In re Adoption of Zschach

Douglas, J.,

concurring. Although I do not agree with much of the discussion in Parts I through III of the majority opinion, I concur with the findings of the majority that the putative father did not properly object to the adoption, that the putative father was not deprived of his constitutional right to due process, and that the probate court was not required to dismiss the adoption petition pursuant to R.C. 3107.14(C) and (D). I also concur with the ultimate judgment of the majority reversing the judgment of the court of appeals and reinstating the judgment of the trial court. However, unlike the majority, I would hold that R.C. 3107.09(A) is dispositive of the issue concerning the birth mother’s consent to the adoption and, thus, I disagree with the discussion and analysis in Part IV of the majority opinion.

R.C. 3107.09(A) states that “[a] consent to adoption is irrevocable and cannot be withdrawn after the entry of an interlocutory order or after the entry of a final decree of adoption when no interlocutory order has been entered.” (Emphasis added.) Here, the birth mother raised the issue that her unequivocal written consent to the adoption was induced by fraud, misrepresentation, and undue influence after the probate court had entered an interlocutory order placing the child with the adoptive parent. She was too late. After the issuance of the interlocutory order, the birth mother’s consent to the adoption was irrevocable.

The majority, however, avoids the clear language of R.C. 3107.09(A) by observing that “parental consent to an adoption order ‘is [a] jurisdictional prerequisite which, if absent, allows the order to be attacked as void. * * * ’ McGinty v. Jewish Children’s Bur. (1989), 46 Ohio St.3d 159, 161, 545 N.E.2d 1272, 1274. Furthermore, a valid consent is ‘one which has been freely, knowingly, and voluntarily given with a full understanding of the adoption process and the consequences of one’s actions.’ In re Adoption of Infant Girl Banda (1988), 53 Ohio App.3d 104, 108, 559 N.E.2d 1373, 1378. Accordingly, a valid consent — one that is not the product of fraud, duress, undue influence or the like — is a jurisdictional prerequisite to the issuance of an adoption order. [Majority opinion’s footnote 8.]” In footnote eight to the majority opinion, the majority says that “[i]t is clear that under R.C. 3107.06(A), Barnebey’s [the birth mother’s] consent is required as a prerequisite to the probate court’s issuance of an order of adoption.” What the majority fails to grasp is that the probate court had subject matter jurisdiction in this case because the birth mother had consented to the adoption by filing a written consent form with the probate court. Only after the probate court had issued an interlocutory order did the birth mother seek to attack the voluntary nature of her consent to the adoption. At that point, it was too late for the birth mother to change her mind since, pursuant to R.C. 3107.09(A), her consent to the adoption had become irrevocable.

*661Next, the majority cites Marich v. Knox Cty. Dept. of Human Serv. (1989), 45 Ohio St.3d 163, 543 N.E.2d 776, in support of the proposition that R.C. 3107.09(A) did not preclude the birth mother from challenging her consent to the adoption following the issuance of the interlocutory order. However, Marich dealt with an agreement executed by a fifteen-year-old birth mother permanently surrendering a child to a public agency to care for the child and to place the child in a family home. See R.C. 5103.15. There was no adoption proceeding at issue in Marich and, obviously, there was no interlocutory or final order of adoption concerning the Marich child. In the case at bar, the birth mother signed a consent to the adoption of her child. Upon issuance of the interlocutory order of adoption, the birth mother was statutorily precluded from withdrawing her consent. See R.C. 3107.09(A). Marich indicates nothing to the contrary, and certainly does not support the majority’s position concerning the timeliness of Barnebey’s (the birth mother’s) motion to vacate the interlocutory order of adoption.

Nevertheless, the majority holds that the motion filed by the birth mother chállenging the voluntary nature of her consent was timely filed pursuant to R.C. 3107.16(B). This statute provides that “[sjubject to the disposition of an appeal, upon the expiration of one year after an adoption decree is issued, the decree cannot be questioned by any person, including the petitioner, in any manner or upon any ground, including fraud, misrepresentation, failure to give any required notice, or lack of jurisdiction of the parties or of the subject matter[.]” (Emphasis added.) Not surprisingly, none of the parties to this appeal even cites R.C. 3107.16(B). The reason for this should be obvious — R.C. 3107.16(B) is inapplicable on the issue concerning the finality of Barnebey’s consent to the adoption. Rather, it is the clear and unambiguous language of R.C. 3107.09(A) which governs the finality of Barnebey’s consent. The court of appeals recognized this when it held, on reconsideration, that “[following the interlocutory order of adoption in this case, * * * Nan Barnebey filed a motion to withdraw her consent to the adoption. Ordinarily such a motion would be time barred pursuant to R.C. § 3107.09. * * * However, as noted above, the interlocutory order in this case was erroneously entered [on the basis of the court of appeals’ finding that the putative father’s conditional consent was tantamount to an objection to the adoption]. As such, the natural mother’s motion to withdraw her consent to the adoption was not time barred.” (Emphasis added.) Given the findings of the majority opinion that the putative father’s consent to the adoption was not necessary, it logically follows that the birth mother’s consent to the adoption was irrevocable pursuant to R.C. 3107.09(A) and could not be withdrawn following the entry of the interlocutory order of adoption.