[Cite as In re Adoption of M.S.A., 2017-Ohio-5771.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                              MERCER COUNTY




IN RE:
                                                          CASE NO. 10-17-01
THE ADOPTION OF:
                                                          OPINION
       M.S.A.




                 Appeal from Mercer County Common Pleas Court
                                 Probate Division
                            Trial Court No. 2016 5005

                                     Judgment Affirmed

                              Date of Decision: July 10, 2017




APPEARANCES:

        Eric J. Allen for Appellant

        Susan Garner Eisenman for Appellee
Case No. 10-17-01


PRESTON, P.J.

        {¶1} Intervenor-Appellant, Patricia Framak (“Framak”), appeals the

December 23, 2016 decision of the Mercer County Court of Common Pleas, Probate

Division (“Probate Court”), denying her motion to intervene in the adoption

proceeding of M.S.A. For the reasons that follow, we affirm.

        {¶2} This case stems from a petition to adopt M.S.A. filed by petitioners-

appellees, Brian and Kelly Anderson (the “Andersons”), on March 14, 2016 in the

Probate Court.1 (Doc. No. 1). The facts of this case are intertwined with an abuse

and dependency case involving M.S.A. in the Allen County Court of Common

Pleas, Juvenile Division (“Juvenile Court”).

        {¶3} M.S.A., who tested positive for cocaine when she was born in 2014,

was placed in the foster care of the Andersons after she was removed from the care

of her mother by the Allen County Children Services Board (“Board”) on August 7,

2014.2 (See Doc. Nos. 51, 72). After a shelter-care hearing on August 8, 2014, the

Juvenile Court on August 11, 2014 placed M.S.A. in the shelter care of the Board.

(Doc. No. 51). On August 11, 2014, the Board filed a complaint alleging that

M.S.A. was a dependent and abused child. (See Doc. Nos. 53, 54, 58). After a

hearing on September 15, 2014, the Juvenile Court issued an entry on October 8,



1
  The original March 31, 2016 date stamp on the petition was corrected by the Probate Court to reflect an
accurate filing date of March 14, 2016. (See Doc. Nos. 1, 139, 145).
2
  M.S.A. does not have a putative father. (See Doc. Nos. 32, 34, 155).

                                                  -2-
Case No. 10-17-01


2014 concluding that M.S.A. was a dependent and abused child. (Doc. Nos. 54,

58). On November 4, 2014, after a dispositional hearing on October 24, 2014, the

trial court granted the Board temporary custody of M.S.A. (Doc. Nos. 53, 58).

      {¶4} After a hearing on August 10, 2015, the Juvenile Court issued an entry

on September 16, 2015 extending the Board’s temporary custody of M.S.A. for six

months. (Doc. No. 52).

      {¶5} On November 13, 2015, the Andersons moved to intervene in the

juvenile-court case and sought legal custody of M.S.A. (Doc. No. 79). That same

day, M.S.A.’s mother filed a motion consenting to the intervention of the Andersons

in the juvenile-court case and objecting “to any plan which would place [M.S.A.] in

the care, control, and custody of [Framak].” (Doc. No. 76).

      {¶6} On January 4, 2016, the Board filed a motion requesting that the

Juvenile Court modify its November 4, 2014 order granting the Board temporary

custody of M.S.A. by granting legal custody of M.S.A. to Framak. (Doc. No. 56).

On or about March 16, 2016, the Board removed M.S.A. from the Andersons’ home

and placed her with Framak. (Doc. No. 90).

      {¶7} On February 29, 2016, the Juvenile Court’s magistrate denied the

Andersons’ motion to intervene as parties in the juvenile-court proceeding. (Doc.

No. 79). The Andersons filed an objection to the magistrate’s decision on March

14, 2016. (Id.). On March 28, 2016, the Board filed its response to the Andersons’


                                        -3-
Case No. 10-17-01


objection to the magistrate’s decision. (Id.). On April 1, 2016, the Juvenile Court

overruled the Andersons’ objection to the magistrate’s decision denying the

Andersons’ motion to intervene in the juvenile-court proceeding. (Id.). On April 8,

2016, the Andersons filed a renewed motion to intervene in the juvenile-court

proceeding. (Doc. No. 81).

      {¶8} Meanwhile, on March 14, 2016, the Andersons filed a petition in the

Probate Court to adopt M.S.A. (Doc. No. 1). On March 28, 2016, M.S.A.’s mother

filed an application for placement of M.S.A. with the Andersons for the purpose of

adoption. (Doc. No. 2). The Probate Court approved the application for placement

on March 31, 2016 and ordered the Board to release M.S.A. to the custody of the

Andersons’ attorney. (Doc. No. 36).

