In re A.H. , 2020 Ohio 454 ( 2020 )

[Cite as In re A.H., 2020-Ohio-454.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
IN THE MATTER OF: A.H, B.H.,C.H., : JUDGES:
: Hon. W. Scott Gwin, P.J.
: Hon. Patricia A. Delaney, J.
: Hon. Craig R. Baldwin, J.
:
:
: Case No. 2019 CA 0077
: 2019 CA 0078
: 2019 CA 0079
:
: OPINION
CHARACTER OF PROCEEDING: Appeal from Richland County Court
of Common Pleas, Juvenile Division,
Case Nos. 2015 DEP 00154, 2015
DEP 00155, 2015 DEP 00156
JUDGMENT: Dismissed
DATE OF JUDGMENT: February 10, 2020
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellees
Curtis and Andrea Berry
Richland County Children Services
EDITH A. GILLILAND CORINNE N. RYAN
731 Scholl Road 254 West Johnstown Road
Mansfield, Ohio 44907 Gahanna, Ohio 43230
For the Guardian ad Litem
Mr. Donald “Pat” Wischmeier
SHERYL M. GROFF
40 South Park Street
Mansfield, Ohio 44902
Richland County, Case Nos. 2019 CA 0077, 2019 CA 0078, 2019 CA 0079 2
Baldwin, J.
{¶1} Richland County Children’s Services (RCCS) appeals the decision of the
Richland County Court of Common Pleas, Juvenile Division, granting Curtis and Andrea
Berry, Appellees, status as parties to this action.
STATEMENT OF FACTS AND THE CASE
{¶2} RCCS took custody of five siblings in November 2015 and placed three of
the children with the Appellees as foster parents. RCCS obtained permanent custody of
the children in September 2017 and determined that Appellees’ adoption of the children
placed with them would serve the children’s best interest. (Semiannual Administrative
Review, April 19, 2019, p. 4, Docket # 158). The Court Appointed Special
Advocate/Guardian Ad Litem (CASA/GAL) confirmed that the best interest of the children
would be served by adoption by the foster parents. (Annual Permanent Custody Review,
p. 1, August 29, 2018, Docket # 159). The status of the foster parents and the plans for
the permanent placement of the children changed abruptly in October 2018.
{¶3} RCCS reported that it received “an intake regarding concerns that the foster
parents were giving ‘marijuana’ to the children.” RCCS explained that it arranged for “a
hair follicle drug test that resulted in two of the three triplets testing positive for marijuana.”
(Semiannual Administrative Review, October, 18, 2018, p. 2, Docket #163). The record
contains no detail regarding the testing process or the results of the test. The children
were removed from the Appellees’ home and their status as foster parents for RCSS was
suspended based upon the results of the test. Appellees informed the trial court that they
are contesting the actions of RCCS and that their objections are pending in a separate
Richland County, Case Nos. 2019 CA 0077, 2019 CA 0078, 2019 CA 0079 3
administrative review proceeding where they are asserting that they administered CBD
oil with the approval of the children’s physician and that RCCS was notified of their plan
and did not object.
{¶4} Appellees contend that RCCS was unwilling to informally resolve their
objections regarding removal of the children, so they filed a motion requesting to be joined
as parties in the juvenile court case. Appellees concluded that “the Court is the only
avenue for the children's best interests to be assessed.” (Motion to Join as Parties, April
5, 2019, p. 2, Docket # 181). RCCS opposed intervention, the parties exchanged
pleadings in support of their positions and presented arguments to the magistrate at a
hearing on the motion. The magistrate did not permit either party to present evidence,
but called the CASA\GAL and questioned him regarding his position. Neither party was
permitted to question the CASA\GAL. In her Entry granting intervention the magistrate
noted that she was “aware of the multiple subsequent placements of the children and has
had concerns about the conditions of placements and whether the current placement
offers permanency and is in the children's best interests.” (Entry, May 22, 2019, p. 2,
Docket #189). The magistrate found that granting party status to the Appellees would
serve the best interest of the children, so she granted the motion for the purpose of filing
a motion for custody.
{¶5} RCCS filed a motion to set aside the magistrate’s order because she had
prohibited the parties from cross examining the witness called by the court. The trial court
agreed and vacated the order, remanding it back to the magistrate “to schedule a hearing
for the sole purpose of permitting the examination of the CASA/GAL to occur by counsel
for RCCSB and counsel for the foster parents.” (Entry, June 25, 2019, p. 1, Docket #200).
