In re Petition for Adoption of H.R. , 2018 Ohio 2806 ( 2018 )

[Cite as In re Petition for Adoption of H.R., 2018-Ohio-2806.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
LOGAN COUNTY
IN RE: THE PETITION FOR
ADOPTION OF: CASE NO. 8-17-57
H.T.,
[PATRICIA REISINGER,
ADMINISTRATOR OF THE ESTATE OF OPINION
LARRY REISINGER II - APPELLANT]
Appeal from Defiance County Common Pleas Court
Probate Court
Trial Court No. 12-AD-12
Judgment Affirmed
Date of Decision: July 16, 2018
APPEARANCES:
Elizabeth M. Mosser for Appellant
Kathryn C. Dougherty for Appellees
Case No. 8-17-57
SHAW, J.
{¶1} Appellant, Patricia Reisinger, Administrator for the Estate of Larry
Reisinger, II, appeals the December 15, 2017 judgment of the Logan County Family
Court Probate Division, granting the petition for adoption filed by Ravonda T. and
Thomas T. of their minor grandchild, H.T. On appeal, Patricia claims that the trial
court erred in overruling her motion for a new trial based upon additional evidence,
and finding that granting the petition for adoption of H.T. was the least detrimental
available alternative and was in the child’s best interest.
Procedural History
{¶2} H.T. was born in 2009 and placed in Ravonda and Thomas’ home
immediately after her discharge from the hospital at 15 days old. Ravonda and
Thomas are the parents of H.T.’s biological mother. Appellant Patricia is H.T.’s
paternal grandmother, and mother to Larry, H.T.’s biological father. The record
suggests that there was a court order issued by the Union County Juvenile Court
which gave Ravonda and Thomas legal custody of H.T. and granted Patricia
visitation with H.T.1
1
The record indicates that Union County Children Services became involved with H.T. shortly after her birth
because a dependency, neglect, and abuse case was opened due to H.T.’s medical condition at the time of
birth.
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1. Prior Proceeding: Consent
{¶3} On June 5, 2012, Ravonda and Thomas filed a petition to adopt H.T. In
their petition, Ravonda and Thomas asserted that Larry’s consent to the adoption
was not necessary because: (1) Larry, who at the time had been incarcerated since
January 2010, “failed without justifiable cause to provide more than de minimis
contact with [H.T.] for a period of at least one year immediately preceding the filing
of the adoption petition;” and (2) Larry “failed without justifiable cause to provide
for the maintenance and support of [H.T.] as required by law or judicial decree for
a period of at least one year immediately preceding the filing of the adoption
petition.” (Doc. No. 1). H.T.’s biological mother also filed her consent to Ravonda
and Thomas’ adoption of H.T. Larry opposed the petition and argued that his
consent was necessary.
{¶4} On June 9, 2014, the trial court issued a judgment entry on the matter
and concluded that Larry’s consent to the adoption was not required under R.C.
3107.07(K) because he failed to timely file an objection to the petition for adoption;
that his consent to the adoption was not necessary under R.C. 3107.07(A) because
he “had no, or at best, only de minimis contact with [H.T.] for the one year time
period immediately prior to the filing of the Petition for Adoption;” that under R.C.
3107.07(A), “any support or maintenance [Larry] has paid or provided has been
miniscule and a token at best.” (Doc. No. 98 at 15-16). The trial court further
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concluded that it is in H.T.’s “best interest that she be adopted by [Ravonda and
Thomas] and have no contact with [Larry].” (Id.).
{¶5} Larry appealed the trial court’s determination regarding the issue of
consent to this Court and argued that the trial court erred in finding his consent was
unnecessary to proceed with the petition for adoption.
{¶6} On December 9, 2014, this Court affirmed the trial court’s judgment in
In re H.R., 3d Dist. Logan No. 8-14-15, 2014-Ohio-5390. Specifically, we
concluded that Larry’s consent to the petition for adoption of H.T. was not required
under R.C. 3107.07(A) because he failed without justifiable cause to provide more
than de minimis contact with H.T. for a period of at least one year immediately
preceding the filing of the adoption petition. Id. at ¶ 41.
2. Judgment on the Adoption Petition
{¶7} The case was remanded to the trial court, which considered the merits
of the petition for adoption of H.T. Discovery was propounded by both parties and
the trial court, over Ravonda and Thomas’ objection, granted Larry’s motion to have
a guardian ad litem appointed to the case.
{¶8} On March 6, 2015, a new judge was assigned to preside over the case
necessitating a continuance of the evidentiary hearing on the petition for adoption.
