In re Adoption of R.M.T. , 2018 Ohio 1691 ( 2018 )

[Cite as In re Adoption of R.M.T., 2018-Ohio-1691.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
WARREN COUNTY
IN THE MATTER OF THE :
ADOPTION OF: CASE NOS. CA2017-12-177
: CA2017-12-178
R.M.T.
: OPINION
4/30/2018
:
:
APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS
PROBATE DIVISION
Case Nos. 2015 5005 and 2016 5055
P.M.W., Allen Correctional Institution, P.O. Box 4501, 2238 N. West Street, Lima, Ohio
45802, appellant, pro se
Michael J. Davis, 8567 Mason-Montgomery Road, P.O. Box 1025, Mason, Ohio 45040, for
appellee, J.T.
HENDRICKSON, P.J.
{¶ 1} Appellant, P.M.W., appeals a decision of the Warren County Court of Common
Pleas, Probate Division, granting the petition for adoption of appellant's son, R.M.T., to
petitioner-appellee, J.T Appellant also appeals the probate court's denial of his motion for
the appointment of counsel, his motion to have a transcript prepared at the state's expense,
and his motion to stay the final decree of adoption pending appeal. For the reasons set forth
below, we affirm in part, reverse in part, and remand the matter to the probate court for
further proceedings.
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{¶ 2} Appellant is the biological father of R.M.T., and is currently incarcerated in an
Ohio prison. Appellee, R.M.T.'s stepfather, filed a petition to adopt the child on January 28,
2015, contending that appellant's consent to the adoption was not required because
appellant (1) failed to register as the child's putative father, (2) failed to have more than de
minimis contact with the child for a period of at least one year immediately preceding the
filing of the adoption petition, and (3) failed without justifiable cause to provide for the
maintenance and support of the minor for a period of at least one year immediately preceding
the filing of the petition. The probate court decided to bifurcate the determinations of whether
parental consent was required and whether the adoption was in the best interest of the child.
After several procedural delays, including a paternity test which established appellant as the
child's biological father and the filing of a second adoption petition, the court held a hearing
on the issue of whether appellant's consent to the adoption was required. On December 12,
2016, the probate court concluded that appellant's consent was not required as appellant had
failed without justifiable cause to provide more than de minimis contact with the child in the
year immediately preceding appellee's filing of the adoption petition. Appellant appealed,
and this court affirmed the probate court's determination that appellant's consent was not
required in In re Adoption of R.M.T., 12th Dist. Warren Nos. CA2016-12-107, CA2017-05-
056, and CA2017-05-057, 2017-Ohio-8639.
{¶ 3} Thereafter, on December 6, 2017, the probate court held a hearing to
determine if adoption was in R.M.T.'s best interest. The court concluded the adoption was in
the child's best interest and on December 6, 2017, granted appellee's petition and filed a final
decree of adoption.
{¶ 4} On December 27, 2017, appellant filed (1) a motion for the appointment of
counsel, requesting the probate court appoint counsel to represent him on appeal, (2) a
motion to have the transcript of the December 6, 2017 hearing prepared at the state's
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expense, and (3) a motion to stay the final decree of adoption while the case was appealed.
The probate court denied appellant's motions on December 28, 2017.
{¶ 5} Appellant appealed, raising five assignments of error for our review. For ease
of discussion, we will address appellant's assignments of error out of order.
{¶ 6} Assignment of Error No. 4:
{¶ 7} THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANT
WHEN THE TRIAL COURT DENIED [APPELLANT'S] MOTION FOR APPOINTMENT OF
COUNSEL AT STATE'S EXPENSE.
{¶ 8} In his fourth assignment of error, appellant argues the probate court erred in
denying his motion for the appointment of appellate counsel. We disagree. The present
case was initiated by a stepparent seeking adoption of a child, not by the state seeking
termination of parental rights. As this court has previously stated, "an indigent parent in an
adoption proceeding is not entitled to appointed counsel." In re Adoption of R.M.T., 2017-
Ohio-8639 at ¶ 20, citing In re Adoption of Drake, 12th Dist. Clermont No. CA2002-08-067,
2003-Ohio-510. See also Lassiter v. Dept. of Social Services., 452 U.S. 18, 101 S. Ct. 2153
(1981) (recognizing that the constitution does not require the appointment of counsel in every
proceeding involving the termination of parental rights). Appellant's fourth assignment of
error is therefore overruled.
{¶ 9} Assignment of Error No. 5:
{¶ 10} THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANT
WHEN THE TRIAL COURT DENIED [APPELLANT'S] MOTION FOR TRANSCRIPTS AT
STATE'S EXPENSE.
