DocketNumber: No. CA2002-10-104.
Judges: <bold>POWELL, J.</bold>
Filed Date: 5/19/2003
Status: Non-Precedential
Modified Date: 4/18/2021
{¶ 2} The children were born on January 30, 1995. Linda is the children's paternal grandmother, Tammy, their paternal aunt. The children's biological parents, Darin Long and respondent-appellee, Lisa Busdiecker, were married in May 1995. In March 1996, Darin died in an automobile accident. In December 1997, Lisa married respondent-appellee, Todd Busdiecker.
{¶ 3} In October 1998, Linda filed a petition for visitation with the children in the Montgomery County Court of Common Pleas, Juvenile Division. Two months later, Todd filed a petition with the Montgomery County Court of Common Pleas, Probate Division, to legally adopt the children as his own. In March 1999, Todd's petition was granted. In August 1999, the Montgomery County Juvenile Court dismissed Linda's visitation petition on the ground that neither the case law nor the statutory provisions then applicable (R.C.
{¶ 4} The three Revised Code sections were subsequently amended, effective March 22, 2001. On July 5, 2001, Linda and Tammy filed a petition for visitation with the children in the juvenile court. In response to the petition, Lisa and Todd moved for summary judgment on the basis, inter alia, that the amendments to R.C.
{¶ 5} In their first assignment of error, appellants argue that the juvenile court's finding that Lisa and Darin were never married was an abuse of discretion, against the manifest weight of the evidence, or prejudicial to appellants.
{¶ 6} Although Lisa, in an affidavit filed in the juvenile court, stated that she and Darin were married on May 26, 1995, and although the magistrate, in a decision filed in the juvenile court in December 2001, found that Lisa and Darin were married, the juvenile court, inexplicably, found that they were never married. Although erroneous, the juvenile court's finding does not warrant a reversal of its decision. Darin's paternity is not disputed. Likewise, it is not disputed that his parental rights had never been terminated prior to his death. Further, the finding was not germane to the ultimate issue before the juvenile court, that is, whether newly amended R.C.
{¶ 7} In their second assignment of error, appellants argue that the trial court erred by dismissing their petition for visitation with the children. Specifically, appellants first assert that the trial court improperly relied on the Ohio Supreme Court's decision in In re Adoptionof Ridenour (1991),
{¶ 8} We begin our analysis with an examination of the three Revised Code sections as they were written before they were amended. First, R.C.
{¶ 9} "(A) A final decree of adoption * * * shall have the following effects as to all matters within the jurisdiction or before a court of this state * * *: (1) [e]xcept with respect to a spouse of the petitioner and relatives of the spouse, to relieve the biological or other legal parents of the adopted person of all parental rights and responsibilities, and to terminate all legal relationships between the adopted person and the adopted person's relatives, * * * so that the adopted person thereafter is a stranger to the adopted person's former relatives for all purposes * * *.
{¶ 10} "* * *
{¶ 11} "(B) Notwithstanding division (A) of this section, if a parent of a child dies without the relationship of parent and child having been previously terminated and a spouse of the living parent thereafter adopts the child, the child's rights from and through the deceased parent for all purposes, * * * are not restricted or curtailed by the adoption."
{¶ 12} Thus, pursuant to division (A), the effect of an adoption was to create the legal fiction that the child was no longer, in any way, related to the parent who had relinquished parental rights, and had in effect become the biological child of the adoptive parent. When the parent of a child died, as in the case now before the court, without the parent-child relationship having been terminated, division (B) controlled to allow the child to still inherit from the deceased parent or that parent's relatives in spite of any subsequent adoption. Ohio courts have read this provision as preserving the child's rights, rather than preserving any rights that any relatives of the deceased parent might have with respect to the child. See, Beard v. Pannell (1996),
{¶ 13} Next, R.C.
{¶ 14} "If either the father or mother of an unmarried minor child is deceased, the court of common pleas * * * of the county in which the minor child resides may grant the parents and other relatives of the deceased father or mother * * * visitation rights with respect to the minor child during the child's minority if the parent or other relative files a complaint requesting reasonable * * * visitation rights and if the court determines that the granting of the * * * visitation rights is in the best interest of the minor child. * * *.
