In re Adoption of T.C.W. , 2020 Ohio 1484 ( 2020 )

[Cite as In re Adoption of T.C.W., 2020-Ohio-1484.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
MEIGS COUNTY
IN THE MATTER OF THE : Case No. 19CA6
ADOPTION OF: :
: DECISION AND JUDGMENT
T.C.W. : ENTRY
:
APPEARANCES:
Lindsey A.B. Price, Price Law Office, Pomeroy, Ohio, for Appellant.
Trenton Cleland, Law Office of Trenton Cleland, Pomeroy, Ohio, for
Appellee.1
Smith, P.J.
{¶1} Appellant, S.E., appeals the trial court’s judgment that entered an
adoption decree determining that his consent to the adoption of his child was
not required. Appellant first argues that the trial court did not afford him
due process of law. Specifically, Appellant contends that the court violated
his due process rights by (1) failing to give him the statutorily-required
twenty-day notice of the adoption petition hearing, (2) by excluding him
1
Appellee has not filed an appellate brief or otherwise appeared in this appeal. When an appellee fails to
file an appellate brief, App.R. 18(C) authorizes us to accept an appellant’s statement of facts and issues as
correct, then reverse a trial court’s judgment as long as the appellant’s brief “reasonably appears to sustain
such action.” In other words, an appellate court may reverse a judgment based solely on consideration of
an appellant's brief. Harper v. Neal, 4th Dist. Hocking No. 15CA25, 2016-Ohio-7179, 2016 WL 5874628,
¶ 14, citing Fed. Ins. Co. v. Fredericks, 2nd Dist., 2015-Ohio-694, 29 N.E.3d 313, 330–31, ¶ 79; Sites v.
Sites, 4th Dist. Lawrence No. 09CA19, 2010-Ohio-2748, 2010 WL 2391647, ¶ 13; Sprouse v. Miller,
Lawrence App. No. 06CA37, 2007-Ohio-4397, 2007 WL 2410894, fn. 1.
Meigs App. No. 19CA6 2
from part of the consent portion of the hearing, and (3) by excluding him
from the entire best-interest portion of the hearing.
{¶2} Appellant did not object to any of the alleged errors at a time
when the trial court could have avoided any error. Thus, we review
Appellant’s first assignment of error for plain error and will reverse the trial
court’s judgment only if necessary to prevent a manifest miscarriage of
justice.
{¶3} The alleged inadequate notice did not infringe upon Appellant’s
due process rights in a manner that requires us to reverse the trial court’s
judgment. Instead, Appellant’s appearance and participation in the hearing
indicates that he received notice of the hearing. Appellant did not argue
before the trial court that the notice was insufficient or that he needed
additional time to prepare for the hearing. We thus do not believe that
failing to recognize any defect in the notification procedure would result in a
manifest miscarriage of justice.
{¶4} Furthermore, we do not believe that the trial court deprived
Appellant of an opportunity to be heard regarding the consent issue by
ordering court staff to escort him from the hearing after the court had
determined that Appellant’s consent to the adoption was not required.
Before the court ordered Appellant’s removal, the court gave Appellant a
Meigs App. No. 19CA6 3
fair opportunity to be heard regarding whether Appellant’s failure to have
more than de minimis contact with the child was justifiable. Therefore, we
do not believe that failing to recognize any error the court may have made
by ordering Appellant’s removal after it determined his consent was not
required resulted in a manifest miscarriage of justice as it pertains to the
consent issue.
{¶5} However, we believe that the trial court erred by excluding
Appellant from the best-interest part of the hearing. By excluding Appellant
from the best-interest part of the hearing, the court deprived Appellant of his
only and last opportunity to be heard regarding the child’s best interest and
the termination of his parental rights. For this reason, we believe that failing
to recognize the court’s error in excluding Appellant from the best-interest
part of the hearing would result in a manifest miscarriage of justice.
Accordingly, we sustain the part of Appellant’s first assignment of error
directed to the trial court’s decision that removed him from the courtroom
before the best-interest portion of the hearing.
{¶6} Appellant next challenges the trial court’s finding that his
consent to the adoption is not required. He contends that the court
incorrectly concluded that he failed to have more than de minimis contact
with the child and that he lacked justifiable cause for the failure. We
Meigs App. No. 19CA6 4
disagree. Appellant admitted that he has not had direct contact with the
child in approximately three years. Moreover, Appellant’s only contacts
with the child were a 2017 Christmas package and a 2018 Christmas card
that contained $25. Additionally, the record contains some competent and
credible evidence to support the trial court’s finding that Appellant lacked
justifiable cause for his failure to have more than de minimis contact with
the child. Appellant agreed that he could have walked to the child’s
residence and “bang[ed] on the door” but that he did not so that he would not
create unspecified “problems.”
