In re Adoption of A.N.

[Cite as In re Adoption of A.N., 2013-Ohio-3871.]

IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
UNION COUNTY

IN THE MATTER OF CASE NO. 14-12-27
THE ADOPTION OF:

A.N. OPINION

Appeal from Union County Common Pleas Court
Probate Division
Trial Court No. 2012-5-008

Judgment Reversed and Cause Remanded

Date of Decision: September 9, 2013

APPEARANCES:

Jerry M. Johnson for Appellants Nord

Alison Greene Boggs for Appellee Scheiderer

John C. Huffman for Appellee Hart
Case No. 14-12-27

PRESTON, P.J.

{¶1} Appellants, Scott Wayne Nord and Erica Joy Nord, appeal the

November 19, 2012 judgment entry of the Union County Court of Common Pleas,

Probate Division, vacating its prior order of placement and ordering that the child

involved in this appeal, A.N., be immediately returned to the State of Ohio. In its

judgment entry, the trial court concluded that the consent of the putative father—

appellee, Kris Scheiderer, Jr.—was required for the petition for adoption to be

granted and that Scheiderer did not consent to the adoption. It is the trial court’s

conclusion regarding the necessity of Scheiderer’s consent that the Nords dispute

in this appeal. For the reasons that follow, we reverse.

{¶2} A.N. was born on February 11, 2012. (Birth Certificate, Doc. No. 3).

Four days later, in case number 2012-5-005, the trial court approved an application

for approval of placement of A.N. and issued a judgment entry placing A.N. in the

Nords’ home. (Petitioner’s Ex. 5, Sept. 26, 2012 Tr. at 7). (See also Judgment

Entry, Doc. No. 5). Also on February 15, 2012, the Nords filed a petition for

adoption of A.N. in the Probate Division of the Union County Court of Common

Pleas, initiating the underlying case, number 2012-5-008. (Doc. No. 1). The

petition listed the birthmother—appellee, Rachel Hart—as the only person or

agency whose consent to the adoption was required. (Id.). The petition also stated

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that no person timely registered as a putative father and that a certification to that

effect “is forthcoming.” (Id.).

{¶3} On March 30, 2012, in response to an inquiry by counsel for Hart, the

Ohio Department of Job and Family Services certified that Scheiderer was

registered as a putative father in Ohio’s Putative Father Registry. (Doc. No. 4).

The documents attached to the Department’s certification reflected that Scheiderer

registered as a putative father on September 6, 2011. (Id.). (See also Judgment

Entry, Doc. No. 5). The Department’s certification was filed with the trial court

on April 16, 2012. (Doc. No. 4). Eleven days earlier, on April 5, 2012, the Nords

filed a motion to stay DNA testing of A.N. pending the hearing on the issues of

consent and best interest of the child. (Doc. No. 2).

{¶4} In a June 21, 2012 judgment entry, the trial court denied the Nords’

motion to stay DNA testing, ordered that Hart, Scheiderer, and A.N. immediately

submit to genetic testing, and stayed the adoption proceeding pending the outcome

of paternity testing. (Doc. No. 5). In its judgment entry, the trial court noted that

on June 19, 2012, the Juvenile Division of the Union County Court of Common

Pleas notified the Probate Division that Scheiderer, through his parents, filed a

complaint on April 24, 2012 to determine the existence or nonexistence of a

parent-child relationship between Scheiderer and A.N. (Id.). (See also

Petitioner’s Ex. 2, Sept. 26, 2012 Tr. at 7).

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{¶5} On July 2, 2012, the Nords filed an amended petition for adoption of

A.N., again listing Hart as the only person or agency whose consent to the

adoption was required, and listing Scheiderer as a putative father whose consent

was not required because he willfully abandoned Hart during her pregnancy and

up to the time of her surrender of A.N. (Doc. No. 6). That same day, the Nords

moved the trial court to schedule an immediate hearing concerning whether

Scheiderer’s consent was necessary. (Doc. No. 7).

