[Cite as In re Adoption of G.O.D., 2024-Ohio-1627.]

IN THE COURT OF APPEALS OF OHIO

THIRD APPELLATE DISTRICT

DEFIANCE COUNTY

IN RE: THE ADOPTION OF: CASE NO. 4-23-11

 G.O.D.

O P I N I O N

[JOSHUA V. - APPELLANT].

Appeal from Defiance County Common Pleas Court

Probate Division

Trial Court No. 2061

Judgment Affirmed

Date of Decision: April 29, 2024

APPEARANCES:

W. Alex Smith for Appellant

Danny Hill, II for Appellee
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WALDICK, J.

{¶1} Respondent-appellant, Joshua V. (“Joshua”), appeals the September 13, 

2023 judgment of the Defiance County Common Pleas Court, Probate Division, in 

which the trial court granted a final order of adoption of Joshua’s minor son, 

“G.O.D.”, after finding that Joshua’s consent was not required for the adoption. For 

the reasons that follow, we affirm.

Procedural & Factual Background

{¶2} On May 1, 2023, petitioner-appellee, Richard D. (“Richard”), filed a 

petition pursuant to R.C. 3107.05 for adoption of G.O.D., who was born in 2010 

and is the biological son of Richard’s wife, Janelle D. (“Janelle”). The petition 

asserted that Joshua’s consent was not required for the adoption. Specifically, the 

petition alleged that Joshua had failed without justifiable cause to provide more than 

de minimis contact with the child for a period of at least one year immediately 

preceding the filing of the adoption petition, and also that Joshua had failed without 

justifiable cause to provide for the maintenance and support of the child as required 

by law or judicial decree for at least that same time frame.

{¶3} When filing the adoption petition, Richard filed instructions for service

on Joshua by publication, along with an affidavit that, in relevant part, stated that 

Joshua “currently has an outstanding warrant in Defiance County Common Pleas 

Court, under Case No. 23-CR-14995, that was issued on January 26, 2023”, that 
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“due to [Joshua]’s outstanding warrant, his addresses are unknown”, and that “due 

to [Joshua]’s addresses being unknown, the only way to give him notice of the 

petition of adoption is by publication in the newspaper.” (Affidavit, Docket No. 12).

{¶4} On May 15, 2023, the probate court filed a notice of hearing on petition 

for adoption, notifying Joshua that the petition had been filed on May 1, 2023, and 

setting a hearing on the petition for July 24, 2023. The record reflects that 

publication of the legal notice of hearing on petition for adoption issued by the 

probate court then occurred for six consecutive weeks in the Defiance CrescentNews, and that the return of service from the newspaper was filed with the probate 

court on July 3, 2023.

{¶5} On July 12, 2023, Richard filed additional service instructions in the 

case, asking that Joshua be served by certified U.S. Mail at the Corrections Center 

of Northwest Ohio (“CCNO”), at the address provided in the instructions.

{¶6} On July 24, 2023, a hearing was held on the issue of whether Joshua’s 

consent was required for the adoption. At the start of that hearing, the trial judge 

noted that there had been service on Joshua by publication, based on the affidavit 

that his whereabouts were unknown. The trial court noted that Joshua was 

apparently subsequently arrested, because he was then served on July 17, 2023 by 

certified mail at CCNO. The trial court noted that Joshua had filed nothing in the 

case, had not objected, and that no type of appearance by any lawyer had been 

entered on Joshua’s behalf. The trial court then also confirmed with the court staff 
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present that Joshua had not contacted the court, and that he was not present in the 

building at that time.

{¶7} Evidence was then received by the trial court on the issue of consent. 

Janelle testified that she is the mother of G.O.D., who was thirteen years old at that 

time, and that Joshua is G.O.D.’s biological father. Janelle testified that Joshua last 

had contact with G.O.D. when he was four or five years old, that she had done 

nothing to prohibit Joshua from having contact with G.O.D., and that Joshua knew 

both her address and phone number. Janelle further testified that Joshua had not 

sent G.O.D. any cards, Christmas presents, birthday presents, or other things of that 

nature. Janelle also testified that Joshua had provided no financial support for 

G.O.D. in 2022 or 2023, and had provided no in-kind support such as clothing or 

food. Finally, Janelle testified that Joshua had not contacted her in any way since 

the filing of the adoption petition, nor to her knowledge had he contacted G.O.D., 

who has his own phone. Richard testified that he has been married to Janelle since 

2015 and that G.O.D. had been with him since the child was one-year-old. Richard 

confirmed that Janelle’s testimony was accurate with regard to Joshua’s lack of 

contact with G.O.D. and the lack of financial support.

