Opinion
2022 CA 00010
07-13-2022
IN RE ADOPTION OF M.T.R.
For Biological Father-Appellant: JERMAINE COLQUITT. For Adoptive Father-Appellee: ROSE M. FOX.
Appeal from the Licking County Court of Common Pleas, Probate Division, Case No. 20215031
JUDGMENT: AFFIRMED
For Biological Father-Appellant: JERMAINE COLQUITT.
For Adoptive Father-Appellee: ROSE M. FOX.
JUDGES: Hon. Earle E. Wise, Jr., P.J., Hon. John W. Wise, J., Hon. Patricia A. Delaney, J.
OPINION
Delaney, J.
{¶1} Biological Father-Appellant appeals the February 2, 2022 judgment entry of the Licking County Court of Common Pleas, Probate Division.
FACTS AND PROCEDURAL HISTORY Petition for Adoption
{¶2} On March 4, 2021, Adoptive Father-Appellee filed a Petition for Adoption of his minor stepchild, M.T.R. The petition alleged that the consent of Biological Father-Appellant to adopt M.T.R. was not required because Biological Father had failed without justifiable cause to either provide more than de minimus contact or maintenance and support of the child as required by law or judicial decree for the period of at least one year immediately preceding the filing of the Petition.
{¶3} Biological Father did not consent to the Petition for Adoption. The Licking County Probate Court set the matter for an evidentiary hearing on the issue of Biological Father's consent. A hearing was held on February 2, 2022, where the probate court bifurcated the issues of consent and best interests.
{¶4} The following facts were adduced at the February 2, 2022 hearing.
Communication with Mother and Contact with M.T.R.
{¶5} Biological Father is the biological father of M.T.R., born in July 2015. The mother of M.T.R. ("Mother") and Biological Father had been in a relationship for about three months and living together when they discovered Mother was pregnant with M.T.R. At the time of their relationship, Biological Father was out on bond and ultimately sentenced to a prison term of six and a half years for possession of drugs and a parole violation. After Biological Father went to prison, his relationship with Mother ended. Biological Father was released from prison in May 2021.
{¶6} In October 2015, Mother brought the approximately three-month old child to visit Biological Father in prison. Biological Father had a video visit with M.T.R. in 2016. After 2016, Biological Father had no direct contact with M.T.R. again.
{¶7} Mother resided with Maternal Great-Grandmother from 2015 to 2017. In 2017, Mother resided with Maternal Grandmother. Father had the mailing addresses and phone numbers of both Maternal Great-Grandmother and Maternal Grandmother. Mother got a new phone number in 2018, but she did not provide Biological Father with the phone number.
{¶8} Biological Father mailed drawings of Marvel comic book characters to M.T.R. at Maternal Great-Grandmother's address at least 10 to 15 times.
{¶9} Mother and Biological Father communicated through "JPay," an email communication system provided by the prison. At the hearing, Biological Father presented some of his "JPay" communications with Mother. On March 9, 2020, Biological Father sent an email to Mother about seeing M.T.R. On March 9, 2020 he sent another email to Mother about seeing M.T.R. On March 13, 2020, Biological Father sent Mother an email expressing disappointment at how Mother treated him. On March 14, 2020, Biological Father sent an email to Mother expressing that she would be wrong about him when she saw him in M.T.R.'s life. Mother responded on March 16, 2020, telling Biological Father that he and she would never be together again, and she had resentment towards him. She sent another email on March 21, 2020, saying they could not be together and that M.T.R. was fine. Mother sent a final email on March 26, 2020, stating that she wasn't going to speak to him again.
{¶10} On July 16, 2020, Biological Father's girlfriend purchased a toy workbench from Amazon on behalf of Biological Father for M.T.R. An Amazon receipt showed the toy was to be shipped to Maternal Great-Grandmother's home. The toy was allegedly sent to Maternal Great-Grandmother, whom had no memory of receiving the package at her home, and the girlfriend did not receive any confirmation that the package had been delivered. The girlfriend sent two texts to Mother on July 24, 2020, stating, "Mike said please tell his son happy birthday and wanted to make sure he got his gift?" The girlfriend used the phone number provided by Biological Father. The girlfriend did not receive a response to her texts.
