In re Placement of A.R.V.

[Cite as In re Placement of A.R.V., 2016-Ohio-4929.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

TRUMBULL COUNTY, OHIO

IN THE MATTER OF: : OPINION

THE PLACEMENT OF A.R.V., A MINOR. :
CASE NO. 2016-T-0019
:

:

Civil Appeal from the Trumbull County Court of Common Pleas, Probate Division, Case
No. 2015 ADP 0045.

Judgment: Affirmed.

Richard N. Schwartz, UAW GM Legal Services Plan, 1570 South Canfield-Niles Road,
Building B, Suite 101, Austintown, OH 44515 (For Appellant, Stephen A. Colburn).

Jeffrey W. Thomas, 10 South Main Street, P.O. Box 608, Niles, OH 44446 (For
Appellee, Angela R. Vitale).

DIANE V. GRENDELL, J.

{¶1} Appellant, Stephen Andrew Colburn, appeals the dismissal of a petition for

placement for purposes of adoption by the Trumbull County Court of Common Pleas,

Probate Division. The issues before this court are whether the legal custodian of a

minor child is required to obtain adoptive placement of the child before filing a petition

for adoption and whether the term “relative” as used in R.C. 5103.16(D) includes the

spouse of a great-grandparent. We affirm the dismissal of Colburn’s Petition, but do so

for reasons other than those cited by the lower court.
 {¶2} On July 16, 2015, Colburn filed a Petition for Placement for Purposes of

Adoption in the Trumbull County Court of Common Pleas, Probate Division. Colburn

made the following averments: he is the great-grandfather of A.R.V. (dob 04/22/2009);

he and Joan Colburn were “awarded legal custody of the minor child by the Trumbull

County Juvenile Court on October 20, 2010 in Case No. 02 JC 746”; Joan Colburn died

on December 28, 2012; and that A.R.V.’s biological mother and father have “failed

without justifiable cause to provide more than de minimis contact with, or provide for the

maintenance and support of, the minor for a period of at least one year immediately

preceding the filing of the placement of the home of the petitioner.” Colburn prayed “the

Court grant his Petition for Placement of the minor child * * * for purposes of Adoption.”

{¶3} Colburn’s Petition was filed pursuant to R.C. 5103.16, which sets forth the

requirements for the adoptive placement of children, and R.C. 3107.07, which provides

for the adoption of a child without a parent’s consent.

{¶4} At a November 23, 2015 hearing on the Petition, Angela Vitale, A.R.V.’s

natural mother, “objected to the proposed placement for adoption with the minor’s step-

great grandfather [Colburn] and requested that counsel be appointed for her.” The

probate court appointed counsel to represent Vitale.

{¶5} On January 21, 2016, Vitale, through counsel, filed a Civil Rule 12(B)(6)

Motion to Dismiss. Vitale argued that, for the purposes of R.C. 5103.16, a step-great-

grandfather is a “non-relative” and, therefore, without standing to bring a petition for

placement for adoption.

{¶6} On January 22, 2016, Colburn filed a Reply in Opposition to the Motion to

Dismiss.

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 {¶7} On January 25, 2016, a hearing was held at which the parties agreed that

“this motion boils down to the definition of a ‘relative’.”

{¶8} On February 9, 2016, the probate court granted Vitale’s Motion to Dismiss.

The court found that “in strictly construing the statute, a step-great-grandfather is not a

relative under O.R.C. § 5103.16(D).”

{¶9} On March 4, 2016, Colburn filed a Notice of Appeal. On appeal, Colburn

raises the following assignments of error:

{¶10} “[1.] The Trial Court committed prejudicial error in granting appellee’s

Civ.R. 12(B)(6) motion to dismiss based upon its opinion that appellant lacks standing to

bring a petition for placement and finding that petitioner is not exempt from the

preadoption placement process under R.C. section 5103.16(E).”

{¶11} “[2.] The Trial Court committed prejudicial error in granting appellee’s

Civ.R. 12(B)(6) motion to dismiss based on its opinion that appellant Colburn is not

related to the prospective adoptee under R.C. section 5103.16(D) and therefore lacked

standing to bring a petition for placement.”

{¶12} Issues of statutory construction are reviewed de novo. State v. Consilio,

114 Ohio St.3d 295, 2007-Ohio-4163, 871 N.E.2d 1167, ¶ 8. Generally, “de novo

appellate review means that the court of appeals independently reviews the record and

affords no deference to the trial court’s decision.” BP Communications Alaska, Inc. v.

Cent. Collection Agency, 136 Ohio App.3d 807, 812, 737 N.E.2d 1050 (8th Dist.2000).

{¶13} The issues raised in this appeal are related to R.C. 5103.16, which “sets

forth the procedure for independently placing a child for adoption when no public

agency, certified institution or association, or foreign custodian is involved.” In re J.A.S.,

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126 Ohio St.3d 145, 2010-Ohio-3270, 931 N.E.2d 554, ¶ 7. “The intent of the

legislature in enacting R.C. 5103.16 was to provide some measure of judicial control

over the placement of children for adoption which is not conducted under the auspices

of a statutorily recognized and authorized agency * * * by having the parents of the child

personally appear before the proper probate court for approval of the placement and

adoption.” Lemley v. Kaiser, 6 Ohio St.3d 258, 260, 452 N.E.2d 1304 (1983).