{¶6} The case’s docket saw a flurry of activity on July 5, 2012. That

morning, a magistrate of the trial court issued an order notifying Scheiderer of the

Nords’ July 2, 2012 amended petition for adoption alleging that his consent was

not required. (Doc. No. 8). The order also notified Scheiderer that a hearing

would be scheduled as “set forth in a separate entry” and that, if he wished to

contest the adoption, he needed to file an objection to the Nords’ amended petition

within fourteen days after receiving the notice and attend the hearing. (Id.). The

clerk mailed to Scheiderer copies of the magistrate’s order, the Nords’ amended

petition for adoption, and the Nords’ motion requesting an immediate hearing

concerning consent. (Id.). Scheiderer signed for the clerk’s certified mailing on

July 17, 2012. (Id.).

{¶7} Also on the morning of July 5, 2012, the Nords moved for

reconsideration of the trial court’s June 21, 2012 judgment entry ordering that

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Hart, Scheiderer, and A.N. immediately submit to genetic testing or, alternatively,

a continuance of the DNA testing. (Doc. No. 9). A few hours later, the magistrate

issued an order denying the Nords’ motion. (Doc. No. 10.).

{¶8} In the afternoon on July 5, 2012, Hart, through her next friend, filed a

“notice of special appearance” and motion to set aside the portion of the trial

court’s June 21, 2011 judgment entry requiring her to submit to DNA testing

despite her not being a party to the adoption proceeding. (Doc. Nos. 11, 12). Less

than an hour later, the magistrate issued an order denying Hart’s motion. (Doc.

No. 13).

{¶9} On July 30, 2012, Scheiderer’s counsel filed a notice of appearance.

(Doc. No. 17).

{¶10} On July 31, 2012, the Nords filed a stipulation, in which they agreed

to the admissibility of the DNA results in the paternity action filed by Scheiderer

in the Juvenile Division. (Doc. No. 18). The Nords also agreed that A.N. was a

party to both the paternity action and the adoption proceeding pending in the

Juvenile Division and Probate Division, respectively, and that the courts of Union

County, Ohio were the only courts having jurisdiction over A.N. (Id.).

{¶11} On August 6, 2012, the trial court held a pretrial hearing. (See

Journal Entry, Doc. No. 14). Present at the hearing were Hart and her parents and

counsel, A.N., counsel for Scheiderer, and counsel for the Nords, whose presence

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the trial court excused. (Doc. Nos. 19, 20). Following the hearing, the trial court

issued a journal entry and nunc pro tunc journal entry finding a parent-child

relationship between Scheiderer and A.N. and scheduling a September 26, 2012

hearing concerning whether Scheiderer’s consent to the adoption was necessary.

(Doc. Nos. 20, 21).

{¶12} On August 20, 2012, the trial court issued to Scheiderer a “NOTICE

OF HEARING ON PETITION FOR ADOPTION.” (Doc. No. 22). In it, the trial

court notified Scheiderer that the Nords filed an amended petition for adoption on

July 2, 2012, that a hearing was scheduled for September 26, 2012, and that he

needed to file an objection to the Nords’ amended petition within fourteen days

after receiving the notice and attend the hearing if he wished to contest the

adoption. (Id.). The clerk mailed to Scheiderer copies of the notice of hearing on

petition for adoption and the journal entry and nunc pro tunc journal entry

scheduling the September 26, 2012 hearing. (Id.). Scheiderer signed for the

clerk’s certified mailing on August 22, 2012. (Id.).

{¶13} On August 27, 2012, the trial court held a conference attended by

counsel for Hart, Scheiderer, and the Nords. (See Journal Entry, Doc. No. 23).

Each attorney said he would not be requesting that a guardian ad litem be

appointed for A.N. in the adoption proceeding. (Id.). In its journal entry

memorializing the conference, the trial court noted that Scheiderer’s counsel stated

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at the conference that he was planning to file a petition for custody on behalf of

Scheiderer, and that he planned to file a motion to appoint a guardian ad litem in

that case. (Id.).

