In RE ADOPTION OF M.G.B.-E. Et Al.

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as In
re Adoption of M.G.B.-E., Slip Opinion No. 2018-Ohio-1787.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2018-OHIO-1787
IN RE ADOPTION OF M.G.B.-E. ET AL.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as In re Adoption of M.G.B.-E., Slip Opinion No.
2018-Ohio-1787.]
Adoption—R.C. 3107.07(A)—A probate court must consider the existence of
pending parenting matters when determining whether an exception to the
requirement of parental consent to adoption applies.
(No. 2017-0039—Submitted November 21, 2017—Decided May 9, 2018.)
APPEAL from the Court of Appeals for Clinton County, No. CA2016-06-017,
2016-Ohio-7912.
_____________________
FRENCH, J.
{¶ 1} This appeal addresses a probate court’s authority to proceed on an
adoption petition—specifically, to determine whether parental consent is required
for the adoption—when preexisting matters concerning the parenting of the child
are pending in another court. Appellant, D.H. (“Father”), asks this court to hold
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broadly that a probate court “may not proceed with an adoption petition if any
pending parenting matter is proceeding in another court.” We reject Father’s
proposition of law, but we hold more narrowly that a probate court must consider
the existence of pending parenting matters when determining whether an exception
to the requirement of parental consent to adoption applies.
Facts and procedural background
{¶ 2} The legal issues raised in this appeal are relatively straightforward.
But the factual record—replete with contradictory testimony, allegations of abuse
from both sides, regular failures to comply with court orders, and a 13-year history
of animosity between two parents—complicates our analysis.
The adoption petitions and consent requirements
{¶ 3} Appellee, D.E. (“Stepfather”), filed petitions in the Clinton County
Probate Court to adopt M.G.B.-E. and R.S.B.-E., the minor children of his wife,
V.B.-E. (“Mother”), and Father, her ex-husband. Under R.C. 3107.06, a petition to
adopt a minor who was born to married parents may not be granted without the
written consent of both the mother and the father of the minor, unless an exception
set forth in R.C. 3107.07 applies. Stepfather’s adoption petitions state that Father’s
consent is not required because Father failed without justifiable cause to provide
more than de minimis contact with the children for at least a year immediately
preceding the filing of the adoption petitions. See R.C. 3107.07(A) (“Consent to
an 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 * * * for a period of at least
one year immediately preceding * * * the filing of the adoption petition”). Father
objected to the adoption petitions and disputed the applicability of the R.C.
3107.07(A) exception to the R.C. 3107.06 parental-consent requirement.
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{¶ 4} The probate court held a hearing on the necessity of Father’s consent.
Witnesses included Mother; Father; Stepfather; Father’s current wife, S.H.
(“Stepmother”); and Father and Stepmother’s babysitter. Much of the evidence
concerned Mother and Father’s acrimonious relationship, dating from before their
2004 divorce.
The divorce decree and subsequent parenting litigation
{¶ 5} Father and Mother were married for about five years and, during that
marriage, had two children—a son, R.S.B.-E., and a daughter, M.G.B.-E. In the
course of their divorce proceedings, Mother accused Father and his brothers of
sexually abusing the children. A November 2004 final divorce decree granted
Mother custody of the children and granted Father parenting time. The decree
incorporated the parties’ agreement that the children were not to be left
unsupervised with a particular paternal uncle.
{¶ 6} Mother impeded Father’s parenting time from the outset. Between
October 2004 and April 2006, as evidenced by more than 25 police reports filed by
Father, Mother regularly refused to deliver one or both of the children to Father for
parenting time in accordance with the final decree. In May 2005, Father moved for
temporary and permanent custody of the children, alleging that Mother had
repeatedly denied him parenting time and that Mother and the children’s maternal
grandfather were physically and mentally abusing the children. In 2005 and 2006,
Father filed at least five motions to hold Mother in contempt.
{¶ 7} Subsequent to the divorce decree, Mother made additional allegations
of sexual abuse of the children by Father to Highland County Children Services,
Montgomery County Children Services, and the Warren County Sheriff’s Office.
