In re J.L.H. ( 2014 )

[Cite as In re J.L.H., 2014-Ohio-2376.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
IN THE MATTER OF: JUDGES:
Hon. William B. Hoffman, P.J.
J.L.H. AND J.A.H. Hon. W. Scott Gwin, J.
Hon. Craig R. Baldwin, J.
Case No. 2013CA00250
OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court of
Common Pleas, Probate Division,
Case Nos. 21333 and 21334
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: June 2, 2014
APPEARANCES:
For Appellants For Petitioners-Appellees
FREDERICK & ERIN HILDENBRAND JOAN SELBY
PRO, SE 1428 Market Ave North
1338 18th St NE Canton, Ohio 44714
Canton, Ohio 44705
Stark County, Case No. 2013CA00250 2
Hoffman, P.J.
{¶1} Appellants Erin Hildebrand and Frederick Hildebrand appeal the
November 27, 2013 Judgment Entry entered by the Stark County Court of Common
Pleas, Probate Division, which found their consent was not required for the adoption of
their two minor daughters by petitioners-appellees Thomas and Kathleen Shimko.
STATEMENT OF THE FACTS AND CASE
{¶2} Appellants are the biological parents of J.L.H. (DOB 3/17/05) and J.A.H.
(DOB 2/28/07). Appellee Kathleen Shimko is the maternal grandmother of the children.
Appellee Thomas Shimko is her husband. On June 30, 2008, Appellees filed a
complaint in Stark County Juvenile Court Case No. 2008 JCV 0724, seeking custody of
their granddaughters. The matter came on for hearing before the magistrate on
September 30, 2009. The magistrate granted legal custody of the girls to Appellees.
The trial court affirmed the magistrate’s decision on November 9, 2009.
{¶3} Via Judgment Entry filed August 26, 2010, the trial court dismissed all of
Appellants’ pending motions, affirmed the magistrate’s decision regarding custody,
issued a no contact order, and closed the case. The trial court advised Appellants they
could “refile similar motions affecting custody/visits regarding these children if
accompanied by the completed Dr. Tener report and an additional deposit of $1000 for
the GAL ...”
{¶4} Appellants appealed to this Court. We affirmed. In the Matter of J.L.H.,
J.A.H. and F.K.H., Stark App.2010CA00266, 2011 -Ohio- 5586. Appellants’ appeals to
the Ohio Supreme Court and the United States Supreme Court were denied.
Stark County, Case No. 2013CA00250 3
{¶5} On November 7, 2011, Appellees filed a petition for adoption. Therein,
Appellees maintained Appellants’ consent to the adoption was not necessary as they
failed to support and had not contacted the children for one year prior to the filing of the
petition, and such failure was without justifiable cause. The trial court conducted an
evidentiary hearing on September 16, 2013. Appellee Kathleen Shimko and Appellants
testified at the hearing. Appellees and Appellants submitted proposed findings of fact
and conclusions of law on September 23, 2013, and September 25, 2013, respectively.
{¶6} Via Judgment Entry filed November 27, 2013, the trial court ruled
Appellants’ consent to the adoption was not required. The trial court found Appellees
had established, by clear and convincing evidence, Appellants had not had any contact
with and had failed to support their daughters without justifiable cause for at least one-
year prior to the filing of the petition for adoption of Appellees.
{¶7} Appellants now raise the following assignments of error on appeal:
{¶8} "I. THE PROBATE COURT ERRED IN FINDING THAT APPELLANTS
DID NOT HAVE JUSTIFIABLE CAUSE FOR THEIR INABILITY TO COMMUNICATE
OR HAVE CONTACT WITH THEIR CHILDREN DURING THE YEAR PRIOR TO THE
FILING OF THE ADOPTION PETITION. THE FAMILY COURT ISSUED ORDERS
PREVENTING THE APPELLANTS FROM HAVING ANY CONTACT WITH THEIR
CHILDREN. THE PROBATE COURTS DETERMINATION IS IN CONTRADICTION TO
THE MANIFEST WEIGHT OF THE EVIDENCE, WHICH CLEARLY INDICATES THAT
THERE WAS INDEED 'SIGNIFICANT INTERFERENCE AND/OR
DISCOURAGEMENT' WITH COMMUNICATION AND COMPANIONSHIP BETWEEN
Stark County, Case No. 2013CA00250 4
THE PARENTS AND THEIR CHILDREN, WHICH WAS BEYOND THE CONTROL OF
THE PARENTS.
