In re Adoption of M.C. ( 2011 )

[Cite as In re Adoption of M.C., 2011-Ohio-6527.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
JACKSON COUNTY
IN THE MATTER OF: : Case Nos. 11CA5
: 11CA6
THE ADOPTION OF M.C. :
: DECISION AND
and : JUDGMENT ENTRY1
:
IN THE MATTER OF: :
: RELEASED 12/15/11
THE ADOPTION OF C.C. :
______________________________________________________________________
APPEARANCES:
D.P., Chillicothe, Ohio, pro se Appellant.
B.C. and T.C., Jackson, Ohio, pro se Appellees.
______________________________________________________________________
Harsha, P.J.
{¶1} D.P., the biological father of M.C. and C.C., appeals the trial court’s
decision to grant the petitions for adoption filed by the children’s stepfather, thereby
terminating D.P.’s parental rights. Father contends that the trial court violated his
procedural due process rights when it denied his request for appointed counsel.
However, Father failed to support his argument with any relevant authority to establish a
right to counsel exists for indigent parents in adoption proceedings initiated by a private
party. If an argument exists to support Father’s assigned error, it is not this Court’s duty
to root it out. Therefore, we reject Father’s contention.
{¶2} In addition, Father, who has been incarcerated throughout these
proceedings, claims he had a folder containing notes and evidence in his prison cell and
1
We recognize that under App.R. 11.2 this appeal receives priority status, and there has been a
significant delay in the release of this decision. However, this delay was necessitated in part by a remand
to the trial court to supplement the record.
Jackson App. Nos. 11CA5 & 11CA6 2
the court denied him access to the folder during a hearing on the petition. Father
argues that the court violated his “Sixth Amendment” right to “conduct his own defense.”
However, the Sixth Amendment applies to criminal prosecutions, not adoption
proceedings. Moreover, there is no evidence the court denied Father access to the
folder as opposed to Father simply forgetting to bring it to the hearing. In fact, the court
allowed Father to submit the folder after the hearing concluded. Therefore, we reject
this argument.
{¶3} Father also contends that the trial court erred when it found his consent to
the adoptions was not required because there was no justifiable cause for his failure to
contact the children in the year immediately preceding the filing of the petitions. Father
claims he tried to send the children letters and cards but the Gallia County Prosecutor’s
Office seized these items under a “no contact” order stemming from his criminal case
involving the children’s mother and maternal grandfather. In other words, Father argues
his failure to communicate with the children is justified. However, the only evidence that
supports Father’s contentions is his own self-serving testimony, which the trial court was
free to disbelieve. Thus, we cannot say that the court’s finding was against the manifest
weight of the evidence. This decision renders moot Father’s additional contention that
the court erred when it found his consent was also not required because there was no
justifiable cause for his failure to provide maintenance and support for the children in the
requisite one-year period.
{¶4} Finally, Father complains that the trial court failed to conduct a best
interest hearing or make a best interest finding before it granted the adoption petitions.
However, it is apparent from the record that the trial court conducted the best interest
Jackson App. Nos. 11CA5 & 11CA6 3
hearing at the same time it conducted the hearing on the consent issue and that the trial
court in fact made a best interest finding. Accordingly, we affirm the trial court’s
judgment.
I. Facts
{¶5} M.C. and C.C. are the biological children of D.P. and T.C. In 2010 T.C.’s
husband, B.C., filed petitions to adopt his stepchildren and thus terminate D.P.’s
parental rights. D.P., who opposed the petitions, filed a motion for appointed counsel,
which the trial court denied. After a hearing on the petitions, the trial court found that
D.P. had not had contact with or paid any support for the children for at least one year
immediately preceding the filing of the petitions. The court did not find any justifiable
cause for this lack of communication or support and concluded that D.P.’s consent to
the adoption was not necessary. Then, the court issued final decrees of adoption, and
this consolidated appeal followed.
