In re Adoption of K.N.W , 2016 Ohio 5863 ( 2016 )

[Cite as In re Adoption of K.N.W, 2016-Ohio-5863.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
ATHENS COUNTY
IN THE MATTER OF THE : Case Nos. 15CA36
15CA37
ADOPTION OF: :
DECISION AND
K.N.W. AND A.D.W. : JUDGMENT ENTRY
: RELEASED 09/09/2016
APPEARANCES:
Beth B. Ferrier, Ferrier Law Office, LLC, Athens, Ohio, for appellant, Chad Eric Jarvis.
Zachary L. Tidaback, Mollica, Gall, Sloan & Sillery Co., LPA, Athens, Ohio, for appellee,
Kenneth Waggoner.
Harsha, J.
{¶1} Chad Eric Jarvis appeals from judgments finding that his consent to a
stepparent adoption of his minor children was not required. The trial court made that
determination because it found Jarvis had failed without justifiable cause for the
requisite period: (1) to provide more than de minimis contact with the children; and (2) to
provide for the maintenance and support of the children as required by law or judicial
decree.
{¶2} Jarvis claims that his single support payment during the applicable one-
year period was sufficient to prevent the application of the statutory exception to the
requirement of his consent to the adoptions. The modified dissolution decree required
that Jarvis pay $367.20 in monthly child support for his minor children, but he made only
a solitary payment of $328 in June 2015. Jarvis did not make even one compliant
payment of child support during the one-year period preceding the filing of the adoption
petitions. Furthermore, that one noncompliant payment satisfied less than 7% of his
Athens App. Nos. 15CA36 and 15CA37 2
total annual obligation. Therefore, the trial court did not abuse its discretion by
determining that he did not provide for the maintenance and support of the minor
children as required by the law or judicial decree for that period.
{¶3} Jarvis also contends that he had justifiable cause for his failure to pay
child support because he had no reason to believe that his financial support was
necessary when his ex-wife and her new husband never took steps to enforce the
existing support order prior to the new husband filing the adoption petitions. We reject
Jarvis’s contention because the primary cases he cites for that proposition did not
involve a court order requiring child support.
{¶4} Finally, Jarvis under his second assignment of error contends that his
unemployment, drug addiction, and health issues provided justifiable cause for his
failure to pay child support. Jarvis lost his job after the dissolution of his marriage
because of his drug addiction; and he conceded that he had not held a steady job since
then because of his addiction. Jarvis’s termination and continued unemployment
resulted from his decision to use illegal drugs, which was a voluntary act that did not
justify modification of his child-support obligations, and thus did not provide a justifiable
excuse for his failure to pay them. Moreover, he admitted that he had made money with
a few side jobs since the dissolution, but had not used any of that money to pay child
support. Additionally, his excuse of hurting his knee in June 2015 would not have
prevented him from providing child support in the period before his injury. Because the
trial court did not clearly lose its way in determining that the evidence established that
Jarvis did not have a justifiable cause for failing to provide for the maintenance and
Athens App. Nos. 15CA36 and 15CA37 3
support of his children as required by the law and judicial decree its decision is not
against the manifest weight of the evidence.
{¶5} This decision renders moot Jarvis’s argument in his first assignment of
error that the trial court erred when it found that his consent to the adoptions was also
not required because he did not have more than de minimis contact with the children in
the requisite one-year period. In other words, either finding was sufficient to void the
consent requirement.
{¶6} Finally, in his third assignment of error Jarvis claims that the trial court
erred by failing to recognize that the stepfather had the burden of proving by clear and
convincing evidence that Jarvis failed without justifiable cause to provide more than de
minimis contact with the minor children or to provide for the maintenance and support of
the minor children. We reject Jarvis’s claim because there is nothing in the trial court’s
judgments or the record that contradicts the presumption of regularity accorded all
judicial proceedings.
{¶7} We affirm the judgments of the trial court.