Richland County, Case Nos. 2019 CA 0077, 2019 CA 0078, 2019 CA 0079 4
Between the issuance of the first magistrate’s order granting intervention and the setting
aside of that order, the Appellees filed a Motion for Legal Custody and Placement and the
CASA/GAL filed a Motion for an Interim Order of Temporary Custody. Both motions
claimed returning the children to the home of Appellees served the best interest of the
children. The CASA/GAL filed a second motion captioned Motion for Legal Custody,
seeking an order returning the children to the Appellee’s home:
due to the questionable conditions of the living environment of said child in
the home in which he is currently placed, concerns of inadequate and/or
insufficient supervision and other related challenges within the household
which may or may not be due to its size and/or composition. Further, the
CASA/GAL has concerns regarding a history of sexual offending of one
household member in the current placement home.
(Motion for Legal Custody, July 16, 2019, p. 1, Docket # 205).
{¶6} The second hearing on the motion to intervene was completed on August
1, 2019 and the Magistrate noted in her Order that she had issued her decision from the
bench at the conclusion of the hearing. The magistrate confirmed that the motion was
granted to serve the best interests of the children and explained her analysis:
The Magistrate further finds that for the first three years of his life,
this child, a triplet, (and his triplet siblings) knew no other parents than Curtis
and Andrea Berry. The Berrys provided excellent care in every way that
loving and capable parents care for their children. The child was fully
bonded to the Berrys in every way that a very young child is bonded to
loving and attentive parents.
Richland County, Case Nos. 2019 CA 0077, 2019 CA 0078, 2019 CA 0079 5
These children, nearly at the point of adoption by the Berrys, were
abruptly removed from the Berrys (sic) care with notice to the Court but
without an evidentiary hearing to determine whether that removal
comported with the best interests of the child(ren). The triplets were
separated from each other for a number of months and then placed together
in a foster home as to which the CASA/GAL and the Court have had ongoing
concerns. The CASA/GAL, whose sole purpose in this case is to speak to
the best interests of the child, has recently filed a motion proposing that the
child be placed in the legal custody of the Berrys, further attesting to his
opinion of the child's best interests.
(Magistrate’s Order, August 2, 2019, p. 2-3, Docket # 213).
{¶7} RCCS filed a notice of appeal and minutes later filed a motion to set aside
the magistrate’s order and to stay the proceedings. The trial court stayed the proceedings
but did not address the request to set aside the magistrate’s order. The motions filed by
the CASA/GAL and Appellees regarding placement and custody remain pending.
{¶8} RCCS submitted a single assignment of error:
{¶9} “I. THE COURT ERRED AS A MATTER OF LAW AND ABUSED ITS
DISCRETION IN GRANTING A MOTION TO INTERVENE TO FORMER FOSTER
PARENTS FOR THE PURPOSE OF FILING A MOTION FOR LEGAL CUSTODY IN A
CASE WHERE PARENTAL RIGHTS HAD BEEN TERMINATED AND CHILDREN
SERVICES HAD BEEN GRANTED PERMANENT CUSTODY.”
{¶10} Subsequent to the filing of the notice of appeal, Appellees filed a motion to
dismiss the appeal arguing that RCCS failed to produce a transcript of the evidentiary
Richland County, Case Nos. 2019 CA 0077, 2019 CA 0078, 2019 CA 0079 6
hearing or a Statement of the Evidence pursuant to Appellate Rule 9(C), failed to pursue
a Motion to Set Aside the Magistrate's Order from which Appellants have filed this appeal
prior to pursuing this appeal and that, in the alternative, this court lacks jurisdiction
because there was not a final appealable order to review. We have not received a written
response to the motion from RCCS, though it does address the question of whether the
order is a final appealable order in its brief. We reserved ruling on that motion until after
oral argument.
ANALYSIS
{¶11} Appellees argue in their brief, and in a separate motion to dismiss, that the
trial court's order granting their motion to intervene is not a final appealable order, so this
court lacks jurisdiction to proceed. Because the Ohio Constitution, Section 3(B)(2), Article
IV, limits our jurisdiction to the review of final judgments of lower courts, we must first
resolve this issue before addressing the merits of the appeal. Germ v. Fuerst, 11th Dist.
Lake No. 2003–L–116, 2003–Ohio–6241, ¶ 3. We must determine if we have jurisdiction
to review the merits of this case by deciding whether the requirements of R.C. 2505.02
and Civ.R. 54(B), if applicable, have been satisfied. Chef Italiano Corp. v. Kent State
Univ., 44 Ohio St. 3d 86, 88, 541 N.E.2d 64 (1989).
{¶12} The relevant portion of R.C. 2505.02 describes a final appealable order as
"[a]n order that affects a substantial right made in a special proceeding ***." R.C.
2505.02(B)(2). Proceedings in juvenile court are special proceedings, so our analysis is
limited to whether the trial court's order affected a "substantial right." State ex rel. Fowler
v. Smith, 68 Ohio St. 3d 357, 1994-Ohio-302, 626 N.E.2d 950 (1994).
