Case Information
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IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO WARREN COUNTY
IN THE MATTER OF THE :
ADOPTION OF: CASE NOS. CA2017-12-177
: CA2017-12-178 R.M.T.
: O P I N I O N 4/30/2018 :
: APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS PROBATE DIVISION
Case Nos. 2015 5005 and 2016 5055 P.M.W., Allen Correctional Institution, P.O. Box 4501, 2238 N. West Street, Lima, Ohio 45802, appellant, pro se
Michael J. Davis, 8567 Mason-Montgomery Road, P.O. Box 1025, Mason, Ohio 45040, for appellee, J.T.
HENDRICKSON, P.J. Appellant, P.M.W., appeals a decision of the Warren County Court of Common Pleas, Probate Division, granting the petition for adoption of appellant's son, R.M.T., to petitioner-appellee, J.T Appellant also appeals the probate court's denial of his motion for the appointment of counsel, his motion to have a transcript prepared at the state's expense, and his motion to stay the final decree of adoption pending appeal. For the reasons set forth below, we affirm in part, reverse in part, and remand the matter to the probate court for further proceedings. Appellant is the biological father of R.M.T., and is currently incarcerated in an
Ohio prison. Appellee, R.M.T.'s stepfather, filed a petition to adopt the child on January 28,
2015, contending that appellant's consent to the adoption was not required because
appellant (1) failed to register as the child's putative father, (2) failed to have more than de
minimis contact with the child for a period of at least one year immediately preceding the
filing of the adoption petition, and (3) failed without justifiable cause to provide for the
maintenance and support of the minor for a period of at least one year immediately preceding
the filing of the petition. The probate court decided to bifurcate the determinations of whether
parental consent was required and whether the adoption was in the best interest of the child.
After several procedural delays, including a paternity test which established appellant as the
child's biological father and the filing of a second adoption petition, the court held a hearing
on the issue of whether appellant's consent to the adoption was required. On December 12,
2016, the probate court concluded that appellant's consent was not required as appellant had
failed without justifiable cause to provide more than de minimis contact with the child in the
year immediately preceding appellee's filing of the adoption petition. Appellant appealed,
and this court affirmed the probate court's determination that appellant's consent was not
required in , 12th Dist. Warren Nos. CA2016-12-107, CA2017-05-
056, and CA2017-05-057,
determine if adoption was in R.M.T.'s best interest. The court concluded the adoption was in the child's best interest and on December 6, 2017, granted appellee's petition and filed a final decree of adoption. On December 27, 2017, appellant filed (1) a motion for the appointment of
counsel, requesting the probate court appoint counsel to represent him on appeal, (2) a motion to have the transcript of the December 6, 2017 hearing prepared at the state's expense, and (3) a motion to stay the final decree of adoption while the case was appealed. The probate court denied appellant's motions on December 28, 2017.
{¶ 5} Appellant appealed, raising five assignments of error for our review. For ease of discussion, we will address appellant's assignments of error out of order.
{¶ 6} Assignment of Error No. 4:
{¶ 7} THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANT WHEN THE TRIAL COURT DENIED [APPELLANT'S] MOTION FOR APPOINTMENT OF COUNSEL AT STATE'S EXPENSE.
{¶ 8}
In his fourth assignment of error, appellant argues the probate court erred in
denying his motion for the appointment of appellate counsel. We disagree. The present
case was initiated by a stepparent seeking adoption of a child, not by the state seeking
termination of parental rights. As this court has previously stated, "an indigent parent in an
adoption proceeding is not entitled to appointed counsel." , 2017-
Ohio-8639 at ¶ 20, citing In re Adoption of Drake , 12th Dist. Clermont No. CA2002-08-067,
WHEN THE TRIAL COURT DENIED [APPELLANT'S] MOTION FOR TRANSCRIPTS AT STATE'S EXPENSE. In his fifth assignment of error, appellant argues the probate court erred in
denying his motion to have a transcript of the December 6, 2017 hearing provided at the
state's expense. We disagree. As we stated in appellant's prior appeal, "adoption is a civil
proceeding, and it is well-settled that civil litigants are not entitled to free trial transcripts on
appeal." ,
WHEN THE TRIAL COURT DENIED [APPELLANT'S] MOTION FOR STAY. In his third assignment of error, appellant argues the probate court erred in
denying his motion to stay the judgment granting the final decree of adoption. Appellant fails,
however, to cite to any authority or set forth any argument in support of his assigned error.
