In re Adoption of E.H.D.

2020 Ohio 5014

• Court: Ohio Court of Appeals
• Decided: October 21, 2020
• Docket: 2020CA00097
• Status: Published

Opinion

[Cite as In re Adoption of E.H.D., 2020-Ohio-5014.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

IN RE: ADOPTION OF E.H.D. JUDGES: Hon. William B. Hoffman, P.J. Hon. Patricia A. Delaney, J. Hon. Earle E. Wise, Jr., J.

Case No. 2020CA00097

O P I N IO N

CHARACTER OF PROCEEDINGS: Appeal from the Stark County Court of Common Pleas, Probate Division, Case No. 236032

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: October 21, 2020

APPEARANCES:

For Appellee Anastasia Dunigan For Appellant Jessica Byard

EUGENE CAZANTZES, ESQ. PAUL HERVEY, ESQ. Pitinii, Davies & Cazantzes, LLC 4940 Munson Avenue, N.W. 101 Central Plaza, South, Suite #1000 Canton, Ohio 44718 Canton, Ohio 44702 Stark County, Case No. 2020CA00097 2

Hoffman, P.J. {¶1} Appellant Jessica Byard appeals the judgment entered by the Stark County

Common Pleas Court, Probate Division, overruling her motion to dismiss a stepparent

adoption petition filed by Appellee, Anastasia Dunigan.

STATEMENT OF THE CASE1

{¶2} Appellant is the biological mother of E.H.D. On December 26, 2019,

Appellee filed a petition for the adoption of Appellee’s stepdaughter, E.H.D. The petition

alleged Appellant’s consent was not necessary to the adoption because she had failed

without justiciable cause to communicate with the minor child within one year preceding

the filing of the petition.

{¶3} Appellant was served with notice of the hearing pursuant to R.C. 3107.11(C)

on December 30, 2019, as evidenced by the certified mail return receipt, which was

returned to the trial court on January 6, 2020. The notice informed Appellant a petition

for adoption had been filed, and a hearing had been scheduled for March 23, 2020, at

9:00 a.m. The notice further set forth:

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

1 A rendition of the facts is unnecessary to our resolution of the issues raise on appeal. Stark County, Case No. 2020CA00097 3

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 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 DEGREE OF ADOPTION MAY BE ENTERED IF YOU FAIL TO FILE

AN OBJECTION TO THE ADOPTION PETITION OR APPEAR AT THE

HEARING.

{¶4} On February 24, 2020, Appellant filed a motion to dismiss the petition based

on Appellee’s failure to serve her with the pleadings in the case. Appellant filed an answer

and objection to the petition on February 28, 2020. The trial court overruled Appellant’s

motion to dismiss, finding her objection to the adoption was not timely filed pursuant to

R.C. 3107.07(K).

{¶5} It is from the March 20, 2020 judgment of the Stark County Common Pleas

Court, Probate Division, Appellant prosecutes this appeal, assigning as error:

I. THE PROBATE COURT ERRED AND ABUSED ITS

DISCRETION IN REJECTING MOTHER’S OBJECTION TO A

STEPPARENT ADOPTION FOR BEING UNTIMELY AND FOR NOT

SERVING STEPPARENT’S COUNSEL. Stark County, Case No. 2020CA00097 4

II. MOTHER’S CONSTITUTIONAL RIGHTS TO DUE PROCESS,

EQUAL PROTECTION, AND PRIVACY OF THE FAMILY RELATIONSHIP

WERE VIOLATED WHEN HER OBJECTION TO HER DAUGHTER’S

ADOPTION WAS DISMISSED.

I.

{¶6} In her first assignment of error, Appellant argues the trial court erred in

overruling her motion to dismiss the petition on the basis Appellee failed to serve her with

the pleadings in the instant case. Appellant argues Appellee was required to serve her

with the petition for adoption in accordance with the Ohio Rules of Civil Procedure.

{¶7} After a petition for adoption is filed, R.C. 3107.11 provides for service of

notice of the petition as follows:

(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

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; Stark County, Case No. 2020CA00097 5

(2) A person whose consent is not required as provided by division

(A), (G), (H), or (I) of section 3107.07 of the Revised Code and has not

consented;

(3) Any guardian, custodian, or other party who has temporary

custody or permanent custody of the child.

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.

(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 Stark County, Case No. 2020CA00097 6

THE MINOR AND YOU AND THE MINOR'S OTHER RELATIVES, SO

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 OF THE TIME AND

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."

(C) All notices required under this section shall be given as specified

in the Rules of Civil Procedure. Proof of the giving of notice shall be filed

with the court before the petition is heard.

