[Cite as In re Adoption of A.C., 2011-Ohio-1809.]


          Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA


                            JOURNAL ENTRY AND OPINION
                                    No. 95612




                                  IN RE: ADOPTION
                                       OF A.C.
                                   (A Minor Child)




                                          JUDGMENT:
                                           AFFIRMED


                                   Civil Appeal from the
                          Cuyahoga County Court of Common Pleas
                                  Probate Court Division
                                Case No. 06 ADP-0005623


        BEFORE: E. Gallagher, J., Kilbane, A.J., and S. Gallagher, J.

        RELEASED AND JOURNALIZED:                   April 14, 2011
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ATTORNEY FOR APPELLANT

 Thomas A. McCormack
 The Superior Building
 Suite 1915
 815 Superior Avenue
 Cleveland, Ohio 44114


 FOR APPELLEE

 For J.C. (Stepmother)

 Stepmother, J.C., pro se
 6503 Laverne Avenue
 Parma, Ohio 44129




EILEEN A. GALLAGHER, J.:

          {¶ 1} P.R. (“Appellant”) appeals the July 27, 2010 decision of the Cuyahoga County

Probate Court denying her motion to vacate a final decree of adoption.                             Appellant argues
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that the trial court erred in holding her motion to be time-barred and by not affording her a

hearing on the merits of her motion. For the reasons that follow, we affirm.

          {¶ 2} This case arises out of a 2006 petition for the adoption of a minor child, A.C.,


          1
            The parties are referred to herein by their initials or title in accordance with
this court’s established policy regarding nondisclosure of identities in juvenile cases.
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by her step-mother, J.C., (“petitioner”), wife of A.C.’s biological father, C.C.      Appellant is

the biological mother of A.C.    Petitioner filed an affidavit for service by publication asserting

that appellant’s residence was unknown and could not be ascertained with reasonable

diligence.   Appellant was also served with notice of the adoption by publication. The

adoption of A.C. was finalized on June 6, 2006.

       {¶ 3} On June 8, 2010, appellant filed a motion to vacate the final decree of adoption,

alleging that she was not properly served with notice of the petition of adoption because

during the pendency of the case her whereabouts were readily ascertainable by petitioner and

C.C. through the exercise of reasonable diligence.    Appellant provided an affidavit in support

of her motion to vacate.   Through that affidavit, appellant asserts that she underwent a legal

name change in the Superior Court of Maricopa County, Arizona in November of 2005.

Appellant alleged that C.C. interfered with her contact with A.C. by returning mail that she

had sent, by not permitting telephone contact with the minor child and by changing residences

without providing a new address or contact information to her.            Appellant additionally

alleged that “at all times during the adoption process, C.C. was receiving child support

payments from me.”     Finally, appellant admitted that she learned of the adoption in 2006 and

stated that she did not contest the adoption until June of 2010 due to her inability to pay for an

attorney.

       {¶ 4} The trial court denied appellant’s motion to vacate on July 27, 2010, finding
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that contrary to appellant’s affidavit, the records of the Cuyahoga County Child Support

Agency reflected that appellant made only one partial payment of child support during the

year preceding the adoption petition.      The trial court held that petitioner could not have

ascertained appellant’s address from the Child Support Enforcement Agency because appellant

had failed to report her name change in 2005 or 2006.              Finally, the trial court found

appellant’s motion to vacate to be untimely due to appellant’s admission that she was aware of

the adoption in 2006 and failed to file her motion to vacate until June of 2010.     It is from this

judgment entry that appellant presently appeals.

       {¶ 5} In appellant’s first assignment of error she argues that the trial court erred in

holding that her motion to vacate the decree of adoption was time-barred.         Appellant argues

that the one-year statutory limitation for challenging an adoption decree found in R.C.

3107.16(B) is inapplicable to her pursuant to Ohio case law that holds the statute to be

unconstitutional as applied to a biological parent challenging adequate notice of an adoption.

R.C. 3107.16(B) provides, “[s]ubject to the disposition of an appeal, upon the expiration of

one year after an adoption decree is issued, the decree cannot be questioned by any person,

including the petitioner, in any manner or upon any ground, including fraud,

misrepresentation, failure to give any required notice, or lack of jurisdiction of the parties or of

the subject matter, unless, in the case of the adoption of a minor, the petitioner has not taken

custody of the minor, or, in the case of the adoption of a minor by a stepparent, the adoption
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would not have been granted but for fraud perpetrated by the petitioner or the petitioner’s

spouse, or, in the case of the adoption of an adult, the adult had no knowledge of the decree

within the one-year period.”    (Emphasis added.)

