[Cite as In re B.K., 2013-Ohio-1190.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA



                               JOURNAL ENTRY AND OPINION
                                        No. 98730



                                    IN RE: B.K. and S.C.
                                      Minor Children

                               [Appeal By D.P., Grandmother]



                                        JUDGMENT:
                                         AFFIRMED



                                      Civil Appeal from the
                             Cuyahoga County Court of Common Pleas
                                        Juvenile Division
                            Case Nos. AD-03900658 and AD-02901218


        BEFORE: E.T. Gallagher, J., Stewart, A.J., and Kilbane, J.

        RELEASED AND JOURNALIZED:                 March 28, 2013
ATTORNEYS FOR APPELLANT

Kevin J.M. Senich
Michael B. Telep
4438 Pearl Road
Cleveland, Ohio 44109


ATTORNEY FOR APPELLEE

Lisa A. Hahn
8193 Avery Road
Suite 201
Broadview Heights, Ohio 44147


GUARDIAN AD LITEM

Christopher R. Lenahan
2035 Crocker Road
Suite 104
Westlake, Ohio 44145
EILEEN T. GALLAGHER, J.:

       {¶1} Appellant appeals the denial of her motion to intervene and motion to obtain

legal custody of her grandchildren. We find no merit to the appeal and affirm the trial

court’s judgment.

       {¶2} In March 2002, the Cuyahoga County Department of Children and Family

Services (“CCDCFS”) obtained an emergency order temporarily removing S.C., born in

January 2002, and her older sister, now emancipated, from their mother as a result of her

use of illegal drugs. The children, who were in predispositional custody of CCDCFS,

remained with appellant 1 while their mother followed a case plan and underwent

addiction treatment at an inpatient facility.

       {¶3} On October 8, 2002, CCDCFS filed a motion to modify the temporary

custody and to grant legal custody to appellant. However, CCDCFS later withdrew the

motion and conferred legal custody of S.C. and her older sister back to their mother, with

protective supervision by CCDCFS.

       {¶4} Mother then gave birth to B.K. in March 2003. The court later determined

that appellee, who had never been married to mother, was the father of both B.K. and S.C.

 CCDCFS obtained an emergency order removing B.K. from his parents within days of

his birth. However, in November 2003, the court found that mother had substantially




           Appellant is the mother’s mother and the children’s grandmother.
       1
complied with her case plan, terminated the order of temporary custody to CCDCFS, and

awarded her legal custody of the children.

      {¶5} In January 2012, mother was diagnosed with terminal cancer and executed a

last will and testament designating appellant as the guardian of her children. In March

2012, the children’s mother passed away. On April 4, 2012, appellant filed separate

motions to intervene in the matters of S.C. and B.K. pursuant to Civ.R. 24, R.C.

2151.23(A)(2) and 3109.04; motions for legal custody of the children; and motions for

temporary custody. Shortly thereafter, appellee filed an application to determine custody

and motions for temporary custody, alleging that the children lived primarily with him

and their mother at his home as a cohesive family unit.

      {¶6} Following two hearings, a magistrate denied appellant’s motion to intervene

and granted father’s motion for custody.       The trial court adopted the magistrate’s

decisions. This appeal followed.

      {¶7} In her sole assignment of error, appellant argues the trial court abused its

discretion in denying her motion to intervene.       She contends she has standing to

intervene because the children’s father is an unsuitable parent and because she previously

had temporary custody of the children when they were adjudicated dependent.

      {¶8} A trial court has broad discretion in matters concerning the allocation of

parental rights and responsibilities, and its decision shall not be disturbed on appeal

absent an abuse of       discretion.    Masters v. Masters, 69 Ohio St.3d 83, 85,
1994-Ohio-483, 630 N.E.2d 665; Booth v. Booth, 44 Ohio St.3d 142, 144, 541 N.E.2d

1028 (1989).

       {¶9} Appellant contends she was entitled to intervene to seek custody of her

grandchildren under In re Schmidt, 25 Ohio St.3d 331, 496 N.E.2d 952 (1986). Quoting

Schmidt, she argues that

       [i]ntervention by grandparents in a permanent custody proceeding is
       appropriate where the grandparents have a legal right to or a legally
       protectable 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. Where any of these
       circumstances are present, it is my view that a denial of the grandparents’
       motion to intervene would constitute an abuse of the juvenile court’s
       discretion.

Id. at 338 (Celebrezze, C.J., concurring).

       {¶10} However, this language comes from a concurring opinion, and therefore

constitutes mere dicta rather than the true holding of the Schmidt court. In determining

whether grandparents should be permitted to intervene as of right under Civ.R. 24(A), the

majority of the Schmidt court determined the grandparents had no right to intervene

because they “never obtained, through statute, court order, or other means, any legal right

to custody or visitation with their grandson.” (Emphasis sic.) Schmidt at 336. The

Schmidt court further determined that the grandparents did not have any legal interest in

the care and custody of their grandson and that their “concern for their grandson’s welfare

cannot be construed as a legal interest that falls within the scope of Civ.R. 24(A).” Id.
       {¶11} Although the children lived with appellant while their mother was working

through her case plan, appellant was never granted legal custody. CCDCFS filed a motion

to modify a temporary custody order to grant legal custody to appellant in October 2002,

but later withdrew the motion when the children were returned to their mother’s custody.

