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OHIO CASE SUMMARY/Adoption
Parties
Who May Be Adopted
Birth father who previously consented to adoption of son by son’s stepfather was later permitted to adopt adult son, with consents of adoptive father and natural mother, despite fact that Ohio law does not specifically provide for such adoptions. Court analogized relationship of birth father, who had maintained relationship with son, to that of foster or step parent and child relationship, both of which may form basis for adult adoption under ORC Ann. 3107.02(B)(3). In re Huskins, 692 N.E.2d 1105 (Ohio Ct. App. 1997).
Relationship during his minority between adult and adoptive parents, while not legalized, was essentially that of foster child and parents. Relationship reflected requisite attributes of raising child, including nurturing, care, financial support, love and affection. Thus, adult’s adoption permissible under ORC Ann. 3107.02, which allows adult adoptions under specified circumstances, including where foster relationship between adoptee and adoptive parents existed when adoptee was a minor. In re Adoption of Huitzel, 504 N.E.2d 1173 (Ohio Ct. App. 1985).
Who May Place an Adoptee
Neither natural parent may force the other to place child for adoption and, with limited exceptions, consent of each is required for placement. Man found to be legal father of child has same rights as natural mother with respect to adoption. Bryant v. Hacker, 689 N.E.2d 609 (Ohio Ct. App. 1996).
Agency or court must be involved in placement of child for adoption to avoid placement for profit and protect best interest of child. Under ORC Ann. 5103.16(D) agency involvement not necessary; consent of probate court sufficient for placement for private adoption. However, only legal parent, not adoptive parent, may petition for approval of private adoption placement under ORC Ann. 3107.04(D). In re Proposed Adoption of a Child by Micheal S., 722 N.E.2d 574 (Ohio Ct. App. 1998).
Although statute requires involvement of court or agency when child is placed in home for adoption, strict construction of law does not require final order of adoption to be set aside where natural parents illegally placed child in adoptive home in violation of statute, later sought court approval of placement and consented to adoption, but then filed motion to dismiss adoption petition after final order was entered. In re Adoption of Zschach, 665 N.E.2d 1070 (Ohio 1996).
Who May Adopt
Under ORC Ann. 3107.03(B), unmarried adults are eligible to adopt. In re Adoption of Charles B., 552 N.E.2d 884 (Ohio 1991).
Administrative policy barring white couple from adopting black child violated equal protection guarantees. Trial court abused discretion by using race as a determining factor on best interest of child in adoption proceedings, at recommendation of agency. Cultural heritage may be considered in determining best interest, but other factors must also be considered, including adoptive parents’ ability to care for child, safety and security of adoptive environment, and ability of adoptive parents to adequately provide for child’s racial and cultural needs and foster positive sense of racial identity. In re Moorehead, 600 N.E.2d 778 (Ohio Ct. App. 1991).
Foster parents met criteria for adoption of 3 year old; however, county agency opposed adoption petition because parents were aged 68 and 55. Appeals court held that agency’s denial of consent based solely on adoptive parents’ ages was unreasonable, arbitrary and capricious. In re Haun, 286 N.E.2d 478 (Ohio Ct. App. 1972).
Court abused discretion and did not serve best interest of child by denying adoption petition of single parent who established strong relationship with child and provided stable home, where decision based on court’s view that adoption would not make child’s strong bond with adoptive mother’s domestic partner more permanent and stronger set of family bonds might be preferable. Under ORC Ann. 3107.03(B), unmarried individuals are eligible to adopt. In re Taylor, 2002 Ohio App. LEXIS 2783 (Ohio 2002).
Under “unambiguous language and meaning” of ORC Ann. 3107.15(A)(1), adoption of child by adult who is not child’s stepparent operates as termination of biological parent’s parental rights, regardless of fact that unmarried adult seeking to adopt is biological mother’s lesbian partner. Adoption statutes are strictly construed. Ohio law does not recognize same sex marriages and therefore exception to termination of parental rights of ORC Ann. 3107.15(A)(1) for “spouses of the petitioner” does not apply. In re Adoption of Doe, 719 N.E.2d 1071 (Ohio Ct. App. 1998).
Dismissal by juvenile court of same sex partners’ petition for shared parenting affirmed on appeal. Options for same-sex partner to establish legal relationship with other partner’s adoptive and birth children are limited: Ohio does not recognize “second parent adoptions”; partner did not have “parent-child relationship,” either as birth or adoptive parent, with other partner’s children within meaning of ORC Ann. 3111.01(A) so as to permit entry of order of shared parenting; and partner could not adopt children without terminating other partner’s parental rights. Court suggested partners instead seek joint custody order. In re Bonfield, 773 N.E.2d 507 (Ohio 2002). In a subsequent modification of this opinion, however, the Court, while not amending the substance of its original opinion, noted that second-parent adoption, an adoption through which a gay partner can acquire parental rights without forcing the other partner to relinquish such rights, was never an issue in the case. Accordingly, Court agreed to delete three sentences of its original opinion, one of which included the phrase “second-parent adoption is not available in Ohio.” In re Bonfield, 780 N.E.2d 241 (Ohio 2002).
Homosexuality not, in itself, bar to adoption, although right to adopt not absolute. Adoption cases generally to be decided on case by case basis, with best interest of child being paramount. Factors that may be considered in determination are whether adoptive parent’s sexual orientation would have sufficient adverse impact on child to warrant state intervention, whether non-marital sexual conduct would have such impact, or whether homosexuality constitutes immoral conduct causing direct or probable adverse impact. In re Adoption of Charles B., 552 N.E.2d 884 (Ohio 1990) (No evidence found supporting any of these factors. Trial court’s placement of child with homosexual adoptive parent not abuse of discretion.).
Mere presence in county, without indication of intention and acts toward establishment of residency, did not constitute “residence” sufficient to confer jurisdiction over adoption placement on court pursuant to ORC Ann. 5103.16. In re Adoption of Murphy, 557 N.E.2d 827 (Ohio Ct. App. 1988).
Court found adoptive parents suitable based on evidence in record suggesting they had stable marriage, were warm and caring and experienced in dealing with both natural and adopted children. In re Adoption of Ridenour, 574 N.E.2d 1055 (Ohio 1991).
Who May Not Adopt
Biological custodial parent may not adopt legitimate minor child in effort to terminate other biological parent’s rights. Law does not provide for such termination except in cases where child, after proper process, has been adjudged by court to be neglected or abused. Statute permitting adoption without consent of natural parent if natural parent has abandoned child not applicable in these circumstances. Termination of parental rights under ORC Ann. 3107.15(A)(1) would also deprive child of inheritance rights or support if custodial parent should die or become incapacitated, and act as bar to child’s relationship with non-custodial natural parent’s family. In re Adoption of Kohorst, 600 N.E.2d 843 (Ohio Ct. App. 1992), citing In re Adoption of Graham, 409 N.E.2d 1067 (Ohio Misc. 1980) (Law does not permit adoption of natural children by parent, even if other parent consents. Adoption may not be used to relieve parent of his/her duty of support.).
