Appendix — Juntunen v. Wagner

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Supremé Court, U.S.

2) FILED

991278 JAN 25 2000

No.

OFFICE OF THE CLE

IN THE

Supreme Court of the United States

—_———

ROGER DALE JUNTUNEN, NATURAL FATHER

Petitioner

MARK VANCE WAGNER, STEP FATHER,

AND THE STATE OF OHIO, ET. AL.

—

On Petition For Writ of Certiorari

To The Eleventh District Court of Appeals of Ohio

——

APPENDIX TO PETITION FOR WRIT OF CERTIORARI

Roger Dale Juntunen

Pro Se

649 Lloyd Street

Hubbard, Ohio 44425

(330) 534-8948

Neen ee nn

Table of Contents

Appendix to Petition for Writ of Certiorari to the Eleventh District

Court of Appeals of Ohio

I. Opinions and orders entered in conjunction with the judgments

sought to be reviewed (Rule 14.1(i)(i)) ........cccccccccecesseeeeeeeeeeeees l

I[. Other relevant opinions and orders entered in the case by courts

CN Se EEE DR chines ccaptiiieninedticigiaieiapebiaicaiiadadinintiisitiatbaisttis 78

Iff. Material required by Rule 14.1(f) or Rule 14.1(g)(i) (Rule

MAES STN SID | SAT OT | SO TL Ae NOE 147

[V. Other material essential to understand the petition (Rule

BA WARD D vcienictcdcncsnecapheherislonsishcaisish sap adcsatdbiG panicled eediiun Satin 167

APPENDIX

(OPINIONS, ORDERS, FINDINGS OF FACT, AND CONCLU-

SIONS OF LAW ENTERED IN CONJUNCTION WITH THE

JUDGMENTS SOUGHT TO BE REVIEWED:)

(Cite as: 1999 WL 700615 (Ohio App. 11 Dist.)) NOTICE: RULE

2 OF THE OHIO SUPREME COURT RULES FOR THE RE-

PORTING OF OPINIONS IMPOSES RESTRICTIONS AND

LIMITATIONS ON THE USE OF UNPUBLISHED OPINIONS.

In re: The ADOPTION of Emily Anna WAGNER. No. 97-T-0223.

COURT OF APPEALS OF OHIO, ELEVENTH DISTRICT,

TRUMBULL COUNTY Civil Appeal from the Court of Common

Pleas, Probate Division, Case No. 94 ADP 057.

Roger D. Juntunen, Hubbard, OH, for Respondent-Appellant. Atty.

Elise M. Burkey, Warren, OH, for Petitioner-Appellee/Mark V.

Wagner.

JUDGMENT: Reversed and remanded.

FORD, P.J., CHRISTLEY and O’NEILL, JJ.

OPINION

FILED COURT OF APPEALS JUL 1, 1999 TRUMBULL

COUNTY, OHIO MARGARET R. O’BRIEN, Clerk.

ONEILL., J.

The following is an appeal from an ongoing process involving the

adoption of a child, Emily (d.o.b.9/8/89), by her stepfather, appel-

lee, Mark V. Wagner (“appellee”). In the current appeal, appellant,

Roger Juntunen (“appellant”), Emily’s natural father, alleges error

in the trial court’s determination that the best interest of the child

would be served by permitting the adoption and permanently

terminating his parental rights. Based on errors below that pre-

vented appellant from fully participating at the hearing held to

determine the best interest of the child, we reverse the judgment of

the trial court and remand for further proceedings consistent with

this opinion.

The facts pertinent to this appeal are as follows. On June 23.

1994, appellee filed a petition in the Probate Division of the

Trumbull County Court of Common Pleas seeking to adopt his two

stepchildren, Benjamin (d.0.b.3/21/87) and Emily. By way of

background, appellee’s wife, Deborah Wagner (f.k.a.Juntunen),

was previously married to appellant and two children, Benjamin

and Emily, were born as issue to this marriage. On Juiy 15, 1991,

the children’s natural parents were granted a decree of dissolution

in the state of Indiana. Ms. Wagner was designated the residential

parent and appellant, with an income potential exceeding $35,000

per year, was ordered to pay $150 per week in child support. On

December 31, 1991, Ms. Wagner married appellee, and since that

date, the children have resided with appeliee and their mother.

In his petition, appellee alleged that appellant’s consent to the

adoption was unnecessary because, pursuant to R.C. 3107.07,

appellant failed without justifiable cause to communicate and/or

provide support for his children for the one-year period immedi-

ately preceding the filing of his petition. At a hearing held on the

issue of whether appellant’s consent was needed for the adoption

to proceed, evidence was presented that appellant rarely visited his

children and failed to satisfy his court ordered support payments.

For the one- year period immediately preceding the filing of

appellee’s adoption petition, June 23, 1993 to June 23, 1994,

appellant saw his children four times for a total of approximately

three hours. During the same twelve-month period, appellant paid

a total of $329.40 in child support.

By judgment entry filed March 22, 1995, the trial court deter-

mined that appellant’s consent to the adoption was not necessary.

The trial court based its decision on appellant’s failure, without

_ justifiable cause, to support his children above the mere $329.40

that was paid. The trial court’s judgment entry did not address

appellee’s contention that appellant failed to communicate with the

children and this was not a factor in the trial court’s determination

at this phase of the adoption proceedings. This court affirmed the ;

trial court’s decision in In re Adoption of Wagner (1997), 117 Ohio

App.3d 448, 690 N.E.2d 959, and a discretionary appeal to the |

Supreme Court of Ohio was not allowed in (1997), 78 Ohio St.3d

1516, 679 N.E.2d 311. {

Following the proceedings which determined that the adoption

process could occur without appellant’s consent, the trial court i

scheduled a hearing to determine the best interest of the child.

