In re Adoption of A.N.

[Cite as In re Adoption of A.N., 2013-Ohio-3871.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
UNION COUNTY
IN THE MATTER OF CASE NO. 14-12-27
THE ADOPTION OF:
A.N. OPINION
Appeal from Union County Common Pleas Court
Probate Division
Trial Court No. 2012-5-008
Judgment Reversed and Cause Remanded
Date of Decision: September 9, 2013
APPEARANCES:
Jerry M. Johnson for Appellants Nord
Alison Greene Boggs for Appellee Scheiderer
John C. Huffman for Appellee Hart
Case No. 14-12-27
PRESTON, P.J.
{¶1} Appellants, Scott Wayne Nord and Erica Joy Nord, appeal the
November 19, 2012 judgment entry of the Union County Court of Common Pleas,
Probate Division, vacating its prior order of placement and ordering that the child
involved in this appeal, A.N., be immediately returned to the State of Ohio. In its
judgment entry, the trial court concluded that the consent of the putative father—
appellee, Kris Scheiderer, Jr.—was required for the petition for adoption to be
granted and that Scheiderer did not consent to the adoption. It is the trial court’s
conclusion regarding the necessity of Scheiderer’s consent that the Nords dispute
in this appeal. For the reasons that follow, we reverse.
{¶2} A.N. was born on February 11, 2012. (Birth Certificate, Doc. No. 3).
Four days later, in case number 2012-5-005, the trial court approved an application
for approval of placement of A.N. and issued a judgment entry placing A.N. in the
Nords’ home. (Petitioner’s Ex. 5, Sept. 26, 2012 Tr. at 7). (See also Judgment
Entry, Doc. No. 5). Also on February 15, 2012, the Nords filed a petition for
adoption of A.N. in the Probate Division of the Union County Court of Common
Pleas, initiating the underlying case, number 2012-5-008. (Doc. No. 1). The
petition listed the birthmother—appellee, Rachel Hart—as the only person or
agency whose consent to the adoption was required. (Id.). The petition also stated
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that no person timely registered as a putative father and that a certification to that
effect “is forthcoming.” (Id.).
{¶3} On March 30, 2012, in response to an inquiry by counsel for Hart, the
Ohio Department of Job and Family Services certified that Scheiderer was
registered as a putative father in Ohio’s Putative Father Registry. (Doc. No. 4).
The documents attached to the Department’s certification reflected that Scheiderer
registered as a putative father on September 6, 2011. (Id.). (See also Judgment
Entry, Doc. No. 5). The Department’s certification was filed with the trial court
on April 16, 2012. (Doc. No. 4). Eleven days earlier, on April 5, 2012, the Nords
filed a motion to stay DNA testing of A.N. pending the hearing on the issues of
consent and best interest of the child. (Doc. No. 2).
{¶4} In a June 21, 2012 judgment entry, the trial court denied the Nords’
motion to stay DNA testing, ordered that Hart, Scheiderer, and A.N. immediately
submit to genetic testing, and stayed the adoption proceeding pending the outcome
of paternity testing. (Doc. No. 5). In its judgment entry, the trial court noted that
on June 19, 2012, the Juvenile Division of the Union County Court of Common
Pleas notified the Probate Division that Scheiderer, through his parents, filed a
complaint on April 24, 2012 to determine the existence or nonexistence of a
parent-child relationship between Scheiderer and A.N. (Id.). (See also
Petitioner’s Ex. 2, Sept. 26, 2012 Tr. at 7).
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{¶5} On July 2, 2012, the Nords filed an amended petition for adoption of
A.N., again listing Hart as the only person or agency whose consent to the
adoption was required, and listing Scheiderer as a putative father whose consent
was not required because he willfully abandoned Hart during her pregnancy and
up to the time of her surrender of A.N. (Doc. No. 6). That same day, the Nords
moved the trial court to schedule an immediate hearing concerning whether
Scheiderer’s consent was necessary. (Doc. No. 7).
