In re C.D.G. , 2020 Ohio 2959 ( 2020 )

[Cite as In re C.D.G., 2020-Ohio-2959.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
:
:
IN THE MATTER OF THE ADOPTION : Appellate Case Nos. 28664 & 28665
OF: C.D.G. & N.A.G. :
: Trial Court Case Nos. 2019-ADP-50
: 2019-ADP-51
:
: (Appeal from Common Pleas
: Court - Probate Division)
:
...........
OPINION
Rendered on the 15th day of May, 2020.
...........
JON PAUL RION, Atty. Reg. No. 0067020 & CATHERINE H. BREAULT, Atty. Reg. No.
0098433, 130 West Second Street, Suite 2150, Dayton, Ohio 45402
Attorneys for Appellant, D.M.
CYNTHIA WESTWOOD, Atty. Reg. No. 0079435, 1 South Main Street, Suite 1300,
Dayton, Ohio 45402
Attorney for Appellee, E.M.
.............
HALL, J.
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{¶ 1} Father appeals from the trial court’s judgment entry finding that his consent
to the adoption of his children was not required because he had failed, without justifiable
cause, to have more than de minimis contact with them or to provide for their maintenance
and support for at least one year prior to the filing of an adoption petition.1
{¶ 2} In his sole assignment of error, Father contends the trial court erred in finding
that he lacked justifiable cause for failing to support or to have more than de minimis
contact with his children.
{¶ 3} The record reflects that Father, who resides in California, is the biological
father of the two children at issue. In late 2016, the children’s Mother moved with them
from California to Ohio. She later married a man named E.G. (“Stepfather”) in November
2017. On May 6, 2019, Stepfather filed a petition in Montgomery County Probate Court
seeking to adopt the two children. Father objected to the petition. The matter proceeded
to an October 28, 2019 hearing before the trial court. Witnesses at the hearing included
Father, Mother, the children’s maternal grandmother, and the children’s paternal
grandmother. The sole contested issue at the hearing was whether Father’s consent to
adoption was not required under R.C. 3107.07(A) because he had failed, without
justifiable cause, to have more than de minimis contact with the children or to provide for
their maintenance and support for at least one year immediately preceding the filing of
1 The present case actually involves two consolidated appeals by Father. Montgomery
App. No. 28664 is Father’s appeal from Montgomery P.C. No. 2019-ADP-50, which
involved an adoption petition involving one of his children. Montgomery App. No. 28665
is Father’s appeal from Montgomery P.C. No. 2019-ADP-51, which involved an adoption
petition involving his other child. The two cases were heard together and decided the
same day by the trial court.
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the petition. Following the hearing, the trial court filed separate judgment entries in which
it held that Stepfather had proven by clear and convincing evidence Father’s failure to
have more than de minimis contact with the two children or to provide maintenance and
support for them during the relevant time. The trial court also held that Stepfather had
proven by clear and convincing evidence that Father lacked justifiable cause for his failure
to have more than de minimis contact with his children or to provide maintenance and
support for them. (See Dec. 3, 2019 Judgment Entry at 12, 14.)2 As a result, the trial court
held that Father’s consent to the adoption of his children by Stepfather was not required.
(Id. at 14.)
{¶ 4} This court recently set forth the law governing the present appeal in In re
Adoption of J.R.J., 2d Dist. Darke No. 2019-CA-12, 2019-Ohio-4701, as follows:
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 E.E.R.K., 2d Dist. Miami No. 2013 CA 35, 2014-Ohio-1276,
¶ 16. Unless consent is not required under R.C. 3107.07, a petition to adopt
a minor may be granted only if written consent to the adoption has been
executed by certain parties, including the minor’s father. R.C. 3107.06.
“ ‘Any exception to the requirement of parental consent [to adoption] must
be strictly construed so as to protect the right of [biological] parents to raise
and nurture their children.’ ” In re Adoption of M.M.R., 2d Dist. Champaign
2 For ease of reference, all citations herein are to the trial court’s December 3, 2019
Judgment Entry in Montgomery P.C. No. 2019-ADP-50, which involved one of the two
children. We note that the trial court filed a nearly identical December 3, 2019 Judgment
Entry in Montgomery P.C. No. 2019-ADP-51, which involved the other child.
