IN THE SUPREME COURT OF OHIO

STATE OF OHIO, EX REL.KEVIN MICHAEL CROOKS2021 Cristata CourtAmelia, Ohio 45102

Relator

V.

JUDGE R. ALAN CORBIN(Visiting Judge)Clermont County Probate Court2340 Clermont Center DriveBatavia, Ohio 45103

Respondent

I I - 0 2 3 'JOLCASE NO.

ORIGINAL ACTION IN PROCEDENDO

EXPEDITED: This action involves theadoption of a minor - S.Ct.Prac.R. X(10)

COMPLAINT FOR WRIT OF PROCEDENDO

Michael R. Voorhees (0039293)Voorhees & Levy LLC11159 Kenwood RoadCincinnati, Ohio 45242Telephone: (513) 489-2555Facsimile: (513) 489-2556mike(cr^ohio adoptionlawyer. com

David H. Hoffmann (0005384)Clennont County Assistant Prosecutor123 North Third StreetBatavia, Ohio 45103Telephone: (513) 732-7313Facsimile: (513) 732-7592dhoffinann(crco.clennont.oh.us

Counsel for Relator Kevin Michael Crooks Counsel for Respondent Judge R. Alan Corbin

1

re'9 1 ^ zQii

CLERK OF COURTSUPREME COURT OF OHIO

Now comes Relator, Kevin Michael Crooks, by and through counsel, and hereby petitions

this Honorable Court for a Writ of Procedendo, which orders Respondent, Judge R. Alan Corbin,

to immediately proceed with Case Number 10-AD-961 of the Clermont County Probate Court

relating to the adoption of Paityn Alexa Crooks, based upon the following:

PRELIMINARY STATEMENT

1. This is an original action under the laws and Constitution of the State of Ohio, in which the

Respondent, Judge R. Alan Corbin, has failed to proceed with Case Number 10-AD-961 of the

Clermont County Probate Court relating to the adoption of Paityn Alexa Crooks.

JURISDICTION

2. Original jurisdiction is proper in this Court pursuant to Ohio Const. Art. IV § 2(B)(1)(e).

PARTIES

3. Relator Kevin Crooks is a resident of Clermont County, Ohio and is the step-father of

Paityn Alexa Crooks and is the Petitioner in Case Number 10-AD-961 of the Clermont County

Probate Court, in which he is seeking to adopt his step-daughter.

4. Respondent Judge R. Alan Corbin is and at all relevant times has been the Visiting Judge of

the Probate Court, Clermont County, Ohio, specifically appointed to hear CaseNumber 1 0-AD- 961

of the Clermont County Probate Court.

FACTS

5. Paityn Alexa Crooks, whose birth-name is Paityn Alexa Tuttle, was born on July 13, 2005

at Christ Hospital in Cincinnati, Hamilton County, Ohio. The mother of Paityn is Susan Crooks,

who is the wife of the Relator.

6. At the time of Paityn's birth, her legal father was Jeremy Tuttle. Gary Otten was declared to

be the biological father by the Clermont County Juvenile Court on July 30, 2007. (Exhibit A)

2

7. On April 20, 2007, Relator filed a Petition for Adoption in the Hamilton County Probate

Court under Case No. 2007-001743, alleging that, pursuant to R.C. 3107.07(B)(1), the consent of

the putative father was not required because he failed to register with the Ohio Putative Father

Registry. Ultimately, this Ohio Supreme Court disregarded the clear language of the statute and

nullified R.C. 3107.07(B)(1) by allowing Otten to retroactively change his status from a putative

father to a parent in the adoption proceeding, due to a pending paternity action in juvenile court.

In re Adoption ofP.A.C. (2010), 126 Ohio St. 3d 236, 2010 Ohio 3351, 933 N.E.2d 236.

8. Regarding Case No. 2007-001743 in the Hamilton County Probate Court, this Ohio

Supreme Court reversed the Court of Appeals and affirmed the Probate Court's decision to dismiss

the Petition, which was filed on April 20, 2007 and based on R.C. 3107.07(B). Relator filed an

Amended Petition in Case No. 2 007-00 1 743 in the Hamilton County Probate Court, which was

based on R.C. 3107.07(A) and the one-year statutory period of February 23, 2008 to February 23,

2009. This Amended Petition was voluntarily withdrawn by Relator. The closing of the adoption

proceeding in the Hamilton County Probate Court was delayed due to the wait for the return of the

record and several filed motions by Otten. On February 8, 2011, the Judge of the Hamilton County

Probate Court officially closed Case No. 2007-001743. (Exhibit B)

9. On July 28, 2010, Relator filed a Petition for Adoption in Case No. 10-AD-961 in the

Clermont County Probate Court, which was based on R.C. 3107.07(A) and the one-year statutory

period of July 28, 2009 to July 28, 2010. (Exhibit C)

10. The hearing on the Petition in Case No. 10-AD-961 was scheduled for September 20, 2010.

The Clermont Court Probate Court sent notice of the hearing to Otten at his address of 1907 Eastern

Ave., Covington, Kentucky 41014. The notice was sent by certified mail and was delivered to Otten,

who signed the certified mail receipt, which was then returned to the Court and filed with the Court

on August 2, 2010. Otten was properly served and notified of the hearing on the Petition scheduled

3

for September 20, 2010. Notice of the hearing on the Petition wasprovided to Otten pursuant to R.C.

3107.11. Otten had until August 16, 2010 to file an objection to the adoption with the Clermont

County Probate Court.

11. On September 20, 2010, the same morning of the hearing, Otten filed an untimely objection

with the Clermont County Probate Court and a Compliant for a Writ of Prohibition against the Judge

and Magistrate of the Clermont County Probate Court with the Court of Appeals. Based upon the

filing of the Compliant for Writ of Prohibition, the Magistrate continued the hearing. (Exhibit D)

Relator filed an objection to the continuance by the Magistrate on September 27, 2010. (Exhibit E)

Realtor's objection has never been ruled upon by the Court. Relator also filed a Motion to Set Final

Hearing Date. (Exhibit F) Relator's motion has never been ruled upon by the Court.

12. Respondent has refused to proceed with Case Number 10-AD-961 of the Clermont County

Probate Court relating to the adoption of Paityn Alexa Crooks, which has unnecessarily delayed

proceeding to judgment.

JUSTIFICATION FOR WRIT

13. Relator is entitled to the requested Writ of Procedendo. A writ of procedendo is appropriate

when a court has either refused to render a judgment or has unnecessarily delayed proceeding to

judgment. State ex rel. Weiss v. Hoover (1999), 84 Ohio St. 3d 530, 1999 Ohio 422, 702 N.E.2d

1227. The Clermont County Probate Courthas original and exclusive jurisdiction over the adoption

of Paityn Alexa Crooks. State ex rel. Portage Co. Wedfare Dept. v. Summers (1974), 38 Ohio St. 2d

144, 67 O.O. 2d 151, 311 N.E.2d 6. There are no other adoption proceedings relating to this child,

other than Case Number 10-AD-961 in the Cleimont County Probate Court. There are no

extraneous filings that relate to the substantive issues in the adoption proceeding. There are no

orders or filings that stay the adoption proceeding filed as Case Number 10-AD-961 in the Clermont

County Probate Court.

4

14. Relators are entitled to the requested Writ of Procedendo. As a matter of law, the consent of

Otten is not required. Pursuant to R.C. 3107.07(K), the consent of Otten is not required because he

failed to file an objection to the petition within fourteen days after proof of the notice was filed with

the Court. Pursuant to R.C. 3107.11, second notice shall not be given to Otten because his consent is

not required as provided by R.C. 3107.07(K). Otten failed to secure his right to be heard in this

adoption proceeding. Otten is forever barred from becoming a party in this adoption proceeding.

Otten is not a party to CaseNumber 10-AD-961 in the Clermont County Probate Court. Therefore,

pursuant to the confidentiality provisions of R.C. 3107.17, Otten is not entitled to any information,

including this filing herein, and is not entitled to be heard in the adoption proceeding.

15. Relators are entitled to therequested Writ of Procedendo. There is no basis for any refusal to

render a judgment or to unnecessarily delay proceeding to judgment. The final hearing was

scheduled for September 20, 2010 and the objection to the continuance was filed September 27,

2010. Respondent must proceed with the final hearing, without any involvement of Otten.

16. The exhibits referenced above are attached and are hereby incorporated into this Complaint

by reference.

