In re Adoption of Z.A.

[Cite as In re Adoption of Z.A., 2016-Ohio-3159.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
IN THE MATTER OF: THE : Hon. Sheila G. Farmer, P.J.
ADOPTION OF Z.A. - O.J. : Hon. W. Scott Gwin, J.
: Hon. William B. Hoffman, J.
:
:
: Case No. 16-CA-05
:
:
: OPINION
CHARACTER OF PROCEEDING: Civil appeal from the Licking County Court
of Common Pleas, Probate Division, Case
No. 20155108
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: May 25, 2016
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
KAREN H. WENTWORTH THOMAS CRISCO
20 1/2 N. PARK PLACE BOX 4805
NEWARK, OH 43058
Licking County, Case No. 16-CA-05 2
Gwin, J.
{¶1} Father/appellant appeals the December 29, 2015 and January 4, 2016
judgment entries of the Licking County Court of Common Pleas, Probate Division,
granting Stepfather/appellee’s petition to adopt Z.A.-O.J. without Father/appellant’s
consent.
Facts & Procedural History
{¶2} Z.A.-O.J., born August 20, 2007, is the biological child of appellant/Father,
T.C. The child’s mother, A.J., is married to appellee, J.J., the child’s stepfather. On
October 28, 2015, appellee filed a petition to adopt Z.A.-O.J. Appellee alleged that
appellant’s consent for the petition to adopt was not required because appellant failed,
without justifiable cause, to have de minimus contact with the child for at least a year
preceding the petition and/or failed, without justifiable cause, to provide for the
maintenance and support of the child as required by law or judicial decree for at least a
year preceding the petition. A.J. consented to the adoption, but appellant objected.
{¶3} On October 28, 2015, the trial court issued a judgment entry setting a
hearing and ordering notice pursuant to R.C. 3107.11. Notice of the hearing was sent to
appellant at the Southeastern Correctional Institution by certified mail, which was returned
signed on November 20, 2015. The notice was a completed copy of Probate Form 18.2.
On November 30, 2015, appellant filed a motion to convey. Appellant also filed multiple
ex parte letters with the trial court.
{¶4} The trial court held the adoption hearing on December 29, 2015. The trial
court first held a hearing on the issue of consent and found the consent of appellant was
not necessary. Immediately after the consent hearing, the trial court conducted a hearing
Licking County, Case No. 16-CA-05 3
as to the best interest of the child. The report of the certified adoption assessor, filed with
the trial court, stated the assessor recommended the trial court grant the adoption. The
trial court determined it was in the best interest of the child to grant appellee’s adoption
petition.
{¶5} On December 29, 2015, the trial court issued a judgment entry finding
appellant’s consent was not required because he failed, without justifiable cause, to: (1)
provide more than de minimus contact with the child and (2) provide for the maintenance
and support of the child as required by law or judicial decree, for a period of at least one
year immediately preceding the filing of the adoption petition. The trial court stated in its
judgment entry that appellant has been in prison since 2009 and his sentence does not
expire until 2018. Further, appellant has had no contact with the child since October
2008. The trial court stated while there was no child support order, there was a common
law duty of support and there was no gifts or support to the child. The trial court issued
a final decree of adoption on December 29, 2015.
{¶6} On January 4, 2016, the trial court issued findings in accordance with its
December 29th entries. The trial court stated A.J. was never married to appellant.
Appellee married A.J. in 2012 and appellee and the child have bonded with one another.
The trial court further stated the child does not know appellant because appellant has not
seen the child since October 3, 2008, a period which exceeds seven (7) years. The trial
court found appellant has not provided any financial support for the child since October
3, 2008. The trial court determined that, despite the lack of judicial decree ordering
support, appellant had a common law duty to provide financial support even if this support
Licking County, Case No. 16-CA-05 4
was minimal because of his incarceration. Appellant provided no gifts, birthday, or
Christmas cards.
