In re Adoption of B.M.M.

2024 Ohio 2288

• Court: Ohio Court of Appeals
• Decided: June 14, 2024
• Docket: 2024-CA-5
• Status: Published

Opinion

[Cite as In re Adoption of B.M.M., 2024-Ohio-2288.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CHAMPAIGN COUNTY

IN THE MATTER OF THE ADOPTION : OF B.M.M. : : C.A. No. 2024-CA-5 : : Trial Court Case No. 2023 AD 11 : : (Appeal from Common Pleas Court- : Probate Division) : :

...........

OPINION

Rendered on June 14, 2024

JEREMY M. TOMB, Attorney for Appellant

KIRK ELLIS, Attorney for Appellee

.............

HUFFMAN, J.

{¶ 1} Petitioner appeals from a judgment of the trial court dismissing his petition to

adopt B.M.M. (“the child”). Petitioner is married to the child’s mother (“Mother”). The

trial court found that the consent of the child’s biological father (“Father”) was required for

the adoption. Father refused to consent, and the court dismissed the petition. Because -2-

Father had failed to register as a putative father, however, his consent to the adoption

was not required, and the judgment of the trial court will be reversed. The matter will be

remanded for further proceedings.

Facts and Procedural History

{¶ 2} The child was born in December 2015; Father is not listed on the birth

certificate. Petitioner filed a petition for adoption on July 14, 2023, and Mother filed a

consent to the adoption the same day. The petition asserted that Father’s consent to the

adoption was not required because he had failed without justifiable cause to provide more

than de minimis contact with the child for a period of at least one year immediately

preceding the filing of the adoption petition or the placement of the minor in the home of

the petitioner. The petition further listed R.C. 3107.07(B)(1), (B)(2), and (K) – other

exceptions to the consent requirement -- in support of the argument that Father’s consent

was not required. On July 15, 2023, an Ohio Putative Registry Certification was filed,

which stated that a search had been conducted and no putative father was registered for

the child.

{¶ 3} Petitioner requested service upon Father by publication, and the court issued

an entry for publication on July 19, 2023. The entry stated that the publication “shall run

three consecutive weeks and Proof of Publication shall be filed with this Court upon

completion of publication.” No proof of publication was filed. A hearing notice was also

issued on July 19, 2023, setting the consent hearing for October 11, 2023.

{¶ 4} According to an October 13, 2023 entry, Petitioner, Mother, and Father were

present for the October 11 hearing, and Father objected to the adoption on the basis that -3-

his consent was necessary. The court appointed counsel to represent Father, and the

consent hearing was continued to November 20, 2023. The court issued its decision

dismissing the adoption petition on December 29, 2023.

{¶ 5} Petitioner appeals, raising one assignment of error. Father did not file a

responsive brief. The assignment of error states:

THE TRIAL COURT ERRED AS A MATTER OF LAW BECAUSE

THE PUTATIVE FATHER’S CONSENT TO THE ADOPTION WAS NOT

NECESSARY WHEN THE PUTATIVE FATHER FAILED TO PROPERLY

REGISTER WITH THE PUTATIVE FATHER REGISTRY OR TO

ESTABLISH PATERNITY BEFORE THE FILING OF THE PETITION FOR

ADOPTION.

The Consent Hearing

{¶ 6} At the start of the consent hearing, counsel for both parties stipulated to Joint

Exhibit 1, genetic testing results from Labcorp from September 2023. These tests were

conducted after the adoption petition was filed and showed that Father was the child’s

biological father. Father and Mother testified at the hearing.

{¶ 7} Father was 26 years old and lived in Springfield at the time of the hearing.

Father testified that he had been in contact with the child and Mother for the first year of

the child’s life but had not seen him in the past seven years. No DNA testing was

performed at the child’s birth, but Father “knew it was [his] son.” Father testified that he

applied for DNA testing in 2019 but did not appear for the testing because he did not

receive any paperwork. He acknowledged that he had made no attempts to see the child -4-

in the previous two years and that he had not financially provided for him. Father stated

that he plays flag football and had seen Mother at football games, but he did not ask about

the child because he did not sign the birth certificate and had no rights. According to

Father, at the time of the child’s birth, Mother did not know who the father was, and Father

did not timely register on the putative father registry.

{¶ 8} Mother resided in Urbana at the time of the hearing; the child was almost

eight years old. She testified that, although Father had observed the child at a couple of

football games, he had had no contact with the child and had not requested any. Mother

stated that she did not withhold contact from Father She received notice of court-ordered

DNA testing in 2019, and she and the child submitted to the testing, but the matter was

closed due to Father’s failure to appear. In the previous two years, Mother had not

received any financial support or in-kind gifts for the child from Father, and she had done

nothing to prohibit Father from supporting the child. She saw Father every Sunday

during football season, as Petitioner also plays flag football, and she had resided at the

same address with the child for the last two years.

{¶ 9} Mother met Petitioner in 2017, and they married in 2019. According to

Mother, Petitioner and the child have “an amazing relationship,” and Petitioner is “a great

father” to the child, who calls him “dad.”

