In re Adoption of Asente - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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[Cite as In re Adoption of Asente, 90 Ohio St.3d 91, 2000-Ohio-32.]

IN RE ADOPTION OF ASENTE.
[Cite as In re Adoption of Asente (2000), 90 Ohio St.3d 91.]
Children -- Adoption -- Interstate custody dispute -- Jurisdiction to make
parenting decision relative to child -- Court of appeals' judgment affirmed.
(No. 99-2158 -- Submitted August 22, 2000 -- Decided August 23, 2000.)
APPEAL from the Court of Appeals for Trumbull County, Nos. 99-T-0055, 99-T-
0056, 99-T-0057 and 99-T-0058.
__________________

Lane, Alton & Horst, Charles K. Milless and Corinne N. Ryan; Susan
Garner Eisenman, for appellants Richard and Cheryl Asente.

Richard A. Cullison and Michael A. Scala, for appellee Regina C. Moore.

Stephanie A. Dietz, for appellee Jerry Dorning.

Suellyn Scarnecchia, urging reversal for amicus curiae Hear My Voice.

Katherine Hunt Federle and Anita A. DiPasquale, urging reversal for amicus
curiae The Justice for Children Project.

Kellis, Totaro & Soffer and Samuel C. Totaro, Jr.; and Mary E. Smith,
urging reversal for amicus curiae American Academy of Adoption Attorneys.
__________________

The judgment of the court of appeals is affirmed for the reasons stated by the
court of appeals in its opinion rendered on November 1, 1999, which we adopt and
attach as an appendix to this entry.

MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK and
LUNDBERG STRATTON, JJ., CONCUR.
APPENDIX

WILLIAM M. O'NEILL, JUDGE.

The following appeal concerns an interstate custody dispute. It represents a
two-year, multi-state legal struggle concerning a little boy and the two families
who love him. By definition, contested adoption proceedings are traumatic events.
There are rarely winners in the traditional sense of the word, and there is enough
emotional turmoil to fill a family therapist's calendar for months on end.

The current litigation at this appellate level is not about good parents or bad
parents. Further, this court is also not determining custody, an issue to be decided
later by a court with competent jurisdiction. Rather, this court has a very solemn
role to play, and that is to determine which court, either a Kentucky or Ohio court,
has jurisdiction over this matter. As this case demonstrates, the best interest of a
child is never served when adults turn to seemingly endless litigation to resolve
their disputes. In this case, the parties have staked out a position and have waited
for the courts to schedule hearings where it is hoped that the Wisdom of Solomon

2

will come down on the winning side. In the interim, the life of a child and two
families are left in turmoil and uncertainty to no one's benefit. Litigation of these
matters is already difficult when one court in one state is involved in the
controversy. It becomes unwieldy when multiple states become embroiled in the
dispute and cannot agree on the basic issue of jurisdiction.

There are many statutes, and proposed statutes, throughout this murky area
of the law designed to avoid the very situation we find ourselves in today. One
common thread runs through every statute, every court opinion, and every learned
treatise on this matter. That common thread is built on the bedrock proposition
that once a court of competent jurisdiction has begun the task of deciding the long-
term fate of a child, all other courts are to refrain from exercising jurisdiction over
that matter.

As a matter of law, one court, and one court only, may exercise jurisdiction
over this child and this dispute. As is readily apparent, that basic concept of one
court and one child has been violated in this matter. The present controversy
began in Kentucky when one set of parents decided to set the process in motion to
voluntarily place their child up for adoption with another party. When the natural
parents changed their minds and sought to terminate the voluntary adoption,
additional proceedings were initiated in an Ohio court to effectuate the voluntary
adoption proceeding. What began as a dispute in one court in one state ended in

3

two courts from two separate states issuing orders regarding this matter.1 Both
courts claim to have jurisdiction over this dispute and both courts have issued
diametrically opposing orders with respect to the child. For the reasons that
follow, we determine that the Ohio court does not have jurisdiction over this
matter.

The following facts are pertinent to this appeal. On February 28, 1997, the
child who is the subject of this dispute, Justin, was born in Boone County,
Kentucky. The child's unmarried natural parents are appellants, Regina Moore and
Jerry Dorning.

The Asentes, who reside in Trumbull County, Ohio, previously participated
in an open adoption with Moore for their first child, Joseph.2 The Asentes agreed
to participate in a second open adoption with Moore.

After Justin's birth in February 1997, Moore apparently changed her mind
and indicated that she would parent the child herself. Approximately eleven
months later, in December 1997, Moore again contacted the Asentes and indicated
her willingness to proceed with the adoption. As part of the arrangement, the
Asentes hired a Kentucky attorney, Thomas C. Donnelly, to represent Moore and
Dorning with respect to the termination of their parental rights, after which the
Asentes would then be able to proceed with the adoption of the child in Ohio.

