In re Adoption of C.P.F.

[Cite as In re Adoption of C.P.F., 2014-Ohio-4479.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
Nos. 101147 and 101148
IN RE: ADOPTION OF C.P.F. AND L.C.F.
Minor Children
JUDGMENT:
AFFIRMED IN PART;
REVERSED IN PART AND REMANDED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Probate Court Division
Case Nos. 2011 ADP 7645 and 2011 ADP 7644
BEFORE: Keough, P.J., Kilbane, J., and McCormack, J.
RELEASED AND JOURNALIZED: October 9, 2014
ATTORNEYS FOR APPELLANTS
James Edward Kocka
1000 W. Wallings Road, Suite A
Broadview Heights, Ohio 44147
Patrick M. Farrell
600 East Granger Road, Second Floor
Brooklyn Heights, Ohio 44131
ATTORNEYS FOR APPELLEES
Bradley Hull
30195 Chagrin Boulevard, Suite 110-N
Pepper Pike, Ohio 44124
Pierce Leary
401 South Street, Building 4A
Chardon, Ohio 44024
GUARDIAN AD LITEM
Eric R. Laubacher
Laubacher & Company
20525 Center Ridge Road, Suite 626
Rocky River, Ohio 44116
KATHLEEN ANN KEOUGH, P.J.:
{¶1} This is an appeal from the probate court’s judgment that dismissed the
second petitions for adoption of minor children C.P.F. and L.C.F., filed by appellants C.F.
and P.F. (collectively, the “Fs”) while their appeal of the probate court’s dismissal of their
first petitions for adoption of the children was pending. This appeal is before the court
on the accelerated docket pursuant to App.R. 11.1 and Loc. App.R. 11.1. Finding some
merit to the appeal, we affirm in part, reverse in part, and remand.
I. Background
{¶2} In December 2009, the biological parents of C.P.F. and L.C.F. were living
in a hotel, jobless, using drugs, and unable to support their three small children. They
signed a handwritten agreement with T.C. and D.C. (collectively, the “Cs”), a maternal
aunt and uncle of the children’s biological mother, in which they acknowledged that they
were unemployed and drug addicted, and gave the Cs “temporary emergency
guardianship” of C.P.F. and L.C.F. 1 The agreement provided that it would remain in
effect until the four signatories agreed that it was no longer necessary.
{¶3} In early April 2010, after the biological father had completed 90 days of
drug rehabilitation, the Cs returned the children to the biological parents. However, after
learning that the parents were again using drugs, the Cs recovered the children in July
2010 through a court order. They told the parents that they would not be permitted to see
the children unless they met certain conditions: they were drug free for six months, had
Their other child went with another family member.
1
gainful employment, and the biological father completed anger management classes.
The Cs were overwhelmed by caring full-time for C.P.F. and L.C.F., who have special
needs, however, and the Fs offered to care for the children. The children began spending
time with the Fs and by October 2010, were living primarily with the Fs.
{¶4} On April 15, 2011, the Cs resigned as guardians of C.P.F. and L.C.F., and
the court appointed the Fs as successor guardians. In early May, the biological parents
learned for the first time that C.P.F. and L.C.F. were living with the Fs and that a
successor guardianship had been granted. In June 2011, the biological parents filed a
motion to vacate the guardianship and for visitation; they withdrew the motion in August
2011, however, after the biological father relapsed. On October 13, 2011, the biological
parents refiled their motion to terminate the guardianship and for visitation. Later that
day, the Fs filed petitions for adoption of C.P.F. and L.C.F.
{¶5} The adoption proceedings were stayed pending resolution of the biological
parents’ motion to terminate guardianship and for visitation, and the parties subsequently
entered an agreed judgment entry regarding the motions. The stay of proceeding
regarding the adoption petitions was then dissolved, and the biological parents filed
objections to the petitions.
