In re Adoption of B.G.F. ( 2018 )


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  • [Cite as In re Adoption of B.G.F., 
    2018-Ohio-5063
    .]
    IN THE COURT OF APPEALS OF OHIO
    THIRD APPELLATE DISTRICT
    SHELBY COUNTY
    IN RE:
    CASE NO. 17-18-06
    THE ADOPTION OF:
    B.G.F.
    OPINION
    [T.H.P. - APPELLANT]
    Appeal from Shelby County Common Pleas Court
    Probate Division
    Trial Court No. 2017 ADP 00025
    Judgment Affirmed
    Date of Decision: December 17, 2018
    APPEARANCES:
    Justin M. Lopez for Appellant
    Steven J. Geise for Appellee, C.M.F.
    Case No. 17-18-06
    SHAW, J.
    {¶1} Respondent-Appellant, T.H.P. (“Father”) appeals the May 17, 2018
    judgment of the Shelby County Court of Common Pleas, Probate Division, finding
    Petitioner-Appellee, C.M.F., (“Step-Father”) proved by clear and convincing
    evidence that Father failed to have more than de minimis contact with his biological
    child, B.G.F., and that Father failed to provide maintenance and support of B.G.F.
    as required by law or judicial decree for a period of at least one year immediately
    preceding the filing of the adoption petition filed by Step-Father. As a result, the
    trial court concluded that Father’s consent to Step-Father’s Petition for Adoption of
    B.G.F. is not required, and ordered the case to proceed on the adoption petition. On
    appeal, Father argues that he was not properly served with notice of the adoption;
    that the trial court erred in failing to apply the consent requirements of R.C.
    3107.07(B); and that the trial court’s decision is against the manifest weight of the
    evidence.
    {¶2} B.G.F. was born in 2014 in Indiana, to M.F. (“Mother”) and Father,
    who were living together, but were not married. Shortly thereafter, Mother left
    Father and moved to Ohio. In December of 2014, Mother and Step-Father began
    living together and continued to reside in Ohio. Mother and Step-Father eventually
    married in 2017.
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    {¶3} On October 19, 2017, Step-Father filed a Petition for Adoption of
    B.G.F. alleging that Father’s consent to the adoption petition is not required because
    (1) Father failed without justifiable cause to provide more than de minimis contact
    with B.G.F. for a year immediately preceding the filing of the adoption petition;
    and (2) Father failed without justifiable cause to provide for the maintenance and
    support of B.G.F. as required by law for a period of at least one year immediately
    preceding the filing of the adoption petition. See R.C. 3107.07(A). Notice of a
    hearing on the adoption petition was sent to Father and he filed an answer denying
    Step-Father’s allegations pertaining to his claim that Father’s consent is not required
    based upon the grounds set forth in R.C. 3107.07(A). Father subsequently filed
    objections to the Petition for Adoption. The trial court set a hearing on the matter.
    {¶4} On March 19, 2018, the trial court conducted a hearing on whether
    Father’s consent to the Petition for Adoption is not required under R.C. 3107.07(A).
    Step-Father presented his own testimony in addition to that of Mother, Mother’s
    parents, and an acquaintance who knew both Father and Mother when they lived
    together in Indiana. Father and Father’s mother both testified in support of Father’s
    opposition to the adoption petition.
    {¶5} The parties filed post-hearing briefs. In his brief, Father for the first
    time argued that Step-Father had elected in his adoption petition to proceed under
    the wrong statutory provision.     In particular, Father maintained that Step-Father
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    erroneously alleged Father is B.G.F.’s natural parent under R.C. 3107.07(A) in the
    adoption petition. Father claimed that under Ohio Adoption Law he is considered
    a putative father under R.C. 3107.07(B), which provides a different criteria for
    proving that Father’s consent is not required to the adoption petition.          Father
    asserted that he was not properly served notice of the adoption petition, and argued
    that the trial court should have conducted the evidentiary hearing applying the
    standards set forth in R.C. 3107.07(B). Father further argued that, in any event,
    Step-Father failed to demonstrate by clear and convincing evidence that the
    adoption petition could proceed without Father’s consent under either R.C.
