Adoption of Greer, In re

• Decision Date: 21 September 1994
• Docket Number: No. 93-902,93-902
• Citation: 70 Ohio St.3d 293,638 N.E.2d 999
• Parties: In re ADOPTION OF GREER.
• Court: Ohio Supreme Court

Page 293

70 Ohio St.3d 293

638 N.E.2d 999

In re ADOPTION OF GREER.

No. 93-902.

Supreme Court of Ohio.

Submitted April 27, 1994.

Decided Sept. 21, 1994.

SYLLABUS BY THE COURT

1. A trial court's finding pursuant to R.C. 3107.07 that the consent to an adoption of a party described in R.C. 3107.06 is not required is a final appealable order.

2. Unless the statutory consent requirement of R.C. 3107.06(F)(3) is excused pursuant to R.C. 3107.07(B), a putative father who has signed the birth certificate of a child as informant as provided in R.C. 3705.09 has a statutory right to withhold his consent to the adoption of that child, thereby barring the child's adoption by another.

3. To preserve his right to withhold consent to the child's adoption and avoid a finding that the requirement of his consent shall be excused, a putative father who has signed the birth certificate of a child must file a written objection to the adoption with the court, Department of Human Services, or the agency having custody of the child, but that objection need not be filed within thirty days from the earlier of the date of the adoption petition or placement of the child. (R.C. 3107.06[F] and 3107.07[B], construed.)

On July 26, 1987 Carol Lee Young, then seventeen years of age, gave birth to Joshua Alan Young. Eric Denis Weiss, appellee herein, signed Joshua's birth certificate as informant, and is identified on the birth certificate as his father. Weiss, age nineteen at the time of Joshua's birth, and Carol Young were never married, nor was Weiss ever legally adjudicated to be Joshua's father.

On May 14, 1992, appellant Dennis L. Greer filed a petition in the Probate Court of Hancock County seeking to adopt Joshua. In his petition, Greer alleged that he was Joshua's stepfather, and that he was married on August 17, 1991. He further alleged that the consent of Eric Weiss to the adoption was not necessary in that (1) Weiss had failed without justifiable cause to communicate with the minor for a period of at least one year immediately preceding the filing of the adoption petition or the placement of the minor in his home, and (2) Weiss had failed without justifiable cause to provide for the maintenance and support of the minor as required by law or judicial decree for a period of at least one year immediately preceding the filing of the adoption petition or the placement of the minor in his home. Simultaneously with the filing of his petition, Carol L. Greer (nee Carol L. Young) filed her written consent to the adoption of her son by her husband, Dennis Greer.

On May 15, 1992, the probate court issued a notice of hearing on the petition for adoption to Weiss. The notice followed Form 18.2 of the Probate Forms set forth in C.P.Sup.R. 16. The notice advised Weiss that a petition for Joshua's adoption had been filed on May 14, 1992 and further advised that "hearing of said Petition will be had * * * on the 1st day of July, 1992." Included at the bottom of the prescribed Form 18.2 was the following statement: "FAILURE TO FILE AN OBJECTION ON OR BEFORE THE HEARING DATE MAY RESULT IN TERMINATION OF YOUR PARENTAL RIGHTS." Weiss received a copy of the petition and the notice of hearing on the petition on May 20, 1992.

On June 25, 1992, Weiss formally entered his appearance in the action through counsel and requested a continuance of the July 1 hearing. The court granted a continuance of the July 1 date previously set for hearing the merits of the adoption petition, and rescheduled the hearing for July 17, 1992.

On July 6, a pretrial conference was held at which counsel for Weiss orally objected to the adoption going forward without Weiss' consent. That afternoon a written objection to Joshua's adoption was filed in the probate court on behalf of Weiss. As such, Weiss' written objection was filed on the fifty-third day after the filing of the petition for adoption, but well before the continued hearing date of July 17, 1992.

On July 17, the probate court held an evidentiary hearing limited to the issue of whether the adoption could proceed without the consent of Weiss. Weiss testified that, upon receiving the Form 18.2 notice, he consulted with his father and contacted numerous attorneys concerning their possible representation of him, but did not initially retain an attorney. He testified that he understood the Form 18.2 notice to mean that he was obligated to have an attorney present with him when he walked into the courtroom for the July 1 hearing date set forth on the form.

On July 30, 1992, the probate court found that "the putative father failed to timely object[ ] to the adoption pursuant to ORC § 3107.07(B) and therefore his consent to the adoption is unnecessary," in that Weiss had failed to file a written objection to the adoption within thirty days of the filing of the adoption petition. The court expressly designated its finding to be a final appealable order.

