In re Adoption of K.N.S.

2016 Ohio 7427

• Court: Ohio Court of Appeals
• Decided: October 24, 2016
• Docket: 16CA0035-M
• Status: Published

Opinion

[Cite as In re Adoption of K.N.S., 2016-Ohio-7427.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF MEDINA )

IN RE ADOPTION OF KNS C.A. No. 16CA0035-M

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF MEDINA, OHIO CASE No. 2014 01 AD 00001

DECISION AND JOURNAL ENTRY

Dated: October 24, 2016

WHITMORE, Judge.

{¶1} Appellant, D.H. (“Mother”), timely appeals from the March 16, 2016 judgment of

the Medina County Court of Common Pleas, Probate Division, that entered a decree of adoption

of her biological child to the child’s step-mother. Mother assigns error to a prior final,

appealable order from which she did not file a timely notice of appeal, so this Court lacks

jurisdiction to reach the merits of her arguments. Because Mother assigns no error to the final

decree of adoption, that judgment is affirmed.

I

{¶2} On January 10, 2014, the step-mother filed a petition to adopt K.N.S., born

November 9, 2007. She alleged that she had married the child’s biological father on September

17, 2011, and that the child resided with both of them since that date. The step-mother attached

proof that the father consented to the adoption and alleged that the consent of Mother was not

necessary pursuant to R.C. 3107.07(A), which provides that a parent’s consent to an adoption is 2

not required if “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.”

{¶3} The matter proceeded to a hearing that was limited to the issue of whether

Mother’s consent to the adoption was required under R.C. 3107.07(A). Following the hearing

before the trial judge, the trial court entered a judgment on July 29, 2015, which declared that

Mother’s consent to the adoption was not required under the terms of R.C. 3107.07(A).

{¶4} The matter later proceeded to a hearing on the child’s best interest. On February

9, 2016, the trial court journalized its entry finding that adoption by the step-mother was in the

best interest of K.N.S. On March 16, 2016, the trial court entered its final decree, granting the

step-mother’s petition to adopt K.N.S. Mother timely appealed from the final decree and raises

three assignments of error. This Court will consolidate her assignments of error for ease of

review.

II

Assignment of Error Number One

THE COURT ERRED IN DETERMINING THAT [NATURAL MOTHER’S] CONSENT TO AN ADOPTION WAS NOT NECESSARY AS THE FACTS DID NOT SUPPORT THAT SHE FAILED TO PROVIDE MAINTENANCE OR SUPPORT FOR THE CHILD FOR A PERIOD OF ONE YEAR WITHOUT JUSTIFICATION.

Assignment of Error Number Two

THE COURT ERRED IN FINDING THAT [NATURAL MOTHER’S] CONSENT TO ADOPTION WAS NOT REQUIRED AS IT FAILED TO GIVE ADEQUATE CONSIDERATION TO [NATURAL MOTHER’S] DISEASE OF ADDICTION IN REGARD TO THE ISSUE OF JUSTIFIABILITY. 3

Assignment of Error Number Three

THE COURT’S DECISION WAS IN ERROR BECAUSE [R.C. 3107.07] IS UNCONSTITUTIONAL.

{¶5} Mother’s assignments of error all pertain to the trial court’s determination under

R.C. 3107.07(A) that her consent to the adoption was not required. She challenges the facts

supporting the trial court’s findings as well as the constitutionality of R.C. 3107.07. In other

words, her arguments do not pertain to the March 2016 final decree of adoption but instead

challenge the trial court’s July 2015 judgment that Mother’s consent to the adoption was not

required under the terms set forth in R.C. 3107.07(A).

{¶6} This Court initially questions its jurisdiction to determine the merits of Mother’s

assignments of error, because an untimely notice of appeal does not invoke this Court’s

jurisdiction. See Transamerica Ins. Co. v. Nolan, 72 Ohio St.3d 320 (1995), syllabus. The trial

court’s July 29, 2015 judgment was a final, appealable order. In re Adoption of Greer, 70 Ohio

St.3d 293 (1994), paragraph one of the syllabus. An appeal from a final, appealable order must

be filed within 30 days of its entry. App.R. 4(A)(1). In Greer, the Supreme Court emphasized to

“practitioners before the probate bar that to be timely, an appeal of an R.C. 3107.07 decision

averse to one claiming a right to withhold consent must be appealed within thirty days of the

entry of the order finding consent unnecessary.” Id. at 298, fn.1; see also In re Adoption of

Joshua Tai T., 6th Dist. Ottawa No. OT-07-055, 2008-Ohio-2733, ¶ 22-34.

{¶7} Consequently, to invoke this Court’s jurisdiction to review the trial court’s

judgment of July 29, 2015, Mother was required to file a notice of appeal by Friday, August 28,

2015. Because Mother did not file her notice of appeal until many months later on April 15,

2016, she failed to invoke the jurisdiction of this Court to review any alleged errors pertaining to

the trial court’s July 29 judgment. See In re S.J., 9th Dist. Summit No. 23199, 2006-Ohio-6381, 4

¶ 10. Consequently, this Court lacks authority to address the merits of Mother’s assignments of

error.

III

{¶8} Mother’s assignments of error were not addressed because this Court lacks

jurisdiction to address their merits. Because Mother assigns no error to the trial court’s March

2016 final decree of adoption, that judgment of the Medina County Court of Common Pleas,

Probate Division, is affirmed.

Judgment affirmed.

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

Costs taxed to Appellant.

BETH WHITMORE FOR THE COURT 5

MOORE, P. J. SCHAFER, J. CONCUR.

APPEARANCES:

STEVE C. BAILEY, Attorney at Law, for Appellant.

JAMES B. PALMQUIST, III, Attorney at Law, for Appellee.