Adoption of Howell, In re

• Citation: 601 N.E.2d 92,77 Ohio App.3d 80
• Decision Date: 09 September 1991
• Docket Number: No. 1935,1935
• Parties: In re ADOPTION OF HOWELL. *
• Court: United States Court of Appeals (Ohio)

Page 80

77 Ohio App.3d 80

601 N.E.2d 92

In re ADOPTION OF HOWELL. ^*

No. 1935.

Court of Appeals of Ohio, Fourth District, Lawrence County.

Decided Sept. 9, 1991.

Joseph L. Hale, Portsmouth, for appellant.

David H. McCown, Ironton, for appellee.

EDWIN T. HOFSTETTER, Judge.

This is an appeal from an interlocutory order of adoption entered by the Court of Common Pleas, Probate Division, Lawrence County, granting the petition of James and Eloise Howell for the adoption of their granddaughter, Mary Eloise Howell, born April 11, 1983.

The appellant, Nancy Howell Ratcliff, is the natural mother of said child and has presented the following assignments of error:

"I. The trial court's decision overruling appellant's motion to dismiss for want of subject matter jurisdiction due to a lack of compliance with the mandatory provisions of Ohio Revised Code 3107.05(A)(4), 3107.10, 3107.11 and 3107.12 was in error.

"II. The manner in which the O.R.C. 3107.12 background investigation was conducted was prejudicial to the appellant, denied the trial court of information necessary to consider the adoption and contained an improper and unwarranted conclusion of law, all to the appellant's detriment and in denial of appellant's rights to due process.

"III. The trial court erred in overruling appellant's motion to appoint a guardian ad litem to protect the interests of the child sought to be adopted.

"IV. The trial court admitted, over objection, evidence of character and conduct, opinion and reputation evidence of character, evidence of convictions of crimes in such a way that was inconsistent with wording or intent of rule 608 and 609 of the Ohio Rules of Civil Evidence and was in error.

"V. The trial court's findings of fact relative to the date and the circumstances surrounding the 'placement' of Ellie was not supported by evidence and was in error.

"VI. The conclusion of law reached by the trial court that appellant's failure to support Ellie Howell during the year immediately preceding the filing of the petition for adoption was without justifiable cause was against the manifest weight of the evidence and was in error.

"VII. The trial court's conclusion of law that granting the adoption was in the best interests of Ellie was unsupported by the evidence and was in error.

"VIII. The trial court's decision overruling appellant's motion to dismiss for lack of subject matter jurisdiction due to petitioners-appellees' failure to file an affidavit pursuant to Ohio Revised Code 3109.27 was in error.

"IX. The trial court's decision to permit Petitioner-Appellant [sic ] to file the Ohio Revised Code 3109.27 affidavit nearly eight months after the petition for adoption was filed and nearly six months after the hearing on the petition was conducted was in error.

"X. The trial court's decision overruling appellant's motion to dismiss for lack of subject matter jurisdiction due to Petitioner-Appellees' [sic ] and the trial court's failure to comply with Ohio Revised Code 5103.16 was in error.

"XI. The trial court's decision overruling appellant's motion to vacate the interlocutory order of adoption was in error."

The natural parents of Mary Eloise Howell are Nancy Howell Ratcliff and James Milton Howell, now deceased. Nancy and James were married on December 11, 1982 and Nancy gave birth to Mary Eloise ("Ellie") Howell on April 11, 1983. The trial court found that Nancy and James were divorced in October, 1985 with Nancy having custody of the child pursuant to a separation agreement. However, the record reflects that the judgment entry ordering their divorce grants custody to plaintiff, James Howell with an order for defendant, Nancy Howell to pay child support of twenty-five dollars per week. Although James had custody of Ellie, testimony was presented establishing that Nancy left Ellie in petitioners' care approximately one month after the divorce. It appears that James was in poor health and it is unclear to what extent he provided for the care or support of Ellie. It was established that as he became more debilitated the petitioners took responsibility for Ellie. James died on January 17, 1989. On January 19, 1989, petitioners, James and Eloise Howell, filed a petition to adopt Ellie alleging that Nancy Howell had failed to support or maintain contact with the child for over three years.

Appellant filed an objection to the adoption and on March 8, 1989 filed a motion to dismiss for lack of jurisdiction. On March 16, 1989 appellant filed a motion to appoint a guardian ad litem and an amended objection to the adoption.

