaint and an answer; a reply to a
counterclaim denominated as such; an answer to a cross-claim,
if the answer contains a cross-claim; a third-party complaint, if a
person who was not an original party is summoned under the
provisions of Civ.R. 14; and a third-party answer, if a third-party
complaint is served. No other pleading shall be allowed, except
that the court may order a reply to an answer or a third-party
answer.
Standard of Review
{¶ 21} "Civ.R. 24 is construed liberally in favor of granting intervention." Wells Fargo
Bank N.A. v. Brooks, 7th Dist. Columbiana No. 15 CO 0010, 2016-Ohio-8561, ¶ 14, citing
State ex rel. Merrill v. Ohio Dept. of Natural Resources, 130 Ohio St.3d 30, 2011-Ohio-
4612, ¶ 41. This holds true even for permissive intervention under Civ.R. 24(B). Ohio
Community School Consultants, Ltd. v. Lincoln Preparatory Academy, 10th Dist. Franklin
No. 19AP-301, 2020-Ohio-890, ¶ 28 ("[e]ven for permissive intervention under Civ.R. 24[B],
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the rule is to be construed liberally in favor of granting intervention"). But, even though the
rule is to be liberally construed, a motion to intervene is not automatically granted simply
because a request to intervene has been made. See Cincinnati Assn. of Indep. Taxicab
Owners, Inc. v. Turner, 1st Dist. Hamilton No. C-75411, 1976 Ohio App. LEXIS 5970, *3
(July 26, 1976) (intervention of right is not "automatic simply upon the filing of an application
containing averments corresponding to the requirements listed" in Civ.R. 24[A]).
{¶ 22} Rather, "[t]he decision to grant or deny a motion to intervene under either rule
is a matter within the sound discretion of the trial court and the decision cannot be reversed
on appeal absent an abuse of discretion." Woodland View, 2001 Ohio App. LEXIS 3641 at
*3, citing Clarke v. Warren Cty. Bd. of Commrs., 12th Dist. Warren No. CA2000-01-009,
2000 Ohio App. LEXIS 4199, *3 (Sept. 18, 2000); State v. Thomas, 6th Dist. Lucas No. L-
19-1108, 2021-Ohio-151, ¶ 12 ("[a]ppellate review of a trial court's decision on a motion to
intervene is for an abuse of discretion, regardless of whether the Civ.R. 24 intervention
sought was as of right or by permission"). "An abuse of discretion involves more than an
error of judgment; it connotes an attitude on the part of the court that is unreasonable,
unconscionable, or arbitrary." Adkins v. Boetcher, 4th Dist. Ross No. 08CA3060, 2010-
Ohio-554, ¶ 25. A decision is unreasonable where it is not supported by a sound reasoning
process. Nationwide Agribusiness Ins. Co. v. Heidler, 12th Dist. Clinton Nos. CA2018-06-
003, CA2018-07-004, CA2018-09-012, and CA2018-09-015, 2019-Ohio-4311, ¶ 46.
Analysis: Grandmother Did Not Comply with Civ.R. 24(C)
{¶ 23} As noted above, Civ.R. 24(C) requires a motion to intervene brought pursuant
to either Civ.R. 24(A) or Civ.R. 24(B) be accompanied by a pleading, as defined in Civ.R.
7(A), setting forth the claim or defense for which the intervention is sought. In this case,
however, it is clear that neither of Grandmother's motions to intervene were accompanied
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by the necessary pleadings as required by Civ.R. 24(C). Grandmother's motions were
instead, just that, motions consisting of a few short sentences underlying the reasons why
Grandmother believes Li.M. and La.M. should be placed in her care. These reasons,
although noteworthy, do not satisfy the procedural requirements under Civ.R. 24(C) for filing
a motion to intervene.
{¶ 24} The failure to comply with Civ.R. 24(C), standing alone, "is grounds for
denying a motion to intervene." In re Adoption of K., 6th Dist. Wood No. WD-18-018, 2018-
Ohio-3082, ¶ 9-10, citing In re Estate of Williams, 6th Dist. Sandusky No. S-14-018, 2015-
Ohio-4781, ¶ 16. Motions to intervene are, in fact, "regularly denied" based solely on the
intervenor's "failure to attach a pleading as required by Civ.R. 24(C)." Yemma v. Reed, 7th
Dist. Mahoning No. 16 MA 0015, 2017-Ohio-1015, ¶ 46. This includes in cases decided by
the Ohio Supreme Court. See State ex rel. Sawicki v. Court of Common Pleas of Lucas
Cty., 121 Ohio St.3d 507, 2009-Ohio-1523, ¶ 21 (affirming court of appeals' decision to deny
a motion to intervene where the proposed intervenor "did not file any pleading with its
motion" as required by Civ.R. 24[C] even though "the court of appeals did not rely on this
ground in its decision denying [the intervenor's] motion to intervene"); State ex rel. Wilkinson
v. Reed, 99 Ohio St.3d 106, 2003-Ohio-2506, ¶ 12, fn.1 (denying motion to intervene where
proposed intervenors failed to comply with Civ.R. 24[C]).