{¶11} Mother married Adoptive Father-Appellee in 2019. They had started dating when M.T.R. was a one-year-old. She resided with Adoptive Father before their marriage, but she did not give Biological Father her new address. Mother and Adoptive Father have a child together, in addition to raising M.T.R. M.T.R. believes Adoptive Father is his father.
Financial Support for M.T.R.
{¶12} There was no child support order in place for M.T.R. Once, Biological Father considered sending Mother money through PayPal but did not because he thought Mother was in legal trouble at the time. In 2019, Biological Father filed paperwork with the Licking County Child Support Enforcement Agency to establish his paternity of M.T.R. On July 31, 2019, the Licking County Enforcement Agency notified Biological Father that a paternity conference scheduled for August 29, 2019 was dismissed because it was unable to notify Mother. Biological Father's girlfriend found out where Mother worked and was able to provide that information to the CSEA for service. On October 13, 2020, the Licking County CSEA issued an Administrative Order for the Establishment of Paternity that named Biological Father as the natural father of M.T.R.
Consent Not Required
{¶13} At the conclusion of the consent portion of the hearing, the probate court found that based on the testimony and evidence in the record, Biological Father's consent was not required. (T. 100). It determined that Biological Father had failed without justifiable cause to provide more than de minimus contact with the minor and financial support and maintenance for the minor for a period of at least one year immediately preceding the filing of the adoption petition. (T. 100).
{¶14} The probate court proceeded with the best interest portion of the hearing. At the conclusion, the probate court found it was in the best interests of M.T.R. to grant the Petition of Adoption. (T. 126).
{¶15} The probate court journalized its decision on February 2, 2022. It is from this judgment entry that Biological Father now appeals.
ASSIGNMENT OF ERROR
{¶16} Biological Father raises one Assignment of Error:
{¶17} "I. THE TRIAL COURT'S DECISION THAT THE BIOLOGICAL FATHER'S CONSENT TO ADOPTION WAS UNNECESSARY IS NOT SUPPORTED BY THE MANIFEST WEIGHT OF THE EVIDENCE BECAUSE THE BIOLOGICAL FATHER HAD JUSTIFIABLE CAUSE FOR HIS LACK OF COMMUNICATION AND LACK OF FINANCIAL SUPPORT OF THE MINOR CHILD."
ANALYSIS
{¶18} Biological Father contends in his sole Assignment of Error that the trial court erred in finding that his consent to adoption was not required. We disagree.
Legal Standard under R.C. 3107.07(A)
{¶19} The right of a natural parent to the care and custody of his or her children is one of the most fundamental in law. This fundamental liberty interest of natural parents in the care, custody and management of their children is not easily extinguished. In re Adoption of B.T.R., 5th Dist. Morrow No. 2019 CA 0005, 2020-Ohio-2685, 2020 WL 3545743, ¶ 18 citing Santosky v. Kramer, 455 U.S. 745, 753-754 (182). Adoption permanently terminates the parental rights of the natural parent. In re Adoption of Reams, 52 Ohio App.3d 52, 55 (10th Dist. 1989); R.C. 3107.15(A)(1). Therefore, "[b]ecause adoption terminates these rights, Ohio law requires parental consent to an adoption unless a specific statutory exception exists." In re Adoption of C.H.B., 3rd Dist. Crawford No. 3-19-18, 2020-Ohio-979, ¶ 18 citing In re Adoption of A.N.B., 12th Dist. Preble No. CA2012-04-006, 2012-Ohio-3880, ¶ 5.
{¶20} One such statutory exception to the requirement of parental consent is found in R.C. 3107.07(A), which provides:
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.
