[Cite as In re N.M., 2016-Ohio-7967.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION 

No. 104498 

IN RE: N.M., ET AL. 

Minor Children

[Appeal by J.H.M., Grandfather]

JUDGMENT: 

REVERSED AND REMANDED 

Civil Appeal from the 

Cuyahoga County Court of Common Pleas 

Juvenile Division 

Case Nos. AD-14-915620 and AD-14-915621 

 

 BEFORE: Blackmon, J., Kilbane, P.J., and Stewart, J. 

 RELEASED AND JOURNALIZED: December 1, 2016
-iATTORNEY FOR APPELLANT

Kevin J.M. Senich 

4438 Pearl Road 

Cleveland, Ohio 44109 

ATTORNEYS FOR APPELLEE 

For C.C.D.C.F.S. 

Timothy J. McGinty 

Cuyahoga County Prosecutor 

By: Willie Mitchell 

Joseph C. Young 

Assistant Prosecuting Attorneys 

Jane Edna Hunter Building 

3955 Euclid Avenue, Room 305-E 

Cleveland, Ohio 44115 

For Guardian Ad Litem 

Susan K. Jankite 

1253 Arlington Road 

Lakewood, Ohio 44107 

For Mother 

John Patrick Hyland 

Cuyahoga County Public Defender 

9300 Quincy Avenue, 5th Floor 

Cleveland Ohio 44106 

For M.J. 

Daniel J. Bartos 

Bartos & Bartos, L.P.A. 

20220 Center Ridge Road, Suite 320 

Rocky River, Ohio 44116 
PATRICIA ANN BLACKMON, J.: 

{¶1} J.H.M. (“Grandfather”) appeals from the trial court’s denial of his motion to 

intervene in this permanent custody case regarding his grandchildren N.M., whose date of 

birth is March 11, 2010, and R.M., whose date of birth is June 8, 2013. Grandfather 

assigns the following error for our review: 

I. The trial court abused its discretion by denying appellant’s motion to 

intervene in the permanent custody action(s) brought by CCDCFS. 

{¶2} Having reviewed the record and pertinent law, we reverse and remand to 

the juvenile court. The apposite facts follow. 

{¶3} On December 16, 2014, the Cuyahoga County Department of Children and 

Family Services (“CCDCFS”) filed a complaint for dependency and emergency 

temporary custody regarding N.M. and R.M. The court held a hearing on this motion on 

January 9, 2015. The CCDCFS social worker testified that N.M. and R.M. had a history 

with the agency dating back to when each child tested positive for drugs at birth. The 

social worker further testified that in August 2014, mother was arrested for child 

endangerment for leaving N.M. and R.M. “unsupervised out in the street for a lengthy 

period of time, and mother was asleep in the basement.” The children’s mother tested 

positive for drugs at the time. 

{¶4} According to the social worker, the children’s mother and father have 

substance abuse problems and had “not complied with any of [CCDCFS’s] drug screen 

requests for the last several months.” The magistrate adjudicated the children dependent 
and ordered that they be committed to the emergency temporary care and custody of 

CCDCFS. 

{¶5} On January 12, 2015, Grandfather filed a motion to intervene and a motion 

to set emergency hearing, seeking custody of N.M. and R.M. On January 14, 2015, the 

magistrate denied Grandfather’s motions, finding that he lacked standing to intervene. 

On January 25, 2015, the court adopted the magistrate’s January 9, 2015 decision 

committing the children to the emergency custody of CCDCFS. 

{¶6} On March 3, 2015, the parents stipulated to an adjudication of dependency 

regarding N.M. and R.M., and the court held a dispositional hearing on March 5, 2015. 

The social worker testified that, although CCDCFS had investigated various relatives for 

potential placement of N.M. and R.M., there were “no approved relatives to place the 

children with * * * at this time.” The social worker, prosecutor, and the children’s 

guardian ad litem (“GAL”) recommended that, in the best interest of the children, 

CCDCFS be granted temporary custody. The magistrate granted CCDCFS’s motion for 

temporary custody and placed the children in foster care. Additionally, the magistrate 

found that “[n]o relatives are willing and able to provide substitute care.” On March 13, 

2015, the court adopted the magistrate’s decision and overruled the children’s father’s 

objections. 

{¶7} On May 11, 2015, Grandfather filed a motion to determine custody, 

requesting visitation time with N.M. and R.M.1

 On May 27, 2015, Grandfather filed a 

 1

Although unclear from the docket, it does not appear that the court ruled on 
second motion to intervene pursuant to Civ.R. 24. On June 15, the magistrate issued an 

order summarily denying Grandfather’s motion to intervene. Grandfather objected, but 

on July 6, 2015, the court overruled Grandfather’s objections and adopted the 

magistrate’s decision denying the motion to intervene. 

