In re Adoption of E.A.K. , 2021 Ohio 1835 ( 2021 )

[Cite as In re Adoption of E.A.K., 2021-Ohio-1835.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CLARK COUNTY
IN THE MATTER OF: :
:
THE ADOPTION OF E.A.K. : Appellate Case No. 2021-CA-11
:
: Trial Court Case No. 20205018
:
: (Probate Appeal from Common
: Pleas Court)
:
:
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OPINION
Rendered on the 28th day of May, 2021.
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RICHARD HEMPFLING, Atty. Reg. No. 0029986, 10 North Ludlow Street, Suite 200,
Dayton, Ohio 45402
Attorney for Appellant Father
MATTHEW J. BARBATO, Atty. Reg. No. 0076058, 2625 Commons Boulevard, Suite A,
Beavercreek, Ohio 45431
Attorney for Appellee Stepfather
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EPLEY, J.
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{¶ 1} Father appeals from a judgment of the Clark County Court of Common Pleas,
Probate Division, which concluded that his consent was not required for the adoption of
his biological daughter, E.A.K. Specifically, the trial court found that Father had failed to
have more than de minimus contact with his child, without justifiable cause, for at least
one year preceding the filing of Stepfather’s petition for adoption. For the following
reasons, the trial court’s judgment will be affirmed.
I. Facts and Procedural History
{¶ 1} Mother married Stepfather in August 2018. On May 22, 2020, Stepfather
filed a petition to adopt E.A.K., who was then seven years old. In his petition, Stepfather
asserted that Father’s consent was not required, because (1) Father had failed, without
justifiable cause, to provide more than de minimus contact with E.A.K. for at least one
year immediately preceding the filing of the petition, and (2) Father had failed, without
justifiable cause, to provide for the maintenance and support of E.A.K. for at least one
year immediately preceding the filing of the petition. Father objected to Stepfather’s
petition.
{¶ 2} On December 1, 2020, the trial court held a hearing on whether Father’s
consent was required, during which both Mother and Father testified and presented
various exhibits, including numerous text messages exchanged between them.
Because the trial court ultimately held that Father had provided maintenance and support
for E.A.K., we focus on the evidence related to Father’s contact with E.A.K. The
evidence at the hearing established the followings facts.
{¶ 3} E.A.K was born in October 2012. Mother and Father divorced in April 2015
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in Preble County, and Mother was named the residential parent. (See Exhibit B.)
Father was granted parenting time in accordance with the standard order of visitation.
Neither parent was required to pay child support. On May 12, 2018, while E.A.K. was in
Father’s care, Father was arrested for operating a vehicle while under the influence of
drugs or alcohol (OVI). In September 2018, he again was arrested for OVI. Father has
not seen E.A.K. since his May 2018 arrest.
{¶ 4} After Father’s arrests, Mother had concerns about Father’s parenting time.
On January 21, 2019, counsel for Mother sent correspondence to Father (Exhibit 6),
stating in relevant part that Mother had significant concerns about Father’s having
unsupervised parenting time with E.A.K. The letter asked Father if he would agree to
“suspend” his parenting time “for the present time.” The letter further stated that if Father
were unwilling to do so, Mother would file a motion with the domestic relations court
requesting a suspension of his parenting time, that all future parenting time be supervised,
and that he have no unsupervised contact with E.A.K. until he passed a hair follicle drug
test. Mother testified that she would have been comfortable with Father’s continued
visitation with E.A.K. if it were supervised. Father did not respond to the letter.
{¶ 5} On June 28, 2019, Mother filed several motions with the Preble County
domestic relations court, including a motion to modify parenting time and a motion for a
hair follicle drug test. Father did not respond to the motions or appear for a hearing on
the motions. On September 27, 2019, the magistrate in the domestic relations court
granted Mother’s motions, ruling that Father “shall not have parenting time with the
parties’ child, E.K.[,] until he submits to a hair follicle test and petitions the court for
parenting time.” (Exhibit C.) The domestic relations court judge adopted the
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magistrate’s ruling on December 3, 2019. (Exhibit C.) Father acknowledges that he
has not taken a hair follicle drug test or filed any motion in the domestic relations court to
reinstate his parenting time.
{¶ 6} Although Father has not seen E.A.K. since May 2018, Father sent and
exchanged numerous text messages with Mother between May 2018 and the spring of
2020. Many of Father’s texts simply asked, “What’s [E.A.K.] doin [sic]?” (See Exhibit
A.) Sometimes Mother responded to that question, and sometimes she did not. In a
text dated May 23, 2018, shortly after his first arrest, Father wrote, “I’m assuming you are
going to not let me have [E.A.K.] until I go through court.” (Exhibit 5.) On August 28,
2018, Father asked to call and talk with E.A.K. (Exhibit 4.) Mother did not respond, but
Mother testified that Father did not attempt to call.
