In re Adoption of R.A.H. , 2021 Ohio 1667 ( 2021 )

[Cite as In re Adoption of R.A.H., 2021-Ohio-1667.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CHAMPAIGN COUNTY
IN THE MATTER OF: THE :
ADOPTION OF R.A.H. :
: Appellate Case No. 2020-CA-32
:
: Trial Court Case No. 2020-AD-05
:
: (Appeal from Probate Court)
:
:
:
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OPINION
Rendered on the 14th day of May, 2021.
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MARK M. FEINSTEIN, Atty. Reg. No. 0065183, P.O. Box 657, Urbana, Ohio 43078
Attorney for Appellant Stepfather
D.S., Sidney, Ohio 45365
Appellee Father, Pro Se
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TUCKER, P.J.
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{¶ 1} Stepfather appeals from the Champaign County Family Court’s order finding
that consent was required from R.A.H.’s biological father (Father) before Stepfather could
adopt R.A.H. For the reasons that follow, the trial court’s order will be reversed, and the
matter will be remanded for further proceedings.
I. Factual and Procedural Background
{¶ 2} Father and Mother are the biological parents of R.A.H., who was born in
February 2014. Mother and Father were never married.1 Mother became romantically
involved with Stepfather in 2015. Mother, Stepfather, and R.A.H. began living in the
same home that same year. Mother and Stepfather had another child in 2016 and were
married in October 2019.
{¶ 3} On February 22, 2017, Mother sought a protection order against Father in
the Champaign County Family Court; an ex parte protection order was issued that same
day. On March 2, 2017, following a full hearing, a domestic violence civil protection order
was entered against Father. 2 The order named Mother and R.A.H as the protected
parties.
{¶ 4} On March 28, 2018, Father filed a motion seeking to modify the protection
order so that he could have parenting time. A hearing on the motion was conducted on
January 31, 2019. The Family Court denied the motion for modification and parenting
1
According to Stepfather’s brief, the issues of parental rights and responsibilities were
decided by the Champaign County Juvenile Court, which is part of the Family Court.
2
The protection order is not part of the record before us. Thus, the facts available to us
are gleaned from Stepfather’s appellate brief and the transcript of the September 30, 2020
consent hearing.
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time on March 12, 2019. In the order, the court noted that Father continued to use illegal
drugs and had not participated in any treatment for domestic violence or anger
management. Finally, the order stated Father’s social media posts indicated he
continued to possess firearms. There is nothing in this record to demonstrate that Father
appealed this decision.
{¶ 5} On May 7, 2020, Stepfather filed a petition seeking to adopt R.A.H. Based
upon Father’s lack of contact with R.A.H. in the preceding year, the petition asserted that
Father’s consent to the adoption was not required under R.C. 3107.07(A). A pretrial
conference was held on August 11, 2020, at which time Father refused to consent to the
adoption. Thus a hearing on the necessity of consent was conducted on September 30,
2020. During the hearing, it was conclusively established that Father had had no contact
with R.A.H. during the year preceding the filing of the petition for adoption. However,
Father testified that his failure to have contact was solely based upon the protection order
prohibiting such contact.
{¶ 6} Following the hearing, the Family Court entered an order concluding that
Father’s consent was required for the adoption to proceed. In reaching this conclusion,
the court found that the protection order “constitute[d] justifiable cause for the father to
not have contact with the child during the relevant one-year period.”
{¶ 7} Stepfather appeals.
II. Analysis
{¶ 8} Stepfather asserts the following two assignments of error:
THE TRIAL COURT ERRED AND/OR ABUSED ITS DISCRETION
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BY FINDING THAT A BIOLOGICAL FATHER’S CONSENT WAS
REQUIRED, WHEN IT IS UNDISPUTED THAT HE DID NOT HAVE
CONTACT WITH THE CHILD DURING THE RELEVANT ONE-YEAR
PERIOD AND DID NOT HAVE CONTACT WITH THE CHILD DUE TO HIS
OWN WRONGDOING AND BAD BEHAVIOR.
THE TRIAL COURT ERRED AND/OR ABUSED ITS DISCRETION
BY NOT CONSIDERING THE TOTALITY OF THE CIRCUMSTANCES, AS
OPPOSED TO ONLY ONE FACTOR, IN DETERMINING THAT THE
CONSENT OF THE BIOLOGICAL FATHER WAS REQUIRED.
{¶ 9} Stepfather contends that the court erred in its conclusion that Father’s
consent to the adoption was required. In support, he asserts two arguments. First,
Stepfather claims Father cannot “engage in wrongdoing” creating the need for a civil
protection order, and “then hide behind the fact of the Civil Protection Order to justify a
lack of contact.” Stepfather also argues that Father’s failure to rectify the problems cited
by the court in its prior decision denying Father’s motion to modify the protection order
and for parenting time should be considered as militating against a finding of justifiable
cause.
