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In re T.S.

Court of Appeals of Ohio, Fourth District, Jackson

January 2, 2018

In the Matter of: T.S. Alleged neglected and dependent child

          DECISION AND JUDGMENT ENTRY

          Marie Hoover Judge

         {¶1} Appellants Daniel and Elizabeth Starr appeal an order denying their motion to intervene in an action brought by the Jackson County Job and Family Services agency to determine whether T.S. is 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 they are appealing may not be a final appealable order, we ordered the Starrs to file a memorandum addressing this jurisdictional issue. See Magistrate's Order, November 1, 2017. In response, the Starrs filed a memorandum in support of jurisdiction which contends that the order affected "a substantial right" to intervene in the proceeding. The Starrs concede that grandparents have no legal right of access to their grandchildren, but argue that the Ohio General Assembly has provided statutory procedures that "impact the role of grandparents" in neglect and dependency cases and therefore gives grandparents the right to intervene as a party. They also contend that they stood in loco parentis and have a right to be joined as parties to the proceedings.

         {¶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 grandparent 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 the Starrs' motion to intervene was not for any ancillary purpose. Instead, it was filed so that they could directly participate as parties in the underlying custody proceedings and obtain custody of T.S. We lack jurisdiction to address the merits and dismiss the appeal.

         I. PROCEDURAL HISTORY

         {¶3} In August 2017, the agency filed a complaint in the Court of Common Pleas of Jackson County, Juvenile Division, concerning T.S.[1] alleging neglect and dependency and seeking temporary custody, as well as emergency immediate custody. The agency alleged that T.S. lacked adequate parental care because of illegal drug use by T.S.'s parents. The agency alleged that it had discussed with the parents the possibility of relatives to serve as alternative care providers but neither parent identified any relatives.

         {¶4} The juvenile court granted the agency immediate emergency custody and the child was placed in foster care. An adjudication hearing to determine whether the child was neglected and dependent was set for October 25, 2017. In September 2017, the Starrs filed a motion for temporary and legal custody pursuant to R.C. 2151.353(A)(3), which allows any "person" to file a motion requesting legal custody. The Starrs contended that they are T.S.'s maternal grandmother and step-grandfather and have acted in loco parentis for T.S. In addition, the Starrs filed a motion to intervene as parties in the case, claiming that they are entitled to intervene because they, and not foster parents, are the proper persons to have temporary custody over T.S..[2]

         {¶5} On September 29, 2017, the trial court denied the Starrs' motion to intervene. The Starrs' appealed the order denying their motion to intervene on October 23, 2017. The juvenile court docket indicates that no further activity has occurred in the juvenile court since the Starrs filed their appeal. There is no indication that the adjudicatory hearing set for October 25, 2017 occurred, the trial court has issued no further entries or orders, and the Starrs' motion for legal custody is still pending.

         II. LAW AND ANALYSIS

         A. Jurisdiction

         {¶6} 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.

         {¶7} 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 is one of the following:
(2) An order that affects a substantial right in an action made in a special proceeding or upon a summary application in an action after judgment;
(4) An order that grants or denies a provisional remedy and to which both of the following apply:
(a)The order in effect determines the action with respect to the provisional remedy and prevents a judgment in the action in favor of the appealing party with respect to the provisional remedy.
(b)The appealing party would not be afforded a meaningful or effective remedy by an appeal following final judgment as to all proceedings, ...

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