In re Adoption of M.L.K. , 2023 Ohio 3184 ( 2023 )

[Cite as In re Adoption of M.L.K., 2023-Ohio-3184.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
IN THE MATTER OF :
THE ADOPTION OF :
M.L.K., A MINOR : C.A. No. 29748
:
: Trial Court Case No. 2022 ADP 00053
:
: (Appeal from Common Pleas Court-
: Probate Division)
:
:
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OPINION
Rendered on September 8, 2023
...........
RICHARD L. KAPLAN, Attorney for Appellant
MICHAEL A. SHEETS, Attorney for Appellee
.............
HUFFMAN, J.
{¶ 1} The biological father of M.L.K. (“Father”) appeals from an order of the probate
court that granted summary judgment in favor of the child’s step-father (“Petitioner”) on a
petition to adopt M.L.K. Father waived his constitutional challenges to R.C. 3107.07(K),
which governs when consent to an adoption is required, by not raising them in the probate
court. The notice of the petition for adoption complied with R.C. 3107.11(B) by informing
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Father of the need to object and to appear at the hearing, and it was not misleading in
that respect. A genuine issue of material fact existed as to whether Father was served
with notice of the hearing on the petition for adoption, which precluded summary
judgment; the matter is remanded to the probate court for further proceedings consistent
with this opinion.
Procedural History
{¶ 2} Petitioner filed a petition to adopt M.L.K. on May 4, 2022. At the time, M.L.K.
resided with her mother and Petitioner. The petition asserted that Father’s consent to
the adoption was not required because he had “failed without justifiable cause to provide
more than de minimis contact with the minor for a period of at least one year immediately
preceding the filing of the adoption petition or the placement of the minor in the home of
the petitioner.” The probate court set a hearing on the petition for September 16, 2022,
and ordered notice of the hearing to be served on Father not less than 20 days before
the hearing date.
{¶ 3} With the petition, Petitioner’s attorney filed instructions for service, which
stated: “Please issue service of the Petition for Adoption of Minor by certified mail, return
receipt requested,” upon Father The same day, the deputy clerk filed a “Notice of
Hearing on Petition for Adoption” (Form 18.2), which contained a certification by the
deputy clerk that the notice was sent by certified mail to Father at a Kettering address.
{¶ 4} A May 25, 2022 entry on the probate court’s docket reflects successful
service upon someone at Father’s address via FedEx. The FedEx document indicated
that notice of the hearing was delivered at 11:21 a.m. on May 9, 2022; it was signed for
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by “A. M.,” and the courier typed that it was delivered to “A. Michael. (Father’s initials
are A.M., and his middle name is Michael.) On October 3, 2022, Father filed a pro se
document in which he asserted that he objected to the adoption.
{¶ 5} On December 19, 2022, Petitioner filed a motion for summary judgment; he
argued that the adoption petition had been served on Father on May 25, 2022, and that
Father had not filed his objection within the 14-day period for objections provided by R.C.
3107.07(K).1 Petitioner argued that Father’s consent to the adoption was accordingly
not required.
{¶ 6} On January 18, 2023, Father, represented by counsel, filed a motion
requesting additional time to respond to the motion for summary judgment. Counsel
argued that Father had not been aware of the motion for summary judgment until January
17, 2023. The court granted the motion for additional time to respond.
{¶ 7} Father filed a response on February 10, 2023, asserting that there were
“three issues of material fact” which rendered the motion for summary judgment “fatally
flawed.” First, Father asserted that he had not been properly served with notice of the
adoption petition, so the probate court lacked personal jurisdiction over him. Father
argued that Petitioner’s instructions for service mandated the clerk to serve the petition
via certified mail, return receipt requested. He also argued that the FedEx printout
Petitioner relied upon for proof of service had an illegible signature and that the signature
was a forgery. Second, he asserted that, without valid service, the statutory 14-day
1
Pursuant to R.C. 3107.07(K), consent to adoption is not required of “* * * [A] juvenile
court, agency, or person given notice of the petition pursuant to [R.C. 3107.11(A)(1)] that
fails to file an objection to the petition within fourteen days after proof is filed pursuant to
division (B) of that section that the notice was given.”
