In re Adoption of H.P.

2021 Ohio 4567

• Court: Ohio Court of Appeals
• Decided: December 27, 2021
• Docket: 15-21-03
• Status: Published

Opinion

[Cite as In re Adoption of H.P., 2021-Ohio-4567.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT VAN WERT COUNTY

IN RE: THE ADOPTION OF: CASE NO. 15-21-03

H.P.,

[KAIDIN W. - APPELLANT] OPINION

Appeal from Van Wert County Common Pleas Court Probate Division Trial Court No. 20204017

Judgment Reversed and Cause Remanded

Date of Decision: December 27, 2021

APPEARANCES:

Elizabeth M. Mosser for Appellant

Jerry M. Johnson for Appellees, Jeffrey and Nicole P.

John C. Huffman for Appellee, Josephine D. Case No. 15-21-03

WILLAMOWSKI, P.J.

{¶1} Appellant Kaidin W. (“Kaidin”) brings this appeal from the judgment

of the Court of Common Pleas of Van Wert County, Probate Division, denying his

motion to be joined as a party and finding that his consent to the adoption of H.P.

was unnecessary. On appeal, Kaidin claims that the trial court erred in 1) holding

that the putative father statute applied in his case once paternity was established, 2)

denying his motion to be joined as a party, 3) applying R.C. 3107.06(B)(3) in an

unconstitutional manner. For the reasons set forth below, the judgment is reversed.

{¶2} The trial court in this case made the following findings of fact. Prior to

February 2020, Kaidin and Josephine D. (“Josephine”) were in a dating relationship.

Doc. 27 at 1. In February 2020, Josephine advised Kaidin that she was pregnant.

Doc. 27 at 1. Josephine indicated she wished to place the child for adoption, but

Kaidin told her he wanted to keep the child. Doc. 27 at 1. For the next several

months, Kaidin spoke weekly with Josephine or her father James D. (“James”) about

the pregnancy. Doc. 27 at 2. This continued until Josephine asked him not to call

so frequently, when he reduced his contact to every other week. Doc. 27 at 2.

Kaidin was informed that the due date of the child was September 5, 2020. Doc. 27

at 2. Kaidin retained counsel who advised him to register with the putative father

registry after the birth of the child. Doc. 27 at 2. On August 26, 2020, Kaidin’s

attorney advised Kaidin that Josephine and her family did not want him to contact

them anymore. Doc. 27 at 2. H.P. was then born on August 31, 2020. Doc. 27 at -2- Case No. 15-21-03

2. On September 3, 2020, H.P. was placed for adoption with Jeffrey and Nicole P.

and they filed their petition to adopt the child on the same day in the Van Wert

County Probate Court. Doc. 27 at 2. On September 16, 2020, counsel for Kaidin

learned of the birth of the child and he notified Kaidin of the birth, advising him to

register on the putative father registry immediately. Doc. 27 at 2. An hour or so

later, the attorney learned the actual birthdate of the child and notified Kaidin of the

time. Doc. 27 at 2. On September 17, 2020, Kaidin filed a petition to determine

paternity and obtain custody in the Logan County Juvenile Court. Doc. 27 at 2.

Kaidin also filed in the Van Wert County Probate Court a motion to intervene in the

adoption case along with an affidavit indicating that he was objecting to the adoption

and that he wanted custody of H.P. Doc. 7, 18.

{¶3} The hearing on the adoption petition was held on January 21, 2020.

Prior to the hearing, the juvenile court established that Kaidin was the father of H.P.

Although Josephine defended the paternity finding, no appeal was taken from the

judgment. At the consent hearing, the parties stipulated that Kaidin had been legally

determined to be the father of H.P. pursuant to R.C. 3111.04. Doc. 27 at 2. The

trial court noted this finding and also noted that Kaidin had demonstrated a deep

commitment to parenting H.P. Doc. 27 at 3. However, the trial court determined

that since Kaidin was a putative father at the time of the filing of the adoption

petition and had not filed with the registry in a timely manner, his consent was not

needed for the adoption. Doc. 27 at 4. The trial court then denied the motion to -3- Case No. 15-21-03

intervene. Doc. 27 at 4. The trial court did not address Kaidin’s status as biological

father as was determined by the juvenile court and stipulated by the parties. Kaidin

appeals from this judgment and raises the following assignments of error.

First Assignment of Error

The trial court erred by overruling [Kaidin’s] objection to the adoption and finding his consent unnecessary.

Second Assignment of Error

The trial court erred by denying [Kaidin’s] motion to be joined as a party.