A letter dated June 17, 2005, from Montgomery County Children Services reports
no indication of “anything improper, neglectful or abusive [having] occurred during
visits with paternal family members.”
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{¶ 8} In June 2006, Mother unilaterally cut off parenting time between
Father and the children after the children returned from parenting time with Father
with, according to Mother, physical evidence of and verbal statements by M.G.B.-
E. regarding sexual abuse. Mother took M.G.B.-E. to her pediatrician and to
Cincinnati Children’s Hospital with complaints of vaginal and anal bleeding and
allegations of abuse. An examination revealed no physical signs of abuse. Mother
also contacted the Warren County Sheriff’s Office. Both children reported sexual
abuse to Warren County detectives.
{¶ 9} Based on her June 2006 allegations, Mother obtained an ex parte civil
protection order from the Highland County Common Pleas Court in September
2006 that prohibited Father from having contact with Mother or the children.
Father denied Mother’s allegations and again moved for temporary custody of the
children in November 2006. Mother and Father agreed to dismiss the protection
order in March 2007.
{¶ 10} Also in March 2007, a domestic-relations magistrate held a hearing
on the parties’ motions that had been filed between March 2005 and November
2006. The parties agreed that the magistrate would address only Father’s most
recent motion for contempt (regarding parenting time during the summer of 2006),
Mother’s motion to restrict Father’s parenting time to supervised visits, and
Father’s motion for in camera interviews of the children. The parties agreed to
dismiss all other pending motions.
{¶ 11} Before the domestic-relations court issued a decision on the pending
motions, Mother successfully applied to the Highland County Probate Court to have
the children’s last names changed from Father’s last name to her maiden name.
Despite the parties’ continuing litigation in the domestic-relations court, Mother’s
applications stated that Father’s address was unknown and was not ascertainable
with reasonable diligence. Father was not personally served with the applications,
and he claims that he received no notice of the applications whatsoever.
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{¶ 12} In September 2007, the domestic-relations court ruled on the
motions argued at the March 2007 hearing. As part of her consideration, the
magistrate interviewed both children and reviewed a guardian-ad-litem report,
psychological evaluations and the Highland County Children Services’ file
regarding the allegations of sexual abuse. The court denied Father’s motion for
contempt. Although the magistrate noted that the allegations were unsubstantiated,
she found that Mother reasonably denied Father parenting time pending the
investigation of those allegations. With respect to Mother’s motion to restrict
Father’s parenting time, the court ordered that Father’s “parenting time shall be
limited pending therapy” with one of three named therapists or a mutually agreed-
upon therapist “for the parents and children to help the children to transition to
spending time with” Father. The court expected that “within 6 months the children
should have transitioned into parenting alone with” Father.
{¶ 13} The parties had not commenced counseling by the time the court
held a review hearing in April 2008, but the parties agreed to contact a therapist
and schedule counseling. In September 2008, however, the court dismissed the
matter for want of prosecution. Father admits that arranging counseling “fell
through the cracks.”
2008-2014: Father’s absence
{¶ 14} For at least six years after September 2008, when the domestic-
relations court dismissed the parenting matter for lack of prosecution, the children
did not receive any voicemail, telephone call, text message, e-mail, card, letter or
gift from Father. Father testified that from 2010 until at least August 2014, he had
no way of contacting the children because he did not know where they were living
and because he did not have a working telephone number for Mother. Mother
changed addresses and telephone numbers multiple times without informing the
domestic-relations court or Father, as required by the final divorce decree. Father
did see R.S.B.-E. once during that period, at a church picnic in July 2010, but he
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claims that he was unable to speak with R.S.B.-E., because Mother “haul[ed]
[R.S.B.-E.] away in the other direction.”
2014-2015: Father learns of the children’s whereabouts and attempts to see them
{¶ 15} In August 2014, Father learned that the children were attending
Wilmington High School after Stepmother saw the children at a football game.
Father and Stepmother’s babysitter, who was a cheerleader for the opposing team,
spoke to R.S.B.-E. and learned that he would be wrestling for Wilmington High
School that winter. Father, Stepmother, their children, and the babysitter
subsequently attended a wrestling match in which R.S.B.-E. was participating.
