In re Adoption of Z.R.B. , 2024 Ohio 4922 ( 2024 )

[Cite as In re Adoption of Z.R.B., 2024-Ohio-4922.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
IN THE MATTER OF THE ADOPTION :
OF Z.R.B. :
: C.A. No. 30006
:
: Trial Court Case No. 2023 ADP 00048
:
: (Appeal from Common Pleas Court-
: Probate Division)
:
:
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OPINION
Rendered on October 11, 2024
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ROBERT L. SCOTT, Attorney for Appellant
CYNTHIA M. ROSE, Attorney for Appellee
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TUCKER, J.
{¶ 1} Appellant Father appeals from a judgment of the Montgomery County Court
of Common Pleas, Probate Division, that found his consent was not required to proceed
with adoption proceedings involving Father’s biological child. For the following reasons,
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the judgment of the probate court is affirmed.
I. Factual and Procedural History
{¶ 2} Mother and Father were never married but had one child together, who was
born in July 2016. At that time, both Mother and Father were residing in New York.
Father visited the child once when she was approximately one month old.
{¶ 3} Mother and the child moved to Ohio in June 2017 to be near Mother’s
relatives. Mother married Stepfather in 2021. Stepfather filed this adoption action on
May 3, 2023. The petition for adoption alleged that Father’s consent to the adoption was
not necessary because he had had no contact with the child.
{¶ 4} Father filed an objection to the adoption. A hearing was conducted on
November 21, 2023. Following the hearing, the probate court concluded that Father’s
consent to the adoption was not necessary because Father had failed to visit with or
provide support for the child.
{¶ 5} Father appeals.
II. Consent
{¶ 6} The sole assignment of error asserted by Father states:
TRIAL COURT ERRED HOLDING FATHER’S CONSENT TO
ADOPTION WAS NOT NECESSARY
{¶ 7} Father claims the probate court’s finding that his consent to the adoption was
unnecessary was not supported by the evidence.
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{¶ 8} “The right of a biological parent to the care and custody of his or her children
is fundamental and not easily extinguished.” In re Adoption of R.A.H., 2021-Ohio-1667,
¶ 10 (2d Dist.), citing Santosky v. Kramer, 455 U.S. 745, 753-754 (1982). Thus, parents
“must be afforded every procedural and substantive protection the law allows.” In re
Hayes, 79 Ohio St.3d 46, 48 (1997), quoting In re Smith, 77 Ohio App.3d 1, 16 (6th
Dist.1991). Accordingly, R.C. 3107.06 states that “a petition to adopt a minor may be
granted only if written consent to the adoption has been executed” by any person whose
consent is required. The father of the child is presumed to have the right to withhold
consent to an adoption under R.C. 3107.06(B). In re Adoption of H.P., 2022-Ohio-4369,
¶ 20. A party seeking to adopt may overcome this presumption by establishing that an
exception to the consent requirement exists as provided under R.C. 3107.07. Id.{¶ 9} Of relevance hereto, R.C. 3107.07 provides that consent to an adoption is
not required of a parent under the following circumstances:
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.
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R.C. 3107.07(A).
{¶ 10} 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, ¶ 10 (1st Dist.).
The Ohio Supreme Court has “refused to adopt a ‘precise and inflexible meaning’ for
‘justifiable cause,’ but instead has stated 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 re Adoption of W.K.S., 2014-Ohio-3847, ¶ 22 (2d Dist.), citing In re Adoption
of Holcomb, 18 Ohio St.3d 361, 367 (1985).
{¶ 11} The party seeking to adopt has the burden of proving, by clear and
convincing evidence, that an exception to the consent requirement applies. In re
Adoption of D.W.D.-H., 2023-Ohio-1999, ¶ 3 (2d Dist.). “Clear and convincing evidence
is that measure or degree of proof which is more than a mere ‘preponderance of the
evidence,’ but not to the extent of such certainty as is required ‘beyond a reasonable
doubt’ in criminal cases, and which will produce in the mind of the trier of facts a firm belief
or conviction as to the facts sought to be established.” Cross v. Ledford, 161 Ohio St.
469 (1954), 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 in the year preceding the filing of the
petition, 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(1987), paragraph two of the syllabus.
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{¶ 12} We review the probate court's decision under a manifest weight of the
evidence 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 hearing ordered.
In re Adoption of J.L., 2019-Ohio-366, ¶ 25 (1st Dist.). 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.
Id.{¶ 13} There is no dispute that Father had not visited with the child since she was
a newborn. Nor is there any dispute that he had failed to provide any form of support for
the child during her lifetime. Father attempted to assert justifiable cause by blaming
Mother for his lack of contact with the child and by noting that Mother had never filed an
action seeking child support.
{¶ 14} This argument is disingenuous at best. While it appears Father did not
know Mother’s phone number or address, he presented no evidence to establish that he
ever sought that information. Father’s own testimony revealed that, despite being able
to message Mother directly through her Instagram account, his only contact with her
consisted of occasionally commenting on photos of the child which Mother had posted to
that account. He admitted he had had no direct communication with the child. During
the hearing, Father did not even claim that he had wanted to have visitation or
communication with the child. He further did not claim that Mother had denied him
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visitation in any way or otherwise interfered with his parental rights. Father testified that
he had obtained Mother’s telephone number through a mutual friend and that he had
spoken with Mother and Stepfather in 2018. However, he did not claim to have asked
for visitation at that time or at any time before the filing of the adoption petition. Nor did
he claim that he had ever provided, or even offered, any type of financial support for the
child.
{¶ 15} Father appears to argue that the trial court, as part of its justifiable cause
determination, should have considered that he had filed a paternity action with the
Montgomery County Juvenile Court. However, the court did note in its decision that
Father had filed a paternity action. It is not clear from the record why the paternity action
was filed because, as stated by the probate court, Father admitted during the hearing that
the child was his. Importantly, we have stated that a “parent’s efforts to enforce his
parental rights” is a “relevant consideration” when that enforcement action is taken prior
to the filing of the stepparent adoption petition. In re Adoption of R.A.H., 2021-Ohio-
1667, ¶ 14, quoting In re Adoption of M.G.B.-E., 2018-Ohio-1787, ¶ 43. Here, Father
filed his paternity action after he was served with the adoption petition. Thus, the probate
court did not err in failing to find it relevant to the justifiable cause determination.
{¶ 16} We conclude that this record supports the probate court's determination that
Father failed to have even de minimus contact with or provide any support for the child
during the year preceding the filing of the petition for adoption. We further conclude that
the record supports the court’s finding that Father failed to demonstrate justifiable cause
for the lack of contact and support. Thus, the court did not err in concluding that Father’s
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consent was not required for the adoption.
{¶ 17} Accordingly, the sole assignment of error is overruled.
III. Conclusion
{¶ 18} The judgment of the probate court is affirmed.
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LEWIS, J. and HUFFMAN, J., concur.