In the Matter of Rader, Unpublished Decision (3-5-2004)

Ohio Court of Appeals

In the Matter of Rader, Unpublished Decision (3-5-2004)

2004 Ohio 1709

CourtOhio Court of Appeals

DecidedMarch 5, 2004

DocketCase No. 2003-T-0066.

StatusUnpublished

Cited by1 cases

This text of 2004 Ohio 1709 (In the Matter of Rader, Unpublished Decision (3-5-2004)) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In the Matter of Rader, Unpublished Decision (3-5-2004), 2004 Ohio 1709 (Ohio Ct. App. 2004).

Pincite

Opinion

MEMORANDUM OPINION {¶ 1} On April 29, 2003, appellant, Donald Eugene Rader, filed a notice of appeal from an April 1, 2003 judgment of the Trumbull County Court of Common Pleas, Probate Division. In that judgment, the trial court dismissed appellant's petition for adoption of his step-son, Nicholas J. Kellar ("the minor child").

{¶ 2} On October 9, 2002, appellant filed a petition for adoption. Also on October 9, 2002, April Lee Rader ("April"), the mother of the minor child and the wife of appellant, filed a consent to adoption. A consent hearing was held on December 23, 2002. At that hearing, appellee, Joseph Kellar, Jr., the father of the minor child and the previous husband of April, objected to the adoption.

{¶ 3} A consent hearing was held on February 6, 2003, and February 14, 2003. Pursuant to the April 1, 2003 magistrate's decision, it was determined that the consent of appellee was necessary under R.C. 3107.07 and recommended that the adoption petition be dismissed.

{¶ 4} On January 30, 2004, the parties' attorneys supplemented the record with a joint written stipulation that appellee is deceased and passed away on January 14, 2004, according to the certificate of death.

{¶ 5} App.R. 29(A) provides that "[i]f a party dies after a notice of appeal is filed or while a proceeding is otherwise pending in the court of appeals, the personal representative of the deceased party may be substituted * * *. * * * [A]ny party may suggest the death on the record and proceedings shall then be had as the court of appeals may direct."

{¶ 6} In the present case, because appellee is now deceased, consent is no longer a viable issue. As such, we do not have a judiciable controversy. Since no one may stand in the same shoes of a natural parent, substitution, pursuant to App.R. 29(A), is inapplicable. Thus, we suggest that the trial court consider appellant's new application for adoption.

{¶ 7} Accordingly, this appeal is, sua sponte, dismissed.

Christley and Nader, JJ., concur.

Nader, J., retired, of the Eleventh Appellate District sitting by assignment.

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