Prior to this hearing, and pursuant to R.C. 3107.12, a caseworker

from the Trumbull County Children Services Board, Annette

Weimer, submitted to the court confidential reports containing her

assessment of appellee and the children. The reports contained no

assessment of the relationship between Emily and her natural :

father, appellant.

On September 30, 1997, the trial court conducted a hearing on

appellee’s adoption petition to determine the best interest of the

children. Annette Weimer testified as to her findings contained i

within the confidential reports she previously filed with the trial :

court. She described appellee as an easygoing, hardworking person

who provided adequate income for his family’s financial needs.

She found the Wagner home to be adequately furnished with

excellent housekeeping standards. Personal references submitted to

the Board were all positive toward appellee and he was described

as a loving father who exhibited genuine concern and affection for

the children.

As for the children, Ms. Weimer described them as “anxious” to

be adopted by appellee and, in fact, were already using the Wagner

name in church and school. The children were described as devel-

oping normally and were involved in activities typical for their age

at both church and school. Ms. Weimer testified that the children

share a close relationship with appellee, who they refer to as

“Dad.” By contrast, Ms. Weimer testified that the children do not

share a close relationship with appellant and that their memories of

him are not positive. Ms. Weimer opined that the adoption of

Emily and Benjamin by appellee was in the best interest of the

" seas

child.

On cross-examination, Ms. Weimer acknowledged that she did not

question appellant, despite his availability, before submitting her

assessments to the court regarding appellee’s requested adoptions.

She further acknowledged that she was not aware, and did not

factor into her best interest determination, instances where Ms.

Wagner was found in contempt for interfering with appellant’s

visitation rights in the past.

Appellant also attempted to question Ms. Weimer regarding the

children’s poor opinion of him, and, specifically, the possibility

that they suffered from “Parental Alienation Syndrome” as a result

of brainwashing brought about by appellee and/or Ms. Wagner.

Ms. Weimer testified that she was not familiar with this particular

theory, however, she stated that she interviewed the children alone

and did not believe they had been coached as to what to say during

their interview with her.

Both appellee and Ms. Wagner testified as to appellee’s willing-

ness to raise the children and the lack of involvement that appel-

lant has had in his children’s development. Ms. Wagner described

how, in many respects, appellee is the only father that the children

have known. She testified that the children were eager to have the

adoption become official and described a circumstance when one

of the children, who was selected to receive an award at school,

became upset about being announced to the class as a “Juntunen”

and not a “Wagner.”

Ms. Wagner denied that she told the children what to say about

their natural father when they were interviewed by Ms. Weimer.

She further denied that she prohibited appellant from interacting

with the children. However, on cross-examination appellant

challenged Ms. Wagner’s credibility as to this point by questioning

her with a prior judgment issued from the Domestic Relations

Division of the Trumbull County Court of Common Pleas, which

held that she “willfully denied [appellant] his visitation” on at least

two occasions in the spring of 1995.

Ms. Wagner further testified that both students receive straight

“A’s” on their report cards and participate in numerous activities at

church and school. Appellee’s father, C lyde R. Wagner, testified as

to his willingness to accept Benjamin and Emily as his grandchil-

dren and described many of the activities that the children partici-

pate in during their visits with him.

In response to the evidence presented by appellee as to the best

interest of the children, appellant argued that he has tried to be a

part of his children’s lives as much as possible. However, he

accused Ms. Wagner of engaging in a pattern of activity to inhibit

him from fostering a relationship with his children.

Appellant testified that he resides less than ten minutes away from

his children where he lives with his current spouse, Jane Spies, and

their daughter, Sarah (d.o.b. 12/3/95). Despite his family’s close

proximity to Benjamin and Emily, appellant asserts that Ms.

Wagner has thwarted his attempts to visit with his children.

Appellant attempted to present, with varying degrees of success,

evidence of specific instances where Ms. Wagner prevented him

from seeing his children. Ms. Spies confirmed that her husband

attempted to enforce his visitation rights every weekend, but was

usually prevented from exercising those rights based on the actions

of Ms. Wagner.

Ms. Spies also testified that she received a bachelor’s degree in

psychology and a master’s in guidance and counseling. She further

stated that she has taken Ph.D. level course work in counseling and

psychology and expressed some familiarity with “Parental Alien-

ation Syndrome.” Based on her observations of the times appellant

was permitted to exercise his visitation rights, Ms. Spies stated that

the children acted lovingly toward their natural father as well as

their new baby sister. She saw no indication that the children

wanted to end their relationship with appellant. To the extent that

the children may have reported that they now want no contact with

their father, Ms. Spies opined that the children had been pro-

grammed or “brainwashed” into saying these things by Ms.

Wagner and/or appellee.

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At the hearing, appellant admitted that he was behind in his child

support payments and did not deny Ms. Wagner’s estimate that he

was in arrears more than $40,000. He also did not deny that

appellee was adequately providing for the needs of the children.

However, appellant claimed that he now holds a steady job that

would permit him to pay his child support obligation. He also

expressed a desire to do anything for his children and attempted to

elicit evidence as to his ability to care for the children during time

periods when he exercised his visitation rights. Both he and Ms.

Spies believed that the children would face irreparable harm if the

court permanently terminated appellant’s parental rights and failed

to foster the children’s relationship with both sets of parents.

