In re D.L.C. ( 2021 )

[Cite as In re D.L.C., 2021-Ohio-420.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
IN RE: D.L.C. : JUDGES:
: Hon. W. Scott Gwin, P.J.
: Hon. Patricia A. Delaney, J.
: Hon. Earle E. Wise, Jr., J.
:
:
: Case No. 2020 CA 123
:
: OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Probate Division, Case No.
236525
JUDGMENT: Affirmed
DATE OF JUDGMENT: February 12, 2021
APPEARANCES:
For Appellant-Father For Appellee-Petitioner
JEFFREY JAKMIDES KRISTEN D. GUARDADO
325 East Main Street 4600 Beverly Avenue, NW
Alliance, OH 44601 Canton, OH 44714
Stark County, Case No. 2020 CA 123 2
Wise, Earle, J.
{¶ 1} Appellant-Father, D.A., appeals the July 31, 2020 judgment entry of the
Court of Common Pleas of Stark County, Ohio, Probate Division, finding his consent
was not required for a petition for adoption. Appellee-Petitioner is step-father, L.C., Jr.
FACTS AND PROCEDURAL HISTORY
{¶ 2} On February 28, 2020, appellee filed a petition for adoption of his step-
daughter, D.L.C. born in October 2009. The child was born to mother, C.C., and
appellant. They were never married. At the time of D.L.C.'s birth, appellant was
incarcerated. Paternity was established.
{¶ 3} Appellant was released from prison in April 2012 and then incarcerated
again from October 2014 to April 2020.
{¶ 4} The petition for adoption alleged appellant's consent was not necessary
because appellant failed without justifiable cause to either provide more than de minimis
contact with the child or maintenance and support for the child for the period of one year
immediately preceding the filing of the petition. Appellant objected to the adoption. A
hearing was held on July 13, 2020. By judgment entry filed July 31, 2020, the trial court
found although appellant failed to provide more than de minimis contact with the child
for a period of at least one year immediately preceding the filing of the petition, he had
justifiable cause. However, the trial court found appellant, without justifiable cause,
failed to support the child during the one year period preceding the filing of the petition.
Therefore, the trial court concluded appellant's consent was not required for the
adoption.
{¶ 5} Appellant filed an appeal and this matter is now before this court for
consideration. Assignments of error are as follows:
Stark County, Case No. 2020 CA 123 3
I
{¶ 6} "THE TRIAL COURT'S FINDING THAT FATHER FAILED WITHOUT
JUSTIFIABLE CAUSE TO PROVIDE FOR THE MAINTENANCE AND SUPPORT OF
THE MINOR CHILD WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE."
II
{¶ 7} "THE TRIAL COURT'S HOLDING THAT FATHER'S INCARCERATION
DID NOT CONSTITUTE A JUSTIFIABLE CAUSE FOR HIS FAILURE TO PROVIDE
SUPPORT WAS UNREASONABLE, ARBITARY, AND UNSCONSCIONABLE, AND
CONSTITUTES A VIOLATION OF THE FATHER'S 14TH AMENDMENT RIGHT TO
EQUAL PROTECTION UNDER THE LAW. UNDER THE TRIAL COURT'S LOGIC, A
WEALTHY PARENT WHO IS INCARCERATED WOULD BE ABLE TO PROVIDE
SUPPORT AND WOULD THUS BE ABLE TO OBJECT TO THEIR CHILD BEING
ADOPTED. A POOR PARENT WHO IS INCARCERATED ON IDENTICAL CHARGES
WOULD HAVE NO WAY TO PROVIDE SUPPORT AND WOULD THUS BE DENIED
THE RIGHT TO OBJECT TO THEIR CHILD'S ADOPTION. THE GROSS INJUSTICE
OF A PARENT'S RIGHT TO OBJECT TO THEIR CHILD'S ADOPTION BEING
CONDITIONED ON THEIR WEALTH IS UNCONSCIONALBE AND
UNCONSTITUTIONAL AND MUST NOT BE PERMITTED."
I
{¶ 8} In his first assignment of error, appellant claims the trial court's decision
that he failed, without justifiable cause, to provide maintenance and support for the child
was against the manifest weight of the evidence. We disagree.
{¶ 9} R.C. 3107.07(A) states the following:
Stark County, Case No. 2020 CA 123 4
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.
{¶ 10} In its judgment entry filed July 31, 2020, the trial court found although
appellant failed to provide more than de minimis contact with the child for a period of at
least one year immediately preceding the filing of the petition, he had justifiable cause.
However, the trial court found appellant "has, without justifiable cause, failed to provide
maintenance and support of Child as required by law or judicial decree during the year
immediately preceding the filing of the Petition. Therefore the Court find that Father's
consent to the Petition is not required." Appellant argues the trial court's decision that
he failed, without justifiable cause, to provide maintenance and support for the child was
against the manifest weight of the evidence.