{¶8} The trial court then ruled from the bench that all parties were before the 

court by proper service, and that the evidence established that Joshua’s consent to 

the adoption was not required because Joshua is a parent who (1) had failed without 

justifiable cause to provide more than de minimis contact with the minor for at least 
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one year immediately preceding the filing of the adoption petition, and (2) had failed 

without justifiable cause to provide for the maintenance and support of the minor as 

required by law or judicial decree for at least one year immediately preceding the 

filing of the adoption petition.

{¶9} On July 24, 2023, at 11:35 a.m., the probate court journalized the ruling 

on consent made previously from the bench. 

{¶10} On July 24, 2023, at 1:08 p.m., a handwritten letter signed by Joshua

dated July 19, 2023 was filed with the probate court, in which Joshua asserted that 

he was contesting the adoption of his son.

{¶11} On August 28, 2023, a hearing on whether the adoption was in the best 

interests of G.O.D. was held, at which Joshua appeared via Zoom from Northwest 

Community Corrections Center, a community-based correctional facility. At the

start of that hearing, the trial court reviewed the record with regard to service on 

Joshua. The trial court noted that, pursuant to the instructions for service by 

publication, publication had occurred on May 23rd, May 30th, June 6th, June 13th, 

June 20th, and June 27th, with return of that service made by the Defiance CrescentNews on July 3, 2023, and then the first hearing was held on July 24, 2023, which 

was more than twenty days after the last publication of notice. The trial court further 

noted that, after Joshua’s consent to the adoption was found not to be necessary at 

the July 24, 2023 hearing, a letter from Joshua contesting the adoption was delivered 

to the court later that same date via regular U.S. mail, after the trial court’s judgment
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on the issue of consent had been journalized. The trial court found that receipt of 

that letter on July 24, 2023 was more than fourteen days after the service by 

publication was completed and return of the service made. After noting that Joshua 

did not appear at the hearing on the issue of consent, and did not file a timely 

objection, the trial court made an additional finding that Joshua’s consent to the 

adoption was not required because he had failed to object within fourteen days as 

required by R.C. 3107.07(K).

{¶12} Preliminary evidence was then received by the trial court on the issue 

of whether adoption was in the best interest of G.O.D. After taking brief testimony 

from Richard, Janelle, and G.O.D., the trial court then communicated with Joshua 

via Zoom. The trial court informed Joshua that it had already been determined that 

his consent to the adoption was not required, and that the sole issue before the court 

at that time was whether adoption was in G.O.D.’s best interest. Joshua asked if he 

could have counsel to represent him and the trial court, after hearing that Joshua was 

unemployed with no assets, arranged to have an application for court-appointed 

counsel emailed to Joshua. The trial court determined that, if Joshua qualified for 

court-appointed counsel, counsel would be appointed and the hearing rescheduled 

so that counsel could attend.

{¶13} On September 13, 2023, the “best interests” hearing resumed, with 

Joshua represented by court-appointed counsel and Joshua attending remotely. At 

the start of that hearing session, Joshua’s counsel requested a continuance because 
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Joshua wanted to hire private counsel and wished to attend the hearing in person. 

The trial court denied the motion for a continuance.

{¶14} At the hearing, testimony was given by Janelle and Rick in support of 

the adoption petition, and then Joshua testified in opposition to the petition. Based 

upon the evidence presented, as well as letters of recommendation received by the 

court and an evaluation done by an adoption assessor on behalf of the court, the trial 

court found adoption to be in G.O.D.’s best interests and granted the petition.

{¶15} On October 5, 2023, Joshua filed the instant appeal, in which he raises 

one assignment of error for our review.