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No. 2017-CA-12, 2017-Ohio-7222, ¶ 5, quoting In re Adoption of
Schoeppner, 46 Ohio St.2d 21, 24, 345 N.E.2d 608 (1976) (Other citation
omitted.) The party who contends that consent is not required for the
adoption has the burden of proof throughout the proceeding. In re Adoption
of M.G.B.E., 154 Ohio St.3d 17, 2018-Ohio-1787, 110 N.E.3d 1236, ¶ 38-
39, citing In re Adoption of Holcomb, 18 Ohio St.3d 361, 368, 481 N.E.2d
613 (1985), paragraph four of the syllabus.
The exceptions for when parental consent is not required for the
adoption of a minor are set forth in R.C. 3107.07. Section (A) of that statute
states, in pertinent part, that consent to adoption is not required from the
parent of a minor when:
[I]t 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.
R.C. 3107.07(A).
When applying R.C. 3107.07(A), probate courts undertake a two-
step analysis. “The first step involves deciding a factual question or
questions: whether the parent had failed to provide for the support and
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maintenance of a minor child or had failed to have more than de minimis
contact with the child.” M.M.R. at ¶ 7. “Probate courts have broad discretion
over these factual determinations, which will not be disturbed absent an
abuse of discretion.” (Citations omitted.) Id.If a probate court finds that a parent failed to provide maintenance
and support or failed to have less than [sic] de minimis contact with the child,
the court's second step is to determine whether a lack of justifiable cause
for the failure has been proven by clear and convincing evidence. “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 [fact] 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.
“Once the petitioner has established, by clear and convincing
evidence, that the biological parent has failed to communicate with or to
support the child for the one-year period, the burden of going forward with
evidence shifts to the biological parent to show some facially justifiable
cause for the failure.” In re Adoption of R.M.Z., 2d Dist. Montgomery No.
23511, 2009-Ohio-5627, ¶ 11, citing In re Adoption of Bovett, 33 Ohio St.3d
102, 515 N.E.2d 919 (1987), paragraph two of the syllabus. “The burden of
proof, however, remains at all times with the petitioner, who must establish
the lack of justifiable cause by clear and convincing evidence.” Id., citing
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Bovett.
“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.” M.M.R., 2d Dist. Champaign No. 2017-CA-12,
2017-Ohio-7222, at ¶ 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.
Id. at ¶ 7-13.
{¶ 5} In the present case, Father concedes his failure to have contact with his
children and his failure to provide for their maintenance and support during the one-year
period immediately preceding Stepfather’s adoption petition. Father argues, however,
that the trial court erred in finding that Stepfather had proven a lack of justifiable cause
on Father’s part by clear and convincing evidence. Father insists that Mother significantly
interfered with and impeded his ability to contact and support his children. For that reason,
Father insists that he did have justifiable cause for failing to have contact with and support
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his children during the relevant one-year period.
{¶ 6} Upon review, we note that Father, Mother, and the maternal and paternal
grandmothers provided occasionally conflicting testimony regarding Father’s efforts to
contact his children and Mother’s alleged interference with that effort. In its role as trier of
fact, the trial court adequately resolved the relevant conflicts through detailed findings of
fact, which are supported by testimony presented at the October 28, 2019 hearing. 3
Those factual findings, which we will accept for purposes of our analysis herein, are as
follows:
CDM was born on December 30, 2009 in Moreno Valley, California.
Father is identified as CDM’s legal father on his birth certificate. Mother and
Father had an on-again, off-again relationship for several years in
California, but were never married. In 2010, Mother and Father travelled to
Columbus, Ohio with CDM to visit Mother’s family, some of whom had
relocated from California, including Maternal Grandmother.
On February 2, 2013, Mother gave birth to a second child * * *
(“NAM”). Father is also listed as NAM’s legal father on his birth certificate.
While Father never established court-ordered parenting time with CDM,
Father and Mother lived together with their children at different periods of
time at Father’s parents’ house. In addition, Father continued at times to
live with Mother and the children after Mother moved to her own place.
