[Cite as In re B.A., 2017-Ohio-1019.]

STATE OF OHIO, NOBLE COUNTY 

IN THE COURT OF APPEALS 

SEVENTH DISTRICT 

IN THE MATTER OF: ) CASE NOS. 16 NO 0433 

) 16 NO 0434 

B.A. ) 

D.O.B.: 10-20-2015 ) OPINION 

 ) 

) 

 ) 

CHARACTER OF PROCEEDINGS: Civil Appeals from the Court of Common 

Pleas, Juvenile Division, of Noble 

County, Ohio 

Case No. 215-3033 

JUDGMENT: Affirmed. 

APPEARANCES: 

For Appellant/Mother: Atty. Mary G. Warlop 

Abney Law Office, LLC 

116 Cleveland Ave. N.W., Suite 500 

Canton, Ohio 44702 

For Appellant/Father: Atty. Gregory J. Wysin 

2037 Brady Lake Road 

Kent, Ohio 44240 

For Appellee/State of Ohio: Atty. Kelly A. Riddle 

Noble County Prosecutor 

508 North Street 

Caldwell, Ohio 43724 

For Appellee/Legal Custodian: Atty. Jeanette M. Moll 

P.O. Box 461 

Zanesville, Ohio 43701 

JUDGES: 

Hon. Cheryl L. Waite 

Hon. Gene Donofrio 

Hon. Mary DeGenaro 

Dated: March 20, 2017
[Cite as In re B.A., 2017-Ohio-1019.]

WAITE, J. 

{¶1} In these consolidated appeals Appellants Tana Guiler (“Guiler”) and 

Kelly Anderson (“Anderson”), hereinafter collectively “Appellants,” challenge the 

judgment of the Noble County Court of Common Pleas, Juvenile Division, granting 

legal custody of the minor child, B.A. to the child’s paternal aunt, Appellee Heather 

Maxwell (“Maxwell”). The State of Ohio is also an Appellee in this action. Guiler and 

Anderson both argue the trial court erred in not complying with Juv.R. 29. Guiler also 

argues the complaint should have been dismissed as the disposition was held more 

than ninety days after the hearing. Anderson asserts the trial court erred in allowing 

Maxwell to intervene as a matter of right. For the reasons expressed below, none of 

Appellants’ arguments have merit and the judgment of the trial court is affirmed. 

Factual and Procedural History 

{¶2} On October 20, 2015, Guiler gave birth to B.A. Prior to the infant’s 

release from the hospital, Noble County Department of Job and Family Services 

(“NCDJFS”) filed a complaint alleging that B.A. was an abused and dependent child. 

NCDJFS had received a referral from the hospital to the effect that B.A. and Guiler 

had each tested positive for illicit drugs at the time of birth and that B.A. was 

exhibiting signs of withdrawal. 

{¶3} A shelter care hearing was held on October 30, 2015. The court 

ordered B.A. into the temporary custody of NCDJFS with placement in the home of 

Maxwell, his paternal aunt. The matter was then set for adjudication. On January 4, 

2016, an adjudicatory hearing was held where the parents stipulated to dependency 

and the trial court accepted the admissions of dependency. NCDJFS dismissed the 
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allegations of abuse. In a judgment entry dated January 8, 2016, the trial court held, 

in pertinent part: 

The Court was informed that the parties had reached an agreement and 

that the parents intended on admitting to dependency. The Court called 

upon the parents, and both admitted that the child was dependent. The 

State moved to dismiss the abuse allegation. 

The Court finds that it has jurisdiction of the parties and the subject 

matter. Based upon the evidence and by agreement of the parties, the 

Court further finds that clear and convincing evidence exists that the 

minor child is dependent as defined in the Ohio Revised Code. 

(1/8/16 J.E., pp. 1-2.) 

{¶4} The trial court continued the emergency custody order and scheduled 

the matter for disposition on March 9, 2016. On February 10, 2016, the court held a 

hearing on outstanding motions, including a motion to intervene made pursuant to 

Civ.R. 24, a motion for temporary custody and motions made as to alleged drug 

abuse by the parents. The trial court granted Maxwell’s motion to intervene and her 

motion seeking to order both parents to submit to hair follicle testing. The trial court 

also ordered that visitation with the parents should continue. 