    3107.07(A) or R.C. 3107.07(B).
    {¶6} On May 18, 2018, the trial court issued a judgment entry finding that
    Father’s consent to the adoption petition is not required. Specifically, the trial court
    found that Father is not a putative father, but the natural parent of B.G.F., and
    consequently, R.C. 3107.07(A) applied. The trial court further found that Step-
    Father proved by clear and convincing evidence that Father failed to have more than
    de minimis contact with B.G.F. and failed to provide maintenance and support to
    B.G.F. in the year immediately preceding the filing of the adoption petition.
    Accordingly, the trial court determined that the adoption petition could proceed
    without Father’s consent.
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    {¶7} Father filed a notice of appeal from this judgment entry, asserting the
    following assignments of error.
    ASSIGNMENT OF ERROR NO. 1
    APPELLANT WAS NOT PROPERLY SERVED WITH THE
    NOTICE OF ADOPTION.
    ASSIGNMENT OF ERROR NO. 2
    THE TRIAL COURT ERRED IN NOT APPLYING THE
    CONSENT REQUIREMENTS OF R.C. 3107.07(B).
    ASSIGNMENT OF ERROR NO. 3
    THE TRIAL COURT’S DECISION THAT APPELLANT DID
    NOT MEET THE CONSENT REQUIREMENTS OF R.C.
    3107.07(A) IS AGAINST THE MANIFEST WEIGHT OF THE
    EVIDENCE.
    {¶8} For ease of discussion, we elect to address the first and second
    assignment of error together.
    First and Second Assignments of Error
    {¶9} In these assignments of error, Father argues that he was not served with
    proper notice of the Petition for Adoption of B.G.F. Specifically, Father contends
    that in the adoption petition Step-Father marked the two boxes pertaining to R.C.
    3107.07(A), which governs when a natural parent’s consent is not required to an
    adoption petition of a minor child. However, Father maintained that under Ohio
    Adoption Law he is considered a putative father and, therefore, R.C. 3107.07(B)
    applies, which sets forth a different evidentiary standard for whether Father’s
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    consent is needed in order for the adoption to take place. The relevant portions of
    R.C. 3107.07 at issue in this case state:
    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 preceding either the filing of the
    adoption petition or the placement of the minor in the home of the
    petitioner.
    (B) The putative father of a minor if either of the following
    applies:
    (1) The putative father fails to register as the minor’s
    putative father with the putative father registry established
    under section 3107.062 of the Revised Code not later than
    fifteen days after the minor’s birth;
    (2) The court finds, after proper service of notice and
    hearing, that any of the following are the case:
    (a) The putative father is not the father of the minor;
    (b) The putative father has willfully abandoned or
    failed to care for and support the minor;
    (c) The putative father has willfully abandoned the
    mother of the minor during her pregnancy and up to
    the time of her surrender of the minor, or the minor’s
    placement in the home of the petitioner, whichever
    occurs first.
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    {¶10} The term “parent” is not defined in Chapter 3107 of the Revised Code,
    which governs adoption, however, according to R.C. 3107.01(H):
    “Putative father” means a man * * * who may be a child’s father
    and to whom all of the following apply:
    (1) He is not married to the child’s mother at the time of
    the child’s conception or birth;
    (2) He has not adopted the child;
    (3) He has not been determined, prior to the date a petition
    to adopt the child is filed, to have a parent and child
    relationship with the child by a court proceeding pursuant to
    sections 3111.01 to 3111.18 of the Revised Code, a court
    proceeding in another state, an administrative agency
    proceeding pursuant to sections 3111.38 to 3111.54 of the
    Revised Code, or an administrative agency proceeding in
    another state;
    (4) He has not acknowledged paternity of the child
    pursuant to sections 3111.21 to 3111.35 of the Revised Code.
