IN RE: THE ADOPTION OF: N.F., [JOHN M. RHOADES - APPELLANT]; IN RE: THE ADOPTION OF: Z.F., [JOHN M. RHOADES - APPELLANT]
CASE NO. 8-19-39, CASE NO. 8-19-40
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT LOGAN COUNTY
December 30, 2019
2019-Ohio-5380
PRESTON, J.
Appeals from Logan County Common Pleas Court Probate Division Trial Court Nos. 19-AD-01 and 19-AD-02 Judgments Affirmed
Alison Boggs for Appellant
Jerry M. Johnson for Appellee
Ruth T. Kelly, Amicus Curiae, Academy of Adoption and Assisted Reproduction Attorneys
{¶1} Appellant, John M. Rhoades (“Rhoades“), appeals the June 19, 2019 judgments of the Logan County Court of Common Pleas, Probate Division, in which the court found that his consent is not required for the adoption of his biological children,1 N.F. and Z.F., by Appellee, Christian T. Fogle (“Fogle“). For the reasons that follow, we affirm.
{¶2} On January 4, 2019, Fogle filed petitions to adopt his minor stepchildren, N.F. and Z.F. (Case No. 19AD-01, Doc. No. 1); (Case No. 19AD-02, Doc. No. 1). The petitions alleged that Rhoades‘s consent is not required for the adoptions. (Id.); (Id.). Kayla M. Fogle (“Kayla“), the children‘s biological mother, filed her consent for the adoptions on the same day. (Case No. 19AD-01, Doc. No. 3); (Case No. 19AD-02, Doc. No. 3).
{¶3} On January 22, 2019, service of the notices of the hearing on consent was made on Rhoades. (Case No. 19AD-01, Doc. No. 17); (Case No. 19AD-02, Doc. No. 17). Rhoades appeared at the consent hearing on March 18, 2019 and orally objected to the petition for adoption. (Mar. 18, 2019 Tr. at 4). After determining that Rhoades failed to file an objection to the proposed adoption within 14 days after receiving notice of the filing of the petitions for adoption and the time
{¶4} On April 26, 2019, Rhoades filed written objections to the adoptions of N.F. and Z.F. (Case No. 19AD-01, Doc. No. 28); (Case No. 19AD-02, Doc. No. 28). That same day, Rhoades filed a motion to consider additional evidence in which he argued that the trial court‘s finding that his consent to the adoptions is not required violated his due process rights. (Case No. 19AD-01, Doc. No. 26); (Case No. 19AD-02, Doc. No. 26). On May 8, 2019, Fogle filed a motion to strike Rhoades‘s objections to the adoptions because they were filed untimely. (Case No. 19AD-01, Doc. Nos. 34, 36); (Case No. 19AD-02, Doc. Nos. 34, 36). That same day, Fogle also filed an objection to Rhoades‘s motion to consider additional evidence. (Case No. 19AD-01, Doc. Nos. 35, 37); (Case No. 19AD-02, Doc. Nos. 35, 37).
{¶5} On May 16, 2019, a pretrial was held in chambers. (See Case No. 19AD-01, Doc. No. 40); (Case No. 19AD-02, Doc. No. 39). Following the pretrial, the trial court ordered that the attorneys file briefs on the issue of whether Rhoades‘s consent is necessary. (Id.); (Id.). On May 29, 2019, Fogle and Rhoades filed their respective briefs. (Case No. 19AD-01, Doc. Nos. 43, 44, 45); (Case No. 19AD-02,
{¶6} Rhoades filed his notices of appeal on July 15, 2019. (Case No. 19AD-01, Doc. No. 56); (Case No. 19AD-02, Doc. No. 55). He raises two assignments of error, which we address together.
Assignment of Error No. I
Ohio Revised Code Section 3107.07(K) violates the 14th Amendment to the United States Constitution, as applied to appellant‘s case and others similarly situated, by arbitrarily denying appellant equal protection and his due process right to be heard at a meaningful time and in a meaningful manner on the petition for adoption.
Assignment of Error No. II
The hearing notice contained in Ohio Revised Code Section 3107.11(B) violates appellant‘s Constitutional right to due process as the notice provision is confusing, misleading and inaccurate.
{¶7} In his first assignment of error, Rhoades argues that
{¶8} In Ohio, certain persons and entities must consent to an adoption, including the 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 * * *.
{¶9}
(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 the 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.
{¶10}
{¶11} We review de novo the determination of a statute‘s constitutionality. State v. Hudson, 3d Dist. Marion No. 9-12-38, 2013-Ohio-647, ¶ 27, citing Akron v. Callaway, 162 Ohio App.3d 781, 2005-Ohio-4095, ¶ 23 (9th Dist.) and Andreyko v. Cincinnati, 153 Ohio App.3d 108, 2003-Ohio-2759, ¶ 11 (1st Dist.). “De novo review is independent, without deference to the lower court‘s decision.” Id., citing Ohio Bell Tel. Co. v. Pub. Util. Comm. of Ohio, 64 Ohio St.3d 145, 147 (1992).
