[Cite as In re K.L.,

.]

COURT OF APPEALS TUSCARAWAS COUNTY, OHIO FIFTH APPELLATE DISTRICT

IN RE: JUDGES: Hon. William B. Hoffman, P.J. K.L. AND A.S. Hon. Sheila G. Farmer, J. Hon. John W. Wise, J.

Case No. 2015 AP 040016

OPINION

CHARACTER OF PROCEEDING: Appeal from the Tuscarawas County Court of Common Pleas, Juvenile Division, Case No. 2015 JN 018

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: November 3, 2015

APPEARANCES:

For Appellee - TCJFS For Appellant - Maternal Grandmother

JEFF M. KIGGANS PAUL HERVEY Tuscarawas County Job/Family Services Fitzpatrick, Zimmerman & Rose Co., L.P.A. 389 16th Street, SW P.O. Box 1014, New Philadelphia, Ohio 44663 New Philadelphia, Ohio 44663

For Mother For Paternal Grandmother

JOHN GARTRELL SCOTT MASTIN Tuscarawas County Public Defender's Off. 108 East High Avenue, Suite 3 153 North Broadway New Philadelphia, Ohio 44663 New Philadelphia, Ohio 44663

For Father Guardian ad Litem

DOUGLAS JACKSON KAREN DUMMERMUTH P.O. Box 188 349 East High Avenue Uhrichsville, Ohio 44683 P.O. Box 494 New Philadelphia, Ohio 44663 Tuscarawas County, Case No. 2015 AP 040016 2

Hoffman, P.J.

{¶1} Appellant Teresa Swartzentruber ("Grandmother") appeals the March 19,

2015 Judgment Entry entered by the Tuscarawas County Court of Common Pleas,

Juvenile Division, which denied her motion to intervene in the

abuse/neglect/dependency action involving her minor grandchildren. Grandmother also

appeals the April 16, 2015 Judgment Entry entered by that same court which denied her

motion for custody of her grandchildren. Appellee is Tuscarawas County Job and Family

Services ("TCJFS").

STATEMENT OF THE FACTS AND CASE

{¶2} Abigail Swartzentruber ("Mother") and Kyle Litman ("Father") are the

biological parents of K.L. (dob 4/27/10), A.L. (dob 11/2/12), and A.S. (dob 5/19/14). The

parties have never been married. Grandmother is the maternal grandmother of the

minor children.

{¶3} In June, 2014, after receiving reports concerning unexplained injuries

sustained by A.L., TCJFS began an investigation of the family. TCJFS closed the case

in September, 2014. On November 25, 2014, A.L died of cardiac arrest under what was

deemed to be suspicious circumstances. At the time of his death, A.L. and his siblings

were living with Mother and her boyfriend, Adam Such. Medical providers contacted

TCJFS. TCJFS removed the other two children from Mother's home. The results of the

autopsy revealed evidence of blunt force trauma, including multiple scalp bruises at the

top of A.L.'s head. A.L. had over 20 bruises of varying ages over his body.

{¶4} Grandmother filed a motion to intervene and a motion for custody. The

trial court denied the motion to intervene via Judgment Entry filed March 19, 2015. A Tuscarawas County, Case No. 2015 AP 040016 3

hearing on the motion for custody was conducted on March 25, 2015, in conjunction

with the dispositional hearing.

{¶5} At the hearing, Gabrielle Weingarth, the TCJFS ongoing case manager

assigned to the family, testified Grandmother acknowledged K.L. told her Adam Such

had thrown him and slammed him into a wall. Appellant informed Weingarth she did not

know whether to believe K.L. as she believed Father could have put the thought into the

boy's head. While Mother was pregnant with A.S., Mother told Grandmother Adam

Such was verbally abusive and controlling. Weingarth added Grandmother enables

Mother and makes excuses for her behavior. Weingarth expressed concerns regarding

how Grandmother raised Mother and how that would affect her ability to parent her

grandchildren.

{¶6} The testimony also revealed Grandmother's live-in boyfriend, Donald

Sullivan, had a history of domestic violence and other criminal convictions directly

involving alcohol. Sullivan continued to consume alcohol on a daily basis. Grandmother

admitted Sullivan was an alcoholic, but did not see a problem with his daily alcohol

consumption. Grandmother’s ex-husband, Mother’s father, was also an alcoholic.

Grandmother has a history of depression and anxiety. She has been prescribed

numerous medications for pain, depression, anxiety, and sleep.

{¶7} Via Judgment Entry filed April 16, 2015, the trial court denied

Grandmother's motion for custody. The trial court found Grandmother was aware the

children were living in an abusive environment yet did nothing to protect them. The trial

court further found Mother's "mental health pathology [was] clearly reflective of the life Tuscarawas County, Case No. 2015 AP 040016 4

she lived growing up with" Grandmother. The trial court concluded Grandmother was

not an appropriate custodian for the children.

{¶8} It is from this judgment entry Grandmother appeals, raising the following

assignments of error:

{¶9} "THE TRIAL COURT ERRED AS A MATTER OF LAW AND ABUSED ITS

DISCRETION IN FAILING TO ALLOW THE MATERNAL GRANDMOTHER TO

INTERVENE.

{¶10} "THE TRIAL COURT ABUSED ITS DISCRETION IN FAILING TO PLACE

THE CHILDREN WITH THE MATERNAL GRANDMOTHER OR TO ALLOW

VISITATION WITH HER."

I

{¶11} In her first assignment of error, Grandmother contends the trial court erred

and abused its discretion in failing to allow her to intervene.

{¶12} Civ.R. 24governs intervention and states the following:

(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 Tuscarawas County, Case No. 2015 AP 040016 5

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.