WHEREFORE, the Relator, Kevin Crooks, by and through counsel, respectfully requests

this Court to expedite this action and to issue a Writ of Procedendo that orders the Respondent,

Judge R. Alan Corbin, to immediately proceed with Case Number 10-AD-961 of the Clermont

County Probate Court relating to the adoption of Paityn Alexa Crooks and to schedule the final

hearing on the adoption, with no involvement of or notice to Gary Otten, and such other and fiirther

relief as the Relator may be entitled under law or in equity.

5

Respectfully submitted,

y^X"yMichael R. Voorhees (0039293)Voorhees & Levy LLC11159 Kenwood RoadCincinnati, Ohio 45242(513) 489-2555 phone(513) 489-2556 faxmikekohioadontionlawyer.comCounsel for Relator, Kevin Crooks

CERTIFICATE OF SERVICE

I hereby certify that a copy of the Compliant for Writ ofProcedendo has been sent by regular

U.S. mail this V^ day of February, 2011 to: Judge R. Alan Corbin (Visiting Judge), Clermont

County Probate Court, 2340 Clermont Center Drive, Batavia, Ohio 45103; David H. Hofflnann,

Counsel for Respondent Judge R. Alan Corbin, Clermont County Assistant Prosecutor, 123 North

Third Street, Batavia, Ohio 45103.

^2rC^aL^UC

6

VERIFICATION

STATE OF OHIO }} SS.

COUNTY OF HAMILTON }

Michael R. Voorhees, being first duly cautioned and sworn, and in accordance with

S.Ct.Prac.R. X(4)(B), states as follows: I am the Attorney for the Relator, Kevin Crooks; I have

prepared and signed the foregoing Complaint for Writ of Procedendo; the facts set forth in the

Complaint are based upon my personal knowledge; and, to the best of my knowledge, information,

and belief, all of the facts alleged therein are true.

Michael R. Voorhees (0039293)

Sworn to before me and subscribed in my presence this

7

EXHIBIT A

COURT OF COMMON PLEASJUVENILE DIVISION

CLERMONT COUNTY, OHIO

FiLED

JUL 3 0 tU07CLERMONT COUNTY JUVENILE COURT

STEPHANIE WYLER, JUDGE

Gary Otten Case No. 2007 JG 14510

Plaintiff

vs.MAGISTRATE'S DECISION

Susan Tuttle (NKA Susan Crooks)Defendant

This matter came before the Court on June 20,2007 for the presentation ofevidence in support of a Complaint for Allocation of Parental Rights and

Responsibilities filed by Gary Otten on January 29, 2007 and for a Motion to

Dismiss, a Motion to Stay Proceedings/Motion to Relinquish Jurisdiction to theHamilton County Probate Court, filed by Susan Tuttle on April 27, 2007 and June11, 2007, respectfully. Present before the Court were Gary Otten ("Often"),represented by counsel J. Stephen Cox and, Susan Tuttle, nka Crooks ("Tuttle"),represented by counsel Michael Voorhees, and Gayle Walker, Child Support

Enforcement Agency.

Base upon a review of the file and the testimony presented, the Court issues

the following findings of fact:

1. The child, Paityn Tuttle ("Paityn"), was born July 13, 2005.

2. At the time of Paityn's birth, Tuttle was married to Jeremy RyanTuttle, whose name appears on Paityn's birth certificate as the

father.

3. Genetic testing was conducted on August 9, 2005, and results ofthat testing were filed herein on January 29, 2007. The results ofgenetic testing show that Gary Otten is the biological father of

Paityn Tuttle.

4. A Complaint to determine parentage was filed in Case number2007 JI 14578 of this Court, on February 13, 2007, alleging Otten

to be Paityn's father.

5. Tuttle divorced Jeremy Ryan Tuttle in the Commonwealth ofKentucky after Paityn's birth. The decree of divorce recites that

Jeremy Ryan Tuttle is not the father of PaitynTuttle.

6. Tuttle and Otten had an ongoing relationship for a period ofseveral months during which Otten and Tuttle spent time together

parenting Paityn.

7. Tuttle is now married to Kevin Michael Crooks ("Crooks").

8. On April 20, 2007, Crooks filed a petition to adopt Paityn inHamilton County Probate Court. This matter is still pending and

is set for a hearing on October 16, 2007.

9. Do the fact that Otten failed to register as a punitive father, asrequired by O.R.C. 3107.062, he may not be able to successfullycontest the adoption. The issuance of a final decree of adoptionwill result in a termination of all Otten's legal rights andresponsibilities with regard to Paityn.

10. On May 24, 2007, Otten filed his Confession of Judgementadmitting he was Paityn's father.

11. On June 20,2007, Otten tendered to the Court his proposed shared

parenting plan regarding Paityn.

Based upon the forgoing findings of fact, the Court concludes that it wouldnot be in the best interest of Paityn Tuttle, to grant parenting time to Gary Otten atpresent as any parenting orders issued by this Court may be superseded by a decreeof adoption issued by the Hamilton County Probate Court at the scheduled hearing

October 16, 2007.

IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that GaryOtten is declared to be the biological father of Paityn Tuttle, born July 13, 2005.

IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that furtherhearing in this matter is stayed until such time as the outcome of the pending

petition to adopt Paityn can be determined.

Pursuant to Juv. R. 40 (D)(3)(b) a party may file written objections to a Magistrate's

Decision within fourteen days of the filing of the decision, whether or not the Courthas adopted the decision during that fourteen day period as permitted by Juv. R.40(D)(4)(e)(i). An objection to a Magistrate's Decision shall be specific and state

with particularity all grounds for objection.

A PARTY SHALL NOT ASSIGN AS ERROR ON APPEAL THE COURT'SADOPTION OF ANY FACTUAL FINDING OR LEGAL CONCLUSION,WHETHER OR NOT SPECIFICALLY DESIGNATED AS A FINDING OF FACT

OR CONCLUSION OF LAW UNDER JUV. R. 40(D(3)(a)(ii), UNLESS THE

PARTY TIMELY AND SPECIFICALLY OBJECTS TO THAT FACTUALFINDING OR LEGAL CONCLUSION AS REQUIRED BY JUV. R. 40(D)(3)(b).

Date Magistrate Frank W. Malott

ADOPTION OF MAGISTRATE'S DECISION

JUDGMENT ENTRY

The foregoing Magistrate's Decision is hereby adopted and judgment is entered ini).rdance therewith as permitted by Juv. R. 40(D)(4)(eJacco II l ;I

) %Arki Tl%i,L

Date Judge Stephanie A. Wyler

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing was sent by regular U.S. Mail

and facsimile this ...i / day of 2007 to J. Stephen Cox,attorney for Gary Otten, at 120 East Fourth Street, Suite,420, Cincinnati, Ohio45202, to Michael Voorhees, attorney for Susan Tuttle, at 11159 Kenwood Road,

Cincinnati, Ohio 45242 and CSEA.

Depu Clerk

EXHIBIT B

PROBATE COURT OF HAMILTON COUNTY, OHIO

IN THE MATTER OF THE ADOPTION OF PAITYN ALEXA CROOKS

CASE NO. 200 43

ENTRY DENYING OBJECTIONS ANDADOPTING DECISION OF MAGISTRATE

The Objections filed by Respondent Gary Otten, which objected.to the.December 16, 2010 Decision

of Magistrate, came before the Court for hearing on February 8, 2011 and the Court finds that the Objections

are without merit and the Court hereby adopts the Decision of Magistrate entered December 16, 2010.

This is the final order in this case and this matter is now closed.

A COPY OF THIS ENTRYWAS MAILED TO THE PARTIESLI8TED WLEFTON®Y

(G :Copies to: vin Crooks (fda„Jdof 46,Michael R. Voorhees, Attorney for Petitioner Ke

Gary D. Otten, pro seGOWT 97FA AOhi PLE/+S

a JA ES CIaSELILL SEFSVE N0T1CE

ppS CpgT S HE

T^P3LERK SHA

SHALL DE TOdXED^ p^IWHIW^U^ ^ E1N

EXHIBIT C

PROBATE COURT OF CLERMONT COUNTY, OHIO

IN THE MATTER OF THE ADOPTION OF PAITYN ALEXA CROOKS(Name after adoption)

CASE NO. 10A .l^ qlv l

PETITION FOR ADOPTION OF[R.C. 3107.05]

The undersigned petitions to adopt Paityn Alexa Tuttle

and to change the name of the minor to

The petitioner states the following:

PETITIONER

Full Name: Kevin Michael Crooks Age 38

Place of Residence: 2021 Cristata CourtStreetAddress

AmeliaCity or Village or Township if unincorporated area

Post Office

ClermontCounty

Ohio 45102 3 yearsState Zip Code Duratlon of residence

Marital Status: married Date and Place of Marriage: April 13 , 2007 - Gatlinburg Tennessee

Relationship of Minor to Petitioner: Step-Daughter

The petitioner has facilities and resources suitable to provide for the nurture and care of the minor and it is the desire of

the petitioner to establish the relationship of parent and child with the minor.

