[Cite as In re Adoption of A.B., 2019-Ohio-5383.]
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT LOGAN COUNTY
IN RE: THE ADOPTION OF: CASE NO. 8-19-38 A.B.
[JAMES NICHOLAS DEAN OPINION LUDBAN - APPELLANT]
Appeal from Logan County Common Pleas Court Probate Division Trial Court No. 19-AD-05
Judgment Affirmed
Date of Decision: December 30, 2019
APPEARANCES:
Alison Boggs for Appellant
Susan Garner Eisenman for Appellee
Ruth T. Kelly, Amicus Curiae, Academy of Adoption and Assisted Reproduction Attorneys Case No. 8-19-38
PRESTON, J.
{¶1} Appellant, James N.D. Ludban (“Ludban”), appeals the June 25, 2019
judgment of the Logan County Court of Common Pleas, Probate Division, in which
the court found that his consent is not required for the adoption of his biological
child, A.B., by appellee, Andrew C. Burgess (“Burgess”). For the reasons that
follow, we affirm.
{¶2} On February 14, 2019, Burgess filed a petition to adopt his minor
stepdaughter, A.B. (Doc. No. 1). The petition alleged that Ludban’s consent is not
required for the adoption. (Id.). Melissa M. Burgess (“Melissa”), the child’s
biological mother, filed her consent for the adoption on the same day. (Doc. No. 3).
{¶3} On March 1, 2019, service of the notice of the hearing on consent was
made to Ludban. (Doc. No. 25). On March 19, 2019, Burgess filed an amended
petition which was identical to the petition filed on February 14, 2019 with the
additional statement that Ludban’s consent is not required because he “failed to file
an objection within 14 days of the docketing of the return of service on the notice
of adoption.” (Doc. No. 26). On March 21, 2019, Ludban faxed the trial court an
objection to the petition for adoption. (Doc. No. 27). The following day, Ludban
filed an original copy of his objection with the court. (Doc. No. 28). On May 14,
2019, Ludban filed a supplement to his objection to the adoption and motion to
-2- Case No. 8-19-38
dismiss the petition for adoption. (Doc. No. 35). On May 29, 2019, Ludban filed a
second motion to dismiss. (Doc. No. 39). On June 3, 2019, Burgess filed a response
to Ludban’s motion to dismiss. (Doc. No. 40). On June 6, 2019, Burgess filed a
motion for judgment on the pleadings on the issue of whether Ludban’s consent is
necessary for the adoption. (Doc. No. 41). On June 25, 2019, the trial court filed a
judgment entry stating its finding that Ludban’s consent to the adoption is not
necessary because he failed to timely object. (Doc. No. 44).
{¶4} On July 15, 2019, Ludban filed his notice of appeal. (Doc. No. 48). He
raises four assignments of error for our review. We will discuss Ludban’s first and
second assignments of error together, as they concern related issues. We will then
discuss Ludban’s third and fourth assignments of error together.
Assignment of Error No. I
Ohio Revised Code Section 3107.07(K) violates the 14th Amendment to the United States Constitution, as applied to appellant’s case and others similarly situated, by arbitrarily denying appellant equal protection and his due process right to be heard at a meaningful time and in a meaningful manner on the petition for adoption.
Assignment of Error No. II
The hearing notice contained in Ohio Revised Code Section 3107.11(B) violates appellant’s Constitutional right to due process as the notice provision is confusing, misleading and inaccurate.
{¶5} In his first assignment of error, Ludban argues that R.C. 3107.07(K) is
unconstitutional because it arbitrarily denies those given notice of a petition for
-3- Case No. 8-19-38
adoption pursuant to R.C. 3107.11(A)(1) equal protection and a due process right to
be heard at a meaningful time and in a meaningful manner on the petition for
adoption. In his second assignment of error, Ludban argues that the hearing notice
contained in R.C. 3107.11(B) is unconstitutional because it is confusing,
misleading, and inaccurate. For the reasons that follow, we disagree.
{¶6} In Ohio, certain persons and entities must consent to an adoption,
including the 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
14 days after that person or entity receives notice of the petition and of the hearing
on 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
-4- Case No. 8-19-38
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.