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objection period under R.C. 3107.07(K) had not begun. Third, he argued that equity
required that his objection be deemed timely filed. Father filed a supporting affidavit
which asserted that he had not been at home on May 9, 2022, and that he had not signed
the FedEx document. His wife filed an affidavit which stated that she had not been home
on May 9, 2022, and had not signed the FedEx document, and that there were no other
people at their home on May 9, 2022.
{¶ 8} On February 16, 2023, the probate court granted summary judgment in favor
of Petitioner. The court concluded Father had had until June 8, 2022, to file objections
to the petition for adoption, and that his October 3, 2022 objection had been filed outside
of the time allowed by R.C. 3107.07(K).
Constitutional Issues
{¶ 9} Father asserts four assignments of error. His first assignment of error is:
[FATHER] WAS DENIED HIS SUBSTANTIVE AND PROCEDURAL DUE
PROCESS RIGHTS PURSUANT TO THE FIFTH AND FOURTEENTH
AMENDMENTS TO THE U.S. CONSTITUTION AND ARTICLE I, SECTION
16 OF THE OHIO CONSTITUTION WHEN THE TRIAL COURT GRANTED
SUMMARY JUDGMENT BY HOLDING [FATHER] HAD TO FILE AN
OBJECTION FOURTEEN (14) DAYS AFTER SERVICE.
{¶ 10} Father asserts that the “notice pursuant to R.C. 3107.07(K)” violated his
substantive due process rights under U.S. Supreme Court case law and the procedural
due process clauses of the United States Constitution and Ohio Constitution. He asserts
that the statute is unconstitutional “on its face and as applied.”
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{¶ 11} Father argues that the notice the court sent did not define specific terms,
such as “objection,” and that the meaning of the phrase “fourteen days after proof of
service of notice of the filing of the petition and of the time and place of hearing is given
to you” on the notice was unclear to him. Father claims that the notice did not make clear
when his objection should be filed, how to file the objection, or how to obtain information
regarding the proper filing of objections. Father argues that the notice was “misleading”
and contradicted itself by suggesting that he could either object or appear to assert his
objection. He cites R.C. 3107.11.
{¶ 12} Father did not raise any constitutional challenges to R.C. 3107.07(K) or
challenge the allegedly ambiguous nature of the notice in his response to Petitioner’s
motion for summary judgment. Rather, as set forth above, he asserted that there were
three issues of material fact “which rendered the motion fatally flawed,” namely that
service of the notice was improper, that without proper service, the 14-day period for
objections had not begun to run, and that equity required that his objection be deemed
timely.
{¶ 13} Regarding constitutional challenges, we have previously addressed the
effect of a failure to raise the issue in the trial court:
The Supreme Court of Ohio has held that “[f]ailure to raise at the trial
court level the issue of the constitutionality of a statute or its application,
which issue is apparent at the time of trial, constitutes a waiver of such issue
and a deviation from this state's orderly procedure, and therefore need not
be heard for the first time on appeal.” [State v. Awan, 22 Ohio St.3d 120,
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489 N.E.2d 277 (1986), syllabus]. “The general rule is that ‘an appellate
court will not consider any error which counsel for a party complaining of
the trial court's judgment could have called but did not call to the trial court's
attention at a time when such error could have been avoided or corrected
by the trial court.’ Likewise, ‘[c]onstitutional rights may be lost as finally as
any others by a failure to assert them at the proper time.’ Accordingly, the
question of the constitutionality of a statute must generally be raised at the
first opportunity and * * * this means in the trial court.” Id. at 122, * * *.
State v. Brewer, 2d Dist. Montgomery No. 26153, 2015-Ohio-693, ¶ 35, quoting State v.
Thompson, 2d Dist. Montgomery No. 20359, 2004-Ohio-5802, ¶ 12.
{¶ 14} Father failed to assert his constitutional challenges in the trial court, and the
issues therefore are waived and cannot be raised for the first time on appeal. As we
noted in Brewer, we “recognize that even where waiver is clear, this court reserves the
right to consider constitutional challenges to the application of statutes in specific cases
of plain error or where the rights and interests involved may warrant it. Id. at ¶ 36, citing
In re M.D., 38 Ohio St.3d 149, 527 N.E.2d 286 (1988), syllabus. Here, for the reasons
discussed throughout, consideration of Father’s constitutional challenges is not
warranted.
{¶ 15} Regarding the alleged misleading and contradictory nature of the notice,
even if we were to construe Father’s response to the motion to summary judgment to
raise this issue, Father’s argument is unpersuasive; the notice was clear regarding
objections and the period within which objections had to be filed.