{¶5} A dispositional hearing was held on June 3, 2016. In a judgment entry 

dated June 15, 2016, the trial court held: (1) the child had been adjudicated 

dependent on January 5, 2016; (2) neither parent had made significant progress on 

their case plan; and (3) it would not be in the best interest of the child to return to the 
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home of either parent. The trial court terminated NCDJFS’s temporary custody and 

granted legal custody to Maxwell. The court also ordered that the parents were 

entitled to reasonable visitation at Maxwell’s discretion. Appellants filed these timely 

appeals which have been consolidated. 

APPELLANT GUILER’S ASSIGNMENT OF ERROR NO. 1 

THE TRIAL COURT COMMITTED PLAIN ERROR BY FAILING TO 

SUBSTANTIALLY COMPLY WITH THE REQUIREMENTS 

CONTAINED IN JUVENILE RULE 29 REGARDING ADJUDICATION. 

APPELLANT ANDERSON’S ASSIGNMENT OF ERROR NO. 1 

THE TRIAL COURT COMMITTED PLAIN AND PREJUDICIAL ERROR 

BY ACCEPTING EACH OF THE PARENTS' ADMISSIONS TO A 

FINDING OF DEPENDENCY WITHOUT FIRST ADDRESSING THEM 

PERSONALLY TO ENSURE THAT THEY UNDERSTOOD THE 

NATURE OF THE ALLEGATIONS, AND THE CONSEQUENCES OF 

THEIR ADMISSIONS AS REQUIRED UNDER JUVENILE RULE 29(D). 

{¶6} In their first assignments of error, Guiler and Anderson argue that the 

trial court erred by failing to follow the mandates of Juv.R. 29 during the January 4, 

2016 adjudicatory hearing. 

{¶7} Juv.R. 29 governs adjudicatory hearings in the juvenile court and 

requires the trial court to perform certain duties. Specifically, Juv.R. 29 sets forth a 

framework to assist the court in determining whether the parties have been afforded 

their due process requirements. In re Shepherd, 4th Dist. No. 00CA12, 2001 WL 
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802209 (Mar. 26, 2001). An appellate court must review the record for substantial 

compliance with Juv.R. 29. In re C.S.,115 Ohio St.3d 267, 2007-Ohio-4919, 874 

N.E.2d 1177 (noting that most courts of appeals have held that only substantial 

compliance with Juv.R. 29 is necessary). 

{¶8} However, without ascertaining the validity of Appellants’ arguments 

concerning the strictures set forth in Juv.R. 29, this Court is unable to reach the 

merits of Appellants’ claims because neither appealed the trial court’s January 8, 

2016 adjudicatory order finding B.A. to be a dependent child. See In re T.K., 7th 

Dist. Nos. 12 HA 4, 12 HA 5, 2013-Ohio-5869; In re S.B., 7th Dist. Nos. 13 HA 3, 13 

HA 4, 2013-Ohio-5870. 

{¶9} In In re H.F., 120 Ohio St.3d 499, 2008-Ohio-6810, 900 N.E.2d 607, the 

Ohio Supreme Court reaffirmed its previous holding in In re Murray, 52 Ohio St.3d 

155, 556 N.E.2d 1169 (1990), that: 

An adjudication by a juvenile court that a child is “neglected” or 

“dependent” as defined by R.C. Chapter 2151 followed by a disposition 

awarding temporary custody to a public children services agency 

pursuant to R.C. 2151.353(A)(2) constitutes a “final order” within the 

meaning of R.C. 2505.02 and is appealable to the court of appeals 

pursuant to R.C. 2501.02. 

