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In the Matter of the Adoption of G.T.V.

October 18, 2011

IN THE MATTER OF THE ADOPTION OF G.T.V., [J.V. & C.V., APPELLANTS], [B.W., APPELLEE].


APPEAL from the Franklin County Court of Common Pleas, Probate Division (Prob. No. 543356)

The opinion of the court was delivered by: Connor, J.

Cite as In re Adoption of G.V.,

(ACCELERATED CALENDAR)

DECISION

{¶1} Petitioners-appellants, J.V. and C.V. ("appellants"), appeal from an entry of the Franklin County Court of Common Pleas, Probate Division, overruling their objections to the magistrate's decision and adopting said decision, which dismissed appellants' adoption petition due to lack of venue and lack of subject-matter jurisdiction. Because we find the probate court was without jurisdiction to decide this matter, and because the Franklin County Court of Common Pleas, Probate Division, is not the proper venue for this action, we affirm the judgment of the trial court.

{¶2} G.V. was born on October 29, 2007, in Lucas County, Ohio. His birth mother executed a permanent surrender agreement pursuant to R.C. 5103.15 on November 1, 2007. The agreement was executed with Adoption By Gentle Care, a licensed private child placing agency as defined in R.C. 2151.011(A)(3), which is located in Franklin County, Columbus, Ohio. On November 4, 2007, G.V.'s legal father (the man who was married to his birth mother at the time he was conceived) executed a permanent surrender agreement. On the permanent surrender agreement, G.V.'s legal father indicated that he was not the biological father. The permanent surrender agreements were executed in order to give permanent custody of G.V. to Adoption By Gentle Care ("the agency"), for purposes of adoption. Following the execution of the permanent surrender agreements, G.V. was put into an adoptive placement with appellants, who live in the state of Indiana. On November 8, 2007, that placement was approved under the Interstate Compact on the Placement of Children.

{¶3} On November 15, 2007, respondent-appellee, B.W. ("appellee" or "B.W."), timely registered with the Putative Father Registry. On December 28, 2007, B.W. filed an action in Fulton County Juvenile Court to determine paternity and to establish parental rights and responsibilities. On January 16, 2008, appellants filed a petition in the Lucas County Court of Common Pleas, Probate Division, to adopt G.V. On February 21, 2008, the parentage/parental rights action was transferred to the Lucas County Court of Common Pleas, Juvenile Division. On May 19, 2008, the probate court stayed the adoption proceedings until paternity could be established pursuant to the juvenile court proceedings. Appellants eventually agreed to DNA testing, which established appellee is the biological father of G.V. On March 17, 2009, the juvenile court in Lucas County issued an entry finding appellee to be G.V.'s biological father.

{¶4} On June 4, 2009, the probate court in Lucas County issued a judgment entry dismissing the petition for adoption on the grounds that the petition was prematurely filed and was not yet ripe. The probate court held that, following the determination of paternity, appellee was the biological father of G.V. As a result, appellee was found to be G.V.'s legal father, and therefore his consent was required prior to the adoption unless petitioners could demonstrate, pursuant to R.C. 3107.07(A), that appellee had failed to support and/or maintain contact with G.V. for one year or more since parentage had been judicially determined. Because B.W. did not consent to the adoption, and because less than one year had passed since parentage was judicially determined, the petition was dismissed.*fn1

{¶5} Following the dismissal of the adoption petition, the juvenile court in Lucas County made a determination regarding appellee's parental rights and custody of the child. In an entry filed February 5, 2010, the juvenile court declared appellee to be the residential parent and legal custodian of G.V., pending a positive home study report. In July 2010, the juvenile court directed the transfer of custody of the child to appellee following its receipt of the favorable home study.*fn2 Appellants filed an appeal in the Sixth District Court of Appeals challenging the order declaring B.W. to be the residential parent and legal custodian of the child and transferring custody to B.W. The Sixth District subsequently affirmed the judgment of the juvenile court on June 10, 2011. See B.W. v. D.B.-B., 6th Dist. No. L-10-1212, 2011-Ohio-2813. Appellants have appealed that decision and have filed a memorandum in support of jurisdiction, which appellee has opposed, and it is currently pending before the Supreme Court of Ohio. See B.W. v. D.B.-B., S.Ct. case No. 11-1208.

{¶6} While the custody order was on appeal in the Sixth District, appellants also filed the instant adoption petition in the Franklin County Court of Common Pleas, Probate Division, on September 13, 2010, arguing the consent of the biological father is unnecessary because appellee had failed to communicate or support the child for at least one year since he was adjudicated to be the father. Appellants asserted that such failure means consent to the adoption is not required, based upon R.C. 3107.07(A). Appellants further argued Franklin County was the proper forum for the petition because the agency, which is located in Franklin County, has maintained custody of the child pursuant to the execution of the permanent surrender agreements.

{¶7} On June 21, 2011, the probate court in Franklin County dismissed the adoption petition, finding the court lacked subject-matter jurisdiction and venue was not proper in Franklin County. This appeal now follows and raises a single assignment of error for our review:

The Probate Court erred by finding that it lacked proper venue and subject matter jurisdiction to proceed with the petition as required in R.C. 3107.04(A).

{¶8} In their sole assignment of error, appellants challenge two findings made by the probate court: (1) lack of venue, pursuant to R.C. 3107.04(A); and (2) lack of subjectmatter jurisdiction. In short, appellants contend the trial court erred in finding venue was not proper in Franklin County, and in finding that it lacked subject-matter jurisdiction to address the petition due to the existence of pending matters in other courts.

{ΒΆ9} We shall begin by addressing the issue of venue. Appellants argue venue is proper in Franklin County because the agency, which is located in Franklin County, still had permanent custody of the child on the date on which the adoption petition was filed in the probate court in Franklin County, pursuant to the permanent surrender agreements executed for purposes of obtaining adoption of the child. Appellants further argue the adoptive placement is still in effect and has never been lawfully terminated. In addition, appellants assert the July 2010 orders from the juvenile court cannot supersede the grant of permanent custody to the agency because there is no authority for a juvenile court to invade the exclusive jurisdiction of the probate court and indirectly terminate the permanent custody held by the agency, which exists ...


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