[Cite as In re Adoption of R.Y., 2020-Ohio-837.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                       ERIE COUNTY


In re Adoption of R.Y.                                 Court of Appeals No. E-19-046

                                                       Trial Court No. 2018-4-013



                                                       DECISION AND JUDGMENT

                                                       Decided: March 6, 2020

                                                   *****

        Mary Catherine Barrett and Brian J. Lamb, for appellants.


                                                   *****

        PIETRYKOWSKI, J.

        {¶ 1} Appellants, M.Y. and R.Y., appeal the July 31, 2019 judgment of the Erie

County Court of Common Pleas, Probate Division, which denied their Civ.R. 60(B)

motion for relief from the court’s November 19, 2018 order vacating the final decree of

adoption of minor, R.Y. Because we find no error, we affirm.
       {¶ 2} Minor, R.Y., was born in October 2011. In July 2016, the Erie County

Juvenile Court awarded appellants legal, permanent custody of R.Y. with the apparent

support of appellee, biological father, J.O. On March 29, 2018, appellants filed a petition

for adoption of R.Y. The petition indicated that consent of the biological mother was not

required as she was deceased. The petition further indicated that appellee’s consent was

required; his consent form was filed on the same date. The preprinted, notarized consent

form indicated that appellee “waives notice of the hearing on the Petition for Adoption to

be filed in the court and consents to the adoption of [R.Y.]”1

       {¶ 3} Appellee was, in fact, notified of the hearing on the petition for adoption.

The standard form contained the following:

              A final decree of adoption, if granted, will relieve you of all parental

       rights and responsibilities, including the right to contact the minor, and,

       with respect to a spouse of the adoption petitioner and relative 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 your petition and of the time



       1
        This waiver is valid only in certain circumstances including where the child is
less than six months of age, the minor is to be adopted by a stepparent, or the natural
parent lives in another state. R.C. 3107.081(D), (E) and (F).



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       and place of the 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.2

       {¶ 4} Appellants and appellee appeared at the hearing which was not recorded.

On September 10, 2018, the trial court granted the petition for adoption finding that the

necessary consents were given and that the adoption was in the best interest of the child.

       {¶ 5} On November 19, 2018, appellee filed a motion to contest his son’s adoption

by appellants. Appellee indicated that when he signed the consent form he was under

“extreme duress” due to the death of the child’s mother and his understanding was that

following the adoption visitation between he and the child would remain constant. He

had since learned that appellants were planning a move to Florida. Appellee further

stated that he believed that at the September 10, 2018 hearing, he would have had the

opportunity to be heard and to weigh the “crucial decision.” An entry of appearance was

also filed by an attorney representing appellee.

       {¶ 6} On the same date, the trial court filed a judgment entry sua sponte vacating

the adoption order. The court stated: “It has come to the Court’s attention that the

consent of the biological father, [J.O.], in the above-captioned case may have been



       2
        Pursuant to R.C. 3107.11, this form is intended for, inter alia, a parent whose
consent is not required due to the parent’s failure to provide more than “de minimus”
contact with the minor or had failed to provide maintenance and support.



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accepted by this Court in error, thus rendering further proceedings in finalizing the

adoption void or voidable.” The matter was set for a status review on December 17,

2018. Appellants’ counsel requested that the hearing be continued due to a conflict.

Without addressing the request for a continuance, on December 17, the trial court filed a

judgment entry stating that the case would be dismissed within seven days unless further

action was taken in the interim; it stated that the order would be self-executing. On

January 2, 2019, the court ordered that the minor’s name and birth certificate be changed

back to the name held prior to the adoption.

         {¶ 7} On July 18, 2019, appellant filed a motion to reopen the case to permit the

filing of a Civ.R. 60(B) motion for relief from judgment. Appellants’ motion and request

for a hearing were filed the same day. On July 31, 2019, prior to ruling on a motion for

an extension of time to respond filed by appellee, the trial court denied the motion. The

court’s denial of the motion expressed that its decision vacating the adoption

                [was] not based on the merit of any information filed within the

         Motion to Contest the Adoption filed by attorney Dwayne Galloway.

         Rather, the Court’s vacation of the adoption order was based on the

         noncompliance with the statutory requirements for acceptance of the

         father’s consent.

         {¶ 8} This appeal followed with appellants raising the following assignment of

error:




4.
              The probate court erred in denying petitioners-appellants’ Civil Rule

       60(B) motion without a hearing.

