[Cite as In re Adoption of A.B., 2019-Ohio-5383.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                               LOGAN COUNTY




IN RE: THE ADOPTION OF:
                                                          CASE NO. 8-19-38
        A.B.

[JAMES NICHOLAS DEAN                                      OPINION
LUDBAN - APPELLANT]




                  Appeal from Logan County Common Pleas Court
                                 Probate Division
                             Trial Court No. 19-AD-05

                                      Judgment Affirmed

                          Date of Decision: December 30, 2019




APPEARANCES:

        Alison Boggs for Appellant

        Susan Garner Eisenman for Appellee

        Ruth T. Kelly, Amicus Curiae, Academy of Adoption and
          Assisted Reproduction Attorneys
Case No. 8-19-38




PRESTON, J.

       {¶1} Appellant, James N.D. Ludban (“Ludban”), appeals the June 25, 2019

judgment of the Logan County Court of Common Pleas, Probate Division, in which

the court found that his consent is not required for the adoption of his biological

child, A.B., by appellee, Andrew C. Burgess (“Burgess”). For the reasons that

follow, we affirm.

       {¶2} On February 14, 2019, Burgess filed a petition to adopt his minor

stepdaughter, A.B. (Doc. No. 1). The petition alleged that Ludban’s consent is not

required for the adoption. (Id.). Melissa M. Burgess (“Melissa”), the child’s

biological mother, filed her consent for the adoption on the same day. (Doc. No. 3).

       {¶3} On March 1, 2019, service of the notice of the hearing on consent was

made to Ludban. (Doc. No. 25). On March 19, 2019, Burgess filed an amended

petition which was identical to the petition filed on February 14, 2019 with the

additional statement that Ludban’s consent is not required because he “failed to file

an objection within 14 days of the docketing of the return of service on the notice

of adoption.” (Doc. No. 26). On March 21, 2019, Ludban faxed the trial court an

objection to the petition for adoption. (Doc. No. 27). The following day, Ludban

filed an original copy of his objection with the court. (Doc. No. 28). On May 14,

2019, Ludban filed a supplement to his objection to the adoption and motion to

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dismiss the petition for adoption. (Doc. No. 35). On May 29, 2019, Ludban filed a

second motion to dismiss. (Doc. No. 39). On June 3, 2019, Burgess filed a response

to Ludban’s motion to dismiss. (Doc. No. 40). On June 6, 2019, Burgess filed a

motion for judgment on the pleadings on the issue of whether Ludban’s consent is

necessary for the adoption. (Doc. No. 41). On June 25, 2019, the trial court filed a

judgment entry stating its finding that Ludban’s consent to the adoption is not

necessary because he failed to timely object. (Doc. No. 44).

      {¶4} On July 15, 2019, Ludban filed his notice of appeal. (Doc. No. 48). He

raises four assignments of error for our review. We will discuss Ludban’s first and

second assignments of error together, as they concern related issues. We will then

discuss Ludban’s third and fourth assignments of error together.

                           Assignment of Error No. I

      Ohio Revised Code Section 3107.07(K) violates the 14th
      Amendment to the United States Constitution, as applied to
      appellant’s case and others similarly situated, by arbitrarily
      denying appellant equal protection and his due process right to be
      heard at a meaningful time and in a meaningful manner on the
      petition for adoption.

                           Assignment of Error No. II

      The hearing notice contained in Ohio Revised Code Section
      3107.11(B) violates appellant’s Constitutional right to due process
      as the notice provision is confusing, misleading and inaccurate.

      {¶5} In his first assignment of error, Ludban argues that R.C. 3107.07(K) is

unconstitutional because it arbitrarily denies those given notice of a petition for

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adoption pursuant to R.C. 3107.11(A)(1) equal protection and a due process right to

be heard at a meaningful time and in a meaningful manner on the petition for

adoption. In his second assignment of error, Ludban argues that the hearing notice

contained in R.C. 3107.11(B) is unconstitutional because it is confusing,

misleading, and inaccurate. For the reasons that follow, we disagree.