I. FACTS
{¶8} Chad Eric Jarvis and Lucinda Waggoner are the biological parents of two
minor children, K.N.W. and A.D.W. After the dissolution of marriage, Lucinda married
Kenneth Waggoner.
{¶9} In August 2015, Kenneth filed petitions in the Athens County Court of
Common Pleas, Probate Division to adopt K.N.W. and A.D.W. Kenneth attached
Lucinda’s written consent to the adoptions. Kenneth alleged that Jarvis’s consent to the
adoptions was not required because Jarvis had failed without justifiable cause for a
Athens App. Nos. 15CA36 and 15CA37 4
period of at least one year immediately preceding the filing of the petitions: (1) to
provide more than de minimis contact with the children; and (2) to provide for the
maintenance and support of the children as required by law or judicial decree.
{¶10} Jarvis filed objections to Kenneth’s petitions, which asserted that his
consent to the adoptions was required and that he did not consent to them. The probate
court held a hearing, which provided the following evidence.
{¶11} Jarvis and Lucinda were married in 2005 and had two children, K.N.W.,
who was born in 2003, and A.D.W., who was born in 2006. In 2009, the Athens County
Common Pleas Court, Domestic Relations Division issued a decree of dissolution
incorporating the parties’ separation agreement. Under the decree the court named
Lucinda the primary residential parent and legal custodian of their children and ordered
Jarvis to pay child support in the amount of $300, plus poundage. The parties’
agreement included the following condition on Jarvis’s visitation rights:
Husband shall have random drug screens, performed by Wife, and agrees
to not see the children if the results are positive for any drugs. Husband
shall not have any drugs or drug paraphernalia in his possession (in his
house or in his car) while he has the children in his care, and shall not
take the children to places where he has knowledge that drugs will be
present or around people that will have drugs about their person.
{¶12} Lucinda testified that the provision was included in the parties’ separation
agreement because of Jarvis’s history of drug abuse during their marriage, including his
abuse of oxycodone, hydrocodone, methadone, and marijuana. This included Jarvis
purchasing illegal drugs and snorting them. According to Jarvis’s testimony, Lucinda, a
registered nurse, had conducted 40 to 50 drug tests on him while they were married.
Although Jarvis testified that he did not understand the provision because he was not
Athens App. Nos. 15CA36 and 15CA37 5
represented by counsel when he executed the separation agreement and agreed to the
dissolution, he conceded that he signed the dissolution documents and that it was his
responsibility to read the pertinent agreement and other materials.
{¶13} In February 2013, when K.N.W. was visiting Jarvis, who was living with his
parents, she saw syringes in his dresser drawer and told her mother, Lucinda. For the
next visitation Lucinda advised Jarvis’s mother, Diana, that in accordance with the
dissolution decree, she would require Jarvis to take and pass a drug test before she
would allow him to have visitation with the children. Jarvis refused to take a drug test
and did not have visitation with his children thereafter. According to Lucinda, Jarvis’s
mother texted her that she understood why she wouldn’t let Jarvis see the children
because “he’s very deep into drugs right now.” According to Lucinda if Jarvis had come
to her and agreed to take a drug test and if he had passed it, she would have allowed
him to visit the children in accordance with the dissolution decree. In fact, Lucinda had
let Jarvis’s parents see the children as long as he was not around.
{¶14} Lucinda married Kenneth in 2012, and the children live with them.
Lucinda testified that in the year preceding Kenneth’s August 2015 filing of his
stepparent adoption petitions, Jarvis’s only contact with his children was: (1) to call
them in December 2014 to wish them a merry Christmas, when the children both said
they did not want to talk with him; and (2) when he left a voicemail in April 2015 saying
that he had heard that K.N.W. was in the hospital and wanted to know how she was.
According to Lucinda, Jarvis did not send any cards or gifts to the children during that
period. Conversely, Jarvis testified that he tried to contact his children at least once or
Athens App. Nos. 15CA36 and 15CA37 6
twice a month, but he would either never get an answer or Lucinda would just tell him
that the children did not want to speak with him.
