In Re: in re Gary Palmer Aka Gary Pihlblad, A. Dependent Child., Case, 83-LW-4966

• Decision Date: 12 April 1983
• Docket Number: 83-LW-4966,CA-6026
• Parties: IN re: IN THE MATTER OF: GARY PALMER, JR. aka GARY PIHLBLAD, A DEPENDENT CHILD., Case
• Court: Ohio Court of Appeals

IN re: IN THE MATTER OF: GARY PALMER, JR. aka GARY PIHLBLAD, A DEPENDENT CHILD.,

No. CA-6026.

83-LW-4966 (5th)

Court of Appeals of Ohio, Fifth District Stark.

April 12, 1983

RAYMOND A. SWOPE, JR., Suite 205, 1341 North Market, Canton, Ohio 44714, COUNSEL FOR APPELLANTS.

JAMES R. UNGER, STARK COUNTY PROSECUTOR, BY: RICHARD J. BURT, CHIEF ASSISTANT PROSECUTING ATTORNEY, JUVENILE DIVISION, Courthouse annes, P.O. Box 167, D.T. Station, Canton, Ohio 44701 COUNSEL FOR APPELLEE.

OPINION

Before Hon. Norman J. Putman, P.J., Hon, John R. Milligan, J., Hon Ira G. Turpin, J.

MILLGAN J.

DEPENDENT CHILD - JUVENILE COURT - PERMANENT CUSTODY PROCEEDINGS - RIGHT OF FOSTER PARENTS TO INTERVENE.

This action was commenced on September 3, 1980, with allegations that the child in question, then eight days of age, was dependent in that among other things the mother and sole legal custodian was incarcerated and her time of release was uncertain. The court placed the child in the shelter care of the Stark County Welfare Department. On September 25, 1980, following a hearing at which dependency was stipulated, temporary custody was granted to the Stark County Welfare Department in whose legal custody the child has remained until the date of the hearing in question.

On August 27, 1981, a reunification plan was approved as to this infant and three other older children of the mother, previously found to be neglected.

On February 22, 1982, a motion for permanent custody was filed by the Stark Cou nty Welfare Department. That motion was dismissed, for the apparent reason tha t it was premature pursuant to the six month limitation provisions of R.C. 2151.413.

Thereafter, on August 2, 1982, complaint for custody was dismissed, the same having been filed by the appellants-foster parents.

The action generating this appeal was an October 1, 1982, motion by appellant-foster parents for leave to join the dependency action as parties in interest claiming "they have provided foster care service for the above child for over two years."

On October 18, 1982, the juvenile court, following a hearing, overruled and dismissed the motion of said foster parents to be made third party defendants. It also overruled their request for a restraining order against the Stark County Welfare Department removing the child from their foster home.

The court also overruled the foster parents' request for separate findings of fact and conclusions of law on October 26, 1982.

It is from these judgments of the Stark County Juvenile Court that the foster parents appeal. They assign two errors:

ASSIGNMENT OF ERROR NO. 1:

The trial court erred in overruling Appellants' timely written motion for separate findings of fact and conclusions of law.

ASSIGNMENT OF ERROR NO. 2:

The trial court erred in overruling and dismissing Appellants' motion to intervene in the pending dependency action in the trial court.

We overrule the first Assignment of Error upon the authority of Civil Rule 52 and Werden v. Crawford, (1982) 70 Ohio St. 2d 122, 435 N.E. 2d 424.

The issue was decided by the court as a matter of law.

These foster parents raise the following questions by their appeal: (1) Are foster parents in Ohio necessary parties in proceedings to terminate parental rights in anticipation of adoption?; (2) Does the Juvenile Court abuse its discretion by determining that foster parents in Ohio are not proper parties in proceedings to terminate parental rights in anticipation of adoption?

Appellants-foster parents invite us to write new Ohio law.