Types
Private/Independent
Statute setting procedure for independent adoption is not part of adoption code; however, it is adoption statute in substance and must be strictly construed. Private adoption statute’s purpose is to provide judicial oversight of adoptions not conducted under auspices of statutorily authorized agency. Lemley v. Kaiser, 452 N.E.2d 1304 (Ohio 1983). See also In re Adoption of Zschach, 665 N.E.2d 1070 (Ohio 1996)(current private adoption provision, ORC Ann. 5103.16(A), serves to ensure proper judicial or agency supervision of private placements).
Private Agency
Mother consulted with county agency prior to placement of child with adoptive parents; agency did not remain involved because mother only in county temporarily, nor did agency inform mother of requirement for court or agency supervision of placement. Adoptive parents filed petition for pre-placement. Agency informed court that child was illegally placed. Court denied petition and held prospective parents not suitable to adopt based on participation in illegal placement. Appellate court reversed that part of judgment, noting situation did not involve black market baby. However, petition correctly dismissed under ORC Ann. 5103.16(D) because only biological parent may petition court to approve private adoptive placement, although adoptive parents may subsequently file adoption petition under ORC Ann. Chapter 3107. In re Proposed Adoption of a Child by Micheal S., 722 N.E.2d 574 (Ohio Ct. App. 1998).
Subsequent to a juvenile court order granting custody of a child to the Clark County Department of Job and Family Services, the child’s signed a surrender agreement purporting to surrender custody to the appellant adoption agency. The Greene County juvenile court approved the surrender agreement, granted permanent custody to the adoption agency, denied the Department's motion to vacate its order, and ordered the Department to surrender custody of the child. After the Department refused to turn over the child, the agency filed a The supreme court held the agency could not establish the requirements for a writ of habeas corpus action in Greene County. The court of appeals dismissed the action, and the adoption agency appealed. In affirming the court of appeals, the Supreme Court held that Clark County juvenile court had exclusive original jurisdiction to decide the child's custody and requests to approve permanent custody agreements, depriving the Greene County juvenile court of jurisdiction to grant custody to the agency. Further, since the child’s parents did not legal custody of the child, they did not have authority to surrender the child to the adoption agency, making the surrender agreement unenforceable. Adoption Link, Inc. v. Suver, 112 Ohio St. 3d 166, 858 N.E.2d 424 (Ohio 2006).
Public Agency
Placement agency’s refusal to consent to adoption does not deprive probate court of jurisdiction; probate court vested by legislature with exclusive jurisdiction over adoption. In re Dickhaus, 321 N.E.2d 800 (Ohio Misc. 1974); see also In re Harshey, 318 N.E.2d 544 (Ohio 1974) (refusal to consent by parents deprives probate court of jurisdiction to enter adoption order, but refusal to consent by state agency does not).
Despite statute that requires agency consent for adoption, court may still grant adoption where it finds agency is acting capriciously, arbitrarily, or unreasonably in withholding consent. In re Haun, 286 N.E.2d 478 (Ohio Ct. App. 1972).
Department of Human Services was not involved in temporary placement of child with grandparents, nor is Department required to be involved in adoptions by relatives; thus, court’s failure to notify Department of placement prior to hearing on adoption petition subsequently filed by grandparents was not error. In re Adoption of Howell, 601 N.E.2d 92 (Ohio Ct. App. 1991).
Kinship/Relative
Relatives of adoptees have no preferential right to adopt. While existence of relatives qualified to adopt is factor, it is not controlling factor in determining placement. Court must determine, from all evidence, whether adoption by relative or other prospective adoptive parent is in best interest of the child. In re Dickhaus, 321 N.E.2d 800 (Ohio Misc. 1974). See also In re Cotner, 2002 Ohio App. LEXIS 5230 (Ohio Ct. 2002)(citing Dickhaus in affirming order granting foster parents’ adoption petition and dismissing petition filed by adoptees’ great-aunt).
Stepparent
The Supreme Court of Ohio accepted jurisdiction and certified a conflict as to whether ORC Ann. § 3107.11(A) requires parties to whom consent notice is required to be given to be given notice both of the consent hearing and of the best interest hearing. In affirming the ruling of the court of appeals, the Supreme Court held that the notice given to the birth father was sufficient under the statute because the original notice of the filing of the adoption petition did not need to specify the dual issues to be addressed at the hearing and the trial court was not required to did not need to hold a separate best interest hearing. The Court concluded that such notice need only to notify the birth parent of the time and place of any hearing on a petition for adoption of his or her biological child. However, if the trial court had held more than one hearing on the petition, ORC Ann. § 3107.11(A) would have required service of notice on the biological father. In re Adoption of Walters, 859 N.E.2d 545 (Ohio 2007)
An unmarried father signed a child's birth certificate and entered into a visitation agreement with the child’s mother. After a conflict arose between them, the mother refused him visits with the child and the birth father filed a complaint asking the juvenile court to enforce the visitation agreement. Hearings regarding paternity were continued pending genetic testing required by juvenile court rules; however, thirteen months after the mother ended the visitation agreement with the child’s father, her husband filed his adoption petition, alleging the father had failed to communicate with or support the child. The probate court ruled that the biological father's consent to the adoption of his child was not required under ORC Ann. § 3107.07(A). The biological father appealed, and the Court of Appeals for Lake County reversed the probate court's order. The Supreme Court of Ohio, in affirming the court of appeals, held that when an issue concerning the parenting of a child is pending in a juvenile court, the probate court must refrain from proceeding with the adoption of that child and refrain from addressing the matter until adjudication in the juvenile court. In re Pushcar, 853 N.E.2d 647(Ohio 2006)
Consent
Who Must Consent
With few narrowly defined exceptions, consent of both natural parents is required for adoption. Both biological mother and father found by court to be biological father have equal rights in relation to adoption of child; however, neither parent may compel adoption. Bryant v. Hacker, 689 N.E.2d 609 (Ohio Ct. App. 1996).
Legal parentage must be established before determination is made as to parties required to consent to adoption. Husband of surrogate parent, rather than sperm donor who was found to be biological father in paternity action, is statutory father whose consent is required. In re Adoption of Reams, 557 N.E.2d 159 (Ohio Ct. App. 1989); see also In re Adoption of Toth, 515 N.E.2d 950 (Ohio Ct. App. 1986) (statute requiring written objection to adoption not applicable to acknowledged natural father prior to adjudication of his paternity; rather, objection governed by putative father statute).