Richland County, Case Nos. 2019 CA 0077, 2019 CA 0078, 2019 CA 0079 7
{¶13} A “substantial right” for purposes of R.C. 2505.02 is a legal right enforced
and protected by law. State ex rel. Hughes v. Celeste, 67 Ohio St. 3d 429, 430, 619
N.E.2d 412 (1993); Noble v. Colwell, 44 Ohio St. 3d 92, 94, 540 N.E.2d 1381 (1989).
Alternatively a “substantial right” is defined as “a right that the United States Constitution,
the Ohio Constitution, a statute, the common law, or a rule of procedure entitles a person
to enforce or protect.” RC. 2505.02(A)(1). An order affects a substantial right if, in the
absence of an immediate appeal, one of the parties would be foreclosed from appropriate
relief in the future. Bell v. Mt. Sinai Med. Ctr., 67 Ohio St. 3d 60, 63, 616 N.E.2d 181
(1993). Examples of orders affecting substantial rights include “[o]rders determining
custody of a child or requiring the sale of business assets, as a result of a divorce
Lingenfelter v. Lingenfelter, 5th Dist. Stark No. 1999CA00241, 2000 WL 329946, *1, or
“orders suppressing evidence (where deprivation of the evidence makes obtaining a
conviction impossible), or orders denying a de novo hearing (where the denial forecloses
a party's ability to rebut its opponent's case).” Hellman v. Al Castrucci, Inc., 2nd Dist.
Montgomery No. 18167, 2000 WL 1073336, *2.
{¶14} And, to constitute a final order, the order must dispose of the whole case or
some separate and distinct branch. Noble v. Colwell, 44 Ohio St. 3d 92, 94, 540 N.E.2d
1381 (1989). In general, when an order does not contemplate further action and no other
related issues remain pending, the order normally constitutes a final order. Elliott v.
Rhodes, 4th Dist. Pickaway No. 10CA26, 2011-Ohio-339, ¶ 17.
{¶15} Appellant relies upon the holding of the Fourth District Court of Appeals in
S. Ohio Coal Co. v. Kidney, 100 Ohio App. 3d 661, 654 N.E.2d 1017 (4th Dist. 1995) to
Richland County, Case Nos. 2019 CA 0077, 2019 CA 0078, 2019 CA 0079 8
support its argument that the trial court's order was final and appealable. The entirety of
the Fourth District's analysis is contained in a brief paragraph at the outset of the opinion:
We begin by noting our jurisdiction. The grant of a motion to
intervene is a final appealable order. See Fairview Gen. Hosp. v. Fletcher
(1990), 69 Ohio App. 3d 827, 591 N.E.2d 1312. Likewise, the grant of a
Civ.R. 60(B) motion is a final appealable order. See GTE Automatic Elec.,
Inc. v. ARC Industries, Inc. (1976), 47 Ohio St. 2d 146, 1 O.O.3d 86, 351
N.E.2d 113. Since the grant or denial of both motions constitutes final
appealable orders, this appeal is properly before us.
Id. at 666.
{¶16} The Fourth District relies upon the ruling of Fairview Gen. Hosp, supra, but
that opinion does not support Appellant's position. In that case, the facts involved an
attempt to intervene in a declaratory judgment action and the Tenth District found that "***
the order denying appellant's motion to intervene is a final appealable order. The only
issue raised for review is whether the trial court abused its discretion by overruling
University's motion to intervene under Civ.R. 24." Fairview Gen. Hosp. supra at 830.
(Emphasis added). We disagree with the Fourth District's characterization of Fairview
Gen. Hosp. as supporting a holding that the grant of a motion to intervene is a final
appealable order and instead conclude that it is inapposite in this case because it
addresses the denial of such a motion in the context of a declaratory judgment action.
{¶17} Appellant asserted that the trial court's order impacted a substantial right,
but did not identify the substantial right that it seeks to protect or enforce in this matter, or
how, in the absence of an immediate appeal, it would be foreclosed from appropriate
Richland County, Case Nos. 2019 CA 0077, 2019 CA 0078, 2019 CA 0079 9
relief in the future. During argument Appellant's counsel referenced the Ohio
Administrative Code as the source of that right, but Appellant did not include that code
section in its brief and we will not consider it now.
{¶18} For the following reasons, we must conclude the magistrate’s order in this
matter is not a final appealable order. Motions for custody and the future placement of
the children remain pending before the trial court during which the interests of the parties
and the children may be addressed and resolved, so the granting of the motion to
intervene anticipates future action to resolve the motions of the Appellees as well as the
CASA\GAL. Appellant has neither identified a substantial right that will be impacted by
the intervention, nor has it been foreclosed from relief in the future.
{¶19} This appeal is dismissed for lack of a final appealable order.
By: Baldwin, J.
Gwin, P.J. and
Delaney, J. concur.