{¶6} The case’s docket saw a flurry of activity on July 5, 2012. That
morning, a magistrate of the trial court issued an order notifying Scheiderer of the
Nords’ July 2, 2012 amended petition for adoption alleging that his consent was
not required. (Doc. No. 8). The order also notified Scheiderer that a hearing
would be scheduled as “set forth in a separate entry” and that, if he wished to
contest the adoption, he needed to file an objection to the Nords’ amended petition
within fourteen days after receiving the notice and attend the hearing. (Id.). The
clerk mailed to Scheiderer copies of the magistrate’s order, the Nords’ amended
petition for adoption, and the Nords’ motion requesting an immediate hearing
concerning consent. (Id.). Scheiderer signed for the clerk’s certified mailing on
July 17, 2012. (Id.).
{¶7} Also on the morning of July 5, 2012, the Nords moved for
reconsideration of the trial court’s June 21, 2012 judgment entry ordering that
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Hart, Scheiderer, and A.N. immediately submit to genetic testing or, alternatively,
a continuance of the DNA testing. (Doc. No. 9). A few hours later, the magistrate
issued an order denying the Nords’ motion. (Doc. No. 10.).
{¶8} In the afternoon on July 5, 2012, Hart, through her next friend, filed a
“notice of special appearance” and motion to set aside the portion of the trial
court’s June 21, 2011 judgment entry requiring her to submit to DNA testing
despite her not being a party to the adoption proceeding. (Doc. Nos. 11, 12). Less
than an hour later, the magistrate issued an order denying Hart’s motion. (Doc.
No. 13).
{¶9} On July 30, 2012, Scheiderer’s counsel filed a notice of appearance.
(Doc. No. 17).
{¶10} On July 31, 2012, the Nords filed a stipulation, in which they agreed
to the admissibility of the DNA results in the paternity action filed by Scheiderer
in the Juvenile Division. (Doc. No. 18). The Nords also agreed that A.N. was a
party to both the paternity action and the adoption proceeding pending in the
Juvenile Division and Probate Division, respectively, and that the courts of Union
County, Ohio were the only courts having jurisdiction over A.N. (Id.).
{¶11} On August 6, 2012, the trial court held a pretrial hearing. (See
Journal Entry, Doc. No. 14). Present at the hearing were Hart and her parents and
counsel, A.N., counsel for Scheiderer, and counsel for the Nords, whose presence
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the trial court excused. (Doc. Nos. 19, 20). Following the hearing, the trial court
issued a journal entry and nunc pro tunc journal entry finding a parent-child
relationship between Scheiderer and A.N. and scheduling a September 26, 2012
hearing concerning whether Scheiderer’s consent to the adoption was necessary.
(Doc. Nos. 20, 21).
{¶12} On August 20, 2012, the trial court issued to Scheiderer a “NOTICE
OF HEARING ON PETITION FOR ADOPTION.” (Doc. No. 22). In it, the trial
court notified Scheiderer that the Nords filed an amended petition for adoption on
July 2, 2012, that a hearing was scheduled for September 26, 2012, and that he
needed to file an objection to the Nords’ amended petition within fourteen days
after receiving the notice and attend the hearing if he wished to contest the
adoption. (Id.). The clerk mailed to Scheiderer copies of the notice of hearing on
petition for adoption and the journal entry and nunc pro tunc journal entry
scheduling the September 26, 2012 hearing. (Id.). Scheiderer signed for the
clerk’s certified mailing on August 22, 2012. (Id.).
{¶13} On August 27, 2012, the trial court held a conference attended by
counsel for Hart, Scheiderer, and the Nords. (See Journal Entry, Doc. No. 23).
Each attorney said he would not be requesting that a guardian ad litem be
appointed for A.N. in the adoption proceeding. (Id.). In its journal entry
memorializing the conference, the trial court noted that Scheiderer’s counsel stated
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at the conference that he was planning to file a petition for custody on behalf of
Scheiderer, and that he planned to file a motion to appoint a guardian ad litem in
that case. (Id.).
{¶14} The trial court held a hearing on September 26 and 27, 2012 to
determine whether Scheiderer’s consent to the adoption was necessary. (Sept. 26,
2012 Tr. at 4, 8); (Sept. 27, 2012 Tr. at 4). (See also Journal Entry, Doc. No. 24).
Present at the hearing were Hart and her parents and counsel, Scheiderer and his
counsel, and the Nords and their counsel. (Sept. 26, 2012 Tr. at 4-5). (See also
Journal Entry, Doc. No. 24). At the outset of the hearing, the Nords’ counsel
noted that Scheiderer had not filed an objection to the amended petition as
required by R.C. 3107.07(K) and requested that the trial court ask Scheiderer for
the record whether he consented to the adoption. (Sept. 26, 2012 Tr. at 8). The
trial court asked, and Scheiderer said he did not consent to the adoption. (Id. at
13). The Nords’ counsel then argued that Scheiderer’s consent was not necessary
under R.C. 3107.07(K) because he failed to file an objection, and the Nords’
counsel asked the trial court to rule on that issue. (Id. at 14-15). The trial court
held the Nords’ motion in abeyance and proceeded with the hearing. (Id. at 15).
