[Cite as In re C.C.,

.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

IN THE MATTER OF : THE ADOPTION OF : : Appellate Case No. 26440 C.C. : : Trial Court Case No. 14ADP29 : : (Civil Appeal from Montgomery : County Probate Court) : :

...........

OPINION

Rendered on the 30th day of January, 2015.

...........

KEITH A. FRICKER, Atty. Reg. No. 0037355, 10 North Ludlow Street, Suite 950, Dayton, Ohio 45402 Attorney for Petitioner-appellant, C.H.

JAMES R. KIRKLAND, Atty. Reg. No. 0009731, 130 West Second Street, Suite 840, Dayton, Ohio 45402 Attorney for Respondent-appellee, K.C. .............

FAIN, J.

{¶ 1} Petitioner-appellant C.H. petitioned for the adoption of her grandson, C.C.,

with the Montgomery County Probate Court. Respondent-appellee K.C. objected to the -2- petition for adoption, based on the fact that he has legal custody of the child, C.C.,

pursuant to an order of Montgomery County Juvenile Court. The probate court dismissed

the petition for adoption upon the ground that the grandmother did not have any order of

placement. From this order of dismissal, C.H. appeals.

{¶ 2} C.H. contends that the probate court erred by requiring a placement as a

condition of the adoption, because grandparents are exempt from the statutory procedure

for adoptive placement established in R.C. 5103.16. We conclude that the probate court

did not err in dismissing the petition for adoption, because the petitioner failed to meet all

the statutory requirements for adoption. Accordingly, the court’s dismissal of the petition

for adoption is Affirmed.

I. The Course of the Proceedings

{¶ 3} C.C. is a sixteen year old minor, currently living with his biological father,

K.C., in Columbus, Ohio. K.C. consented to a step-parent adoption of C.C. when the child

was five years old, which terminated his legal rights as the natural father. However, after

the child’s mother died, K.C. became involved in his son’s life, and obtained an order of

legal custody from Montgomery County Juvenile Court in 2011. The juvenile court had

jurisdiction to grant legal custody to K.C. under R.C. 2151.23, which specifies that

juvenile courts have jurisdiction “to determine custody of any child, not a ward of another

court of this state.” Pursuant to R.C. 2151.417, once the juvenile court has issued an

order of custody, it has continuing jurisdiction over that child to take any action that is in

the best interest of the child.

{¶ 4} In 2014, C.H. filed a petition for adoption and a request for interim or -3- temporary placement. The probate court issued an order directing C.H. to serve K.C. with

a copy of her request for placement, and to show cause why the probate court had

jurisdiction to address placement, the juvenile court having continuing jurisdiction over its

order of custody to K.C. When C.H. did not reply to the order to show cause, the probate

court dismissed the request for interim or temporary placement.

{¶ 5} At the hearing on the objections to the adoption petition, the issue of the

probate court’s jurisdiction was raised, and later briefed by the parties. On September 26,

2014, the probate court issued an order finding that it has exclusive jurisdiction over

adoption proceedings under Chapter 3107, which may include an adoptive placement

pursuant to R.C. 5103.16. The probate court agreed that the grandmother is exempt from

the provision of R.C. 5103.16, and is not required to have an adoptive placement under

that provision, but held that she must have some type of placement or custody of C.C. to

meet the requirements of the adoption statutes, R.C. 3107.05 through R.C. 3107.141.

{¶ 6} Having found that the petitioner did not meet all the statutory requirements,

the court dismissed the petition for adoption. In her appeal, C.H. raises one assignment of

error, contending that the court erred in dismissing the petition.

II. Standard of Review

{¶ 7} There is no dispute that probate court has exclusive jurisdiction over

adoptions. There is no dispute that the juvenile court had jurisdiction over the custody of

the minor, C.C., and that the petitioner did not have custody or any other legal placement

of the child in her residence at the time she filed her petition for adoption. The sole issue

on appeal is whether the petitioner was required to obtain placement of the child in her -4- home as a necessary element to her petition for adoption. This presents an issue of

statutory construction, to determine whether the adoption statutes require placement as a

condition of adoption. Whether the probate court can order placement necessarily

requires the court to address the conflicting jurisdiction of the probate court and the

juvenile court to determine placement or custody, when the child’s custody is under the

continuing jurisdiction of the juvenile court. Both statutory construction and jurisdiction are

questions of law. We review questions of law with a de novo standard of review.