{¶15} According to Jarvis he lost his job with a construction company within a
couple weeks after the dissolution of his marriage to Lucinda in November 2009
because he was “ratted on for supposedly having marijuana.” Jarvis received
unemployment compensation for a couple years thereafter, and his child support
payments were taken out of his benefits during this period. According to Jarvis his main
source of income since his unemployment compensation ended was his parents, with
whom he lived. Nevertheless, he further testified that he had engaged in a few side jobs
since 2009, but conceded that he did not use any of the proceeds to pay his child-
support obligation.
{¶16} During the one-year period preceding Kenneth’s August 2015 filing of his
adoption petitions, the amount of monthly child support that Jarvis owed was $367.20,
which represented the original decree amount of $300, $60 added to cover delinquent
arrearages, and $7.20 in poundage. In that period Jarvis made only a single payment of
$300, i.e., less than the monthly amount due, in June 2015. In addition the IRS collected
$28 involuntarily from Jarvis and paid that as part of the child support payment that
same month, for a total payment of $328. Jarvis testified that he got the money for his
$300 payment by taking money given to him by his parents and playing cards.
{¶17} On cross-examination Jarvis testified that he had not held a steady job
since his construction job in 2009 because of his addiction to drugs. He claimed that he
was unable to work and pay child support because he “blew out” his knee, which
required surgery, landscaping his parents’ property. However, he later admitted that this
Athens App. Nos. 15CA36 and 15CA37 7
occurred in June 2015, so his inability to work for most of the year preceding the
adoption petitions was because of his drug addiction. Jarvis’s mother confirmed that the
reason that he did not work was because of his addiction to drugs.
{¶18} Finally, Jarvis testified that he was facing seven felony charges for
burglary and theft for a January 2015 arrest that he had taken and passed several
court-ordered drug tests since then.
{¶19} In November 2015, the trial court issued decisions in both adoption cases
concluding that Jarvis’s consent was not required because he: (1) “has not had more
than de minimis contact from August 3, 2014 through August 3, 2015 and by law his
consent is not required in this matter”; and (2) has failed to provide maintenance and
support of the minor children for a period of at least one year immediately preceding the
filing of the petition. On its first finding, the trial court at one point stated inconsistently
that “[t]here is not any dispute that [Jarvis] has had more than de minimis contact during
the statutory period,” but concluded otherwise on the next page after finding that
Jarvis’s “only contact has occurred twice during these visits [of the children with his
parents], but constituted no more than monetary [sic] passings.” On its second finding,
the trial court concluded that Jarvis’s solitary payment of $328, which consisted of his
$300 voluntary payment and an additional $28 collected involuntarily through tax
recapture, “does not represent support and [Jarvis’s] consent is not required.” These
consolidated appeals followed.1
II. ASSIGNMENTS OF ERROR
1“A trial court’s finding pursuant to R.C. 3107.07 that the consent to an adoption of a party described in
R.C. 3107.06 is not required is a final appealable order.” In re Adoption of Greer, 70 Ohio St. 3d 293, 638
N.E.2d 999 (1994), syllabus.
Athens App. Nos. 15CA36 and 15CA37 8
{¶20} Jarvis assigns the following errors for our review:
1. THE PROBATE COURT’S FINDING THAT THE CONSENT OF
APPELLANT TO THE ADOPTIONS WAS NOT REQUIRED BECAUSE
THE APPELLANT DID NOT HAVE MORE THAN DE MINIMIS
CONTACT WITH THE MINOR CHILDREN FOR AT LEAST ONE
YEAR IMMEDIATELY PRECEDING THE FILING OF THE ADOPTION
PETITIONS IS AGAINST THE WEIGHT OF THE EVIDENCE.
2. THE PROBATE COURT’S FINDING THAT APPELLANT’S CONSENT
TO THE ADOPTIONS WAS NOT REQUIRED BECAUSE THE
PAYMENT OF SUPPORT THAT APPELLANT MADE IN THE ONE
YEAR IMMEDIATELY PRECEDING THE FILING OF THE ADOPTION
PETITIONS DID NOT REPRESENT SUPPORT IS AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE.
