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In the Matter of the P.J. Adoption of A.A.C.

October 28, 2011

IN THE MATTER OF THE P.J. ADOPTION OF A.A.C.


CHARACTER OF PROCEEDING: Civil appeal from the Muskingum County Court of Common Pleas, Probate Division, Case No. 2010-04005

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

Cite as In re Adoption of A.A.C.,

JUDGES: Hon. W. Scott Gwin, Hon. William B. Hoffman Hon. John W. Wise, J.

OPINION

JUDGMENT: Affirmed

{¶1} Mickey Wagner, the natural father of A.A.C., appeals a judgment of the Court of Common Pleas, Probate Division, of Muskingum County, Ohio, which overruled his motion to vacate the final decree of adoption allowing A.A.C.'s step-father to adopt her. Appellant assigns two errors to the trial court:

{¶2} "I. THE MUSKINGUM COUNTY PROBATE COURT COMMITTED REVERSIBLE ERROR IN FAILING TO CONDUCT A HEARING UPON APPELLANT'S MOTION TO VACATE THE FINAL DECREE OF ADOPTION.

{¶3} "II. THE MUSKINGUM COUNTY PROBATE COURT COMMITTED REVERSIBLE ERROR IN FAILING TO VACATE THE FINAL DECREE OF ADOPTION AS APPELLANT'S DUE PROCESS RIGHTS TO NOTICE OF THE HEARING WERE VIOLATED, AND THE COURT LACKED JURISDICTION."

{¶4} The record indicates the petition for step-parent adoption was filed February 19, 2010. Service on appellant was attempted by certified mail, which was returned unclaimed. Service was then sent by ordinary mail, which was not returned.

{¶5} On April 2, 2010, the court sent appellant notice, by ordinary mail, that a hearing would be conducted on April 26, 2010. On April 26, 2010, the court conducted the hearing, found appellant's consent to the adoption was not required, and entered an interlocutory order of adoption. Appellant did not attend the hearing.

{¶6} On June 4, 2010, appellant filed a motion to set aside the interlocutory order, arguing his consent was required, because he had justifiable cause for his lack of contact with his daughter. On June 22, 2010, the court overruled the motion to set aside the interlocutory order.

{¶7} On August 30, 2010, the probate court entered a final decree of adoption, from which appellant appealed on September 29. In December, 2010, this court dismissed the appeal at appellant's request.

{¶8} On March 29, 2011, appellant filed a motion to vacate the probate court's judgment of adoption, urging he had not received service of the petition, or of the notice of the April 2010 hearing. The trial court overruled the motion without a hearing, and this appeal ensued.

{¶9} Parents have a fundamental liberty interest to make decisions concerning the care, custody and control of their children. In Re: Adoption of Masa (1986), 23 Ohio St.3d 163, 492 N.E.2d 140, citing Santosky v. Kramer (1982), 455 U.S. 745,. 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 and In Re: Baby Girl Baxter (1985), 17 Ohio St.3d 229, 479 N.E.2d 257. Any exception to the requirement of parental consent must be strictly construed so as to protect the right of the ...


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