[Cite as In re Adoption of P.L.W. , 2020-Ohio-5559.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF MEDINA )

IN RE: THE ADOPTION OF P.L.W. C.A. No. 20CA0032-M

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF MEDINA, OHIO CASE No. 2019 04 AD 00012

DECISION AND JOURNAL ENTRY Dated: December 7, 2020

CARR, Presiding Judge. {¶1} Appellant, F.R., appeals from a judgment of the Medina County C ourt of Common Pleas, Probate Division, that det ermined that his consent to th e adoption of his biological child was not required because he had fa iled to establish his right a s the child’s father or putative father

under Ohio law. This Court affirms.

I. {¶2} The dispute in this case involves whether F.R., the biological father of P.L.W., born December 15, 2018, has the right to withhold his consent to the adoption of the child. At the time P.L.W. was conceived and born, the child’s mother (“Mother”) wa s married to D.W. (“Husband”), who was presumed to be the child’s father. See R.C. 3111.03(A)(1). Mother had also been

involved in an extramarital affa ir with F.R. and, during April 2018, they had unprotected sexual intercourse. Throughout her pregnancy, Mother did not know whe ther Husband or F.R. was the child’s biological father.2

{¶3} Although Mother ended her relationship with F.R., they communic ated a few times during Mother’s pregnancy. F.R. did not dispute that he knew t hat Mother was pregnant by June 2018, was aware that he could be the child’s father, and knew t hat the baby was due sometime in December 2018, or January 2019. Nevertheless, F.R. did not reg ister with the Putative Father Registry while Mother was preg nant or within 15 days after the child’s birth. See R.C. 3107.062. {¶4} After P.L.W. was born, without H usband’s knowledge, Mother took his toothbrush to have his DNA compared to that of P.L.W. Mother told Husband about the results of the first DNA test, but he insisted that a nother DNA test be performed. Both DNA tests revealed that Husband was not the biological father of P.L.W. Having ruled o ut Husband as the child’s father,

Mother concluded that F.R. must be the child’s biological fathe r. {¶5} Mother and F.R. communicated back and forth primarily via text message. F.R. expressed concern about assertin g his parental rights unless he knew he was the child’s father. Mother and F.R. discussed arranging DNA testing, but they did n ot follow through and Mother later cut off all communication with F.R. Facing the end of he r marriage to Husband and not wanting to raise a child wit h F.R., Mother decided to place the child for adoption. {¶6} On April 4, 2019, appellees, A.R. and M.R., filed a petition to adopt P.L.W. and attached several supporting documents. Although Mother and Hus band would later dissolve their marriage, each signed a certificate to surrender their rights t o the child. Husband’s “Permanent

Surrender of Child” indicated tha t, although he was married to Mother, he was not the child’s biological father. The petitione rs also attached a certificate from the Ohio Department of Job and Family Services, dated March 25, 2019, which indicated that a s earch of Ohio’s Putative Father Registry revealed that no puta tive father was registered.3

{¶7} On May 14, 2019, the adoption petitioners filed a “Motion to Am end; Motion to Deem Consent Not Required.” They had become aware that F.R. re cently filed an action in Delaware County to establish his parental rights and responsibi lities to P.L.W., but they emphasized that he did not file that action prior to the adopti on proceedings. They further stressed that F.R. did not file with the putative father’s registry with in 15 days of the child’s birth. Therefore, the petitioners argued that F.R. lacked standing und er Ohio law as the child’s legal father or putative father whose c onsent to the adoption was req uired. {¶8} The following day, F.R. filed a motion to intervene in the adop tion proceedings. He asserted that he believed that he was the biological father of P.L.W. and that he had filed an action in Delaware County to establish his parental rights and responsibilities on April 19, 2019. F.R. later submitted the results of DNA testing, which establis hed that he is the biological father of P.L.W. The same day, the tri al court granted F.R.’s motion to intervene. {¶9} The matter later proceeded to a hearing about whether F.R.’s co nsent to the adoption was required. The trial court concluded that F.R.’s c onsent to the adoption was not required because he had failed to establish a legal right as th e child’s father or putative father pursuant to Ohio law. F.R. appeals and raises three assignment s of error.

II.