{¶12} “It is difficult to prove that a statute is unconstitutional.” State v. Stoffer, 2d Dist. Montgomery No. 26268, 2015-Ohio-352, ¶ 8, quoting Arbino v.
{¶13} “A party may challenge the constitutionality of a statute with either a facial challenge or an as-applied challenge.” Simpkins v. Grace Brethren Church of Delaware, Ohio, 149 Ohio St.3d 307, 2016-Ohio-8118, ¶ 20. The distinction between the two types of constitutional challenges is important because the standard of proof is different for the two types of challenges. Wymsylo v. Bartec, Inc., 132 Ohio St.3d 167, 2012-Ohio-2187, ¶ 20. “To prevail on a facial constitutional challenge, the challenger must prove the constitutional defect, using the highest standard of proof, which is also used in criminal cases, proof beyond a reasonable doubt.” State ex rel. Ohio Congress of Parents & Teachers v. State Bd. of Edn., 111 Ohio St.3d 568, 2006-Ohio-5512, ¶ 21, citing Dickman at paragraph one of the syllabus. Conversely, “[t]o prevail on a constitutional challenge to the statute as applied, the challenger must present clear and convincing evidence of the statute‘s constitutional defect.” Id., citing Belden v. Union Cent. Life Ins. Co., 143 Ohio St. 329 (1944), paragraph six of the syllabus.
{¶15} Here, Rhoades concedes that although his assignments of error include the phrase “as applied” he brings a facial challenge to the constitutionality of
{¶16} We note that although Rhoades argues that
{¶17} The Due Process Clause of the Fourteenth Amendment to the United States Constitution states that a state shall not “deprive any person of life, liberty, or property without due process of law.” The Supreme Court of Ohio has determined that the “due course of law” clause of
{¶18} “Due process demands that the state provide meaningful standards in its laws.” In re Adoption of H.N.R., 145 Ohio St.3d 144, 2015-Ohio-5476, ¶ 25, quoting Norwood v. Horney, 110 Ohio St.3d 353, 2006-Ohio-3799, ¶ 81. “At its most basic level, due process requires protection against arbitrary laws.” Id., citing Sacramento Cty. v. Lewis, 523 U.S. 833, 845-846 (1998). “To satisfy the requirements of procedural due process, the means employed by a statute must have a real and substantial relation to the object to be obtained, and its methods must not be unreasonable, arbitrary, or capricious.” Id., citing Nebbia v. New York,
First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government‘s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.
Id., quoting Mathews v. Eldridge, 424 U.S. 319, 335 (1976).
{¶19} Accordingly, first we must frame the private interest involved. Although Rhoades argues that the private interest at issue is the fundamental liberty interest of a parent in raising his or her natural child, the private interest affected by
{¶20} With respect to the second factor, there is some risk that the 14-day deadline may deprive a parent of the right to contest an adoption if they intend to contest an adoption but fail to file a timely objection. However, this risk is reduced by
{¶21} Concerning the third factor, “[t]he state‘s interest is determined through its intent in enacting the legislation at issue.” In re H.N.R., 145 Ohio St.3d, 2015-Ohio-5476, at ¶ 27, citing State ex rel. Evans v. Moore, 69 Ohio St.2d 88, 91 (1982); Brock v. Roadway Express, Inc., 481 U.S. 252, 258-259, 262 (1987); Lehr v. Robertson, 463 U.S. 248, 263-265, fn. 20 (1983); Hamdi v. Rumsfeld, 542 U.S. 507, 517, 531 (2004). “[T]he goal of adoption statutes is to protect the best interests of children.” In re Adoption
{¶22} With respect to
{¶23} Consequently, after weighing the applicable factors, we cannot find beyond a reasonable doubt that
{¶24} Accordingly, we overrule Rhoades‘s first assignment of error.
{¶26}
(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.”
(Boldface and italicization added.)
{¶27} Here, the final sentence of the notice, which states that a final decree of adoption may be entered if one fails “to file an objection to the adoption petition
{¶28} The second sentence of the statutory notice states that an individual wanting to contest an adoption must file an objection within 14 days following proof of service of notice of the filing of the petition and of the time and place of hearing.
{¶29} Furthermore, in In re T.L.S., the Twelfth District determined that the notice served on the biological father, which specifically contained language identical to that found in the second and third sentences of the statutory notice contained in
{¶30} Thus, for the aforementioned reasons, we conclude that the statutory notice contained in
{¶32} Having found no error prejudicial to the appellant herein in the particulars assigned and argued, we affirm the judgments of the trial court.
Judgments Affirmed
SHAW and WILLAMOWSKI, J.J., concur.
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