       {¶ 9} We first address the question of whether the probate court had the authority

to, sua sponte, vacate the final order of adoption. Generally, a court may only vacate a

final order pursuant to Civ.R. 60(B). N. Shore Auto Financing, Inc. v. Valentine, 8th

Dist. Cuyahoga No. 90686, 2008-Ohio-4611, ¶ 12. However, the court has the inherent

authority to vacate a void judgment. Id. at ¶ 13. “A judgment is considered void ‘where

the court lacks jurisdiction of the subject matter or of the parties or where the court acts

in a manner contrary to due process.’” Id., quoting Patton v. Diemer, 35 Ohio St.3d 68,

518 N.E.2d 941 (1988), paragraph four of the syllabus. In the case of adoption, valid

consent of a biological parent, if required, is a jurisdictional requirement. In re Adoption

of Zschach, 75 Ohio St.3d 648, 657, 665 N.E.2d 1070 (1996). Thus, we conclude that if

appellee’s consent was not properly obtained, the adoption was void and the court had the

inherent authority to vacate the judgment.

       {¶ 10} Appellants’ sole assignment of error asserts that the trial court deprived

them of due process of law by summarily denying their motion for relief. We review a

court’s denial of a motion for relief from judgment under Civ.R. 60(B) for an abuse of

discretion. Rotroff v. Rotroff, 6th Dist. Fulton No. F-06-019, 2007-Ohio-2391, ¶ 7,

quoting Griffey v. Rajan, 33 Ohio St.3d 75, 77, 514 N.E.2d 1122 (1987).




5.
       {¶ 11} A movant is entitled to relief under Civ.R. 60(B) after showing, through

operative facts presented in evidentiary form, all three of the following: “(1) the party has

a meritorious defense or claim to present if relief is granted; (2) the party is entitled to

relief under one of the grounds stated in Civ.R. 60(B)(1) through (5); and (3) the motion

is made within a reasonable time, and, where the grounds of relief are Civ.R. 60(B)(1),

(2) or (3), not more than one year after the judgment, order or proceeding was entered or

taken.” GTE Automatic Elec. v. ARC Industries, 47 Ohio St.2d 146, 351 N.E.2d 113

(1976), paragraph two of the syllabus. If any of these three requirements is not met, the

motion should be overruled. Rose Chevrolet, Inc. v. Adams, 36 Ohio St.3d 17, 20, 526

N.E.2d 564 (1988).

       {¶ 12} Civ.R. 60(B) provides that a court may relieve a party from a final

judgment for the following reasons:

              (1) mistake, inadvertence, surprise or excusable neglect; (2) newly

       discovered evidence which by due diligence could not have been

       discovered in time to move for a new trial under Rule 59(B); (3) fraud

       (whether heretofore denominated intrinsic or extrinsic), misrepresentation

       or other misconduct of an adverse party; (4) the judgment has been

       satisfied, released or discharged, or a prior judgment upon which it is based

       has been reversed or otherwise vacated, or it is no longer equitable that the




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       judgment should have prospective application; or (5) any other reason

       justifying relief from the judgment.

       {¶ 13} A party is entitled to relief from judgment under Civ.R. 60(B)(5), the

“catchall” provision, only if he can demonstrate any other reason not listed in Civ.R.

60(B)(1)-(4) that justifies relief being granted. The catchall provision should only be

used in rare cases where substantial grounds exist to justify relief. Wiley v. Gibson, 125

Ohio App.3d 77, 81, 707 N.E.2d 1151 (1st Dist.1997). Furthermore, a Civ.R. 60(B)

motion is not to be used as a substitute for direct appeal. State ex rel. Bragg v. Seidner,

92 Ohio St.3d 87, 748 N.E.2d 532 (2001).

       {¶ 14} In the court below, appellants first argued in their motion that they were

entitled to relief under Civ.R. 60(B)(1) because the court made three “mistakes:” 1) it did

not properly dispose of appellee’s motion to contest after the final decree for adoption

was issued; 2) it erroneously accepted appellee’s allegations without first conducting a

hearing; and 3) it erred in vacating the adoption where appellee’s consent was not

necessary as he failed to support the child for one year prior to the filing of the adoption.

       {¶ 15} As to Civ.R. 60(B)(3), fraud, appellants argued that the court vacated the

adoption order based on the fraudulent representations of appellee made in his affidavit

attached to his motion. Again, in its judgment entry denying the motion the court

stressed that it did not rely on any assertions of appellant in vacating the adoption order.