{¶7} R.C. 3107.07(K) 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 the 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;
-5- Case No. 8-19-38
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 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 14
days after receiving the notice required by 3107.11(A)(1), his or her consent to the
adoption is no longer required.
{¶8} R.C. 3107.07(K) also 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.
-6- Case No. 8-19-38
{¶9} We review de novo the determination of a statute’s constitutionality.
State v. Hudson, 3d Dist. Marion No. 9-12-38, 2013-Ohio-647, ¶ 27, citing Akron
v. Callaway, 162 Ohio App.3d 781, 2005-Ohio-4095, ¶ 23 (9th Dist.) and Andreyko
v. Cincinnati, 153 Ohio App.3d 108, 2003-Ohio-2759, ¶ 11 (1st Dist.). “De novo
review is independent, without deference to the lower court’s decision.” Id., citing
Ohio Bell Tel. Co. v. Pub. Util. Comm. of Ohio, 64 Ohio St.3d 145, 147 (1992).
{¶10} “‘It is difficult to prove that a statute is unconstitutional.’” State v.
Stoffer, 2d Dist. Montgomery No. 26268, 2015-Ohio-352, ¶ 8, quoting Arbino v.
Johnson & Johnson, 116 Ohio St.3d 468, 2007-Ohio-6948, ¶ 25. “‘All statutes have
a strong presumption of constitutionality. * * * Before a court may declare
unconstitutional an enactment of the legislative branch, “it must appear beyond a
reasonable doubt that the legislation and constitutional provisions are clearly
incompatible.”’” Id., quoting Arbino at ¶ 25, quoting State ex rel. Dickman v.
Defenbacher, 164 Ohio St. 142 (1955), paragraph one of the syllabus.
{¶11} “A party may challenge the constitutionality of a statute with either a
facial challenge or an as-applied challenge.” Simpkins v. Grace Brethren Church
of Delaware, Ohio, 149 Ohio St.3d 307, 2016-Ohio-8118, ¶ 20. The distinction
between the two types of constitutional challenges is important because the standard
of proof is different for the two types of challenges. Wymsylo v. Bartec, Inc., 132
Ohio St.3d 167, 2012-Ohio-2187, ¶ 20. “To prevail on a facial constitutional
-7- Case No. 8-19-38
challenge, the challenger must prove the constitutional defect, using the highest
standard of proof, which is also used in criminal cases, proof beyond a reasonable
doubt.” State ex rel. Ohio Congress of Parents & Teachers v. State Bd. of Edn., 111
Ohio St.3d 568, 2006-Ohio-5512, ¶ 21, citing Dickman at paragraph one of the
syllabus. Conversely, “[t]o prevail on a constitutional challenge to the statute as
applied, the challenger must present clear and convincing evidence of the statute’s
constitutional defect.” Id., citing Belden v. Union Cent. Life Ins. Co., 143 Ohio St.
329 (1944), paragraph six of the syllabus.
{¶12} “A facial challenge alleges that a statute, ordinance, or administrative
rule, on its face and under all circumstances, has no rational relationship to a
legitimate governmental purpose.” Wymsylo at ¶ 21. “Facial challenges to the
constitutionality of a statute are the most difficult to mount successfully, since the
challenger must establish that no set of circumstances exists under which the act
would be valid.” Id., citing United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct.
2095 (1987). “If a statute is unconstitutional on its face, the statute may not be
enforced under any circumstances.” Id. “When determining whether a law is
facially invalid, a court must be careful not to exceed the statute’s actual language
and speculate about hypothetical or imaginary cases.” Id., citing Washington State
Grange v. Washington State Republican Party, 552 U.S. 442, 450, 128 S.Ct. 1184
(2008).
-8- Case No. 8-19-38
{¶13} Here, Ludban concedes that although his assignments of error include
the phrase “as applied” he brings a facial challenge to the constitutionality of R.C.
3107.07(K) and 3107.11(B). (Appellant’s Reply Brief at 1-2, 4).
{¶14} We note that although Ludban argues that R.C. 3107.07(K) violates
the Equal Protection clause, he does not make distinct arguments detailing how R.C.
3107.07(K) violates the Equal Protection Clause. See State v. Raber, 189 Ohio
App.3d 396, 2010-Ohio-4066, ¶ 30 (9th Dist.), quoting NSK Industries, Inc. v.
