consent exception in Ohio

2025I write separately to emphasize that this is a close case and there is also competent, credible evidence that would support a finding that Arce did voluntarily consent to the search. {¶ 34} “To rely on the consent exception of the warrant requirement, the state must show by ‘clear and positive’ evidence that the consent was ‘freely and voluntarily’ given.” State v. Posey, 40 Ohio St.3d 420, 427 (1988), quoting Bumper v. North Carolina, 391 U.S. 543, 548 (1968); State v. Casi, 2020-Ohio-3063, ¶ 42 (6th Dist.). “‘[W]hether a consent to search was in fact ‘voluntary’ or was the product of duress

2024Here, however, appellant contends (1) any consent he gave for the search of his vehicle was involuntary, and (2) that if he did consent, he limited or withdrew that consent prior to the discovery of the methamphetamine in the locked cylinder. {¶29} To establish the consent exception to the probable cause and warrant requirements of the federal and Ohio constitutions, the State has the burden to establish by “clear and positive” evidence that “consent was, in fact, freely and voluntarily given.” Bumper v. North Carolina, 391 U.S. 543 (1968); State v. Posey, 40 Ohio St.3d 420, 427 (1988).

2025I write separately to emphasize that this is a close case and there is also competent, credible evidence that would support a finding that Arce did voluntarily consent to the search. {¶ 34} “To rely on the consent exception of the warrant requirement, the state must show by ‘clear and positive’ evidence that the consent was ‘freely and voluntarily’ given.” State v. Posey, 40 Ohio St.3d 420, 427 (1988), quoting Bumper v. North Carolina, 391 U.S. 543, 548 (1968); State v. Casi, 2020-Ohio-3063, ¶ 42 (6th Dist.). “‘[W]hether a consent to search was in fact ‘voluntary’ or was the product of duress

2024Here, however, appellant contends (1) any consent he gave for the search of his vehicle was involuntary, and (2) that if he did consent, he limited or withdrew that consent prior to the discovery of the methamphetamine in the locked cylinder. {¶29} To establish the consent exception to the probable cause and warrant requirements of the federal and Ohio constitutions, the State has the burden to establish by “clear and positive” evidence that “consent was, in fact, freely and voluntarily given.” Bumper v. North Carolina, 391 U.S. 543 (1968); State v. Posey, 40 Ohio St.3d 420, 427 (1988).

2025“Once the petitioner -18- has established one of the exceptions to the consent requirement, ‘the burden of going forward shifts to the parent to show some facially justifiable cause for the failure.’ ” Id., quoting In re A.N.B., 2012-Ohio-3880 , ¶ 10 (12th Dist.), citing In re Adoption of Bovett, 33 Ohio St.3d 102, 104 (1987).

2024Once the petitioner has established one of the exceptions to the consent requirement, “the burden of going forward shifts to the parent to show some facially justifiable cause for the failure.” In re A.N.B., 2012-Ohio-3880 , ¶ 10 (12th Dist.), citing In re Adoption of Bovett, 33 Ohio St.3d 102, 104 (1987).

2026“Because adoption acts to permanently terminate parental rights, the written consent of a minor child’s parents is ordinarily required in order to proceed with the adoption action.” In re L.R.O., 2020-Ohio-3200, ¶ 7 (2d Dist.). {¶ 8} R.C. 3107.07(A) provides exceptions to the consent requirement.

2025“Because adoption acts to permanently terminate parental rights, the written consent of a minor child’s parents is ordinarily required in order to proceed with the adoption action.” In re L.R.O., 2020-Ohio-3200, ¶ 7 (2d Dist.). {¶ 7} R.C. 3107.07(A) provides exceptions to the consent requirement.

2020Voluntariness is a question of fact to be determined from all the circumstances, and while the subject's knowledge of a right to refuse is a factor to be taken into account, the prosecution is not required to demonstrate such knowledge as a prerequisite to establishing a voluntary consent.’ ” State v. Robinette, 80 Ohio St.3d 234, 242-243 , 685 N.E.2d 762 (1997), quoting Schneckloth v. Bustamonte, 412 U.S. 218, 248-249 , 93 S.Ct. 2041 , 36 L.Ed.2d 854 (1973). {¶ 37} “To rely on the consent exception of the warrant requirement, the state must show by ‘clear and positive’ evidence that the conse

2020Voluntariness is a question of fact to be determined from all the circumstances, and while the subject's knowledge of a right to refuse is a factor to be taken into account, the prosecution is not required to demonstrate such knowledge as a prerequisite to establishing a voluntary consent.’ ” State v. Robinette, 80 Ohio St.3d 234, 242-243 , 685 N.E.2d 762 (1997), quoting Schneckloth v. Bustamonte, 412 U.S. 218, 248-249 , 93 S.Ct. 2041 , 36 L.Ed.2d 854 (1973). {¶ 37} “To rely on the consent exception of the warrant requirement, the state must show by ‘clear and positive’ evidence that the conse

2024The Ohio Supreme Court has “refused to adopt a ‘precise and inflexible meaning’ for ‘justifiable cause,’ but instead has stated that ‘the better-reasoned approach would be to leave to the probate court as finder of fact the question of whether or not justifiable cause exists.’ ” In re Adoption of W.K.S., 2014-Ohio-3847, ¶ 22 (2d Dist.), citing In re Adoption of Holcomb, 18 Ohio St.3d 361, 367 (1985). {¶ 11} The party seeking to adopt has the burden of proving, by clear and convincing evidence, that an exception to the consent requirement applies.