{¶14} The trial court held a hearing on September 26 and 27, 2012 to

determine whether Scheiderer’s consent to the adoption was necessary. (Sept. 26,

2012 Tr. at 4, 8); (Sept. 27, 2012 Tr. at 4). (See also Journal Entry, Doc. No. 24).

Present at the hearing were Hart and her parents and counsel, Scheiderer and his

counsel, and the Nords and their counsel. (Sept. 26, 2012 Tr. at 4-5). (See also

Journal Entry, Doc. No. 24). At the outset of the hearing, the Nords’ counsel

noted that Scheiderer had not filed an objection to the amended petition as

required by R.C. 3107.07(K) and requested that the trial court ask Scheiderer for

the record whether he consented to the adoption. (Sept. 26, 2012 Tr. at 8). The

trial court asked, and Scheiderer said he did not consent to the adoption. (Id. at

13). The Nords’ counsel then argued that Scheiderer’s consent was not necessary

under R.C. 3107.07(K) because he failed to file an objection, and the Nords’

counsel asked the trial court to rule on that issue. (Id. at 14-15). The trial court

held the Nords’ motion in abeyance and proceeded with the hearing. (Id. at 15).

{¶15} On October 12, 2012, the trial court issued a journal entry ordering

that the parties submit written closing arguments, including proposed findings of

fact and conclusions of law, on October 19, 2012. (Doc. No. 24). In addition, the

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trial court ordered that the parties brief in their written closing arguments the legal

issue of whether Scheiderer waived his right to contest the adoption by failing to

object to the Nords’ amended petition for adoption. (Id.). The trial court also

allowed the Nords to return with A.N. to their home in Bakersfield, California, but

ordered that they return to the trial court with A.N. if ordered by the trial court.

(Id.).

{¶16} Hart, Scheiderer, and the Nords filed their written closing arguments

on October 19, 2012. (Doc. Nos. 25-27).

{¶17} On November 19, 2012, the trial court issued the judgment entry

concluding that Scheiderer’s consent to the adoption was necessary and not given.

(Doc. No. 30). The trial court based its decision on its conclusions that there was

not clear and convincing evidence that Scheiderer willfully abandoned Hart or that

he willfully abandoned or failed to care for and support A.N. (Id.). The trial court

also concluded that Scheiderer did not waive his right to contest the adoption by

failing to file a written objection to the Nords’ amended petition for adoption.

(Id.).

{¶18} The Nords filed their notice of appeal on November 29, 2012. (Doc.

No. 32). They raise three assignments of error for our review.

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Assignment of Error No. I

The probate court erred in finding that O.R.C. § 3107.07(K)’s
requirement that a written objection to the adoption be filed
with the trial court within fourteen (14) days after notice is
received did not apply to a putative father who has registered
with the state putative father registry.

{¶19} In their first assignment of error, the Nords argue that the trial court

erred when it concluded that Scheiderer did not waive his right to contest the

adoption, even though he failed to object in writing to the Nords’ amended petition

for adoption. Specifically, the Nords argue that Scheiderer received the notice he

was entitled to receive under R.C. 3107.11(A)(1), but that he failed to object

within fourteen days as required under R.C. 3107.07(K) and, as a result, waived

his right to contest the adoption.

{¶20} The Nords’ first assignment of error challenges the trial court’s

interpretation and application of R.C. 3107.07 and 3107.11. “We review a trial

court’s interpretation and application of a statute under a de novo standard of

review.” In re Adoption of R.M.P., 11th Dist. Trumbull Nos. 2011-T-0041 and

2011-T-0042, 2011-Ohio-6841, ¶ 10 (citation omitted). See also In re Adoption of

O.N.C., 191 Ohio App.3d 72, 2010-Ohio-5187, ¶ 11 (3d Dist.) (“Statutory

interpretation involves a question of law, and thus, our review is conducted under

a de novo standard of review.”).

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{¶21} In Ohio, certain persons and entities must consent to an adoption,

including the father and any putative father of the minor child. In re T.L.S., 12th

Dist. Fayette No. CA2012-02-004, 2012-Ohio-3129, ¶ 8, citing R.C. 3107.06.

However, the General Assembly carved out exceptions to the consent requirement.

Those exceptions are found in R.C. 3107.07. One of the exceptions applies if a

person or entity whose consent to the adoption is required fails to file an objection

to the petition for adoption within fourteen days after that person or entity receives

notice of the petition and of the hearing of the petition:

Consent to adoption is not required of any of the following:

***

(K) Except as provided in divisions (G) and (H) of this section, a

juvenile court, agency, or person given notice of the petition

pursuant to division (A)(1) of section 3107.11 of the Revised Code

that fails to file an objection to the petition within fourteen days after

proof is filed pursuant to division (B) of that section that the notice

was given * * *.”