{¶6} Under R.C. 3107.06, a petition to adopt a minor may only be granted if the
biological parents consent to the adoption in writing. Under R.C 3107.07(A), however,
the consent of the biological parent is not required if, after notice and hearing, a court
finds by clear and convincing evidence that the parent has failed without justifiable cause
to communicate with the child or provide maintenance and support as required by law or
judicial decree for at least one year immediately preceding either the filing of the
adoption petition or the placement of the minor in the petitioner’s home.
{¶7} In January 2013, the magistrate held a hearing on the issue of whether the
biological parents’ consent to the adoptions was required. Considering the period of
October 13, 2010, through October 13, 2011 (the one-year period prior to the filing of the
adoption petitions),2 the magistrate found that the Fs had failed to establish by clear and
convincing evidence that the biological parents failed without justifiable cause to provide
more than de minimis contact with their children. Specifically, he found that the
evidence showed that from December 2010 through February 2011, the biological mother
made repeated telephone calls to the Cs, who admitted in their testimony that they hung
up on her and did not make return calls when she left messages. D.C. admitted that the
biological mother asked to see the children but he refused to allow it. The Cs admitted
that they intentionally did not tell the biological mother that the children were living with
the Fs. In light of this evidence, the magistrate concluded that there was justifiable cause
for the biological parents’ failure to maintain contact with their children.
The children were placed with the Fs on April 15, 2011. The magistrate found that they
2
lived with their biological parents from early April 2010 until July 12, 2010, so it was apparent that
the biological parents provided contact and support for their children during the one-year period prior
to their placement with the Fs.
{¶8} With respect to maintenance and support, the magistrate found there was no
legal or judicial obligation for the biological parents to pay support and, even if there
were, there was justifiable cause for their failure to do so based upon the conduct of the
Cs and the Fs. The magistrate found that the biological parents were “affirmatively
misled” by the Cs regarding the whereabouts of their children from October 2010 through
April 2011, and that the Fs voluntarily undertook the care and support of the children and
did not disclose this to the biological parents.
{¶9} Accordingly, although the magistrate acknowledged that the biological
parents are not good parents, he recommended that the trial court issue a judgment
indicating that their consent to the adoptions was required and dismissing the Fs’ petition
for adoption pursuant to R.C. 3107.06 based upon the biological parents’ non-consent.
On June 7, 2013, the Fs filed objections to the magistrate’s decision. On the same day
and before the trial court had ruled on their objections, they also filed second petitions for
adoption of C.P.F. and L.C.F. The probate clerk assigned the second petitions the same
lower court case numbers as the first petitions for adoption.
{¶10} In October 2013, the trial court entered a judgment adopting the
magistrate’s decision; the Fs timely appealed the trial court’s judgment. In re: Adoption
of L.C.F., 8th Dist. Cuyahoga No. 100633, and In re: Adoption of C.P.F., 8th Dist.
Cuyahoga No. 100634.3
This court dismissed the appeals on May 19, 2014, for lack of a final, appealable order
3
{¶11} In December 2013, the biological parents filed a motion to dismiss the Fs’
second petitions for adoption. The trial court subsequently granted the motion to
dismiss. The court ruled that
[u]ntil the Eighth District Court of Appeals renders its decision on this trial
court’s decision of October 16, 2013, any other proceedings in the adoption
issue are stayed as to the first petition for adoption. It is not possible for
this court to hear any further evidence in the adoption of [L.C.F. and C.P.F.]
during the pendency of the appeal, and in the event this court’s decision is
reversed and remanded, any subsequent hearings will be on the petition for
adoption filed on October 3, 2011.
{¶12} The Fs timely appealed.
II. Analysis
{¶13} In Grava v. Parkman Twp., 73 Ohio St.3d 379, 653 N.E.2d 226 (1995), the
Ohio Supreme Court set forth the general principles of res judicata: “A final judgment or
decree rendered upon the merits * * * by a court of competent jurisdiction is a complete
bar to any subsequent action on the same claim or cause of action between the parties or
those in privity with them.”