Notwithstanding appellant’s desire for custody of the children, she has no legally

protectable interest that would confer the right to intervene under Civ.R. 24(A).

       {¶12} Appellant further argues that because the juvenile court adjudicated both

children dependent, the court had no duty to find that appellee was unsuitable before

awarding her legal custody of the children. In other words, she alleges that the juvenile

court’s adjudication of dependency implicitly involved a determination that father was

unsuitable. We disagree.

       {¶13} In support of this argument, appellant relies on In re C.R., 108 Ohio St.3d

369, 2006-Ohio-1191, 843 N.E.2d 1188. In In re C.R., the Ohio Supreme Court held that

“when a juvenile court adjudicates a child to be abused, neglected, or dependent, it has no

duty to make a separate finding at the dispositional hearing that a non-custodial parent is

unsuitable before awarding legal custody to a nonparent.” Id. at ¶ 24. However, the

court also held that the adjudication of abuse, neglect, or dependency does not

permanently foreclose the right of either parent to regain custody because it is not a

termination of all parental rights, and the court may consider a motion for change of

custody under R.C. 2151.42(B). Id.

       {¶14} R.C. 2151.42(B) provides, in pertinent part:
       A court shall not modify or terminate an order granting legal custody of a
       child unless it finds, based on facts that have arisen since the order was
       issued or that were unknown to the court at that time, that a change has
       occurred in the circumstances of the child or the person who was granted
       legal custody, and that modification or termination of the order is necessary
       to serve the best interest of the child.

       {¶15} In the instant case, the children were adjudicated dependent and were

temporarily removed from their mother’s custody in 2002.            However, because she

completed her case plan, the court considered this change in circumstances and found she

was suitable to regain legal custody of her children.

       {¶16} Although appellee did not follow a prescribed case plan in 2002, there is

evidence that he is now actively involved in the children’s lives. The record shows that

the children have resided primarily with him and that he is involved in their schooling,

medical care, and extracurricular activities.      He also made regular child support

payments. Although the children were adjudicated dependent ten years ago, we do not

believe this fact is evidence of unsuitability under the present circumstances.

       {¶17} Furthermore, a parent has a fundamental right to raise his or her child.

Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). This interest is

protected by the Due Process Clause of the Fourteenth Amendment to the United States

Constitution and by Section 16, Article I, of the Ohio Constitution. Id. By contrast,

grandparents have no constitutional right of association with their grandchildren. In re

Whitaker, 36 Ohio St.3d 213, 214, 522 N.E.2d 563 (1988); In re Schmidt, 25 Ohio St.3d

at 336, 390, 496 N.E.2d 952. Therefore, before a child may be placed in the custody of a
non-parent, the court must find the parent is unsuitable. In re Perales, 52 Ohio St.2d 89,

369 N.E.2d 1047 (1977), syllabus.

      {¶18} Appellant argues that even if father’s unsuitability cannot be implicitly

found on the basis of the prior dependency adjudication, she has a right to intervene to

prove his unsuitability now. In support of her argument, appellant cites In re Miley, 7th

Dist. No. 99 JE 42, 2001-Ohio-3343, and Christopher A.L. v. Heather D.R., 6th Dist. No.

H-03-040, 2004-Ohio-4271.

      {¶19} However, because Miley does not address the grandparents’ right to

intervene, we find this case inapplicable to the case before us. In Christopher A.L., the

maternal grandparents were permitted to intervene in a custody hearing and were awarded

custody of their grandchild after the father was found unsuitable. The court placed the

child in the temporary custody of her grandparents because there was evidence the father

had domestic violence convictions, alcohol dependency, and child support arrears. There

was also evidence that the child never lived with the father. Based on those facts, the

appellate court found no abuse of discretion in the trial court’s decision to allow the

grandparents to intervene because they were necessary parties to protect the interests of

the grandchild.

      {¶20} Here, the court held two hearings to allow appellant to establish standing to

intervene and to hear arguments regarding appellee’s suitability as a father. Unlike the

father in Christopher A.L., there is no evidence that appellee has domestic violence

convictions or current substance abuse problems. However, there is evidence that he has
maintained a relationship with the children, provided for the children, and has been

actively involved their lives. Therefore, the trial court did not abuse its discretion in

denying appellant’s motion to intervene because there was no evidence that appellee was

unsuitable or that the children’s interests were not being protected.

       {¶21} Accordingly, we overrule the sole assignment of error.

       {¶22} Judgment affirmed.

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

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate be sent to said 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.



EILEEN T. GALLAGHER, JUDGE

MELODY J. STEWART, A.J., and
MARY EILEEN KILBANE, J., CONCUR