4

Donnelly testified at a hearing before the Kentucky court that the Asentes
chose to terminate appellants' parental rights through a voluntary termination
proceeding in Kentucky. He testified that this approach was chosen because it was
the fastest way to assure that appellants' parental rights were terminated. It is
apparent that appellants expressed reservations about proceeding with the adoption
at an early stage. However, Donnelly, as well as others associated with the
adoption, continued to assure appellants that they had until the final hearing on
their petition for voluntary termination of their parental rights to change their
minds.

On December 16, 1997, Moore and Dorning signed a form titled
"application for permission to receive or place a child." This form designated the
Asentes as the persons whom appellants wished to adopt Justin. On January 12,
1998, appellants signed an Interstate Compact Placement Request (ICPC-100A),
requesting state approval for the interstate placement of Justin with the Asentes.

On January 27, 1998, Moore and Dorning signed separate documents
entitled "voluntary and informed consent to adoption." These documents, prepared
by Donnelly, purported to convey appellants' consent to the adoption of Justin by
the Asentes. This form also contained a provision stating that the consent was final
and irrevocable twenty days after execution of the document. Despite the language
in this document, purporting to extinguish appellants' parental rights without the

5

need of judicial intervention, Donnelly continued to inform appellants that they
would still be able to change their minds anytime prior to the voluntary termination
of parental rights proceeding that was to be filed in Kentucky. Donnelly further
informed appellants that these consent forms were necessary to permit the
immediate and temporary placement of the child with the Asentes in Ohio.

On February 17, 1998, the Asentes signed a legal risk statement, prepared by
Donnelly, indicating their understanding that Moore and Dorning could void their
consent concerning the proposed adoption anytime prior to the final hearing on the
termination of appellants' parental rights. That same day, both the Kentucky and
Ohio Offices of Interstate Compact on the Placement of Children approved the
placement of the child with the Asentes. Also on February 17, 1998, Justin was
physically transported by the Asentes from Kentucky to their home in Trumbull
County, Ohio, where the child has continuously resided to this day.

Virginia Smith, the administrator of interstate adoptions in Kentucky, would
later testify at a proceeding in the Kentucky court that she did not notice that the
Asentes executed a legal risk statement. She stated that this statement would have
raised a red flag to her that this adoption was proceeding as a voluntary termination
of appellants' parental rights that needed court approval, as opposed to an out-of-
state adoption that would not require judicial intervention under Kentucky law.

6

Soon after Justin was placed with the Asentes, Moore and Dorning contacted
Donnelly expressing their reluctance to go through with the voluntary termination
of their parental rights. Donnelly again informed appellants that they had until the
termination hearing to change their minds. He then gave Moore the name of
someone to talk with regarding her indecision over terminating her parental rights.

On March 9, 1998, appellants signed a petition for voluntary termination,
prepared by Donnelly, and filed with the Kenton Circuit Court, case No. 98-AD-
00020, on March 16, 1998. The matter was set for a final hearing on March 26,
1998.

On the date of the final hearing, March 26, 1998, appellants met Donnelly at
the Kenton County Courthouse and informed him that they did not want to proceed
with the adoption and wanted Justin returned immediately. Justin had been in
Ohio for a total of thirty-seven days at that time. The Kentucky court was notified
that appellants did not want to proceed with the voluntary termination of their
parental rights and the hearing was cancelled pending further action. Thereafter,
Moore contacted the Asentes by telephone to inform them of her decision to halt
the adoption and have Justin returned to her immediately. That same day, the
Asentes acknowledged appellants' right to have Justin returned to them but
requested that they reconsider their decision. Appellants made subsequent
attempts to contact the Asentes in order to regain custody of Justin with no

7

response. When appellants contacted Donnelly for assistance, he informed
appellants that he was no longer in a position to offer them counsel in this matter.
Thereafter, sometime during May 1998, appellants retained alternative counsel and
requested that the Kentucky court order the Asentes to immediately return Justin to
their custody.

On June 5, 1998, the Asentes filed a petition for adoption of Justin in Ohio
with the Trumbull County Court of Common Pleas, Probate Division, designated
as case No. 98 ADP 040. The petition alleged that appellants' consent to the
adoption was unnecessary based on the voluntary and informed consent to
adoption forms signed by both Moore and Dorning on January 27, 1998. The
Asentes further noted that both of these forms indicated that they were final and
irrevocable twenty days later, a time period that had long passed since the child
was first placed in their custody.

