[Until this opinion appears in the Ohio Official Reports advanc e sheets, it may be cited as Davis v. Nathaniel , Slip Opinion No. 2022-Ohio-751.]

NOTICE This slip opinion is subject to f ormal revision before it is pu blished in an advance sheet of the Ohio Official Reports. Readers are reques ted to promptly notify the Reporter of Decisions, Supreme Court of Ohi o, 65 South Front Street, Columbus, Ohio 43215, of any typographical or other formal errors in the opinion, in order that corrections may be made before the opinion is published.

S LIP O PINION N O
. 2022-O HIO -751
D AVIS , A PPELLANT , v. N ATHANIEL ET AL ., A PPELLEES
. [Until this opinion appears in t he Ohio Official Reports advanc e sheets, it may be cited as Davis v. Nathaniel , Slip Opinion No. 2022-Ohio-751.] R.C. 2505.02(B)—Court of appeals’ judgment vacated for lack of final, appealable order, and cause remanded to trial court for further proceedings. (No. 2021-0170―Submitted Novemb er 10, 2021―Decided March 16, 20 22.)
A PPEAL from the Court of Appeals for Summit County, No. 29761, 2020-Ohio-6858.

_________________ {¶ 1} The judgment of the court of ap peals is vacated for lack of a f inal, appealable order, see R.C. 2505.02(B), and the cause is re manded to the trial court for further proceedings.
O’C ONNOR , C.J., and K ENNEDY , F ISCHER , D E W INE , D ONNELLY , and
S TEWART , JJ., concur.
B RUNNER , J., dissents, with an opinion.

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2 B RUNNER , J., dissenting. {¶ 2} I respectfully disagree with this court’s decision to vacate th e court of appeals’ judgment on the ground t hat the trial court’s June 2, 2020 order is not a final, appealable order under R.C. 2505.02. Further, I would h old that plaintiffappellant, Rachel Davis, may not seek companionship under R.C. 3109.11, and thus, I would affirm the cour t of appeals’ judgment. {¶ 3} This case involves three sister s—Davis, defendant-appellee Tamm ie Nathaniel, and Lora Davis-Mullins, who died in 2013. Davis-Mul lins had three children, and before she died, both she and the children’s biol ogical father consented to the adoption of the children by Nathaniel and her husband Jeffrey, who is also a defendant-appellee. The decrees of adoption were issued in January 2014. The adoptions are final, and nothing about the N athaniels’ status as the children’s adoptive parents is disputed. Under R.C. 3107.1 5(A)(2), each final decree of adoption therefore operated to “create the relationsh ip of parent and child between petitioner and the adopted person, as if the adopted pe rson were a legitimate blood descendant of t he petitioner, for all purposes .” {¶ 4} The issue we agreed to consider in this appeal concerns whether Davis may pursue a claim for compani onship with the children under R. C. 3109.11. That statute provides:

If either the father or mother of an unmarried minor child is
deceased , the court of common pleas of the county in which the minor child resides may grant the parents and other relatives of the
deceased father or mother reasonable companionship or visitation rights with respect to the minor child during the child’s minor ity if the parent or other relative files a complaint requesting reaso nable companionship or visitation right s and if the cour t determines thatJanuary Term, 2022

3 the granting of the companionshi p or visitation rights is in th e best
interest of the minor child.

(Emphasis added.) R.C. 3109.11. {¶ 5} I would hold that Davis may not b ring a claim for companionship under R.C. 3109.11. Our precedent makes clear that Davis canno t do so based on
her status as Davis-Mullins’s sister. See In re Martin , 68 Ohio St.3d 250, 254, 626 N.E.2d 82 (1994). The child in Martin had been adopted by th e biological maternal grandparents. The biological paternal grandparents then sought visitation under R.C. 3109.12, which concerns companionship and visitation with a child born to an
unmarried mother but is similar to R.C. 3109.11 in all material respects. We held that the biological paternal gr andparents could not proceed und er R.C. 3109.12, because R.C. 3107.15 terminated the legal relationship on which their claim was
based. {¶ 6} Davis argues that this case is different from Martin because she is also Nathaniel’s sister, which means that she remains the children’s maternal aunt after the adoptions. That difference does not change the result. A claim based on Davis’s status as Nathaniel’s sister necessarily relies on Nathaniel’s status as the children’s adoptive parent. Such a claim is prohibited by the plain text of R.C. 3109.11, however, because Nathaniel and her husband are still alive. In short, Davis can point to no status that entitles her to seek companionship unde r R.C. 3109.11. {¶ 7} The majority does not address these issues. Instead, presumabl y based on counsel’s responses to questioning at oral argument, i t vacates the court of appeals’ judgment for lack of a final, appealable order unde r R.C. 2505.02(B). The parties should have been pre sented an opportunity to brief the final-andappealable-order issue before thi s court sua sponte decides tha t issue. {¶ 8} R.C. 2505.02(B)(2) permits the appeal of “[a]n order that affec ts a substantial right made in a special proceeding or upon a summar y application in anS UPREME C OURT OF O HIO

