[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as In
re B.C.A., Slip Opinion No. 

.]




                                         NOTICE
     This slip opinion is subject to formal revision before it is published in an
     advance sheet of the Ohio Official Reports. Readers are requested to
     promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
     South Front Street, Columbus, Ohio 43215, of any typographical or other
     formal errors in the opinion, in order that corrections may be made before
     the opinion is published.




                          SLIP OPINION NO. 

                                       IN RE B.C.A.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
        may be cited as In re B.C.A., Slip Opinion No. 

.]
Appeal dismissed as having been improvidently accepted.
 (No. 2023-1260—Submitted December 5, 2024—Decided December 10, 2024.)
                 APPEAL from the Court of Appeals for Lake County,
                           No. 2022-L-101, 

.
                                  __________________
        The below judgment entry of the court was joined by FISCHER, DONNELLY,
STEWART, and BRUNNER, JJ. STEWART, J., authored a concurring opinion, which
DONNELLY, J., joined. KENNEDY, C.J., dissented. DETERS, J., dissented, with an
opinion joined by DEWINE, J.


        {¶ 1} This cause is dismissed as having been improvidently accepted.
                                  __________________
                             SUPREME COURT OF OHIO




        STEWART, J., joined by DONNELLY, J., concurring.
        {¶ 2} I fully concur in the majority’s decision to dismiss this case as having
been improvidently accepted. I write separately to address the head-scratching
hypocrisy of the dissenting opinion.
        {¶ 3} When this court decided In re Application for Correction of Birth
Record of Adelaide, 

, a case that was pending for over a year, three
justices—the same three justices dissenting in this case—voted to dispose of the
case by determining that there was a lack of adversity. Those justices concluded in
the fourth separate opinion in Adelaide that the Second District Court of Appeals,
and consequently this court, had no judicial power to review the matter. The author
of the fourth separate opinion in Adelaide—the same author of the dissenting
opinion in this case—wrote that “judicial power extends only to actual
controversies in which there are adverse interests” and that in Adelaide’s case
“there was no adverse interest to Adelaide’s application to correct the sex marker
on her birth certificate” and therefore “the court of appeals had no power to
determine her appeal of the probate court’s denial of her application,” id. at ¶ 109
(separate opinion of Deters, J.). Now, the dissent here does a complete about-face
in concluding that the very issues that could not be reviewed in Adelaide can—and
should—miraculously be reviewed in this case. To add insult to injury, the dissent
accuses the justices in the majority in this case of doing a “disservice to B.C.A.
[and] other applicants seeking to use R.C. 3705.15 to change the sex markers on
their birth certificates” and “shirking our responsibility to provide guidance to
lower courts,” dissenting opinion, ¶ 10. So, to be clear, the dissent here chastises
the majority for dismissing this case that presents the same issues that were
presented in Adelaide—the same issues that the dissenting justices here had the
opportunity to address in Adelaide after over a year of deliberation only to conclude
they were barred from doing so. But we are accused of ducking the issues in this
case.




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                                January Term, 2024




       {¶ 4} The fourth separate opinion in Adelaide also spoke about the futility
of additional briefing on the justice-raised adversity issue and determined that
inviting an adverse view from another entity would not satisfy what the opinion
concluded was fatal to Adelaide’s case—the lack of adversity—and therefore
decided that the substantive propositions of law raised in Adelaide could not be
reviewed. The fourth separate opinion declared, “[T]he problem is not the absence
of adverse argument. Instead, there is no opposing interest. Were the probate court
to grant Adelaide’s application, no other person or entity would suffer a diminution
of a legal interest. This is why this court cannot remedy the adversity issue by . . .
ordering additional briefing or appointing an adverse party to raise
counterarguments.      With no interest adverse to Adelaide’s, there is no
counterargument to be made.” (Emphasis added and citation omitted.) Adelaide
at ¶ 103 (separate opinion of Deters, J.).
       {¶ 5} The sanctimonious tone of the dissent in this case is perplexing. The
dissent decries not letting this appeal go forward but does not identify any
difference between this appeal and the appeal in Adelaide. The dissent points out
in a footnote that I voted to accept the appeal in Adelaide and in this case. True.
But Adelaide had not yet been decided when this court accepted B.C.A.’s appeal,
and this court typically holds a latter-filed appeal that presents the same issues as a
pending appeal. Now that Adelaide has been decided in the way that it has, the
dissent incredulously states that it would be a disservice not to allow B.C.A.’s
appeal to go forward—an option the fourth separate opinion completely foreclosed
in Adelaide.
       {¶ 6} There is indeed a disservice here but not as the dissent describes
it. The disservice is that the dissenting justices ask B.C.A. to spend time and
resources to address these issues while feigning that they have an open mind or are
receptive to any briefed arguments on the merits of this case or on the adversity
issue—both encompassing issues they foreclosed in Adelaide.