      {¶9} In response to the Probate Court’s order, the Juvenile Court on April 1,

2016 granted the Board’s motion requesting that the trial court ex parte “issue an

Order ‘preventing the minor child from being removed from her current

placement.’” (Doc. No. 58).

      {¶10} On April 5, 2016, the Board filed a motion requesting that the Probate

Court stay the execution of its order to release M.S.A. to the custody of the

Andersons’ attorney and stay “any further proceedings in this matter pending the

outcome of [the juvenile-court case].” (Doc. No. 50).




                                        -4-
Case No. 10-17-01


       {¶11} On April 7, 2016, the Andersons filed a motion requesting that the

Probate Court appoint a Guardian Ad Litem (“GAL”) to assist with the pending

adoption petition. (Doc. No. 59).

       {¶12} On April 8, 2016, the Andersons filed a motion requesting the Probate

Court to find the Board in contempt of court for failing to release M.S.A. to the

custody of the Andersons’ attorney as ordered. (Doc. No. 61). On April 11, 2016,

the trial court ordered the Board to show cause as to why it should not be found in

contempt of court for failing to abide by the Probate Court’s March 31, 2016 order.

(Doc. No. 63).

       {¶13} On April 11, 2016, the Andersons filed a motion to strike the Board’s

April 5, 2016 motion to stay. (Doc. No. 68). That same day, the Andersons filed

an amended petition to adopt M.S.A. (Doc. No. 69). On April 12, 2016, the

Andersons filed a memorandum in opposition to the Board’s April 5, 2016 motion

to stay. (Doc. No. 70).

       {¶14} On April 14, 2016, the Board filed an objection to the Andersons’

petition to adopt M.S.A. (Doc. No. 71). The next day, the Andersons filed a motion

to strike the Board’s objection to their petition to adopt M.S.A. (Doc. No. 82).

       {¶15} On April 19, 2016, the Andersons filed a “Motion to Set Adoption for

Immediate Final Hearing or in the Alternative for a Finding that Finalization is Not




                                        -5-
Case No. 10-17-01


Possible Absent Physical Custody; Motion to Immediately Commence Visitation.”

(Doc. No. 84).

        {¶16} On April 27, 2016, the Probate Court: (1) concluded that the Board

must abide by the Probate Court’s March 31, 2016 order; (2) denied the Board’s

motion to stay the proceeding; (3) denied the Andersons’ motion to strike the

Board’s objection to their petition to adopt M.S.A.; (4) denied the Andersons’

motion requesting that the Probate Court appoint a GAL; (5) scheduled a hearing

on the Andersons’ motion for contempt; and (6) set the adoption petition for final

hearing. (Doc. No. 90). On May 9, 2016, the Board filed a notice of appeal from

the Probate Court’s April 27, 2016 entry. (Doc. No. 97). The following day, the

Board filed a motion to stay the contempt proceeding, which the trial court granted

on May 12, 2016. (Doc. Nos. 102, 110). On May 13, 2016, the Probate Court

scheduled the final-adoption hearing for June 2, 2016. (Doc. No. 111). On May 16,

2016, this court concluded that the Probate Court’s April 27, 2016 judgment entry

is not a final and appealable order and dismissed the Board’s appeal. (Doc. No.

117).

        {¶17} On May 31, 2016, the Board filed a motion to “stay the hearing on the

Motion for Citation in Contempt scheduled in this matter on June 2, 2016 and any

further hearings in this matter.” (Doc. No. 124). That same day, the Andersons

filed a memorandum in opposition to the Board’s motion to stay. (Doc. No. 125).


                                        -6-
Case No. 10-17-01


        {¶18} Prior to that, on May 10, 2016, the Board filed a complaint for a writ

of prohibition in the Supreme Court of Ohio against the Probate Court and Judges

Mary Pat Zitter and James Rapp.3 State ex rel. Allen Cty. Children Servs. Bd. v.