       {¶6} In Ohio, certain persons and entities must consent to an adoption,

including the father of the minor child. In re T.L.S., 12th Dist. Fayette No. CA2012-

02-004, 2012-Ohio-3129, ¶ 8, citing R.C. 3107.06. However, the General Assembly

carved out exceptions to the consent requirement. Those exceptions are found in

R.C. 3107.07. One of the exceptions applies if a person or entity whose consent to

the adoption is required fails to file an objection to the petition for adoption within

14 days after that person or entity receives notice of the petition and of the hearing

on the petition:

       Consent to adoption is not required of any of the following:

       ***

       (K) Except as provided in divisions (G) and (H) of this section, a

       juvenile court, agency, or person given notice of the petition pursuant

       to division (A)(1) of section 3107.11 of the Revised Code that fails to

       file an objection to the petition within fourteen days after proof is filed




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       pursuant to division (B) of that section that the notice was given * *

       *.

R.C. 3107.07(K). See also In re T.L.S. at ¶ 10.

       {¶7} R.C. 3107.07(K) cross-references the notice required by R.C.

3107.11(A)(1). That statute requires that the trial court fix a time and place for a

hearing on a petition for adoption after the petition is filed. It also requires that the

trial court, at least twenty days before the hearing, give notice of the filing of the

petition and of the hearing to, among others, any person whose consent is required

under R.C. Chapter 3107 and who has not consented:

       (A) After the filing of a petition to adopt an adult or a minor, the

       court shall fix a time and place for hearing the petition. The hearing

       may take place at any time more than thirty days after the date on

       which the minor is placed in the home of the petitioner. At least

       twenty days before the date of the hearing, notice of the filing of the

       petition and of the time and place of hearing shall be given by the

       court to all of the following:

       (1) Any juvenile court, agency, or person whose consent to the

       adoption is required by this chapter but who has not consented;

       ***




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         Notice shall not be given to a person whose consent is not required as

         provided by division (B), (C), (D), (E), (F), or (J) of section 3107.07,

         or section 3107.071, of the Revised Code. Second notice shall not be

         given to a juvenile court, agency, or person whose consent is not

         required as provided by division (K) of section 3107.07 of the Revised

         Code because the court, agency, or person failed to file an objection

         to the petition within fourteen days after proof was filed pursuant to

         division (B) of this section that a first notice was given to the court,

         agency, or person pursuant to division (A)(1) of this section.

R.C. 3107.11. As R.C. 3107.07(K) provides, if a person does not object within 14

days after receiving the notice required by 3107.11(A)(1), his or her consent to the

adoption is no longer required.

         {¶8} R.C. 3107.07(K) also cross-references R.C. 3107.11(B), which,

according to R.C. 3107.07(K), governs the filing of proof that notice was given.

The current version of R.C. 3107.11(B), however, does not address filing proof of

notice and instead sets forth the language a court’s notice must contain if the petition

for adoption alleges that a parent failed without justifiable cause to provide for the

maintenance and support of the minor or more than de minimis contact with the

minor.




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       {¶9} We review de novo the determination of a statute’s constitutionality.

State v. Hudson, 3d Dist. Marion No. 9-12-38, 2013-Ohio-647, ¶ 27, citing Akron

v. Callaway, 162 Ohio App.3d 781, 2005-Ohio-4095, ¶ 23 (9th Dist.) and Andreyko

v. Cincinnati, 153 Ohio App.3d 108, 2003-Ohio-2759, ¶ 11 (1st Dist.). “De novo

review is independent, without deference to the lower court’s decision.” Id., citing

Ohio Bell Tel. Co. v. Pub. Util. Comm. of Ohio, 64 Ohio St.3d 145, 147 (1992).

       {¶10} “‘It is difficult to prove that a statute is unconstitutional.’” State v.

Stoffer, 2d Dist. Montgomery No. 26268, 2015-Ohio-352, ¶ 8, quoting Arbino v.

Johnson & Johnson, 116 Ohio St.3d 468, 2007-Ohio-6948, ¶ 25. “‘All statutes have

a strong presumption of constitutionality. * * * Before a court may declare

unconstitutional an enactment of the legislative branch, “it must appear beyond a

reasonable doubt that the legislation and constitutional provisions are clearly

incompatible.”’” Id., quoting Arbino at ¶ 25, quoting State ex rel. Dickman v.

