In re Adoption of E.H.D., Case No. 2020CA00097

2020 Ohio 5014

IN RE: ADOPTION OF E.H.D.

Case No. 2020CA00097

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

October 21, 2020

JUDGES: Hon. William B. Hoffman, P.J. Hon. Patricia A. Delaney, J. Hon. Earle E. Wise, Jr., J.

OPINION

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

JUDGMENT: Affirmed

APPEARANCES:

For Appellee Anastasia Dunigan

EUGENE CAZANTZES, ESQ.

Pitinii, Davies & Cazantzes, LLC

101 Central Plaza, South, Suite #1000

Canton, Ohio 44702

For Appellant Jessica Byard

PAUL HERVEY, ESQ.

4940 Munson Avenue, N.W.

Canton, Ohio 44718

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

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.

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; (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

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 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 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 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.

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

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