In re Adoption of G.V.

[Cite as In re Adoption of G.V., 126 Ohio St.3d 249, 2010-Ohio-3349.]

IN RE ADOPTION OF G.V. [Cite as In re Adoption of G.V., 126 Ohio St.3d 249, 2010-Ohio-3349.] When an issue concerning parenting of a minor is pending in the juvenile court, a probate court must refrain from proceeding with the adoption of that child — The determination of a parent-child relationship in the juvenile court proceeding must be given effect in the stayed adoption proceeding. (No. 2009-2355 — Submitted May 25, 2010 — Decided July 22, 2010.) APPEAL from the Court of Appeals for Lucas County, No. L-09-1160, 2009-Ohio-6338. __________________ PFEIFER, J. {¶ 1} In In re Adoption of Pushcar, 110 Ohio St.3d 332, 2006-Ohio- 4572, 853 N.E.2d 647, this court stated, "The issue presented for our review is whether a probate court must refrain from proceeding with the adoption of a child when an issue concerning the parenting of that child is pending in the juvenile court. We hold that, in such circumstances, the probate court must defer to the juvenile court and refrain from addressing the matter until adjudication in the juvenile court." Id. at ¶ 8. We consider our holding in Pushcar to be dispositive of the issue before us and affirm the judgment of the court of appeals. Facts and Procedural History {¶ 2} G.V. was born on October 29, 2007. His birth mother and legal father each executed a permanent-surrender agreement pursuant to R.C. 5103.15 in early November 2007. Appellee, Benjamin Wyrembek, timely registered with the Putative Father Registry, and he filed an action to establish parental rights in juvenile court in Fulton County on December 28, 2007. Appellants, Jason and

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Christy Vaughn, filed a petition for adoption in probate court in Lucas County on January 16, 2008. {¶ 3} The probate court stayed its adoption proceedings pending determination of paternity by the juvenile court in Lucas County, to which Wyrembek's action had been transferred. After all relevant parties had submitted to genetic testing, the juvenile court determined, by judgment entry dated March 17, 2009, that Wyrembek was the father of G.V., and it dismissed Wyrembek's action due to the pending adoption proceedings. {¶ 4} The probate court concluded that R.C. 3107.07(A) governed the adoption proceeding before it. Pursuant to that statute, an adoption can proceed without the consent of a parent who has failed without justifiable cause to communicate with or provide support for the child for a period of at least one year immediately preceding either the filing of the petition for adoption or the placement of the minor with the person petitioning for adoption. The court concluded that the one-year period could not begin to run against Wyrembek until his paternity had been established and found that the Vaughns had filed the petition for adoption prematurely. On appeal, the court of appeals affirmed the decision of the probate court. We accepted the Vaughns’ discretionary appeal. Analysis {¶ 5} "[T]he right of a natural parent to the care and custody of his children is one of the most precious and fundamental in law." In re Adoption of Masa (1986), 23 Ohio St.3d 163, 164, 23 OBR 330, 492 N.E.2d 140, citing Santosky v. Kramer (1982), 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599. Santosky has been characterized as "requiring a clear and convincing evidence standard for termination of parental rights because the parent's interest is fundamental but the State has no legitimate interest in termination unless the parent is unfit, and finding that the State's interest in finding the best home for the child does not arise until the parent has been found unfit." Cruzan v. Director,