{¶13} To the extent Grandmother’s motion to intervene was based on

subsection (A), this Court’s standard of review is de novo. In re Young, Stark App.

No.2008CA00134,

at para. 13. To the extent the motion sought

permissive intervention under subsection (B), our standard of review is abuse its

discretion.

In order to find an abuse of discretion, we must determine the trial court's

decision was unreasonable, arbitrary or unconscionable and not merely an error of law

or judgment. Blakemore v. Blakemore (1983)

,

.

{¶14} The leading case on grandparent intervention is In re Schmidt (1986),

,

. In Schmidt, the Supreme Court of Ohio reviewed the

issue of whether grandparents should be permitted to intervene as of right under Civ.R.

24(A). The Schmidt Court held the grandparents had no right to intervene because they

“never obtained, through statute, court order, or other means, any legal right to custody Tuscarawas County, Case No. 2015 AP 040016 6

or visitation with their grandson.”

. (Emphasis sic.) The Schmidt Court

determined the grandparents did not have any legal interest in the care and custody of

their grandson, finding their “desire for custody or visitation cannot be construed as a

legal right to custody or visitation,” as their “concern for their grandson's welfare cannot

be construed as a legal interest that falls within the scope of Civ.R. 24(A).”

{¶15} The Schmidt Court concluded the trial court did not abuse its discretion in

denying the grandparents' motion to intervene, explaining:

As discussed above, the Smiths had no legal right to custody or

visitation with their grandson, and they held no legally protectable interest

that was related to Robert, Jr.'s care and custody. Additionally, the

emphasis placed on family unity by R.C. Chapter 2151 is limited almost

exclusively to the nuclear family; and, unless a child is orphaned or

abandoned, or an adult from the child's extended family in some manner

has filled the role of parent, R.C. Chapter 2151 does not require that

extended family members be made parties to custody proceedings. The

record does not indicate that the Smiths ever stood in loco parentis to

Robert, Jr. or that they ever exercised significant parental control over, or

assumed any parental duties for the benefit of, their grandson.

.

{¶16} Grandmother contends because Mother and K.L. lived with her while

Mother was still a minor, she stood in loco parentis to her grandchildren. Grandmother

adds she was a party to the child support action for the benefit of K.L. The record is

devoid of any evidence which establishes Grandmother had any legal right or interest in

the care and custody of her grandchildren. Further, there is no record evidence to Tuscarawas County, Case No. 2015 AP 040016 7

support Grandmother’s claim she stood in loco parentis to her grandchildren or that she

ever “exercised significant parental control over, or assumed any parental duties for the

benefit” of them.

{¶17} Based upon the foregoing, we find the trial court did not err or abuse its

discretion in denying Grandmother’s motion to intervene.

{¶18} Grandmother’s first assignment of error is overruled.

II

{¶19} In her second assignment of error, Grandmother asserts the trial court

abused its discretion in failing to place the children with her or grant her visitation.

{¶20} A trial court's determination on legal custody should not be overruled

absent a showing of an abuse of discretion. Stull v. Richland Cty. Children Services, 5th

Dist. Nos. 11 CA47, 11CA48, 2012–Ohio–738.An abuse of discretion is when the trial

court's judgment is unreasonable, arbitrary or unconscionable. Blakemore,supra. In this

type of dispositional hearing, the focus must be the best interest of the child. In re C.R.,

, 2006–Ohio–1191,

;In re Nawrocki, 5th Dist.

No.2004–CA–0028, 2004–Ohio–4208.

{¶21} When a grandparent seeks legal custody, the inquiry focuses on what is in

the best interest of the child. In re A.C.,12th Dist. Butler No. CA2006-12-105, 2007–

Ohio–3350. “While ‘blood relationship’ and ‘family unity’ are factors to consider when

determining a child's best interest, neither one is controlling.” In re S.K.G., 12th Dist.

Clermont No. CA2008–11–105, 2009–Ohio–4673, ¶ 12.

{¶22} The testimony at the dispositional hearing revealed the children are doing

well in foster care. The testimony confirmed Grandmother would not be an appropriate Tuscarawas County, Case No. 2015 AP 040016 8

custodian for her grandchildren. Grandmother lives with a man who has a long history

of violence involving alcohol and yet he continues to consume alcohol on a daily basis.

Grandmother does not see this habit as problematic. Further, Grandmother enabled

Mother and made excuses for her. Grandmother, herself, was unsuccessful as parent.

More importantly, Grandmother refused to believe K.L. when he stated Mother’s

boyfriend had thrown him and slammed him into a wall.

{¶23} Based upon the entire record in this matter, we find the trial court did not

abuse its discretion in denying Grandmother’s motion for custody.

{¶24} Grandmother also maintains the trial court abused its discretion in denying

her visitation with her grandchildren.

{¶25} Grandparents generally have no legal rights of access to their

grandchildren. Wood v. Palumba, 5th Dist. Tuscarawas No. 05AP100071, 2006–Ohio–

3030, ¶ 24; In re Fusik, 4th Dist. Athens No. 02CA16, 2002–Ohio–4410, citing In re

Whitaker,

,

(1988); In re Martin,

,

(1994). The Ohio Supreme Court has held grandparents have no

constitutional right of association with their grandchildren. Wood, supra; See In re

.

{¶26} Given the trauma these children experienced, we find the trial court did not

abuse its discretion in denying visitation with any of their relatives, including

Grandmother.

{¶27} Grandmother’s second assignment of error is overruled. Tuscarawas County, Case No. 2015 AP 040016 9

{¶28} The judgment of the Tuscarawas County Court of Common Pleas,

Juvenile Division, is affirmed.

By: Hoffman, P.J.

Farmer, J. and

Wise, J. concur