MINOR TO BE ADOPTED

Birth Name: Paityn Alexa Tuttle Date of Birth: July 13 2005

Place of Birth: Christ Hosoital Cincinnati, Ohio Property and Value: none

0 The minor is living in the home of the petitioner, and was placed therein for adoption on the 13th day of

April , 2007 by Susan Ann Crooks

q The minor is not living in the home of the petitioner, and resides at

q The minor will be an adopted person as defined in R.C. 3107.39;

0 The minor will be an adopted person as defined in R.C. 3107.45;

A certified copy of the birth certificate of the minor is filed with this petition or is not available due to the following:

A Preliminary Estimate Account (Form 18.9), if required, is filed with this petition.

The minor is in the custody of Susan Ann Crooks

whose address is 2021 Cristata Court, Amelia Ohio 45102

q The guardian ad litem during the permanent custody proceedings was

whose address is

q The attorney representing the minor during the permanent custody proceedings was

whose address is

18.0- PETITION FOR ADOPTION OF MINOR 04/07/09

PERSONS OR AGENCIES WHOSE CONSENT TO THE ADOPTION IS REQUIRED

Name: Susan Ann Crooks Relationship: mother Age, if minor

Address: 2021 Cristata Court, Amelia Ohio 45102 O Consent filed

0

qName: Relationship: Age, if minor

q Consent filedAddress:

q , the agency has permanent custody of the minor

filed underq Consent filed

Court -County Case No.

PERSONS WHOSE CONSENT TO THE ADOPTION IS NOT REQUIRED

q No person has timely registered pursuant to R.C. 3107.062 as a putative father of the minor born on or afterJanuary 1, 1997. Ohio Putative Father Registry Certification will be filed on or before the hearing date

The consent of Garv Otten 1907 Eastern Avenue Covinoton Kentucky 41014 biolooical fatherName Address RelaGonship

is not required because:

0 The parent has failed without justifiable cause to provide more than de minimis contactwith the minor for a periodof at least one year immediately preceding the filing of the adoption or the placement of the minor in the home of

the petitioner.

The parent has failed without justifiable cause to provide for the maintenance and support of the minor as requiredby law orjudicial decree for a period of at least one year immediately preceding the filing of the adoption petitlon orthe placement of the minor in the home of the petitioner.

State other grounds under R.C. 3107.07 ( includes putative father of the minor born before January 1, 1997.)

0

0

the ado tion is in the child's best interest

Jeremy T ijttle was named on the birth certifi^ate and was the oresumed legal father, but no±the bioloaical father:

Gary Otten was established as the father by the Clermont Coun Juvenile Court

Attorney for Petitioner Petitioner

NT h el R Voorheesic a Kevin Michael Crooks

Typed or Printed Name Typed or Printed Name

11159 Kenwood RoadStreet Address Petitioner

Cincinnati Ohio 45242City State Zip Code Typed or Printed Name

(513) 489-2555 2021 Cristata CourtPhone Number (include area code) Street Address

Attorney Registration No. 0039293 Amelia Ohio 45102City State Zip Code

(513) 797-1551Phone Number (include area code)

18.0 - PETITION FOR ADOPTION OF MINOR 04/07/09

EXHIBIT D

COURT OF COMMPROBATE DIVISION j^ ^^^E-P 2 1 2016 "

j', OHIOCLERMONT COUNTI

In Re: Adoption of

PAITYN ALEKA TUTTLE

STtRMANIE WYLER) l(lC)(;r

rACFh7() 1(14T19F1

)

ENTRY CONTINUING HEARING

In consideration of the request of Gary Otten that the Twelfkh District Court of Appeals

issue a Writ of Prohibition & Mandamus to this Court; it is ordered that all matters pending

herein be continued until such time as the Court of Appeals has fully and finally ruled on the

relief sought by Mu. Otten.

Magistrate

CERTIFICATE OF SERVICE

The undersigned certifies that a copy of this Entry Continuing Hearing was senTed upon

the following by ordinary U. S. Mail on the o2 ^day of September, 2010:

Gary Otten, 1907 Eastern Ave., Covington, KY 41014Michael Voorhees, Attorney at Law, 11159 Kenwood Rd., Cincinnati, OH 45242

dwt

EXHIBIT E

PROBATE COURT OF CLERMOl`^T COUNTY, 0H10

IN THE MATTER OF THE ADOPTION OF PAITYN ALEXA CROOKS(Nameafter adoption)

CASE NO. 10 AD 961

Kevin Michael Crooks

Petitioner

Gary Otten

Biological Father

Petitioner's Objection toDecision of Magistrate

LSEP 2010STEPHANIE WYLER

JUDGE

Now comes Petitioner Kevin Crooks, by and through counsel, and pursuant to Rule 53 (D)(3)

of the Ohio Rules of Civil Procedure hereby objects to theDecision ofMagistrate of September 21,

2010, which continued all pending matters due to a filing in Court of Appeals by Gary Otten.

Petitioner hereby requests the Court to enter an order finding that the consent of Otten is not

required, to dismiss Otten from these proceedings, and to enter a final decree of adoption. Otten is

no longer a party to these proceedings, a favorable report on the Petitioner has been filed with the

Court, the adoption is clearly in the best interest of the child, and there is no reason for any further

delay in finalizing this adoption. A supporting Memorandum is filed herewith.

Respectfully submitted,

^4.e^G^ ^^ lueMichael R. Voorhees (0039293)Voorhees & Levy LLC11159 Kenwood RoadCincinnati, Ohio 45242(513) 489-2555 phone(513) 489-2556 faxAttomey for the Petitioner

I

^0 ^96

Memorandum

This matter relates to Paityn Alexa Crooks, a child born on July 13, 2005 at Christ Hospital

in Cincinnati, Ohio. Gary Otten was declared to be the biological father by the Clennont County

Juvenile Court on July 30, 2007. The Petition for Adoption was filed on July 28, 2010 and the

hearing on the Petition was scheduled for September 20, 2010.

The Court sent notice of the hearing to Otten at his address of 1907 Eastem Ave., Covington,

Kentucky 41014. The notice was sent by certified mail and was delivered to Otten, who signed the

certified mail receipt, which was then retumed to the Court and filed urith the Court on August 2,

2010. Otten has been properly served and notified of the hearing on the Petition scheduled for

Septetnber 20, 2010. Notice of the hearing on the Petition was provided to Ottenpursuant to R.C.

3107.11. Otten had until August 16, 2010 to file an objection to the adoption with this Court.

Pursuant to R.C. 3107.07(K), the consent of Otten is not required because he failed to file an

objection to the petition within fourteen days after proof of the notice was filed with the Court.

Pursuant to R.C. 3107.11, second notice shall not be given to Gary Otten because his consent is not

required as provided by R.C. 3107.07(K). Otten is forever barred from becoming a party in this

adoption proceeding.

R.C. 3107.07(K) is a separate and independent basis under R.C. 3107.07 for finding that

consent is not required. Although no other grounds are required, the consent of Otten is not required

pursuant to R.C. 3107.07(A) because he failed without justifiable cause to provide for the

maintenance and support of the minor as required by law for a period of at least one year. The

relevant one-year period is July 28, 2009 to July 28, 2010. On the date the petition was filed, Otten

had a total arrearage of $ 9,327.80. (See payment history report from Clermont County CSEA

2

lq^l

attached hereto) During the relevant one-year period, Otten made one payment of $ 31797 in

December 2009. This is anegligiblepayment a7d doesnot satisfy his support obligation. Seeln the

niatter of the Adoption ofR.N.L.0. (August 20, 2007), Warren County, Twelfth Appellate District,

Case No. CA2007-04-049, 2007 Ohio 4215; 2007 Ohio App. LEXIS 3817 ( copy attached hereto).

Otten has no justifiable cause. Otten requested a modification of his support order and the request

was denied by Judge Wyler. Therefore, the consent of Otten is not required pursuant to R.C.

3107.07(A) as a matter of law. However, it is not even necessary for the Court to address the

allegation under R.C. 3107.07(A) because the consent of Otten is not required pursuant to R.C.

3107.07(K), Otten is not entitled to any further noticepursuant to R.C. 3107.11, and Otten is forever

barred from becoming a party to this adoption proceeding.