II. Assignments of Error
{¶6} D.P. assigns four errors for our review:
THE PROBATE COURT COMMITTED SUBSTANTIAL REVERSBLE [sic]
ERROR IN ITS RULING THAT BIOLOGICAL FATHER, APPELLANT * * *,
FAILED TO SHOW JUSTIFIABLE CAUSES FOR NOT COMMUNICATE
[sic] AND SUPPORTING HIS MINOR CHILDREN AND THAT HIS
CONSENT TO ADOPTION OF C.C. AND M.C. WAS NOT NECESSARY.
THE PROBATE COURT DEPRIVED APPELLANT * * * OF HIS
PROCEDURAL DUE PROCESS RIGHTS BY NOT APPOINTING HIM
ASSISTANCE OF COUNSEL PRIOR TO CURTAILING HIS
CONSTITUTIONAL CUSTODIAL RIGHTS.
THE PROBATE COURT ERRED IN FAILING TO MAKE A SPECIFIC
FINDING THAT THE ADOPTION WAS IN THE BEST INTEREST OF THE
MINOR CHILDREN AND FURTHER IN FAILING TO SCHEDULE A
HEARING TO DETERMINE THE BEST INTEREST OF THE MINOR
CHILDREN.
Jackson App. Nos. 11CA5 & 11CA6 4
THE JACKSON COUNTY PROBATE-JUVENILE JUDGE, STEPHEN D.
MICHAEL, ERRED WHEN DID [sic] NOT ALLOW APPELLANT * * *
ACCESS TO HIS NOTES AND EVIDENCE (LEGAL FOLDER) AND BY
DOING SO APPELLANT WAS UNPREPARED TO PRESENT HIMSELF
AND/OR UNABLE TO PRESENT ANY EVIDENCE ON HIS OWN
BEHALF.
For ease of analysis, we will address the assignments of error out of order.
III. Right to Counsel
{¶7} In his second assignment of error, Father contends that he is indigent2
and the trial court violated his procedural due process rights when it refused to appoint
him counsel. At the trial level, Father argued that he had a right to appointed counsel
under the Sixth Amendment of the United States Constitution and Article I, Section 10 of
the Ohio Constitution,3 not the Due Process Clause. “It is well-settled that failing to
object at the trial court level to a complained of error results in a waiver of that error on
appeal. Thus, an appellate court may recognize an error that an appellant waived only
if it constitutes plain error.” In re E.W., Washington App. Nos. 10CA18-10CA20, 2011-
Ohio-2123, at ¶11 (internal citations omitted). However, as we explain below, Father
failed to support his argument with any relevant authority to establish that the trial court
committed plain error when it denied his request.
2
Father claims he filed an “Affidavit of Indigent [sic]” to support his motion. (Appellant’s Br. 5). Father
actually filed an “Affidavit of Poverty.” Although the affidavit does not specifically refer to Father’s inability
to pay for an attorney, Father averred that he had income of $12.00 per month from prison labor and
could not “pay the cost of this case or give security for it[.]” (Aff. of Poverty ¶¶3-4.).
3
At the hearing on the adoption petition, the following exchange occurred:
JUDGE MICHAEL: * * * Now you’re probably going to ask me about a lawyer.
[FATHER]: Yes, sir.
JUDGE MICHAEL: And I don’t have to, and I won’t appoint you a lawyer.
[FATHER]: Ok, that’s fine.
We do not interpret Father’s response as a waiver of his right to counsel. Rather, he appears to simply
acknowledge the court has made a final decision on his request for counsel.
Jackson App. Nos. 11CA5 & 11CA6 5
{¶8} Neither the Supreme Court of Ohio nor this Court has addressed the issue
of whether an indigent parent contesting an adoption petition filed by a private party has
a procedural due process based right to appointed counsel. Father claims R.C.
2151.352 confers such a right. He also cites State ex rel. Asberry v. Payne, 82 Ohio
St.3d 44, 1998-Ohio-596, 693 N.E.2d 794, which involved a right to counsel claim
based on this statute. However, R.C. 2151.352 confers a statutory right to counsel, not
a constitutional right, and only applies in proceedings under Chapters 2151 and 2152 of
the Revised Code. Adoption proceedings fall under Chapter 3107. Therefore, these
arguments are meritless.
