In re Adoption of P.A.C.

[Cite as In re Adoption of P.A.C., 126 Ohio St. 3d 236, 2010-Ohio-3351.]
IN RE ADOPTION OF P.A.C.
[Cite as In re Adoption of P.A.C., 126 Ohio St. 3d 236, 2010-Ohio-3351.]
When an issue concerning parenting of a minor is pending in the juvenile court, a
probate court must refrain from proceeding with the adoption of that child
— The determination of a parent-child relationship in the juvenile court
proceeding must be given effect in the stayed adoption proceeding.
(No. 2009-1757 — Submitted May 25, 2010 — Decided July 22, 2010.)
APPEAL from the Court of Appeals for Hamilton County, No. C-081149,
184 Ohio App. 3d 88, 2009-Ohio-4492.
__________________
PFEIFER, J.
{¶ 1} In In re Adoption of Pushcar, 110 Ohio St. 3d 332, 2006-Ohio-
4572, 853 N.E.2d 647, this court stated, "The issue presented for our review is
whether a probate court must refrain from proceeding with the adoption of a child
when an issue concerning the parenting of that child is pending in the juvenile
court. We hold that, in such circumstances, the probate court must defer to the
juvenile court and refrain from addressing the matter until adjudication in the
juvenile court." Id. at ¶ 8. We consider our holding in Pushcar to be dispositive
of the issue before us and reverse the judgment of the court of appeals.
Facts and Procedural History
{¶ 2} In July 2005, while married to Jeremy Tuttle, Susan Tuttle
("Tuttle") gave birth to P.A.C. Although Jeremy Tuttle was listed as P.A.C.'s
father on her birth certificate, he is not her biological father. A DNA test
conducted in August 2005 determined that appellant, Gary D. Otten, is P.A.C.'s
biological father.
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{¶ 3} In January 2007, Otten filed a complaint for allocation of parental
rights in juvenile court in Clermont County. Shortly thereafter, Tuttle filed a
parentage action against Otten. These cases were consolidated, and a hearing was
set for March 26, 2007, but was continued at Tuttle's request. Tuttle, who was
divorced from Jeremy Tuttle in November 2005, married appellee, Kevin Michael
Crooks, on April 13, 2007. On April 20, 2007, Crooks filed a petition to adopt
P.A.C. in probate court in Hamilton County.
{¶ 4} The probate court stayed the adoption proceedings pending a
determination in the parentage action. The juvenile court determined that Otten
was the biological father of P.A.C. The probate court lifted its stay, determined
that a parent, Otten, did not consent to the adoption, as required by R.C. 3107.06,
and dismissed Crooks's adoption petition. On appeal, the court of appeals
reversed, concluding that Otten's failure to register with the Putative Father
Registry was dispositive. We accepted Otten's discretionary appeal.
Analysis
{¶ 5} "[T]he right of a natural parent to the care and custody of his
children is one of the most precious and fundamental in law." In re Adoption of
Masa (1986), 23 Ohio St. 3d 163, 164, 23 OBR 330, 492 N.E.2d 140, citing
Santosky v. Kramer (1982), 455 U.S. 745, 753, 102 S. Ct. 1388, 71 L. Ed. 2d 599.
Santosky has been characterized as "requiring a clear and convincing evidence
standard for termination of parental rights because the parent's interest is
fundamental but the State has no legitimate interest in termination unless the
parent is unfit, and finding that the State's interest in finding the best home for the
child does not arise until the parent has been found unfit." Cruzan v. Dir.,
Missouri Dept. of Health (1990), 497 U.S. 261, 319, 110 S. Ct. 2841, 111 L. Ed. 2d
224 (Brennan, J., dissenting).
{¶ 6} "Few consequences of judicial action are so grave as the severance
of natural family ties.” Santosky, 455 U.S. at 787, 102 S. Ct. 1388, 71 L. Ed. 2d 599
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(Rehnquist, J., dissenting). Because adoption terminates fundamental rights of the
natural parents, "we have held that '* * * [a]ny exception to the requirement of
parental consent [to adoption] must be strictly construed so as to protect the right
of natural parents to raise and nurture their children.' " In re Adoption of Masa,
23 Ohio St. 3d at 165, 23 OBR 330, 492 N.E.2d 140, quoting In re Schoeppner
(1976), 46 Ohio St. 2d 21, 24, 75 O.O.2d 12, 345 N.E.2d 608. With "a family
association so undeniably important * * * at stake," we approach the case before
us "mindful of the gravity" of the circumstances and the long-term impact on all
the concerned parties. M.L.B. v. S.L.J. (1996), 519 U.S. 102, 117, 117 S. Ct. 555,
136 L. Ed. 2d 473. We turn now to our most recent pronouncement in this
important and contentious area of the law.
