In re Adoption of C.N.A. , 108 N.E.3d 553 ( 2018 )


Menu:
  • [Cite as In re Adoption of C.N.A., 2018-Ohio-897.]
    IN THE COURT OF APPEALS OF OHIO
    THIRD APPELLATE DISTRICT
    SHELBY COUNTY
    IN RE: THE ADOPTION OF:
    CASE NO. 17-17-20
    C.N.A.
    OPINION
    [BRENT L. ANDERSON - APPELLANT]
    Appeal from Shelby County Common Pleas Court
    Probate Division
    Trial Court No. 2017 ADP 00005
    Judgment Affirmed
    Date of Decision: March 12, 2018
    APPEARANCES:
    Jay M. Lopez for Appellant
    Jeremy M. Tomb for Appellee
    Case No. 17-17-20
    PRESTON, J.
    {¶1} Petitioner-appellant, Brent L. Anderson (“Brent”), appeals the
    September 18, 2017 decision of the Shelby County Court of Common Pleas, Probate
    Division, concluding that the consent of respondent-appellee, Nathaniel T. Parker
    (“Nathaniel”), to Brent’s petition to adopt C.N.A. is necessary. For the reasons that
    follow, we affirm.
    {¶2} C.N.A. was born in March 2011 to Nathaniel and Amanda Sue Brooks
    Anderson (“Amanda”). (Doc. No. 1). After Amanda and Brent were married in
    2015, Brent filed a petition to adopt C.N.A. on February 21, 2017. (Id.). In his
    petition, Brent asserted that Nathaniel’s consent to the adoption is not necessary
    because: (1) Nathaniel “failed without justifiable cause to provide more than de
    minimis contact with the minor for a period of at least one year immediately
    preceding the filing of the adoption petition”; and (2) Nathaniel “failed without
    justifiable cause to provide for the maintenance and support of the minor as required
    by law or judicial decree for a period of at least one year immediately preceding the
    filing of the adoption petition.” (Id.). Also on February 21, 2017, Amanda filed her
    consent to Brent’s adoption of C.N.A. (Doc. No. 3). Brent filed an amended
    petition to adopt C.N.A. on March 13, 2017. (Doc. No. 5).
    {¶3} On April 10, 2017, Nathaniel filed a motion “to stay this matter pending
    a determination from the Juvenile Court regarding [his] Motion to Establish Parental
    -2-
    Case No. 17-17-20
    Rights and Responsibilities, Motion for Interim Parenting Time, and Motion for
    Shared Parenting, or in the alternative, Parenting Time. (Doc. No. 9). Brent filed
    his memorandum in opposition to Nathaniel’s motion to stay the adoption
    proceeding on April 28, 2017. (Doc. No. 13). After a hearing on May 22, 2017, the
    trial court the next day denied Nathaniel’s motion to stay the adoption proceeding.
    (Doc. No. 20).
    {¶4} After hearings on July 27 and August 3, 2017, the trial court filed on
    September 17, 2017 its judgment entry that is the subject of this appeal. (Doc. No.
    32). In it, the trial court concluded that Nathaniel’s consent is required because
    Brent failed to prove that Nathaniel “failed without justifiable cause to provide more
    than de minimis contact with the child” and “failed to provide for the maintenance
    and support of the minor as required by law or judicial decree for a period of at least
    one year immediately preceding either [sic] the filing of the adopting petition.”
    (Id.).
    {¶5} Brent filed a notice of appeal on October 2, 2017. (Doc. No. 33). He
    raises one assignment of error for our review.
    Assignment of Error
    The Trial Court erred and acted contrary to law when it
    determined that Appellee, Nathaniel Parker’s, consent was
    necessary for the step-parent adoption.
    -3-
    Case No. 17-17-20
    {¶6} In his assignment of error, Brent argues that the trial court erred by
    concluding that Nathaniel’s consent to Brent’s adoption of C.N.A. is necessary. In
    particular, Brent argues that the trial court erred by concluding that he failed to prove
    that Nathaniel failed without justifiable cause to provide more than de minimis
    contact with C.N.A. Brent also argues that the trial court erred by concluding that
    he failed to prove that Nathaniel failed to provide for the maintenance and support
    of C.N.A. as required by law or judicial decree during the year immediately
    preceding the date on which Brent filed his petition to adopt C.N.A.