3. THE PROBATE COURT ABUSED ITS DISCRETION AND ERRED AS
A MATTER OF LAW IN FAILING TO RECOGNIZE THAT APPELLEE
HAD THE BURDEN OF PROVING BY CLEAR AND CONVINCING
EVIDENCE THAT APPELLANT FAILED WITHOUT JUSTIFIABLE
CAUSE TO PROVIDE MORE THAN DE MINIMIS CONTACT WITH
THE MINOR CHILDREN OR TO PROVIDE FOR THE MAINTENANCE
AND SUPPORT OF THE MINOR CHILDREN AS REQUIRED BY LAW
OR JUDICIAL DECREE.
III. GENERAL PRINCIPLES AND STANDARD OF REVIEW
{¶21} “ ‘[N]atural parents have a fundamental liberty interest in the care,
custody, and management of their children.’ ” State ex rel. V.K.B. v. Smith, 138 Ohio
St.3d 84, 2013-Ohio-5477, 3 N.E.3d 1184, ¶ 16, quoting In re Hockstock, 98 Ohio St. 3d
238, 2002-Ohio-7208, 781 N.E.2d 971, ¶ 16. This is a constitutionally protected
interest. In re Mullen, 129 Ohio St. 3d 417, 2011-Ohio-3361, 953 N.E,2d 302, ¶ 11.
{¶22} Because adoption terminates these fundamental constitutional rights of
the natural parents, any exception to the requirement of parental consent to adoption
must be strictly construed to protect the right of natural parents to raise and nurture their
Athens App. Nos. 15CA36 and 15CA37 9
children. In re Adoption of P.A.C., 126 Ohio St. 3d 236, 2010-Ohio-3351, 933 N.E.2d
336, ¶ 6.
{¶23} Consistent with the recognition of these rights, R.C. 3107.06 generally
requires the written consent of the natural parents of the minor children who are the
subject of petitions to adopt. However, consent is not required under R.C. 3107.07,
which includes the following exceptions to the general rule requiring a natural parent’s
consent:
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.
{¶24} “Pursuant to R.C. 3107.07(A), the petitioner for adoption has the burden of
proving, by clear and convincing evidence, both (1) that the natural parent has failed to
support the child for the requisite one-year period, and (2) that the failure was without
justifiable cause.” In re Adoption of Bovett, 33 Ohio St. 3d 102, 515 N.E.2d 919 (1987),
paragraph one of the syllabus.
{¶25} The Supreme Court of Ohio recently clarified that “[a] probate court
determination of whether a financial contribution constitutes maintenance and support
for purposes of R.C. 3107.07(A) is reviewed for an abuse of discretion; but whether
justifiable cause for the failure to pay child support has been proved by clear and
convincing evidence is a separate question for the probate court and will not be
disturbed on appeal unless it is against the manifest weight of the evidence.” In re
Athens App. Nos. 15CA36 and 15CA37 10
Adoption of M.B., 131 OhioSt.3d 186, 2012-Ohio-236, 963 N.E.2d 142, paragraph two
of the syllabus.
{¶26} An abuse of discretion occurs when a decision is unreasonable, arbitrary,
or unconscionable.” State ex rel. Altman-Bates v. Pub. Emps. Retirement Bd., __ Ohio
St.3d __, 2016-Ohio-3100, __ N.E.3d __, ¶ 22.
{¶27} “[W]hen an appellate court reviews whether a trial court’s decision is
against the manifest weight of the evidence, the court weighs the evidence and all
reasonable inferences, considers the credibility of witnesses and determines whether in
resolving conflicts in the evidence, the factfinder clearly lost its way and created such a
manifest miscarriage of justice that the judgment must be reversed.” See Martin v.
Jones, 2015-Ohio-3168, 41 N.E.3d 123, ¶ 68 (4th Dist.), citing Eastley v. Volkman, 132
Ohio St. 3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 25; Pinkerton v. Salyers, 4th Dist.
