IN THE MATTER OF THE ADOPTION OF C.C.
Appellate Case No. 26440
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
January 30, 2015
[Cite as In re C.C., 2015-Ohio-340.]
FAIN, J.
Trial Court Case No. 14ADP29 (Civil Appeal from Montgomery County Probate Court)
Rendered on the 30th day of January, 2015.
KEITH A. FRICKER, Atty. Reg. No. 0037355, 10 North Ludlow Street, Suite 950, Dayton, Ohio 45402 Attorney for Petitioner-appellant, C.H.
JAMES R. KIRKLAND, Atty. Reg. No. 0009731, 130 West Second Street, Suite 840, Dayton, Ohio 45402 Attorney for Respondent-appellee, K.C.
FAIN, J.
{¶ 1} Petitioner-appellant C.H. petitioned for the adoption of her grandson, C.C., with the Montgomery County Probate Court. Respondent-appellee K.C. objected to the
{¶ 2} C.H. contends that the probate court erred by requiring a placement as a condition of the adoption, because grandparents are exempt from the statutory procedure for adoptive placement established in
I. The Course of the Proceedings
{¶ 3} C.C. is a sixteen year old minor, currently living with his biological father, K.C., in Columbus, Ohio. K.C. consented to a step-parent adoption of C.C. when the child was five years old, which terminated his legal rights as the natural father. However, after the child‘s mother died, K.C. became involved in his son‘s life, and obtained an order of legal custody from Montgomery County Juvenile Court in 2011. The juvenile court had jurisdiction to grant legal custody to K.C. under
{¶ 4} In 2014, C.H. filed a petition for adoption and a request for interim or
{¶ 5} At the hearing on the objections to the adoption petition, the issue of the probate court‘s jurisdiction was raised, and later briefed by the parties. On September 26, 2014, the probate court issued an order finding that it has exclusive jurisdiction over adoption proceedings under Chapter 3107, which may include an adoptive placement pursuant to
{¶ 6} Having found that the petitioner did not meet all the statutory requirements, the court dismissed the petition for adoption. In her appeal, C.H. raises one assignment of error, contending that the court erred in dismissing the petition.
II. Standard of Review
{¶ 7} There is no dispute that probate court has exclusive jurisdiction over adoptions. There is no dispute that the juvenile court had jurisdiction over the custody of the minor, C.C., and that the petitioner did not have custody or any other legal placement of the child in her residence at the time she filed her petition for adoption. The sole issue on appeal is whether the petitioner was required to obtain placement of the child in her
III. Probate Court Has Exclusive Jurisdiction over Adoptions
{¶ 8} The Supreme Court of Ohio has repeatedly held that original and exclusive jurisdiction over adoptions in Ohio is vested in probate court. In re Adoption of Pushcar, 110 Ohio St.3d 332, 2006-Ohio-4572, 853 N.E.2d 647, ¶ 9; In re Adoption of G.V., 126 Ohio St.3d 249, 2010-Ohio-3349, 933 N.E.2d 245; In re Adoption of P.A.C., 126 Ohio St.3d 236, 2010-Ohio-3351, 933 N.E.2d 236, ¶ 1.
{¶ 9} Probate courts have jurisdiction to proceed with adoptions even where the involved child is subject to custody orders within the continuing jurisdiction of domestic relations or juvenile courts. In re Adoption of Joshua Tai T., 6th Dist. Ottawa No. OT-07-055, 2008-Ohio-2733, ¶ 37, citing Pushcar, supra. The Supreme Court of Ohio
{¶ 10} We recently reviewed the “priority doctrine,” and followed the established rule that when two courts share concurrent jurisdiction, “the tribunal whose power is first invoked acquires jurisdiction to adjudicate upon the whole issue and to settle the rights of the parties to the exclusion of all other tribunals.” In re Adoption of H.N.R., 2d Dist. Greene No. 2014-CA-35, 2014-Ohio-4959, ¶ 21, quoting State ex rel. Otten v. Henderson, 129 Ohio St.3d 453, 2011-Ohio-4082, 953 N.E.2d 809, ¶ 24. We recognized that the priority doctrine has limited application when two courts have exclusive jurisdiction over different issues. Id. at ¶ 20. Therefore, an exception to the priority rule exists for adoption proceedings, which are within the exclusive jurisdiction of probate court, unless the adoption cannot proceed until a pending parentage action is completed, which is within the exclusive jurisdiction of juvenile court. Id., quoting In re Adoption of G.V., 126 Ohio St.3d 249, 2010-Ohio-3349, 933 N.E.2d 245. In the present case, the juvenile court‘s jurisdiction over the custody of C.C. was invoked first, before the petition for adoption was filed in probate court, but no issues within the exclusive
IV. Placement is Required for Adoption
{¶ 11} Legal custody under juvenile law is defined by
[A] legal status that vests in the custodian the right to have physical care and control of the child and to determine where and with whom the child shall live, and the right and duty to protect, train, and discipline the child and to provide the child with food, shelter, education, and medical care, all subject to any residual parental rights, privileges, and responsibilities. An individual granted legal custody shall exercise the rights and responsibilities personally unless otherwise authorized by any section of the Revised Code or by the court.
{¶ 12} Therefore, legal custody granted under the authority of a juvenile court recognizes that the legal custodian has the legal right to designate the child‘s placement, based on the responsibility to “determine where and with whom the child shall live.”
{¶ 13} However, the juvenile court‘s order of legal custody is not a placement for purposes of adoption under
{¶ 15} Even though C.H. was exempt from the pre-adoption placement process found in
{¶ 16}
(A) A final decree of adoption shall not be issued and an interlocutory order of adoption does not become final, until the person to be adopted has lived in the adoptive home for at least six months after placement by an agency, or for at least six months after the department of job and family services or the court has been informed of the placement of the person with the petitioner, and the department or court has had an opportunity to observe or investigate the adoptive home, or in the case of adoption by a
stepparent, until at least six months after the filing of the petition, or until the child has lived in the home for at least six months. (B) In the case of a foster caregiver adopting a foster child or person adopting a child to whom the person is related, the court shall apply the amount of time the child lived in the foster caregiver‘s or relative‘s home prior to the date the foster caregiver or relative files the petition to adopt the child toward the six-month waiting period established by division (A) of this section.
{¶ 17} Several other provisions in the adoption chapter also support a finding that the adoption process requires placement of the child in the home of the petitioner as a condition to the court‘s approval of a final order of adoption.
{¶ 18} In the present case, the child, C.C., was living with his legal custodian, K.C., when the grandmother filed a petition for adoption and a motion for placement. Prior to
{¶ 19} Therefore, a person seeking to adopt a child who is living with a legal custodian, must either obtain the permission of the legal custodian to place the child in their home, must obtain an order of the juvenile court changing legal custody, or must obtain an order from the probate court for an adoptive placement.
V. Conclusion
{¶ 20} We conclude that the court properly construed the requirements of the adoption statutes to include the requirement of a prior placement of the child in the petitioner‘s home before a petition for adoption can be approved. The sole assignment of error is overruled, and the judgment of the probate court is Affirmed.
Copies mailed to:
Keith A. Fricker
James R. Kirkland
Hon. Alice O. McCollum