IN RE ADOPTION OF P.A.C.
No. 2009-1757
Supreme Court of Ohio
July 22, 2010
126 Ohio St.3d 236, 2010-Ohio-3351
{21} Accordingly, the judgment of the court of appeals is affirmed, and the matter is remanded to the Court of Claims for further proceedings.
Judgment affirmed and cause remanded.
PFEIFER, LUNDBERG STRATTON, O‘CONNOR, O‘DONNELL, and LANZINGER, JJ., concur.
BROWN, C.J., not participating.
Thompson Hine, L.L.P., Peter D. Welin, and Andrew R. Fredelake, for appellees.
Richard Cordray, Attorney General, Benjamin C. Mizer, Solicitor General, Alexandra T. Schimmer, Chief Deputy Solicitor General, Emily S. Schlesinger, Deputy Solicitor, and William C. Becker and Lisa J. Conomy, Assistant Attorneys General, for appellant.
Schottenstein, Zox & Dunn Co., L.P.A., Stephen L. Byron, Rebecca K. Schaltenbrand, and Stephen J. Smith; and John Gotherman, urging reversal for amici curiae, Ohio Municipal League, County Commissioner Association of Ohio, and Ohio Township Association.
IN RE ADOPTION OF P.A.C.
[Cite as In re Adoption of P.A.C., 126 Ohio St.3d 236, 2010-Ohio-3351.]
{1} In In re Adoption of Pushcar, 110 Ohio St.3d 332, 2006-Ohio-4572, 853 N.E.2d 647, this court stated, “The issue presented for our review is whether a probate court must refrain from proceeding with the adoption of a child when an issue concerning the parenting of that child is pending in the juvenile court. We hold that, in such circumstances, the probate court must defer to the juvenile court and refrain from addressing the matter until adjudication in the juvenile court.” Id. at ¶ 8. We consider our holding in Pushcar to be dispositive of the issue before us and reverse the judgment of the court of appeals.
Facts and Procedural History
{2} In July 2005, while married to Jeremy Tuttle, Susan Tuttle (“Tuttle“) gave birth to P.A.C. Although Jeremy Tuttle was listed as P.A.C.‘s father on her birth certificate, he is not her biological father. A DNA test conducted in August 2005 determined that appellant, Gary D. Otten, is P.A.C.‘s biological father.
{3} In January 2007, Otten filed a complaint for allocation of parental rights in juvenile court in Clermont County. Shortly thereafter, Tuttle filed a parentage action against Otten. These cases were consolidated, and a hearing was set for March 26, 2007, but was continued at Tuttle‘s request. Tuttle, who was divorced from Jeremy Tuttle in November 2005, married appellee, Kevin Michael Crooks, on April 13, 2007. On April 20, 2007, Crooks filed a petition to adopt P.A.C. in probate court in Hamilton County.
{4} The probate court stayed the adoption proceedings pending a determination in the parentage action. The juvenile court determined that Otten was the biological father of P.A.C. The probate court lifted its stay, determined that a parent, Otten, did not consent to the adoption, as required by
Analysis
{5} “[T]he right of a natural parent to the care and custody of his children is one of the most precious and fundamental in law.” In re Adoption of Masa (1986), 23 Ohio St.3d 163, 164, 23 OBR 330, 492 N.E.2d 140, citing Santosky v. Kramer (1982), 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599. Santosky has been characterized as “requiring a clear and convincing evidence standard for
{6} “Few consequences of judicial action are so grave as the severance of natural family ties.” Santosky, 455 U.S. at 787 (Rehnquist, J., dissenting). Because adoption terminates fundamental rights of the natural parents, “we have held that ’ * * * [a]ny exception to the requirement of parental consent [to adoption] must be strictly construed so as to protect the right of natural parents to raise and nurture their children.‘” In re Adoption of Masa, 23 Ohio St.3d at 165, quoting In re Schoeppner (1976), 46 Ohio St.2d 21, 24, 75 O.O.2d 12, 345 N.E.2d 608. With “a family association so undeniably important * * * at stake,” we approach the case before us “mindful of the gravity” of the circumstances and the long-term impact on all the concerned parties. M.L.B. v. S.L.J. (1996), 519 U.S. 102, 117, 117 S.Ct. 555, 136 L.Ed.2d 473. We turn now to our most recent pronouncement in this important and contentious area of the law.