Ross No. 13CA3388, 2015-Ohio-377, ¶ 18, citing In re M.M., 4th Dist. Meigs No.
14CA6, 2014-Ohio-5111, ¶ 22 (applying this standard in a case that involved a burden
of proof of clear and convincing evidence). We presume that the trial court’s findings
are accurate and will reverse a judgment as being against the manifest weight of the
evidence only in the exceptional case in which the evidence weighs heavily against the
judgment. Martin at ¶ 68.
IV. LAW AND ANALYSIS
A. Consent Not Required: Failure to Provide Maintenance
and Support as Required by Law or Judicial Decree
{¶28} For ease of analysis we first consider Jarvis’s second assignment of error.
Jarvis initially asserts that the trial court’s finding that his consent to the adoptions was
Athens App. Nos. 15CA36 and 15CA37 11
not required because his child-support payment in June 2015 was insufficient is against
the manifest weight of the evidence. Under the applicable standard of review, however,
his first claim is reviewed under the abuse-of-discretion standard rather than a manifest-
weight standard. In re Adoption of M.B., 131 Ohio St. 3d 186, 2012-Ohio-236, 963
N.E.2d 142, at paragraph two of the syllabus.
{¶29} During the pertinent one-year period preceding the stepfather’s filing of his
adoption petitions, the maintenance and support of the minor children as required by
judicial decree was represented by Jarvis’s monthly child-support obligation of $367.20,
which included the original dissolution amount, an amount to cover the arrearage, and
the poundage. His voluntary payment of $300 in June, even when combined with the
involuntary IRS recapture of $28, was insufficient to constitute even one sufficient
monthly child-support payment. Jarvis cites no specific case or authority that his
solitary partial payment of support was sufficient to require his consent to the proposed
adoptions.
{¶30} Similarly, in M.B.,2 the Supreme Court of Ohio held that gifts that
represented “only a small portion of one monthly child-support obligation and an even
2 In M.B. at ¶ 25, the Supreme Court of Ohio represented that it was answering the question posed by
Justice Douglas in his concurring opinion in Bovett, 33 Ohio St. 3d at 107, 515 N.E.2d 919 (Douglas, J.,
concurring):
Today, we answer the question raised by Justice Douglas in his concurring opinion in
Bovett—whether a parent's making a single payment of support or sending a Christmas
card is sufficient support to frustrate R.C. 3107.07(A), or on the other end of the
spectrum, whether a parent's missing one or two payments of support in the year
preceding the filing of an adoption petition negates the need for parental consent to
adoption. A trial court has discretion to make these determinations, and in connection
with the first step of the analysis, an appellate court applies an abuse-of-discretion
standard when reviewing a probate court decision regarding whether a financial
contribution from a parent constitutes maintenance and support for purposes of R.C.
3107.07(A).
Athens App. Nos. 15CA36 and 15CA37 12
smaller portion of the annual obligation” did not constitute sufficient maintenance and
support. Although it is true here that Jarvis’s single payment represented most of one
monthly child-support payment, as modified by the arrearage and poundage amounts,
as in M.B., it still did not satisfy the full monthly payment obligation. And it was less than
7% of his annual child-support obligation. Under these circumstances we cannot say
that the trial court acted in an unreasonable, arbitrary, or unconscionable manner in
determining that his solitary noncompliant support payment did not constitute sufficient
maintenance and support of the minor children as required by a judicial decree during
the requisite one-year period.
{¶31} Next Jarvis contends that the trial court’s implicit determination that he
lacked justifiable cause for his failure to pay child support for the applicable period is
against the manifest weight of the evidence. He claims that he had no reason to believe
that his support was necessary when Lucinda and her new husband never took any
steps to enforce the existing support order prior to the filing of the adoption petitions.