{¶7} Appellant also argues that the trial court failed to adequately
consider the best-interest factors when determining that the adoption is in the
child’s best interest. However, we believe that our disposition of
Appellant’s first assignment of error renders this last assignment of error
moot.
{¶8} Accordingly, we sustain Appellant’s first assignment of error in
part and reverse and remand the trial court’s judgment in part so that the
court may afford Appellant an opportunity to be heard regarding whether the
adoption is in the child’s best interest. We overrule Appellant’s assignments
of error challenging the court’s finding that Appellant’s consent to the
adoption is not required, and we affirm the trial court’s decision that
Meigs App. No. 19CA6 5
Appellant’s consent to the adoption is not required. We overrule as moot
Appellant’s last assignment of error.
FACTS
{¶9} On April 11, 2019, the child’s stepfather filed a petition to adopt
the child. The petition alleged that Appellant’s consent is not required
because Appellant 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 or the placement of
the child in the home of the petitioner. On that same date, the court set the
adoption petition for a hearing to be held on May 14, 2019. Additionally,
the court sent a notice of hearing on the adoption petition to Appellant via
certified mail. On April 29, 2019, the court sent another notice via certified
mail. The record transmitted on appeal does not contain any information
that reveals whether either piece of certified mail was successfully served
upon Appellant.
{¶10} Nevertheless, Appellant appeared for the adoption petition
hearing. At the hearing, the child’s mother stated that Appellant had not had
any contact with the child in almost three years. The child’s mother
explained that in December 2018, Appellant sent a Christmas card that
contained $25, and that in December 2017, Appellant sent some gifts for the
Meigs App. No. 19CA6 6
child. The mother stated that other than those two mailings, Appellant had
not had any other contact with the child.
{¶11} Appellant agreed that he had not had any contact with the child
for more than one year preceding the adoption petition. The trial judge
asked Appellant why he had not attempted to have contact with the child in
nearly three years, even though he could have “walk[ed] down once a week
and bang[ed] on the door.” Appellant indicated that he thought doing so
would create “problems.”
{¶12} After hearing the evidence regarding Appellant’s contact, or
lack thereof, with the child, the court concluded that Appellant’s consent
was not required. The court noted that the evidence did not suggest that the
child’s mother and stepfather had attempted to hide from Appellant or to
change their phone number. The court advised Appellant of his right to
appeal and briefly explained to Appellant that Appellant should retain
counsel or research how to file a notice of appeal. The court then asked
court staff to “walk” Appellant out of the courtroom.
{¶13} After Appellant left the courtroom, the trial judge explained to
those remaining in the courtroom why he concluded that Appellant’s consent
was not necessary. The judge explained that “anything” Appellant “did was
de minimis.” The judge additionally indicated that Appellant “sat on his
Meigs App. No. 19CA6 7
rights and didn’t do anything about it.” The court continued: “So, and I
want, and I wanted to give him a fair shake. All right, so the records [sic]
there, where we’re at right now the Court finds consent not necessary.” The
court then asked the parties whether they were prepared to proceed with the
remainder of the adoption hearing.
{¶14} The trial court subsequently granted the adoption petition.
ASSIGNMENTS OF ERROR
Appellant raises the following assignments of error:
“1A: The Probate Court erred in failing to provide Appellant Father
sufficient notice of the hearing on petition for adoption.”
“1B: The Probate Court erred in refusing to allow Appellant Father to
be present for the entirety of the consent portion of the hearing.”
“1C: The Probate Court erred in refusing to allow Appellant Father to
be present for the best interest portion of the hearing.”
“2. The Probate Court erred in finding that Appellant Father’s
consent to the adoption was not necessary because Appellant Father’s
contact with the minor child was de minimis for the one year look
back period and/or erred in failing to find that Father had justifiable
cause for Father’s relative lack of contact with the minor child.”
“3. The Probate Court erred in finding that it was bound by law to
order that Appellant Father’s consent to the adoption was not
necessary if the court found that Appellant Father’s contact with
minor child was de minimis.”
“4: The Probate Court erred in failing to sufficiently consider the best
interest factors found in R.C. 3109.04 and R.C. 3107.161 in making
the determination that the adoption was in the best interest of the
minor child.”
