In re N.F.
| Decision Date | 30 December 2019 |
| Docket Number | NO. 8-19-40,NO. 8-19-39,8-19-39 |
| Citation | 151 N.E.3d 119,2019 Ohio 5380 |
| Parties | IN RE: the ADOPTION OF: N.F., [John M. Rhoades - Appellant] In re: the Adoption of: Z.F., [John M. Rhoades - Appellant] |
| Court | Ohio Court of Appeals |
Alison Boggs, Marysville, for Appellant
Jerry M. Johnson, Lima, for Appellee
Ruth T. Kelly, Amicus Curiae, Academy of Adoption and Assisted Reproduction Attorneys
{¶1} Appellant, John M. Rhoades ("Rhoades"), appeals the June 19, 2019 judgments 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 children,1 N.F. and Z.F., by Appellee, Christian T. Fogle ("Fogle"). For the reasons that follow, we affirm.
{¶2} On January 4, 2019, Fogle filed petitions to adopt his minor stepchildren, N.F. and Z.F. (Case No. 19AD-01, Doc. No. 1); (Case No. 19AD-02, Doc. No. 1). The petitions alleged that Rhoades's consent is not required for the adoptions. (Id. ); (Id. ). Kayla M. Fogle ("Kayla"), the children's biological mother, filed her consent for the adoptions on the same day. (Case No. 19AD-01, Doc. No. 3); (Case No. 19AD-02, Doc. No. 3).
{¶3} On January 22, 2019, service of the notices of the hearing on consent was made on Rhoades. (Case No. 19AD-01, Doc. No. 17); (Case No. 19AD-02, Doc. No. 17). Rhoades appeared at the consent hearing on March 18, 2019 and orally objected to the petition for adoption. (Mar. 18, 2019 Tr. at 4). After determining that Rhoades failed to file an objection to the proposed adoption within 14 days after receiving notice of the filing of the petitions for adoption and the time and place of the hearing on the petitions, the trial court found that Rhoades's consent is not necessary for the adoptions. (Id. at 13-16). The trial court filed its judgment entries reflecting its finding that Rhoades's consent is not required on April 2, 2019. (Case No. 19AD-01, Doc. No. 20); (Case No. 19AD-02, Doc. No. 20).
{¶4} On April 26, 2019, Rhoades filed written objections to the adoptions of N.F. and Z.F. (Case No. 19AD-01, Doc. No. 28); (Case No. 19AD-02, Doc. No. 28). That same day, Rhoades filed a motion to consider additional evidence in which he argued that the trial court's finding that his consent to the adoptions is not required violated his due process rights. (Case No. 19AD-01, Doc. No. 26); (Case No. 19AD-02, Doc. No. 26). On May 8, 2019, Fogle filed a motion to strike Rhoades's objections to the adoptions because they were filed untimely. (Case No. 19AD-01, Doc. Nos. 34, 36); (Case No. 19AD-02, Doc. Nos. 34, 36). That same day, Fogle also filed an objection to Rhoades's motion to consider additional evidence. (Case No. 19AD-01, Doc. Nos. 35, 37); (Case No. 19AD-02, Doc. Nos. 35, 37).
{¶5} On May 16, 2019, a pretrial was held in chambers. (See Case No. 19AD-01, Doc. No. 40); (Case No. 19AD-02, Doc. No. 39). Following the pretrial, the trial court ordered that the attorneys file briefs on the issue of whether Rhoades's consent is necessary. (Id. ); (Id. ). On May 29, 2019, Fogle and Rhoades filed their respective briefs. (Case No. 19AD-01, Doc. Nos. 43, 44, 45); (Case No. 19AD-02, Doc. Nos. 42, 43, 44). On June 19, 2019, the trial court filed its judgment entries finding that Rhoades's consent to the adoptions is not required. (Case No. 19AD-01, Doc. No. 48); (Case No. 19AD-02, Doc. No. 47).
{¶6} Rhoades filed his notices of appeal on July 15, 2019. (Case No. 19AD-01, Doc. No. 56); (Case No. 19AD-02, Doc. No. 55). He raises two assignments of error, which we address together.
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.
{¶7} In his first assignment of error, Rhoades 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, Rhoades 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.
{¶8} 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:
R.C. 3107.07(K). See also In re T.L.S. at ¶ 10.
{¶9} 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:
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.
{¶10} 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.
{¶11} 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).
{¶12} " ‘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. " " 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.
{¶13} "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,...
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