{¶32} “As we have noted in previous decisions, the word ‘justifiable’ means
‘[c]apable of being legally or morally justified; excusable; defensible.’ ” In re Adoption of
B.B.S., 2016-Ohio-3515, __ N.E.3d __, ¶ 16 (4th Dist.), quoting Black’s Law Dictionary
882 (8th Ed.2004). “Some facially justifiable reasons for failure to support one’s child
are: (1) unemployment and a lack of income, and (2) the custodian, who is in a better
financial position than the natural parent, adequately provides for a child’s needs and
expresses no interest in receiving any financial assistance.” In re Adoption of B.B.S. at
In truth, however, the Supreme Court did not definitively answer the question of whether a parent’s
making of a single payment of support in the one-year period is sufficient to require the parent’s consent
to adoption. Instead, it merely stated that this decision was within the trial court’s discretion.
Athens App. Nos. 15CA36 and 15CA37 13
¶ 16, citing In re Adoption of Hughes, 4th Dist. Ross No. 07CA2947, 2007-Ohio-3710, ¶
20-21.
{¶33} Jarvis relies primarily on the second example noted above, as addressed
in In re Adoption of Hadley, 2d Dist. Greene No. 90 CA 117, 1991 WL 227737, *3 (May
6, 1991) (“where, as here, the parent has no reason to believe that his or her financial
assistance is necessary for the support of the child, and the persons caring for the child
have expressed no interest in receiving any financial assistance or contribution from the
parent, no such abdication of parental responsibility is suggested by the natural parent’s
failure to provide financial assistance that is neither needed nor requested”).
{¶34} We reject Jarvis’s contention because cases like Hadley and Hughes are
cases in which there is no child-support order. Here, the parties agreed to and the
domestic relations court issued a child-support order. These cases are thus not
controlling. See, e.g., In re Adoption of LaFave, 2d Dist. Montgomery No. 17697, 1999
WL 959148, *4 (Aug. 13, 1999) (the same court that issued the decision in Hadley held
that the case was “distinguishable from Hadley in that there petitioner never asked for
financial assistance from the natural parent and no court order had ever been issued
against the natural parent requiring support”).
{¶35} Jarvis finally contends under his second assignment of error that his
unemployment, drug addiction, and health issues provided justifiable cause for his
failure to comply with his child-support obligation in the requisite period. Jarvis admitted
that he lost his job after the dissolution of his marriage because of his drug addiction,
and he further conceded that he had not held a steady job since then because of his
addiction.
Athens App. Nos. 15CA36 and 15CA37 14
{¶36} Consistent with our recent precedent, Jarvis’s termination from
employment and continued unemployment are results of his decision to use illegal
drugs, a voluntary act that did not justify modification of his child-support obligations and
thus did not provide a justifiable cause for his failure to pay them. In re Adoption of
J.A.C., 4th Dist. Scioto No. 14CA3654, 2015-Ohio-1662, ¶ 18, citing Fuller v. Fuller, 4th
Dist. Lawrence No. 99CA4, 2000 WL 807224 (June 14, 2000) (“The probate court noted
that David’s termination as a result of his decision to use illegal drugs was a voluntary
act that did not justify modification of David’s child support obligations and thus, did not
provide a justifiable excuse for his failure to pay them”). Drug addiction alone is not a
justifiable cause for failure to provide support. In re Adoption of Lassiter, 101 Ohio
App.3d 367, 378, 655 N.E.2d 781 (2d Dist.1995), discretionary appeal not allowed, 73
Ohio St. 3d 1410, 651 N.E.2d 1308 (1995) (drug addiction does not relieve one of one’s
responsibility towards family and society; a drug addict has funds sufficient to support
his drug habit and thus should have funds sufficient to pay support).
{¶37} In fact Jarvis testified that when he was ordered by a court to pass drug
tests as a condition of his pending felony case, he did so. This indicates that Jarvis had
some control over his ability to stay “clean” and to obtain employment to comply with his
child-support obligation.
{¶38} Moreover, Jarvis admitted that he had made money with a few side jobs
since the dissolution of his marriage, but he had not used any of that money to comply
with his child-support obligation.
Athens App. Nos. 15CA36 and 15CA37 15
{¶39} Finally, Jarvis’s purported health issues involving his injured knee
occurred in June 2015, which did not prevent him from obtaining employment and
providing child support in the period preceding the injury.