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Missouri Dept. of Health (1990), 497 U.S. 261, 319, 110 S.Ct. 2841, 111 L.Ed.2d 224 (Brennan, J., dissenting). {¶ 6} "Few consequences of judicial action are so grave as the severance of natural family ties.” Santosky, 455 U.S. at 787, 102 S.Ct. 1388, 71 L.Ed.2d 599 (Rehnquist, J., dissenting). Because adoption terminates fundamental rights of the natural parents, "we have held that '* * * [a]ny exception to the requirement of parental consent [to adoption] must be strictly construed so as to protect the right of natural parents to raise and nurture their children.' " In re Adoption of Masa, 23 Ohio St.3d at 165, 23 OBR 330, 492 N.E.2d 140, quoting In re Schoeppner (1976), 46 Ohio St.2d 21, 24, 75 O.O.2d 12, 345 N.E.2d 608. With "a family association so undeniably important * * * at stake, "we approach the case before us "mindful of the gravity" of the circumstances and the long-term impact on all the concerned parties. M.L.B. v. S.L.J. (1996), 519 U.S. 102, 117, 117 S.Ct. 555, 136 L.Ed.2d 473. We turn now to our most recent pronouncement in this important and contentious area of the law. In re Adoption of Pushcar {¶ 7} In Pushcar, the child's mother married a man who was not the biological father of the child, and that man attempted to adopt the child. 110 Ohio St.3d 332, 2006-Ohio-4572, 853 N.E.2d 647. The natural father, who had not yet been determined to be the father, opposed the adoption, and the issue was whether his consent was necessary. We concluded that that father could not be shown to have failed to communicate with or failed to support his child for one year pursuant to R.C. 3107.07(A) until one year had elapsed from the time his paternity was established. Id. at ¶ 14. An integral part of our analysis was our holding that the probate court could not proceed with the adoption while "an issue concerning the parenting of that child is pending in the juvenile court." Id. at ¶ 8. {¶ 8} Although the case involved a relatively narrow issue, our holding was more general, as memorialized in the syllabus: "When an issue concerning

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parenting of a minor is pending in the juvenile court, a probate court must refrain from proceeding with the adoption of that child." It is clear that we did not intend our holding or analysis to be restricted to parenting issues implicated by R.C. 3107.07(A). Rather, our use of general language shows that we intended the holding to apply to all parenting issues pending in a juvenile court. Application of Pushcar {¶ 9} As in In re Adoption of P.A.C., 126 Ohio St.3d 236, 2010-Ohio- 3351, ___N.E.2d ___, the natural father in this case, Benjamin Wyrembek, attempted to establish paternity prior to the filing of an adoption petition. Wyrembek filed with the Putative Father Registry, something the natural father did not do in P.A.C. The probate court in this case stated, “[W]hen a parentage action is pending prior to the filing of the adoption petition, [it] must apply Pushcar [110 Ohio St.3d 332, 2006-Ohio-4572, 853 N.E.2d 647]. It must be logically assumed that the Supreme Court of Ohio intended the probate court to consider the findings of the juvenile court made while the adoption proceeding is being held in abeyance. In this case, the juvenile court has ruled that Mr. Wyrembek is the father of the child who is the subject of this adoption proceeding, therefore [this] Court hereby rules that for purposes of determining the necessity of Mr. Wyrembek's consent, he is to be deemed a legal father.” Based on the facts before it and its understanding of Pushcar, the probate court dismissed the adoption petition. We conclude that the probate court properly applied Pushcar and that the court of appeals properly affirmed the decision of the probate court. Conclusion {¶ 10} Accordingly, we affirm the judgment of the court of appeals. Judgment affirmed. LUNDBERG STRATTON, O’CONNOR, and O’DONNELL, JJ., concur. BROWN, C.J., and LANZINGER and CUPP, JJ., dissent.

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__________________ BROWN, C.J., dissenting. {¶ 11} Before a child can be adopted, R.C. 3107.06 requires that certain persons and entities consent to the adoption. These persons include the mother of the child, the father of the child, and, if applicable, the putative father of the child. R.C. 3107.06. R.C. 3107.01(H) defines “putative father”1 and R.C. 3107.06(B) defines “father”2 for the purposes of the adoption statutes. {¶ 12} Although consent is generally required from the persons enumerated in R.C. 3107.06, R.C. 3107.07 sets forth exceptions to the consent requirements. R.C. 3107.07(A) allows a court to find parental consent unnecessary when the parent has failed without justifiable cause to provide more than de minimis contact with the minor or to provide for the maintenance and support of the minor for a period of at least one year immediately preceding the

1. {¶ a} A “putative father” is defined as a man who may be a child’s father and to whom all of the following apply: {¶ b} “(1) He is not married to the child’s mother at the time of the child’s conception or birth; {¶ c} “(2) He has not adopted the child; {¶ d} “(3) He has not been determined, prior to the date a petition to adopt the child is filed, to have a parent and child relationship with the child by a court proceeding pursuant to sections 3111.01 to 3111.18 of the Revised Code [parentage statutes], a court proceeding in another state, an administrative agency proceeding pursuant to sections 3111.38 to 3111.54 of the Revised Code [administrative-determination-of-paternity statutes], or an administrative agency proceeding in another state; {¶ e} “(4) He has not acknowledged paternity of the child pursuant to sections 3111.21 to 3111.35 of the Revised Code.” (Emphasis added.) R.C. 3107.01(H).