On November 5, 1997, the trial court issued its decision highlight-

ing the testimony as presented by appellee in this matter and

concluded that the adoption of Emily by her stepfather was in her

best interest. From this judgment, appellant filed a timely notice of

appeal and now asserts the following nine assignments of error:

“[1.] The granting of the adoption is contrary to law, against the

manifest weight of the evidence, and an abuse of judicial discre-

tion where the trial court restricts appellant’s relevant ‘best inter-

est’ testimony and evidence to the one year prior to the filing of

the adoption petition, in violation of Ohio Revised Code

3107.161(B), where Ohio Revised Code 3107.07(A) does not

apply.

“(2.] The granting of the adoption is unconstitutional and violates

the separation of church and state and the equal protection clause

of the United States Constitution where the judgment entry is

based on testimony that: ‘both children ... already use the last name

Wagner in church’, ‘Mr. Wagner is active ... in church activities

with them’, ‘the family attends church together regularly’, ‘the

children have had perfect attendance in Sunday school for the last

three years’, and ‘the extended family extends church and gathers

together every Sunday for dinner.’

~ “[3.] The granting of the adoption without ‘notice of filing’ and

‘proof of service’ of the state-initiated ‘Report on Proposed

Adoption; or the “ODHS Prefinalization Report’ and without

admission of said reports into evidence at the ‘best interest’

hearing subject to cross-examination by the appellant, is unconsti-

tutional and violates the appellant's civil liberties as a parent and

due process rights under the Fourteenth Amendment.

“{4.] The exclusion of appellant from the state-initiated investiga-

tion and subsequent ‘Report on Proposed Adoption’ and ‘ODHS

Prefinalization Report’ is unconstitutional and violates the

appellant’s liberty interest in the maintenance of the parent-child

relationship and due process rights under the Fourteenth Amend-

ment.

“15.] The de facto termination of the appellant's parent-child

relationship via the granting of an adoption under the “best inter-

est’ standard without the consent of the appellant and without a

prior legal termination of the appellant’s parental rights is uncon-

stitutional and a violation of the appellant’s civil liberties as a

parent and due process rights under the F ourteenth Amendment of

the United States Constitution.

“{6.] The granting of an adoption based on the prior fraudulent and

illegal use of the ‘Wagner’ last name Is fraudulent, contrary to law,

unconscionable, and abuse of judicial discretion.

“{7.] Ohio Revised C ode 3107.07(A) is unconstitutional because it

is too vague and forces judges to use personal subjective values

resulting in arbitrary legislation of the judiciary which violates the

appellant’s due process and equal protection rights under the

Fourteenth Amendment.

“(8.] The granting of the adoption is fraudulent, contrary to law,

and against the manifest weight of the evidence where the natural

mother committed the crime of perjury under oath at the ‘best

interest’ hearing and said perjury is material to the ‘best interest’

determination regarding contempt findings against her for failure

to provide lawful visitation and regarding her compliance with a

court ordered psychological evaluation to determine ‘best interest’

of the child and attend family counseling with Dr. Douglas

Darnall, Ph.D.

oe cs RARE It Lt

“[{9.] The granting of the adoption is against the manifest weight of

the evidence and contrary to law where the judgment entry does

not independently consider all relevant factors related to the ‘best

interest’ of the child in a contested adoption required by Ohio

Revised Code 3107.161(B).”

For ease of disposition of this appeal, we will address the above

assignments of error in an order different from that presented by

appellant. Generally speaking, we will attempt to address

appellant’s assignments of error in the following order: arguments

appellant raises regarding the necessity of his consent to the

adoption; alleged errors in the trial court’s reliance on evidence

submitted by appellee in support of his petition for adoption; and

alleged restrictions placed on appellant’s attempt to present

evidence concerning the best interest of the child determination.

In the fifth assignment of error, appellant claims that the trial court

erred in terminating his parental relationship with his children

based solely on the best interest determination without a “judicial

finding of mental unfitness, neglect, abuse, or other legal reason to

terminate [his] rights.” However, appellant’s argument is a

mischaracterization of the history surrounding appellee’s adoption

petition.

An adoption proceeding involves a two-step process consisting of

a “consent” phase and a “best interest” phase. See, e.g., In re

Adoption of Jordan (1991), 72 Ohio App.3d 638, 645, 595 N.E.2d

963; In re Janoske (Nov. 22, 1991), Geauga App. No. 90-G-1589,

unreported, at 3. Previously, the trial court determined by clear and

convincing evidence that appellant, without justifiable cause,

failed to adequately support his children for the one-year period

immediately preceding the filing of appellee’s adoption petition.

This determination, equating to a finding of legal abandonment of

the children by appellee, was upheld on appeal. Following the

appellate process, the trial court turned to the second phase of the

adoption process, the “best interest” phase.

As a result of the trial court’s adherence to the two-step adoption

process, the constitutional arguments appellant raises as to the

termination of his parental rights “via a best interest hearing only”

are patently false. Appellant's fifth assignment of error is devoid of

merit.

Turning to appellant’s seventh assignment of error, appellant

attempts to argue that the consent phase of the adoption process,

conducted pursuant to R.C. 3 107.07(A), is unconstitutional.

Specifically, appellant argues that R.C. 3107.07(A) fails to set

forth a statewide minimum that a natural parent must pay toward

their child support obligation in order to preserve their parental

rights.

As discussed in appellant's fifth assignment of error, the consent

phase of the adoption process in this matter has been concluded,

and appellant’s arguments as to the unfairness of the trial court’s

determination as to that issue has survived the appellate process.