7.
       {¶ 16} Below, and before us on appeal, appellants chiefly argue that they were

entitled to relief under Civ.R. 60(B)(5) because adoption proceedings by their nature

require certainty and finality and that theirs and the child’s interests in the parent-child

relationship is a fundamental liberty interest which requires due process of law. We

agree with both of these general assertions as it is well-settled that “parents possess a

fundamental liberty interest in the care and custody of their children [and that] the state

may not deprive parents of their parental rights without due process of law.” Matter of

J.T., 2019-Ohio-465, 129 N.E.3d 946, ¶ 29 (4th Dist.), citing In re James, 113 Ohio St.3d

420, 2007-Ohio-2335, 866 N.E.2d 467, ¶ 16.

       {¶ 17} As set forth above, parental consent to an adoption order “‘is [a]

jurisdictional prerequisite which, if absent, allows the order to be attacked as void.’”

Zschach, 75 Ohio St.3d at 657, 665 N.E.2d 1070, quoting McGinty v. Jewish Children’s

Bur., 46 Ohio St.3d 159, 161, 545 N.E.2d 1272 (1989). Further, a valid consent is “one

which has been freely, knowingly, and voluntarily given with a full understanding of the

adoption process and the consequences of one’s actions.” In re Adoption of Infant Girl

Banda, 53 Ohio App.3d 104, 108, 559 N.E.2d 1373 (10th Dist.1988). Moreover, “[t]he

consent provisions of R.C. 3107.07(A) are to be strictly construed to protect the interests

of the non-consenting parent.” In re Adoption of N.T.R., 10th Dist. Franklin No. 15AP-

955, 2016-Ohio-3427, ¶ 12, citing In re Adoption of Sunderhaus, 63 Ohio St.3d 127, 132,




8.
585 N.E.2d 418 (1992); In re Adoption of G.V., 126 Ohio St.3d 249, 2010-Ohio-3349,

933 N.E.2d 245, ¶ 6.

      {¶ 18} The statutory conditions required for the court’s acceptance of parental

consent is set forth in R.C. 3107.081, which provides:

              (A) Except as provided in divisions (B), (E), and (F) of this section,

      a parent of a minor, who will be, if adopted, an adopted person as defined

      in section 3107.45 of the Revised Code, shall do all of the following as a

      condition of a court accepting the parent’s consent to the minor’s adoption:

              (1) Appear personally before the court;

              (2) Sign the component of the form prescribed under division

      (A)(1)(a) of section 3107.083 of the Revised Code;

              (3) Check either the “yes” or “no” space provided on the

      component of the form prescribed under division (A)(1)(b) of section

      3107.083 of the Revised Code and sign that component;

              (4) If the parent is the mother, complete and sign the component of

      the form prescribed under division (A)(1)(c) of section 3107.083 of the

      Revised Code.

             At the time the parent signs the components of the form prescribed

      under divisions (A)(1)(a), (b), and (c) of section 3107.083 of the Revised

      Code, the parent may sign, if the parent chooses to do so, the components




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      of the form prescribed under divisions (A)(1)(d), (e), and (f) of that section.

      After the parent signs the components required to be signed and any

      discretionary components the parent chooses to sign, the parent, or the

      attorney arranging the adoption, shall file the form and parent’s consent

      with the court. The court or attorney shall give the parent a copy of the

      form and consent. The court and attorney shall keep a copy of the form and

      consent in the court and attorney’s records of the adoption.

             The court shall question the parent to determine that the parent

      understands the adoption process, the ramifications of consenting to the

      adoption, each component of the form prescribed under division (A)(1) of

      section 3107.083 of the Revised Code, and that the minor and adoptive

      parent may receive identifying information about the parent in accordance

      with section 3107.47 of the Revised Code unless the parent checks the “no”

      space provided on the component of the form prescribed under division

      (A)(1)(b) of section 3107.083 of the Revised Code or has a denial of release

      form filed with the department of health under section 3107.46 of the

      Revised Code. The court also shall question the parent to determine that

      the parent’s consent to the adoption and any decisions the parent makes in

      filling out the form prescribed under division (A)(1) of section 3107.083 of

      the Revised Code are made voluntarily.




10.
       {¶ 19} Before granting an adoption, the trial court must hear evidence as to

whether first, “the required consents have been obtained or excused” and second, whether

“the adoption is in the best interest of the person sought to be adopted.” In re Adoption of

Walters, 112 Ohio St.3d 315, 2007-Ohio-7, 859 N.E.2d 545, ¶ 5; R.C. 3107.14(C). See

also In re Adoption of Fenimore, 2d Dist. Montgomery No. 17902, 2000 WL 204389

(Jan. 28, 2000), *1. This evidence may be presented in separate hearings or jointly.

Walters at ¶ 22.