2006We further explained that “[interpreting R.C. 3107.07(A) as requiring a paternity determination prior to the running of the one-year period comports with the requirements of due process and the plain meaning of its provisions.” Id. at 132 , 585 N.E.2d 418 . {¶ 13} In light of our mandate to strictly construe the language of R.C. 3107.07(A) to protect the fundamental interests of the nonconsenting parent, we have held, “[A] party filing a petition for adoption who relies upon R.C. 3107.07(A) bears the burden of establishing by clear and convincing evidence that the exception to the consent requ

2024Thus, “a party filing a petition for adoption who relies upon R.C. 3107.07(A) bears the burden of establishing by clear and convincing evidence that the exception to the consent requirement contained therein has been satisfied.” In re Adoption of Sunderhaus, 63 Ohio St.3d 127, 132 (1992).

2020Reliance upon the exception to the consent requirement contained in R.C. 3107.07(A) necessitates that the party so doing initiate the action required to render the exception applicable.” Id. at 131-132 .

2025I write separately to emphasize that this is a close case and there is also competent, credible evidence that would support a finding that Arce did voluntarily consent to the search. {¶ 34} “To rely on the consent exception of the warrant requirement, the state must show by ‘clear and positive’ evidence that the consent was ‘freely and voluntarily’ given.” State v. Posey, 40 Ohio St.3d 420, 427 (1988), quoting Bumper v. North Carolina, 391 U.S. 543, 548 (1968); State v. Casi, 2020-Ohio-3063, ¶ 42 (6th Dist.). “‘[W]hether a consent to search was in fact ‘voluntary’ or was the product of duress

2020Voluntariness is a question of fact to be determined from all the circumstances, and while the subject's knowledge of a right to refuse is a factor to be taken into account, the prosecution is not required to demonstrate such knowledge as a prerequisite to establishing a voluntary consent.’ ” State v. Robinette, 80 Ohio St.3d 234, 242-243 , 685 N.E.2d 762 (1997), quoting Schneckloth v. Bustamonte, 412 U.S. 218, 248-249 , 93 S.Ct. 2041 , 36 L.Ed.2d 854 (1973). {¶ 37} “To rely on the consent exception of the warrant requirement, the state must show by ‘clear and positive’ evidence that the conse

2024H.N.R. at ¶ 26, quoting Lehr at 261 . {¶ 19} “Any exception to the requirement of parental consent [to adoption] must be -10- strictly construed so as to protect the right of [biological] parents to raise and nurture their children.” In re Schoeppner, 46 Ohio St.2d 21, 24 , 345 N.E.2d 608 (1976). {¶ 20} In order to show that Father’s consent was not required, Petitioner was required to demonstrate by clear and convincing evidence the existence of an exception to the consent requirement.

2024H.N.R. at ¶ 26, quoting Lehr at 261 . {¶ 19} “Any exception to the requirement of parental consent [to adoption] must be -10- strictly construed so as to protect the right of [biological] parents to raise and nurture their children.” In re Schoeppner, 46 Ohio St.2d 21, 24 , 345 N.E.2d 608 (1976). {¶ 20} In order to show that Father’s consent was not required, Petitioner was required to demonstrate by clear and convincing evidence the existence of an exception to the consent requirement.

2006We further explained that “[interpreting R.C. 3107.07(A) as requiring a paternity determination prior to the running of the one-year period comports with the requirements of due process and the plain meaning of its provisions.” Id. at 132 , 585 N.E.2d 418 . {¶ 13} In light of our mandate to strictly construe the language of R.C. 3107.07(A) to protect the fundamental interests of the nonconsenting parent, we have held, “[A] party filing a petition for adoption who relies upon R.C. 3107.07(A) bears the burden of establishing by clear and convincing evidence that the exception to the consent requ

2006We further explained that “[interpreting R.C. 3107.07(A) as requiring a paternity determination prior to the running of the one-year period comports with the requirements of due process and the plain meaning of its provisions.” Id. at 132 , 585 N.E.2d 418 . {¶ 13} In light of our mandate to strictly construe the language of R.C. 3107.07(A) to protect the fundamental interests of the nonconsenting parent, we have held, “[A] party filing a petition for adoption who relies upon R.C. 3107.07(A) bears the burden of establishing by clear and convincing evidence that the exception to the consent requ

2026H.P., 2022-Ohio-4369, at ¶ 20 , citing In re Adoption of P.L.H., 2017-Ohio-5824, ¶ 32 .

2026H.P., 2022-Ohio-4369, at ¶ 20 , citing In re Adoption of P.L.H., 2017-Ohio-5824, ¶ 32 .