{¶9} Father also cites Juv.R. 4(A), which states: “Every party shall have the
right to be represented by counsel and every child, parent, custodian, or other person in
loco parentis the right to appointed counsel if indigent. These rights shall arise when a
person becomes a party to a juvenile court proceeding.” However, the Ohio Rules of
Juvenile Procedure “prescribe the procedure to be followed in all juvenile courts of this
state in all proceedings coming within the jurisdiction of such courts * * *.” Juv.R. 1(A)
(Emphasis added). The adoption proceedings occurred in probate court, not juvenile
court. Moreover, even if the Juvenile Rules applied, Juv.R. 4(A) also provides: “This
rule shall not be construed to provide for a right to appointed counsel in cases in which
that right is not otherwise provided for by constitution or statute.” In other words, the
rule does not create a right to appointed counsel, let alone a procedural due process
based right to counsel. We also reject this argument.
{¶10} Finally, Father cites Lassiter v. Department of Social Services (1981), 452
U.S. 18, 101 S. Ct. 2153, 68 L.E.2d 640 for the following proposition: “The right to
Jackson App. Nos. 11CA5 & 11CA6 6
cuounsel [sic] in proceedings to terminate parental right’s [sic] is a due-process right.”
In Lassiter, a county social services department, i.e. the state, filed a petition to
terminate a mother’s parental rights. Lassiter at 20-21. The mother claimed she was
indigent and entitled to appointed counsel under the Fourteenth Amendment Due
Process Clause. Id. at 24. Contrary to what Father’s description of Lassiter implies, the
Court declined to adopt a categorical rule that the “Constitution requires the
appointment of counsel in every parental termination proceeding.” Id. at 31. Instead,
the court adopted a case-by-case approach to the issue. Id. at 32.
{¶11} However, a private party (the children’s stepfather) filed the adoption
petitions in this case. The Fourteenth Amendment provides protection against
“governmental—not private—action.” Ford Motor Credit Co. v. Ryan, 189 Ohio App.3d
560, 2010-Ohio-4601, 939 N.E.2d 891, at ¶41, citing Blum v. Yaretsky (1982), 457 U.S.
991, 1002, 102 S.Ct. 2777, 73 L.Ed.2d 534. Father advances no argument as to how
state action exists in this case. Moreover, Father makes no effort to explain how
Lassiter, which adopted a case-by-case approach to the right to counsel issue for
parental termination proceedings initiated by the state, creates a categorical rule that
procedural due process requires appointment of counsel in adoptions initiated by private
parties.
{¶12} We recognize this Court has “long had a policy of affording ‘considerable
leniency’ to pro se litigants.” State v. Ritchie, Pickaway App. No. 10CA20, 2011-Ohio-
164, at ¶5, quoting Robb v. Smallwood, 165 Ohio App.3d 385, 2005-Ohio-5863, 846
N.E.2d 878, at ¶5. “We have not held pro se litigants to the same standard as
attorneys.” Id., quoting Robb at ¶5. However, Father has failed to advance any
Jackson App. Nos. 11CA5 & 11CA6 7
relevant authority for his claim that a categorical, procedural due process based right to
appointed counsel exists for indigent parents in adoption proceedings initiated by a
private party. If an argument exists to support Father’s assigned error, it is not this
Court’s duty to root it out, particularly when the alleged error involves a constitutional
issue of first impression in this Court. See State v. Lynch, Cuyahoga App. No. 95770,
2011-Ohio-3062, at ¶18; See, also, Brown v. August, Wayne App. No. 01CA0024,
2002-Ohio-80, 2002 WL 22877, at *4 (“It is not the obligation of an appellate court to
search for authority to support an appellant’s argument as to an alleged error.”).
Accordingly, we overrule the second assignment of error.