On July 6, 1998, the Kentucky court in case No. 98-AD-00020 issued an
order asserting that it had jurisdiction over Justin as well as any issues related to
the custody and best interest of the child. On July 8, 1998, the Trumbull County
Probate Court dismissed the Asentes' adoption petition on the basis that the
Kentucky court currently had jurisdiction over whether appellants' parental rights
were properly terminated under Kentucky law. From this judgment of the Ohio

8

court, the Asentes filed an appeal with this court designated as case No. 98-T-
0145.

On August 21, 1998, with the initial appeal still pending in this court, the
Asentes filed a motion in the Trumbull County Probate Court titled motion for
hearing and reconsideration. In their motion, the Asentes alleged that the
Kentucky court dismissed the action before it in case No. 98-AD-00020 for lack of
jurisdiction. Pursuant to Civ.R. 60(B)(4), the Asentes requested relief from the
Ohio court's judgment of July 8, 1998.3 After filing additional motions in the Ohio
trial court with respect to their motion for relief from judgment, the Asentes
subsequently requested a voluntary dismissal of the appeal filed in this court in
case No. 98-T-0145. This court granted the Asentes' request for dismissal of the
original appeal by judgment entry filed October 19, 1998.

In November 1998, the original probate judge who declined to exercise
jurisdiction over the adoption of Justin in Ohio disqualified himself from this case.
A judge from the Stark County Court of Common Pleas was assigned to preside in
the Trumbull County Probate Court over this matter. On December 14, 1998, this
new judge granted the Asentes' request for relief from the order of July 8, 1998,
which denied jurisdiction in Ohio.

On February 11, 1999 and February 25, 1999, respectively, the Asentes filed
a supplemental petition for adoption in Trumbull County in case No. 98 ADP 0040

9

as well as a new petition for adoption designated as case No. 99 ADP 023. In both
the supplemental and new petitions for adoption, the Asentes asserted that
appellants' consent to the adoption became unnecessary pursuant to R.C.
3107.07(A) because appellants had failed without justifiable cause to provide for
the maintenance and support of the child for the one-year period immediately
preceding the filing of the adoption petition. Subsequently, the new probate judge
assigned to hear this matter indicated that it would hold a hearing regarding its
ability to assume jurisdiction over the Asentes' adoption petitions.

While the Asentes were attempting to establish a foothold from which to
have an Ohio court hear their claims for custody of Justin, proceedings were also
being held in Kentucky regarding this matter. It is apparent that the Asentes made
a special appearance in Kentucky case No. 98-AD-00020, asking the court to
reconsider its order of July 6, 1998, which accepted jurisdiction over all issues
related to the custody of Justin. Following a hearing on August 17, 1998, the
Kentucky court on September 8, 1998, ruled that the Asentes were not a proper
party to the confidential proceeding regarding appellants' petition for voluntary
termination of their parental rights filed March 16, 1998. The Kentucky court
further noted that this petition for voluntary termination was dismissed.

On August 17, 1998, prior to the Kentucky court formally dismissing
appellants' petition for voluntary termination, appellants filed a second action in
10

the Kenton Circuit Court designated as case No. 98-CI-01610. This action, filed
exactly six months from the date Justin left Kentucky for Ohio, sought an order
from the Kentucky court requiring the Asentes to immediately return Justin to his
natural parents. On September 4, 1998, the Asentes filed a motion to dismiss this
action, claiming that Ohio was the proper forum for this dispute to be resolved and
again claimed that they had proper custody of the child based on the voluntary and
informed consent to adoption that appellants signed on January 27, 1998. In an
order filed October 22, 1998, the Kentucky court denied the Asentes' motion to
dismiss. The Kenton Circuit Court further held that Kentucky remained Justin's
home state, that there existed substantial evidence regarding the child's welfare in
Kentucky, and concluded that Kentucky retained jurisdiction over this matter.

On February 4, 1999, a hearing was held in Kentucky case No. 98-CI-01610
with all of the parties, including the Asentes, regarding appellants' petition for the
immediate return of Justin to his natural parents. On February 11, 1999, the
Kentucky court determined that the voluntary and informed consent to adoption
forms signed by Moore and Dorning on January 27, 1998, were void and
concluded that the child should have been returned to appellants after they
dismissed their petition to voluntarily terminate their parental rights.