{¶15} On October 12, 2012, the trial court issued a journal entry ordering
that the parties submit written closing arguments, including proposed findings of
fact and conclusions of law, on October 19, 2012. (Doc. No. 24). In addition, the
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trial court ordered that the parties brief in their written closing arguments the legal
issue of whether Scheiderer waived his right to contest the adoption by failing to
object to the Nords’ amended petition for adoption. (Id.). The trial court also
allowed the Nords to return with A.N. to their home in Bakersfield, California, but
ordered that they return to the trial court with A.N. if ordered by the trial court.
(Id.).
{¶16} Hart, Scheiderer, and the Nords filed their written closing arguments
on October 19, 2012. (Doc. Nos. 25-27).
{¶17} On November 19, 2012, the trial court issued the judgment entry
concluding that Scheiderer’s consent to the adoption was necessary and not given.
(Doc. No. 30). The trial court based its decision on its conclusions that there was
not clear and convincing evidence that Scheiderer willfully abandoned Hart or that
he willfully abandoned or failed to care for and support A.N. (Id.). The trial court
also concluded that Scheiderer did not waive his right to contest the adoption by
failing to file a written objection to the Nords’ amended petition for adoption.
(Id.).
{¶18} The Nords filed their notice of appeal on November 29, 2012. (Doc.
No. 32). They raise three assignments of error for our review.
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Assignment of Error No. I
The probate court erred in finding that O.R.C. § 3107.07(K)’s
requirement that a written objection to the adoption be filed
with the trial court within fourteen (14) days after notice is
received did not apply to a putative father who has registered
with the state putative father registry.
{¶19} In their first assignment of error, the Nords argue that the trial court
erred when it concluded that Scheiderer did not waive his right to contest the
adoption, even though he failed to object in writing to the Nords’ amended petition
for adoption. Specifically, the Nords argue that Scheiderer received the notice he
was entitled to receive under R.C. 3107.11(A)(1), but that he failed to object
within fourteen days as required under R.C. 3107.07(K) and, as a result, waived
his right to contest the adoption.
{¶20} The Nords’ first assignment of error challenges the trial court’s
interpretation and application of R.C. 3107.07 and 3107.11. “We review a trial
court’s interpretation and application of a statute under a de novo standard of
review.” In re Adoption of R.M.P., 11th Dist. Trumbull Nos. 2011-T-0041 and
2011-T-0042, 2011-Ohio-6841, ¶ 10 (citation omitted). See also In re Adoption of
O.N.C., 191 Ohio App.3d 72, 2010-Ohio-5187, ¶ 11 (3d Dist.) (“Statutory
interpretation involves a question of law, and thus, our review is conducted under
a de novo standard of review.”).
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{¶21} In Ohio, certain persons and entities must consent to an adoption,
including the father and any putative father of the minor child. In re T.L.S., 12th
Dist. Fayette No. CA2012-02-004, 2012-Ohio-3129, ¶ 8, citing R.C. 3107.06.
However, the General Assembly carved out exceptions to the consent requirement.
Those exceptions are found in R.C. 3107.07. One of the exceptions applies if a
person or entity whose consent to the adoption is required fails to file an objection
to the petition for adoption within fourteen days after that person or entity receives
notice of the petition and of the hearing of the petition:
Consent to adoption is not required of any of the following:
***
(K) Except as provided in divisions (G) and (H) of this section, a
juvenile court, agency, or person given notice of the petition
pursuant to division (A)(1) of section 3107.11 of the Revised Code
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 * * *.”
R.C. 3107.07(K). See also In re T.L.S. at ¶ 10.