{¶7} The trial court found appellant’s prison sentence does not expire until
September 20, 2018 and appellant had no contact with the child since October 3, 2008;
no correspondence, no telephone calls, and no e-mails via JPAY. Further, the trial court
stated there was no evidence presented that appellant attempted to obtain court-ordered
visitation. The trial court found the fact that appellant had been in jail and then in prison
was as a result of his own wrongdoing and therefore, was not justifiable cause for the
failure to communicate or support. The trial court considered appellee’s Exhibits 1, 2,
and 3, which were certified copies of judgment entries of conviction of appellant from the
Franklin County Court of Common Pleas, with two of these felony convictions for
appellant having committed offenses of violence. The trial court stated that, as a matter
of law and pursuant to the Rules of Evidence, it could not consider the ex parte letters
sent by appellant to the court, other than for the fact that appellant did not consent to the
adoption. The trial court also found letters sent by others on appellant’s behalf were
inadmissible hearsay.
{¶8} Appellant appeals the December 29, 2015 and January 4, 2016 judgment
entries of the Licking County Court of Common Pleas, Probate Division, and assigns the
following as error:
{¶9} “I. THE TRIAL COURT ERRED IN FINDING CAUSE FOR NON-SUPPORT
AND NON-CONTACT JUSTIFIABLE UNDER R.C. 3107.07(A).
{¶10} “II. THE COURT ERRED BY DENYING DUE PROCESS TO CONTESTING
PARENT BY NOT ALLOWING TESTIMONY, DEPOSITION, THE OPPORTUNITY TO
Licking County, Case No. 16-CA-05 5
PRESENT ADDITIONAL EVIDENCE, CROSS EXAMINATION OF THE EVIDENCE
AGAINST ME THEREFORE DENYING ME MY RIGHT TO BE HEARD.
{¶11} “III. THE COURT ERRED IN NOT AFFORDING BIOLOGICAL PARENT
WITH PROCEDURAL RIGHT TO CONTEST ISSUE OF BEST INTERESTS OF THE
CHILD.
{¶12} “IV. THE COURT ERRED BY APPLYING THE WRONG BURDEN OF
PROOF.
{¶13} “V. THE COURT ERRED IN NOT FINDING PETITIONER’S PROOF OF
INCARCERATION AS SOLE REASONING FOR FAILURE TO COMMUNICATE AND
SUPPORT BEING AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶14} “VI. THE COURT ERRED IN ALLOWING TESTIMONY CONTRADICTIVE
TO THE CLAIMS MADE IN THE PETITION.”
{¶15} We first note that appellant has failed to file a transcript in accordance with
App.R. 9(B). Pursuant to App.R. 9(B)(1), “it is the obligation of the appellant to ensure
that the proceedings the appellant considers necessary for inclusion in the record,
however those proceedings were recorded, are transcribed in a form that meets the
specifications of App.R. 9(B)(6).” Though the file contained an audio recording of the
adoption hearing, it is clear from the Staff Notes to App.R. 9 that while a trial court may
choose to record the proceedings through the use of an audio-recording device,
“regardless of the method of recording the proceedings, a transcript is required for the
record on appeal * * * For parties who cannot afford to have a transcript prepared, existing
case law authorizes the use of a statement of proceedings under App.R. 9(C).” 2011
Staff Note, Appellate Rule 9.
Licking County, Case No. 16-CA-05 6
{¶16} In this case, appellant did not file a transcript or an App.R. 9(C) statement
of proceedings of the hearing held on the petition for adoption. When portions of the
transcript or statement of proceedings necessary for resolution of the assigned error are
omitted from the record, the reviewing court has nothing to pass on and thus, as to those
assigned errors, the court has no choice to presume the validity of the lower court’s
proceedings. Knapp v. Edwards Laboratories, 61 Ohio St. 2d 197, 400 N.E.2d 384 (1980).
I.
{¶17} In his first assignment of error, appellant argues the trial court abused its
discretion in finding his failure to communicate and/or support was not justifiable.
Appellant contends A.J. significantly interfered with his ability to communicate with the
child as appellant attempted to contact the child and A.J. refused his calls and letters.
