In re J.F.R-W , 2017 Ohio 1265 ( 2017 )

[Cite as In re J.F.R-W, 2017-Ohio-1265.]
STATE OF OHIO, BELMONT COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
IN THE MATTER OF THE ADOPTION )
OF J.F.R-W. )
)
) CASE NO. 16 BE 0045
)
) OPINION
)
)
)
CHARACTER OF PROCEEDINGS: Civil Appeal from Court of Common
Pleas, Probate Division of Belmont
County, Ohio
Case No. 16 BE 0045
JUDGMENT: Affirmed
APPEARANCES:
For Appellant Attorney Sandra Nicholoff
100 West Main Street
Suite 206
St. Clairsville, Ohio 43950
For Appellee Attorney Grace Hoffman
3800 Jefferson Street
P.O. Box 50
Bellaire, Ohio 43906
JUDGES:
Hon. Gene Donofrio
Hon. Cheryl L. Waite
Hon. Carol Ann Robb
Dated: March 30, 2017
[Cite as In re J.F.R-W, 2017-Ohio-1265.]
DONOFRIO, J.
{¶1} Respondent-appellant, Paul B., appeals from the Belmont County
Probate Court judgment granting the adoption of J.F.R-W to petitioner-appellee,
Heath W., who is the husband to the child’s mother, Jessica W.
{¶2} Paul married Jessica in 2006. They had a child, J.F.R-W, in 2008. Paul
and Jessica’s marriage eventually ended in divorce. As part of the divorce, Jessica
was granted custody of J.F.R-W, and Paul was to have visitation.
{¶3} Over time, contact between Paul and the child declined until Paul finally
texted Jessica’s phone to wish the child a happy birthday on January 10, 2015, his
last contact.
{¶4} Jessica eventually married Heath, who filed a petition to adopt the child
on May 24, 2016. Paul refused to consent to the adoption. So the Belmont County
Probate Court held a hearing to determine whether or not the adoption could
proceed.
{¶5} After the hearing, the court found that Paul had failed without justifiable
cause to provide more than de minimis contact with the child over the year preceding
the petition. Therefore the court granted the adoption without Paul’s consent. Paul
timely filed a notice of appeal on September 14, 2016.
{¶6} Paul’s sole assignment of error states:
THE PROBATE COURT COMMITTED REVERSIBLE ERROR WHEN
IT HELD THAT APPELLANT, PAUL [B.]’S, CONSENT WAS NOT
NECESSARY IN THE ADOPTION OF HIS MINOR CHILD BECAUSE
HE FAILED TO MAINTAIN MORE THAN DE MINIMIS CONTACT
WITHOUT JUSTIFICATION.
{¶7} Paul focuses on the without-justifiable-cause element and argues that
competent and credible evidence supports the position that Jessica’s interference
justified his lack of contact with the child.
{¶8} He quotes the Ohio Supreme Court for the proposition that significant
interference by a custodial parent justifies the other parent’s failure to make contact
-2-
with the child. In re Adoption of Holcomb, 18 Ohio St.3d 361, 367–368, 481 N.E.2d
613 (1985).
{¶9} Paul then highlights portions of the record, which, he argues, show
significant interference by Jessica justifying his lack of contact.
{¶10} Paul refers to her: failing to encourage visitation; ignoring his calls and
texts; changing the child’s residence without telling him; blocking him on social
media; quickly leaving when she and the child encountered him in a parking lot;
failing to recall having missed his calls, despite phone records; calling an adoption
lawyer two days after Paul raised the subject of visitation at a support hearing; and,
finally, having Paul served by publication for the child’s name change, and then by
mail at his mother’s for the adoption; and then giving conflicting answers about
whether or not she knew that Paul’s mother actually lived at that address.
{¶11} Paul concludes his argument by asserting that the foregoing represents
competent and credible evidence in support of the contention that Jessica’s
interference justified his lack of contact. Accordingly, Paul seeks for this Court to
reverse the probate court’s judgment and find that his consent is required.