{¶8} It is undisputed Appellant was served with notice of the filing of the petition

in accordance with R.C. 3107.11 and failed to file an objection within fourteen days.

Appellant argues she was required to be served with the petition itself, and not merely

notice of its filing and of the hearing date, in accordance with the Civil Rules. Appellant Stark County, Case No. 2020CA00097 7

raised this same issue in her action seeking a writ of mandamus and of prohibition filed

with this Court on April 16, 2020. We rejected her argument, holding as follows:

Next, Ms. Byard cites In re Burdette, 83 Ohio App. 368, 83 N.E.2d

813 (9th Dist.1948). A review of this case supports the conclusion that

service of notice of the adoption hearing is sufficient. This 1948 case

references adoption statutes from Ohio’s General Code. Even under the

General Code, the court of appeals noted:

“The statute does not require summons but only notice to be served

on the parent. * * * The word ‘notice’ is defined in Webster’s New

International Dictionary (2d Ed.) as 1. ‘Information; or warning, esp. of a

formal nature; announcement * * *.’ ‘Notice’ is used in the statute as a

means of advice or information in writing, to apprise a person of some court

proceedings.”

Id. at 375.

The court of appeals found the probate court correctly concluded

biological mother received proper notice regarding the adoption hearing

even though biological mother was only served with a true copy of the notice

of hearing. Id. at 369, 375. There is no mention in the Burdette case that

biological mother was also served with a copy of the adoption petition. Thus,

Burdette stands for the proposition that service of notice alone is sufficient.

Finally, Ms. Byard cites In re Adoption of Goldberg, 12th Dist. Warren

Nos. CA2002-09-091, CA2002-09-099, CA2002-10-109, 2003-Ohio-1015. Stark County, Case No. 2020CA00097 8

This case also does not address the issue raised by Ms. Byard regarding

service of the adoption petition. However, it does support the conclusion

that only “notice” is required to be given to any person whose consent to the

adoption is required. Goldberg held the application of the one-year service

requirement of Civ.R. 3(A) is inconsistent with the language of the adoption

statute and the purpose of the failure to communicate provision. Id. at ¶ 25.

In reaching this conclusion, the Goldberg court first noted the Rules

of Civil Procedure do not apply “ ‘to the extent they would be clearly

inapplicable.’ Civ.R.1(C)(7).” Id. at ¶ 12. Importantly, for the issue presented

here, the court also explained the statute, R.C. 3107.11(A)(2), only requires

persons be given notice of the filing of the petition “ ‘[a]t least twenty days

before the date of the hearing’ on the petition.” Id. at ¶ 18.

We do not find the case law relied on by Ms. Byard supports the

claims she presented in her Complaint such that she would be entitled to

mandamus relief. Further, in her dismissal motion, Judge Park cites a case

from this Court we find to be on point with regard to the service issue raised

by Ms. Byard. In Askew v. Taylor, 5th Dist. Stark No. 2004CA00184, 2004-

Ohio-5504, the probate court granted stepfather’s adoption petition

because biological father failed to communicate with the minor child for a

period of at least one year immediately preceding the filing of the adoption

petition. Id. at ¶ 6. Biological father appealed to this Court and assigned as

error the trial court’s alleged failure to serve him with a copy of the adoption

petition. Id. at ¶ 17. Specifically, biological father argued, “he was never Stark County, Case No. 2020CA00097 9

served a copy of the same with a summons as required by Civ.R. 4 and

4.1.” Id.

We overruled biological father’s assignment of error referencing

language in R.C. 3107.11(A), which provides: “At least twenty days before

the date of hearing, notice of the filing of the petition and of the time and

place of hearing shall be given by the court * * *” (Emphasis sic.) Id. at ¶ 18.

We held, “[i]n short, such section requires service of notice rather than

issuance of summons.” (Emphasis added.) Id. This Court further explained

Civ.R. 73 is the applicable rule regarding proceedings in a probate court. Id.

at ¶ 19. The current version of the rule provides in section (C) that with

regard to service of summons, Civ.R. 4 through 4.6 apply to probate courts.

However, section (E) of the rule addresses the various ways in which

service of notice may occur. Clearly, Civ.R. 73 contemplates service of

different types of documents, including service of notice as opposed to

service of a summons and complaint.

In the present matter, Ms. Byard does not claim she did not receive

notice of the hearing. Rather, she maintains she was also entitled to be

served with a copy of the Petition for Adoption. Neither R.C. 3107.11(A) nor

our decision in Askew supports this conclusion. Rather, both indicate

anyone entitled to notice of the filing of an adoption petition is entitled to

notice of the filing of the petition, which must be properly served under

Civ.R. 73(E). For these reasons, we conclude Ms. Byard received the type

of notice to which she was statutorily entitled to receive when Judge Park Stark County, Case No. 2020CA00097 10

served her with Standard Probate Form 18.2 Notice of Hearing on Petition

for Adoption.