In re Adoption of Pushcar
{7} In Pushcar, the child‘s mother married a man who was not the biological father of the child, and that man attempted to adopt the child. 110 Ohio St.3d 332. The natural father, who had not yet been determined to be the father, opposed the adoption, and the issue was whether his consent was necessary. We concluded that the father could not be shown to have failed to communicate with or failed to support his child for one year pursuant to
{8} Although the case involved a relatively narrow issue, our holding was more general, as memorialized in the syllabus: “When an issue concerning parenting of a minor is pending in the juvenile court, a probate court must refrain from proceeding with the adoption of that child.” It is clear that we did not intend our holding or analysis to be restricted to parenting issues implicated by
{9} We consider it beyond dispute that when, as here, a man files an action for allocation of parental rights supported by a DNA test that declaims the probability that he is the father to be 99.99995 percent and when the mother of the child files an action to determine parentage claiming that that man is the father of the child, “an issue concerning parenting of a minor is pending.” Accordingly, the probate court properly stayed the adoption proceedings before it.
{10} The probate judge in this case correctly determined that we would not have required the stay in Pushcar if it were to have no effect. The judge stated:
{11} “[T]he Supreme Court [in Pushcar] did not strictly construe the statutory requirement that, to be considered a ‘father’ under
{12} “This is apparent because, despite the fact that the paternity action was pending in Pushcar when the adoption petition was filed, and thus, paternity was not established prior to the filing of the adoption petition, the Supreme Court did not find that it was too late for the paternity action to render the man contesting the adoption a ‘father’ under
{13} Based on this analysis, the probate judge concluded as follows: ”Pushcar applies to the instant case; * * * under Pushcar, this Court was required to refrain from proceeding with the adoption petition until the Clermont County Juvenile Court‘s adjudication of the parentage action; * * * this Court should give effect to the Clermont County Juvenile Court‘s determination of the existence of a parent-child relationship; and that given said determination of paternity, Mr. Otten‘s status is that of ‘father.‘” We conclude that the probate judge properly applied Pushcar.
Conclusion
{14} The probate judge did not err. We reverse the judgment of the court of appeals.
Judgment reversed.
LUNDBERG STRATTON, O‘CONNOR, and O‘DONNELL, JJ., concur.
BROWN, C.J., and LANZINGER and CUPP, JJ., dissent.
LUNDBERG STRATTON, J., concurring.
{15} I write separately to emphasize that appellate courts in Ohio must adhere to
{16}
O‘DONNELL, J., concurs in the foregoing opinion.
BROWN, C.J., dissenting.
{17} Before a child can be adopted,
{19} Under
{20} In the case before us, the primary issue is whether appellant Gary Otten‘s consent to the adoption is required. It is undisputed that Otten failed to register with the Putative Father Registry. Accordingly, application of
{21} In order to avoid application of
{22} The majority agrees with Otten and holds that the adoption proceedings must be stayed pending completion of the juvenile court paternity proceedings, that the juvenile court‘s finding of paternity must be recognized by the probate court, and that Otten‘s new status as “father” rather than “putative father”
Statutory language
{23} The majority‘s opinion ignores the unambiguous statutory language that requires that participants’ status be determined at the time an adoption petition is filed.
{24} The definition of “putative father” specifically provides that a man is a putative father if “[h]e has not been determined, prior to the date a petition to adopt the child is filed, to have a parent and child relationship” with the child through a court or administrative proceeding. (Emphasis added.)
{25} The statutes are absolutely clear that the child may be adopted without a putative father‘s consent when he fails to register with the Putative Father Registry or to establish a parent-child relationship through one of the judicial or administrative means set forth in
Pushcar
{26} The majority relies upon this court‘s previous decision in In re Adoption of Pushcar, 110 Ohio St.3d 332, 2006-Ohio-4572, 853 N.E.2d 647, to support its holding in this case. But the majority‘s reliance on Pushcar is misplaced.
{27} Pushcar addressed the need for a stay of adoption proceedings when the party petitioning for adoption relies on
{28} More importantly, Pushcar failed to address the relevant statutory language of the adoption statutes regarding the time at which a participant‘s status is determined and was based in large part upon this court‘s decision in In re Adoption of Sunderhaus (1992), 63 Ohio St.3d 127, 585 N.E.2d 418, which was decided prior to the creation of the Putative Father Registry and the enactment of the accompanying amendments to the adoption statutes. Am.Sub.H.B. No. 419, 146 Ohio Laws, Part III, 4660. In Sunderhaus, this court held that the ability of a court to dispense with the consent requirement under
{29} This analysis is consistent with the statutory scheme in place at the time.3 At the time Sunderhaus was decided by this court, the only statutorily available method for an unwed natural father to establish a parent-child relationship was through a judicial proceeding. By relying on Sunderhaus, Pushcar failed to recognize that new, alternative statutory methods existed for an unwed biological father to establish a parent-child relationship in addition to a judicial determination.