The court of appeals reversed and remanded the cause for further proceedings, finding that the notice Weiss received contained misleading legal information, and that Weiss could not, consistent with due process and simple fairness, be held to a standard of strict compliance with the time limits of R.C. 3107.06(F)(4) for the filing of written objections.

The cause is before this court pursuant to the allowance of a motion to certify the record.

Karen E. Elliott, Findlay, for appellant.

J. Stanley Needles, Findlay, for appellee.

A. WILLIAM SWEENEY, Justice.

In this case the statutory and constitutional rights of Eric Weiss, an unwed biological father faced with the prospect of the adoption of his natural child by another, are at issue. Having examined the record and the relevant law, we conclude that Weiss' right to withhold his consent to the adoption of his child was grounded in R.C. 3107.06(F)(3) rather than R.C. 3107.06(F)(4), and that his written objection to the adoption was not subject to the thirty-day filing requirement set forth in R.C. 3107.06(F)(4). We therefore find that both lower courts erred in determining that Weiss' objection was not timely filed, and that the court of appeals erred in finding that Form 18.2 conveyed misleading information to him. Because Weiss timely filed an objection to the adoption of his putative son, Joshua Young, the probate court was without authority to excuse the requirement of Weiss' consent without first making a finding of lack of biological paternity, willful abandonment, or failure to support as set forth in R.C. 3107.07(B). We affirm the court of appeals on this basis rather than on constitutional due process grounds, and remand the cause with instructions that the putative father, Weiss, be given notice and an opportunity to be heard on the question whether the requirement of his consent may be excused based on R.C. 3107.07(B), i.e., whether he failed to support Joshua, abandoned Joshua, or abandoned Joshua's mother during her pregnancy and thereafter.

I

It is incumbent upon us initially to determine whether the issues presented are properly before us. The probate court held that, pursuant to R.C. 3107.06(F)(4) and 3107.07(B), the consent of the putative father, Weiss, was not necessary in that he failed to file written objections to the adoption within thirty days of the filing of the petition. The court expressly deemed that finding to be a final appealable order. Only if the probate court was correct in finding its decision to be a final appealable order did the court of appeals have jurisdiction to review the probate court's order. Section 3(B)(2), Article IV of the Ohio Constitution; Chef Italiano Corp. v. Kent State Univ. (1989), 44 Ohio St.3d 86, 541 N.E.2d 64; Noble v. Colwell (1989), 44 Ohio St.3d 92, 540 N.E.2d 1381. A "final appealable order" is defined in R.C. 2505.02 as: "An order that affects a substantial right in an action which in effect determines the action and prevents a judgment, an order that affects a substantial right made in a special proceeding or upon a summary application in an action after judgment, or an order that vacates or sets aside a judgment or grants a new trial[.]" In this case, the order allowing the adoption to proceed without Weiss' consent falls within this statutory definition, if at all, as an order that affects a substantial right made in a special proceeding.

The courts of appeals of this state have differed in answering the question whether a finding excusing consent to an adoption is an order that affects a substantial right made in a special proceeding and, thus, a final appealable order. Courts finding that such an order is final and appealable include the Third District Court of Appeals in In re Adoption of Jorgensen (1986), 33 Ohio App.3d 207, 515 N.E.2d 622; the Fourth District Court of Appeals in In re Adoption of Payne (Mar. 24, 1988), Ross App. No. 1414, unreported, 1988 WL 35797, In re Adoption of Bing (Feb. 26, 1991), Gallia App. No. 90CA1, unreported, 1991 WL 28328, and In re Beekman (Mar. 30, 1994), Scioto App. No. 93-CA-2117, unreported, 1994 WL 106241; the Sixth District Court of Appeals in Sprunk v. Sprunk (Jan. 27, 1989), Lucas App. No. L-88-087, unreported, 1989 WL 5416; and the Eighth District Court of Appeals in In re Adoption of Hupp (1982), 9 Ohio App.3d 128, 9 OBR 192, 458 N.E.2d 878. Courts finding that such an order is interlocutory and not appealable until judgment is issued on the adoption petition itself include the Tenth Appellate District in In re Adoption of Salisbury (1982), 5 Ohio App.3d 65, 5 OBR 161, 449 N.E.2d 519; and the Eleventh Appellate District in In re Adoption of Cline (1993), 89 Ohio App.3d 450, 624 N.E.2d 1083.

In Polikoff v. Adam (1993), 67 Ohio St.3d 100, 616 N.E.2d 213, we established a two-step process by which a reviewing court is to determine the appealability of an order pursuant to R.C. 2505.02. "[T]he first inquiry for any reviewing court is whether the order was entered in a special proceeding." Id., ...