Morrow v. Family & Community Services of Catholic Charities, Inc.

Per Curiam. The primary issue presented by these appeals is whether the final order of adoption entered by the Summit County Probate Court on April 11, 1985 is valid. We hold that it is valid and, accordingly, affirm the decision of the Court of Appeals for Summit County and reverse the decision of the Court of Appeals for Portage County. The natural parents, Morrow and Toles, aver that the final order of adoption entered by the Summit County Probate Court is void because a required consent to adopt was not before the probate court. R.C. 3107.06 provides in relevant part: “Unless consent is not required under section 3107.07 of the Revised Code, a petition to adopt a minor may be granted only if written consent to the adoption has been executed by all of the following: “(A) The mother of the minor; “(B) The father of the minor, 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; * * [251] R.C. 3107.08 provides in relevant part: “(A) The required consent to adoption may be executed at any time after seventy-two hours after the birth of a minor, and shall be executed in the following manner: * * * (3) If by any other person except a minor, in the presence of the court or in the presence of a person authorized to take acknowledgments; * * *” (Emphasis added.) In the instant action, a written consent was executed on October 13, 19825 by Morrow and Toles, the mother and father of the minor child, in the Portage County Juvenile Court. (See Appendix.) Persons authorized to take acknowledgments in Ohio include a clerk or judge of a court of record. See R.C. 5301.01. All of the divisions of the court of common pleas are courts of record. Johnson v. State (1884), 42 Ohio St. 207. The consent was properly executed by the proper parties. We now find it necessary to address the issue of whether the consent of the natural parents was valid. Morrow and Toles argue that the consent is invalid because it was not executed voluntarily. The Summit County Probate Court and court of appeals found that consent was freely given by the natural parents. We agree. The standard for determining the validity of consent and how that consent may have been affected by duress or undue influence was addressed in In re Hua (1980), 62 Ohio St. 2d 227, 231-232 [16 O.O.3d 270], citing Tallmadge v. Robinson (1952), 158 Ohio St. 333 [49 O.O. 206], as follows: “ ‘The real and ultimate fact to be determined in every case is whether the party affected really had a choice; whether he had his freedom of exercising his will.’ ” In the case at bar, the natural parents had attained the age of majority and had completed all but one semester of college. Adoption of the child had been considered even prior to its birth. Both parents were before a court of law and were fully aware of their rights to retain the child. They were also fully aware that by signing the consent form they were permanently surrendering their rights to the child. There is no evidence in the record that Morrow and Toles did not understand the consequences of their actions. The language of the consent form was clear. The circumstances therefore do not warrant a finding that the consent was signed involuntarily. The Court of Appeals for Summit County correctly held the consent to be valid. The consent had been filed with the probate court and was properly before that court under R.C. [252] 3107.05(B)6 when it entered the final order of adoption. Accordingly, we find that the Summit County Probate Court did not lack subject matter jurisdiction of this matter and hold that the final order of adoption entered by that court is valid. We must now address the September 9, 1985 decision of the Court of Appeals for Portage County. That decision sustained a writ of habeas corpus ordering the minor child to be returned to his natural mother. The basis of that decision was that the consent signed by Morrow and Toles on October 13, 1982 was invalid and, therefore, the Summit County Probate Court lacked subject matter jurisdiction when it entered the final order of adoption. Having affirmed the above decision of the Court of Appeals for Summit County holding the required consent to be valid, this court finds that there is no basis upon which the Court of Appeals for Portage County could attack the Summit County Probate Court order and issue the writ. The probate court did not lack subject matter jurisdiction when it entered the final order of adoption on April 11, 1985. For the reasons herein stated, we hold that the final order of adoption entered by the Summit County Probate Court on April 11, 1985 is valid and, accordingly, affirm the decision of the Court of Appeals for Summit County and reverse the decision of the Court of Appeals for Portage County. Judgment reversed in case No. 85-1427. Judgment affirmed in case No. 86-72. Celebrezze, C.J., Sweeney, Locher, Holmes and C. Brown, JJ., concur. Douglas, J., concurs in judgment only. Wright, J., dissents. Footnotes [5] The decision in Morrow v. Family & Community Services of Catholic Charities, Inc. (Sept. 9, 1985) states: “This court again reitterates [sic] that in its case no. 1376, supra, the issue of whether or not there was a valid and voluntary consent under the procedures set forth in R.C. 5103.15 was not expressly presented to this court in that appeal, nor did the court’s mandate apply to this duality aspect of the proceedings obtaining before the trial court in this matter. This court’s mandate involved a review only of the questions related to the procedure involved in the trial court’s determination that the child was found by the trial court to be dependent/neglected, and its ensuing order divesting the petitioners here of all parental rights and privileges, and placing the minor child in the permanent custody of the defendant-respondent Catholic Charities for purposes of placement for adoption.” [6] R.C. 3107.05(B) states: “A certified copy of the birth certificate of the person to be adopted, if available, and ordinary copies of the required consents, and relinquishments of consents, if any, shall be filed with the clerk.”