Consent by putative father must be obtained if father has timely objected to placement of child for adoption either before placement of child in home of petitioner or within 30 days after filing of petition or placement, whichever occurs first. Objection filed 3 months after petition filed and served on putative father therefore untimely, absent evidence of fraud or legal disability. In re Adoption of Dearing, 648 N.E.2d 57 (Ohio Ct. App. 1994). But see In re Adoption of Holt, 599 N.E.2d 812 (Ohio Ct. App. 1991), in which court held that strict application of 30 day time limit may constitute violation of due process where putative father did not receive notice of adoption proceedings until after 30 day limit expired.
Consent to adoption required of putative father who signed birth certificate as informant. In order to preserve right to withhold consent, however, such putative father must file objection to adoption with court on or before date set for hearing on adoption. This contrasts with requirement for putative fathers who have taken no such action to assert paternity to file objection within 30 days of placement or filing of petition. In re Adoption of Greer, 638 N.E.2d 999 (Ohio 1994).
While marriage of biological parent may initiate placement for adoption by stepparent if child brought into home with intent to adopt, such result not automatic under ORC Ann. 3107.07. In finding no placement had occurred, court noted that biological parents had reached agreement on custody, support, and visitation, and obtained court order consistent with agreements after marriage of mother, facts inconsistent with a finding that child was placed with stepfather for purposes of adoption. Consent to adoption required of biological father under circumstances. In re Adoption of Kreyche, 472 N.E.2d 1106 (Ohio 1984).
Who Need Not Consent
Consent not required of putative father who fails to register with putative father registry within 30 days of birth if he is still putative father when petition to adopt filed. However, even where there was no timely registration, consent still required of putative father who is adjudged to be legal parent. In re Brooks, 737 N.E.2d 1062 (Ohio Ct. App. 2000) (citing ORC Ann. 3107.01(G)). Consent to adoption not required of putative father who fails to register within 30 days of child’s birth as required by statute, nor is such father entitled to notice of adoption proceeding. However, where father had reason to believe he was listed as father on child’s birth certificate and did not discover he was not until 30 day period expired, after which he filed a motion to vacate adoption, he should have been permitted to amend motion to include challenge to constitutionality of putative father statute. In re Coppersmith, 761 N.E.2d 1163 (Ohio Ct. App. 2001).
Consent not required of incarcerated mother whose parental rights were terminated in custody proceeding. Mother alleged conflict between permanent custody procedure statute and adoption consent statute denied her due process and equal protection rights. Court held provisions were complementary, and that once parental rights are terminated by juvenile court, right to withhold consent to adoption was also lost. In re Dillard, 549 N.E.2d 213 (Ohio Ct. App. 1988).
Consent for adoption not required of parent who has failed, without justifiable cause, to support or communicate with child for period of at least 1 year immediately before filing of adoption petition. In re Riegle, 2002 Ohio App. LEXIS 763 (Ohio Ct. App. 2002). This is not a dual requirement; only one type of failure need be shown in order to obviate need for consent. In re Adoption of McDermitt, 408 N.E.2d 680 (Ohio 1980). See also In re Adoption of Cline, 624 N.E.2d 1083 (Ohio Ct. App. 1993). In relation to natural father, such period commences when determination of paternity is made. In re Adoption of Sunderhaus, 585 N.E.2d 418 (Ohio 1992); In re Sherry, 669 N.E.2d 551 (Ohio Ct. App. 1995).
In order to establish that consent of birth parent not required, adoption petitioner has burden to prove parent’s unjustifiable failure to support by clear and convincing evidence. In re Adoption of Bovett, 515 N.E.2d 919 (Ohio 1987). If petitioner makes required showing that parent unjustifiably failed to support or communicate with child for requisite one year period, burden of evidence shifts to parent to show a facially justifiable cause for the failure. However, ultimate burden of proving unjustifiable failure always remains on petitioner. In re Adoption of Cline, 624 N.E.2d 1083 (Ohio App. 11 Dist. 1993).
Trial court’s determination that consent of natural parent is not required because of failure to support or communicate will not be disturbed unless against manifest weight of evidence. Trial court is in best position to observe demeanor of witnesses and assess credibility and accuracy of testimony. In re Adoption of Allonas, 2002 Ohio App. LEXIS 2843 (Ohio Ct. App. 2002). However, it is reversible error for trial court to fail to issue mandatory findings of fact and conclusions of law in support of such determination. In re Adoption of Gibson, 492 N.E.2d 146 (Ohio 1986).
Resolving split among Ohio appellate courts, Ohio Supreme Court held that trial court’s order that parent’s consent not required entered pursuant to ORC Ann. 3107.07 is final and appealable. In re Adoption of Greer, 638 N.E.2d 999 (Ohio 1994). However, even if consent held not required, such parent still is entitled to notice of and retains right to participate in hearing on whether proposed adoption is in best interest of the child. In re Adoption of Jorgenson, 515 N.E.2d 622 (Ohio Ct. App. 1986).
