In Re Adoption of Jimenez , 136 Ohio App. 3d 223 ( 1999 )

Pursuant to R.C. 3107.06(A), Heather Jimenez' written consent was needed to permit the probate court to grant the petition for adoption that Bill and Yvonne Arnold filed. That consent is valid only if Heather Jimenez gave it freely, knowingly, and voluntarily, with a full understanding of the adoption process and the consequences of her actions. In re Adoption of Zschach (1996), 75 Ohio St.3d 648, certiorari denied 117 S.Ct. 582.

In an adoption of this kind, the parent must appear personally before the court to give consent. R.C. 3107.081(A)(1). Division (C)(3) of that section provides, inter alia: "The court shall question the parent to determine that the parent understands the adoption process (and) the ramifications of consenting to the adoption." Among those "ramifications" is the limited grounds on which consent subsequently may be revoked. In that regard, R.C.3107.084 states:

(A) A consent to adoption is irrevocable and cannot be withdrawn after the entry of an interlocutory order or after the entry of a final decree of adoption when no interlocutory order has been entered. The consent of a minor is not voidable by reason of the minor's age.

(B) A consent to adoption may be withdrawn prior to the entry of an interlocutory order or prior to the entry of a final decree of adoption when no interlocutory order has been entered if the court finds after hearing that the withdrawal is in the best interest of the person to be adopted and the court by order authorizes the withdrawal of consent. Notice of the hearing shall be given to the petitioner, the person seeking the withdrawal of consent, and the agency placing the minor for adoption.

A substantial compliance rule reasonably applies to the procedures which R.C. 3107.081(C) requires of the court. However, even substantial compliance requires a finding that the parent has the particular understandings that are concerned in the statute, existence of which the court is required to determine. That determination contemplates a finding that the parent's subjective understanding is a correct one.

I agree with Judge Wolff that the explanation which the magistrate gave Heather Jimenez, that she would be required to show "good cause" to withdraw her consent, was insufficient to satisfy the requirements of R.C. 3107.081(A)(1) and R.C. 3107.084. Absent satisfactory compliance, her consent was not "knowingly" given, and is invalid. In re Adoption of Zschach, supra.

I have written separately to put the mistaken understanding that Heather Jimenez was given by the Arnolds' attorney in context. That understanding was clearly mistaken. Even so, it would not be a basis to find the mother's consent invalid absent the magistrate's failure to satisfy the requirements the law imposes. Properly given, such admonitions avoid claims that a consent was not knowingly given on account of misinformation obtained from other sources.

Copies mailed to:

Robert L. Mues

Dan D. Weiner

Hon. George J. Gounaris