{¶ 11} As held by the Supreme Court of Ohio in In re Adoption of M.B., 131 Ohio
St.3d 186, 2012-Ohio-236, 963 N.E.2d 142, paragraph two of the syllabus:
A probate court determination of whether a financial contribution
constitutes maintenance and support for purposes of R.C. 3107.07(A) is
Stark County, Case No. 2020 CA 123 5
reviewed for an abuse of discretion; but whether justifiable cause for the
failure to pay child support has been proved by clear and convincing
evidence is a separate question for the probate court and will not be
disturbed on appeal unless it is against the manifest weight of the
evidence.
{¶ 12} In order to find an abuse of 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).
{¶ 13} Clear and convincing evidence is that evidence "which will provide in the
mind of the trier of facts a firm belief or conviction as to the facts sought to be
established." Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph
three of the syllabus.
{¶ 14} On review for manifest weight, a judgment supported by some competent,
credible evidence will not be reversed by a reviewing court as against the manifest
weight of the evidence. C.E. Morris Co. v. Foley Construction Co., 54 Ohio St.2d 279,
376 N.E.2d 578 (1978).
{¶ 15} The petitioner for adoption bears the burden of proof. In re Adoption of
Bovett, 33 Ohio St.3d 102, 515 N.E.2d 919 (1987), paragraph one of the syllabus.
"Although the nonconsenting parent is responsible for articulating a justifiable cause, no
burden is to be placed upon the nonconsenting parent to establish that his or her failure
was justifiable." In re Doe, 123 Ohio App.3d 505, 508, 704 N.E.2d 608 (9th Dist.1997).
{¶ 16} Appellant does not contest the trial court's finding that he failed to provide
maintenance and support for the child during the year immediately preceding the filing
Stark County, Case No. 2020 CA 123 6
of the petition. Appellant's arguments focus on the trial court's finding of "without
justifiable cause." In his appellate brief at 6, appellant argues he "provided undisputed
evidence to support his theories of justifiable cause, namely his incarceration which
prevented him from earning any income with which to provide any support" for the child.
{¶ 17} In In re Adoption of Z.A., 5th Dist. Licking No. 16-CA-05, 2016-Ohio-3159,
¶ 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.
{¶ 18} In its judgment entry filed July 31, 2020, the trial court found a child
support order by any court did not exist; therefore, appellant was "subject to a general
duty of support pursuant to R.C. 3103.03." By his own admission, appellant did not
provide financial support for the child during the one year period immediately preceding
the filing of the petition. T. at 13-14, 32-33. The trial court found appellant's
incarceration was the product of his own actions, and he "could have provided some
amount of support, even if that support was of limited means while incarcerated. He
chose not to provide any support."
{¶ 19} In his appellate brief at 13, appellant argued "the support that he was able
to provide consisted of birthday and Christmas gifts delivered" by his mother,
Stark County, Case No. 2020 CA 123 7
sometimes to the child's mother and sometimes to the maternal grandmother.
Appellant's mother testified the last time she delivered gifts was in 2017. T. at 47-48,
55. In its judgment entry filed July 31, 2020, the trial court noted that even if it were to
accept that the gifts were actually gifts from appellant and "thereby a means of
maintenance and support," the last of those gifts were received well beyond the one
year period of time under review.
{¶ 20} Appellant argues the trial court should have considered that mother of the
child made no effort to obtain support from him and cites In re Adoptions of Groh, 153
Ohio App.3d 414, 2003-Ohio-3087, 794 N.E.2d 695 (7th Dist.), ¶ 46, wherein our
colleagues from the Seventh District stated: "when a court decides whether a biological
parent was justified in failing to provide support, it should consider whether the custodial
parents refused help or failed to ask for help from the biological parent." However, Groh
was decided before In re Adoption of B.I., 157 Ohio St.3d 29, 2019-Ohio-2450, 131
N.E.3d 28, ¶ 21, wherein the Supreme Court of Ohio acknowledged R.C. 3103.03 sets
forth a parent's duty to support his/her children in the absence of a child-support order.
"In the absence of a child support order, as in our case, a natural parent has an
independent obligation to provide support for his child regardless of whether a request
is made." Matter of Adoption of A.L.R., 11th Dist. Geauga No. 2019-G-0210, 2019-
Ohio-4320, ¶ 12. Accord In re Adoption of C.H.B., 3d Dist. Crawford No. 3-19-18, 2020-
Ohio-979, ¶ 35.
{¶ 21} We find clear and convincing evidence to establish that appellant's failure
to provide maintenance or support for the child was not justifiable. Appellant admitted
to not providing any support while he was incarcerated for several years preceding the
filing of the petition. "Even a meager contribution to the child's support could satisfy the
Stark County, Case No. 2020 CA 123 8
maintenance and support requirement of R.C. 3107.07(A)." In re Adoption of T.G., 6th
Dist. Sandusky No. S-10-003, 2010-Ohio-3219, ¶ 10. Any gifts to the child stopped
beyond the one year period from the filing of the petition. Further, as held by the
Supreme Court of Ohio, "[d]e minimis monetary gifts from a biological parent to a minor
child do not constitute maintenance and support, because they are not payments as
required by law or judicial decree as R.C. 3107.07(A) requires." In re Adoption of M.B.,
131 Ohio St.3d 186, 2012-Ohio-236, 963 N.E.2d 142, paragraph one of the syllabus
{¶ 22} Upon review, we find the trial court's decision to be supported by
competent credible evidence and is not against the manifest weight of the evidence.