{¶8} On November 16, 2015, CCDCFS filed a motion to modify temporary 

custody to permanent custody. On November 23, 2015, the GAL recommended that 

temporary custody be extended and that the agency continue to provide services to mother 

“who at least presents as willing to accept” the children. On January 15, 2016, 

Grandfather filed a motion for legal custody of N.M. and R.M. pursuant to R.C. 

2151.353(A)(3).2

 In February 2016, the children’s mother died of a drug overdose. On 

April 1, 2016, Grandfather filed a third motion to intervene pursuant to Civ.R. 24(B). 

On April 22, 2016, the court summarily denied Grandfather’s motion. It is from this 

order that Grandfather appeals. 

 

Res Judicata and Final Appealable Order 

{¶9} In the case at hand, CCDCFS argues that the doctrine of res judicata bars 

Grandfather’s third motion to intervene, “because the trial court had denied motions to 

 

Grandfather’s motion to determine custody. 

2

Although unclear from the docket, it does not appear that the court ruled on Grandfather’s 

motion for custody. 
intervene filed by [Grandfather] on two prior occasions.” However, the Ohio Supreme 

Court has held that “[t]here is no authority to support the general proposition that a 

[ruling on a] motion to intervene always constitutes a final, appealable order.” Gehm v. 

Timberline Post & Frame, 112 Ohio St.3d 514, 2007-Ohio-607, 861 N.E.2d 519, ¶ 36. 

{¶10} In Gehm, the court held that, to determine whether a denial of a motion to 

intervene is a final, appealable order, courts apply “the fact-dependent statutory analysis 

required by R.C. 2505.02.” Id. at ¶ 36. Additionally, in In re Young Children, 119 Ohio 

St.3d 1442, 2008-Ohio-4487, 893 N.E.2d 514,3

 the Ohio Supreme Court determined that 

a conflict existed among the district courts of appeals regarding the following issue: 

“Whether the denial of a grandparents’ motion to intervene in a permanent custody case is 

a final, appealable order.” 

{¶11} The Eleventh District Court of Appeals found that the denial of the 

grandparent’s motion to intervene in a permanent custody case was a final, appealable 

order in In re Goff, 11th Dist. Portage No. 2001-P-0144, 2003-Ohio-6768. Specifically, 

the court concluded that a “finding that the current order was not a final appeallable [sic] 

order would foreclose appellants [sic] only opportunity to be included in the underlying 

action involving their grandchild.” Id. at ¶ 10. See also In re C.J., 8th Dist. Cuyahoga 

Nos. 94210 and 94233, 2010-Ohio-3202 (finding that the denial of a motion to intervene 

filed after permanent custody was awarded to the agency was a final, appealable order). 

 3

In re Young was ultimately dismissed by the Ohio Supreme Court for failure 

to file a merit brief. However, it appears that the certified conflict issue still exists. 
{¶12} Accordingly, we find that the denial of Grandfather’s third motion to 

intervene was a final, appealable order, because the ruling was made during the 

permanent custody phase of the proceeding. Grandfather’s first two motions to intervene 

were made during the emergency custody and temporary custody phases, respectively, 

and the denials of these two motions were interlocutory orders; thus, res judicata does not 

bar our review of the case at hand. 

Standard for Motion to Intervene in Child Custody Cases 

{¶13} Grandparents do not have an inherent right to custody of or visitation with 

their grandchildren. See In re Whitaker, 36 Ohio St.3d 213, 214-216, 522 N.E.2d 563 

(1988). However, pursuant to Juv.R. 2(Y) and Civ.R. 24(B), a nonparty may intervene in 

a child custody case when, inter alia, the nonparty’s “claim or defense and the main action 

have a question of law or fact in common. * * * 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.” Civ.R. 24(B). Therefore, we review the denial of a 

Civ.R. 24(B) motion for permissive intervention under an abuse of discretion standard. 

In re: A.S., 8th Dist. Cuyahoga No. 102697, 2015-Ohio-4386. 

{¶14} When reviewing a ruling on a grandparent’s motion to intervene in 

permanent custody proceedings, courts take the following into consideration: 

Although R.C. Chapter 2151 does not require that grandparents be made 

parties to permanent custody proceedings brought by the state against 

parents, I firmly believe that it is contrary to common sense, compassion 

and the best interests of the child to deny suitable grandparents their last 

meaningful opportunity to gain custody of the child. 
Intervention by grandparents in a permanent custody proceeding is 

appropriate where the grandparents have a legal right to or a legally 

protectible interest in custody or visitation with their grandchild, where the 

grandparents have stood in loco parentis to their grandchild, or where the 

grandparents have exercised significant parental control over, or assumed 

parental duties for the benefit of, their grandchild. 

In re Schmidt, 25 Ohio St.3d 331, 338, 496 N.E.2d 952 (1986) (Celebrezze, C.J., 

concurring). 