Third Assignment of Error

R.C. 3107.06(B)(3) is unconstitutional as applied in this matter when parentage is legally established at the time of the consent hearing.

Fourth Assignment of Error

R.C. 3107.07(B)(1) is unconstitutional as applied in this matter when [Kaidin] registered with the putative father registry prior to the consent hearing, was present at the consent hearing, and petitioners had notice of such registration and objection to the petition within two weeks of their petition being filed.

{¶4} In the first assignment of error, Kaidin claims the trial court erred by

overruling his objection to the adoption and finding his consent was unnecessary as

a putative father. In re Adoption of H.N.R., 145 Ohio St.3d 144, 2015-Ohio-5476,

¶ 16, 47 N.E.3d 803. At the time of the filing of the adoption petition, Kaidin had

not registered with the putative father registry and did not do so within 15 days of

-4- Case No. 15-21-03

the birth.1 “For the purpose of preserving the requirement of his consent to an

adoption, a putative father shall register before or not later than fifteen days after

the birth of the child.” R.C. 3107.062. The consent of a father who fails to register

in a timely manner is not needed for the adoption to proceed. R.C. 3107.07. There

is no question that Kaidin, at the time the petition to adopt was filed was a putative

father. There is also no question that Kaidin did not register within 15 days of the

birth of H.P. As a matter of law, Kaidin’s consent as a putative father was not

necessary. The trial court did not err in making such a determination.

{¶5} Although the trial court did not err in finding Kaidin’s consent was not

necessary as a putative father, that is not the end of the consideration because at the

time of the hearing Kaidin had a second status, that of biological father whose

paternity had been judicially determined.

[S]eparate from [the putative-father] process, a father still has the option of securing the right to receive notice of the filing of an adoption petition and the right to withhold consent to an adoption by establishing legal paternity through court or administrative proceedings[.]

H.N.R., supra at ¶ 19. The failure to timely register merely “precludes him from

receiving notice and an opportunity to prove that his consent as a mere putative

1 This court notes that the trial court’s findings of fact show that despite the failure to register with the putative father registry, Josephine was aware of Kaidin’s objections. Prior to the birth, Josephine and her family broke off all communication with Kaidin and told him to not contact them. When the child was born, no one contacted Kaidin and Josephine proceeded to place the child for adoption even knowing that Kaidin objected. Kaidin did not even learn of the child’s birth, which was early, until after the time to register had passed. The trial court also found that Kaidin’s counsel was the one who told him not to register until after the birth. -5- Case No. 15-21-03

father should be required for a child’s adoption.” Id. This court notes that this issue

stems from the fact that two different courts were exercising their original exclusive

jurisdiction at the same time. Prior to 2016, the rule in Ohio was if one court was

exercising jurisdiction over a child, other courts would stay any proceedings filed

until the first court was finished exercising its jurisdiction. The Supreme Court of

Ohio has since changed this rule to allow a juvenile court and a probate court to

exercise their exclusive original jurisdiction over a child at the same time. State ex

rel. Allen County Children Servs. Bd. v. Mercer County Court of Common Pleas,

Probate Division, et al., 150 Ohio St.3d 230, 2016-Ohio-7382, 81 N.E.3d 380. In

that case, the Court held that a probate court could proceed with an adoption case

despite the fact that a juvenile court was already exercising jurisdiction over the

child by having awarded temporary custody of the child to the Allen County

Children Services Board. Using the logic set forth in that case, the juvenile court

had jurisdiction to hear the paternity case although the adoption petition was filed

first. The juvenile court proceeded to reach a conclusion that Kaidin was the

biological father of H.P., thus setting forth a second status for Kaidin.

{¶6} The facts of this case, as stipulated by the parties and found by the trial

court, show that paternity was established prior to the consent hearing.2 Although

the paternity action was not filed before the petition to adopt, R.C. 3111.04 does not

2 This Court notes that no continuances or stays were granted to Kaidin to allow him extra time to have the paternity proceeding completed before the consent hearing on the adoption. -6- Case No. 15-21-03

set a time limit for when the action must be filed. Likewise, the Supreme Court of

Ohio has not strictly construed the requirement set forth in R.C. 3107.06(B)(3),

which states that to be considered a father whose consent is necessary, the paternity

must be established prior to the filing of the adoption petition. In re Adoption of

