In re Adoption of Z.D.K.

[Cite as In re Adoption of Z.D.K., 2011-Ohio-4079.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
IN THE MATTER OF THE : Hon. W. Scott Gwin, P.J.
ADOPTION OF: Z.D.K : Hon. John W. Wise, J.
IN THE MATTER OF THE NAME : Hon. Julie A. Edwards, J.
CHANGE OF: Z.D.K. :
:
: Case No. 2011-CA-00062
:
:
: OPINION
CHARACTER OF PROCEEDING: Civil appeal from the Stark County Court of
Common Pleas, Probate Division, Case
Nos. 209395 and 208692
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: August 15, 2011
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
DOUGLAS D. JONES ANDY A. GINELLA
2867 Sharonwood Avenue N.W. 4096 Holiday Street N.W.
Canton, OH 44708 Canton, OH 44718
JOHN L. JUERGENSEN
Washington Square Office Park
6545 Market Avenue North
North Canton, OH 44721
[Cite as In re Adoption of Z.D.K., 2011-Ohio-4079.]
Gwin, P.J.
{¶1} Appellant S.M. appeals a judgment of the Court of Common Pleas,
Probate Division, of Stark County, Ohio, which found his consent was not necessary for
petitioner-appellee J.M.K. to adopt his minor son, Z.D.M., now known as Z.D.K., and to
change the child’s surname to that of his adoptive father. Appellant assigns three errors
to the trial court:
{¶2} “I. THE TRIAL COURT ERRED AS A MATTER OF LAW IN FINDING
THAT APPELLANT, S. M. FAILED, WITHOUT JUSTIFIABLE CAUSE, TO PROVIDE
MORE THAN DE MINIMIS CONTACT WITH THE MINOR CHILD, Z. K. FOR A
PERIOD OF AT LEAST ONE YEAR IMMEDIATELY PRECEDING THE FILING OF THE
ADOPTION PETITION.
{¶3} “II. THE TRIAL COURT ERRED AS A MATTER OF LAW IN FINDING
THAT APPELLANT, S. M. FAILED TO PROVIDE FOR THE MAINTENANCE AND
SUPPORT OF THE MINOR CHILD, Z. K. FOR A PERIOD OF AT LEAST ONE YEAR
IMMEDIATELY PRECEDING THE FILING OF THE ADOPTION PETITION.
{¶4} “III. THE TRIAL COURT ERRED AS A MATTER OF LAW IN FINDING
THAT THE NAME CHANGE WAS IN THE BEST INTERESTS OF THE MINOR CHILD,
Z. K.”
{¶5} R.C. 3107.07 states in pertinent part:
{¶6} “Consent to adoption is not required of any of the following:
{¶7} “(A) A parent of a minor, when it is alleged in the adoption petition and the
court, after proper service of notice and hearing, finds by clear and convincing evidence
that the parent has failed without justifiable cause to provide more than de minimis
Stark County, Case No. 2011-CA-00062 3
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.”
I.
{¶8} In his first assignment of error, appellant argues the court erred as a
matter of law in finding he had failed to maintain more than a de minimis contact with
the child without justifiable cause for a period of at least one year preceding the filing of
the adoption petition. We do not agree.
{¶9} The trial court found mother testified the child had never received any
letters, birthday cards or gifts from appellant and that she did not return any letters he
may have sent to the child. Mother admitted appellant had sent letters to her, but the
letters were not addressed to the child, and did not directly concern him. Mother
admitted she did not want communication between appellant and the child, although
she allowed appellant’s parents an occasional visitation. She testified she did not know
whether the child had spoken with appellant while he was with the paternal
grandparents. The family moved in March of 2008 and did not provide appellant with a
forwarding address, and mother had obtained a civil protection order against appellant
that included the child as a protected person.
{¶10} Appellant testified that he had written to the child in August and
September of 2010, which was after the petition to adopt was filed. Appellant testified
he had spoken on the phone with the child when the child was at the paternal
grandparents’ home. Appellant admitted this contact had not occurred for approximately
Stark County, Case No. 2011-CA-00062 4
the past two years. Appellant testified he only learned of the family’s address when
mother filed the application to change the child’s name.
{¶11} In October 2010, appellant filed a motion for visitation in the Stark County
Common Pleas Court, Domestic Relations Division. He testified it was his
understanding he was entitled to do so pursuant to the divorce decree.
{¶12} Appellant correctly states that there is a fundamental liberty interest of
parents to make decisions concerning the care, custody and control of their children. In
Re: Adoption of Masa (1986), 23 Ohio St. 3d 163, 492 N.E.2d 140, citing Santosky v.
Kramer (1982), 455 U.S. 745,. 753, 102 S.Ct. 1388, 71 L.Ed. 2d 599 and In re: Baby
Girl Baxter (1985), 17 Ohio St.3d 229, 479 N.E.2d 257{¶13} Any exception to the requirement of parental consent 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 (1976), 46 Ohio St. 2d. 21, 345 N.E.2d 608.
