IN THE MATTER OF THE ADOPTION OF: A.N.
CASE NO. 14-12-27
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT UNION COUNTY
September 9, 2013
[Cite as In re Adoption of A.N., 2013-Ohio-3871.]
Appeal from Union County Common Pleas Court Probate Division Trial Court No. 2012-5-008 Judgment Reversed and Cause Remanded
Jerry M. Johnson for Appellants Nord
Alison Greene Boggs for Appellee Scheiderer
John C. Huffman for Appellee Hart
{1} Appellants, Scott Wayne Nord and Erica Joy Nord, appeal the November 19, 2012 judgment entry of the Union County Court of Common Pleas, Probate Division, vacating its prior order of placement and ordering that the child involved in this appeal, A.N., be immediately returned to the State of Ohio. In its judgment entry, the trial court concluded that the consent of the putative father—appellee, Kris Scheiderer, Jr.—was required for the petition for adoption to be granted and that Scheiderer did not consent to the adoption. It is the trial court‘s conclusion regarding the necessity of Scheiderer‘s consent that the Nords dispute in this appeal. For the reasons that follow, we reverse.
{2} A.N. was born on February 11, 2012. (Birth Certificate, Doc. No. 3). Four days later, in case number 2012-5-005, the trial court approved an application for approval of placement of A.N. and issued a judgment entry placing A.N. in the Nords’ home. (Petitioner‘s Ex. 5, Sept. 26, 2012 Tr. at 7). (See also Judgment Entry, Doc. No. 5). Also on February 15, 2012, the Nords filed a petition for adoption of A.N. in the Probate Division of the Union County Court of Common Pleas, initiating the underlying case, number 2012-5-008. (Doc. No. 1). The petition listed the birthmother—appellee, Rachel Hart—as the only person or agency whose consent to the adoption was required. (Id.). The petition also stated
{3} On March 30, 2012, in response to an inquiry by counsel for Hart, the Ohio Department of Job and Family Services certified that Scheiderer was registered as a putative father in Ohio‘s Putative Father Registry. (Doc. No. 4). The documents attached to the Department‘s certification reflected that Scheiderer registered as a putative father on September 6, 2011. (Id.). (See also Judgment Entry, Doc. No. 5). The Department‘s certification was filed with the trial court on April 16, 2012. (Doc. No. 4). Eleven days earlier, on April 5, 2012, the Nords filed a motion to stay DNA testing of A.N. pending the hearing on the issues of consent and best interest of the child. (Doc. No. 2).
{4} In a June 21, 2012 judgment entry, the trial court denied the Nords’ motion to stay DNA testing, ordered that Hart, Scheiderer, and A.N. immediately submit to genetic testing, and stayed the adoption proceeding pending the outcome of paternity testing. (Doc. No. 5). In its judgment entry, the trial court noted that on June 19, 2012, the Juvenile Division of the Union County Court of Common Pleas notified the Probate Division that Scheiderer, through his parents, filed a complaint on April 24, 2012 to determine the existence or nonexistence of a parent-child relationship between Scheiderer and A.N. (Id.). (See also Petitioner‘s Ex. 2, Sept. 26, 2012 Tr. at 7).
{5} On July 2, 2012, the Nords filed an amended petition for adoption of A.N., again listing Hart as the only person or agency whose consent to the adoption was required, and listing Scheiderer as a putative father whose consent was not required because he willfully abandoned Hart during her pregnancy and up to the time of her surrender of A.N. (Doc. No. 6). That same day, the Nords moved the trial court to schedule an immediate hearing concerning whether Scheiderer‘s consent was necessary. (Doc. No. 7).
{6} The case‘s docket saw a flurry of activity on July 5, 2012. That morning, a magistrate of the trial court issued an order notifying Scheiderer of the Nords’ July 2, 2012 amended petition for adoption alleging that his consent was not required. (Doc. No. 8). The order also notified Scheiderer that a hearing would be scheduled as “set forth in a separate entry” and that, if he wished to contest the adoption, he needed to file an objection to the Nords’ amended petition within fourteen days after receiving the notice and attend the hearing. (Id.). The clerk mailed to Scheiderer copies of the magistrate‘s order, the Nords’ amended petition for adoption, and the Nords’ motion requesting an immediate hearing concerning consent. (Id.). Scheiderer signed for the clerk‘s certified mailing on July 17, 2012. (Id.).