{¶21} "R.C. 3107.07(A) is written in the disjunctive." In re Adoption of C.H.B., 2020-Ohio-979, ¶ 19 quoting In re Adoption of H.R., 3rd Dist. Logan No. 8-14-15, 2014-Ohio-5390, ¶ 23. "Therefore, a failure without justifiable cause to provide either more than de minimus contact with the minor or maintenance and support for the one-year time period is sufficient to obviate the need for a parent's consent." (Emphasis sic.) Id.
{¶22} The Ohio Supreme Court previously formulated a two-step analysis for probate courts to employ when applying R.C. 3107.07(A) to determine if parental consent is required. In re Adoption of C.H.B., 2020-Ohio-979, ¶ 20; In re Adoption of O.J.B., 12th Dist. Warren No. CA2020-01-004, 2020-Ohio-4184, ¶ 9; In re Adoption of M.B., 131 Ohio St.3d 186, 2012-Ohio-236, ¶ 23.
{¶23} In the first step, the probate court must determine whether the petitioner has proven, by clear and convincing evidence, that the natural parent has failed to have more than de minimus contact with the child or failed to provide for the maintenance and support of the child. In re Adoption of M.B., at ¶ 23. In Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), the Ohio Supreme Court explained that clear and convincing evidence is more than a preponderance of the evidence but does not rise to the level of beyond a reasonable doubt as required in criminal cases. It must produce in the mind of the trier of fact a firm belief or conviction as to the allegations sought to be established. Cross, syllabus by the court, paragraph three. In re Adoption of B.T.R., 5th Dist. Morrow No. 2019 CA 0005, 2020-Ohio-2685, 2020 WL 3545743, ¶ 21. "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." In re Adoption of M.B. at ¶ 25. To find an abuse of that discretion, we must determine the trial court's decision was unreasonable, arbitrary, or unconscionable and not merely an error of law or judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983).
{¶24} If the probate court finds the parent failed to contact or provide support to the children, the court proceeds to the second step of the analysis to determine whether the parent had justifiable cause for the failure to contact or provide support. The petitioner must prove by clear and convincing evidence that the failure was without justifiable cause. In re Adoption of C.H.B., 2020-Ohio-979, ¶ 22 citing In re Adoption of M.B., 131 Ohio St.3d 186, 2012-Ohio-236. In the second step, a probate court's determination as to "justifiable cause" under R.C. 3107.07(A) will not be disturbed on appeal unless such determination is against the manifest weight of the evidence. In re Adoption of B.T.R., 5th Dist. Morrow No. 2019 CA 0005, 2020-Ohio-2685, 2020 WL 3545743, ¶ 24 citing In Re Adoption of Masa, 23 Ohio St.3d 163, 492 N.E.2d 140 (1986), paragraph two of the syllabus. The probate court, as the trier of fact here, determines the weight and credibility of the evidence. Seasons Coal Company, Inc. v. City of Cleveland, 10 Ohio St.3d 77, 461 N.E.2d 1273 (1984). We may not substitute our judgment for that of the trier of fact. Pons v. Ohio State Medical Board, 66 Ohio St.3d 619, 614 N.E.2d 748 (1993). Our role is to examine 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 the judgment must be reversed and a new trial ordered. In re Adoption of O.J.B., 12th Dist. Warren No. CA2020-01-004, 2020-Ohio-4184, ¶ 12 citing In re Adoption of L.C.W., 12th Dist. Butler No. CA2014-08-169, 2015-Ohio-61, ¶ 14.
Legal Standard for the Determination of Maintenance and Support
{¶25} Biological Father argues the probate court erred when it found that he failed to provide maintenance and support for M.T.R. for the year preceding the filing of the adoption petition and his failure was without justifiable cause. While it is well-settled that probate courts are required to use the two-step analysis to determine issues under R.C. 3107.07(A), in 2019, the Ohio Supreme Court developed a three-step analysis for maintenance and support issues under R.C. 3107.07(A). In In re Adoption of B.I., 157 Ohio St.3d 29, 2019-Ohio-2450, 131 N.E.3d 28, ¶ 14, the Supreme Court examined a case to determine whether the parent had "failed without justifiable cause * * * to provide for the maintenance and support of the minor as required by law or judicial decree" under R.C. 3107.07(A). In re Adoption of B.I., 157 Ohio St.3d 29, 2019-Ohio-2450, 131 N.E.3d 28, ¶ 14. In doing so, the Court articulated the following analytical process:
To determine whether a parent has failed to provide child support as required by law or judicial decree involves a three-step analysis. The court must first determine what the law or judicial decree required of the parent during the year immediately preceding either the filing of the adoption petition or the placement of the minor in the home of the petitioner. Second, the court determines whether during that year the parent complied with his or her obligation under the law or judicial decree. Third, if during that year the parent did not comply with his or her obligation under the law or judicial
decree, the court determines whether there was justifiable cause for that failure.Id. at ¶ 15.
