Court of Appeals of Ohio, Eighth District, Cuyahoga
IN RE: A.K., ET AL. Minor Children [Appeal by Father]
Appeal from the Cuyahoga County Court of Common Pleas Probate
Division Case Nos. 2015 ADP 08542 and 2015 ADP 08543
ATTORNEY FOR APPELLANT Mary Catherine Barrett
ATTORNEYS FOR APPELLEES Michelle McGuire, Rebecca A. Clark
Law Offices of James B. Palmquist, III
BEFORE: Laster Mays, J., E.A. Gallagher, P.J., and Blackmon,
JOURNAL ENTRY AND OPINION
LASTER MAYS, JUDGE
Respondent-appellant, the natural father
("respondent") of A.K. and C.K.
("children"), appeals the decision of the Cuyahoga
County Probate Court that the petitioners-appellees, the
maternal grandparents of the children
("petitioners") may adopt the children without
respondent's consent. We affirm.
Background and Facts
The respondent was convicted of murdering the children's
natural mother and sentenced to serve a term of 23 years to
life. The Juvenile Division of the Summit County Common Pleas
Court issued a "no-contact" order against
respondent on October 26, 2006, barring any contact
whatsoever with the children. On February 28, 2007, the
juvenile court granted permanent custody to the petitioners.
The children have special needs and behavioral issues,
require a high level of care and need full-time supervision.
Schooling alone is at a cost of $70, 000 per year.
On June 8, 2015, petitioners filed for adoption to allow them
to secure increased benefits to meet the children's
needs, as well as prepare for the children's future care.
On June 22, 2015, respondent objected to the petition. The
proceedings were bifurcated to address whether
respondent's consent was required for adoption, involving
an inquiry into whether respondent had been in contact with,
and provided support for, the children within the year prior
to the suit (R.C. 3107.07(A)). Upon reaching a determination
that consent was not required, the trial court would then
consider whether the adoption was in the best interests of
Hearings were held before the magistrate on February 9, 2016,
and February 10, 2016 on the question of consent. Witnesses
included respondent, his mother and brother, and petitioners.
The magistrate granted respondent's motion to limit
references to his conviction to the name of the crime and
place and date of conviction.
Respondent argued that the only reason that he has not been
in contact with the children is due to the no-contact order.
Respondent encourages his family to visit the children as
often as possible and is always eager to hear how they are
doing. The relationship between petitioners and
respondent's family members has been strained, but the
paternal grandmother, mother of respondent, visits the
children approximately four times per year. The paternal
grandmother usually brings small gifts for the children and
leaves a check with petitioners for $400.
Respondent has numerous letters and cards that he has written
to the children that he gives to the paternal grandmother for
safekeeping. The paternal grandmother provides respondent
with pictures of the children and keeps him apprised of their
activities. Respondent participates in a program that allows
him to have Christmas gifts anonymously sent to the children,
has learned sign language because the children were learning
it, and also learned to knit items for the children.
Respondent admits he was unable to provide support for the
year prior to the petition in this case in light of the $1,
330 received from his family and $240 prison income for the
year, but points to the guardianship estate that he created
for the children's support. On November 10, 2006,
petitioners filed a wrongful death suit against respondent.
Allegedly without knowledge of the suit, through power of
attorney issued to respondent's brother, a guardianship
estate was created and assets included mother's life
insurance, investments accounts, and proceeds from the sale
of the house. The value of the estate in July 2007 was
approximately $600, 000. Petitioners allege respondent lacked
authority to transfer the assets due to the Slayer Statute
and that the estate should not be considered as support
provided within the past year.
There has been no order of child support in effect and
petitioners did not request support. During the pending
action, petitioners stipulated they were able to sufficiently
care for the children and did not require assistance.
Respondent and paternal grandmother were already aware that
petitioners had substantial financial resources.
On February 23, 2016, the trial court granted
petitioners' application for the hearing transcript.
Written closing arguments were submitted by the parties on
February 24, 2016 and February 26, 2016.
On March 24, 2016, the magistrate determined that
respondent's failure to communicate and to provide
support were justified. As a result, respondent was required
to consent to the adoption. After receiving two extensions,
petitioners filed objections to the magistrate's decision
on April 7, 2016, and May 27, 2016.
Since adoption cases are not electronically accessible at the
court, respondent filed a motion to determine whether the
transcript had been filed and whether an extension to file
the transcript had been requested. The court confirmed that
the transcript had not been filed as of June 8, 2016, and no
extension had been requested. Respondent filed his opposition
to petitioners' objections, citing their failure to
timely file the transcript. Petitioners filed the transcript
on June 16, 2016.
On July 11, 2016, respondent filed a motion to strike the
transcript pursuant to Civ.R. 53(D)(3)(b)(iii) because the
transcript was filed after the 30-day deadline.
The trial court did not explicitly rule on the motion to
strike. On December 8, 2016, the trial court sustained the
objections to the magistrate's decision and ordered that
the adoption proceedings may continue without the consent of
The sole assigned error presented for review is whether the
Probate Court erred in holding that petitioners could adopt
the children without respondent's consent. We affirm the
trial court's findings.
We begin our analysis by acknowledging the foundational tenet
that "one of the most precious and fundamental"
rights of a "natural parent" is "to the care
and custody of his children." In re Adoption of
P.L.H., Slip Opinion No. 2017-Ohio-5824, ¶ 23,
citing In re Adoption of Masa, 23 Ohio St.3d 163,
165, 492 N.E.2d 140 (1986), citing Santosky v.
Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d
599 (1982). Termination of such a fundamental right requires
that we strictly construe "any exception to the
requirement of parental consent to adoption in order to
protect the right of natural parents to raise and nurture
their children." Id., citing In re Adoption
of Schoeppner, 46 Ohio St.2d 21');">46 Ohio St.2d 21, 24, 345 N.E.2d 608
Objections to Magistrate's Decision and
Civ.R. 53(D)(3)(b)(iii) requires in pertinent part:
Objection to magistrate's factual finding; transcript or
affidavit. An objection to a factual finding, whether or not
specifically designated as a finding of fact under Civ.R.
53(D)(3)(a)(ii), shall be supported by a transcript of all
the evidence submitted to the magistrate relevant to that
finding or an affidavit of that evidence if a transcript is
not available. With leave of court, alternative technology or
manner of reviewing the relevant evidence may be considered.
The objecting party shall file the transcript or affidavit
with the court within thirty days after filing objections
unless the court extends the time in writing for preparation
of the transcript or ...