R.C. 3107.07(K). See also In re T.L.S. at ¶ 10.

{¶22} R.C. 3107.07(K) cross-references four statutory sections. The first

two—R.C. 3107.07(G) and (H)—provide exceptions to the exception found in

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R.C. 3107.07(K). Neither applies in this case, and the parties do not contend

otherwise.

{¶23} R.C. 3107.07(K) also cross-references the notice required by R.C.

3107.11(A)(1). That statute requires that the trial court fix a time and place for a

hearing on a petition for adoption after the petition is filed. It also requires that the

trial court, at least twenty days before the hearing, give notice of the filing of the

petition and of the hearing to, among others, any person whose consent is required

under R.C. Chapter 3107 and who has not consented:

(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;

***

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

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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.

R.C. 3107.11. As R.C. 3107.07(K) provides, if a person does not object within

fourteen days after receiving the notice required by R.C. 3107.11(A)(1), his or her

consent to the adoption is no longer required.

{¶24} Finally, R.C. 3107.07(K) cross-references R.C. 3107.11(B), which,

according to R.C. 3107.07(K), governs the filing of proof that notice was given.

The current version of R.C. 3107.11(B), however, does not address filing proof of

notice and instead sets forth the language a court’s notice must contain if the

petition for adoption alleges that a parent failed without justifiable cause to

provide for the maintenance and support of the minor or more than de minimis

contact with the minor:

(B) Upon the filing of a petition for adoption that alleges that a

parent has failed without justifiable cause to provide more than de

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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

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OF ADOPTION MAY BE ENTERED IF YOU FAIL TO FILE AN

OBJECTION TO THE ADOPTION PETITION OR APPEAR AT

THE HEARING.”

Before the General Assembly amended R.C. 3107.11 in 2008, division (B) did

address the filing of proof that notice was given, and provided: “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.” See 2008 Sub.H.B. No. 7.

{¶25} In 2008, the General Assembly passed Substitute House Bill 7,

which went into effect on April 7, 2009. 2008 Sub.H.B. No. 7. That legislation

amended R.C. 3107.11 by adding a new division (B), and by bumping the existing

division (B) to a new division, (C). Id. When it did so, the General Assembly did

not also amend the cross-references in R.C. 3107.07(K) and 3107.11(A) to reflect

that the old R.C. 3107.11(B) was the new R.C. 3107.11(C). See 2008 Sub.H.B.

No. 7.

{¶26} We begin our de novo review of the trial court’s interpretation and

application of R.C. 3107.07 and 3107.11 by noting that the Supreme Courts of the

United States and Ohio have recognized a putative father’s right to a parental

relationship with his offspring. In re Adoption of Zschach, 75 Ohio St.3d 648,

650-651 (1996), citing Lehr v. Robertson, 463 U.S. 248, 261-265, 103 S.Ct. 2985

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(1983) and In re Adoption of Greer, 70 Ohio St.3d 293, 298 (1994). By the same

token, “the goal of adoption statutes is to protect the best interests of children.” Id.

at 651. “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. (citations omitted).

{¶27} “In balancing the rights of a putative father and the state’s interest in

protecting the welfare of children, the legislature has enacted a statutory scheme

where putative fathers are given the right to contest an adoption by filing an

objection with the appropriate authority.” Id. The Supreme Court of Ohio has

“held that adoption statutes are in derogation of common law and therefore must

be strictly construed * * *.” Id. at 655, citing Lemley v. Kaiser, 6 Ohio St.3d 258,

260 (1983). However, “strict construction does not require that we interpret

statutes in such a manner that would mandate an unjust or unreasonable result.”

Id., citing R.C. 1.47(C).

{¶28} The parties do not dispute the facts relevant to our analysis of the

Nords’ first assignment of error. No one disputes that Scheiderer—whether

classified as a father or a putative father—was a person whose consent to the

adoption was required under R.C. 3107.06. As a person whose consent to the

adoption was required but who had not yet consented, the trial court was required

to notify Scheiderer of the filing of the Nords’ amended petition and of the time

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and place of the hearing on the petition. R.C. 3107.11(A)(1). The parties do not

dispute that the trial court sent two notices to Scheiderer—one in the form of a

magistrate’s order on July 5, 2012, and the other in the form of a “NOTICE OF

HEARING ON PETITION FOR ADOPTION” signed by the trial court judge and

dated August 20, 2012.