Further, that since there was no judicial decree of support and A.J. never requested
financial assistance from appellant, the finding that his failure to support was not justifiable
was an abuse of discretion. Finally, appellant contends his incarceration provided
justifiable cause for any failure to communicate and/or support.
{¶18} The Supreme Court of the United States has recognized that natural
parents have a fundamental liberty interest in the care, custody, and management of their
children. Stanley v. Illinois, 405 U.S. 645, 92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972). A
parent’s right to raise a child is an essential civil right. In re Murray, 52 Ohio S.3d 155,
556 N.E.2d 1169 (1990). An adoption permanently terminates the parental rights of a
natural parent. In re Adoption of Reams, 52 Ohio App. 3d 52, 557 N.E.2d 159 (10th Dist.
1989). Thus, courts must afford the natural parent every procedural and substantive
Licking County, Case No. 16-CA-05 7
protection allowed by law before depriving the parent of the right to consent to the
adoption of his child. In re Hayes, 79 Ohio St. 3d 46, 679 N.E.2d 680 (1997).
{¶19} The termination of a natural parent’s right to object to the adoption of his or
her child requires strict adherence to the controlling statutes. In re Adoption of Kuhlmann,
99 Ohio App. 3d 44, 649 N.E.2d 1279 (1st Dist. 1994). Ordinarily, the written consent of
a minor child’s natural parents is required prior to adoption. R.C. 3107.07 provides
exceptions to this requirement if the parent of the minor has failed, without justifiable
cause, to provide more than de minimus 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 the filing of the adoption petition. R.C.
3107.07(A).
{¶20} Appellee has the burden of proof in this action. “The party petitioning for
adoption has the burden of proving, by clear and convincing evidence, that the parent
failed to communicate with the child during the requisite one-year period and that there
was no justifiable cause for the failure of communication.” In re Adoption of Holcomb, 18
Ohio St. 3d 361, 481 N.E.2d 613 (1985). “No burden is to be placed upon the non-
consenting parent to prove that his failure to communicate was justifiable.” Id.
{¶21} “Once the clear and convincing standard has been met to the satisfaction
of the probate court, the reviewing court must examine the record and determine if the
trier of fact had sufficient evidence before it to satisfy this burden of proof.” In re Adoption
of Holcomb, 18 Ohio St. 3d 361, 481 N.E.2d 613 (1985). The determination of the probate
court should not be overturned unless it is unsupported by clear and convincing evidence.
Id. Clear and convincing evidence is the “measure or degree of proof that will produce in
Licking County, Case No. 16-CA-05 8
the mind of the trier of fact a firm belief or conviction as to the allegations sought to be
established.” In re: Estate of Haynes, 25 Ohio St. 3d 101, 495 N.E.2d 23 (1986).
{¶22} With respect to a failure to support, the Ohio Supreme Court stated, “[t]he
question of whether justifiable cause for failure to pay child support has been proven by
clear and convincing evidence in a particular case is a determination for the probate court
and will not be disturbed on appeal unless such determination is against the manifest
weight of the evidence.” In re Adoption of M.B., 131 Ohio St. 3d 186, 2012-Ohio-236, 963
N.E.2d 142.
{¶23} Therefore, for appellee to prevail in this adoption proceeding without
appellant’s consent, he must prove by clear and convincing evidence that: (1) there has
been a failure of communication or support by appellant for the one-year period and (2)
the failure is unjustified. Appellee must also establish the failure to communicate or
support was without justifiable cause. If the petitioner meets his burden of proof, then the
natural parent has the burden of going forward with evidence to show some justifiable
cause for his or her failure to support or contact the child. However, the burden of proof
never shifts from the petitioner. In re Adoption of Bovett, 33 Ohio St. 3d 102, 515 N.E.2d
919 (1987).
