[Cite as In re Adoption of K.R.T., 2014-Ohio-2532.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                  Nos. 100252 and 100253




                  IN RE: ADOPTION OF K.R.T., ET AL.

                                        Minor Children

                              [Appeal by T.W.T. and S.T.]


                                   JUDGMENT:
                             REVERSED AND REMANDED


                                     Civil Appeal from the
                           Cuyahoga County Court of Common Pleas
                                       Probate Division
                        Case Nos. 2012 ADP 07759 and 2012 ADP 07760

        BEFORE: S. Gallagher, P.J., Keough, J., and E.T. Gallagher, J.

        RELEASED AND JOURNALIZED: June 12, 2014
ATTORNEY FOR APPELLANTS

Lawrence J. Rich
Zashin & Rich Co., L.P.A.
55 Public Square
Fourth Floor
Cleveland, OH 44113
SEAN C. GALLAGHER, P.J.:

       {¶1} In this consolidated appeal, S.T. and T.W.T. (collectively “the petitioners”),

appeal from the probate court decision denying petitions to adopt C.L.T. and K.R.T.

(collectively “the children”). Finding merit to the petitioners’ argument, we reverse the

decision of the trial court and remand for further proceedings.

       {¶2} This is the second appeal from the probate court’s decision to deny this

uncontested adoption. In In re Adoption of C.L.T. and K.R.T., 8th Dist. Cuyahoga Nos.

98686 and 68687, 2012-Ohio-5706, this court reversed the probate court’s decision

denying the petitioners’ request for adoption. The probate court based its ruling on

evidence contained in confidential Cuyahoga County Department of Children and Family

Services (“CCDCFS”) records, records the probate court requested for an in camera

inspection.   Id. at ¶ 2.     In that appeal, we determined that the probate court’s

consideration of      T.W.T.’s documented referrals to CCDCFS without allowing the

petitioners an opportunity to discuss the circumstances of the referrals was reversible

error. Id. at ¶ 17.

       {¶3} Between 1997 and 2000, T.W.T. had four referrals to CCDCFS for

allegations of neglect or abuse regarding her biological children.      There were two

additional reports generated in 2004 and 2006, although the reports, included in the

record, indicated that the allegations were never substantiated and CCDCFS closed the
investigations without taking any actions. It is undisputed that neither of the petitioners

have had any issues regarding their care and supervision of the children in this case.

       {¶4} On remand, the probate court held a hearing, questioned T.W.T. about the

past allegations as directed by this court, and in addition, questioned S.T. about two minor

consumer credit collection actions filed against him and an amended 2011 tax return. At

the conclusion of the hearing, the probate court deemed the petitioners not credible and,

based on the decade-old incidents and S.T.’s “money issues,” denied the petition for

adoption.

       {¶5} The following facts are undisputed:

              Petitioners began fostering C.L.T. when he was three days old. * * *
       C.L.T. was born drug dependant and required special care for his
       developmental delays. Petitioners ensured that he received the appropriate
       interventions, and C.L.T. is now developmentally on target for his age.
       K.R.T. is C.L.T.’s biological sister. She was also placed with the
       petitioners as an infant after being discharged from the hospital, and she
       also had developmental delays. Petitioners similarly ensured that [K.R.T.]
       received all appropriate interventions.

              T.W.T. testified about concerns that had been raised regarding past
       reports of neglect and abuse with her biological children. T.W.T.
       explained that during that time, she was in a volatile relationship with
       another man who was no longer in the picture. She also testified that these
       children no longer lived in the home because they were all now adults, but
       that she has good relationships with these children.

               Avis Hall (“Hall”), CCDCFS case manager, testified that she had
       interacted with the petitioners and the children dozens of times over the last
       two-plus years, that the petitioners were well-suited for the children, and
       that, in her opinion, the adoption was in the best interest of both children.

              Amy Filippi (“Filippi”), CCDCFS resource manager, also testified
       and stated that she had similarly interacted with the petitioners and the
       children dozens of times since 2009. Filippi stated that “[b]oth children are
       completely bonded,” that she “would never even think that the [children]
       were not [petitioners’] own children,” and that “[a]ll [the children’s] needs
       are met * * * [m]edical appointments, therapies, schools.” Filippi testified
       that, in her opinion, the adoption was in the best interest of both children.

              The probate court asked only one line of questions during the
       proceedings. The questions were directed to T.W.T. and involved the
       status of her legal name. T.W.T. explained that she had legally changed
       her name with the social security office after she was married, but she had
       not yet changed her name with the Department of Motor Vehicles because
       she had a commercial driver’s license and wanted to wait until it was about
       to expire before she incurred the expense of a new commercial driver’s
       license.

Id. at ¶ 4-8.     After the remand, the record was supplemented.             The CCDCFS

representatives and the guardian ad litem (“GAL”), in addition to the prior testimony,

clarified that they were all aware of T.W.T.’s prior issues and, nevertheless, fully

supported the adoption, universally citing the children’s best interest. All testified that

T.W.T. matured from the time period during which the referrals surfaced and was now a

capable and suitable parent for the children, especially with the help of S.T.

       {¶6} Further, Angela Tompkins, a supervisor with CCDCFS, reviewed T.W.T.’s

prior records and thoroughly discussed all of the issues with her direct supervisor, the

deputy director of CCDCFS. Tompkins stated that although the decision was not led to

easily, the family has strengths to balance out the troubles T.W.T. had in the past.

