Login | December 10, 2018

Probate court must consider domestic court proceedings before granting adoption

DAN TREVAS
Supreme Court
Public Information Office

Published: May 16, 2018

A probate court’s authority to grant an adoption is blocked when an issue of paternity is pending in another court. But the court is not impeded if a “parenting matter,” such as a parenting time dispute, is pending, the Ohio Supreme Court ruled recently.

Even though it can proceed with an adoption, a probate court must consider the effect of the “parenting matter” when determining whether a parent’s consent for the adoption is required, the Supreme Court added when deciding the case of a contentious adoption in Clinton County.

The 5-2 decision clarifies a 2006 Supreme Court opinion, which stated that a “probate court may not proceed with an adoption petition if any pending parenting matter is proceeding in another court.” Writing for the majority, Justice Judith L. French stated that a father who opposes the Clinton County adoption cannot rely on his attempt to reestablish parenting time in Montgomery County to stop the adoption, but the probate court should consider the father’s efforts when determining whether the adoption may proceed without the father’s consent.

Justice French’s opinion was joined by Chief Justice Maureen O’Connor and Justices Sharon L. Kennedy and Patrick F. Fischer. Sixth District Court of Appeals Judge Mark L. Pietrykowski, sitting for former Justice William M. O’Neill, also joined the opinion.

Justice Terrence O’Donnell, in a dissenting opinion joined by Justice R. Patrick DeWine, wrote the state law does not require the probate court to consider the existence of pending matters in other courts, and that interpretation is a new burden on probate courts that was not imposed by the state legislature.

Stepfather Seeks to Adopt Children

Justice French wrote that the Supreme Court’s analysis of how to apply the law in this case was complicated by the antagonistic 13-year relationship between the parents after their divorce. The parents each alleged abuse of the children by the other and regularly failed to comply with court orders. The mother impeded the father’s parenting time from the outset of the 2004 divorce decree, the Court stated.

After going nearly six years without having contact with his children, the father learned the children, identified in court documents as M.G.B.-E. and R.S.B.-E, were attending Wilmington High School in 2014. The father attempted to contact his son, R.S.B.-E., at a school sporting event in 2015, but was stopped by the mother and her new husband, the children’s stepfather. The father and mother were divorced in Montgomery County Domestic Relations Court.

In May 2015, the father, having discovered where his children were living, filed a motion in the domestic-relations court to reestablish parenting time with the children. Four days later, the stepfather filed for adoption of the children in Clinton County Probate Court.

Ohio law requires a parent’s consent to an adoption, but the law — R.C. 3107.07(A) —contains an exception. A natural parent’s consent is not required if the parent failed “without justifiable cause to provide more than de minimis contact with the children for at least a year immediately preceding the filing of the adoption petitions.” The stepfather contended that the exception applied, and the probate court conducted a hearing on the matter.

The probate court indicated that it gave great consideration to the father’s failure to follow up on a 2007 order by the domestic relations court to arrange and pay for counseling in order to reinstate his visitation rights at the time. The father admitted he “dropped the ball” on the counseling but complained that the mother contributed to the failure by obstructing his ability to spend time with their children. The probate court’s decision that the father’s consent was not required for the adoption of his children did not mention anything about the father’s pending motion to reestablish parenting time.

While the adoption proceedings were pending, the Montgomery County domestic relations court granted the father limited parenting time, and kept the case open for future proceedings. The father appealed the probate court’s order denying that he needed to consent to the adoption. The Twelfth District Court of Appeals affirmed the probate court’s decision. The father appealed that ruling to the Supreme Court.

“Parenting Matter” Definition Examined

Justice French explained the father asked the Court to broadly rule that a probate court cannot proceed with an adoption if any pending parenting matter is proceeding in another court. The father relied on the Court’s 2006 In re Adoption of Pushcar decision where the Court referred to any “parenting matter.” In Pushcar, the child’s stepfather attempted to proceed with the adoption of his wife’s child, who was born out of wedlock. The natural father was seeking visitation rights in juvenile court, and those proceedings were delayed until the man could establish paternity. The probate court intended to move forward with the adoption, finding the father had not had more than minimal contact with the child in more than a year. The Eleventh District Court of Appeals blocked the probate court, finding the question of paternity needed to be decided in juvenile court before the probate court could determine if the father’s consent was required. The Supreme Court affirmed the Eleventh District’s decision.

In today’s decision, the Court noted that in recent cases citing Pushcar, the Court has stated that in 2006 it was referencing matters of “parentage” not “parenting.” “Parentage” is a narrower term than “parenting” and refers to issues such as paternity. “Parenting” more broadly considers issues such as custody, visitation, and parenting time, the Court concluded.

“We read Pushcar as requiring the probate court to refrain from acting until the juvenile court had determined the child’s paternity, because until that occurred, the probate court could not determine whether the father’s consent is required,” the Court stated.

The Clinton County Probate Court does not face that impediment, the opinion stated. It added that there is no finding that needs to be relayed by the domestic relations court for the probate court to determine if the father attempted to make contact with his children in the year prior to the adoption filing.

Parenting Proceedings Must Be Considered

The Court noted that while a pending parenting matter cannot stop the probate court from proceeding, the stepfather must prove by clear and convincing evidence that the father did not have more than minimal contact with the children. The opinion stated that even if a parent has completely failed to communicate with the children, the consent could still be required if there was justifiable cause for not having contact.

The Court noted that in other cases a parent has been considered to have justifiable cause for not communicating when the custodial parent significantly interferes or discourages communication. The Court ruled that the probate court must take into account the father’s efforts to reestablish parental rights through the domestic relations court and the mother’s attempts to block him from interacting with the children.

Consideration of Other Court’s Actions Not Required, Dissent Concludes

In his dissent, Justice O’Donnell noted that 3107.07(A) does not require probate courts to consider pending parenting matters.

“Although the legislature could have required probate courts to make such a determination, it chose not to do so; despite the lack of statutory authorization, the majority judicially adds this new factor for probate courts to consider in adoption cases,” he wrote.

The dissenting opinion stated this requirement increases the complexity of problems probate courts face in adoption cases and opens a new field of interpretation to the phrase “without justifiable cause.” The opinion concluded the requirement unnecessarily complicates an already difficult situation and will lead to consequences not intended by the General Assembly.

The dissent maintained that the probate court concluded that clear and convincing evidence was presented that the father failed without justifiable cause to make contact with the children. The dissent would affirm the probate court’s decision.

The case is cited 2017-0039. In re Adoption of M.G.B.-E., Slip Opinion No. 2018-Ohio-1787.


[Back]