First Step: Law or Judicial Decree
{¶26} The first step in the analysis is to determine what the law or judicial decree required of the parent for the year prior to the filing of the petition. In re Adoption of B.I., 2019-Ohio-2450, ¶ 16. The Supreme Court outlined that under Ohio's statutory scheme regarding families and children, there are two statutes regarding the parental obligation to support their children: (1) a general obligation of parents to support their children imposed by R.C. 3103.03(A), which states "[t]he biological or adoptive parent of a minor child must support the parent's minor children out of the parent's property or by the parent's labor"; and (2) a specific child-support obligation imposed by judicial decree pursuant to R.C. 3109.05 and Chapter 3119. Id. at ¶ 27. The specific child-support obligation supersedes the general obligation once a trial court issues its decree because a parent can have only one obligation status at a time. Id.
{¶27} In this case, there was no specific child-support obligation imposed by judicial decree pursuant to R.C. 3109.05 and Chapter 3119. As described by In re Adoption of B.I., this is an instance of there being no support order in place. Id. at ¶ 31. Therefore, the first step in the analysis is complete with the conclusion that Biological Father was subject to the general obligation of parents to support the child as imposed by law in R.C. 3103.03.
Second Step: Compliance
{¶28} In the second step in the analysis, the probate court is tasked to determine whether during the year immediately preceding the filing of the adoption petition or the placement of the minor in the home of the petitioner, the parent complied with his general support obligation under the law. The probate court found that there was no evidence that Biological Father complied with his general obligation to provide support for his child.
{¶29} In his appeal, Biological Father does not dispute that he failed to comply with his general obligation to provide support for M.T.R. during the year immediately preceding the filing of the adoption petition. Biological Father contends there was evidence to show he had justifiable cause for his failure to provide maintenance and support.
Third Step: Justifiable Cause
{¶30} The third step in the analysis requires the probate court to consider that if the parent did not comply with his obligation under the law, whether there was justifiable cause for that failure. Biological Father contends there were multiple factors presented at the hearing to establish he had justifiable cause for his failure to provide maintenance and support to M.T.R.
{¶31} He first contends that his incarceration was one factor to be considered. In In re Adoption of Z.A., 5th Dist. Licking No. 16-CA-05, 2016-Ohio-3159, 2016 WL 3019457, ¶ 27, this court stated the following:
Incarceration alone is not a justifiable excuse, even if it lasts for the entire period considered by the court. In re D.R., 7th Dist. Belmont No. 11 BE 11, 2011-Ohio-4755 . Rather, incarceration is only one
factor to consider when determining whether a parent has justifiable cause for failing to provide maintenance and support for the child. Frymier v. Crampton, 5th Dist. Licking No. 02 CA 8, 2002-Ohio-3591 .In re D.L.C., 5th Dist. No. 2020 CA 123, 2021-Ohio-420, 168 N.E.3d 26, 2021 WL 597703, ¶ 17.
{¶32} Biological Father also argues on appeal that Mother's actions were another factor to consider whether there was justifiable cause for his failure to provide support. At the hearing, Biological Father testified that he attempted to send money to Mother through PayPal, but he had second thoughts. (T. 32). He knew Mother's probation was violated and he believed she was doing drugs. (T. 32). Biological Father further argued that Mother did not provide him with her address or phone number, so he could not provide support to M.T.R.