Defenbacher, 164 Ohio St. 142 (1955), paragraph one of the syllabus.

       {¶11} “A party may challenge the constitutionality of a statute with either a

facial challenge or an as-applied challenge.” Simpkins v. Grace Brethren Church

of Delaware, Ohio, 149 Ohio St.3d 307, 2016-Ohio-8118, ¶ 20. The distinction

between the two types of constitutional challenges is important because the standard

of proof is different for the two types of challenges. Wymsylo v. Bartec, Inc., 132

Ohio St.3d 167, 2012-Ohio-2187, ¶ 20. “To prevail on a facial constitutional


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challenge, the challenger must prove the constitutional defect, using the highest

standard of proof, which is also used in criminal cases, proof beyond a reasonable

doubt.” State ex rel. Ohio Congress of Parents & Teachers v. State Bd. of Edn., 111

Ohio St.3d 568, 2006-Ohio-5512, ¶ 21, citing Dickman at paragraph one of the

syllabus. Conversely, “[t]o prevail on a constitutional challenge to the statute as

applied, the challenger must present clear and convincing evidence of the statute’s

constitutional defect.” Id., citing Belden v. Union Cent. Life Ins. Co., 143 Ohio St.

329 (1944), paragraph six of the syllabus.

       {¶12} “A facial challenge alleges that a statute, ordinance, or administrative

rule, on its face and under all circumstances, has no rational relationship to a

legitimate governmental purpose.” Wymsylo at ¶ 21. “Facial challenges to the

constitutionality of a statute are the most difficult to mount successfully, since the

challenger must establish that no set of circumstances exists under which the act

would be valid.” Id., citing United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct.

2095 (1987). “If a statute is unconstitutional on its face, the statute may not be

enforced under any circumstances.” Id. “When determining whether a law is

facially invalid, a court must be careful not to exceed the statute’s actual language

and speculate about hypothetical or imaginary cases.” Id., citing Washington State

Grange v. Washington State Republican Party, 552 U.S. 442, 450, 128 S.Ct. 1184

(2008).


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       {¶13} Here, Ludban concedes that although his assignments of error include

the phrase “as applied” he brings a facial challenge to the constitutionality of R.C.

3107.07(K) and 3107.11(B). (Appellant’s Reply Brief at 1-2, 4).

       {¶14} We note that although Ludban argues that R.C. 3107.07(K) violates

the Equal Protection clause, he does not make distinct arguments detailing how R.C.

3107.07(K) violates the Equal Protection Clause. See State v. Raber, 189 Ohio

App.3d 396, 2010-Ohio-4066, ¶ 30 (9th Dist.), quoting NSK Industries, Inc. v.

Bayloff Stamped Prods. Kinsman, Inc., Summit No. 24777, 2010-Ohio-1171,

quoting Cardone v. Cardone, (May 6, 1998), 9th Dist. No. 18349, at ¶ 8. (““‘[I]f an

argument exists that can support [an] assignment of error, it is not this [c]ourt’s duty

to root it out.”’”).   As his arguments regarding the constitutionality of R.C.

3107.07(K) are more appropriately framed in terms of the Due Process Clause, our

analysis of Ludban’s first assignment of error will focus on his contention that R.C.

3107.07(K) violates the Due Process Clause.

       {¶15} The Due Process Clause of the Fourteenth Amendment to the United

States Constitution states that a state shall not “deprive any person of life, liberty,

or property without due process of law.”          The Supreme Court of Ohio has

determined that the “due course of law” clause of Article I, Section 16 of the Ohio

Constitution is the equivalent of the “due process of law” clause in the Fourteenth

Amendment. Direct Plumbing Supply Co. v. Dayton, 138 Ohio St. 540, 544 (1941).


