[Cite as In re Adoption of K., 2018-Ohio-3082.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                       WOOD COUNTY


In re Adoption of K.                                  Court of Appeals No. WD-18-018

                                                      Trial Court No. 2016-4035



                                                      DECISION AND JUDGMENT

                                                      Decided: August 3, 2018

                                                  *****

        D.P., pro se.

                                                  *****

        MAYLE, P.J.

        {¶ 1} Appellant, D.P. (“grandfather”), appeals the February 26, 2018 judgment of

the Wood County Court of Common Pleas, Probate Division, denying his pro se “motion

to intervene and become a party and motion to dismiss adoption.”1 For the following

reasons, we affirm.



1
 A.P., K.’s paternal grandmother, also appeared pro se in the trial court and signed the
motions to intervene and dismiss. She did not file a notice of appeal, however, so she is
not a party to this appeal.
                                    I. Background and Facts

         {¶ 2} The case underlying this appeal is a stepparent adoption of K. that is pending

before the trial court. Grandfather is K.’s paternal grandfather. On February 15, 2018,

grandfather filed his motions to intervene and dismiss. Grandfather based his arguments

on a visitation order from the Wood County Court of Common Pleas, Juvenile Division,

that granted grandfather visitation rights to K. because it found that visits with

grandfather were in K.’s best interest. Grandfather claimed that it was in K.’s best

interest for him to intervene in the adoption proceeding because the outcome will affect

his substantial rights. He also argued that the adoption petition should be dismissed

because maintaining the grandparent-grandchild relationship was in K.’s best interest.

         {¶ 3} On February 23, 2018, B.B., the prospective adoptive parent and the

appellee in this case, 2 filed a response to grandfather’s motions in which he claimed that

the probate court is required to make its adoption decision without regard to a prior order

from another court, grandparents do not have a statutory right to intervene in an adoption

proceeding, and the probate court may not consider grandparents’ visitation rights in

ruling on an adoption petition.

         {¶ 4} On February 26, 2018, the trial court issued its judgment entry denying

grandfather’s motions. The court found that the juvenile court visitation order did not

give grandfather standing to intervene in the adoption proceeding, grandfather had no



2
    B.B. did not file a brief in this appeal.




2.
statutory rights that made intervention under Civ.R. 24 proper, and grandfather could not

move to dismiss the petition for adoption because he had no right to intervene in the case.

       {¶ 5} Grandfather appeals the trial court’s decision on his motion to intervene,

raising one assignment of error:

              THE COURT ERRED AND ABUSED ITS DISCRETION BY NOT

       ACTING IN THE MINOR CHILDS [sic] BEST INTEREST AND

       FAILED TO ADDRESS COMMON ISSUE OF LAW IN THE OHIO

       REVISED CIVIL RULE [sic] 24(B)(2) IS AGAINST THE MANIFEST

       WEIGHT OF THE EVIDENCE AND THE OHIO LAW.

                                   II. Law and Analysis

       {¶ 6} In his assignment of error, grandfather essentially argues that the trial court

abused its discretion by denying his motion to intervene. Specifically, he contends that

his claim to visitation rights with K. has a question of law or fact in common with the

petition for adoption. In doing so, he focuses almost exclusively on the argument that his

intervention in the adoption proceeding is in K.’s best interest. Grandfather also

explicitly denies that he has any statutory right to intervene in the adoption case. Because

grandfather failed to comply with Civ.R. 24(C) and lacks any legal rights that he could

protect by intervening in the adoption proceeding, we find that the trial court properly

denied grandfather’s motion to intervene.

       {¶ 7} We review the trial court’s determination under Civ.R. 24 for an abuse of

discretion. State ex rel. Merrill v. Ohio Dept. of Natural Resources, 130 Ohio St.3d 30,




3.
2011-Ohio-4612, 955 N.E.2d 935, ¶ 41. Abuse of discretion means that the trial court’s

decision was unreasonable, arbitrary, or unconscionable. State ex rel. Askew v. Goldhart,

75 Ohio St.3d 608, 610, 665 N.E.2d 200 (1996).

       {¶ 8} Grandfather only argues that the trial court abused its discretion by denying

him leave to intervene pursuant to Civ.R. 24(B)(2). Under that section, the trial court

may allow a nonparty to intervene in a case if the nonparty’s claim and the main action

have questions of law or fact in common. Id. In reaching its decision, the court must

consider whether allowing a nonparty to intervene would unduly delay or prejudice the

determination of the original parties’ rights. Id. A motion to intervene “shall be

accompanied by a pleading, as defined in Civ.R. 7(A), setting forth the claim or defense

for which intervention is sought.” Civ.R. 24(C).