{7} Also on the morning of July 5, 2012, the Nords moved for reconsideration of the trial court‘s June 21, 2012 judgment entry ordering that
{8} In the afternoon on July 5, 2012, Hart, through her next friend, filed a “notice of special appearance” and motion to set aside the portion of the trial court‘s June 21, 2011 judgment entry requiring her to submit to DNA testing despite her not being a party to the adoption proceeding. (Doc. Nos. 11, 12). Less than an hour later, the magistrate issued an order denying Hart‘s motion. (Doc. No. 13).
{9} On July 30, 2012, Scheiderer‘s counsel filed a notice of appearance. (Doc. No. 17).
{10} On July 31, 2012, the Nords filed a stipulation, in which they agreed to the admissibility of the DNA results in the paternity action filed by Scheiderer in the Juvenile Division. (Doc. No. 18). The Nords also agreed that A.N. was a party to both the paternity action and the adoption proceeding pending in the Juvenile Division and Probate Division, respectively, and that the courts of Union County, Ohio were the only courts having jurisdiction over A.N. (Id.).
{11} On August 6, 2012, the trial court held a pretrial hearing. (See Journal Entry, Doc. No. 14). Present at the hearing were Hart and her parents and counsel, A.N., counsel for Scheiderer, and counsel for the Nords, whose presence
{12} On August 20, 2012, the trial court issued to Scheiderer a “NOTICE OF HEARING ON PETITION FOR ADOPTION.” (Doc. No. 22). In it, the trial court notified Scheiderer that the Nords filed an amended petition for adoption on July 2, 2012, that a hearing was scheduled for September 26, 2012, and that he needed to file an objection to the Nords’ amended petition within fourteen days after receiving the notice and attend the hearing if he wished to contest the adoption. (Id.). The clerk mailed to Scheiderer copies of the notice of hearing on petition for adoption and the journal entry and nunc pro tunc journal entry scheduling the September 26, 2012 hearing. (Id.). Scheiderer signed for the clerk‘s certified mailing on August 22, 2012. (Id.).
{13} On August 27, 2012, the trial court held a conference attended by counsel for Hart, Scheiderer, and the Nords. (See Journal Entry, Doc. No. 23). Each attorney said he would not be requesting that a guardian ad litem be appointed for A.N. in the adoption proceeding. (Id.). In its journal entry memorializing the conference, the trial court noted that Scheiderer‘s counsel stated
{14} The trial court held a hearing on September 26 and 27, 2012 to determine whether Scheiderer‘s consent to the adoption was necessary. (Sept. 26, 2012 Tr. at 4, 8); (Sept. 27, 2012 Tr. at 4). (See also Journal Entry, Doc. No. 24). Present at the hearing were Hart and her parents and counsel, Scheiderer and his counsel, and the Nords and their counsel. (Sept. 26, 2012 Tr. at 4-5). (See also Journal Entry, Doc. No. 24). At the outset of the hearing, the Nords’ counsel noted that Scheiderer had not filed an objection to the amended petition as required by
{15} On October 12, 2012, the trial court issued a journal entry ordering that the parties submit written closing arguments, including proposed findings of fact and conclusions of law, on October 19, 2012. (Doc. No. 24). In addition, the
{16} Hart, Scheiderer, and the Nords filed their written closing arguments on October 19, 2012. (Doc. Nos. 25-27).
{17} On November 19, 2012, the trial court issued the judgment entry concluding that Scheiderer‘s consent to the adoption was necessary and not given. (Doc. No. 30). The trial court based its decision on its conclusions that there was not clear and convincing evidence that Scheiderer willfully abandoned Hart or that he willfully abandoned or failed to care for and support A.N. (Id.). The trial court also concluded that Scheiderer did not waive his right to contest the adoption by failing to file a written objection to the Nords’ amended petition for adoption. (Id.).
{18} The Nords filed their notice of appeal on November 29, 2012. (Doc. No. 32). They raise three assignments of error for our review.
Assignment of Error No. I
The probate court erred in finding that O.R.C. § 3107.07(K) ‘s requirement that a written objection to the adoption be filed with the trial court within fourteen (14) days after notice is received did not apply to a putative father who has registered with the state putative father registry.
