In re Adoption of O.J.B. ( 2020 )


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  • [Cite as In re Adoption of O.J.B., 
    2020-Ohio-4184
    .]
    IN THE COURT OF APPEALS
    TWELFTH APPELLATE DISTRICT OF OHIO
    WARREN COUNTY
    IN RE:                                               :   CASE NO. CA2020-01-004
    ADOPTION OF O.J.B.                          :        OPINION
    8/24/2020
    :
    :
    APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS
    PROBATE DIVISION
    Case No. 20195052
    Mother, c/o James Dearie, 12 East Warren Street, Lebanon, Ohio 45036, appellant, pro se
    Diehl & Hubbell, LLC, Kelly McKoy, 304 East Warren Street, Lebanon, Ohio 45036, for
    appellees
    M. POWELL, P.J.
    {¶ 1} Appellant, the biological mother of O.J.B. ("mother"), appeals the decision of
    the Warren County Court of Common Pleas, Probate Division, determining that her consent
    to O.J.B.'s adoption was not required. For the reasons discussed below, we affirm the
    probate court's decision.
    {¶ 2} O.J.B. was born in August 2017. Shortly after his birth, O.J.B.'s maternal
    grandparents, appellees herein, ("grandmother" and "grandfather" individually, or
    "grandparents" collectively), received temporary custody of O.J.B. through the Warren
    Warren CA2020-01-004
    County Juvenile Court. The juvenile court restored custody of O.J.B. to mother in March
    2018. Due to renewed safety concerns, grandparents again received temporary custody of
    O.J.B. through an emergency order in April 2018. At that point, mother traveled to Hawaii
    with O.J.B. In June 2018, grandparents were able to locate mother and, with the assistance
    of local law enforcement, retrieve O.J.B.. Following O.J.B.'s return to Ohio, in August 2018,
    the juvenile court granted grandparents legal custody. Mother did not appear at the hearing
    for legal custody.
    {¶ 3} Grandparents filed a petition to adopt O.J.B. on July 1, 2019. The probate
    court held a hearing in September 2019 in which mother appeared and objected to the
    adoption. The probate court chose to bifurcate the hearing on grandparents' adoption
    petition and separately address the issues of the necessity of parental consent and the
    child's best interest. In November 2019, the probate court held a hearing on the issue of
    parental consent. At this hearing, the probate court heard testimony from grandmother,
    grandfather, and mother. In addition, both parties presented several documentary exhibits,
    including the order from the juvenile court granting grandparents legal custody of O.J.B.
    and screenshots of several text message conversations between mother and grandparents.
    As a result of the hearing, the probate court determined that mother's consent to the
    adoption was not required because mother had unjustifiably failed to engage in more than
    de minimis contact with O.J.B. or to provide maintenance and support to O.J.B. in the year
    immediately preceding the filing of the adoption petition.1
    {¶ 4} Mother appeals that decision, raising one assignment of error for review.
    {¶ 5} Sole Assignment of Error:
    1. While O.J.B.'s biological father did not provide consent, he also did not appear before the probate court on
    this matter to contest the adoption. The probate court determined that the biological father's consent was not
    required pursuant to R.C. 3107.07(A). Father has not appealed that determination.
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    {¶ 6} THE TRIAL COURT ERRED BY HOLDING THAT PETITIONERS NEED NOT
    OBTAIN THE CONSENT OF MOTHER IN ORDER FOR THE PETITION FOR ADOPTION
    OF O.J.B. TO PROCEED
    {¶ 7} In her sole assignment of error, mother argues the trial court erred in
    determining that her consent to the adoption was not required. In support, she contends
    that she maintained "significant" contact with her child during the year preceding the
    adoption petition and that she had no obligation to provide support. Mother alternatively
    asserts that any failure to maintain contact was justifiable because grandfather had
    prevented her from contacting O.J.B. since February 2019, and she was unable to
    physically meet with O.J.B. because she was thousands of miles away in Hawaii. Finally,
    mother argues that any failure to provide support was justifiable because she was "barely
    making enough to support herself," had additional expenses relating to the birth and care
    of her second child, and any extra money she earned she saved to afford travel to Ohio.