No child shall be placed or received for adoption or with intent to
adopt unless placement is made by a public children services
agency, an institution or association that is certified by the
department of job and family services under section 5103.03 of the
Revised Code to place children for adoption, or custodians in
another state or foreign country, or unless all of the following
criteria are met:

(1) Prior to the placement and receiving of the child, the
parent or parents of the child personally have applied to,
and appeared before, the probate court of the county in
which the parent or parents reside, or in which the person
seeking to adopt the child resides, for approval of the
proposed placement specified in the application and have
signed and filed with the court a written statement showing
that the parent or parents are aware of their right to
contest the decree of adoption subject to the limitations of
section 3107.16 of the Revised Code;

(2) The court ordered an independent home study of the
proposed placement to be conducted as provided in
section 3107.031 of the Revised Code, and after
completion of the home study, the court determined that
the proposed placement is in the best interest of the child;

(3) The court has approved of record [sic] the proposed
placement.

R.C. 5103.16(D). Stated otherwise, unless the child has been placed or received for

adoption by a public children services agency or related institution, “the biological

parents must appear before and obtain approval from the probate court.” J.A.S. at ¶ 18.

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 {¶14} An exception to the requirement that the parents appear before the

probate court exists where “the parent or parents of the child are deceased or have

abandoned the child, as determined under division (A) of section 3107.07 of the

Revised Code,” in which case “the application for approval of the proposed adoptive

placement may be brought by the relative seeking to adopt the child * * *.” R.C.

5103.16(D)(3).

{¶15} There are also circumstances in which R.C. 5103.16 has no application.

J.A.S. at ¶ 14 (“R.C. 5103.16 does not apply in all private adoptions”). The statute

“does not apply to an adoption by a stepparent, a grandparent, a grandparent’s

husband or wife, a legal custodian, or a guardian.” R.C. 5103.16(E)(1). For the

purposes of R.C. 5103.16, “‘[l]egal custodian’ means a person who has been granted

the legal custody of a child by a court of competent jurisdiction.” R.C. 5103.16(E)(2)(a).

{¶16} In the first assignment of error, Colburn argues that “the probate court’s

decision to apply R.C. 5103.16(D) to the case at bar and thereby dismiss Colburn’s

petition is error when Colburn is exempt from the adoption placement requirements set

forth in R.C. 5103.16(D),” by virtue of his being A.R.V.’s legal custodian. Appellant’s

Brief at 11.

{¶17} This argument lacks merit as the probate court did not decide to apply

R.C. 5103.16(D), rather, the applicability of the statute was presupposed by Colburn

filing a Petition for Placement for Purposes of Adoption pursuant to R.C. 5103.16(D). If

it was Colburn’s belief that he was exempted from the requirements of R.C. 5103.16(D),

he should not have filed a Petition for Placement under that statute but, rather, filed a

Petition for Adoption pursuant to R.C. 3107.05.

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 {¶18} We note, for the record, that the probate court and Vitale’s counsel were

aware of the anomalous situation created by Colburn filing the Petition for Placement.

At the January 25, 2016 hearing on the Motion to Dismiss the Petition, counsel for Vitale

mentioned that R.C. 5103.16(E) “excuses certain individuals from [the requirement of]

adoptive placement,” but that the exemption was “irrelevant here because * * * the

petition has already been filed” and the court “must address it in some capacity.”

{¶19} Similarly, the probate court noted in its Entry dismissing the Petition that

“the petitioner is not necessarily precluded from adoption absent the consent of the

natural parents because of the exemptions from the requirements for adoptive

placements for guardians under § 5103.16(E)(1).”

{¶20} The following cases further demonstrate that adoptive placement is not

necessary when an exemption under R.C. 5103.16(E) applies. Adoption of T.G.B., 4th

Dist. Adams No. 11CA919 and 11CA920, 2011-Ohio-6772, ¶ 11 (“[s]ubsection (E) of

the statute clearly exempts guardians, along with stepparents and grandparents, from

the statute’s preadoption placement requirements”); In re C.C., 2d Dist. Montgomery

No. 26440, 2015-Ohio-340, ¶ 14 (“[e]ffective May 22, 2012, R.C. 5103.16(E) was

amended to include an exception for legal custodians to bypass the pre-adoption

placement requirements set forth in R.C. 5103.16(D)”).

{¶21} The first assignment of error is without merit.

{¶22} In the second assignment of error, Colburn argues that the trial court erred

by holding that, as A.R.V.’s step-great-grandparent, he did not meet the definition of a

“relative” for the purposes of R.C. 5103.16(D).