Bayloff Stamped Prods. Kinsman, Inc., Summit No. 24777, 2010-Ohio-1171,
quoting Cardone v. Cardone, (May 6, 1998), 9th Dist. No. 18349, at ¶ 8. (““‘[I]f an
argument exists that can support [an] assignment of error, it is not this [c]ourt’s duty
to root it out.”’”). As his arguments regarding the constitutionality of R.C.
3107.07(K) are more appropriately framed in terms of the Due Process Clause, our
analysis of Ludban’s first assignment of error will focus on his contention that R.C.
3107.07(K) violates the Due Process Clause.
{¶15} The Due Process Clause of the Fourteenth Amendment to the United
States Constitution states that a state shall not “deprive any person of life, liberty,
or property without due process of law.” The Supreme Court of Ohio has
determined that the “due course of law” clause of Article I, Section 16 of the Ohio
Constitution is the equivalent of the “due process of law” clause in the Fourteenth
Amendment. Direct Plumbing Supply Co. v. Dayton, 138 Ohio St. 540, 544 (1941).
-9- Case No. 8-19-38
{¶16} “‘Due process demands that the state provide meaningful standards in
its laws.’” In re Adoption of H.N.R., 145 Ohio St.3d 144, 2015-Ohio-5476, ¶ 25,
quoting Norwood v. Horney, 110 Ohio St.3d 353, 2006-Ohio-3799, ¶ 81. “At its
most basic level, due process requires protection against arbitrary laws.” Id., citing
Sacramento Cty. v. Lewis, 523 U.S. 833, 845-846, 118 S.Ct. 1708 (1998). “To
satisfy the requirements of procedural due process, the means employed by a statute
must have a real and substantial relation to the object to be obtained, and its methods
must not be unreasonable, arbitrary, or capricious.” Id., citing Nebbia v. New York,
291 U.S. 502, 525, 54 S.Ct. 505 (1934) and Mominee v. Scherbarth, 28 Ohio St.3d
270, 274 (1986). To determine whether a particular procedure is constitutionally
adequate, courts are generally required to analyze and balance three factors:
First, the private interest that will be affected by the official action;
second, the risk of an erroneous deprivation of such interest through
the procedures used, and the probable value, if any, of additional or
substitute procedural safeguards; and finally, the Government’s
interest, including the function involved and the fiscal and
administrative burdens that the additional or substitute procedural
requirement would entail.
Id., quoting Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893 (1976).
-10- Case No. 8-19-38
{¶17} Accordingly, first we must frame the private interest involved.
Although Ludban argues that the private interest at issue is the fundamental liberty
interest of a parent in raising his or her natural child, the private interest affected by
R.C. 3107.07(K) is much more limited. Here, the private interest involved is the
right to withhold consent to the adoption of the child. R.C. 3107.07(K) does not
constitute consent to the adoption of the child. See Hess v. Bolden, 5th Dist.
Tuscarawas No. 2001AP080084, 2002 WL 54758, *3 (Jan. 8, 2002). Rather, R.C.
3107.07(K) “merely ‘provides for cutting off the statutory right of a parent to
withhold his consent to the adoption of the child,’ leaving all other parental rights
and obligations intact.” Id. See also In re Adoption of Jorgensen, 33 Ohio App.3d
207, 209 (3d Dist.1986). Accordingly, until the court enters a final decree of
adoption, the parent retains the rights and obligations of parenthood. In re Adoption
of Jorgensen at 209. If the probate court does not find that the adoption is in the
best interest of the child, any parental rights that the parent lost due to the operation
of R.C. 3107.07(K) are “necessarily restored.” Id.
{¶18} With respect to the second factor, there is some risk that the 14-day
deadline may deprive a parent of the right to contest an adoption if they intend to
contest an adoption but fail to file a timely objection. However, this risk is reduced
by R.C. 3107.11, which requires that parents who have not filed a consent with the
court must be given notice of the hearing on the petition for adoption as well as
-11- Case No. 8-19-38
notice that they must file objections within 14 days if they wish to contest the
adoption. See R.C. 3107.11.
