In re E.G.C. ( 2021 )

[Cite as In re E.G.C., 2021-Ohio-276.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
CLINTON COUNTY
IN RE: :
E.G.C. : CASE NO. CA2020-09-014
: OPINION
2/1/2021
:
:
:
APPEAL FROM CLINTON COUNTY COURT OF COMMON PLEAS
PROBATE DIVISION
Case No. 20195020
Peterson Law Office, Shaun D. Peterson, 116 North Walnut Street, Wilmington, Ohio
45177, for appellee
Smith, Meier & Webb, LPA, Andrew P. Meier, 140 North Main Street, Suite B, Springboro,
Ohio 45066, for appellant
BYRNE, J.
{¶1} Appellant, I.J.O. ("Father"), the biological father of E.G.C. ("Child"), appeals
the entry of the Clinton County Court of Common Pleas, Probate Division, finding that
Father's consent was not required in the adoption of Child by Child's stepfather, T.C.
Clinton CA2020-09-014
("Stepfather").1 R.C. 3107.07(A) provides that a parent's consent to an adoption is not
required if the probate court finds by clear and convincing evidence that the parent has
"failed without justifiable cause to provide more than de minimis contact with the minor" for
a one-year period. The probate court found that Father's contact with Child was de minimis.
However, the probate court did not address the question of whether Father's de minimis
contacts were "without justifiable cause." We therefore reverse and remand this matter for
further proceedings on the question of whether Father's de minimis contacts with Child were
"without justifiable cause" under R.C. 3107.07(A).
I. Factual Background
A. Facts Addressed in the Probate Court's Entry
{¶2} Child was born in 2012. Child initially resided in Clinton County, Ohio with
both of her natural parents, Father and B.C. ("Mother"). The record reflects that Father and
Mother were never married. In 2014, when Child was approximately 18 months old, Mother
and Child moved out of the residence. For the next two and one-half to three and one-half
years Father visited Child every other weekend and some weekdays. Child's paternal
grandfather provided childcare while Mother worked. Father's child support obligations
were administratively established in February 2015.
{¶3} Father married S.T. ("Wife") in April 2016. The marriage lasted six months.
{¶4} Father saw Child for the last time at some point in 2017. From that point
forward Father did not send any letters, cards, or presents to Child, and Father did not visit
Child. Child's paternal grandparents spoke to Child through Skype or FaceTime on a few
occasions, and Father may have been present in the background but there was no
communication between Father and Child during those electronic exchanges. At some
1. Pursuant to Loc.R. 6(A), we sua sponte removed this appeal from the accelerated calendar.
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point Father moved to Pennsylvania. Father remained in Pennsylvania for at least a year
before moving back to Clinton County.
{¶5} At some point in 2017 Mother became uncomfortable with allowing Father to
see Child unless supervised because Wife told Mother that Father had engaged in
inappropriate conduct with Child, including Father taking showers naked with Child and
Father watching "daddy/daughter porn."2
{¶6} Mother married Stepfather in June 2018. A little over a year later, in August
2019, Stepfather filed a stepparent adoption petition in the probate court. Stepfather
alleged that Father's consent was not required because Father had not seen Child in more
than one year. On June 24, 2020, the probate court held a hearing to determine whether
Father's consent was necessary for the adoption. The probate court subsequently issued
an entry deciding that Father's consent to Stepfather's adoption of Child was not necessary
under R.C. 3107.07(A) because Father had only de minimis contact with Child in the year
prior to the filing of the adoption.3 Father now appeals.
{¶7} We pause to note that after the filing of the adoption petition Father filed an
action in the Clinton County Court of Common Pleas, Juvenile Division, seeking parenting
time. That action is currently pending in the juvenile court but is not proceeding pending
the conclusion of the adoption case. Father did not seek any legal remedies—such as
seeking parenting time—prior to the filing of the adoption petition.
B. Testimony and Arguments Not Addressed in the Probate Court's Entry
2. The record is unclear whether Wife's reference to "daddy/daughter porn" was a reference to a type of
pornography, a reference to Father and Child watching pornography together, or something else.