There, the babysitter learned that R.S.B.-E. would be running track in the spring.
The babysitter did not mention Father in her conversations with R.S.B.-E. Father
did not make personal contact with R.S.B.-E. at the wrestling match.
{¶ 16} In April 2015, Father, Stepmother, their children, and the babysitter
attended one of R.S.B.-E.’s track meets. When Mother noticed Father, she
contacted the Wilmington police department. She wanted the police to ask Father
to leave; she believed that keeping R.S.B.-E. safe required him having no contact
with Father. The police officer, however, simply asked Father to avoid contact with
Mother or R.S.B.-E. Father and Stepmother attended another track meet two days
later, but they testified that Stepfather immediately removed R.S.B.-E. from the
track after his race to avoid any contact between Father and R.S.B.-E. Father
attended two additional track meets in May 2015, but R.S.B.-E. was not present.
On one of those occasions, Mother, Stepfather, and Mother’s father were present
despite R.S.B.-E.’s absence. Stepmother claims that Stepfather and Mother’s father
followed her vehicle when she left the meet. Stepfather denies that claim but admits
that he was “parked down the street just keeping my eyes on things and just
observing.”
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Father’s motion to reestablish parenting time
{¶ 17} On May 14, 2015, Father filed a motion in the domestic-relations
court to reestablish parenting time. The same day, Father, Stepmother, and their
children, along with a process server, attended a track meet to see R.S.B.-E. and to
serve Mother with Father’s motion. After finding that neither R.S.B.-E. nor Mother
was at the track meet, the family accompanied the process server to Mother’s house
and parked about two blocks away. The process server approached the house to
serve the motion. Stepfather, who was observing from across the street, called 9-
1-1 and reported a group of people, including Father, approaching the house.
Stepfather also called R.S.B.-E., who was inside the house at the time, and told him
to run out the back door, where Stepfather picked him up and drove to a nearby
parking lot.
{¶ 18} After stopping Father and the process server and learning of their
purpose, the police directed the process server to Stepfather’s location, and the
process server delivered Father’s motion to reestablish parenting time. Stepfather
filed his adoption petitions in the probate court four days later.
Concurrent proceedings in the probate and domestic-relations courts
{¶ 19} The probate court held that pursuant to R.C. 3107.07(A), Father’s
consent to Stepfather’s adopting the children was not required because Father failed
without justifiable cause to provide more than de minimis contact with them for at
least one year prior to the filing of the adoption petition. The court “put a lot of
weight [o]n the fact that the father ‘dropped the ball’ ” following the September
2007 domestic-relations court order “and did not provide or pay for or pursue
counseling” to reinstate visitation. Clinton C.P., Probate Div., Nos. 20155012 and
20155013 (May 19, 2016). The probate court’s decision did not mention Father’s
pending motion to reestablish parenting time or the proceedings in domestic-
relations court that preceded the probate court’s hearing.
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{¶ 20} While Stepfather’s adoption petitions were pending in the probate
court, the domestic-relations court held hearings on Father’s motion to reestablish
parenting time and issued orders granting Father limited parenting time.
Proceedings in the domestic-relations court remain ongoing.
{¶ 21} The Twelfth District Court of Appeals affirmed the probate court’s
decision that Father’s consent was not required and held that the probate court had
jurisdiction to proceed on the adoption petitions despite the pending parenting
matter in the domestic-relations court. 2016-Ohio-7912, ¶ 49, 69. Father appeals
that judgment.
Analysis
{¶ 22} Probate courts have original, exclusive jurisdiction “ ‘to hear and
determine an adoption proceeding relating to a minor child notwithstanding the fact
that the custody of such child is at the time within the continuing jurisdiction of a
divorce court.’ ” In re Adoption of Pushcar, 110 Ohio St. 3d 332, 2006-Ohio-4572,
853 N.E.2d 647, ¶ 9, quoting In re Adoption of Biddle, 168 Ohio St. 209, 152
N.E.2d 105 (1958), paragraph two of the syllabus. Father, however, asserts that
“[t]he probate court may not proceed with an adoption petition if any pending
parenting matter is proceeding in another court.” See 150 Ohio St. 3d 1407, 2017-
Ohio-6964, 78 N.E.3d 908. We reject Father’s broad proposition of law.