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       {¶16} “‘Due process demands that the state provide meaningful standards in

its laws.’” In re Adoption of H.N.R., 145 Ohio St.3d 144, 2015-Ohio-5476, ¶ 25,

quoting Norwood v. Horney, 110 Ohio St.3d 353, 2006-Ohio-3799, ¶ 81. “At its

most basic level, due process requires protection against arbitrary laws.” Id., citing

Sacramento Cty. v. Lewis, 523 U.S. 833, 845-846, 118 S.Ct. 1708 (1998). “To

satisfy the requirements of procedural due process, the means employed by a statute

must have a real and substantial relation to the object to be obtained, and its methods

must not be unreasonable, arbitrary, or capricious.” Id., citing Nebbia v. New York,

291 U.S. 502, 525, 54 S.Ct. 505 (1934) and Mominee v. Scherbarth, 28 Ohio St.3d

270, 274 (1986). To determine whether a particular procedure is constitutionally

adequate, courts are generally required to analyze and balance three factors:

       First, the private interest that will be affected by the official action;

       second, the risk of an erroneous deprivation of such interest through

       the procedures used, and the probable value, if any, of additional or

       substitute procedural safeguards; and finally, the Government’s

       interest, including the function involved and the fiscal and

       administrative burdens that the additional or substitute procedural

       requirement would entail.

Id., quoting Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893 (1976).




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       {¶17} Accordingly, first we must frame the private interest involved.

Although Ludban argues that the private interest at issue is the fundamental liberty

interest of a parent in raising his or her natural child, the private interest affected by

R.C. 3107.07(K) is much more limited. Here, the private interest involved is the

right to withhold consent to the adoption of the child. R.C. 3107.07(K) does not

constitute consent to the adoption of the child. See Hess v. Bolden, 5th Dist.

Tuscarawas No. 2001AP080084, 2002 WL 54758, *3 (Jan. 8, 2002). Rather, R.C.

3107.07(K) “merely ‘provides for cutting off the statutory right of a parent to

withhold his consent to the adoption of the child,’ leaving all other parental rights

and obligations intact.” Id. See also In re Adoption of Jorgensen, 33 Ohio App.3d

207, 209 (3d Dist.1986). Accordingly, until the court enters a final decree of

adoption, the parent retains the rights and obligations of parenthood. In re Adoption

of Jorgensen at 209. If the probate court does not find that the adoption is in the

best interest of the child, any parental rights that the parent lost due to the operation

of R.C. 3107.07(K) are “necessarily restored.” Id.

       {¶18} With respect to the second factor, there is some risk that the 14-day

deadline may deprive a parent of the right to contest an adoption if they intend to

contest an adoption but fail to file a timely objection. However, this risk is reduced

by R.C. 3107.11, which requires that parents who have not filed a consent with the

court must be given notice of the hearing on the petition for adoption as well as


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notice that they must file objections within 14 days if they wish to contest the

adoption. See R.C. 3107.11.

       {¶19} Concerning the third factor, “[t]he state’s interest is determined

through its intent in enacting the legislation at issue.” In re H.N.R., 145 Ohio St.3d,

2015-Ohio-5476, at ¶ 27, citing State ex rel. Evans v. Moore, 69 Ohio St.2d 88, 91

(1982); Brock v. Roadway Express, Inc., 481 U.S. 252, 258-259, 262, 107 S.Ct.

1740 (1987); Lehr v. Robertson, 463 U.S. 248, 263-265, fn. 20, 103 S.Ct. 2985

(1983); Hamdi v. Rumsfeld, 542 U.S. 507, 517, 531, 124 S.Ct. 2633 (2004). “‘[T]he

goal of adoption statutes is to protect the best interests of children.’” In re Adoption

of A.N., 3d Dist. Union No. 14-12-27, 2013-Ohio-3871, ¶ 26, quoting In re Adoption

of Zschach, 75 Ohio St.3d 648, 651 (1996). “‘In cases where adoption is necessary,

this is best accomplished by providing the child with a permanent and stable home

* * * and ensuring that the adoption process is completed in an expeditious

manner.’” Id., quoting Zschach at 651.

       {¶20} With respect to R.C. 3107.07(B), which operates similarly to R.C.

3107.07(K) and provides that a putative father’s consent to an adoption is not

required if he fails to comply with a number of statutory requirements, the Ohio

Supreme Court has held that “while strict adherence to the procedural mandates * *

* might appear unfair in a given case, the state’s interest in facilitating the adoption

of children and having the adoption proceeding completed expeditiously justifies


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such a rigid application.” Zschach at 652. Moreover, “[i]t is not the role of this

Court to second guess the legislature’s policy decisions.” In re Adoption of A.N.,

2013-Ohio-3871, at ¶ 42. “The legislature is the proper arena for thrashing out

policy considerations such as are involved in the sensitive area of adoptions.” Id.