In its entry, the Kentucky court recounted the evidence presented at the
hearing; specifically, the court noted that the parties agreed that the adoption would
11

proceed with a voluntary termination of appellants' parental rights in Kentucky,
followed by the filing of an adoption petition by the Asentes in Ohio. The court
further noted that Donnelly may have made a mistake in utilizing terms in the
consent form that parroted language utilized in an alternative means to permit an
adoption, one that did not require judicial intervention. However, the Kentucky
court concluded that this mistake was insufficient to change the parties' agreement
with respect to how this adoption was to proceed. Thus, the Kentucky court
granted appellants' petition for the immediate return of Justin, subject to a
visitation and transfer plan to be approved by the court at a later date. The Asentes
have filed an appeal from this order that is currently pending in the Kentucky
appellate court system.

In Ohio, the Trumbull County Probate Court conducted a hearing on April 2,
1999, regarding its ability to assume jurisdiction over the adoption petitions filed
by the Asentes. Evidence was presented at this hearing concerning the proceedings
held in Kentucky as well as testimony regarding the significant connections that
both the Asentes and Justin now have with the state of Ohio.

By judgment entry filed April 8, 1999, the Ohio trial court ruled that this
was not a case where a conflict existed "between the concurrent subject matter
jurisdiction of two courts" because only Ohio was exercising adoption jurisdiction,
a valid exercise of the court's subject-matter jurisdiction. The court scheduled a
12

hearing for the Asentes' adoption petitions and further held that the order issued by
the Kentucky court in case No. 98-CI-01610 on February 11, 1999, was not
entitled to full faith and credit by the courts of the state of Ohio.

In making this determination, the trial court attempted to reconcile the
following three statutes that have varying degrees of applicability to adoption
proceedings: (1) the Interstate Compact on the Placement of Children ("ICPC"),
codified in Ohio at R.C. 5103.20 et seq. and in Kentucky at KRS 615.030, (2) the
Uniform Child Custody Jurisdiction Act ("UCCJA"), codified in Ohio at R.C.
3109.21 through 3109.37 and enacted in substantially the same form in Kentucky
at KRS 403.420 through 403.630, and (3) the Parental Kidnapping Protection Act
("PKPA"), Section 1738A, Title 28, U.S.Code. From this judgment, appellants
filed a timely notice of appeal and now present the following five assignments of
error:

"[1.] The trial court erred, to the detriment of appellants, in ruling that Ohio
had jurisdiction to hear this case.

"[2.] The trial court erred, to the detriment of appellants, in failing to give
full faith and credit to the orders of the Circuit Court of Kenton County, Kentucky.

"[3.] The trial court erred, to the detriment of appellants, by holding the
hearing in open court.
13

"[4.] The trial court erred, to the detriment of appellants, by failing to
dismiss this petition for lack of a necessary party.

"[5.] The trial court erred, to the detriment of appellants, by entering orders
on custody and visitation without having the jurisdiction to do so."

Before addressing appellants' assigned errors, we note that this appeal
originated as four separately filed cases, resulting in appellate case Nos. 99-T-0055
through 99-T-0058. As all four cases present identical issues, this court
consolidated the individually filed appeals for all purposes. On July 15, 1999, this
court expedited the briefing and hearing schedules for this case and noted that the
principal issue to be resolved was the determination of which state's court, Ohio or
Kentucky, has proper jurisdiction over this matter. As this is the core issue to be
resolved, we will address appellants' first, second, and fifth assignments of error
first and in a consolidated manner. Both parties, as well as the American Academy
of Adoption Attorneys, who filed an amicus brief on behalf of the Asentes, attempt
to entice this court into deciding this matter by weighing the respective parenting
abilities of the parties. This we decline to do, as the decisive issue before this court
is the right of an Ohio court to exercise jurisdiction over this matter.

A cursory review of the facts of this case reveals that at alternative times
during this proceeding, both the Ohio and Kentucky courts have issued orders
asserting their exclusive jurisdiction over various aspects of this matter. In the end,
14

however, each state proclaimed that it alone had home state jurisdiction over the
minor child and was in the best position to determine the issues involved in this
adoption proceeding.

As the Ohio trial court indicated, an analysis as to which court properly has
jurisdiction over this matter requires a review of three separate statutes: the ICPC,
the UCCJA, and the PKPA. However, it must be noted at the onset of our analysis
that the law in this area has been hampered by the inconsistent and apparently
result-driven outcomes reached by the various courts that have addressed similar
issues regarding jurisdictional conflicts.

In reaching its decision to exercise jurisdiction over this matter, the trial
court first considered the ICPC, a law that has been enacted by all fifty states and
the District of Columbia to facilitate the cooperation between states for the
placement of children. One of the ICPC's provisions, at Article V, provides as
follows:

"(A) The sending agency shall retain jurisdiction over the child sufficient to
determine all matters in relation to the custody, supervision, care, treatment and
disposition of the child which it would have had if the child had remained in the
sending agency's state, until the child is adopted, reaches majority, becomes self-
supporting or is discharged with the concurrence of the appropriate authority in the
15

receiving state. Such jurisdiction shall also include the power to effect or cause the
return of the child * * *." See R.C. 5103.20.