{¶ 23} Father makes three arguments in support of reversal. First, he urges
us to construe our precedent, and particularly the line of cases stemming from
Pushcar, in favor of the natural parent and to hold that any parenting proceeding
pending in a court with continuing jurisdiction over a child precludes a probate
court from exercising jurisdiction over an adoption petition concerning that child.
Second, he urges us to apply the jurisdictional-priority rule to preclude the probate
court’s exercise of jurisdiction. Lastly, he urges us to recognize a necessity for
determining pending parenting matters before an adoption petition may be granted.
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{¶ 24} We address Father’s arguments out of order, beginning with his
argument regarding the jurisdictional-priority rule.
Jurisdictional-priority rule
{¶ 25} “As between courts of concurrent jurisdiction, the tribunal whose
power is first invoked by the institution of proper proceedings acquires jurisdiction,
to the exclusion of all other tribunals, to adjudicate upon the whole issue and to
settle the rights of the parties.” State ex rel. Phillips v. Polcar, 50 Ohio St. 2d 279,
364 N.E.2d 33 (1977), syllabus. The jurisdictional-priority rule applies when cases
in multiple courts of concurrent jurisdiction involve the same parties and when
either the causes of action are the same or the cases present part of the same whole
issue. State ex rel. Otten v. Henderson, 129 Ohio St. 3d 453, 2011-Ohio-4082, 953
N.E.2d 809, ¶ 24, 29.
{¶ 26} Father argues, based on Otten, that the jurisdictional-priority rule
precludes the probate court from proceeding with Stepfather’s adoption petitions
because Father first invoked the domestic-relations court’s jurisdiction with his
motion to reestablish parenting time. But Otten does not support Father’s
argument. Otten involved competing adoption petitions, filed by the same
petitioner and relating to the same child, in the probate courts of different counties.
The petitions involved the same parties and precisely the same issue—whether the
consent of the child’s natural father was required for the adoption. Id. at ¶ 28-29.
This court held that the court whose jurisdiction the petitioner first invoked had
exclusive jurisdiction to determine the adoption petition. Id. at ¶ 36.
{¶ 27} The jurisdictional-priority rule does not apply here. First, unlike the
probate courts in Otten, the probate court and the domestic-relations court in this
case are not courts of concurrent jurisdiction. The probate court has exclusive
jurisdiction over the adoption petitions, Pushcar, 110 Ohio St. 3d 332, 2006-Ohio-
4572, 853 N.E.2d 647, at ¶ 9, and the domestic-relations court has exclusive
jurisdiction over Father’s application to reestablish parenting time, see Broadnax v.
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Bowling, 1st Dist. Hamilton No. C-030502, 2004-Ohio-1114, ¶ 15-16. Application
of the jurisdictional-priority rule would purport to give the domestic-relations
court—the court whose jurisdiction was first invoked—the opportunity to
adjudicate “the whole issue and to settle the rights of the parties,” Phillips at
syllabus, but the domestic-relations court lacks subject-matter jurisdiction to
adjudicate adoption petitions. Second, the two proceedings here do not involve the
same parties. Finally, they do not involve the same cause of action or present part
of the same whole issue. The jurisdictional-priority rule, therefore, does not
preclude the probate court from proceeding on Stepfather’s adoption petitions.
{¶ 28} We now turn to Father’s remaining arguments, which rely in large
part on Pushcar.
Pushcar
{¶ 29} Pushcar reached this court on appeal from an appellate court’s
reversal of a probate court’s determination that a stepparent adoption could proceed
without consent from the child’s legal father. The legal father, who lived with but
was not married to the child’s mother at the time of the birth, had signed the child’s
birth certificate. Pushcar at ¶ 1. The legal father moved the juvenile court to
enforce the unwed parents’ agreement regarding visitation and support, but the
juvenile-court rules required genetic testing to establish paternity before the court
could rule on the motion. Id. at ¶ 2-4. While the legal father’s motion was pending
in the juvenile court, the mother married and her new husband filed a petition in the
probate court to adopt the child. Id. at ¶ 4-5.