{¶22} R.C. 3107.07(K) cross-references four statutory sections. The first
two—R.C. 3107.07(G) and (H)—provide exceptions to the exception found in
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R.C. 3107.07(K). Neither applies in this case, and the parties do not contend
otherwise.
{¶23} R.C. 3107.07(K) also cross-references the notice required by R.C.
3107.11(A)(1). That statute requires that the trial court fix a time and place for a
hearing on a petition for adoption after the petition is filed. It also requires that the
trial court, at least twenty days before the hearing, give notice of the filing of the
petition and of the hearing to, among others, any person whose consent is required
under R.C. Chapter 3107 and who has not consented:
(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:
(1) Any juvenile court, agency, or person whose consent to the
adoption is required by this chapter but who has not consented;
***
Notice shall not be given to a person whose consent is not required
as provided by division (B), (C), (D), (E), (F), or (J) of section
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3107.07, or section 3107.071, of the Revised Code. Second notice
shall not be given to a juvenile court, agency, or person whose
consent is not required as provided by division (K) of section
3107.07 of the Revised Code because the court, agency, or person
failed to file an objection to the petition within fourteen days after
proof was filed pursuant to division (B) of this section that a first
notice was given to the court, agency, or person pursuant to division
(A)(1) of this section.
R.C. 3107.11. As R.C. 3107.07(K) provides, if a person does not object within
fourteen days after receiving the notice required by R.C. 3107.11(A)(1), his or her
consent to the adoption is no longer required.
{¶24} Finally, R.C. 3107.07(K) cross-references R.C. 3107.11(B), which,
according to R.C. 3107.07(K), governs the filing of proof that notice was given.
The current version of R.C. 3107.11(B), however, does not address filing proof of
notice and instead sets forth the language a court’s notice must contain if the
petition for adoption alleges that a parent failed without justifiable cause to
provide for the maintenance and support of the minor or more than de minimis
contact with the minor:
(B) Upon the filing of a petition for adoption that alleges that a
parent has failed without justifiable cause to provide more than de
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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. 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
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OF ADOPTION MAY BE ENTERED IF YOU FAIL TO FILE AN
OBJECTION TO THE ADOPTION PETITION OR APPEAR AT
THE HEARING.”
Before the General Assembly amended R.C. 3107.11 in 2008, division (B) did
address the filing of proof that notice was given, and provided: “All notices
required under this section shall be given as specified in the Rules of Civil
Procedure. Proof of the giving of notice shall be filed with the court before the
petition is heard.” See 2008 Sub.H.B. No. 7.
{¶25} In 2008, the General Assembly passed Substitute House Bill 7,
which went into effect on April 7, 2009. 2008 Sub.H.B. No. 7. That legislation
amended R.C. 3107.11 by adding a new division (B), and by bumping the existing
division (B) to a new division, (C). Id. When it did so, the General Assembly did
not also amend the cross-references in R.C. 3107.07(K) and 3107.11(A) to reflect
that the old R.C. 3107.11(B) was the new R.C. 3107.11(C). See 2008 Sub.H.B.
No. 7.
{¶26} We begin our de novo review of the trial court’s interpretation and
application of R.C. 3107.07 and 3107.11 by noting that the Supreme Courts of the
United States and Ohio have recognized a putative father’s right to a parental
relationship with his offspring. In re Adoption of Zschach, 75 Ohio St.3d 648,
650-651 (1996), citing Lehr v. Robertson, 463 U.S. 248, 261-265, 103 S.Ct. 2985-14-
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(1983) and In re Adoption of Greer, 70 Ohio St.3d 293, 298 (1994). By the same
token, “the goal of adoption statutes is to protect the best interests of children.” Id.
at 651. “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.” Id. (citations omitted).
{¶27} “In balancing the rights of a putative father and the state’s interest in
protecting the welfare of children, the legislature has enacted a statutory scheme
where putative fathers are given the right to contest an adoption by filing an
objection with the appropriate authority.” Id. The Supreme Court of Ohio has
“held that adoption statutes are in derogation of common law and therefore must
be strictly construed * * *.” Id. at 655, citing Lemley v. Kaiser, 6 Ohio St.3d 258,
260 (1983). However, “strict construction does not require that we interpret
statutes in such a manner that would mandate an unjust or unreasonable result.”
Id., citing R.C. 1.47(C).