In interpreting this article with respect to interstate jurisdictional disputes, an
argument could be made that appellants were the "sending agent" as that term is
defined in the ICPC4 and that Kentucky retained jurisdiction to determine all
matters regarding the care and custody of Justin until such time as the adoption in
Ohio was finalized. However, various court and scholarly opinions assert that the
term "jurisdiction," as utilized in the ICPC, was never intended to determine which
court may appropriately exercise jurisdiction over all or some aspects of an
adoption proceeding. See comment to Section 2-107, 9 Uniform Laws Annotated,
Part IA, Uniform Adoption Act of 1994; Adoption of Zachariah K. (1992), 6
Cal.App.4th 1025, 1038, 8 Cal.Rptr.2d 423, 431.

Rather, these commentators contend that the ICPC helps to determine the
legality of an interstate placement only after a court has properly asserted
jurisdiction (in an adjudicatory authority sense) under the UCCJA and PKPA, and
that the term "jurisdiction" as used in the ICPC merely refers to which party in an
adoption proceeding has "responsibility for a child's well-being." Id.; see, also,
Waller, Note: When the Rules Don't Fit the Game: Application of the Uniform
Child Custody Jurisdiction Act and the Parental Kidnapping Prevention Act to
Interstate Adoption Proceedings (1996), 33 Harv.J. on Legis. 271, 288, noting the
16

many courts throughout this country that have attached jurisdictional importance in
the adjudicatory-authority sense to ICPC provisions.

The Ohio trial court indicated in its entry of April 8, 1999, that despite the
problematic language utilized in Article V, it also was rejecting the idea that the
ICPC established a court's jurisdiction to decide adoption matters and focused its
analysis instead on the UCCJA and PKPA. Upon review, we cannot fault the trial
court's decision in this regard. Our search of the relevant case law has found no
Ohio court that has either accepted or rejected jurisdiction of an adoption matter
based on the ICPC.

However, we have found courts in Ohio that have applied the UCCJA to
jurisdictional conflicts in adoption proceedings. See Roth v. Hatfield (Dec. 28,
1983), Gallia App. Nos. 82CA19, 82CA20 and 82CA21, unreported, 1983 WL
2300; In re Adoption of Woodruff (Dec. 31, 1984), Ross App. No. 1125,
unreported, 1984 WL 5703; but, see, In re Adoption of White (Feb. 16, 1982),
Pickaway App. No. 80-CA-25, unreported, 1982 WL 3375, a decision out of the
same appellate district as Roth and Woodruff, holding that the UCCJA is only
relevant to custody disputes and has no application in an adoption proceeding.

The trial court's application of the UCCJA and PKPA to adoption matters
appears to have the support of the majority of jurisdictions within the United
States. See, e.g., Souza v. Superior Court of Santa Cruz (1987), 193 Cal.App.3d
17

1304, 238 Cal.Rptr. 892; Gainey v. Olivo (1988), 258 Ga. 640, 373 S.E.2d 4;
Foster v. Stein (1990), 183 Mich.App. 424, 454 N.W.2d 244. The rationale behind
these courts that apply the UCCJA to adoption cases, an analysis accepted by the
trial court, stems from the ultimate effect of adoption, namely, to completely
terminate the custody rights of the child's natural parents. This approach, as with
the application of the ICPC to determine jurisdictional conflicts, has its critics who
cite problems with applying the UCCJA to adoption proceedings and note that the
term "adoption" is found nowhere within the UCCJA's definition of "custody
proceedings." Williams v. Knott (Tex.App.1985), 690 S.W.2d 605; In re Johnson
(Ind.App.1981), 415 N.E.2d 108, 110-111; see, also, Hollinger, The Uniform
Adoption Act: Reporter's Ruminations (1996), 30 Fam.L.Q. 345, 369; Kay,
Adoption in the Conflict of Laws: The UAA, Not the UCCJA, Is the Answer
(1996), 84 Cal.L.Rev. 703.

As with the trial court's decision not to apply Article V of the ICPC to
determine the jurisdictional dispute in this matter, we again do not fault the trial
court's decision to apply the UCCJA and the PKPA. Although the trial court
recognized that the thrust of these Acts was to settle disputes between family
members, the Ohio court also recognized that "adoption proceedings are truly
custody proceedings requiring application of the PKPA and the UCCJA because
18

the end result of an adoption is the complete termination of the rights of the birth
parents."