{¶19} Concerning the third factor, “[t]he state’s interest is determined
through its intent in enacting the legislation at issue.” In re H.N.R., 145 Ohio St.3d,
2015-Ohio-5476, at ¶ 27, citing State ex rel. Evans v. Moore, 69 Ohio St.2d 88, 91
(1982); Brock v. Roadway Express, Inc., 481 U.S. 252, 258-259, 262, 107 S.Ct.
1740 (1987); Lehr v. Robertson, 463 U.S. 248, 263-265, fn. 20, 103 S.Ct. 2985
(1983); Hamdi v. Rumsfeld, 542 U.S. 507, 517, 531, 124 S.Ct. 2633 (2004). “‘[T]he
goal of adoption statutes is to protect the best interests of children.’” In re Adoption
of A.N., 3d Dist. Union No. 14-12-27, 2013-Ohio-3871, ¶ 26, quoting In re Adoption
of Zschach, 75 Ohio St.3d 648, 651 (1996). “‘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., quoting Zschach at 651.
{¶20} With respect to R.C. 3107.07(B), which operates similarly to R.C.
3107.07(K) and provides that a putative father’s consent to an adoption is not
required if he fails to comply with a number of statutory requirements, the Ohio
Supreme Court has held that “while strict adherence to the procedural mandates * *
* 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
-12- Case No. 8-19-38
such a rigid application.” Zschach at 652. Moreover, “[i]t is not the role of this
Court to second guess the legislature’s policy decisions.” In re Adoption of A.N.,
2013-Ohio-3871, at ¶ 42. “The legislature is the proper arena for thrashing out
policy considerations such as are involved in the sensitive area of adoptions.” Id.
{¶21} Consequently, after weighing the applicable factors, we cannot find
beyond a reasonable doubt that R.C. 3107.07(K) violates the Due Process Clause of
the Fourteenth Amendment.
{¶22} Accordingly, we overrule Ludban’s first assignment of error.
{¶23} Having concluded that R.C. 3107.07(K) does not violate the Due
Process Clause of the Fourteenth Amendment, we next turn to Ludban’s second
assignment of error. In his second assignment of error, Ludban argues that the
hearing notice contained in R.C. 3107.11(B) violates his constitutional right to due
process because it is confusing, misleading, and inaccurate. Specifically, Ludban
argues that the final sentence of the R.C. 3107.11(B) hearing notice is confusing
because it leads the reader to believe that they can object to an adoption petition by
either filing an objection or appearing at the hearing when they actually are required
to do both. For the reasons that follow, we disagree.
{¶24} R.C. 3107.11(B) sets forth the language a court’s notice must contain
if the petition for adoption alleges that a parent failed without justifiable cause to
-13- Case No. 8-19-38
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 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
-14- Case No. 8-19-38
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 OF
ADOPTION MAY BE ENTERED IF YOU FAIL TO FILE AN
OBJECTION TO THE ADOPTION PETITION OR APPEAR AT
THE HEARING.”
(Boldface and italicization added.) R.C. 3107.11(B).
{¶25} Here, the final sentence of the notice, which states that a final decree
of adoption may be entered if one fails “to file an objection to the adoption petition
or appear at the hearing,” could be ambiguous if read without reference to the rest
of the notice. “However, we may not read individual words of a statute in isolation;
rather, we are obligated ‘to evaluate a statute “as a whole and giv[e] such
interpretation as will give effect to every word and clause in it.”’” New Riegel Local
School Dist. Bd. of Edn. v. Buehrer Group Architecture & Eng., Inc., 157 Ohio St.3d
164, 2019-Ohio-2851, ¶ 39, quoting Boley v. Goodyear Tire & Rubber Co., 125
Ohio St.3d 510, 2010-Ohio-2550, ¶ 21, quoting State ex rel. Myers v. Spencer Twp.
Rural School Dist. Bd. of Edn., 95 Ohio St. 367, 373 (1917). “A court that is
reviewing a statute * * * for ambiguity should direct its ‘attention * * * beyond
single phrases, and * * * should consider, in proper context, all words used by the
[General Assembly] in drafting [the statute] with a view to its place in the overall
-15- Case No. 8-19-38
[statutory] scheme.’” Matter of Adoption of G.M.B., 4th Dist. Pickaway Nos.