The Ohio Legislature, charged in our tripartite system of government with the responsibility of writing laws, has elected not to extend the right of foster parents to intervene as parties in juvenile court proceedings, including issues involving permanent custody or termination of the rights of natural parents.

Further, the courts of Ohio have extended no such rights to foster parents.

Ohio's statutory scheme for dealing with dependent/neglected/abused children to be removed from their parents specifically contemplates that a separate government agency, the Department of Public Welfare or Childrens Services Board or other certified organization, assume and provide custody. R.C. 2151.353.

The Welfare Department is the government agency authorized to accept custody of children committed to it by a court, R.C. 5153.16 (C). Such agency is directed to provide care "as the board or county department considers to be in the best interest of any child....such care shall be provided....in the child's own home, in the home of a relative, or in a certified foster home, receiving home, school, hospital, convalescent home, or other institutions, public or private, within or outside the county or state." R.C. 5153.16 (D). Provision is also made for payment of the cost of care. See R.C. 5153.20.

A foster home is established and defined:

"Foster Home" means a family home in which any child is received, apart from its parents, for care, supervision or training."

R.C. 5153.01 (F).

Notwithstanding a child is placed in a specific foster home with specific foster parents, the legal custody remains with the government agency.

In an effort to guarantee that persons with significant responsibility respecting a child are before the court in all cases involving the welfare of such child, Ohio extends party status to the child, his parents, his guardian, his custodian; and requires the presence of a guardian ad litem in most circumstances. Ohio also assured all such parties the right to counsel and the right to appointed legal counsel if indigent. R.C. 2151.28, R.C. 2151.281. Foster parents could be added to the legislative list of protected parties. But they have not been.

The Ohio Supreme Court in rules of procedure for the juvenile court, provides:

"Party" means a child who is the subject of a juvenile court proceedings, his spouse, if any, his parents, or if the parent of a child be himself a child, the parent of such parent and, in appropriate cases, his custodian, guardian or guardian ad litem, the state and any other persons specifically designated by that court.

Juvenile Rule 2 (16)

Again, persons occupying the status of foster parents are notably omitted from the extensive list of those who are "parties" to the action.

Appellants rely upon the provisions of Civil Rule 24 in support of their right of intervention.

"(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 which is the subject of the action and he is so situtated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant's interest is adequately represented by existing parties."

Civil Rule 24(A). See also Civil Rule 19 (A).

Clearly, these appellants have no right to intervene according to Civil Rule 24 (A)(1).

Only if foster parents have some property interest in dependency proceedings are they entitled to intervene as a matter of right.

The United States Supreme Court has confronted the question of whether foster parents, as a class, have a constitutionally protected property interest so as to make them necessary parties in proceedings such as these. Smith v. Organization of Foster Families, 431 U.S. 816, 53 L. Ed 2d 14, 97 S. Ct. 2094, (1977), involved rights under the New York scheme of governmental provision of foster and other out-of-home care. A divided court concluded that the procedures for removal of a foster child from a foster home established by New York law were not constitutionally defective, reversing the U.S. District Court for the Southern District of New York (418 F. Supp. 277).

In New York, there is an adminstrative procedure by which foster parents may have an adversary judicial hearing as relates to their relationship to a foster child. Five of the Supreme Court Justices concluded that New York had extended a "liberty interest" under the Fourteenth Amendment to the United States Constitution to foster parents, but concluded that that liberty interest was adequately protected by New York law. The court closely narrowed the issue decided by the court:

"Arguments asserting the need for reform of New York's statutory scheme are properly addressed to the New York Legislature. The relief sought in this case is entirely procedural. Our task is only to determine whether the district court correctly held that the present procedures preceeding the removal from a foster home of children resident there a year or more are constitutionally inadequate."

Smith v. Organization of Foster Families, 431 U.S. 816, 838, 53 L. Ed. 2d 14, 97 S. Ct. 2094, (1977)

A concurring minority, Chief Justice Berger, Justices Stewart and Rehnquist, concluded that even under the New York statutory scheme foster parents did not...