Adoption of Sunderhaus, In re

• Decision Date: 26 February 1992
• Docket Number: Nos. 90-2333,90-2334,s. 90-2333
• Citation: 63 Ohio St.3d 127,585 N.E.2d 418
• Parties: In re ADOPTION OF SUNDERHAUS.
• Court: Ohio Supreme Court

Page 127

63 Ohio St.3d 127

585 N.E.2d 418

In re ADOPTION OF SUNDERHAUS.

Nos. 90-2333, 90-2334.

Supreme Court of Ohio.

Submitted Sept. 25, 1991.

Decided Feb. 26, 1992.

SYLLABUS BY THE COURT

1. An unmarried parent is subject to the support obligation to which R.C. 3107.07(A) refers only where a paternity determination has been rendered pursuant to R.C. 3111.08(B) or 3111.12.

2. The one-year period of nonsupport prescribed by R.C. 3107.07(A) which obviates the requirement to obtain parental consent to an adoption pursuant to R.C. 3107.06 commences on the date that parentage has been judicially established.

On December 16, 1986, Jaclyn Sloan Sunderhaus was born to Sherry Lyn Deem, n.k.a. Sherry Lyn Sunderhaus. At the time of Jaclyn's birth, appellee, James L. Zimmerman, signed the birth certificate as the biological father. Sherry Deem and appellee resided together until December 25, 1986. On or about February 24, 1987, communications between counsel for Sherry Deem and appellee were undertaken with respect to visitation and child support for Jaclyn. No agreement emerged from these communications.

On October 10, 1987, Sherry Deem and appellant, Jerry Sunderhaus, were married. In November 1987, initial attempts were made to obtain the consent of appellee to the adoption of Jaclyn by appellant. These attempts were unsuccessful.

On October 11, 1988, appellee instituted an action in the Butler County Juvenile Court to establish his paternity of Jaclyn. In response to the complaint of appellee, Sherry Sunderhaus answered by alleging that appellee "may not be the biological father of" Jaclyn. Thereafter, on December 1, 1988, appellant filed a petition to adopt Jaclyn in the Butler County Probate Court. In the petition, appellant alleged that consent of the biological father was unnecessary because appellee had not communicated with or furnished support for the minor child for at least one year prior to the filing of the adoption petition.

On June 13, 1989, an entry was filed in the paternity action establishing appellee as the biological father of Jaclyn. A hearing was held on the adoption petition on June 15, 1989. On November 17, 1989, the probate court issued an opinion and entry holding that the consent of appellee was unnecessary for the adoption to be granted. On October 15, 1990, the court of appeals reversed and remanded. Finding its decision to be in conflict with the Court of Appeals for Van Wert County in In re Adoption of Foster (1985), 22 Ohio App.3d 129, 22 OBR 331, 489 N.E.2d 1070, the appellate court certified the record of the case to this court for review and final determination. The cause is also before the court pursuant to the allowance of a motion to certify the record.

Finkelman, Ross & Giuliano, Fred Ross and Jeffrey P. Giuliano, Middletown, for appellant.

Paris K. Ellis, Middletown, for appellee.

SWEENEY, Justice.

The present controversy concerns the circumstances under which a probate court may dispense with the requirement that the parent of a child consent to her adoption by another. The consent requirement is prescribed by R.C. 3107.06, which provides in relevant part:

"Unless consent is not required under section 3107.07 of the Revised Code, a petition to adopt a minor may be granted only if written consent to the adoption has been executed by all of the following:

" * * *

"(B) The father of the minor, if the minor was conceived or born while the father was married to the mother, if the minor is his child by adoption, or if the minor has been established to be his child by a court proceeding * * *." (Emphasis added.)

R.C. 3107.07 prescribes certain exceptions to the consent requirement. It provides, inter alia:

"Consent to adoption is not required of any of the following:

"(A) A parent of a minor, when it is alleged in the adoption petition and the court finds after proper service of notice and hearing, that the parent has failed without justifiable cause to communicate with the minor or 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 either the filing of the adoption petition or the placement of the minor in the home of the petitioner.

"(B) The putative father of a minor if the putative father fails to file an objection with the court, the department of human services, or the agency having custody of the minor as provided in division (F)(4) of section 3107.06 of the Revised Code, or files an objection with the court, department, or agency and the court finds, after proper service of notice and hearing, that he is not the father of the minor, or that he has willfully abandoned or failed to care for and support the minor, or abandoned the mother of the minor during her pregnancy and up to the time of her surrender of the minor, or its placement in the home of the petitioner, whichever occurs first * * *." (Emphasis added.)

