In re Adoption of T.G.B. ( 2011 )


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  • [Cite as In re Adoption of T.G.B., 
    2011-Ohio-6772
    .]
    IN THE COURT OF APPEALS OF OHIO
    FOURTH APPELLATE DISTRICT
    ADAMS COUNTY
    ADOPTION OF T.G.B.                                    :   Case Nos. 11CA919
    ADOPTION OF L.L.B.                                    :             11CA920
    :
    :   DECISION AND JUDGMENT ENTRY
    :
    RELEASED 12/22/11
    ______________________________________________________________________
    APPEARANCES:1
    Dana Whalen, WHALEN LAW OFFICE, LLC, West Union, Ohio, for appellants.
    ______________________________________________________________________
    Harsha, P.J.
    {¶1}     Lobert and Beverly Bell appeal the probate court’s dismissal of their
    petitions for adoption of T.G.B. and L.L.B., contending that the trial court erred by
    finding that the preadoption placement requirements of R.C. 5103.16(D) must be met
    before they could proceed with adoption. The Bells assert, however, that the statute
    does not apply to their situation because they are the appointed guardians of the
    children. Because the statute clearly exempts guardians from its preadoption
    placement requirements, we reverse the judgment of the probate court.
    I. FACTS
    {¶2}     The Probate Court of Adams County appointed Mr. and Mrs. Bell
    guardians of T.G.B. and L.L.B., and the next day they filed petitions with the court for
    adoption of the children. At a hearing on the petitions, the probate court dismissed their
    petitions for adoption, finding they had not satisfied the preadoption placement
    requirements of R.C. 5103.16. The probate court acknowledged that Mr. and Mrs. Bell
    1
    Appellees, Brian Burke and Patricia Burke, did not file a brief or otherwise make an appearance in this
    appeal.
    Adams App. Nos. 11CA919 & 11CA920                                                             2
    were the guardians of the children, but relying on the Ohio Supreme Court’s holding In
    re Adoption of J.A.S., held that they were not exempt from the requirements of R.C.
    5103.16. This appeal followed.
    II. ASSIGNMENT OF ERROR
    {¶3}   The Bells present one assignment of error for our review:
    “THE TRIAL COURT WRONGFULLY DISMISSED THE APPLICANTS-
    APPELLANTS PETITIONS FOR ADOPTION OF MINOR[S] BY CLAIMING THE
    PROSPECTIVE ADOPTIVE CHILDREN MUST BE PLACED WITH
    APPELLANTS, WHO ARE THE GUARDIANS, IN ACCORDANCE WITH R.C.
    5103.16 BEFORE THEY CAN PROCEED WITH THEIR PETITIONS FOR
    ADOPTION.”
    III. LEGAL STANDARD
    {¶4}    The interpretation of a statute is a question of law that we review de novo,
    without deference to the trial court’s determination. In re Adoption of B.M.W., 4th Dist.
    No. 10CA899, 
    2010-Ohio-5214
    , at ¶13. “The primary goal of statutory construction is to
    ascertain and give effect to the legislature’s intent in enacting the statute. * * * The court
    must first look to the plain language of the statute itself to determine the legislative
    intent. * * * We apply a statute as it is written when its meaning is unambiguous and
    definite. * * * An unambiguous statute must be applied in a manner consistent with the
    plain meaning of the statutory language.” (Internal quotation marks omitted.) 
    Id.,
     quoting
    State v. Lowe, 
    112 Ohio St.3d 507
    , 
    861 N.E.2d 512
    , 
    2007-Ohio-606
    , at ¶9. In other
    words, “[c]ourts do not have the authority to ignore the plain and unambiguous language
    of a statute under the guise of statutory interpretation, but must give effect to the words
    Adams App. Nos. 11CA919 & 11CA920                                                          3
    used.” (Internal quotation marks omitted.) 
    Id.
     If the meaning of a statute is
    unambiguous and definite, it must be applied as written and no further interpretation is
    necessary. Mathews v. Waverly, 4th Dist. No. 08CA787, 
    2010-Ohio-347
    , at ¶23, citing
    State ex rel. Savarese v. Buckeye Local School Dist. Bd. of Edn. (1996), 
    74 Ohio St.3d 543
    , 545, 
    660 N.E.2d 463
    .
    IV. ANALYSIS
    {¶5}   Mr. and Mrs. Bell assert that the probate court erred by dismissing their
    petitions for adoption of T.G.B. and L.L.B. and finding they must satisfy the preadoption
    placement requirements of R.C. 5103.16(D) before proceeding with the adoptions.
    They argue that the probate court misinterpreted the Supreme Court’s holding in In re
    Adoption of J.A.S., 
    126 Ohio St.3d 145
    , 
    2010-Ohio-3270
    , 
    931 N.E.2d 554
    , and as the
    guardians of the children they are exempt from the preadoption placement requirements