{¶ 7} In October 2018, Father texted that he had gifts for E.A.K.’s birthday that he
wanted to drop off. Mother testified that she responded that she was picking up E.A.K.
from school and that Father could either leave the gifts at the house with Stepfather or
Father could wait until Mother and E.A.K. returned. When Mother and E.A.K. came
home, the presents were there, but Father was not. Mother testified that she asked
Father if he wanted to call E.A.K. that night, but Father did not call. (Tr. 48.) Father
testified, in contrast, that Mother instructed him to leave the presents at the house and
that he did not recall being invited to call E.A.K. later that evening.
{¶ 8} In the spring of 2019, Father asked for E.A.K.’s baseball schedule, but
Mother did not provide it. (Tr. 58-59.) On May 13, 2019, Father asked to FaceTime
with E.A.K. (Exhibit 3.) Mother responded, using strong and coarse language, that
E.A.K. did not want to speak with him and that she (Mother) would not make E.A.K. do
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so. (Id.) Again, Father did not attempt to call.
{¶ 9} On October 3, 2019, Father texted Mother stating that he had tried to
FaceTime, but after reading the magistrate’s decision, he believed he could not contact
E.A.K. (Tr. 66.) On January 31, 2020, Father again asked to call E.A.K., which Mother
would not allow. (Exhibit 2.) Mother testified that she believed that telephone contact
was restricted due to the domestic relations court’s suspension of Father’s parenting time.
(Tr. 38.) On March 12, 2020, Father asked to take E.A.K. shopping (Exhibit 1), which
Mother again denied because of the court order suspending his parenting time.
{¶ 10} As stated above, Stepfather filed a petition for adoption on May 22, 2020.
After a hearing on whether Father’s consent was required, the trial court permitted the
parties to file post-hearing memoranda on whether a prior court order suspending
visitation by a parent until certain conditions were met constituted justifiable cause for the
subsequent lack of contact between the parent and child. Both Father and Stepfather
filed memoranda on that issue.
{¶ 11} On January 14, 2021, the trial court concluded that Father’s consent was
not required. Although the court found that Father had provided for E.A.K.’s
maintenance and support during the applicable one-year period (May 22, 2019 to May
22, 2020), the court concluded that Father had failed to provide more than de minimus
contact with her for the applicable period of time. Because Father had conceded that he
failed to have contact with E.A.K. during the one-year period, the court’s analysis focused
on whether that failure was justifiable. The court noted that Father blamed Mother for
his failure to communicate.
{¶ 12} In concluding that Father’s failure to communicate was not justifiable, the
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trial court found that Father never submitted to a hair follicle drug test or filed a motion to
reinstate his right to parenting time and, instead, “opted to informally attempt to persuade
[Mother] to permit him to speak with the child by telephone or by way of Facetime
technology.” The court noted that the “vast majority” of the text messages between the
parents – including Father’s last request to visit with E.A.K. – were outside of the
applicable one-year time period, i.e., prior to May 22, 2019. The court further found that
Father was not precluded by any court order from visiting with E.A.K. between May 22,
2019 and December 3, 2019, when the domestic relations court adopted the magistrate’s
ruling suspending Father’s parenting time with conditions.
{¶ 13} The trial court further found that, between December 3, 2019 and May 22,
2020, Father’s “parenting time” was suspended under the domestic relations court order,
but he was not prohibited from all contact with E.A.K. The trial court held that where a
court order restricts visitation, but does not impose a full no-contact order, such an order
“does not afford a natural parent justifiable cause to fail to have contact with the child.”
The trial court cited In re Adoption of Mineer, 4th Dist. Adams No. 03CA768, 2004-Ohio-
656, and In re Adoption of K.K., 9th Dist. Lorain Nos. 05CA8849 & 05CA8850, 2006-Ohio-
1488. The court further commented:
The Court thinks it noteworthy that [Father] took no steps to defend
the request for the modification, to challenge the court order in question, or
to comply with the court order’s stated conditions for visitation – that is, to
submit a hair follicle test and petition the court for parenting time. Even in
the face of [Mother’s] less than hospitable rebuffs to [Father’s] attempt to
talk with his child, [Father] failed to avail himself of the straightforward legal
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avenues to see his child. Moreover, the Court finds this failure lasted
beyond the one year applicable time period – extending instead a full two
years back to the date of the arrest in question in May of 2018. More is
expected from a parent seeking to visit their child.
{¶ 14} Father appeals from the trial court’s judgment, challenging the court’s
conclusion that his failure to provide more than de minimus contact was not justifiable.