    {¶7} “‘Ordinarily, the written consent of a minor child’s natural parents is
    required prior to adoption, but R.C. 3107.07 provides exceptions to this
    requirement.’” In re Adoption of H.R., 3d Dist. Logan No. 8-14-15, 2014-Ohio-
    5390, ¶ 23, quoting In re Adoption of K.C., 3d Dist. Logan No. 8-14-03, 2014-Ohio-
    3985, ¶ 20. Specifically, R.C. 3107.07 states:
    Consent to adoption is not required of any of the following:
    (A) A parent of a minor, when it is alleged in the adoption petition
    and the court, after proper service of notice and hearing, finds by clear
    and convincing evidence that the parent has failed without justifiable
    cause to provide more than de minimis contact with the minor or to
    provide for the maintenance and support of the minor as required by
    law or judicial decree for a period of at least one year immediately
    -4-
    Case No. 17-17-20
    preceding either the filing of the adoption petition or the placement of
    the minor in the home of the petitioner.
    R.C. 3107.07(A). “‘R.C. 3107.07(A) is written in the disjunctive.’” In re Adoption
    of H.R. at ¶ 23, quoting In re Adoption of K.C. at ¶ 21. “‘Therefore, a failure without
    justifiable cause to provide either more than de minimis contact with the minor or
    maintenance and support for the one-year time period is sufficient to obviate the
    need for a parent’s consent.’” (Emphasis sic.) 
    Id., quoting In
    re Adoption of K.C. at
    ¶ 21, citing In re Adoption of A.H., 9th Dist. Lorain No. 12CA010312, 2013-Ohio-
    1600, ¶ 9.
    {¶8} “Because cases such as this one may involve the termination of
    fundamental parental rights, the party petitioning for adoption has the burden of
    proving, by clear and convincing evidence, that the parent failed to provide more
    than de minimis contact with the minor or failed to provide for the maintenance and
    support of the minor during the requisite one-year period and that there was no
    justifiable cause for the failure.” 
    Id. at ¶
    24, citing In re Adoption of K.C. at ¶ 24,
    citing In re R.L.H., 2d Dist. Montgomery No. 25734, 2013-Ohio-3462, ¶ 9. “‘“Once
    the petitioner has established this failure, the burden of going forward shifts to the
    parent to show some facially justifiable cause for the failure. * * * The burden of
    proof, however, remains with the petitioner.”’” 
    Id., quoting In
    re R.L.H. at ¶ 9,
    quoting In re A.N.B., 12th Dist. Preble No. CA2012-04-006, 2012-Ohio-3880, ¶ 10.
    -5-
    Case No. 17-17-20
    Clear and convincing evidence is that measure or degree of proof
    which is more than a mere “preponderance of the evidence,” but not
    to the extent of such certainty as is required “beyond a reasonable
    doubt” in criminal cases, and which will produce in the mind of the
    trier of facts a firm belief or conviction as to the facts sought to be
    established.”
    
    Id., quoting Cross
    v. Ledford, 
    161 Ohio St. 469
    (1954), paragraph three of the
    syllabus, and citing In re Adoption of K.C. at ¶ 24.
    {¶9} “‘The Supreme Court of Ohio has articulated a two-step analysis for
    probate courts to employ when applying R.C. 3107.07(A).’” 
    Id. at ¶
    25, quoting In
    re Adoption of K.C. at ¶ 23, citing In re Adoption of M.B., 
    131 Ohio St. 3d 186
    , 2012-
    Ohio-236, ¶ 23. “The first step involves deciding a factual question—in this case,
    whether the parent failed to provide more than de minimis contact with the minor
    or failed to provide for the maintenance and support of the minor for a period of at
    least one year immediately preceding the filing of the adoption petition.” 
    Id., citing In
    re Adoption of K.C. at ¶ 23, citing In re R.L.H. at ¶ 12, citing In re Adoption of
    M.B. at ¶ 23. See also In re Adoption of S.J.M.H., 1st Dist. Hamilton No. C-130683,
    2014-Ohio-3565, ¶ 29. “‘“A trial court has discretion to make these determinations,
    and in connection with the first step of the analysis, an appellate court applies an
    abuse-of-discretion standard when reviewing a probate court decision * * *.”’” 
