In re Adoption of C.L.D. , 2022 Ohio 368 ( 2022 )

[Cite as In re Adoption of C.L.D., 2022-Ohio-368.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
GALLIA COUNTY
In the Matter of the Adoption of: : Case No. 21CA1
C.L.D. :
DECISION AND
: JUDGMENT ENTRY
: RELEASED 2/4/2022
______________________________________________________________________
APPEARANCES:
Warren N. Morford, Jr., Ironton, Ohio, for appellant.
Andrew J. Noe, Gallipolis, Ohio, for appellees.
______________________________________________________________________
Hess, J.
{¶1} V.C.T. appeals the judgment of the Gallia County Court of Common Pleas,
Probate Division, granting the petition of R.L.D. to adopt his child based on its
determination that V.C.T.’s consent was unnecessary, and the adoption was in the best
interest of the child. V.C.T. contends that his consent was required because he had
justifiable cause for having de minimis contact with the child during the one-year period
prior to the filing of the adoption petition. He also contends that the adoption was not in
the child’s best interest and that the trial court erred to his prejudice because he was not
transported from the Noble Correctional Institution for the hearings but instead attended
via a video conferencing service.
{¶2} We find that the trial court did not abuse its discretion in finding V.C.T. had
de minimis contact with his child and its finding that he lacked a justifiable cause was not
against the manifest weight of the evidence. According to the evidence presented at the
hearing, V.C.T. knew how to contact his child, was not significantly interfered with or
Gallia App. No. 21CA1 2
discouraged from doing so by the custodial parent, and only sent one or two letters to the
child during the relevant period. We overrule his first two assignments of error. V.C.T.
failed to make any argument in support of his third and fourth assignments of error,
therefore, in accordance with App.R. 12(A)(2), we disregard them. We affirm the trial
court’s judgment.
I. FACTS AND PROCEDURAL HISTORY
{¶3} V.C.T. married Cynthia L.D and they had one child, C.L.D., in 2007. In
2016, V.C.T. was charged with multiple felonies and was imprisoned from 2016 until
September 2021. The marriage ended in 2017. Cynthia remarried and her husband,
R.L.D., filed a petition to adopt C.L.D in March 2020. In September 2020, the trial court
held a hearing and determined that V.C.T.’s consent to the adoption was unnecessary.
In December 2020, the trial court held a hearing, determined that adoption was in the
child’s best interest, and issued a final decree of adoption on January 11, 2021. V.C.T.
appealed.
II. ASSIGNMENTS OF ERROR
{¶4} V.C.T. presents four assignments of error:
I. The trial court erred to his maternal [sic] prejudice, when it
determined, his consent was not required to the adoption of [C.L.D.].
II. The trial court erred to his material prejudice, when it found that
petitioners/appellees had met their burden proof of party [sic] under
R.C. 3107.07.
III. The trial court erred to his material prejudice, when it determined
that the best interest of [C.L.D.] would be served by granting the
subject Petition for Adoption.
IV. The trial court erred, to his material prejudice, by conducting the
hearings via Blue Jeans. At all times pertinent hereto, the appellant,
[V.C.T.], has been incarcerated. The rial [sic] counsel refused to
Gallia App. No. 21CA1 3
have appellant transported from Noble Correctional Institution to trial
court.
V.C.T. failed to include references to the record that he relies on in support of his
arguments and he failed to make any arguments in support of his third and fourth
assignments of error as required by App.R. 16(A)(3) and (7), so it would be within our
authority to summarily overrule them and affirm the trial court’s judgments. Ogle v.
Kroger Co., 4th Dist. Hocking No. 13CA22, 2014-Ohio-1099, ¶ 14, citing App.R.
12(A)(2); App.R. 16(A)(3) (stating that an appellant's brief must include “[a] statement of
the assignments of error presented for review, with reference to the place in the record
where each error is reflected”); App.R. 16(A)(7) (requiring that an appellant's brief
include “[a]n argument containing the contentions of the appellant with respect to each
assignment of error presented for review and the reasons in support of the contentions,
with citations to the authorities, statutes, and parts of the record on which appellant
relies”). Nevertheless, in the interest of justice, we will address V.C.T.’s first and second
assignments of error for which he provides a legal argument.