19CA12 and 19CA13, 2019-Ohio-3884, ¶ 17, quoting D.A.B.E., Inc. v. Toledo-
Lucas Cty. Bd. of Health, 96 Ohio St.3d 250, 2002-Ohio-4172, ¶ 19.
{¶26} The second sentence of the statutory notice states that an individual
wanting to contest an adoption must file an objection within 14 days following proof
of service of notice of the filing of the petition and of the time and place of hearing.
R.C. 3107.11(B). The third sentence then states, “If you wish to contest the
adoption, you must also appear at the hearing.” (Emphasis added.) Id. The phrase
“must also” indicates that an individual wishing to contest an adoption has the
additional mandatory requirement of appearing at the hearing in addition to filing a
timely objection. When reading the sentences together, it is clear that an individual
wishing to contest an adoption has an obligation to both file a timely objection and
appear at the hearing. Thus, although the final sentence of the statutory notice may
be ambiguous if read in isolation from the rest of the notice, when the statutory
notice is read as a whole, the reader can come to but one conclusion, and that is that
to contest an adoption, one must both file a timely objection to the adoption petition
and appear at the hearing.
{¶27} Furthermore, in In re T.L.S., the Twelfth District determined that the
notice served on the biological father, which specifically contained language
identical to that found in the second and third sentences of the statutory notice
-16- Case No. 8-19-38
contained in R.C. 3107.11(B), “clearly informed” the father that he was required to
file an objection within 14 days of receiving the adoption notice. In re T.L.S., 2012-
Ohio-3129, at ¶ 11. Moreover, this court has previously found that the notice is
sufficient to satisfy a putative father’s due process rights as it informed the putative
father that he needed to file an objection within 14 days and appear at the hearing if
he objects to the adoption. In re A.N., 2013-Ohio-3871, at ¶ 33.
{¶28} Thus, for the aforementioned reasons, we conclude that the statutory
notice contained in R.C. 3107.11(B) is not ambiguous and does not violate Ludban’s
due process rights.
{¶29} Accordingly, Ludban’s second assignment of error is overruled.
Assignment of Error No. III
The probate court erred when it found that appellant did not timely file his written objection[;] when he filed the objection it was within days of the filing of the amended petition for adoption.
Assignment of Error No. IV
The probate court erred when it did not conduct a consent hearing.
{¶30} In his third assignment of error, Ludban argues that the trial court erred
by determining that his written objection was not timely filed. Specifically, Ludban
argues that although he did not file an objection to the original petition for adoption
within 14 days, he filed an objection within 14 days of the amended petition for
adoption. Ludban contends that because he filed a petition within 14 days of the
-17- Case No. 8-19-38
amended petition for adoption, the trial court erred by determining that his objection
was not timely filed. In his fourth assignment of error, Ludban argues that the trial
court erred by not conducting a consent hearing. For the reasons that follow, we
disagree.
{¶31} On February 14, 2019, Burgess filed a petition to adopt A.B. The
adoption petition alleged that Ludban’s consent was not required because he has
failed: (1) to provide more than de minimis contact with A.B. for a period of at least
one year immediately preceding the filing of the adoption petition and (2) failed
without justifiable cause to provide for the maintenance and support of A.B. as
required by law or judicial decree for a period of at least one year immediately
preceding the filing of the adoption petition. On March 1, 2019, Ludban was served
with the petition for adoption.
{¶32} Burgess filed an amended petition for adoption on March 19, 2019.
The amended petition for adoption was identical to the original petition for adoption
with one exception. In addition to the assertions that Ludban’s consent was not
required for the adoption because he failed without justifiable cause to provide more
than de mimimis contact and failed without justifiable cause to provide for the
maintenance and support of A.B. for at least one year immediately preceding the
filing of the adoption petition, the amended petition contained the additional ground
that Ludban’s consent was not required because he failed to file an objection within
-18- Case No. 8-19-38
14 days of the docketing of the return of service on the notice of the adoption petition
as required under R.C. 3107.07(K).
{¶33} On March 21, 2019, Ludban faxed a copy of his objection to the
adoption of A.B. to the trial court. The following day, Ludban filed the original
document with the trial court.