IV. Sixth Amendment
{¶13} In his fourth assignment of error, Father contends that the trial court
violated his right under the Sixth Amendment to the United States Constitution to
“conduct his own defense” because during the hearing on the petition, the court denied
him access to a folder in his prison cell containing notes and evidence The Sixth
Amendment provides:
In all criminal prosecutions, the accused shall enjoy the right to a speedy
and public trial, by an impartial jury of the state and district wherein the
crime shall have been committed, which district shall have been previously
ascertained by law, and to be informed of the nature and cause of the
accusation; to be confronted with the witnesses against him; to have
compulsory process for obtaining witnesses in his favor, and to have the
assistance of counsel for his defense.
(Emphasis added). Thus by its plain language, this Amendment applies to “criminal
prosecutions,” not adoption proceedings.
{¶14} Moreover, there is no evidence that the trial court denied Father access to
the folder as opposed to Father simply forgetting to bring it with him. Though the court
Jackson App. Nos. 11CA5 & 11CA6 8
had no obligation to do so, after the hearing the court allowed Father to submit his file
for the court’s review. Father merely speculates that had he been able to present his
folder in open court, the outcome of the proceedings would have been different. In his
argument for this assignment of error, Father also complains that when he did submit
the folder, the trial court ignored certain evidence in it. We address these issues in our
discussion of the first assignment of error. We overrule Father’s fourth assignment of
error.
V. Consent
{¶15} “It is undisputed that parents have a fundamental liberty interest in the
care, custody and management of their children.” In re Adoption of S.L.N., Scioto App.
No. 07CA3189, 2008-Ohio-2996, at ¶19, citing Troxel v. Granville (2000), 530 U.S. 57,
65, 120 S.Ct. 2054, 147 L.Ed.2d 49. The right to raise one’s child is an “essential and
basic civil right [.]” Id., citing In re Hayes (1997), 79 Ohio St.3d 46, 48, 679 N.E.2d 680.
An adoption terminates that right. In re Adoption of Greer, 70 Ohio St.3d 293, 298,
1994-Ohio-69, 638 N.E.2d 999. See R.C. 3107.15(A)(1).
{¶16} “Generally, children cannot be adopted without the consent of their natural
parents because consent is a jurisdictional prerequisite to adoption.” S.L.N. at ¶19,
citing McGinty v. Jewish Children’s Bureau (1989), 46 Ohio St.3d 159, 161, 545 N.E.2d
1272 (per curiam). However, R.C. 3107.07(A) offers an exception to this general rule.
Consent to adoption is not required of “[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
Jackson App. Nos. 11CA5 & 11CA6 9
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.” R.C. 3107.07(A).
{¶17} Thus “[t]he party that seeks to adopt a child without parental consent must
prove, by clear and convincing evidence, both (1) that the natural parent failed to
support or to communicate with the child for the requisite one-year time period, and (2)
that the failure was without justifiable cause.” S.L.N. at ¶21, citing In re Adoption of
Bovett (1987), 33 Ohio St.3d 102, 515 N.E.2d 919, at paragraph one of the syllabus.
“Once the petitioner has established, by clear and convincing evidence, that the
biological parent has failed to communicate with or to support the child for the one-year
period, 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 R.M.Z., Montgomery
App. No. 23511, 2009-Ohio-5627, at ¶11, citing Bovett at paragraph two of the syllabus.
“The burden of proof, however, remains at all times with the petitioner, who must
establish the lack of justifiable cause by clear and convincing evidence.” Id., citing
Bovett at paragraph two of the syllabus.
{¶18} “Clear and convincing evidence is the 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
(1986), 25 Ohio St.3d 101, 104, 495 N.E.2d 23. However, even under the clear and
convincing standard, our review is deferential. “We will not disturb a finding that
Jackson App. Nos. 11CA5 & 11CA6 10
parental consent is unnecessary for an adoption unless it is against the manifest weight
of the evidence.” S.L.N. at ¶22, citing Bovett at paragraph four of the syllabus. “In other
words, if the trial court’s finding is supported by some competent credible evidence, that
decision will survive appellate review.” Id., citing Shemo v. Mayfield Hts., 88 Ohio St.3d
7, 10, 2000-Ohio-258, 722 N.E.2d 1018.