{¶5} However, in accordance with App.R. 12(A)(2), we disregard the third and
fourth assignments of error because V.C.T. makes no argument in support of these
assignments of error. See App.R. 12(A)(2) (“The court may disregard an assignment of
error presented for review if the party raising it fails to * * * argue the assignment
separately in the brief as required under App.R. 16(A)”); see also State v. Nelson, 4th
Dist. Ross No. 20CA3733, 2021-Ohio-2752, ¶ 8-9; Jones v. Jones, 4th Dist. Highland
No. 20CA3, 2021-Ohio-1498, ¶ 36-37; Haldy v. Hoeffel, 3rd Dist. Henry No. 7-19-08,
2020-Ohio-975, ¶ 16 (“appellate courts are not obligated to search the record or
Gallia App. No. 21CA1 4
formulate legal arguments on behalf of the parties”); Nob Hill E. Condominium Assn. v.
Grundstein, 8th Dist. Cuyahoga No. 95919, 2011-Ohio-2552, ¶ 11 (stating that an
appellate court is “not obliged to scour the record in search of evidence to support an
appellant's assignment of error”); State ex rel. Petro v. Gold, 166 Ohio App.3d 371,
2006-Ohio-943, 850 N.E.2d 1218, ¶ 94 (10th Dist.) (finding it is “not appropriate for this
court to construct the legal arguments in support of an appellant's appeal. ‘If an
argument exists that can support this assignment of error, it is not this court's duty to root
it out.’ ”).
IIl. LEGAL ANALYSIS
A. Consent for Adoption
{¶6} In his first two assignments of error, V.C.T. contends that the trial court
erred in finding that his consent to the adoption was unnecessary and that the petitioner
R.L.D. failed to show by clear and convincing evidence that V.C.T.’s consent was
unnecessary.
{¶7} R.C. 3107.07(A) provides that consent to adoption is not required where:
(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.
{¶8} R.C. 3107.07(A) involves “a two-step analysis.” In re Adoption of M.B., 131
Ohio St.3d 186, 2012-Ohio-236, 963 N.E.2d 142, ¶ 23. First, a court must consider
whether a parent failed to have more than de minimis contact with the child or failed to
support the child for a minimum of one year preceding the filing of the adoption
Gallia App. No. 21CA1 5
petition. Id. Second, if the parent failed in either respect, the court determines whether
justifiable cause exists. Id. A parent ordinarily “has justifiable cause for failing to
communicate when the custodial parent significantly interferes with or significantly
discourages communication.” In re Adoption of M.G.B.-E., 154 Ohio St.3d 17, 2018-
Ohio-1787, 110 N.E.3d 1236, ¶ 39.
{¶9} The party petitioning for adoption has the burden of proving by clear and
convincing evidence that the parent failed without justifiable cause to have more than de
minimis contact with the child. In re Holcomb, 18 Ohio St.3d 361, 368, 481 N.E.2d 613(1985). “No burden is to be placed upon the non-consenting parent to prove that his
failure * * * was justifiable.” Id.{¶10} The probate court possesses discretion in determining whether a parent
failed to have contact with the child during the one-year period. In re Adoption of
M.B. at ¶ 25; accord In the Matter of K.M.F. and K.A.F., 4th Dist. Highland Nos. 19CA1,
19CA2, 2019-Ohio-2451, ¶ 13 (“Generally, a probate court possesses discretion to
determine whether a parent failed to have contact with or support the child during the
one-year period.” citing In re Adoption of M.B. at ¶ 25). Therefore, an appellate court will
not disturb the probate court's finding concerning a parent's failure to have contact with
the child in the absence of an abuse of discretion. Id. Abuse of discretion means an “
‘unreasonable, arbitrary, or unconscionable use of discretion, or * * * a view or action that
no conscientious judge could honestly have taken.’ ” State v. Kirkland, 140 Ohio St.3d
73, 2014-Ohio-1966, 15 N.E.3d 818, ¶ 67, quoting State v. Brady, 119 Ohio St.3d 375,
2008-Ohio-4493, 894 N.E.2d 671, ¶ 23. “Abuse-of-discretion review is deferential and
does not permit an appellate court to simply substitute its judgment for that of the trial
Gallia App. No. 21CA1 6
court.” State v. Darmond, 135 Ohio St.3d 343, 2013-Ohio-966, 986 N.E.2d 971, ¶ 34.