ASSIGNMENT OF ERROR I

THE PROBATE COURT ERRED IN DETERMINING APPELLANT TO BE A PUTATIVE FATHER AND NOT THE NATURAL FATHER OF [P.L.W.]. {¶10} F.R.’s first assignment of error challenges the trial court’s d etermination that he was the child’s putative father who had failed to protect his r ight to receive notice of, and withhold his consent to, the adoption of P.L.W. F.R. argues that the tr ial court erred in viewing him as the child’s putative father, because he is the biological father of P.L.W., whose paternity was4

established through DNA testing while this adoption proceeding was pending. Because he is the biological father of P.L.W., he a sserts that he had the legal r ight to withhold his consent to the adoption. {¶11} Ohio courts have long emphasized that “[t]he right to parent on e’s children is a fundamental right.” In re C.F ., 113 Ohio St.3d 73, 2007-Ohio-1104, ¶ 28, citing Troxel v.

Granville , 530 U.S. 57, 66 (2000), and In re Hayes , 79 Ohio St.3d 46, 48 (1997). However, that right is not unlimited and any right that F.R. may have had to withhold his consent to the adoption was controlled by Ohio law. Notably, Ohio law does not grant a utomatic standing to the biological father of a child to withhold his consent to the child’s adopti on. Instead, R.C. 3107.06(B) provides that the consent of a child’s “father” is generally required to an adoption if his legal status as the

child’s father was establishe d in one of the following ways: (1) The minor was conceived or bor n while the father was marrie d to the mother; (2) The minor is his child by adoption; (3) Prior to the da te the petition was file d, it was determined by a court proceeding * * *, or an administrative proc eeding pursuant to sections 311 1.38 to 3111.54 of the Revised Code, or an administrative proceeding * * * that h e has a parent and child relationship with the minor; (4) He acknowledged paternity of the child and that acknowledgm ent has become final pursuant to section 2151.232, 3111.25, or 3111.821 of the Revised Code. {¶12} The Ohio Supreme Court has cons trued R.C. 3107.06(B)(3) broadly to protect an alleged father’s rights, if he f iled to establish his parentage in another proceeding before the adoption petition was filed. In re Adoption of Pushcar , 110 Ohio St.3d 332, 2006-Ohio-4572, syllabus. Even though the alleged father’s paternity may not y et have been “determined” in the other proceeding, as long as he f iled that action first, that c ourt retains jurisdiction to determine whether he has a parent and child relationship with the child b efore the adoption proceeding may5

proceed in the probate court. Id.; see also In re Adoption of G.V., 126 Ohio St.3d 249, 2010-Ohio3349, ¶ 1; In re Adoption of P.A.C. , 126 Ohio St.3d 236, 2010-Ohio-3351, ¶ 1. {¶13} The evidence in this case was not disputed that F.R. did not le gally establish himself as the father of P.L.W. through any of the means recognized by R.C. 3107.06(B). Although he

filed an action in Delaware Count y to establish a parent and ch ild relationship, he did not file that action until after the adoption petition was filed. Consequent ly, F.R. cannot be recognized as the legal father of P.L.W. pursuant to R.C. 3107.06(B)(3). See In re Adoption of H.N.R ., 145 Ohio St.3d 144, 2015-Ohio-5476, ¶ 12. {¶14} Therefore, the trial court properl y examined whether F.R. had p reserved his rights as the “putative father” of P .L.W., who could potentially have the right to withhold his consent to an adoption. R.C. 3107.06(C). Although F.R. disputes that he is the “putative father” of P.L.W.,

he falls within that definiti on under Ohio law. R.C. 3107.01(H ) defines a putative father as “a man * * * who may be a child’s father” who has not legally establis hed his parental status through any of the means set forth in R.C. 3107.06(B) (without cross-refere ncing RC. 3107.06(B), R.C. 3107.01(H) reiterates each of those means for establishing lega l standing as the child’s father). Under Ohio law, F.R. was not the legal father of P.L.W. during these proceedings, but he was the child’s “putative father.” {¶15} R.C. 3107.062 further provides, however, that “ [f]or th e purpos e of preserving the requirement of his consent to a n adoption, a putative father sh all register before or not later than fifteen days after the birth of the child.” See also R.C. 3107.07(B)(1) (also stating that a putative father’s consent to an adoption i s not required if he does not timely register as t he child’s putative father). The facts are also undisputed that F.R. did not regis ter with the putative father registry6

within 15 days of the birth of P.L.W. Consequently, F.R. also failed to preserve any right to withhold his consent to the adopti on as the “putative father” o f P.L.W. {¶16} F.R. claims that he did not know about the putative father regi stry, but Ohio’s adoption statutes do not provide an excuse for failing to timel y register as the child’s putative father. In fact, R.C. 3107.061 provides that “[a] man who has sexual intercourse with a woman is

on notice that if a child is born as a result and the man is th e putative father, the child may be adopted without his consent pursuant to division (B) of section 3107.07 of the Revised Code.”