{¶ 25} "[A] party's failure to file a pleading in compliance with Civ.R. 24(C) is fatal to
a motion to intervene." Sutton v. Sutton, 9th Dist. Summit No. 28393, 2017-Ohio-5559, ¶
8. Therefore, because Grandmother failed to comply with Civ.R. 24(C) when filing either of
her two motions to intervene, it would have been proper for the juvenile court to deny
Grandmother's motions on that basis alone. See, e.g., Waynesburg Holdings, LLC v. Wells
Fargo Bank, N.A., 5th Dist. Stark No. 2019CA00015, 2019-Ohio-4764, ¶ 45 ("the trial court
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properly denied appellants' motion [to intervene] for failure to comply with Civil Rule 24[C]
on that basis alone"), citing Avanti Corp. v. Morelli Realty Corp., 5th Dist. Stark No.
2005CA00147, 2005-Ohio-6698, ¶ 17. Accordingly, since neither of Grandmother's two
motions to intervene were accompanied by the necessary pleading as required by Civ.R.
24(C), the juvenile court's decision denying Grandmother's two motions was not an abuse
of discretion, as the juvenile court's decision was supported by a sound reasoning process.
See, e.g., Schaffer v. Jones, 1st Dist. Hamilton No. C-160684, 2017-Ohio-7730, ¶ 21
("[s]ince the proposed intervenors' motion to intervene was not accompanied by a pleading
as described in Civ.R. 7[A], the trial court's denial of their motion was not an abuse of
discretion, as the denial was supported by a sound reasoning process").
Analysis: Grandmother Failed to Satisfy Either Civ.R. 24(A) or (B)
{¶ 26} Even assuming Grandmother's two motions to intervene were accompanied
by the necessary pleadings as required by Civ.R. 24(C), which they were not, the juvenile
court still did not abuse its discretion by denying Grandmother's motions on their merits.
Grandmother Did Not Meet Her Burden Under Civ.R. 24(A)
{¶ 27} Grandmother did not indicate in either of her two motions whether she sought
to intervene pursuant to Civ.R. 24(A) or (B), nor did Grandmother make a clear indication
at the hearing on her motions whether she was seeking an intervention of right or a
permissive intervention. The same is true as it relates to her appellate brief submitted to
this court. Grandmother, however, does state in her brief that Li.M. and La.M. "should be
placed together with biological family," presumably making the case that the children should
be placed with her rather than in foster care. This implies, at least to this court, that
Grandmother believes the juvenile court erred by denying her motions to intervene since
she is entitled to intervention of right under Civ.R. 24(A) due to the simple fact that she is
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Li.M.'s and La.M.'s grandmother. We disagree.
{¶ 28} Despite Grandmother's claims, it is well-established that neither a
grandparent's desire for custody or visitation of a grandchild nor a grandparent's concern
for the welfare of a grandchild can be construed "as a legal interest that falls within the
scope of Civ.R. 24(A)." In re Schmidt, 25 Ohio St.3d 331, 336 (1986). This is because
"[t]he 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). Therefore, just as the juvenile court found, while
Grandmother certainly has a "desire" to obtain custody of her grandchildren, Grandmother
"asserted no 'right' to custody of, or visitation with her granddaughters," given that
Grandmother "never obtained, through statute, court order, or other means, any legal right
to custody or visitation" with either child. We find no error in the juvenile court's decision.
See, e.g., In re K.K.E., 5th Dist. Tuscarawas No. 2020 AP 08 0016, 2020-Ohio-6723, ¶ 12-
14 (juvenile court did not err by denying a Civ.R. 24[A] motion to intervene filed by paternal
aunt and uncle where the aunt and uncle never obtained, prior to their motion to intervene,
through statute, court order, or other means, any legal right to custody or visitation with the
child). Accordingly, given the facts of this case, the juvenile court did not err by denying
Grandmother's motions to intervene of right under Civ.R. 24(A).