In re Adoption of Pushcar
{¶ 7} In Pushcar, the child's mother married a man who was not the
biological father of the child, and that man attempted to adopt the child. 110 Ohio
St.3d 332, 2006-Ohio-4572, 853 N.E.2d 647. The natural father, who had not yet
been determined to be the father, opposed the adoption, and the issue was whether
his consent was necessary. We concluded that the father could not be shown to
have failed to communicate with or failed to support his child for one year
pursuant to R.C. 3107.07(A) until one year had elapsed from the time his
paternity was established. Id. at ¶ 14. An integral part of our analysis was our
holding that the probate court could not proceed with the adoption while "an issue
concerning the parenting of that child is pending in the juvenile court." Id. at ¶ 8.
{¶ 8} Although the case involved a relatively narrow issue, our holding
was more general, as memorialized in the syllabus: "When an issue concerning
parenting of a minor is pending in the juvenile court, a probate court must refrain
from proceeding with the adoption of that child." It is clear that we did not intend
our holding or analysis to be restricted to parenting issues implicated by R.C.
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3107.07(A). Rather, our use of general language shows that we intended the
holding to apply to all parenting issues pending in a juvenile court.
Application of Pushcar
{¶ 9} We consider it beyond dispute that when, as here, a man files an
action for allocation of parental rights supported by a DNA test that declaims the
probability that he is the father to be 99.99995 percent and when the mother of the
child files an action to determine parentage claiming that that man is the father of
the child, "an issue concerning parenting of a minor is pending." Accordingly, the
probate court properly stayed the adoption proceedings before it.
{¶ 10} The probate judge in this case correctly determined that we would
not have required the stay in Pushcar if it were to have no effect. The judge
stated:
{¶ 11} "[T]he Supreme Court [in Pushcar] did not strictly construe the
statutory requirement that, to be considered a 'father' under RC 3107.06(B)(3),
paternity must have been established prior to the date the adoption petition was
filed.
{¶ 12} "This is apparent because, despite the fact that the paternity action
was pending in Pushcar when the adoption petition was filed, and thus, paternity
was not established prior to the filing of the adoption petition, the Supreme Court
did not find that it was too late for the paternity action to render the man
contesting the adoption a 'father' under RC 3107.06(B)(3)." (Emphases sic.)
{¶ 13} Based on this analysis, the probate judge concluded as follows:
"Pushcar applies to the instant case; * * * under Pushcar, this Court was required
to refrain from proceeding with the adoption petition until the Clermont County
Juvenile Court's adjudication of the parentage action; * * * this Court should give
effect to the Clermont County Juvenile Court's determination of the existence of a
parent-child relationship; and that given said determination of paternity, Mr.
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Otten's status is that of 'father.' " We conclude that the probate judge properly
applied Pushcar.
Conclusion
{¶ 14} The probate judge did not err. We reverse the judgment of the
court of appeals.
Judgment reversed.
LUNDBERG STRATTON, O’CONNOR, and O’DONNELL, JJ., concur.
BROWN, C.J., and LANZINGER and CUPP, JJ., dissent.
__________________
LUNDBERG STRATTON, J., concurring.
{¶ 15} I write separately to emphasize that appellate courts in Ohio must
adhere to App.R. 11.2(C)(1), which requires that an appellate court expedite an
appeal from an order granting or denying adoption or the termination of parental
rights. In this case, oral argument in the court of appeals was set for May 6, 2009,
and the court’s judgment was not journalized until September 2, 2009 – almost
four months later, despite the rule’s requirement that “[t]he court shall enter
judgment within thirty days of * * * the oral argument, * * * unless compelling
reasons in the interest of justice require a longer time.” App.R. 11.2(C)(5). This
appeal was pending in the appellate court for a period of ten months from the
initial filing of the notice of appeal on November 10, 2008, until the judgment
entry on September 2, 2009.
