In re Adoption of Kreyche ( 1984 )

William B. Brown, J.

The sole issue presented is whether a “placement of the minor” for the purposes of R.C. 3107.07 necessarily occurs at the time of the marriage of a custodial parent. This court affirms the judgment of the appellate court and holds that under the facts of this case, the marriage of the natural father with whom the child was living did not constitute placement of that child under R.C. 3107.07.

A determination of when placement occurs is critical due to the relationship between R.C. 3107.06 and 3107.07 and their bearing on whether consent of a natural parent is required in an adoption proceeding.

R.C. 3107.06 provides as follows:

“Unless consent is not required under section 3107.07 of the Revised Code, a petition to adopt a minor may be granted only if written consent to the adoption has been executed by all of the following:

“(A) The mother of the minor;

“(B) The father of the minor, if the minor was conceived or born while the father was married to the mother, if the minor is his child by adoption, or if the minor has been established to be his child by a court proceeding.”

R.C. 3107.07 provides in part as follows:

“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 finds after proper service of notice and hearing, that the parent has failed without justifiable cause to communicate with the minor or to provide for the maintenance and support 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.”¹

R.C. 3107.07 does not define the term “placement.” Appellant contends that a placement occurs within the meaning of R.C. 3107.07(A) as a result of a natural parent marrying and bringing the minor into the home with the stepparent.

While the marriage of a natural parent may, under proper circumstances, initiate a placement, this court declines to adopt a hard and fast rule that such a marriage automatically, without exception, initiates a placement for adoption purposes pursuant to R.C. 3107.07. First, to adopt such a position fails to acknowledge that there are numerous remarriages where the children are not adopted by the new stepparent. Moreover, being ever mindful that here, as in all custody matters, the paramount concern is the best interest of the child, this court finds that a more flexible approach is warranted. The overriding policy of the best interest of the child can best be effectuated by considering the totality of the circumstances and the facts of each particular case to determine if a placement has in fact occurred.

In making a determination as to whether a placement occurred, a court should consider, among other factors, whether the child was placed in the home by a third-party agency, the welfare department, or by court order; whether the child was placed in the home by a private action; whether the marrying parent had legal custody of the child; and the intent of the parties.

In the instant case, the lower courts considered the totality of the circumstances and determined that the record did not support a finding of placement. The trial court stated as follows:

“It is the opinion of the Court that the placement of the child in the home of petitioner originally was not a placement for adoption. Even if the Court considered that the subsequent marriage made it such a placement, certainly the conduct of the parties in mutually working out an agreement as to support and visitation and, in fact, implementing that agreement would seem to negate any such theory of placement.”

Similarly, the court of appeals in its decision on reconsideration stated that “[t]here is nothing in the record of the instant case which leads to the conclusion that Jessica was placed with appellant for adoption.”

This court concurs in the above and would emphasize that in finding that no placement had occurred, the natural father did not have legal custody of Jessica at the time of his marriage. In addition, this court is impressed by the fact that approximately one year after the marriage of the natural father to Jean Schneider, Jessica’s natural parents reached an agreement on custody, support, and visitation, obtained a court order consistent with those agreements, and thereafter implemented this order.

For the foregoing reasons, the judgment of the court of appeals is affirmed.

Judgment affirmed.

Celebrezze, C.J., Sweeney, Locher and Holmes, JJ., concur. Locher, J, concurs separately. C. Brown and J. P. Celebrezze, JJ., dissent.

1 The constitutionality of R.C. 3107.07 was not raised by the parties and this court expresses no opinion thereon.