    {¶11} In support of his assertion that R.C. 3107.07(A) applies to this case,
    Step-Father filed with the adoption petition B.G.F.’s Indiana Certificate of Birth on
    which Father’s name appears. The Indiana Certificate of Birth also designates
    Father’s last name as B.G.F.’s last name. Father maintains that his name on the
    birth certificate alone is insufficient to conclusively demonstrate that he is B.G.F.’s
    natural parent under Ohio Adoption Law. Consequently, Father maintains that for
    purposes of the notice and hearing pertaining to the adoption petition, he must be
    considered a putative father, which invokes R.C. 3107.07(B). Therefore, Father
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    contends that he was not properly served notice of the adoption petition and further
    contends that the trial court erred by conducting the evidentiary hearing under the
    criteria set forth in R.C. 3107.07(A).
    {¶12} To the contrary, Step-Father points to the presence of Father’s name
    on the Indiana Certificate of Birth indicating that he is the natural father of B.G.F.
    and demonstrating that B.G.F. was given Father’s last name at birth. Step-Father
    further relies on an Indiana statute that states:
    A child born out of wedlock shall be recorded:
    (1) under the name of the mother; or
    (2) as directed in a paternity affidavit executed under section 2.1 of this
    chapter.
    I.C. 16-37-2-13.
    {¶13} Step-Father maintains that under the foregoing Indiana Statute, the
    placement of B.G.F. on the Indiana Certificate of Birth under Father’s last name
    required, and could have only occurred where a valid affidavit of paternity has been
    executed by Mother and Father. Step-Father also directs us to testimony from
    Mother at the evidentiary hearing indicating that Father was at the hospital at the
    time of B.G.F.’s birth and that she executed her portion of a paternity affidavit
    stating that Father is B.G.F.’s natural father at that time. Step-Father’s arguments
    on appeal and the relevant Indiana statutes suggest that the Indiana paternity
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    affidavit has a similar effect to an acknowledgement of paternity under Ohio law. 1
    See R.C. 3111.23 et seq. Thus, Step-Father contends that Father is B.G.F.’s natural
    father for purposes of these adoption proceedings under Ohio Adoption Law.
    {¶14} In resolving this issue, the trial court agreed with Step-Father and
    found the Indiana statute cited above to be instructive. Specifically, the trial court
    found that:
    It is apparent to this court since [Father] is identified on the
    Indiana birth certificate as a parent of [B.G.F.] a paternity
    affidavit pursuant to Indiana Code 16-37-2-2.1 was executed.
    Otherwise his name will not appear on the birth certificate.
    Accordingly, the court finds that he is not a putative father but is
    a parent and, therefore, this action properly proceeded under
    R.C. 3107.07(A).
    (Doc. No. 19 at 4-5.)
    Discussion
    {¶15} At the outset, we note that R.C. 3705.09(F)(2), the Ohio statute which
    governs the filing of a birth certificate, states:
    If the mother was not married at the time of conception or birth
    or between conception and birth, the child shall be registered by
    the surname designated by the mother. The name of the father of
    such child shall also be inserted on the birth certificate if both the
    mother and the father sign an acknowledgement of paternity
    affidavit before the birth record has been sent to the local
    registrar. If the father is not named on the birth certificate
    1
    And perhaps could even be considered to constitute a finding of paternity in “an administrative proceeding
    in another state” under R.C. 3107.01(H)(3) which would specifically exclude Father from the definition of
    “putative father” under Ohio Adoption Law. This notwithstanding, we do not find it necessary to make or
    rely on any such finding in our resolution of this appeal.
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    pursuant to division (F)(1) or (2) of this section, no other
    information about the father shall be entered on the record.
    {¶16} Moreover, in reviewing the pertinent Indiana statutory authority we
    recognize that a paternity affidavit executed in accordance with Indiana Code
    section 16-37-2-2.1 “conclusively establishes the man as the legal father of a child
    without any further proceedings by a court.” I.C. 16-37-2-2.1 (p); see, also, IC 31-
    14-2-1 (stating that “[a] man’s paternity may only be established: (1) in [a paternity]
    action under this article; or (2) by executing a paternity affidavit in accordance with
    IC 16-37-2-2.1); IC 31-14-7-3 (stating that “[a] man is a child’s legal father if the
    man executed a paternity affidavit in accordance with IC 16-37-2-2.1 and the
    paternity affidavit has not been rescinded or set aside under IC 16-37-2-2.1). In
    addition, a paternity affidavit executed in accordance with IC 16-37-2-2.1 “(1)
    establishes paternity; (2) gives rise to parental rights and responsibilities of the
    person * * *, and (3) may be filed with a court by the department of child services.”