We will not discuss those arguments again in the current appeal.

Pursuant to the doctrines of res judicata and/or the “law of the

case,” appellant is prohibited from raising errors in a subsequent

action that should have been raised or were already decided in the

prior action. See, €.g., National Amusements, Inc. v. Springdale

(1990), 53 Ohio St.3d 60, 62, 558 N.E.2d 1178; Nolan v. Nolan

(1984), 11 Ohio St.3d 1, 3, 462 N.E.2d 410. Appellant’s seventh

assignment of error is without merit.

In the next set of arguments, appellant raises several assignments

of error with respect to the trial court’s reliance on evidence

presented by appellee in support of his petition for adoption. In the

second assignment of error, appellant asserts that the “theme” of

the trial court’s decision to grant the adoption petition centered

upon appellee’s participation in church related activities with the

children. Appellant argues that the court’s repeated reference to

these activities in its judgment entry amounts to a violation of his

First Amendment Rights and the separation between church and

state.

Appellant also alleges that the trial court’s “best interest” determi-

nation is contrary to law because the decision relied on fraudulent

evidence attributed to Ms.Wagner as part of her continued attempt

3 RM BAS 2

to alienate the children from him. Specifically, appellant claims in

the sixth assignment of error that appellee has illegally used the

: name “Wagner” as the children’s surname, and, in the eighth

assignment of error, argues that he established that Ms. Wagner

lied at the hearing regarding her repeated interference with his

visitation rights.

protein hese

Adoption matters are decided on a case-by-case basis through the

exercise of the discretion granted a trial court to determine matters

such as the best interest of the child. In re Adoption of Charles B

(1990), 50 Ohio St.3d 88, 90, 552 N.E.2d 884. Moreover, it is

primarily the responsibility of the trial court to weigh the testi-

mony presented before it and determine the credibility of the

witnesses. See, e.g., Bechtol v. Bechtol (1990), 49 Ohio St.3d 21,

23, 550 N.E.2d 178.

In reviewing the trial court’s judgment entry, however, it is evident

that the only “theme” underlying the court’s decision is the uncon-

troverted fact that appellee has shouldered, for whatever reason,

the responsibility of caring for appellant’s children since 1991. As

the court noted in its entry, it is appellee that the children refer to

as their father, it is appellee that participated in their important

events, such as church and school related activities, and it is

appellee who has provided for the children’s financial and emo-

tional needs.

The fact that the trial court mentioned the word “church” in its

judgment entry to help describe some of the activities appellee

engaged in with the children does not amount to a violation of

appellant’s First Amendment Rights. The trial court’s reference to

church activities is not an endorsement of religious activity.

Rather, it is used as an example of a type of activity which appar-

ently is important to the children and the Wagners. The trial court

judgment did not rely, as argued by appellant, on any “illegal” or

“unconstitutional” basis. Moreover, this court refuses to interfere

with the lower court’s determinations regarding the credibility of

the witnesses and its resolutions of factual disputes as argued in

these assignments of error. Appellant’s second, sixth, and eighth

assignments of error are without merit. We recognize that

appellant is understandably upset at the fact that appellee has

become the children’s central father figure. We further recognize

the pain appellant must feel to hear the characterization that his

children want nothing to do with him and fear ridicule from their

classmates when referred to as a “Juntunen” and not a “Wagner.”

However, appellee’s willingness to care for appellant’s children,

both financially and emotionally, as well as the children’s accep-

tance of their stepfather are facts that appellant did not dispute at

trial. Based on the evidence submitted to the court, at this point, a

very strong case has been made for why the best interest of the

child would be served by the court’s granting of appellee’s adop-

tion petition.

Appellant did not attack appellee’s adoption petition by question-

ing appellee’s ability to care for his children. Instead, appellant

focused his arguments on why he has not played a part in his

children’s lives and the reasons for his children’s poor opinion of

him. Appellant alleged that he has always expressed a willingness

to play a role in the children’s development, but has been denied

that chance based on his former wife’s continued attempts to

alienate the children from him. While appellee no doubt disputes

appellant’s claimed willingness to be a consistent means of support

to the children, both financially and emotionally, we do share some

of appellant’s concerns, as expressed in his remaining assignments

of error, regarding his ability to have his arguments heard by the

trial court.

In the third and fourth assignments of error, appellant alleges error

with respect to assessments filed by Ms. Weimer to the trial court

concerning appellee’s petition for adoption. Appellant asserts that

he was never notified that the assessments of appellee and the

children were being performed and was never given an opportunity

to participate in the investigations. He further asserts that he was

never given a copy of the reports filed in the court and had no way

to question the information provided by Ms. Weimer.

R.C. 3107.031 states, in pertinent part that:

“An assessor shall conduct a home study for the purpose of

ascertaining whether a person seeking to adopt a minor is suitable

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& Pea OS Oe

to adopt. A written report of the home study shall be filed with the

court at least ten days before the petition for adoption is heard.

“The report shall contain the opinion of the assessor as to whether

the person who is the subject of the report is suitable to adopt a

minor and other information and documents specified in rules

adopted by the department of human services * * *.

“On request, the assessor shall provide the person seeking to adopt

a copy of the report of the home study. The assessor shall delete

from that copy any provisions concerning the opinion of other

persons, excluding the assessor, of the person’s suitability to adopt

a minor.”

