In re Petition for Adoption of A.V. ( 2022 )

[Cite as In re Petition for Adoption of A.V., 2022-Ohio-2969.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
SANDUSKY COUNTY
In re Petition for Adoption of A.V. Court of Appeals No. S-21-019
Trial Court No. 20214002
DECISION AND JUDGMENT
Decided: August 24, 2022
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Autumn D. Adams, for appellant.
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OSOWIK, J.
{¶ 1} Appellant, J.V., appeals the October 12, 2021 judgment of the Sandusky
Court of Common Pleas, Probate Division, denying her petition to adopt her
stepdaughter, A.V., without the consent of A.V.’s father, S.S. S.S. has not filed a brief on
appeal. For the following reasons, we affirm the trial court judgment.
I. Background
{¶ 2} A.H. (“mother”) is the mother of A.V. (“daughter”) (born in 2016) and N.S
(“son”) (born in 2011). S.S. (“father”) is the children’s father. Mother and father have
never lived together or been married to one another, and they are no longer in a
relationship. Mother is now married to J.V. (“stepmother”), with whom she has lived
since June of 2019.
{¶ 3} On February 2, 2021, stepmother filed a petition to adopt daughter. She
alleged that father’s consent to the adoption was not required because he had failed
without justifiable cause to provide more than de minimis contact with daughter for a
period of one year immediately preceding the filing of the adoption petition.
{¶ 4} Father challenged stepmother’s claim that his consent was not required and
contested the adoption. The probate court conducted a hearing on May 7, 2021, to
determine whether father’s consent to the adoption was necessary.
A. The Consent Hearing
{¶ 5} Three witnesses testified at the May 7, 2021 hearing: (1) mother; (2)
stepmother; and (3) father.
1. Mother
{¶ 6} Mother testified that she and father have two children together: nine-year-
old son and two-and-a-half-year-old daughter. She and father have not “officially” been
“together” since daughter was born. Mother has lived in the same place for 12 years and
2.
father knows where she lives. She and stepmother have lived together since June of
2019.
{¶ 7} Father exercises regular parenting time with son by agreement of the
parties—not through the court. He keeps son every other weekend and during the week
when he has free time or requests to visit with son. Father calls son regularly. Mother
prefers that father not come to her home to visit son. She acknowledged that she
prevented father from visiting with son for three months while CPS investigated claims
brought to its attention by a therapist. She maintained that once that investigation was
over, regular visits resumed.
{¶ 8} Despite exercising visitation with son, father has not attempted or asked to
see daughter, has never asked to speak with her on the phone, has not sent her letters,
birthday cards, or gifts, and has not petitioned the juvenile court for parenting time.
When father visits with son, they meet at a public place, usually at a church. Mother has
never brought daughter to these transfers because of her age, because father has not had
any type of relationship with her, and because father has never requested that she bring
her.
{¶ 9} Mother admitted that she does not want father to have a relationship with
daughter. She has never suggested that father talk to daughter when he calls to speak
with son. Father does not call mother on the phone—they communicate via text message.
Father calls only to speak with son.
3.
2. Stepmother
{¶ 10} Stepmother testified that she met daughter in October of 2018. She is
involved in daughter’s life. Stepmother and father have never had any contact with one
another. She has no knowledge of father attempting to contact daughter.
3. Father
{¶ 11} Father testified that the last time he saw daughter was her birthday in 2019.
He knows where mother lives, however, he has been told that he is not welcome at her
home. Father conceded that he has not asked mother to see daughter, but he insisted that
in late 2018 or early 2019, mother told him that he cannot see daughter. Mother told him
that he is not a father, he is not part of daughter’s life, he will not be part of daughter’s
life, and to leave her alone.
{¶ 12} Father has not sent daughter birthday cards or gifts in the last year because
he is afraid of the “repercussions.” He has an Easter basket for daughter that his parents
got for her at church. He also has a tiara and other small things for her at his house, and
his sister has bought clothes for daughter that he has never given her. He does not
believe mother would give these things to daughter. Because he is “not allowed to see
her,” father does not know basic things about daughter, such as who her doctor is or what
her favorite color is. Any information he has about daughter comes from son. He talks
to son about daughter. He asks how she’s doing, how she’s growing, how the family
dynamics are, and if everyone is happy and healthy.
4.
{¶ 13} Father asked daughter’s maternal grandmother to help him see his kids.