State ex rel. Byard v. Park, 5th Dist. Stark No. 2020CA00080, 2020-

Ohio-3062, ¶¶ 14-20.

{¶9} For the reasons stated in our opinion dismissing Appellant’s action for

mandamus and prohibition in the previous matter, we find Appellant was not entitled to

be served with the petition in accordance with the Civil Rules. It is undisputed Appellant

received notice of the hearing as required by R.C. 3107.11(C), and failed to file an

objection to the petition within fourteen days. We therefore find the trial court did not err

in overruling her motion to dismiss the petition on the basis it was improperly served.

{¶10} The first assignment of error is overruled.

II.

{¶11} In her second assignment of error, Appellant argues R.C. 3107.11(K), which

gives her only fourteen days to object to a petition for adoption, is unconstitutional as it

violates her rights to due process, equal protection, and privacy in the family relationship.

{¶12} In her brief, Appellant focuses her argument concerning constitutionality on

the Due Process clause, and protection of the parent-child relationship it affords.

Because she does not separately argue her equal protection and privacy claims, we

address only her claim the statute violates her right to due process of law, and its

protection of the fundamental right of the parent-child relationship.

{¶13} The Due Process Clause of the Fourteenth Amendment to the United States

Constitution provides a state shall not “deprive any person of life, liberty, or property Stark County, Case No. 2020CA00097 11

without due process of law.” The Supreme Court of Ohio has determined 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, 38 N.E.2d 70 (1941).

{¶14} “ ‘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, 47 N.E.3d 803, ¶

25, quoting Norwood v. Horney, 110 Ohio St.3d 353, 2006-Ohio-3799, 853 N.E.2d 1115,

¶ 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, 140 L.Ed.2d

1043 (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, 505, 54 S.Ct. 505, 78 L.Ed. 940 (1934) and Mominee

v. Scherbarth, 28 Ohio St.3d 270, 274, 503 N.E.2d 717 (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. Stark County, Case No. 2020CA00097 12

{¶15} Id., quoting Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 47

L.Ed.2d 18 (1976).

{¶16} The Court of Appeals for the Third District analyzed R.C. 3701.11(K) under

the test set forth in Matthews, holding as follows:

Accordingly, first we must frame the private interest involved.

Although Rhoades 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, (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, 515

N.E.2d 622 (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, 515 N.E.2d 622. 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. Stark County, Case No. 2020CA00097 13

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 notice that they must file objections within

14 days if they wish to contest the adoption. See R.C. 3107.11.

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, 47 N.E.3d 803, at ¶ 27, citing State ex rel. Evans v.

Moore, 69 Ohio St.2d 88, 91, 431 N.E.2d 311 (1982); Brock v. Roadway

Express, Inc., 481 U.S. 252, 258-259, 262, 107 S.Ct. 1740, 95 L.Ed.2d 239

(1987); Lehr v. Robertson, 463 U.S. 248, 263-265, fn. 20, 103 S.Ct. 2985,

77 L.Ed.2d 614 (1983); Hamdi v. Rumsfeld, 542 U.S. 507, 517, 531, 124

S.Ct. 2633, 159 L.Ed.2d 578 (2004). “ ‘[T]he goal of adoption statutes is to

protect the best interests of children.’ ” In re Adoption of A.N., 3d Dist. Union,

2013-Ohio-3871, 997 N.E.2d 1244, ¶ 26, quoting In re Adoption of Zschach,

75 Ohio St.3d 648, 651, 665 N.E.2d 1070 (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, 665

N.E.2d 1070. Stark County, Case No. 2020CA00097 14

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 such a rigid application.”

Zschach at 652, 665 N.E.2d 1070. 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, 997 N.E.2d 1244, at ¶ 42. “The legislature is the proper

arena for thrashing out policy considerations such as are involved in the

sensitive area of adoptions.” Id.

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.

{¶17} In re Adoption of N.F., 3rd Dist. No. 8-19-39, 2019-Ohio-5380, 151 N.E.3d

119, ¶¶ 19-23.

{¶18} We concur with the reasoning of the Third District R.C. 3107.07(K) does not

violate the Due Process Clause of the Fourteenth Amendment. Stark County, Case No. 2020CA00097 15

{¶19} The second assignment of error is overruled.

{¶20} The judgment of the Stark County Common Pleas Court, Probate Division,

is affirmed.

By: Hoffman, P.J. Delaney, J. and Wise, Earle, J. concur