• Non-Justifiable Failure to Support or Communicate Found Where:
Natural mother’s only “communication” with children during statutory period was when she waved and smiled at them during school program (In re Adoption of Jordan, 595 N.E.2d 963 (Ohio Ct. App. 1991)); natural father’s choice of occupation, which he admitted was “not the best he could do,” assured that he would be unable to pay child support as ordered (In re Adoption of Wagner, 690 N.E.2d 959 (Ohio Ct. App. 1997)); letters and cards sent by father were never received by child, despite fact that mother, through whom they were sent, admitted not delivering them to child (In re Adoption of Hedrick, 674 N.E.2d 1256 (Ohio Ct. App. 1996)); two support payments totaling $70, made within 1 week prior to stepfather’s filing of adoption petition, only support given by natural father within statutory period (In re Serre, 665 N.E.2d 1185 (Ohio Misc. 1996)); record contained ample evidence that father was financially able to make support payments but failed to do so (In re Adoption of McDermitt, 408 N.E.2d 680 (Ohio 1980)); father’s sole support during statutory period was $20 in support, a $300 payment to child’s psychologist, and purchase of health insurance policy that was not revealed to child or mother (In re Adoption of Knight, 647 N.E.2d 251 (Ohio Ct. App. 1994)); father made one or two token support payments immediately prior to filing of petition (In re Adoption of Kilbane, 719 N.E.2d 1012 (Ohio Ct. App. 1998)); father attempted to telephone child once, but child did not want to speak to him; neither mother nor child prevented or communication (In re Adoption of Ramos, 2002 Ohio App. LEXIS 1121 (Ohio Ct. App. 2002)); although mother ignorant of law requiring support and child was housed by someone else, mother’s failure to support child not justifiable; her consent to adoption not required under circumstances (In re Adoption of Kuhlmann, 649 N.E.2d 1279 (Ohio Ct. App. 1994)). Father was incarcerated but despite income above the level of his ordered child support, failed to pay any support for three years (IN RE: ADOPTION OF A. M. W. and R. A. W., 2008 Ohio 1456; 2008 Ohio App. LEXIS 1269 (Ohio Ct. App. 2008)
• Non-Justifiable Failure to Support or Communicate Not Found Where:
Father made non-monetary gifts of clothing, shoes, diapers and other necessary items within year preceding filing of adoption petition by child’s grandparents and father exercised visitation rights; although such gifts may not constitute “maintenance or support” if not needed by child, under facts of case, gifts should have been considered as support (In re McNutt, 732 N.E.2d 470 (Ohio Ct. App. 1999)); money was intercepted from father’s income tax return for benefit of child, even though such payment was not made voluntarily (In re Adoption of Kessler, 622 N.E.2d 354 (Ohio Ct. App. 1993)); father’s only income was minimal welfare payment, and he thus had justifiable cause for non-support (In re Adoption of Masa, 492 N.E.2d 140 (Ohio 1986)); threats to father by custodial mother after his attempts to visit children and mother’s refusal to permit him visitation made his lack of communication justifiable (In re Adoption of Hupp, 458 N.E.2d 878 (Ohio Ct. App. 1982)); father’s incarceration made non-communication justifiable where father attempted to communicate through letters and telephone calls, but custodial mother threw letters away and refused calls; in determining whether failure justified, court not restricted to one year period immediately preceding filing of adoption petition, but may consider prior relevant circumstances (In re Adoption of Lauck, 612 N.E.2d 459 (Ohio Ct. App. 1992)) (see also In re Adoption of Schoeppner, 345 N.E.2d 608 (Ohio 1986) (fact of incarceration does not, in itself, constitute willful failure to communicate or support as a matter of law)); parent provided support for child for four week period prior to filing of adoption petition and visited with children during chance meeting less than one year prior to filing (In re Adoption of Anthony, 449 N.E.2d 511 (Ohio Ct. App. 1982)); father had one chance encounter with son that involved conversation, interaction and hugging (In re Tscheiner, 752 N.E.2d 292 (Ohio Ct. App. 2000)); natural mother presented evidence of long illness, attempts to complete education and institution of payroll withholding for child’s support within statutory period (In re Adoption of Knapp, 2002 Ohio App. LEXIS 926 (Ohio Ct. App. 2002)).
Form of Consent
Dismissal of one adoption petition does not invalidate consent by natural parent given in connection with that petition; original consent valid in later adoption proceeding, if not properly withdrawn prior to later proceeding. In re Adoption of Koszycki, 728 N.E.2d 437 (Ohio Ct. App. 1999).
Withdrawal of Consent
After signing consent form relinquishing custody of their child to court and agreeing to placement of child with agency for care, control and “any purpose, including the placement for adoption,” natural unmarried parents appealed final order of juvenile court divesting them of parental rights and filed for writ of habeas corpus with county court of appeals to compel return of child. Appeal and habeas corpus action were filed subsequent to petition for adoption of their child being filed with another county’s probate court, but prior to a final order of adoption being entered by that court. Appeals court vacated order of juvenile court terminating parental rights and ordered return of child. Probate court, meanwhile, entered a final order of adoption. Orders of both courts were appealed and consolidated. Ohio Supreme Court held that natural parents had given valid consent for adoption and that probate court had jurisdiction to enter final order of adoption. Morrow v. Family & Comm. Serv., 504 N.E.2d 2 (Ohio 1986). In later case, mother unsuccessfully filed for a writ of habeas corpus to have permanent surrender of her child set aside. Ohio Supreme Court affirmed denial of that petition in McGinty v. Jewish Children’s Bureau, 545 N.E.2d 1272 (Ohio 1989), citing Morrow for rule that once final determination is made that consent validly given, basis removed for habeas corpus attack on subject matter jurisdiction of court ordering adoption.
Probate court held to have jurisdiction to enter final order of adoption where consent given by natural parents before juvenile court found valid as properly executed and freely given. Unmarried natural parents were of age, had nearly completed college, had considered adoption even prior to the birth of the child, and were informed before the court of their parental rights and consequences of signing consent form. Morrow v. Family & Comm. Serv., 504 N.E.2d 2 (Ohio 1986); see also In re Adoption of Zschach, 665 N.E.2d 1070 (Ohio 1996) (mother’s consent not obtained by duress, despite fact that consent was based, in part, on plan of mother and adoptive parents to limit involvement of putative father with child but permit mother’s participation in child’s upbringing. Mother had herself contacted three sets of potential adoptive parents and admitted in deposition that consent freely given).
Fact that natural father consented to adoption in exchange for reduction of criminal non-support charge held not to constitute undue influence or duress invalidating consent. Counsel for father present when agreement entered, father informed of rights and consequences of consent, prosecution did not threaten criminal charges to gain advantage since charges already pending, and father agreed to consent before petition to adopt was filed. Gatley v. Weightman (In re Brianna P.), 742 N.E.2d 728 (Ohio Ct. App. 2000).
Withdrawal of consent held not in best interest of child where natural mother overly susceptible to family pressures and reliant on extended family for care of child and child had bonded with adoptive family with whom he was placed at six days of age. In re Adoption of Infant Boy, 573 N.E.2d 753 (Ohio Ct. app. 1989).
Consent and permanent surrender agreement held invalid where Department for Human Services applied undue influence on 15 year old unmarried biological mother and mother received no counseling prior to surrender. Marich v. Knox County Dept. of Human Servs., 543 N.E.2d 776 (Ohio 1989).
Mother agreed to permanent surrender if county agency placed child with mother’s cousin for adoption with mother retaining visitation rights. Court granted agency permanent custody. Child was placed with cousin, who later decided not to adopt. Mother moved for relief from order of placement. Trial court denied motion; appeals court reversed, finding consent to surrender involuntary where mother did not understand her rights and lacked full knowledge of facts and consequences when she gave consent. In re Dunn, 656 N.E.2d 1341 (Ohio Ct. App. 1995).
Consent invalid where mother relied on misrepresentations of adoptive parents’ attorney that consent could be withdrawn within 6 months for any reason, inaccurate statement by magistrate that granting of a motion to withdraw consent was dependent on “for good cause shown” rather than “best interest of the child” standard, and failure of magistrate to question mother’s comprehension of adoption process and consequences of consent. In re Jiminez, 736 N.E.2d 477 (Ohio Ct. App. 1999).