{¶ 16} App.R. 11.2(A) requires appellate courts to accelerate and
prioritize these appeals at all stages. While these cases are pending, the children
whose lives are at issue lack a sense of permanency. They may be forging a bond
that will be difficult to disrupt should a court require the child’s placement to
change. In a case such as this one, a court should be ever cognizant of the
timeliness of its docket.
O’DONNELL, J., concurs in the foregoing opinion.
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__________________
BROWN, C.J., dissenting.
{¶ 17} Before a child can be adopted, R.C. 3107.06 requires that certain
persons and entities consent to the adoption. These persons include the mother of
the child, the father of the child, and, if applicable, the putative father of the child.
R.C. 3107.06. R.C. 3107.01(H) defines “putative father”1 and R.C. 3107.06(B)
defines “father”2 for the purposes of the adoption statutes.
{¶ 18} Although consent is generally required from the persons
enumerated in R.C. 3107.06, R.C. 3107.07 sets forth exceptions to the consent
requirements. R.C. 3107.07(A) allows a court to find parental consent
unnecessary when the 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 for a period of at least one year immediately preceding the
1. {¶ a} A “putative father” is defined as a man who may be a child’s father and to whom all of
the following apply:
{¶ b} “(1) He is not married to the child’s mother at the time of the child’s conception or
birth;
{¶ c} “(2) He has not adopted the child;
{¶ d} “(3) He has not been determined, prior to the date a petition to adopt the child is filed,
to have a parent and child relationship with the child by a court proceeding pursuant to sections
3111.01 to 3111.18 of the Revised Code [parentage statutes], a court proceeding in another state,
an administrative agency proceeding pursuant to sections 3111.38 to 3111.54 of the Revised Code
[administrative-determination-of-paternity statutes], or an administrative agency proceeding in
another state;
{¶ e} “(4) He has not acknowledged paternity of the child pursuant to sections 3111.21 to
3111.35 of the Revised Code.” (Emphasis added.) R.C. 3107.01(H).
2. {¶ a} A “father” is a man to whom any of the following apply:
{¶ b} “(1) The minor was conceived or born while the father was married to the mother;
{¶ c} “(2) The minor is his child by adoption;
{¶ d} “(3) Prior to the date the petition was filed, it was determined by a court proceeding
pursuant to sections 3111.01 to 3111.18 of the Revised Code [parentage statutes], a court
proceeding in another state, an administrative proceeding pursuant to sections 3111.38 to 3111.54
of the Revised Code [administrative-determination-of-paternity statutes], or an administrative
proceeding in another state that he has a parent and child relationship with the minor;
{¶ e} “(4) He acknowledged paternity of the child and that acknowledgment has become final
pursuant to section 2151.232, 3111.25, or 3111.821 of the Revised Code.” (Emphasis added.)
R.C. 3107.06(B).
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filing of the adoption petition or the placement of the minor in the home of the
petitioner.
{¶ 19} Under R.C. 3107.07(B)(1), a putative father’s consent is
unnecessary when he fails to register as the minor’s putative father with the
Putative Father Registry not later than 30 days after the minor’s birth. R.C.
3107.07(B)(2) states that a putative father’s consent is not required when the court
finds, after proper service of notice and hearing, that the putative father (1) is not
the father of the minor, (2) has willfully abandoned or failed to care for and
support the minor, or (3) has willfully abandoned the mother of the minor during
her pregnancy and up to the time of her surrender of the minor or the minor’s
placement in the home of the petitioner, whichever occurs first.
{¶ 20} In the case before us, the primary issue is whether appellant Gary
Otten’s consent to the adoption is required. It is undisputed that Otten failed to
register with the Putative Father Registry. Accordingly, application of R.C.
3107.07(B)(1) to Otten would serve to render his consent unnecessary.
{¶ 21} In order to avoid application of R.C. 3107.07(B)(1), Otten seeks to
change his status in the adoption proceeding from putative father to father after
the adoption petition has been filed. Otten contends that if a judicial proceeding
to establish paternity has been filed in juvenile court prior to the filing of an
adoption petition in probate court, the adoption proceeding must be stayed until
the paternity proceedings are completed. Otten further contends that the juvenile
court’s paternity determination must be used by the probate court to determine the
status and rights of the respective parties in the adoption proceeding. In the case
of Otten, this would require the probate court to apply the more stringent
exception to consent to adoption contained in R.C. 3107.07(A) and avoid
application of R.C. 3107.07(B)(1).