{¶12} The right of natural parents to the care and custody of their child is one
of the most precious and fundamental rights in law—far more precious than property
rights. In re Adoption of Geis, 7th Dist. No. 05HA574, 2005-Ohio-4378, ¶ 8, citing
Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982); In re
Adoption of Masa, 23 Ohio St.3d 163, 165, 492 N.E.2d 140 (1986); In re Smith, 77
Ohio App.3d 1, 16, 601 N.E.2d 45, 54 (6th Dist.1991).
{¶13} Severing the parent-child relationship has been described as the family-
law equivalent of the “’death penalty’”. In re Hayes, 79 Ohio St.3d 46, 48, 679 N.E.2d
680 (1997), quoting In re Smith, 77 Ohio App.3d 1, 14, 601 N.E.2d 45, 54 (6th
Dist.1991). Therefore, any exception to the parental-consent requirement must be
strictly construed to protect this precious and fundamental right. Masa at 164, quoting
In re Schoeppner's Adoption, 46 Ohio St.2d 21, 24, 345 N.E.2d 608 (1976).
{¶14} Adopting a child generally requires written consent from the parents.
-3-
R.C. 3107.06. However, a petitioner may avoid the consent requirement by
demonstrating that: (1) the parent failed to provide more than de minimis contact in
the year preceding the petition, and (2) the parent’s failure was unjustified.
R.C. 3107.07(A).
{¶15} To prevail, the petitioner must demonstrate both elements by clear and
convincing evidence. R.C. 3107.07(A).
{¶16} Clear and convincing evidence is
[t]he 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. It is intermediate, being more than a mere preponderance,
but not to the extent of such certainty as required beyond a reasonable
doubt as in criminal cases. It does not mean clear and unequivocal.
In re Estate of Haynes, 25 Ohio St.3d 101, 104, 495 N.E.2d 23 (1986).
{¶17} Procedurally, if the petitioner proves that the parent failed to provide
more than de minimis contact, then the parent gets the opportunity to offer
justification. R.C. 3107.07(A). To put it another way, just as the failure to provide
more than de minimis contact removes the consent requirement; “justifiable cause”
restores it. R.C. 3107.07(A).
{¶18} And, unlike the clear-and-convincing burden that petitioners’ bear,
natural parents need only show some facially justifiable cause for their failure. Geis,
2005-Ohio-4378 at ¶ 12.
{¶19} Nevertheless, whether or not the parent presents a facially justifiable
cause, the clear-and-convincing-evidence burden remains with the petitioner. In re
Adoption of Bovett, 33 Ohio St.3d 102, 515 N.E.2d 919, syllabus (1987); Dallas v.
Dotson, 113 Ohio App.3d 484, 487, 681 N.E.2d 464 (9th Dist.1996), appeal not
allowed 77 Ohio St.3d 1515, 674 N.E.2d 370. Because, regardless of the parent’s
given justification, the petitioner ultimately has the burden to prove, by clear-and-
convincing evidence, that the lack of more than de minimis contact was, in fact, not
-4-
justified. R.C. 3107.07(A), Geis, 2005-Ohio-4378 at ¶ 13.
{¶20} Here, the probate court conducted the hearing. Consequently, this
Court will defer to the probate court in its determinations of witness credibility. Geis,
2005-Ohio-4378 at ¶ 15, citing Myers v. Garson, 66 Ohio St.3d 610, 615, 614 N.E.2d
742 (1993).
{¶21} Moreover, the probate court’s decision will not be disturbed unless it is
against the manifest weight of the evidence. Geis, 2005-Ohio-4378 at ¶ 14. In other
words, this Court will reverse only when:
[the decision] is so manifestly contrary to the natural and reasonable
inferences to be drawn from the evidence as to produce a result in
complete violation of substantial justice.
Machuga v. Coca-Cola Bottling Co. of Youngstown, 78 Ohio Law Abs. 579, 153
N.E.2d 713, 715 (7th Dist.1957), quoting 3 Ohio Jurisprudence 2d, section 819.