{¶ 11} In his fifth assignment of error, appellant argues the probate court erred in
denying his motion to have a transcript of the December 6, 2017 hearing provided at the
state's expense. We disagree. As we stated in appellant's prior appeal, "adoption is a civil
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proceeding, and it is well-settled that civil litigants are not entitled to free trial transcripts on
appeal." In re Adoption of R.M.T., 2017-Ohio-8639 at ¶ 17, citing In re Adoption of C.M.H.,
4th Dist. Hocking No. 07CA23, 2008-Ohio-1694, ¶ 20. App.R. 9 provides indigent litigants
with a cost-effective alternative to purchasing a trial transcript. The Ohio Supreme Court has
recognized that in civil cases, "[t]he narrative statement provided for in App.R. 9(C) is an
available, reliable alternative to an appellant unable to bear the cost of a transcript." State ex
rel. Motley v. Capers, 23 Ohio St. 3d 56, 58 (1986). We therefore find no merit to appellant's
argument that the probate court erred in denying his request for a transcript. His fifth
assignment of error is overruled.
{¶ 12} Assignment of Error No. 3:
{¶ 13} THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANT
WHEN THE TRIAL COURT DENIED [APPELLANT'S] MOTION FOR STAY.
{¶ 14} In his third assignment of error, appellant argues the probate court erred in
denying his motion to stay the judgment granting the final decree of adoption. Appellant fails,
however, to cite to any authority or set forth any argument in support of his assigned error.
Pursuant to App.R. 16(A)(7), an appellant's brief must include "[a]n argument containing the
contentions of the appellant with respect to each assignment of error presented for review
and the reasons in support of the contentions, with citations to the authorities, statutes, and
parts of the record on which appellant relies." A court of appeals "may disregard an
assignment of error presented for review if the party raising it * * * fails to argue the
assignment separately in the brief, as required under App.R. 16(A)." App.R. 12(A)(2). The
duty is on the appellant, not the appellate court, to construct the legal arguments necessary
to support the appellant's assignments of error. Bond v. Canal Winchester, 10th Dist.
Franklin No. 07AP-556, 2008-Ohio-945, ¶ 16. Further, it is not the duty of an appellate court
to search the record for evidence to support an appellant's argument as to an alleged error.
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Balog v. Balog, 12th Dist. Warren Nos. CA96-08-077, CA96-08-081, and CA96-09-086, 1997
Ohio App. LEXIS 2457, *15 (June 9, 1997). As appellant's brief does not contain specific
arguments in support of his assignment of error, we find that we may disregard his
assignment of error for failure to comply with App.R. 12(A)(2) and 16(A)(7). See Stewart v.
Vivian, 12th Dist. Clermont No. CA2015-05-039, 2016-Ohio-2892, ¶ 113.
{¶ 15} Assignment of Error No. 1:
{¶ 16} THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANT
WHEN THE TRIAL COURT FAILED TO HOLD A BEST INTEREST HEARING.
{¶ 17} In his first assignment of error, appellant argues the probate court failed to hold
a best-interest hearing before granting appellee's petition for adoption. Appellant disputes
that the December 6, 2017 hearing was a "best-interest hearing."
{¶ 18} "Before granting an adoption, the trial court must hear evidence as to whether
first, 'the required consents have been obtained or excused' and second, whether 'the
adoption is in the best interest of the person sought to be adopted.'" In re Walters, 112 Ohio
St.3d 315, 2007-Ohio-7, ¶ 5, quoting R.C. 3107.14(C). See also In re Adoption of Jordan, 72
Ohio App. 3d 638, 645 (12th Dist.1991). Although not required to do so, a trial court may hold
separate hearings for the consent and the best-interest portions of an adoption proceeding.
In re Walters at ¶ 21.
{¶ 19} In the present case, it is undisputed that the probate court bifurcated the
consent and best-interest proceedings. The issue of whether appellant's consent to the
adoption was required was resolved in December 2016, and was the subject of appellant's
prior appeal to this court. See In re Adoption of R.M.T., 2017-Ohio-8639. Appellant now
challenges whether the probate court actually held a best-interest hearing before granting
appellee's petition for adoption.
{¶ 20} Though appellant disputes whether the December 6, 2017 hearing was truly a
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best-interest hearing, he has failed to file a transcript of the proceeding. Where a party fails
to provide a transcript of a hearing, or an acceptable alternative as required by App.R. 9, this
court must presume the regularity of the proceedings. See In re J.F., 12th Dist. Butler No.
CA2016-08-174, 2017-Ohio-1492, ¶ 16. Our review of the issue is then limited to the record
on appeal, which in the present case includes the original papers and exhibits filed in the
probate court and a certified copy of the docket and journal entries prepared by the clerk.
See App.R. 9(A)(1). The record on appeal demonstrates that the probate court scheduled a
final hearing for December 6, 2017, a hearing took place on that date, and at the conclusion
of the hearing, the court entered a final decree of adoption in accordance with R.C.
3107.14(C), in which the court specifically stated that "[t]he Court finds * * * that the adoption
is in the best interest of the minor being adopted."1 Given the record before us, we find that a
best-interest hearing did take place on December 6, 2017. Appellant's first assignment of
error is, therefore, overruled.
{¶ 21} Assignment of Error No. 2:
{¶ 22} THE TRIAL COURT ERRED TO THE PREJUDICE FO THE APPELLANT
WHEN THE TRIAL COURT FAILED TO PROVIDE PROPER SERVICE NOTIFYING
[APPELLANT] THAT THE COURT SCHEDULED AND HELD A FINAL HEARING.
