In re Adoption of B.G.F. , 126 N.E.3d 348 ( 2018 )

[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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Case No. 17-18-06
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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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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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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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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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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