IN THE MATTER OF THE ADOPTION OF: Z.G.A.
C.A. CASE NO. 2015-CA-51
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT GREENE COUNTY
January 22, 2016
2016-Ohio-238
T.C. NO. 10524AD-15-50 (Civil Appeal from Common Pleas Court, Probate Division)
Rendered on the 22nd day of January, 2016.
J.M., North Central Correctional Institute, 670 Marion-Williamsport Road, P. O. Box 1812, Marion, Ohio 43301
Appellant
MICHAEL R. VOORHEES, Atty. Reg. No. 0039293, 11159 Kenwood Road, Cincinnati, Ohio 45242
Attorney for Appellees
FROELICH, P.J.
{¶ 1} Appellant J.M. appeals from a judgment of the Greene County Court of Common Pleas, Probate Division, which denied his request to intervene in the then-pending adoption of Z.G.A, finding that Appellant‘s consent to the adoption was not required because he had not registered as the putative father of the child or otherwise
{¶ 2} We glean the following facts from the parties’ briefs and attachments, because many of the documents on which they are based are not contained in the trial court‘s record.
{¶ 3} Appellant was incarcerated several months before Z.G.A.‘s birth, and he remains incarcerated. Z.G.A. was born in Delaware County, Ohio, on February 24, 2015. No father was listed on her birth certificate, and the nature of the relationship between Appellant and Mother is unclear from the record. Three days after Z.G.A.‘s birth, Mother surrendered her to an adoption agency.
{¶ 4} On February 20, 2015, prior to Z.G.A.‘s birth, Appellant filed a motion in the Delaware County Probate Court to stay any adoption proceedings pending in that court. On February 23, 2015, the court filed a judgment entry stating that it lacked jurisdiction to grant the relief Appellant sought, because no adoption proceedings had been filed in Delawarе County.
{¶ 5} On March 16, 2015, approximately three weeks after Z.G.A.‘s birth, Appellant filed a “Motion for Consideration” in the Delaware County Probate Court, in which he again sought to prevent the finalization of any adoption proceedings requested by Mother until he had an opportunity to establish paternity. On March 17, the Delaware County Probate Cоurt again found that it lacked jurisdiction because no petition of adoption had been filed there, and it denied the motion. The court directed Appellant to contact the Ohio Department of Job and Family Services to place his name on the putative father registry, noting that Appellant only had a 30-day window to do so. Thе court also attached the ODJFS Putative Father Registry form to its order.
{¶ 6} Appellant mailed a “Motion for Consideration” to the Franklin County Probate Court. This document was purportedly signed by Appellant on March, 15, 2015, but it was not received by the court until April 22. A probate magistrate responded by letter dated May 4, 2015, indicating that the court lacked jurisdiction because no adoption proceedings were pending in Franklin County and suggesting that Appellant contact the Franklin County Juvenile Court. The Clerk of Courts also responded to Appellant, indicating that the document could not be filed and that Appellant should contact the probate court regarding adoptions.
{¶ 7} Appellant tried to register with the Putative Father Registry in early April 2015. The registration form was purportedly signed on March 25, 2015, and was stamped as received at ODJFS on April 1, 2015.1 The registration form was rejected by ODJFS by a letter to Appellant dated April 2, 2015, because the form had not been filed within 30 days of the child‘s birth.
{¶ 8} A petition for Z.G.A.‘s adoption was filed in Greene County on April 14, 2015. The record does not indicate that any notice of the filing was sent to Appellant, and we assume that none was, because he was not identified on any of the documents filed with the court.
