In re Adoption of D.J.S.

[Cite as In re Adoption of D.J.S., 2017-Ohio-8567.]
COURT OF APPEALS
TUSCARAWAS COUNTY, OHIO
FIFTH APPELLATE DISTRICT
IN THE MATTER OF: : JUDGES:
: Hon. W. Scott Gwin, P.J.
THE ADOPTION OF : Hon. Craig R. Baldwin, J.
: Hon. Earle E. Wise, J.
D.J.S. :
:
:
: Case No. 2017 AP 08 0023
:
: OPINION
CHARACTER OF PROCEEDING: Appeal from the Tuscarawas County
Court of Common Pleas, Probate
Divison, Case No. 17 AD 03082
JUDGMENT: Reversed
DATE OF JUDGMENT: November 13, 2017
APPEARANCES:
For Plaintiff-Appellant-H.F. For Defendant-Appellees
A. JENNA HOKES JASON L. JACKSON
105 Jamison Avenue P.O. Box 308
P.O. Box 247 Uhrichsville, Ohio 44683
Cadiz, Ohio 43907
Tuscarawas County, Case No. 2017 AP 08 0023 2
Baldwin, J.
{¶1} Appellant mother appeals the July 6, 2017 decision of the Tuscarawas
County Court of Common Pleas, Probate Division, finding that her consent to the adoption
of her son, D.J.S., was not necessary because she failed to provide support and
maintenance for one year prior to the date the petition for adoption was filed. The
biological father did not appeal the adverse decision terminating his parental rights.
{¶2} This appeal is expedited and is being considered pursuant to
App.R.11.2(C).
STATEMENT OF THE FACTS AND THE CASE
{¶3} Appellees sought and were granted custody of D.J.S. by the Harrison
County Juvenile Court in 2008. The order granting Appellees custody stated “[t]he
[Appellees] do not wish child support at this time as it would assist both natural parents
to get on their feet financially without this additional burden. Further, the [Appellees] will
add the minor child to their health insurance thus removing him from public assistance.”
The Appellees did not seek support from Appellant at any time and Appellant made no
support payments.
{¶4} On March 9, 2017, Appellees filed a petition for adoption of D.J.S. alleging
that Appellant’s consent to the adoption was unnecessary because Appellant 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. (R.C. 3107.07)
Appellant submitted a written objection to the petition for adoption on March 31, 2017.
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{¶5} The Trial Court conducted a hearing on June 8, 2017 limited to the
determination of whether Appellant’s consent was unnecessary because of a failure to
provide maintenance and support for D.J.S. for the year prior to the filing of the Petition
for Adoption. The Appellees focused on maintenance and support and abandoned the
allegation that Appellant failed to provide more than de minimis contact because they
agreed that Appellant had regular bi-weekly and overnight visitation with D.J.S. during
which time she provided food, shelter and care to D.J.S. Appellant did not receive any
financial contribution from Appellees to maintain her son on the overnight visits and D.J.S.
returned to Appellees’ home without any indication that he had not been fed or received
appropriate supervision. Appellant also testified to engaging in appropriate activities with
D.J.S. during the visitation as well as taking him to see other relatives.
{¶6} On July 6, 2017 the Trial Court decided that Appellant’s consent to the
adoption was unnecessary because Appellant failed without justifiable cause 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 the filing of the adoption petition. The
Court found that “[f]rom time to time, appellant has exercised visitation with her son and
has done so in the year prior to the filing of this petition.” (Judgment Entry, p. 2, para. 4)
With regard to support and maintenance, the Trial Court concluded that “Neither party
has made any meaningful attempt to provide adequate support for their son since he was
placed in the custody of [Appellees].” Appellant’s contention that the order granting legal
custody to the Appellees did not require payment of support and thus excused her failure
to make payment was rejected by the Trial Court as justifiable cause for failing to provide
support because “[e]ven though no support was ordered by the Court in 2008, support by
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the biological parents is still mandated by ORC 2919.21.” The Court noted that Appellant
was not so destitute that she could not pay any support and that she had no justifiable
cause for failing to do so.
{¶7} The Trial Court conducted a second hearing and decided, on July 27, 2017,
that adoption was in the best interests of the child and issued a final Decree of Adoption.