{¶ 30} The probate court in Puschcar held that pursuant to R.C.
3107.07(A), the legal father’s consent was not required for the adoption because he
had not provided for or communicated with the child for at least a year. 110 Ohio
St.3d 332, 2006-Ohio-4572, 853 N.E.2d 647, at ¶ 5-6. The Eleventh District
reversed and held that the probate court should have refrained from exercising its
jurisdiction over the adoption proceeding until the juvenile court had adjudicated
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the parenting matter. Id. at ¶ 7. It also held that the probate court could not make
the necessary determination regarding the need for the legal father’s consent under
R.C. 3107.07(A) until there had been a judicial determination of paternity. Id. This
court affirmed the Eleventh District’s judgment. Id. at ¶ 14.
{¶ 31} We explained in Pushcar that courts must strictly construe any
exception to the parental-consent requirement in favor of the nonconsenting parent
and that the petitioner in an adoption proceeding bears the burden of proving by
clear and convincing evidence the satisfaction of an exception to the general
requirement that an adoption may not proceed without parental consent. Id. at
¶ 11, 13. The petitioner in Pushcar could not meet his burden of proving
satisfaction of the R.C. 3107.07(A) exception to the parental-consent requirement
unless and until there had been a judicial ascertainment of paternity—which was
the very issue that remained pending in the juvenile court. Id. at ¶ 14. Separately,
we held in Pushcar, “When an issue concerning parenting of a minor is pending in
the juvenile court, a probate court must refrain from proceeding with the adoption
of that child.” Id. at syllabus.
{¶ 32} Father makes two arguments based on Pushcar and on some of our
more recent cases that discuss it. First, he argues that the Pushcar syllabus requires
a probate court to refrain from proceeding with an adoption when any “issue
concerning parenting” is pending in another court. Second, he argues that like the
determination of paternity in Pushcar, the determination of his right to parenting
time is a necessary antecedent to the probate court’s determination of Stepfather’s
adoption petitions.
Application of Pushcar
{¶ 33} The broad language in Pushcar’s syllabus—“When an issue
concerning parenting of a minor is pending in the juvenile court, a probate court
must refrain from proceeding with the adoption of that child,” 110 Ohio St. 3d 332,
2006-Ohio-4572, 853 N.E.2d 647—seems to support Father’s first argument. And
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in two cases decided in 2010, this court stated, “It is clear that we did not intend
our holding or analysis [in Pushcar] to be restricted to parenting issues implicated
by R.C. 3107.07(A). Rather, our use of general language shows that we intended
the holding to apply to all parenting issues pending in a juvenile court.” In re
Adoption of P.A.C., 126 Ohio St. 3d 236, 2010-Ohio-3351, 933 N.E.2d 236, ¶ 8; In
re Adoption of G.V., 126 Ohio St. 3d 249, 2010-Ohio-3349, 933 N.E.2d 245, ¶ 8.
Like Pushcar, both of those cases involved questions of paternity pending in
juvenile court. P.A.C. at ¶ 2-3; G.V. at ¶ 2-3.
{¶ 34} Since P.A.C. and G.V., however, this court has retreated from this
broad reading of Pushcar. We have stated that the context of Pushcar “manifestly
indicates that the court intended ‘parentage,’ ” not “parenting,” in its syllabus. In
re G.T.B., 128 Ohio St. 3d 502, 2011-Ohio-1789, 947 N.E.2d 166, ¶ 10, fn. 2; see
also State ex rel. Allen Cty. Children Servs. Bd. v. Mercer Cty. Court of Common
Pleas, Probate Div., 150 Ohio St. 3d 230, 2016-Ohio-7382, 81 N.E.3d 380, ¶ 38
(“Pushcar required the probate court to refrain from proceeding while there was a
question of parentage—i.e., paternity—pending in the juvenile court” [emphasis
sic]), citing G.T.B. at ¶ 10 and fn. 2. “Parentage,” which refers to “[t]he quality,
state or condition of being a parent,” Black’s Law Dictionary 1288 (10th Ed.2014),
is a more limited term than “parenting.” Father asks this court to “pull back” from
its statement in G.T.B., later cited in Allen Cty., and to hold that any pending
“parenting” matter in another court requires a probate court to refrain from
proceeding on an adoption petition. We decline to do so.