{¶ 10} The right of a biological parent to the care and custody of his or her children
is fundamental and not easily extinguished. Santosky v. Kramer, 455 U.S. 745, 753-754,
102 S. Ct. 1388, 71 L. Ed. 2d 599, 102 S. Ct. 1388 (1982). Because adoption acts to
terminate this fundamental right, a biological parent must be afforded every procedural
and substantive protection allowed by law before depriving the parent of the right to
consent to the adoption of his child. In re Hayes, 79 Ohio St. 3d 46, 679 N.E.2d 680
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(1997); R.C. 3107.15. To that end, R.C. 3107.06 permits a court to grant a petition to
adopt only if written consent has been executed by the mother and father of the child.
{¶ 11} However, exceptions to the consent requirement are set forth in R.C.
3107.07(A), which provides that consent to an adoption is not required when a court finds
by clear and convincing evidence that the parent has failed, without justifiable cause, to
have more than de minimus contact with the child or to provide maintenance and support
for the child in the one-year period immediately preceding the filing of an adoption petition.
These exceptions to the requirement of parental consent to adoption must be strictly
construed in favor of the biological parent so as to protect his or her fundamental right to
parent a child. In re Adoption of M.G.B.-E., 154 Ohio St. 3d 17, 2018-Ohio-1787, 110
N.E.3d 1236, ¶ 40, citing In re Schoeppner, 46 Ohio St. 2d 21, 24, 345 N.E.2d 608 (1976).
{¶ 12} Thus, the party petitioning for adoption has the burden to prove, by clear
and convincing evidence, that one of the consent exceptions is applicable. In re
Adoption of Holcomb, 18 Ohio St. 3d 361, 481 N.E.2d 613 (1985), paragraph four of the
syllabus. Clear and convincing evidence is that which produces “in the mind of the trier
of fact[ ] a firm belief or conviction as to the facts sought to be established.’ ” Id. at 368,
citing Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1984), paragraph three of the
syllabus. Once the petitioner has established by clear and convincing evidence that the
biological parent has failed to have more than de minimus contact with or provide support
for the child within one year of the petition filing date, the burden of going forward with
evidence shifts to the biological parent to show some facially justifiable cause for the
failure. In re Adoption of Bovett, 33 Ohio St. 3d 102, 515 N.E.2d 919 (1987), paragraph
two of the syllabus. The burden of proof, however, remains at all times with the
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petitioner, who must establish the lack of justifiable cause by clear and convincing
evidence. Id.
{¶ 13} As stated above, there is no dispute in this case that Father had no contact
with R.A.H. in the year preceding the filing of the adoption petition.3 Thus, the issue
before us is whether the probate court correctly concluded that Father had justifiable
cause for his failure to have contact with his child.
{¶ 14} The term “justifiable cause” is not defined in R.C. 3107.07. However, it has
been defined as meaning “[c]apable of being legally or morally justified; excusable;
defensible.” (Citations omitted.) 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, ¶ 10.
The Ohio Supreme Court has “refused to adopt a ‘precise and inflexible meaning’ for
‘justifiable cause,’ but instead has concluded that ‘the better-reasoned approach would
be to leave to the probate court as finder of fact the question of whether or not justifiable
cause exists.’ ” In the Matter of Adoption of D.D.G., 2d Dist. Montgomery No. 27741,
2018-Ohio-35, ¶ 5, quoting In re Adoption of W.K.S., 2d Dist. Champaign No. 2014-CA-
16, ¶ 22, citing Holcomb at 367. The Supreme Court has further held that an important
consideration regarding justifiable cause is the parent’s willingness and ability to support
or contact a child. In re Adoption of Masa, 23 Ohio St. 3d 163, 166, 492 N.E.2d 140
(1986). Additionally, a parent’s “efforts to enforce his parental rights, prior to the filing of
[a stepparent’s] adoption petition” are a relevant consideration when reaching the
justifiable cause conclusion. Adoption of M.G.B.-E., 154 Ohio St. 3d 17, 2018-Ohio-
3
There are no allegations and no facts in the record indicating that Father failed to provide
support for R.A.H. during the relevant period.
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1787, 110 N.E.3d 1236, ¶ 43.
{¶ 15} We review the probate court’s decision under a manifest weight standard
which requires us to weigh the evidence and all reasonable inferences, consider the
credibility of the witnesses, and determine whether in resolving conflicts in the evidence,
the probate court clearly lost its way and created such a manifest miscarriage of justice
that the judgment must be reversed and a new trial ordered. In re Adoption of J.L., 1st
Dist. Hamilton No. C-180453, 2019-Ohio-366, ¶ 25. Importantly, we must be mindful that
the probate court, as the trier 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.4
Id.
{¶ 16} We turn first to Stepfather’s argument that because Father’s own bad
behavior caused the imposition of a protection order, he cannot rely on the existence of
that order as a justification for his failure to have contact with R.A.H. In support,
Stepfather cites opinions from the Fifth District Court of Appeals, which hold that neither
a protection order issued against, nor incarceration of, a biological parent resulting from
the parent’s own wrongdoing constitutes justifiable cause for a failure to have contact with
the child. See, e.g., In re Adoption of Corl, 5th Dist. Licking No. 2004-CA-96, 2005-Ohio-
736; Askew v. Taylor, 5th Dist. Stark No. 2004CA00184, 2004-Ohio-5504; Frymier v.