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{¶ 16} R.C. 3107.11(B) governs notice and states:
Upon the filing of a petition for adoption that alleges that a parent has
failed without justifiable cause to provide more than de minimis contact with
the minor or to provide for the maintenance and support of the minor, the
clerk of courts shall send a notice to that parent with the following language
in boldface type and in all capital letters:
“A FINAL DECREE OF ADOPTION, IF GRANTED, WILL RELIEVE YOU
OF ALL PARENTAL RIGHTS AND RESPONSIBILITIES, INCLUDING THE
RIGHT TO CONTACT THE MINOR, AND, EXCEPT WITH RESPECT TO
A SPOUSE OF THE ADOPTION PETITIONER AND RELATIVES OF THAT
SPOUSE, TERMINATE ALL LEGAL RELATIONSHIPS BETWEEN THE
MINOR AND YOU AND THE MINOR'S OTHER RELATIVES, SO THAT
THE MINOR THEREAFTER IS A STRANGER TO YOU AND THE
MINOR'S FORMER RELATIVES FOR ALL PURPOSES, WITH THE
EXCEPTION OF DIVISION (A)(1)(b) OF SECTION 3107.15 OF THE
REVISED CODE. IF YOU WISH TO CONTEST THE ADOPTION, YOU
MUST FILE AN OBJECTION TO THE PETITION WITHIN FOURTEEN
DAYS AFTER PROOF OF SERVICE OF NOTICE OF THE FILING OF THE
PETITION AND OF THE TIME AND PLACE OF HEARING IS GIVEN TO
YOU. IF YOU WISH TO CONTEST THE ADOPTION, YOU MUST ALSO
APPEAR AT THE HEARING. A FINAL DECREE OF ADOPTION MAY BE
ENTERED IF YOU FAIL TO FILE AN OBJECTION TO THE ADOPTION
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PETITION OR APPEAR AT THE HEARING.”
{¶ 17} The notice sent to Father in this case contained the language of R.C.
3107.11(B) verbatim.
{¶ 18} The Third District has observed that the sentence which states that a final
decree of adoption may be entered if one fails to file an objection to the adoption petition
or appear at the hearing “could be ambiguous if read without reference to the rest of the
notice.” In re Adoption of N.F., 2019-Ohio-5380, 151 N.E.3d 119, ¶ 27 (3d Dist.). But it
ultimately rejected the argument that there was any ambiguity:
* * * “However, we may not read individual words of a statute in
isolation; rather, we are obligated ‘to evaluate a statute “as a whole and
giv[e] such interpretation as will give effect to every word and clause in it.” ’ ”
New Riegel Local School Dist. Bd. of Edn. v. Buehrer Group Architecture &
Eng., Inc., 157 Ohio St.3d 164, 2019-Ohio-2851, 133 N.E.3d 482, ¶ 39,
quoting Boley v. Goodyear Tire & Rubber Co., 125 Ohio St.3d 510, 2010-
Ohio-2550, 929 N.E.2d 448, ¶ 21, quoting State ex rel. Myers v. Spencer
Twp. Rural School Dist. Bd. of Edn., 95 Ohio St. 367, 373, 116 N.E. 516(1917). “A court that is reviewing a statute * * * for ambiguity should direct
its ‘attention * * * beyond single phrases, and * * * should consider, in proper
context, all words used by the [General Assembly] in drafting [the statute]
with a view to its place in the overall [statutory] scheme.’ ” Matter of
Adoption of G.M.B., 4th Dist. Pickaway Nos. 19CA12 and 19CA13, 2019-
Ohio-3884, ¶ 17, quoting D.A.B.E., Inc. v. Toledo-Lucas Cty. Bd. of Health,
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96 Ohio St.3d 250, 2002-Ohio-4172, 773 N.E.2d 536, In 19.
The second sentence of the statutory notice states that an individual
wanting to contest an adoption must file an objection within 14 days
following proof of service of notice of the filing of the petition and of the time
and place of hearing. R.C. 3107.11(B). The third sentence then states,
“If you wish to contest the adoption, you must also appear at the hearing.”