2. {¶ a} A “father” is a man to whom any of the following apply: {¶ b} “(1) The minor was conceived or born while the father was married to the mother; {¶ c} “(2) The minor is his child by adoption; {¶ d} “(3) Prior to the date the petition was filed, it was determined by a court proceeding pursuant to sections 3111.01 to 3111.18 of the Revised Code [parentage statutes], a court proceeding in another state, an administrative proceeding pursuant to sections 3111.38 to 3111.54 of the Revised Code [administrative-determination-of-paternity statutes], or an administrative proceeding in another state that he has a parent and child relationship with the minor; {¶ e} “(4) He acknowledged paternity of the child and that acknowledgment has become final pursuant to section 2151.232, 3111.25, or 3111.821 of the Revised Code.” (Emphasis added.) R.C. 3107.06(B).

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filing of the adoption petition or the placement of the minor in the home of the petitioner. {¶ 13} Under R.C. 3107.07(B)(1), a putative father’s consent is unnecessary when he fails to register as the minor’s putative father with the Putative Father Registry not later than 30 days after the minor’s birth. R.C. 3107.07(B)(2) states that a putative father’s consent is not required when the court finds, after proper service of notice and hearing, that the putative father (1) is not the father of the minor, (2) has willfully abandoned or failed to care for and support the minor, or (3) has willfully abandoned the mother of the minor during her pregnancy and up to the time of her surrender of the minor or the minor’s placement in the home of the petitioner, whichever occurs first. {¶ 14} In the case before us, the primary issue is whether appellee Benjamin Wyrembek’s consent to the adoption is required. It is undisputed that Wyrembek timely registered with the Putative Father Registry. Accordingly, R.C. 3107.07(B)(2) should be applied to Wyrembek to determine whether his consent to the adoption is necessary. {¶ 15} In order to require the probate court to use the more exacting standards of R.C. 3107.07(A) in determining whether his consent is necessary, rather than the less stringent standards of R.C. 3107.07(B)(2), Wyrembek seeks to change his status in the adoption proceeding from putative father to father based on a finding made after the adoption petition was filed. Wyrembek contends that if a judicial proceeding to establish paternity has been filed in juvenile court prior to the filing of an adoption petition in probate court, the adoption proceeding must be stayed until the paternity proceedings are completed. Wyrembek further contends that the juvenile court’s paternity determination must be used by the probate court to determine the status and rights of the respective parties in the adoption proceeding.

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{¶ 16} The majority agrees with Wyrembek and holds that the adoption proceedings must be stayed pending completion of the juvenile court paternity proceedings, that the juvenile court’s finding of paternity must be recognized by the probate court, and that Wyrembek’s new status as “father” rather than “putative father” requires that the probate court apply the consent-to-adoption exception contained in R.C. 3107.07(A). In so holding, the majority fails to apply the unambiguous language of the relevant adoption statutes, erroneously relies on In re Adoption of Pushcar, 110 Ohio St.3d 332, 2006-Ohio-4572, 853 N.E.2d 647, and contravenes the express adoption policy established by the General Assembly. Statutory language {¶ 17} The majority’s opinion ignores the unambiguous statutory language that requires that participants’ status be determined at the time an adoption petition is filed. {¶ 18} The definition of “putative father” specifically provides that a man is a putative father if “[h]e has not been determined, prior to the date a petition to adopt the child is filed, to have a parent and child relationship” with the child through a court or administrative proceeding. (Emphasis added.) R.C. 3107.01(H). Similarly, the definition of “father” under R.C. 3107.06(B)(3) provides that to establish a parent-child relationship through court or administrative proceedings, the court or administrative determination must be completed “[p]rior to the date the [adoption] petition was filed.” In other words, when an adoption petition is filed, the statutes require the status of the parties involved to be ascertained at that time. {¶ 19} The statutes are absolutely clear that the child may be adopted without a putative father’s consent when he fails to register with the Putative Father Registry or to establish a parent-child relationship through one of the judicial or administrative means set forth in R.C. 3107.06(B) before the adoption