{¶19} We recognize that the trial court, as trier of fact, “is obviously in a better
position than the appellate court to view the witnesses and to observe their demeanor,
gestures and voice inflections, and to use those observations in weighing the credibility
of the proffered testimony.” Id. at ¶23, citing Myers v. Garson, 66 Ohio St.3d 610, 615,
1993-Ohio-9, 614 N.E.2d 742. “Accordingly, we defer to the trial court on issues of
weight and credibility.” Id. A trial court is “free to believe all, part, or none of the
testimony of any witness who appears before it.” Id., citing Rogers v. Hill (1998), 124
Ohio App.3d 468, 470, 706 N.E.2d 438.
{¶20} Although Father contends that he sent the children letters and cards
during the year preceding the filing of the adoption petition, he appears to concede that
the children never received these communications. Therefore, he does not contend that
the petitioner failed to establish by clear and convincing evidence that he failed to
contact his children during the year preceding the filing of the petition. However, Father
claims the Gallia County Prosecutor’s Office intercepted the letters and cards based on
a “no contact” order stemming from his criminal case involving T.C. and the children’s
maternal grandfather. Thus, Father contends that he had a justifiable cause for not
communicating with the children.
{¶21} Father claims a “no contact” order prohibits contact with T.C.’s “immediate
Jackson App. Nos. 11CA5 & 11CA6 11
family,” which includes the children.4 Some courts have held that a “no contact” court
order is justifiable cause for a parent’s failure to communicate with his children. In re
K.K., Lorain App. Nos. 05CA008849 & 05CA008850, 2006-Ohio-1488, at ¶9. However,
the only evidence that supports Father’s claim that this order existed or that the Gallia
County Prosecutor’s Office in fact seized letters and cards is Father’s testimony.
{¶22} After the hearing on the petition, Father submitted a folder containing
other “evidence” to the trial court. This folder included a letter purportedly sent by an
Assistant State Public Defender stating that Father was “ordered to have no contact
with [his] daughters” and that the Gallia County Prosecutor’s Office had a file that
“included cards that [Father] sent to [his] daughters.” The trial court found that none of
the documents Father submitted were “relevant” and “did not consider them in making
its findings.” We disagree with the court’s relevancy finding concerning the letter
because it tends to make the existence of the no contact order and confiscated
communications more probable. See Evid.R. 401. However, the letter clearly
constitutes inadmissible hearsay. See Evid.R. 801(C). Moreover, it does not appear
that the petitioner ever received a copy of the documents Father submitted or had an
opportunity to object to them.
{¶23} Father attached what appears to be a copy of the alleged “no contact”
order to his appellate brief. However, he did not offer the order as evidence at the trial
level. Therefore, it is not part of the trial record, and we cannot consider it. See App.R.
9.5
4
At the hearing on the petition, Father indicated he believed the order did not include his children and the
prosecutor’s office improperly seized the letters and cards.
5
The parties included many other documents in their briefs that we cannot consider because they are not
part of the record. Father, T.C., and B.C. submitted affidavits. Father also submitted a copy of a docket
Jackson App. Nos. 11CA5 & 11CA6 12
{¶24} Thus the only evidence of the “no contact” order and confiscated cards
and letters was Father’s own self-serving testimony, which the trial court was free to
disbelieve. See S.L.N., supra, at ¶23. Therefore, the trial court’s finding that Father’s
consent to the adoption was unnecessary because he failed, without justifiable cause,
to communicate with his children for the requisite time period was not against the
manifest weight of the evidence. We overrule Father’s first assignment of error to the
extent it challenges this finding. This decision renders moot Father’s additional
contention that the court erred when it found that his consent was not required because
he failed, without justifiable cause, to provide for the maintenance and support of the
children for the requisite time period.
VI. Best Interest
{¶25} In his third assignment of error, Father contends that the trial court never
held a best interest hearing and never made a best interest finding before it granted the
adoption petitions. R.C. 3107.11(A) provides:
After the filing of a petition to adopt an adult or a minor, the court shall fix a
time and place for hearing the petition. * * * At least twenty days before
the date of hearing, notice of the filing of the petition and of the time and
place of hearing shall be given by the court to all of the following:
(1) Any * * * person whose consent to the adoption is required by this
chapter but who has not consented;
(2) A person whose consent is not required as provided by division (A),
(G), (H), or (I) of section 3107.07 of the Revised Code and has not
consented;
***
{¶26} R.C. 3107.14(C) provides:
If, at the conclusion of the hearing, the court finds that the required
in a case involving a paternity complaint for support and a note purportedly from the trial judge in this
matter.
