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In re A.K.

Court of Appeals of Ohio, Eighth District, Cuyahoga

December 21, 2017

IN RE: A.K., ET AL. Minor Children [Appeal by Father]

         Civil 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, J.



         {¶1} 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.

         I. Background and Facts

         {¶2} 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.

         {¶3} 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 the children.

         {¶4} 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.

         {¶5} 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.

         {¶6} 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.

         {¶7} 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.[1] 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.

         {¶8} 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.

         {¶9} 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.

         {¶10} 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.

         {¶11} 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.

         {¶12} 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.

         {¶13} 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 respondent.

         II. Legal Argument

         {¶14} 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.

         {¶15} 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 (1976).

         A. Objections to Magistrate's Decision and Transcript

         {¶16} 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 ...

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