Mother instructed him not to contact her family anymore and then, more recently, not to
call her anymore—to only communicate via text. Mother told him a year ago “you’re not
[daughter’s] father, “you’re not in her life,” “you’re not going to be in her life,” “she
doesn’t belong with you,” “don’t be * * * calling us.” “If you want to see [son], you can
see [son], it’s limited to that.” This was “absolutely” mother’s decision and not
something to which he agreed. Father is concerned that if he does not comply with
mother’s demands, she will interfere with his relationship with son.
{¶ 14} Father has not filed anything with the juvenile court requesting parenting
time with daughter. He has considered filing for visitation in juvenile court, but he did
not have the money to do so. Additionally, he is afraid of angering or upsetting mother,
“upsetting the balance,” or “ruffling [mother’s] feathers.” He fears that his parenting
time with son will be taken away. He filed for visitation with his older son, and it was
not beneficial for him, his son, or his son’s mother. He did not believe it would be
beneficial for him, son, daughter, and mother either.
{¶ 15} Father tries to spend as much time as possible with son. He does not have a
visitation agreement; mother wanted him to sign one, but he did not. Father talks to son
on the phone about once every two weeks. He has considered getting him a cellphone so
he can call him daily, but he is too young.
5.
{¶ 16} Despite mother’s claim that she has denied him visitation with son only
during the CPS investigation (which he denied even knowing was pending), father said
that there have been other times that mother has restricted his visitation with son. The
last weekend son was supposed to come to father’s house, mother told father that son did
not want to come. She did the same thing a few weekends before that. Father believes
mother is obligated to tell son that he has to spend time with him.
{¶ 17} Occasionally, father will go six weeks without seeing son. It is devastating
to him when mother tells him that son is not going with him, but he does not know how
to push back against her without his time with son getting further restricted. He testified
that often on Sundays when it is time for son to go home, son says he is not ready to go
back to mother’s, but father feels that he does not have the option of just keeping son
with him when he says he does not want to go home.
{¶ 18} Father has never had contact with stepmother. He saw her once in
mother’s car. He asks son how mother and stepmother are doing, but does not have
contact with the family. Mother rarely answers the phone if father calls her, or she will
answer and immediately pass the phone to son. Mother never sends father pictures of
either of the children. Within the past year, he sent pictures of himself with daughter to
mother. She told him not to do that anymore because stepmother does not like it and it is
inappropriate.
6.
{¶ 19} Father loves daughter. He wants son and daughter to be close, and he
wants to be part of that. He wants to communicate with daughter freely and be a bigger
part of his children’s lives. He would like to have son and daughter together at his home.
B. The Trial Court Judgment
{¶ 20} In a judgment journalized on October 12, 2021, the trial court made the
following findings:
• It has been several years since father has physically seen daughter;
• Father knows where mother and stepmother live;
• Father regularly sees son;
• The relationship between mother and father is acrimonious;
• Mother did not offer father time with daughter and did not bring
daughter with her when transporting son to visitation with father;
• Mother did not promote or encourage phone conversations between
father and daughter when father would call to speak with son;
• Mother did not include, involve, or inform father of routine matters
involving daughter;
• Father was passive, did not seek court orders for visitation, and did
not make specific attempts to seek out time with daughter—he
simply empowered mother to make those decisions;
7.
• Mother and stepmother did not want father to have a relationship
with daughter;
• Mother and father communicate poorly and by text messages only;
• Father was afraid of pushing for time with daughter for fear of
“messing with the balance” regarding his time with son;
• Mother blocked father from seeing son for a three-month period of
time;
• Father believed mother was interfering with his ability to see
daughter, but it was unclear what efforts he made;
• Mother and stepmother were in a position of authority and control
and did not make it comfortable for father to establish relationship or
contact with daughter; and
• Although under no legal obligation to do so, mother and stepmother
make it uncomfortable for father to establish a relationship or
contact with daughter, they appeared to take steps to intentionally
make it more difficult and uncomfortable for father, while making
their position clear to father.
{¶ 21} The court found by clear and convincing evidence that father “willfully
failed” to have contact with daughter for the year preceding the petition for adoption. But
it also found that there was justifiable cause for his failure to have contact with the child.
8.
Accordingly, it concluded that father’s consent to the adoption was required, and because
he was withholding consent, stepmother’s petition for adoption must be denied.
{¶ 22} Stepmother appealed. She assigns the following error for our review:
The Trial Court’s finding Father’s absolute lack of contact with A.V.
was justifiable because he felt “uncomfortable” based upon his assumptions
of how Mother would treat him was against the manifest weight of the
evidence.