Jackson App. Nos. 11CA5 & 11CA6 13
consents have been obtained or excused and that the adoption is in the
best interest of the person sought to be adopted as supported by the
evidence, it may issue, subject to division (C)(1)(a) of section 2151.86,
section 3107.064, and division (E) of section 3107.09 of the Revised
Code, and any other limitations specified in this chapter, a final decree of
adoption * * *.
{¶27} “Thus, an adoption proceeding is a two-step process involving a ‘consent’
phase and a ‘best-interest’ phase. Even if a court determines that a parent’s consent is
not required, it must still make a separate determination that the adoption is in the
child’s best interest.” In re Adoption of Jordan (1991), 72 Ohio App.3d 638, 645, 595
N.E.2d 963. See In re Adoption of Walters, 112 Ohio St.3d 315, 2007-Ohio-7, 859
N.E.2d 545, at ¶5, citing R.C. 3107.14(C). But contrary to Father’s contention, nothing
“either requires or prevents a separate hearing for the consent and best-interests
portions of an adoption proceeding.” Id. at ¶21. “[A]lthough a court may choose to hold
separate hearings on consent and the best interests of the child, there is no requirement
to do so. One hearing to address both requirements is sufficient, provided notice of the
adoption hearing pursuant to R.C. 3107.11(A) is afforded the biological parent.” Id.
{¶28} Here, the record indicates that the trial court held the best interest hearing
at the same time it held the consent hearing. At the hearing, the trial court specifically
told the petitioner’s attorney: “Basically this is your motion for the Court, so it’s your job
to prove to me that this is lawful and in the child’s best interest * * *.” (Emphasis
added). In addition, in discussing Father’s convictions for assault and abduction, the
trial judge noted that the judgment entry related to these convictions “is going to tell me
something about how long you’re going to be and what affect that has on… it certainly
goes to best interests * * *.” Therefore, we reject Father’s contention that the court
failed to conduct a best interest hearing.
Jackson App. Nos. 11CA5 & 11CA6 14
{¶29} Moreover, the trial court did make a “best interest” finding. Admittedly, in
the January 18, 2011 judgment entries where the trial court finds that Father’s consent
to the adoptions is unnecessary, the court purported to grant the adoption petitions and
made no best interest findings. But in the final decrees of adoption, the trial court
specifically found that granting the petitions was “in the best interest” of the children.
Therefore, we reject Father’s argument that the court failed to make the requisite best
interests finding. And since Father does not contend that the trial court erroneously
found that adoption was in the best interest of the children, we do not address that
issue. Accordingly, we overrule Father’s third assignment of error.
VII. Summary
{¶30} We overrule Father’s second, third, and fourth assignments of error. We
overrule Father’s first assignment of error to the extent he challenges the court’s finding
that he lacked justifiable cause for not communicating with the children for the requisite
time period. His first assignment of error is moot to the extent he challenges the court’s
finding that he lacked justifiable cause for not supporting the children for the requisite
time period. Accordingly, we affirm the trial court’s judgment.
JUDGMENT AFFIRMED.
Jackson App. Nos. 11CA5 & 11CA6 15
JUDGMENT ENTRY
It is ordered that the JUDGMENT IS AFFIRMED and that Appellant shall pay the
costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Jackson
County Common Pleas Court, Probate Division, to carry this judgment into execution.
Any stay previously granted by this Court is hereby terminated as of the date of
this entry.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure. Exceptions.
Abele, J.: Concurs in Judgment and Opinion.
Kline, J.: Concurs in Judgment and Opinion as to Assignment of Error III;
Concurs in Judgment Only as to Assignments of Error I, II, & IV.
For the Court
BY: ________________________________
William H. Harsha, Presiding Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.