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In re Adoption of A.B.

Court of Appeals of Ohio, Third District, Logan

December 30, 2019

IN RE: THE ADOPTION OF: A.B. JAMES NICHOLAS DEAN LUDBAN - APPELLANT

          Appeal from Logan County Common Pleas Court Probate Division Trial Court No. 19-AD-05

          Alison Boggs for Appellant

          Susan Garner Eisenman for Appellee

          Ruth T. Kelly, Amicus Curiae, Academy of Adoption and Assisted Reproduction Attorneys

          OPINION

          PRESTON, J.

         {¶1} 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 affirm.

         {¶2} 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).

         {¶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. No. 44).

         {¶4} 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 together.

         Assignment of Error No. I

         Ohio 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.

         Assignment of Error No. II

         The 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 and inaccurate.

         {¶5} 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 disagree.

         {¶6} 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 the petition:

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.

         {¶7} 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, ...


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