    Id., -6- Case
    No. 17-17-20
    quoting In re Adoption of K.C. at ¶ 23, quoting In re Adoption of M.B. at ¶ 25. See
    also In re Adoption of S.J.M.H. at ¶ 29. “In the second step of the analysis, if a
    probate court finds the parent failed to provide more than de minimis contact or
    failed to provide for the maintenance and support of the minor, the court then
    determines ‘whether justifiable cause for the failure has been proved by clear and
    convincing evidence.’” 
    Id., quoting In
    re Adoption of M.B. at ¶ 23. See also In re
    Adoption of K.C. at ¶ 23. “‘A probate court’s decision on whether justifiable cause
    exists will not be disturbed on appeal unless the determination is against the
    manifest weight of the evidence.’” 
    Id., quoting In
    re Adoption of K.C. at ¶ 23, citing
    In re Adoption of M.B. at ¶ 24 and In re Adoption of Masa, 
    23 Ohio St. 3d 163
    (1986),
    paragraph two of the syllabus.
    In determining 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 manifest miscarriage of
    justice that there must be a reversal of the judgment and an order for
    a new trial.
    -7-
    Case No. 17-17-20
    In re Adoption of N.T.R., 10th Dist. Franklin No. 16AP-589, 2017-Ohio-265, ¶ 11,
    citing In re Adoption of E.E.R.K., 2d Dist. Miami No. 2013 CA 35, 2014-Ohio-
    1276, ¶ 18.
    {¶10} As an initial matter, we must address Brent’s failure to comply with
    the Ohio Rules of Appellate Procedure by omitting any argument illustrating the
    reasons in support of his challenge to the trial court’s decision. “[A]n appellate
    court may disregard an assignment of error pursuant to App.R. 12(A)(2): ‘if the
    party raising it fails to identify in the record the error on which the assignment of
    error is based or fails to argue the assignment separately in the brief, as required
    under App.R. 16(A).’” Rodriguez v. Rodriguez, 8th Dist. Cuyahoga No. 91412,
    2009-Ohio-3456, ¶ 4, quoting App.R. 12(A); Hawley v. Ritley, 
    35 Ohio St. 3d 157
    ,
    159 (1988). App.R. 16(A)(7) requires that Brent include in his brief: “An argument
    containing the contentions of the appellant with respect to each assignment of error
    presented for review and the reasons in support of the contentions, with citations to
    the authorities, statutes, and parts of the record on which appellant relies. The
    argument may be preceded by a summary.” “‘It is not the duty of an appellate court
    to search the record for evidence to support an appellant’s argument as to any
    alleged error.’” Rodriguez at ¶ 7, quoting State v. McGuire, 12th Dist. Preble No.
    CA95-01-001, 
    1996 WL 174609
    , *14 (Apr. 15, 1996). “An appellate court is not a
    performing bear, required to dance to each and every tune played on an appeal.” 
    Id., -8- Case
    No. 17-17-20
    citing State v. Watson, 
    126 Ohio App. 3d 316
    , 321 (12th Dist.1998) and McGuire at
    *14.
    {¶11} Brent failed to make any argument as to how the trial court specifically
    erred in concluding that he failed to prove that Nathaniel failed without justifiable
    cause to provide more than de minimis contact with C.N.A. and that Nathaniel failed
    to provide for the maintenance and support of C.N.A. Rather, Brent appears to
    imply that this court should conduct a de novo review of his statement of facts and
    decide the case in his favor. That does not comport with Ohio’s system of appellate
    review.
    {¶12} Applying the appropriate standard of review, we begin by addressing
    whether the trial court abused its discretion by finding that Brent failed to prove that
    Nathaniel failed to provide more than de minimis contact with C.N.A. In making
    that finding, the trial court stated, “The record is replete with instances of
    [Nathaniel] communicating or attempting to communicate with the child over the
    last year or more, including making direct contact by attending the child’s sporting
    events.” (Doc. No. 32).
    {¶13} As this court has previously discussed, “‘[t]he Legislature amended
    the statute to require a finding that the parent failed to “provide more than de
    minimis contact” with the minor child for a period of one year.’” In re Adoption of
    H.R., 2014-Ohio-5390, at ¶ 32, quoting In re Adoption of K.C., 2014-Ohio-3985, at
    -9-
    Case No. 17-17-20
    ¶ 22. “‘The prior version of the statute required a finding that the parent failed to
    “communicate” with the minor child for a period of one year.’” 