{30} The Pushcar majority‘s reliance on Sunderhaus is further called into question given the unclear nature of the facts of Pushcar. Pushcar‘s facts suggest that the natural father already had an established parent-child relationship prior to the filing of the juvenile court proceedings. Pushcar, 110 Ohio St.3d 332, 2006-Ohio-4572, 853 N.E.2d 647, at ¶ 1, 4. It is also unclear in Pushcar whether the juvenile court proceeding was initiated to establish a parent-child relationship judicially or to enforce the natural father‘s visitation rights based upon his established parent-child relationship. Id.
{31} Because the analysis of Pushcar fails to address the relevant statutory provisions, relies upon Sunderhaus, and is based on factual circumstances that are unclear from the opinion, I find that Pushcar‘s holding is of limited value and should not be extended beyond the
The General Assembly‘s adoption policy
{32} The majority‘s holding is also contrary to the public policy clearly expressed in the current adoption statutes. Justice Cupp‘s dissent correctly sets
{33} The express legislative direction contained within the adoption statutes requires determination of the status of the participants at the time the adoption petition is filed. This advances the goals of the 1996 amendments to the adoption statutes by avoiding the delays inherent in allowing ancillary litigation regarding status to conclude before considering the adoption petition. While the majority may disagree with the statutory scheme and its potentially harsh result in these circumstances, it is not this court‘s place to disregard clear statutory language to come to a result that the majority finds more equitable in this case. This court should respect the policy decisions made by the General Assembly in enacting the amended adoption statutes and apply the statutory language as written.
Conclusion
{34} Otten failed to register with the Putative Father Registry and also failed to establish a parent-child relationship before the adoption petition was filed. Therefore, Otten is a putative father for the purposes of the adoption proceedings and the consent-to-adoption exception set forth in
{35} For the foregoing reasons, I would affirm the judgment of the First District Court of Appeals.
LANZINGER, J., dissenting.
{36} I respectfully dissent based on the statutes as currently written; however, I do not agree with Chief Justice Brown that In re Adoption of Pushcar, 110 Ohio St.3d 332, 2006-Ohio-4572, 853 N.E.2d 647, has no application here.
{37} A “putative father” is “a man, including one under age eighteen, who may be a child‘s father and to whom all of the following apply:
{38} “(1) He is not married to the child‘s mother at the time of the child‘s conception or birth;
{39} “(2) He has not adopted the child;
{40} “(3) He has not been determined, prior to the date a petition to adopt the child is filed, to have a parent and child relationship with the child by a court
{41} “(4) He has not acknowledged paternity of the child pursuant to sections 3111.21 to 3111.35 of the Revised Code.” (Emphasis added.)
{42} A putative father‘s consent to an adoption of a minor child is required unless (1) he has failed to register as the minor‘s putative father with the Putative Father Registry established under
{43} Although Otten filed a parentage action to determine whether he had a parent-child relationship with P.A.C., that action had not concluded when the adoption petition was filed. Therefore, under the plain language of
{44} Although Pushcar, 110 Ohio St.3d 332, 2006-Ohio-4572, 853 N.E.2d 647, requires that the adoption proceedings be stayed during the juvenile court proceeding, that does not change the fact that Otten‘s consent is not required. Even though the stay allowed the juvenile court to determine that Otten is P.A.C.‘s father,
{45} “(1) The minor was conceived or born while the father was married to the mother;
{46} “(2) The minor is his child by adoption;
{47} “(3) Prior to the date the petition was filed, it was determined by a court proceeding pursuant to sections 3111.01 to 3111.18 of the Revised Code, a court proceeding in another state, an administrative proceeding pursuant to sections 3111.38 to 3111.54 of the Revised Code, or an administrative proceeding in another state that he has a parent and child relationship with the minor;
{48} “(4) He acknowledged paternity of the child and that acknowledgment has become final pursuant to section 2151.232, 3111.25, or 3111.821 of the Revised Code.”
{50} This does not mean, however, that Pushcar has no application here. Before an adoption petition may be granted, the probate court must determine whether the adoption is in the best interest of the minor.
{51} For the foregoing reasons, I would affirm the judgment of the First District Court of Appeals.
CUPP, J., dissenting.