Pursuant to App.R. 16(A)(7), an appellant's brief must include "[a]n argument containing the
contentions of the appellant with respect to each assignment of error presented for review
and the reasons in support of the contentions, with citations to the authorities, statutes, and
parts of the record on which appellant relies." A court of appeals "may disregard an
assignment of error presented for review if the party raising it * * * fails to argue the
assignment separately in the brief, as required under App.R. 16(A)." App.R. 12(A)(2). The
duty is on the appellant, not the appellate court, to construct the legal arguments necessary
to support the appellant's assignments of error. Bond v. Canal Winchester , 10th Dist.
Franklin No. 07AP-556,
{¶ 15}
{¶ 16} THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANT WHEN THE TRIAL COURT FAILED TO HOLD A BEST INTEREST HEARING.
{¶ 17}
In his first assignment of error, appellant argues the probate court failed to hold
a best-interest hearing before granting appellee's petition for adoption. Appellant disputes
that the December 6, 2017 hearing was a "best-interest hearing."
"Before granting an adoption, the trial court must hear evidence as to whether
first, 'the required consents have been obtained or excused' and second, whether 'the
adoption is in the best interest of the person sought to be adopted.'" In re Walters , 112 Ohio
St.3d 315,
consent and best-interest proceedings. The issue of whether appellant's consent to the
adoption was required was resolved in December 2016, and was the subject of appellant's
prior appeal to this court. See In re Adoption of R.M.T. ,
best-interest hearing, he has failed to file a transcript of the proceeding. Where a party fails
to provide a transcript of a hearing, or an acceptable alternative as required by App.R. 9, this
court must presume the regularity of the proceedings. See In re J.F. , 12th Dist. Butler No.
CA2016-08-174,
WHEN THE TRIAL COURT FAILED TO PROVIDE PROPER SERVICE NOTIFYING [APPELLANT] THAT THE COURT SCHEDULED AND HELD A FINAL HEARING. In his second assignment of error, appellant argues that the probate court failed 1. R.C. 3107.14(C), provides, in relevant part as follows:
If, at the conclusion of the hearing, the court finds that the required consents have been obtained or excused and that the adoption is in the best interest of the person sought to be adopted as supported by the evidence, it may issue, subject to division (C)(1)(a) of section 2151.86, section 3107.064, and division (E) of section 3107.09 of the Revised Code, and any other limitations specified in this chapter, a final decree of adoption or an interlocutory order of adoption, which by its own terms automatically becomes a final decree of adoption on a date specified in the order, which, except as provided in division (B) of section 3107.13 of the Revised Code, shall not be less than six months or more than one year from the date the person to be adopted is placed in the petitioner’s home, unless sooner vacated by the court for good cause shown.
to give him the "required notice" that would have allowed him to make the appropriate arrangements to participate in the December 6, 2017 hearing. Appellant contends that his due process rights were violated by the court's failure to comply with R.C. 3107.11, as he did not receive notice of the hearing until December 11, 2017 – five days after the hearing concluded. "When, at the discretion of the court, separate hearings take place to address
the consent requirement and the best-interest requirement of R.C. 3107.14(C), notice of each
shall be given to the biological parent." In re Walters ,
(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 :
* * *
(2) A person whose consent is not required as provided by division (A), (G), (H), or (I) of section 3107.07 of the Revised Code and has not consented.
(Emphasis added.) R.C. 3107.11(A)(2). This statute, therefore, "requires service of notification of the date and time of all hearings on a biological parent whose consent is unnecessary under R.C. 3107.07(A)." In re Walters at ¶ 22. In the present case, the probate court scheduled the December 6, 2017 hearing
on November 27, 2017. Notice of the time and place of the hearing was sent to appellant by
regular mail on November 27, 2017 – a mere nine days before the hearing was scheduled to
take place. As R.C. 3107.11(A)(2) required at least 20-days' notice of the hearing, we find
that appellant was given insufficient notice of the December 6, 2017 best-interest hearing.
The right to raise a child is an "essential" and "basic" civil right of any parent. In
re Hayes ,
proceedings according to law and consistent with this opinion.
RINGLAND and PIPER, JJ., concur.