{¶9} "II. THE PROBATE COURT ERRED IN FINDING THAT APPELLANTS
DID NOT HAVE JUSTIFIABLE CAUSE FOR NOT PAYING CHILD SUPPORT FOR
THEIR CHILDREN DURING THE YEAR PRIOR TO THE FILING OF THE ADOPTION
PETITION. THE DECISION GOES AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE. THE MEDINA COUNTY COURT REVIEWED THE FACTS AND
CIRCUMSTANCES OF THIS CASE, AND ISSUED VALID AND APPLICABLE
JUDICIAL ORDERS DISMISSING THE MATTER OF CHILD SUPPORT.
{¶10} "III. THE PROBATE COURT ERRED IN FINDING THAT APPELLANTS
DID NOT HAVE JUSTIFIABLE CAUSE FOR NOT PAYING CHILD SUPPORT FOR
THEIR CHILDREN DURING THE YEAR PRIOR TO THE FILING OF THE ADOPTION
PETITION. THE DECISION GOES AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE. THE DECISION LIKEWISE FAILED TO RECOGNIZE OR GIVE
ADEQUATE WEIGHT TO THE APPELLEES FINANCIAL CONSTRAINTS AND THE
RESULTING FINANCIAL BURDENS WHICH HAVE STEMMED FROM THEIR
EXTENSIVE EFFORTS TO REGAIN CUSTODY OF THEIR CHILDREN, AS SUCH
PAYMENTS WOULD HAVE EXTINGUISHED THEIR ABILITY TO HIRE THE
ATTORNEYS NEEDED TO APPROPRIATELY FIGHT FOR THE RETURN OF THEIR
CHILDREN.
{¶11} "IV. THE PROBATE COURT ABUSED ITS DISCRETION IN FINDING
THAT THE APPELLANTS CONSENT WAS NOT REQUIRED, ABSENT A PRIOR
FINDING OF PARENTAL UNFITNESS. THE ADOPTION PETITION IS PRE-MATURE
Stark County, Case No. 2013CA00250 5
AND/OR INVALID PRIOR TO SUCH A FINDING. IF THE LAW HAD BEEN UPHELD
IN THE FAMILY COURT, THE APPELLEES WOULD NOT BE IN A POSITION TO
ADOPT THESE CHILDREN.
{¶12} "V. THE PROBATE COURT ABUSED ITS DISCRETION IN FINDING
THAT THE CONSENT OF THE APPELLANTS WAS NOT REQUIRED FOR
CHILDREN TO WHICH BY LAW THE APPELLANTS ARE STILL LEGALLY ENTITLED
TO HAVE CUSTODY OF, IF IT WERE NOT FOR THE ABUSES OF DISCRETION BY
THE FAMILY COURT, WHICH REMOVED THE CHILDREN IN VIOLATION OF LAW
AND THE APPELLANTS CONSTITUTIONAL RIGHTS, SOLELY AS A PUNISHMENT
FOR AN ALLEGED LACK OF COMPLIANCE WITH COURT ORDERS.
