Summary
describing standard for determining validity of consent and "how that consent may have been affected by duress or undue influence"
Summary of this case from In re Adoption of S.K.L.HOpinion
Nos. 85-1427 and 86-72
Decided December 26, 1986.
Adoption — Consent to adoption valid, when.
APPEAL from the Court of Appeals for Portage County.
CERTIFIED by the Court of Appeals for Summit County.
Rhonda Morrow (hereinafter "Morrow") and Theodore Toles III (hereinafter "Toles") were students at Kent State University during the 1981-1982 school year. In the spring of 1982, Morrow discovered that she was pregnant. Toles was the undisputed father. Facing the prospect of an unstable personal relationship and little or no financial support, Morrow contacted Family Community Services of Catholic Charities, Inc. (hereinafter "Catholic Charities") to discuss the possibility of placing her yet unborn child for adoption.
On July 29, 1982, Morrow gave birth to Stephen M. Morrow at Robinson Memorial Hospital. On August 2, 1982, Morrow executed an agreement for temporary care of the child with Catholic Charities. One or two days later, the child was released from the hospital in the custody of a Catholic Charities representative. The child was placed in a foster home on August 14, 1982. Some time later, Salva Sedlack, an agent, caseworker and adoption counselor for Catholic Charities, made numerous attempts to persuade Morrow to appear at the Portage County Juvenile Court for informal conferences concerning the permanent custody of the child. Sedlack failed to obtain Morrow's appearance at conferences scheduled on September 4 and September 20, 1982. No formal notice had emanated from the juvenile court concerning either conference.
On September 20, 1982, Sedlack signed a formal complaint against Morrow and Toles in which she claimed under oath that Stephen M. Morrow appeared to be a dependent/neglected child and averred that his parents had failed to provide him with necessary subsistence, medical care or other care necessary for his health, morals or well-being and requested that the rights of the parents be permanently divested pursuant to R.C. 2151.03(C). This complaint indicated that the matter would be set for hearing on October 13, 1982.
Subsequent to the formal service of this complaint on Morrow, she appeared with Sedlack before the juvenile court judge on September 22, 1982. During the course of the conference, Morrow was asked if she was willing to sign away her parental and custodial rights to Stephen M. Morrow. Morrow indicated to the court that she was not "quite ready" to sign the waiver and consent form to surrender permanent custody of her child for the purposes of adoption. Morrow requested additional time to consider the matter since it was not scheduled for a formal hearing until October 13, 1982. She also asked if the court could appoint an attorney for her. The court replied:
"We could, but if you want an attorney we will drop the whole thing and let you take the child. Since you turned the child over voluntarily, they will turn it back to you voluntarily. It's a little difficult to say the child is dependent, since Catholic Charities has been taking care of it. I think you have to make up your mind whether you want to take care of the child or not. We will continue this matter for about three weeks, as it will probably take that much time to get him in. I hate to go much longer. Let's try to get the natural father in, so we will continue this matter to three weeks from today at the same time and place. If you have any doubts at all about giving up the child, you better make up your mind right away."
Morrow made no further requests for an attorney.
On October 13, 1982, Morrow appeared before the court with Toles. Both parents had been properly served with summons and notice of the proceedings and were fully advised of the contents of the complaint. At the hearing, the parents were presented with an "Acknowledgment[,] Waiver and Consent form." They were advised that they had a right to have an attorney. They were also aware that once the form was signed, that all of their parental rights would be severed. Both parents signed the form.
See Appendix, infra, at 255.
On that same date, the juvenile court entered a judgment in which it made the express finding that Stephen M. Morrow was dependent/neglected and should be made a ward of the court. It then entered its order divesting the natural parents of all parental rights and privileges. By separate order under that date, the court awarded permanent custody to Catholic Charities for purposes of adoption. No appeal was taken from this judgment and on November 15, 1982, the child was placed with Marilyn and Elmo White, Jr. The child has remained with the Whites since that time, and was renamed Kemuel Kadish White.
On May 12, 1983, Morrow and Toles filed a Civ. R. 60(B) motion with the Portage County Juvenile Court to vacate the judgment of October 13, 1982. The juvenile court overruled that motion on July 12, 1983. Morrow and Toles then appealed that decision to the Court of Appeals for Portage County. On July 19, 1983, the Whites filed a petition for adoption in the Summit County Probate Court.
On October 29, 1984, the Court of Appeals for Portage County reversed and vacated the juvenile court judgments of October 13, 1982 and July 12, 1983. The court of appeals determined that Morrow had a right to an attorney when she asked the juvenile court to appoint one for her on September 22, 1982. The issue of consent was not before the court of appeals and the court did not address that issue. This court refused further review of the court of appeals' decision on January 23, 1985.