{¶8} Appellant appeals the July 6, 2017 Decision and asserts the following
Assignment of Error:
{¶9} I. THE TRIAL COURT ERRONEOUSLY FOUND THAT THE
BIOLOGICAL MOTHER, WITHOUT JUSTIFIABLE CAUSE, FAILED TO PROVIDE
SUPPORT FOR MORE THAN ONE YEAR PRECEDING THE FILING OF THE
ADOPTION AND THAT THE CONSENT OF THE RESPONDENT IS NOT NECESSARY
TO PROCEED WITH THE ADOPTION.
{¶10} R.C. 3107.07(A) sets forth, in part, the requirements for a parent’s consent
to an adoption. R.C. 3107.07(A) states that a probate court may not grant a petition to
adopt a minor child absent the consent of the child’s parent. However, the statute further
states that the consent of a parent is not required for adoption if the court finds that “the
parent has failed without justifiable cause to communicate 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 * * * the filing of the adoption petition”
R.C. 3107.07(A).
{¶11} Pursuant to the statute, even when the natural parent has maintained
regular communication and visitation with the minor child, the parent’s failure to support
the child without justifiable cause provides an alternative basis for dispensing with the
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consent requirement. In re Adoption of Jones Franklin App. No. 83AP748, 1983 WL 3857,
(Dec. 29, 1983), citing In re Adoption of McDermitt, 63 Ohio St.2d 301, 304, 408 N.E.2d
680 (1980)
{¶12} The petitioner for adoption has the burden of proving by clear and
convincing evidence that (1) the natural parent failed to either support or communicate
with the child for the requisite one year period and that (2) this 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; In re Adoption of Masa, 23 Ohio St.3d 163, 492 N.E.2d
140 (1986), paragraph one of syllabus. In Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d
118 (1954), the Supreme Court of Ohio explained that clear and convincing evidence is
more than a preponderance of the evidence but does not rise to the level of beyond a
reasonable doubt as required in criminal cases. It must produce in the mind of the trier of
fact a firm belief or conviction as to the allegations sought to be established. Cross,
paragraph 3 of the syllabus. Judgments supported by some competent, credible evidence
going to all the essential elements of the case will not be reversed by a reviewing court
as being against the manifest weight of the evidence. In re Adoption of Breckenridge,
Franklin App. No. 03AP-1166, 2004-Ohio-2145, ¶10.
{¶13} The relationship between a parent and child is a constitutionally protected
liberty interest. See In re Adoption of Zschach, 75 Ohio St.3d 648, 665 N.E.2d
1070(1996). Therefore, any exception to the parental consent requirement for adoption
“must be strictly construed so as to protect the right of the natural parents to raise and
nurture their children.” In re Adoption of Schoeppner 46 Ohio St.2d 21, 24, 345 N.E.2d
608 (1976).
Tuscarawas County, Case No. 2017 AP 08 0023 6
{¶14} In this case, we review the record to determine if it contains competent,
credible evidence supporting the conclusion that Appellee has demonstrated by clear and
convincing evidence that Appellant failed to provide support and maintenance for the
requisite one year period.
{¶15} “Chapter 3107 of the Ohio Revised Code does not define the terms
‘maintenance’ or ‘support.’ Therefore we must afford these terms their plain and ordinary
meaning.” In re Adoption of B.M.S., 10th Dist. Franklin No. 07AP-236, 2007-Ohio-5966;
R.C. 1.42; Kimble v. Kimble, 97 Ohio St.3d 424, 2002-Ohio-6667, 780 N.E.2d 273. Black's
Law Dictionary 1039 (9th Ed.2009), defines “maintenance” as “[f]inancial support given
by one person to another” and “support” as “[s]ustenance or maintenance; esp., articles
such as food and clothing that allow one to live in the degree of comfort to which one is
accustomed.” In re Adoption of M.B., 131 Ohio St.3d 186, 963 N.E.2d 142, 2012–Ohio–
236, ¶ 20. Maintenance and support, in the adoption context, do not simply refer to child
support payments or other monetary contributions. In re Adoption of McNutt, 134 Ohio
App.3d 822, 829, 732 N.E.2d 470 (4th Dist.1999). Maintenance and support, “may mean
any type of aid to feed, clothe, shelter, or educate the child; provide for health, recreation,
travel expenses; or provide for any other need of the child. * * * Supplying shoes, diapers,
or any other clothing can constitute support and maintenance.” In re Adoptions of Groh,