On January 29, 2014, Mother filed a Petition to Establish Parental
3 We note that the trial court’s factual findings referred to Father’s children by using their
initials with his last name (C.D.M. and N.A.M.). The case captions, however, refer to the
children by their initials if Stepfather adopted them (C.D.G. and N.A.G.).
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Relationship in the Superior Court of California, Riverside County. In the
petition, among other things, Mother sought an order from the court granting
her joint and physical custody of CDM and [NAM] (collectively, “the
children”). Upon Mother’s filing of the petition, the court issued a Standard
Restraining Order that restrained Mother from removing the children from
the State of California without either the signed written consent of Father or
the court. The court notified both Mother and Father that the restraining
order would remain in effect until judgment was issued, the petition was
dismissed, or the court ordered otherwise. Pursuant to an order setting a
status conference for November 24, 2014, the court further ordered the
parties to file notice with the court of any change in their residence, email
address, or telephone number.
Despite Mother filing the petition, Mother and Father renewed their
relationship in May 2014. Neither Mother nor Father appeared at the status
conference. In addition, Mother did not take any further action with respect
to the petition. The petition remained pending in the Superior Court of
California until the court eventually dismissed it without prejudice on April
23, 2019 after Mother failed to appear at a hearing scheduled for the same
date to show cause for her failure to bring the matter to trial or judgment.
In November 2016 Maternal Grandmother called Father from her cell
phone number to notify him that Mother, who was pregnant with her third
child, had been hospitalized. [Footnote omitted.] One week later and while
still pregnant, Mother departed California with the children and flew to
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Columbus, Ohio where they stayed with Maternal Grandmother, who
supported Mother and the children for one year. The parties presented
conflicting testimony regarding Mother’s reasons for travelling to Columbus
and the proposed length of her stay. Mother testified that she and Father
had a conversation about the two of them moving to Ohio. Paternal
Grandmother testified that initially Mother was only supposed to be in Ohio
for two weeks to visit Maternal Grandmother for Thanksgiving but later
decided to extend her stay over the Christmas holiday. Regardless of the
reason, Mother remained in Columbus and never returned to California to
live. Prior to Mother’s move to Ohio, Father had only seen CDM maybe two
or three times during the months of October and November 2016. Father
had been living with Mother and the children in a home owned by Maternal
Grandmother in Perris, California but moved out of the home in October
2016.
When Mother moved to Ohio, she maintained the same cell phone
number she had in California. While Paternal Grandmother communicated
with Mother almost every day after she moved to Columbus, Father only
called Mother twice and did not send her any text messages during
November 2016. Indeed, Father did not call Mother to speak to CDM on
Thanksgiving or Christmas in 2016 nor on CDM’s birthday on December 30,
2016. He did not send CDM a Christmas or birthday present that year. In
contrast, Paternal Grandmother bought winter clothes for CDM and sent
them to Mother in December 2016 to an address in Columbus that Mother
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provided to her. Moreover, while Father testified that he only spoke to
Mother or CDM three or four times by phone or FaceTime chat between
November 2016 and March 2017, Paternal Grandmother admitted to having
had several phone calls or FaceTime chats with CDM during this same
period of time.
Father’s last contact with CDM was during a FaceTime chat that
Paternal Grandmother initiated on [N.A.M.’s] birthday, February 2, 2017.
Mother abruptly terminated this FaceTime chat after becoming upset with
Father for telling the children that he was not able to see them. After
February 2, 2017, Mother and Father had no further conversations by
telephone, and instead communicated by email.
On March 4, 2017, Mother emailed a message to Father indicating
that she intended to move on with her life and wanted to know if Father
desired to co-parent for the sake of the children. Seven days later, on March
11, 2017, Father responded by email to inform Mother that he had just been
released from jail and to ask her if he can have the children’s address so he
can send them robots and some money. Father also asked Mother for a
good time to call. On March 15, 2017, Father sent Mother another email
message stating that he has been calling and emailing but has not received
a response. The next day, March 16, 2017, Mother responded by indicating
in one email that she had changed her phone number because Father failed
to call her on March 6 as he had promised. In another email also sent on
March 16, 2017, Mother told Father she had nothing more to say to him and
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to stop contacting her. Mother further instructed Father to call Maternal
Grandmother on Maternal Grandmother’s phone on Friday afternoons if he
wanted to speak to the children. Mother concluded the email by telling
Father to “have a good life.”