Assignment of Error

The Probate Court erred by ruling that consent of the father was 

not necessary.

{¶16} In the sole assignment of error, Joshua argues that the trial court erred 

in determining that his consent to the adoption was not required.

{¶17} “[T]he right of a natural parent to the care and custody of his children 

is one of the most precious and fundamental in law.” In re Adoption of Masa, 23 

Ohio St.3d 163, 165, 492 N.E.2d 140 (1986). “Under most circumstances, both of a 

minor’s natural parents must provide written consent prior to the adoption of that 

minor.” In re Adoption of S.S., 3d Dist. Van Wert No. 15-17-06, 2017-Ohio-8956, 

¶ 16.
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{¶18} However, R.C. 3107.07 sets forth certain exceptions to that general 

rule requiring consent. An exception determined by the probate court to be 

applicable in this case is found in R.C. 3107.07(K), which provides that “[c]onsent 

to adoption is not required of * * * a * * * person given notice of the petition 

pursuant to division (A)(1) of section 3107.11 of the Revised Code that fails to file 

an objection to the petition within fourteen days after proof is filed pursuant to 

division (B) of that section that the notice was given[.]”

{¶19} R.C. 3107.11 governs the notice that must be given of the hearing on 

an adoption petition, and provides:

(A) After the filing of a petition to adopt an adult or a minor, the court 

shall fix a time and place for hearing the petition. 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. At least twenty days 

before the date of hearing, notice of the filing of the petition and of 

the time and place of hearing shall be given by the court to all of the 

following:

(1) Any juvenile court, agency, or person whose consent to the 

adoption is required by this chapter but who has not consented;

(2) A person whose consent is not required as provided by division 

(A), (G), (H), or (I) of section 3107.07 of the Revised Code and has 

not consented;

(3) Any guardian, custodian, or other party who has temporary 

custody or permanent custody of the child.

Notice shall not be given to a person whose consent is not required as 

provided by division (B), (C), (D), (E), (F), or (J) of section 3107.07, 

or section 3107.071, of the Revised Code. Second notice shall not be 

given to a juvenile court, agency, or person whose consent is not 

required as provided by division (K) of section 3107.07 of the 
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Revised Code because the court, agency, or person failed to file an 

objection to the petition within fourteen days after proof was filed 

pursuant to division (B) of this section that a first notice was given to 

the court, agency, or person pursuant to division (A)(1) of this section.

(B) Upon the filing of a petition for adoption that alleges that a parent 

has failed without justifiable cause to provide more than de minimis 

contact with the minor or to provide for the maintenance and support 

of the minor, the clerk of courts shall send a notice to that parent with 

the following language in boldface type and in all capital letters:

"A FINAL DECREE OF ADOPTION, IF GRANTED, WILL 

RELIEVE YOU OF ALL PARENTAL RIGHTS AND 

RESPONSIBILITIES, INCLUDING THE RIGHT TO CONTACT 

THE MINOR, AND, EXCEPT WITH RESPECT TO A SPOUSE OF 

THE ADOPTION PETITIONER AND RELATIVES OF THAT 

SPOUSE, TERMINATE ALL LEGAL RELATIONSHIPS 

BETWEEN THE MINOR AND YOU AND THE MINOR'S OTHER 

RELATIVES, SO THAT THE MINOR THEREAFTER IS A 

STRANGER TO YOU AND THE MINOR'S FORMER 

RELATIVES FOR ALL PURPOSES, WITH THE EXCEPTION OF 

DIVISION (A)(1)(b) OF SECTION 3107.15 OF THE REVISED 

CODE. IF YOU WISH TO CONTEST THE ADOPTION, YOU 

MUST FILE AN OBJECTION TO THE PETITION WITHIN 

FOURTEEN DAYS AFTER PROOF OF SERVICE OF NOTICE OF 

THE FILING OF THE PETITION AND OF THE TIME AND 

PLACE OF HEARING IS GIVEN TO YOU. IF YOU WISH TO 

CONTEST THE ADOPTION, YOU MUST ALSO APPEAR AT 

THE HEARING. A FINAL DECREE OF ADOPTION MAY BE 

ENTERED IF YOU FAIL TO FILE AN OBJECTION TO THE 

ADOPTION PETITION OR APPEAR AT THE HEARING."

