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In re Adoption of R.M.T.

Court of Appeals of Ohio, Twelfth District, Warren

April 30, 2018

IN THE MATTER OF THE ADOPTION OF: R.M.T.

          APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS PROBATE DIVISION Case Nos. 2015 5005 and 2016 5055

          P.M.W., Allen Correctional Institution, appellant, pro se

          Michael J. Davis, for appellee, J.T.

          OPINION

          HENDRICKSON, P.J.

         {¶ 1} Appellant, P.M.W., appeals a decision of the Warren County Court of Common Pleas, Probate Division, granting the petition for adoption of appellant's son, R.M.T., to petitioner-appellee, J.T Appellant also appeals the probate court's denial of his motion for the appointment of counsel, his motion to have a transcript prepared at the state's expense, and his motion to stay the final decree of adoption pending appeal. For the reasons set forth below, we affirm in part, reverse in part, and remand the matter to the probate court for further proceedings.

         {¶ 2} Appellant is the biological father of R.M.T., and is currently incarcerated in an Ohio prison. Appellee, R.M.T.'s stepfather, filed a petition to adopt the child on January 28, 2015, contending that appellant's consent to the adoption was not required because appellant (1) failed to register as the child's putative father, (2) failed to have more than de minimis contact with the child for a period of at least one year immediately preceding the filing of the adoption petition, and (3) failed without justifiable cause to provide for the maintenance and support of the m inor for a period of at least one year immediately preceding the filing of the petition. The probate court decided to bifurcate the determinations of whether parental consent was required and whether the adoption was in the best interest of the child. After several procedural delays, including a paternity test which established appellant as the child's biological father and the filing of a second adoption petition, the court held a hearing on the issue of whether appellant's consent to the adoption was required. On December 12, 2016, the probate court concluded that appellant's consent was not required as appellant had failed without justifiable cause to provide more than de minimis contact with the child in the year immediately preceding appellee's filing of the adoption petition. Appellant appealed, and this court affirmed the probate court's determination that appellant's consent was not required in In re Adoption of R.M.T., 12th Dist. Warren Nos. CA2016-12-107, CA2017-05-056, and CA2017-05-057, 2017-Ohio-8639.

         {¶ 3} Thereafter, on December 6, 2017, the probate court held a hearing to determine if adoption was in R.M.T.'s best interest. The court concluded the adoption was in the child's best interest and on December 6, 2017, granted appellee's petition and filed a final decree of adoption.

         {¶ 4} On December 27, 2017, appellant filed (1) a motion for the appointment of counsel, requesting the probate court appoint counsel to represent him on appeal, (2) a motion to have the transcript of the December 6, 2017 hearing prepared at the state's expense, and (3) a motion to stay the final decree of adoption while the case was appealed. The probate court denied appellant's motions on December 28, 2017.

         {¶ 5} Appellant appealed, raising five assignments of error for our review. For ease of discussion, we will address appellant's assignments of error out of order.

         {¶ 6} Assignment of Error No. 4:

         {¶ 7} THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANT WHEN THE TRIAL COURT DENIED [APPELLANT'S] MOTION FOR APPOINTMENT OF COUNSEL AT STATE'S EXPENSE.

         {¶ 8} In his fourth assignment of error, appellant argues the probate court erred in denying his motion for the appointment of appellate counsel. We disagree. The present case was initiated by a stepparent seeking adoption of a child, not by the state seeking termination of parental rights. As this court has previously stated, "an indigent parent in an adoption proceeding is not entitled to appointed counsel." In re Adoption of R.M.T., 2017-Ohio-8639 at ¶ 20, citing In re Adoption of Drake, 12th Dist. Clermont No. CA2002-08-067, 2003-Ohio-510. See also Lassiter v. Dept. of Social Services., 452 U.S. 18, 101 S.Ct. 2153 (1981) (recognizing that the constitution does not require the appointment of counsel in every proceeding involving the termination of parental rights). Appellant's fourth assignment of error is therefore overruled.

         {¶ 9} Assignment of Error No. 5:

         {¶ 10} THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANT WHEN THE TRIAL COURT DENIED [APPELLANT'S] ...


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