{¶ 22} The majority agrees with Otten and holds that the adoption
proceedings must be stayed pending completion of the juvenile court paternity
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proceedings, that the juvenile court’s finding of paternity must be recognized by
the probate court, and that Otten’s new status as “father” rather than “putative
father” requires that the probate court apply the consent-to-adoption exception
contained in R.C. 3107.07(A). In so holding, the majority fails to apply the
unambiguous language of the relevant adoption statutes, erroneously relies on In
re Adoption of Pushcar, 110 Ohio St. 3d 332, 2006-Ohio-4572, 853 N.E.2d 647,
and contravenes the express adoption policy established by the General
Assembly.
Statutory language
{¶ 23} The majority’s opinion ignores the unambiguous statutory
language that requires that participants’ status be determined at the time an
adoption petition is filed.
{¶ 24} The definition of “putative father” specifically provides that a man
is a putative father if “[h]e has not been determined, prior to the date a petition to
adopt the child is filed, to have a parent and child relationship” with the child
through a court or administrative proceeding. (Emphasis added.) R.C.
3107.01(H). Similarly, the definition of “father” under R.C. 3107.06(B)(3)
provides that to establish a parent-child relationship through court or
administrative proceedings, the court or administrative determination must be
completed “[p]rior to the date the [adoption] petition was filed.” In other words,
when an adoption petition is filed, the statutes require the status of the parties
involved to be ascertained at that time.
{¶ 25} The statutes are absolutely clear that the child may be adopted
without a putative father’s consent when he fails to register with the Putative
Father Registry or to establish a parent-child relationship through one of the
judicial or administrative means set forth in R.C. 3107.06(B) before the adoption
petition is filed. Nothing in the adoption statutes provides for a stay of the
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adoption proceedings to allow for the filing of or completion of pending actions to
establish paternity.
Pushcar
{¶ 26} The majority relies upon this court’s previous decision in In re
Adoption of Pushcar, 110 Ohio St. 3d 332, 2006-Ohio-4572, 853 N.E.2d 647, to
support its holding in this case. But the majority’s reliance on Pushcar is
misplaced.
{¶ 27} Pushcar addressed the need for a stay of adoption proceedings
when the party petitioning for adoption relies on R.C. 3107.07(A) to divest a
father of his parental rights. This court held that in order for the R.C. 3107.07(A)
exception to consent to apply, the petitioner must prove paternity, and a stay of
the adoption proceeding was necessary to allow for the juvenile court to complete
the proceedings to establish paternity. The adoption petition in this case did not
allege that Otten’s consent was not required under R.C. 3107.07(A), but instead
asserted that Otten’s consent was unnecessary based upon R.C. 3107.07(B).
Therefore, there is no need to establish paternity for the purposes of R.C.
3107.07(A) and the reasoning of Pushcar is inapplicable to the facts currently
before the court.
{¶ 28} More importantly, Pushcar failed to address the relevant statutory
language of the adoption statutes regarding the time at which a participant’s status
is determined and was based in large part upon this court’s decision in In re
Adoption of Sunderhaus (1992), 63 Ohio St. 3d 127, 585 N.E.2d 418, which was
decided prior to the creation of the Putative Father Registry and the enactment of
the accompanying amendments to the adoption statutes. Am.Sub.H.B. No. 419,
146 Ohio Laws, Part III, 4660. In Sunderhaus, this court found that the ability of
a court to dispense with the consent requirement under R.C. 3107.07(A) is
dependent upon the establishment of a parent-child relationship and that
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establishing the parent-child relationship requires a judicial ascertainment of
paternity. Id. at 130.
{¶ 29} This analysis is consistent with the statutory scheme in place at the
3
time. At the time Sunderhaus was decided by this court, the only statutorily
available method for an unwed natural father to establish a parent-child
relationship was through a judicial proceeding. By relying on Sunderhaus,
Pushcar failed to recognize that new, alternative statutory methods existed for an
unwed biological father to establish a parent-child relationship in addition to a
judicial determination.
{¶ 30} The Pushcar majority’s reliance on Sunderhaus is further called
into question given the unclear nature of the facts of Pushcar. Pushcar’s facts
suggest that the natural father already had an established parent-child relationship
prior to the filing of the juvenile court proceedings. Pushcar, 110 Ohio St. 3d 332,
2006-Ohio-4572, 853 N.E.2d 647, at ¶1, 4. It is also unclear in Pushcar whether
the juvenile court proceeding was initiated to establish a parent-child relationship
judicially or to enforce the natural father’s visitation rights based upon his
established parent-child relationship. Id.
