600 N.E.2d 843 | Ohio Ct. App. | 1992
This is an appeal by Richard G. Kohorst from a judgment of the Court of Common Pleas of Paulding County, Probate Division, dismissing his petition for the adoption of his legitimate minor daughter, Samantha J. Kohorst.
Richard G. Kohorst ("appellant") and Tamara D. Sweany ("appellee") were married on March 28, 1987. Samantha Kohorst was the only child born of that marriage. The parties were divorced on July 18, 1990. By judgment of the Court of Common Pleas of Paulding County, appellant was granted the permanent custody and control of Samantha, subject to appellee's right of reasonable visitation. Appellee, who resided in Texas at the time of the divorce, was absent from the divorce proceeding, but was represented by counsel. The court thus further provided that as long as appellee continued to reside outside the state of Ohio, Samantha's maternal grandparents would have the privilege of visitation with her on two weekends each month. No order was entered requiring appellee to make child support payments.
On September 11, 1991, appellant filed a "Petition for Adoption of Minor Child" in the probate division of the court of common pleas, pursuant to R.C. Chapter 3107. Appellant alleged in the petition that appellee's consent to the adoption was not required due to her failure, "without justifiable cause, to provide for the maintenance and support of the minor as required by law or judicial decree for a period of at least one year immediately preceding the filing of the adoption petition." See R.C.
On October 18, 1991, a hearing was held on appellant's petition and on appellee's motion requesting dismissal of the petition. Appellee, although not present at the hearing, was represented by counsel. Since the probate judge recused himself from hearing the case, Judge David Webb presided over the hearing by assignment. The record herein reveals that prior to the examination of witnesses, counsel for both parties stipulated to three relevant facts: first, that the Paulding County Probate Court judge had previously allowed a biological parent to petition for the adoption of his or her own natural, legitimate child, solely for the purpose of permanently terminating the other parent's rights and responsibilities regarding that child; second, that appellee had contributed to Samantha's support in the year preceding the adoption only to the extent of two Christmas gifts and an article of clothing; and third, that *816 appellee had never been ordered by the court to contribute to Samantha's support.
Following the examination of appellant and his mother, who were the only witnesses, the judge requested memoranda on the issues presented at the hearing, particularly that of whether the petition was permitted under the Ohio adoption statute. On December 9, 1991, the court granted appellee's motion for dismissal, finding that it was "without jurisdiction to grant the relief sought in the petition."
Appellant appealed the court's judgment, asserting two assignments of error:
"I. In its journal entry filed on December 9, 1991, the judge by assignment of the Paulding County Probate Court erred as a matter of law, to the substantial prejudice of Appellant, by dismissing Appellant's petition for adoption of his minor daughter, Samantha J. Kohorst, by failing to follow that court's policy that it does have jurisdiction to permit adoptions by a natural parent of the natural parent's own child.
"II. In its journal entry filed on December 9, 1991, the judge by assignment of the Paulding County Probate Court erred as a matter of law, to the substantial prejudice of Appellant, by dismissing Appellant's petition for adoption of his minor daughter, Samantha J. Kohorst, based upon the court's erroneous finding that a natural parent cannot adopt his own child in Ohio and thus terminate all rights, responsibilities, and relationships that the other natural parent might have with reference to the child."
It is a trial-level judge's duty under Canon 3 of the Code of Judicial Conduct to hear a case, determine the state of the law which applies to the facts, and apply the law to the case before him, unswayed by any "partisan interests or fear of criticism." Further, we conclude that a judge is unconstrained by any requirement to follow a "policy" which he believes contravenes the law. Until a reviewing court has heard and ruled on the validity of such "policy" or *817 "position," it remains that of its author only, and is not binding on another judge, even in the same court. Therefore, we find no error in the failure of the assigned judge to "follow" the probate court judge's policy; indeed, the situation herein scarcely differs from situations at the trial court level wherein parties may encounter more than one tenable judicial position, depending upon which regular judge hears a case. The first assignment of error is not well taken.
The cornerstone of the adoption statutes is the promotion of children's welfare, specifically those children who lack and are in need of the security and benefits of a loving home and family. As stated by one Ohio court, "[t]he main purpose of adoption is to find homes for children, not to find children for families." In re Harshey (1975),
Since there was no such legal proceeding under the common law, adoption is a statutory creation, allowed only under circumstances specifically intended by the legislative enactment. Appellant presents the argument that Ohio's adoption statute, on its face, would allow him to petition for the adoption of his own, natural, legitimate child, if the other natural parent has consented (under R.C.
Appellant relies on the following statutory provisions:
R.C.
"(A) Any minor may be adopted. * * *"
R.C.