Id. at ¶ 8. 
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{¶10} In deciding the case, the Court analyzed the rule allowing delayed 

appeals, App.R. 4(B)(5), and provided some guidance to appellate courts regarding 

when and how App.R. 4(B)(5) is applied: 

For App.R. 4(B)(5) to apply, an order must meet two requirements: (1) 

it must be a final order that does not dispose of all claims for all parties, 

and (2) it must not be entered under Civ.R. 54(B). 

Id. at ¶ 12. The Court reasoned that when determining whether a final order 

disposed of all claims between the parties, the inquiry is “whether any claim remained 

pending between the parties.” Id. The Court held that App.R. 4(B)(5) applies to allow 

delayed appeal of otherwise final orders only if some claims remain pending. Id. 

{¶11} In In re H.F., the Ohio Supreme Court held that App.R. 4(B)(5) does not 

operate to allow a delayed appeal of an adjudicatory order in a dependency matter 

because adjudication orders always constitute “final orders.” Adjudication orders 

cannot be construed as “partial final orders.” The exception enumerated in App.R. 

4(B)(5) only applies to “partial final orders.” Id. at ¶ 12. The Court reasoned that an 

adjudication order concludes “the immediate action between the parties” and “there is 

no assurance that a parent would have an alternate opportunity to appeal an 

adjudication order.” Id. at ¶ 13-14. Once a juvenile court has adjudicated a child 

abused, neglected, or dependent, there are no issues in that regard left pending 

between the parties. Id. at ¶ 15. The Court recognized that even though the juvenile 

court retains jurisdiction to enter a final disposition for the child, there is no certainty 
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that the parents would have another opportunity to appeal or address the neglect or 

dependency adjudication. Id. at ¶ 16. 

{¶12} Therefore, based on the Ohio Supreme Court’s decision in In re H.F., 

we do not have jurisdiction to address Appellants’ assignments of error regarding the 

alleged Juv.R. 29 violation, as neither parent appealed the trial court’s January 8, 

2016 adjudication order within thirty days pursuant to App.R. 4(A). 

APPELLANT GUILER’S ASSIGNMENT OF ERROR NO. 2 

THE TRIAL COURT ERRED BY FAILING TO DISMISS THE 

COMPLAINT AS DISPOSITION WAS HELD MORE THAN NINETY 

DAYS AFTER THE DATE ON WHICH THE COMPLAINT WAS FILED. 

{¶13} Guiler argues in her second assignment that the trial court erred in not 

complying with the time limits set forth in R.C. 2151.35(B)(1), which states, in 

pertinent part: 

The dispositional hearing may not be held more than thirty days after 

the adjudicatory hearing is held. The court, upon the request of any 

party or the guardian ad litem of the child, may continue a dispositional 

hearing for a reasonable time not to exceed the time limits set forth in 

this division to enable a party to obtain or consult counsel. The 

dispositional hearing shall not be held more than ninety days after the 

date on which the complaint in the case was filed. 

{¶14} Similarly, Juv.R. 34(A) provides: 
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Where a child has been adjudicated as an abused, neglected, or 

dependent child, the court shall not issue a dispositional order until after 

it holds a separate dispositional hearing. The dispositional hearing for 

an adjudicated abused, neglected, or dependent child shall be held at 

least one day but not more than thirty days after the adjudicatory 

hearing is held. * * * Upon the request of any party or the guardian ad 

litem of the child, the court may continue a dispositional hearing for a 

reasonable time not to exceed the time limit set forth in this division to 

enable a party to obtain or consult counsel. The dispositional hearing 

shall not be held more than ninety days after the date on which the 

complaint in the case was filed. If the dispositional hearing is not held 

within this ninety day period of time, the court, on its own motion or the 

motion of any party or the guardian ad litem of the child, shall dismiss 

the complaint without prejudice. 

{¶15} Although a trial court is required to hold the dispositional hearing within 

thirty days of the adjudicatory hearing, Ohio courts have routinely held that the time 

guidelines set forth in R.C. 2151.35(B)(1) are not jurisdictional in nature and may be 

waived by a parent. In re Kimble, 7th Dist. No. 99 517 CA, 2002-Ohio-2409. A party 

may implicitly waive timeliness issues when the party fails to move for dismissal 

based on the time limitation. Id. 