    {¶ 8} Natural parents have the right to the care and custody of their children. In re
    Adoption of C.M.F., 12th Dist. Butler Nos. CA2013-06-090 and CA2013-06-091, 2013-Ohio-
    4719, ¶ 8. An adoption permanently terminates the parental rights of a natural parent. In
    re Adoption of L.C.W., 12th Dist. Butler No. CA2014-08-169, 
    2015-Ohio-61
    , ¶ 10; R.C.
    3107.15. In consideration of the natural parents' right to the care and custody of their child,
    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.
    {¶ 9} At issue here is the exemption to parental consent found in R.C. 3107.07(A).
    Parental consent to an adoption is not required by
    [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
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    Warren CA2020-01-004
    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). Plainly stated, to find this exemption applicable the probate court must
    engage in a two-step analysis: (1) determine whether the parent failed to engage in more
    than de minimis contact with the minor or failed to provide for the maintenance and support
    to the minor, and (2) determine whether the parent had justifiable cause for the failure to
    contact or provide support. In re adoption of J.F.M., 12th Dist. Butler No. CA2016-03-044,
    
    2016-Ohio-4823
    , ¶ 11. The first element is written in the alternative; as a result, the probate
    court need only find either a lack of contact with the minor or a failure to provide
    maintenance and support to the minor. In re Adoption of C.H.B., 3d Dist. Crawford No. 3-
    19-18, 
    2020-Ohio-979
    , ¶ 19; accord In re Adoption of McDermitt, 
    63 Ohio St.2d 301
    , 304
    (1980) (addressing the use of "or" in a former version of R.C. 3107.07[A] and construing its
    meaning to be disjunctive); see also In re Adoption of G.T.R., 12th Dist. Clermont No.
    CA2007-03-039, 
    2007-Ohio-3719
    , ¶ 22.
    {¶ 10} The petitioner bears the burden of proving each element by clear and
    convincing evidence. In re adoption of S.A.N., 12th Dist. Warren No. CA2019-03-025,
    
    2019-Ohio-3055
    , ¶ 8. After the petitioner has established the parent's lack of contact or
    support, the parent bears the burden of going forward with evidence to show a facially
    justifiable cause for the failure, although, the burden of proof remains on the petitioner. 
    Id.,
    citing citing In re Adoption of Bovett, 
    33 Ohio St.3d 102
    , 104 (1987).
    {¶ 11} An appellate court applies two different standards of review to the probate
    court's decision on parental consent. The probate court has discretion to determine whether
    the parent's contact with the child or provision of support met the statutory standard,
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    therefore, an appellate court reviews the probate court's determination of this element for
    an abuse of discretion. See In re Adoption of M.B., 
    131 Ohio St.3d 186
    , 
    2012-Ohio-236
    , ¶
    25. An abuse of discretion is more than an error of law or judgment, it is a decision that is
    unreasonable, arbitrary, or unconscionable. In re Adoption of A.L.S., 12th Dist. Butler No.
    CA2017-09-146, 
    2018-Ohio-507
    , ¶ 16.
    {¶ 12} For the second element, justifiable cause, an appellate court applies a
    manifest weight of the evidence standard. An appellate court will not overturn the probate
    court's determination unless it was against the manifest weight of the evidence. See In re
    Adoption of Masa, 
    23 Ohio St.3d 163
     (1986), paragraph two of the syllabus. On a manifest
    weight of the evidence review, this court examines the entire record, weighs the evidence
    and all reasonable inferences, considers witness credibility, and determines whether, in
    resolving conflicts in the evidence, the trier of fact clearly lost its way and created such a
    manifest miscarriage of justice that the judgment must be reversed and a new trial ordered.
    In re Adoption of L.C.W., 12th Dist. Butler No. CA2014-08-169, 
    2015-Ohio-61
    , ¶ 14.
    {¶ 13} Here, the probate court found that mother neither sufficiently contacted O.J.B.
    in the year preceding the adoption petition, nor provided any maintenance or support for
    O.J.B. Regarding the interaction between mother and O.J.B., the probate court observed
    that contact was sporadic. Mother directly spoke to O.J.B. on only one occasion between
    June 2018 and July 2019 via a telephone call. The court noted that mother requested to
    speak with O.J.B. through video call on two other occasions, but neither video call occurred.