Mercer Cty. Common Pleas Court, Prob. Div., ___ Ohio St.3d ___, 2016-Ohio-

7382, ¶ 14. The Supreme Court granted a peremptory writ of prohibition on June

1, 2016. Id. The Probate Court and Judges Zitter and Rapp sought reconsideration

of the June 1, 2016 peremptory writ of prohibition. Id. at ¶ 16. The Supreme Court

granted the motion for reconsideration, rescinded the peremptory writ of prohibition

issued on June 1, 2016, and denied the requested writ. Id. at ¶ 41. In its opinion,

the Supreme Court concluded that “the authority of the probate court to order

preadoption placement pursuant to R.C. 5103.16(D) is therefore within its

exclusive, original jurisdiction over adoption proceedings, notwithstanding the fact

that the child is subject to the continuing jurisdiction of the juvenile court.” Id. at ¶

36. In reaching that conclusion, the Supreme Court reasoned

               Here, the Juvenile Court exercised exclusive jurisdiction over

        [M.S.A.] when it adjudicated her a dependent and abused child and

        when it issued a dispositional order awarding temporary custody of

        [M.S.A.] to the Board.              Thereafter, the Juvenile Court retained


3
  “Judge Zitter is a common pleas judge in Mercer County. Judge Rapp is presiding over the case pursuant
to assignment * * * by the chief justice [of the Supreme Court of Ohio], effective April 1, 2016.” State ex
rel. Allen Cty. Children Servs. Bd. v. Mercer Cty. Common Pleas Court, Prob. Div., ___ Ohio St.3d ___,
2016-Ohio-7382, ¶ 2, fn.1.

                                                    -7-
Case No. 10-17-01


        continuing jurisdiction, which will terminate when [M.S.A.] reaches

        the age of 18 or 21 or when she is adopted * * *. The Juvenile Court’s

        continuing jurisdiction does not, however, divest the Probate Court of

        its exclusive, original jurisdiction over adoption proceedings. And

        [M.S.A.’s] mother’s residual parental right to consent to adoption and

        preadoption placement therefore supersedes the Board’s right to

        decide [M.S.A.’s] residential placement as part of its temporary

        custody.

             Accordingly, we recognize that the Probate Court has

        jurisdiction to consider the adoption of [M.S.A.]

Id. at ¶ 40-41.

        {¶19} On October 21, 2016, the Andersons regained custody of M.S.A.

(Doc. No. 143). On October 25, 2016, the Juvenile Court issued an order granting

legal custody of M.S.A. to Framak. (Doc. No. 144).

        {¶20} On October 28, 2016, the Andersons filed a “Motion to Amend

Pleadings to Conform to the Testimony Presented at Placement Hearing,” which the

Probate Court granted on November 10, 2016, and corrected the March 31, 2016

date stamp on the Andersons’ original adoption petition to reflect an accurate filing

date of March 14, 2016. (Doc. Nos. 1, 139, 145).




                                         -8-
Case No. 10-17-01


           {¶21} As a result of the Juvenile Court’s October 25, 2016 order granting

legal custody of M.S.A. to Framak and Framak’s attempts to gain physical custody

of M.S.A, the Probate Court issued on November 2, 2016 “an immediate order”

clarifying the custody of M.S.A.4 (Doc. No. 144). In that order, the Probate Court

clarified that its order granting physical custody of M.S.A. to the Andersons

superseded the Juvenile Court’s order granting legal custody of M.S.A. to Framak.

(Id.).

           {¶22} On November 14, 2016, the Probate Court issued a notice of hearing

on the petition for adoption for December 9, 2016. (Doc. No. 147). That same day,

the Probate Court appointed a GAL “to investigate and make recommendations

regarding the pending adoption.” (Doc. No. 146).

           {¶23} On November 29, 2016, Framak filed a motion to intervene in the

adoption proceeding. (Doc. No. 157). That same day, she filed an objection to the

Andersons’ petition to adopt M.S.A. (Doc. No. 158). On November 30, 2016, the

Andersons filed a memorandum in opposition to Framak’s motion to intervene and

objection to the Andersons’ petition to adopt M.S.A. (Doc. No. 164).

           {¶24} The GAL filed her report on December 5, 2016 recommending that

the Probate Court grant the Andersons’ petition to adopt M.S.A. (Doc. No. 170).




4
    The order is signed by Judge Zitter. (Doc. No. 144).

                                                      -9-
Case No. 10-17-01


       {¶25} After a hearing on December 9, 2016, the Probate Court on December

23, 2016 denied Framak’s motion to intervene and dismissed Framak’s objection to

the Andersons’ petition to adopt M.S.A. (Doc. No. 181). The Probate Court orally

granted the Andersons’ petition to adopt M.S.A. at the December 9, 2016 hearing

and issued its final adoption decree on December 23, 2016. (Doc. Nos. 180, 185).

       {¶26} On December 15, 2016, the Andersons filed a motion requesting that

the Probate Court issue its findings of fact and conclusions of law, which the trial

court granted on December 23, 2016, and issued its findings of fact and conclusions

of law on January 23, 2017. (Doc. Nos. 180, 184, 200).