In addition to the home study report, R.C. 3107.12 required that

an assessment also be made of the petitioner and the child. [FN1]

R.C. 3107.12 provided, in pertinent part, as follows:

FN 1. Since the trial court’s hearing on the best interest of the child

has been revised, effective August 5, 1998, no longer requiring a

prefinalization assessment to be conducted if the petitioner is the

child’s stepparent. Under the new statute, the trial court may order

that an assessor conduct a prefinalization assessment if the report

is deemed in the child’s best interests. See revised R.C.

3107.12(B).

“An assessor shall conduct a prefinalization assessment of a minor

and petitioner before a court issues a final decree of adoption or

finalizes an interlocutory order of adoption for the minor. On

completion of the assessment, the assessor shall prepare a written

report of the assessment and provide a copy of the report to the

court before which the adoption petition is pending.

“The report of a prefinalization assessment shall include all of the

following:

“(A) The adjustment of the minor and the petitioner to the adoptive

placement; 12

“(B) The present and anticipated needs of the minor and the

petitioner, * * *;

“(C) The physical, mental, and developmental condition of the

minor;

“(D) If known, the minor’s biological family background, includ-

ing identifying information about the biological or other legal

parents,

“(E) The reasons for the minor's placement with the petitioner, the

petitioner’s attitude toward the proposed adoption, and the circum-

stances under which the minor was placed in the home of the

petitioner,

“(F) The attitude of the minor toward the proposed adoption, if the

minor’s age makes this feasible;

“see”

While R.C. 3107.031 and former R.C. 3107.12 mandate that

assessments be made of the petitioner, the petitioner’s home, and

the child, there are no requirements as to how these investigations

should be conducted. As the Fourth District Court of Appeals

stated in In re Adoption of Howell (1991), 77 Ohio App.3d 80, 93,

601 N.E.2d 92:

“The statute does not differentiate the type of investigation that

should be conducted for different types of adoptions. Logically

parents have surrendered a child for adoption and both parents

have sought to have their child adopted, there may not be a need to

contact the natural parents of the child. However, in a contested

adoption proceeding, it is difficult to see how the child’s best

interest may properly be determined if the investigator has only

inquired as to the condition of the petitioners and the child.”

In the case sub judice, we agree with appellant’s assertion that he

was not permitted to participate in the creation of Ms. Weimer’s

ag gine the eektbalaalns.

Pe SN ee

reports to the trial court. R.C. 3107.12(B) provided that the asses-

sor shall, if known, include information in the assessment regard-

ing the child’s biological family background. Despite appellant’s

availability to participate in the assessment, Ms. Weimer wrote “N/

A” when she came to this section of her report regarding the

biological family.

We are deeply concerned at the way the prefinalization report was

prepared in this matter. Aside from the mandatory language

utilized by the legislature, the information provided under former

R.C. 3107.12(D) can be vital, particularly in a circumstance where

an adoptive child may begin experiencing unexplained physiologi-

cal or psychological problems. See factual situation in Burr v.

Stark Cty. Bd. of Commrs. (1986), 23 Ohio St.3d 69, 491 N.E.2d

1101. Relevant to this matter, Ms. Weimer’s failure to contact

appellant also gives the impression that his thoughts as to the

adoption do not matter and ends up providing the court with a

rather one-sided account as to why appellee’s petition for adoption

should be granted.

As to appellant’s ability to receive a copy of Ms. Weimer’s

reports, we would note that he failed to afford himself of the

protections provided in R.C. 3107.17(B) that permit the disclosure

of the information he seeks upon the consent of the court. See In re

Adoption of Dervenis (Dec. 28, 1995), Franklin App. No.

95 APF07-869, unreported. We further note that Ms. Weimer was

called to testify at the best interest hearing where she conveyed the

results of her assessments and faced cross-examination from

appellant regarding any shortcomings in the process she utilized in

compiling her assessments for the court. As indicated by appellant,

this cross-examination revealed that Ms. Weimer never contacted

appellant as she was compiling her evaluations, and, thus, her

recommendations concerning the best interest of the children did

not consider appellant’s views on the adoption.

Despite the shortcomings in Ms. Weimer’s report, we cannot agree

with appellant’s assertion that he was prejudiced by the report,

particularly in a circumstance, such as this one, where the assessor

was subject to cross-examination, and, as will be discussed in the

next assignment of error, appellant has or will be given an opportu-

nity to present evidence to counter the findings submitted in the

assessor’s report. See Howell, 77 Ohio App.3d at 91, 601 N.E.2d |

92: In re Adoption of Aiken (Mar. 30, 1992), Montgomery App.

No. 12522, unreported. Appellant’s third and fourth assignments of

error are without merit.

This leads us to appellant’s first assignment of error, and the

allegations t’sat the trial court improperly limited the evidence he

wished to present in opposition to appellee’s petition for adoption.

Specifically, appellant cites to a number of instances in the record

where the trial court limited his presentation of evidence to the

one-year period immediately preceding the filing of appellee’s

adoption petition.

In dealing with a pro se litigant, it is evident that the trial court

attempted to grant appellant as much latitude as possible in his

presentation of his case. However, a review of the record confirms

appellant’s claims that the trial court limited his presentation to

those facts that occurred within the one-year-time period immedi-

ately preceding the filing of appellee’s petition. The restrictions to

appellant’s presentation typically occurred when appellant sought

to question Ms. Wagner regarding her willingness to grant him

visitation rights as well as evidence concerning the suitability of

his home when the children are permitted to come and visit with

him. Specifically, the trial court’s comments included the follow-

ing:

“Q: (By Mr. Juntunen to Ms. Wagner) In 1995, for instance on

September 29th, 1995, did you allow me my lawful visitation with

Benjamin and Emily?