"The following persons may adopt:
"* * * *818
"(B) An unmarried adult;
"(C) The unmarried minor parent of the person to be adopted * * *."
For the reasons set forth below, after a thorough analysis of the statutory scheme as a whole, and of the available commentary and statutory history of the Adoption Act, we disagree with appellant's assertions.
It is axiomatic that the intent of the legislature in enacting a statute should be determined when courts are faced with statutes susceptible of more than one interpretation. In construing such a statute, courts have historically resorted to one or several of the following considerations: (1) circumstances surrounding the legislative enactment; (2) underlying history of the statute, e.g., the relevant common law or former statutory provisions; (3) the spirit of the statute, or, the ultimate results intended by adherence to the statutory scheme; (4) the public policy which induced the statute's enactment; (5) the "mischief" sought to be avoided by enactment of the statute; (6) the statute's internal titles, preambles, and captions; (7) construction by other courts and agencies; and (8) the general "scheme" of the statutory enactment, including explanations by foreign courts and commentators when interpreting their own and others' enactments, including "uniform laws." See, generally, 85 Ohio Jurisprudence 3d (1988) 162-240, Interpretation and Construction of Statutes, Sections 171 through 231.
Back in the days when a child "born out of wedlock" was stigmatized by illegitimate status, the adoption statutes provided a legal vehicle by which such child could become part of a family, thus obtaining all the rights accorded those who were born "legitimate." As stated by the Supreme Court of Ohio:
"For all purposes under the laws of this state, including without limitation all laws and wills governing inheritance of and succession to real or personal property and the taxation of such inheritance and succession, a legally adopted child shall have the same status and rights, and shall bear the same legal relationship to the adopting parents as if born to them in lawful wedlock and not born to the natural parents * * *." In reAdoption of Biddle (1958),
In more recent years, along with societal changes in attitude and the United States Supreme Court's rulings against discriminatory action taken against minorities, including illegitimate children, the Ohio legislature has provided procedures for the express purpose of legitimization of children. R.C. Chapter 3111, the Parentage Act (first effective as of June 1982), made obsolete the common-law action in "bastardy" which provided a means of establishing the identity of the father of an illegitimate child.
Under the common law in Ohio, a bastardy action was permitted only by or against a presumed father who had reached the age of majority. State ex rel. Love v. Jones (1953),
Nearly anyone with an interest may file an action under the parentage statute, to determine the father/child relationship. R.C.
Furthermore, it would seem a harsh consequence to permanently and completely terminate Samantha's rights as to her mother and her mother's natural family solely because appellant fears that appellee's lifestyle may in the future have adverse effects on the child. At the present time, appellee resides so far away that visitation on a regular basis is not feasible; thus, we are left to imagine exactly what influence could be exercised by appellee which would harm Samantha. The great distance separating the parties further appears to have been the basis for the divorce court's grant of visitation rights to appellee's parents, so as to provide some regular contact for Samantha with her grandparents and half-sisters. Appellant's action of filing an adoption petition to terminate appellee's parental rights would thus seem to be overkill. If, in fact, appellant finds the present visitation arrangement harmful to Samantha, Ohio provides the means of terminating or modifying visitation rights by the less-drastic filing of a motion in the original divorce action, or in the juvenile court. See R.C.
Appellant argues that because Samantha's natural mother had paid no child support for her since the parties' divorce in 1990, that "[a]n adoption by the natural father terminating the natural mother's support obligations and visitation rights would not deprive the child of anything." However, appellant seems to ignore the fact that adoption "embraces not only custody and *821
support but also descent and inheritance and in fact every legal right with respect to the child." In re Adoption of Biddle,supra,
Further in consideration of Samantha's legal rights, although appellee lives in Texas, and thus sees Samantha only occasionally, the divorce court, presumably after consideration of the child's best interests, specifically granted visitation rights to Samantha's maternal grandparents. Samantha therefore maintains a regular relationship with her grandparents and her half-sisters, on a semi-monthly basis. It appears that, under the Ohio adoption statute, the child's relationship between herself and her natural maternal grandparents, and with her sisters, would be terminated once adoption had taken place. R.C.
This is not a situation analogous to stepparent adoption, wherein a stepparent adopts his stepchild with permission of both natural parents, without divesting the stepparent's natural-parent partner of her parental rights. See R.C.
Based on the foregoing analysis of the statutory adoption scheme, we conclude that the law and public policy of Ohio would preclude the adoption of one's own, legitimately born, natural child for the sole purpose of terminating the other natural parent's rights. Appellant's second assignment of error is therefore overruled.
Having found no prejudice to appellant herein in any of the particulars assigned and argued, we affirm the judgment of the probate court dismissing the adoption petition.
Judgment affirmed.
HADLEY, P.J., and THOMAS F. BRYANT, J., concur.