Tompkins also described the effects of denying the adoptions. In that case, CCDCFS

would be obligated to list the children as “available,” and if another family expressed

interest in the children, CCDCFS would be statutorily required to remove the children

from their home. Tompkins stated as follows:
       [U]ltimately, in making the recommendation for the children and their
       well-being, again, I would just restate that I think it would be, you know,
       the emotional damage that would happen to them, it would be * * * more
       damaging to them than anything that might be similar to what [T.W.T.] has
       experienced with her older children in the past.

Tompkins confidently recommended the adoption proceed based on past experiences of

other foster parents and children.

       {¶7} Finally, the petitioners responded to the probate court’s concern with

T.W.T.’s prior record with CCDCFS, both acknowledging the parenting issues in the past

and questioning the substantiated findings of abuse or neglect to some degree.              In

addition, the petitioners presented evidence that they purchased a new home in Solon,

Ohio. Petitioners desired for the children to have access to that school system.

       {¶8} Despite the uncontested evidence presented by the CCDCFS representatives

and the GAL, the probate court deemed the petitioners not credible and again denied the

adoption, holding that “the court has grave concerns about the credibility, honesty and

character of petitioners.” The probate court also found that the petition for adoption was

not timely filed. It is from this decision that the petitioners timely appeal, raising as their

sole assignment of error that the trial court abused its discretion in denying the petitions

for adoptions. We find merit to the sole assignment of error.

       {¶9} In reviewing a petition to adopt,

       [i]f, at the conclusion of the hearing, the court finds that the required
       consents have been obtained or excused and that the adoption is in the best
       interest of the person sought to be adopted as supported by the evidence, it
       may issue * * * a final decree of adoption or an interlocutory order of
       adoption.
R.C. 3107.14(C). 1 Thus, we review a probate court’s decision to grant or deny an

adoption petition under an abuse-of-discretion standard. In Re Adoption of Ridenour, 61

Ohio St.3d 319, 320, 574 N.E.2d 1055 (1991). An abuse of discretion implies a decision

that is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio

St.3d 217, 219, 450 N.E.2d 1140 (1983).

       {¶10} When a court makes a determination concerning the best interest of the child

during an adoption proceeding, the legislature provided 11 non-exclusive factors the trial

court must consider.        R.C. 3107.161(B).        Among those 11 factors, the court must

consider the least detrimental alternative for safeguarding the child’s growth and

development, the age and health of the child, the importance of providing permanency

and stability for the child, the child’s relationship with the parents and other siblings, the

child’s adjustment to the current home, and whether any individual involved in the

situation has been convicted of, pleaded guilty to, or accused of any criminal offense

involving any act that resulted in an abused or neglected child.                            See R.C.

3107.161(B)(1)-(11). Further, the failure to timely file a petition for adoption is not

grounds for denying the petition. R.C. 3107.051.



       1
          We note that R.C. 3107.14(C) provides the only standard of review for the probate court’s
hearing on the petition for adoption, the standard being whether the adoption is in the best interest of
the child. In the past, the hearing involved an inquiry into both the best interest of the child and the
suitability of the adoptive parent(s). State ex rel. Portage Cty. Welfare Dept. v. Summers, 38 Ohio
St.2d 144, 151, 311 N.E.2d 6 (1974) (citing the version of R.C. 3107.09 in effect that set forth the
dual-prong inquiry). Presumably, the suitability of the adoptive parent(s) is incorporated into the
best interest of the child standard and, therefore, is no longer a separate inquiry.
       {¶11} Understandably, and as required pursuant to R.C. 3107.161(B)(11), the

probate court considered T.W.T.’s past experience with CCDCFS regarding her

biological children in determining the best interest of the children and also questioned the

petitioners’ financial ability to provide for the children. The probate court properly

delved into these issues in the hearing, and we understand the hesitance with which the

court acted. However, the past experience was considered to the exclusion of all other

factors. In this case, the probate court’s final entry is devoid of any indication that all the

statutory factors were considered, and the final entry focuses solely on T.W.T.’s past

experience with CCDCFS and the petitioners’ lack of “credibility, honesty and character.”

 In light of this, we must find that the court abused its discretion in denying the petitions

for adoption in failing to consider all the statutory factors.

       {¶12} We are compelled to find that the undisputed evidence established that it

was in the best interest of the children to proceed with the adoption; that the children

could be removed from the home if the adoption is denied, resulting in incalculable

detriment to their continued development; that the children thrived and bonded with the

petitioners; and that the children have moved past the developmental issues plaguing

them from birth, through the support and dedication of the petitioners. At oral argument

before the probate court and again in this appeal, petitioners indicated there would be no

objection to CCDCFS’s periodic monitoring after the petition was granted.              In this

unique circumstance and based on the undisputed evidence presented in the record, we

reverse the decision of the trial court and remand for the limited purpose of entering an
order granting the petition for adoption. Upon remand, the court may consider including

an order for periodic visits by CCDCFS to ascertain the condition and functioning of the

children in the home environment and a requirement that CCDCFS maintain contact with

petitioners to ensure the probate court’s concerns are addressed moving forward.

      {¶13} The decision of the probate court is reversed, and the matter is remanded.

      It is ordered that appellants bear the costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate be sent to said 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.



SEAN C. GALLAGHER, PRESIDING JUDGE

KATHLEEN ANN KEOUGH, J., and
EILEEN T. GALLAGHER, J., CONCUR