The Trial Court’s Decision

{¶ 10} The trial court noted that there was no dispute that Father had provided no

support for the child for approximately seven years and that Joint Exhibit 1 established

Father’s paternity in September 2023. With respect to the need for Father’s consent to -5-

the adoption, the court cited In re Adoption of Pushcar, 110 Ohio St.3d 332, 218 N.E.3d

828 (2006), which held:

The ability of a court to dispense with the consent requirement under R.C.

3107.07(A) is dependent upon the establishment of the parent-child

relationship. In re Adoption of Sunderhaus (1992), 63 Ohio St.3d 127, 130,

585 N.E.2d 418. Establishing the parent-child relationship requires

“judicial ascertainment of paternity.” Id. at 131, 585 N.E.2d 418. [The

supreme court] further explained that “[i]nterpreting R.C. 3107.07(A) as

requiring a paternity determination prior to the running of the one-year

period comports with the requirements of due process and the plain

meaning of its provisions.” Id. at 132, 585 N.E.2d 418.

Pushcar at ¶ 12.

{¶ 11} The trial court found that, because paternity had been established on

September 19, 2023, “the running of the one year period wouldn’t have begun until

September 19, 2023.” Accordingly, because the consent hearing was held only two

months after the establishment of paternity, the court concluded that it could not find that

Father had failed to support or communicate with the child for a one-year period, because

the one-year period was “not finished.”

{¶ 12} Petitioner argues that Father did not have a right to object to the adoption

of the child when he had not properly registered with the Ohio Putative Father Registry

or sought a judicial determination of paternity before the filing of the petition for adoption.

We agree. -6-

{¶ 13} R.C. 3107 governs adoption. “A parent has a fundamental right to care for

and have custody of his or her child.” In re Adoption of K.C., 2d Dist. Montgomery No.

22243, 2008-Ohio-2593, ¶ 10. An adoption terminates those rights, and the mother of

the child, the father of the child, or a putative father are presumed to have the right to

withhold consent to an adoption under R.C. 3107.06(A) through (C). In re Adoption of

H.P., 171 Ohio St.3d 453, 2022-Ohio-4369, 218 N.E.3d 828, ¶ 20. A party may

overcome this presumption by establishing that an exception to the consent requirement

under R.C. 3107.07 applies. Id.

{¶ 14} “A putative father is simply a man who might be a child’s biological father

but who has no legal relationship with the child through marriage to the mother or the

establishment of legal paternity.” In re Adoption of H.N.R., 145 Ohio St.3d 144, 2015-

Ohio-5476, 47 N.E.3d 803, ¶ 16, citing R.C. 3107.01(H).

Under Ohio law, a “putative father” is a man * * * who may be a child’s father

and to whom all of the following apply: 1) he was not married to the child’s

mother at the time of the child’s conception or birth; 2) he has not adopted

the child; 3) he has not been determined to have a parent child relationship

with the child by a court or administrative proceeding that occurred prior to

the date a petition to adopt the child is filed; and 4) he has not acknowledged

paternity of the child pursuant to R.C. 3111.21-R.C. 311.35.

(Emphasis added.) In re Adoption of Z.G.A., 2d Dist. Greene No. 2015-CA-51, 2016-

Ohio-238, ¶ 13.

{¶ 15} “In 1996, Ohio established the Putative Father Registry; if a man registers -7-

as the putative father of a child, he will receive notice, at the address or telephone number

he provides, of any petition that may be filed to adopt a minor he claims as his child.” Id.,

citing R.C. 3107.062. “Since establishing a putative-father registry in 1996, Ohio has

clearly warned putative fathers that ‘[a] man who has sexual intercourse with a woman is

on notice that if a child is born as a result and the man is the putative father, the child may

be adopted without his consent pursuant to” R.C. 3107.07(B). H.P. at ¶ 1, citing R.C.

3107.061. “[U]nder Ohio’s statutory scheme, putative fathers need not have notice of a

birth or even a pregnancy to have their rights foreclosed.” Z.G.A. at ¶ 20.

{¶ 16} R.C. 3107.07 provides in relevant part:

Consent to adoption is not required of any of the following:

(A) A parent of a minor, when it is alleged in the adoption petition and the

court, after proper service of notice and hearing, finds by clear and

convincing evidence that the 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 as required by law or judicial decree

for a period of at least one year immediately preceding either the filing of

the adoption petition or the placement of the minor in the home of the

petitioner.

(B) The putative father of a minor if either of the following applies:

(1) 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 fifteen days after the minor's birth; -8-

(2) 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.

***

(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[.]

{¶ 17} The criteria set forth in R.C. 3107.07(A) have no applicability to putative

fathers. In re Adoption of R.C.A., 2d Dist. Montgomery No. 19509, 2003-Ohio-607, ¶ 9.

In order for a putative father who has timely registered in the putative father registry “to

attain the status of one whose consent is required for an adoption,” three things must

occur: the putative father must file an objection within 14 days after he has been given

notice of the filing of an adoption petition, pursuant to R.C. 3107.07(K); he must participate

in a hearing on the adoption petition as provided in R.C. 3107.11; and at that hearing,

under R.C. 3107.0[7](B)(2), “the court must find that he is the father of the child and that -9-

he did not willfully abandon the child or the mother during the pregnancy or during any

period prior to the surrender and/or placement of the child for adoption.” H.N.R., 145

Ohio St.3d 144, 2015-Ohio-5476, 47 N.E.3d 803, at ¶ 18.