{¶24} In its judgment entry, the trial court found appellant’s prison sentence does
not end until 2018, appellant has not had contact with the child since 2008, and there has
been no correspondence, telephone calls, e-mails via JPAY, or attempt to obtain court-
ordered visitation. Based upon these findings by the trial court, we find the trial court did
not abuse its discretion in determining appellant failed to communicate for the one-year
period prior to the adoption petition. As to any evidence or testimony provided at the
Licking County, Case No. 16-CA-05 9
hearing, when portions of the transcript or statement of proceedings necessary for
resolution of the assigned error are omitted from the record, we have nothing to pass on
and thus, as to those assigned errors, we have no choice to presume the validity of the
lower court’s proceedings. Knapp v. Edwards Laboratories, 61 Ohio St. 2d 197, 400
N.E.2d 384 (1980).
{¶25} Appellant next contends the trial court erred in finding his failure to maintain
and support was not justifiable because there was no judicial decree of support and A.J.
never requested financial assistance from appellant. Appellant argues he only made $24
per week at the prison job and this money was used for hygiene items.
{¶26} Although the trial court did find in its judgment entry there was no judicial
decree ordering appellant to provide child support, R.C. 3107.07 is written in the
conjunctive. It is the failure to provide for the maintenance and support of the child as
required by law or judicial decree. Thus, appellant was still under a statutory and common
law duty to support his child. In re Adoption of A.S., 5th Dist. Licking No. 10-CA-140,
2011-Ohio-1505; R.C. 2919.21(A)(2). It is appellant’s position that because he was in
prison, he was unable to provide support for the child. However, appellant made no
attempts “within his means” to provide support, such as a portion of the money he earns
from his employment at the prison. See R.C. 2919.21(D). As noted by the trial court,
appellant did not provide any financial support, even if the support was minimal because
of his incarceration. Despite the lack of a judicial decree, appellant was still obligated
under the law to provide support to this child, which he failed to do. In re Adoption of
A.S., 5th Dist. Licking No. 10-CA-140, 2011-Ohio-1505; R.C. 2919.21(A)(2).
Licking County, Case No. 16-CA-05 10
{¶27} Finally, appellant argues his incarceration provided justifiable cause for any
failure to communicate and/or maintain support. The trial court found appellant was in jail
and in prison as a result of his own wrongdoings and this is not justifiable cause for the
failure to communicate and/or maintain support. Incarceration alone is not a justifiable
excuse, even if it lasts for the entire period considered by the court. In re D.R., 7th Dist.
Belmont No. 11 BE 11, 2011-Ohio-4755. Rather, incarceration is only one factor to
consider when determining whether a parent has justifiable cause for failing to provide
maintenance and support for the child. Frymier v. Crampton, 5th Dist. Licking No. 02 CA
8, 2002-Ohio-3591. Here, there is no evidence appellant made an attempt to support his
child and there is no evidence he was prevented from providing some support during the
period in question. Further, appellant created his own circumstances and his own violent
acts caused the subsequent lack of support. See Askew v. Taylor, 5th Dist. Stark No.
2004CA00184, 2004-Ohio-5504; In re Adoption of A.S., 5th Dist. Licking No. 10-CA-140,
2011-Ohio-1505; R.C. 2919.21(A)(2).
{¶28} Appellant’s first assignment of error is overruled.
II.
{¶29} In appellant’s second assignment of error, he contends the trial court erred
by not granting his motion to convey to allow him to testify at the adoption hearing and by
not permitting him to enter an official deposition.
{¶30} We have frequently noted that an incarcerated prisoner has no absolute due
process right to attend a civil trial to which he is a party. Rachel v. Rachel, 5th Dist. Stark
No. 2012CA00243, 2013-Ohio-3692; Alexander v. Alexander, 5th Dist. Muskingum No.
CT–6–0061, 2007–Ohio–3933; Wagner v. Strip, 5th Dist. Licking No. 11–CA–82, 2012–
Licking County, Case No. 16-CA-05 11
Ohio–4954, appeal not allowed, 134 Ohio St. 3d 1470, 2013–Ohio–553, 983 N.E.2d 369;
Allen v. Allen, 5th Dist. Muskingum No. CT2013–0015, 2013–Ohio–2729. Whether a
prisoner should be permitted to attend a civil trial to personally argue his case depends
upon the particular circumstances of each case. Abuhilwa v. Board, 4th Dist. Pickaway
No. 08CA3, 2008-Ohio-5326. Further, the decision whether or not to allow an
incarcerated party to be present is within the sound discretion of the trial court. Miklas v.