Upon receiving Mother’s email, Father immediately responded that
he did not have Maternal Grandmother’s phone number. Mother did not
reply. When Father asked again for Maternal Grandmother’s number on the
following day, March 17, 2017, Mother still did not respond. While Mother’s
cell phone number was disconnected on or about March 16, 2017, her email
address did not change. Father never emailed Mother again after March 17,
2017.
In May 2017 Stepfather, who was also living in California where he
met Mother, moved to Columbus to live with Mother and the children at
Maternal Grandmother’s home. In June 2017, they all moved [to] Dayton,
Ohio to live together. In connection with the move, Mother completed and
submitted a change of address form to the United States Postal Service
(“USPS”) to have her mail forwarded to her new address.
Sometime after Mother’s phone was disconnected in March 2017,
Paternal Grandmother and Father located Lisa, a friend of Mother, and
asked that she call Mother on their behalf. While Mother did not
subsequently call either Paternal Grandmother or Father, Paternal
Grandmother did obtain a phone number from Lisa that purportedly
belonged to Maternal Grandmother. Despite making approximately twenty
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calls to the number Lisa provided to her, Paternal Grandmother never
received an answer or a return phone call from Maternal Grandmother or
Mother.
Father’s additional attempts to locate Mother and the children
included seeking assistance from the local police department in California
and visiting the last school the children attended before leaving California.
Father and Paternal Grandmother also went to Mother’s place of
employment in California to determine Mother’s whereabouts. However,
none of these visits resulted in Father or Paternal Grandmother making
contact with Mother or the children.
When Father and Paternal Grandmother visited the home Maternal
Grandmother owns in Perris, California where Mother last resided before
moving to Ohio, they asked the tenant of the home (who is also Mother’s
relative) to contact Mother on their behalf. However, like before, neither
Father nor Paternal Grandmother received a return call from Mother.
Paternal Grandmother made several additional trips to Maternal
Grandmother’s Perris, California home to see if the children might be
visiting. Paternal Grandmother, accompanied by Father, made a final
unsuccessful stop by the home in December 2018 to see if the children were
staying there for the holidays.
(December 3, 2019 Judgment Entry at 2-7.)4
4The findings of fact quoted above are from the trial court’s judgment entry in Case No.
2019-ADP-50, which involved child C.D.M. For that reason, the trial court focused on
Father’s contacts with C.D.M. The trial court made nearly identical findings of fact in Case
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{¶ 7} After making the foregoing factual findings, the trial court recognized that “a
custodial parent’s relocation to another state and refusal to provide contact information to
both the non-custodial parent and any persons with whom the non-custodial parent is in
contact may constitute justifiable cause” for a lack of contact. (Id. at 8, citing Holcomb, 18
Ohio St.3d 368, 369, 481 N.E.2d 613.) Although Mother admittedly relocated herself and
the children from California to Ohio, the trial court reasoned that she “did not refuse to
provide contact information to Father when she relocated.” (Id. at 9.) The trial court noted
that Mother had the same cell phone number from November 2016, when she moved to
Ohio, to March 2017, when it was disconnected. (Id.) The trial court observed that Father
called Mother on her cell phone twice in November 2016 and spoke to Mother or the
children a few times by phone or FaceTime chat between November 2016 and March
2017. (Id.) The trial court also pointed out that in December 2016 paternal grandmother
had sent a package of clothes to a Columbus, Ohio address Mother had provided. The
trial court noted that Father never mailed anything to that address. Nor did he attempt to
determine or confirm whether it was Mother’s address. (Id. at 9-10.) The trial court also
stated that Father knew Mother had relatives in Columbus but did not try to locate or
contact any of them. (Id. at 10.)