A hearing on the petition for adoption was held on March 17, 1989 at which time the trial court denied appellant's motion for the appointment of a guardian ad litem. After a hearing on the matter was held, the court rendered a decision finding: (1) the consent of the natural mother was not necessary because she had failed to support the child for a period of over one year preceding the filing of the petition for adoption; (2) that the mother's failure to support was without justifiable cause; (3) that it is in the child's best interests that the petition be granted; and (4) that an interlocutory order of adoption be issued which would become final six months from January 19, 1989. The interlocutory order of adoption was entered on April 24, 1989.

On August 3, 1989, appellant filed a motion to dismiss based on lack of subject matter jurisdiction due to petitioners' failure to comply with R.C. 3109.27. On that same date, appellant also filed a motion to vacate the interlocutory order of adoption. A hearing was held and on October 13, 1989, the trial court denied appellant's motion to dismiss relative to R.C. 3109.27, the motion to dismiss relative to R.C. 5103.16 and the motion to vacate the interlocutory order of adoption. The court also entered a second interlocutory order of adoption to become final in six months. It is from this order appellant appeals. For clarity, appellant's assignments of error regarding the court's jurisdiction and procedural questions will be addressed first.

Appellant's first, fifth, eighth, ninth and tenth assignments of error are related and will be addressed together. In these assignments of error, appellant asserts that the trial court erred in overruling appellant's motions to dismiss for lack of subject matter jurisdiction and that the court erred in a finding of fact relative to the date the child was placed in the petitioners' home. Appellant contends that appellees' failure to comply with R.C. 3107.05(A)(4), 3107.10, 3107.11, 3107.12, 5103.16, and 3109.27 deprives the probate court of subject matter jurisdiction. These assignments of error are without merit.

R.C. 3107.05(A)(4) states:

"(A) A petition for adoption shall be prepared and filed according to the procedure for commencing an action under the Rules of Civil Procedure. It shall include the following information:

" * * *

"(4) The date of placement of a minor and the name of the person placing the minor;"

Appellant correctly notes that the petition for adoption states the date of placement as April 11, 1983. The testimony does establish that April 11, 1983 is not the date the child was placed in petitioners' home; however, appellant has failed to show any prejudice resulting from inclusion of the incorrect date on the petition. It is not clear from the testimony that Ellie was ever placed in the home of the petitioners for the purpose of adoption. The testimony simply establishes that Nancy left the child in their home. Petitioner Eloise Howell testified that Nancy left the child with her stating, "She's better off with you." Nancy Ratcliff's testimony indicated that she left the child with the petitioners for a week when she went into the hospital and they would not return the child to her. Neither party's testimony establishes that this was intended to be an adoptive placement.

The confusion here stems largely from the fact that the same petition for adoption form is used for all adoptions including agency, private and step-parent adoptions. The date to be used in an agency adoption where the child is placed by a licensed agency is more easily established than in adoptions by step-parents or relatives. While step-parent adoptions often use the date of marriage as the date of placement in the home for adoption, the Ohio Supreme Court held in In re Adoption of Kreyche (1984), 15 Ohio St.3d 159, 15 OBR 304, 472 N.E.2d 1106, that the marriage of a natural parent and the subsequent bringing of a minor into the home with the step-parent will not initiate ab initio the placement of a minor for the purposes of R.C. 3107.07(A). In a private adoption, prior to placement of the child for adoption, the natural parents appear before the probate court, an investigation is made and if it is in the child's best interests the court approves the placement and places the child in the home of the prospective adoptive parents.

A placement as in the case sub judice is addressed in R.C. 5103.16 wherein it states: "A child may be placed temporarily without written consent or court commitment with persons related by blood or marriage, or in a legally licensed boarding home." Since it is not established that the mother intended to place the child in petitioners' home for adoption the placement will be considered as a temporary placement pursuant to R.C. 5103.16, not an adoptive placement. The testimony establishes that Nancy knew that the child was in the care of the petitioners; therefore, appellant may not now claim that she suffered any prejudice from an incorrect placement date on the petition.

Appellant argues that the correct placement date was necessary for the court to properly determine when a final decree of adoption may be issued. However, the court will not issue a final decree of adoption until the child to be adopted has lived in the home of the petitioners for at least six months pursuant to R.C....