3. The court's Entry deciding that Father's consent was not necessary under Section 3107.07(A) was not the
final step of the adoption process, but it was a final appealable order nonetheless. In re Adoption of Greer, 70
Ohio St. 3d 293, 298 (1994) ("We thus hold that 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"); see also In re
Adoption of C.A.L., 12th Dist. Clermont No. CA2015-01-010, 2015-Ohio-2014, ¶ 12 ("The Ohio Supreme Court
has expressly held that a trial court's finding that consent is not required pursuant to R.C. 3107.07 is a final
appealable order").
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{¶8} The probate court's entry did not address or discuss any of the following
testimony that was offered at the June 24, 2020 hearing.
{¶9} Mother admitted that in 2017 she quit allowing Child to visit Father or Father's
family because of her concerns about Father's inappropriate behavior as described to her
by Wife. Mother admitted that when she was asked if Father and his family could see Child,
"I told them no." Mother admitted that she took these actions because she believed
"everything [Wife] said" about Father's alleged inappropriate behavior. She also testified
that she had concerns that child was saying things about "touching boobies" and talking
about kissing on the mouth, which she attributed to Father's influence. Mother testified that
her decision to quit allowing Child to see Father was for Child's "better safety," but she never
brought her concerns to law enforcement. Mother also admitted that she blocked Father
and thirty of his family members on Facebook and set her Facebook profile to "private."
{¶10} Mother testified that she confronted Father regarding her concerns about his
behavior in 2017, and that after that point Father never again requested to see Child.
{¶11} Father offered a different version of what happened. Father testified that he
attempted to reach out to Mother about Child on multiple occasions after 2017. Father
testified that he created several new Facebook accounts under his name and used those
accounts to contact Mother through Facebook Messenger. Father testified that Mother
would respond by stating that Father could not see Child, and that Mother blocked each
new Facebook account he created. Father testified that he made attempts to contact
Mother on seven different occasions between August 2018 and August 2019, and he
testified that he had reached out to Mother on other occasions as well. Father's aunt
testified that she personally observed Father attempt to contact Mother. Mother denied
receiving Facebook messages from Father and denied that Father made any other efforts
to contact her, but Stepfather, who had access to Mother's Facebook account, admitted at
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least some of the Facebook messages were received.
{¶12} Mother and Father also characterized Father's move to Pennsylvania
differently. While Mother testified that Father moved to Pennsylvania and never contacted
Child again, Father testified that he moved to Pennsylvania when his mother, who resided
in Pennsylvania, entered a coma, and that he drove back and forth between Sacramento,
Pennsylvania, and Wilmington, Ohio in order to attempt to see Child on multiple occasions.
Father testified further that on one of these trips, right before Christmas 2018, he bought
toys, clothes, stickers, and coloring books for Child, but that Mother refused to allow him to
see Child and refused to pick up the presents. Mother denied that Father contacted her at
that time. Father testified to other attempts to give gifts to Child, which Mother also denied.
When asked if she would have allowed Father to see Child if he had contacted her, Mother
responded, "It just depends. I mean it was some pretty nasty things that happened so – I
don't know."
{¶13} Father testified that he did not have Mother's phone number or address, and
only knew that at some point Mother moved to New Vienna, Ohio. Mother denied ever
receiving any messages from Father and noted that she had the same phone number for
the past five years.
{¶14} In their posthearing briefs, the parties discussed this and other testimony
extensively. Father argued that Mother's denials that he attempted to contact her damaged
her credibility as a witness, that Mother actively prevented him from seeing or
communicating with Child, and that Mother failed to inform him how he could contact her or
Child. Father argued that Mother's actions justified his minimal contacts with Child.
Stepfather argued that Father failed to make efforts to see Child, that Father moved to
Pennsylvania, that even if Father wanted to see Child, he took no legal action until after the
adoption petition was filed, and that Mother was legitimately concerned about Father's
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behavior. Stepfather argued that Father's failure to see Child since 2017 was not justified.
The probate court's entry did not address these arguments.
II. Law and Analysis
{¶15} Father raises a single assignment of error for review:
{¶16} THE TRIAL COURT ERRED IN FINDING FATHER'S CONSENT WAS NOT
NECESSARY FOR THE ADOPTION OF HIS DAUGHTER.
{¶17} In his sole assignment of error, Father argues the probate court erred by
finding Father's consent to adoption was unnecessary as provided in R.C. 3107.07(A).