Otten has made a filing with the Court of Appeals. The filing is frivolous and does not

constitute a stay of the adoption proceeding. There is no question that Otten was properly served

and Otten admitted that he did not file a timely obj ection. In fact, Otten has requested that this Court

not apply R.C. 3107.07(K). The original adoption proceeding related to putative father consent

issues. The adoption petition filed with this Clermont County Probate Court relates to parental

consent issues. The Amended Petition in Hamilton County Probate Court has beenwithdrawn and

there is nothing pending in the Hamilton County Probate Court. This Clermont County Probate

Court has original and exclusive jurisdiction over this adoption proceeding. Otten did not timely

object and has no standing to file anything in any court relating to this adoption proceeding, except

for a meritless appeal of the final decree.

3

647g

VFrHEREFORE, for the reasons set forth above, Petitioner Kevin Crooks, by and through

counsel, respectfully requests this Court to enter a finding that the consent of Gary Otten is not

required, to dismiss Gary Otten from these proceedings, and to enter a final decree of adoption.

Respectfully submitted,

-a,zw,^Jr Z/^/tirz-r-Michael R. Voorhees (0039293)Voorhees & Levy LLC11159 Kenwood RoadCincinnati, Ohio 45242(513) 489-2555 phone(513) 489-2556 faxAttorney for Petitioner

Certificate of Service

I hereby certify that a copy of the foregoing Petitioner's Objection has been sent by regular

U.S. mail this Z3GQ day of September, 2010 to: Gary Otten, 1907 Eastern Avenue, Covington,

Kentucky 41014.

Michael R. Voorhees (0039293)

4

lq9

COURT OF COMMON PLEASPROBATE DIVISION

CLERMONT COUNTY, OHIO

In Re: Adoption of

PAITYN ALEXA TUTTLE

^ SFF 2 1 2[Etfk 1

ST€PHANIE WYLERJUn(,F

CASE NO. 10 AD 961

ENTRY CONTINUING HEARING

In consideration ofthe request of Gary Otten that the Twelftl District Court of Appeals

issue a Writ of Prohibition & Mandamus to this Court; it is ordered that all matters pending

herein be continued until such time as the Court of Appeals lias fully and finally ruled on the

relief sought by Mr. Otten.

Magistrate

CERTIFICATE OF SERVICE

The undersigned certifies that a copy of this Entry Continuing Hearing was served upon

the following by ordinary U. S. Mail on the 2 1/0-1-day of September, 2010:

Gary Otten, 1907 Eastern Ave., Covington, KY 41014Michael Voorhees, Attorney at Law, 11159 Kenwood Rd., Cinciimati, OH 45242

^

CLERMOATT CDI]NTY CfiILD SIIPPO:RT ENF0RCEM2N'T AGENCYan'JO CL=RMON9' CLN'!'k:+. Oa SU:TG 10V W+TAViA G1! a>101-1vi/

( 513) 9]9-94aJ IuoOi Sv].•o54'

P A.'S'MEN1 HISTORY REPORT

Obli or Ntime: GARl' D, OTTFNCascNumber: 70630o99fi3 ^ Sr:f5a.lv ^:, cxooIS

OtderNtunbel•; 07JGG1m510 OblibeeNamc:07/30/20:10 '-paymentHistoryPeriod: 07/Ol/2005 '- 06/30/2010

Statemant DBte:

Gtnzent Total M onfhly Ob7igat on as oi 07/ 01/2010 3=7 . 97

TOtalATYC&.ruyeDUeasOf 06/30/2010 9327-80

ToralUnallocatedDnil'oldasof 07/30/2010 .00

ToialAlloc¢tedonHoldasof 07/30/2010 .00

Tota] Credit Balunca as af 00/30/2010 . 00

M ONBY APPLIED TO--------------------- --_ t'OTAL DIS]317RSED W.••COLLECTION ° - ----- -

DATG AMOUNT CHILD s'PUGSwL M-D1CAL FFP-5 TO,DB^L1GOIt DATE AMDUNT

+•wYCIIRRENT MONTH

aQL 20Y007/30/301U *" NO PAYMENTS kFCOxntiD TF-SS MONTE

.00 .00TOT.7^I!E 0a 0O

31 i.9 / . '00TOTRL MDNTHLY OBLIGP.'kTON DYT:I3URSx'D T.D-OHLICEE: 0p

MONTEii/Y-T^MdllNT PAID. . • DO •. DT_SHUREBD TO OTHFJk : •

UN'ALLDC. AMOUNT XET_' J :' - 0 D

.00

w*** EISTOR3' x..n.ww . , .

SUL 2009- . .,,-xx . . . . .07i'112D09.*** NG PASTSENT P.o.'CDRâED T.°.YS NIDNTB . ^e= . =e=====____

. _______ a....=__ -_ -09 • •00- ----_ == oo .oo .ooTOTALB po

TOTA3, PSONTBLY OBLIGAT'SDN • 204' 99

MONTHLY AMCt1NT PAID • 'DD

ApPLTED BROM CREDIT • 'OD

nIBFERENCE : 264.99TOTAL S•RREARS AS OF 07/31/2 PD9; 6720.59

D

17T$HURSED TO OBLIGEE:.

DISBURSED TO OT'EN:k .00

ItEFiiNDED TO OLL2GOR .00

CORRiCTIONS • 00UNAL•LOC. Y^MOVNT HELD: .0 q

-______CR2,n3T BALANCE :------------ -------------- ------------------ -----------

AUG2009 xw<wD8/3a/?009 www NO PP.YMENTS RECORDED 'tHTS MONTPS "" -

-

TOTALS .00 Oo .00 .

TOTAL 1NONTHLY OBL3GATION 4,99 llY'S$URSED TO OELIGEE: .0026pp DISBUREED PO OTt36R .00

MONTHLY AMOSINT PAYD ' 0D ^;gUNDFn TO DHLIGOR : . 00- '00APPLIED FROM CREDST , •_ 264 99 CORRECTIONS

UYFFiFSNCF. UNALLOC. AMOUNT I3ELD: DOTOTAL ARREARS AS OP' D5/31/7009: 6995.S7

u...a==-.00

CREDIT BALANCE : .00--------------------

--- -------------- _______----------------- ________

SEP 2009 „xfxx09/30/2009 *'k* NO PAYML"N1•5 RECORED THIS I4ONTH

ToTALsDO oa

JFS 07783 (Rev.o71200S)aaqE 1 of S

CneZet9GETG 93-ZI e-^eZ/9E/L0

CLERMONT COIINTY CT-3_TLD SITPPORT ENFORCEMENT AGENCI

L.1V0 CCE'.HMOE1^ C£p'fL'I^ llA, btl'_^_•£ lO] 6ATAVlh.. Ot 451V3-155"1 l51]) %J2-]36C IHVOI 5%1-V`J4H

PA1'MEN'I ftISTC?RY REPORT

Caae Number: 7063009943 Obliaor Namt:

Order Nurnber: 07JG0145iD Obligee Name:07/3D/2010 PaymentHistoiyPeriod'

Statement llacc:

Currcut Total 7vfoz1thly 061igation as of 0 7/ 01 / 2 010 :$ 317 . 9 7

Total Arreuragc Due as of 0 6/30/2050 °327'60

:TotalUnallocatedonTToidasof 07/30/2010 0 0

TotalAllocatedonlloldasof 67/30/2010 •00

Tota1 CrediTBaluucc as Df 07/30/2010 00

llAfF AMOUN'I'

GARI' D. OTTEN

5T7^'r?N' P _ CROOKS

0'7/0'_/2009 - 06/30/2010

MONE•YAl PLIED TD--- -- - -` --TOTAL DISBURSBD----------"--° "____ ' Rj:CIIILD SPOUSAL MLDICAL FEES TO OIIFLICOI: DAT£ AMOUNT

TOTP.L MONTHLY OBLYGAT10N •

140NT8LY AMOUNT PAID_••APPLSEP °ROM C4.EDIT

ISIFFERENCBTOTAL AR.RE-°-HS R-` OF 09/3D/2009:

3y^ g7 D'1SHU8SED 27 OBLIGEE: _00

.00 DSSSURSED TO OTBSR .00

00 REFTINDEI7 TO ODLIGGR -00

317. 97 CORB.ECTIOIdS . . ' .007361.59 7JNAiLOC. AMOT7Nm HEi:,u: .00

-------------- ---------------________

OCT 2009-.. .: ... ' :' . .'.. ♦ ^

.. _ . .. . ^ ^ ... . . ' ' .