    IC 16-37-2-2.1(j).
    {¶17} Moreover, IC 16-37-2-2.1 provides a comprehensive list of specific
    contents that must be included in a valid paternity affidavit, such as a signed
    statement by both parents indicating that they understand that signing a paternity
    acknowledgment affidavit is voluntary; they understand their rights and
    responsibilities under the affidavit; the alternatives to signing the affidavit; and the
    consequences of signing the affidavit. See IC 16-37-2-2.1(e)(5). A valid paternity
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    affidavit must also contain the mother’s sworn statement asserting that the “man
    who reasonably appears to be the child’s biological father” is the child’s biological
    father and a statement by a person identified as the father attesting to a belief that
    he is the child’s biological father. See IC 16-37-2-2.1(g).
    {¶18} Thus, under both Ohio and Indiana law, where an unmarried woman
    gives birth to a child, the father’s name appears on the birth certificate only when
    he has voluntarily acknowledged paternity in writing. Furthermore, in Indiana, a
    man’s execution of a paternity affidavit conclusively establishes that the man is the
    child’s natural father, without any further judicial ratification through a court
    proceeding.
    {¶19} Here, B.G.F.’s Indiana Certificate of Birth was provided to the trial
    court. And, as the trial court observed, the birth certificate identified Father as
    B.G.F.’s biological father. We concur with the trial court’s rationale that because
    Indiana Law dictates that Father’s name could not have appeared on the birth
    certificate unless he had voluntarily executed a valid paternity affidavit meeting the
    requirements of Indiana Law, the birth certificate together with Mother’s testimony
    that such an affidavit was in circulation and was signed by her at the time of B.G.F.’s
    birth, is indeed substantial evidence of paternity. See Pula v. Pula-Branch, 8th Dist.
    Cuyahoga No. 93460, 
    2011-Ohio-4949
     (according similar weight to the father’s
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    name on the birth certificate to establish paternity in a child support action involving
    Ohio and Hawaii law).
    {¶20} Therefore, we do not find persuasive Father’s contention that he is
    considered to be a putative father under Ohio Adoption Law for purposes of these
    proceedings. Accordingly, we conclude that the trial court did not err when it found
    that Father had been properly served with notice of the adoption petition and that
    R.C. 3107.07(A) was the appropriate statute to apply to the adoption proceedings.
    Therefore, we overrule the first and second assignments of error on this basis.
    Third Assignment of Error
    {¶21} In his third assignment of error, Father challenges the trial court’s
    conclusion that Step-Father proved by clear and convincing evidence that Father
    failed to provide more than de minimis contact with B.G.F. and failed to provide
    maintenance and support to B.G.F. as required by law or judicial decree for a period
    of at least one year immediately preceding the filing of the adoption petition under
    R.C. 3107.07(A). Specifically, Father maintains the trial court’s conclusion that his
    consent to the adoption petition is not required is against the manifest weight of the
    evidence.
    Legal Standard
    {¶22} The right of natural parents to the care and custody of their children is
    one of the most precious and fundamental in law. In re Adoption of Masa, 23 Ohio
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    St.3d 163, 164 (1986) citing Santosky v. Kramer, 
    455 U.S. 745
    , 753 (1982). An
    adoption permanently terminates the parental rights of a natural parent. In re
    Adoption of Reams, 
    52 Ohio App.3d 52
    , 55 (10th Dist.1989). Therefore, “[b]ecause
    adoption terminates these rights, Ohio law requires parental consent to an adoption
    unless a specific statutory exemption exists.” In re Adoption of A.N.B., 12th Dist.
    Preble No. CA2012-04-006, 
    2012-Ohio-3880
    , ¶ 5 citing In re Caudill, 4th Dist.
    Jackson No. 05CA4, 
    2005-Ohio-3927
    , ¶ 14.
