IN THE MATTER OF THE ADOPTION OF: G.M.B. and H.L.B.
Case Nos. 19CA12, 19CA13
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT PICKAWAY COUNTY
Released: 09/19/19
2019-Ohio-3884
James C. Aranda, Lancaster, Ohio, and James K. Hill, Circleville, Ohio, for Appellant.
Susan Gwinn, Athens, Ohio, for Appellee.
DECISION AND JUDGMENT ENTRY
McFarland, J.
{¶1} T.B. appeals the trial court‘s judgment that dismissed her adoption petitions. Appellant raises the following assignment of error:
“The trial court erred as a matter of law in dismissing the Petitions because placement is only a prerequisite to a final order of adoption and does not affect the standing of a petitioner.”
{¶2} The children‘s biological mother is deceased. Following the mother‘s 2013 death, the children lived with Appellant, their maternal grandmother. In 2017, the juvenile court placed the children in the legal custody of Appellee, their
{¶3} On September 5, 2018, Appellee filed a motion to dismiss Appellant‘s adoption petitions. He alleged that Appellant‘s petition is barred by the jurisdictional priority rule and suffers from various other deficiencies. Appellant filed a memorandum contra and asserted that she would be able to correct any deficiencies. The court denied Appellee‘s motion to dismiss.
{¶4} On January 22, 2019, Appellee filed a second motion to dismiss “for failing to prosecute, for lack of standing, for lack of jurisdiction, and for lack of consent of the legal custodian.”
{¶5} On March 18, 2019, the trial court dismissed Appellant‘s adoption petitions. The court concluded that “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.” The court noted that Appellant acknowledged that the children did not live with her. The court additionally found that more than six months had elapsed since Appellant filed her adoption petitions, that she had not sought placement, and that she had not obtained a court order for placement. The
{¶6} In her sole assignment of error, Appellant argues that the trial court erred by dismissing her adoption petitions. Specifically, she asserts that the trial court erred as a matter of law by concluding that she lacked standing to adopt the children because the children had not been placed in her home. Appellant claims that because she is the children‘s grandmother, she need not obtain a pre-adoptive approval for placement under
{¶7} A dismissal based upon a lack of standing essentially is a dismissal based upon a lack of jurisdiction to proceed with an action.2 See Klein and Darling, Ohio Civil Practice, Sections 17:11 and 17:23. A motion to dismiss based on lack of standing involves a question of law that we review independently and without deference to the trial court. See Bank of America v. Stevens, 4th Dist. Hocking No. 16CA24, 2017-Ohio-9040, 2017 WL 6398844, ¶ 23, citing Moore v. Middletown, 133 Ohio St.3d 55, 2012-Ohio-3897, 975 N.E.2d 977, ¶ 20.
B
{¶8} In general, “standing relates to a party‘s right to make a legal claim or seek judicial enforcement of a legal duty or right.” Albanese v. Batman, 148 Ohio St.3d 85, 2016-Ohio-5814, 68 N.E.3d 800, ¶ 24, citing Ohio Pyro, Inc. v. Ohio Dept. of Commerce, 115 Ohio St.3d 375, 2007-Ohio-5024, 875 N.E.2d 550, ¶ 27, citing Black‘s Law Dictionary 1442 (8th Ed.2004). ” ‘It is an elementary concept of law that a party lacks standing to invoke the jurisdiction of the court unless he
{¶9}
The following persons may adopt:
(A) A husband and wife together, at least one of whom is an adult;
(B) An unmarried adult;
(C) The unmarried minor parent of the person to be adopted;
(D) A married adult without the other spouse joining as a petitioner if any of the following apply:
(1) The other spouse is a parent of the person to be adopted and supports the adoption;
(2) The petitioner and the other spouse are separated under
section 3103.06 or3105.17 of the Revised Code ;(3) The failure of the other spouse to join in the petition or to support the adoption is found by the court to be by reason of prolonged unexplained absence, unavailability, incapacity, or circumstances that make it impossible or unreasonably difficult to obtain either the support or refusal of the other spouse.
{¶10} Under
{¶11} The trial court, however, determined that Appellant lacked standing because she failed to request that the court place the children in her home. The
{¶12} Appellant asserts that the trial court erred by determining that the adoption statutes require the children to be placed in her home before Appellant could seek to adopt the children. Appellant claims that the trial court misconstrued the adoption statutes. Appellant contends that the adoption statutes, and in particular
C
{¶13} Whether a trial court properly interpreted a statute is a matter of law that an appellate court reviews de novo, without deference to the trial court‘s determination. E.g., State v. Straley, 139 Ohio St.3d 339, 2014-Ohio-2139, 11 N.E.3d 1175, ¶ 9; In re Adoption of B.M.W., 4th Dist. Adams No. 10CA899, 2010-Ohio-5214, at ¶ 13.