{19} In their first assignment of error, the Nords argue that the trial court erred when it concluded that Scheiderer did not waive his right to contest the adoption, even though he failed to object in writing to the Nords’ amended petition for adoption. Specifically, the Nords argue that Scheiderer received the notice he was entitled to receive under
{20} The Nords’ first assignment of error challenges the trial court‘s interpretation and application of
{21} In Ohio, certain persons and entities must consent to an adoption, including the father and any putative father of the minor child. In re T.L.S., 12th Dist. Fayette No. CA2012-02-004, 2012-Ohio-3129, ¶ 8, citing
Consent to adoption is not required of any of the following:
* * *
(K) Except as provided in divisions (G) and (H) of this section, a juvenile court, agency, or person given notice of the petition pursuant to division (A)(1) of section 3107.11 of the Revised Code that fails to file an objection to the petition within fourteen days after proof is filed pursuant to division (B) of that section that the notice was given * * * ”
{22}
{23}
(A) After the filing of a petition to adopt an adult or a minor, the court shall fix a time and place for hearing the petition. The hearing may take place at any time more than thirty days after the date on which the minor is placed in the home of the petitioner. At least twenty days before the date of hearing, notice of the filing of the petition and of the time and place of hearing shall be given by the court to all of the following:
(1) Any juvenile court, agency, or person whose consent to the adoption is required by this chapter but who has not consented;
* * *
Notice shall not be given to a person whose consent is not required as provided by division (B), (C), (D), (E), (F), or (J) of section
3107.07, or section 3107.071, of the Revised Code. Second notice shall not be given to a juvenile court, agency, or person whose consent is not required as provided by division (K) of section 3107.07 of the Revised Code because the court, agency, or person failed to file an objection to the petition within fourteen days after proof was filed pursuant to division (B) of this section that a first notice was given to the court, agency, or person pursuant to division (A)(1) of this section.
{24} Finally,
(B) Upon the filing of a petition for adoption that alleges that a parent has failed without justifiable cause to provide more than de
minimis contact with the minor or to provide for the maintenance and support of the minor, the clerk of courts shall send a notice to that parent with the following language in boldface type and in all capital letters: “A FINAL DECREE OF ADOPTION, IF GRANTED, WILL RELIEVE YOU OF ALL PARENTAL RIGHTS AND RESPONSIBILITIES, INCLUDING THE RIGHT TO CONTACT THE MINOR, AND, EXCEPT WITH RESPECT TO A SPOUSE OF THE ADOPTION PETITIONER AND RELATIVES OF THAT SPOUSE, TERMINATE ALL LEGAL RELATIONSHIPS BETWEEN THE MINOR AND YOU AND THE MINOR‘S OTHER RELATIVES, SO THAT THE MINOR THEREAFTER IS A STRANGER TO YOU AND THE MINOR‘S FORMER RELATIVES FOR ALL PURPOSES. IF YOU WISH TO CONTEST THE ADOPTION, YOU MUST FILE AN OBJECTION TO THE PETITION WITHIN FOURTEEN DAYS AFTER PROOF OF SERVICE OF NOTICE OF THE FILING OF THE PETITION AND OF THE TIME AND PLACE OF HEARING IS GIVEN TO YOU. IF YOU WISH TO CONTEST THE ADOPTION, YOU MUST ALSO APPEAR AT THE HEARING. A FINAL DECREE
OF ADOPTION MAY BE ENTERED IF YOU FAIL TO FILE AN OBJECTION TO THE ADOPTION PETITION OR APPEAR AT THE HEARING.”
Before the General Assembly amended
{25} In 2008, the General Assembly passed Substitute House Bill 7, which went into effect on April 7, 2009. 2008 Sub.H.B. No. 7. That legislation amended
{26} We begin our de novo review of the trial court‘s interpretation and application of
{27} “In balancing the rights of a putative father and the state‘s interest in protecting the welfare of children, the legislature has enacted a statutory scheme where putative fathers are given the right to contest an adoption by filing an objection with the appropriate authority.” Id. The Supreme Court of Ohio has “held that adoption statutes are in derogation of common law and therefore must be strictly construed * * *.” Id. at 655, citing Lemley v. Kaiser, 6 Ohio St.3d 258, 260 (1983). However, “strict construction does not require that we interpret statutes in such a manner that would mandate an unjust or unreasonable result.” Id., citing
{28} The parties do not dispute the facts relevant to our analysis of the Nords’ first assignment of error. No one disputes that Scheiderer—whether classified as a father or a putative father—was a person whose consent to the adoption was required under
{29} Scheiderer does not dispute that he failed to timely file an objection to the Nords’ petition for adoption. Instead, he argues that because he was a putative father who timely registered with Ohio‘s Putative Father Registry,
{30} In its decision, the trial court similarly concluded that Scheiderer‘s consent was required under
{31} We disagree with Scheiderer and the trial court and hold that Scheiderer‘s consent to the Nords’ adoption of A.N. was not required because he failed to file an objection to the Nords’ amended petition within fourteen days after proof was filed with the trial court on August 23, 2012 that he was given notice of the Nords’ amended petition and of the September 26, 2012 hearing.
