In re B.A.

[Cite as In re B.A., 2017-Ohio-1019.]
STATE OF OHIO, NOBLE COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
IN THE MATTER OF: ) CASE NOS. 16 NO 0433
) 16 NO 0434
B.A. )
D.O.B.: 10-20-2015 ) OPINION
)
)
)
CHARACTER OF PROCEEDINGS: Civil Appeals from the Court of Common
Pleas, Juvenile Division, of Noble
County, Ohio
Case No. 215-3033
JUDGMENT: Affirmed.
APPEARANCES:
For Appellant/Mother: Atty. Mary G. Warlop
Abney Law Office, LLC
116 Cleveland Ave. N.W., Suite 500
Canton, Ohio 44702
For Appellant/Father: Atty. Gregory J. Wysin
2037 Brady Lake Road
Kent, Ohio 44240
For Appellee/State of Ohio: Atty. Kelly A. Riddle
Noble County Prosecutor
508 North Street
Caldwell, Ohio 43724
For Appellee/Legal Custodian: Atty. Jeanette M. Moll
P.O. Box 461
Zanesville, Ohio 43701
JUDGES:
Hon. Cheryl L. Waite
Hon. Gene Donofrio
Hon. Mary DeGenaro
Dated: March 20, 2017
[Cite as In re B.A., 2017-Ohio-1019.]
WAITE, J.
{¶1} In these consolidated appeals Appellants Tana Guiler (“Guiler”) and
Kelly Anderson (“Anderson”), hereinafter collectively “Appellants,” challenge the
judgment of the Noble County Court of Common Pleas, Juvenile Division, granting
legal custody of the minor child, B.A. to the child’s paternal aunt, Appellee Heather
Maxwell (“Maxwell”). The State of Ohio is also an Appellee in this action. Guiler and
Anderson both argue the trial court erred in not complying with Juv.R. 29. Guiler also
argues the complaint should have been dismissed as the disposition was held more
than ninety days after the hearing. Anderson asserts the trial court erred in allowing
Maxwell to intervene as a matter of right. For the reasons expressed below, none of
Appellants’ arguments have merit and the judgment of the trial court is affirmed.
Factual and Procedural History
{¶2} On October 20, 2015, Guiler gave birth to B.A. Prior to the infant’s
release from the hospital, Noble County Department of Job and Family Services
(“NCDJFS”) filed a complaint alleging that B.A. was an abused and dependent child.
NCDJFS had received a referral from the hospital to the effect that B.A. and Guiler
had each tested positive for illicit drugs at the time of birth and that B.A. was
exhibiting signs of withdrawal.
{¶3} A shelter care hearing was held on October 30, 2015. The court
ordered B.A. into the temporary custody of NCDJFS with placement in the home of
Maxwell, his paternal aunt. The matter was then set for adjudication. On January 4,
2016, an adjudicatory hearing was held where the parents stipulated to dependency
and the trial court accepted the admissions of dependency. NCDJFS dismissed the
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allegations of abuse. In a judgment entry dated January 8, 2016, the trial court held,
in pertinent part:
The Court was informed that the parties had reached an agreement and
that the parents intended on admitting to dependency. The Court called
upon the parents, and both admitted that the child was dependent. The
State moved to dismiss the abuse allegation.
The Court finds that it has jurisdiction of the parties and the subject
matter. Based upon the evidence and by agreement of the parties, the
Court further finds that clear and convincing evidence exists that the
minor child is dependent as defined in the Ohio Revised Code.
(1/8/16 J.E., pp. 1-2.)
{¶4} The trial court continued the emergency custody order and scheduled
the matter for disposition on March 9, 2016. On February 10, 2016, the court held a
hearing on outstanding motions, including a motion to intervene made pursuant to
Civ.R. 24, a motion for temporary custody and motions made as to alleged drug
abuse by the parents. The trial court granted Maxwell’s motion to intervene and her
motion seeking to order both parents to submit to hair follicle testing. The trial court
also ordered that visitation with the parents should continue.
{¶5} A dispositional hearing was held on June 3, 2016. In a judgment entry
dated June 15, 2016, the trial court held: (1) the child had been adjudicated
dependent on January 5, 2016; (2) neither parent had made significant progress on
their case plan; and (3) it would not be in the best interest of the child to return to the
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home of either parent. The trial court terminated NCDJFS’s temporary custody and
granted legal custody to Maxwell. The court also ordered that the parents were
entitled to reasonable visitation at Maxwell’s discretion. Appellants filed these timely
appeals which have been consolidated.