{¶33} The evidence in the record belies Biological Father's contention he had justifiable cause to not comply with his general duty to support due to Mother's actions. First, Biological Father knew where he could send maintenance and support for his child. He knew the addresses of Maternal Great-Grandmother and Maternal Grandmother. He allegedly sent comic book drawings to M.T.R. at those addresses at least 10 to 15 times. Through his girlfriend, he sent M.T.R. a birthday present at the Maternal Great-Grandmother's address. Second, when Biological Father wanted to establish his paternity, his girlfriend located Mother's work address and service of the paternity notice was completed. Mother's work address would be another location where Biological Father could send maintenance or support. Finally, the record showed that while Mother may have had legal issues at one time, there was no allegation that Mother had any issues in the one year preceding the filing of the adoption proceeding. The evidence showed that Mother was employed, married, and the parent of two children.
{¶34} Upon this record, the probate court found Adoptive Father established that Biological Father did not have justifiable cause for his failure to provide maintenance and support under his general obligation. We find there is competent and credible evidence to support the probate court's determination and the judgment is not against the manifest weight of the evidence.
Legal Standard for Determining Contact with the Child
{¶35} Biological Father also argues in his Assignment of Error that the probate court erred when it found he had failed to provide more than de minimus contact with the minor and his failure was without justifiable cause. Probate courts are required to use the two-step analysis to determine issues under R.C. 3107.07(A), but in 2022, the Ohio Supreme Court proposed a three-step analysis for contact issues under R.C. 3107.07(A). In In re Adoption of A.K., __Ohio St.3d__, 2022-Ohio-350, __N.E.3d__, the Supreme Court examined a case to determine whether a parent's consent to adoption was required when the parent had not more than de minimus contact with his children for at least one year before the filing of the adoption petition and the parent was under a court order to have no contact with his children. In conducting its analysis as to contact under R.C. 3107.07(A), the Supreme Court utilized the three-step analysis as set forth in In re Adoption of B.I., 157 Ohio St.3d 29, 2019-Ohio-2450, 131 N.E.3d 28. Pursuant to the In re Adoption of A.K., we apply the three-step analysis to the issue of contact under R.C. 3107.07(A).
First Step: Law or Judicial Decree Prohibiting Contact
{¶36} The first step asks if there was any law or judicial decree prohibiting the parent's contact with the child. See In re Adoption of A.K., 2022-Ohio-350, ¶ 18, 21. In this case, the parties made no argument that there was a law or judicial decree prohibiting Biological Father from communicating or contacting the child. Biological Father was incarcerated, but there was no order in place prohibiting his contact with the child.
Second Step: Compliance
{¶37} We then move to the second step to ask whether Biological Father had more than de minimus contact with the child in the year preceding the filing of the adoption preceding. In Biological Father's appeal, he does not contest that he did not have more than de minimus contact with the child in the year preceding the filing of the adoption petition.
Third Step: Justifiable Cause
{¶38} Biological Father stands on the final step to make his argument that the probate court's judgment was against the manifest weight of the evidence because he had justifiable cause for his failure to have any communication or contact with the child in the one year preceding the filing of the adoption petition. He states there was evidence in the record that Mother prevented contact because she did not give him her current address or phone number.
{¶39} In In re Adoption of Holcomb, 18 Ohio St.3d 361, 366, 481 N.E.2d 613, 619 (1985), the Ohio Supreme Court focused on the failure to communicate portion of R.C. 3107.07. The Court held as follows:
2. Pursuant to the explicit language of R.C. 3107.07(A), failure by a parent to communicate with his or her child is sufficient to authorize adoption without that parent's consent only if there is a complete absence of communication for the statutorily defined one-year period.
3. Significant 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. The question of whether justifiable cause exists in a particular case is a factual determination for the probate court and will not be disturbed upon appeal unless such determination is unsupported by clear and convincing evidence.