The ability to dispense with the consent requirement under R.C. 3107.07(A) is dependent upon two factors: (1) the establishment of the parent-child relationship, and (2) the failure to satisfy the support obligation arising therefrom. Thus, R.C. 3107.07 must be read in pari materia with the other applicable provisions of R.C. Title 31. Parentage may be established through a judicial admission or default pursuant to R.C. 3111.08(B), or as the result of a contested action pursuant to R.C. 3111.12. The support obligation arising from a paternity determination arises from operation of R.C. 3111.13(C), which provides:

"The judgment or order may contain any other provision directed against the appropriate party to the proceeding, concerning the duty of support, the furnishing of bond or other security for the payment of the judgment, or any other matter in the best interest of the child. The judgment or order shall direct the father to pay all or any part of the reasonable expenses of the mother's pregnancy and confinement. After entry of the judgment or order, the father may petition for custody of the child or for visitation rights in a proceeding separate from any action to establish paternity. * * * " (Emphasis added.)

Appellant contends that the determination of the paternity of appellee on June 13, 1989 reverts back to the birth of the child on December 16, 1986. However, this contention is at variance with the plain meaning of R.C. 3107.07 as read in pari materia with R.C. Chapter 3111. R.C. 3107.07(A) obviates the necessity of parental consent if support has not been paid for one year prior to the filing of the adoption petition. However, the parentage of appellee and the support obligation arising therefrom were not determined until June 13, 1989--over six months after the filing of the petition for adoption. ¹ Instead, appellant contends that the parentage determination should be imputed to appellee as of the date of the birth of the child. Appellant would therefore attach legal effect to an event the significance of which was not determined until nearly three years after its occurrence. ²

In support of his argument that the establishment of the paternity of appellee should be applied retroactively, appellant maintains that such paternity was "acknowledged" at the time the child was born. This contention, however, was controverted by the natural mother in her response to the complaint to establish paternity filed by appellee. The most that can be said concerning the circumstances surrounding the birth of Jaclyn is that appellee "believed" that he was her father at the time. It is not uncommon for such beliefs to be later proven unfounded. See Hulett v. Hulett (1989), 45 Ohio St.3d 288, 544 N.E.2d 257. This in no small measure accounts for the decision by the General Assembly to eschew such casual "factual" determinations and instead require judicial ascertainment of paternity. ³

Appellant further contends that the burden was upon appellee to establish his paternity and support obligation at an earlier date. However, the natural mother likewise had it within her power to begin the period of nonsupport with the filing of a paternity complaint. Inasmuch as the mother and prospective adoptive father seek to rely upon R.C. 3107.07(A) to divest appellee of his parental rights, the obligation is upon them to establish the paternity of appellee and to demonstrate his nonsupport of the child from that point forward. The one-year period of nonsupport presumes that a duty of support existed at the time the period began to run. Reliance upon the exception to the consent requirement contained in R.C. 3107.07(A) necessitates that the party so doing initiate the action required to render the exception applicable. ⁴ Moreover, in construing R.C. 3107.07(A), this court is "properly obliged to strictly construe * * * [its] language to protect the interests of the non-consenting parent who may be subjected to the forfeiture or abandonment of his or her parental rights." In re Adoption of Holcomb (1985), 18 Ohio St.3d 361, 366, 18 OBR 419, 424, 481 N.E.2d 613, 619. Accordingly, a party filing a petition for adoption who relies upon R.C. 3107.07(A) bears the burden of establishing by clear and convincing evidence that the exception to the consent requirement contained therein has been satisfied. See In re Adoption of Bovett (1987), 33 Ohio St.3d 102, 515 N.E.2d 919; In re Adoption of Masa (1986), 23 Ohio St.3d 163, 23 OBR 330, 492 N.E.2d 140; In re Adoption of Gibson (1986), 23 Ohio St.3d 170, 23 OBR 336, 492 N.E.2d 146.

Additionally, basic procedural due process requires that, in order for a person to forfeit his rights, he must be on notice that his rights are in jeopardy. This is especially so where parental rights are involved. See Santosky v. Kramer (1982), 455 U.S. 745, 753, 102 S.Ct. 1388, 1394, 71 L.Ed.2d 599, 606; Little v. Streater (1981), 452 U.S. 1, 13, 101 S.Ct. 2202, 2209, 68 L.Ed.2d 627, 637; Lassiter v. Dept. of Social Services (1981), ...