-r i wwwa30/31/2D09 !^.*'^- ND BRYMENTS RECOFDE7] _

,rvi_S MOhTN.

DO

TO'I'_7:.5 0.0

DISBURSED TO08LYGEE:979-.0'0.

lt02'At. MOHTF:i: DBLSCATTON ..3.1AO llISBU75fi0 TO OTHEP.

_ . . ..00. _

MONTELY B!NOI7NT 9AIn 00 REFIINDED TO OBLYGOR = .00

qBPLIEt•i-iROM CftEDIT - t CORRECT2ON57

.00

^IFFEStENCEAS OF 10/31/2409:

^7517.61 UNRLLDC. ANO'f7k'T HELD: .00

T01AL a_RRE7tRSCREDIT BAL'H22yYCE 'DO

-------

___--__---------------------- -----------------

NOV 2009 awxww11/30(2009 ^t* NO PRYMEDTT5 P.EGORDEll THIS MON_TP

'

00 ..

TOTALS .00 DO .. .

DISHURSED TO 0131',TGEE:Sl317.00

.TDTkL A70NTHL1' OHLIG:.TION . 00 llTSHti12$E*^ TO 0'"T.?ER .00

.MONTHLY :31a0UNT FAID O0 ^;^'TtNpEP TO OHLIGOR. -00

;^nY.YFn rROM CREDIT CORRECTIONSDIFFERENCE '17'977783.E3 UNALLDC. AMOiINT 13Er.b:TOTRL ARREARS AS OF' 11/30/2D09: DO

------------IT SALATSC$' ,

.00

.00

------- _-,-__...__CRED ---------------------------------------- ------------------

DEC 200912/21/2009 319.97 319.97

TOTRLS

Ji%$ 07TS3 (Erw.07/2005)

317.97 317.97

.00

.00

.00 -00 12/22/2009 D17.97

W

___'.•

rc-J 9731700.00

Puge 2 0x 5

laz

05L[b95ET9 BZ:ZT 9T9Z/9E/L9

CL-T'i.R.MONT COUNTY CHILD SIIDPQE'.T EATFORCEMENT AGENCYx4o0 L'LUUeurv:- CeNx_c nR. SVP:'c 1, BnrAV:n, Oli t51G^-lssv

( Ed'.I 73's-%::ae ( xoo) 591-o9^J

T'AYIVLEItiTT HISTORY REPORT

c Obli or NEm.r' r'AJ^v Z) - OTTENCusclJuniDel': 70n.3.D099_3 ^ S^sq^r z, CROOKS

DrdcrNumber: 0'7SG01a510 OMiveeName:0%/30/2010 T'aymcntHisto:gPeriod: 07/O1/2009 - D6/30/2D10

SCaeement Date;

CurreutToiallVioninlyOblioationasof Q?/01/2o1D 317•9706/30/2014 932^) -80

TDtal Anearaee Due ns o£TotalTJnallDCatedonHoldnsof 07/30/2010 .00

TDtalAlloOateflonIIoldasDf 07/30/2010 .a -00

TotalCreditBelanceasof 07/30/2010 $ -00

_ --COLLECTIO iviP1 TEYAPPLIED TO------------ ------ -- ---TOTAL DISI: URSED---N---- " - - --"-°- "UATE AMOUNT CHILll SPOUSAL MF.ll7CAL s TDO

REFUNDGOF nAl'l AMOUNT

317.97 DISSUREED TO D8LIGEE: 317.97TOTHL MQNTI•IyX ODLSCu+TION DISDURSED TO OTHER - DoMONTHLY PMDL7NT' PS.ID . 317.97

.09 FeEF'C1TdDED TD OELIGOR : -00RPPLIEL PROM CREDYT 00 . qORRECTIONB - . 00ll25'Y''EBENGE'. UNALLOC. AMO[7NT Ii:r,D= .00TOTAL 1:SLREB.RS AS OF 12/31/2009: 7731, 158

•CREDIT BAIHNCL . • 7 "__.--_____ t____.__.ct-__-_______-__---- ------

----------- . . . .

.7AN 20l0 . . ... . . .... : ' . . .. . . _ -

.O1f3:1(30.t0+**" IdOPHYMEN'fS RECPRâED THSS M0I7Tx x' ,=_,^Jr^`oL . . ,.• , ___ ____ _DO _.__..DO = __==..OD . .00 DQ

'^DTALS . . -00 . . . .

317.97 DISBURSED TO.ONLYGP.E^- • 0DTOTHL MOD'1'£1LY.pDLIGATZDN - DT51gUR5ED :'0 OTHER .00 - - 'MONTHliY AMO'^iNT.P^ID - • '00-

-;-pP'LT-P;D=°ROM-CRED:IT .O-. REF_R2LRED TO^OHLIGOR - DD

.: .31"1.g7 CORRECTIDISS .00D]'4^'FSRSNCE' ' . UN,gi,i,oD- A140UNT HELâ: -00TOTAL AHREARS AS DL- 01/31/2010: 7P97.70

CRN.'D'L.T HHSSNCS ' DD_-___-_

FEI3 301902/28/20'10 " NO PAYMENTS 1RSCbRDED TF-ISMONTY.

GDDO .00

TOTAL9 DO

âISBiR2SEâ T'Q qIILIGEE: •DO1PTAL MC)N'_'HLY OBLIG:STIPN -

• 917 g-/TO OTHER -00DISBURSED

MONTHLY :^1PUNT PAID . 00 'AnPLYED FROM CREDIT . 00 izEPUNDEâ TO OELIGOR : .OD

31^•9q CORRECTTDN'9 DODiFBEAENCE UNALLDC.AMOUNT HELD. -DD

TOTAL =9RLLRRS AS OF 02/29/2010: 6263.72

CREDIT BALANCE DO ------------------

----------------------- ------------------- ....-___-__-

MWc 201003/1/2016 *** NO PAYMENTS RECORDED 'Tii'-5 MNTH '+xwaw J'yy = ,T^y` Yfem

•00 .00 .00 - .002'OTaLS .OD -00 .00 . .

TOTAL MONTHLY O6e1:YGtaTiPN 317.97

MONTELY AMOUNT PAID . D DA?PLIED FROM CREDIT .00

DIFFERENCB 31-1.97'Y'ATbL ARREARS AS OF 03/31/2010: DZ29•oo

DISBURSED TO OBLIGEEcDISBURSED TQ O7'HLRA^F•uNDED TO 0HL?GOR

=CORRECTIONSIINAI.LOC. An1OU1aT FIELD r

.0-0

0000

00.00

CREnIT gAT,k.NCE ----•"-`------------------ -'•--------------------- ---- --------------------iAPR 2010

JPS 07783 (I4i;v.07/2005)n-rge 3 oT 5

^d

6C :0ti95E ^9 bL :AI 0LCC./66/LC

Ci,ERMONI' COTJNTY Cf?'1'LD SUPPORT ENFORCEMENT AGENC"

an^a fvE11MOH:' CuNfl:fi n8 6UITII lc% BATAVL.. Oll ailuJ-19s9 15'dl '132-7^1C I800i 5'n-o•Ja3

PA'f'N.CENT HISTORY REkC}I F

^ Ooli or Name: Gp-P" D- OTTENCase IVllmbel': 7D6^00..a9&3 ^N SIISIL4Y A. CROOKS

OrderN^unbeT: 0'7JG01S510 Obligeeane:SultelneniDat'e: 07/30/2010 Payment.HistolyPeriod: 0^/01/?9D9 - 66/30/2G10

CurrentTotalTvlonthl} Obligationasof D7/01/2010 317-97

TotalAIIear£tgeDueasof 06/3D/201D ; $ 93=7_60

TotalLUnallocatedDn13o1duxof 07/30/201o ; $ -00

ToualAllocatedoniIoldasof 07/30 /2D1o •00

TotalCredit]3Eilanceasof 07/30/2010 = S -0D

---CDLLECTION------ NiONEYAPPT.TBD TO--------- ------------- ---TOTAL DISBiI.SL'D---- '-" DATE F.MOUNI'

DA•fL AMOUN'1' CI-llLD y 51'OUSAL MEDICAL FEES TORE-

1LIGOR

OS/30/2010 *wn IJO F.ky'MENTS RECORDEllTHIS MONTH *""

.00 .Oo00TO'TXLS .00 .