{¶18} The right of natural parents to the care and custody of their child is one of the
most precious and fundamental in law. In re Adoption of C.M.F., 12th Dist. Butler Nos.
CA2013-06-090 and CA2013-06-091, 2013-Ohio-4719, ¶ 8. An adoption permanently
terminates the parental rights of a natural parent. In re L.C.W., 12th Dist. Butler No.
CA2014-08-169, 2015-Ohio-61, ¶ 10. Because adoption terminates parental rights, Ohio
law requires parental consent to an adoption unless a specific statutory exception exists.
In re Adoption of C.E.S., 12th Dist. Butler Nos. CA2020-07-069, CA2020-07-070, and
CA2020-07-071, 2020-Ohio-6902, ¶ 19. "[A]ny exception to the requirement of parental
consent to adoption must be strictly construed so as to protect the right of natural parents
to raise and nurture their children." In re B.N.S., 12th Dist. Butler Nos. CA2020-03-034 thru
CA2020-03-036, 2020-Ohio-4413, ¶ 27, citing In re Adoption of B.I., 157 Ohio St. 3d 29,
2019-Ohio-2450, ¶ 12.
{¶19} This appeal concerns the exception to the general parental consent
requirement found in R.C. 3107.07(A). That statute provides that consent to an adoption is
not required by:
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
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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.
{¶20} We have repeatedly held that in order to find the R.C. 3107.07(A) exception
applicable the probate court must engage in a two-step analysis. In re J.F.M., 12th Dist.
Butler No. CA2016-03-044, 2016-Ohio-4823, ¶ 11. First, the probate court must determine
whether the parent failed to engage in more than de minimis contact with the minor or failed
to provide for the maintenance and support to the minor. Id. Second, the probate court
must determine whether the parent had "justifiable cause" for the failure to contact the minor
or provide support for the minor. Id. The first step of the analysis is written in the alternative
in the statute; as a result, the probate court need only find either a lack of contact with the
minor or a failure to provide maintenance and support to the minor within the relevant time
period. In re Adoption of C.H.B., 3d Dist. Crawford No. 3-19-18, 2020-Ohio-979, ¶ 19; see
also In re Adoption of G.T.R., 12th Dist. Clermont No. CA2007-03-039, 2007-Ohio-3719, ¶
22.
{¶21} "The petitioner bears the burden of proving each element by clear and
convincing evidence. After the petitioner has established the parent's lack of contact or
support, the parent bears the burden of going forward with evidence to show a facially
justifiable cause for the failure, although, the burden of proof remains on the petitioner." In
re Adoption of O.J.B., 12th Dist. Warren No. CA2020-01-004, 2020-Ohio-4184, ¶ 10
(citations omitted); In re Adoption of J.F.M., 12th Dist. Butler No. CA2016-03-044, 2016-
Ohio-4823, ¶ 11.
{¶22} The provisions of R.C. 3107.07(A) pertaining to "maintenance and support"
are not at issue in this appeal. Instead, the probate court's entry and Father's appeal only
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concern the "de minimis contact" provision. We therefore only address R.C. 3107.07(A)'s
provision regarding de minimis contact. "Even if a parent has completely failed to
communicate with his child during the one-year statutory period, his consent will still be
required if there is justifiable cause for the failure." In re M.G.B.-E., 12th Dist. Clinton No.
CA2018-10-016, 2019-Ohio-753, ¶ 12.
{¶23} "An appellate court applies two different standards of review to the probate
court's decision on parental consent." In re Adoption of O.J.B. at ¶ 11. First, an appellate
court applies an abuse of discretion standard of review as it relates to the probate court's
decision as to whether a parent's contact with his or her child, met the statutory standard.
Id. An abuse of discretion is more than an error of law or judgment, it is a decision that is
unreasonable, arbitrary, or unconscionable. In re Adoption of A.L.S., 12th Dist. Butler No.
CA2017-09-146, 2018-Ohio-507, ¶ 16.
{¶24} Father does not challenge the probate court's conclusion that his contacts
with Child in the year before the adoption petition was filed were de minimis. In fact, Father
concedes that "he has not been afforded much more than de minimis contact with [Child] in
the year preceding the adoption petition." Because Father concedes that his contact with
Child was de minimis, we move to the second step of the R.C. 3107.07(A) analysis.