{¶14} ” ‘It is a cardinal rule of statutory construction that where the terms of a statute are clear and unambiguous, the statute should be applied without interpretation.’ ” Wilson v. Lawrence, 150 Ohio St.3d 368, 2017-Ohio-1410, 81 N.E.3d 1242, ¶ 11, quoting Wingate v. Hordge, 60 Ohio St.2d 55, 58, 396 N.E.2d 770 (1979), citing Provident Bank v. Wood, 36 Ohio St.2d 101, 304 N.E.2d 378 (1973). Accordingly, a court‘s first step when considering the meaning of a statute
{¶15} Additionally, courts must “give effect only to the words the legislature used, making neither additions to, nor deletions from, the statutory
{¶16} Thus, when interpreting a statute, courts first look to the text of the rule, “reading words and phrases in context and construing them according to the rules of grammar and common usage.” State ex rel. Steele v. Morrissey, 103 Ohio St.3d 355, 2004-Ohio-4960, 815 N.E.2d 1107, ¶ 21. Additionally, “[a] fundamental canon of statutory interpretation is the presumption that each word in a statute was included by the legislature for a reason.” A.S. v. J.W., --- Ohio St.3d ---, 2019-Ohio-2473, --- N.E.3d ---, citing Scalia & Garner, Reading Law: The Interpretation of Legal Texts, 174-179 (2012); State ex rel. Bohan v. Indus. Comm., 147 Ohio St. 249, 251, 70 N.E.2d 888 (1946);
{¶17} A statute or rule is ambiguous when the language “is ‘capable of bearing more than one meaning.’ ” Jacobson at ¶ 8, quoting Dunbar v. State, 136 Ohio St.3d 181, 2013-Ohio-2163, 992 N.E.2d 1111, ¶ 16. A court that is reviewing a statute or administrative rule for ambiguity should direct its “attention
D
{¶18} When an adoption is arranged privately between a parent or parents and a third-party,
(D) No child shall be placed or received for adoption or with the intent to adopt unless placement is made by a public children services agency, an institution or association that is certified by the department of job and family services * * * or custodians in another state or foreign country, or unless all of the following criteria are met:
(1) Prior to the placement and receiving of the child, the parent or parents of the child personally have applied to, and appeared before, the probate court of the county in which the parent or parents reside, or in which the person seeking to adopt the child resides, for approval of the proposed placement specified in the application and have signed and filed with the court a written statement showing that the parent or parents are aware of their right to contest the decree of adoption subject to the limitations of
section 3107.16 of the Revised Code ;
(2) The court ordered an independent home study of the proposed placement * * * and after completion of the home study, the court determined that the proposed placement is in the best interest of the child;
(3) The court has approved of record the proposed placement.
“Stated otherwise, unless the child has been placed or received for adoption by a public children services agency or related institution, ‘the biological parents must appear before and obtain approval from the probate court.’ ” In re Placement of A.R.V., 2016-Ohio-4929, 68 N.E.3d 410 (11th Dist.), ¶ 13, quoting J.A.S. at ¶ 18.
{¶19} ”
“The intent of the legislature in enacting
R.C. 5103.16 was to provide some measure of judicial control over the placement of children for adoption which is not conducted under the auspices of a statutorily recognized and authorized agency. That measure of judicial control is accomplished by having the parents of the child personally appear before the proper probate court for approval of the placement and adoption.” Id., quoting Lemley v. Kaiser (1983), 6 Ohio St.3d 258, 260, 6 OBR 324, 452 N.E.2d 1304.
{¶20} However,
{¶21} Here, we agree with Appellant that
{¶22} Accordingly, based upon the foregoing reasons, we sustain Appellant‘s sole assignment of error, reverse the trial court‘s judgment, and remand for further proceedings consistent with this opinion.
It is ordered that the JUDGMENT BE REVERSED AND CAUSE REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. Costs assessed to Appellee.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Pickaway County Common Pleas Court, Probate Division, to carry this judgment into execution.
Any stay previously granted by this Court is hereby terminated as of the date of this entry.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Smith, P.J. & Abele, J.: Concur in Judgment and Opinion.
For the Court,
BY:
Matthew W. McFarland, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.