{¶22} To review, the probate court found that Paul had failed, without
justifiable cause, to provide more than de minimis contact with the child for the
statutory period. Since Paul never disputed the lack of contact, our analysis will be
confined to the justifiable-cause element. Thus, the question on appeal is whether
the probate court’s decision—that Paul’s failure to provide more than de minimis
contact was unjustified—was against the manifest weight of the evidence.
Addressing that question requires a thorough review of the record.
{¶23} Paul married Jessica in Florida in 2006. After Paul’s naval service, they
moved to Shadyside, Ohio, in 2007. (Tr. 50). In January 2008, Paul and Jessica had
a child, J.F.R-W. In that same year, Jessica began a relationship with her future-
husband, Heath. (Tr. 20).
{¶24} Also around that time, Paul assaulted Jessica’s father. (Tr. 17). Paul
and Jessica divorced in 2009. (Tr. 28). Jessica became the child’s residential parent,
while Paul had visitation. (Tr. 28).
{¶25} Paul testified he wishes to be a part of the child’s life. (Tr. 35). However,
-5-
Paul described his and Jessica’s attempts to work out visitation as “rough”. (Tr. 28).
At one point, Paul filed a contempt motion. (Tr. 26). To resolve it, in April 2010, the
parties agreed to supervised visitation. (Tr. 26–27).
{¶26} Jessica testified that she tried to keep Paul involved in the child’s life.
(Tr. 19). In particular, Jessica said that she transported the child to all of the
visitations before and after the 2010 contempt episode. (Tr. 19).
{¶27} According to Paul, the last time he and the child had a visitation was on
Thanksgiving 2012. (Tr. 29). How long that visit lasted is unclear from the record. The
next day Paul went to Missouri, where he got into trouble and was incarcerated for
three months. (Tr. 29). He said he sent a letter to Jessica apologizing and informing
her he would not be there for Christmas. (Tr. 29). She did not reply. (Tr. 29).
{¶28} Paul further testified that after he returned, in February of 2013, he tried
to contact Jessica’s cell phone. (Tr. 30). Paul said that he did not always have his
own phone, so he tried calling from various numbers. (Tr. 30, 34). He testified that he
tried calling her roughly two times per week. (Tr. 33). He tried sending her text
messages too, he said. (Tr. 34). However, according to his testimony, he received no
reply. (Tr. 29).
{¶29} According to Jessica, following the Thanksgiving visit, she received a
call from Paul in October of 2013 regarding the child’s name change. (Tr. 18).
Jessica testified that, after the 2013 call, Paul made no contact with the child over the
next approximately 15 months, not until he sent the 2015 birthday text. (Tr. 18). She
added that, since the Thanksgiving visitation, Paul had not asked to see the child.
(Tr. 6).
{¶30} When attempting to reach Jessica, Paul admitted that he never left a
voicemail. (Tr. 34). He explained that he does not leave voicemail unless the situation
is dire. (Tr. 34).
{¶31} According to Paul, he did not know where Jessica lived. (Tr. 29). Paul
testified that he knocked on the door of an unoccupied dwelling Jessica owns in
Shadyside, but no one answered. (Tr. 16, 29).
-6-
{¶32} Meanwhile, Jessica applied to have the child’s name changed. (Tr. 9).
For that, she apparently served Paul with notice via publication. (Tr. 9). The Belmont
County Probate Court permitted the child’s last name to be changed to Jessica’s
family name in April 2013. After that, through mutual acquaintances, Paul discovered
what happened, and, in October 2013, he talked to Jessica by phone, telling her that
he would contest the name change. (Tr. 18, 34).
{¶33} In November 2013, Jessica, the child, and Heath moved into a house
together in St. Clairsville. (Tr. 8–9, 20, 29). They did not inform Paul. (Tr. 8).
{¶34} Paul’s friend testified that he and Paul coincidentally encountered
Jessica and the child in a parking lot outside of the child’s daycare in September
2014. (Tr. 52). Jessica and the child left without stopping to interact, Paul’s friend
stated. (Tr. 53).