{¶ 9} On April 21, 2015, Appellant sent letters to a hospital in Delaware County, Ohio, where the child was allegedly born, and to Adoption Link, Inc., in Yellow Springs, Ohio. The letters stated that he was the “natural father” of Z.G.A., informed that he was petitioning a court in Franklin County, Ohio, for DNA testing, and requested all records
{¶ 10} On July 23, 2015, Appellant filed a “Request for Paternity/Genetic Testing Establishing Paternal Rights as the Natural Father” in the Greene County Probate Court (“the trial court“).2 The same day, the trial court filed a judgment entry stating that it would treat this filing “as an objection contesting the adоption and whether the alleged father‘s consent is required.” The trial court gave the prospective adoptive parents 14 days to respond. On July 31, the trial court denied Appellant‘s request to intervene in the pending adoption. The court found that his consent was not required because he had not registered as the putative fаther within 30 days of the child‘s birth, as required by
{¶ 11} Appellant appeals from the triаl court‘s judgment denying his request to intervene and finding that his consent to the adoption was unnecessary. Appellant‘s three assignments of error assert that his due process or equal protection rights were violated in that he did not receive notice of the adoption proceedings and was not permitted to intervene in those proceedings. We will address these assignments
{¶ 12} “A parent has a fundamental right to care for and have custody of his or her child.” In re Adoption of E.E.R.K., 2d Dist. Miami No. 2013 CA 35, 2014-Ohio-1276, ¶ 16; In re K. C., 2d Dist. Montgomery No. 22243, 2008-Ohio-2593, ¶ 10. Those rights are terminated when a child is adopted.
{¶ 13} Under Ohio law, a “putative father” is a man, including one under the age eighteen, who may be a child‘s father and to whom all of the following apply: 1) he was not married to the child‘s mother at the time of the child‘s conception or birth; 2) he has not adopted the child; 3) he has not been determined to have a parent and child relationship with the child by a court or administrative proceeding that occurred prior to the date a petition to adopt the child is filed; and 4) he has not acknowledged paternity of the child pursuant to
{¶ 14} In 1996, Ohio established а Putative Father Registry; if a man registers as the putative father of a child, he will receive notice, at the address or telephone number he provides, of any petition that may be filed to adopt a minor he claims as his child.
{¶ 15}
{¶ 16} Pursuant to
(A) The mother of the minor;
(B) The father of the minor, if any of the following apply:
(1) The minor was conceived or born while the father was married to the mother;
(2) The minor is his child by adoption;
(3) Prior to the date the petition was filed, it was determined by a court proceeding * * * [or] an administrative proceeding * * * [in this state or another state] that he has a parent and child relationship with the minor;
(4) He acknowledged paternity of the child and that acknowledgment has become final pursuant to section
(C) The putative father of the minor;
(D) Any person or agency having permanent custody of the minor or authorized by court order to consent;
(E) The minor, if more than twelve years of age, unless the court, finding that it is in the best interest of the minor, determines that the minor‘s consent is not required.
{¶ 17}
(1) The putative father fails to register as the minor‘s putative father
(2) The court finds, after proper service of notice and hearing, that any of the following are the case:
(a) The putative father is not the father of the minor;
(b) The putative father has willfully abandoned or failed to care for and support the minor;
(c) The putative father has willfully abandoned the mother of the minor during her pregnancy and up to the time of her surrender of the minor, or the minor‘s placement in the home of the petitioner, whichever occurs first.
{¶ 18} It is undisputed in this case that Father did not register as Z.G.A.‘s putative father within 30 days of her birth and that his parental relationship had not been legally established in any other way before the petition for adoption was filеd. He asserts that the process by which a child can be adopted without notice to the unregistered putative father violates his due process or equal protection rights.