4. The party petitioning for adoption has the burden of proving, by clear and convincing evidence, that the parent failed to communicate with the child during the requisite one-year period and that there was no justifiable cause for the failure of communication. (In re Adoption of McDermitt [1980], 63 Ohio St.2d 301, 408 N.E.2d 680 modified.)In re P.C., 5th Dist. Stark No. 2021 CA 00087, 2021-Ohio-4418, 2021 WL 5919067, ¶ 12 quoting Holcomb at syllabus.
{¶40} In Holcomb, the Court, after noting that the term "justifiable cause" lacks a precise definition, declined to provide a precise definition. The Court wrote as follows:
We do not believe that the legislature intended to give a precise and inflexible meaning to the term "justifiable cause," nor do we choose to adopt any such restricted definition now.18 Ohio St.3d at 367, 481 N.E.2d 620. The Court instead left it to the probate court the question of whether justifiable cause for failure to communicate with the child exists in a particular case. The Court reasoned that the probate courts are in "the best position to observe the demeanor of the parties, to assess their credibility, and to determine the accuracy of their testimony." Id.
{¶41} The non-consenting natural parent is not required to prove that his failure to support or to communicate was justifiable. Holcomb at 368. However,
A natural parent may not simply remain mute while the petitioner is forced to demonstrate why the parent's failure to provide support is unjustifiable. Rather, once the petitioner has established, by clear and convincing evidence, that the natural parent has failed to support the child for at least the requisite one-year period, the burden of going forward with the evidence is on the natural parent to show some facially justifiable cause for such failure. The burden of proof, however, remains with the petitioner.In re Adoption of Bovett, 33 Ohio St.3d 102, 104, 515 N.E.2d 919 (1987). The same standard applies to a parent's failure to communicate with the child during the requisite one-year period. In re: E.E.B., nka E.E.H. 5th Dist. Richland No. 17CA107, 2018-Ohio-1021, ¶ 23; In re: K.M.R., 5th Dist. Muskingum No. CT2017-0049, 2018-Ohio-1265, ¶ 23; In re: R.A.H., 2nd Dist. Champaign No. 2020-CA-32, 2021-Ohio-1667, ¶ 12.
{¶42} Biological Father claims Mother interfered with his communication between him and the child. The Supreme Court held that "significant 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." (Emphasis sic.) Holcomb, 18 Ohio St.3d at 367-368. A probate court is not restricted to focusing solely on the one-year statutory period in making such a determination In re P.C., 5th Dist. Stark No. 2021 CA 00087, 2021-Ohio-4418, 2021 WL 5919067, ¶ 20 citing In re: Adoption of Lauck, 82 Ohio App.3d 348, 612 N.E.2d 459 (9th Dist. 1992); In re: Adoption of B.T.R., 5th Dist. Morrow No. 2019CA0005, 2020-Ohio-2685, ¶23.
{¶43} After reviewing the probate court's judgment and weighing all the evidence and reasonable inferences, we believe that the probate court reasonably found, by clear and convincing evidence, that Biological Father's failure to contact the child was without justifiable cause. There is no evidence of Mother's significant interference with communication between Biological Father and the child. First, Biological Father had the addresses of Maternal Great-Grandmother and Maternal Grandmother through which he could have communicated with the child. He testified he mailed comic book drawings to the child at those addresses at least 10 to 15 times during the six years of the child's life. Biological Father testified he gave M.T.R. only one birthday gift, which was sent to Maternal Great-Grandmother's address. Second, while Biological Father may not have had Mother's current mailing address or phone number, he communicated with Mother through the "JPay" email program. Third, Biological Father obtained Mother's work address in order to obtain service for his paternity action. The record does not support Father's argument on appeal that Mother engaged in a deliberate and concerted effort to prevent Biological Father from communicating with the child. From the testimony and the evidence presented, the probate court could conclude Biological Father's failure to maintain more than de minimis contact with M.T.R. was not justified.
{¶44} Biological Father's one Assignment of Error is overruled.
CONCLUSION
{¶45} The judgment of the Licking County Court of Common Pleas, Probate Division is affirmed.
Delaney, J., Wise, Earle, P.J. and Wise, John, J., concur.