Miklas, 7th Dist. Belmont No. 14 BE 46, 2015-Ohio-3829. An abuse of discretion is “more
than an error of law or judgment; it implies that the court’s attitude is unreasonable,
arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St. 3d 217, 450 N.E.2d
1140 (1983).
{¶31} The trial court denied appellant’s motion to convey him from prison to the
hearing, although the trial court did acknowledge that through his ex parte letters,
appellant stated he did not consent to the adoption and was objecting to a finding that his
consent was not required for the adoption. In his motion to convey, appellant provides
no information as to the type of evidence he sought to present if he was conveyed to the
hearing. However, appellant indicates in his brief he wished to provide his own testimony
that A.J. refused to take his calls and letters he sent to the child through A.J.’s relatives
were not given to the child. Appellant also states in his brief he sought to attend the
hearing to argue he was not required to provide maintenance and support to the child
because there was no judicial decree of support in place.
{¶32} Given the type of evidence appellant contends he could have offered,
appellant could have presented this testimony via deposition or affidavit. See In re Joseph
P., 6th Dist. Lucas No. L-02-1385, 2003-Ohio-2217. Though appellant argues the trial
Licking County, Case No. 16-CA-05 12
court erred in not permitting him to submit a deposition, there is no indication in the record
appellant attempted to file either an affidavit or a deposition. Nothing in the record
indicates appellant made any type of request to the trial court with regards to deposition
costs and/or a request to file a deposition or affidavit. See In re H.S., 12th Dist. Clermont
No. CA2013-02-012, 2013-Ohio-2155.
{¶33} Further, as detailed above in appellant’s first assignment of error, his legal
argument regarding the duty of maintenance and support fails. Appellant admits he
makes $24.00 per month at a prison work job and he did not send or attempt to send any
of this monthly amount to A.J. Simply because there was not judicial decree in place with
regards to the maintenance and support of the child does not relieve appellant of this
duty. The statutory language at issue does not require a petitioner to demonstrate both
the natural parents’ failure to support the child and to communicate with the child; the
statute is to be read in the disjunctive. In re Adoption of McDermitt, 63 Ohio St. 2d 301,
408 N.E.2d 680 (1980). Therefore, in light of the fact that appellant’s legal argument
regarding his failure to maintain and support the child fails, the trial court did not abuse
its discretion in denying appellant’s motion to convey.
{¶34} Appellant’s second assignment of error is overruled.
III.
{¶35} In his third assignment of error, appellant argues the trial court erred in not
clearly noting in the notice of hearing that both the issues of consent and best interest
would be considered at the December 29, 2015 hearing. Further, appellant contends the
trial court erred in not holding a separate best interest hearing.
Licking County, Case No. 16-CA-05 13
{¶36} The notice of hearing sent to appellant by certified mail stated the consent
of appellant is not required because he has failed to communicate with the minor child or
provide for the maintenance or support for a period of at least one year. It stated the time
and place of the hearing on the petition.
{¶37} R.C. 3107.11 requires the publication must give notice of the filing of the
petition and must list the time and place of the hearing. The Supreme Court’s Rules of
Superintendence Standard Probate Forms, Rule 51, Form 18.2, sets forth the form to be
used in giving notice of hearing on the petition for an adoption. The notice which was
sent to appellant by certified mail is identical to the form promulgated by the Rules.
Accordingly, we find the trial court did not err in utilizing the notice as provided by the
standard probate forms. In re Walters, 5th Dist. Fairfield No. 2005-CA-65, 2005-CA-66,
2006-Ohio-631.
{¶38} Additionally, the trial court conducted a separate best interest hearing
immediately after the hearing on consent. See In the Matter of the Adoption of A.S., 5th
Dist. Licking No. 10-CA-140, 2011-Ohio-1505. The trial court considered the report by
the certified adoption assessor in concluding the adoption was in the best interest of the
child.