The guardian ad litem filed her report on May 13, 2015.
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{¶9} On May 14 and 28, 2015, and July 31, 2015 the trial court conducted
an evidentiary hearing on the matter. The parties subsequently submitted written
closing arguments to the trial court.
{¶10} For reasons not apparent from the record, no action by the trial court
was taken regarding the determination of the merits of the petition for adoption
during the remainder of 2015 and the entire year of 2016.
{¶11} On December 28, 2016, a “Notice of Death of Biological Father” was
filed by Ravonda and Thomas’ counsel, informing the trial court that Larry had died
unexpectantly on December 24, 2016. A notice was subsequently filed with the
trial court informing it that an Estate for Larry had been opened and that Patricia
was named the Administrator.
{¶12} On January 3, 2017, a “Motion to Consider New Evidence” was filed
on Larry’s behalf and pursued by Patricia as fiduciary of the Estate. Ravonda and
Thomas filed a response noting that Larry was the only party to the case who
contested the petition for adoption. They further argued that Patricia was not a party
to the case and had no standing to contest the petition.
{¶13} On September 5, 2017, Ravonda and Thomas filed a “Motion for
Status,” detailing the nearly five-year litigation of the pending adoption petition and
“imploring” the trial court to hold a status hearing and provide the parties’ counsel
with a date as to when the final decision would be filed. (Doc. No. 203 at 6).
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{¶14} On October 24, 2017, the trial court issued a decision granting
Ravonda and Thomas’ petition to adopt H.T.
{¶15} On November 20, 2017, Patricia, in her fiduciary capacity, filed a
“Notice of Pending Motion—Lack of Final Appealable Order,” claiming that the
trial court failed to rule on the “Motion to Consider New Evidence” filed on January
3, 2017 in its decision granting the petition for adoption and arguing that no final
appealable order as to the adoption existed. On the same day, Patricia filed a motion
for a new trial based upon new evidence that had accumulated since the prior
evidentiary hearing in 2015, and a motion for stay of judgment. Ravonda and
Thomas filed responses to Patricia’s motions.
{¶16} On December 15, 2017, the trial court issued a judgment entry finding
that its October 24, 2017 judgment granting Ravonda and Thomas’s petition to
adopt H.T. rendered Patricia’s January 3, 2017 motion to consider new evidence
moot. With respect to Patricia’s motion for a new trial, the trial court found that
Larry’s untimely death did not alter its decision to grant the petition for adoption
under R.C. 3107.161 and thus found it unnecessary to hear additional evidence on
the matter.
{¶17} Patricia subsequently filed a notice of appeal, asserting the following
assignments of error.
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ASSIGNMENT OF ERROR NO. 1
THE TRIAL COURT ABUSED ITS DISCRETION IN NOT
CONSIDERING NEW EVIDENCE OR ORDERING A NEW
TRIAL.
ASSIGNMENT OF ERROR NO. 2
THE TRIAL COURT ABUSED ITS DISCRETION IN
GRANTING THE ADOPTION AND TERMINATING THE
CHILD’S FAMILIAL RELATIONSHIPS.
First Assignment of Error
{¶18} In the first assignment of error, Patricia argues the trial court abused
its discretion when it overruled her motion for a new trial. Patricia contends that
she was entitled to a new trial based upon newly discovered evidence that
established that “[s]ince the time of final hearing, [H.T.] has had two additional
years of continued visitations with Patricia Reisinger and her family.” (Doc. No.
211 at 2). Patricia further maintained that Larry’s untimely death also removed the
primary concern that Ravonda and Thomas had with H.T.’s visitation with Patricia
and her paternal family; specifically, their concern that Larry was a danger to H.T.
and that court orders restraining him from contact with her were insufficient to
protect her. (Id.).
{¶19} Civ.R. 59(A)(8) states that a new trial may be granted if the moving
party presents “[n]ewly discovered evidence, material for the party applying, which
with reasonable diligence he could not have discovered and produced at trial[.]” To
prevail on a motion for a new trial based on the ground of newly discovered
evidence:
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it must be shown that (1) the new evidence must be such as will
probably change the result if a new trial is granted, (2) it must
have been discovered since the trial, (3) it must be such as could
not in the exercise of due diligence have been discovered before
the trial, (4) it must be material to the issues, (5) it must not be
merely cumulative to former evidence, and (6) it must not merely
impeach or contradict the former evidence.
Sheen v. Kubiac, 131 Ohio St. 52 (1936), paragraph three of the syllabus.