Accordingly, the probate court's decision may be reversed only if an appellant can
demonstrate that the decision was unreasonable, arbitrary, or unconscionable.
{¶11} However, the question of justifiable cause is a factual matter for the
probate court that an appellate court will not disturb unless the probate court's finding “
‘is against the manifest weight of the evidence.’ ” M.B. at ¶ 24, quoting In re Adoption of
Masa, 23 Ohio St.3d 163, 492 N.E.2d 140 (1986), paragraph two of the syllabus. “When
an appellate court reviews whether a trial court's decision is against the manifest weight
of the evidence, the court weighs the evidence and all reasonable inferences, considers
the credibility of witnesses and determines whether in resolving conflicts in the evidence,
the factfinder clearly lost its way and created such a manifest miscarriage of justice that
the judgment must be reversed.” Martin v. Jones, 2015-Ohio-3168, 41 N.E.3d 123, ¶ 68
(4th Dist.), citing Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d
517, ¶ 25. Generally, an appellate court will presume that a trial court's findings are
accurate and will reverse a judgment as being against the manifest weight of the
evidence only in the exceptional case in which the evidence weighs heavily against the
judgment. In re K.N.W., 4th Dist. Athens Nos. 15CA36, 15CA37, 2016-Ohio-5863, ¶ 27.
{¶12} When reviewing evidence under the manifest weight of the evidence
standard, an appellate court generally must defer to the factfinder's credibility
determinations. Eastley at ¶ 21. Thus, “ ‘ “every reasonable intendment must be made in
favor of the judgment and the finding of facts.” ’ ” Id., quoting Seasons Coal Co., 10 Ohio
St.3d at 80, fn. 3, quoting 5 Ohio Jurisprudence 3d, Appellate Review, Section 60, at
191-192 (1978). Furthermore, “ ‘ “[i]f the evidence is susceptible of more than one
Gallia App. No. 21CA1 7
construction, the reviewing court is bound to give it that interpretation which is consistent
with the verdict and judgment, most favorable to sustaining the verdict and judgment.” ’
” Id., quoting Seasons Coal Co., 10 Ohio St.3d at 80, fn. 3, quoting 5 Ohio Jurisprudence
3d, Appellate Review, Section 60, at 191-192 (1978); Matter of Adoption of T.C.W., 4th
Dist. Meigs No. 19CA6, 2020-Ohio-1484, ¶ 40-44.
{¶13} Here the trial court determined that V.C.T.’s consent was unnecessary
because he had failed without justifiable cause to provide more than de minimis contact
with the child for a period of at least one year immediately preceding the filing of the
adoption petition. The adoption petition was filed on March 11, 2020, therefore the
relevant one-year look back period began March 11, 2019. The trial court found that
V.C.T. made only three attempts to contact his child since his incarceration in September
2016: (1) a phone call prior to March 2017; (2) a letter in October 2017; and (3) a letter
during the relevant one-year period. The trial court found that V.C.T.’s failure to have
more than de minimis contact was without justifiable cause because he had accurate
contact information for the child and neither the mother nor petitioner did anything to
significantly interfere with or significantly discourage communication between V.C.T. and
the child.