(Stepfather does not cross-appeal the court’s determination regarding Father’s provision
of maintenance and support.)
III. De Minimus Contact / Justifiable Cause
{¶ 15} In his sole assignment of error, Father claims that the trial court erred in
holding that his consent to the adoption was not necessary. He argues that the manifest
weight of the evidence at the hearing demonstrated a “history by [Mother] of ‘significant
interference’ with communication or, at the very least, ‘significant discouragement of such
communication’ ” between Father and E.A.K.
{¶ 16} A parent has a fundamental right to care for and have custody of his or her
child, and that right is terminated when a child is adopted. In re Adoption of J.R.J., 2d
Dist. Darke No. 2019-CA-12, 2019-Ohio-4701, ¶ 7. “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., 2d Dist.
Darke No. 2019-CA-19, 2020-Ohio-3200, ¶ 7.
{¶ 17} R.C. 3107.07 provides exceptions to the consent requirement. Id. Of
relevance here, R.C. 3107.07(A) provides that consent to adoption by a minor’s parent is
not a requirement when “it is alleged in the adoption petition and the court, after proper
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service of notice and hearing, finds by clear and convincing evidence that the parent has
failed without justifiable cause [(1)] to provide more than de minimis contact with the minor
or [(2)] 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 the filing of
the adoption petition or the placement of the minor in the home of the petitioner.”
{¶ 18} R.C. 3107.07(A) is written in the disjunctive. Consequently, the failure,
without justifiable cause, to provide either more than de minimus contact or maintenance
and support for the one-year time period is sufficient to eliminate the need for consent.
Id.{¶ 19} Probate courts employ a two-step analysis when applying R.C. 3107.07(A).
In re L.R.O., 2d Dist. Darke No. 2019-CA-19, 2020-Ohio-3200, at ¶ 9, citing In re Adoption
of M.B., 131 Ohio St.3d 186, 2012-Ohio-236, 963 N.E.2d 142, ¶ 23. First, the court must
determine whether the parent failed to have contact or to provide maintenance and
support for a period of at least one year immediately preceding the filing of the adoption
petition. Id. “The probate court exercises discretion in making these determinations,
and thus, an appellate court applies an abuse of discretion standard when reviewing the
probate court’s decision.” In re L.R.O. at ¶ 9, citing In re Adoption of M.B. at ¶ 21.
{¶ 20} If the probate court finds the parent failed to provide either more than de
minimis contact or maintenance and support, the court then must determine whether
justifiable cause for the failure has been proven by clear and convincing evidence. Id.,citing In re Adoption of M.B. at ¶ 23. “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,
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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.” Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118(1954), paragraph three of the syllabus; In re L.R.O. at ¶ 8. We have held that justifiable
cause “may be demonstrated by events either before or during the one year prior to the
filing of the petition or by a combination of both.” In re C.D.G. at ¶ 15; In re the Adoption
of A.L.E., 2d Dist. Clark Nos. 20205012 & 20204013, 2021-Ohio-972, ¶ 40.
{¶ 21} The term “justifiable cause” is not defined in R.C. 3107.07. The Supreme
Court of Ohio has held that “[s]ignificant interference by a custodial parent with
communication between the non-custodial parent and the child, or significant
discouragement of such communication, is required to establish justifiable cause for the
non-custodial parent’s failure to communicate with the child.” In re Adoption of Holcomb,
18 Ohio St.3d 361, 481 N.E.2d 613 (1985), paragraph three of the syllabus.
Nevertheless, the Ohio Supreme Court has refused to ascribe a “precise and inflexible
meaning” to “justifiable cause.” In re C.D.G. and N.A.G., 2d Dist. Montgomery Nos.
28664 & 29665, 2020-Ohio-2959, ¶ 18, citing Holcomb at 367.