DS'S73llRSED TO OBLIGES: • 00• TOTAL 1HONTHLY OSLICATIOtv rLySBUYSBll To OTAER -DO 'MON:FILYAM0L7NT'.PF,ID DD,00 REFUNDED'TO OBLTGOR •100A1»AT_DDFROM CREDIT CORkECTIONS. . - ;00DIFFERENCE' . . . ' : ' 317.97 `TOTAL ARRE'F^.k'•S AS.OF 04/30/2.01.0'E795:00 • UNAL:.OC. AMOUNT HELD: -00

'

OD

__________________--________'CREOIT 9ALF4JCE . .. . '--.,._-____ _MAY 2010 . ,. . .. . ; .. .....:. ; .

05/31/201•p .x*x"No.PAYK'e1NT5 Rb'CORDEâ THTS MON«P. 'xwwxa . . .•. . . . .

. . . • . . . .TDTAT,S ..00 00 00 '00

31%.97 DISH'UBSEil TD08LIGEE:. 00TOTP.L MONT?IL1' OBLIGAT'YON DISBURSED TO OT?:NR • 00 ' -MONTBLY 7lldOffN'S PAID .00 'ABBLTSn FROM CREDIT .00 REF'CiNllSP TO OBLICOP. . , 00

•31%, 99 CORP,E_^P'IGNS 40

DSFFERENCE 05131/2010: 9061.78 *JNALLOC, AMOVIJT HELD: ,00 -TOTAZ ARR.EAPS pS OF .

CRh."DIT BALANCE . -00 -----------------

----------- --------------- __,.---.._--_____-__-..--_--

JUN 2010 - www++05/30/2010 +ww NO PA'_'MSNTS RECORDED 'TT3SS MONTH

=____===_90 00 00 .00

TOTAT.S . DO

TOTAZ MONTHLY OBLIGATION 317 ,97

MONTHLY AMOlR^T PAID .

AI+PLIED B'$OM CREDIT ,00

DIFBERENCE 317,97TOTAL ARREARS AS O?" 05/30/2010:- 9327-80

n:CSB"JR.SED TO OBLIGBE:DSSB[IRSED TO OT3iER

RgFUNDED TO OBLIGOR

CORRECTIONSU1J7iT.1.OC. AMOUNT HELD:

,0000

.00, 00U0

------------------------------------------CREDIT BALANCE ,00 - _.------------- ___--------------------- _.._____________

JPS 07783 (Rov.07/2005)page °- ot -5

eeie^95eis ez^zti eiez/eE/^e,n

CLERNIOli,^S' COIIH"-']li" CY_SLD 5L7?PORT $nTF'OpCEMEtr'T AGENC7

34pp .:k£RMPNS' C8N48R PR- Cu'1'e 1C9 HATAVIFi OH ^Sip3.=4:9 1^131 l3?-^^a4 l3oU) 5"1-p943

PAYMENT HiS'F'C3R1' %^, P €"3RT

Obli or Name: GPRI` â . OTTENCase NurnbeT: 7063 00 9943

Ordnr Number: 07JG01 n 51 o

StatetneniDatc: 07/30/2010

g

Oblin

Paym

ee Namc-

cnt Histo.ry.Period'

SYISAN

07/01/A.

20CROOKS

09 - 06/30/20-'0

Current Tola] Moxithly 0bligatioL as o1 07 / 01^' 01P S 17 . 57:

I oial Arxearagc Due as of D6/3Of201o, $ 9327.6;0

TotalUnallocatedonHoldasof 07/30 12010 .00

Toca1.:11ocated on Hold as of 0 7/3 o 2010 :$ .00

Total Creditl3alauce as of 07/30 010 ^$-00

I ...... M0NE APPLIED TO- -- - ---TOT-'AT, llISST:JRSED---CDLLEC'PION---_-_ __-----^--^--

âAT^3 , AMOUNT CY-7CLll SPQUSAL MHDICAL F^'^' rD UELIGOA llA'fb AMOL7NT

SJMMAR; FOR REVOkT PLRIOD - D7/Ol/3009 - 06/I^D/2D1p

3709.6^ âTSEUIdSED TO OEL'SG=i:

TDTAL 65i.4G3TZON 7 n25Ht7RSED TO OT'HcR . pp

TOTAL117.9

COLLECTBD REFUNll2t] TD'OHLIGOk DO

TAL ARPL3EDPROM CREDITT.00

.. . . ..OLTx'ltERHNCE

llNALLOC: p.i`701IDT "HSLD

3391.71 . . -

_'3`QTAL APPSSED TD •. . .

cEl'.LDeII-°P04PS?DUSAL SUYHOi2T -00

NPâTCaL SUPPORT .Op.00

JFS 07783 Q1ev.07/2005)Page S of 5

201979SEZS 9Z=ZT 0 Z9Z/BE/L9

1

1 n,^O OC]HJ

Case/Order lnfonnation

C^aSe/Qrder Information

OhioCounty

CLERMONT

CaseNumber

7D63009943

Ord PaymentN^ucnber Date

_T

07^^Di45i0 s2i21/2o0s

Paymentamount

$317.97

Page 1 of 1

Tota[ BalanceDue

$9,592.E2

For addltional information regarding your^case/order, contact your county child suooort enforcement

aaencv [http://jfs.ohio.gov/county/cntydr.stm].

TO ® S'f"6iTN DISBURSEMENT ZPdErURMA'^EQN:If your child support payments are dillbursed to the e-Quick Pay card you may access the foliowing

Iink to obtain a disbursement date wvyw.e-RwckPay.com.

Tf your funds are direot deposit, you nrl ay contact your flnancial institution or visit their website

to determine if the funds are available.

If your funds are disbursed by paper I^hecks they will be malled within 2 bustness days.

Exptanation of Terms:

payment Date:The date the paymerlt is processed through the state's child support cornputer

system, SETS (Suppart Enforcement Tracking System). if a payment is received with sufficientidentifying information to aPPiY it to a case, it will be processed within 2 business days,

p$ymentAmount: The money that i posted to case; arder. Payments from tax offsets may be heid

for six months.

Totai Balance Due: May include the':ollowing:month,

Monthly charges minus any pa ments made for the currentArrearages (past due support)Current monthly processing feep and processing fee arrearages.Some arreahages may include r^lmbursable amounts due to 4DJF5, such as for public

assistance. I

hrips://ww w. setsivr.o dj fs. state. oh.us/orderfnfozmationPrint, asp

^2Z

7/3 0/20 Z 0

eetet99ezs i;z:zz gZaZ/9E/L9

Paee 1

2007 Ohio 4-1 15, 1; 2007 Oh4o App. LEXIS 3817,

IN TIIE MhTTER OF THE ADOPTION OF: R-lNT.L.O.

CASE NO. CA2007-04-049

COURT OF APPEALS OFO^FIlO&^ CO ^Tg ^PEI.LATE DISTRICT,^

2007 Ofiio 4215; 2007 Ohio App. LEXIS 3817

August 20, 2007, Decided

PRIOR HISTORY: [**1]ClVa APPEAL FROM WARREN COUNII'

COURT OF COMMON PLEAS, PROBATE

DIVISION- Case No. 04-P00992.

DLSPOSITION:

COIINSEL: Jeffery E. Richards Law Office,7effery E. Richards, Waynesville, OH, for peti-

tioner-appellec.

Bradley R. Carmella, Hamilton, OH, for appellant.

SI7DGE5: POWELL; J. BRESSLER,

WALSH; J., concur.

P.J. and

OPINION BY: PO-WELL

OPINION

POVJELL, J.

[*Pl] Appellant, Phillip G., appeals the deci-sion of the Warren County Court of Comm.on Pleas,Probate Division, fmding that his consent as thenatural father of R.N.L.O. was not required for thechild's adoption by her stepfather, appellee, Shawn0. We affirm the trial court's judgment.

[*P2] R.N.L.O. was bom on Aub st 20, 2003.The child's mother, Shemarah O., and father, appel-lant, were never married and did not reside togetherat the time of the child's birth. 1 Appellant has neverseen or communicated with R.N.L.O., and She-marah 0. has had legal custody of the child sinceher birkh- In December 2003, Shemarah 0. andR.N.L.O. began living with appellee. Shemarah 0.and appellee were later married on September 17,

2005, and appellee filed a petition to adoptR.N.L.O. on November 15, 2006.

1 Shemarah O. currently has a civil protec-tion order against appellant, which she ob-tained prior [**2] to the child's birth.