Meigs App. No. 19CA6 8
FIRST ASSIGNMENT OF ERROR
{¶15} In his three-part first assignment of error Appellant argues that
the trial court erred (1) by failing to provide him with sufficient notice of the
adoption petition hearing, (2) by refusing to allow him to be present for the
entire consent portion of the hearing, and (3) by refusing to allow him to be
present for the best-interest part of the hearing.
{¶16} Initially, we observe that Appellant did not object to the alleged
inadequacies of the notice or to his removal from the courtroom midway
through the hearing. It is well-settled that a party may not raise any new
issues or legal theories for the first time on appeal. Stores Realty Co. v.
Cleveland, 41 Ohio St.2d 41, 43, 322 N.E.2d 629 (1975). Thus, a litigant
who fails to raise an argument before the trial court forfeits the right to raise
that issue on appeal. Independence v. Office of the Cuyahoga Cty.
Executive, 142 Ohio St.3d 125, 2014-Ohio-4650, 28 N.E.3d 1182, ¶ 30
(stating that “an appellant generally may not raise an argument on appeal
that the appellant has not raised in the lower courts”); State v. Quarterman,
140 Ohio St.3d 464, 2014-Ohio-4034, 19 N.E.3d 900, ¶ 21 (explaining that
defendant forfeited his constitutional challenge by failing to raise it during
trial court proceedings); Gibson v. Meadow Gold Dairy, 88 Ohio St.3d 201,
204, 724 N.E.2d 787 (2000) (concluding that party waived arguments for
Meigs App. No. 19CA6 9
purposes of appeal when party failed to raise those arguments during trial
court proceedings); State ex rel. Gutierrez v. Trumbull Cty. Bd. of Elections,
65 Ohio St.3d 175, 177, 602 N.E.2d 622 (1992) (explaining that an appellant
cannot “present * * * new arguments for the first time on appeal”); accord
State ex rel. Jeffers v. Athens Cty. Commrs., 4th Dist. Athens No. 15CA27,
2016-Ohio-8119, 2016 WL 7230928, fn.3 (stating that “[i]t is well-settled
that failure to raise an argument in the trial court results in waiver of the
argument for purposes of appeal”); State v. Anderson, 4th Dist. Washington
No. 15CA28, 2016-Ohio-2704, 2016 WL 1643247, ¶ 24 (explaining that
“arguments not presented in the trial court are deemed to be waived and may
not be raised for the first time on appeal”).
{¶17} Appellate courts may, however, consider a forfeited argument
using a plain-error analysis. See Risner v. Ohio Dept. of Nat. Resources,
Ohio Div. of Wildlife, 144 Ohio St.3d 278, 2015-Ohio-3731, 42 N.E.3d 718,
¶ 27 (stating that reviewing court has discretion to consider forfeited
constitutional challenges); see also Hill v. Urbana, 79 Ohio St.3d 130, 133-
34, 679 N.E.2d 1109 (1997), citing In re M.D., 38 Ohio St.3d 149, 527
N.E.2d 286 (1988), syllabus (stating that “[e]ven where [forfeiture] is clear,
[appellate] court[s] reserve[] the right to consider constitutional challenges
to the application of statutes in specific cases of plain error or where the
Meigs App. No. 19CA6 10
rights and interests involved may warrant it”). For the plain error doctrine to
apply, the party claiming error must establish (1) that “ ‘an error, i.e., a
deviation from a legal rule’ ” occurred, (2) that the error was “ ‘an “obvious”
defect in the trial proceedings,’ ” and (3) that this obvious error affected
substantial rights, i.e., the error “ ‘must have affected the outcome of the
trial.’ ” State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d
860, ¶ 22, quoting State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240(2002); Schade v. Carnegie Body Co., 70 Ohio St.2d 207, 209, 436 N.E.2d
1001, 1003 (1982) (“A ‘plain error’ is obvious and prejudicial although
neither objected to nor affirmatively waived which, if permitted, would have
a material adverse affect [sic] on the character and public confidence in
judicial proceedings.”). For an error to be “plain” or “obvious,” the error
must be plain “ ‘under current law.’ ” Johnson v. United States, 520 U.S.
461, 467, 468, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997), quoting United
States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993).
Accord Barnes, supra, at 27; State v. G.C., 10th Dist. Franklin No. 15AP-
536, 2016-Ohio-717, ¶ 14. Thus, the error must be plain “at the time of
appellate consideration.” Johnson at 467.
