[Cite as In re A.M.G.H., 2020-Ohio-534.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
CLERMONT COUNTY
IN RE: :
A.M.G.H. : CASE NO. CA2019-10-079
: OPINION
2/18/2020
:
:
:
APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS
PROBATE DIVISION
Case No. 19 AD 1601
Kroener Hale Law firm, Christina M. Strasel, 101 N. Riverside Drive, Batavia, Ohio 45103,
for appellant
Maternal Grandparents, pro se
RINGLAND, J.
{¶ 1} Appellant, the biological father of A.M.G.H. ("Father"), appeals from the
decision of the Clermont County Court of Common Pleas, Probate Division, finding that his
consent is not required for the adoption of the child by her maternal grandparents ("Maternal
Grandparents"). For the reasons outlined below, we affirm.
{¶ 2} The child involved in this case, A.M.G.H., was born on May 5, 2010. On June
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14, 2019, Maternal Grandparents filed a petition to adopt A.M.G.H., who had been in their
legal custody since November 14, 2014. The petition alleged that A.M.G.H.'s mother's
consent was not required because she was deceased. The petition further claimed that
Father's consent was not required because he had failed without justifiable cause to provide
more than de minimis contact with the minor for a period of at least one year immediately
preceding the filing of the petition. The probate court gave Father notice of Maternal
Grandparents' petition and the date of the adoption hearing. After receiving notice, Father
failed to respond or object to the petition.
{¶ 3} On August 26, 2019, a magistrate held a hearing regarding the petition to
adopt. Maternal grandmother testified regarding Father's contact with A.M.G.H. Father did
not attend the hearing. Shortly thereafter, the magistrate issued a written decision and
concluded that, based upon maternal grandmother's testimony, Father had maintained
more than de minimis contact with A.M.G.H. during the one-year period preceding the filing
of the adoption petition. As a result, the magistrate found Father's consent was required in
order to proceed. Neither Father nor Maternal Grandparents filed any objection to the
magistrate's decision.
{¶ 4} Thereafter, on September 13, 2019, the probate court issued a final judgment
entry reversing the magistrate's decision. In its entry, the probate court found that because
Father failed to object to the adoption petition within 14 days as required by R.C.
3107.07(K), his consent was not required pursuant to a decision from this court, In re T.L.S.,
12th Dist. Fayette No. CA2012-02-004, 2012-Ohio-3129, ¶ 12.
{¶ 5} In October 2019, Father responded to the adoption petition for the first time
by filing a handwritten letter with the probate court objecting to the proceedings and
obtaining counsel.
{¶ 6} Father now appeals from the probate court's decision, raising two
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assignments of error for our review. For the ease of discussion, we will address Father's
assignments of error out of order.
{¶ 7} Assignment of Error No. 2:
{¶ 8} THE PETITION FOR ADOPTION IS INVALID ON ITS FACE AND SHOULD
BE STRICKEN WHERE THERE IS NOT "GOOD GROUND TO SUPPORT" AN
ALLEGATION THAT A PARENT HAS NOT HAD MORE THAN DE-MINIMIS CONTACT
WITH THE CHILD SUBJECT TO AN ADOPTION PETITION.
{¶ 9} Father argues the petition for adoption is invalid because Father was "untruly
and inaccurately alleged to have not maintained more than de minimis contact" with
A.M.G.H. even though there was no "good ground to support" such an allegation. As such,
Father contends that if Maternal Grandparents had accurately alleged in their petition that
Father's consent was required, he would not have been subject to the 14-day procedural
requirement set forth in R.C. 3107.07(K). We find no merit to Father's claims.
{¶ 10} The right of natural parents to the care and custody of their child is one of the
most precious and fundamental in law. In re A.N.L., 12th Dist. Warren Nos. CA2004-11-131
and CA2005-04-046, 2005-Ohio-4239, ¶ 50. See also Santosky v. Kramer, 455 U.S. 745,
753, 102 S. Ct. 1388, 1394 (1982). That right, however, must be balanced against the
state's interest in protecting the welfare of children. Id. at ¶ 50; In re adoption of Zschach,
75 Ohio St. 3d 648, 651 (1996).
{¶ 11} In Ohio, certain persons and entities must consent to an adoption. R.C.
3107.06. These persons include the mother, father, and any putative father of the child. Id.
However, exceptions to the consent requirement exist. R.C. 3107.07. As applicable to this
case, these exceptions include a person whose consent is required who fails to file an
objection to the adoption petition within 14 days of proof of service. R.C. 3107.07(K).
Specifically:
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Consent to adoption is not required of any of the following:
***
(K) * * * a 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). This exception applies to all persons and entities whose consent to the
petition is required, regardless of their status as parent, putative father, agency, or juvenile
court. To implicate R.C. 3107.07(K), the notice must clearly inform the recipient that he is
required to file an objection to the petition within 14 days. See In re Adoption of Baby F.,
10th Dist. Franklin Nos. 03AP-1092 and 03AP-1132, 2004-Ohio-1871, ¶ 17-18.