[*p3] On May 13, 2005, a paternity actionestablished that appellant was R.N.L.O.'s naturalfather; and appellant was ordered to pay childsupport in the amount of $ 489.57 per month.Appellant, however, made no support paymentsuntil October 2006, and was found in contempt ofcourt for failing to timely pay his child supportobligation in December 2006. As summarized bythe trial court, appellant made the following supportpayments as of March 20, 2007: $ 100 on October17, 2006, $ 100 on November 6, 2006; $ 100 onNovember 14, 2006; $ 100 on November 17, 2006;$ 1200 on December 8, 2006; $ 489.57 on February20, 2007; and $ 489.57 on March 19, 2007.

[*P4] On March 20, 2007, the trial court held

a hearing on appellee's adoption petition to deter-

mine whether appellant's consent was required for

the adoption to proceed. At the conclusion of the

hearing, the trial court determined that appellant's

consent was not required because he unjustifiably

failed to provide maintenance and support to the

child for the one-year period immediately preceding

the date the adoption petition was filed. Specifi-

cally, the trial court determined that three paymentsof $ 100 appellant made during [**3] this one-year

time period were "negligible," and therefore, did

not constitute "support."

[*P5] Appellant now appeals the trial court'sdecision, advancing two ass gnments of error. 2

20^

Pa,e :

3o0? Ohio 43 2007 Ohio App. LFX7S 3517,

2 Appellant's merit brief is styled under theheadings, "Argumeni I" and "Argument Il."We construe these arguments as separate as-si`*nments of error which will be addressedas such v: this opinion. We also note that ap-pellant sets forth an "ass d°nment of error" inthe table of contents of his merit brief, whichis neithcr recited nor argued in the body ofhis merit brief, providing as follows: "Acourt errs when entering a fmding of fact thatthe appellant has no ability to work yet doesnot fmd that to be justifiable cause to require

consent to adopt." Pursuant to App.R.

Ip(A)(2), we disregard this assignment of er-

ror.

[*P6] Ass gnment of Error No. 1:

^^[»_P7] A COURT ERRORS WI^NENTERING A FINDING OF FACT THAT TBEpppELLAN'I' HAS NOT SUPPORTED TT^ECIi1LD Vi7EEN RECORDS INDICATE

PAI'MENTS ivLADE VJITIIIN TFM M1EPERIOD BEFORE TT3E OR'E YEAR OF TI',EFTLING OF 1I-IE ADOPTION PE'ITTION." [SIC]

[*p8] In his first ass iggnment of error, appellanthis con-argues the trial court erred in determumng

sent was not required for R.N.L.O.'s adoption on

tbe [**4] basis he failed to provide maintenance

and support to the child during the one-year periodimmediately preceding the filing of the adoption

petition. Specifically, appellant argues the trialcourt erred in determining that he failed to provide

support within the meaning of the consent statutebecanse the payments he made prior to the filing of

the adoption petition were "negligible." VJe fmd

}]ds a nownenfwithout merit.

[*pq] Pursuant to B.C. 3107.07()of a mi-

nor,

adoption is not required of***[a] parent

nor, when it is alleged in the adoption petition andthe court fmds after proper service of notice andhearing, that the parent has failed without justifiablecause to communicate with the minor or to providefor the maintenance and support of the minor asrequired by law or judicial decree for a period of atleast one year immediately preceding either the fil-ing of the adoption petition or the placement of theminor in the home of the petitioner."

[*Pi0] The petitioner for adoption has the

burden to prove by clear and convincing evidence

that the natural pareni failed to supporL his or herchild for the one-year period and that such failurewas vTithout justifiable cause. In r-e Adoption of

Masa (1986), 23 Ohio S2.3d 163, 23 Ohio B. 330,

492 A'E?d 140; [**5] paragraph one of the sylla-

bus; I17 re Adoptima of Holcomb (1985), 18 Ohio

St.3d 361, 18 Ohio B. 419, 481 ALE.2d 613, para-

graph four of the syllabus. "Once the petitioner hasestablished, by clear and convincing evidence, thatthe natural parent has failed to support the child forat least the requisite one-year period, the burden of

goingforward with the evidence shifts to the natural

parent to show some facially justifiable cause for

such failure. The burden ofproof, however, remains

with the petitioner." In re Barkhurst, Butler App.

No. CA2002-04-0819, 2002 Ohio 4711, P12, quot-

ing In re Adoption of Bovett (1987), 33 Ohio St.3d

102, 104, 515NE.2d 919. (Emphasis sic.)

[*P11] Whether the petitioner has proven byclear and convincin.g evidence that the natural par-ent has failed to support his or her child withoutjustifiable cause is a determination for the probatecourt, and wiIl not be disturbed on appeal unlesssuch determination is against the manifest weight of

the evidence. Bovett, paraggraph four of the sylta-

bus.

[*pl',] As an initial matter, the trial court de-termined, and the parties do not dispute on appeal,that the date from which the one-year "look-backperiod" began to run for purposes of R.C.

3107.07(A) was November 15, [**6] 2006, the dateon which the adoption petition was frled. Appellantargues his consent was required for the minorchild's adoption because he made support paymentsto the child during this time period. He contends thetrial court erred in determining such support pay-ments were "negligible," and therefore, did not con3stitute support for purposes of the consent statute.

We disagzee.

3 Appellant does not present any argumentor facts to challenge the trial court's determi-nation that his failure to provide maintenanceand support to the child during the one-yearperiod was unjustified. Rather, appellantchallenges the court's determination that hefailed to support the child where the recordindicates appellant made support paymentsduring this time period. Accordin.gly, our

'?, QY^

PaR= 3

2007 Ohio 421.5, *. 2007 Ohio App. LE^LJS 3817,

analysis is limited to the trial courk's deter-mination that appellant failed to support thechild where his support payments were "neg-

ligible."

[*p13] This court has previously held that atrial court may fmd a parent has unjustifiably failedto support his or her child where the parent "makesonly negligible support payments, but *** is fullycapable of providing more than token support to

[tbe] child." In re Adoption of Afyers (Noz 20,2000), Clerrnont AppNo. Cp ^000-05-032, 2000

Ohio App. L=S 5398, at *8 [**7] , following

Bovett, 33 Ohio St.3d at 107, (Douglas, J. concur-

ring). Similarly, other appellate courts have found itpermissible for a trial court to determine a parenthas failed to provide support to his or her childwhere the parent makes "tohen" support paymentsimmediately piior to the filing of an adoption peti-

tion. See, e.g., In re adoption of Carletti (1992), 78

Ohio App.3d 244, 250, 604 N.E_2d 243 (holding

that appellant's payment of "one week support afternotice of iniention to r3le an adoption petition andimmediatel), before the petition is filed is not sup-

port within the meaning of R. C. 3107. 07 [AJ"); bs re

Adoptio? oflLilbane (1998), 130 Ohio App.3d 203,

207, 208, 719 N.E.2d 1012 (holding that appellant's

payments of amoants less than that required by thecourt's child support order, made just weelcs prior tothe fling of the adoption petition, did not defeatapplication of the consent statute). See, also, In re

Adoptiori of p7ae ie(1997), 117 Ohio App.3d 448,454, 690 N.E.2d 959; Zn re Adopti.on of Zinight

(1994), 97 Ohio App.3d 670, 672, 647 N.E.2d 251;

In re Adoption of 771o nas (Dec. 22, 1987), Licking

App. No. CA-3311, 1987 Ohio App. LE`^78 10403,

at *2.[*P14] In this case, the record demonstrates

appellant made [**8] 1us first support payment onOctober 17, 2006, less than one month before theadoption petition was frled. While the monthly sup-port payment appellantwas obligated to pay was $489.57, the record indicates appellant paid only $100 at that time. Appellant made two additionalpayments of S 100 prior to the filing of the adoptionpetition, one on November 6, 2006 and the other on

November 14, 2006, for a total 3 00. se

cantly, the record indicates app llant mpayments only after he was informed of appellee's

intention to adopt the child.

[*Pl5] The trial court found, and we agree,that fne aggregate sum of $ 300 appellant paid dur-

ing the one-year time period immediately precedingthe fiting of the adoption petition was negligible,

and therefore,insufficientto constitute maintenanceand support for purposes of the consent statute. As

an initial matter, the $ 300 appellant paid during

this time period constitutes less than one month ofchild support appellant was obligated to pay. As of

the date the adoption petition was filed, appellant

was more than $ 9,000 m arrears as to his child sup-pon obligation. Further, the record indicates

appellant made these payments after a [**9] con-

sistent, long term period of nonpayment, and onlyafter appellant was notified of appellee's intention

to adopt the minor child.