    In the first instance, mother and grandparents arranged for a call in September 2018, but
    mother did not show up for the scheduled call. In the second instance, mother called
    grandparents sometime in January 2019 to arrange a video call. During this meeting mother
    became vocally argumentative with grandparents, such that grandfather ended the
    telephone call before the parties could further arrange a video call. The probate court also
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    Warren CA2020-01-004
    found that mother did not engage in any other form of communication with O.J.B.; she did
    not send emails, cards, text messages, or gifts to the minor. Finally, the probate court found
    that grandparents resided at the same address the entire period and maintained the same
    email address and telephone number.
    {¶ 14} Considering the lack of maintenance and support, the probate court found that
    mother did not provide for O.J.B.'s support or maintenance yet she had worked various jobs
    throughout the look-back period. The probate court noted that mother did not have a child
    support obligation imposed upon her by court order, but that mother had a general duty,
    pursuant to R.C. 3103.03(A), to provide support for her child. The absence of a court
    ordered child support obligation was not a legitimate reason for mother's failure to provide
    any support. Thus, the probate court found that, while mother's means to provide support
    may have been limited, it was not justifiable for her to offer nothing on behalf of O.J.B.
    {¶ 15} After review of the record, we find that the probate court did not err when it
    determined that mother's consent was not required for the adoption to proceed. Contrary
    to mother's assertion on appeal that she had "significant" contact, mother admitted at the
    hearing that she only communicated with O.J.B. on one occasion via telephone.
    Additionally, mother had no physical interaction with O.J.B. because she lived in Hawaii and
    never visited Ohio between June 2018 and July 2019. One telephone call, over the course
    of a year, is not "significant" contact. See e.g. In re Adoption of T.U., 6th Dist. Williams No.
    WM-19-012, 
    2020-Ohio-841
    , ¶ 25 (must be more effort than one time contact); see also In
    re Adoption of K.A.H., 10th Dist. Franklin No. 14AP-831, 
    2015-Ohio-1971
    , ¶ 10. Moreover,
    grandmother testified that mother never asked to speak to O.J.B. after February 2019. The
    lack of communication between mother and O.J.B. is in contrast to mother's communication
    with grandmother.      While also irregular and limited, mother stayed in touch with
    grandmother.    Grandmother testified that her contact with mother consisted of a few
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    telephone calls, 23 text messages, 11 voice mails, and several emails that went into April
    or May 2019. Regarding support provisions, mother admitted that she did not give any
    money to grandparents in support of O.J.B. or otherwise send clothing, food, or other
    supplies for O.J.B.'s maintenance. Based on the record before us, it was not unreasonable,
    arbitrary, or unconscionable for the probate court to determine that mother failed to engage
    in more than de minimis contact with the minor and failed to provide maintenance and
    support for the minor.
    {¶ 16} Turning to the next element, the record establishes that mother's failures to
    engage in more than de minimis contact with O.J.B. or to provide support for him was
    without justifiable cause. Mother argues that she was justified in not contacting O.J.B.
    because grandfather barred contact. On appeal mother argues that grandfather prevented
    contact around February 2019, however, this differs from her testimony at the hearing
    wherein she indicated grandfather prohibited her contact in the fall of 2018. The record
    further belies mother's contention that grandparents interfered with her contact because
    both grandmother and mother testified that they tried, but failed, to arrange a video call with
    O.J.B. around January 2019.        Also, mother admitted that she stayed in contact with
    grandmother into mid-2019 and grandmother never expressly told her not to contact O.J.B.
    Grandfather testified that he only spoke to mother on a few occasions during the look-back
    year. Grandfather acknowledged that he told mother to return to Ohio to care for O.J.B and
    that he refused to pay for mother's travel expenses, however, he testified that he did not
    prohibit her from contacting O.J.B. Therefore, the record shows that grandparents did not
    significantly interfere with mother's ability to contact O.J.B. See e.g. In re Adoption of A.L.S.,
    
    2018-Ohio-507
     at ¶ 26 (no substantial interference by adoption petitioner where parent
    knew where child resided, yet never visited, and only engaged in sporadic telephone calls).