4 action after judgment.” R.C. 2505.02( A)(2) defines “special pr oceeding” as “an action or proceeding that is specially created by statute and t hat prior to 1853 was not denoted as an action at law or a suit in equity.” A “subst antial right” is “a right that the United States Constitution, the Ohio Constitution, a s tatute, the common law, or a rule of procedure entitles a person to enforce or pro tect.” R.C. 2505.02(A)(1). An action seeking companionship under R.C. 3109.11 is a special proceeding. The only que stion is whether the order tha t led to this appeal affects a substantial right. {¶ 9} On February 5, 2020, a magistrate appointed a guardian ad litem for
the Nathaniels’ children. Davis was pursuing only a claim for legal custody at that time. In a separate order entered that same day, the magistrat e stated in paragraph 10 that Davis would have to be permitted to interact with the c hildren for the purpose of allowing the guardian to complete her investigation related to Davis’s custody claim. The Nathaniels m oved the trial court to set asi de paragraph 10 on the ground that they do not want the children to have any inter action with Davis. They argued that by requiring su ch interaction, paragraph 10 vi olates their fundamental rights as parents. {¶ 10} On June 2, 2020, the trial court issued the order at issue in t his appeal. It first permitted Davis to amend her complaint from a claim for custody to a claim for companionship under R.C. 3109.11. The trial cou rt then denied the
Nathaniels’ motion to set aside paragraph 10. It provided no e xplanation for its decision on that issue, other than stating that the magistrate would “have an opportunity to hear from all par ties in making a further determ ination as to whether companionship is appropriate in this case.” {¶ 11} As counsel for the Nathaniels made clear at oral argument befor e this court, the key point that cause d them to appeal the June 2 orde r was the fact that the order requires that Davis have contact with the children ag ainst their wishes as parents. Had the trial court appointed a guardian ad litem without ordering contactJanuary Term, 2022

5 between the children and Davis, the Nathaniels would still have maintained that Davis may not pursue companions hip with the children, but they would have raised that argument in an appeal from an adverse judgment, if one wer e entered. {¶ 12} We have held that “[a]n order a ffects a substantial right ‘only if an immediate appeal is necessary to protect the right effectively. ’ ” Crown Servs., Inc. v. Miami Valley Paper Tube Co. , 162 Ohio St.3d 564, 2020-Ohio-4409, 166 N.E.3d 1115, ¶ 16, quoting Wilhelm-Kissinger v. Kissinger , 129 Ohio St.3d 90, 2011-Ohio2317, 950 N.E.2d 516, ¶ 7. In applying this rule, we have aske d whether an order “immediately and definitely affects the party” holding the righ t and whether it “imposes a permanent effect because it is unlikely to be recons idered as a trial progresses.” Wilhelm-Kissinger at ¶ 9-10; see also Thomasson v. Thomasson , 153 Ohio St.3d 398, 2018-Ohio-2417, 106 N.E.3d 1239, ¶ 27, 34 (appl ying WilhelmKissinger and holding that an order appointing a guardian ad litem to re present an adult in a divorce case without first finding the adult incompe tent affected a substantial right and was theref ore final and appealable under R.C. 2505.02(B)(2)). {¶ 13} It is clear under well-establishe d law that the Nathaniels have a fundamental constitutional right i n the care, custody, and cont rol of their adoptive
children. See Harrold v. Collier , 107 Ohio St.3d 44, 2005-Ohio-5334, 836 N.E.2d 1165, ¶ 40, quoting Troxel v. Granville , 530 U.S. 57, 66, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000) (plurality opi nion) (“ ‘it cannot now be doub ted that the Due
Process Clause of the Fourteen th Amendment protects the fundame ntal right of parents to make decisions concer ning the care, custody, and con trol of their children’ ”). {¶ 14} The trial court’s order immediately interferes with the Nathani els’ parenting of the children, which includes their wishes that the children not have
contact with Davis based on thei r judgment that such contact is not in their children’s interest. An appeal at the conclusion of the case i n the trial court will not remedy the interference with the parents’ wishes in this re gard. The trial court’sS UPREME C OURT OF O HIO

6 June 2 order improperly inserted the court into “the private re alm of the family,”
Troxel at 68, and it did so without the court’s having considered the two aspects of
R.C. 3109.11 that we have held ma ke the statute constitutional: (1) the statute limits the parties who may seek compani onship and (2) the statute, as interpreted in
Harrold , requires that a trial court gi ve “special weight” to the wish es of the parents, see Harrold at ¶ 41-42. The trial court’s June 2 order reflects no consideration whether Davis is a party who may seek companionsh ip with the Nathaniels’ children, and it give s no weight whatsoever to the wishes of the
Nathaniels. Nor does the trial court’s order provide any expla nation for the court’s decision to deny the Nathaniels’ m otion to set aside paragraph 10 or its decision to permit Davis to convert her cla im for custody into a claim for companionship, fundamentally changing the nature of the proceeding. Given the se facts, along with the clarity of the law establishing that Davis may not pursue c ompanionship under R.C. 3109.11, I would conclude that the trial court’s June 2 or der is final and appealable under R.C. 2505.02(B)(2) and I would affirm the cour t of appeals’ judgment. {¶ 15} Because the majority holds otherw ise, I respectfully dissent.

_________________ Leslie S. Graske, for a ppellant, Rachel Davis. Miller & Grosscup Law Firm, L.L.C., and Lee Grosscup, for appel lees,
Tammie and Jeff Nathaniel.

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