In re K.E.M.
Case Information
*1
[Cite as
In re K.E.M.
,
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )
IN RE ADOPTION OF K.E.M. C.A. No.
APPEAL FROM JUDGMENT
ENTERED IN THE
COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
CASE Nо.
MOORE, Judge.
Petitioners-Appellants, Jennifer and Scott Majcher (“the Majchers”), appeal from
the January 23, 2012 judgment entry of the Summit County Court of Common Pleas, Probate Division. For the following reasons, we affirm.
I. On October 14, 2006, K.E.M. was born to Respondent-Appellee, La’Keyshia Denise Hatcher, and Ronald Edward Nesby. In December of 2007, Ms. Hatcher needed help caring for K.E.M. because she was homeless and unemployed, and Mr. Nesby was incarcerated. Through the assistance of a woman from Ms. Hatcher’s church, K.E.M. went to live with the Majchers. The Majchers filed a complaint for legal custody of K.E.M. which was granted by
the juvenile court in 2008.
{¶4}
On July 29, 2010, the Majchers filed a petition in probate court to adopt K.E.M.
In their petition, the Majchers alleged that, pursuant to
necessary in order for K.E.M.’s adoption tо proceed. In her decision, the magistrate found that Ms. Hatcher “has had no contact with
[K.E.M.] since shortly after the court hearing in June 2008.” However, based upon the Supreme
Court of Ohio’s decision,
In re Adoption of J.A.S.
, 126 Ohio St.3d 145,
Majchers argued that the magistrate’s reliance upon
J.A.S.
is misplaced because, unlike the
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appellants in ., they were not trying to avoid the pre-adoption placement requirements set
forth in
magistrate’s decision, stating:
* * *
In [
J.A.S.
], the Ohio Supreme Court determined that a custody placement is not a
placement for adoption in the same way that a more definitive adoption placement
is made. Thеrefore,
* * *
[ J.A.S. ] counsels that the statute is intended to be read narrowly, to permit adoptions only where adoption placements have been intentionally made, or, in the alternative, where consents have been given (or the lack of objections following service may be demonstrated). [ J.A.S. ] suggests that termination of parental rights is required, likely at the time of the granting of legal custody, in order for children in legal custody to be eligible for adoption.
* * *
(Emphasis added.) The Majchers timely appealed and set forth one assignment of error for our
consideration.
II.
ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED TO THE PREJUDICE OF [THE MAJCHERS]
BY DISMISSING THE PETITION FOR ADOPTION WHEN IT MISAPPLIED
THE LAW IN ITS APPLICATION OF [J.A.S.] AND
the law as stated in .,
deference to the trial court’s determination in such matters.”
State v. Cruise
, 185 Ohio App.3d
230,
public agency, certified institution or association, or foreign custodian is involved.
See J.A.S
., at
¶ 7.
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 reсeiving of the child, the parent or parents of the child personally have applied to, and appeared before, the probate court of the *5 county in which the parent or parents reside, or in which the persоn 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 аre 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 aftеr 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.
(Emphasis added.) The former version of
Unless consent is not required under
(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 mоther; (2) The minor is his child by adoption;
(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 proсeeding 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; (4) He acknowledged paternity of the child and that acknowledgmеnt has become final pursuant to section 2151.232, 3111.25, or 3111.821 of the Revised Code.
(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 cоurt, finding that it is in the best interest of the minor, determines that the minor’s consent is not required.
Additionally,
Consent to adoption is not required of any of the following:
(A) A parent of a minor, when it is alleged in the adoption petition and the court,
after propеr service of notice and hearing, finds by clear and convincing evidence
that the parent has failed without justifiable cause to provide more than de
minimis contact with the minor or to provide for the maintenance and supрort of
the minor as required by law or judicial decree for a period of at least one year
immediately preceding either the filing of the adoption petition or the placement
of the minor in the home of the petitioner.
In
J.A.S.
at ¶ 1, the Supreme Court of Ohio discussed whether
requires “pre-adoptive placement where the prospective adoptive parents have been awarded
legal custody of the child pursuant to a final dispositional order out of the juvenile court, and the
child has been living with the prospective adoptive parents since the award of legal custody[.]”
The Court observed the legislative intent of the statute to curb black-market adoptions by
requiring agency supervision or court оversight. Important to the process was the aspect of
having the parents of the child personally appear before the court to approve of both placement
of the child and adoption.
J.A.S.
at ¶ 13. The Cоurt concluded that because there is no exception
in
juvenile court. However, this order did not permanently terminate Ms. Hatcher’s parental rights
with regard to K.E.M. As such, the Majchers needed Ms. Hatcher’s consent in order to place
K.E.M. for adoption. This is so because, as the Court pointed out in ., there is a difference
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between a court’s placement pursuant to an award of legаl custody and a court’s placement for
prospective adoption. In the former, the parents retain residual rights, privileges and
responsibilities. . at ¶ 17. The purposes for prospective adoptive placement are not the same.
As stated above, the procedure for independent placement of a child is governed by
court issued its decision,
adoption, the Majchers’ sole assignment of error is overruled.
III. The judgment of the Summit County Court of Common Pleas, Probate Division,
is affirmed.
Judgment affirmed. There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State оf Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of thе Court of Appeals at which time the
period for review shall begin to run.
Costs taxed to Appellant.
CARLA MOORE FOR THE COURT WHITMORE, P. J.
BELFANCE, J.
CONCUR.
APPEARANCES:
MARTHA HOM, Attorney at Law, for Appellant.
LAKEYSHIA HATCHER, pro se, Appellee.