{¶28} The parties do not dispute the facts relevant to our analysis of the
Nords’ first assignment of error. No one disputes that Scheiderer—whether
classified as a father or a putative father—was a person whose consent to the
adoption was required under R.C. 3107.06. As a person whose consent to the
adoption was required but who had not yet consented, the trial court was required
to notify Scheiderer of the filing of the Nords’ amended petition and of the time
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and place of the hearing on the petition. R.C. 3107.11(A)(1). The parties do not
dispute that the trial court sent two notices to Scheiderer—one in the form of a
magistrate’s order on July 5, 2012, and the other in the form of a “NOTICE OF
HEARING ON PETITION FOR ADOPTION” signed by the trial court judge and
dated August 20, 2012.
{¶29} Scheiderer does not dispute that he failed to timely file an objection
to the Nords’ petition for adoption. Instead, he argues that because he was a
putative father who timely registered with Ohio’s Putative Father Registry, R.C.
3107.07(B) required his consent to the adoption and controlled over the more
general R.C. 3107.07(K). Scheiderer also argues that his registering with Ohio’s
Putative Father Registry, his appearance at hearings, and his filing a paternity
action in the Juvenile Division was sufficient notice that he objected to the
adoption.
{¶30} In its decision, the trial court similarly concluded that Scheiderer’s
consent was required under R.C. 3107.07(B) and that he did not consent. (Doc.
No. 30). The trial court also concluded that it was required to and did notify
Scheiderer of the Nords’ amended petition and the hearing under R.C. 3107.11(A);
that R.C. 3107.11(A) did not require Scheiderer to object; and, that the trial court
was not required to give Scheiderer notice under R.C. 3107.11(B) because this
case did not involve allegations under R.C. 3107.07(A) that Scheiderer failed
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without justifiable cause to provide for the maintenance and support of A.N. or
more than de minimis contact with A.N. (Id.). In excusing Scheiderer’s failure to
timely file an objection to the Nords’ amended petition, the trial court reasoned
that Scheiderer “has already clearly declared and formally put interested parties on
notice of his desire to be a part of the child’s life.” (Id.).
{¶31} We disagree with Scheiderer and the trial court and hold that
Scheiderer’s consent to the Nords’ adoption of A.N. was not required because he
failed to file an objection to the Nords’ amended petition within fourteen days
after proof was filed with the trial court on August 23, 2012 that he was given
notice of the Nords’ amended petition and of the September 26, 2012 hearing.
R.C. 3107.07(K). See also In re T.L.S., 2012-Ohio-3129, at ¶ 12.
{¶32} We begin our analysis by noting that the trial court’s first notice to
Scheiderer—which came in the form of magistrate’s order on July 5, 2012—was
not sufficient to satisfy the requirements of R.C. 3107.11(A) because it did not
inform him “of the time and place of hearing.” Rather, the magistrate’s order said
the hearing would be scheduled as “set forth in a separate entry.” (Doc. No. 8).
{¶33} The trial court’s second notice, however—issued on August 20,
2012—did satisfy R.C. 3107.11(A). It notified Scheiderer of the Nords’ amended
petition and of the September 26, 2012 hearing, and it informed him that if he
wished to contest the adoption, he needed to file an objection within fourteen days
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of receiving the notice and appear at the hearing. (Doc. No. 22). This was
sufficient to satisfy Scheiderer’s due-process rights. See In re Adoption of Baby
F., 10th Dist. Franklin Nos. 03AP-1092 and 03AP-113, 2004-Ohio-1871, ¶ 13-20
(acknowledging that “[a] putative father’s consent to an adoption is not necessary
if he receives notice of a petition for adoption and does not file objections to the
petition within 14 days” but concluding that the putative father’s consent to the
adoption “could not be excused pursuant to R.C. 3107.07(K)” because the notice
of hearing failed to inform the putative father “of the need to file objections within
14 days if he objected to the adoption” and, therefore, “did not comply with the
putative father’s due process rights”).
{¶34} In accordance with R.C. 3107.07(K) and R.C. 3107.11(C), proof that
Scheiderer received the notice was filed with the trial court on August 23, 2012,
giving him until September 6, 2012 to file an objection. (Doc. No. 22). Because
he failed to do so, we hold that his consent to the adoption was not required. R.C.
3107.07(K). See also In re T.L.S. at ¶ 12 (concluding “that appellee’s consent to
the adoption was not required because he failed to object when given notice of the
adoption petition”).