{¶ 8} Even after Mother’s cell phone was disconnected in March 2017, the trial
court reasoned that Father had other ways to contact her. In particular, the trial court
No. 2019-ADP-51, which involved child N.A.G. In that case, the trial court focused on
Father’s similar contacts with N.A.G. For present purposes, the trial court’s factual
findings in the two cases were the same in all relevant respects. The factual findings in
both cases established that Father had no contact whatsoever with either child during the
one year preceding Stepfather’s adoption petition. The factual findings in both cases also
set forth the same conduct with respect to Father’s efforts to establish contact with the
children and Mother’s actions in response.
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pointed out that Mother kept the same email address after March 16, 2017, when she told
him not to contact her anymore and to contact maternal grandmother instead. The trial
court noted that Father never again emailed Mother after March 17, 2017. (Id.)
{¶ 9} Regarding the contact efforts that Father did make, the trial court found that
they did not establish justifiable cause for his lack of contact with the children during the
one year preceding the adoption petition. In support, the trial court reasoned:
* * * The attempts Father and/or Paternal Grandmother took to locate
[the children] included making several visits to Mother’s last known
California address, which was at a home owned by Maternal Grandmother
in Perris, California. However, the evidence demonstrates that Father never
searched public records to find out the tax mailing address for Maternal
Grandmother’s California property. Had Father searched the public records
he would have likely discovered Maternal Grandmother’s Ohio address
since Maternal Grandmother testified that the bills for the California property
come to her at the home she owns in Ohio.
Father also testified that he did not have Maternal Grandmother’s cell
phone number to contact [the children] as Mother had instructed him to do
in her final email to Father on March 16, 2017. Father asked Mother more
than once to give him Maternal Grandmother’s phone number, but she
never responded. Mother testified that she ignored Father’s request
because she thought Father already had Maternal Grandmother’s phone
number. While it would not have required any effort on Mother’s part to give
Father Maternal Grandmother’s phone number even if she did believe
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Father already had it, the evidence nonetheless shows that Father did
indeed have or had access to Maternal Grandmother’s number, which had
not changed in over three years.
Just one week prior to Mother’s departure for Columbus, Maternal
Grandmother contacted Father from her cell phone to notify him that Mother
had been hospitalized. Moreover, Paternal Grandmother testified that she
had obtained Maternal Grandmother’s cell phone number from “Lisa” and
that she and Father had tried unsuccessfully at least twenty times to contact
Maternal Grandmother at the number. However, Maternal Grandmother
testified that she is not aware of Father or anyone in his family contacting
her on her cell phone. While she did recall receiving one phone call from
someone calling from Paternal Grandmother’s phone, she did not recognize
the voice of the person on the other line.
In addition, the evidence demonstrates that Father never attempted
to contact Maternal Grandmother via social media despite Maternal
Grandmother’s testimony that she has a Facebook account and that her
page is public. While Paternal Grandmother’s testimony revealed that she
had communicated with Mother via Instagram, Father never reached out to
Mother via her social media.
When Mother moved to Dayton [in] June 2017, she completed and
submitted a change of address form to USPS so that her mail could be
forwarded to her new address. Accordingly, if Father had taken appropriate
steps to locate Mother in Columbus, any correspondence or gifts that he
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could have sent for [the children] at Mother’s Columbus residence would
have subsequently been forwarded to Mother at her Dayton address. Father
testified that he took no further action on his own initiative to locate [the
children] after March 2017.
Based on the foregoing, the Court finds that Stepfather has met his
burden of showing by clear and convincing evidence that Father failed
without justifiable cause to prove more than de minimus contact with [the
children] for a period of at least one year immediately preceding the filing of
the Petition * * * to wit: between May 6, 2018 and May 6, 2019.
(December 3, 2019 Judgment Entry at 10-12.)
{¶ 10} After reviewing the trial court’s findings of fact and weighing all the evidence
and reasonable inferences, we believe that the trial court reasonably found, by clear and
convincing evidence, that Father's failure to contact his children was without justifiable
cause. Although Father had established and maintained some degree of a relationship
with them in California when he lived with Mother and the children for a period of time, he
moved out in October 2016. He then saw the children two or three more times before
Mother relocated to Columbus, Ohio a month later to live with maternal grandmother.
When Mother moved to Ohio, she did not have her California mail forwarded. (Tr. at 97.)