{¶14} In their first assignment of error, the Fs contend that the trial court
erroneously relied on the doctrine of res judicata in dismissing the second petitions for
adoption. They argue that the second petitions involve separate facts and circumstances
for the trial court to consider because under R.C. 3107.07(A), the second petitions require
the court to consider whether the biological parents communicated with or provided
because although the trial court adopted the magistrate’s decision, it failed to enter a separate
judgment stating the relief to be granted. The dismissals do not affect our analysis.
maintenance and support for the children for the 12-month period prior to June 7, 2013,
when the second petitions were filed, rather than the 12-month period prior to October 13,
2011, when the first petitions were filed. Therefore, they contend, the second petitions
were separate and distinct causes of action independent of the first petitions for adoption
and not subject to res judicata.
{¶15} But the trial court did not grant the motion to dismiss on the basis of res
judicata; the court granted the motion because it had no jurisdiction to consider the
second petitions while its judgment regarding the first petitions was on appeal.
{¶16} Once an appeal has been filed, the trial court loses jurisdiction “except to
take action in aid of the appeal.” State ex rel. Special Prosecutors v. Judges, Court of
Common Pleas, 55 Ohio St.2d 94, 97, 378 N.E.2d 162 (1978). The trial court retains
jurisdiction only over issues not inconsistent with the reviewing court’s jurisdiction to
reverse, modify, or affirm the judgment, such as collateral issues like contempt or
appointment of a receiver. Howard v. Catholic Social Servs. of Cuyahoga Cty., Inc., 70
Ohio St.3d 141, 146, 637 N.E.2d 890 (1994). Furthermore, “the determination as to the
appropriateness of an appeal lies solely with the appellate court. A juvenile judge has no
authority to determine the validity or merit of an appeal.” In re S.J., 106 Ohio St.3d 11,
2005-Ohio-3215, 829 N.E.2d 1207, ¶ 9.
{¶17} In this case, the probate court lost jurisdiction to consider any issues
relating to the adoption of C.P.F. and L.C.F. when the Fs filed their notice of appeal on
November 15, 2013. That appeal challenged the trial court’s judgment that the
biological parents’ consent to adoption was necessary. Any decision by the probate court
regarding the Fs’ second petition for adoption would necessarily involve the same issue
and, thus, would be inconsistent with this court’s jurisdiction to reverse, modify, or affirm
the judgment. Accordingly, the probate court lacked jurisdiction to proceed with any
further adoption proceedings until this court rendered a decision on the Fs’ appeal. See,
e.g., In re: Adoption of A.W. & R.W., 9th Dist. Medina Nos. 08CA0040-M and
08CA0051-M, 2009-Ohio-1492 (probate court had no jurisdiction to conduct best interest
hearing and issue final decree of adoption while biological father’s appeal of judgment
that his consent was not necessary was pending).
{¶18} Furthermore, the Fs’ argument that the probate court should have
proceeded because the second petitions involve a different look-back period and thus are
a “separate, distinct, and independent” cause of action from the first petitions is without
merit. In State ex rel. Otten v. Henderson, 129 Ohio St.3d 453, 2011-Ohio-4082, 953
N.E.2d 809, Otten, the biological father, filed a complaint in the Clermont County
Juvenile Court for the allocation of parental rights regarding P.A.C. While the action to
establish a parent-child relationship was pending in the Clermont County Juvenile Court,
P.A.C.’s stepfather filed a petition to adopt P.A.C. in the Hamilton County Probate Court,
asserting that Otten’s consent was not required because he had failed without justifiable
cause to provide for P.A.C.’s maintenance and support for at least one year.
Subsequently, the stepfather filed a petition to adopt P.A.C. in the Clermont County
Probate Court, likewise asserting that Otten’s consent to the adoption was not necessary
because of his failure to provide maintenance and support to P.A.C. The Clermont
County Probate Court scheduled the matter for hearing, and Otten filed an action for writs
of prohibition and mandamus in the appellate court, objecting to the court’s jurisdiction
because the adoption proceeding initiated in the Hamilton County Probate Court was
pending. The court of appeals subsequently denied Otten’s objections challenging the
jurisdiction of the Clermont County Probate Court over the adoption petition, finding that
the petitions raised different issues.