While this court agrees with the trial court's decision to apply the UCCJA
and PKPA to this dispute, we begin to part company with the Ohio court's analysis
in its failure to give full faith and credit to the Kentucky court's actions with
respect to this matter. In apparent contradiction of its decision to accept
jurisdiction over the minor child pursuant to the UCCJA and the PKPA, the trial
court indicated that appellants' petition for the voluntary termination of their
parental rights, filed in March 1998, in a Kentucky court, "was not for the purposes
of determining the custody of Justin." We fail to see how a termination of
appellants' parental rights, either through a voluntary petition or an adoption
proceeding, did not, for all purposes, determine custody of Justin.

From a review of the entire record of this proceeding, it is clear that the
parties intended this adoption to follow a two-step process: First, the termination of
appellants' parental rights was to be accomplished as quickly as possible through a
voluntary termination proceeding to be filed in Kentucky; and, second, the
subsequent adoption of Justin was to take place by the Asentes in Ohio. When the
first step in the above process did not go as planned, the Asentes, rather than
returning the child to the natural parents, attempted to obtain jurisdiction of this
matter in an Ohio court under provisions of the UCCJA and PKPA.
19

For purposes of determining jurisdiction under the UCCJA and PKPA, dates
such as when a child moved from one state to another as well as when a custody
proceeding commenced in a particular state can be vitally important. In this case,
the parties do not dispute that Justin left the state of Kentucky for the last time on
February 17, 1998. There is also no dispute that the Asentes filed their initial
adoption petition in Ohio on June 5, 1998.

There is some question whether the petition for voluntary termination, filed
March 16, 1998, or motion for immediate entitlement on August 17, 1998,
constituted the filing of the initial custody action in Kentucky.5 The Asentes
present a number of arguments as to why this court should not consider the date
appellants filed their petition for voluntary termination as the date for determining
the commencement date of the first custody proceeding to be filed in Kentucky.
Instead, the Asentes assert that the only action filed in Kentucky concerning the
custody of Justin, and that included them in the proceedings, occurred on August
17, 1998. It was then that appellants filed an action seeking an order from the
Kenton Circuit Court for the immediate return of Justin. Even if this court accepts
this later date, August 17, 1998, as the commencement of the first true custody
proceeding in Kentucky, this date was still sufficient to establish jurisdiction of this
matter in Kentucky and not Ohio pursuant to the UCCJA and PKPA.
20

Pursuant to R.C. 3109.22(A), the UCCJA provides that no court in Ohio
may exercise jurisdiction to make a parenting determination unless one of the
following applies:

"(1) This state is the home state of the child at the time of commencement
of the proceeding, or this state had been the child's home state within six months
before commencement of the proceeding and the child is absent from this state
because of his removal or retention by a parent who claims a right to be the
residential parent and legal custodian of a child or by any other person claiming his
custody or is absent from this state for other reasons, and a parent or person acting
as parent continues to live in this state;

"(2) It is in the best interest of the child that a court of this state assumes
jurisdiction because the child and his parents, or the child and at least one
contestant, have a significant connection with this state, and there is available in
this state substantial evidence concerning the child's present or future care,
protection, training, and personal relationships[.]"

Appropriately, the primary "purpose of the UCCJA is to avoid jurisdictional
competition and conflict with other jurisdictions and to facilitate the speedy and
efficacious resolution of custody matters so that the child or children in question
will not be caught in a judicial `tug of war' between different jurisdictions." In re
Shelton (Sept. 30, 1997), Trumbull App. No. 97-T-0075, unreported, at 8, 1997
21

WL 664553, citing In re Palmer (1984), 12 Ohio St.3d 194, 196, 12 OBR 259,
261, 465 N.E.2d 1312, 1314.

When a court of this state is asked to make a custody decision with respect
to a child who is the subject of proceedings within the jurisdiction of another state,
the UCCJA anticipates that a meaningful dialogue will occur between the judges in
deciding which court is the more appropriate forum from which to decide the child
custody issues. R.C. 3109.24. The initial Ohio trial court judge deferred to the
Kentucky court's decision. However, that judge later disqualified himself from the
case and a new judge was appointed to this matter. Unfortunately, the new Ohio
judge and the Kentucky judge could not reach an agreement. When both states
claimed jurisdiction, under the first alternative of the UCCJA, the courts needed to
determine which state was Justin's home state at the time the respective custody
proceedings were filed by the parties.

