dissents:
In stepparent adoptions, where the grandparent is the parent of the deceased natural parent, the courts have been sometimes willing to extend visitation rights, post adoption, to such grandparents. Graziano v. Davis (1976), 50 Ohio App.2d 83, 400 3d 55, 361 N.E.2d 525; In Re Thornton (1985), 24 Ohio App.3d 152, 493 N.E.2d 977.
There is no Ohio authority for the proposition inherent in the instant case, i.e., that where all parental rights are terminated in the juvenile court, parents of the biological parents have standing to collaterally claim visitation rights in a stranger adoption.
If that is to become Ohio law, it is the legislature, not this court, that says so.
I see a significant difference between stepparent adoption and stranger adoption. Family ties are naturally and expectably preserved in a stepparent adoption. Family ties are severed in a stranger adoption, the expectation being that the children will be raised in a new nuclear family setting, freed from biological ties.
Graziano and Thornton, supra, rely upon R.C 3109.11 and involve a post-adoption request by relatives of a deceased parent. Again, there is a significant difference between implementing that statute, (1) in a stepparent adoption proceedings, and (2) after the adoption has been concluded, and the action taken in this case.
In any event the paternal grandparents (their son not being deceased) can claim no favor of R.C. 3109.11.
The distinction between stepparent adoption and stranger adoption vis-a-vis the rights of relatives is dramatically underscored by the January 1, 1977 amendments to Ohio's adoption statutes.
(A) A final decree of adoption and an interlocutory order of adoption that has become final, issued by a court of this state, shall have the following effects as to all matters within the jurisdiction or before a court of this state:
(1) Except with respect to a spouse of the petitioner and relatives of the spouse, to relieve the biological or other legal parents of the adopted person of all parental rights and responsibilities, and to terminate all legal relationships between the adopted person and his relatives, including his biological or other legal parents, so that the adopted person thereafter is a stranger to *191his former relatives for all purposes including inheritance and the interpretation or construction of documents, statutes, and instruments, whether executed before or after the adoption is decreed, which do not expressly include the person by name or by some designation not based on a parent and child or blood relationship;
(2) To create the relationship of parent and child between petitioner and the adopted person, as if the adopted person were a legitimate blood descendant of the petitioner, for all purposes including inheritance and applicability of statutes, documents, and instruments, whether executed before or after the adoption is decreed, which do not expressly exclude an adopted person from their operation or effect. R.C. 3107.15.1
In the Ohio Legislative scheme rights of grandparents are essentially derivative. See 3109.11, limited to parents of a deceased parent. A specific exception has been legislatively adopted in divorce cases, granting the court authority to provide relative visitation. R.C. 3109.05(B).
It is additionally significant that the parents whose parental rights have been terminated in the juvenile court are not parties and are not required to consent to the adoption in Probate Court. R.C. 3107.07(D). Ohio's scheme terminates parental rights, leaving the child temporarily in limbo, and then independently adjudicates a new family by adoption. In the adoption proceedings the biological parents thus have no standing.
Nor is there any provision in the consent section for consent by a grandparent, notwithstanding the death of the parent.
Further, no notice of hearing is required as to grandparents. See R.C. 3107.11.
I would conclude as a matter of law that grandparents of children who have been found to be dependent neglected or abused, and as to whom parental rights have been terminated and permanent custody granted to an agency, have no standing to contest a stranger adoption.
However, the question remains in this case whether the unique provisions of the juvenile court judgment, terminating parental rights and granting permanent custody to the agency, while making provision for visitation rights of grandparents, alters the posture of the parties in the adoption proceedings sub judice.
In recent years, in an effort to deal with the noble goal of permanency planning for children, the Ohio legislature has changed procedure and practice by which the juvenile court addresses the issue of permanence. Rigid requirements adopted in 1980, amended Substitute House Bill 695, have been moderated by Substitute Senate Bill 89, adopted January 1, 1989. See 13 West Ohio Family Law, Sec. 585.2.
Prior to the 1980 amendments the statute provided that the jurisdiction of the juvenile court terminated at the time a child was committed to the permanent custody of the agency. R.C. 2151.38. Significantly, the "termination" of jurisdiction provision is not carried forward in the revised provisions of R.C. 2151.38.
Orders of the juvenile court, fixing relative visitation, executory during the time that the child is in limbo, i.e., between the order of permanent custody and the permanent placement in an adoptive setting, are appropriate and consistent with principles of permanency planning.
Whether the juvenile court has the subject matter jurisdiction to impose restrictions and limitations upon the Probate Court in considering a subsequent adoption, as attempted here, is another matter. I find no authority for the proposition that the juvenile court has such power and conclude that the attempted exercise thereof exceeds the authority of the juvenile court, particularly in a non-relative, stranger adoption.
In this case the probate judge clearly found that all of the prerequisite steps for granting the adoption were met by the petitioners, both procedurally and substantively.
When the Probate Court then finds that problems with visitation will "become an ordeal to the child and the adoptive parents for days before and after each visit," his finding that because thereof the adoption is not in the best interest of the child and should be denied is an abuse of discretion and is contrary to law.
The appropriate procedure, under current Ohio law, is to establish appropriate parental rights in the new setting. The question of visitation with biological grandparents, who claim derivatively through parents whose parental rights have been terminated, should await another day.
I would reverse and remand this cause to the Probate Court with instructions to determine, aliunde the issue of grandparent *192determine, aliunde the issue of grandparent visitation, whether the adoption by these petitioners meets the statutory requirement, including the issue of "best interests."
As to the assignments of error, I would sustain in the first and overrule the second and third (as unsupported by the record).
As Judge Norris points out in his concurring opinion in Graziano v. Davis was probably incorrectly decided, the statute extant in 1976, to wit R.C. 3107.13 (since repealed), impelling a contrary result.