{52} Our role with regard to statutory interpretation is to apply clear and unambiguous statutes as written and to engage in no further interpretation. State ex rel. Burrows v. Indus. Comm. (1997), 78 Ohio St.3d 78, 81, 676 N.E.2d 519. It is our duty to enforce a statute as written and to not add or subtract language from the statute, In re Adoption of Holcomb (1985), 18 Ohio St.3d 361, 366, 18 OBR 419, 481 N.E.2d 613. And I agree with Chief Justice Brown‘s analysis regarding the plain and unambiguous requirements of the statutes applicable to this matter.
{53} In this case, appellant‘s consent to the adoption is not required, because he failed to register on the Putative Father Registry and he failed to have determined by a court or administrative proceeding prior to the date the adoption petition was filed that he is the biological father or that he had a parent-child relationship with the child.
{55} The majority‘s application of Pushcar to this case, however, takes the Pushcar holding too far by permitting a party‘s consent-to-adoption status to change even after the adoption petition has been filed, in clear contradiction of the language of the statute. Expanding Pushcar in this way amounts essentially to judicially waiving the requirement that any determination that a man is the natural father—for purposes of the adoption proceeding—be made prior to the time the adoption petition is filed with the probate court.
{56} Ohio‘s adoption laws were amended in 1996 to streamline the adoption process. Am.Sub.H.B. No. 419, 146 Ohio Laws, Part III, 4660. This statutory enactment had among its primary objectives the establishment of statewide standards for adopting a child and the reduction of the time necessary to finalize an adoption from what was often four years before the statutory change, to between nine and 24 months under the current framework. 64 Ohio Report No. 215, Gongwer News Service, Inc. (Nov. 9, 1995) 6. Another objective of the legislation was to prevent children from being forcibly removed from their adoptive families after a biological father belatedly exercised parental rights. 64 Ohio Report No. 198, Gongwer News Service, Inc. (Oct. 17, 1995) 1.
{57} To achieve these goals while also upholding the rights of the natural parents, the child, and the adoptive parents, the General Assembly created the Putative Father Registry and other options for putative fathers to maintain consent-to-adoption rights. Legislative Service Commission Final Bill Analysis, Am.Sub.H.B. No. 419, 121st General Assembly; 65 Ohio Report No. 56, Gongwer News Service, Inc. (Mar. 21, 1996) 6; In re Adoption of Zschach (1996), 75 Ohio St.3d 648, 651-652, 665 N.E.2d 1070. After holding open hearings, inviting input from the public and adoption advocates, and reviewing adoption policy, the General Assembly enacted statutes requiring putative fathers to promptly dem-
{58} As this court has previously observed, the “goal of the adoption statutes is to protect the best interests of children. In cases where adoption is necessary, this is best accomplished by providing the child with a permanent and stable home, and ensuring that the adoption process is completed in an expeditious manner.” (Citation omitted.) Zschach at 651. The express legislative direction contained within the adoption statutes that requires the status of the biological father to be determined at the time the adoption petition is filed is one that the legislature has determined advances this goal.
{59} In contrast, the majority‘s application of In re Pushcar to the case now before us is in direct contravention of the clearly expressed requirements of the statute. Without the benefit of the input available to the legislature on the benefits or detriments of any aspect of adoption policy, the majority of this court nullifies the express and specific language of the statutes and overrides the legislature‘s articulated policy decisions, substituting its own. The 1996 revisions to the adoption statutes were designed to provide more predictability and certainty in the adoption process, with due regard to the rights of the biological parents, and are consistent with the goal of expeditiously moving children through the adoption process into permanent and stable homes. The court‘s decision today is inconsistent with those objectives and calls into question the viability of any adoption currently in process. In the end, the result of the majority opinion is to excuse appellant‘s failure to promptly protect his consent-to-adoption rights by demonstrating his commitment to meeting the responsibilities of parenthood in the manner provided by the applicable statutes, and leaves the child in legal limbo.
{60} Appellant failed to register with the Putative Father Registry and also failed to establish before the adoption petition was filed that he had a parent-child relationship with the child. The decision by the majority to sanction the procedure that stays the probate court‘s adoption proceedings to allow appellant‘s consent-to-adoption status to change is not authorized by the adoption statutes and is inappropriate in light of the clear directive of those statutes.
{61} I must respectfully dissent from this court‘s holding.
Dworken & Bernstein Co., L.P.A., and Kenneth J. Cahill, for appellant, Gary D. Otten.
Erik L. Smith, urging reversal as a pro se amicus curiae.
Susan Garner Eisenman and Mary Beck, urging affirmance for amicus curiae American Academy of Adoption Attorneys.