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                              SUPREME COURT OF OHIO




        {¶ 7} Although the dissenting opinion in this case is perplexing considering
the conclusion reached in the fourth separate opinion in Adelaide, what may be a
not-so-veiled reason for the questionable and hypocritical position taken in this case
is the hope that by having the case proceed and with the upcoming change to the
composition of the court—a court that might be more like-minded and maybe more
receptive to their newly crafted adversity theory—the dissenting justices could
resurrect their position in Adelaide and transform the wayward fourth separate
opinion in that case into a majority opinion in this case by garnering one or two
more votes to embrace their position. But for today, this case is dismissed.
                                __________________
        DETERS, J., joined by DEWINE, J., dissenting.
        {¶ 8} I dissent from this court’s dismissal of this case as having been
improvidently accepted. We do a disservice by not allowing B.C.A.’s appeal to
proceed.
        {¶ 9} This court accepted B.C.A.’s appeal and held it for the decision in
2022-0934, In re Application for Correction of Birth Record of Adelaide. 2023-
Ohio-4640. Last month, this court issued a judgment entry in Adelaide. See 2024-
Ohio-5393. In that case, we left undisturbed the Second District Court of Appeals’
judgment for lack of a majority. Id. at ¶ 1. Four separate opinions were released
in addition to the judgment entry. In a separate opinion joined by two other justices,
I explained that I would find that the court of appeals had lacked the judicial power
to decide Adelaide’s appeal from the probate court’s decision denying her
application to correct the sex marker on her birth certificate. Id. at ¶ 94 (separate
opinion of Deters, J.). The other four justices—all of whom now vote to dismiss
B.C.A.’s appeal—expressed the desire to receive supplemental briefing on the issue
of adversity. See id. at ¶ 5 (separate opinion of Fischer, J.) (noting that this court’s
failure to order supplemental briefing on the issue of adversity was “an egregious
judicial mistake”); id. at ¶ 34 (separate opinion of Donnelly, J., joined by Stewart,




                                           4
                                        January Term, 2024




J.) (“resolving the issue of adversity likely warrants supplemental briefing”); id. at
¶ 91 (separate opinion of Brunner, J.) (“when newly raised concerns about adversity
may be fairly addressed by utilizing procedural mechanisms that would lead to a
broadening of the discussion, dismissing an appeal without utilizing those
procedural mechanisms is wrongheaded and unjust”). B.C.A.’s appeal presents the
opportunity to order such briefing. But the majority chooses instead to duck the
issue and dismiss B.C.A.’s appeal.
         {¶ 10} Today’s decision does a disservice to B.C.A., other applicants
seeking to use R.C. 3705.15 to change the sex markers on their birth certificates,
and Ohio courts. As previously noted by one of the justices in today’s majority,
“[t]he bench, bar, and citizens of Ohio . . . are waiting for this court to decide
whether R.C. 3705.15 allows probate courts to enter the sort of correction to a birth
record” being requested by applicants, id. at ¶ 34 (separate opinion of Donnelly, J.).
By refusing to allow B.C.A.’s appeal to move forward, we are leaving unresolved
the questions raised in the separate opinions accompanying our judgment entry in
Adelaide and we are shirking our responsibility to provide guidance to lower
courts.1 I dissent.
                                      __________________
         Forbes Law, L.L.C., Monica R. Zibbel, and Glenn E. Forbes, for appellant,
B.C.A.



1. In her concurring opinion accusing me of hypocrisy, the concurring justice lays bare her reason
for voting to dismiss B.C.A.’s appeal as having been improvidently accepted. The concurring
justice does not claim that the appeal fails to “involve[] a question of public or great general interest”
under S.Ct.Prac.R. 5.02(A)(3). How could she? She voted to accept both this appeal and Adelaide.
See 

; In re Application for Correction of Birth Record of Adelaide, 2022-Ohio-
3546. And nothing has changed regarding the general interest in the issues raised in these appeals.
Instead, the concurring justice’s reason for voting to dismiss B.C.A.’s appeal appears to be that she
anticipates disagreeing with the result at which the differently composed court may arrive. So, the
concurring justice does the “about face,” concurring opinion, ¶ 3, that she claims I am doing and
deprives the court—including the newly elected justices—of the opportunity to consider issues she
previously agreed should be considered.


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SUPREME COURT OF OHIO




 __________________




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