Father had limited contact with Mother or the children in the months immediately following
the move. He communicated with Mother and the children only a few times between
November 2016 and March 2017. His last communication with the children occurred
during a February 2, 2017 FaceTime chat. Father started crying during this conversation
claiming he could not be with them. Mother responded by terminating the chat because
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she felt it was “inappropriate,” testifying that it was her intention to “protect their
innocence.” (Tr. at 134.)
{¶ 11} On March 4, 2017, Mother emailed Father and asked whether he was
interested in a co-parenting relationship with the children. Father did not respond until a
week later by email on March 11, 2017, explaining that he had just been released from
jail. He asked for the children’s address so he could send toy robots and money. He also
inquired about a good time to call. Father emailed again on March 15, 2017, stating that
he had been calling but had not received a response. The following day, Mother emailed
Father, telling him she had changed her phone number, asserting that she had nothing
more to say to him, and asking him to stop contacting her. She proposed Father’s calling
maternal grandmother on “Friday afternoons” if he wanted to speak to the children and
advised him to “have a good life.” Father immediately responded that he did not have
maternal grandmother’s phone number. Mother did not respond. Father requested
maternal grandmother’s phone number again the next day. Mother still did not respond.
At that point, Father stopped trying to contact Mother by email.
{¶ 12} Following the foregoing attempts at communication with Mother, Father
and paternal grandmother located a friend of Mother’s in California named “Lisa.” They
attempted to establish contact with Mother through Lisa but were unsuccessful. Father
and paternal grandmother did obtain from Lisa a telephone number purportedly belonging
to maternal grandmother. In its analysis the trial court noted that although paternal
grandmother testified that she made approximately twenty calls to that number but never
received a response from Mother or maternal grandmother, the court also observed that
maternal grandmother testified she only received one phone call from paternal
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grandmother’s phone number, to which she did not respond because she did not
recognize the voice.
{¶ 13} It is apparent to us from the record that it was paternal grandmother, not
father, who was the primarily involved in attempting to contact the children.
{¶ 14} The trial court also found, as a factual matter, that Father and paternal
grandmother sought assistance from the police department in California, contacted the
last school the children attended in California, and visited Mother’s last place of
employment in California—all in an effort to learn how to contact her and the children.
The trial court also found that Father and paternal grandmother contacted the tenant of a
home maternal grandmother owned in California and made multiple trips to the home in
an effort to get in touch with Mother or the children. We additionally note that Father
testified he did not try to find out where Mother was living after March 2017. (Tr. at 174.)
He also never searched online. (Tr. at 175.)
{¶ 15} Father does not deny that he had no contact with, and did not provide
support for, the children for one year prior to the filing of the petition on May 6, 2019.
There is no question that Father had no contact and did not support the children for two
years before the petition was filed. Correspondingly, there is no evidence that Mother
interfered with or discouraged contact or support during that time. It is Father’s contention
that the events of March 2017 constituted significant interference and significant
discouragement, which justified his lack of contact from May 2018 until May 2019, the
one year prior to the filing of the petition. That contention is not contrary to a justifiable
cause evaluation allowed by case law. In Holcomb, 18 Ohio St.3d 361, 481 N.E.2d 613-19-
(1985),5 the mother of the Holcomb children did not have any contact with the children
after June 1981 because she had no way to contact them. Her only attempts to find the
children after that time were driving around in neighborhoods where they were believed
to be living and trying to follow father home from work. The adoption petition was filed in
August 1982. Consequently, the Holcomb holding that justifiable cause was
demonstrated for lack of communication with the children had to be related to events
justifying the lack of contact that preceded the one-year statutory time period. The
Holcomb holding that mother had justifiable cause was supported by a three-year
“protracted game of avoidance,” characterized by the lower court as “hide and seek,” Id.
at 362. We also agree with the conclusion of the Fifth District that “[a] probate court may
examine any preceding events that may have a bearing on the parent's failure to
communicate with the child, and the court is not restricted to focusing solely on events
occurring during the statutory one year period.” In re Adoption of K.O.D.K., 5th Dist.
Ashland No. 15-COA-039, 2016-Ohio-1003, ¶ 27, citing In re Adoption of L.R.K., 5th Dist.
