In re A.B.

• Decision Date: 30 December 2019
• Docket Number: NO. 8-19-38,8-19-38
• Citation: 151 N.E.3d 98,2019 Ohio 5383
• Parties: IN RE: the ADOPTION OF: A.B. [James Nicholas Dean Ludban - Appellant]
• Court: Ohio Court of Appeals

151 N.E.3d 98

2019 Ohio 5383

IN RE: the ADOPTION OF: A.B. [James Nicholas Dean Ludban - Appellant]

NO. 8-19-38

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

Date of Decision: December 30, 2019

Alison Boggs, Marysville, for Appellant

Susan Garner Eisenman, Columbus, for Appellee

Ruth T. Kelly, Amicus Curiae, Academy of Adoption and Assisted Reproduction Attorneys

PRESTON, J.

{¶1} Appellant, James N.D. Ludban ("Ludban"), appeals the June 25, 2019 judgment of the Logan County Court of Common Pleas, Probate Division, in which the court found that his consent is not required for the adoption of his biological child, A.B., by appellee, Andrew C. Burgess ("Burgess"). For the reasons that follow, we affirm.

{¶2} On February 14, 2019, Burgess filed a petition to adopt his minor stepdaughter, A.B. (Doc. No. 1). The petition alleged that Ludban's consent is not required for the adoption. (Id. ). Melissa M. Burgess ("Melissa"), the child's biological mother, filed her consent for the adoption on the same day. (Doc. No. 3).

{¶3} On March 1, 2019, service of the notice of the hearing on consent was made to Ludban. (Doc. No. 25). On March 19, 2019, Burgess filed an amended petition which was identical to the petition filed on February 14, 2019 with the additional statement that Ludban's consent is not required because he "failed to file an objection within 14 days of the docketing of the return of service on the notice of adoption." (Doc. No. 26). On March 21, 2019, Ludban faxed the trial court an objection to the petition for adoption. (Doc. No. 27). The following day, Ludban filed an original copy of his objection with the court. (Doc. No. 28). On May 14, 2019, Ludban filed a supplement to his objection to the adoption and motion to dismiss the petition for adoption. (Doc. No. 35). On May 29, 2019, Ludban filed a second motion to dismiss. (Doc. No. 39). On June 3, 2019, Burgess filed a response to Ludban's motion to dismiss. (Doc. No. 40). On June 6, 2019, Burgess filed a motion for judgment on the pleadings on the issue of whether Ludban's consent is necessary for the adoption. (Doc. No. 41). On June 25, 2019, the trial court filed a judgment entry stating its finding that Ludban's consent to the adoption is not necessary because he failed to timely object. (Doc. No. 44).

{¶4} On July 15, 2019, Ludban filed his notice of appeal. (Doc. No. 48). He raises four assignments of error for our review. We will discuss Ludban's first and second assignments of error together, as they concern related issues. We will then discuss Ludban's third and fourth assignments of error together.

Assignment of Error No. I

Ohio Revised Code Section 3107.07(K) violates the 14th Amendment to the United States Constitution, as applied to appellant's case and others similarly situated, by arbitrarily denying appellant equal protection and his due process right to be heard at a meaningful time and in a meaningful manner on the petition for adoption.

Assignment of Error No. II

The hearing notice contained in Ohio Revised Code Section 3107.11(B) violates appellant's Constitutional right to due process as the notice provision is confusing, misleading and inaccurate.

{¶5} In his first assignment of error, Ludban argues that R.C. 3107.07(K) is unconstitutional because it arbitrarily denies those given notice of a petition for adoption pursuant to R.C. 3107.11(A)(1) equal protection and a due process right to be heard at a meaningful time and in a meaningful manner on the petition for adoption. In his second assignment of error, Ludban argues that the hearing notice contained in R.C. 3107.11(B) is unconstitutional because it is confusing, misleading, and inaccurate. For the reasons that follow, we disagree.

{¶6} In Ohio, certain persons and entities must consent to an adoption, including the father of the minor child. In re T.L.S. , 12th Dist. Fayette No. CA2012-02-004, 2012-Ohio-3129, 2012 WL 2708307, ¶ 8, citing R.C. 3107.06. However, the General Assembly carved out exceptions to the consent requirement. Those exceptions are found in R.C. 3107.07. One of the exceptions applies if a person or entity whose consent to the adoption is required fails to file an objection to the petition for adoption within 14 days after that person or entity receives notice of the petition and of the hearing on the petition:

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

* * *

(K) Except as provided in divisions (G) and (H) of this section, a juvenile court, agency, or person given notice of the petition pursuant to division (A)(1) of section 3107.11 of the Revised Code that fails to file an objection to the petition within fourteen days after proof is filed pursuant to division (B) of that section that the notice was given * * *.

R.C. 3107.07(K). See also In re T.L.S. at ¶ 10.

