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In re Adoption of A.N.

Court of Appeals of Ohio, Third District

September 9, 2013

IN THE MATTER OF THE ADOPTION OF: A.N.

Appeal from Union County Common Pleas Court Probate Division Trial Court No. 2012-5-008

Jerry M. Johnson for Appellants Nord.

Alison Greene Boggs for Appellee Scheiderer.

John C. Huffman for Appellee Hart.

OPINION

PRESTON, P.J.

(¶1} Appellants, Scott Wayne Nord and Erica Joy Nord, appeal the November 19, 2012 judgment entry of the Union County Court of Common Pleas, Probate Division, vacating its prior order of placement and ordering that the child involved in this appeal, A.N., be immediately returned to the State of Ohio. In its judgment entry, the trial court concluded that the consent of the putative father-appellee, Kris Scheiderer, Jr.—was required for the petition for adoption to be granted and that Scheiderer did not consent to the adoption. It is the trial court's conclusion regarding the necessity of Scheiderer's consent that the Nords dispute in this appeal. For the reasons that follow, we reverse.

(¶2} A.N. was born on February 11, 2012. (Birth Certificate, Doc. No. 3). Four days later, in case number 2012-5-005, the trial court approved an application for approval of placement of A.N. and issued a judgment entry placing A.N. in the Nords' home. (Petitioner's Ex. 5, Sept. 26, 2012 Tr. at 7). (See also Judgment Entry, Doc. No. 5). Also on February 15, 2012, the Nords filed a petition for adoption of A.N. in the Probate Division of the Union County Court of Common Pleas, initiating the underlying case, number 2012-5-008. (Doc. No. 1). The petition listed the birthmother-appellee, Rachel Hart-as the only person or agency whose consent to the adoption was required. (Id). The petition also stated that no person timely registered as a putative father and that a certification to that effect "is forthcoming." (Id.).

(¶3} On March 30, 2012, in response to an inquiry by counsel for Hart, the Ohio Department of Job and Family Services certified that Scheiderer was registered as a putative father in Ohio's Putative Father Registry. (Doc. No. 4). The documents attached to the Department's certification reflected that Scheiderer registered as a putative father on September 6, 2011. (Id). (See also Judgment Entry, Doc. No. 5). The Department's certification was filed with the trial court on April 16, 2012. (Doc. No. 4). Eleven days earlier, on April 5, 2012, the Nords filed a motion to stay DNA testing of A.N. pending the hearing on the issues of consent and best interest of the child. (Doc. No. 2).

(¶4} In a June 21, 2012 judgment entry, the trial court denied the Nords' motion to stay DNA testing, ordered that Hart, Scheiderer, and A.N. immediately submit to genetic testing, and stayed the adoption proceeding pending the outcome of paternity testing. (Doc. No. 5). In its judgment entry, the trial court noted that on June 19, 2012, the Juvenile Division of the Union County Court of Common Pleas notified the Probate Division that Scheiderer, through his parents, filed a complaint on April 24, 2012 to determine the existence or nonexistence of a parent-child relationship between Scheiderer and A.N. (Id). (See also Petitioner's Ex. 2, Sept. 26, 2012 Tr. at 7).

(¶5} On July 2, 2012, the Nords filed an amended petition for adoption of A.N., again listing Hart as the only person or agency whose consent to the adoption was required, and listing Scheiderer as a putative father whose consent was not required because he willfully abandoned Hart during her pregnancy and up to the time of her surrender of A.N. (Doc. No. 6). That same day, the Nords moved the trial court to schedule an immediate hearing concerning whether Scheiderer's consent was necessary. (Doc. No. 7).

(¶6} The case's docket saw a flurry of activity on July 5, 2012. That morning, a magistrate of the trial court issued an order notifying Scheiderer of the Nords' July 2, 2012 amended petition for adoption alleging that his consent was not required. (Doc. No. 8). The order also notified Scheiderer that a hearing would be scheduled as "set forth in a separate entry" and that, if he wished to contest the adoption, he needed to file an objection to the Nords' amended petition within fourteen days after receiving the notice and attend the hearing. (Id). The clerk mailed to Scheiderer copies of the magistrate's order, the Nords' amended petition for adoption, and the Nords' motion requesting an immediate hearing concerning consent. (Id). Scheiderer signed for the clerk's certified mailing on July 17, 2012. (Id.).

(¶7} Also on the morning of July 5, 2012, the Nords moved for reconsideration of the trial court's June 21, 2012 judgment entry ordering that Hart, Scheiderer, and A.N. immediately submit to genetic testing or, alternatively, a continuance of the DNA testing. (Doc. No. 9). A few hours later, the magistrate issued an order denying the Nords' motion. (Doc. No. 10.).

