Adoption of Jorgensen, In re

• Decision Date: 13 June 1986
• Docket Number: No. 5-85-3,5-85-3
• Citation: 33 Ohio App.3d 207,515 N.E.2d 622
• Parties: In re ADOPTION OF JORGENSEN. *
• Court: Ohio Court of Appeals

Page 207

33 Ohio App.3d 207

515 N.E.2d 622

In re ADOPTION OF JORGENSEN. ^*

No. 5-85-3.

Court of Appeals of Ohio, Third District, Hancock County.

June 13, 1986.

Syllabus by the Court

1. In an R.C. Chapter 3107 adoption proceeding, a ruling by the court that a parent's consent is not required is a final appealable order.

2. R.C. 3107.07(A) does not constitute consent to adoption, but merely provides for cutting off the statutory right of a parent to withhold his consent to the adoption of his child. Thus, after the court determines that a parent's consent is not required, the court must still determine if the adoption is in the best interest of the child.

3. Pursuant to R.C. 3107.11, notice of the time and place of the best-interest hearing as well as the right to attend and be heard at such hearing must be given to a parent whose consent to the adoption was previously found not to be required in accordance with R.C. 3107.07(A).

Drake, Phillips, Kuenzli & Clark and Thomas D. Drake, Findlay, for appellant.

Patterson W. Higgins, Findlay, for appellee.

GUERNSEY, Presiding Judge.

This is an appeal by Clayton A. Payne, the natural father of the minor child herein involved, from a final decree of adoption rendered by the Probate Division of the Court of Common Pleas of Hancock County on January 18, 1985, ordering that the petition filed by the child's stepfather, Thomas G. Jorgensen, for the adoption of the child be granted.

The petition was filed on March 22, 1984. Thereafter, on July 6, 1984, after a hearing on the issue of the necessity of the appellant's consent, the trial court filed its order finding that the appellant had failed without justifiable cause to communicate with the child from March 22, 1983 to March 22, 1984 and that his consent to the adoption was not required. The appellant took no timely appeal from that order and the cause was continued for further hearing to determine if it would be in the best interest of the child for the petitioner to adopt.

On August 22, 1984, after a hearing on the issue of the best interest of the child, but without notice to the appellant natural father of such hearing, the trial court entered a final order of adoption. However, on October 29, 1984, the appellant moved under Civ.R. 60(B) for vacation of that order because the trial court "scheduled and conducted the final hearing on the petition without giving prior notice of said hearing to Clayton A. Payne, the natural father, or his counsel."

On November 27, 1984, the trial court entered its judgment vacating the August 22, 1984 order of adoption, continuing the case for final hearing as to the best interest of the child, and further ordering:

"3. The Clerk of this Court shall send notice of said hearing in accordance with law to counsel for the Petitioner and counsel for the natural father. However, neither the natural father nor his counsel will be permitted to appear and participate in said final hearing."

Apparently such notice was given to appellant and apparently neither he, nor his counsel, appeared at the best-interest hearing held thereafter.

The appellant makes the following assignments of error, and we will treat the last two assignments together and before the first assignment:

"1. The Probate Court erred to the prejudice of the appellant, and denied appellant due process of law, when it prohibited appellant from attending and participating in the final hearing held on December 28, 1984.

"2. The finding of the court below that the appellant's consent was not necessary was against the manifest weight of the evidence.

"3. The court below committed prejudicial error in limiting the relevant time period, during which appellant's defense of justifiable cause was applicable, to the one year period immediately prior to the filing of the petition."

The latter two assignments of error are attacks upon the judgment of the lower court finding the consent of the appellant not necessary to the adoption proceeding. This judgment of the lower court was entered on July 6, 1984, and no appeal was taken therefrom by the appellant within thirty days of that date. This raises only the question of whether it was a final appealable order.

In re Adoption of Salisbury (1982), 5 Ohio App.3d 65, 5 OBR 161, 449 N.E.2d 519, has been cited by the appellant as authority that an order finding the consent of a natural parent unnecessary is interlocutory and not a final appealable order. It is true that the order in that case was found not to be a final appealable order, but only because the nunc pro tunc order in that case entered July 31, 1979 adjudicated fewer than all the claims for relief.

We prefer instead the conclusion which we adopt, and which is exactly on point, made in the first footnote in Judge Markus' opinion in the case of In re Adoption of Hupp (1982), 9 Ohio App.3d 128, 9 OBR 192, 458 N.E.2d 878, on facts distinguishable from the procedural facts in Salisbury. That footnote reads in pertinent part:

"After determining the father's consent was not required, the trial court postponed its hearing to determine whether the adoption would be in the best interests of the children under R.C. 3107.14(C), pending the outcome of this appeal. The ruling which denies the father a right to grant or deny consent is appealable as 'an order affecting a substantial right made in a special proceeding.' R.C. 2505.02. Adoptions are special statutory proceedings, which have no counterpart at common law. In re Adoption of Biddle (1958), 168 Ohio St. 209 [6 O.O.2d 4, 152 N.E.2d 105]. This order affects a substantial right. Cf. Neil v. Neil (1883), 38 Ohio St. 558; In re Anteau (1941), 67 Ohio App. 117 [21 O.O. 129, 36 N.E.2d 47]. Decisions reviewing similar orders at this stage of the proceedings include. In re Adoption of Lewis (1966), 8 Ohio St.2d 25 [37 O.O.2d 376, 222 N.E.2d 628], and In re Adoption of Caraballo (May 25, 1978), Cuyahoga App. No. 37493, unreported."

Accordingly, we conclude that the July 6, 1984 order was a final appealable order and, no appeal having been taken within thirty days therefrom, all the matters which could have been reviewed had an appeal been taken have now become res judicata and are not reviewable in a subsequent appeal taken from the...