“(By appellee’s counsel): I’m going to note a continuing objection

as to the relevancy.

“BY THE COURT: I’m going to sustain the objection. The issue

here, as I’ve indicated, is the best interest of the children. The time

frame that we’re concerned about is the year immediately preced-

ing the filing of the petition for—or in close proximity to that time

frame. The petition, as I have indicated, was filed on June 23,

1994. So, we’re concerned with the period of time from June of

*93 to June of °94. If there are any relevant factors around that time

period, the Court may consider that as well.”

While R.C. 3107.07(A) limited the “consent” phase of this

adoption proceeding to the time period consisting of the year

immediately preceding the filing of appellee’s adoption petition,

there is no such restriction in the determination of the best interest

of the child. The very fact that the trial court had to consider a

prefinalization report prior to issuing a final decree of adoption

establishes that the court must consider evidence outside of the

one-year time period referenced in R.C. 3107.07(A).

In determining the best interest of the child, R.C. 3107.16]

provides:

“(A) As used in this section, ‘the least detrimental available

alternative’ means the alternative that would have the least long-

term negative impact on the child.

“(B) When a court makes a determination in a contested adoption

concerning the best interest of a child, the court shall consider all

relevant factors including, but not limited to, all of the following:

“(1) The least detrimental available alternative for safeguarding

the child’s growth and development;

“(2) The age and health of the child at the time the best interest

determination is made and, if applicable, at the time the child was

removed from the home;

“(3) The wishes of the child in any case in which the child’s age

and maturity makes this feasible;

“(4) The duration of the separation of the child from a parent;

“(5) Whether the child will be able to enter into a more stable and

permanent family relationship, taking into account the conditions

of the child’s current placement, the likelihood of future place-

ments, and the results of prior placements;

“(6) The likelihood of safe reunification with a parent within a

reasonable period of time;

“(7) The importance of providing permanency, stability, and

continuity of relationships for the child;

“(8) The child’s interaction and interrelationship with the child’s

parents, siblings, and any other person who may significantly

affect the child’s best interest;

“(9) The child’s adjustment to the child’s current home, school,

and community;

“(10) The mental and physical health of all persons involved in the

situation;

“(11) Whether any person involved in the situation has been

convicted of, pleaded guilty to, or accused of any [relevant]

criminal offense * * *.

“(C) A person who contests an adoption has the burden of provid-

ing the court material evidence needed to determine what is in the

best interest of the child and must establish that the child’s current

placement is not the least detrimental available alternative.”

(Emphasis added.)

Unlike R.C. 3107.07(A), R.C. 3107.161 does not contain a one-

year restriction from which to consider evidence. Thus, it was

improper for the trial court to restrict appellant’s evidence at the

“best interest” phase to this time period. Appellant’s first assign-

ment of error has merit.

Throughout these proceedings, appellant has expressed his desire

to do everything in his power to prevent the permanent termination

of his parental rights. He has done this for the stated purpose of

letting his children know that he did not permit the adoptions to

ee ee ae eee ae

occur without a fight. While appellant’s statements are admirable,

they are clearly in conflict with his continued practice of failing to

provide financial and emotional support for his children. However,

appellant submits that he can prove that any shortcomings he has

had as a father are not his fault and that the children’s best interest

would be served by the court fostering a relationship between the

children and both sets of families. The law requires the court to

come up with the “least detrimental alternative.”

Based on the restrictions that were placed on appellant’s presenta-

tion of his case, on remand appellant shall have an opportunity to

present to the trial court any additional evidence relevant to the

best interest determination. This determination may include

appellant’s development of his theory that the children suffer from

“Parental Alienation Syndrome” as a result of Ms. Wagner’s past

actions. We will warn appellant, however, that he is treading on

very thin ice and we strongly recommend that he retain counsel. If

he has actual evidence that the children suffer from “Parental

Alienation Syndrome” and could develop a meaningful relation-

ship with the Juntunen family, appellant needs to now present that

evidence to the trial court in a way that conforms to the Ohio Rules

of Evidence and Procedure. On remand, appellee should also be

given an opportunity to respond to any evidence submitted by

appellant if he so desires.

We remind appellant that the trial court’s determination will be

made on the evidence that was admitted at the prior hearing and

the relevant evidence that will properly be admitted as a result of

our remand. The subjective desires of appellant will not suffice to

meet his burden to present evidence that the adoption of the

children by their stepfather is not the least detrimental alternative

available.

As a result of our determination regarding appellant’s first assign-

ment of error, appellant’s arguments concerning the trial court’s

consideration of all relevant factors in its judgment entry are moot.

Based on the foregoing, the judgment of the trial court is reversed

and this matter is remanded for further proceedings consistent with

this opinion. All pending motions currently before this court are

hereby overruled as moot. It is the further order of this court that

the parties equally share the costs of this proceeding.

/s/ JUDGE WILLIAM M. O’NEILL

FORD, P.J., concurs with the first, second, fifth, sixth, eighth, and

ninth assignments of error; concurs in judgment only as to the

seventh assignment of error, dissents on the third and fourth

assignments of error with Concurring/Dissenting Opinion,

CHRISTLEY, J., concurs with the second, fourth, fifth, sixth,

seventh, eighth, and ninth assignments of error; concurs in judg-

ment only as to the first and third assignments of error with

Concurring Opinion.