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petition is filed. The statutes also are absolutely clear that consent is required from a putative father who timely registers with the Putative Father Registry unless the exception set forth in R.C. 3107.07(B)(2) applies. Nothing in the adoption statutes provides for a stay of the adoption proceedings to allow for the filing of or completion of pending actions to establish paternity. Pushcar {¶ 20} The majority relies upon this court’s previous decision in In re Adoption of Pushcar, 110 Ohio St.3d 332, 2006-Ohio-4572, 853 N.E.2d 647, to support its holding in this case. But the majority’s reliance on Pushcar is misplaced. {¶ 21} Pushcar addressed the need for a stay of adoption proceedings when the party petitioning for adoption relies on R.C. 3107.07(A) to divest a father of his parental rights. This court held that in order for the R.C. 3107.07(A) exception to consent to apply, the petitioner must prove paternity, and a stay of the adoption proceeding was necessary to allow for the juvenile court to complete the proceedings to establish paternity. The adoption petition in this case did not allege that Wyrembek’s consent was not required under R.C. 3107.07(A), but instead asserted that Wyrembek’s consent was unnecessary based upon R.C. 3107.07(B). Therefore, there is no need to establish paternity for the purposes of R.C. 3107.07(A) and the reasoning of Pushcar is inapplicable to the facts currently before the court. {¶ 22} More importantly, Pushcar failed to address the relevant statutory language of the adoption statutes regarding the time at which a participant’s status is determined and was based in large part upon this court’s decision in In re Adoption of Sunderhaus (1992), 63 Ohio St.3d 127, 585 N.E.2d 418, which was decided prior to the creation of the Putative Father Registry and the enactment of the accompanying amendments to the adoption statutes. Am.Sub.H.B. No. 419, 146 Ohio Laws, Part III, 4660. In Sunderhaus, this court found that the ability of

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a court to dispense with the consent requirement under R.C. 3107.07(A) is dependent upon the establishment of a parent-child relationship and that establishing the parent-child relationship requires a judicial ascertainment of paternity. Id. at 130. {¶ 23} This analysis is consistent with the statutory scheme in place at the time.3 At the time Sunderhaus was decided by this court, the only statutorily available method for an unwed biological father to establish a parent-child relationship was through a judicial proceeding. By relying on Sunderhaus, Pushcar failed to recognize that new, alternative statutory methods existed for an unwed biological father to establish a parent-child relationship in addition to a judicial determination. {¶ 24} The Pushcar majority’s reliance on Sunderhaus is further called into question given the unclear nature of the facts of Pushcar. Pushcar’s facts suggest that the natural father already had an established parent-child relationship prior to the filing of the juvenile court proceedings. Pushcar, 110 Ohio St.3d 332, 2006-Ohio-4572, 853 N.E.2d 647 at ¶1, 4. It is also unclear in Pushcar whether the juvenile court proceeding was initiated to establish a parent-child relationship judicially or to enforce the natural father’s visitation rights based upon his established parent-child relationship. Id. {¶ 25} Because the analysis of Pushcar fails to address the relevant statutory provisions, relies upon Sunderhaus, and is based on factual circumstances that are unclear from the opinion, I find that Pushcar’s holding is of limited value and should not be extended beyond the R.C. 3107.07(A) context. The General Assembly’s adoption policy

3. At the time, R.C. 3107.06 provided that a father’s consent to adoption was required “if the minor was conceived or born while the father was married to the mother, if the minor is his child by adoption, or if the minor has been established to be his child by a court proceeding.” Am.Sub.H.B. No. 790, 142 Ohio Laws, Part III, 5323, 5333.