F.R. had sexual intercourse w ith Mother during April 2018. In fact, although not required by R.C. 3107.061, F.R. was aware that his condom broke and, afterward, he purchased Plan B emergency contraceptive for Mother as a back-up means of birth control. The facts further indicate that F.R. knew that Mother was pregnant s everal months before the child w as born and believed that he

could be the fathe r of the child. {¶17} F.R. failed to establish a legal right to participate in the ad option proceedings as either the father or putative father of P.L.W. Therefore, the trial court did not err in concluding that his consent to the adopti on was not required. F.R.’s firs t assignment of error is overruled.

ASSIGNMENT OF ERROR II THE PROBATE COURT ERRED IN DETERMINING [F.R.’S] CONSENT TO THE ADOPTION WAS NOT NECESSARY GIVEN THE FRAUDULENT CONDUCT OF MOTHER AND HER INTERFERENCE IN THE ESTABLISHMENT OF PATERNITY.

ASSIGNMENT OF ERROR III THE PROBATE COURT DECISION INFRINGED ON [F.R.’S] CONSTITUTIONAL RIGHTS TO DUE PROCESS AND EQUAL PROTECTION[.] {¶18} Through his second and third assi gnments of error, F.R. asserts that the requirements of the adoption stat utes, as detailed in the dispo sition of his first assignment of error,7

should not preclude his legal standing as the father of P.L.W. He essentially argues that, as applied to him based on the facts of this case, Ohio’s adoption statute s are unconstitutional. To begin with, F.R. did not preserve this issue for appellate review because h e failed to raise a timely challenge to the constitutionality of Ohio’s adoption statutes in the tri al court. For that reason, F.R.’s “‘[f]ailure to raise at the trial court level the issue of the constitutionality of a statute or its application, which issue [was] a pparent at the time of trial, c onstitutes a [forfeiture] of such issue and a deviation from this state’s orderly procedure, and theref ore need not be heard for the first time on appeal.’” In re C.M ., 9th Dist. Summit Nos. 23606, 23608, and 23629, 2007-Ohio-399 9, ¶ 59, quoting State v. Awan , 22 Ohio St.3d 120, syllabus (1986). {¶19} Moreover, the Ohio Supreme C ourt has upheld the constitutionali ty of Ohio’s adoption statutes as applied to a biological father who failed to timely establish his rights as the child’s father or putative father under Ohio law. See In re Adoption of H.N.R . at ¶ 37. Although F.R. attempts to distinguish the facts of this case from those of H.N.R ., he has failed to demonstrate any legal distinction. In H.N.R ., as in this case, the biological father was aware of the moth er’s pregnancy and that he might be th e father, yet he “failed to ut ilize any of the legal processes available to secure his rights as a putative or legal father at any point prior to the initiation of [the] adoption proceedings.” Id . at ¶ 2. For that reason, F.R. “ is outside the c lass of perso ns he alleges are prejudiced by the statutory limitation.” Id . F.R.’s second and third assignments of error are overruled accordingly.

III. {¶20} F.R.’s assignments of error are overruled. The judgment of the Medina County Court of Common Pleas, Proba te Division, is affirmed. Judgment affirmed.8

There were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, direc ting the Court of Common Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitu te the mandate, pursuant to Ap p.R. 27. Immediately upon the filing hereof , this document shall consti tute the journal entry of judgment, and it shall be file s tamped by the Clerk of the Cour t of Appeals at which time the period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to m ake a notation of the mailing in the docket, pursuant to App.R. 30. Costs taxed to Appellant.

DONNA J. CARR FOR THE COURT

SCHAFER, J. TEODOSIO, J. CONCUR.

APPEARANCES: CORINNE HOOVER SIX, Attorney at Law, for Appellant. RICHARD MARCO, JR., Attorney at Law, for Appellee. MICHELLE SILMAK, Attorney at Law, for S.W. and D.W.