COURT OF APPEALS, ELEVENTH DISTRICT, LAKE

COUNTY, OHIO IN RE: THE ADOPTION OF EMILY ANNA

WAGNER CASE NO. 97-T-0223, Filed July 1, 1999

CONCURRING/DISSENTING OPINION

FILED COURT OF APPEALS JUL 01 1999 TRUMBULL

COUNTY, OHIO MARGARET R. O’BRIEN, Clerk

FORD, P.J.:

| respectfully concur with most of the majority’s treatment of this

matter.

This writer concurs in judgment only with the majority on the

seventh assignment of error. The majority discusses the constitu-

tionality of applying R.C. 3107.07(A) to the consent phase of the

adoption. R.C. 3107.07(A) states that consent to an adoption is n¢

required of a natural parent when it is alleged that the parent has

failed without justifiable cause to communicate with or provide

maintenance and support for the minor for a period of at least one

year immediately preceding the filing of the adoption petition. TI

writer notes that the requirements of the statute concerning the

issue of the amount of support needed from a parent’s total oblig:

tion to determine whether his or her consent is required to allow an

adoption matter to proceed is case specific and is a legislative

problem that the Supreme Court of Ohio has not yet solved.

However, a potential adoptive parent has the burden of proving,

by clear and convincing evidence that the natural parent failed to

support his or her child during the one-year period preceding the

adoption petition, and that there was no justifiable cause for failing

to provide for the support of the child. In re Adoption of Hale (July

22, 1988), Lake App. No. 12-238, unreported, at 6. See, also, In re

Adoption of Cline (1993), 89 Ohio App.3d 450, 456; Quinn v.

Helman (Sept. 13, 1985), Trumbull App. No. 3509, unreported, at

3. It is evident from this district’s cases on this subject that an

insubstantial amount of support alone will not necessarily provide

a trial court with the basis to negate consent by a natural parent

when the plaintiff has failed to meet the burden of establishing the

negative concept of no justifiable cause by clear and convincing

evidence. Members of this court still hold to that rule in these

proceedings. It is this writer’s position that the statute must be

strictly construed to protect the rights of the natural parents, and,

therefore, trial courts in our district should be alert to this common

thread in our opinion on this issue.

While not expressly addressing the arguments by the parties in the

seventh assignment of error again, it is this writer’s position that

the majority erred in concluding that the doctrine of res judicata

applies. | am of the opinion that the majority has misstated the

doctrine of the “law of the case,” as stated in Nolan v. Nolan

(1984), 11 Ohio St.3d 1. According to Nolan, the doctrine of the

“law of the case” provides that a reviewing court’s decision “in a

case remains that law of the case on the legal questions involved

for all subsequent proceedings in the case at both the trial and

reviewing levels.” Id. at 3. Thus, this rule ensures the consistency

of results in a case. Accordingly, pursuant to Nolan, I conclude that

in disposing of this issue, we are solely bound by the doctrine of

the law of the case, and not res judicata.

However, I dissent from the majority for its failure to discuss

issues presented in the third and fourth assignments of error. In the

third assignment of error, appellant raised the issue of the constitu-

tionality of the granting of the adoption without notice of a filing,

and without admitting reports into evidence at the “best interest”

hearing. In his fourth assignment of error, appellant mentioned the

constitutionality of his exclusion from the state- initiated investiga-

tion. These issues were presented to us, but were not addressed in

the majority opinion. I, therefore, again dissent from the majority

because of its failure to address these issues.

Hence, I concur with the majority regarding its analysis and

conclusions as to the first, second, fifth, sixth, eighth and ninth

assignments of error; | concur in judgment only as to the seventh

assignment of error; and I dissent with respect to the third and

fourth assignments of error.

/s/ PRESIDING JUDGE DONALD R.FORD

COURT OF APPEALS, ELEVENTH DISTRICT, LAKE

COUNTY, OHIO IN RE: THE ADOPTION OF EMILY ANNA

WAGNER CASE NO. 97-T-0223, Filed July 1, 1999

CONCURRING OPINION

FILED COURT OF APPEALS JUL 01 1999 TRUMBULL

COUNTY, OHIO MARGARET R. O'BRIEN, Clerk

CHRISTLEY, J.

I respectfully concur in judgment only as to the first and third

assignments of error. I agree with the conclusion of the majority

regarding the first assignment of error as it relates to the time

frame of admissible relevant evidence with respect to the “best

interest” element.

My concern is that the legislative intent of this bifurcated process

of consent and best interest appears to be contradictory. Specifi-

cally, I have difficulty with the concept that, under the statute as

written, a biological parent whose consent has been determined to

be unnecessary can, nevertheless, challenge the adoption proceed-

ae raN oid ar

ing in the best interest phase. Not only is it apparent that the

disenfranchised parent can challenge the suitability of the pro-

posed adoptive parent, but the parent can again litigate his or her

own role in the child’s life by challenging the ability of the child to

be adopted by anyone.

I find this to be both confusing and contradictory. Neveriheless,

u.der R.C. 3107.161 and its companion statutes, it appears the

nonconsenting parent can, again, in the best interest phase, litigate

his or her own right to continue as a parent to the child.

If the legislature truly intended that the consent of a parent was

not necessary, it would make more sense if the evidence in the

“best interest” hearing did not address whether the nonconsenting

parent was improperly denied either his or her right to consent or

his or her right to continue as a parent. Certainly appellant should

be entitled to a voice regarding “best interest,” but that voice

should only be able to challenge the suitability of the petitioner as

the proposed adoptive parent, not the issue of adoption per se.