    {¶23} As previously discussed, the pertinent statutory provision in
    determining whether Father’s consent to Step-Father’s adoption petition is required
    is contained in R.C. 3107.07(A), which 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 preceding either the filing of the
    adoption petition or the placement of the minor in the home of the
    petitioner.
    {¶24} R.C. 3107.07(A). “R.C. 3107.07(A) is written in the disjunctive.” In
    re Adoption of H.R., 3d Dist. Logan No. 8-14-15, ¶ 23. “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
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    need for a parent’s consent. ” (Emphasis sic.) Id.; see also In re Adoption of A.H.,
    9th Dist. Lorain No. 12CA010312, 
    2013-Ohio-1600
    , ¶ 9.
    {¶25} The Supreme Court of Ohio has articulated a two-step analysis for
    probate courts to employ when applying R.C. 3107.07(A). In re Adoption of M.B.,
    
    131 Ohio St.3d 186
    , 
    2012-Ohio-236
    , ¶ 23. The first step involves the factual
    question of whether the petitioner has proven, by clear and convincing evidence, the
    natural parent failed to provide for the maintenance and support of the child or failed
    to have more than de minimis contact with the child. 
    Id.
     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. Cross v. Ledford, 
    161 Ohio St. 469
     (1954), paragraph three of the
    syllabus. “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. at ¶ 25. The term
    abuse of discretion connotes more than an error of law or judgment; it implies that
    the court’s attitude is unreasonable, arbitrary, or unconscionable. Blakemore v.
    Blakemore, 
    5 Ohio St.3d 217
     (1983).
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    {¶26} If a probate court makes a finding that the parent failed to support or
    contact the children, the court proceeds to the second step of the analysis and
    determines whether justifiable cause for the failure has been proven by clear and
    convincing evidence. In re Adoption of M.B., 
    131 Ohio St.3d 186
    , 
    2012-Ohio-236
    .
    The question of whether justifiable cause for the failure to contact the child 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.” 
    Id.
     “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.” (Internal quotations omitted.) In re Adoption of L.C.W.,
    12th Dist. Butler No. CA2014-08-169, 
    2015-Ohio-61
    , ¶ 14. In so doing, we must
    be mindful that the probate court is in the best position to observe the demeanor of
    the parties and assess the credibility and accuracy of the testimony.
    Evidence at the Hearing
    {¶27} The following evidence pertaining to the issue of whether Father’s
    consent to Step-Father’s Petition for Adoption of B.G.F. is not required under R.C.
    3107.07(A) was adduced at the evidentiary hearing before the trial court. Step-
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    Father presented the testimony of his wife, B.G.F.’s Mother. Mother testified that
    she and Father lived together for several years prior to B.G.F.’s birth. However,
    during her pregnancy with B.G.F., Father was in a relationship with someone else.
    Mother explained that at the time of B.G.F.’s birth she lived with Father’s mother
    in Indiana (“Paternal Grandmother”). Mother testified that Father had a history of
    being physically violent towards her.      She recalled that in the Fall of 2018,
    approximately two weeks after B.G.F. was born, Father grabbed her by the throat
    while she was holding the car seat with B.G.F. in it. Specifically, she stated that “I
    still had stitches from my c-section. [Father] told me to bring him some tapioca
    pudding and I didn’t do it. He was on his way out and he attacked me when I was
    holding my newborn son in a car seat and told me to shut that little bastard up before
    he killed him.” (Tr. at 18). Two days later Mother moved to her parents’ home in
    Shelby County, Ohio with B.G.F. Shortly after moving to Ohio, Mother began a
    relationship with Step-Father. Mother and Step-Father moved in together and lived
    next door to Mother’s parents (“Maternal Grandparents”).
    More Than De Minimis Contact
    {¶28} Mother testified that she had not seen Father since September 2015.
    At that time, Father asked to see B.G.F. and Mother facilitated Father’s visitation
    with B.G.F. at Maternal Grandparents’ house. Mother explained that she told Father
    he could see B.G.F. whenever he wanted provided that he visited B.G.F. at Maternal
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    Grandparents’ house while under their supervision and that he did not take B.G.F.
    away from the home. Mother’s testimony regarding this interaction with Father was
    corroborated by Maternal Grandparents who were both present at the time.