The COURT OF APPEALS OF OHIO, FOURTH APPELLATE DISTRICT, HOCKING COUNTY, affirmed an order of the Hocking County probate court that denied a birth father’s request to withdraw his consent to the adoption of his child by the maternal grandmother. The father had placed the child in legal custody with the grandmother, after which he was convicted of multiple offenses and sentenced to three consecutive life terms. The grandmother filed a petition to adopt the child; at a hearing on the petition the father, appearing by telephone, consented to the adoption on condition he receive a yearly photograph and school reports on the child. The trial court granted the adoption petition. The father subsequently sought to withdraw consent, and the trial court denied relief. On appeal, the court of the appeals, noting that the father failed to provide transcripts or an alternate statement of the proceedings as required by appellate rules, presumed the regularity of the trial court proceedings and the validity of its decisions, and found that the father’s appearance by telephone at the adoption hearing substantially complied with ORC Ann. 3107.081(A). IN THE MATTER OF THE ADOPTION OF C.M.H., 2008 Ohio 1694; 2008 Ohio App. LEXIS 1462 (Ohio Ct. App. 2008)
Procedure
Representation of Parties
No conflict of interest found where birth mother’s attorney received attorneys’ fees for adoption work from adoptive parents. Statute permitting payment by adoptive parents of attorneys’ fees in connection with adoption construed to not only require adoptive parents to account for such payments but also to permit adoptive parents to pay fees of birth mother. However, in addition to informing mother that adoptive parents will pay attorneys’ fees, attorney must fully disclose any potential conflict of interest that could arise from such arrangement. In re Adoption of Banda, 559 N.E.2d 1373 (Ohio Ct. App. 1988).
While appointment of GAL is not specifically required by statute, court must carefully consider motion for appointment of a GAL in light of circumstances of each case. Denial of such motion by mother opposing adoption of her child by her parents held to be reversible error, where natural father was dead and GAL could have focused on issues such as age of adoptive parents and whether natural mother had reformed her lifestyle so that court could fully consider what disposition would be in best interest of child. In re Adoption of Howell, 601 N.E.2d 92 (Ohio Ct. App. 1991).
Notice Rights
The Supreme Court of Ohio certified a conflict among appellate districts as to whether ORC Ann. § 3107.11(A) requires parties to whom consent notice is required to be given to be given notice both of the consent hearing and of the best interest hearing. In affirming the ruling of the court of appeals, the Supreme Court held that the notice given to the birth father was sufficient under the statute because the original notice of the filing of the adoption petition did not need to specify the dual issues to be addressed at the hearing and the trial court was not required to did not need to hold a separate best interest hearing. The Court concluded that such notice need only to notify the birth parent of the time and place of any hearing on a petition for adoption of his or her biological child. However, if the trial court had held more than one hearing on the petition, ORC Ann. § 3107.11(A) would have required service of notice on the biological father. In re Adoption of Walters, 859 N.E.2d 545 (Ohio 2007)
Form and Filing of Petition
Appeals court held that trial court did not err in holding custodial affidavit not required for petition to adopt filed under ORC Ann. 3107.05. Further, incorrect placement date on petition did not cause prejudice. Court noted confusion largely attributable to fact that petition used was same for all adoptions, including private, agency and step-parent adoptions. In re Adoption of Howell, 601 N.E.2d 92 (Ohio Ct. App. 1991).
Investigation of Placement
Final decree of adoption may not be issued until child has been in adoptive placement for at least 6 months; however, date will start from date of petition rather than date of actual residence of child in prospective adoptive home where mother placed child in her parents’ home for temporary care, and not for purposes of adoption. Failure to follow statutory procedure for independent adoption was not prejudicial error under circumstances. In re Adoption of Howell, 601 N.E.2d 92 (Ohio Ct. App. 1991).
Failure to include name of investigator on report of adoptive home in adoption proceeding initiated by grandparents was not prejudicial error where failure was mere clerical oversight and report was duly considered by court. In re Adoption of Howell, 601 N.E.2d 92 (Ohio Ct. App. 1991).
Investigation report conducted pursuant to ORC Ann. 3107.12 to be given great weight by probate court in determination whether to grant adoption petition, although final responsibility for determining best interest of child remains with court. In re Adoption of Labo, 546 N.E.2d 1384 (Ohio Ct. App. 1988).
Probate court’s use of “abuse of discretion” standard in its review of county department for human service’s refusal to consent to adoption constituted reversible error. Courts have exclusive and original jurisdiction over adoption proceedings, which is not impaired by a certified adoption organization’s refusal to consent to adoption. Court’s responsibility is to consider agency’s findings in light of all evidence before it and render decision that is in best interest of the child. In re Adoption of Yoder, 577 N.E.2d 692 (Ohio Ct. App. 1989).
It is abuse of discretion for court to enter adoption order not based on best interest of child. In re Adoption of Ridenour, 574 N.E.2d 1055 (Ohio 1991). Such determination is made on case by case basis with court considering all relevant evidence. In re Adoption of Charles B., 552 N.E.2d 884 (Ohio 1991).
Court considering adoption petition must consider whether petitioner is qualified to care for child and whether best interest of child will be promoted by adoption. Best interest of child not served by denial of adoption because court concerned that single adoptive mother’s relationship within long term live in domestic partner not as stable as that of “ideal” two parent family. In re Taylor, 2002 Ohio App. LEXIS 2783 (Ohio Ct. App. 2002).
Biological father challenged order granting stepfather’s petition to adopt children on grounds that expert witness who testified that child was anxious to be adopted and that adoption was in child’s best interest did not question father as to his relationship with children, despite his availability. Trial court previously determined father’s consent not required because he had not supported or communicated with child for one year period preceding filing of adoption petition, but he was still entitled to participate in assessment conducted subsequent to consent hearing. Order granting petition reversed; father did not have meaningful opportunity to participate in best interest phase of proceedings. In re Adoption of Wagner, 690 N.E.2d 959 (Ohio Ct. App. 1997) (noting change in ORC Ann. 3107.12 in 1998 that eliminated requirement of pre-finalization assessment in stepparent adoptions); see also In re Adoption of Jorgenson, 515 N.E.2d 622 (Ohio Ct. App. 1986) (even if consent held not to be required, parent still is entitled to notice of and retains right to participate in hearing on whether proposed adoption is in best interest of child).