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{¶ 26} The majority’s holding is also contrary to the public policy clearly expressed in the current adoption statutes. Justice Cupp’s dissent correctly sets forth the legislative history and objectives of the 1996 amendments to Ohio’s adoption statutes. {¶ 27} The express legislative direction contained within the adoption statutes requires determination of the status of the participants at the time the adoption petition is filed. This advances the goals of the 1996 amendments to the adoption statutes by avoiding the delays inherent in allowing ancillary litigation regarding status to complete before considering the adoption petition. While the majority may disagree with the statutory scheme and its potentially harsh result in these circumstances, it is not this court’s place to disregard clear statutory language to come to a result that the majority finds more equitable in this case. This court should respect the policy decisions made by the General Assembly in enacting the amended adoption statutes and apply the statutory language as written. Conclusion {¶ 28} Wyrembek timely registered with the Putative Father Registry, but failed to establish a parent-child relationship before the adoption petition was filed. Therefore, Wyrembek is a putative father for the purposes of the adoption proceedings. The probate court should have conducted a hearing to determine whether Wyrembek’s consent was necessary in accordance with R.C. 3107.07(B)(2). Staying the probate court’s adoption proceedings for a juvenile court proceeding to establish paternity is inappropriate in light of the clear directive of the adoption statutes and unnecessarily delays adoption proceedings contrary to the intent of the General Assembly. {¶ 29} For the foregoing reasons, I would reverse the judgment of the Sixth District Court of Appeals and remand the cause for further consideration. __________________

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LANZINGER, J., dissenting. {¶ 30} I respectfully dissent based on my dissent in In re Adoption of P.A.C., 126 Ohio St.3d 236, 2010-Ohio-3351, ___ N.E.2d ___. {¶ 31} Although Wyrembek filed a parentage action to determine whether he had a parent-child relationship with G.V., that action had not concluded when the adoption petition was filed. Therefore, under the plain language of R.C. 3107.01(H), Wyrembek remains within the definition of “putative father,” and R.C. 3107.07(A) does not apply. Because Wyrembek had timely registered as a putative father, the trial court should have held a hearing to determine whether his consent is not required under R.C. 3107.07(B)(2). {¶ 32} For the foregoing reasons, I would reverse the judgment of the Sixth District Court of Appeals and remand the case to the probate court for further proceedings. __________________ CUPP, J., dissenting. {¶ 33} Our role with regard to statutory interpretation is to apply clear and unambiguous statutes as written and to engage in no further interpretation. State ex rel. Burrows v. Indus. Comm. (1997), 78 Ohio St.3d 78, 81, 676 N.E.2d 519. It is our duty to enforce a statute as written and to not add or subtract language from the statute. In re Adoption of Holcomb (1985), 18 Ohio St.3d 361, 366, 18 OBR 419, 481 N.E.2d 613. And I agree with Chief Justice Brown’s analysis regarding the plain and unambiguous requirements of the statutes applicable to this matter. {¶ 34} In this case, appellant registered on the Putative Father Registry. However, appellant failed to have determined by a court or administrative proceeding prior to the date the adoption petition was filed that he had a parent- child relationship with the child. R.C. 3107.06(B), 3107.01(H), and 3107.07(B)(1). The adoption statutes require that the statuses of the parties in an adoption proceeding involved be ascertained at the time the adoption petition is

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filed. Consequently, R.C. 3107.07(A), which sets out when a parent’s consent to adoption is not required, is not applicable here, because appellant’s status at the time the adoption petition was filed was as a putative father. This result may seem harsh. Nevertheless, appellant is a “putative father,” as that term is defined in R.C. 3107.01(H), and his consent is necessary, R.C. 3107.06(C), unless one of the R.C. 3107.07(B)(2) exceptions applies to negate his right to consent. {¶ 35} I also agree with Justice Lanzinger’s conclusion that the holding in In re Pushcar, 110 Ohio St.3d 332, 2006-Ohio-4572, 853 N.E.2d 647, should be applied herein. The Pushcar syllabus plainly states that “[w]hen an issue concerning parenting of a minor is pending in the juvenile court, a probate court must refrain from proceeding with the adoption of that child.” Id. Clearly, the stay required by Pushcar applies to this case. {¶ 36} The majority’s application of Pushcar to this case, however, takes the Pushcar holding too far by permitting a party’s consent-to-adoption status to change even after the adoption petition has been filed, in clear contradiction of the language of the statute. Expanding Pushcar in this way amounts essentially to judicially waiving the requirement that any determination that a man is the natural father – for purposes of the adoption proceeding – be made prior to the time the adoption petition is filed with the probate court. R.C. 3107.01(H). This extension of Pushcar is contrary to both the General Assembly’s clear statutory directive and to the public policy that it has clearly expressed in the adoption statutes. That the biological-parent determination must be made before an adoption petition is filed in order to legally fix the necessity of obtaining that person’s consent to the adoption is a mandatory statutory requirement (which the majority seems intent on judicially writing out of the statute). The majority’s decision today serves only to undermine the effectiveness of the provisions pertaining to putative fathers and to upend Ohio’s orderly adoption process.