As previously noted, a child's home state is the state the child resided in for
a period of six consecutive months immediately preceding the commencement of a
custody proceeding or the state where a child lived within six months before the
commencement of a custody proceeding and the child is absent from the state
because a person claims to have custody of the child in another state, and a
contestant continues to reside in this state. See R.C. 3109.22(A) and 3109.21(E).
Ohio can only qualify as Justin's home state based on the first definition of the
22

term while Kentucky may be considered Justin's home state under the second
definition as set forth above.

In the present case, Justin, nearly one year old at the time the Asentes
received physical possession of the child, had resided with his natural parents for
nearly his whole short life. He resided with his prospective adoptive parents for
less than four months by the time the original adoption petition was filed in Ohio.6
Consequently, pursuant to R.C. 3109.21(E) and the definition of the term "home
state," it was impossible for Ohio to be Justin's home state, contrary to the finding
by the Ohio trial court. On the other hand, appellants filed an action in Kentucky
within the six-month period and claimed that they were entitled to the return of the
child to whom the Asentes were improperly claiming custody under the laws of
Ohio. By filing their custody proceeding within the six-month time period after
Justin left Kentucky for the last time,7 appellants can claim that Kentucky has
home state jurisdiction over this matter.

Turning to the second alternative, R.C. 3109.22(A)(2), there can be little
disagreement that both states can properly claim that Justin has significant
connections to the states of Ohio and Kentucky. However, in an effort to eliminate
the possibility of two states' claiming to have jurisdiction over the same child, the
PKPA allows for "significant connection" jurisdiction only if no state qualifies for
"home state" jurisdiction. Section 1738A(c)(2)(B), Title 28, U.S.Code; Justis v.
23

Justis (1998), 81 Ohio St.3d 312, 317, 691 N.E.2d 264, 269; In re Adoption of
Child by T.W.C. (1994), 270 N.J.Super. 225, 233, 636 A.2d 1083, 1087.

In order for one state to modify a custody decree of another state under the
PKPA, the following two factors must be met: "(1) the state seeking to modify the
decree must have jurisdiction to make a child custody determination, and (2) the
original state must no longer have jurisdiction, or must have declined to exercise
such jurisdiction." Justis, 81 Ohio St.3d at 317, 691 N.E.2d at 269.

In the absence of an Ohio court meeting the above two factors, the child
custody determinations of another state made in conformity with the UCCJA are
entitled to full faith and credit in this state. Id. at 315, 691 N.E.2d at 267. In this
case, the Kentucky court has ruled that the consent forms that appellants signed on
January 27, 1998, were not valid, and this determination is entitled to full faith and
credit by this court and the state of Ohio. Thus, under our application of the
UCCJA and PKPA to this case, we determine that a Kentucky court is the proper
forum in which to assert jurisdiction over this matter.

We recognize that the Asentes will take issue with our decision and will
dispute, among other things, the Kentucky court's claim of home state jurisdiction.
In particular, the Asentes claim that appellants' motion for immediate entitlement,
time-stamped August 17, 1998, was insufficient, under Kentucky law, to
commence an action concerning Kentucky's home state jurisdiction when Justin
24

left Kentucky for the last time on February 17, 1998. However, this is a
controversy for the Kentucky court system to resolve, not this court. The
Kentucky court's decision to exercise home state jurisdiction, appearing regular on
its face, is not subject to collateral attack in Ohio. See Souza, 193 Cal.App.3d at
1311, 238 Cal.Rptr. at 897. Should the Kentucky court agree with the Asentes'
appeal, they will be able to file a subsequent adoption petition for Justin in Ohio.
Until that date, however, an Ohio court has no jurisdiction.

As previously noted, several commentators have criticized the application of
the UCCJA and PKPA to adoption disputes and this criticism has some basis when
viewed against the present factual scenario. These commentators have proposed a
new Act, the Uniform Adoption Act, designed to resolve some of the problems
associated with this case as well as other problems associated with adoptions. See
9 Uniform Laws Annotated, Part IA, Uniform Adoption Act of 1994; Hollinger,
The Uniform Adoption Act: Reporter's Ruminations (1996), 30 Fam.L.Q. 345,
369; Kay, Adoption in the Conflict of Laws: The UAA, Not the UCCJA, Is the
Answer (1996), 84 Cal.L.Rev. 703.

Under the current system, when an adoption goes through as planned a
beneficial situation occurs amongst the natural parents, the adoptive parents, the
child, and the state. However, when things go wrong in an adoption proceeding,
this case demonstrates the time, expense, and heartache that result. This court is
25

certainly in favor of any changes to the current statutory scheme that will provide
for the swift and certain resolution of disputes that occur in this area.