{¶29} Scheiderer does not dispute that he failed to timely file an objection

to the Nords’ petition for adoption. Instead, he argues that because he was a

putative father who timely registered with Ohio’s Putative Father Registry, R.C.

3107.07(B) required his consent to the adoption and controlled over the more

general R.C. 3107.07(K). Scheiderer also argues that his registering with Ohio’s

Putative Father Registry, his appearance at hearings, and his filing a paternity

action in the Juvenile Division was sufficient notice that he objected to the

adoption.

{¶30} In its decision, the trial court similarly concluded that Scheiderer’s

consent was required under R.C. 3107.07(B) and that he did not consent. (Doc.

No. 30). The trial court also concluded that it was required to and did notify

Scheiderer of the Nords’ amended petition and the hearing under R.C. 3107.11(A);

that R.C. 3107.11(A) did not require Scheiderer to object; and, that the trial court

was not required to give Scheiderer notice under R.C. 3107.11(B) because this

case did not involve allegations under R.C. 3107.07(A) that Scheiderer failed

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without justifiable cause to provide for the maintenance and support of A.N. or

more than de minimis contact with A.N. (Id.). In excusing Scheiderer’s failure to

timely file an objection to the Nords’ amended petition, the trial court reasoned

that Scheiderer “has already clearly declared and formally put interested parties on

notice of his desire to be a part of the child’s life.” (Id.).

{¶31} We disagree with Scheiderer and the trial court and hold that

Scheiderer’s consent to the Nords’ adoption of A.N. was not required because he

failed to file an objection to the Nords’ amended petition within fourteen days

after proof was filed with the trial court on August 23, 2012 that he was given

notice of the Nords’ amended petition and of the September 26, 2012 hearing.

R.C. 3107.07(K). See also In re T.L.S., 2012-Ohio-3129, at ¶ 12.

{¶32} We begin our analysis by noting that the trial court’s first notice to

Scheiderer—which came in the form of magistrate’s order on July 5, 2012—was

not sufficient to satisfy the requirements of R.C. 3107.11(A) because it did not

inform him “of the time and place of hearing.” Rather, the magistrate’s order said

the hearing would be scheduled as “set forth in a separate entry.” (Doc. No. 8).

{¶33} The trial court’s second notice, however—issued on August 20,

2012—did satisfy R.C. 3107.11(A). It notified Scheiderer of the Nords’ amended

petition and of the September 26, 2012 hearing, and it informed him that if he

wished to contest the adoption, he needed to file an objection within fourteen days

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of receiving the notice and appear at the hearing. (Doc. No. 22). This was

sufficient to satisfy Scheiderer’s due-process rights. See In re Adoption of Baby

F., 10th Dist. Franklin Nos. 03AP-1092 and 03AP-113, 2004-Ohio-1871, ¶ 13-20

(acknowledging that “[a] putative father’s consent to an adoption is not necessary

if he receives notice of a petition for adoption and does not file objections to the

petition within 14 days” but concluding that the putative father’s consent to the

adoption “could not be excused pursuant to R.C. 3107.07(K)” because the notice

of hearing failed to inform the putative father “of the need to file objections within

14 days if he objected to the adoption” and, therefore, “did not comply with the

putative father’s due process rights”).

{¶34} In accordance with R.C. 3107.07(K) and R.C. 3107.11(C), proof that

Scheiderer received the notice was filed with the trial court on August 23, 2012,

giving him until September 6, 2012 to file an objection. (Doc. No. 22). Because

he failed to do so, we hold that his consent to the adoption was not required. R.C.

3107.07(K). See also In re T.L.S. at ¶ 12 (concluding “that appellee’s consent to

the adoption was not required because he failed to object when given notice of the

adoption petition”).