2019See also Illinois v. Rodriguez, 497 U.S. 177, 181 , 110 S.Ct. 2793 , 111 L.Ed.2d 148 (1990) (consent can be given “from a third party who possesses common authority over the premises”). {¶ 37} Under the consent exception, the prohibition against a warrantless entry into a home does not apply to situations in which voluntary consent has been obtained, either from the individual whose property is searched or from a third party who possesses -17- common authority over the premises.

2019See also Illinois v. Rodriguez, 497 U.S. 177, 181 , 110 S.Ct. 2793 , 111 L.Ed.2d 148 (1990) (consent can be given “from a third party who possesses common authority over the premises”). {¶ 37} Under the consent exception, the prohibition against a warrantless entry into a home does not apply to situations in which voluntary consent has been obtained, either from the individual whose property is searched or from a third party who possesses -17- common authority over the premises.

2026H.P., 2022-Ohio-4369, at ¶ 20 , citing In re Adoption of P.L.H., 2017-Ohio-5824, ¶ 32 .

2026Id. {¶ 43} On appeal, though K.W. admitted that he was a putative father, he asserted that the probate court erred in finding that his consent to the adoption was not required under R.C. 3107.07(B), which applied only to putative fathers, because at the time of the consent hearing on January 29, 2021, he had been determined to be H.P.’s legal father based on genetic testing.

2013No. 2008-T-0116, 2009-Ohio-2796 , ¶32, citing Bumper v. North Carolina, 391 U.S. 543, 548 , * * * (1968) and State v. Posey, 40 Ohio St.3d 420, 427 , * * * (1988). ‘“Clear and positive” evidence is the equivalent of clear and convincing evidence.’ State v. Jones, 187 Ohio App.3d 478 , 2010-Ohio-1600 (6th Dist.), ¶50, * * *, citing State v. Danby, 11 Ohio App.3d 38, 41 , * * * (6th Dist.1983).” {¶45} “‘Whether a consent to search was voluntary * * * is a question of fact to be determined from the totality of the circumstances.’ Lett, 2009-Ohio-2796 , ¶32, citing Schneckloth v. Bustamonte, 412 U

2012No. 2008-T-0116, 2009-Ohio-2796 , ¶32, citing Bumper v. North Carolina, 391 U.S. 543, 548 (1968) and State v. Posey, 40 Ohio St.3d 420, 427 (1988). “‘Clear and positive’ evidence is the equivalent of clear and convincing evidence.” State v. Jones, 187 Ohio App.3d 478 , 2010-Ohio-1600 (6th Dist.), ¶50, citing State v. Danby, 11 Ohio App.3d 38, 31 (6th Dist.1983). {¶34} “Whether a consent to search was voluntary or was the product of duress or coercion, either express or implied, is a question of fact to be determined from the totality of the circumstances.” Lett, 2009-Ohio-2796 , ¶32, citing Sc

2026See In re Adoption of K.W., 2024-Ohio-1818, ¶ 30 (5th Dist.) (mother’s consent to adoption not required because she did not timely file objection); In re G.W.K., 2022-Ohio-2620, ¶ 13 (9th Dist.) (R.C. 3107.07(K) “obviates the consent requirement where a parent has failed to file an objection to the adoption petition after proof of service of the petition and notice of hearing” 1 ); In re M.A.S., 2020-Ohio-3603, ¶ 15 (12th Dist.) (incarcerated father’s consent was not required for grandparents to adopt minor because father failed to file objections after being served the notice of adoption); In

2026“In reviewing whether a judgment is against the manifest weight of the evidence, we must review the entire record, weigh the evidence and all reasonable inferences, consider witness credibility, and determine whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way and created such a 5 manifest miscarriage of justice that there must be a reversal of the judgment and an order for a new trial.” In re Adoption of D.X.B., 2025-Ohio-2354, ¶ 12 (2d Dist.). {¶ 15} At the consent hearing, Great-Aunt testified that she had lived in the same home since 2017 and that Mother

2026See In re Adoption of K.W., 2024-Ohio-1818, ¶ 30 (5th Dist.) (mother’s consent to adoption not required because she did not timely file objection); In re G.W.K., 2022-Ohio-2620, ¶ 13 (9th Dist.) (R.C. 3107.07(K) “obviates the consent requirement where a parent has failed to file an objection to the adoption petition after proof of service of the petition and notice of hearing” 1 ); In re M.A.S., 2020-Ohio-3603, ¶ 15 (12th Dist.) (incarcerated father’s consent was not required for grandparents to adopt minor because father failed to file objections after being served the notice of adoption); In

2026See In re Adoption of K.W., 2024-Ohio-1818, ¶ 30 (5th Dist.) (mother’s consent to adoption not required because she did not timely file objection); In re G.W.K., 2022-Ohio-2620, ¶ 13 (9th Dist.) (R.C. 3107.07(K) “obviates the consent requirement where a parent has failed to file an objection to the adoption petition after proof of service of the petition and notice of hearing” 1 ); In re M.A.S., 2020-Ohio-3603, ¶ 15 (12th Dist.) (incarcerated father’s consent was not required for grandparents to adopt minor because father failed to file objections after being served the notice of adoption); In