{¶ 31} Because the analysis of Pushcar fails to address the relevant
statutory provisions, relies upon Sunderhaus, and is based on factual
circumstances that are unclear from the opinion, I find that Pushcar’s holding is
of limited value and should not be extended beyond the R.C. 3107.07(A) context.
The General Assembly’s adoption policy
{¶ 32} The majority’s holding is also contrary to the public policy clearly
expressed in the current adoption statutes. Justice Cupp’s dissent correctly sets
3. At the time, R.C. 3107.06 provided that a father’s consent to adoption was required “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.”
Am.Sub.H.B. No. 790, 142 Ohio Laws, Part III, 5323, 5333.
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forth the legislative history and objectives of the 1996 amendments to Ohio’s
adoption statutes.
{¶ 33} The express legislative direction contained within the adoption
statutes requires determination of the status of the participants at the time the
adoption petition is filed. This advances the goals of the 1996 amendments to the
adoption statutes by avoiding the delays inherent in allowing ancillary litigation
regarding status to complete before considering the adoption petition. While the
majority may disagree with the statutory scheme and its potentially harsh result in
these circumstances, it is not this court’s place to disregard clear statutory
language to come to a result that the majority finds more equitable in this case.
This court should respect the policy decisions made by the General Assembly in
enacting the amended adoption statutes and apply the statutory language as
written.
Conclusion
{¶ 34} Otten failed to register with the Putative Father Registry and also
failed to establish a parent-child relationship before the adoption petition was
filed. Therefore, Otten is a putative father for the purposes of the adoption
proceedings and the consent-to-adoption exception set forth in R.C.
3107.07(B)(1) applies to him. Staying the probate court’s adoption proceedings
for a juvenile court proceeding to establish paternity is inappropriate in light of
the clear directive of the adoption statutes and unnecessarily delays adoption
proceedings contrary to the intent of the General Assembly.
{¶ 35} For the foregoing reasons, I would affirm the judgment of the First
District Court of Appeals.
__________________
LANZINGER, J., dissenting.
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{¶ 36} I respectfully dissent based on the statutes as currently written;
however, I do not agree with Chief Justice Brown that In re Adoption of Pushcar,
110 Ohio St. 3d 332, 2006-Ohio-4572, 853 N.E.2d 647, has no application here.
{¶ 37} A “putative father” is “a man, including one under age eighteen,
who may be a child’s father and to whom all of the following apply:
{¶ 38} “(1) He is not married to the child’s mother at the time of the
child’s conception or birth;
{¶ 39} “(2) He has not adopted the child;
{¶ 40} “(3) He has not been determined, prior to the date a petition to
adopt the child is filed, to have a parent and child relationship with the child by a
court proceeding pursuant to sections 3111.01 to 3111.18 of the Revised Code, a
court proceeding in another state, an administrative agency proceeding pursuant
to sections 3111.38 to 3111.54 of the Revised Code, or an administrative agency
proceeding in another state;
{¶ 41} “(4) He has not acknowledged paternity of the child pursuant to
sections 3111.21 to 3111.35 of the Revised Code.” (Emphasis added.) R.C.
3107.01(H).
{¶ 42} A putative father’s consent to an adoption of a minor child is
required unless (1) he has failed to register as the minor’s putative father with the
Putative Father Registry established under R.C. 3107.062 not later than 30 days
after the minor’s birth or (2) he has willfully abandoned or failed to care for and
support the minor or willfully abandoned the mother of the minor during her
pregnancy and up to the time of her surrender of the minor, or the minor’s
placement in the home of the petitioner, whichever occurs first. R.C. 3107.06(C)
and 3107.07(B).
{¶ 43} Although Otten filed a parentage action to determine whether he
had a parent-child relationship with P.A.C., that action had not concluded when
the adoption petition was filed. Therefore, under the plain language of R.C.
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3107.01(H), Otten remains within the definition of “putative father” and his
consent is not required, because he failed to timely register as a putative father.
R.C. 3107.07(B)(1).