    Id., quoting In
    re
    Adoption of K.C. at ¶ 22. “‘“By changing the standard from ‘communicate,’ which
    could imply a single contact, to ‘more than de minimis contact,’ which seems to
    imply more than a single contact, the Legislature indicated its intent to require more
    effort from the parent to have contact and communication with the child.”’” 
    Id., quoting In
    re Adoption of K.C. at ¶ 22, quoting In re J.D.T., 7th Dist. Harrison No.
    11 HA 10, 2012-Ohio-4537, ¶ 9.
    {¶14} Based on our review of the record, the trial court did not abuse its
    discretion in concluding that Brent failed to prove that Nathaniel failed to have more
    than de minimis contact with C.N.A. Nathaniel testified that he attended C.N.A.’s
    wrestling meet in January 2017. (July 27, 2017 Tr. at 17-18). Nathaniel “talked to
    [C.N.A.] throughout the entire meet in between matches” when C.N.A. would
    “come up, sit with [Nathaniel] in the stands and then after the meet, [Nathaniel]
    talked to him for about forty minutes.” (Id. at 18). Nathaniel also testified that he
    had four phone conversations with C.N.A. between February 21, 2016 and February
    21, 2017. (Id. at 19). In addition, Nathaniel Skyped with C.N.A. when C.N.A.
    visited Nathaniel’s parents. (Id. at 20-21). Further, Nathaniel testified that he
    consulted an attorney in June 2016 “regarding custody and visitation” with C.N.A.
    -10-
    Case No. 17-17-20
    (Id. at 38). Nathaniel then relocated to Ohio from Texas in December 2016 “to be
    with [C.N.A.]” (Id. at 37-38).
    {¶15} On appeal, Brent offers no authority contradicting the trial court’s
    conclusion that Nathaniel’s conduct constituted more than de minimis contact.
    Instead, Brent urges this court to reach the conclusion of the trial court in In re
    Adoption of K.C. that the father failed to provide more than de minimis contact with
    K.C. because he “failed to seize upon various opportunities to facility [sic] his
    contact with K.C.” (Appellant’s Brief at 10). See In re Adoption of K.C. at ¶ 17. In
    re Adoption of K.C. is entirely distinguishable from the facts of this case. In this
    case, unlike In re Adoption of K.C., the trial court concluded that Brent failed to
    meet his burden of proving that Nathaniel failed to have more than de minimis
    contact with C.N.A. Accordingly, Brent’s argument is erroneous with respect to the
    appellate review of a trial court’s de minimis contact determination under R.C.
    3107.07(A). That is, it is the job of an appellate court to review the trial court’s de
    minimis contact determination for an abuse of discretion, not to replace the trial
    court’s decision with its own.
    {¶16} We conclude Nathaniel made more than de minimis effort to have
    contact with C.N.A. Stated another way, the record reflects that Nathaniel made
    more than a minimal effort to contact C.N.A. Therefore, the trial court did not abuse
    its discretion in concluding that Brent failed to prove that Nathaniel failed to have
    -11-
    Case No. 17-17-20
    more than de minimis contact with C.N.A. for the one-year period preceding Brent’s
    petition for adoption.
    {¶17} Further, the trial court’s alternative conclusion that any failure by
    Nathaniel to provide more than de minimis contact with C.N.A. was also justified
    is not against the manifest weight of the evidence. “‘“Ohio courts have held that
    justification of a parent’s failure to communicate with his or her child is shown when
    there has been ‘significant interference’ with a parent’s communication with a child
    or ‘significant discouragement’ of such communication.”’” In re J.P.E., 11th Dist.
    Trumbull No. 2016-T-0113, 2017-Ohio-1108, ¶ 17, quoting In re M.E.M., 11th
    Lake No. 2010-L-020, 2010-Ohio-4430, ¶ 29, quoting In re Kr.E., 9th Dist. Lorain
    No. 06CA008891, 2006-Ohio-4815, ¶ 21, citing In re Holcomb, 
    18 Ohio St. 3d 361
    (1985), paragraph three of the syllabus. “In determining whether a natural parent’s
    failure to have more than de minimis contact was justified, the central question is
    whether there was a significant interference with visitation and communication and
    not whether it was possible for the natural parent to have done more to overcome
    the interference with visitation and communication.” 
    Id. at ¶
    26, citing In re S.B.D.,
    2d Dist. Miami No. 2006-CA-25, 2006-Ohio-5133, ¶ 37.
