Friday, February 29, 2008

Ohio Adoption Law Questions

The Ohio 9th. District Court of Appeals last Wednesday upheld a juvenile court’s decision that it lacked jurisdiction in an attempt by a teenage woman to reclaim a child she’d given up for adoption seven months earlier.(Holding)

The woman had presumably voluntarily surrendered her 6-month old baby to a private child placement agency in September 2006 – the agency notifying the juvenile court of the surrendering – and placement – of the child pursuant to ORC § 5103. 15(B)(2). A year later, in April 2007, the mother filed a motion for relief of judgment with juvenile court, asking the court to vacate its acceptance of her consent to the adoption and claiming that her signature on the prescribed forms was not voluntary, but the result of duress & misrepresentation.

The court had initially issued an order finding that ORC 5103. 15(B)(2) did not require the approval of a permanent surrender agreement, only that the court enter it in its journal, but, in light of the woman’s duress allegation, construed her motion as a motion to set aside the agreement and ordered a hearing into the matter, enjoining the placement agency from further pursuing the adoption in the interim.

The agency objected, saying that the duress matter was already before the probate court and was not a juvenile matter. The juvenile court subsequently agreed and vacated its previous standing.

In its review the Appeals Court cited Lemley v. Kaiser(1983), which said Ohio’s adoption statutes are in derogation of the common law and therefore have to be strictly construed, and Kozak v. Lutheran Chldren’s Aid Society(1955), which had held that the validity of a permanent surrender contract executed by a minor parent is not affected by the parent’s minority. Its decision was that the probate court had the authority to consider a request to withdraw consent, but not the juvenile court. [See re Adoption of Pushcar (2006)]

The presiding judge, Hon. Donna Carr, however, noted in a concurring opinion that while “RC 5103.15 (D) indicates that a minor parent may enter into an agreement to permanently surrender a child, and that such an agreement is ‘as valid an agreement entered into by a parent age eighteen or older,’” it was a dubious practice “particularly in light of the fact that contracts by minors are voidable in virtually every other circumstance.” [Citing Zivich v. Mentor Soccer Club (1998) and Bramley’s Water Conditioning v. Hagen (1985)].

An Akron Beacon Journal article on the case, yesterday, said that according to the Child Welfare Information Gateway, a service of the U.S. Department of Health & Human Services, “only Louisiana, Michigan, New Hampshire, Rhode Island, Guam, and Puerto Rico require the consent of the minor’s actual parents in an adoption.”

Sidebar to the topic here at hand is the Ohio General Assembly’s “intent to reform Ohio’s adoption laws by ensuring timely, safe, and appropriate adoptive placements, reducing adoption expenses, and generally promoting adoption in Ohio.” House Bill 7 was introduced in February of last year by Rep. Tom Brinkman and is in the House’ Health Committee, where it’s being amended at present. Portions of the legislation, such as Juvenile/Probate Court’s jurisdiction over adoptions, as central in this case is not addressed. (See Legislative Service’s analysis)

1 comment:

site said...

Very worthwhile piece of writing, thank you for your article.