{¶18} The plain error doctrine is not, however, readily invoked in
civil cases. Instead, an appellate court “must proceed with the utmost
Meigs App. No. 19CA6 11
caution” when applying the plain error doctrine in civil cases. Goldfuss v.
Davidson, 79 Ohio St.3d 116, 121, 679 N.E.2d 1099 (1997). The Supreme
Court of Ohio has set a “very high standard” for invoking the plain error
doctrine in a civil case. Perez v. Falls Financial, Inc., 87 Ohio St.3d 371,
721 N.E.2d 47 (2000). Thus, “the doctrine is sharply limited to the
extremely rare case involving exceptional circumstances where 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.”
Goldfuss, 79 Ohio St.3d at 122, 679 N.E.2d 1099; accord Gable v. Gates
Mills, 103 Ohio St.3d 449, 2004-Ohio-5719, 816 N.E.2d 1049, ¶ 43.
Moreover, appellate courts “ ‘should be hesitant to decide [forfeited errors]
for the reason that justice is far better served when it has the benefit of
briefing, arguing, and lower court consideration before making a final
determination.’ ” Risner at ¶ 28, quoting Sizemore v. Smith, 6 Ohio St.3d
330, 332, 453 N.E.2d 632 (1983), fn. 2; accord Mark v. Mellott Mfg. Co.,
Inc., 106 Ohio App.3d 571, 589, 666 N.E.2d 631 (4th Dist.1995) (“Litigants
must not be permitted to hold their arguments in reserve for appeal, thus
evading the trial court process.”). Additionally, “[t]he plain error doctrine
should never be applied to reverse a civil judgment * * * to allow litigation
Meigs App. No. 19CA6 12
of issues which could easily have been raised and determined in the initial
trial.” Goldfuss, 79 Ohio St.3d at 122, 679 N.E.2d 1099.
{¶19} Therefore, in the case at bar, we will review Appellant’s three-
part first assignment of error for plain error.
{¶20} Natural parents possess a constitutionally-protected,
“ ‘fundamental liberty interest in the care, custody, and management of their
children.’ ” In re Adoption of K.N.W., 4th Dist. Athens Nos. 15CA36 and
15CA37, 2016-Ohio-5863, ¶ 21, citing State ex rel. V.K.B. v. Smith, 138
Ohio St.3d 84, 2013-Ohio-5477, 3 N.E.3d 1184, ¶ 16, quoting In re
Hockstok, 98 Ohio St.3d 238, 2002-Ohio-7208, 781 N.E.2d 971, ¶ 16; In re
Mullen, 129 Ohio St.3d 417, 2011-Ohio-3361, 953 N.E.2d 302, ¶ 11.
Because an adoption permanently terminates a natural parent’s parental
rights, courts must afford the natural parent every procedural and substantive
protection before it deprives a parent of the right to consent to the adoption.
In re Hayes, 79 Ohio St.3d 46, 48, 679 N.E.2d 680 (1997). “ ‘Among those
protections are the right to adequate notice and an opportunity to be heard
before any parental rights which may exist are terminated.’ ” State ex rel.
Smith v. Smith, 75 Ohio St.3d 418, 421, 662 N.E.2d 366 (1996), quoting In
re Adoption of Greer, 70 Ohio St.3d 293, 298, 638 N.E.2d 999 (1994), citing
Lehr v. Robertson, 463 U.S. 248, 103 S.Ct. 2985, 77 L.Ed.2d 614 (1983); In
Meigs App. No. 19CA6 13
re Adoption of Zschach, 75 Ohio St.3d 648, 653, 665 N.E.2d 1070 (1996)
(observing that “ ‘[t]he fundamental requirement of due process is the
opportunity to be heard “at a meaningful time and in a meaningful
manner” ’ ”), quoting Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893,
47 L.Ed.2d 18 (1976), quoting Armstrong v. Manzo, 380 U.S. 545, 552, 85
S.Ct. 1187, 14 L.Ed.2d 62 (1965). Moreover, courts must strictly construe
adoption statutes “so as to protect the right of natural parents to raise and
nurture their children.” In re Schoeppner, 46 Ohio St.2d 21, 24, 345 N.E.2d
608 (1976); accord In re Adoption of B.I., 157 Ohio St.3d 29, 2019-Ohio-
2450, 131 N.E.3d 28, ¶ 12; In re Adoption of G.V., 126 Ohio St.3d 249,
2010-Ohio-3349, 933 N.E.2d 245, ¶ 6; In re Adoption of Masa, 23 Ohio
St.3d 163, 165, 492 N.E.2d 140 (1986).