    {¶18} The trial court concluded that Amanda “elected to take a number of
    actions to limit access to or communication with her or [C.N.A.]”—that is,
    Amanda’s “conduct was admittedly and intentionally designed to make
    -12-
    Case No. 17-17-20
    [Nathaniel’s] contact with [C.N.A.] more difficult.” (Doc. No. 32). Again, Brent
    makes no argument as to how the trial court’s alternative conclusion is against the
    manifest weight of the evidence. Based on our review of the record, we conclude
    that the trial court’s alternative conclusion is not against the manifest weight of the
    evidence. Stated differently, we conclude that the weight of the evidence supports
    the conclusion that Amanda significantly interfered with Nathaniel’s visitation and
    communication with C.N.A. Compare In re J.P.E. at ¶ 32.
    {¶19} Nathaniel testified that he placed “a hundred and ten phone calls”
    between February 21, 2016 and February 21, 2017 to contact C.N.A. (July 27, 2017
    Tr. at 19). According to Nathaniel, “out of the hundred and then [sic] phone calls
    during that time period, [Amanda] answered the phone one time and called
    [Nathaniel] back four other times * * * where [he] would’ve spoke to [C.N.A.]”
    (Id.). He testified that Amanda eventually “blocked [his] number in June” 2016 to
    prevent him from contacting C.N.A.         (Id.).   Nathaniel testified that Amanda
    informed Nathaniel’s parents “that they weren’t allowed to have anything other than
    supervised visits” after Amanda learned that Nathaniel’s parents were permitting
    C.N.A. to Skype with Nathaniel. (Id. at 21). Nathaniel also testified that he
    purchased a plane ticket “for Easter to come up and see [C.N.A.] for Easter [and to]
    take him to the zoo” but Amanda “just ignored” Nathaniel and did not permit him
    to see C.N.A. (Id. at 37).
    -13-
    Case No. 17-17-20
    {¶20} Amanda testified that, other than the wrestling meet, Nathaniel did
    “not ha[ve] any other contact” with C.N.A. (Id. at 49). However, she testified that
    “[t]here would have been one phone conversation in March of 2016. It was right
    before [C.N.A.’s] birthday” but that “it was not the best conversation that he had
    with [C.N.A.] because he would try to cut jabs.” (Id. at 50).
    {¶21} Amanda testified that she blocked Nathaniel in June 2016 from being
    able to call her because Nathaniel was being “derogatory through phone
    conversations” and because Nathaniel “had [] an argument * * * with Brent.” (Id.
    at 56). In particular, she testified that Nathaniel threatened her in December 2015
    when he stated to her “[t]hat he [did] not want[] to move to Ohio in fear that he
    would want to slit [her] throat.” (Id. at 52). According to Amanda, she sought
    “legal advice through an attorney” but was advised “not to [] file anything” since
    Nathaniel lived in Texas at the time. (Id. at 53-54). However, Amanda admitted
    that she continued to communicate with Nathaniel after that incident. (Id. at 54).
    After Amanda blocked Nathaniel from being able to call her, she communicated
    with Nathaniel through Facebook Messenger. (Id. at 56-57). Amanda testified that
    she did not permit C.N.A. to communicate with Nathaniel over the phone or through
    Facebook Messenger because of Nathaniel’s December 2015 threats and “the * * *
    comments that he had made in June.” (Id. at 57, 62).
    -14-
    Case No. 17-17-20
    {¶22} On cross-examination, Amanda testified that she did not permit
    C.N.A. to Skype with Nathaniel despite Nathaniel’s request to Skype with C.N.A.
    (Id. at 66-69). She admitted that she did not respond to Nathaniel’s request to see
    C.N.A. when Nathaniel was in Ohio. (Id. at 92-93). Amanda also testified that
    Nathaniel came to her residence in January 2017 to see C.N.A. but she instructed
    him “[t]o stay off [her] property.” (Id. at 100-102). (See also Aug. 3, 2017 Tr. at
    61-62). Amanda admitted that she did not respond to Nathaniel’s inquiry about the
    date and location of C.N.A.’s wrestling meet; however, Nathaniel “on his own went
    and found that schedule” and showed up to C.N.A.’s wresting meet. (July 27, 2017
    Tr. at 105). After Nathaniel showed up at C.N.A.’s wrestling meet, Amanda did not
    take C.N.A. to his three remaining wrestling meets that season. (Id.).