{¶ 19} Ohio has long recognized that a parent‘s right “to the care and custody of his children is one of the most precious and fundamental in law” and that the permanent termination of parental rights is “the family law equivalent of the death penalty in a criminal case.” In re Adoption of Masa, 23 Ohio St.3d 163, 164, 492 N.E.2d 140 (1986), citing Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982); In re B.C., 141 Ohio St.3d 55, 2014-Ohio-4558, 21 N.E.3d 308, ¶ 19, citing In re Smith, 77 Ohio App.3d 1, 16, 601 N.E.2d 45 (6th Dist.1991). See also In re Adoption of P.A.C.,
{¶ 20} However, the Supreme Court of Ohio has observed that a putative father‘s “inchoatе interest in developing a relationship with [a child] in the future[,] * * * arising solely from a biological link with the child, is afforded far less constitutional protection than an already developed parent-child relationship would be.” In re Adoption of H.N.R., Slip Opinion No. 2015-Ohio-5476, ¶ 26 (Dec. 31, 2015).4 Moreover, under Ohio‘s statutory scheme, putative fathers need not have notice of a birth or even of a рregnancy to have their rights foreclosed. “A man who has sexual intercourse with a woman is on notice that if a child is born as a result and the man is the putative father, the child may be adopted without his consent pursuant to division (B) of section
{¶ 21} The U.S. Supreme Court has “sanctioned the use of putative-father registries as mechanisms to facilitаte the adoption process,” and the Supreme Court of Ohio has also adopted this view. In re Adoption of P.A.C., 126 Ohio St.3d 236, 2010-Ohio-3351, 933 N.E.2d 236, ¶ 57, citing Lehr v. Robertson, 463 U.S. 248, 103 S.Ct. 2985, 77 L.Ed.2d 614 (1983). Lehr held that a putative father registry was constitutional where the father had never had any significant custodial, personal, or financial relationship with the child, because it was “adequately designed” to protect an unmarried father‘s interеst
{¶ 22} While Appellant‘s case was pending in this court, the supreme court issued another decision addressing Ohio‘s putative father registry, In re Adoption of H.N.R, supra, an appeal from this district. The putative father argued that
{¶ 23} The Supreme Court noted that the putative father in H.N.R. did not raise “a broad-based, facial due process challenge to Ohio‘s adoption laws, but instead a discrete, as-applied due process challenge” to one of its specific provisions. Id. at ¶ 21. The court observed that, for it to consider such a challеnge, there must be an actual, rather than a hypothetical, violation of the putative father‘s constitutional rights. Id. at
{¶ 24} As described above, Appellant attempted to register as a putative father on April 1, 2015; his registration was rejected because of the 30-day limitation in the statute. The petition for adoption was filed on April 14, 2015. Thus, рursuant to the reasoning in H.N.R., if
{¶ 25} Like the supreme court in H.N.R., we cannot address any constitutional argument regarding the applicability of the time limitations related to registering as a putative father at this time.
{¶ 26} First, the motion Appellant filed in the trial court (which is the basis of the judgment we are reviewing) did not in any way challenge the constitutionality of
{¶ 27} In H.N.R., the supreme court recognized that the Appеllant‘s position (where he had established paternity through a DNA test but had taken no other legal action to establish paternity) “is not an unsympathetic one.” Id. at ¶ 37. Likewise, we recognize that Appellant is a layperson who has represented himself in all of his efforts to intervene in Z.G.A.‘s adoption, and that navigating the various means of establishing thе parent-child relationship for purposes of obtaining notice of Ohio adoption proceedings may be challenging to lawyers and laypersons alike. However, we cannot accept Appellant‘s suggestion in his brief that the trial court should have equated his misdirected and incomplete efforts to establish a parent-child relationship with Z.G.A. or to intervene in her adoption as having established his parent-child relationship in a court or administrative proceeding “prior to the filing of the petition” for purposes of requiring his consent, pursuant to
{¶ 28} Issues raised for the first time on appeal are not properly before this court and generally will not be addressed. State v. Lehman, 2d Dist. Champaign No. 2014-CA-17, 2015-Ohio-1979, ¶ 14, citing State v. Schneider, 2d Dist. Greene No. 95-CA-18, 1995 WL 737910, *1 (Dec. 13, 1995). The Supreme Court of Ohio has held that “[f]ailure to
{¶ 29} Finally, we note that the documents from which we have compiled the history of Appellant‘s filings and mailings in the months preceding the filing of his “Request for Paternity/Genetic Testing” in the Greene County court, and which would be necеssary to establish the timeline for a constitutional challenge to
{¶ 30} We review a trial court‘s judgment by reviewing the evidence on which the trial court based its decision. Appellant did not raise any argument as to the constitutionality of
{¶ 31} The assignments of error are overruled.
{¶ 32} The judgment of the trial court will be affirmed.
HALL, J. and WELBAUM, J., concur.
Copies mailed to:
J.M.
Michael R. Voorhees
Hon. Thomas M. O‘Diam