In Re the Adoption of Hilliard

OPINION. {¶ 1} Petitioner-appellant Diane Sutton ("Sutton") brings this appeal from the judgment of the Court of Common Pleas of Logan County, Probate Division, denying her petition to have visitation with her granddaughter continued after a step-parent adoption.

{¶ 2} On August 9, 1993, Brent Vermillion ("Vermillion") and Jill Lugar ("Lugar") were married. Divorce proceedings were filed by Lugar on February 9, 1994. Taylor Ann Lugar ("Taylor") was born to the couple on February 18, 1994. Lugar claimed that Taylor was not Vermillion's daughter and used Lugar's maiden name on the birth certificate. On July 18, 1994, the domestic relations court ordered DNA testing which confirmed that Vermillion was Taylor's biological father. On August 19, 1994, Vermillion was sentenced to prison for burglary. The divorce proceedings were finalized on September 9, 1994.

{¶ 3} After several court proceedings, Sutton was granted visitation with Taylor. Sutton exercised Vermillion's rights. At first, Sutton's visits were supervised by Lugar and her parents. Eventually visits were unsupervised and Sutton was allowed to take Taylor to her home. Vermillion was released from prison in May 1999. Sutton's visitation was modified to be concurrent with Vermillion's visitation. Throughout all of this time, Sutton consistently exercised her visitation rights and formed a relationship with Taylor. Lugar made various attempts to terminate the visitation, but all attempts were denied by the court. All of the reports by the guardian ad litem recommended continuing visitation and agreed that Taylor had a close and important relationship with Sutton.

{¶ 4} On July 15, 2002, Lugar's second husband, Jeremy Hilliard ("Hilliard"), filed a petition to adopt Taylor. Vermillion consented to the adoption to avoid further responsibility for child support and Lugar had agreed to forgive the accrued arrearage if Vermillion consented to the adoption. On October 8, 2002, Sutton filed a motion to intervene. Sutton's motion did not contest the adoption, but requested that her visitation be permitted to continue after the adoption. Hilliard filed a motion objecting to the continued visitation on November 5, 2002. The adoption was granted on November 12, 2002, but the trial court withheld judgment on the issue of the visitation. On March 26, 2003, the trial court dismissed the motion to intervene for lack of jurisdiction. However, the trial court strongly recommended that Taylor be allowed to maintain contact with Sutton as it was in her best interests. It is from this judgment that Sutton appeals and raises the following assignments of error.

The probate court erred in finding that it did not have jurisdictionto grant [Sutton's] motion to intervene. The probate court erred in finding that it did not have jurisdiction togrant [Sutton's] motion to grant rights of visitation in adoptionproceedings.

{¶ 5} In the first assignment of error, Sutton claims that the trial court erred by dismissing her motion to intervene. The Supreme Court of Ohio previously has addressed the issue of intervention in adoption proceedings by grandparents and held as follows.

First, we note that there is no statutory basis for allowing theappellees to intervene. Under Civ.R. 24(A), a party has the right tointervene "when a statute of this state confers an unconditional right tointervene." Under Civ.R. 24(B), the judge may permit a party to intervene"when a statute of this state confers a conditional right to intervene."Unfortunately for the appellees, the relevant statutes * * * which governall adoptions in Ohio, contain no provision giving the appellees either aconditional or an unconditional right to intervene. In fact, under R.C.3107.11, the trial court is not even required to give the appelleesnotice of the adoption proceeding. R.C. 3107.11 does not mention grandparents as persons who must be notified and appellees do not fit thedescription of any of the parties who are entitled to notification underR.C. 3107.11(A). Moreover, the appellees do not qualify as persons who must consent toan adoption pursuant to R.C. 3107.06. R.C. 3107.06, which requires thewritten consent of particular parties before an adoption petition may begranted, contains no reference to grandparents. Furthermore, appellees donot satisfy the description of any of the parties who are listed in R.C.3107.06. Nonetheless, in their motions to intervene filed with the trialcourt, the appellees claim that the juvenile court's visitation orderraises their standing to that of persons who must consent within themeaning of R.C. 3107.06(C). While it is not clear that the trial judgeaccepted this argument in granting the motions to intervene, we find thatthis contention is wholly without merit. R.C. 3107.06(C) provides thatconsent is required of "[a]ny person or agency having permanent custodyof the minor or authorized by court order to consent." As the appelleeshave never had permanent custody of the children, their argument must bethat they were authorized by the juvenile court to consent to theadoption. However, the juvenile court's order contains no such language.* * *

In re Adoption of Ridenour (1991), 61 Ohio St.3d 319, 328-29,574 N.E.2d 1055.