       {¶21} Consequently, after weighing the applicable factors, we cannot find

beyond a reasonable doubt that R.C. 3107.07(K) violates the Due Process Clause of

the Fourteenth Amendment.

       {¶22} Accordingly, we overrule Ludban’s first assignment of error.

       {¶23} Having concluded that R.C. 3107.07(K) does not violate the Due

Process Clause of the Fourteenth Amendment, we next turn to Ludban’s second

assignment of error. In his second assignment of error, Ludban argues that the

hearing notice contained in R.C. 3107.11(B) violates his constitutional right to due

process because it is confusing, misleading, and inaccurate. Specifically, Ludban

argues that the final sentence of the R.C. 3107.11(B) hearing notice is confusing

because it leads the reader to believe that they can object to an adoption petition by

either filing an objection or appearing at the hearing when they actually are required

to do both. For the reasons that follow, we disagree.

       {¶24} R.C. 3107.11(B) sets forth the language a court’s notice must contain

if the petition for adoption alleges that a parent failed without justifiable cause to




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provide for the maintenance and support of the minor or more than de minimis

contact with the minor:

      (B) Upon the filing of a petition for adoption that alleges that a 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, the clerk of courts shall send a notice to that parent with

      the following language in boldface type and in all capital letters:

      “A FINAL DECREE OF ADOPTION, IF GRANTED, WILL

      RELIEVE       YOU     OF     ALL      PARENTAL        RIGHTS       AND

      RESPONSIBILITIES, INCLUDING THE RIGHT TO CONTACT

      THE MINOR, AND, EXCEPT WITH RESPECT TO A SPOUSE OF

      THE ADOPTION PETITIONER AND RELATIVES OF THAT

      SPOUSE,      TERMINATE          ALL      LEGAL      RELATIONSHIPS

      BETWEEN THE MINOR AND YOU AND THE MINOR’S OTHER

      RELATIVES, SO THAT THE MINOR THEREAFTER IS A

      STRANGER        TO     YOU     AND       THE    MINOR’S       FORMER

      RELATIVES FOR ALL PURPOSES. IF YOU WISH TO CONTEST

      THE ADOPTION, YOU MUST FILE AN OBJECTION TO THE

      PETITION WITHIN FOURTEEN DAYS AFTER PROOF OF

      SERVICE OF NOTICE OF THE FILING OF THE PETITION AND


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       OF THE TIME AND PLACE OF HEARING IS GIVEN TO YOU.

       IF YOU WISH TO CONTEST THE ADOPTION, YOU MUST

       ALSO APPEAR AT THE HEARING. A FINAL DECREE OF

       ADOPTION MAY BE ENTERED IF YOU FAIL TO FILE AN

       OBJECTION TO THE ADOPTION PETITION OR APPEAR AT

       THE HEARING.”

(Boldface and italicization added.) R.C. 3107.11(B).

       {¶25} Here, the final sentence of the notice, which states that a final decree

of adoption may be entered if one fails “to file an objection to the adoption petition

or appear at the hearing,” could be ambiguous if read without reference to the rest

of the notice. “However, we may not read individual words of a statute in isolation;

rather, we are obligated ‘to evaluate a statute “as a whole and giv[e] such

interpretation as will give effect to every word and clause in it.”’” New Riegel Local

School Dist. Bd. of Edn. v. Buehrer Group Architecture & Eng., Inc., 157 Ohio St.3d

164, 2019-Ohio-2851, ¶ 39, quoting Boley v. Goodyear Tire & Rubber Co., 125

Ohio St.3d 510, 2010-Ohio-2550, ¶ 21, quoting State ex rel. Myers v. Spencer Twp.

Rural School Dist. Bd. of Edn., 95 Ohio St. 367, 373 (1917). “A court that is

reviewing a statute * * * for ambiguity should direct its ‘attention * * * beyond

single phrases, and * * * should consider, in proper context, all words used by the

[General Assembly] in drafting [the statute] with a view to its place in the overall


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[statutory] scheme.’” Matter of Adoption of G.M.B., 4th Dist. Pickaway Nos.