{¶20} The decision of whether to grant or deny a motion for new trial is
committed to the sound discretion of the trial court. In re C.C., 10th Dist. Franklin
Nos. 04AP-883, 04AP-884, 04AP-885, 04AP-886, 04AP-887, 04AP-888, 04AP-
889, 04AP-890, 04AP-891, 04AP-892, 2005-Ohio-5163, ¶ 74, citing Taylor v. Ross,
150 Ohio St. 448 (1948). We will not reverse a trial court’s denial of a motion for
new trial absent an abuse of that discretion. Sharp v. Norfolk & W. Ry. Co., 72 Ohio
St.3d 307 (1995). An abuse of discretion implies that a court’s ruling is
unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio
St.3d 217, 219.
{¶21} However, as an initial matter, we must address the participation of
Patricia in this case. The record reflects that H.T.’s biological parents did not
attempt to play a significant role in her life. As noted by the trial court in its decision
“[t]here appears to be little to no likelihood of a safe reunification with either birth
parent, as mother remains [out of state] and has another child, and father has
continued to spend time in multiple incarcerations, including prison for four years
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between 2011 to 2015. Many of father’s criminal conduct involves assaultive
behavior.” (Doc. No. 204 at 5). It is notable that one of these crimes for which
Larry served prison time was for committing felonious assault against Ravonda and
Thomas’ daughter while she was pregnant with H.T. Needless to say, the record
indicates that there was a significant amount of acrimony and distrust between
Ravonda and Thomas and Patricia arising out of this painful history.
{¶22} As previously mentioned, the record further indicates that Ravonda
and Thomas were given legal custody of H.T. from 15 days old to the time of the
trial court’s granting of the petition for adoption by order of Union County Juvenile
Court, with Patricia having every other weekend visitation. The immediate adoption
proceedings were filed in 2012 by Ravonda and Thomas with H.T.’s birth mother’s
consent, and this Court later affirmed the trial court’s determination that Larry’s
consent was not required under R.C. 3107.07(A).
{¶23} This notwithstanding, as noted by the trial court “one of the most
troubling aspects of this case” is the fact that “[t]he only time the Respondent, birth
father of [H.T.], appeared in Court was the day the Probate Court had scheduled this
matter for the second phase of an adoption, that is oftentimes a finalization of the
adoption. This was January 15, 2015.” (Doc. No. 204 at 2). At this time Larry
requested an evidentiary hearing to be scheduled to determine whether granting the
petition for adoption was in H.T.’s best interest. The matter was continued and the
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trial court held an evidentiary hearing which lasted three days. Despite his request
for the hearing to take place, which further delayed the proceedings, the trial court
observed what later transpired in the courtroom: “While counsel for Respondent
presented his case before the Court, each day of [the] hearing reminded all present
there was one empty chair at counsel table for the Respondent.” (Id.). Even though
Larry failed to be actively involved in the adoption proceedings, to the trial court it
became “abundantly clear the individual that was leading and/or guiding the
Respondent’s case was his mother, Patricia Reisinger.” (Id.)
{¶24} Chapter 3107 of the Revised Code governs adoptions in Ohio. In re
Adoption of Ridenour, 61 Ohio St.3d 319, 328 (1991). Sections 3107.11 and
3107.06 the Revised Code specifies that particular parties must be given notice of
the filing of the adoption petition and also requires the written consent of particular
parties before an adoption petition may be granted. Id; see also 3107.07 (stating
when the consent of particular parties is not required). The fiduciary of a deceased
parent’s estate is not listed as a person who must be given notice of or consent to an
adoption under the statutory provision. Moreover, Patricia has failed to provided us
with any authority which permits her to be a party to these proceedings, let alone to
have standing to challenge the granting of the petition, either via direct appeal of
that judgment, which was not undertaken, or via a post judgment motion to
“reconsider evidence” or a motion for a new trial.
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{¶25} Furthermore, it is noteworthy that upon reviewing the grounds on
which Patricia bases her motion for a new trial, it is apparent that Patricia is still
attempting to “lead and/or guide” Larry’s case posthumously for her own interests
alone in that the additional evidence that Patricia seeks the trial court to consider is
in support of her relationship with H.T., rather than advocating for any right that
Larry may have been able to assert during his lifetime as H.T.’s natural father.