{¶ 35} The cases in which we have held that a probate court must refrain
from proceeding on an adoption petition have involved the issue of paternity, which
affected the probate court’s ability to rule on the concurrent adoption petitions. See
Pushcar; P.A.C.; G.V. But when a parenting issue pending in a juvenile or
domestic-relations court does not affect a probate court’s ability to determine the
statutory prerequisites for adoption, we have not required the probate court to
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refrain from exercising its exclusive jurisdiction over adoption proceedings. That
was the case in Allen Cty., which involved a jurisdictional conflict between a
juvenile court that retained continuing jurisdiction over a dependent and abused
child and a probate court that was considering a petition by the child’s foster parents
to adopt that child, with the mother’s consent. This court held that the probate court
had jurisdiction to consider the adoption petition despite the ongoing juvenile-court
proceedings regarding permanent custody. Id. at ¶ 41. We noted that the statute
governing the juvenile court’s jurisdiction implicitly recognized the probate court’s
jurisdiction to conduct adoption proceedings while custody proceedings were
pending in the juvenile court. Id. at ¶ 34.
{¶ 36} We also stated in Allen Cty. that our holding in that case was
consistent with our decision in Pushcar. Allen Cty. at ¶ 37. The factor that
distinguished Pushcar from Allen Cty. was the Pushcar probate court’s inability to
rule on the adoption petition without a decision on the factual question of paternity
that was pending in the juvenile court. We explained that “the point in Pushcar
was that pursuant to the adoption statutes, the probate court could not proceed with
the adoption without the consent of the putative father, and only the juvenile court
could decide the question of the child’s paternity.” Allen Cty. at ¶ 37. We read
Pushcar as requiring the probate court to refrain from acting until the juvenile court
had determined the child’s paternity, because until that had occurred, the probate
court could not determine whether the father’s consent was required. Allen Cty. at
¶ 37. There is no similar impediment to the probate court’s exercise of jurisdiction
here; the probate court is able to determine, without any finding by the domestic-
relations court, whether Father failed without justifiable cause to have more than
de minimis contact with the children for at least a year prior to the filing of the
adoption petitions, so as to render Father’s consent to the adoptions unnecessary.
For these reasons, we reject Father’s proposition of law.
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{¶ 37} But that does not end our inquiry. We must still consider what
impact, if any, Father’s motion to reestablish parenting time and the parties’
proceedings on that motion in the domestic-relations court should have on the
probate court’s proceedings and its analysis of whether Father’s consent to the
adoptions is required under R.C. 3107.07(A).
Probate court must consider pending parenting proceedings
{¶ 38} Under R.C. 3107.07(A), Father’s consent to the adoptions of his
children is not required if the probate court finds by clear and convincing evidence
that he “has failed without justifiable cause to provide more than de minimis contact
with” his children for at least one year immediately preceding the filing of the
adoption petitions. Stepfather—the petitioner who asserts that Father’s consent is
not required—has the burden of proving the applicability of R.C. 3107.07(A) by
clear and convincing evidence. In re Adoption of Holcomb, 18 Ohio St. 3d 361, 481
N.E.2d 613 (1985), paragraph four of the syllabus.
{¶ 39} Even if a parent has completely failed to communicate with his
children during the statutory period, his consent to adoption will still be required if
there exists justifiable cause for the failure. Id. at 367. The burden of proving a
lack of justifiable cause remains on the petitioner in the adoption proceeding. Id.
at 368 (“No burden is to be placed upon the non-consenting parent to prove that his
failure to communicate was justifiable”). Typically, a noncustodial parent has
justifiable cause for failing to communicate when the custodial parent significantly
interferes with or significantly discourages communication. Id. at 367-368.
{¶ 40} The probate court must strictly construe R.C. 3107.07(A) in favor of
Father to protect his rights as a natural parent. In re Adoption of Schoeppner, 46
Ohio St. 2d 21, 24, 345 N.E.2d 608 (1976). And strictly construing R.C. 3107.07(A)
in favor of Father requires the probate court to take into account Father’s efforts to
reestablish parental rights and responsibilities through the domestic-relations court
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during the year preceding the filing of the adoption petitions, as well as Mother’s
efforts to impede Father’s contact with the children.