Grandmother Did Not Meet Her Burden Under Civ.R. 24(B)
{¶ 29} Grandmother makes a more explicit argument as it relates to permissive
intervention under Civ.R. 24(B). Specifically, Grandmother argues the juvenile court erred
by denying her motions to intervene since this is a "clear case" of a grandparent being in
loco parentis with her two grandchildren, Li.M. and La.M. This, according to Grandmother,
indicates the juvenile court erred by denying her motions for permissive intervention under
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Civ.R. 24(B). We again disagree.
{¶ 30} A juvenile court may be found to have abused its discretion in denying a
motion to intervene under Civ.R. 24(B) where "the person attempting to intervene in some
manner filled the role of the parents." In re K.K.E., 2020-Ohio-6723 at ¶ 17, citing In re
T.H., 5th Dist. Muskingum No. CT2016-0008, 2016-Ohio-7310. This is more commonly
known as in loco parentis. See Glancy v. Spradley, 12th Dist. Butler No. CA2012-02-024,
2012-Ohio-4224, ¶ 11; see also In re A.T., 3d Dist. Crawford Nos. 3-19-07 thru 3-19-09,
2019-Ohio-5038, ¶ 15 (noting that "[a] number of appellate districts have, in various cases,
held that a trial court abuses its discretion by denying a motion for intervention where the
grandparents have stood in loco parentis to their grandchild"). "According to the Ohio
Supreme Court, 'the term in loco parentis means charged, factitiously, with a parent's rights,
duties, and responsibilities.'" (Internal quotation marks deleted). McLoughlin v. Williams,
12th Dist. Clermont No. CA2015-02-020, 2015-Ohio-3287, ¶ 9, quoting State v. Noggle, 67
Ohio St.3d 31, 33 (1993). "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., 8th Dist. Cuyahoga No. 104498, 2016-
Ohio-7967, ¶ 15, quoting Black's Law Dictionary 787 (6th Ed.1990).
{¶ 31} Applying these principles to the case at bar, Grandmother testified that she
had never taken care of, been in the same room with, or even seen anything other than
photographs of La.M. following her birth. Grandmother, therefore, clearly never stood in
loco parentis with La.M.
{¶ 32} We find the same to be true as it relates to Li.M. This is because, as the
record indicates, Grandmother never exercised significant parental control over, or
assumed parental duties for the benefit of, Li.M. prior to Li.M.'s removal from Mother's and
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Father's care. Grandmother instead merely assisted Mother with the care of Li.M. as
needed or, presumably, as requested. This includes times when Mother would leave Li.M.
in Grandmother's care for a period of two to four days, as well as times when Grandmother
provided financial support, clothing, diapers, and "sometimes" formula to Mother after
Mother extinguished the benefits she received from WIC. Grandmother, in fact, specifically
testified that while Mother was "supposed to be" Li.M.'s primary caretaker, she would
nevertheless help Mother by taking care of Li.M., too. This includes one instance where
Grandmother took Li.M. to the doctor because Mother and Mother's "boyfriend" were
"fighting at the time." This does not constitute in loco parentis. See In re J.B., 8th Dist.
Cuyahoga No. 103521, 2016-Ohio-5513, ¶ 49 (no error to deny motion to intervene where
there was no evidence that appellee "exercised significant control over or assumed parental
duties for the benefit of the children" even though it was "uncontested" that appellee "loves
the children").
{¶ 33} In light of the foregoing, although we do not discount the relationship that
Grandmother hopes to develop with her grandchildren, the juvenile court did not err by
denying Grandmother's motions to intervene in either case. In so holding, we note that, just
like the juvenile court before us, this does not mean that Grandmother will have no role in
either of her grandchildren's lives. Grandmother could, for instance, move for visitation with
the children, or, as Grandmother has already done in this case, move for legal custody of
the children. See R.C. 3109.12 (permitting grandparents and other relatives of a child born
to an unwed woman to seek visitation with the child);3 and R.C. 2151.353(A)(3) (permitting
the juvenile court to grant legal custody of a child who has been adjudicated an abused,
3. The record in this case is sparse. However, after a thorough review of the record, it appears that both Li.M.
and La.M. were children born to an unwed woman, in this case, Mother.
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neglected, or dependent child to a grandparent "who, prior to the dispositional hearing, files
a motion requesting legal custody of the child"). Grandmother need not intervene in the
case before either request may be made and/or granted by the juvenile court. Therefore,
finding no merit to any of the arguments raised by Grandmother herein, Grandmother's
single assignment of error lacks merit and is overruled.
{¶ 34} Judgment affirmed.
M. POWELL, P.J., and HENDRICKSON, J., concur.
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