{¶40} After weighing the evidence and all reasonable inferences and considering
the credibility of witnesses, we are not persuaded that the trial court clearly lost its way
and created such a manifest miscarriage of justice that we must reverse its judgments.
The trial court’s conclusion that Jarvis’s consent was not required because of his failure
without justifiable cause to provide maintenance and support for the minor children
during the applicable period is not against the manifest weight of the evidence. We
overrule Jarvis’s second assignment of error.
B. Consent Not Required: Failure to Provide More
than De Minimis Contact
{¶41} In his first assignment of error Jarvis argues that the trial court’s finding
that his consent to the adoptions was not required because he did not have more than
de minimis contact with the minor children during the requisite one-year period is
against the manifest weight of the evidence. Because we have already upheld the trial
court’s finding that Jarvis’s consent was not required because of his failure without
justifiable cause to provide for the maintenance and support of his children, this
alternative contention is rendered moot and we need not address it. In the Matter of the
Adoption of M.C., 4th Dist. Jackson Nos. 11CA5 and 11CA6, 2011-Ohio-6527, ¶ 24;
App.R. 12(A)(1)(c). In other words the statute speaks in the alternative.
C. Legal Standard
Athens App. Nos. 15CA36 and 15CA37 16
{¶42} In his third assignment of error Jarvis asserts that the trial court erred by
failing to recognize that Kenneth, the stepfather, had the burden of proving by clear and
convincing evidence that he failed without justifiable cause to provide more than de
minimis contact with the minor children or to provide for the maintenance and support of
the minor children as required by a judicial decree.
{¶43} Jarvis is correct that the trial court’s judgments did not specify the clear-
and-convincing burden of proof borne by the adoption petitioner. See Bovett, 33 Ohio
St.3d 102, 515 N.E.2d 919, at paragraph one of the syllabus; R.C. 3107.07(A).
{¶44} Nevertheless, “[a] presumption of regularity attaches to all judicial
proceedings.” State v. Raber, 134 Ohio St. 3d 350, 2012-Ohio-5636, 982 N.E.2d 684, ¶
19. Consequently, an appellate court presumes that a trial court applied the correct
legal standard absent an affirmative demonstration otherwise. See, generally, Phillips
v. Phillips, 2014-Ohio-5439, 25 N.E.3d 371, ¶ 27 (5th Dist.); McGuire v. McGuire, 4th
Dist. Gallia No. 90 CA 23, 1991 WL 122857, *4 (July 3, 1991). This general
presumption of regularity also applies to the trial court’s application of the correct
burden of proof. See State v. Jordan, 2d Dist. Montgomery No. 13-TRD-2244, 2014-
Ohio-1661, ¶ 2 (“it is presumed that a trial court, as the finder of fact, has applied the
correct burden of proof, and it is the appellant's burden to demonstrate, by reference to
the record of the proceedings, that the presumption is overcome”). Jarvis has failed to
meet his burden of overcoming the presumption that the trial court applied the correct
standard of proof in the adoption proceedings. The record supports the trial court’s
judgment that the stepfather had met his burden of establishing that Jarvis’s consent to
the adoptions was not required. We overrule Jarvis’s third assignment of error.
Athens App. Nos. 15CA36 and 15CA37 17
V. CONCLUSION
{¶45} Having overruled Jarvis’s second and third assignments of error, we affirm
the judgments of the trial court determining that Jarvis’s consent was not required to the
proposed stepparent adoptions of the minor children. Our holding renders his first
assignment of error moot.
JUDGMENTS AFFIRMED.
Athens App. Nos. 15CA36 and 15CA37 18
JUDGMENT ENTRY
It is ordered that the JUDGMENTS ARE 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 Athens
County Court of Common Pleas, 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.
Hoover, J.: Concur in Judgment and Opinion.
McFarland, J.: Concur in Judgment Only.
For the Court
BY: ________________________________
William H. Harsha, 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.