(C) All notices required under this section shall be given as specified 

in the Rules of Civil Procedure. Proof of the giving of notice shall be 

filed with the court before the petition is heard.

{¶20} In support of his assignment of error, Joshua first argues that the 14 

days in which he was required to object should be counted from the date he was 

served with notice of the adoption by certified mail. Joshua suggests that the service 
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by publication in this case was negated by the fact that he was subsequently also 

served notice by certified mail. 

{¶21} We find no merit to that general argument. Under R.C. 3107.07(K), 

the 14-day objection period begins when proof of service of notice is filed with the 

trial court. Here, that date was July 3, 2023 and, as a result, Joshua’s objection was 

due on or before July 17, 2023. However, Joshua’s objection was not filed until 

July 24, 2023, which was one week after the expiration of the July 17, 2023 

deadline. Joshua cites to no legal authority in support of his assertion that 

subsequent service by certified mail somehow negated the already completed 

service by publication, nor has this Court uncovered any such authority.

{¶22} Joshua further argues that he was not served in accordance with the 

Ohio Rules of Civil Procedure, asserting that more diligence should have been 

exercised in attempting to locate him prior to resorting to service by publication. 

Joshua also argues that service by publication may not be allowed by law in adoption 

cases. In support of the latter assertion, Joshua notes that for service by publication, 

Civ.R. 4.4(C) requires not only that the address of the party to be served be unknown 

but that service by publication shall be made in actions where “such service is 

authorized by law.” Joshua then notes that R.C. 2703.14 does not list adoption as a 

type of case where service by publication is appropriate, but provides no further 

analysis in support of his claim.
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{¶23} As an initial matter, we note that Civ.R. 4 to 4.6, which govern service 

of process, are applicable to some, but not all, probate court proceedings. Pursuant 

to Civ.R. 73(A), the “Rules of Civil Procedure shall apply to proceedings in the 

probate division of the court of common pleas as indicated in this rule.” Civ.R. 

73(C) provides that “Civ.R. 4 through 4.6 shall apply in any proceeding in the 

probate division of the court of common pleas requiring service of summons.” 

However, pursuant to Civ.R. 73(E), “[i]n any proceeding where any type of notice 

other than service of summons is required by law * * * and the statute providing for 

notice neither directs nor authorizes the court to direct the manner of its service,” 

then notice shall be given in accordance with Civ.R. 73(E).

{¶24} As noted above, R.C. 3107.11(A) provides that, when an adoption 

petition has been filed, the probate court shall set a time and place for hearing the 

petition and must provide “notice of the filing of the petition and of the time and 

place of hearing” to any of the persons or entities listed in that section. (Emphasis 

added.) Thus, R.C. 3107.11 “‘requires service of notice rather than issuance of 

summons.’” In re Adoption of L.R.B., 9th Dist. Summit No. 28678, 2018-Ohio1489, ¶ 27, quoting Askew v. Taylor, 5th Dist. Stark No. 2004CA00184, 2004-Ohio5504, ¶ 18, citing In re Burdette, 83 Ohio App. 368, 374, 83 N.E.2d 813 (9th 

Dist.1948). 

{¶25} In the instant case, Joshua’s reliance on Civ.R. 4.4 is therefore 

somewhat misplaced, as is his reliance on R.C. 2703.14, as both of those legal 
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provisions apply to service of summons. Instead, we look to Civ.R. 73(E) for 

permissible methods by which notice of a probate court proceeding may be served. 

Relevant here, Civ.R. 73(E)(6) provides for service by publication “when the name, 

usual place of residence, or existence of the person to be served is unknown and 

cannot with reasonable diligence be ascertained * * *.” Thus, we find no merit to 

Joshua’s assertion that service by publication is not permissible in adoption cases.

{¶26} With regard to Joshua’s claim concerning the diligence used to attempt 

to locate him, the Supreme Court of Ohio set forth the following in Sizemore v. 