{¶ 44} Although Pushcar, 110 Ohio St. 3d 332, 2006-Ohio-4572, 853
N.E.2d 647, requires that the adoption proceedings be stayed during the juvenile
court proceeding, that does not change the fact that Otten’s consent is not
required. Even though the stay allowed the juvenile court to determine that Otten
is P.A.C.’s father, R.C. 3107.06(B) states that a father’s consent to the adoption
must be obtained only if the father satisfies one of the following:
{¶ 45} “(1) The minor was conceived or born while the father was
married to the mother;
{¶ 46} “(2) The minor is his child by adoption;
{¶ 47} “(3) Prior to the date the petition was filed, it was determined by a
court proceeding pursuant to sections 3111.01 to 3111.18 of the Revised Code, a
court proceeding in another state, an administrative proceeding pursuant to
sections 3111.38 to 3111.54 of the Revised Code, or an administrative proceeding
in another state that he has a parent and child relationship with the minor;
{¶ 48} “(4) He acknowledged paternity of the child and that
acknowledgment has become final pursuant to section 2151.232, 3111.25, or
3111.821 of the Revised Code.”
{¶ 49} Again, because Otten’s parentage was not determined prior to the
filing of the adoption petition, his consent as a father is not required under R.C.
3107.06(B).
{¶ 50} This does not mean, however, that Pushcar has no application
here. Before an adoption petition may be granted, the probate court must
determine whether the adoption is in the best interest of the minor. R.C.
3107.14(C). Knowing who the biological father is may affect this decision.
Therefore, a Pushcar stay of the adoption proceeding to allow a previously filed
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parentage action to conclude is not futile. Even if a putative father’s consent is
not required, the ultimate issue is what is in the best interest of the minor. The
fact that consent is not required is not a fait accompli as to whether the petition
should be granted.
{¶ 51} For the foregoing reasons, I would affirm the judgment of the First
District Court of Appeals.
__________________
CUPP, J., dissenting.
{¶ 52} Our role with regard to statutory interpretation is to apply clear and
unambiguous statutes as written and to engage in no further interpretation. State
ex rel. Burrows v. Indus. Comm. (1997), 78 Ohio St. 3d 78, 81, 676 N.E.2d 519. It
is our duty to enforce a statute as written and to not add or subtract language from
the statute, In re Adoption of Holcomb (1985), 18 Ohio St. 3d 361, 366, 18 OBR
419, 481 N.E.2d 613. And I agree with Chief Justice Brown’s analysis regarding
the plain and unambiguous requirements of the statutes applicable to this matter.
{¶ 53} In this case, appellant’s consent to the adoption is not required,
because he failed to register on the Putative Father Registry and he failed to have
determined by a court or administrative proceeding prior to the date the adoption
petition was filed that he is the biological father or that he had a parent-child
relationship with the child. R.C. 3107.06(B), 3107.01(H), and 3107.07(B)(1). In
other words, when an adoption petition is filed, the statutes require the status of
the parties involved to be ascertained at that time. At first glance the result may
seem unfair as to appellant. On further reflection, however, it is clear that the
legislature intended consequences when a putative father fails to take the proper
steps to establish a parent-child relationship. Thus, the statutes are clear that
when a putative father so defaults, the child may be adopted without the putative
father’s consent. R.C. 3107.061.
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{¶ 54} I also agree with Justice Lanzinger’s conclusion that the holding in
In re Pushcar, 110 Ohio St. 3d 332, 2006-Ohio-4572, 853 N.E.2d 647, should be
applied herein. The Pushcar syllabus plainly states that “[w]hen an issue
concerning parenting of a minor is pending in the juvenile court, a probate court
must refrain from proceeding with the adoption of that child.” Id. Clearly, the
stay required by Pushcar applies to this case.
{¶ 55} The majority’s application of Pushcar to this case, however, takes
the Pushcar holding too far by permitting a party’s consent-to-adoption status to
change even after the adoption petition has been filed, in clear contradiction of
the language of the statute. Expanding Pushcar in this way amounts essentially
to judicially waiving the requirement that any determination that a man is the
natural father – for purposes of the adoption proceeding – be made prior to the
time the adoption petition is filed with the probate court. R.C. 3107.07(B) and
3107.01(H). This extension of Pushcar is contrary to both the General
Assembly’s clear statutory directives and to the public policy clearly expressed in
the adoption statutes. That the biological-parent determination must be made
before an adoption petition is filed in order to legally fix the necessity of
obtaining that person’s consent to the adoption, is a mandatory statutory
requirement (which the majority seems intent on judicially writing out of the
statute). The majority’s decision today serves only to undermine the effectiveness
of the Putative Father Registry and to upend Ohio’s orderly adoption process.