    of R.C. 5103.16. We agree.
    {¶6}   R.C. 5103.16 sets forth the procedure for placing a child for adoption
    when no public agency, certified institution or association, or foreign custodian is
    involved. In re Adoption of J.A.S., 
    supra, at ¶7
    . R.C. 5103.16(D) states in relevant part:
    “(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;
    Adams App. Nos. 11CA919 & 11CA920                                                        4
    “(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.”
    {¶7}   R.C. 5103.16(E) provides, however, “[t]his section does not apply to an
    adoption by a stepparent, a grandparent, a grandparent’s husband or wife, or a
    guardian.”
    {¶8}   In In re Adoption of J.A.S., the Ohio Supreme Court found that “the
    procedures in R.C. 5103.16(D) for placing a child for purposes of adoption with a
    prospective adoptive parent apply even when the child has been living with the
    prospective adoptive parents pursuant to an award of legal custody by order of the
    juvenile court.” In re Adoption of J.A.S., 
    supra, at ¶22
    . The Court noted that “[t]he
    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.” (Internal
    quotation marks omitted.) Id. at ¶13.
    {¶9}   However, in distinguishing between legal custodians and guardians, the
    Court emphasized that “R.C. 5103.16 does not apply in all private adoptions. The
    General Assembly has expressly excluded adoptions by a stepparent, a grandparent, or
    a guardian. Stepparents and grandparents have a family or biological connection to the
    birth parents, and a guardian is subject to ongoing court supervision and may exercise
    Adams App. Nos. 11CA919 & 11CA920                                                            5
    rights over a child only pursuant to a court order. * * * Thus, a private placement with
    any of those persons imposes less need for protection.” (Citation omitted.) Id. at ¶14.
    {¶10} In rejecting an argument that legal custodians need not comply with the
    preplacement procedures, the Court concluded that “R.C. 5103.16(D) makes no
    exception for a legal custodian. A legal custodian has more independent discretion over
    the child, and there is no ongoing judicial supervision or oversight. The biological
    parents’ residual rights have not been terminated. The General Assembly when
    amending R.C. 5103.16(D) did not exclude a legal custodian from the statute’s
    application, and we will not judicially add such an exception to the statute.” Id. at ¶15.
    {¶11} Citing the Supreme Court’s rationale in J.A.S. of the need for judicial
    control in the private placement context, the trial court here expressed the concern that
    the parents of the child must appear before the court and/or request placement.
    However, looking at the plain language of R.C. 5103.16, we find that the language is
    clear and unambiguous. Subsection (E) of the statute clearly exempts guardians, along
    with stepparents and grandparents, from the statute’s preadoption placement
    requirements. As the Court in J.A.S. pointed out, a private placement with the children’s
    guardian as distinguished from a legal custodian creates less need for protection
    because a guardian is subject to continuing court supervision. Because the journal
    entry from which Mr. and Mrs. Bell appeal affirms that the Probate Court of Adams
    County appointed them “guardians of the person and estate” of both children, we find
    that they are not subject to the preadoption placement requirements set forth in R.C.
    5103.16(D).
    Adams App. Nos. 11CA919 & 11CA920                                                 6
    {¶12} Accordingly, we sustain Mr. and Mrs. Bell’s assignment of error and
    reverse the judgment of the Probate Court of Adams County.
    JUDGMENT REVERSED
    AND CAUSE REMANDED.
    Adams App. Nos. 11CA919 & 11CA920                                                          7
    JUDGMENT ENTRY
    It is ordered that the JUDGMENT IS REVERSED and that the CAUSE IS
    REMANDED. Appellees shall pay the costs.
    The Court finds there were reasonable grounds for this appeal.
    It is ordered that a special mandate issue out of this Court directing the Adams
    County Court of Common Pleas, 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. Exceptions.
    Abele, J. & McFarland, J.: Concur in Judgment and Opinion.
    For the Court
    BY: ________________________________
    William H. Harsha, Presiding 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.
    

Document Info

Docket Number: 11CA919, 11CA920

Judges: Harsha

Filed Date: 12/22/2011

Precedential Status: Precedential

Modified Date: 4/17/2021