{¶25} Second, an appellate court applies a manifest weight of the evidence standard
when reviewing the probate court's determination of whether the parent's de minimis
contacts were with "justifiable cause" under R.C. 3107.07(A). In re Adoption of O.J.B. at ¶
12. On a manifest weight of the evidence review, this court examines the entire record,
weighs the evidence and all reasonable inferences, considers witness credibility, and
determines whether, in resolving conflicts in the evidence, the trier of fact 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 L.C.W., 12th Dist. Butler No. CA2014-08-169, 2015-
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Ohio-61 at ¶ 14.
{¶26} However, we are unable to determine whether the probate court clearly lost
its way with regard to the second step of the R.C. 3107.07(A) analysis because the probate
court did not discuss at all this step of the analysis or the testimony regarding Mother's
alleged actions to block Father's contact with Child. The probate court's entire analysis
under R.C. 3107.07(A) is as follows:
In the instant case, the issue of consent turns on whether
[Father] had more than a de minimis contact or was justified in
not having contact in the year prior to the filing the adoption on
August 27, 2019.
This Court has considered all evidence of the actions that the
biological father may have done to see his child. The Court has
also considered any court actions father may have filed herein.
Further, this Court decides that the biological father had very
little communication or contact with the child, and any such said
communication or contact is deemed by this Court to be de
minimis.
Therefore, the Court find the biological father's consent is not
necessary and directs the Clerk to set the final hearing for best
interest.
{¶27} Thus, while the probate court appropriately found that Father had de minimis
contact with Child, the court did not address at all the second element, whether the de
minimis contact was "without justifiable cause." The probate court simply found that
Father's contacts with Child were de minimis and, on that basis alone, found that Father's
consent to the adoption was unnecessary under R.C. 3107.07(A). But the statute's plain
text explicitly requires that a probate court, in order to find that parental consent is not
necessary, must find "by clear and convincing evidence" that the parent's de minimis
contact with the minor was "without justifiable cause." R.C. 3107.07(A). There is no
indication in the entry that the probate court made such a finding by clear and convincing
evidence, or even considered the issue of "justifiable cause." The entry did not even
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discuss the conflicting testimony described above regarding whether Father made efforts
to contact Child and whether Mother blocked those efforts.
{¶28} When confronted with a similar failure to consider "justifiable cause" in the
past we have not simply assumed that the probate court implicitly found a lack of justifiable
cause. We have instead reversed and remanded for the probate court to analyze justifiable
cause explicitly. This was the case in In re M.B.G.-E., 12th Dist. Clinton, CA2018-10-016,
2019-Ohio-753. In that adoption case, the probate court found that the biological father's
consent to an adoption was unnecessary because he had no contact or de minimis contact
with the child, but, as here, the court's decision neither mentioned nor addressed the issue
of justifiable cause. Id. at ¶¶ 21-22. We noted that "[n]othing in the probate court's decision
gives any indication that the probate court considered the issue of whether Mother had
interfered or impeded Father's attempts to communicate with the children." Id. at ¶ 22. As
a result, we held that "the trial court erred in failing * * * to issue a decision that reflects
consideration of the issue of justifiable cause for Father's failure to communicate." Id. at ¶
24. We reversed and remanded for the probate court to consider the evidence regarding
justifiable cause. Id. We must do the same here.
{¶29} Exceptions to the parental consent requirement must be "strictly construed so
as to protect the right of natural parents to raise and nurture their children." In re B.N.S.,
2020-Ohio-4413 at ¶ 27. Therefore, a trial court may not simply ignore the statutory
language regarding justifiable cause. Because the probate court's decision only addressed
the first step of the analysis and not the second step considering "justifiable cause," we find
merit to Father's sole assignment of error. As a result, we find the probate court erred in
failing to issue a decision that reflects consideration of the issue of justifiable cause for
Father's failure to communicate. Accordingly, Father's sole assignment of error is sustained
to the extent the necessary finding was not made. We leave it to the probate court to
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determine if Father's de minimis contacts with Child were justified or not, and we have
reached no conclusion on that issue.
{¶30} Judgment reversed and remanded for further proceedings regarding whether
there was justifiable cause for Father's de minimis contact with Child in the relevant time
period.
M. POWELL, P.J., and S. POWELL, J., concur.
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