19CA12 and 19CA13, 2019-Ohio-3884, ¶ 17, quoting D.A.B.E., Inc. v. Toledo-

Lucas Cty. Bd. of Health, 96 Ohio St.3d 250, 2002-Ohio-4172, ¶ 19.

       {¶26} The second sentence of the statutory notice states that an individual

wanting to contest an adoption must file an objection within 14 days following proof

of service of notice of the filing of the petition and of the time and place of hearing.

R.C. 3107.11(B). The third sentence then states, “If you wish to contest the

adoption, you must also appear at the hearing.” (Emphasis added.) Id. The phrase

“must also” indicates that an individual wishing to contest an adoption has the

additional mandatory requirement of appearing at the hearing in addition to filing a

timely objection. When reading the sentences together, it is clear that an individual

wishing to contest an adoption has an obligation to both file a timely objection and

appear at the hearing. Thus, although the final sentence of the statutory notice may

be ambiguous if read in isolation from the rest of the notice, when the statutory

notice is read as a whole, the reader can come to but one conclusion, and that is that

to contest an adoption, one must both file a timely objection to the adoption petition

and appear at the hearing.

       {¶27} Furthermore, in In re T.L.S., the Twelfth District determined that the

notice served on the biological father, which specifically contained language

identical to that found in the second and third sentences of the statutory notice


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contained in R.C. 3107.11(B), “clearly informed” the father that he was required to

file an objection within 14 days of receiving the adoption notice. In re T.L.S., 2012-

Ohio-3129, at ¶ 11. Moreover, this court has previously found that the notice is

sufficient to satisfy a putative father’s due process rights as it informed the putative

father that he needed to file an objection within 14 days and appear at the hearing if

he objects to the adoption. In re A.N., 2013-Ohio-3871, at ¶ 33.

       {¶28} Thus, for the aforementioned reasons, we conclude that the statutory

notice contained in R.C. 3107.11(B) is not ambiguous and does not violate Ludban’s

due process rights.

       {¶29} Accordingly, Ludban’s second assignment of error is overruled.

                            Assignment of Error No. III

       The probate court erred when it found that appellant did not
       timely file his written objection[;] when he filed the objection it
       was within days of the filing of the amended petition for adoption.

                            Assignment of Error No. IV

       The probate court erred when it did not conduct a consent
       hearing.

       {¶30} In his third assignment of error, Ludban argues that the trial court erred

by determining that his written objection was not timely filed. Specifically, Ludban

argues that although he did not file an objection to the original petition for adoption

within 14 days, he filed an objection within 14 days of the amended petition for

adoption. Ludban contends that because he filed a petition within 14 days of the

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amended petition for adoption, the trial court erred by determining that his objection

was not timely filed. In his fourth assignment of error, Ludban argues that the trial

court erred by not conducting a consent hearing. For the reasons that follow, we

disagree.

       {¶31} On February 14, 2019, Burgess filed a petition to adopt A.B. The

adoption petition alleged that Ludban’s consent was not required because he has

failed: (1) to provide more than de minimis contact with A.B. for a period of at least

one year immediately preceding the filing of the adoption petition and (2) failed

without justifiable cause to provide for the maintenance and support of A.B. as

required by law or judicial decree for a period of at least one year immediately

preceding the filing of the adoption petition. On March 1, 2019, Ludban was served

with the petition for adoption.

       {¶32} Burgess filed an amended petition for adoption on March 19, 2019.

The amended petition for adoption was identical to the original petition for adoption

with one exception. In addition to the assertions that Ludban’s consent was not

required for the adoption because he failed without justifiable cause to provide more

than de mimimis contact and failed without justifiable cause to provide for the

maintenance and support of A.B. for at least one year immediately preceding the

filing of the adoption petition, the amended petition contained the additional ground

that Ludban’s consent was not required because he failed to file an objection within


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14 days of the docketing of the return of service on the notice of the adoption petition

as required under R.C. 3107.07(K).

       {¶33} On March 21, 2019, Ludban faxed a copy of his objection to the

adoption of A.B. to the trial court. The following day, Ludban filed the original

document with the trial court.