    {¶23} Nathaniel denied that he threatened Amanda. (Id. at 45); (Aug. 3, 2017
    Tr. at 59). According to Nathaniel, after Amanda alleged that he threatened her,
    they had “a ton of conversations after that. She, she called [him] and texted [him],
    [they] have texts about her * * * miscarriages, her problems with Brent, this and
    that, * * * so [he doesn’t] understand how she * * * didn’t cut contact off after [the
    alleged threat].” (July 27, 2017 Tr. at 45). Rather, Amanda “didn’t cut contact off
    until after [C.N.A.’s] last birthday conversation.” (Id.).
    {¶24} The trial court found Amanda’s explanation for blocking Nathaniel’s
    communication to be disingenuous. Indeed, Amanda’s explanation is ultimately a
    -15-
    Case No. 17-17-20
    credibility determination, which is left to the sound discretion of the trial court. “‘A
    trial court is “free to believe all, part, or none of the testimony of any witness who
    appears before it.”’” In re Adoption of K.C., 2014-Ohio-3985, at ¶ 26, quoting In
    re Adoption of M.C., 4th Dist. Jackson No. 11CA5, 2011-Ohio-6527, ¶ 19, quoting
    Rogers v. Hill, 
    124 Ohio App. 3d 468
    , 470 (4th Dist.1998). See also In re J.P.E.,
    2017-Ohio-1108, at ¶ 39 (“The trial judge was in the best position to determine the
    credibility of the witnesses and was entitled to believe the testimony of appellee and
    Mr. Grifa over Brent Erb.”). Accordingly, we conclude that the evidence supporting
    that Amanda significantly interfered with Nathaniel’s communication and visitation
    with C.N.A. is weightier than the evidence that she did not. As such, the trial court’s
    alternative conclusion that any failure by Nathaniel to provide more than de minimis
    contact with C.N.A. was justified is not against the manifest weight of the evidence.
    {¶25} Finally, Brent challenges the trial court’s conclusion that he failed to
    prove that Nathaniel failed to provide for the maintenance and support of C.N.A.
    for the one-year period preceding Brent’s petition for adoption. Again, Brent makes
    no argument as to how the trial court abused its discretion in making that conclusion.
    {¶26} The Supreme Court of Ohio defined “the maintenance and support
    required by R.C. 3107.07(A) [as] that which is specifically ‘required by law or
    judicial decree.’” In re Adoption of M.B., 
    131 Ohio St. 3d 186
    , 2012-Ohio-236, at ¶
    20. Under Ohio law, “[t]he biological or adoptive parent of a minor child must
    -16-
    Case No. 17-17-20
    support the parent’s minor children out of the parent’s property or by the parent’s
    labor.” R.C. 3103.03(A). “‘Such duty of support is not dependent upon the
    presence or absence of court orders for support.’” In re Adoption of K.L.M., 10th
    Dist. Franklin No. 15AP-118, 2015-Ohio-3154, ¶ 12, quoting In re Adoption of
    B.M.S., 10th Dist. Franklin No. 07AP-236, 2007-Ohio-5966, ¶ 23, citing Nokes v.
    Nokes, 
    47 Ohio St. 2d 1
    , 5 (1976). “‘[A] parent of a minor, has the common-law
    duty of support as well as a duty of support decreed by court. The judicial decree
    of support simply incorporates the common-law duty of support.’” 
    Id., quoting In
    re Adoption of McDermitt, 
    63 Ohio St. 2d 301
    , 305 (1980).
    {¶27} “Maintenance and support, in the adoption context, do not simply refer
    to child support payments or other monetary contributions.” 
    Id. at ¶
    15, citing In re
    Adoption of McNutt, 
    134 Ohio App. 3d 822
    , 829 (4th Dist.1999). “Maintenance and
    support, ‘may mean any type of aid to feed, clothe, shelter, or educate the child;
    provide for health, recreation, travel expenses; or provide for any other need of the
    child. * * * Supplying shoes, diapers, or any other clothing can constitute support
    and maintenance.’” 
    Id., quoting In
    re Adoptions of Groh, 
    153 Ohio App. 3d 414
    ,
    2003-Ohio-3087, ¶ 20 (7th Dist.2003), citing In re Adoption of McNutt at 830. “De
    minimis monetary gifts from a biological parent to a minor child do not constitute
    maintenance and support, because they are not payments as required by law or
    judicial decree as R.C. 3107.07(A) requires.” In re Adoption of M.B. at ¶ 20.