II. Legal Standard
{¶ 23} Ordinarily, a minor child’s natural parents must consent in writing before
the child may be adopted. In re Adoption of C.N.A., 2018-Ohio-897, 108 N.E.3d 553, ¶ 7
(3d Dist.). However, under R.C. 3107.07(A), consent to adoption is not required of a
parent of a child “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 *
* * for a period of at least one year immediately preceding * * * the filing of the adoption
petition * * *.” Courts strictly construe R.C. 3107.07(A) in favor of the non-consenting
parent. In re Adoption of B.I., 157 Ohio St.3d 29, 2019-Ohio-2450, 131 N.E.3d 28, ¶ 12,
citing In re Adoption of Sunderhaus, 63 Ohio St.3d 127, 132, 585 N.E.2d 418 (1992).
{¶ 24} Because cases under R.C. 3107.07(A) involve the termination of
fundamental parental rights, “the party petitioning for adoption has the burden of proving,
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by clear and convincing evidence, that the parent failed to [provide more than de minimis
contact] with the child during the requisite one-year period and that there was no
justifiable cause for the failure of [contact].”1 In re Adoption of Holcomb, 18 Ohio St.3d
361, 368, 481 N.E.2d 613 (1985). In other words, “the petitioner must prove by clear and
convincing evidence that the parent’s consent is not required.” In re Adoption of T.U.,
2020-Ohio-841, 152 N.E.3d 943, ¶ 15 (6th Dist.).
{¶ 25} “To meet this burden, the petitioner must present competent and credible
evidence sufficient for the court to form a firm conviction or belief that the parent
unjustifiably failed to * * * contact the child.” Id. Once the petitioner makes this
showing, “the burden shifts to the parent to show a ‘facially justifiable’ cause for the
failure.” Id. “Regardless, the burden of proof remains with the petitioner, who must
establish the lack of justifiable cause by clear and convincing evidence.” Id.{¶ 26} The probate court engages in a two-step process to determine whether a
parent’s consent is not required based on his failure to have more than de minimis contact
with the child. Id. at ¶ 17. “First, the court determines whether the parent failed to have
more than de minimis contact with the child in the year preceding the filing of the
adoption petition.” Id. Second, it determines whether there was “justifiable cause” for
the parent’s lack of contact. Id.
1
The version of the statute applicable when Holcomb was decided referred to
“communication” instead of “contact.”
10.
{¶ 27} We review the probate court’s factual determination of whether the parent
had more than de minimis contact with the child for an abuse of discretion. Id. at ¶ 18.
An abuse of discretion connotes that the trial court’s attitude is unreasonable, arbitrary, or
unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140(1983).
{¶ 28} We review the probate court’s justifiable-cause determination under a
manifest-weight-of-the-evidence standard. In re Adoption of T.U. at ¶ 19. In doing so,
we must weigh the evidence and all reasonable inferences, consider the credibility of the
witnesses, and determine whether the trier of fact clearly lost its way in resolving
evidentiary conflicts so as to create such a manifest miscarriage of justice that the
decision must be reversed. State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541(1997). But while we review the evidence and consider the witnesses’ credibility, we
must be mindful that the trial court, as the trier of fact, is in the best position to weigh
evidence and evaluate testimony. In re Adoption of T.U. at ¶ 19, citing In re P.W., 6th
Dist. Lucas No. L-12-1060, 2012-Ohio-3556, ¶ 20. “The determination of the probate
court should not be overturned unless it is unsupported by clear and convincing
evidence.” Holcomb at 368.
III. Analysis
{¶ 29} The probate court found—and it is undisputed—that father had no contact
with daughter in the year preceding stepmother’s petition to adopt daughter. The sole
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issue on appeal is whether the trial court erred in finding that father’s lack of contact with
daughter was justifiable.
{¶ 30} Stepmother argues that father being “uncomfortable” with asserting his
parental rights based on how he believed mother would react is not justifiable cause for
his lack of contact with daughter. She claims that father failed to prove that mother
significantly interfered with or significantly discouraged contact between father and
daughter. She emphasizes that mother was under no obligation to make it “comfortable”
for father to have a relationship or contact with daughter, and none of father’s fears were
based on mother’s actual conduct. Stepmother maintains that mother did not have a
pattern of cutting off father’s contact with son as retaliation for not getting her way. She
insists that if father wanted to have contact with daughter, it was incumbent on him to
initiate such contact. And she criticizes father’s failure to seek court intervention to
enforce his parental rights.
{¶ 31} As an initial matter, a non-consenting natural parent is not required to
prove that his failure to contact his child was justifiable. In Holcomb, the Ohio Supreme
Court made clear that “[n]o burden is to be placed upon the non-consenting parent to
prove that his failure to communicate was justifiable.” Id. at 368. Rather, the statute is
drafted “to require petitioner to establish each of his allegations,” including lack of
justifiable cause. Id. While the non-consenting parent must come forward with evidence
to show some facially justifiable cause for failing to have contact with the child, the
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burden is ultimately on the petitioner to prove that no justifiable cause exists. In re
Adoption of M.T.R., 5th Dist. Licking No. 2022 CA 00010, 2022-Ohio-2473, ¶ 41.