{¶ 12} In this case, on June 14, 2019, Maternal Grandparents filed the adoption
petition alleging that Father had not maintained more than de minimis contact with A.M.G.H.
in the previous year. On June 21, 2019, Father received notice of the petition to adopt by
certified mail. The notice informed Father that Maternal Grandparents had filed the petition
and that a hearing was scheduled on August 26, 2019. The notice further contained the
following language, set apart in all capital letters and bolded, at the bottom of the notice:
A final decree of adoption, if granted, will relieve you of all
parental rights and responsibilities, including the right to contact
the minor[.] * * * 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 the hearing is given to you.
The notice also indicated, "If you wish to contest the adoption, you must also appear at the
hearing."
{¶ 13} Father does not dispute that he received proper notice of the petition. Rather,
Father claims he should not be held to the requirements of R.C. 3107.07(K) because
Maternal Grandparents falsely accused him of failing to maintain sufficient contact with
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A.M.G.H. Contrary to Father's claims, he was subjected to the requirements of R.C.
3107.07(K) because he is a person whose consent would be required for the adoption to
take place, not because Maternal Grandparents alleged he maintained insufficient contact
with the child. The record reflects Father was timely informed that he needed to file an
objection within 14 days of receiving notice of the petition and that, if he wished to contest
the adoption, he needed to attend the hearing. Despite receiving notice, the record
indicates Father did not attend the hearing and failed to respond, object, or otherwise
contest the petition until October 2019, after the probate court had determined his consent
was no longer required.
{¶ 14} The notice informed Father as to the claims against him, namely, that he was
a person who had failed without justifiable cause to provide more than de minimis contact
with the minor for a period of one year. Regardless of Father's belief that his contact with
A.M.G.H. surpassed the de minimis standard, the notice clearly informed Father that he
was required to raise any objection to the petition within 14 days of service, which he failed
to do. Father chose to take no action to contest the petition, and as a consequence, his
consent is not required pursuant to R.C. 3107.07(K).
{¶ 15} As the Ohio Supreme Court has acknowledged, "strict adherence to the
procedural mandates of [R.C. 3107.07(K)] might appear unfair," but "the state's interest in
facilitating the adoption of children and having the adoption proceeding completed
expeditiously justifies such a rigid application." In re Zschach, 75 Ohio St. 3d at 653. Ohio's
adoption laws were amended 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). One
objective for these amendments was to "prevent children from being forcibly removed from
their adoptive families after a biological father belatedly exercised parental rights." Id. at ¶
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24. These amendments included the addition of R.C. 3107.07(K). Id. at ¶ 10. It is not the
role of this court to second-guess the legislature's policy decisions. In re Adoption of A.N.,
3rd Dist. Union No. 14-12-27, 2013-Ohio-3871, ¶ 42, citing Matter of Apple, 2d Dist. Miami
No. 93-CA-59, 1994 Ohio App. LEXIS 4159, *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").
{¶ 16} Accordingly, we find the trial court did not err in concluding that Father's
consent to the adoption is not required because he failed to timely object after receiving
notice of the adoption petition. As a result, Father's second assignment of error is overruled.
{¶ 17} Assignment of Error No. 1:
{¶ 18} R.C. 3107.07(K) IS UNCONSTITUTIONAL AS APPLIED WHERE
APPELLANT HAD A LONG-TERM PARENTAL RELATIONSHIP AND NOT JUST A
BIOLOGICAL CONNECTION TO THE CHILD SUBJECT TO THE PETITION FOR
ADOPTION.
{¶ 19} In Father's remaining assignment of error, he alleges that R.C. 3107.07(K) is
unconstitutional as applied in this case because "it is offensive to notions of Due Process
and fairness to terminate a nine-year parent/child relationship" based upon a procedural
requirement.
{¶ 20} It is well settled that the "'[f]ailure to raise at the trial court level the issue of
the constitutionality of a statute or its application, which issue is apparent at the time of trial,
constitutes a waiver of such issue and a deviation from this state's orderly procedure, and
therefore need not be heard for the first time on appeal.'" Hamilton v. Ebbing, 12th Dist.
Butler No. CA2008-06-135, 2009-Ohio-3674, ¶ 73, quoting State v. Awan, 22 Ohio St.3d
120 (1986), syllabus. Therefore, since Father failed to challenge the constitutionality of
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R.C. 3107.07(K) in the probate court, we find that issue is waived and we decline to address
it for the first time on appeal. See Lay v. Chamberlain, 12th Dist. Madison No. CA99-11-
030, 2000 Ohio App. LEXIS 5783, *28 (Dec. 11, 2000) (appellants waived their argument
regarding a statute's constitutionality by failing to raise that issue before the trial court); see
also McGuinness v. Hooper, 2d Dist. Montgomery No. 16551, 1998 Ohio App. LEXIS 359,
*6 (Feb. 6, 1998) ("It is axiomatic that failure to raise a constitutional issue in the trial court
constitutes a waiver of that issue").
{¶ 21} Accordingly, we overrule Father's first assignment of error.
{¶ 22} Judgment affirmed.
HENDRICKSON, P.J., and S. POWELL, J., concur.
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