Pushcar, 110 Ohio St.3d 332, 2006-Ohio-4572, 853 N.E.2d 647. Instead, the Court

has held that even though the paternity was not established prior to the filing of the

petition, it was not “too late for the paternity action to render the man contesting the

adoption a ‘father’”. In re Adoption of P.A.C., 126 Ohio St.3d 236, 2010-Ohio-

3351, ¶ 12, 933 N.E.2d 236. In P.A.C., the biological father had filed his complaint

for allocation of parental rights in the juvenile court prior to the filing of the adoption

petition in the probate court, but it was not finalized, as required by the statute for

consent to be necessary. The probate court granted a stay in the adoption proceeding

pending the outcome of the juvenile court paternity action. As discussed above, this

was done because the juvenile court was already exercising its exclusive original

jurisdiction at the time that the petition to adopt was filed to invoke the exclusive

original jurisdiction of the probate court. Since juvenile and probate courts can now

exercise their exclusive original jurisdiction concurrently, there no longer is a “race

to the courthouse” to see which can be filed first. Instead, apparently as a result of

the Supreme Court’s allowance of two courts to simultaneously exercise jurisdiction

over a child, it has become a race to see who can get the judgment completed first.

-7- Case No. 15-21-03

{¶7} This is not to say that there is no logic in allowing the paternity action

to proceed without a stay.

“[T]he right of a natural parent to the care and custody of his children is one of the most precious and fundamental in law.” In re Adoption of Masa (1986), [23 Ohio St.3d 163, 164, 492 N.E.2d 140] citing Santosky v. Kramer (1982), 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599. Santosky has been characterized as “requiring a clear and convincing standard for termination of parental rights because the parent’s interest is fundamental but the State has no legitimate interest in termination unless the parent is unfit, and finding that the State’s interest in finding the best home for the child does not arise until the parent has been found unfit.” Cruzan v. Dir., Missouri Dept. of Health (1990), 497 U.S. 261, 319, 110 S.Ct. 2841, 111 L.Ed.2d 224 (Brennan, J., dissenting).

“Few consequences of judicial action are so grave as the severance of natural family ties.” Santosky, 455 U.S. at 787, 102 S.Ct. 1388, 71 L.Ed.2d 599 (Rehnquist, J. dissenting). Because adoption terminates fundamental rights of the natural parents, “we have held that ‘* * * [a]ny exception to the requirement of parental consent [to adoption] must be strictly construed so as to protect the right of natural parents to raise and nurture their children.’” [Masa, supra at 165] quoting In re Schoeppner (1976), [46 Ohio St.2d 21, 24, 345 N.E.2d 608]. With “a family association so undeniably important * * * at stake,” we approach the case before us “mindful of the gravity” of the circumstances and the long- term impact on all the concerned parties. M.L.B. v. S.L.J. (1996), 519 U.S. 102, 117, 117 S.Ct. 555, 136 L.Ed.2d 473.

P.A.C. supra at ¶ 5-6. Likewise, this Court has previously held that we must strictly

construe the language in the adoption statutes to protect the interests of the

nonconsenting parent who may be subjected to the loss of his or her parental rights.

In re Adoption of S.S., 3d Dist. Van Wert No. 15-17-06, 2017-Ohio-8956, ¶ 18, 101

N.E.3d 527. -8- Case No. 15-21-03

{¶8} The trial court correctly considered whether Kaidin’s consent as a

putative father was required and determined that, pursuant to the statute, it was not.

However, as Kaidin had obtained a determination of paternity prior to the consent

hearing, he also had the status as the legal father with all of the rights and

responsibilities that entails. That includes the right to have the trial court determine

whether his consent is necessary pursuant to R.C. 3107.07(A). This question was

not considered by the trial court. This matter must be remanded for the trial court

for such consideration. Thus, the trial court erred by finding Kaidin’s consent was

not necessary solely because of his status as a putative father and the first assignment

of error is sustained.

{¶9} Kaidin alleges in the second assignment of error that the trial court erred

in denying his motion to intervene because he failed to register as a putative father.

As discussed above, Kaidin has a second status as legal father based upon the

judicial determination of paternity by the juvenile court. As the legal father, Kaidin

is entitled to be a part of the proceedings. Thus, the trial court erred in denying the

motion to intervene. The second assignment of error is sustained.

{¶10} In the third and fourth assignments of error, Kaidin alleges that the

statutes at issue in this case were unconstitutional as applied. Based upon our

holdings in the first two assignments of error, the third and fourth assignments of

error are rendered moot. App.R. 12(A)(1)(c). This court thus issues no opinion on

them. -9- Case No. 15-21-03

{¶11} Having found error prejudicial to the appellant in the particulars

assigned and argued, the judgment of the Court of Common Pleas of Van Wert

County, Probate Division, is reversed and the matter is remanded for further

proceedings in accord with this opinion.

Judgment Reversed And Cause Remanded ZIMMERMAN and MILLER, J.J., concur.

/hls

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