    Maternal Grandparents each testified that they offered for Father to come to their
    home so that he could regularly visit with B.G.F., which Father did on one occasion.
    Mother and Maternal Grandparents confirmed that Father never returned to exercise
    visitation with B.G.F.
    {¶29} However, Mother remained in contact with Paternal Grandmother who
    regularly visited B.G.F. at Maternal Grandparents’ home. Mother also stated that
    she also frequently facilitated video chats via FaceTime between Paternal
    Grandmother and B.G.F. Mother explained that the video chats were always
    completed by her calling Paternal Grandmother’s phone. Mother recalled that one
    time Father entered the same room as Paternal Grandmother while she was video
    chatting with B.G.F. The video chatting session ended shortly thereafter.
    {¶30} For his part, Father acknowledged that he had only seen B.G.F. two
    times since Mother left Indiana and claimed that he video chatted with B.G.F. less
    than twenty times between September 2015 and July 2017. He recalled that the
    video chats lasted from one to ten minutes. Father explained that the video chats
    took place on Paternal Grandmother’s phone because Mother had blocked his phone
    number.    Father claimed Mother secretly facilitated FaceTime chats between
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    himself and [B.G.F.] unbeknownst to Step-Father because Step-Father did not like
    Father. He recalled that during these conversations if Step-Father came home
    Mother would disconnect the video chat or ask Paternal Grandmother to call her
    back and speak to B.G.F. without the video component. Father also claimed that
    two weeks before Mother married Step-Father in September of 2017, within the
    relevant one-year statutory period, Mother allowed B.G.F. to Facetime with him and
    B.G.F. called him “Daddy.” Father also claimed that Mother sent him voice
    recordings of B.G.F. calling him “Daddy,” but Father did not bring the recordings
    to court as evidence for the hearing.
    {¶31} To the contrary, Mother denied that she facilitated video chat
    interactions specifically between Father and B.G.F., and claimed that the
    arrangements were exclusively made so that Paternal Grandmother could maintain
    contact with B.G.F. Mother further testified that Father had not attempted to
    participate in the FaceTime chats or attempted to otherwise see B.G.F. within the
    relevant one-year statutory time period prior to the filing of the adoption petition in
    October of 2017. Paternal Grandmother also provided testimony about these
    interactions on FaceTime. She estimated that since October 2016 she had five or
    six FaceTime conversations with B.G.F. and stated that the majority of the time the
    chats were arranged between Mother and herself, and that some of the time Father
    just happened to be present. (Tr. at 134).
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    {¶32} Father did not dispute that he had been physically abusive toward
    Mother in the past. Father also acknowledged that Maternal Grandparents had
    offered to facilitate supervised visitations between him and B.G.F. in their home,
    but he claimed that he felt “real uncomfortable” being at the home because he knew
    that Maternal Grandmother did not like him. (Tr. at 91). Father also stated that he
    did not like the conditions Mother put on his visitations with B.G.F. With regards
    to seeking visitations, Father admitted that “I guess it’s true that I didn’t make an
    effort. I tried to renegotiate that, that was my effort.” (Tr. at 95). Father further
    admitted that he had not filed a custody action to enforce his parental rights in court.
    Maintenance and Support
    {¶33} With regard to support, Mother stated that even though Father was at
    the hospital at the time of B.G.F.’s birth, Father did not contribute to the medical
    expenses related to the birth. Rather, those expenses were paid by Medicaid.
    Mother further stated that there was never a child support or custody order in place.
    However, Mother testified that other than two small toys that Father sent with
    Paternal Grandmother when she visited B.G.F. during his first year, Father had not
    paid for clothing or diapers for B.G.F., and had never sent a birthday or Christmas
    card to B.G.F. On the other hand, Mother explained that Paternal Grandmother had
    given B.G.F. several gifts and had given Mother money for B.G.F. Specifically,
    Mother recalled that in the year preceding the filing of the adoption petition Paternal
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    Grandmother gave B.G.F. a swing set and two cashier’s checks in the amount of
    $50.00 each for his birthday. Mother stated that the gifts were always clearly from
    Paternal Grandmother and not from Father. For instance, Mother testified that the
    order form with the swing set given to B.G.F. indicated that Paternal Grandmother
    was the purchaser.