{¶21} Upon the filing of a petition to adopt, R.C. 3107.11(A) requires
a trial court to “fix a time and place for hearing the petition” and to provide
at least twenty days’ notice of the time and place of the hearing to any
person whose consent to the adoption is necessary and to any person whose
consent is not necessary under R.C. 3107.07(A) and certain other provisions.
Under R.C. 3107.07(A), a biological parent’s consent is unnecessary if “the
parent has failed without justifiable cause to provide more than de minimis
contact with the minor * * * for a period of at least one year immediately
Meigs App. No. 19CA6 14
preceding either the filing of the adoption petition or the placement of the
minor in the home of the petitioner.” Once the court determines whether
“the required consents have been obtained or excused,” the court then must
consider whether “the adoption is in the best interest of the person sought to
be adopted.” R.C. 3107.14(C); In re Adoption of Walters, 112 Ohio St.3d
315, 2007-Ohio-7, 859 N.E.2d 545 ¶ 5.
{¶22} Appellant first asserts that he did not receive adequate notice of
the hearing. He alleges that R.C. 3107.11 requires the court to send notice
of an adoption petition hearing at least twenty days before the hearing.
Appellant argues that he did not receive notice of the adoption petition
hearing at least twenty days before the hearing and that the trial court,
therefore, lacked jurisdiction to proceed with the adoption petition hearing.
{¶23} In In re Adoption of Chapman, 4th Dist. Ross No. 03CA2722,
2004-Ohio-254, 2004 WL 102796, this court determined that a trial court
lacked jurisdiction over a parent in an adoption proceeding when the parent
had not received notice of the adoption petition hearing at least twenty days
before the date of the hearing. In Chapman, the parent had been served by
publication with the last date of publication occurring approximately two
and one-half weeks before the adoption petition hearing. The parent did not
Meigs App. No. 19CA6 15
appear for the adoption petition hearing and the trial court subsequently
entered an adoption decree.
{¶24} Approximately five months after the adoption decree, the parent
filed a Civ.R. 60(B) motion for relief from judgment. The trial court denied
the parent’s motion, and he appealed.
{¶25} We strictly construed the R.C. 3107.11(A) twenty-day notice
requirement and determined that because the parent had not received notice
in accordance with the twenty-day period set forth in R.C. 3107.11(A), “the
trial court did not have jurisdiction over [the parent] in the adoption
proceedings.” Id. at ¶ 11. We thus agreed with the parent that the trial court
lacked jurisdiction to enter an order in the adoption proceeding and reversed
the trial court’s judgment. Id. at ¶ 12.
{¶26} Here, we do not believe that Chapman requires us to conclude
that the trial court lacked jurisdiction to enter an adoption decree involving
Appellant’s child. Unlike the parent in Chapman, Appellant does not
dispute that he received notice of the adoption petition hearing at some point
before the hearing occurred. Furthermore, Appellant, again unlike the parent
in Chapman, appeared for the adoption petition hearing and participated in
the consent phase of the adoption petition hearing.
Meigs App. No. 19CA6 16
{¶27} Moreover, we observe that a party may waive a challenge to a
court’s personal jurisdiction by voluntarily appearing before the court. State
v. Mbodji, 129 Ohio St.3d 325, 2011-Ohio-2880, 951 N.E.2d 1025, ¶ 10;
Gliozzo v. Univ. Urologists of Cleveland, Inc., 114 Ohio St.3d 141, 2007-
Ohio-3762, 870 N.E.2d 714, ¶ 13. In the present case, Appellant appeared
before the court and did not raise any claim that he lacked adequate notice of
the adoption petition hearing. He also did not request a continuance in order
to obtain counsel or to gather evidence to present at the adoption petition
hearing. Furthermore, Appellant has not argued on appeal what evidence or
arguments he would have made to counter his admission that he failed to
have contact with his child for approximately three years. Consequently,
under the circumstances present in the case at bar, we are unable to conclude
that the trial court erred by failing to give Appellant the statutorily-required
twenty days’ notice of the adoption petition hearing.
{¶28} Appellant next argues that the trial court violated his due
process rights by removing him from the hearing once the court determined
that his consent was not necessary.
{¶29} Even when a court determines that a parent’s consent is not
required due to the parent’s unjustifiable failure to have more than
de minimis contact with the child for at least one year before the adoption
Meigs App. No. 19CA6 17
petition, the parent retains a due process right to notice and an opportunity to
be heard on the question whether the adoption is in the child’s best interest.