       {¶ 9} The trial court must construe Civ.R. 24 liberally in favor of permitting

intervention. Merrill at ¶ 41. Even so, failure to comply with Civ.R. 24(C) is grounds

for denying a motion to intervene. In re Estate of Williams, 6th Dist. Sandusky No.

S-14-018, 2015-Ohio-4781, ¶ 16.

       {¶ 10} In this case, the trial court did not abuse its discretion by denying

grandfather’s motion to intervene because grandfather did not include “a pleading, as

defined in Civ.R. 7(A), setting forth the claim or defense for which intervention is

sought,” as required by Civ.R. 24(C). This alone is a sufficient basis for denying a

motion to intervene. Williams at ¶ 16.




4.
       {¶ 11} Grandfather argues that we should liberally construe his motion because he

appeared pro se in the trial court. As a pro se litigant, however, grandfather is bound by

the same rules and procedures as parties who are represented by counsel. Kenwood

Gardens Assn., LLC v. Shorter, 6th Dist. Lucas No. L-10-1315, 2011-Ohio-4135, ¶ 8.

Moreover, even if we were to construe grandfather’s motion as a pleading that satisfied

Civ.R. 24(C), he does not have a legal right to protect in this case and, therefore, cannot

present a “claim or defense for which intervention is sought” under Civ.R. 24.

       {¶ 12} The Supreme Court of Ohio has explained that grandparents have no right

of access to their grandchildren at common law and no constitutionally-protected right of

association with their grandchildren, so any rights to grandchildren must be granted by

statute. In re Martin, 68 Ohio St.3d 250, 252, 626 N.E.2d 82 (1994), citing In re

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

St.3d 331, 336, 496 N.E.2d 952 (1986). Generally speaking, R.C. Chapter 3107—the

chapter that governs adoptions—does not give grandparents the right to participate in

adoption proceedings involving their grandchildren. In re Ridenour, 61 Ohio St.3d 319,

329, 574 N.E.2d 1055 (1991). For example, the court is not required to notify

grandparents that a petition for adoption has been filed or obtain the grandparents’

consent to the adoption. Id., citing R.C. 3107.06 and .11. Thus, “unless the

[grandparents] are themselves seeking to adopt, they do not have an interest in the

adoption proceeding per se sufficient to give them standing to intervene.” (Emphasis in

original.) Id. at 330.




5.
       {¶ 13} Grandfather, citing R.C. 3109.051 and cases applying it, argues that he

should be allowed to intervene in the adoption case because visits with him are in K.’s

best interest. Revised Code 3109.051 governs orders granting visitation rights in a

“divorce, dissolution, legal separation, or annulment proceeding” and also applies to

orders granting grandparent visitation rights under R.C. 3109.12 (the statute that outlines

visitation rights when the child’s parents are unmarried). These statutes are inapplicable

in adoption proceedings under R.C. Chapter 3107. See Ridenour; In re Zschach, 75 Ohio

St.3d 648, 652, 665 N.E.2d 1070 (1996) (“R.C. 3107.15(A)(1) prohibits a court from

granting visitation rights to a biological relative that survive a final decree of adoption.”).

This interpretation of the adoption statutes prevents prior orders issued by different courts

from limiting the probate court’s decision in an adoption proceeding and reduces the risk

of creating a situation in which the probate court is unable to protect the child’s best

interest. As the Supreme Court stated in Ridenour,

              If the probate court is bound by a prior order from another court,

       then the probate court may be forced to sacrifice the best interests of the

       child in order to protect the rights accorded to third parties. Such a result

       would be inconsistent with the adoption statute and the policies underlying

       it. * * * To avoid these problems, the probate court must have the authority

       to reach a decision based on the best interests of the child at the time in

       question, a decision which is not constrained by an order issued at a prior

       time under a different set of circumstances. Ridenour at 324.




6.
       {¶ 14} In sum, grandfather does not have any legal rights that he could assert in an

adoption proceeding before the probate court, despite the earlier juvenile court order

determining that visits with grandfather were in K.’s best interest. Accordingly, the trial

court properly denied grandfather’s motion to intervene. Grandfather’s assignment of

error is not well-taken.

                                     III. Conclusion

       {¶ 15} Based on the foregoing, the February 26, 2018 judgment of the Wood

County Court of Common Pleas, Probate Division, is affirmed. Grandfather is ordered to

pay the costs of this appeal pursuant to App.R. 24.


                                                                        Judgment affirmed.



       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.



Arlene Singer, J.                               _______________________________
                                                            JUDGE
Thomas J. Osowik, J.
                                                _______________________________
Christine E. Mayle, P.J.                                    JUDGE
CONCUR.
                                                _______________________________
                                                            JUDGE

           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                    http://www.supremecourt.ohio.gov/ROD/docs/.




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