APPELLANT GUILER’S ASSIGNMENT OF ERROR NO. 1
THE TRIAL COURT COMMITTED PLAIN ERROR BY FAILING TO
SUBSTANTIALLY COMPLY WITH THE REQUIREMENTS
CONTAINED IN JUVENILE RULE 29 REGARDING ADJUDICATION.
APPELLANT ANDERSON’S ASSIGNMENT OF ERROR NO. 1
THE TRIAL COURT COMMITTED PLAIN AND PREJUDICIAL ERROR
BY ACCEPTING EACH OF THE PARENTS' ADMISSIONS TO A
FINDING OF DEPENDENCY WITHOUT FIRST ADDRESSING THEM
PERSONALLY TO ENSURE THAT THEY UNDERSTOOD THE
NATURE OF THE ALLEGATIONS, AND THE CONSEQUENCES OF
THEIR ADMISSIONS AS REQUIRED UNDER JUVENILE RULE 29(D).
{¶6} In their first assignments of error, Guiler and Anderson argue that the
trial court erred by failing to follow the mandates of Juv.R. 29 during the January 4,
2016 adjudicatory hearing.
{¶7} Juv.R. 29 governs adjudicatory hearings in the juvenile court and
requires the trial court to perform certain duties. Specifically, Juv.R. 29 sets forth a
framework to assist the court in determining whether the parties have been afforded
their due process requirements. In re Shepherd, 4th Dist. No. 00CA12, 2001 WL
-4-
802209 (Mar. 26, 2001). An appellate court must review the record for substantial
compliance with Juv.R. 29. In re C.S.,115 Ohio St.3d 267, 2007-Ohio-4919, 874
N.E.2d 1177 (noting that most courts of appeals have held that only substantial
compliance with Juv.R. 29 is necessary).
{¶8} However, without ascertaining the validity of Appellants’ arguments
concerning the strictures set forth in Juv.R. 29, this Court is unable to reach the
merits of Appellants’ claims because neither appealed the trial court’s January 8,
2016 adjudicatory order finding B.A. to be a dependent child. See In re T.K., 7th
Dist. Nos. 12 HA 4, 12 HA 5, 2013-Ohio-5869; In re S.B., 7th Dist. Nos. 13 HA 3, 13
HA 4, 2013-Ohio-5870.
{¶9} In In re H.F., 120 Ohio St.3d 499, 2008-Ohio-6810, 900 N.E.2d 607, the
Ohio Supreme Court reaffirmed its previous holding in In re Murray, 52 Ohio St.3d
155, 556 N.E.2d 1169 (1990), that:
An adjudication by a juvenile court that a child is “neglected” or
“dependent” as defined by R.C. Chapter 2151 followed by a disposition
awarding temporary custody to a public children services agency
pursuant to R.C. 2151.353(A)(2) constitutes a “final order” within the
meaning of R.C. 2505.02 and is appealable to the court of appeals
pursuant to R.C. 2501.02.
Id. at ¶ 8.
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{¶10} In deciding the case, the Court analyzed the rule allowing delayed
appeals, App.R. 4(B)(5), and provided some guidance to appellate courts regarding
when and how App.R. 4(B)(5) is applied:
For App.R. 4(B)(5) to apply, an order must meet two requirements: (1)
it must be a final order that does not dispose of all claims for all parties,
and (2) it must not be entered under Civ.R. 54(B).
Id. at ¶ 12. The Court reasoned that when determining whether a final order
disposed of all claims between the parties, the inquiry is “whether any claim remained
pending between the parties.” Id. The Court held that App.R. 4(B)(5) applies to allow
delayed appeal of otherwise final orders only if some claims remain pending. Id.
{¶11} In In re H.F., the Ohio Supreme Court held that App.R. 4(B)(5) does not
operate to allow a delayed appeal of an adjudicatory order in a dependency matter
because adjudication orders always constitute “final orders.” Adjudication orders
cannot be construed as “partial final orders.” The exception enumerated in App.R.
4(B)(5) only applies to “partial final orders.” Id. at ¶ 12. The Court reasoned that an
adjudication order concludes “the immediate action between the parties” and “there is
no assurance that a parent would have an alternate opportunity to appeal an
adjudication order.” Id. at ¶ 13-14. Once a juvenile court has adjudicated a child
abused, neglected, or dependent, there are no issues in that regard left pending
between the parties. Id. at ¶ 15. The Court recognized that even though the juvenile
court retains jurisdiction to enter a final disposition for the child, there is no certainty
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that the parents would have another opportunity to appeal or address the neglect or
dependency adjudication. Id. at ¶ 16.
