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Probate Court Must Wait for Determination of Paternity Before Proceeding With Child’s Adoption
2005-2118. In re Adoption of Pushcar, 2006-Ohio-4572.
Lake App. No. 2005-L-050, 2005-Ohio-5114. Judgment affirmed.
Moyer, C.J., Resnick, Pfeifer, Lundberg Stratton, O'Connor and O'Donnell, JJ., concur.
Lanzinger, J., concurs in judgment only.
Opinion: http://www.supremecourtofohio.gov/rod/newpdf/0/2006/2006-Ohio-4572.pdf
(Sept. 20, 2006) The Supreme Court of Ohio held unanimously today that a probate court must refrain from proceeding with the adoption of a child while an issue concerning the parenting of that child is pending in a juvenile court.
The case involved an attempt by Joseph Pushcar of Lake County to adopt Rebecca Verdone, the daughter of his new wife. Nicholas Verdone, with whom the child's mother lived at the time Rebecca was born, acknowledged that he was the child's father by signing the birth certificate. Verdone and the mother never married, but resided together with Rebecca from 1999 to July 2001, when they separated.
In March 2002, Verdone and Rebecca's mother entered into a signed agreement concerning child support and visitation rights. Verdone exercised vitiation with Rebecca until February 2003, when a conflict between the parents ended their mutual cooperation. In April 2003, the mother obtained a protective order barring Verdone from stalking her. The order specified, however, that Verdone was not precluded from seeking visitation with Rebecca through legal action in the Lake County Juvenile Court.
Verdone initiated an action in juvenile court to establish his parentage and obtain an order enforcing the terms of the couple's 2002 visitation agreement, but the court continued those proceedings because its rules required genetic testing to establish paternity and no such tests had been performed. In January 2004, while Verdone's juvenile court action remained pending, Rebecca's mother married Pushcar. Two months later, Pushcar filed a petition in the Lake County probate court to adopt Rebecca.
Verdone filed objections to the proposed adoption, and the probate court held a hearing to determine whether Verdone's consent to the adoption was legally required. The judge ruled that Verdone's consent was not necessary under a legal provision, R.C. 3107.07, stating that the right of a parent to consent to adoption is waived if he or she has not supported or communicated with the child during the 12 months preceding the filing of the adoption petition. Verdone appealed the probate court's ruling to the 11th District Court of Appeals. The appellate panel acknowledged that the probate court had jurisdiction to hear the adoption case, but ruled that the probate judge could not permit the adoption to go forward under R.C. 3107.07 because there had not been a judicial determination of paternity. The court of appeals held further that the probate court should defer action until the juvenile court had adjudicated the paternity matter to its conclusion.
In today's decision, authored by Justice Alice Robie Resnick, the Supreme Court affirmed the 11th District's holding.
Citing several prior decisions of this Court and the U.S. Supreme Court, Justice Resnick wrote that “this case requires us to again acknowledge that natural parents have a fundamental right to the care and custody of their children. … Because adoption terminates those fundamental rights, any exception to the requirement of parental consent to adoption must be strictly construed.”
Justice Resnick wrote that a strict construction of the statutory language means that “a mother who relies on R.C. 3107.07 (A) to divest a natural father of his parental rights carries the obligation of establishing paternity. … In this case, the appellant could not meet his burden of proving by clear and convincing evidence that the exception to the consent requirement under R.C. 3107.07(A) was satisfied. The requisite one-year period set forth in the statute could not begin to run until a judicial ascertainment of paternity – a matter unresolved when the appellant filed his adoption petition. Moreover, given that there was a proceeding pending in the juvenile court when the appellant filed his petition for adoption, the probate court should have deferred to the juvenile court and refrained from proceeding with the adoption petition until the juvenile court had adjudicated the pending matter. Accordingly, we affirm the judgment of the court of appeals.”
Justice Resnick's opinion was joined by Chief Justice Thomas J. Moyer and Justices Paul E. Pfeifer, Evelyn Lundberg Stratton, Maureen O'Connor and Terrence O'Donnell. Justice Judith Ann Lanzinger concurred in judgment only.
Contacts
Henry Fischer, 216.731.3535, for
Joseph Pushcar.
Kenneth Cahill, 216.352.8977, for Nicholas Verdone.
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