In re Adoption of R.M.T., 12th Dist. Warren No. CA2017-12-177, 2018-
Ohio-1691, 2018 WL 2041564, ¶ 26; In re Adoption of Groh, 153 Ohio
App.3d 414, 2003-Ohio-3087, ¶ 71-73, 794 N.E.2d 695 (7th Dist.); In re
Adoption of Jordan, 72 Ohio App.3d 638, 646, 595 N.E.2d 963 (12th Dist.
1991); In re Adoption of Jorgensen, 33 Ohio App.3d 207, 209, 515 N.E.2d
622 (3d Dist.1986). In R.M.T., for instance, the court found that the father
“was entitled to an opportunity to participate in the proceedings to show that
the adoption was not in [the child’s] best interest,” even though the trial
court had found that the father’s consent to the adoption was not required.
The court explained:
“[U]ntil the hearing on the merits of the petition and the best
interest of the minor child has been determined the natural
parent not only retains parental rights and responsibilities but
retains an overriding interest in being heard relevantly on the
issue of whether the proposed adoption would be in the best
interest of the child.” In re Adoption of Jordan, 72 Ohio
App.3d 638, 646, 595 N.E.2d 963 (12th Dist. 1991), quoting In
re Adoption of Jorgensen, 33 Ohio App.3d 207, 209, 515
N.E.2d 622 (3d Dist.1986).
Id. at ¶ 26; accord In re Adoption of B.M.S., 10th Dist. Franklin No. 07AP-
236, 2007-Ohio-5966, 2007 WL 3293369, ¶ 14.
Meigs App. No. 19CA6 18
{¶30} Here, the trial judge inexplicably removed Appellant from the
courtroom once the court determined that Appellant’s consent to the
adoption was not required. After Appellant’s removal, the court continued
with the hearing and considered whether adoption was in the child’s best
interest. By depriving Appellant of an opportunity to be heard on the matter
of the child’s best interest, the trial court plainly violated Appellant’s due
process rights. R.M.T. at ¶ 26; Groh at ¶ 71-73; Jordan, 72 Ohio App.3d at
646; Jorgensen, 33 Ohio App.3d at 209.
{¶31} Moreover, we believe that the trial court’s error is of sufficient
magnitude to result in a miscarriage of justice because of the fundamental
liberty interest at stake. By removing Appellant from the hearing, the court
denied Appellant the opportunity to show the court that the adoption is not in
the child’s best interest. The court thus denied Appellant his last and only
opportunity to establish that the court should not permanently sever his
relationship with the child and permanently terminate his fundamental
parental rights. Thus, we believe that failing to correct the trial court’s error
would create a manifest miscarriage of justice in that it would permit the
termination of Appellant’s parental rights without affording Appellant an
opportunity to be heard on the merits.
Meigs App. No. 19CA6 19
{¶32} We do not, however, believe that the trial court plainly erred by
depriving Appellant of a fair opportunity to be heard regarding whether his
consent to the adoption is required. The court removed Appellant from the
courtroom after the court had heard Appellant’s testimony and explanation
why he did not have contact with the child during the year preceding the
adoption petition. Before the court removed Appellant, the court questioned
Appellant and listened to his answers. Additionally, while Appellant
remained in the courtroom, the court informed Appellant that it determined
that his consent was not necessary and explained that the court did not
believe Appellant had established a “justifiable reason” for failing to
communicate with the child. The court then advised Appellant of his right
to appeal, and Appellant stated that he wanted to appeal the court’s decision.
Shortly thereafter, the court requested court staff to escort Appellant out of
the courtroom.
{¶33} After the court removed Appellant, the court expounded upon
its rationale for finding that Appellant’s consent was not required. We do
not believe that the court’s ruminations during Appellant’s absence deprived
Appellant of a fair opportunity to be heard regarding the consent issue.
{¶34} Accordingly, we sustain the part of Appellant’s first assignment
of error that challenges the court’s decision to exclude him from the best-
Meigs App. No. 19CA6 20
interest part of the hearing. In all other respects, we overrule Appellant’s
first assignment of error.
SECOND AND THIRD ASSIGNMENTS OF ERROR
{¶35} Appellant’s second and third assignments of error challenge the
trial court’s finding that his consent to the adoption was not required.
Because the same essential principles apply to both assignments of error, we
consider them together.
{¶36} In his second assignment of error, Appellant claims that the trial
court wrongly determined that he failed without justifiable cause to have
more than de minimis contact with the child for the one-year period
preceding the filing of the adoption petition.