{¶12} Therefore, based on the Ohio Supreme Court’s decision in In re H.F.,
we do not have jurisdiction to address Appellants’ assignments of error regarding the
alleged Juv.R. 29 violation, as neither parent appealed the trial court’s January 8,
2016 adjudication order within thirty days pursuant to App.R. 4(A).
APPELLANT GUILER’S ASSIGNMENT OF ERROR NO. 2
THE TRIAL COURT ERRED BY FAILING TO DISMISS THE
COMPLAINT AS DISPOSITION WAS HELD MORE THAN NINETY
DAYS AFTER THE DATE ON WHICH THE COMPLAINT WAS FILED.
{¶13} Guiler argues in her second assignment that the trial court erred in not
complying with the time limits set forth in R.C. 2151.35(B)(1), which states, in
pertinent part:
The dispositional hearing may not be held more than thirty days after
the adjudicatory hearing is held. The court, upon the request of any
party or the guardian ad litem of the child, may continue a dispositional
hearing for a reasonable time not to exceed the time limits set forth in
this division to enable a party to obtain or consult counsel. The
dispositional hearing shall not be held more than ninety days after the
date on which the complaint in the case was filed.
{¶14} Similarly, Juv.R. 34(A) provides:
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Where a child has been adjudicated as an abused, neglected, or
dependent child, the court shall not issue a dispositional order until after
it holds a separate dispositional hearing. The dispositional hearing for
an adjudicated abused, neglected, or dependent child shall be held at
least one day but not more than thirty days after the adjudicatory
hearing is held. * * * Upon the request of any party or the guardian ad
litem of the child, the court may continue a dispositional hearing for a
reasonable time not to exceed the time limit set forth in this division to
enable a party to obtain or consult counsel. The dispositional hearing
shall not be held more than ninety days after the date on which the
complaint in the case was filed. If the dispositional hearing is not held
within this ninety day period of time, the court, on its own motion or the
motion of any party or the guardian ad litem of the child, shall dismiss
the complaint without prejudice.
{¶15} Although a trial court is required to hold the dispositional hearing within
thirty days of the adjudicatory hearing, Ohio courts have routinely held that the time
guidelines set forth in R.C. 2151.35(B)(1) are not jurisdictional in nature and may be
waived by a parent. In re Kimble, 7th Dist. No. 99 517 CA, 2002-Ohio-2409. A party
may implicitly waive timeliness issues when the party fails to move for dismissal
based on the time limitation. Id.{¶16} In this case, Guiler is correct that the original complaint was filed on
October 28, 2015 and that the adjudicatory hearing was held on January 5, 2016.
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The dispositional hearing was originally set for February 22, 2016. A number of
motions were filed and at least one continuance was sought by Maxwell which was
granted by the trial court. The dispositional hearing was ultimately held on June 3,
2016. Guiler did not object at any time to the scheduling of the hearings, and never
filed a motion to dismiss based on the statutory time requirements. No arguments
were made at the hearings nor were any objections raised to the timing of the
hearing. Guiler was represented by counsel at each hearing, with the exception of a
February 10, 2016 motion hearing at which Guiler agreed to proceed without
counsel. At the outset of each hearing the trial court provided all parties the
opportunity to address any preliminary matters. Guiler did not raise any concerns
regarding timeliness at any point during any of the proceedings, nor did she object to
the timing of hearings based on the statute. Therefore, in accordance with our
previous holding in In re Kimble, through her conduct Guiler waived any time limits
prescribed by statute. Consequently, her second assignment of error is without merit
and is overruled.
APPELLANT ANDERSON’S ASSIGNMENT OF ERROR NO. 2
THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY FINDING
THAT B.A.'S PATERNAL AUNT, HEATHER MAXWELL, COULD
INTERVENE AS A MATTER OF RIGHT UNDER CIVIL RULE 24(A).
{¶17} In his second assignment of error, Anderson argues the trial court erred
in permitting Maxwell to intervene as a matter of right under Civ.R. 24(A).
{¶18} Civ.R. 24 governs the right of a party to intervene and states as follows:
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(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.
{¶19} Contrary to Anderson’s assertion, Maxwell sought permissive
intervention pursuant to Civ.R. 24(B). The standard of review is abuse of discretion.