Morrow v. Family Community Services of Catholic Charities, Inc. (Oct. 29, 1984), Portage App. No. 1376, unreported.
Case No. 84-1828.
Following the decision of the Court of Appeals for Portage County, Morrow and Toles contested the adoption proceedings in the Summit County Probate Court on the ground that the court lacked subject matter jurisdiction. Although Morrow did not formally seek to withdraw her consent, the Summit County Probate Court treated her objections as such, and overruled the same on March 25, 1985, thus refusing to permit a withdrawal of consent as contrary to the best interests of the child. The final order of adoption of the child by the Whites was entered on April 11, 1985. Subsequently, Morrow appealed that decision to the Court of Appeals for Summit County.
During the time the adoption proceeding was pending in the Summit County Probate Court, Morrow and Toles initiated an original habeas corpus action in the Court of Appeals for Portage County. Their complaint was filed on March 1, 1985, a month before the Summit County Probate Court entered the final order of adoption. They sought an order directing Catholic Charities and the Whites to return the child to them. On September 9, 1985, the Court of Appeals for Portage County issued the writ ordering the return of the child. The court of appeals concluded that Morrow and Toles had not (1) abandoned the child; (2) neglected or caused the child to be dependent; (3) relinquished the child permanently for the purposes of adoption; or (4) legally, knowledgeably and voluntarily consented to the child's permanent placement for adoption. The court determined that the consents obtained from Morrow and Toles on October 13, 1982 in the juvenile court were invalid and that the order of adoption issued by the Summit County Probate Court was void and without legal effect because of a want of subject matter jurisdiction. The cause is now before this court upon an appeal as a matter of right in case No. 85-1427.
Morrow v. Family Community Services of Catholic Charities, Inc. (Sept. 9, 1985), Portage App. No. 1560, unreported.
On December 18, 1985, the Court of Appeals for Summit County affirmed the final order of adoption issued by the Summit County Probate Court on April 11, 1985. The court of appeals found that the consent form signed by the natural parents on October 13, 1982 was valid and that a withdrawal of consent would not be in the child's best interests. The court, finding its judgment to be in conflict with the judgment rendered by the Court of Appeals for Portage County in the habeas corpus proceeding, certified the record of the case to this court for review and final determination in case No. 86-72.
Gerald B. Graham, for appellees and appellants, Rhonda Morrow and Theodore Toles III.
Teodosio, Cherpas Manos, Alexander E. Teodosio and Barry M. Ward, for appellants and appellees Marilyn and Elmo S. White.
Murphey, Young Smith, David J. Young and William Douglas Lowe, urging reversal for amicus curiae, Catholic Conference of Ohio in case No. 85-1427.
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; * * *"
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, 1982 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.
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."
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. 3107.05(B) 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.
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."
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.
The majority's holding, that the "Acknowledgment, Waiver and Consent" which Morrow and Toles signed pursuant to the now vacated dependency and neglect action could stand as an independent consent sufficient to grant the probate court jurisdiction to proceed with the adoption, contravenes the mandate of R.C. 3107.06. Therefore, I must respectfully dissent.
R.C. 3107.06 provides as follows:
"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;
"* * *
"(C) Any person or agency having permanent custody of the minor or authorized by court order to consent;
"* * *
"(F) Subject to division (B) of section 3107.07 of the Revised Code, the putative father, if he:
"(1) Is alleged to be the father of the minor in proceedings brought under Chapter 3111. of the Revised Code at any time before the placement of the minor in the home of the petitioner;
"(2) Has acknowledged the child in a writing sworn to before a notary public at any time before the placement of the minor in the home of the petitioner;
"(3) Has signed the birth certificate of the child as informant as provided in section 3705.14 of the Revised Code;
"(4) Has filed an objection to the adoption with the agency having custody of the minor or the department of public welfare at any time before the placement of the minor in the home of the petitioner, or with the probate court or the department of public welfare within thirty days of the filing of a petition to adopt the minor or its placement in the home of the petitioner, whichever occurs first."
R.C. 3107.07 provides in part that consent is not required of any of the following people:
"(B) The putative father of a minor if the putative father fails to file an objection with the court, the department of public welfare, or the agency having custody of the minor as provided in division (F)(4) of section 3107.06 of the Revised Code, or files an objection with the court, department, or agency and the court finds, after proper service of notice and hearing, that he is not the father of the minor, or that he has willfully abandoned or failed to care for and support the minor, or abandoned the mother of the minor during her pregnancy and up to the time of her surrender of the minor, or its placement in the home of the petitioner, whichever occurs first;
"(C) A parent who has relinquished his right to consent under section 5103.15 of the Revised Code;
"(D) A parent whose parental rights have been terminated by order of a juvenile court under Chapter 2151. of the Revised Code; * * *"
Appellants assert that the "Acknowledgment, Waiver and Consent" signed in the dependency and neglect proceedings is not proper consent to an adoption and that the document's legal existence ceased when the judgment of October 13, 1982 was vacated.