[*P16] Notably, the trial court found that noevidence was presented at the consent hearing indi-cating appellant was unable to pay the ordered childsupport during the one-year period such that hisfailure to pay was justified. In fact, the trial courtnoted there was no evidence io support a fin.dingthat appellant's economic situation improved "tosuch an exten " from October 2006, that he wasable to make four payments from November 2006to March 2007 totaling S 2,2 79.14. As stated, appel-lant does not advance any argument or facts chal-lenging the trial court's finding that his failure tosupport the child during the requisite time period

was unjustified.

[*p17] Based upon the foregoing, we fmd noerror in the trial court's determination that appel-lant's consent to the adoption proceeding was notrequired, due to his unjustified failure to support theminor child for the one-year period immediatelypreceding tbe filing of the adoption petition. Appel-lant's first assignment of error is therefore over-

raled.

[*P18] Ass a°nment ofBrrorNo. 2:

[*Pl9] "A COURT ERRORS VT=NENTERING A [**10] FIlSDLNG Vr13EN IT

LACKS JURISDICTION." [SIC]

[*P20] In his second assianment of error, ap-pellant alleges the trial court lacked jurisdictionover the instant adoption proceeding because thejuvenile court had "exclusive original jurisdiction

over the child" pursuant to R. C. 2151.07 and R. C.

2151.23. Appellant contends the juvenile court was

^2v7

Pae° 4

2007 Ohio 4215, *; 2007 Ohio App. LEYJS 3817, *':

required to relinquish sucb jurisdiction before theprobate court could proceed with the adoption, andbecause it did not do so, the order of the probate

court is void.

[*P21] The Ohio Supreme Court, however,has held that "the original and exclusive jurisdietionover adoption proceedings is vested in the probate

court." 17, re Adoption of P^^hoN^ 2d G47^octSt-

u a332, 2006 Ohio 4572, P9,State ez rel. Portage Cty. Welfare Dept. v.

Summers

(1974), 38 Ohio St.2d 144, 311 1vZE.2d 6, paragraph

two of the syllabus. A probate court "'has jurisdic-tion to hear and determine an adoption proceedingrelating to a minor child notwithstanding the factthat the custody of such child. is at the time withinthe continuing jurisdiction of a divorce court" or

juvenile court. Id., quoting In re Adaption ofBiddle

(1958), 168 Ohio St. 209, 152 N.E'd 105, pat'a-

graph two of the syllabus. See, also, In re Adoption

ofHitchcock (1996), 120 Ohio App.3d 88, 103-104,

6961\?E.2d 1090.

[*p2'2] [**11] Accordingly, the fact that thejuvenile court had continuing jurisdtction over thechild at the time the adoption proceeding IA'as corn-

menced in the probate court does not create a juris-dictional bar to the adoption proceeding itself A utetherefore fmd the probate cour[ had jurisdictionover the instant adoption proceeding. App llantssecond assignment of error is overruled.

4 VJe note there is some reference in par-ties' briefs and in the trial court's decision re-garding a visitation motion appellant filed inthe juvenile court. The Ohio Supreme Courthas held that when an issue concerning theparenting of a minor child is pending in thejuvenile court, a probate court must refrainfrom proceeding with the adoption of that

child. In re Adoption of Pushcar, 110 OhioSt.3d 332, 2006 Ohio 4572, P8, 853 N.E.2d

647. Appellant, however, does not argue thisas a basis for reversal with respeet to his ju-risdictional challenge, and our review of therecord yields in.sufficient evidence regardiugthe visitation motion to properly consider or

rule on the issue at this time.

[*P23] Judgment aifirmed.

BRESSLER, P.1 and WALSH, J., concur.

,^,? 1 0

EXHIBIT F

PROBATE COURT OF CLERMONT COUNTY, OHIO

IN THE MATTER OF THE ADOPTION OF PAIT ^ me afE^ter^adop oOn©KS

CASE NO. 10 AD 961

Kevin Michael Crooks

Petitioner

Petitioner's Motion toSet Final Hearing Date

Now comes Petitioner Kevin Crooks, by and through counsel, and hereby requests that the

Court immediately set a final hearing date. The consent of Gary Otten is notrequired as a matter of

law pursuant to R.C. 3107.07(K) and no further notice shall be provided to Gray Otten pursuant to

R.C. 3107.11.Gary Otten is not a party to these proceedings, a favorable report on the Petitioner

has been filed with the Court, this Probate Court has exclusive jurisdiction over this adoption

proceeding, there is no stay on trus adoptionproceeding, and there is no reason for any fmther delay

in finalizing this adoption. Therefore, a final hearing is hereby requested. A supporting

Memorandum is filed herewith.

Respectfully submitted,

^^^^^4.1-VMichael R. Voorhees (0039293)Voorhees & Levy LLC11159 Kenwood RoadCincinnati, Ohio 45242(513) 489-2555 phone(513) 489-2556 faxAttorney for the Petitioner

1

r

1Vlemorandum

This matter relates to Paityn Alexa Crooks, a chilfl born on July 13,2005 at Christ Hospital

in Cincinnati, Ohio. Gary Otten was declared to be the biological father by the Clennont County

Juvenile Court on July 30, 2007. The Petition for Adoption was filed on July 28, 2010 and theCourt

sent notice of the hearing to Otten at his address of 1907 Easten7 Ave., Covington, Kentucky 41014.

The notice was sent by certified mail and was delivered to Otten, who signed the certified rnail

receipt, which was then returned to the Court and filed with the Court on August 2, 2010. Otten has

been properly served and notified of the hearing on the Petition Notice ofthe hearing on the Petition

was provided to Otten pursuant to R.C. 3107.11. Otten had until August 16, 2010 to file an obj ection

to the adoption with this Court. Pursuant to R.C. 3107.07(K), flie consent of Otten is not required

because he failed to file an objection to the petition within fourteen days after proof of the notice

was filed with the Court. Pursuant to R.C. 3107.11, second notice shall not be given toOtten because

his consent is not required as provided by R.C. 3107.07(K). Otten is forever barred from becoming

a party in this adoption proceeding.

R.C. 3107.07(K) is a separate and independent basis under R.C. 3107.07 for fmding that

consent is not required. Although no other grounds are required, the consent of Otten is not required

pursuant to R.C. 3107.07(A) because he failed without justifiable cause to provide for the

maintenance and support of the minor as required by law for a period of at least one year. The

relevant one-year period is July 28, 2009 to July 28, 2010. On the date the petition was filed, Otten

had a total arrearage of $ 9,327.80. (See payment history report from Clennont County CSEA

previously filed with this Court) During the relevant one-year period, Otten made one payment of

$317.97 in December2009. This is anegligible payment and does not satisfy his support obligation.

2

Seeln. the matter of theAdoption ofR.NL.O.(August 20,2007), ^7an'en County, Twelfth Appellate

District,Case No. CA2007-04-049, 2007 Ohio 4215; 2007 Ohio App. LEXIS 3817 (copy

previously filed with this Court). Otten has no justifiable cause. Otten requested amodification ofhis

support order and the request was denied by Judge Wyler. Therefore, the consent of Otten is not

required pursuant to R.C. 3107.07(A) as a matter of law. However, it is not even necessary for the

Court to address the allegation under R.C. 3107.07(A) because the consent of Otten is not required

pursuant to R.C. 3107.07(K), Otten is not entitled to any further noticepursuant to R.C. 3107.11,

and Otten is forever barred from becoming a party to this adoption proceeding.

There is no stay on this adoption proceeding. Any of the frivolous filings made by Otten do

not constitute a stay of the adoption proceeding. There is no question that Otten was propaly served

and Otten admitted that he did not file a timely obj ecfion. In fact, Ottenrequested that this Court not

apply R.C. 3107.07(K). The original adoption proceeding related to putative father consent issues.

The adoption petition filed with this Clermont County Probate Court relates to parental consent

issues. There is no adoption proceeding pending in the Hamilton County Probate Court, or in any

other court except for this Clermont County Probate Court. This Clermont County Probate Court

has original and exclusive jurisdiction over this adoption proceeding. Otten did not timely object

and has no standing to file anything in any court relating to this adoption proceeding, except for au

appeal of the final decree.

WHEREFORE, for the reasons set forth above, Petitioner Kevin Crooks, by and through

counsel, respectfully requests this Court to set a final hearing on the Petition for Adoption, without

providing notice to Mr. Otten; due to such notice being prohibited by R.C. 3107.11.

3

Respectfully submitted,

Michael R. Voorhees (0039291)Voorhees & Levy LLC11159 Kenwood RoadCincinnati, Ohio 45242(513) 489-2555 phone(513) 489-2556 faxAttorney for Petitioner

4