Dayspring of Miami Valley v. Shepherd, 2d Dist. Clark No. 06-CA-113,

; Lowry v. Rothstein, 2d Dist. Montgomery No. 22288,

, ¶ 11. De novo

review requires the reviewing court to determine the legal issues without any deference to

the trial court’s determination. Mattice v. Ohio Dept. of Job & Family Servs., 2d Dist.

Montgomery No. 25718,

.

III. Probate Court Has Exclusive Jurisdiction over Adoptions

{¶ 8} The Supreme Court of Ohio has repeatedly held that original and exclusive

jurisdiction over adoptions in Ohio is vested in probate court. In re Adoption of Pushcar,

,

,

; In re Adoption of G.V.,

,

,

; In re Adoption of P.A.C.,

,

,

, ¶ 1.

{¶ 9} Probate courts have jurisdiction to proceed with adoptions even where the

involved child is subject to custody orders within the continuing jurisdiction of domestic

relations or juvenile courts. In re Adoption of Joshua Tai T., 6th Dist. Ottawa No.

OT-07-055,

, citing

The Supreme Court of Ohio -5- has held that while the custody of a minor is within the continuing jurisdiction of a

domestic relations court, a probate court can still obtain jurisdiction over adoption

proceedings. In re Adoption of McDermitt,

,

(1980). Consequently, after the probate court grants an interlocutory order or a final

decree of adoption, the jurisdiction of the court that granted custody pursuant to a divorce

is terminated.

. We have recognized that the same rule applies to the case of a

petition for adoption of a child previously subject to the juvenile court's jurisdiction, which

continues until “the child is adopted and a final decree of adoption is issued.” In re Martin,

2d Dist. Montgomery Nos. 17432, 17461, 17464,

(Aug. 27, 1999).

{¶ 10} We recently reviewed the “priority doctrine,” and followed the established

rule that when two courts share concurrent jurisdiction, “the tribunal whose power is first

invoked acquires jurisdiction to adjudicate upon the whole issue and to settle the rights of

the parties to the exclusion of all other tribunals.” In re Adoption of H.N.R., 2d Dist.

Greene No. 2014-CA-35,

, quoting State ex rel. Otten v.

Henderson,

,

,

, ¶ 24. We

recognized that the priority doctrine has limited application when two courts have

exclusive jurisdiction over different issues. Id. at ¶ 20. Therefore, an exception to the

priority rule exists for adoption proceedings, which are within the exclusive jurisdiction of

probate court, unless the adoption cannot proceed until a pending parentage action is

completed, which is within the exclusive jurisdiction of juvenile court. Id., quoting In re

Adoption of G.V.,

,

,

. In the present

case, the juvenile court’s jurisdiction over the custody of C.C. was invoked first, before the

petition for adoption was filed in probate court, but no issues within the exclusive -6- jurisdiction of juvenile court were pending at the time the application for adoption was

considered. Therefore, the probate court did have jurisdiction to proceed with the

adoption proceedings, notwithstanding the continuing jurisdiction of juvenile court over its

previous order of custody.

IV. Placement is Required for Adoption

{¶ 11} Legal custody under juvenile law is defined by R.C. 2151.011 as:

[A] legal status that vests in the custodian the right to have physical

care and control of the child and to determine where and with whom the

child shall live, and the right and duty to protect, train, and discipline the

child and to provide the child with food, shelter, education, and medical

care, all subject to any residual parental rights, privileges, and

responsibilities. An individual granted legal custody shall exercise the rights

and responsibilities personally unless otherwise authorized by any section

of the Revised Code or by the court.

{¶ 12} Therefore, legal custody granted under the authority of a juvenile court

recognizes that the legal custodian has the legal right to designate the child’s placement,

based on the responsibility to “determine where and with whom the child shall live.”