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State ex rel. Cardinal Joint Fire Dist. v. Canfield Twp., 7th Dist. No. 03 MA 67, 2004-
Ohio-5526, citing Jamestown Village Condominium Owners Assn. v. Market Media
Research, Inc., 96 Ohio App.3d 678, 694, 645 N.E.2d 1265 (8th Dist.1984). “An
abuse of discretion is more than an error of judgment; it requires a finding that the
trial court's decision was unreasonable, arbitrary, or unconscionable.” State v. Nuby,
7th Dist. No. 16 MA 0036, 2016-Ohio-8157, ¶ 10, citing State v. Adams, 62 Ohio
St.2d 151, 157, 404 N.E.2d 144 (1980).
{¶20} Pursuant to Juv.R. 2(Y), a party is defined 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.
{¶21} Both Juv.R. 2(Y) and Civ.R. 24(B) imbue the trial court with discretion to
permit intervention under the appropriate circumstances. In re R.W., 2015-Ohio-
1031, 30 N.E.3d 254, ¶ 14 (8th Dist.). A foster parent does not possess an automatic
right to participate as a party in the adjudication of the rights of the natural parents
and their child. Id. at ¶ 17. Foster parents generally have limited rights regarding the
children in their care and are considered agents of the state as the child’s permanent
or, as here, temporary legal custodian. Id. Notwithstanding such limited rights, the
trial court has wide discretion to determine the parties in a juvenile action. In re
Zhang, 135 Ohio App.3d 350, 355, 734 N.E.2d 379 (8th Dist.1999). Juv.R. 2(Y)
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permits a trial court to include individuals not specifically designated parties but
whose presence the court has determined is necessary in order to fully litigate an
issue presented in the action. In re Franklin, 88 Ohio App.3d 277, 280, 623 N.E.2d
720 (3d Dist.1993).
{¶22} When making a determination whether an applicant can intervene in a
juvenile proceeding, the trial court must consider if intervention is in the best interests
of the child. In re R.W., supra, at ¶ 16.
{¶23} Maxwell filed her motion to intervene on December 31, 2015 seeking an
order “granting her leave to intervene in the instant cause of action, joining her as a
party to this case, and granting her custody of the minor child.” (12/31/15 Maxwell
Motion to Intervene.) In a judgment entry dated December 31, 2015, the trial court
granted Maxwell’s motion to intervene. At the adjudicatory hearing on January 4,
2016, counsel for Anderson objected to the motion to intervene on the basis that the
state already represented the interests of the child. Counsel for Guiler also objected
on the record. In response the trial court noted:
This is the Court’s understanding. Alright? And I believe it’s either the
Statute or the rule provides that when I come to disposition, okay, I can
grant disposition to somebody who has somebody other than a parent
who has asked to be the custodian. Okay? That’s what the rule says,
the rule of the statute. Okay? Now, whether we get there or not is a
different story. Okay? But I think, you know she has every right to
intervene and every right to ask for custody. Okay? Whether she gets
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it or not is a different story. So, I’ve granted the motion and I’m not
going to change my mind.
(1/4/16 Tr., pp. 6-7.)
{¶24} The record reveals the child was placed in a kinship home with Maxwell
on October 30, 2015, shortly after birth and after his release from the hospital where
the infant received treatment for withdrawal as a result of testing positive for illicit
drugs at birth. As foster parent, Maxwell provided care for B.A. throughout the
duration of the proceedings. Maxwell facilitated supervised parenting time between
both parents and the child and filed motions raising concerns of ongoing alleged drug
use and cigarette smoking around the child, particularly when the child became ill
and the parents were not cooperating with the NCDJFS care plan. Based on this
record, we find no abuse of discretion by the trial court in granting Maxwell’s motion
to intervene. Intervention was in the best interests of B.A. Since B.A.’s birth,
Maxwell had assumed the dominant parental role for B.A. and was working with his
best interests in mind. Consequently, Anderson’s second assignment of error is
without merit and is overruled.
{¶25} In conclusion, as Appellants failed to appeal the trial court’s
adjudication order within the thirty-day time period pursuant to App.R. 4(A), we are
without jurisdiction to determine the merits of their assignments of error relating to
Juv.R. 29. Those assignments of error are overruled. Appellant Guiler’s second
assignment of error is without merit because she waived any time limits set forth in
R.C. 2151.35(B)(1). Appellant Anderson’s second assignment of error is also without
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merit as this Court finds the trial court committed no error in permitting Maxwell to
intervene as a party to the action pursuant to Civ.R. 24(B). Thus, based on the
foregoing, the trial court’s judgment is affirmed.
Donofrio, P.J., concurs.
DeGenaro, J., concurs.
APPROVED:
_____________________________
CHERYL L. WAITE, JUDGE