{¶15} 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 * * *.” Black’s Law Dictionary 787 (6th Ed.1990). 

{¶16} In the case at hand, the court did not hold a hearing on Grandfather’s motion 

to intervene. Therefore, the record is limited as to how much “parental control” 

Grandfather exercised over N.M. and R.M. However, there is testimony that when the 

court granted emergency custody to CCDCFS in December 2014, the children were in the 

physical custody of Grandfather. Additionally, Grandfather filed an affidavit with his 

motion to intervene, the pertinent parts of which state as follows: 

“At the time proceedings were started by the CCDCFS, the Children were 

residing with me at my house. Throughout the Children’s lives, the 

Children have either resided in close proximity to me or with me * * *. I 

provided care for or visited with the Children virtually on a daily basis. I 

had been providing this child care since the Children were a few weeks old, 

including feeding, changing, and bathing them and providing all the care 

any good parent would. I have provided parental care, exercised parental 

control over the Children, and assumed parental duties for significant 

periods of the Children’s young lives.” 

{¶17} This court recently found that the juvenile court abused its discretion by 

denying a foster parent’s motion to intervene without holding a hearing and without 
considering whether intervention would be in the best interest of the children. In re 

R.W., 8th Dist. Cuyahoga No. 101742, 2015-Ohio-1031. On appeal, this court 

determined that the foster parent stood in loco parentis when the evidence showed that 

she “cared for the children for nearly ten months prior to filing her motion to intervene.” 

Id. at ¶ 18. This court also found that granting the motion to intervene “would have 

allowed the trial court to accurately determine the facts” concerning whether the children 

should be placed with the foster parent. Id. at ¶ 20. 

{¶18} The Twelfth District Court of Appeals found that the juvenile court abused 

its discretion when it denied the grandparents’ motion to intervene without considering 

whether they have ever stood in loco parentis to the children. In re B. Children, 12th 

Dist. Clermont No. CA2007-06-077, 2008-Ohio-354. “In the case at bar, the trial court 

focused exclusively on whether [the grandparents] represented a suitable placement for 

the children.” Id. at ¶ 25. The appellate court found that this was improper, because 

“any determination as to the suitability of [the grandparents] as a placement for the 

children is not ripe for review on this appeal.” Id. at ¶ 26. 

{¶19} In the case at hand, Grandfather repeatedly attempted to have a voice 

concerning his grandchildren by filing two motions for custody and three motions to 

intervene. The juvenile court did not hold a hearing on, nor did it reach the merits of, 

any of these motions. In his affidavit, Grandfather claims to have exercised parental 

control over N.M. and R.M. for most of their lives. The court summarily denied 

Grandfather’s motion to intervene on April 22, 2016, with no evidence to challenge 
Grandfather’s claims. In fact, CCDCFS did not file its brief in opposition to 

Grandfather’s motion to intervene until three days after the trial court made its ruling. 

{¶20} Accordingly, we find that Grandfather should have been given a hearing on 

his motion to intervene. This case does not stand for the proposition that all 

grandparents are permitted to intervene, nor are we making any determination about 

Grandfather’s suitability for custody. Evidence needs to be presented and the record 

needs to be developed to determine Grandfather’s opportunity for permissive 

intervention. 

{¶21} Consequently, under the facts of this case, we conclude that the court abused 

its discretion by summarily denying Grandfather’s motion to intervene without a hearing. 

“The term ‘abuse of discretion’ connotes more than an error of law or judgment; it 

implies that the court’s attitude is unreasonable, arbitrary or unconscionable.” State v. 

Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980). See also State ex rel. Merrill v. 

Ohio Dept. of Natural Resources, 130 Ohio St.3d 30, 2011-Ohio-4612, 955 N.E.2d 935, ¶ 

41 (“We construe Civ.R. 24 liberally to permit intervention”); In re Parsons, 9th Dist. 

Lorain No. 95CA006217, 1996 Ohio App. LEXIS 2268 (May 29, 1996) (“So long as a 

foster parent’s participation assists in fully developing adjudicatory facts so that a more 

informed judgment can be made, the Juvenile Rules would favor, rather than disfavor, 

intervention”). 

{¶22} Accordingly, Grandfather’s sole assignment of error is sustained, and the 

juvenile court’s order denying Grandfather’s April 1, 2016 motion to intervene is 
reversed. Case remanded to the juvenile court for proceedings consistent with this 

opinion. 

{¶23} Judgment reversed and remanded. 

It is ordered that appellant recover from appellee costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate be sent to the Cuyahoga County Common Pleas 

Court to carry this judgment into execution. 

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of 

the Rules of Appellate Procedure. 

 

PATRICIA ANN BLACKMON, JUDGE 

MARY EILEEN KILBANE, P.J., and 

MELODY J. STEWART, J., CONCUR