{¶ 23} Assignment of Error I is denied.
II
{¶ 24} In his second assignment of error, appellant claims the trial court's finding
that his incarceration did not constitute justifiable cause was unreasonable, arbitrary,
and unconscionable, and violates the Equal Protection Clause. We disagree.
{¶ 25} As acknowledged by appellant in his appellate brief at 15, he did not raise
this constitutional challenge to the trial court. Review of a statute's constitutionality at
this stage is discretionary. State v. Awan, 22 Ohio St.3d 120, 489 N.E.2d 277 (1986).
We will review appellant's argument and analysis it under the plain error standard. In re
M.D., 38 Ohio St.3d 149, 527 N.E.2d 286 (1988), syllabus.
{¶ 26} Civil plain error is defined in Goldfuss v. Davidson, 79 Ohio St.3d 116, 679
N.E.2d 1099 (1997), syllabus, as "error, to which no objection was made at the trial
court, seriously affects the basic fairness, integrity, or public reputation of the judicial
process, thereby challenging the legitimacy of the underlying judicial process itself."
The Goldfuss court at 121, explained the following:
Stark County, Case No. 2020 CA 123 9
The plain error doctrine originated as a criminal law concept. In
applying the doctrine of plain error in a civil case, reviewing courts must
proceed with the utmost caution, limiting the doctrine strictly to those
extremely rare cases where exceptional circumstances require its
application to prevent a manifest miscarriage of justice, and where the
error complained of, if left uncorrected, would have a material adverse
effect on the character of, and public confidence in, judicial proceedings.
{¶ 27} "Simply stated, the Equal Protection Clauses require that individuals be
treated in a manner similar to others in like circumstances." McCrone v. Bank One
Corp., 107 Ohio St.3d 272, 2005-Ohio-6505, 839 N.E.2d 1, ¶ 6. "The right to parent
one's children is a fundamental right" and adoption extinguishes a natural parent's
fundamental right to parent. In re C.F., 113 Ohio St.3d 73, 2007-Ohio-1104, 862 N.E.2d
816, ¶ 28, citing Troxel v. Granville, 530 U.S. 57, 66, 120 S.Ct. 2054, 147 L.Ed.2d 49(2000); In re Adoption of G.V., 126 Ohio St.3d 249, 2010-Ohio-3349, 933 N.E.2d 245, ¶
6. "Inasmuch as the statutory scheme at issue in this case creates a distinction that
involves a fundamental right, it will be upheld under the Equal Protection Clause if it
furthers a compelling state interest and is narrowly drawn to serve only that interest."
Matter of L.C.C., 10th Dist. Franklin No. 18AP-167, 2018-Ohio-4617, ¶ 26.
{¶ 28} Appellant argues the application of R.C. 3107.07(A) "makes wealth the
deciding factor in whether his parental rights can be terminated over his objection."
Appellant's Brief at 15. He argues because he was incarcerated and without the
financial means to provide maintenance and support, he loses his fundamental right to
Stark County, Case No. 2020 CA 123 10
parent his child because he is poor: "[i]t is unconscionable that the size of Father's bank
account is the deciding factor in whether his consent is required before his child is
adopted and his fundamental right to parent his child is stripped away from him."
Appellant's Brief at 17-18.
{¶ 29} The statute does not set a minimum amount for maintenance and support.
As stated above in ¶ 21, "[e]ven a meager contribution to the child's support could
satisfy the maintenance and support requirement of R.C. 3107.07(A)." In re Adoption of
T.G., 6th Dist. Sandusky No. S-10-003, 2010-Ohio-3219, ¶ 10. In In re Adoption of
C.A.H., 5th Dist. Knox No. 19 CA 000037, ¶ 29-30, this court affirmed a trial court's
denial of a petition to adopt because father's consent was required as he provided
support for his child. Although father was incarcerated, he earned approximately $20
per month and approximately $5 was withheld for child support ($2.06/month for child
support, $0.41/month on arrears, and a 2% processing fee). In the case sub judice,
appellant chose not to provide any support at all. It is fair to say that a wealthy
incarcerated parent who chooses to not provide maintenance and support for his/her
child without justifiable cause would not be required to give consent under the statute as
well. The wealthy parent would not be treated differently just because of the size of
his/her bank account. The focus of the statute is not how much maintenance and
support is given, but that some amount or form is given depending on the facts of the
case. The state has a compelling interest to ensure that parents are providing at least
minimal support for their children.
{¶ 30} Upon review, we do not find the trial court's finding that appellant's
incarceration did not constitute justifiable cause to be a violation of the Equal Protection
Clause.
Stark County, Case No. 2020 CA 123 11
{¶ 31} Assignment of Error II is denied.
{¶ 32} The judgment of the Court of Common Pleas of Stark County, Ohio,
Probate Division is hereby affirmed.
By Wise, Earle, J.
Gwin, P.J. and
Delaney, J. concur.
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