Administrative policy barring white couple from adopting black child violated equal protection guarantees. Trial court abused discretion by using race as a determining factor on best interest of child in adoption proceedings, at recommendation of agency. Cultural heritage may be considered in determining best interest, but other factors must also be considered, including adoptive parents’ ability to care for child, safety and security of adoptive environment, and ability of adoptive parents to adequately provide for child’s racial and cultural needs and foster positive sense of racial identity. In re Moorehead, 600 N.E.2d 778 (Ohio Ct. App. 1991).
Hearing on Petition
After reversing probate’s court’s dismissal of adoption petition and holding that natural parents’ consent to adoption not required, appeals court remanded case to trial court directing that natural parents receive notice of best interest hearing. In re Kuhlmann, 649 N.E.2d 1279 (Ohio Ct. App. 1994).
Juvenile court has wide discretion to accord party status in custody proceeding; court did not abuse discretion by permitting adoptive parents to remain as parties in custody hearing despite their ineligibility to adopt. In re Hitchcock, 696 N.E.2d 1090 (Ohio Ct. App. 1996).
Natural parent not entitled to participate as “party” in best-interest hearing after determination made that parent’s consent to adoption not required. Hess v. Bolden, 2002 Ohio App. LEXIS 108 (Ohio Ct. App. 2002) (but see In re Adoption of Jorgenson, 515 N.E.2d 622 (Ohio Ct. App. 1986) (even if consent not required, such parent still entitled to notice of and retains right to participate in hearing on whether proposed adoption is in best interest of child).
Privacy of Proceedings
Contested Adoption
Finality of Adoption Decree
Natural mother’s appeal still timely where clerk failed to serve her with notice of date interlocutory decree of adoption would become final. 30 day period for filing appeal did not begin to run in absence of such service. In re Fetzer, 692 N.E.2d 219 (Ohio Ct. App. 1997).
Trial court’s vacation of final decree and interlocutory order of adoption more than four years after entry not manifest miscarriage of justice where biological mother’s constitutional rights violated by adoptive parents’ failure to use reasonable diligence to discover mother’s address when petition filed. Mother left child with adoptive parents, moved out of state, and failed to contact child for several years, but was still entitled to notice of proceedings. ORC Ann. 3107.16(B), which precludes collateral attacks on adoption decrees more than one year after entry of decree, unconstitutional as applied to facts of case. However, vacation of adoption decree had no effect on order giving adoptive parents temporary custody, which remained in full force and effect. In re Adoption of Knipper, 507 N.E.2d 436 (Ohio Ct. App. 1986. See also In re Rabitan, 615 N.E.2d 1099 (Ohio Ct. App. 1992) (distinguishing Knipper exception to one year finality rule in case where natural mother learned of adoption proceedings 11 months after petition filed, but took no action to object until after one year period expired); In re Fenimore, 2000 Ohio App. LEXIS 209 (Ohio Ct. App. 2000) (citing Knipper in holding that lack of adequate notice of adoption proceedings constituted violation of due process that precluded application of statute barring challenge to adoptions made more than one year after adoption final).
Appeals
In order to contest adoption, putative father who signed child’s birth certificate must file written objection. Father’s consent to adoption conditioned on his continued visitation rights held not to be valid written objection, nor was his later motion for relief from interlocutory order of adoption. Under these circumstances, father not deprived of due process notice and hearing rights prior to entry of final order of adoption which deprived him of visitation rights. Adoption statutes specifically prohibit courts from granting visitation rights to relatives that will survive final adoption decree, and father’s rights were adequately protected by statutory scheme affording him right to object, which he failed to properly utilize. In re Adoption of Zschach, 665 N.E.2d 1070 (Ohio 1996).
Notice consisting of letter about proposed adoption, which included consent form, sent by natural mother’s attorney to putative father one month prior to birth of child and later service of adoption petition on putative father satisfied due process notice requirements. Putative father did not take any requisite steps under statute to preserve his rights; dismissal of untimely objection therefore justified. In re Adoption of Dearing, 648 N.E.2d 57 (Ohio Ct. App. 1994).
Natural father’s untimely objection to adoption properly overruled and his consent to adoption not required, where he did not satisfy criteria for status as father under ORC Ann. 3107.06(B) and had not taken steps under ORC Ann. 3107.06(F) to preserve putative father rights. No merit to due process claim that he was entitled to special notice of proposed adoption and need for timely filing of objection because he was undisputed father of child and stationed out of state in military. In re Adoption of Hudnall, 594 N.E.2d 45 (Ohio Ct. App. 1991).
Stepfather appealed trial court’s judgment that consent of putative father to adoption required under ORC Ann. 3107.07(B) because putative father did not willfully abandon or fail in his common law duty to provide care and support to child. Appeals court affirmed, noting that putative father’s objection to adoption petition, filed after 30 day period, was still timely because of father’s incarceration and because notice of petition stated wrong deadline for filing objection. In re Adoption of Bowes, 664 N.E.2d 963 (Ohio Ct. App. 1995).
Effect of Adoption Decree
Although entry of adoption decree relieves biological parent of adoptee of all parental responsibilities and terminates all legal relationships between adoptee and his/her relatives (ORC Ann. 3107.15(A)(1)), such decree does not operate to relieve parent of past due child support arrearages, regardless of whether such arrearages were reduced to judgment prior to adoption. Bercaw v. Bercaw, 543 N.E.2d 1197 (Ohio 1989).
Grant of stepmother’s adoption petition by probate court over objection of biological mother divested domestic relations court of jurisdiction to proceed on mother’s motion for visitation rights. State ex rel. Kaylor v. Bruening, 684 N.E.2d 1228 (Ohio 1998).
Under ORC Ann. 3107.15, adoption order creates parent-child relationship for all purposes, including inheritance, and applies retroactively to any instrument under which gift given regardless of its date, unless instrument expressly excludes adopted persons. Fifth Third Bank v. Crosley, 669 N.E.2d 904 (Ohio Misc. 1996).
Vested interest of children in irrevocable trust set up with proceeds from action for wrongful death of their natural mother did not terminate when children subsequently adopted. Decree entered under adoption statute, which severed all familial ties between adoptees and natural mother’s family, had no bearing on provisions of trust agreement. Sawyer v. Lebanon Citizens National Bank, 664 N.E.2d 571 (Ohio Ct. App. 1995).
Adult adopted under ORC Ann. 3107.02(B)(3) is a “child” by definition under ORC Ann. 3107.01(A), with the same status and inheritance rights as if adopted as a minor, absent language in will prohibiting inheritance by adopted child. Solomon v. Central Trust Co. of Northern Ohio, 584 N.E.2d 1185 (Ohio 1992).
Expenses and Accountings
Although statute requires filing of payments made by adoptive parents on behalf of adoptee, delay in filing by grandparents who sought to adopt grandchild until 3 days after hearing on adoption petition was not prejudicial error. Major concern of accounting requirement, to avoid black market buying and selling of babies, was not implicated. In re Adoption of Howell, 601 N.E.2d 92 (Ohio Ct. App. 1991).