       {¶27} On January 18, 2017, Framak filed her notice of appeal of the Probate

Court’s entry denying her motion to intervene and dismissing her objection to the

Andersons’ petition to adopt M.S.A. (Doc. No. 194). She raises four assignments

of error for our review. Because it is dispositive, we will first address Framak’s

fourth assignment of error, followed by her first, second, and third assignments of

error together.

                          Assignment of Error No. IV

       The Trial Court Abused its Discretion When it Denied
       Appellant’s Motion to Intervene

       {¶28} In her fourth assignment of error, Framak argues that the Probate

Court abused its discretion by denying her motion to intervene in the adoption

proceeding. In particular, she argues that the trial court should have granted her

                                       -10-
Case No. 10-17-01


motion because she “stood in loco parentis” when “the juvenile court gave her

[legal] custody [of M.S.A.] in March of 2016.” (Appellant’s Brief at 10).

       {¶29} As an initial matter, although the Probate Court did not specifically

mention Civ.R. 24 in its entry denying Framak’s motion to intervene, and Framak

did not mention the rule in her argument on appeal, Civ.R. 24 is the controlling

authority because it governs intervention in Ohio civil cases. “‘Under Civ.R. 24(A),

a party has the right to intervene “when a statute of this state confers an

unconditional right to intervene”’” or when an applicant has “an interest in the

subject matter of the lawsuit.” In re Adoption of Hilliard, 154 Ohio App.3d 54,

2003-Ohio-4471, ¶ 5 (3d Dist.), quoting In re Adoption of Ridenour, 61 Ohio St.3d

319, 328 (1991), quoting Civ.R. 24(A). See also In re J.T.F., 2d Dist. Greene No.

12-CA-03, 2012-Ohio-2105, ¶ 22, citing Blackburn v. Hamoudi, 29 Ohio App.3d

350 (10th Dist.1986). If an applicant claims an interest in the subject matter of the

lawsuit, that applicant must have an interest that is “‘direct, substantial, and legally

protectable.’” In re J.T.F. at ¶ 22, quoting Fairview Gen. Hosp. v. Fletcher, 69 Ohio

App.3d 827, 833 (10th Dist.1990). “‘Under Civ.R. 24(B), the judge may permit a

party to intervene “when a statute of this state confers a conditional right to

intervene.”’” In re Adoption of Hilliard at ¶ 5, quoting In re Adoption of Ridenour

at 328-329. “Nonstatutory permissive intervention requires that an applicant’s

claim or defense and the main action have a question of law or fact in common.” In


                                         -11-
Case No. 10-17-01


re J.T.F. at ¶ 37, citing Civ.R. 24(B). “In exercising its discretion, the court is

directed by Civ.R. 24(B) specifically to consider whether proposed permissive

intervention ‘will unduly delay or prejudice the adjudication of the rights of the

original parties.’” Id. at ¶ 36, quoting Civ.R. 24(B).

       {¶30} “We review a trial court’s decision on a motion to intervene for an

abuse of discretion.” Crow v. Baldino, 2d Dist. Clark No. 2016-CA-56, 2017-Ohio-

2779, ¶ 8, citing State ex rel. Merrill v. Ohio Dept. of Natural Resources, 130 Ohio

St.3d 30, 2011-Ohio-4612, ¶ 41. See also In re J.T.F. at ¶ 21, citing Wager v. Miami

Cty. Bd. of Zoning Appeals, 2d Dist. Miami No. 2003-CA-19, 2003-Ohio-4210, ¶ 8.

“Although Civ.R. 24 should be construed liberally in favor of granting intervention,

we cannot reverse unless the trial court’s decision was unreasonable, arbitrary, or

unconscionable.” Crow at ¶ 8, citing Merrill at ¶ 41.

       {¶31} Framak does not point to any specific provision granting her the right

to intervene in the adoption proceeding. Instead, Framak claims an interest in the

adoption of M.S.A. because she was awarded legal custody of M.S.A. by the

Juvenile Court. As such, Framak argues that her designation as M.S.A.’s legal

custodian confers a statutory right to give or withhold consent to her adoption by

the Andersons.

       {¶32} R.C. Chapter 3107 governs adoptions in Ohio. In re Adoption of

Ridenour, 61 Ohio St.3d at 329. R.C. Chapter 3107 contains no provision granting


                                        -12-
Case No. 10-17-01


Framak a conditional or unconditional right to intervene in the adoption of M.S.A.