       {¶ 20} Reviewing Ohio case law involving parental consent, we find the Second

Appellate District’s analysis in In re Adoption of Jimenez, 136 Ohio App.3d 223, 736

N.E.2d 477 (2d Dist.1999), illustrative. In Jimenez, the natural mother was 18 and single

at the time of the child’s birth. She had considered adoption but changed her mind. After

struggling to care for the child, appellant agreed to allow her aunt to care for the child on

a temporary basis. Id. at 225.

       {¶ 21} After a few weeks, appellant met with her aunt and uncle and their attorney

to discuss a possible adoption. The parties agreed that the attorney informed appellant

that if she signed the consent for placement, for a six month period she could change her

mind. Id. at 226. After that time she would execute a consent for adoption. The attorney

failed to explain that in addition withdrawing her consent, she would have to show that it

was in the child’s best interests to have the consent withdrawn. Id. The court further

stated at a hearing that appellant’s consent could only be withdrawn for good cause




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shown but did not explain what that meant. Shortly thereafter, appellant filed a motion to

withdraw her consent; it was denied. Id.

       {¶ 22} On appeal, the court first noted the attorney’s “inaccurate and misleading”

advice about appellant’s ability to withdraw her consent. Id. at 228. The court stated that

the magistrate then failed to explain what would be required in order for appellant to

withdraw her consent. Id. Finally, the court emphasized that the magistrate did not

“strictly comply” with the requirement in R.C. 3107.081(A)(4) that the magistrate

“question [appellant] to determine her understanding of the adoption process and of the

ramifications of her consent.” Id. at 228-229. The court then reversed the probate court’s

denial of appellant’s motion to withdraw her consent to adoption. Id. at 231. This case

highlights the importance of the requirement that the court ascertain that the consenting

parent understands the effect of the consent.

       {¶ 23} Appellants further contend that they have a meritorious defense because

appellee could not have withdrawn his consent to adoption absent a showing of duress or

fraud. In the trial court’s judgment entry denying appellants’ Civ.R. 60(B) motion, it

specifically stated that its “rulings were not based on the merit of any information filed

within the Motion to Contest the Adoption,” but that it vacated the adoption order

because, as in Jimenez, the court failed to address appellee to determine that he

understood the nature of the adoption proceedings and the effect of his consent. Thus, we

reject this argument.




12.
       {¶ 24} Appellants assert that they have a meritorious claim in that the court should

have granted them relief from judgment and allowed them to amend their petition for

adoption to assert that consent for adoption was not required because appellee failed to

provide maintenance and support for a least one year prior to the filing of the adoption

petition under R.C. 3107.07(A).

       {¶ 25} We find this alternative argument untenable. The court clearly indicated in

its December 17, 2018 judgment entry, approximately one month after it vacated the

adoption, that the matter would be dismissed within seven days if no further action was

taken. Further, in denying appellants’ Civ.R. 60(B) motion the court stated:

              As no amended petition or request for hearing on consent was filed

       with the Court during the month since the filing of the order vacating the

       adoption, the Court did not see any reason to set a further status review.

       Instead, the Court issued a Judgment Entry dated December 17, 2018,

       advising the case would be dismissed for lack of prosecution in seven days

       from the date of the Judgment Entry unless further action was taken within

       that time.

       {¶ 26} Appellants were clearly given the opportunity to file an amended petition

prior to the dismissal of the action; thus, arguing that a claim that they did not assert in

their petition for adoption entitles them to relief runs afoul of the intent of Civ.R. 60(B).

Early on, appellants had full knowledge of whether consent of appellee was required.




13.
       {¶ 27} We are mindful that appellants have cared for and bonded with the child

however the court, based on appellants’ petition for adoption which stated that consent of

the father was necessary, was required to address appellee to confirm that his consent was

informed prior to granting the petition. Due process protections apply to all parties to an

adoption proceeding. Accordingly, we find that the trial court did not abuse its discretion

when it denied appellants’ Civ.R. 60(B) motion for relief from judgment. Appellants’

assignment of error is not well-taken.

       {¶ 28} On consideration whereof, we find that substantial justice was done the

party complaining and the judgment of the Erie County Court of Common Pleas, Probate

Division, is affirmed. Pursuant to App.R. 24, appellants are ordered to pay the costs of

this appeal.

                                                                        Judgment affirmed.

       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.

Mark L. Pietrykowski, J.                       ____________________________
                                                       JUDGE
Christine E. Mayle, J.
                                               ____________________________
Gene A. Zmuda, P.J.                                    JUDGE
CONCUR.
                                               ____________________________
                                                       JUDGE

       This decision is subject to further editing by the Supreme Court of
  Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
       version are advised to visit the Ohio Supreme Court’s web site at:
                http://www.supremecourt.ohio.gov/ROD/docs/.




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