{¶14} Based on our review of the record, we find that the trial court did not abuse
its discretion when it determined that V.C.T. failed to have more than de minimis contact
with the child during the year preceding the filing of the adoption petition. At the hearing,
Cynthia L.D. testified that during the relevant one-year period, V.C.T. sent only one letter
to his child and she did nothing to prevent V.C.T. from contacting the child. Both Cynthia
and R.L.D. testified that V.C.T. had their phone number, and V.C.T. only attempted to
Gallia App. No. 21CA1 8
telephone one time back in 2017. V.C.T. testified that he sent two letters during the
relevant one-year period and did not try to make contact by telephone. V.C.T. also
testified that he signed his child up for a charitable program that sends Christmas gifts on
behalf of inmates to their children, but Cynthia L.D. testified that the charity told her that
V.C.T.’s mother signed the child up for the program. Other than one letter according to
Cynthia L.D., or possibly two letters according to V.C.T., V.C.T did not have any other
contact with the child. Therefore, we lack any basis to find that the trial court acted
unreasonably, unconscionably, or arbitrarily in determining that V.C.T did not have more
than de minimis contact with the child.
{¶15} Furthermore, we find that the court's finding that V.C.T. lacked justifiable
cause for failing to have more than de minimis contact with the child is not against the
manifest weight of the evidence. Both Cynthia L.D. and R.L.D. testified that V.C.T. had
the child’s home address and home phone number and could have written letters to or
telephoned the child. Neither of them blocked his phone number, nor was there any court
ordered injunction preventing V.C.T. from contacting his child. R.L.D. received a collect
call from V.C.T. from the county jail sometime in 2017 but did not accept the charges.
V.C.T. indicated that even though he “always have money on my books to make phone
calls, I always have money to call home” he never attempted to call his child after that
initial attempt in 2017 because he was told by a county jail employee that he would have
criminal charges brought against him. Thus, V.C.T. admitted he never attempted to
telephone his child during the relevant one-year period. We defer to the trial court in
making credibility determinations and in evaluating how much weight to give V.C.T.’s
testimony. We believe that the foregoing evidence constitutes some competent and
Gallia App. No. 21CA1 9
credible evidence to support the court's finding that V.C.T.’s failure to contact the child
was not justifiable. Consequently, we will not disturb the court's finding.
{¶16} We overrule V.C.T.’s first and second assignments of error and affirm the
trial court’s finding that V.C.T.’s consent to the adoption was unnecessary.
B. App.R. 12(A)(2) – Failure to Make an Argument
{¶17} V.C.T.’s third assignment of error challenges the trial court’s finding that the
adoption is in the child’s best interest and his fourth assignment of error challenges his
participation in the hearings via a video conferencing service.
{¶18} The trial court held a best interest hearing and V.C.T. participated via a
video conferencing service. He had an attorney present, called witnesses, and testified
on his own behalf. R.C. 3107.161(B)(1) - (11) governs the best interest factors a trial
court should consider when determining whether a contested adoption is in the child’s
best interest. The trial court’s decision specifically referenced R.C. 3107.161, analyzed a
number of those factors in light of the evidence presented at the hearing, and determined
that adoption was in the child’s best interest. V.C.T has failed to identify any error in the
record or make any argument to support his contention that the adoption was not in the
child’s best interest. In accordance with App.R. 12(A)(2), we disregard his third
assignment of error.
{¶19} Likewise, V.C.T. participated in both the consent hearing and the best
interest hearing via a video conference service. There is nothing in the record to indicate
he was prejudiced in any manner by this method of participation. In fact, he requested on
at least one occasion to speak confidentially with his attorney during the best interest
hearing and was readily accommodated. Again, he failed to refer to any place in the
Gallia App. No. 21CA1 10
record or make any argument to support his contention that he was materially prejudiced
by participation via video conference.
{¶20} Thus, in accordance with App.R. 12(A)(2), we disregard his third and fourth
assignments of error. We affirm the judgment of the trial court.
JUDGMENT AFFIRMED.
Gallia App. No. 21CA1 11
JUDGMENT ENTRY
It is ordered that the JUDGMENT IS AFFIRMED and that appellant shall pay the
costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Gallia
County Common Pleas Court, Probate Division to carry this judgment into execution.
Any stay previously granted by this Court is hereby terminated as of the date of
this entry.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
Smith, P.J. & Abele, J.: Concur in Judgment and Opinion.
For the Court
BY: ________________________________
Michael D. Hess, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry
and the time period for further appeal commences from the date of filing with the clerk.