Id. R.C. 3107.06 “requires the written consent of particular parties before an

adoption petition may be granted.” Id. Framak does not qualify as a person who

must consent to the adoption of M.S.A. under R.C. 3107.06. See In re J.T.F. at ¶

24. See also In re Adoption of Ridenour at 329. Indeed, the rights of a legal

custodian are “‘subject to any residual parental rights, privileges, and

responsibilities.’” In re J.T.F. at ¶ 24, quoting R.C. 2151.011(B)(21). Further,

Framak’s status as M.S.A.’s maternal aunt does not confer a statutory basis as a

person who must consent to the adoption of M.S.A. and, consequently, a basis to

intervene in the adoption proceeding. See In re Adoption of S.R.N.E., 4th Dist.

Adams No. 09CA885, 2009-Ohio-6959, ¶ 11 (concluding that the intervenor-

appellant’s status as the child’s “former great aunt” did not provide a statutory basis

for her to intervene in the adoption proceeding). As such, Framak neither has an

unconditional right to intervene conferred by statute nor an interest in the subject

matter of the lawsuit that is direct, substantial, and legally protectable. See In re

J.T.F. at ¶ 35. See also In re Adoption of Ridenour at 329-330; In re Adoption of

Hilliard, 2003-Ohio-4471, at ¶ 6.

       {¶33} Moreover, Framak does not have a claim or defense in the adoption

proceeding which would allow the Probate Court to grant her permissive

intervention under Civ.R. 24(B). In re J.T.F. at ¶ 37. As we discussed above,


                                         -13-
Case No. 10-17-01


because there is no provision under R.C. 3107.06 requiring Framak’s consent to

M.S.A.’s adoption by the Andersons, Framak does not have a claim or defense to

present in the adoption proceeding. Id. Because Framak does not have a claim or

defense to present in the adoption proceeding, the Probate Court could reasonably

find that her participation in the adoption proceeding would unduly delay the

adjudication of the petition for adoption filed by the Andersons. Id.

       {¶34} For these reasons, the Probate Court did not abuse its discretion by

denying Framak’s motion to intervene.

       {¶35} Framak’s fourth assignment of error is overruled.

                            Assignment of Error No. I

       The Mercer County Probate Court Lacked the Legal Authority
       to Alter the File Stamp on the Petition to Adopt M.A.S [sic]

                           Assignment of Error No. II

       Judge Zitter Lacked Authority to Enter an Order Following her
       Recusal

                           Assignment of Error No. III

       The Mercer County Common Pleas Court, Probate Division
       Lacked Exclusive Jurisdiction

       {¶36} In her first, second, and third assignments of error, Framak attacks

judgments of the Probate Court regarding the procedure it used in the adoption

proceeding. Because Framak is not a party to the adoption proceeding, her standing

is limited to challenging on appeal the Probate Court’s denial of her motion to

                                        -14-
Case No. 10-17-01


intervene. See In re Adoption of T.B.S., 4th Dist. Scioto No. 07CA3139, 2007-Ohio-

3559, ¶ 7-8. “‘Unless a person is a party in the lower court case, the individual has

no standing to appeal.’” Id. at ¶ 7, quoting In re Stanley, 9th Dist. Summit Nos.

20128, 20131, and 20132, 2000 WL 1507917, *3 (Oct. 11, 2000), citing Whiteside,

Ohio Appellate Practice, Section 1.27 at 30 (1996).

         “Ordinarily, in order to have the right to appeal, one must either have

         been a party to the case in the trial court or have attempted to intervene

         as a party. A person not a party to an action has no right of direct

         appeal from an adjudication. Moreover, the prospective appellant

         must be able to show that he or she has a present interest in the

         litigation and is prejudiced by the judgment appealed from.”

Id., quoting Painter and Dennis, Ohio Appellate Practice, Section 1:27 (2007).

However, “[f]iling a motion to intervene does not give a party unlimited ability to

challenge every aspect of the trial court proceedings.” Id. at ¶ 8, citing In re Stanley

at *3.

         {¶37} As such, Framak lacks standing “to challenge the merits of the

[Probate Court’s] decision finalizing the adoption or the procedure it used.” Id. at

¶ 8. Therefore, we lack the authority to consider Framak’s arguments under her

first, second, and third assignments of error. Id.




                                           -15-
Case No. 10-17-01


       {¶38} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the Probate Court.

                                                              Judgment Affirmed

WILLAMOWSKI and ZIMMERMAN, J.J., concur.

/jlr




                                       -16-