If that had been the law, then appellant’s attempts to submit

evidence would have been rebuffed as being irrelevant on that

basis. Specifically, the issues regarding Ms. Wagner’s alleged

denial of visitation rights to him; the suitability of appellant’s own

home when the children were permitted to come and visit with

him; and, the parental alienation syndrome would no longer be

issues available to be litigated. [FN1]

FN 1. I, nevertheless, believe that the “denial of visitation” and

“alienation syndrome” are irrelevant to any adoption issue, even

under the current statute.

Unfortunately the law as now written seems to permit a second

Opportunity to litigate the rights of a non-consenting parent and to

provide a forum for that parent to demonstrate that his shortcom-

ings as a parent were not his fault.

In conclusion, I agree with the majority that the one year restric-

tion on the evidence related to the best interest hearing was too

limiting, and I reluctantly agree that evidence as to appellant’s

right to block any adoption process is admissible.

As to the third assignment regarding the need for inclusion of the

appellant in the psychological evaluations, I agree that such

evaluations were mandatory under the applicable former statute.

However, that issue is waived as the appellant did not object at the

trial court level. He did cross-examine the social worker vigor-

ously as to his exclusion from the report, but he never objected to

its admission on that basis. Neither did he request a continuance so

that he could be included in such a report. Instead, he raises this

issue for the first time on appeal. Further, I find it significant that

the mandatory nature of this part of the statute has since been

eliminated by the legislature.

I, therefore, would find no error on the part of the trial court in

this regard.

Thus, I concur in judgment only as to the first and third assign-

ments of error. In all other respects, I concur in the judgment and

analysis of the majority.

/s/ JUDGE JUDITH A. CHRISTLEY

STATE OF OHIO }

} SS.

COUNTY OF TRUMBULL }

IN THE COURT OF APPEALS, ELEVENTH DISTRICT Filed

July 1, 1999

JUDGMENT ENTRY

CASE NO. 97-T-0223

FILED COURT OF APPEALS JUL 01 1999 TRUMBULL

COUNTY, OHIO MARGARET R. O’BRIEN, Clerk

For the reasons states in the Opinion of this court, it is judgment

and order of this court that the judgment of the trial court is

reversed and this matter is remanded for further proceedings

consistent with this Opinion. All pending motions currently before

this court are hereby overruled as moot. It is the further orderof

this court that the parties equally share the costs of this proceeding.

/s/ JUDGE WILLIAM M. O’NEILL, FOR THE COURT

FORD, P.J., concurs with the first, second, fifth, sixth, eighth, and

ninth assignments of error; concurs in judgment only as to the

seventh assignment of error; dissents on the third and fourth

assignments of error with Concurring/Dissenting Opinion,

CHRISTLEY, J., concurs with the second, fourth, fifth, sixth,

seventh, eighth, and ninth assignments of error; concurs in judg-

ment only as to the first and third assignments of error with

Concurring Opinion.

(Cite as: 1999 WL 689971 (Ohio App. 11 Dist.)) NOTICE: RULE

2 OF THE OHIO SUPREME COURT RULES FOR THE RE-

PORTING OF OPINIONS IMPOSES RESTRICTIONS AND

LIMITATIONS ON THE USE OF UNPUBLISHED OPINIONS.

In re the Adoption of Benjamin Matthew WAGNER. No. 97-T-

0224.

Court of Appeals of Ohio, Eleventh District, Trumbull County.

Filed July 1, 1999.

Civil Appeal from the Court of Common Pleas, Probate Division,

Case No. 94 ADP 058.

Roger D. Juntunen, Hubbard, OH, for Respondent-Appellant. Elise

M. Burkey, Warren, OH, for Petitioner-Appellee, Mark V. Wagner.

JUDGMENT: Reversed and remanded.

FORD, CHRISTLEY and O’NEILL, JJ.

OPINION

FILED COURT OF APPEALS JUL 01 1999 TRUMBULL

COUNTY, OHIO MARGARET R. O’BRIEN, Clerk

O’NEILL., J.

The following is an appeal from an ongoing process involving the

adoption of a child, Benjamin (d.0.b.3/21/87), by her stepfather,

appellee, Mark V. Wagner (“appellee”). In the current appeal,

appellant, Roger Juntunen (“appellant”), Benjamin’s natural father,

alleges error in the trial court’s determination that the best interest

of the child would be served by permitting the adoption and

permanently terminating his parental rights. Based on errors below

that prevented appellant from fully narticipating at the hearing held

to determine the best interest of the child, we reverse the judgment

of the trial court and remand for further proceedings consistent

with this opinion.

The facts pertinent to this appeal are as follows. On June 23,

1994, appellee filed a petition in the Probate Division of the

Trumbull County Court of Common Pleas seeking to adopt his two

stepchildren, Benjamin and Emily (d.o.b. 9/8/89). By way of

background, appellee’s wife, Deborah Wagner (f.k.a. Juntunen),

was previously married to appellant and two children, Benjamin

and Emily, were born as issue to this marriage. On July 15, 1991,

the children’s natural parents were granted a decree of dissolution

in the state of Indiana. Ms. Wagner was designated the residential

parent and appellant, with an income potential exceeding $35,000

per year, was ordered to pay $150 per week in child support. On

December 31, 1991, Ms. Wagner married appellee, and since that

date, the children have resided with appellee and their mother.

In his petition, appellee alleged that appellant’s consent to the

adoption was unnecessary because, pursuant to R.C. 3107.07,

appellant failed without justifiable cause to communicate and/or

is ere eT