{¶ 15} "The remarriage of the surviving parent of the child does not affect the authority of the court under this section to grant reasonable * * * visitation rights with respect to the child to a parent or other relative of the child's deceased father or mother."
{¶ 16} While R.C.
{¶ 17} Finally, R.C.
{¶ 18} In 1991, the Ohio Supreme Court decided Ridenour, which involved a stranger adoption rather than a stepparent adoption. Upon examination of Ohio's adoption statute, R.C.
{¶ 19} Then, in 1994, the supreme court was asked to decide In reMartin,
{¶ 20} Appellants correctly state that the supreme court has never addressed the issue of whether a stepparent adoption terminates a grandparent's right to visitation when the parental rights of the deceased parent were never terminated prior to his death. The issue, however, has been decided by several Ohio appellate courts, including this court.
{¶ 21} In Beard, the biological parents were married and had one child. Following their divorce, the biological father committed suicide. At some point, the biological mother remarried. One year after their son's death, the paternal grandparents filed a petition for visitation. The child's stepfather subsequently legally adopted the child as his own. The paternal grandparents' petition was then dismissed. The Sixth Appellate District upheld the dismissal of the grandparents' petition for visitation as follows:
{¶ 22} "The Ohio Supreme Court, in interpreting R.C.
{¶ 23} "Appellants ask this court to distinguish In re Martin and other Ohio Supreme Court cases that disallowed grandparent visitation because in this case the adoption occurred after the death of one of the natural parents. Appellants argue that R.C.
{¶ 24} In Foor, the biological parents were married and had four children. Following her divorce with the biological father, the biological mother married her current husband. After the biological father died, the stepfather legally adopted the four children as his own. The trial court denied the paternal grandparents' petition for visitation with the children, finding it lacked the authority to grant grandparent visitation following a stepparent adoption. Relying on the supreme court's decisions in Ridenour and Martin, we upheld the trial court's decision as follows:
{¶ 25} "When the Supreme Court has been presented the opportunity to rule on this issue in the past, it has consistently declined to do so, stating unequivocally that any changes in this area of the law must emanate from the General Assembly. Reluctantly, we find that we are in no position to disagree. Accordingly, the trial court did not err when it determined that it did not have the authority to grant grandparent visitation." Foor,
{¶ 26} The three Revised Code sections at issue were then amended effective March 22, 2001. We note that the amendments did not modify in any way the language of the provisions previously quoted. Rather, the amendments added new provisions and/or new language to the existing provisions, thereby establishing a right of grandparent and other relative visitation after adoption by a stepparent. Specifically, R.C.
{¶ 27} Likewise, R.C.
{¶ 28} Appellants assert that the foregoing amendments constitutionally apply retroactively to children adopted prior to the amendments' effective date. We disagree.
{¶ 29} Section
{¶ 30} Upon reviewing the amendments to R.C.
{¶ 31} Finally, appellants assert that because the law in Ohio regarding grandparents' right of visitation following a stepparent adoption was "not clear cut until after March 22, 2001," Todd never had a vested right following his adoption of the children. As a result, he could not reasonably expect to prevent future contact between the children and their natural parental family.
{¶ 32} Appellants' argument flies in the face of R.C.
{¶ 33} On the date of the Montgomery County Probate Court's final order of adoption, Todd's status was parent of the children. He had a duty to support them and they had the right to compel that duty. These were vested duties and rights. See In re Adoption of Holtel (Aug. 11, 1987), Athens App. No. 1267. Merely because Ohio law regarding post-stepparent adoption right of grandparent visitation "was not clear-cut until March 22, 2001," does not mean that Todd did not have a vested right. To accept appellants' argument would render any enactment or amendment meaningless; one would never have an expectation of finality unless and until the appellate courts were in agreement or the supreme court addressed a particular issue.
{¶ 34} In light of the foregoing, we find that the juvenile court did not err by denying appellants' petition for visitation with the children. Appellants' second assignment of error is overruled.
Judgment affirmed.
YOUNG, P.J., and WALSH, J., concur.