{¶37} In his third assignment of error, Appellant asserts that the trial
court erred by concluding that Ohio law required it to find that Appellant’s
consent to adopt was not required if the court determined that Appellant’s
contact with the child was de minimis.
{¶38} Because parents have a constitutionally protected fundamental
liberty interest in the care, custody, and management of their children,
parental consent to an adoption ordinarily is required. In re Adoption of
Schoeppner, 46 Ohio St.2d 21, 24, 345 N.E.2d 608 (1976); accord In re
Adoption of M.G.B.-E., 154 Ohio St.3d 17, 2018-Ohio-1787, 110 N.E.3d
Meigs App. No. 19CA6 21
1236, ¶ 40; R.C. 3107.06. Any exception to the consent requirement “must
be strictly construed so as to protect the right of natural parents to raise and
nurture their children.” In re Adoption of Schoeppner, 46 Ohio St.2d 21, 24,
345 N.E.2d 608 (1976); accord In re Adoption of M.G.B.-E., 154 Ohio St.3d
17, 2018-Ohio-1787, 110 N.E.3d 1236, ¶ 40.
{¶39} R.C. 3107.07 defines the circumstances under which a parent’s
consent to adoption is not required. As relevant in the case at bar, under
R.C. 3107.07(A), a parent’s consent to adoption is not required if the trial
court “finds by clear and convincing evidence that the parent has failed
without justifiable cause to provide more than de minimis contact with the
minor * * * 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.”
{¶40} R.C. 3107.07(A) thus 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 petition. Id.Second, if the parent failed in either of the foregoing respects, the court then
determines whether justifiable cause exists. Id. A parent ordinarily “has
Meigs App. No. 19CA6 22
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.
{¶41} 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); accord In re B.B.S., 4th Dist.
Washington No. 15CA35, 2016-Ohio-3515, ¶ 30. In other words, “[n]o
burden is to be placed upon the non-consenting parent to prove that his
failure * * * was justifiable.” Holcomb at 368.
{¶42} A probate court possesses discretion when determining whether
a parent failed to have contact with the child during the one-year period. Id.
at ¶ 25. Thus, in the absence of an abuse of discretion, an appellate court
will not disturb the probate court’s finding concerning a parent’s failure to
have contact with the child. 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
Meigs App. No. 19CA6 23
N.E.2d 671, ¶ 23. “An abuse of discretion includes a situation in which a
trial court did not engage in a ‘ “sound reasoning process.” ’ ” State v.
Darmond, 135 Ohio St.3d 343, 2013-Ohio-966, 986 N.E.2d 971, ¶ 34,
quoting State v. Morris, 132 Ohio St.3d 337, 2012-Ohio-2407, 972 N.E.2d
528, ¶ 14, quoting AAAA Ents., Inc. v. River Place Community Urban
Redevelopment Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990). The
“[a]buse-of-discretion review is deferential and does not permit an appellate
court to simply substitute its judgment for that of the trial court.” Darmond
at ¶ 34. Accordingly, the probate court’s decision may be reversed only if
an appellant can demonstrate that the decision was unreasonable, arbitrary,
or unconscionable.
{¶43} The question of justifiable cause, however, 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
Meigs App. No. 19CA6 24
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.
{¶44} Moreover, 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 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).
Meigs App. No. 19CA6 25
{¶45} Consequently, “we should not reverse a judgment merely
because the record contains evidence that could reasonably support a
different conclusion.” Bugg v. Fancher, 4th Dist. Highland No. 06CA12,
2007-Ohio-2019, 2007 WL 1225734, ¶ 9. Instead, as we explained in Bugg:
It is the trier of fact’s role to determine what evidence is the
most credible and convincing. The fact finder is charged with
the duty of choosing between two competing versions of
events, both of which are plausible and have some factual
support. Our role is simply to insure the decision is based upon
reason and fact. We do not second guess a decision that has
some basis in these two factors, even if we might see matters
differently. Rather, we must defer to the trier of fact in that
situation.
Id. at ¶ 9.
{¶46} As such, when there are two fairly reasonable views of the
evidence or two conflicting versions of events, neither of which is
unbelievable, we will not choose which one is more credible. State v. Gore,
131 Ohio App.3d 197, 201, 722 N.E.2d 125 (7th Dist.1999). We
additionally observe that the factfinder is free to believe all, part, or none of
the testimony of each witness appearing before it and “may separate the
credible parts of the testimony from the incredible parts.” KB Resources,
LLC v. Patriot Energy Partners, LLC, 7th Dist. Columbiana No. 17 CO
0002, 2018-Ohio-2771, 2018 WL 3487166, ¶ 85; Thompson v. Hayslip, 74
Ohio App.3d 829, 600 N.E.2d 756 (4th Dist. 1991).