{¶ 6} In this case, the basis for Sutton's motion to intervene was the domestic relations court order that granted her visitation rights with Taylor. However, because she is not a person having the statutory right to intervene, the trial court did not err in dismissing her motion to intervene. The first assignment of error is overruled.

{¶ 7} In the second assignment of error, Sutton claims that the trial court erred in denying visitation to Sutton.

Even if the juvenile court had the authority to set post-adoption termsand conditions, neither the juvenile court, nor the probate court, mayconsider the possibility of post-adoption visitation by biologicalgrandparents following a stranger adoption. We reach this conclusion byexamining the Ohio adoption statute and the policies behind it. R.C.3107.15 provides, in pertinent part: "(A) A final decree of adoption and an interlocutory order of adoptionthat has become final, issued by a court of this state, shall have thefollowing effects as to all matters within the jurisdiction or before acourt of this state: "(1) Except with respect to a spouse of the petitioner and relatives ofthe spouse, to relieve the biological or other legal parents of theadopted person of all parental rights and responsibilities, and toterminate all legal relationships between the adopted person and hisrelatives, including his biological or other legal parents, so that theadopted person thereafter is a stranger to his former relatives for allpurposes including inheritance and the interpretation or construction ofdocuments, statutes, and instruments, whether executed before or afterthe adoption is decreed, which do not expressly include the person byname or by some designation not based on a parent and child or bloodrelationship; "(2) To create the relationship of parent and child between petitionerand the adopted person, as if the adopted person were a legitimate blooddescendant of the petitioner, for all purposes including inheritance andapplicability of statutes, documents, and instruments, whether executedbefore or after the adoption is decreed, which do not expressly excludean adopted person from their operation or effect." On its face, this statute suggests that the children's relationshipwith their biological grandparents must be terminated once they areadopted. If that is the case, then a juvenile judge may not order thatvisitation continue post-adoption, and a trial judge may not considergrandparents' rights, or their attitude toward a potential adoptivefamily, in ruling on an adoption petition.

Id. at 325.

{¶ 8} In this case, the trial court ruled that it did not have jurisdiction to grant visitation rights to Sutton. Specifically, the trial court made the following findings.

In the case at bar, Intervener is requesting this Court recognize andenforce a prior order from the Domestic Relations Court that grants hergrand parental rights of visitation. * * * [T]he court FINDS that thisCourt's prior order granting Diane Sutton's Motion to Intervene is herebyvacated and said Motion be and is hereby DISMISSED for lack ofjurisdiction. The Court does, however, take this opportunity to note that it wouldnot be in Taylor's best interests for Diane Sutton to be totally excludedfrom her life. Mrs. Sutton has been "grandma" to Taylor her entire younglife. It is the hope of this Court that, despite statutes, court cases,and the Ohio Supreme Court's rulings in this area, the parties willeventually find peace between them and allow Mrs. Sutton to have somelevel of significance in Taylor's life. March 26, 2003, Judgment entry, 2.

{¶ 9} While the trial court does point out that it would be in the best interests of the child to continue the visitation, the trial court correctly ruled that under the holding inRidenour, the trial court lacked the jurisdiction to order post-adoption visitation. The adoption statutes terminate all relationships held through the parent whose rights were terminated. Thus, the grandparents of the former parent no longer have any rights to visitation. Any connection with the child will have to be approved by the child's new parents. The second assignment of error is overruled.

{¶ 10} The judgment of the Court of Common Pleas of Logan County, Probate Division is affirmed.

Judgment affirmed.

SHAW and CUPP, JJ., concur.