(Emphasis added.) Id. The phrase “must also” indicates that an
individual wishing to contest an adoption has the additional mandatory
requirement of appearing at the hearing in addition to filing a timely
objection. When reading the sentences together, it is clear that an
individual wishing to contest an adoption has an obligation to both file a
timely objection and appear at the hearing. Thus, although the final
sentence of the statutory notice may be ambiguous if read in isolation from
the rest of the notice, when the statutory notice is read as a whole, the
reader can come to but one conclusion, and that is that to contest an
adoption, one must both file a timely objection to the adoption petition and
appear at the hearing.
Id. at ¶ 27-28.
{¶ 19} Like the Third District, the Twelfth District has also determined that the
notice on a biological father “which specifically contained language identical to that found
in the second and third sentences of the statutory notice contained in R.C. 3107.11(B),
‘clearly informed’ the father that he was required to file an objection within 14 days of
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receiving the adoption notice.” Id. at ¶ 29, citing In re T.L.S., 12th Dist. Fayette No.
CA2012-02-004, 2012-Ohio-3129. See also In re A.N., 2013-Ohio-3871, 997 N.E.2d
1244, ¶ 33 (3d Dist.).
{¶ 20} Father waived his constitutional challenges, and the notice of hearing
complied with the language set forth in R.C. 3107.11(B) and was not misleading or
contradictory. Father’s first assignment of error is accordingly overruled.
Service
{¶ 21} We next consider Father’s second and third assignments of error together.
They are as follows:
THE DECISION OF THE TRIAL COURT DOES NOT FOLLOW THE
OHIO RULES OF CIVIL PROCEDURE AND THE MONTGOMERY
COUNTY PROBATE RULES OF PROCEDURE AS FACTS ARE
MISCONSTRUED. AS A CONSEQUENCE THE OPINION OF THE
TRIAL COURT CARVES OUT AN EXCEPTION THAT IT DOES NOT
FOLLOW ITS OWN RULES AND RULES OF CIVIL PROCEDURE[,]
THEREFORE VIOLATING [FATHER’S] RIGHTS.
R.C. 3107.07K DOES NOT APPLY WHEN * * * THERE IS NO
SERVICE.
{¶ 22} The standard for summary judgment is well settled:
Pursuant to Civ.R. 56(C), summary judgment is proper when (1)
there is no genuine issue as to any material fact, (2) the moving party is
entitled to judgment as a matter of law, and (3) reasonable minds, after
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construing the evidence most strongly in favor of the nonmoving party, can
only conclude adversely to that party. Zivich v. Mentor Soccer Club, Inc.,
82 Ohio St.3d 367, 369-370, 696 N.E.2d 201 (1998). The moving party
carries the initial burden of affirmatively demonstrating that no genuine
issue of material fact remains to be litigated. Mitseff v. Wheeler, 38 Ohio
St.3d 112, 115, 526 N.E.2d 798 (1988). To this end, the movant must be
able to point to evidentiary materials of the type listed in Civ.R. 56(C) that a
court is to consider in rendering summary judgment. Dresher v. Burt, 75
Ohio St.3d 280, 292-293, 662 N.E.2d 264 (1996). The substantive law of
the claim or claims being litigated determines whether a fact is “material.”
Perrin v. Cincinnati Ins. Co., 2020-Ohio-1405, 153 N.E.3d 832, ¶ 29 (2d
Dist.).
Once the moving party satisfies its burden, the nonmoving party may
not rest upon the mere allegations or denials of the party's pleadings.
Dresher at 293; Civ.R. 56(E). Rather, the burden then shifts to the
nonmoving party to respond, with affidavits or as otherwise permitted by
Civ.R. 56, setting forth specific facts that show that there is a genuine issue
of material fact for trial. Dresher at 293. Throughout, the evidence must
be construed in favor of the nonmoving party. Id.We review the trial court's ruling on a motion for summary judgment
de novo. Schroeder v. Henness, 2d Dist. Miami No. 2012-CA-18, 2013-
Ohio-2767, ¶ 42. De novo review means that this court uses the same
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standard that the trial court should have used, and we examine all the Civ.R.
56 evidence, without deference to the trial court, to determine whether, as
a matter of law, no genuine issues exist for trial. Ward v. Bond, 2d Dist.
Champaign No. 2015-CA-2, 2015-Ohio-4297, ¶ 8.
Budz v. Somerfield, 2d Dist. Montgomery No. 29550, 2023-Ohio-155, ¶ 24-26.