153 Ohio App.3d 414, 424, 794 N.E.2d 695 (7th Dist.2003), citing McNutt.
{¶16} In Gorski v. Myer, this Court reasoned that “[t]he General Assembly chose
not to modify the terms “support” or “maintenance” with words such as substantially or
‘regularly,’ indicating an intention by the General Assembly to adopt an objective test for
analyzing a parent’s failure to support.” Gorski v. Myer, Stark App. No.2005CA00033,
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2005-Ohio-2604, ¶17, citing In re: Adoption of Holcomb, 18 Ohio St.3d 361, 366, 481
N.E.2d 613 (1985). The relevant inquiry is not whether the parent provided support as
would be expected, “but whether the parent’s failure to support * * * is of such a magnitude
as to be the equivalent of abandonment.” Gorski, supra at paragraph 14, citing Celestino
v. Schneider, 84 Ohio App.3d 192, 196, 616 N.E.2d 581(1992). In Celestino, the Sixth
District Court of Appeals held that a minimal $36.00 in support provided by natural father
was sufficient to preserve his consent as jurisdictional prerequisite to his child’s adoption,
and stated that the Sixth District has “previously held that any contribution toward child
support, no matter how meager, satisfies the maintenance and support requirements of
R.C. 3107.07(A).” Celestino, supra at 196, 616 N.E.2d 581.
{¶17} This Court, and the Third, Fourth and Sixth Ohio Appellate Districts have
held that a natural parent who provides for a child’s needs during visitation has provided
sufficient support to avoid a determination that consent is unnecessary for an adoption.
In the cases before these districts, the non-consenting parent exercised regular weekly
or bi-weekly visitation throughout the relevant one year period. The non-consenting
parent also furnished food, shelter and other necessities such as clothing, diapers or
shoes for the child to use either during the visitation or at the custodial parent’s home.
See In re Adoption of Huffman, Mercer App. No. 10-85-4, 1986 WL 9662 (Aug. 29, 1986),
In re Adoption of McNutt 134 Ohio App.3d 822, 732 N.E.2d 470 (1999); In re Adoption of
Pinkava, Lucas App. No. L-88-034, 1989 WL 1614 (Jan. 13, 1989); Gorski v. Myer, supra.
{¶18} In this case the Trial Court’s decision suggests that it applied an incorrect
standard. The Court found that “… [n]either party has made any meaningful attempt to
provide adequate support…” but neither the Revised Code nor the Courts interpreting the
Tuscarawas County, Case No. 2017 AP 08 0023 8
Revised Code require a “meaningful attempt to provide adequate support.” The Revised
Code and applicable precedent require an objective analysis of any support provided to
determine whether the non-consenting parent’s failure to support “was of such a
magnitude as to be the equivalent of abandonment.” Gorski, supra, ¶14.
{¶19} Looking at Appellant’s actions objectively and construing R.C. 3107.07
strictly in her favor, the Trial Court erred in finding clear and convincing evidence that
Appellant failed to support her son and that failure was of such a magnitude as to be the
equivalent of abandonment. Appellant had regular visitation with her son, including
overnight visits, and provided support and maintenance during those visits. Although
Appellant concedes she did not pay any support during the one year proceeding
Appellee's filing of the adoption petition, she did supply sufficient support and
maintenance during regular and overnight visits to avoid the forfeiture of her right to
consent to the adoption. Because we are bound to strictly construe the exceptions to the
requirement for parental consent, we are obligated to find that the record lacks competent,
credible evidence going to all the essential elements of the case and that the finding that
the Appellant’s consent to the adoption was unnecessary is against the manifest weight
of the evidence.
{¶20} Consequently, the decision of the Tuscarawas County Court of Common
Pleas, Probate Division holding that the consent of Appellant is unnecessary is reversed.
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{¶21} Costs assessed to Appellees.
By: Baldwin, J.
Gwin, P.J. and
Earle Wise, J. concur.