       {¶34} Ludban argues that the trial court erred in determining that his

objection to the petition for adoption was not timely. In support of his position,

Ludban cites a passage from In re Adoption of A.N., in which this court held that the

putative father’s consent was not required for an adoption because “he failed to file

an objection to the Nords’ amended petition within fourteen days after proof was

filed with the trial court * * * that he was given notice of the * * * amended petition

and [consent] hearing.” In re Adoption of A.N., 2013-Ohio-3871, at ¶ 31. Ludban

suggests that our reference to the amended petition in In re Adoption of A.N. implies

that the 14-day period for objections begins at the filing of the amended petition for

adoption in the present case.

       {¶35} However, the facts in In re Adoption of A.N. are readily distinguishable

from the present case. In In re Adoption of A.N., the original petition named A.N.’s

biological mother as the only person or agency whose consent to the petition for

adoption was required and stated that no person was registered as a putative father.

Id. at ¶ 2. However, a subsequent inquiry determined that Kris Scheiderer, Jr.


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(“Scheiderer”) was registered as a putative father of A.N. Id. at ¶ 3. Consequently,

the prospective adoptive parents filed an amended petition listing the child’s

biological mother as the only person or agency whose consent to the adoption was

required and Scheiderer as a putative father whose consent was not required

“because he willfully abandoned [the biological mother] during her pregnancy and

up to the time of her surrender of A.N.” Id. at ¶ 5.

       {¶36} After Scheiderer failed to file a written objection within 14 days of the

amended petition, he argued that as a putative father, his consent to the adoption

was not required under R.C. 3107.07(B), which Scheiderer suggested controlled

over R.C. 3107.07(K). Id. at ¶ 29. Scheiderer further alleged that his failure to

timely file an objection to the adoption petition should be excused because he put

the interested parties on notice of his desire to be part of A.N.’s life through his

registration with the Putative Father Registry, appearance at hearings, and filing a

paternity action. Id. The trial court agreed with Scheiderer and held that his consent

was required and that he did not consent. Id. at ¶ 30. However, this court reversed

the trial court and held that Scheiderer’s consent to the adoption was not required

due to his failure to file an objection to the amended petition for adoption within

fourteen days after proof of service was filed with the trial court. Id. at ¶ 31.

       {¶37} However, here, Ludban was named in the original petition for

adoption. Thus, unlike the putative father in In re Adoption of A.N. who was not


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named in the original petition, Ludban had notice of the petition for adoption at the

time of the filing of the original petition. Furthermore, the amended petition in the

present case was identical to the original petition for adoption with the exception of

the addition of the allegation that Ludban had failed to file a timely objection to the

original petition for adoption. The amended petition for adoption thus effectively

served as a notice that Ludban had failed to timely file an objection to the petition

for adoption. Therefore, the trial court did not err by determining that Ludban’s

objection to the adoption was not timely even though it was filed less than 14 days

after the filing of the amended adoption.

       {¶38} Ludban next argues that the trial court erred by determining that his

consent was not necessary without holding a consent hearing. On June 6, 2019,

Burgess filed a motion for judgment on the pleadings on the issue of whether

Ludban’s consent is necessary for the adoption. Ludban failed to file any response

to the motion for judgment on the pleadings. On June 25, 2019, the trial court filed

a judgment entry finding that after reviewing the law and the pleadings filed,

Ludban’s consent to the adoption was not required. Ludban’s next filing in the case

was his July 15, 2019 notice of appeal.

       {¶39} ‘“It is well-settled law that issues not raised in the trial court may not

be raised for the first time on appeal because such issues are deemed waived.’” State

v. Born, 3d Dist. Hardin No. 6-17-13, 2018-Ohio-350, ¶ 10, quoting State v. Barrett,


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10th Dist. Franklin No. 11AP-375, 2011-Ohio-4986, ¶ 13. Thus, because Ludban

did not respond to Burgess’s motion for judgment on the pleadings, the matter is not

properly before us on appeal.

       {¶40} For these reasons, Ludban’s third and fourth assignments of error are

overruled.

       {¶41} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                                Judgment Affirmed

SHAW and WILLAMOWSKI, J.J., concur.

/jlr




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