{¶ 22} A parent’s efforts to enforce his or her parental rights, prior to the filing of a
stepparent’s adoption petition, is a relevant consideration when evaluating justifiable
cause. In re Adoption of M.G.B.-E., 154 Ohio St.3d 17, 2018-Ohio-1787, 110 N.E.3d
1236, ¶ 43; In re Adoption of R.A.H., 2d Dist. Champaign No. 2020-CA-32, 2021-Ohio-
1667, ¶ 14. In addition, we recently held that a protection order prohibiting a parent from
contact with a minor child “does not necessarily provide justifiable cause for the failure to
have contact and does not necessarily require a finding there is not justifiable cause for
the failure.” In re Adoption of R.A.H. at ¶ 21. We emphasized that the probate court
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must consider “all relevant circumstances,” including “the facts surrounding the issuance
of and the child’s inclusion in the protection order, the parent’s efforts, if any, to modify
the protection order to obtain parenting time, and any other facts deemed relevant by the
trial court.” (Emphasis sic.) Id.{¶ 23} “The question of whether justifiable cause * * * has been proven in a
particular case is a determination for the probate court and will not be disturbed on appeal
unless such determination is against the manifest weight of the evidence.” In re Adoption
of M.M.R., 2d Dist. Champaign No. 2017-CA-12, 2017-Ohio-7222, ¶ 8; In re Adoption of
Masa, 23 Ohio St.3d 163, 492 N.E.2d 140 (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.” In re Adoption of B.A.H.,
2d Dist. Greene No. 2012-CA-44, 2012-Ohio-4441, ¶ 21, quoting Steagall v. Crossman,
2d Dist. Montgomery No. 20306, 2004-Ohio-4691, ¶ 29.
{¶ 24} The petitioner has the initial burden of establishing that the biological parent
has failed to communicate with or support the child for the one-year period. If the
petitioner meets that burden, the burden of going forward with evidence shifts to the
biological parent to show facially justifiable cause for the failure. In re C.D.G., 2d Dist.
Montgomery Nos. 28664 & 28665, 2020-Ohio-2959, ¶ 4, citing In re Adoption of J.R.J.,
2d Dist. Darke No. 2019-CA-12, 2019-Ohio-4701, at ¶ 12. However, the party who
contends that consent is not required for the adoption (in this case, Stepfather) has the
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burden of proof throughout the proceeding. In re Adoption of J.R.J. at ¶ 7.
{¶ 25} Upon review of the record, we cannot conclude that the trial court’s finding
that Father’s consent was not required was against the manifest weight of the evidence.
Father acknowledged that he had not seen E.A.K. since his May 2018 arrest, which
occurred two years prior to the filing of Stepfather’s petition. Accordingly, the primary
question was whether his failure to communicate with E.A.K. was justifiable.
{¶ 26} The text messages reflect that Mother’s relationship with Father was
acrimonious following Father’s May 2018 arrest. Nevertheless, during the two-year
period between the arrest and the filing of Stepfather’s petition for adoption, Mother and
Father exchanged text messages about a variety of matters, including money for E.A.K.,
the marital home in which Father continued to live, and E.A.K.’s activities. Father was
aware of where E.A.K. lived, and he had dropped off birthday presents for E.A.K. at
Mother’s home in October 2018.
{¶ 27} However, Father made only sporadic requests to talk with E.A.K. The
exhibits reflect three express requests by Father to speak with E.A.K. on August 28, 2018;
May 13, 2019; and January 31, 2020. Father testified that, in October 2019, he texted
Mother stating that he had tried to FaceTime, but after reading the magistrate’s decision,
he believed he could not contact E.A.K. (Tr. 66.) He also testified to wanting to talk
with E.A.K. shortly after his birthday in March 2019. (Tr. 57.) Father sought to take
E.A.K. shopping in March 2020, but Mother reasonably denied that request, given that
such contact would have violated the domestic relations court’s order suspending
Father’s parenting time. Although Father texted “What’s [E.A.K.] doin?” many times and
showed an interest in E.A.K. and her activities, the trial court reasonably found that those
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texts were not requests to visit with E.A.K.
{¶ 28} The record reflects, and the trial court found, that Mother rebuffed Father’s
attempts to talk to E.A.K. Nevertheless, Father never made any efforts to enforce his
parental rights under the divorce decree, he never responded to Mother’s attorney’s letter
in January 2019, and he did not respond to Mother’s subsequent motions in the domestic
relations court. After Father’s parenting time was suspended by the domestic relations
court, Father was aware that he would need to have a hair follicle drug test to petition the
domestic relations court to reestablish his parenting time. In the year between the
domestic relations court’s adoption of the magistrate’s decision (December 3, 2019) and
the hearing on whether Father’s consent was required for adoption (December 1, 2020),
Father had not taken such a test. Father hired an attorney after the suspension of his
parenting time, but he was not aware of any motions to have the suspension lifted or to
reestablish a relationship between E.A.K. and him.
{¶ 29} With the evidence before us, we cannot conclude that the trial court “lost its
way” in holding that Father did not have justifiable cause for his failure to have more than
de minimus contact with E.A.K. Accordingly, the trial court did not err in deciding that
Father’s consent to the adoption was not required.
{¶ 30} Father’s assignment of error is overruled.
IV. Conclusion
{¶ 31} The trial court’s judgment will be affirmed.
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TUCKER, P. J. and WELBAUM, J., concur.
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Copies sent to:
Richard Hempfling
Matthew J. Barbato
Hon. Richard P. Carey