{¶ 23} Here, the trial court specifically concluded that service of the notice of the
hearing had been proper. The court indicated that Father’s argument regarding improper
service ignored Loc.R. 78.3(E)(2) of the Montgomery County Court of Common Pleas,
Probate Division (“Montgomery Probate Loc.R.”), which provides that the “default method
of service by the clerk is by FedEx Corporation.” The probate court also concluded that
Father’s argument that service by FedEx was insufficient was “defeated” by Civ.R.
4.1(A)(1)(b), which permits service by a commercial carrier service requiring a signed
receipt.
{¶ 24} The probate court further concluded as follows regarding service:
Father’s entire argument seems to be based upon a false
impression. It is not necessary that the notice be delivered directly to
Father. It is sufficient that the notice be delivered to Father’s place of
residence, and that the carrier “return a signed receipt showing to whom
delivered, date of delivery, and address where delivered.” Civ.R.
4[.1](A)(1)(b). Father admits in his Affidavit that he lives at [a specific
Kettering address]. This is the same address listed in the Return of Service
provided by Fed Ex. The Return of Service states that the Notice was
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signed for by someone identified as “A.[M.]”. It does not claim that it was
signed for by Father, just someone with the same given name and first initial
as Father. Thus, Father’s Affidavit and Father’s wife’s Affidavit that they
did not sign for the Notice are insufficient to establish that service was not
proper. Further, the self-serving affidavits are not credible.
Similarly, Father’s attack on the Court’s procedure for effecting
service is unavailing. The procedures the Court uses are authorized by
Ohio Civ.R. 4.1(A)(1)(b) and Civ.R. 4(A)(1)(b).2 The facts of this case also
comply with Civ.R. 73(E), which may be relevant. Father was also not the
party requesting service and how service is made – it was Petitioner’s
counsel. For this reason, Father has no standing to object to the method
used by the Court. Thus[,] any argument that the Court was required to
effect service by certified mail, not Fed Ex, is unavailing.
(Footnote added.)
{¶ 25} Citing FedEx’s website, the court discussed FedEx’s policy for deliveries,
noting that the policy did not require a signature from the person identified as the recipient.
The court noted that the FedEx return of service herein established that a person at a
Kettering address signed for the delivery, not that Father did so, which was sufficient to
meet the requirements of Civ.R. 4 and 73. The court concluded that Father’s argument
that the court did not have proper jurisdiction over him lacked merit.
{¶ 26} Father argues on appeal that the probate court’s opinion “ignore[d] the
2
Civ.R. 4 governs the issuance of summons upon the filing of a complaint. It is divided
into section (A)-(F), without subparts, and there is no “Civ.R.4(A)(1)(b).”
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Clerk’s records which contain the dispositive facts,” because it focused on the parts of the
Civil and Local Probate Rules which state that a common carrier is the default method of
service. Father asserts that default service “is subordinate to counsel’s filing of
Instructions for Service” by certified mail return receipt requested. According to Father,
Montgomery Probate Loc.R. 78.3(E)(2) and Civ.R. 4.1, “as a matter of law, mandated the
Probate Clerk serve the documents by U.S. Certified Mail Return Receipt Requested and
not by default FEDEX.” Father asserts that the clerk’s office ignored the service order
by Petitioner’s attorney.
{¶ 27} Father further asserts that the signature on the FedEx document was a
forgery. He directs our attention to his and his wife’s affidavits. Father argues that a
forged signature constituted “a filing of fraudulent service” and that improper service
“equals no personal jurisdiction.” Accordingly, he argues that the 14-day period for
objections was not triggered. Father asserts that delivery by certified mail, return receipt
requested, “creates a situation where delivery is either made or service is returned to the
court,” while the “FedEx delivery process creates a situation where forgery and fraud can
be used.” Father suggests that a FedEx driver may have forged his name.
{¶ 28} Civ.R. 4.1 governs process and methods of service. Civ.R. 4.1(A)(1)(a)
governs service by United States certified or express mail. It provides:
* * * Evidenced by return receipt signed by any person, service of
any process shall be by United States certified or express mail unless
otherwise permitted by these rules. The clerk shall deliver a copy of the
process and complaint or other document to be served to the United States
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Postal Service for mailing at the address set forth in the caption or at the
address set forth in written instructions furnished to the clerk as certified or
express mail return receipt requested, with instructions to the delivering
postal employee to show to whom delivered, date of delivery, and address
where delivered.