{¶16} In this case, Guiler is correct that the original complaint was filed on 

October 28, 2015 and that the adjudicatory hearing was held on January 5, 2016. 
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The dispositional hearing was originally set for February 22, 2016. A number of 

motions were filed and at least one continuance was sought by Maxwell which was 

granted by the trial court. The dispositional hearing was ultimately held on June 3, 

2016. Guiler did not object at any time to the scheduling of the hearings, and never 

filed a motion to dismiss based on the statutory time requirements. No arguments 

were made at the hearings nor were any objections raised to the timing of the 

hearing. Guiler was represented by counsel at each hearing, with the exception of a 

February 10, 2016 motion hearing at which Guiler agreed to proceed without 

counsel. At the outset of each hearing the trial court provided all parties the 

opportunity to address any preliminary matters. Guiler did not raise any concerns 

regarding timeliness at any point during any of the proceedings, nor did she object to 

the timing of hearings based on the statute. Therefore, in accordance with our 

previous holding in In re Kimble, through her conduct Guiler waived any time limits 

prescribed by statute. Consequently, her second assignment of error is without merit 

and is overruled. 

APPELLANT ANDERSON’S ASSIGNMENT OF ERROR NO. 2 

THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY FINDING 

THAT B.A.'S PATERNAL AUNT, HEATHER MAXWELL, COULD 

INTERVENE AS A MATTER OF RIGHT UNDER CIVIL RULE 24(A). 

{¶17} In his second assignment of error, Anderson argues the trial court erred 

in permitting Maxwell to intervene as a matter of right under Civ.R. 24(A). 

{¶18} Civ.R. 24 governs the right of a party to intervene and states as follows: 
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(A) Intervention of right. Upon timely application anyone shall be 

permitted to intervene in an action: (1) when a statute of this state 

confers an unconditional right to intervene; or (2) when the applicant 

claims an interest relating to the property or transaction that is the 

subject of the action and the applicant is so situated that the disposition 

of the action may as a practical matter impair or impede the applicant’s 

ability to protect that interest, unless the applicant's interest is 

adequately represented by existing parties. 

(B) Permissive intervention. Upon timely application anyone may be 

permitted to intervene in an action: (1) when a statute of this state 

confers a conditional right to intervene; or (2) when an applicant's claim 

or defense and the main action have a question of law or fact in 

common. When a party to an action relies for ground of claim or 

defense upon any statute or executive order administered by a federal 

or state governmental officer or agency or upon any regulation, order, 

requirement or agreement issued or made pursuant to the statute or 

executive order, the officer or agency upon timely application may be 

permitted to intervene in the action. 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. 

{¶19} Contrary to Anderson’s assertion, Maxwell sought permissive 

intervention pursuant to Civ.R. 24(B). The standard of review is abuse of discretion. 
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State ex rel. Cardinal Joint Fire Dist. v. Canfield Twp., 7th Dist. No. 03 MA 67, 2004-

Ohio-5526, citing Jamestown Village Condominium Owners Assn. v. Market Media 

Research, Inc., 96 Ohio App.3d 678, 694, 645 N.E.2d 1265 (8th Dist.1984). “An 

abuse of discretion is more than an error of judgment; it requires a finding that the 

trial court's decision was unreasonable, arbitrary, or unconscionable.” State v. Nuby, 

7th Dist. No. 16 MA 0036, 2016-Ohio-8157, ¶ 10, citing State v. Adams, 62 Ohio 

St.2d 151, 157, 404 N.E.2d 144 (1980). 

{¶20} Pursuant to Juv.R. 2(Y), a party is defined as: 

[A] child who is the subject of a juvenile court proceeding, the child's 

spouse, if any, the child's parent or parents, or if the parent of a child is 

a child, the parent of that parent, in appropriate cases, the child's 

custodian, guardian, or guardian ad litem, the state, and any other 

person specifically designated by the court. 