{¶ 56} Ohio’s adoption laws were amended in 1996 to streamline the
adoption process. Am.Sub.H.B. No. 419, 146 Ohio Laws, Part III, 4660. This
statutory enactment had among its primary objectives the establishment of
statewide standards for adopting a child and the reduction of the time necessary to
finalize an adoption from what was often four years before the statutory change,
to between nine and 24 months under the current framework. 64 Ohio Report No.
215, Gongwer News Service, Inc. (Nov. 9, 1995) 6. Another objective of the
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legislation was to prevent children from being forcibly removed from their
adoptive families after a biological father belatedly exercised parental rights. 64
Ohio Report No. 198, Gongwer News Service, Inc. (Oct. 17, 1995) 1.
{¶ 57} To achieve these goals while also upholding the rights of the
natural parents, the child, and the adoptive parents, the General Assembly created
the Putative Father Registry and other options for putative fathers to maintain
consent-to-adoption rights. Legislative Service Commission Final Bill Analysis,
Am.Sub.H.B. No. 419, 121st General Assembly; 65 Ohio Report No. 56,
Gongwer News Service, Inc. (Mar. 21, 1996) 6; In re Adoption of Zschach (1996),
75 Ohio St. 3d 648, 651-652, 665 N.E.2d 1070. After holding open hearings,
inviting input from the public and adoption advocates, and reviewing adoption
policy, the General Assembly enacted statutes requiring putative fathers to
promptly demonstrate their commitment to meeting the responsibilities of
parenthood. R.C. 3107.061, 3107.062, and 3107.07(B)(1); Zschach, 75 Ohio
St.3d at 651-652, 665 N.E.2d 1070. The United States Supreme Court has also
sanctioned the use of putative-father registries as mechanisms to facilitate the
adoption process. Lehr v. Robinson (1983), 463 U.S. 248, 263-264, 266-268, 103
S. Ct. 2985, 77 L. Ed. 2d 614.
{¶ 58} As this court has previously observed, the “goal of the adoption
statutes is to protect the best interests of children. In cases where adoption is
necessary, this is best accomplished by providing the child with a permanent and
stable home, and ensuring that the adoption process is completed in an
expeditious manner.” (Citation omitted.) Zschach at 651. The express legislative
direction contained within the adoption statutes that requires the status of the
biological father to be determined at the time the adoption petition is filed is one
that the legislature has determined advances this goal.
{¶ 59} In contrast, the majority’s application of In re Pushcar to the case
now before us is in direct contravention of the clearly expressed requirements of
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the statute. Without the benefit of the input available to the legislature on the
benefits or detriments of any aspect of adoption policy, the majority of this court
nullifies the express and specific language of the statutes and overrides the
legislature’s articulated policy decisions, substituting its own. The 1996 revisions
to the adoption statutes were designed to provide more predictability and certainty
in the adoption process, with due regard to the rights of the biological parents, and
are consistent with the goal of expeditiously moving children through the
adoption process into permanent and stable homes. The court’s decision today is
inconsistent with those objectives and calls into question the viability of any
adoption currently in process. In the end, the result of the majority opinion is to
excuse appellant’s failure to promptly protect his consent-to-adoption rights by
demonstrating his commitment to meeting the responsibilities of parenthood in
the manner provided by the applicable statutes, and leaves the child in legal
limbo.
{¶ 60} Appellant failed to register with the Putative Father Registry and
also failed to establish before the adoption petition was filed that he had a parent-
child relationship with the child. The decision by the majority to sanction the
procedure that stays the probate court’s adoption proceedings to allow appellant’s
consent-to-adoption status to change is not authorized by the adoption statutes and
is inappropriate in light of the clear directive of those statutes.
{¶ 61} I must respectfully dissent from this court’s holding.
_________________
Dworken & Bernstein Co., L.P.A., and Kenneth J. Cahill, for appellant,
Gary D. Otten.
Voorhees & Levy, L.L.C., and Michael R. Voorhees, for appellee, Kevin
Crooks.
Erik L. Smith, urging reversal as a pro se amicus curiae.
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Susan Garner Eisenman and Mary Beck, urging affirmance for amicus
curiae American Academy of Adoption Attorneys.
______________________
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