IN THE MATTER OF: THE PLACEMENT OF A.R.V., A MINOR.
CASE NO. 2016-T-0019
IN THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT TRUMBULL COUNTY, OHIO
2016-Ohio-4929
[Cite as In re Placement of A.R.V., 2016-Ohio-4929.]
DIANE V. GRENDELL, J.
OPINION
Civil Appeal from the Trumbull County Court of Common Pleas, Probate Division, Case No. 2015 ADP 0045.
Judgment: Affirmed.
Jeffrey W. Thomas, 10 South Main Street, P.O. Box 608, Niles, OH 44446 (For Appellee, Angela R. Vitale).
DIANE V. GRENDELL, J.
{1} Appellant, Stephen Andrew Colburn, appeals the dismissal of a petition for placement for purposes of adoption by the Trumbull County Court of Common
{2} On July 16, 2015, Colburn filed a Petition for Placement for Purposes of Adoption in the Trumbull County Court of Common Pleas, Probate Division. Colburn made the following averments: he is the great-grandfather of A.R.V. (dob 04/22/2009); he and Joan Colburn were “awarded legal custody of the minor child by the Trumbull County Juvenile Court on October 20, 2010 in Case No. 02 JC 746”; Joan Colburn died on December 28, 2012; and that A.R.V.’s biological mother and father have “failed without justifiable cause to provide more than de minimis contact with, or provide for the maintenance and support of, the minor for a period of at least one year immediately preceding the filing of the placement of the home of the petitioner.” Colburn prayed “the Court grant his Petition for Placement of the minor child *** for purposes of Adoption.”
{3} Colburn’s Petition was filed pursuant to
{4} At a November 23, 2015 hearing on the Petition, Angela Vitale, A.R.V.’s natural mother, “objected to the proposed placement for adoption with the minor’s step-great grandfather [Colburn] and requested that counsel be appointed for her.” The probate court appointed counsel to represent Vitale.
{5} On January 21, 2016, Vitale, through counsel, filed a Civil Rule 12(B)(6) Motion to Dismiss. Vitale argued that, for the purposes of
{6} On January 22, 2016, Colburn filed a Reply in Opposition to the Motion to Dismiss.
{7} On January 25, 2016, a hearing was held at which the parties agreed that “this motion boils down to the definition of a ‘relative’.”
{8} On February 9, 2016, the probate court granted Vitale’s Motion to Dismiss. The court found that “in strictly construing the statute, a step-great-grandfather is not a relative under
{9} On March 4, 2016, Colburn filed a Notice of Appeal. On appeal, Colburn raises the following assignments of error:
{10} “[1.] The Trial Court committed prejudicial error in granting appellee’s Civ.R. 12(B)(6) motion to dismiss based upon its opinion that appellant lacks standing to bring a petition for placement and finding that petitioner is not exempt from the preadoption placement process under
{11} “[2.] The Trial Court committed prejudicial error in granting appellee’s Civ.R. 12(B)(6) motion to dismiss based on its opinion that appellant Colburn is not related to the prospective adoptee under
{12} Issues of statutory construction are reviewed de novo. State v. Consilio, 114 Ohio St.3d 295, 2007-Ohio-4163, 871 N.E.2d 1167, ¶ 8. Generally, “de novo appellate review means that the court of appeals independently reviews the record
{13} The issues raised in this appeal are related to
No child shall be placed or received for adoption or with 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 under
section 5103.03 of the Revised Code to place children for adoption, or custodians in another state or foreign country, or unless all of the following criteria are met:
- 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 ;- The court ordered an independent home study of the proposed placement to be conducted as provided in
section 3107.031 of the Revised Code , and after completion of the home study, the court determined that the proposed placement is in the best interest of the child;- The court has approved of record [sic] the proposed placement.
{14} An exception to the requirement that the parents appear before the probate court exists where “the parent or parents of the child are deceased or have abandoned the child, as determined under division (A) of
{15} There are also circumstances in which
{17} This argument lacks merit as the probate court did not decide to apply
{18} We note, for the record, that the probate court and Vitale’s counsel were aware of the anomalous situation created by Colburn filing the Petition for Placement. At the January 25, 2016 hearing on the Motion to Dismiss the Petition, counsel for Vitale mentioned that
{19} Similarly, the probate court noted in its Entry dismissing the Petition that “the petitioner is not necessarily precluded from adoption absent the consent of the natural parents because of the exemptions from the requirements for adoptive placements for guardians under
{20} The following cases further demonstrate that adoptive placement is not necessary when an exemption under
{21} The first assignment of error is without merit.
{22} In the second assignment of error, Colburn argues that the trial court erred by holding that, as A.R.V.’s step-great-grandparent, he did not meet the definition of a “relative” for the purposes of
{23} We note that, given the conclusion that Colburn is exempted from the provisions of
{24} As noted above, where “the parent or parents of the child are deceased or have abandoned the child *** the application for approval of the proposed adoptive placement may be brought by the relative seeking to adopt the child ***.”
{25} The term “relative” is generally understood as “[a] person connected with another by blood or affinity.” Black’s Law
{26} Significantly, the definition of “relative” adopted by the Ohio Administrative Code for family services departments encompasses relationships by affinity including the spouses of great-grandparents, i.e., step-great-grandparents.
{27} A.R.V. was placed in foster care upon her adjudication as dependent on May 5, 2009. Trumbull County Children Services Board eventually motioned the juvenile court that the placement be modified “to grant placement with [the] paternal great grandparents.” The court sanctioned this permanency plan of “keep[ing] [A.R.V.] with the family” as in her best interests. The Colburns were found “appropriate relatives of the child who are willing to be temporary custodians.” By placing A.R.V. with family/relatives, Trumbull Children Services eschewed filing for permanent custody: “Despite the custodial history of the minor child, there exists compelling reasons for TCCSB to not file a Motion for Permanent Custody, specifically: A family placement has been found.” It would be incongruous if great-grandparents and their spouses were deemed relatives for the purpose of family placement but not relatives should they later seek to file for adoption.
{28} Moreover, we note that construing the term “relative” as used in
{29} The probate court in the present case felt compelled to adopt a narrow definition of “relative” in light of the Ohio Supreme Court’s injunction that courts “must strictly comply with the statutory requirements in
{30} For the foregoing reasons, the dismissal of Colburn’s Petition for Placement for Purposes of Adoption by the Trumbull County Court of Common Pleas, Probate Division, is affirmed. Costs to be taxed against appellant.
THOMAS R. WRIGHT, J., concurs,
CYNTHIA WESTCOTT RICE, P.J., concurs with a Concurring Opinion.
CYNTHIA WESTCOTT RICE, P.J., concurs with a Concurring Opinion.
{31} I agree with the majority opinion’s disposition of this matter. I write separately because the analysis of what constitutes a “relative” under
{32} As the majority points out, the trial court recognized Colburn is not precluded from moving forward with a petition for adoption under
court by Ms. Vitale, was a red herring. The majority even recognizes the analysis as dicta. Addressing the definition of “relative” as it pertains to subsection (D) is completely unnecessary to our analysis and adds nothing to the substantive character of the opinion. In my view, therefore, any discussion of this issue should be withheld from consideration until it is properly before this court.