{¶35} Our holding is consistent with the Supreme Court of Ohio’s decision

in In re Adoption of Zschach. 75 Ohio St.3d 648. In that case, the Supreme Court

rejected a putative father’s attempt to circumvent the procedural mandates of a

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former version of R.C. 3107.07(B). Id. at 650-652. The putative father argued

that his attempt to condition his consent to adoption on his retention of permanent

visitation rights satisfied R.C. 3107.07(B)’s requirement that he file a written

objection. Id. The Supreme Court rejected his argument, concluding that “[w]hile

strict adherence to the procedural mandates of R.C. 3107.07(B) 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.” Id. at 652.

{¶36} We disagree with Scheiderer’s argument and the trial court’s

conclusion that Scheiderer’s consent was required under R.C. 3107.07(B),

notwithstanding R.C. 3107.07(K). R.C. 3107.07(B) sets forth circumstances under

which the consent of a minor’s putative father is not required for adoption:

Consent to adoption is not required of any of the following:

**

(B) The putative father of a minor if either of the following applies:

(2) The putative father fails to register as the minor’s putative

father with the putative father registry established under section

3107.062 of the Revised Code not later than thirty days after the

minor’s birth;

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(3) The court finds, after proper service of notice and hearing, that

any of the following are the case:

(a) The putative father is not the father of the minor;

(b) The putative father has willfully abandoned or failed to care for

and support the minor;

(c) The putative father has willfully abandoned the mother of the

minor during her pregnancy and up to the time of her surrender of

the minor, or the minor’s placement in the home of the petitioner,

whichever occurs first.

Scheiderer’s timely registration with Ohio’s Putative Father Registry simply

meant that R.C. 3107.07(B) did not excuse his consent. See R.C. 3107.07(B)(1).

It did not guarantee that his consent would be required, nor did it authorize him to

ignore other applicable provisions of R.C. 3107.07. Divisions (A) through (L) of

R.C. 3107.07 set forth distinct and independent circumstances under which

consent is not required. See R.C. 3107.07 (“Consent to adoption is not required of

any of the following * * *.” (Emphasis added)); In re B.A.H., 2d Dist. Greene No.

2012-CA-44, 2012-Ohio-4441, ¶ 19 (“Thus, in Ohio, putative fathers must consent

to any adoption unless one of the exceptions set forth in R.C. 3107.07 applies.”

(Emphasis added.)).

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{¶37} We also disagree with the trial court’s interpretation and application

of R.C. 3107.07 and 3107.11. The trial court reasoned that R.C. 3107.11(A) did

not require Scheiderer to file an objection, but that reasoning ignores the role of

R.C. 3107.07(K). It is true that R.C. 3107.11(A), standing alone, does not require

the filing of an objection. Rather, that requirement is found in R.C. 3107.07(K),

and it applied to Scheiderer because he is a person who was entitled to notice

under R.C. 3107.11(A)(1).

{¶38} Scheiderer argues and the trial court reasoned that Scheiderer’s

failure to timely file an objection in this case was excused by his registering with

Ohio’s Putative Father Registry, his appearance at hearings, and his filing a

paternity action. However, R.C. 3107.07(K) is clear—it excuses the consent of

any agency or person who fails to timely file objections to the notice provided

under R.C. 3107.11(A)(1). Anything short of timely filing objections results in

consent no longer being required. We, therefore, reject Scheiderer’s “constructive

notice” arguments and the similar reasoning of the trial court.

{¶39} In support of his arguments, Scheiderer cites In re Adoption of

Campbell, 5th Dist. Guernsey No. 07 CA 43, 2008-Ohio-1916. However, the

Fifth District in that case made no mention of R.C. 3107.07(K) and instead

addressed whether, under R.C. 3107.07(A), the appellant failed without justifiable

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cause to communicate with the minor for a period of one year preceding the filing

of the petition for adoption. Id. at ¶ 20-21.