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{¶ 37} Ohio’s adoption laws were amended in 1996 to streamline the adoption process. Am.Sub.H.B. No. 419, 146 Ohio Laws, Part III, 4660. This statutory enactment had among its primary objectives the establishment of statewide standards for adopting a child and the reduction of the time necessary to finalize an adoption from what was often four years before the statutory change, to between nine and 24 months under the current framework. 64 Ohio Report No. 215, Gongwer News Service, Inc. (Nov. 9, 1995) 6. Another objective of the legislation was to prevent children from being forcibly removed from their adoptive families after a biological father belatedly exercised parental rights. 64 Ohio Report No. 198, Gongwer News Service, Inc. (Oct. 17, 1995) 1. {¶ 38} To achieve these goals while also upholding the rights of the natural parents, the child, and the adoptive parents, the General Assembly created the Putative Father Registry and other options for putative fathers to maintain consent-to-adoption rights. Legislative Service Commission Final Bill Analysis, Am.Sub.H.B. No. 419, 121st General Assembly; 65 Ohio Report No. 56, Gongwer News Service, Inc. (Mar. 21, 1996) 6; In re Adoption of Zschach (1996), 75 Ohio St.3d 648, 651-652, 665 N.E.2d 1070. After holding open hearings, inviting input from the public and adoption advocates, and reviewing adoption policy, the General Assembly enacted statutes requiring putative fathers to promptly demonstrate their commitment to meeting the responsibilities of parenthood. R.C. 3107.061, 3107.062 and 3107.07(B)(1); Zschach, 75 Ohio St.3d at 651-652, 665 N.E.2d 1070. The United States Supreme Court has also sanctioned the use of putative-father registries as mechanisms to facilitate the adoption process. Lehr v. Robertson (1983), 463 U.S. 248, 263-264, 266-268, 103 S.Ct. 2985, 77 L.Ed.2d 614. {¶ 39} As this court has previously observed, the “goal of the adoption statutes is to protect the best interests of children. In cases where adoption is necessary, this is best accomplished by providing the child with a permanent and

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stable home, and ensuring that the adoption process is completed in an expeditious manner.” (Citation omitted.) Zschach at 651. The express legislative direction contained within the adoption statutes that requires the status of the biological father to be determined at the time the adoption petition is filed is one that the legislature has determined advances this goal. {¶ 40} In contrast, the majority’s application of In re Pushcar to the case now before us is in direct contravention of the clearly expressed requirements of the statute. Without the benefit of the input available to the legislature on the benefits or detriments of any aspect of adoption policy, the majority of this court nullifies the express and specific language of the statutes and overrides the legislature’s articulated policy decisions, substituting its own. The 1996 revisions to the adoption statutes were designed to provide more predictability and certainty in the adoption process, with due regard to the rights of the biological parents, and are consistent with the goal of expeditiously moving children through the adoption process into permanent and stable homes. The court’s decision today is inconsistent with those objectives and calls into question the viability of any adoption currently in process. In the end, the result of the majority opinion is to excuse appellant’s failure to demonstrate his commitment to meeting the responsibilities of parenthood in the manner provided by the applicable statutes, and leaves the child in legal limbo. {¶ 41} In this case, appellant registered with the Putative Father Registry. However, appellant failed to establish before the adoption petition was filed that he had a parent-child relationship with the child. The decision by the majority, which permits appellant’s status to change based on the outcome of the juvenile court proceedings, is not authorized by the adoption statutes and is inappropriate in light of the clear directive of those statutes. Because appellant was legally a “putative father” and not a “father” at the time the adoption petition was filed, the

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probate court should have determined appellant’s status with respect to whether his consent was necessary under R.C. 3107.07(B)(2). Failing to do so was error. {¶ 42} I must respectfully dissent from this court’s holding. __________________ Voorhees & Levy, L.L.C., and Michael R. Voorhees, for appellants, Jason and Christy Vaughn. McQuades Co., L.P.A., and Alan J. Lehenbauer, for appellee, Benjamin Wyrembek. Susan Garner Eisenman and Mary Beck, urging reversal for amicus curiae, American Academy of Adoption Attorneys. _____________________