    {¶34} Father maintained that he paid for the majority of the gifts and money
    given to B.G.F. when Paternal Mother visited him. For instance, Father claimed
    that he paid for eighty percent of the swing set given to B.G.F. in the Summer of
    2016 and that he purchased the two fifty dollar cashier checks for B.G.F.’s birthday
    in 2016. Father claimed he did not attempt to make Mother aware that the gifts
    were from him because he knew that Step-Father did not like him and was afraid it
    would jeopardize Paternal Grandmother’s access to B.G.F. A copy of the cashier’s
    checks were presented as evidence at trial. The exhibit indicated that the checks
    were issued in August of 2016 and cashed in November of 2016. Despite Mother’s
    testimony that the checks were from Paternal Grandmother’s bank, Father’s name
    appeared on the checks as the remitter. Paternal Grandmother provided testimony
    supporting Father’s stance that he paid for most of the gifts she brought to B.G.F.
    when she visited him.
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    Trial Court’s Ruling
    {¶35} The trial court made the following findings in its judgment entry
    concluding that Father’s consent to the adoption petition is not required under R.C.
    3107.07(A). Specifically, with regard to Father’s lack of contact the trial court
    found that:
    In this case, [Father] concedes that he has had very little
    communication or contact with [B.G.F.]. He has not seen [B.G.F.]
    in person since 2015. According to his testimony, he may have
    had some contact five or six times in the year before the filing of
    the adoption petition through FaceTime. [Father] claims that he
    and [Mother] arranged FaceTime conversation for him to
    communicate with [B.G.F.]. The other evidence does not support
    [Father’s] contention. His testimony suggests that contact was
    less than a minute to five minutes each. However, his claims of
    communication and contact are not credible. His testimony is
    discredited by his own witness, his mother, who indicated that
    when she was FaceTiming with [Mother] that [Father] may have
    been in the background and any communication or contact would
    have been minimal at best. It was the grandmother that was
    seeking contact with [B.G.F.], not the Father. Mother even denies
    that minimal contact.
    This court also finds that there was no justification for the failure
    to communicate. The evidence demonstrated that offers were
    made for [Father] to visit or see the child and he failed to do so.
    There was little or no evidence to suggest that [Father] was
    prevented from communicating with [B.G.F.].
    (Doc. No. 20 at 6).
    {¶36} With regard to Father’s failure to support, the trial court noted it is well
    established in Ohio Adoption Law that “[d]e minimis monetary gifts from a
    biological parent to a minor child do not constitute maintenance and support,
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    Case No. 17-18-06
    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., 
    131 Ohio St.3d 186
    , 
    2012-Ohio-236
    ,
    at ¶ 20. The trial court found that:
    In this case, the evidence is that except for two $50.00 checks no
    monetary support was provided for [B.G.F.] and, those two
    checks were issued more than one year before the filing of the
    adoption petition. Even if considered within the one year period
    those two checks hardly constitute maintenance or support. Even
    if, as now claimed, that [Father] provided funds for purchasing
    gifts given to [B.G.F.] by the grandmother those gifts were
    insufficient to be considered as maintenance and support.
    (Doc. No. 20 at 7).
    {¶37} On appeal, Father claims that the video chats he engaged in with
    B.G.F., of which the evidence indicates were merely five or six within the relevant
    statutory time period, were enough to satisfy the more than de minimis requirement
    under R.C. 3107.07(A). In the alternative, Father contends that he had reasonable
    justification for failing to have more than de minimis contact with B.G.F. due to
    Mother placing an unreasonable barrier to him visiting with B.G.F.
    {¶38} In addressing Father’s contention that his video chats with B.G.F.
    constituted more than de minimis contact for the purposes of the statute, we note
    that there was conflicting testimony as to the nature and frequency of these alleged
    video chats between Father and B.G.F. within the one-year statutory timeframe.