{¶ 23} In his second assignment of error, appellant argues that the probate court failed
1. R.C. 3107.14(C), provides, in relevant part as follows:
If, at the conclusion of the hearing, the court finds that the required consents
have been obtained or excused and that the adoption is in the best interest of
the person sought to be adopted as supported by the evidence, it may issue,
subject to division (C)(1)(a) of section 2151.86, section 3107.064, and division
(E) of section 3107.09 of the Revised Code, and any other limitations specified
in this chapter, a final decree of adoption or an interlocutory order of adoption,
which by its own terms automatically becomes a final decree of adoption on a
date specified in the order, which, except as provided in division (B) of section
3107.13 of the Revised Code, shall not be less than six months or more than
one year from the date the person to be adopted is placed in the petitioner’s
home, unless sooner vacated by the court for good cause shown.
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to give him the "required notice" that would have allowed him to make the appropriate
arrangements to participate in the December 6, 2017 hearing. Appellant contends that his
due process rights were violated by the court's failure to comply with R.C. 3107.11, as he did
not receive notice of the hearing until December 11, 2017 – five days after the hearing
concluded.
{¶ 24} "When, at the discretion of the court, separate hearings take place to address
the consent requirement and the best-interest requirement of R.C. 3107.14(C), notice of each
shall be given to the biological parent." In re Walters, 2007-Ohio-7 at paragraph three of the
syllabus. R.C. 3107.11 governs when a hearing on a petition for adoption must take place
and specifies who is entitled to notice of the hearing. It provides, in relevant part, as follows:
(A) After the filing of a petition to adopt an adult or a minor, the
court shall fix a time and place for hearing the petition. The
hearing may take place at any time more than thirty days after the
date on which the minor is placed in the home of the petitioner.
At least twenty days before the date of hearing, notice of the filing
of the petition and of the time and place of hearing shall be given
by the court to all of the following:
***
(2) A person whose consent is not required as provided by
division (A), (G), (H), or (I) of section 3107.07 of the Revised
Code and has not consented.
(Emphasis added.) R.C. 3107.11(A)(2). This statute, therefore, "requires service of
notification of the date and time of all hearings on a biological parent whose consent is
unnecessary under R.C. 3107.07(A)." In re Walters at ¶ 22.
{¶ 25} In the present case, the probate court scheduled the December 6, 2017 hearing
on November 27, 2017. Notice of the time and place of the hearing was sent to appellant by
regular mail on November 27, 2017 – a mere nine days before the hearing was scheduled to
take place. As R.C. 3107.11(A)(2) required at least 20-days' notice of the hearing, we find
that appellant was given insufficient notice of the December 6, 2017 best-interest hearing.
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{¶ 26} The right to raise a child is an "essential" and "basic" civil right of any parent. In
re Hayes, 79 Ohio St. 3d 46, 48 (1997). The right of a parent to the custody of his or her child
is a fundamental liberty interest. Troxel v. Granville, 530 U.S. 57, 65-66, 120 S. Ct. 2054
(2000). The fact that appellant's consent was not required for the adoption did not
automatically mean he approved of the adoption or that his input did not matter. Though the
probate court found that appellant's consent was not required, appellant continued to be the
natural father of the child, and he was entitled to an opportunity to participate in the
proceedings to show that the adoption was not in R.M.T.'s best interest. See In re Adoption
of Groh, 153 Ohio App. 3d 414, 2003-Ohio-3087, ¶ 71-73 (7th Dist.). "'[U]ntil the hearing on
the merits of the petition and the best interest of the minor child has been determined the
natural parent not only retains parental rights and responsibilities but retains an overriding
interest in being heard relevantly on the issue of whether the proposed adoption would be in
the best interest of the child.'" In re Adoption of Jordan, 72 Ohio App. 3d at 646, quoting In re
Adoption of Jorgensen, 33 Ohio App. 3d 207, 209 (3d Dist.1986). Though incarcerated,
appellant was entitled to notice of the adoption hearing and due process required that he be
given the opportunity to participate in the hearing in a meaningful manner. See In re
Adoption of A.N.B., 12th Dist. Preble No. CA2012-12-017, 2013-Ohio-2055, ¶ 15-16.
{¶ 27} As appellant was not provided with at least 20-days' advance notice of the best-
interest hearing, as required by R.C. 3107.11(A), we find reversible error and sustain
appellant's fourth assignment of error. The judgment of the probate court finding adoption in
R.M.T.'s best interest is reversed and the final decree of adoption is vacated. The matter is
remanded to the probate court to conduct a new best-interest hearing after providing notice
of the hearing to appellant as required by R.C. 3107.11(A). In all other respects, the
judgment of the probate court is affirmed.
{¶ 28} Judgment affirmed in part, reversed in part, and the matter remanded for further
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proceedings according to law and consistent with this opinion.
RINGLAND and PIPER, JJ., concur.
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