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 {¶23} We note that, given the conclusion that Colburn is exempted from the

provisions of R.C. 5103.16(E), whether he qualifies as a “relative” under the statute is a

moot issue. Since we are affirming the probate court’s dismissal of the petition for

reasons other than those stated by the probate court, we will review the basis for that

dismissal although such analysis is, strictly speaking, dicta.

{¶24} As noted above, where “the parent or parents of the child are deceased or

have abandoned the child * * * the application for approval of the proposed adoptive

placement may be brought by the relative seeking to adopt the child * * *.” R.C.

5103.16(D)(3). The probate court dismissed Colburn’s Petition because, “in strictly

construing the statute, a step-great-grandfather is not a relative under O.R.C. §

5103.16(D).” We disagree.

{¶25} The term “relative” is generally understood as “[a] person connected with

another by blood or affinity.” Black’s Law Dictionary 1315 (8th Ed.2004); In re R.V., 190

Ohio App.3d 313, 2010-Ohio-5050, 941 N.E.2d 1216, ¶ 13 (2d Dist.) (noting that Ohio

courts and the courts of other states “have defined ‘relative’ as a relationship through

affinity or consanguinity”).

{¶26} Significantly, the definition of “relative” adopted by the Ohio Administrative

Code for family services departments encompasses relationships by affinity including

the spouses of great-grandparents, i.e., step-great-grandparents. Ohio Adm.Code

5101:2-1-01(B)(259) (“relative” means “[i]ndividuals related by blood” with their

“[s]pouses and former spouses,” including “grandparents with the prefix ‘great’”). As will

be shown below, the Administrative Code’s definition of relative is important for

understanding A.R.V.’s custodial history.

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 {¶27} A.R.V. was placed in foster care upon her adjudication as dependent on

May 5, 2009. Trumbull County Children Services Board eventually motioned the

juvenile court that the placement be modified “to grant placement with [the] paternal

great grandparents.” The court sanctioned this permanency plan of “keep[ing] [A.R.V.]

with the family” as in her best interests. The Colburns were found “appropriate relatives

of the child who are willing to be temporary custodians.” By placing A.R.V. with

family/relatives, Trumbull Children Services eschewed filing for permanent custody:

“Despite the custodial history of the minor child, there exists compelling reasons for

TCCSB to not file a Motion for Permanent Custody, specifically: A family placement has

been found.” It would be incongruous if great-grandparents and their spouses were

deemed relatives for the purpose of family placement but not relatives should they later

seek to file for adoption.

{¶28} Moreover, we note that construing the term “relative” as used in R.C.

5103.16(D) to include the spouses of great-grandparents would not exempt such

persons from seeking court approval for adoptive placement, it would merely enable

them to do so despite the lack of a prior placement by a public children services agency

or related institution.

{¶29} The probate court in the present case felt compelled to adopt a narrow

definition of “relative” in light of the Ohio Supreme Court’s injunction that courts “must

strictly comply with the statutory requirements in R.C. 5103.16(D).” J.A.S., 126 Ohio

St.3d 145, 2010-Ohio-3270, 931 N.E.2d 554, at ¶ 22. The reason for strict compliance

is that R.C. 5103.16(D) “is in substance an adoption statute,” and, as such, “is

necessarily in derogation of the common law.” Lemley, 6 Ohio St.3d at 260, 452 N.E.2d

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1304. The requirement of strictly complying with the adoption statutes does not

necessarily require the narrowest possible definition of terms contained therein,

particularly when such a definition would itself be in derogation of the common law.

{¶30} For the foregoing reasons, the dismissal of Colburn’s Petition for

Placement for Purposes of Adoption by the Trumbull County Court of Common Pleas,

Probate Division, is affirmed. Costs to be taxed against appellant.

THOMAS R. WRIGHT, J., concurs,

CYNTHIA WESTCOTT RICE, P.J., concurs with a Concurring Opinion.

___________________________________

CYNTHIA WESTCOTT RICE, P.J., concurs with a Concurring Opinion.

{¶31} I agree with the majority opinion’s disposition of this matter. I write

separately because the analysis of what constitutes a “relative” under R.C. 5103.16(D)

is irrelevant. Both the trial court and the majority properly acknowledge that Colburn

could proceed pursuant to his exempt status as legal custodian under subsection (E)(1).

Pursuant to subsection (E)(1), R.C. 5103.16(D) does not apply to an adoption by, inter

alia, “a legal custodian.”

{¶32} As the majority points out, the trial court recognized Colburn is not

precluded from moving forward with a petition for adoption under R.C. 5103.16(E)(1).

The trial court nevertheless went to great pains analyzing the issue of whether Colburn

was a relative under subsection (D). That issue, although apparently put before the

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court by Ms. Vitale, was a red herring. The majority even recognizes the analysis as

dicta. Addressing the definition of “relative” as it pertains to subsection (D) is

completely unnecessary to our analysis and adds nothing to the substantive character

of the opinion. In my view, therefore, any discussion of this issue should be withheld

from consideration until it is properly before this court.

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