Smith, 6 Ohio St.3d 330, 453 N.E.2d 632 (1983), regarding the reasonable diligence 

requirement of Civ.R. 4.4(A), which this Court finds would be applicable to the 

similar reasonable diligence requirement of Civ.R. 73(E):

From the plain and unambiguous language of Civ.R. 4.4(A) it is 

axiomatic that a plaintiff must exercise reasonable diligence in his 

attempt to locate a defendant before he is entitled to service by 

publication. If the defendant cannot be located, plaintiff or his counsel 

may file an affidavit with the court. The required contents of the 

affidavit are amply set forth in Civ.R. 4.4(A): that defendant's 

residence is unknown and that it cannot be discovered with reasonable 

diligence. Such an averment in the affidavit gives rise to a rebuttable 

presumption that reasonable diligence was exercised. This court notes 

that, although there exists some measure of confusion on the point (cf. 

Wilson v. Sinsabaugh [1978], 61 Ohio App.2d 224, 401 N.E.2d 454 

[15 O.O.3d 365], with Brown v. Gonzales [1975], 50 Ohio App.2d 

254, 362 N.E.2d 658 [4 O.O.3d 220] ), facts demonstrating the 

diligence used to ascertain the address of the defendant are not 

required to be set forth in the affidavit itself. However, a bare 

allegation in an affidavit is not conclusive on the subject. Plaintiff, 

when challenged, must support the fact that he or she used reasonable 

diligence.
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Id., at 332-332. 

{¶27} Additionally, as this Court stated in In re C.H., 3d Dist. Mercer Nos.

10-19-10, 10-19-11, 10-19-12, 2020-Ohio-716, “‘[t]he court does not delve into an 

examination of whether reasonable diligence was in fact exercised unless the 

defendant attempts to challenge the presumption in the trial court.’” Id., at ¶ 47, 

quoting In re D.S., 9th Dist. Summit No. 24619, 2009-Ohio-3167, ¶ 17.

“Reasonable diligence depends on the particular facts and circumstances of each 

case.” Id., citing In re Thompkins, 115 Ohio St.3d 409, 2007-Ohio 5238, ¶ 25.

{¶28} In the instant case, Joshua did not challenge the service by publication 

in the trial court and, more specifically, did not raise the issue of whether reasonable 

diligence was used in attempting to locate him before service by publication was 

requested. For that reason, no inquiry was made by the trial court into the diligence 

exercised by Richard to attempt to locate Joshua for service of notice.

{¶29} Nonetheless, we note that the affidavit filed in support of the request 

for service by publication stated that Joshua “currently has an outstanding warrant 

in Defiance County Common Pleas Court, under Case No. 23-CR-14995, that was 

issued on January 26, 2023”, that “due to [Joshua]’s outstanding warrant, his 

addresses are unknown”, and that “due to [Joshua]’s addresses being unknown, the 

only way to give him notice of the petition of adoption is by publication in the 

newspaper.” (Affidavit, Docket No. 12). Additionally, testimony adduced at the 

adoption hearings established that Joshua’s contact with Janelle and Rick through 
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the years had been sporadic at best, that Joshua had not seen G.O.D., nor had any 

contact with him, since 2017, and that prior to that Joshua had no permanent home 

and Janelle and Rick were always uncertain as to where Joshua was spending time 

on the few occasions that he did exercise parenting time with G.O.D. 

{¶30} On those facts, and in the absence of an objection in the trial court as 

to the diligence utilized to locate Joshua or to the allegations set forth in the affidavit 

requesting service by publication, we find the argument that Richard failed to 

exercise reasonable diligence to be not well taken, particularly as Joshua has 

presented no assertions in support of his challenge as to how Richard could have 

possibly obtained information on Joshua’s whereabouts.

{¶31} Having found no merit to the various arguments advanced by Joshua 

in support of his assignment of error, the assignment of error is overruled.

Conclusion

{¶32} Having found no error prejudicial to the appellant, Joshua V., in the 

particulars assigned and argued, the judgment of the Defiance County Court of 

Common Pleas, Probate Division, is affirmed.

 Judgment Affirmed

WILLAMOWSKI, P.J. AND ZIMMERMAN, J., concur.

/tmm