Although a financial incentive for adoption may unduly influence birth parent’s decision whether to consent to adoption, prospective adoptive parents’ agreement to pay birth mother’s attorneys fees did not raise issue about whether mother’s consent was given freely and voluntarily. In re Adoption of Banda, 559 N.E.2d 1373 (Ohio Ct. App. 1988).
Rights of Unmarried Fathers
An unmarried father signed a child's birth certificate and entered into a visitation agreement with the child’s mother. After a conflict arose between them, the mother refused him visits with the child and the birth father filed a complaint asking the juvenile court to enforce the visitation agreement. Hearings regarding paternity were continued pending genetic testing required by juvenile court rules; however, thirteen months after the mother ended the visitation agreement with the child’s father, her husband filed his adoption petition, alleging the father had failed to communicate with or support the child. The probate court ruled that the biological father's consent to the adoption of his child was not required under ORC Ann. § 3107.07(A). The biological father appealed, and the Court of Appeals for Lake County reversed the probate court's order. The Supreme Court of Ohio, in affirming the court of appeals, held that when an issue concerning the parenting of a child is pending in a juvenile court, the probate court must refrain from proceeding with the adoption of that child and refrain from addressing the matter until adjudication in the juvenile court. In re Pushcar, 853 N.E.2d 647(Ohio 2006)
Rights of Biological Relatives
Trial court erred in denying adoption petition filed by foster parents with whom child had resided for four years solely because of difficulty adoption would pose for biological grandparents’ future visitation. Grandparents’ rights and attitude toward adoption were not properly considered as factors in whether adoption petition should be granted, nor should grandparents have been permitted to intervene in proceeding. In re Adoption of Ridemour, 574 N.E.2d 1055 (Ohio 1991).
Court of appeals erred in denying motion for writ prohibiting trial court from proceeding on post-adoption motion for visitation filed by birth mother. ORC Ann. 3107.15 divests courts of jurisdiction to enter order granting visitation rights that will survive adoption decree to any biological relative, including birth parent, in adoptions by relatives or non-relatives of adoptee. State ex rel. Kaylor v. Bruening, 684 N.E.2d 1228 (Ohio 1997). See also In re Adoption of Ridemour, 574 N.E.2d 1055 (Ohio 1991) (biological grandparents have no rights to visitation after non-relative adoption); Sweeney v. Sweeney, 642 N.E.2d 629 (Ohio 1994) (law precludes court from granting post-adoption visitation rights to former grandparents after step-parent adoption; dissent chastised majority for failing to recognize important public policy reasons for permitting grandparent visitation if it is in the best interest of the child); and In re Adoption of Zshach, 665 N.E.2d 1070 (Ohio 1996) (biological relatives of adoptee have no right to visitation).
Appellant Geauga County Job and Family Services was granted temporary custody of a child born prematurely who tested positively for cocaine after the juvenile court adjudicated the child as abused and dependent and authorized placement in a foster home. Appellant sought permanent custody after the parents were unsuccessful in demonstrating compliance with their case plan goals after three court hearings. The child's paternal grandfather and step-grandmother sought custody of the child, with whom they had visitation privileges. The trial court determined the child's best interest was served by giving permanent custody to with the agency, as the child's foster parents expressed an interest in adopting him. The court of appeals reversed, finding that temporary custody should have been continued to properly evaluate the possibility of custody with the grandfather. The Supreme Court of Ohio reversed the court of appeals, holding that the potential placement with the grandparents was not entitled to more weight than any other factor in the best interest determination and that the trial court had properly weighed the best interest factors under ORC Ann. § 2151.414(D). In re Schaefer, 857 N.E.2d 532 (Ohio 2006)
Foster Caregiver Rights
Post-Adoption Contact (Open Adoption)
Open adoptions, which generally allow for birth parent visitation, are provided for by statute. However, where order granting children’s services agency permanent custody and providing for open adoption did not specifically provide for visitation between adoptive child and her biological sister, biological mother’s objection to order properly overruled. Open adoption agreement mother signed clearly did not provide for such visitation. In re Conley, 1999 Ohio App. LEXIS 2974 (Ohio Ct. App. 1999).
Safe Surrender Laws
Records Access
Adoptive parents sued adoption agency and state department of health, alleging that agency materially misrepresented adoptive child’s medical and family history. Trial court’s order sustaining parents’ motion for access to confidential files of child affirmed on appeal. Cochran v. Northeast Ohio Adoption Serv., 621 N.E.2d 470 (Ohio Ct. App. 1993).
Although public may have some legitimate interest in access to juvenile proceedings, public has no qualified right of access to proceedings to determine whether child is abused, neglected or dependent. Decision whether to grant public access to be made by trial judge based on totality of circumstances; such decision will not be disturbed absent abuse of discretion. Similarly, trial court must balance risk of harm to child and damage of reputation of litigants with public interest in conduct of trial and media right to report news in deciding whether to restrict parties from public disclosure of such proceedings. In re T.R., 556 N.E.2d 439 (Ohio 1990).
On its own motion, trial court entered order prohibiting adoption agency from disseminating adoption information to adoptees, birth parents, and adoptive parents. Agency filed for writ of prohibition to prevent enforcement of order. Appellate court denied writ. Ohio Supreme Court affirmed, holding that trial court had duty under ORC Ann. 3107.17 to protect confidentiality of adoption records. State ex rel. Wolff v. Donnelly, 492 N.E.2d 810 (Ohio 1986).
Ohio Department of Health (“ODH”), as required by law, forwarded a copy of adoptee’s new birth record to local registrar after adoption. Local registrar did not destroy old birth records, which enabled birth father to locate child. Adoption agency and adoptive parents sued ODH. Trial court’s grant of summary judgment in ODH’s favor affirmed on appeal. ODH owed no special duty to ensure that local registrar destroys old records after new birth record transmitted. Grothouse v. Ohio Dept. of Health, 608 N.E.2d 1183 (Ohio Ct. App. 1992).
Adoptive parents sued adoption agency and state department of health, alleging that agency materially misrepresented adoptive child’s medical and family history. Trial court’s order sustaining parents’ motion for access to confidential files of child affirmed on appeal. Cochran v. Northeast Ohio Adoption Serv., 621 N.E.2d 470 (Ohio Ct. App. 1993).
