515 N.E.2d 622 | Ohio Ct. App. | 1986
This is an appeal by Clayton A. Payne, the natural father of the minor child herein involved, from a final decree of adoption rendered by the Probate Division of the Court of Common Pleas of Hancock County on January 18, 1985, ordering that the petition filed by the child's stepfather, Thomas G. Jorgensen, for the adoption of the child be granted.
The petition was filed on March 22, 1984. Thereafter, on July 6, 1984, after a hearing on the issue of the necessity of the appellant's consent, the trial court filed its order finding that the appellant had failed without justifiable cause to communicate with the child from March 22, 1983 to March 22, 1984 and that his consent to the adoption was not required. The appellant took no timely appeal from that order and the cause was continued for further hearing to determine if it would be in the best interest of the child for the petitioner to adopt.
On August 22, 1984, after a hearing on the issue of the best interest of the child, but without notice to the appellant natural father of such hearing, the trial court entered a final order of adoption. However, on October 29, 1984, the appellant moved under Civ. R. 60(B) for vacation of that order because the trial court "scheduled and conducted the final hearing on the petition without giving prior notice of said hearing to Clayton A. Payne, the natural father, or his counsel."
On November 27, 1984, the trial court entered its judgment vacating the August 22, 1984 order of adoption, continuing the case for final hearing as *208 to the best interest of the child, and further ordering:
"3. The Clerk of this Court shall send notice of said hearing in accordance with law to counsel for the Petitioner and counsel for the natural father. However, neither the natural father nor his counsel will be permitted to appear and participate in said final hearing."
Apparently such notice was given to appellant and apparently neither he, nor his counsel, appeared at the best-interest hearing held thereafter.
The appellant makes the following assignments of error, and we will treat the last two assignments together and before the first assignment:
"1. The Probate Court erred to the prejudice of the appellant, and denied appellant due process of law, when it prohibited appellant from attending and participating in the final hearing held on December 28, 1984.
"2. The finding of the court below that the appellant's consent was not necessary was against the manifest weight of the evidence.
"3. The court below committed prejudicial error in limiting the relevant time period, during which appellant's defense of justifiable cause was applicable, to the one year period immediately prior to the filing of the petition."
The latter two assignments of error are attacks upon the judgment of the lower court finding the consent of the appellant not necessary to the adoption proceeding. This judgment of the lower court was entered on July 6, 1984, and no appeal was taken therefrom by the appellant within thirty days of that date. This raises only the question of whether it was a final appealable order.
In re Adoption of Salisbury (1982),
We prefer instead the conclusion which we adopt, and which is exactly on point, made in the first footnote in Judge Markus' opinion in the case of In re Adoption of Hupp (1982),
"After determining the father's consent was not required, the trial court postponed its hearing to determine whether the adoption would be in the best interests of the children under R.C.
Accordingly, we conclude that the July 6, 1984 order was a final appealable order and, no appeal having been taken within thirty days therefrom, all the matters which could have been reviewed had an appeal been taken have now become res judicata and are not reviewable in a subsequent *209 appeal taken from the final adoption order. For such reasons we find the second and third assignments of error without merit.
We come then to consideration of the first assignment of error dealing with the appellant's right to be heard at the hearing as to the best interest of the child.
Under R.C.
Judge Norris said in In re Adoption of Anthony (1982),
"It is apparent from the language of the statute that the General Assembly has endeavored to enact an objective test against which probate courts might measure the degree to which a parent must have voluntarily abandoned his parental responsibility as a condition precedent to his having forfeited his parental rights. Because the statute provides for cutting offthe statutory right of a parent to withhold his consent to theadoption of his child by another, and is in abrogation of the common-law rights of natural parents, the provisions of the statute must be strictly construed to protect the rights of the natural parent * * *." (Emphasis added.) See, also, In reAdoption of Salisbury, supra.
The solution to the problem lies in the strict construction of R.C.
Thus, until the hearing on the merits of the petition and the best interest of the minor child has been determined the natural parent not only retains parental rights and responsibilities but retains an overriding interest in being heard relevantly on the issue of whether the proposed adoption would be in the best interest of the child. It is not difficult to imagine a scenario where a natural parent, even though he or she could not bar the adoption by withholding consent, could offer evidence of probative value that the adoption proposed would not be in *210 his or her child's best interest. "Generally, nonconsenting parents are entitled to a hearing." (Footnote omitted.) 2 Corpus Juris Secundum (1972) 516, 517, Adoption of Persons, Section 88.
Our conclusion is consistent with the requirement of R.C.
Accordingly, we find the first assignment of error well-taken requiring reversal of the decree of adoption and remand to the trial court for a new trial as to the best interest of the minor child and further proceedings as provided by law consistent with this opinion.
Judgment reversed and cause remanded.
COLE and MILLER, JJ., concur.