{¶ 41} In an earlier case with similar facts, the Twelfth District held that a
parent’s filing of a motion for parenting time under a domestic-relations court’s
continuing jurisdiction precluded the application of R.C. 3107.07(A). In re
Adoption of A.J.B, 12th Dist. Butler No. 2008-12-306, 2009-Ohio-2200, ¶ 27. The
court stated:
It would be a gross miscarriage of justice to allow [the stepfather],
with knowledge of the father’s pending petition [for parenting time],
to seek adoption without consent and extinguish the biological
father’s parental rights by virtue of [the stepfather’s] five-day-old
marriage [to the child’s mother]. Further, despite the fact that she
has raised A.J.B. alone, it would be equally impermissible to allow
the mother to receive notice of the biological father’s intent to
assume parental responsibility and preemptively terminate his
parental rights due to her marriage, when the father in this case is
pursuing his parental responsibilities through the proper procedure.
Id. at ¶ 26.
{¶ 42} Although this case presented the Twelfth District with a nearly
identical scenario, the court reached the opposite conclusion without addressing its
prior holding.
{¶ 43} The probate court did not consider Father’s pending motion to
reestablish parenting time with his children in determining whether Father’s
consent to their adoption was required. In fact, the probate court’s decision does
not even mention Father’s pending motion or the domestic-relations court’s
proceedings on that motion. The Twelfth District acknowledged Father’s efforts to
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reestablish parenting time but stated that resolution of Father’s parenting motion
“has no bearing on whether he failed without justifiable cause to provide more than
de minimis contact with the children in the year immediately preceding the filing
of the adoption petition.” 2016-Ohio-7912, at ¶ 48. But strictly construing R.C.
3107.07(A) in Father’s favor, and remaining cognizant that parents facing the
termination of their parental rights must be afforded every protection the law
allows, In re Hayes, 79 Ohio St. 3d 46, 48, 679 N.E.2d 680 (1997), we conclude
that Father’s efforts to enforce his parental rights, prior to the filing of Stepfather’s
adoption petitions, are relevant.
{¶ 44} Father could undoubtedly have done more to protect and nurture his
relationship with his children. He admits that he did not arrange counseling in
accordance with the September 2007 order of the domestic-relations court. And
although he knew where Mother and the children were living until early 2010, he
made no attempt after 2008 to contact the children or assert his parental rights. But
the record also demonstrates Mother’s history and ongoing pattern of impeding
Father’s opportunities to develop and maintain a relationship with the children,
reaching back to the time of the parents’ divorce. That history includes repeatedly
failing to deliver the children to Father at a court-ordered time and place, moving
multiple times without informing Father or the domestic-relations court of her new
address, changing her telephone number without informing Father or the domestic-
relations court, changing the children’s’ last names without Father’s knowledge,
and calling the police when Father appeared at R.S.B.-E.’s track meet.
{¶ 45} In domestic-relations court, Father and Mother continue to actively
litigate the question of Father’s parenting time. The probate court refused to admit
evidence about the domestic-relations court’s proceedings or orders despite
Father’s proffered testimony and exhibits demonstrating that the domestic-relations
court has granted Father limited visitation with the children. “A court may take
judicial notice of a finding of another court in an unrelated case,” Kirshner v.
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Shinaberry, 64 Ohio App. 3d 536, 582 N.E.2d 22 (6th Dist.1989), and we take
judicial notice of public records made available by the domestic-relations court that
reveal Mother’s ongoing efforts to impede Father’s parenting time. For example,
a magistrate has found Mother in contempt of court for interfering with Father’s
parenting time, and the court has stated that Mother “has actively and intentionally
interfered with the children’s relationship with” Father.