{32} We begin our analysis by noting that the trial court‘s first notice to Scheiderer—which came in the form of magistrate‘s order on July 5, 2012—was not sufficient to satisfy the requirements of
{33} The trial court‘s second notice, however—issued on August 20, 2012—did satisfy
{34} In accordance with
{35} Our holding is consistent with the Supreme Court of Ohio‘s decision in In re Adoption of Zschach, 75 Ohio St.3d 648. In that case, the Supreme Court rejected a putative father‘s attempt to circumvent the procedural mandates of a
{36} We disagree with Scheiderer‘s argument and the trial court‘s conclusion that Scheiderer‘s consent was required under
Consent to adoption is not required of any of the following:
* *
(B) The putative father of a minor if either of the following applies:
(2) The putative father fails to register as the minor‘s putative father with the putative father registry established under section 3107.062 of the Revised Code not later than thirty days after the minor‘s birth;
(3) The court finds, after proper service of notice and hearing, that any of the following are the case:
(a) The putative father is not the father of the minor;
(b) The putative father has willfully abandoned or failed to care for and support the minor;
(c) The putative father has willfully abandoned the mother of the minor during her pregnancy and up to the time of her surrender of the minor, or the minor‘s placement in the home of the petitioner, whichever occurs first.
Scheiderer‘s timely registration with Ohio‘s Putative Father Registry simply meant that
{37} We also disagree with the trial court‘s interpretation and application of
{38} Scheiderer argues and the trial court reasoned that Scheiderer‘s failure to timely file an objection in this case was excused by his registering with Ohio‘s Putative Father Registry, his appearance at hearings, and his filing a paternity action. However,
{39} In support of his arguments, Scheiderer cites In re Adoption of Campbell, 5th Dist. Guernsey No. 07 CA 43, 2008-Ohio-1916. However, the Fifth District in that case made no mention of
{40} Scheiderer also cites the Supreme Court of Ohio‘s decision in In re Adoption of Greer, 70 Ohio St.3d 293 (1994), and this Court‘s decision in In re Adoption of Youngpeter, 65 Ohio App.3d 172 (3d Dist.1989). More specifically, Scheiderer relies on a footnote in In re Adoption of Greer, in which the Supreme Court cited In re Adoption of Youngpeter and “express[ed] no opinion as to whether a putative father who objects to the adoption for the first time by making an oral objection at the hearing of the adoption petition has ‘filed’ an objection within the scope of” a since-amended version of
{41} In re Adoption of Greer does not bear on this case because the Supreme Court expressed no opinion as to whether an oral objection at hearing could satisfy a requirement that one “file” an objection. Id. Nor does In re Adoption of Youngpeter bear on our holding today. In that case, the parties did not present us with the question of whether an oral objection at hearing could satisfy a
{42} As the Supreme Court of Ohio did in In re Adoption of Zschach, we acknowledge that “strict adherence to the procedural mandates of [
{43} The Nords’ first assignment of error is, therefore, sustained.
Assignment of Error No. II
The probate court erred in finding that the putative father‘s abandonment of the birthmother during her pregnancy and through the time of placement was justified.
Assignment of Error No. III
The probate court erred in finding that the putative father‘s abandonment and failure to care for and support the minor, [sic] was justified.
{44} In their second assignment of error, the Nords argue that the trial court erred in concluding that Scheiderer did not, under
{45} In light of our decision that the trial court erred when it concluded that Scheiderer‘s consent to the adoption was required notwithstanding his failure to timely file an objection to the adoption under
{46} Having found error prejudicial to the appellants herein in the particulars assigned and argued, we reverse the judgment of the trial court and remand for further proceedings consistent with this opinion.
Judgment Reversed and Cause Remanded
WILLAMOWSKI and ROGERS, J.J., concur.
/jlr