Recognition of Foreign Decrees
Child was born in South Africa to Canadian citizen who resided in Ohio when she became pregnant by Ohio resident. Adoption finalized according to South African law, which requires consent only of mother of illegitimate child. After adoption became final, father learned of birth and instituted parentage action in Ohio. Mother moved to dismiss action, claiming court had no jurisdiction because of entry of final decree by South African court. Court overruled motion and mother successfully filed for writ of prohibition in court of appeals. On appeal of that order, Ohio Supreme Court held that entry of writ violated public policy and that foreign decree of adoption did not have res judicata effect divesting trial court of jurisdiction over parentage proceeding. Father deemed entitled to notice of proceedings and opportunity to be heard prior to adoption. To be recognized and effective, foreign adoption decree must not be repugnant to Ohio law. State ex rel. Smith v. Smith, 662 N.E.2d 366 (Ohio 1996).
Adoption of child by stepfather in Honduras not verified and approved by Immigration and Naturalization Service, and thus did not meet statutory requirements for recognition in Ohio. Further, stepfather’s registration as father of child in Honduras not entitled to full faith and credit under Ohio law to establish adoptive paternity in absence of recognized adoption decree. Walsh v. Walsh, 764 N.E.2d 1103 (Ohio Ct. App. 2001).
Financial Issues
Child’s cerebral palsy and other special needs not disclosed to adoptive parents until after adoption finalized. Adoptive mother later filed for retroactive adoption assistance benefits. County’s denial of benefits affirmed by Ohio Department of Human Services on grounds that adoption had been finalized prior to effective date of state law implementation of Federal Adoption Assistance and Child Welfare Act of 1980. Trial court reversed and granted benefits. Appeals court reversed, holding that although adoption assistance could be awarded in adoption finalized prior to effective date of state law, that adoption incentive assistance was not necessary for this child’s adoptive placement because parents adopted child voluntarily. Ohio Dep’t. of Human Servs. v. Keene, 2000 Ohio App. LEXIS 1945 (Ohio Ct. App. 2000).
Equitable Adoption/Adoption by Estoppel
Although not adopting the doctrine of “equitable adoption,” Ohio Supreme Court construed wrongful death statute as permitting recovery from a tortfeasor by one who is neither natural nor adoptive parent where the claimant has performed parental obligations for a substantial period of time, the claimant and the child held themselves out as parent and child for a substantial period of time, the natural parents of the child disclaimed or abandoned parental rights, and the relationship of the claimant and the child was publicly recognized. Lawson v. Atwood, 536 N.E.2d 1167 (Ohio 1989).
Doctrine of equitable adoption not applicable in inheritance context. York v. Nunley, 610 N.E.2d 576 (Ohio Ct. App. 1992).
Assisted Reproduction Issues
Petitioner in parentage action, a woman who entered unwritten surrogacy agreement with another woman who subsequently bore child filed action seeking to be declared legal mother of surrogate child. Appeals court affirmed trial court’s dismissal of action because petitioner did not have standing to prosecute action. She admittedly was not biological mother and Ohio law precludes one from claiming status of adoptive parent only through oral agreement. Seymour v. Stotski, 611 N.E.2d 454 (Ohio Ct. App. 1992).
Hospital where surrogate mother planned to deliver child for genetic parents informed parents that surrogate would be listed as mother on birth certificate and child would be considered illegitimate. Parents filed motion for declaratory judgment that is was unnecessary for them to adopt child to assume status of legal parents. Probate court held that genetic parents were natural and legal parents of child born of surrogacy arrangement and that adoption proceedings therefore not needed. Belsito v. Clark, 644 N.E.2d 760 (Ohio Misc. 1994).
Surrogate who carried eggs from a nonparty donor that had been artificially inseminated with the father's semen gave birth to triplets. The parties had previously entered into a contract with the donor which provided that the surrogate mother would not try to establish a parent-child relationship with a child conceived under the contract and would initiate a proceeding to terminate her parental rights. A custody dispute after the triplets' birth prompted the father to file a breach of contract action. The trial court’s ruling that the contract was unenforceable The Supreme Court, affirming the ruling of the court of appeals, concluded that contracts such as the one at issue did not violate Ohio's public policy since no policy on such contracts had been enunciated by the legislature. The Supreme Court reversed and remanded the breach of contract ruling for a determination of whether a breach occurred and, if so, the extent of damages. J.F. v. D.B., 879 N.E.2d 740 (Ohio 2007).
Wrongful/Fraudulent Adoption
Adoptive parents sued adoption agency and state department of health, alleging that agency materially misrepresented adoptive child’s medical and family history. Trial court’s order sustaining parents’ motion for access to confidential files of child affirmed on appeal. Cochran v. Northeast Ohio Adoption Serv., 621 N.E.2d 470 (Ohio Ct. App. 1993).
“Wrongful adoption” action against county agency properly brought in common pleas court rather than court of claims since county is not “state” which may only be sued in court of claims, but political subdivision of state. Further, county agency not entitled to shield of sovereign immunity for fraudulent acts and misrepresentations of its employees. Claim was based on agency’s false representation to adoptive family that child was “big and healthy,” its misinformation regarding birth mother and background of child, and its concealment of child’s health problems at birth and poor medical prognosis for the future. Award of damages to parents for child’s medical expenses affirmed where parents proved each element of the tort of fraud. Burr v. Bd of Comm’rs, 491 N.E.2d 1101 (Ohio 1986).
“Injury” element of a claim of fraudulent adoption is loss of parenthood. Therefore, statute of limitations for purposes for such claim triggered when claimant discovers or should have discovered fraudulent loss of child’s custody, companionship, support and affection. Held that father did not need legal conclusion by court that child was his in order to trigger running of statute of limitations for claim of fraudulent adoption, only notice that child could be his. Copeland v. Delvaux, 623 N.E.2d 569 (Ohio Ct. App. 1993).
Actionable fraud found in placement and initial adoption proceedings where mother failed to disclose identity of father, thereby depriving him of proper notice. Mother had represented to natural father that she would give formal notice of any adoption proceeding, inducing him to take no steps toward asserting paternal rights. Father’s consent necessary under circumstances. In re Murphy, 557 N.E.2d 827 (Ohio Ct. App. 1988).
Appeals court affirmed trial Court’s order granting adoptive parents’ petition alleging adopted child was dependent because of uncontrollable behavior problems and ordered county department of human services to assume guardianship. Court affirmed order permitting reimbursement of parents for costs of treatment of child by county department of children and family services because parents adopted child in reliance on that agency’s fraudulent misrepresentations about child’s condition. In re Robert S., 647 N.E.2d 869 (Ohio Ct. App. 1994).
Ohio law does not recognize cause of action by adoptive parents against adoption agency for breach of contract for misrepresenting facts about adoptive child. Remedy is in cause of action in fraud. Allen v. Children’s Serv., 567 N.E.2d 1346 (Ohio Ct. App. 1990).
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