{¶7} R.C. 3107.07(K) cross-references the notice required by R.C. 3107.11(A)(1). That statute requires that the trial court fix a time and place for a hearing on a petition for adoption after the petition is filed. It also requires that the trial court, at least twenty days before the hearing, give notice of the filing of the petition and of the hearing to, among others, any person whose consent is required under R.C. Chapter 3107 and who has not consented:

(A) After the filing of a petition to adopt an adult or a minor, the court shall fix a time and place for hearing the petition. The hearing may take place at any time more than thirty days after the date on which the minor is placed in the home of the petitioner. At least twenty days before the date of the hearing, notice of the filing of the petition and of the time and place of hearing shall be given by the court to all of the following:

(1) Any juvenile court, agency, or person whose consent to the adoption is required by this chapter but who has not consented;

* * *

Notice shall not be given to a person whose consent is not required as provided by division (B), (C), (D), (E), (F), or (J) of section 3107.07, or section 3107.071, of the Revised Code. Second notice shall not be given to a juvenile court, agency, or person whose consent is not required as provided by division (K) of section 3107.07 of the Revised Code because the court, agency, or person failed to file an objection to the petition within fourteen days after proof was filed pursuant to division (B) of this section that a first notice was given to the court, agency, or person pursuant to division (A)(1) of this section.

R.C. 3107.11. As R.C. 3107.07(K) provides, if a person does not object within 14 days after receiving the notice required by 3107.11(A)(1), his or her consent to the adoption is no longer required.

{¶8} R.C. 3107.07(K) also cross-references R.C. 3107.11(B), which, according to R.C. 3107.07(K), governs the filing of proof that notice was given. The current version of R.C. 3107.11(B), however, does not address filing proof of notice and instead sets forth the language a court's notice must contain if the petition for adoption alleges that a parent failed without justifiable cause to provide for the maintenance and support of the minor or more than de minimis contact with the minor.

{¶9} We review de novo the determination of a statute's constitutionality. State v. Hudson , 3d Dist. Marion, 2013-Ohio-647, 986 N.E.2d 1128, ¶ 27, citing Akron v. Callaway , 162 Ohio App.3d 781, 2005-Ohio-4095, 835 N.E.2d 736, ¶ 23 (9th Dist.) and Andreyko v. Cincinnati , 153 Ohio App.3d 108, 2003-Ohio-2759, 791 N.E.2d 1025, ¶ 11 (1st Dist.). "De novo review is independent, without deference to the lower court's decision." Id. , citing Ohio Bell Tel. Co. v. Pub. Util. Comm. of Ohio , 64 Ohio St.3d 145, 147, 593 N.E.2d 286 (1992).

{¶10} " ‘It is difficult to prove that a statute is unconstitutional.’ " State v. Stoffer , 2d Dist. Montgomery No. 26268, 2015-Ohio-352, 2015 WL 409265, ¶ 8, quoting Arbino v. Johnson & Johnson , 116 Ohio St.3d 468, 2007-Ohio-6948, 880 N.E.2d 420, ¶ 25. " ‘All statutes have a strong presumption of constitutionality. * * * Before a court may declare unconstitutional an enactment of the legislative branch, "it must appear beyond a reasonable doubt that the legislation and constitutional provisions are clearly incompatible." ’ " Id. , quoting Arbino at ¶ 25, quoting State ex rel. Dickman v. Defenbacher , 164 Ohio St. 142, 128 N.E.2d 59 (1955), paragraph one of the syllabus.

{¶11} "A party may challenge the constitutionality of a statute with either a facial challenge or an as-applied challenge." Simpkins v. Grace Brethren Church of Delaware, Ohio , 149 Ohio St.3d 307, 2016-Ohio-8118, 75 N.E.3d 122, ¶ 20. The distinction between the two types of constitutional challenges is important because the standard of proof is different for the two types of challenges. Wymsylo v. Bartec, Inc. , 132 Ohio St.3d 167, 2012-Ohio-2187, 970 N.E.2d 898, ¶ 20. "To prevail on a facial constitutional challenge, the challenger must prove the constitutional defect, using the highest standard of proof, which is also used in criminal cases, proof beyond a reasonable doubt." State ex rel. Ohio Congress of Parents & Teachers v. State Bd. of Edn. , 111 Ohio St.3d 568, 2006-Ohio-5512, 857 N.E.2d 1148, ¶ 21, citing Dickman at paragraph one of the syllabus. Conversely, "[t]o prevail on a constitutional challenge to the statute as applied, the challenger must present clear and convincing evidence of the statute's constitutional defect." Id. , citing Belden v. Union Cent. Life Ins. Co. , 143 Ohio St. 329, 55 N.E.2d 629 (1944), paragraph six of the syllabus.

{¶12} "A facial challenge alleges that a statute, ordinance, or administrative rule, on its face and under all circumstances, has no rational relationship to a legitimate governmental purpose." Wymsylo at ¶ 21. "Facial challenges to the constitutionality of a statute are the most difficult to mount successfully, since the challenger must establish that no set of circumstances exists under which the act would be valid." Id. , citing United...