In re Adoption of R.Y., Court of Appeals No. E-19-046

CourtUnited States Court of Appeals (Ohio)
Writing for the CourtPIETRYKOWSKI, J.
Citation2020 Ohio 837
PartiesIn re Adoption of R.Y.
Decision Date06 March 2020
Docket NumberCourt of Appeals No. E-19-046

2020 Ohio 837

In re Adoption of R.Y.

Court of Appeals No. E-19-046


March 6, 2020

Trial Court No. 2018-4-013


Mary Catherine Barrett and Brian J. Lamb, for appellants.


{¶ 1} Appellants, M.Y. and R.Y., appeal the July 31, 2019 judgment of the Erie County Court of Common Pleas, Probate Division, which denied their Civ.R. 60(B) motion for relief from the court's November 19, 2018 order vacating the final decree of adoption of minor, R.Y. Because we find no error, we affirm.

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{¶ 2} Minor, R.Y., was born in October 2011. In July 2016, the Erie County Juvenile Court awarded appellants legal, permanent custody of R.Y. with the apparent support of appellee, biological father, J.O. On March 29, 2018, appellants filed a petition for adoption of R.Y. The petition indicated that consent of the biological mother was not required as she was deceased. The petition further indicated that appellee's consent was required; his consent form was filed on the same date. The preprinted, notarized consent form indicated that appellee "waives notice of the hearing on the Petition for Adoption to be filed in the court and consents to the adoption of [R.Y.]"1

{¶ 3} Appellee was, in fact, notified of the hearing on the petition for adoption. The standard form contained the following:

A final decree of adoption, if granted, will relieve you of all parental rights and responsibilities, including the right to contact the minor, and, with respect to a spouse of the adoption petitioner and relative of that spouse, terminate all legal relationships between the minor and you and the minor's other relatives, so that the minor thereafter is a stranger to you and the minor's former relatives for all purposes. If you wish to contest the adoption, you must file an objection to the petition within fourteen days after proof of service of notice of the filing of your petition and of the time

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and place of the hearing is given to you. If you wish to contest the adoption you must also appear at the hearing. A final decree of adoption may be entered if you fail to file an objection to the adoption petition or appear at the hearing.2

{¶ 4} Appellants and appellee appeared at the hearing which was not recorded. On September 10, 2018, the trial court granted the petition for adoption finding that the necessary consents were given and that the adoption was in the best interest of the child.

{¶ 5} On November 19, 2018, appellee filed a motion to contest his son's adoption by appellants. Appellee indicated that when he signed the consent form he was under "extreme duress" due to the death of the child's mother and his understanding was that following the adoption visitation between he and the child would remain constant. He had since learned that appellants were planning a move to Florida. Appellee further stated that he believed that at the September 10, 2018 hearing, he would have had the opportunity to be heard and to weigh the "crucial decision." An entry of appearance was also filed by an attorney representing appellee.

{¶ 6} On the same date, the trial court filed a judgment entry sua sponte vacating the adoption order. The court stated: "It has come to the Court's attention that the consent of the biological father, [J.O.], in the above-captioned case may have been

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accepted by this Court in error, thus rendering further proceedings in finalizing the adoption void or voidable." The matter was set for a status review on December 17, 2018. Appellants' counsel requested that the hearing be continued due to a conflict. Without addressing the request for a continuance, on December 17, the trial court filed a judgment entry stating that the case would be dismissed within seven days unless further action was taken in the interim; it stated that the order would be self-executing. On January 2, 2019, the court ordered that the minor's name and birth certificate be changed back to the name held prior to the adoption.

{¶ 7} On July 18, 2019, appellant filed a motion to reopen the case to permit the filing of a Civ.R. 60(B) motion for relief from judgment. Appellants' motion and request for a hearing were filed the same day. On July 31, 2019, prior to ruling on a motion for an extension of time to respond filed by appellee, the trial court denied the motion. The court's denial of the motion expressed that its decision vacating the adoption

[was] not based on the merit of any information filed within the Motion to Contest the Adoption filed by attorney Dwayne Galloway. Rather, the Court's vacation of the adoption order was based on the noncompliance with the statutory requirements for acceptance of the father's consent.

{¶ 8} This appeal followed with appellants raising the following assignment of error:

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The probate court erred in denying petitioners-appellants' Civil Rule 60(B) motion without a hearing.

{¶ 9} We first address the question of whether the probate court had the authority to, sua sponte, vacate the final order of adoption. Generally, a court may only vacate a final order pursuant to Civ.R. 60(B). N. Shore Auto Financing, Inc. v. Valentine, 8th Dist. Cuyahoga No. 90686, 2008-Ohio-4611, ¶ 12. However, the court has the inherent authority to vacate a void judgment. Id. at ¶ 13. "A judgment is considered void 'where the court lacks jurisdiction of the subject matter or of the parties or where the court acts in a manner contrary to due process.'" Id., quoting Patton v. Diemer, 35 Ohio St.3d 68, 518 N.E.2d 941 (1988), paragraph four of the syllabus. In the case of adoption, valid consent of a biological parent, if required, is a jurisdictional requirement. In re Adoption of Zschach, 75 Ohio St.3d 648, 657, 665 N.E.2d 1070 (1996). Thus, we conclude that if appellee's consent was not properly obtained, the adoption was void and the court had the inherent authority to vacate the judgment.

{¶ 10} Appellants' sole assignment of error asserts that the trial court deprived them of due process of law by summarily denying their motion for relief. We review a court's denial of a motion for relief from judgment under Civ.R. 60(B) for an abuse of discretion. Rotroff v. Rotroff, 6th Dist. Fulton No. F-06-019, 2007-Ohio-2391, ¶ 7, quoting Griffey v. Rajan, 33 Ohio St.3d 75, 77, 514 N.E.2d 1122 (1987).

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{¶ 11} A movant is entitled to relief under Civ.R. 60(B) after showing, through operative facts presented in evidentiary form, all three of the following: "(1) the party has a meritorious defense or claim to present if relief is granted; (2) the party is entitled to relief under one of the grounds stated in Civ.R. 60(B)(1) through (5); and (3) the motion is made within a reasonable time, and, where the grounds of relief are Civ.R. 60(B)(1), (2) or (3), not more than one year after the judgment, order or proceeding was entered or taken." GTE Automatic Elec. v. ARC Industries, 47 Ohio St.2d 146, 351 N.E.2d 113 (1976), paragraph two of the syllabus. If any of these three requirements is not met, the motion should be overruled. Rose Chevrolet, Inc. v. Adams, 36 Ohio St.3d 17, 20, 526 N.E.2d 564 (1988).

{¶ 12} Civ.R. 60(B) provides that a court may relieve a party from a final judgment for the following reasons:

(1) mistake, inadvertence, surprise or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(B); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation or other misconduct of an adverse party; (4) the judgment

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