{¶35} Finally, Paul texted Jessica’s phone to wish the child a happy birthday
on January 10, 2015, which was his last contact before the adoption petition, which
Heath filed May 24, 2016. (Tr. 5).
{¶36} Jessica and Heath married in July 2015. (Tr. 20).
{¶37} Paul testified that he had had issues with paying child support, resulting
in a hearing at divorce court on May 9, 2016. (Tr. 19, 31, 44). Later, at the time of the
probate hearing, the parties stipulated that, regarding child support, Paul was “fairly
current with a very low arrearage”. (Tr. 45). Nevertheless, in the hallway outside of
divorce court, the parties exchanged words, with Paul apparently expressing
discontent over not seeing the child. (Tr. 11, 30–32, 44, 50–52).
{¶38} Paul testified that, in the one year preceding the petition, he had made
several attempts to contact Jessica regarding visiting the child, including via his
cellphone and friends’ cellphones. (Tr. 30). Paul presented phone records to bolster
this claim. (Respondents Ex. 1; Tr. 14–16). Jessica testified she did not recall those
missing calls. (Tr. 15–16).
{¶39} In addition, Paul said that he had searched the internet for Jessica’s
address but was unsuccessful. (Tr. 37).
-7-
{¶40} Having personally heard the testimony, the probate court made
determinations about credibility. In part based on those determinations, the probate
court found that Paul had failed, without justifiable cause, to provide more than de
minimis contact, in the year preceding the petition. Paul asserts the court erred. We
disagree.
{¶41} Under the statute, if Paul had “justifiable cause” for not providing the
requisite contact, then he could prevent the adoption from occurring. R.C. 3107.07.
{¶42} “Justifiable cause” is a term of imprecise meaning. In re Adoption of
Holcomb, 18 Ohio St.3d at 367. The Ohio Supreme Court, in fact, has declined to
adopt any precise or inflexible definition for “justifiable cause”. Id. Consequently, it
has been defined in various ways by various courts. Id.
{¶43} In this case, Paul argues that Jessica’s substantial interference justified
his lack of contact. Substantial interference represents one common form of
“justifiable cause”. See In re Adoption of Holcomb at 367–368. In particular,
“substantial interference” occurs:
Where a custodial parent has, through her own substantial efforts,
deprived the non-custodial parent of the opportunity of enjoying a
meaningful relationship with his child and further has actively interfered
with his attempts, however meager, to provide support and
maintenance to the child
Matter of Adoption of Hupp, 9 Ohio App.3d 128, 131, 458 N.E.2d 878 (8th Dist.1982),
citing In re Lindley, 8th Dist. No. 40333, 1980 WL 354495, *6.
{¶44} Here, Jessica did change the child’s residence without informing Paul.
See In Matter of Adoption of Shea, 10th Dist. No. 90AP-245, 1990 WL 106468(affirming a probate courts finding of justifiable cause where, inter alia, the mother
moved several times without giving notice). Not knowing the custodial parent’s
address certainly represents a challenge. However, according to the record, Paul
knew where Jessica’s parents lived. He knew where she worked. And he knew where
-8-
the child’s daycare was. Consequently, Jessica cannot be said to have deprived Paul
of the opportunity to have contact with the child because Paul had other reasonable
options available other than using Jessica’s address.
{¶45} In addition, the record of Paul’s inaction weighs in favor of affirming the
probate court’s decision. Paul did not file a contempt motion against Jessica over
visitation. And when Paul spoke with Jessica on the phone about the name change in
October 2013 he could have pursued contact then, but didn’t. He never pursued
contact at addresses he was aware of. Finally, Paul himself spoke to his own lack of
justifiable cause when he testified why he never left a voicemail for the child. He did
not think it was dire. Accordingly, the record shows that Paul failed to demonstrate
justifiable cause.
{¶46} Upon a thorough review of the record, we find that the trial court’s
decision was not against the manifest weight of the evidence. Accordingly,
appellant’s assignment of error is without merit and is overruled.
{¶47} For the reasons stated above, the trial court’s judgment is hereby
affirmed.
Waite, J., concurs.
Robb, P.J., concurs.