{¶19} The Ohio Supreme Court reversed the appeals court, however, finding that
the Clermont County Probate Court lacked jurisdiction to proceed. The court found the
petitions involved the same parties and raised the same cause of action: the stepfather’s
requested adoption of P.A.C. Id. at ¶ 28. Further, the court found that the petitions
raised the same issue: whether Otten’s consent to the adoption was not required because
of his failure to communicate with and support the child in the year preceding the filing of
the petition. Id. The court stated:
In applying the jurisdictional-priority rule in the context of proceedings
involving the termination of parental rights, we are guided by the precept
that “[t]he right of a parent to the custody of his or her child is one of the
oldest fundamental liberty interests recognized by American courts.” In re
Thompkins, 115 Ohio St.3d 409, 2007-Ohio-5238, 875 N.E.2d 582, ¶ 10.
“[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, 23
Ohio St.3d 163, 165, 492 N.E.2d 140 (1986). Therefore, parents must be
accorded every legally available protection before their parental rights are
terminated. Thompkins at ¶ 11.
Consistent with the foregoing precedent, we have recognized “the bedrock
proposition that once a court of competent jurisdiction has begun the task of
deciding the long-term fate of a child, all other courts are to refrain from
exercising jurisdiction over that matter.” In re Adoption of Asente, 90 Ohio
St.3d 91, 92, 2000-Ohio-32, 734 N.E.2d 1224. Until the first court with
jurisdiction over the matter has relinquished jurisdiction, the second court
lacks jurisdiction. The party seeking adoption must wait to file a
subsequent petition. See id. at 104.
Id. at ¶ 31-32.
{¶20} We recognize that unlike Otten, this case does not involve the
jurisdictional-priority rule, which provides that as between courts of concurrent
jurisdiction, the court whose power is invoked first acquires jurisdiction, to the exclusion
of all other courts, to adjudicate the whole issue and settle the rights of the parties.
Nevertheless, the Fs seem to suggest that the probate court could have proceeded if the
clerk had assigned the second petitions different case numbers from the first petitions,
and that, in any event, it should have proceeded because the second petitions present a
different cause of action from the first petitions. As Otten makes clear, however, the
probate court lacked jurisdiction to proceed on the second petitions regardless of whether
they were filed in the same lower court case or a different case or court. The second
petitions presented the same cause of action — the adoption of C.P.F. and L.C.F. — as
the first petitions. Moreover, they presented the same issue: whether the biological
parents’ consent to the adoption was necessary. Accordingly, until the appeal was
decided, the probate court had no jurisdiction to consider the second petitions.
{¶21} We find, however, that the trial court erred in dismissing the second
petitions rather than staying their consideration until the appeal proceedings were
completed. The Fs filed the second petitions for adoption in June 2013; they filed their
appeal of the trial court’s judgment regarding the first petitions on November 15, 2013.
Thus, the second petitions were pending when the appeal was filed. Accordingly,
although the trial court had no jurisdiction to proceed with the second petitions while the
Fs’ appeal regarding the first petitions was pending, the trial court’s jurisdiction to
consider the second petitions would resume after the appeal was completed.
Accordingly, the trial court should have stayed any consideration of the second petitions
pending the appeal, rather than dismissing the petitions.
{¶22} The first assignment of error is therefore sustained in part and overruled in
part.
{¶23} In their second assignment of error, the Fs argue that the trial court erred
in dismissing the second petitions because the biological parents did not file timely
objections to the petitions as required by R.C. 3107.11(B). This argument is without
merit. The probate court had no jurisdiction to consider the second petitions for adoption
while the Fs’ appeal regarding the first petitions was pending, regardless of whether the
biological parents filed timely objections to the second petitions. The second assignment
of error is therefore overruled.
{¶24} Affirmed in part; reversed in part, and remanded for the trial court to issue
a modified entry staying the second petitions pending appeal.
It is ordered that the parties share equally the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment into
execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
KATHLEEN ANN KEOUGH, PRESIDING JUDGE
MARY EILEEN KILBANE, J., and
TIM McCORMACK, J., CONCUR