{¶21} Both Juv.R. 2(Y) and Civ.R. 24(B) imbue the trial court with discretion to 

permit intervention under the appropriate circumstances. In re R.W., 2015-Ohio1031, 30 N.E.3d 254, ¶ 14 (8th Dist.). A foster parent does not possess an automatic 

right to participate as a party in the adjudication of the rights of the natural parents 

and their child. Id. at ¶ 17. Foster parents generally have limited rights regarding the 

children in their care and are considered agents of the state as the child’s permanent 

or, as here, temporary legal custodian. Id. Notwithstanding such limited rights, the 

trial court has wide discretion to determine the parties in a juvenile action. In re 

Zhang, 135 Ohio App.3d 350, 355, 734 N.E.2d 379 (8th Dist.1999). Juv.R. 2(Y) 
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permits a trial court to include individuals not specifically designated parties but 

whose presence the court has determined is necessary in order to fully litigate an 

issue presented in the action. In re Franklin, 88 Ohio App.3d 277, 280, 623 N.E.2d 

720 (3d Dist.1993). 

{¶22} When making a determination whether an applicant can intervene in a 

juvenile proceeding, the trial court must consider if intervention is in the best interests 

of the child. In re R.W., supra, at ¶ 16. 

{¶23} Maxwell filed her motion to intervene on December 31, 2015 seeking an 

order “granting her leave to intervene in the instant cause of action, joining her as a 

party to this case, and granting her custody of the minor child.” (12/31/15 Maxwell 

Motion to Intervene.) In a judgment entry dated December 31, 2015, the trial court 

granted Maxwell’s motion to intervene. At the adjudicatory hearing on January 4, 

2016, counsel for Anderson objected to the motion to intervene on the basis that the 

state already represented the interests of the child. Counsel for Guiler also objected 

on the record. In response the trial court noted: 

This is the Court’s understanding. Alright? And I believe it’s either the 

Statute or the rule provides that when I come to disposition, okay, I can 

grant disposition to somebody who has somebody other than a parent 

who has asked to be the custodian. Okay? That’s what the rule says, 

the rule of the statute. Okay? Now, whether we get there or not is a 

different story. Okay? But I think, you know she has every right to 

intervene and every right to ask for custody. Okay? Whether she gets 
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it or not is a different story. So, I’ve granted the motion and I’m not 

going to change my mind. 

(1/4/16 Tr., pp. 6-7.) 

{¶24} The record reveals the child was placed in a kinship home with Maxwell 

on October 30, 2015, shortly after birth and after his release from the hospital where 

the infant received treatment for withdrawal as a result of testing positive for illicit 

drugs at birth. As foster parent, Maxwell provided care for B.A. throughout the 

duration of the proceedings. Maxwell facilitated supervised parenting time between 

both parents and the child and filed motions raising concerns of ongoing alleged drug 

use and cigarette smoking around the child, particularly when the child became ill 

and the parents were not cooperating with the NCDJFS care plan. Based on this 

record, we find no abuse of discretion by the trial court in granting Maxwell’s motion 

to intervene. Intervention was in the best interests of B.A. Since B.A.’s birth, 

Maxwell had assumed the dominant parental role for B.A. and was working with his 

best interests in mind. Consequently, Anderson’s second assignment of error is 

without merit and is overruled. 

{¶25} In conclusion, as Appellants failed to appeal the trial court’s 

adjudication order within the thirty-day time period pursuant to App.R. 4(A), we are 

without jurisdiction to determine the merits of their assignments of error relating to 

Juv.R. 29. Those assignments of error are overruled. Appellant Guiler’s second 

assignment of error is without merit because she waived any time limits set forth in 

R.C. 2151.35(B)(1). Appellant Anderson’s second assignment of error is also without 
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merit as this Court finds the trial court committed no error in permitting Maxwell to 

intervene as a party to the action pursuant to Civ.R. 24(B). Thus, based on the 

foregoing, the trial court’s judgment is affirmed. 

Donofrio, P.J., concurs. 

DeGenaro, J., concurs. 

APPROVED: 

_____________________________ 

CHERYL L. WAITE, JUDGE