{¶26} In other words, it is clear that Patricia is raising objections to the trial
court’s granting of the adoption petition by attempting to utilize her “fiduciary
capacity” as Administrator of Larry’s Estate solely in order to prevent the trial court
from terminating her grandparent visitations with H.T. In re Adoption of Ridenour,
61 Ohio St.3d at 330 (“[U]nless the [grandparents] are themselves seeking to adopt,
they do not have an interest in the adoption proceeding per se sufficient to give them
standing to intervene.” See In re Adoption of T.B.S., 4th Dist. Scioto No. 07CA3139,
2007-Ohio-3559, ¶ 13, quoting State ex rel. Hitchcock v. Cuyahoga Cty. Court of
Common Pleas, Probate Div., 97 Ohio App.3d 600, 609 (1994) (“The law is clear
that ‘biological grandparents do not have standing in adoption proceedings’* * *”);
R.C. 3107.15(A)( stating “[a] final decree of adoption * * * shall have the following
effects as to all matters within the jurisdiction or before a court of this state * * * to
terminate all legal relationships between the adopted person and the adopted
person’s relatives, including the adopted person’s biological or other legal parents,
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so that the adopted person thereafter is a stranger to the adopted person’s former
relatives for all purposes * * *).2 As such, Patricia’s posture in this adoption case is
utterly without any capacity or standing.
{¶27} Moreover, the prior proceedings in the case establishing that Larry’s
consent to the petition is unnecessary, the evidence reflected in the record of Larry’s
lack of involvement in the case, and the fact that Larry is now deceased all
conclusively preclude the existence of any new evidence, material to Larry’s
interest as a party to the case, which would have any likelihood of changing the
trial court’s decision to grant Ravonda and Thomas’ petition to adopt H.T.
{¶28} Notwithstanding Patricia’s lack of capacity to be a party, we note that
our review of the merits of this case is in any event hampered by a failure to provide
this Court with transcripts of the trial court proceedings. “When portions of the
transcript necessary for resolution of assigned errors are omitted from the record,
the reviewing court has nothing to pass upon and thus, to those assigned errors, the
court has no choice but to presume the validity of the lower court’s proceedings,
and affirm.” Knapp v. Edwards Laboratories, 61 Ohio St.2d 197, 199 (1980).
When arguing any factual matter, a transcript is necessary on appeal as Appellant
bears the burden of demonstrating error by reference to matters contained within the
record. State v. Skaggs, 53 Ohio St.2d 162, 163 (1978). As a result, even if we were
2
We acknowledge that there is an exception in the statute under R.C. 3107.15(B) regarding a step-parent
adoption after the death of a natural parent, however, the facts in this case do not implicate this exception.
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to overlook the issues of capacity and standing, we would have no choice but to
presume that the proceedings before the trial court were proper and must affirm the
trial court’s decision.
{¶29} Accordingly, for all these reasons, we find no error in the trial court’s
decision to overrule Patricia’s motion for a new trial based upon newly discovered
evidence. As such, the first assignment of error is overruled.
Second Assignment of Error
{¶30} In the second assignment of error, Patricia claims that the trial court’s
decision to grant Ravonda and Thomas’ petition for adoption was not in H.T.’s best
interest.
Standard of Review
{¶31} The person contesting an adoption petition has the burden of providing
“material evidence needed to determine what is in the best interest of the child” and
the burden of establishing “that the child’s current placement is not the least
detrimental available alternative.” R.C. 3107.161(C). For these purposes, “least
detrimental available alternative” means “the alternative that would have the least
long-term negative impact on the child.” R.C. 3107.161(A). However, the petitioner
retains the burden of proving that adoption is in the best interest of the child. We
review a probate court’s decision to grant or deny an adoption petition under an
abuse of discretion standard. In Re Adoption of Ridenour, 61 Ohio St.3d 319, 320
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(1991). To find an abuse of discretion, we consider whether the court’s decision is
unreasonable, arbitrary, or unconscionable. Id.{¶32} At the outset we find that the reasons stated in our resolution of the
first assignment of error regarding Patricia’s lack of capacity and standing to be a
party in this case, and in particular the failure to file any transcripts of the evidentiary
best interest hearing on appeal, are similarly applicable to the second assignment of
error. However, in the interest of justice and considering the importance of any
adoption matter, we would note that based upon our review of the portions of the
record, reports, and decision of the trial court that are before us, we find no abuse
of discretion in the judgment of the trial court finding it was in H.T.’s best interest
to grant Ravonda and Thomas’ petition for adoption. Accordingly, the second
assignment of error is overruled.
{¶33} Based on the foregoing, the assignments of error are overruled and the
judgment of the probate court is affirmed.
Judgment Affirmed
WILLAMOWSKI, P.J. and ZIMMERMAN, J., concur.
/jlr
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