    -17-
    Case No. 17-17-20
    {¶28} The trial court concluded that (1) “[t]here is no judicial order for
    support” because Amanda “elected to make no application for support” and (2)
    Amanda and Nathaniel “are co-owners of a certain piece of rental real estate and
    that, during the applicable period in question, she has been receiving the full rental
    payment for the property” as “support for [C.N.A.]” (Doc. No. 32). The record
    supports the trial court’s findings.
    {¶29} Indeed, the parties testified that Nathaniel provided money to Amanda
    to purchase homes in Springfield, Ohio for use as rental properties to generate
    income for Amanda while Nathaniel was in prison. (July 27, 2017 Tr. at 31, 77-
    79); (Aug. 3, 2017 Tr. at 45-51). The parties testified that the rental income was
    used as support for C.N.A. (July 27, 2017 Tr. at 31-32); (Aug. 3, 2017 Tr. at 51,
    54, 62-63). (See also July 27, 2017 Tr. at 81). That evidence alone demonstrates
    that Nathaniel provided for the maintenance and support of C.N.A. as required by
    law. See In re Adoption of McNutt at 829-830 (“Moreover, a ‘meager’ amount of
    support is sufficient to avoid a finding that the parent’s consent is not required.”),
    citing In re Bryant, 4th Dist. Washington No. 97CA635, 
    1997 WL 766460
    , *6 (Dec.
    9, 1997), Celestino v. Schneider, 
    84 Ohio App. 3d 192
    , 197 (6th Dist.1992) (“father’s
    payment of $36 to CSEA precluded a finding of failure to provide maintenance and
    support”), Vecchi v. Thomas, 
    67 Ohio App. 3d 688
    , 691 (2d Dist.1990) (“father’s
    payment of $130 to CSEA precluded a finding of failure to provide maintenance
    -18-
    Case No. 17-17-20
    and support”), In re Adoption of Salisbury, 
    5 Ohio App. 3d 65
    , 67 (10th Dist.1982);
    In re Adoption of Dea, 11th Dist. Lake No. 92-L-120, 
    1994 WL 102390
    , *2 (Mar.
    25, 1994), and In re Adoption of Mills, 12th Dist. Warren No. CA93-04-036, 
    1993 WL 430473
    , *2 (Oct. 25, 1993). See also In re Adoption of M.B. at ¶ 26.
    {¶30} Moreover, Nathaniel testified that he
    offered to give [Amanda] money, * * * and every time [he made] any
    kind of offer, * * * it was met with we don’t need it. But there was
    multiple offers made for soccer cletes [sic], for Halloween costumes,
    * * * there was multiple offers.
    (July 27, 2017 Tr. at 36). (See also Aug. 3, 2017 Tr. at 55-56, 60). Amanda admitted
    that Nathaniel offered to buy shoes and offered to pay for school for C.N.A. (July
    27, 2017 Tr. at 57, 71, 97). (See also July 27, 2017 Tr. at 91-92).
    {¶31} The above evidence demonstrates that Nathaniel “made a financial
    contribution that comports with the requirements of R.C. 3107.07(A) to contribute
    maintenance and support” for C.N.A. In re Adoption of M.B. at ¶ 23. Therefore,
    the trial court did not abuse its discretion by concluding that Brent failed to prove
    that Nathaniel failed to provide for the maintenance and support of C.N.A. for the
    one-year period preceding Brent’s petition for adoption.
    -19-
    Case No. 17-17-20
    {¶32} For the foregoing reasons, we hold that the trial court did not err in
    concluding that Nathaniel’s consent to Brent’s adoption of C.N.A. is required under
    R.C. 3107.07(A).
    {¶33} Brent’s assignment of error is overruled.
    {¶34} Having found no error prejudicial to the appellant herein in the
    particulars assigned and argued, we affirm the judgment of the trial court.
    Judgment Affirmed
    WILLAMOWSKI, P.J. and ZIMMERMAN, J., concur.
    /jlr
    -20-
    

Document Info

Docket Number: 17-17-20

Citation Numbers: 2018 Ohio 897, 108 N.E.3d 553

Judges: Preston

Filed Date: 3/12/2018

Precedential Status: Precedential

Modified Date: 1/12/2023