Provisions authorizing adoptions are purely statutory, and strict compliance with them is necessary. Lemley v. Kaiser (1983), 6 Ohio St.3d 258, 260. Consent of the natural parents is the keystone of the adoption statute. "Any exception to the requirement of parental consent must be strictly construed so as to protect the right of natural parents to raise and nurture their children." In re Schoeppner (1976), 46 Ohio St.2d 21, 24 [75 O.O.2d 12]. See, also, In re Adoption of Holcomb (1985), 18 Ohio St.3d 361. The consent of the natural mother and acknowledged father is required unless they have voluntarily relinquished their parental rights pursuant to R.C. 5103.15 or their parental rights have been terminated by the juvenile court. A court is without jurisdiction to render an order of adoption absent proper consent. See In re Ramsey (1956), 164 Ohio St. 567 [58 O.O. 431].
It is argued that since Morrow and Toles' parental rights had been terminated pursuant to the dependency and neglect proceeding, their consent to an adoption was not required at the time the adoption petition was filed in the Summit County Probate Court. Thus, the adoption petition properly stated that consent would be provided by Catholic Charities. However, Morrow and Toles challenged the dependency and neglect judgment, and it was vacated by the Eleventh Appellate District subsequent to the filing of the adoption petition, but before the final order of adoption was granted. Since this entry was vacated, Catholic Charities no longer had any legal authority to consent to the adoption.
Because the adoption could not proceed without a consent, the Summit County Probate Court substituted the "Acknowledgment, Waiver and Consent," which Morrow and Toles had signed in the now vacated dependency and neglect action, for the Catholic Charities consent, and found that it was an affirmative parental consent to the adoption.
The "Acknowledgment, Waiver and Consent" was signed pursuant to the dependency and neglect proceedings. Although it mentioned adoption as a potential consequence of the permanent termination of parental rights, it was not an independent consent. In fact, the dependency and neglect action was filed precisely because Morrow failed to sign an affirmative adoption consent. The Eleventh Appellate District necessarily vacated the "Acknowledgment, Waiver and Consent" when it vacated the dependency and neglect entry. Since it became a legal nullity, it could not subsequently be used as an affirmative consent to adoption.
Furthermore, since Morrow and Toles filed the Civ. R. 60(B) motion seeking to vacate the dependency and neglect action before the adoption petition was filed, they obviously did not consent to the adoption at the time the petition was filed or at the time the adoption was granted. Therefore, since the authority for Catholic Charities to consent to the adoption was vacated prior to the final order of adoption, and the natural parents never consented at any time during the adoption proceedings, there was obviously no valid consent to the adoption. I believe that the Summit County Probate Court erred in holding that the "Acknowledgment, Waiver and Consent" was valid consent for the adoption.
Adoption permanently terminates all parental rights and responsibilities of the natural parents. R.C. 3107.15(A)(1). Thus, valid consent is needed to protect the rights of the natural parents. See In re Adoption of Holcomb, supra; In re Hua (1980), 62 Ohio St.2d 227 [16 O.O.3d 270]. Adoption also creates the relationship of parent and child between the adopting parent and the child. R.C. 3107.15(A)(2).
I am not insensitive to the fact that the posture I have taken would put at risk that relationship between the child and the only parents the child has ever known. However, the majority decision will in my view open the door to a substantial flow of litigation attacking the underlying premises noted above.
For the foregoing reasons, I respectfully dissent.
APPENDIX
STATE OF OHIO ) IN THE JUVENILE COURT )SS PORTAGE COUNTY ) CASE NO. 82-400
IN THE MATTER OF: ACKNOWLEDGEMENT STEPHEN M. MORROW WAIVER AND CONSENT
Now comes the undersigned and acknowledges:
1. The reading of the Complaint.
2. That the Complaint is fully understood.
3. Being advised of the right of an attorney or the appointment of an attorney in these proceedings if indigent.
4. That the statements contained in the Complaint are true.
The undersigned hereby waives:
1. The right to have an attorney present.
2. The right of notice of summons as provided by Law.
The undersigned hereby consents:
1. To the jurisdiction of this Court.
2. To the immediate disposition of the matters contained in the Complaint.
3. To the Permanent Surrender of the care, custody, and control of the minor named in the Complaint to the Court.
4. To the placement of the minor named herein with a person or authorized agency approved by this Court for the temporary care, custody, and control for any purpose, including the placement for adoption.
5. To the relinquishment of this Court's jurisdiction to another Court having jurisdiction for the adoption of said minor.
__________ Father __________ Mother
Witness: __________ __________