    Also, mother admitted that she did not engage in other indirect forms of communication with
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    O.J.B such as postcards or emails.             Mother's argument that these indirect forms of
    communication would be futile due to O.J.B.'s age are unpersuasive. The probate court did
    not clearly lose its way in determining that mother's consent to the adoption was not required
    due to her failure to have no more than de minimis contact with O.J.B. in the one year period
    immediately preceding the filing of the adoption petition.
    {¶ 17} As to justifiable cause for failing to provide support, mother's reliance on In re
    Adoption of B.I., 
    157 Ohio St.3d 29
    , 
    2019-Ohio-2450
    , is misplaced. At issue in In re
    Adoption of B.I. was the effect of a "no-support order" on a parent's general statutory
    obligation to provide child support pursuant to R.C. 3103.03.2 Id. at ¶ 21. Where a judicial
    decree imposes an initial "no-support order" or modifies an existing order to be a "no-
    support order," that "no-support order" supersedes the parent's general statutory obligation
    and may be relied upon by the parent in a subsequent adoption action. Id. at ¶ 30. As
    such, the supreme court held that "a parent's nonsupport of his or her minor child pursuant
    to a judicial decree does not extinguish the requirement of that parent's consent to the
    adoption of the child." Id. at ¶ 1. Unlike that case, here, the probate court found that there
    was no court ordered child support obligation for O.J.B. The record supports this finding.
    Consequently, no judicial decree superseded mother's general statutory obligation.
    Mother's argument that she did not have a duty to provide support and maintenance to
    O.J.B. lacks merit.
    {¶ 18} Next, it is the "period as a whole" that the probate court must consider when
    determining whether there was justifiable cause for the parent's lack of support. In re
    adoption of Bovett, 
    33 Ohio St.3d 102
     at paragraph three of the syllabus. Moreover, "ability
    2. The supreme court defined "no-support orders" as "orders terminating previously ordered support, zero-
    support orders, and orders modifying a previously ordered support amount to zero." In re Adoption of B.I.,
    
    157 Ohio St.3d 29
    , 
    2019-Ohio-2450
     at ¶ 16 fn 1.
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    to pay is a key factor in determining whether there is justifiable cause for failure to support
    a child." In re Adoption of Masa, 23 Ohio St.3d at 167. Mother testified that she was
    employed through August or September 2018 when she stopped working to prepare for her
    second child's birth in October 2018. After the birth of her second child, she stayed home
    to nurse and care for the newborn but reentered the workforce around January or February
    2019. Mother did not explain how she provided for herself or her second child during the
    birthing and nursing period, but she acknowledged that she lived with O.J.B.'s biological
    father at some point and he contributed money to the household.             Nonetheless, the
    evidence shows that mother had means by which she could provide some support for O.J.B.
    between July 2018 to July 2019. Therefore, in considering the period as a whole, the
    probate court did not clearly lose its way when it determined there was no justifiable cause
    for mother to completely fail to contribute support.
    {¶ 19} Finally, mother acknowledged at the hearing that she was willing and able to
    provide support for O.J.B. but believed it was unnecessary to send money or supplies to
    grandparents because they did not need it or request it. As the Ohio Supreme Court has
    explained, "one of the factors which the probate court may consider in addition to ability but
    failure to pay court-ordered support is the voluntariness or intent of the parent's failure to
    make such payments." (Emphasis added.) In re Adoption of Lay, 
    25 Ohio St.3d 41
    , 43
    (1986). Here, mother's admission shows that the lack of support was an intentional decision
    to withhold funds and supplies. Accordingly, the probate court's determination that there
    was no justifiable cause for mother's failure to support O.J.B. was not against the manifest
    weight of the evidence.
    {¶ 20} In light of the foregoing, mother's sole assignment of error is overruled.
    {¶ 21} Judgment affirmed.
    S. POWELL and PIPER, JJ., concur.
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