{¶35} Our holding is consistent with the Supreme Court of Ohio’s decision
in In re Adoption of Zschach. 75 Ohio St.3d 648. In that case, the Supreme Court
rejected a putative father’s attempt to circumvent the procedural mandates of a
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former version of R.C. 3107.07(B). Id. at 650-652. The putative father argued
that his attempt to condition his consent to adoption on his retention of permanent
visitation rights satisfied R.C. 3107.07(B)’s requirement that he file a written
objection. Id. The Supreme Court rejected his argument, concluding that “[w]hile
strict adherence to the procedural mandates of R.C. 3107.07(B) might appear
unfair in a given case, the state’s interest in facilitating the adoption of children
and having the adoption proceeding completed expeditiously justifies such a rigid
application.” Id. at 652.
{¶36} We disagree with Scheiderer’s argument and the trial court’s
conclusion that Scheiderer’s consent was required under R.C. 3107.07(B),
notwithstanding R.C. 3107.07(K). R.C. 3107.07(B) sets forth circumstances under
which the consent of a minor’s putative father is not required for adoption:
Consent to adoption is not required of any of the following:
**
(B) The putative father of a minor if either of the following applies:
(2) The putative father fails to register as the minor’s putative
father with the putative father registry established under section
3107.062 of the Revised Code not later than thirty days after the
minor’s birth;
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(3) The court finds, after proper service of notice and hearing, that
any of the following are the case:
(a) The putative father is not the father of the minor;
(b) The putative father has willfully abandoned or failed to care for
and support the minor;
(c) The putative father 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.
Scheiderer’s timely registration with Ohio’s Putative Father Registry simply
meant that R.C. 3107.07(B) did not excuse his consent. See R.C. 3107.07(B)(1).
It did not guarantee that his consent would be required, nor did it authorize him to
ignore other applicable provisions of R.C. 3107.07. Divisions (A) through (L) of
R.C. 3107.07 set forth distinct and independent circumstances under which
consent is not required. See R.C. 3107.07 (“Consent to adoption is not required of
any of the following * * *.” (Emphasis added)); In re B.A.H., 2d Dist. Greene No.
2012-CA-44, 2012-Ohio-4441, ¶ 19 (“Thus, in Ohio, putative fathers must consent
to any adoption unless one of the exceptions set forth in R.C. 3107.07 applies.”
(Emphasis added.)).
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{¶37} We also disagree with the trial court’s interpretation and application
of R.C. 3107.07 and 3107.11. The trial court reasoned that R.C. 3107.11(A) did
not require Scheiderer to file an objection, but that reasoning ignores the role of
R.C. 3107.07(K). It is true that R.C. 3107.11(A), standing alone, does not require
the filing of an objection. Rather, that requirement is found in R.C. 3107.07(K),
and it applied to Scheiderer because he is a person who was entitled to notice
under R.C. 3107.11(A)(1).
{¶38} Scheiderer argues and the trial court reasoned that Scheiderer’s
failure to timely file an objection in this case was excused by his registering with
Ohio’s Putative Father Registry, his appearance at hearings, and his filing a
paternity action. However, R.C. 3107.07(K) is clear—it excuses the consent of
any agency or person who fails to timely file objections to the notice provided
under R.C. 3107.11(A)(1). Anything short of timely filing objections results in
consent no longer being required. We, therefore, reject Scheiderer’s “constructive
notice” arguments and the similar reasoning of the trial court.
{¶39} In support of his arguments, Scheiderer cites In re Adoption of
Campbell, 5th Dist. Guernsey No. 07 CA 43, 2008-Ohio-1916. However, the
Fifth District in that case made no mention of R.C. 3107.07(K) and instead
addressed whether, under R.C. 3107.07(A), the appellant failed without justifiable
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cause to communicate with the minor for a period of one year preceding the filing
of the petition for adoption. Id. at ¶ 20-21.