Muskingum No. CT2014-0040, 2015-Ohio-747, citing In re Adoption of Lauck, 82 Ohio
App.3d 348, 612 N.E.2d 459 (9th Dist.1992). Therefore, we conclude that justifiable cause
may be demonstrated by events either before or during the one year prior to the filing of
the petition or a combination of both.
{¶ 16} In Father’s brief and at oral argument, Father’s counsel contended that the
circumstances here are similar to our case of In re S.B.D., 2d Dist. Miami No. 2006-CA-
25, 2006-Ohio-5133, where we reversed the trial court’s conclusion that the lack of
5 Holcomb was actually a consolidated case of separate unrelated adoptions from
different counties with different surnames which were consolidated because of similarity
of issues. Our references here are regarding the Holcomb adoption petition.
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justifiable cause had not been proven by the adoption petitioner. We believe the facts of
that case distinguish it from this one. In that case, there was a “continuous” seven-year
history of “[l]egal proceedings involving custody, visitation, and child support issues” and
a history of “not being able to resolve issues between themselves.” Id. at ¶ 6. A magistrate
noted “the tumultuous relationship of the parties” that required supervised visitation
exchanges. Id. at ¶ 9. Furthermore, Father “unilaterally” terminated court-ordered
visitation. Id. at ¶ 25. He also moved without providing his new address. Mother called
father numerous times from her phone but, if he recognized the call, he would not answer.
If she called from an unknown number “he would deny visits or any contact and would
cuss her out.” Id. at ¶ 21. In that case, Mother at least initiated sporadic efforts to have
contact with or to visit with her children.
{¶ 17} In contrast, here there was no court-ordered visitation that was violated.
When Mother moved to Columbus, she was not hiding; she maintained contact between
paternal grandmother and the children, and, through that connection, with Father. There
was evidence that Father and paternal grandmother knew of maternal grandmother’s
phone number and address, where Mother and the children were living. Although
Mother eventually moved from maternal grandmother’s residence, she submitted a postal
change of address. There was no court-ordered visitation, or even a telephone-contact
order, that was unilaterally violated. And, there was a pattern of Father’s ambivalence
and lack of individual effort to have contact with the children, other than as initiated by or
facilitated by paternal grandmother, or as initiated by Mother’s reaching out to Father in
the March 2017 email exchange. Accordingly, the analysis or result of In re S.B.D. is not
controlling.
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{¶ 18} Based on our review, the trial court’s findings and ultimate conclusions were
supported by the evidence. We are unable to conclude that the trial court “lost its way”
and created a “manifest miscarriage of justice.” The Ohio Supreme Court 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.” Holcomb, 18 Ohio St.3d 361, 481 N.E.2d 613, at paragraph
three of the syllabus. Nevertheless, the Ohio Supreme Court has refused to ascribe a
“precise and inflexible meaning” to “justifiable cause.” Id. at 367. “[T]he better-reasoned
approach would be to leave to the probate court as finder of fact the question of whether
or not justifiable cause exists.” (Citation omitted.) Id. In this case, there was evidence from
which the trial could have concluded by clear and convincing evidence that Father’s
efforts to maintain contact with and to support his children at any relevant time were
minimal at best, and non-existent at worst. The key determination was whether the
continuing failures to maintain contact with and to support the children after March 2017
were justified in light of what we view as minimal discouragement attributable to Mother.
We think the trial court did not err by determining there was a lack of justifiable cause.
Father did virtually nothing. He simply quit.
{¶ 19} After reviewing the record and weighing all the evidence and reasonable
inferences, we conclude that the trial court’s finding that Stepfather had established, by
clear and convincing evidence, that Father's failure to contact his children or to provide
maintenance and support for them was without justifiable cause was supported by the
evidence. The trial court did not err in holding that Father's consent to the adoption was
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not required.
{¶ 20} Father’s assignment of error is overruled. The judgment of the Montgomery
County Probate Court is affirmed.
.............
TUCKER, P.J. and FROELICH, J., concur.
Copies sent to:
Jon Paul Rion
Catherine H. Breault
Cynthia Westwood
Hon. Alice O. McCollum