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In re R.R. Adjudicated Dependent Child

Court of Appeals of Ohio, Fourth District, Athens

December 4, 2017

In the Matter of: R.R. Adjudicated dependent child

          DECISION AND JUDGMENT ENTRY

          Marie Hoover Judge

         {¶1} Appellant Amber Welsh appeals an order denying her motion to intervene in an action brought by the Athens County Children Services agency to determine whether R.B. is abused, neglected, or dependent and for an award of temporary custody. As it appeared we may not have jurisdiction to consider this matter because the order from which she is appealing may not be a final appealable order, we ordered Welsh to file a memorandum addressing this jurisdictional issue. See Magistrate's Order, July 31, 2017. In response, Welsh filed a memorandum in support of jurisdiction which contends that the order affected "a substantial right" to intervene in the proceeding and without an appeal, she "would have no rights to address the court and explain her request for legal care."

         {¶2} We find that the trial court's order did not meet the requirements of R.C. 2505.02; it was not final and appealable. A foster parent or kinship provider has no "substantial right" to intervene in juvenile custody proceedings. Therefore the order is not a final, appealable order under R.C. 2505.02(B)(2). The order does not grant or deny a provisional remedy under R.C. 2505.02(B)(4) because Welsh's motion to intervene was not for any ancillary purpose. Instead, it was filed so that she could directly participate as a party in the underlying custody proceedings. We lack jurisdiction to address the merits and dismiss the appeal.

         I. PROCEDURAL HISTORY

         {¶3} In September 2016, the agency filed a complaint in the Court of Common Pleas of Athens County, Juvenile Division, concerning R.B.[1] alleging abuse, neglect and dependency and seeking temporary custody, as well as emergency immediate custody. The agency alleged that R.B. was a newborn who tested positive for various drugs, including cocaine and opiates.

         {¶4} The juvenile court granted the agency immediate emergency custody and the child was placed in foster care. At the dependency hearing, the parents agreed to a dependency finding based on substance abuse issues. The juvenile court found the child to be dependent on this ground, dismissed the abuse and neglect allegations, and granted temporary custody to the agency. The agency's case plan stated that the child's permanency goal was reunification with the parents. The child remained in foster care until December 2016, when the agency placed R.B. in a kinship placement with Welsh, his maternal aunt. The agency continued to have temporary custody and the case plan permanency goal continued to be reunification with the parents.

         {¶5} In March 2017 the agency filed a proposed amended case plan based on the mother's progress to allow off ground visitation with R.B. twice weekly. A week after the agency filed the amended case plan, Welsh filed: (1) a motion to intervene pursuant to Juv.R. 2(Y) and Civ.R. 24(B); (2) an affidavit in support of her motion to intervene; (3) a motion to modify the current custody order to award her permanent legal custody of R.B.; and (4) objections to the agency's amended case plan. The agency opposed the motion to intervene on the ground that Welsh, as a kinship provider, had no standing to be a party or to file objections to the agency's case plan. The agency contended that it was not in R.B.'s best interest to allow Welsh to intervene because the mother is making progress toward reunification, is engaged in substance abuse treatment, has clean drug screens, and is attending visits with the child on a regular basis.

         {¶6} The juvenile court set a hearing on Welsh's motion to intervene and her objection to the amended case plan to coincide with a previously scheduled review hearing on April 24, 2017. Before the hearing, Welsh served broad discovery requests on all parties and served three subpoenas, one commanding a non-party witness to attend the hearing to testify and two commanding R.B.'s mother's employers each to produce a certified copy of the mother's "entire employment file." (Emphasis sic).

         {¶7} At the hearing the agency provided information concerning the parents' progress: the mother completed all drug screens, her last five screens had all tested negative, she attended visitations consistently and her interaction with R.B. during visitations was very good. The agency believed it would be appropriate to progress to "off ground" visitations. Mother's counsel informed the court that mother was making excellent progress but that mother does not have a positive relationship with the kinship placement, Welsh. As for Welsh's plan objections, the mother's counsel argued that Welsh had no standing to object to moving visitation off grounds and no standing to issue subpoenas.[2]

          {¶8} The trial court orally ruled against Welsh's motion to intervene on the ground that it was not the court's practice to make kinship providers or foster parents parties to a dependency/custody proceeding. However, the court stated that it will exercise discretion to make a person a party when the agency has moved for such a joinder. The trial court also stated that if a kinship or foster care provider has information that a move to off ground visitation would be ill advised, they should share that information with the agency "to evaluate as professionals" rather than "to take another seat in the courtroom." (Tr. 6-7)

         {¶9} Following the hearing, the trial court issued a journal entry that continued temporary custody with the agency with reunification with parents as the permanency plan, and approved the move to off grounds visitation recommended by the agency. However the entry did not include the trial court's oral ruling denying Welsh's motion to intervene. (Journal Entry, May 19, 2017) The court issued a subsequent judgment entry denying Welsh's motion to intervene:

Recently, Amber Welch [sic], through private counsel, has filed various papers with this Court in this action. For purpose of clarification, the Court reiterates its previous ruling denying Ms. Welsh party status in this case. Therefore, her filings are deemed improper and are not under consideration by the court. (Judgment Entry, June 27, 2017, OR #71)

         {¶10} Welsh appealed this entry.

         II. LAW AND ANALYSIS

         A. Jurisdiction

         {¶11} Ohio law provides that appellate courts have jurisdiction to review only final orders or judgments. Section 3(B)(2), Article IV, Ohio Constitution; R.C. 2505 .02. If an order is not final and appealable, an appellate court has no jurisdiction to review the matter and it must be dismissed. "An order of a court is a final appealable order only if the requirements of both R.C. 2505.02 and, if applicable, Civ.R. 54(B), are met." State ex rel. Scruggs v. Sadler, 97 Ohio St.3d 78, 2002-Ohio-5315, 776 N.E.2d 101; see also, Chef Italiano Corp. v. Kent State Univ., 44 Ohio St.3d 86, 541 N.E.2d 64, syllabus (1989). The threshold requirement, therefore, is that the order satisfies the criteria of R.C. 2505.02. Gehm v. Timberline Post & Frame, 112 Ohio St.3d 514, 2007-Ohio-607, 861 N.E.2d 519, ¶ 15.

         {¶12} For purposes of this appeal, the relevant portions of R.C. 2505.02 define a final appealable order as follows:

(B) An order is a final order that may be reviewed, affirmed, modified, or reversed, with or without retrial, when it ...

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