{¶13} "VI. THE PROBATE COURT ABUSED ITS DISCRETION IN FINDING
THAT THE CONSENT OF THE APPELLANTS WAS NOT REQUIRED FOR
CHILDREN TO WHICH BY LAW THE APPELLANTS ARE STILL LEGALLY ENTITLED
TO HAVE CUSTODY OF, IF IT WERE NOT FOR THE ABUSES OF DISCRETION BY
THE FAMILY COURT, WHICH HAS KEPT THE CUSTODY OF THEIR CHILDREN
FROM THE APPELLANTS IN VIOLATION OF THE APPELLANTS CONSTITUTIONAL
RIGHTS TO DUE PROCESS AND THE LAWS ENCOMPASSING THEIR RIGHT TO
THE CARE AND CONTROL OF THEIR CHILDREN."
I, II, III, IV, V, VI
{¶14} Appellants’ assignments of error are related and will be considered
together.
{¶15} The termination of a natural parent's right to object to the adoption of his
child requires strict adherence to the controlling statutes. In re: Adoption of Kuhlmann,
Stark County, Case No. 2013CA00250 6
99 Ohio App. 3d 44, 649 N.E.2d 1279 (1st Dist.1994). Ordinarily, the written consent of a
minor child's natural parents is required prior to adoption, but R.C. 3107.07 provides
exceptions to this requirement. R.C. 3107.07(A) states:
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. (Emphasis added).
{¶16} Appellees had the burden of proof in this action. “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 Holcomb, 18
Ohio St. 3d 361, 481 N.E.2d 613 (1985); see also In re Adoption of Bovett, 33 Ohio
St.3d 102, 104, 515 N .E.2d 919 (1987). “No burden is to be placed upon the non-
consenting parent to prove that his failure to communicate was justifiable.” Holcomb, 18
Ohio St. 3d at 368.
{¶17} With regard to support, the relevant inquiry is not whether the parent
provided support as would be expected, “but whether the parent's failure to support * * *
is of such magnitude as to be the equivalent of abandonment.” Gorski v. Myer, 5th Dist.
Stark County, Case No. 2013CA00250 7
Stark No.2005CA00033, 2005–Ohio–2604, citing Celestino v. Schneider, 84 Ohio
App.3d 192 (6th Dist.1992). The Ohio Supreme Court emphasized that monetary gifts to
the child do not qualify as 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. A probate judge has discretion to determine
whether the biological parent provided support as contemplated by R.C. 3107.07(A)
“and his or her judgment should not be tampered with absent an abuse of discretion.” In
re Adoption of Bovett, 33 Ohio St. 3d at 107, 515 N.E.2d 919 (1987).
{¶18} “Once the clear and convincing standard has been met to the satisfaction
of the probate court, the reviewing court must examine and record and determine if the
trier of fact had sufficient evidence before it to satisfy this burden of proof * * * The
determination of the probate court should not be overturned unless it is unsupported by
clear and convincing evidence.” Holcomb, 18 Ohio St. 3d at 368. Clear and convincing
evidence is the “measure or degree of proof that will produce in the mind of the trier of
fact a firm belief or conviction as to the allegations sought to be established.” In re:
Estate of Haynes, 25 Ohio St .3d 101, 103–104, 495 N.E.2d 23 (1986).
{¶19} With respect to a failure to support, the Ohio Supreme court stated, “[t]he
question of whether justifiable cause for failure to pay child support has been proven by
clear and convincing evidence in a particular case is a determination for the probate
court and will not be disturbed on appeal unless such determination is against the
manifest weight of the evidence.” In re: Adoption of M.B., 131 Ohio St. 3d 186, 2012–
Ohio–236, 963 N.E.2d 142.
Stark County, Case No. 2013CA00250 8
{¶20} We have reviewed the entire record in this matter. We agree with the well-
reasoned opinion of the trial court and adopt the same, which is attached hereto and
incorporated by reference herein. For the reasons advanced in that opinion, Appellants'
first, second, third, fourth, fifth, and sixth assignments of error are overruled.
{¶21} The judgment of the Stark County Court of Common Pleas, Probate
Division, is affirmed.
By: Hoffman, P.J.
Gwin, J. and
Baldwin, J. concur