{¶ 32} “‘[J]ustifiable cause’ is not defined in R.C. 3107.07.” In the Matter of
Adoption of R.A.H., 2021-Ohio-1667, 172 N.E.3d 1140, ¶ 14 (2d Dist.). Some courts
have looked to the definition of “justifiable” supplied by Black’s Law Dictionary:
“Legally or morally acceptable for one or more good reasons; excusable; defensible.”
Black’s Law Dictionary (11th ed. 2019). See, e.g., In re Adoption of B.I., 2017-Ohio-
9116, 101 N.E.3d 1171, ¶ 10 (1st Dist.), aff’d 157 Ohio St.3d 29, 2019-Ohio-2450, 131
N.E.3d 28; In re E.W.H., 4th Dist. Meigs No. 16CA8, 2016-Ohio-7849, ¶ 33; R.A.H. at ¶
14. “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.” Holcomb at paragraph
three of the syllabus.
{¶ 33} A custodial parent’s significant interference or significant discouragement
of contact between the child and the non-custodial parent may constitute justifiable cause
for the non-custodial parent’s failure to have contact with the child. Id. Once the non-
custodial parent presents evidence of significant interference or discouragement of
contact, it becomes necessary for petitioner to demonstrate that the lack of contact was
not justifiable. In re Adoption of Riegle, 3d Dist. No. 5-01-37, 2002-Ohio-694. In
determining whether the failure to provide contact is justifiable, the issue is not whether it
13.
was possible for the natural parent to have done more to overcome the interference. In re
Adoption of C.N.A., 2018-Ohio-897, 108 N.E.3d 553, at ¶ 17.
{¶ 34} Here, the court found that stepmother did not make the required proof
necessary to show that father lacked justifiable cause for his lack of contact with
daughter. It found that the parties’ relationship “is clearly acrimonious with the tension
among all 3 parties noticeable during court interactions.” And it observed that mother
and stepmother “were clearly in the position of authority and control.” It concluded that
mother’s “significant discouragement” of contact between father and daughter “rises to
the level of justifiable cause.”
{¶ 35} We have reviewed the record, including the transcript of the May 21, 2021
hearing. At that hearing, father testified that mother told him that he could not see
daughter. In fact, mother was candid in conceding that she did not want father to have a
relationship with daughter. When father sought intercession from mother’s family, she
told him in no uncertain terms not to contact her or anyone in her family. Father testified
that he was afraid to demand to see daughter because mother can—and has—made
unilateral decisions that have prevented him from seeing his son. According to father,
and contrary to stepmother’s characterizations, father’s fear was not based merely on his
perception of what mother might do if he “push[ed] back against her”—it was based on
what he had come to believe was an “absolutely purposeful” pattern of mother decreasing
his visitation time with his son.
14.
{¶ 36} “[I]ssues regarding failure of [contact] and lack of justifiable cause are
questions of fact for the probate court.” Holcomb at 368. The probate court, as the finder
of fact, “is in the best position to observe the demeanor of the parties, to assess their
credibility, and to determine the accuracy of their testimony.” Id. at 367-68. The probate
court found father’s testimony credible and concluded that he had justifiable cause for
failing to provide more than de minimis contact with daughter. Its determination “is not
unsupported by clear and convincing evidence” and is not against the manifest weight of
the evidence. See In re Matter of Adoption of Hupp, 9 Ohio App.3d 128, 132, 458
N.E.2d 878 (8th Dist.1982) (finding that father’s failure to communicate with child was
not “without justifiable cause” where mother acknowledged that she declined to permit
visitation, threatened to seek increase in child support if he insisted on seeing children,
and told the father she did not want him to see children, and mother and father’s
relationship deteriorated after she met and married stepfather-petitioner).
{¶ 37} We find stepmother’s assignment of error not well-taken.
IV. Conclusion
{¶ 38} The probate court’s finding that father had justifiable cause for failing to
provide contact with daughter was not against the manifest weight of the evidence. We
find stepmother’s assignment of error not well-taken and affirm the October 12, 2021
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judgment of the Sandusky Court of Common Pleas, Probate Division. J.V. is ordered to
pay the costs of this appeal under App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. ____________________________
JUDGE
Thomas J. Osowik, J.
____________________________
Gene A. Zmuda, J. JUDGE
CONCUR.
____________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
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