{¶39} Appellant’s third assignment of error is overruled.
IV.
{¶40} In his fourth assignment of error, appellant contends the trial court erred and
abused its discretion in not properly applying the burden of proof. In our discussion of
appellant’s first assignment of error, we outlined the appropriate burden of proof in an
adoption case. Upon our review of the trial court’s judgment entries, we find the trial court
Licking County, Case No. 16-CA-05 14
did not abuse its discretion in its application of the burden of proof in the instant case.
Further, any argument as to whether the trial court correctly applied the burden of proof
during the adoption hearing is not supported by the record on appeal as we must presume
the regularity of the proceedings below. Knapp v. Edwards Laboratories, 61 Ohio St. 2d
197, 400 N.E.2d 384 (1980). Appellant’s fourth assignment of error is overruled.
V.
{¶41} In his fifth assignment of error, appellant argues the trial court’s
determination was against the manifest weight of the evidence because appellee only
provided evidence of appellant’s incarceration, which does not show any lack of
communication or support.
{¶42} A judgment that is supported by some competent, credible evidence will not
be reversed by a reviewing court as against the manifest weight of the evidence. C.E.
Morris Co. v. Foley Construction Co., 54 Ohio St. 2d 279 (1978). We must give deference
to the findings of the trial court since it is in the best position to observe the witnesses and
weigh their credibility. Seasons Coal Co., Inc. v. City of Cleveland, 10 Ohio St. 3d 77
1(1984). Courts have found that imprisonment, along with other factors, can be used to
support a finding that a parent’s consent is not needed for an adoption. In re D.R., 7th
Dist. Belmont No. 11 BE 11, 2011-Ohio-4755.
{¶43} Here, while the trial court did find in its judgment entry that appellant has
been in prison since 2009 and will not be released until 2018, the trial court also found he
had no contact with the child since on or before October 3, 2008; no correspondence,
telephone calls, or e-mails, he did not attempt to obtain visitation, and he did not send
Licking County, Case No. 16-CA-05 15
any gifts, birthday, or Christmas cards. Thus, the trial court considered factors other than
appellant’s incarceration in its determination that appellant’s consent was not required.
{¶44} As to appellant’s argument that appellee only provided evidence of
appellant’s incarceration at the adoption hearing, given the lack of transcript or App.R.
9(C) statement, we must presume the regularity of the proceedings below and find the
trial court’s findings with regard to communicate or support are not against the manifest
weight of the evidence. Knapp v. Edwards Laboratories, 61 Ohio St. 2d 197, 400 N.E.2d
384 (1980).
VI.
{¶45} In his final assignment of error, appellant argues the testimony of A.J. was
contradictory and thus the trial court erred and abused its discretion in finding her
testimony credible.
{¶46} The weight to be given to the evidence and the credibility of the witnesses
and issues for the trier of fact. In re T.F.H., 5th Dist. Tuscarawas No. 2014 AP 0040;
State v. Jamison, 49 Ohio St. 3d 182, 552 N.E.2d 180 (1990). The trier of fact “has the
best opportunity to view the demeanor, attitude, and credibility of each witness.” Davis v.
Flickinger, 77 Ohio St. 3d 415, 1997-Ohio-260, 674 N.E.2d 1159. Accordingly, the weight
to be given to the evidence and credibility of A.J. is an issue for the trial court, and this
Court must give deference to the trial court in such determinations. Further, due to the
lack of transcript or App.R. 9(C) statement, we must presume the regularity of the
proceedings below. Knapp v. Edwards Laboratories, 61 Ohio St. 2d 197, 400 N.E.2d 384
(1980). Appellant’s sixth assignment of error is overruled.
Licking County, Case No. 16-CA-05 16
{¶47} Based on the foregoing, we overrule appellant’s assignments of error. The
December 29, 2015 and January 4, 2016 judgment entries of the Licking County Court of
Common Pleas, Probate Division, are affirmed.
By Gwin, J.,
Farmer, P.J., and
Hoffman, J., concur