{¶40} Scheiderer also cites the Supreme Court of Ohio’s decision in In re

Adoption of Greer, 70 Ohio St.3d 293 (1994), and this Court’s decision in In re

Adoption of Youngpeter, 65 Ohio App.3d 172 (3d Dist.1989). More specifically,

Scheiderer relies on a footnote in In re Adoption of Greer, in which the Supreme

Court cited In re Adoption of Youngpeter and “express[ed] no opinion as to

whether a putative father who objects to the adoption for the first time by making

an oral objection at the hearing of the adoption petition has ‘filed’ an objection

within the scope of” a since-amended version of R.C. 3107.07(B) requiring that a

putative father file an objection to the adoption. In re Adoption of Greer at 301,

fn. 3. The Supreme Court characterized this Court’s decision in In re Adoption of

Youngpeter as “implicitly holding that oral objection suffices to trigger right to

hearing on R.C. 3107.07[B] issues of abandonment or failure to support.” In re

Adoption of Greer at 301, fn. 3.

{¶41} In re Adoption of Greer does not bear on this case because the

Supreme Court expressed no opinion as to whether an oral objection at hearing

could satisfy a requirement that one “file” an objection. Id. Nor does In re

Adoption of Youngpeter bear on our holding today. In that case, the parties did not

present us with the question of whether an oral objection at hearing could satisfy a

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requirement that one “file” an objection, and we did not offer an opinion on that

question. See In re Adoption of Youngpeter at 174-179. Even assuming In re

Adoption of Youngpeter stood for the proposition that an oral objection could

constitute a “filing,” R.C. 3107.07(K) clearly requires that the objection be filed

within fourteen days of receipt of notice. Here, Scheiderer made his oral objection

at the September 26, 2012 hearing, which was more than fourteen days after proof

was filed that he received the trial court’s August 20, 2012 notice. (See Sept. 26,

2012 Tr. at 8, 13). Thus, this case does not call upon us to decide, and we still do

not decide, whether an oral objection at hearing can satisfy the statute’s

requirement that one “file” an objection.

{¶42} As the Supreme Court of Ohio did in In re Adoption of Zschach, we

acknowledge that “strict adherence to the procedural mandates of [R.C.

3107.07(K)] might appear unfair,” but that adherence is necessary given the intent

of the legislature apparent from the statute’s language. The General Assembly

amended Ohio’s adoption laws in 1996 “to streamline the adoption process and to

reduce the time needed to finalize an adoption.” In re T.L.S., 2012-Ohio-3129, at

¶ 10, citing In re Adoption of P.A.C., 126 Ohio St.3d 236, 2010-Ohio-3351, ¶ 56

(Cupp, J., dissenting). These amendments included the addition of R.C.

3107.07(K). See 1996 H.B. No. 419; In re T.L.S. at ¶ 10. It is not the role of this

Court to second guess the legislature’s policy decisions. See Matter of Apple, 2d

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Dist. Miami No. 93-VA-59, 1994 WL 515116, *7 (Sept. 21, 1994) (“It is wholly

inappropriate for this court to rewrite the adoption laws of Ohio on grounds of

policy considerations. The legislature is the proper arena for thrashing out policy

considerations such as are involved in the sensitive area of adoptions.”).

{¶43} The Nords’ first assignment of error is, therefore, sustained.

Assignment of Error No. II

The probate court erred in finding that the putative father’s
abandonment of the birthmother during her pregnancy and
through the time of placement was justified.

Assignment of Error No. III

The probate court erred in finding that the putative father’s
abandonment and failure to care for and support the minor,
[sic] was justified.

{¶44} In their second assignment of error, the Nords argue that the trial

court erred in concluding that Scheiderer did not, under R.C. 3107.07(B)(2)(c),

willfully abandon Hart during her pregnancy and up to the time A.N. was placed

with the Nords. In their third assignment of error, the Nords argue that the trial

court erred in concluding that Scheiderer did not, under R.C. 3107.07(B)(2)(b),

willfully abandon or fail to care for and support A.N.

{¶45} In light of our decision that the trial court erred when it concluded

that Scheiderer’s consent to the adoption was required notwithstanding his failure

to timely file an objection to the adoption under R.C. 3107.07(K), the Nords’

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remaining assignments of error have been rendered moot, and we decline to

address them. App.R. 12(A)(1)(c).

{¶46} Having found error prejudicial to the appellants herein in the

particulars assigned and argued, we reverse the judgment of the trial court and

remand for further proceedings consistent with this opinion.

Judgment Reversed and
Cause Remanded

WILLAMOWSKI and ROGERS, J.J., concur.

/jlr

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