{¶34} Ludban argues that the trial court erred in determining that his
objection to the petition for adoption was not timely. In support of his position,
Ludban cites a passage from In re Adoption of A.N., in which this court held that the
putative father’s consent was not required for an adoption because “he failed to file
an objection to the Nords’ amended petition within fourteen days after proof was
filed with the trial court * * * that he was given notice of the * * * amended petition
and [consent] hearing.” In re Adoption of A.N., 2013-Ohio-3871, at ¶ 31. Ludban
suggests that our reference to the amended petition in In re Adoption of A.N. implies
that the 14-day period for objections begins at the filing of the amended petition for
adoption in the present case.
{¶35} However, the facts in In re Adoption of A.N. are readily distinguishable
from the present case. In In re Adoption of A.N., the original petition named A.N.’s
biological mother as the only person or agency whose consent to the petition for
adoption was required and stated that no person was registered as a putative father.
Id. at ¶ 2. However, a subsequent inquiry determined that Kris Scheiderer, Jr.
-19- Case No. 8-19-38
(“Scheiderer”) was registered as a putative father of A.N. Id. at ¶ 3. Consequently,
the prospective adoptive parents filed an amended petition listing the child’s
biological mother as the only person or agency whose consent to the adoption was
required and Scheiderer as a putative father whose consent was not required
“because he willfully abandoned [the biological mother] during her pregnancy and
up to the time of her surrender of A.N.” Id. at ¶ 5.
{¶36} After Scheiderer failed to file a written objection within 14 days of the
amended petition, he argued that as a putative father, his consent to the adoption
was not required under R.C. 3107.07(B), which Scheiderer suggested controlled
over R.C. 3107.07(K). Id. at ¶ 29. Scheiderer further alleged that his failure to
timely file an objection to the adoption petition should be excused because he put
the interested parties on notice of his desire to be part of A.N.’s life through his
registration with the Putative Father Registry, appearance at hearings, and filing a
paternity action. Id. The trial court agreed with Scheiderer and held that his consent
was required and that he did not consent. Id. at ¶ 30. However, this court reversed
the trial court and held that Scheiderer’s consent to the adoption was not required
due to his failure to file an objection to the amended petition for adoption within
fourteen days after proof of service was filed with the trial court. Id. at ¶ 31.
{¶37} However, here, Ludban was named in the original petition for
adoption. Thus, unlike the putative father in In re Adoption of A.N. who was not
-20- Case No. 8-19-38
named in the original petition, Ludban had notice of the petition for adoption at the
time of the filing of the original petition. Furthermore, the amended petition in the
present case was identical to the original petition for adoption with the exception of
the addition of the allegation that Ludban had failed to file a timely objection to the
original petition for adoption. The amended petition for adoption thus effectively
served as a notice that Ludban had failed to timely file an objection to the petition
for adoption. Therefore, the trial court did not err by determining that Ludban’s
objection to the adoption was not timely even though it was filed less than 14 days
after the filing of the amended adoption.
{¶38} Ludban next argues that the trial court erred by determining that his
consent was not necessary without holding a consent hearing. On June 6, 2019,
Burgess filed a motion for judgment on the pleadings on the issue of whether
Ludban’s consent is necessary for the adoption. Ludban failed to file any response
to the motion for judgment on the pleadings. On June 25, 2019, the trial court filed
a judgment entry finding that after reviewing the law and the pleadings filed,
Ludban’s consent to the adoption was not required. Ludban’s next filing in the case
was his July 15, 2019 notice of appeal.
{¶39} ‘“It is well-settled law that issues not raised in the trial court may not
be raised for the first time on appeal because such issues are deemed waived.’” State
v. Born, 3d Dist. Hardin No. 6-17-13, 2018-Ohio-350, ¶ 10, quoting State v. Barrett,
-21- Case No. 8-19-38
10th Dist. Franklin No. 11AP-375, 2011-Ohio-4986, ¶ 13. Thus, because Ludban
did not respond to Burgess’s motion for judgment on the pleadings, the matter is not
properly before us on appeal.
{¶40} For these reasons, Ludban’s third and fourth assignments of error are
overruled.
{¶41} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
SHAW and WILLAMOWSKI, J.J., concur.
/jlr
-22-