{¶40} Scheiderer also cites the Supreme Court of Ohio’s decision in In re
Adoption of Greer, 70 Ohio St.3d 293 (1994), and this Court’s decision in In re
Adoption of Youngpeter, 65 Ohio App.3d 172 (3d Dist.1989). More specifically,
Scheiderer relies on a footnote in In re Adoption of Greer, in which the Supreme
Court cited In re Adoption of Youngpeter and “express[ed] no opinion as to
whether a putative father who objects to the adoption for the first time by making
an oral objection at the hearing of the adoption petition has ‘filed’ an objection
within the scope of” a since-amended version of R.C. 3107.07(B) requiring that a
putative father file an objection to the adoption. In re Adoption of Greer at 301,
fn. 3. The Supreme Court characterized this Court’s decision in In re Adoption of
Youngpeter as “implicitly holding that oral objection suffices to trigger right to
hearing on R.C. 3107.07[B] issues of abandonment or failure to support.” In re
Adoption of Greer at 301, fn. 3.
{¶41} In re Adoption of Greer does not bear on this case because the
Supreme Court expressed no opinion as to whether an oral objection at hearing
could satisfy a requirement that one “file” an objection. Id. Nor does In re
Adoption of Youngpeter bear on our holding today. In that case, the parties did not
present us with the question of whether an oral objection at hearing could satisfy a
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requirement that one “file” an objection, and we did not offer an opinion on that
question. See In re Adoption of Youngpeter at 174-179. Even assuming In re
Adoption of Youngpeter stood for the proposition that an oral objection could
constitute a “filing,” R.C. 3107.07(K) clearly requires that the objection be filed
within fourteen days of receipt of notice. Here, Scheiderer made his oral objection
at the September 26, 2012 hearing, which was more than fourteen days after proof
was filed that he received the trial court’s August 20, 2012 notice. (See Sept. 26,
2012 Tr. at 8, 13). Thus, this case does not call upon us to decide, and we still do
not decide, whether an oral objection at hearing can satisfy the statute’s
requirement that one “file” an objection.
{¶42} As the Supreme Court of Ohio did in In re Adoption of Zschach, we
acknowledge that “strict adherence to the procedural mandates of [R.C.
3107.07(K)] might appear unfair,” but that adherence is necessary given the intent
of the legislature apparent from the statute’s language. The General Assembly
amended Ohio’s adoption laws in 1996 “to streamline the adoption process and to
reduce the time needed to finalize an adoption.” In re T.L.S., 2012-Ohio-3129, at
¶ 10, citing In re Adoption of P.A.C., 126 Ohio St.3d 236, 2010-Ohio-3351, ¶ 56
(Cupp, J., dissenting). These amendments included the addition of R.C.
3107.07(K). See 1996 H.B. No. 419; In re T.L.S. at ¶ 10. It is not the role of this
Court to second guess the legislature’s policy decisions. See Matter of Apple, 2d
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Dist. Miami No. 93-VA-59, 1994 WL 515116, *7 (Sept. 21, 1994) (“It is wholly
inappropriate for this court to rewrite the adoption laws of Ohio on grounds of
policy considerations. The legislature is the proper arena for thrashing out policy
considerations such as are involved in the sensitive area of adoptions.”).
{¶43} The Nords’ first assignment of error is, therefore, sustained.
Assignment of Error No. II
The probate court erred in finding that the putative father’s
abandonment of the birthmother during her pregnancy and
through the time of placement was justified.
Assignment of Error No. III
The probate court erred in finding that the putative father’s
abandonment and failure to care for and support the minor,
[sic] was justified.
{¶44} In their second assignment of error, the Nords argue that the trial
court erred in concluding that Scheiderer did not, under R.C. 3107.07(B)(2)(c),
willfully abandon Hart during her pregnancy and up to the time A.N. was placed
with the Nords. In their third assignment of error, the Nords argue that the trial
court erred in concluding that Scheiderer did not, under R.C. 3107.07(B)(2)(b),
willfully abandon or fail to care for and support A.N.
{¶45} In light of our decision that the trial court erred when it concluded
that Scheiderer’s consent to the adoption was required notwithstanding his failure
to timely file an objection to the adoption under R.C. 3107.07(K), the Nords’
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remaining assignments of error have been rendered moot, and we decline to
address them. App.R. 12(A)(1)(c).
{¶46} Having found error prejudicial to the appellants herein in the
particulars assigned and argued, we reverse the judgment of the trial court and
remand for further proceedings consistent with this opinion.
Judgment Reversed and
Cause Remanded
WILLAMOWSKI and ROGERS, J.J., concur.
/jlr
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