Meigs App. No. 19CA6 26
{¶47} After our review of the evidence here, we do not believe that
the trial court abused its discretion by determining that Appellant failed to
have more than de minimis contact with the child during the year preceding
the filing of the adoption petition. At the hearing, Appellant admitted that he
had not had any direct contact with the child in approximately three years.
The testimony showed that Appellant’s only contact with the child was
through a 2018 Christmas card and a 2017 Christmas package. Other than
those two instances, Appellant 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 by determining that Appellant did not have
more than de minimis contact with the child.
{¶48} Furthermore, we do not believe that the court’s finding that
Appellant lacked justifiable cause for failing to have more than de minimis
contact with the child is against the manifest weight of the evidence.
Appellant indicated that even though he could have attempted to contact the
child, he did not because he was afraid of causing “problems.” The court
noted that Appellant could have walked to the child’s residence “once a
week and bang[ed] on the door.” Appellant responded: “Oh no, that wasn’t
allowed.” The court asked Appellant whether he bore some responsibility
for not attempting to contact the child. Appellant stated that he “guess[ed]”
Meigs App. No. 19CA6 27
so, but “when you live with the devil, I mean you aint [sic] allowed to do a
certain thing, you, I mean it just causes problems at home.” We believe that
the foregoing evidence constitutes some competent and credible evidence to
support the court’s finding that Appellant’s failure to contact the child was
not justifiable. Consequently, we will not disturb the court’s finding.
{¶49} Appellant further alleges that the trial court erred as a matter of
law. Appellant asserts that the court operated under an erroneous
presumption that Ohio law required the court to find that Appellant’s
consent to the adoption is not required if the court found that Appellant’s
contact with the child was de minimis. Appellant cites various parts of the
adoption hearing transcript to support his argument. However, after our
review of the entire record, we are unable to agree with Appellant that the
trial court applied an incorrect legal rule when it found that Appellant’s
consent to the adoption is not required. We note that a court speaks only
through its journal entries and that none of the journal entries in this case
indicate that the court applied an incorrect rule of law. E.g., S.P. Drilling
Services, Inc. v. Cooper's Excavating LLC, 4th Dist. Adams No. 17CA1058,
2019-Ohio-55, 2019 WL 171567, ¶ 13, citing Short v. Greenfield Meadows
Assoc., 4th Dist. Highland No. 07CA14, 2008-Ohio-3311, ¶ 11.
Meigs App. No. 19CA6 28
Additionally, the entirety of the adoption hearing transcripts fails to show
that the trial court applied an incorrect legal rule.
{¶50} Accordingly, based upon the foregoing reasons, we overrule
Appellant’s second and third assignments of error and affirm the trial court’s
judgment.
FOURTH ASSIGNMENT OF ERROR
{¶51} In his fourth assignment of error, Appellant argues that the trial
court erred by failing to adequately consider the best-interest factors. We
believe that our disposition of Appellant’s assignment of error challenging
the court’s decision to remove him from the courtroom before the best-
interest hearing renders Appellant’s fourth assignment of error moot. Thus,
we do not address it. App.R. 12(A)(1)(c).
{¶52} Accordingly, based upon the foregoing reasons, we summarily
overrule Appellant’s fourth assignment of error.
CONCLUSION
{¶53} Based upon the foregoing reasons, we sustain the portion of
Appellant’s first assignment of error that challenges the court’s decision to
remove him from the courtroom before the best-interest hearing. In all other
respects, we overrule Appellant’s first assignment of error. We also overrule
Meigs App. No. 19CA6 29
Appellant’s second and third assignments of error. We overrule as moot
Appellant’s fourth assignments of error.
{¶54} We affirm the trial court’s decision that Appellant’s consent to
the adoption is not required. But we reverse the trial court’s judgment
granting the adoption, and we remand the matter to the trial court so that it
may allow Appellant an opportunity to be heard on the matter of the child’s
best interest.
JUDGMENT AFFIRMED IN
PART AND REVERSED AND
REMANDED IN PART.
Meigs App. No. 19CA6 30
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED IN PART AND
REVERSED AND REMANDED IN PART. Costs shall be divided equally
between the parties.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing
the Meigs 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.
Abele, J. & Hess, J.: Concur in Judgment and Opinion.
For the Court,
______________________________
Jason P. Smith
Presiding 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.