Crampton, 5th Dist. Licking No. 2002-CA-8, 2002-Ohio-3591. We also note that the First
District Court of Appeals has stated “failure to contact subsequent to the issuance of an
4 We note that the Champaign County Family Court is comprised of the probate court,
domestic relations court, and juvenile court and is presided over by two judges. But only
Judge Reisinger has presided over the three cases related to this family under the court’s
salutary “philosophy of one Judge one family.”
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order of protection is not justified where father's own actions were the cause of the order.”
J.L., 1st Dist. Hamilton No. C-180453, 2019-Ohio-366, ¶ 38.
{¶ 17} Conversely, the Eighth District Court of Appeals has held that when a
biological parent relies on a valid court order prohibiting contact with his or her children,
the parent has justifiable cause for failing to communicate. In re Adoption of A.K., 2020-
Ohio-3279, 155 N.E.3d 239, ¶ 20 (8th Dist,), appeal allowed, 160 Ohio St. 3d 1495, 2020-
Ohio-5634, 159 N.E.3d 273.
{¶ 18} The 5th District cases cited above by Stepfather seem to create a bright-
line test that the incarceration of or the entry of a protection order against a parent
eliminates the need for that parent’s consent to an adoption. Similarly, the 8th District’s
holding in A.K. can be construed as creating a bright-line test that whenever a protection
order is entered against a biological parent, that parent has justifiable cause for the failure
to have contact with the child.
{¶ 19} We reject each approach as being overly rigid and, as such, inconsistent
with the Supreme Court’s refusal to adopt a precise definition of justifiable cause.
Instead, we find that the better-reasoned approach is reflected by In re Adoption of B.A.A.,
9th Dist. Wayne No. 16AP73, 2017-Ohio-8137. In B.A.A., the court ruled that, “[g]iven
the specific facts surrounding the civil stalking protection order * * *, the trial court erred
by concluding, as a matter of law, that [the protection order] did not constitute ‘justifiable
cause’ for the Father’s failure to have contact with B.A.A. during the relevant one-year
period under R.C. 3107.07(A).” Id. at ¶ 19. In reaching this conclusion, the court
discussed that the protection order was based upon Father’s “stalking [Mother] by
continuing to call and text her and show[ing] up at her residence, despite being told not
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to [engage in such conduct].” Id. at ¶ 18. Thus, though the child was included in the
protection order, Father’s conduct toward the child was not the basis for its issuance.
The court also discussed that Father had filed a motion to modify the protection order so
that he could exercise parenting time with B.A.A., but the adoption petition was filed
before the motion could be heard.
{¶ 20} Similarly, the Tenth District Court of Appeals, although affirming a probate
court’s finding of no justifiable cause, has indicated that a parent’s voluntary actions
resulting in incarceration or in the entry of a protection order are merely factors to consider
when determining whether a parent has justifiable cause for a lack of contact with his
child. In re Adoption of N.T.R., 10th Dist. Franklin No. 16AP-589, 2017-Ohio-265, ¶ 17-
18.
{¶ 21} We conclude that, when a parent’s failure to have contact with the child
within the relevant one-year period is based upon a protection order preventing such
contact, the existence of the protection order does not necessarily provide justifiable
cause for the failure to have contact and does not necessarily require a finding there is
not justifiable cause for the failure. Instead, starting from the prospective that the
consent requirement must be strictly constructed in the parent’s favor, the trial court must
consider all relevant circumstances and then decide the justifiable cause issue. The
relevant circumstances include the facts surrounding the issuance of and the child’s
inclusion in the protection order, the parent’s efforts, if any, to modify the protection order
to obtain parenting time, and any other facts deemed relevant by the trial court.
{¶ 22} In the pending case, the probate court’s decision stated that “if the Court
finds that the [F]ather did not have justifiable cause for his failure to communicate with
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the child[,] this Court is asking the impossible. The Father must be unwilling to have
contact, not be legally prohibited from contact.” From this, the trial court concluded that
the protection order “constitute[d] justifiable cause” for the Father’s failure to have contact
with R.A.H. But as we have explained, the existence of the protection order did not
automatically provide justifiable cause for Father’s failure to have contact with R.A.H.
during the relevant timeframe. Given this conclusion, Stepfather’s first assignment of
error that the court erred in finding Father’s consent was required is overruled. But the
second assignment of error relating to consideration of the totality of the circumstances
is sustained. The case will be remanded to the probate court for consideration of the
justifiable cause issue in a manner consistent with this opinion.
Conclusion
{¶ 23} Having sustained Father’s second assignment of error, the judgment of the
Champaign County Family Court is reversed, and the matter is remanded for further
proceedings consistent with this opinion.
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DONOVAN, J. and WELBAUM, J., concur.
Copies sent to:
Mark M. Feinstein
D.S.
M.H.
Hon. Lori L. Reisinger