{¶ 18} As noted above, R.C. 3107.07(A) and (B) distinguish between a “parent of

a minor” and a “putative father.” The “ ‘opportunity’ interest that a putative father has in

developing a parent-child relationship” is “far different from the fundamental liberty

interest in raising one’s children, which is afforded strong constitutional protections only

upon the establishment of a parent-child relationship.” H.N.R. at ¶ 26, citing Lehr v.

Robertson, 463 U.S. 248, 256-262, 103 S.Ct. 2985, 77 L.Ed.2d 614 (1983). “Courts

have commented that the rights of a putative father must be balanced with the protection

of the best interests of children, including the provision of a permanent and stable home

and the completion of the adoption process in an expeditious manner.” (Citations

omitted.) Z.G.A. at ¶ 21.

When an unwed father demonstrates a full commitment to the

responsibilities of parenthood by “com[ing] forward to participate in the

rearing of his child,” his interest in personal contact with his child acquires

substantial protection under the due process clause. At that point it may

be said that he “act[s] as a father toward his children.” But the mere

existence of a biological link does not merit equivalent constitutional

protection. The actions of judges neither create not sever genetic bonds.

H.N.R. at ¶ 26, quoting Lehr at 261.

{¶ 19} “Any exception to the requirement of parental consent [to adoption] must be -10-

strictly construed so as to protect the right of [biological] parents to raise and nurture their

children.” In re Schoeppner, 46 Ohio St.2d 21, 24, 345 N.E.2d 608 (1976).

{¶ 20} In order to show that Father’s consent was not required, Petitioner was

required to demonstrate by clear and convincing evidence the existence of an exception

to the consent requirement. In re Adoption of B.A.H., 2d Dist. Greene No. 2012-CA-44,

2012-Ohio-4441, ¶ 20, citing In re Adoption of Hart, 62 Ohio App.3d 544, 552, 557 N.E.2d

77 (6th Dist.1989). “Clear and convincing evidence” is that measure or degree of proof

which is more than a mere “preponderance of the evidence,” but not to the extent of such

certainty as is required “beyond a reasonable doubt” in criminal cases, and which will

produce in the mind of the trier of fact “a firm belief or conviction as to the facts sought to

be established.” Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph

three of the syllabus.

{¶ 21} Whether a petitioner has met this burden is a determination for the probate

court that will not be disturbed on appeal unless the decision is against the manifest

weight of the evidence. B.A.H. at ¶ 21.

Judgments supported by some competent, credible evidence going to all

the essential elements of the case will not be reversed as being against the

manifest weight of the evidence. C.E. Morris Co. v. Foley Constr. Co., 54

Ohio St.2d 279, 281, 376 N.E.2d 578 (1978). The weight to be given the

evidence and the credibility of the witnesses are primarily for the trier of fact.

State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one

of the syllabus. “In determining whether a judgment is against the manifest -11-

weight of the evidence, we must review the entire record, weigh the

evidence and all reasonable inferences, consider witness credibility, and

determine whether, in resolving conflicts in the evidence, the trier of fact

‘clearly lost its way and created such a manifest miscarriage of justice’ that

there must be a reversal of the judgment and an order for a new trial.”

Steagall v. Crossman, 2d Dist. Montgomery No. 20306, 2004-Ohio-4691,

¶ 29.

Id.

{¶ 22} Our resolution of this matter is straightforward. We note that Father did not

file a written objection to the petition for adoption, although proof of publication also was

not filed upon its completion as ordered by the court. These facts are not determinative,

however. Most significantly, by failing to register as the child’s putative father, Father did

not attain the status of one whose consent was required for the adoption pursuant to R.C.

3107.07(B)(1). This fact is dispositive. See H.N.R., 145 Ohio St.3d 144, 2015-Ohio-

5476, 47 N.E.3d 803, at ¶ 2 (although putative father’s paternity had been established by

DNA testing, he had “failed to utilize any of the legal processes available to secure his

rights as a putative or legal father at any point prior to the initiation of adoption

proceedings”). Father submitted to genetic testing in September 2023 (after the petition

was filed) which established that he was the child’s biological father, but he was never

determined to be the child’s legal father. Accordingly, the trial court’s reliance on R.C.

3107.07(A) to commence the one-year period set forth therein was misplaced; R.C.

3107.07(A) did not apply to Father Petitioner established, by clear and convincing -12-

evidence, that Father’s consent to the adoption was not required based upon the

exception set forth in R.C. 3107.07(B)(1) -- he was a putative father who had not

registered with the putative father registry as provided by the statute.

{¶ 23} Petitioner’s assignment of error is sustained.

{¶ 24} The judgment of the trial court is reversed, and the matter is remanded for

proceedings consistent with this opinion.

WELBAUM, J. and LEWIS, J., concur.