    While the record reveals that Father maintained that Mother secretly facilitated
    direct communication between he and B.G.F., other testimony indicated that the
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    Case No. 17-18-06
    video chats were arranged solely so that Paternal Grandmother could have contact
    with B.G.F. and Father happened to be present on occasion. As previously, stated,
    we defer to the probate court in determining factual disputes on this matter. See In
    re Adoption of A.M.L., 12th Dist. Warren No. CA2015-01-004, 
    2015-Ohio-2224
    , ¶
    11.
    {¶39} We also note that the record does not support Father’s contention that
    Mother substantially interfered with his ability to communicate with B.G.F. By his
    own admission, Father acknowledged that Mother attempted to facilitate Father’s
    visitation with B.G.F., albeit under certain conditions—i.e. at her parents’ home,
    who lived next door, and under their supervision. Mother further clarified at the
    hearing that she did not want Father or Paternal Grandmother to take B.G.F. from
    the home until B.G.F. was old enough to communicate with her and tell her what
    took place during the visits.
    {¶40} These initial conditions do not appear to be unreasonable given the
    uncontroverted testimony in the record regarding the physical violence between
    Mother and Father when they lived at Paternal Grandmother’s home in Indiana.
    Moreover, despite the acrimonious history between Father and Mother in the past,
    Maternal Grandparents, who resided next door to Mother and B.G.F., remained
    willing to host Father at his convenience so that he could build a relationship with
    B.G.F., which Father chose not to do. Notably, the record indicates that Paternal
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    Case No. 17-18-06
    Grandmother frequently visited with B.G.F. in Ohio and stayed overnight at
    Maternal Grandparents during several of these visits. See In re Adoption of J.F.R.-
    W., 7th Dist. Belmont No. 16 BE 0045, 
    2017-Ohio-1265
    , ¶ 44-45 (stating non-
    custodial parent’s knowledge of residence of child weighs heavily against finding
    custodial parent prevented contact).
    {¶41} As for the issue of maintenance and support, the trial court’s
    conclusion that Father only provided two fifty dollar checks to Mother for gifts to
    B.G.F. was supported by the record. As previously discussed, “[d]e 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., 
    131 Ohio St.3d 186
    , 
    2012-Ohio-236
    , at ¶ 20. Again, even though father claimed that he paid
    for the majority of the gifts given to B.G.F. by Paternal Grandmother, the trial court
    was free to believe Mother’s testimony that the gifts were in fact from Paternal
    Grandmother. “A probate judge has discretion to determine whether the biological
    parent provided support as contemplated by R.C. 3107.07(A) ‘and his or her
    judgment should not be tampered with absent an abuse of discretion.’ ” In re
    Adoption of M.B. at ¶ 21, citing In re Adoption of Bovett, 33 Ohio St.3d at 107; see
    also In re Adoption of Charles B., 
    50 Ohio St.3d 88
     (1990), paragraph three of the
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    Case No. 17-18-06
    syllabus (“adoption matters must be decided on a case-by-case basis through the
    able exercise of discretion by the trial court”).
    {¶42} The record clearly indicates that the trial court chose not to believe
    Father’s testimony. As noted above, the trial court is in the best position to observe
    the demeanor of the parties, to assess their credibility, and to determine the accuracy
    of their testimony. In re Adoption of Holcomb, 
    18 Ohio St.3d 361
     (1985). From the
    testimony and the evidence presented, we find no abuse of discretion in the trial
    court’s conclusion that Step-Father proved by clear and convincing evidence that
    Father had failed without justifiable cause to provide more than de minimis contact
    with B.G.F or to provide for the maintenance and support of B.G.F. as required by
    law or judicial decree for a period of at least one year immediately preceding either
    the filing of the adoption petition. Accordingly, the third assignment of error is
    overruled.
    {¶43} For all these reasons, the assignments of error are overruled and
    judgment of the trial court is affirmed.
    Judgment Affirmed
    WILLAMOWSKI, P.J. and PRESTON, J., concur.
    /jlr
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