(¶8} In the afternoon on July 5, 2012, Hart, through her next friend, filed a "notice of special appearance" and motion to set aside the portion of the trial court's June 21, 2011 judgment entry requiring her to submit to DNA testing despite her not being a party to the adoption proceeding. (Doc. Nos. 11, 12). Less than an hour later, the magistrate issued an order denying Hart's motion. (Doc. No. 13).

(¶9} On July 30, 2012, Scheiderer's counsel filed a notice of appearance. (Doc. No. 17).

(¶10} On July 31, 2012, the Nords filed a stipulation, in which they agreed to the admissibility of the DNA results in the paternity action filed by Scheiderer in the Juvenile Division. (Doc. No. 18). The Nords also agreed that A.N. was a party to both the paternity action and the adoption proceeding pending in the Juvenile Division and Probate Division, respectively, and that the courts of Union County, Ohio were the only courts having jurisdiction over A.N. (Id).

(¶11} On August 6, 2012, the trial court held a pretrial hearing. (See Journal Entry, Doc. No. 14). Present at the hearing were Hart and her parents and counsel, A.N., counsel for Scheiderer, and counsel for the Nords, whose presence the trial court excused. (Doc. Nos. 19, 20). Following the hearing, the trial court issued a journal entry and nunc pro tunc journal entry finding a parent-child relationship between Scheiderer and A.N. and scheduling a September 26, 2012 hearing concerning whether Scheiderer's consent to the adoption was necessary. (Doc. Nos. 20, 21).

(¶12} On August 20, 2012, the trial court issued to Scheiderer a "NOTICE OF HEARING ON PETITION FOR ADOPTION." (Doc. No. 22). In it, the trial court notified Scheiderer that the Nords filed an amended petition for adoption on July 2, 2012, that a hearing was scheduled for September 26, 2012, and that he needed to file an objection to the Nords' amended petition within fourteen days after receiving the notice and attend the hearing if he wished to contest the adoption. (Id). The clerk mailed to Scheiderer copies of the notice of hearing on petition for adoption and the journal entry and nunc pro tunc journal entry scheduling the September 26, 2012 hearing. (Id). Scheiderer signed for the clerk's certified mailing on August 22, 2012. (Id.).

(¶13} On August 27, 2012, the trial court held a conference attended by counsel for Hart, Scheiderer, and the Nords. (See Journal Entry, Doc. No. 23). Each attorney said he would not be requesting that a guardian ad litem be appointed for A.N. in the adoption proceeding. (Id). In its journal entry memorializing the conference, the trial court noted that Scheiderer's counsel stated at the conference that he was planning to file a petition for custody on behalf of Scheiderer, and that he planned to file a motion to appoint a guardian ad litem in that case. (Id).

(¶14} The trial court held a hearing on September 26 and 27, 2012 to determine whether Scheiderer's consent to the adoption was necessary. (Sept. 26, 2012 Tr. at 4, 8); (Sept. 27, 2012 Tr. at 4). (See also Journal Entry, Doc. No. 24). Present at the hearing were Hart and her parents and counsel, Scheiderer and his counsel, and the Nords and their counsel. (Sept. 26, 2012 Tr. at 4-5). (See also Journal Entry, Doc. No. 24). At the outset of the hearing, the Nords' counsel noted that Scheiderer had not filed an objection to the amended petition as required by R.C. 3107.07(K) and requested that the trial court ask Scheiderer for the record whether he consented to the adoption. (Sept. 26, 2012 Tr. at 8). The trial court asked, and Scheiderer said he did not consent to the adoption. (Id. at 13). The Nords' counsel then argued that Scheiderer's consent was not necessary under R.C. 3107.07(K) because he failed to file an objection, and the Nords' counsel asked the trial court to rule on that issue. (Id. at 14-15). The trial court held the Nords' motion in abeyance and proceeded with the hearing. (Id at 15).

(¶15} On October 12, 2012, the trial court issued a journal entry ordering that the parties submit written closing arguments, including proposed findings of fact and conclusions of law, on October 19, 2012. (Doc. No. 24). In addition, the trial court ordered that the parties brief in their written closing arguments the legal issue of whether Scheiderer waived his right to contest the adoption by failing to object to the Nords' amended petition for adoption. (Id). The trial court also allowed the Nords to return with A.N. to their home in Bakersfield, California, but ordered that they return to the trial court with A.N. if ordered by the trial court. (Id.).

(¶16} Hart, Scheiderer, and the Nords filed their written closing arguments on October 19, 2012. (Doc. Nos. 25-27).

(¶17} On November 19, 2012, the trial court issued the judgment entry concluding that Scheiderer's consent to the adoption was necessary and not given. (Doc. No. 30). The trial court based its decision on its conclusions that there was not clear and convincing evidence that Scheiderer willfully abandoned Hart or that he willfully abandoned or failed to care for and support A.N. (Id.). The trial court also concluded that Scheiderer did not waive his right to ...


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