Although these commentators have counseled against applying the UCCJA
and PKPA to this dispute, the analysis they would apply to this proceeding, based
on the current state of the law, would not have changed the outcome of our
decision. In an interstate adoption that is contested, these commentators suggest
that it would have been appropriate for the Ohio court either to stay or dismiss the
adoption proceeding before it in order for the birth parent's state to determine the
validity of the consent or the attempted revocation of consent. In the alternative,
these commentators suggest that the Ohio court could have invoked choice of law
rules that would have applied the law of the birth parent's state to resolve the
disputed issues. Hollinger at 370-371, fn. 78; Kay at 730-731, fn. 111.

The Ohio trial court did not adopt either of these suggestions and chose to
proceed with jurisdiction over the Asentes' adoption petitions without any inquiry
into the validity of the consents executed by appellants. It is too late for the trial
court to rectify this error, as the Kentucky court has already rendered a decision
regarding the validity of appellants' consent in a proceeding in which the Asentes
fully participated and, following an adverse decision, filed an appeal within the
Kentucky court system.
26

Even under this alternative view, the Kentucky court's judgment is entitled
to full faith and credit in Ohio and is valid until such time as the Kentucky court
determines that it no longer has jurisdiction or determines that the appellants'
consent to this adoption is no longer necessary. See Litsinger Sign Co. v. Am. Sign
Co. (1967), 11 Ohio St.2d 1, 40 O.O.2d 30, 227 N.E.2d 609, paragraph one of the
syllabus (recognizing that a foreign decree may not be collaterally attacked or
disregarded unless it was rendered by a state without personal or subject-matter
jurisdiction under the foreign state's internal law).

Appellants' first, second, and fifth assignments of error have merit. Our
resolution of these assignments of error renders any analysis with respect to
appellants' remaining assignments of error moot pursuant to App.R. 12(A)(1)(c)
and, therefore, need not be addressed.

The judgment of the trial court is reversed, and judgment is entered in favor
of appellants. Costs are assessed to appellees.
Judgment reversed.

NADER, J., concurs.

CHRISTLEY, P.J., concurs in judgment only.
FOOTNOTES:
27

1.
Trumbull County Court of Common Pleas, Probate Division, in Ohio;
and the Sixteenth Judicial District, Kenton Circuit Court, Fourth Division, in
Kentucky.

2.
To avoid the possibility of confusion, we note that the adoption of
Joseph by the Asentes is not the subject of this dispute.

3.
Due to the important nature of the case before us and the fact that a
determination of the procedures utilized by the Asentes to have their claims heard
in an Ohio court would not change the ultimate outcome of our decision, we offer
no opinion as to the propriety of the Asentes' filing a motion for relief from
judgment in the trial court in conjunction with the filing of their notice of appeal in
this court. See Howard v. Catholic Social Serv. of Cuyahoga Cty., Inc. (1994), 70
Ohio St.3d 141, 147, 637 N.E.2d 890, 895; Daloia v. Franciscan Health Sys. of
Cent. Ohio, Inc. (1997), 79 Ohio St.3d 98, 101-102, 679 N.E.2d 1084, 1088, fn. 5.

4.
The term "sending agency" is defined at Article II of R.C. 5103.20 as
a "party state, officer or employee thereof; a subdivision of a party state, or officer
or employee thereof; a court of a party state; a person, corporation, association,
charitable agency, or other entity which sends, brings, or causes to be sent or
brought any child to another party state." (Emphasis added.)

5.
The Asentes assert that they were not parties to the voluntary
termination proceeding filed in Kentucky by appellants in March 1998. Thus, the
28

Asentes argue that the Kentucky court did not have personal jurisdiction over them
from which to require an Ohio court to give full faith and credit to any order
stemming from Kentucky case No. 98-AD-0020. We question why the Asentes
would expect, under the circumstances of this case, to be present at a hearing to
determine if Justin's natural parents wanted to "voluntarily" terminate their
parental rights. However, it is not necessary to delve into these sets of arguments
based on the manner in which we have addressed the parties' argumentation.

6.
We recognize that the Asentes filed a supplemental and new petition
for adoption of Justin in February 1999. However, the "commencement" of their
adoption petition was June 5, 1998, and we refuse to seriously undermine the
purpose of the UCCJA by considering for "home state" purposes the time period
that has passed while the courts determine the proper forum to resolve this custody
dispute.

7.
As previously noted, appellants filed their initial custody action in
Kentucky, at the very latest, on August 17, 1998. This is just within the six-month
time period, for purposes of calculating relevant time period for UCCJA and PKPA
purposes, from the date Justin began residing in Ohio for the first time on February
17, 1998.
29