{¶ 46} In its brief discussion of justifiable cause, the probate court “put a
lot of weight [on] the fact that the father ‘dropped the ball’ on the final ‘order’ out
of Montgomery County.” Clinton C.P., Probate Div., Nos. 20155012 and
20155013 (May 19, 2016). But Father’s failure to engage a therapist nearly ten
years ago does not, by itself, determine the question of justifiable cause. After
learning that the children attended school in Wilmington, Father made efforts to
reinsert himself into their lives. Facing resistance from Mother, as he has from the
outset of their divorce, Father appropriately turned to the domestic-relations court
with a motion to reestablish parenting time. That action should be a factor in
determining whether Father’s consent to the adoption of his children is required
under R.C. 3107.07(A).
Conclusion
{¶ 47} When a parent has filed a parenting motion in a juvenile or domestic-
relations court having continuing jurisdiction over a child prior to the filing of a
petition to adopt that child, the probate court must consider the parent’s legal action
as part of its consideration whether the parent failed without justifiable cause to
have more than de minimis contact with the child during the year immediately
preceding the filing of the adoption petition, under R.C. 3107.07(A). Because the
probate court failed to do that here, we reverse the Twelfth District’s judgment and
remand this matter to the Clinton County Probate Court for further consideration,
consistent with this opinion, of whether Father’s consent to Stepfather’s adoption
petitions is required.
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SUPREME COURT OF OHIO
Judgment reversed
and cause remanded.
O’CONNOR, C.J., and KENNEDY, PIETRYKOWSKI, and FISCHER, JJ., concur.
O’DONNELL, J., dissents, with an opinion joined by DEWINE, J.
MARK L. PIETRYKOWSKI, J., of the Sixth District Court of Appeals, sitting
for O’NEILL, J.
_________________
O’DONNELL, J., dissenting.
{¶ 48} Respectfully, I dissent.
{¶ 49} R.C. 3107.07(A) does not require probate courts to “consider the
existence of pending parenting matters,” majority opinion at ¶ 1.
{¶ 50} Rather, R.C. 3107.07(A) specifies that a parent of a minor is not
required to consent to an adoption if a 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 period of at least one year immediately
preceding * * * the filing of the adoption petition.”
{¶ 51} The majority opinion, contrary to the statute, imposes a new burden
on probate courts by mandating that “a probate court must consider the existence
of pending parenting matters when determining whether an exception to the
requirement of parental consent to adoption applies,” majority opinion at ¶ 1.
Although the legislature could have required probate courts to make such a
determination, it chose not to do so; despite the lack of statutory authorization, the
majority judicially adds this new factor for probate courts to consider in adoption
cases.
{¶ 52} By doing so, the majority opinion increases the complexity of the
problems faced by probate courts in adoption proceedings and resolving issues
involving de minimis contact questions that arise in those proceedings. And it
opens a new field of interpretation as to the meaning of the phrase “without
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January Term, 2018
justifiable cause.” Future cases will now require probate courts to consider the
mere filing of motions for change of visitation, custody, or support filed in domestic
relations courts, paternity matters filed in juvenile courts, and a host of other matters
in juvenile and probate courts bearing on the question of parenting.
{¶ 53} These are all questions best resolved by the probate court in its
consideration of whether the adoption petitioner has presented clear and convincing
evidence showing that the parent failed without justifiable cause to provide more
than de minimis contact with the minor per R.C. 3107.07(A). That is exactly what
the probate court did in this instance, and we should affirm its judgment.
{¶ 54} Today’s new standard imposes on probate judges an additional layer
of review and unnecessarily complicates an already difficult situation, which will
lead to all sorts of consequences not intended by the General Assembly.
{¶ 55} We should leave to the General Assembly the matter of imposing
additional burdens on probate courts and resist the impulse to make the statute
better by engrafting onto it judicially created burdens that will undoubtedly lead to
additional litigation to further define what a “pending parenting matter” includes or
does not include and that will further confuse the role of probate courts in resolving
adoption proceedings.
{¶ 56} For these reasons, I would affirm the judgment of the Twelfth
District Court of Appeals.
DEWINE, J., concurs in the foregoing opinion.
_________________
The Law Offices of Jason A. Showen, L.L.C., and Jason A. Showen, for
appellee.
Rion, Rion, & Rion, L.P.A., Inc., Jon Paul Rion, Travis T. Dunnington, and
Bradley D. Anderson, for appellant.
_________________
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