{¶14} The petitioner for adoption has burden of proving by clear and convincing
evidence that the natural parent has failed to provide support or maintain more than de
minimis contact with the child for at least a one year period prior to the filing of the
petition, and also must prove the failure was without justifiable cause. In Re: Adoption
of Bovett (1987), 33 Ohio St. 3d 102, 515 N.E.2d 919. 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. Id.{¶15} In Cross v. Ledford (1954), 161 Ohio St. 469, 120 N.E.2d 118, the Ohio
Supreme Court explained that clear and convincing evidence is more than a
Stark County, Case No. 2011-CA-00062 5
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, syllabus
by the court, paragraph three.
{¶16} One instance of justifiable cause for failure of communication is the
significant interference or significant discouragement of communication by a custodial
parent. In Re: Adoption of: Holcomb (1985), 18 Ohio St. 3d 361, 481 N.E.2d 613. The
trial court noted a probate court may examine any preceding events that may have a
bearing on the parent’s failure to communicate with the child, and the court is not
restricted to focusing solely on events occurring during the statutory one year period. In
re: Adoption of Lauck (1992), 82 Ohio App. 3d 348, 612 N.E.2d 459.
{¶17} Appellant urges mother’s statement that she did not want any
communication between the child and appellant indicates significant interference or
discouragement. Appellant argues mother admitted she did not provide him with the
family’s mailing address, and he suggests she refused and returned mail addressed to
the child once appellant had discovered the address. The record shows the petitioner-
appellee testified he was the one who retrieved the mail and he was aware of only one
letter from appellant to mother.
{¶18} Both mother and appellee testified they would have accepted and allowed
the child to read any letters appellant had sent him.
{¶19} Appellant concludes his consent to the adoption was required because his
inability to have more than de minimis contact with the child was justified because of
mother’s interference with his attempts to reach the child.
Stark County, Case No. 2011-CA-00062 6
{¶20} The trial court, as the trier of fact here, determines the weight and
credibility of the evidence. Seasons Coal Company, Inc. v. City of Cleveland (1984), 10
Ohio St.3d 77, 461 N.E.2d 1273. We may not substitute our judgment for that of the trier
of fact. Pons v. Ohio State Medical Board (1993), 66 Ohio St.3d 619, 614 N.E.2d 748..
Here, the trial court believed the testimony of mother and appellee that appellant did not
send letters to the child during the one year period prior to the filing of the adoption
petition, and if appellant had, they would have permitted the child to read the letters.
From this the trial court could conclude appellant had failed to maintain more than de
minimus contact with the child for a period of at least one year immediately preceding
the filing of the petition, and such failure was unjustified.
{¶21} The first assignment of error is overruled.
II
{¶22} In his second assignment of error, appellant argues the trial court erred
as a matter of law in finding he had failed to provide for the maintenance and support of
the child for a period of at least one year immediately preceding the filing of the
adoption petition. Because R.C. 3107.07(A) is written in the disjunctive, either a failure
to communicate or a failure to support during the one-year time period is sufficient to
obviate the need for a parent's consent. In re: Adoption of McDermitt (1980), 63 Ohio
St.2d 301, 304, 408 N.E.2d 680.
{¶23} Because we find the trial court did not err in finding appellant had failed
without justification to communicate with the child,I, supra., we find this issue is moot,
and accordingly, we overrule it.
Stark County, Case No. 2011-CA-00062 7
III
{¶24} In his third assignment of error, appellant challenges the court’s finding it
was in the best interest of the child to change his surname to that of the step-father.
{¶25} Appellant has conceded if we find the court was correct in finding his
consent to the adoption was not required, then this assignment of error is moot. We
agree.
{¶26} The third assignment of error is overruled as moot.
{¶27} For the foregoing reasons, the judgment of the Court of Common Pleas,
Probate Division, of Stark County, Ohio, is affirmed.
By Gwin, P.J.,
Wise, J., and
Edwards, J., concur
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. JOHN W. WISE
_________________________________
HON. JULIE A. EDWARDS
WSG:clw 0714
[Cite as In re Adoption of Z.D.K., 2011-Ohio-4079.]
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
IN THE MATTEROF
THE ADOPTION OF: Z.D. K.
IN THE MATTER OF:
THE NAME CHANGE OF Z.D.K. :
:
:
:
:
: JUDGMENT ENTRY
:
:
:
: CASE NO. 2011-CA-00062
For the reasons stated in our accompanying Memorandum-Opinion, the judgment of
the Court of Common Pleas, Probate Division, of Stark County, Ohio, is affirmed. Costs
to appellant.
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. JOHN W. WISE
_________________________________
HON. JULIE A. EDWARDS