{¶ 29} Civ.R. 4.1(A)(1)(b), upon which the trial court relied, governs service by
commercial carrier service. It provides:
* * * Unless the serving party furnishes written instructions to the clerk
that service be made pursuant to Civ.R. 4.1(A)(1)(a), the clerk may make
service of any process by a commercial carrier service utilizing any form of
delivery requiring a signed receipt. The clerk shall deliver a copy of the
process and complaint or other document to be served to a commercial
carrier service for delivery at the address set forth in the caption or at the
address set forth in written instructions furnished to the clerk, with
instructions to the carrier to return a signed receipt showing to whom
delivered, date of delivery, and address where delivered.
{¶ 30} Montgomery Probate Loc.R. 78.3(E)(2), upon which the probate court also
relied, governs service of summons in probate matters and states: “Civ.R. 4 through 4.7
shall apply in all probate proceedings requiring service of summons, unless otherwise
provided by law. See Civ.R. 73(D).”
{¶ 31} Civ.R. 73 governs the probate division of the court of common pleas, and it
distinguishes between the service of summons and the service of notice. Civ.R. 73(C)
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governs service of summons and provides that “Civ.R. 4 through 4.6 shall apply in any
proceeding in the probate division of the court of common pleas requiring service of
summons.”
{¶ 32} Civ.R. 73(E), on the other hand, specifically governs service of notice. It
provides:
In any proceeding where any type of notice other than service of summons
is required by law or deemed necessary by the court, and the statute
providing for notice3 neither directs nor authorizes the court to direct the
manner of its service, notice shall be given in writing and may be served on
behalf of any interested party without court intervention by one of the
following methods:
***
(3) By United States certified or express mail return receipt requested, or by
a commercial carrier service utilizing any form of delivery requiring a signed
receipt, addressed to the person to be served at the person’s usual place
of residence with instructions to the delivering postal employee or to the
carrier to show to whom delivered, date of delivery, and address where
delivered, provided that the certified or express mail envelope or return of
the commercial carrier is not returned showing failure of delivery[.]
{¶ 33} We conclude that the issue of service is governed by Civ.R. 73(E)(3) and
not by Civ.R. 4.1(A)(1)(b) and Montgomery Probate Loc.R. 78.3(E)(2). Civ.R. 73(E) is
3
See R.C. 3107.11, discussed below. Section (C) of that rule requires that “[a]ll notices
required under this section shall be given as specified in the Rules of Civil Procedure.”
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specific to the service of notice in the probate court. While we conclude that service via
FedEx was proper under these circumstances, we further conclude that the affidavits of
Father and his wife created a genuine issue of material fact as to whether service was
actually completed on Father, requiring that the probate court conduct a hearing and
determine whether service of the notice was perfected on Father Although the probate
court’s docket reflects successful service upon someone at Father’s address, he and his
wife averred that they were away from their home at the time of service, and Father”s wife
averred that no one else was at their home on May 9, 2022, at 11:21 a.m. The probate
court concluded that the affidavits attached to Father’s memorandum in opposition to the
motion for summary judgment lacked credibility, but “it is well established that the
determination of credibility is beyond the province of a summary judgment proceeding.”
Bank One, Dayton, NA v. Barnes, 2d Dist. Montgomery No. 14925, 1995 WL 783666, *3,
(Dec. 20, 1995). Having determined that a genuine issue of material fact existed, we
conclude that the trial court erred in granting summary judgment in favor of Petitioner.
{¶ 34} Father’s second and third assignments of error are overruled as to the
method of service of the notice, and they are sustained as to the grant of summary
judgment in favor of Petitioner. The trial court must conduct a hearing on the issue of
whether Father was properly served with notice as required by law.
Equity
{¶ 35} Father’s fourth assignment of error is as follows:
EQUITY DEMANDS THAT [FATHER] BE TREATED FAIRLY.
{¶ 36} Having found that a genuine issue of material fact existed and that the trial
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court erred in granting Petitioner’s motion for summary judgment, we need not consider
the merits of Father’s fourth assignment of error.
{¶ 37} The judgment of the trial court is reversed, and the matter is remanded for
further proceedings.
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TUCKER, J. and EPLEY, J., concur.