       {¶ 6} Appellant argues that pursuant to the holding of In Re Adoption of Knipper

(Mar. 26, 1986), 30 Ohio App.3d 214, 507 N.E.2d 436, she is not bound by the one-year

statute of limitations for adoption decree challenges set forth in R.C. 3107.16(B).           In

Knipper, the First District held that the one-year limitation in R.C. 3107.16(B) was

unconstitutional and, therefore, ineffective as applied to deprive a biological mother of her

parental rights without valid constructive notice.    Id. at 216, citing Armstrong v. Manzo

(1965), 380 U.S. 545, 85 S.Ct. 1187, 14 L.Ed.2d 62.      The trial court in Knipper had granted

the biological mother’s motion for relief from judgment four years after the adoption because

it found that reasonable diligence was not exercised in an effort to determine the address of the

natural mother.   Id. at 216.

       {¶ 7} However, subsequent case law has constrained the holding in Knipper.            The

Third District held in the case of In Re Adoption of Miller, Logan App. Nos. 8-02-22 and

8-02-23, 2003-Ohio-718, that the holding in Knipper does not apply in an instance where, as

here, the biological parent had actual knowledge of the adoption within the one-year statute of

limitations yet failed to challenge the adoption until after the one-year period had elapsed.

Id., citing Wiley v. Rutter (Oct. 12, 1983), Tuscarawas App. No. 1772 and In re Adoption of
                                                6

Moore (Aug. 15, 1989), Franklin App. No. 88AP-746.

       {¶ 8} The present case concerns more than the sole interests of the appellant.       The

interests of the adopted child and adoptive parents are protected by R.C. 3107.16(B).       The

court in Wiley explained, “[t]he legislature, in enacting R.C. 3107.16, would have been well

aware of various instances where natural parents have attacked the finality of adoption

decrees. The legislature would have been well aware of the devastating effect of such an

attack, even an unsuccessful one, upon adoptive parents and adopted children.    It would have

been aware of the worry and chilling effect placed upon the developing parent/child

relationship by the knowledge that the relationship could be completely severed if some legal

error were made in the prior proceeding, and that the adoptive parent and child would be

virtually helpless if such error were made. The legislature has not deprived appellant of

constitutional rights. The legislature has struck a balance in enacting R.C. 3107.16(B) to give

the natural parent a reasonable time to make either direct or collateral attack upon an adoption

decree. After that reasonable time, one year, the adoptive parents and child should be allowed

the certainty of their ongoing relationship.”

       {¶ 9} Here, appellant admitted in an affidavit attached to her motion to vacate the

final decree of adoption that she learned of the adoption in 2006.          Despite possessing

knowledge of the adoption, at the latest, less than seven full months after it was finalized,

appellant did not contest the adoption until June of 2010, more than four years after
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finalization.   Appellant asserted in her affidavit that during the intervening four years she was

acquiring the funds to hire an attorney to contest the adoption.     However, appellant was not

precluded from filing her motion to vacate, pro se.    We hold, as in In Re Adoption of Miller,

that upon these facts, the application of the one-year statute of limitations in R.C. 3107.16(B)

represents a reasonable legislative act, and does not run afoul of constitutional prohibitions.

        {¶ 10} Additionally, as the trial court noted, appellant’s argument that her whereabouts

were readily ascertainable by petitioner through the Cuyahoga County Child Support

Enforcement Agency is flawed.         Appellant admitted in her affidavit that she underwent a

legal name change in the Superior Court of Maricopa County, Arizona in November of 2005.

However, the records of the Child Support Enforcement Agency reflect that appellant failed to

report her legal name change to them.

        {¶ 11} Appellant’s first assignment of error is overruled.

        {¶ 12} Appellant argues in her second assignment of error that the trial court erred in

not holding an evidentiary hearing to determine the merits of her motion to vacate.       Because

we hold that the trial court was correct in denying appellant’s motion as untimely, appellant’s

second assignment of error is moot.

        {¶ 13} Finally, we note that appellant alleges in her affidavit and appellate brief that

since the finalization of the adoption, she has continued to pay child support payments through

the Cuyahoga County Child Support Enforcement Agency, which petitioner and C.C.
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accepted.   The record of child support payments before us, however, does not cover the time

period after the adoption was finalized.   To the extent that appellant’s claim is true, the court

finds the acceptance of such payments along with the failure to notify the Cuyahoga County

Child Support Enforcement Agency of the adoption’s finalization to be unconscionable.

       Judgment affirmed.

       It is ordered that appellee recover of appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common pleas

court to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.




EILEEN A. GALLAGHER, JUDGE

MARY EILEEN KILBANE, A.J., and
SEAN C. GALLAGHER, J., CONCUR