{¶ 13} However, the juvenile court's order of legal custody is not a placement for

purposes of adoption under R.C. 5103.16(D). In re Adoption of J.A.S.,

,

,

. The statutory requirements set forth in

R.C. 5103.16(D) for placing a child in the home of the person seeking adoption must be

strictly followed. In re Adoption of J.A.S.,

. -7- {¶ 14} Effective May 22, 2012, R.C. 5103.16(E) was amended to include an

exception for legal custodians to bypass the pre-adoption placement requirements set

forth in R.C. 5103.16(D). This amendment was not in effect at the time several key cases

were decided regarding the adoptive placement process. As discussed in the J.A.S

decision, the provisions in R.C. 5103.16(D) for an adoptive placement approved by the

probate court contain an exception for grandparents who seek to adopt their grandchild.

Thus, the trial court correctly concluded that R.C. 5103.16 is not applicable to the petition

filed by the grandmother, C.H.

{¶ 15} Even though C.H. was exempt from the pre-adoption placement process

found in R.C. 5103.16, other statutory requirements of the adoption process require that

the child live in the home of the adoptive parent for at least six months before the adoption

can become final. Based on these statutes, reviewed below, the trial court correctly

concluded that a petition for adoption cannot be approved without a pre-adoptive

placement of the child with the petitioner.

{¶ 16} R.C. 3107.13 requires a waiting period prior to finality of the adoption to

allow time for a placement of the child in the petitioner’s home as follows:

(A) A final decree of adoption shall not be issued and an interlocutory

order of adoption does not become final, until the person to be adopted has

lived in the adoptive home for at least six months after placement by an

agency, or for at least six months after the department of job and family

services or the court has been informed of the placement of the person with

the petitioner, and the department or court has had an opportunity to

observe or investigate the adoptive home, or in the case of adoption by a -8- stepparent, until at least six months after the filing of the petition, or until the

child has lived in the home for at least six months.

(B) In the case of a foster caregiver adopting a foster child or person

adopting a child to whom the person is related, the court shall apply the

amount of time the child lived in the foster caregiver's or relative's home

prior to the date the foster caregiver or relative files the petition to adopt the

child toward the six-month waiting period established by division (A) of this

section.

{¶ 17} Several other provisions in the adoption chapter also support a finding that

the adoption process requires placement of the child in the home of the petitioner as a

condition to the court’s approval of a final order of adoption. R.C. 3107.11 sets up the

mandatory requirements for notice and a hearing before the adoption can be finalized.

R.C. 3107.11 states that 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.” R.C. 3107.13

requires that the child live in the home of the petitioner for at least 6 months. R.C. 3107.14

provides that the final order of adoption cannot be effective until six months after the

person to be adopted has been placed in the petitioner’s home. Furthermore, the

adoption statute, R.C. 3107.101, contemplates home visits by a court appointed assessor

to observe the child in the environment of prospective adoptive home, starting no later

than 7 days after placement and continuing monthly until the final decree of adoption is

granted.

{¶ 18} In the present case, the child, C.C., was living with his legal custodian, K.C.,

when the grandmother filed a petition for adoption and a motion for placement. Prior to -9- the hearing on the petition for adoption, the court entered an order requiring petitioner to

establish, within 14 days, why the petition should not be dismissed for her failure to serve

the motion on the legal custodian, and to show cause why the petition should not be

dismissed for lack of jurisdiction. Thirty days later, the court issued an order dismissing

petitioner’s request for placement, finding that petitioner had neither filed proof of service

nor shown cause. Therefore, no request for placement was pending when the court

conducted a hearing on the petition for adoption. The court correctly found that the

petition could not be granted without a prior placement of the child in the home of the

petitioner. Until the legal custodian’s rights are terminated by the juvenile court, by an

order of adoption, or by law when the child is no longer a minor, the legal custodian still

has the right to decide where and with whom the child shall live.

{¶ 19} Therefore, a person seeking to adopt a child who is living with a legal

custodian, must either obtain the permission of the legal custodian to place the child in

their home, must obtain an order of the juvenile court changing legal custody, or must

obtain an order from the probate court for an adoptive placement.

V. Conclusion

{¶ 20} We conclude that the court properly construed the requirements of the

adoption statutes to include the requirement of a prior placement of the child in the

petitioner’s home before a petition for adoption can be approved. The sole assignment of

error is overruled, and the judgment of the probate court is Affirmed. -10- .............

DONOVAN and WELBAUM, JJ., concur.

Copies mailed to:

Keith A. Fricker James R. Kirkland Hon. Alice O. McCollum