IN RE: THE ADOPTION OF: A.B. JAMES NICHOLAS DEAN LUDBAN - APPELLANT
from Logan County Common Pleas Court Probate Division Trial
Court No. 19-AD-05
Boggs for Appellant
Garner Eisenman for Appellee
T. Kelly, Amicus Curiae, Academy of Adoption and Assisted
Appellant, James N.D. Ludban ("Ludban"), appeals
the June 25, 2019 judgment of the Logan County Court of
Common Pleas, Probate Division, in which the court found that
his consent is not required for the adoption of his
biological child, A.B., by appellee, Andrew C. Burgess
("Burgess"). For the reasons that follow, we
On February 14, 2019, Burgess filed a petition to adopt his
minor stepdaughter, A.B. (Doc. No. 1). The petition alleged
that Ludban's consent is not required for the adoption.
(Id.). Melissa M. Burgess ("Melissa"), the
child's biological mother, filed her consent for the
adoption on the same day. (Doc. No. 3).
On March 1, 2019, service of the notice of the hearing on
consent was made to Ludban. (Doc. No. 25). On March 19, 2019,
Burgess filed an amended petition which was identical to the
petition filed on February 14, 2019 with the additional
statement that Ludban's consent is not required because
he "failed to file an objection within 14 days of the
docketing of the return of service on the notice of
adoption." (Doc. No. 26). On March 21, 2019, Ludban
faxed the trial court an objection to the petition for
adoption. (Doc. No. 27). The following day, Ludban filed an
original copy of his objection with the court. (Doc. No. 28).
On May 14, 2019, Ludban filed a supplement to his objection
to the adoption and motion to dismiss the petition for
adoption. (Doc. No. 35). On May 29, 2019, Ludban filed a
second motion to dismiss. (Doc. No. 39). On June 3, 2019,
Burgess filed a response to Ludban's motion to dismiss.
(Doc. No. 40). On June 6, 2019, Burgess filed a motion for
judgment on the pleadings on the issue of whether
Ludban's consent is necessary for the adoption. (Doc. No.
41). On June 25, 2019, the trial court filed a judgment entry
stating its finding that Ludban's consent to the adoption
is not necessary because he failed to timely object. (Doc.
On July 15, 2019, Ludban filed his notice of appeal. (Doc.
No. 48). He raises four assignments of error for our review.
We will discuss Ludban's first and second assignments of
error together, as they concern related issues. We will then
discuss Ludban's third and fourth assignments of error
of Error No. I
Revised Code Section 3107.07(K) violates the 14th Amendment
to the United States Constitution, as applied to
appellant's case and others similarly situated, by
arbitrarily denying appellant equal protection and his due
process right to be heard at a meaningful time and in a
meaningful manner on the petition for adoption.
of Error No. II
hearing notice contained in Ohio Revised Code Section
3107.11(B) violates appellant's Constitutional right to
due process as the notice provision is confusing, misleading
In his first assignment of error, Ludban argues that R.C.
3107.07(K) is unconstitutional because it arbitrarily denies
those given notice of a petition for adoption pursuant to
R.C. 3107.11(A)(1) equal protection and a due process right
to be heard at a meaningful time and in a meaningful manner
on the petition for adoption. In his second assignment of
error, Ludban argues that the hearing notice contained in
R.C. 3107.11(B) is unconstitutional because it is confusing,
misleading, and inaccurate. For the reasons that follow, we
In Ohio, certain persons and entities must consent to an
adoption, including the father of the minor child. In re
T.L.S., 12th Dist. Fayette No. CA2012-02-004,
2012-Ohio-3129, ¶ 8, citing R.C. 3107.06. However, the
General Assembly carved out exceptions to the consent
requirement. Those exceptions are found in R.C. 3107.07. One
of the exceptions applies if a person or entity whose consent
to the adoption is required fails to file an objection to the
petition for adoption within 14 days after that person or
entity receives notice of the petition and of the hearing on
Consent to adoption is not required of any of the following:
* * *
(K) Except as provided in divisions (G) and (H) of this
section, a juvenile court, agency, or person given notice of
the petition pursuant to division (A)(1) of section 3107.11
of the Revised Code that fails to file an objection to the
petition within fourteen days after proof is filed pursuant
to division (B) of that section that the notice was given * *
R.C. 3107.07(K). See also In re T.L.S. at ¶ 10.
R.C. 3107.07(K) cross-references the notice required by R.C.
3107.11(A)(1). That statute requires that the trial court fix
a time and place for a hearing on a petition for adoption
after the petition is filed. It also requires that the trial
court, at least twenty days before the hearing, give notice
of the filing of the petition and of the hearing to, ...