B.W. v. D.B.-B.

953 N.E.2d 369, 193 Ohio App. 3d 637
CourtOhio Court of Appeals
DecidedJune 10, 2011
DocketNo. L-10-1212
StatusPublished
Cited by2 cases

This text of 953 N.E.2d 369 (B.W. v. D.B.-B.) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
B.W. v. D.B.-B., 953 N.E.2d 369, 193 Ohio App. 3d 637 (Ohio Ct. App. 2011).

Opinion

Pietrykowski, Judge.

{¶ 1} This is an appeal of July 2 and 12, 2010 judgments of the Juvenile Division of the Lucas County Court of Common Pleas in litigation brought by appellee (“B.W.” or “biological father”), first, pursuant to R.C. 3111.04(A) to establish the existence of a father-and-child relationship with G.B., a minor child, and second, to secure an order naming him the primary residential parent of G.B., or, alternatively, establishing reasonable visitation rights and companionship with the child. Appellants are J.V. and C.V. (the prospective adoptive parents).

{¶ 2} B.W. registered as father of G.B. with Ohio’s putative-father registry on November 15, 2007, and filed the complaint to determine paternity and to establish parental rights, including child custody, on December 28, 2007. He filed the complaint in the Fulton County Court of Common Pleas, Juvenile Division, and named appellants and others as defendants. By order of February 21, 2008, the court transferred the case to the Juvenile Division of the Lucas County Court of Common Pleas.

[640]*640{¶ 3} Appellants filed a petition to adopt G.B. on January 16, 2008, in the Lucas County Court of Common Pleas, Probate Division, based upon permanent-surrender agreements executed in November 2010 by D.B.-B. (the birth mother of G.B.) and by J.B. (the child’s presumed father). The surrender agreements requested that Adoption by Gentle Care, a licensed, private child-placing agency, accept permanent custody of the child for the purpose of adoption. Adoption by Gentle Care placed the child with appellants as prospective adoptive parents.

{¶ 4} Prom the beginning, the litigants were on notice of their conflicting interests in regard to establishing parental rights for G.B. The child was born in late October 2007. The permanent-surrender agreement executed by the presumed father in November 2007 identified him as the legal father of G.B., but specifically stated that he was not the biological father.

{¶ 5} The probate court stayed adoption proceedings pending a determination of paternity by the juvenile court. After genetic testing, the juvenile court issued judgment on March 17, 2009, declaring B.W. to be the father of G.B. On June 4, 2009, the probate court issued its judgment and dismissed the petition for adoption. This court affirmed on appeal. In re Adoption of G.V.,1 6th Dist. No. L-09-1160, 2009-Ohio-6338, 2009 WL 4447562. The Ohio Supreme Court affirmed on July 22, 2010. In re Adoption of G.V., 126 Ohio St.3d 249, 2010-Ohio-3349, 933 N.E.2d 245.

{¶ 6} After dismissal of adoption proceedings, the juvenile court proceeded to consider parental rights and custody of G.B. In a judgment filed on February 5, 2010, the juvenile court designated the biological father as residential parent and legal custodian of G.B., “pending a favorable home study of * * * [biological father] * * * by the guardian ad litem.” The guardian ad litem (“GAL”) thereafter issued a favorable report. In judgments filed on July 2 and July 12, 2010, the juvenile court recognized the favorable GAL report and directed the transfer of custody of G.B. to biological father.

Claimed Lack of Appellate Jurisdiction

{¶ 7} Appellee argues that this court lacks jurisdiction to consider this appeal. In an earlier appeal in this dispute, this court ruled that the February 5, 2010 judgment that declared appellee the residential parent and legal custodian was not a final, appealable order because it was contingent on a favorable home study to be conducted by the guardian ad litem. B.W. v. D.B.-B. (Mar. 24, 2010), 6th Dist. Nos. L-10-1017, L-10-1045, and L-10-1055, 2010 WL 1491640, ¶ 8, 23. Appellee argues that the trial court’s judgment of March 24, 2010, removed that [641]*641contingency and was a final, appealable order. Appellee argues that the court is without jurisdiction to consider this appeal because appellants failed to appeal the March 24, 2010 judgment.

{¶ 8} In Sabrina J. v. Robbin C. (Jan. 26, 2001), 6th Dist. No. L-00-1374, 2001 WL 85157, this court held:

{¶ 9} “[A]n order of a trial court which merely adopts a magistrate’s decision and enters it as the judgment of the court is not a final appealable order. * * * [T]o be final, an entry of judgment by the trial court pursuant to Civ.R. 53(E)(4) must:

{¶ 10} “1. pursuant to subsection (b), ‘adopt, reject, or modify’ the magistrate’s decision and should state, for identification purposes, the date the magistrate’s decision was signed by the magistrate,

{¶ 11} “2. state the outcome (for example, ‘defendant’s motion for change of custody is denied’) and contain an order which states the relief granted so that the parties are able to determine their rights and obligations by referring solely to the judgment entry, and,

{¶ 12} “3. be a document separate from the magistrate’s decision.” (Emphasis added.)

{¶ 13} Although the March 24, 2010 judgment stated that the guardian ad litem report had been accepted and that the decision of the magistrate of February 8, 2010, was adopted by the trial court, it was only with the July 2, 2010 judgment that the trial court included a description in its judgment of the relief granted and obligations owing from the judgment. The judgment added a requirement that G.B. was to be brought to a court hearing “so that he may be placed with plaintiff * * * [B.W.].”

{¶ 14} We conclude that the July 2, 2010 judgment is a final and appealable order pursuant to Civ.R. 53(E)(4) and R.C. 2505.02. We also conclude that this court has jurisdiction to consider appellants’ appeal.

{¶ 15} Appellants assert three assignments of error on appeal:

{¶ 16} “Appellants’ First Assignment of Error

{¶ 17} “The Juvenile Court erred by making any findings and orders because it lacks jurisdiction.

{¶ 18} “Appellants’ Second Assignment of Error

{¶ 19} “The Juvenile Court erred in entering any decision based upon the finding that Appellee is the father of this child.

{¶ 20} “Appellants’ Third Assignment of Error

[642]*642{¶ 21} “The Juvenile Court erred by violating the due process rights of the Appellants and of the child.”

Subject-Matter Jurisdiction and Res Judicata

{¶ 22} The probate court followed the procedure announced in In re Adoption of Pushcar, 110 Ohio St.3d 332, 2006-Ohio-4572, 853 N.E.2d 647, when considering appellants’ petition for adoption. The court stayed appellants’ adoption proceedings pending determination of paternity in the pending action in the juvenile court. The court gave effect to the juvenile court’s determination of paternity in its judgment dismissing the adoption petition.

{¶ 23} In its June 4, 2009 judgment, the probate court ruled that the declaration of paternity required the biological father to be treated as a legal father of G.B. and that whether his consent was required for adoption of G.B. was governed by R.C. 3107.07(A). The probate court ruled that the biological father’s consent was required.

{¶ 24} Appellants have disputed the applicability of In re Adoption of Pushcar

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In re D.J.
2019 Ohio 1645 (Ohio Court of Appeals, 2019)
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2014 Ohio 4730 (Ohio Court of Appeals, 2014)

Cite This Page — Counsel Stack

Bluebook (online)
953 N.E.2d 369, 193 Ohio App. 3d 637, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bw-v-db-b-ohioctapp-2011.