In re K.M.

[Cite as In re K.M., 2012-Ohio-6266.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
IN RE: JUDGES:
Hon. William B. Hoffman, P.J.
K.M. Hon. Sheila G. Farmer, J.
Hon. Julie A. Edwards, J.
Case No. 2012CA00194
OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court of
Common Pleas, Probate Division Case No.
214375
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: December 31, 2012
APPEARANCES:
For Appellant - Father For Appellee - Mother
JEFFREY JAKMIDES EDGAR M. MOORE, JR.
325 East Main Street 4940 Munson Street
Alliance, Ohio 44601 P.O. Box 35426
Canton, Ohio 44735
For Appellee –
Prospective Adoptive Parents
BARBARA K. ROMAN
JENNIFER R. SINGLETON
Meyers, Roman, Friedberg & Lewis
28601 Chagrin Boulevard, Suite 500
Cleveland, Ohio 44122
For Loving Choice
JOAN SELBY
1428 Market Ave N # B
Canton, Ohio 44714
Stark County, Case No. 2012CA00194 2
Hoffman, P.J.
{¶1} Appellant Ricardo Saucedo (“Father”) appeals the October 9, 2012
Judgment Entry entered by the Stark County Court of Common Pleas, Probate Division,
which found his consent was not required for the adoption of his minor child, KM (DOB
12/1/11). Appellee is Cassie Ruiz (“Mother”).
STATEMENT OF THE FACTS AND CASE
{¶2} Father and Mother are the biological parents of KM. KM is Father’s first
child, and Mother’s third child. The parties are not, and have never been, married. The
parties were dating at the time Mother became pregnant, but were not living together.
Father was still in high school at the time, but also worked several jobs. Father lived
with Patricia Lalli, his mother, at the time. He assisted Lalli with expenses when he was
able.
{¶3} Shortly after learning she was pregnant with KM, Mother was evicted from
her residence and she and her daughter moved in with Father and Lalli. Mother’s son
lived in a shelter with the children’s maternal grandmother. Mother and her daughter
stayed with Father and Lalli for a brief period of time (the testimony revealed Mother
stayed no longer than a month). Mother did not pay rent to Lalli. Mother paid for food
for herself and her daughter with food stamps. Mother was unemployed during this
period. She did not receive child support from the father of her two other children.
There was no evidence establishing Father contributed to the household while Mother
was at the Lalli residence although, as mentioned supra, Father occasionally gave Lalli
some monies.
Stark County, Case No. 2012CA00194 3
{¶4} After living briefly with Father and Lalli, Mother moved no less than six
times in the months prior to KM’s birth. Mother lived with the grandmother of her
daughter and son, with several different friends, with the paternal grandfather of her
daughter and son, in a tent in her sister’s backyard, and in a homeless shelter.
{¶5} During the pregnancy, Father contacted Mother via cell phone, Facebook,
and conversations with Mother’s family. Father visited Mother while she was staying
with one of her friends. Father registered with the Putative Father Registry on
September 20, 2011. However, Father did not provide or offer Mother any financial
support or assistance in any manner during the pregnancy. Father claimed Mother
refused to speak with him, and he made offers of assistance to Mother’s mother and
sister. Father did post Facebook messages to Mother during her pregnancy. Those
posts did not offer any assistance.
{¶6} Mother planned to place KM for adoption once the baby was born. Mother
posted her plan on Facebook. Father discovered her intentions through discussions with
family and friends. Mother gave birth to KM on December 1, 2011. Mother refused to
allow Father to see KM. Father was 20 years old at the time of KM’s birth, Mother was
22 years old. Mother surrendered custody of KM to Community Services of Stark
County on December 5, 2011.
{¶7} On March 23, 2012, Kraig M. Slutz and Christina M. Martini-Slutz filed a
Petition for Adoption. Mother signed a Consent to Adoption. A search of the Ohio
Putative Father Registry was conducted pursuant to R.C. 3107.063, and revealed
Father had registered as a Putative Father. The Petition for Adoption indicated Father’s
Stark County, Case No. 2012CA00194 4
consent was not required. On May 4, 2012, the Child Support Enforcement Agency
determined within 99.99% accuracy Father was the biological father of KM.
{¶8} The trial court scheduled a hearing on July 23, 2012. At the time of the
hearing, Father worked full-time as a process operator at Biery Cheese, and earned
approximately $500.00/week.
{¶9} Via Judgment Entry filed October 9, 2012, the trial court found Father
willfully abandoned Mother during the pregnancy; therefore, his consent was not
required pursuant to R.C. 3107.07(B)(2)(c).
{¶10} It is from this judgment entry Father appeals, raising as his sole
assignment of error:
{¶11} “I. THE TRIAL COURT’S FINDING THAT MR. SAUCEDO WILLFULLY
ABANDONED MS. RUIZ DURING THE PREGNANCY AND THAT HIS CONSENT
WAS THEREFORE UNNECESSARY FOR THE ADOPTION WAS AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE.”
I
{¶12} A putative father's consent is not necessary if he has willfully abandoned
the mother of the minor during her pregnancy and up to the time of her surrender of the
minor. R.C. 3107.07(B)(2)(c). Appellee must demonstrate by clear and convincing
evidence Father willfully abandoned Mother. In re Adoption of Hart (1989), 62 Ohio
App.3d 544, 552, 577 N.E.2d 77; In re Adoption of Suvak, Allen App. No. 1-03-51,
2004-Ohio-536, at ¶ 7.
{¶13} Whether such an allegation has been proven by clear and convincing
evidence is a determination for the probate court and will not be disturbed on appeal
Stark County, Case No. 2012CA00194 5
unless such determination is against the manifest weight of the evidence. In re Hart,
supra; see, also, In re Adoption of Vest (Mar. 13, 2001), Franklin App. No. 00AP-1150.
Judgments supported by some competent, credible evidence going to all the essential
elements of the case will not be reversed as being against the manifest weight of the
evidence. C.E. Morris Co. v. Foley Constr. Co. (1978), 54 Ohio St.2d 279, 281, 376
N.E.2d 578. The weight to be given the evidence and the credibility of the witnesses are
primarily for the trier of fact. State v. DeHass (1967), 10 Ohio St.2d 230, 227 N.E.2d
212, paragraph one of the syllabus.
{¶14} We find the trial court’s determination Father willfully abandoned Mother
during her pregnancy was not against the manifest weight of the evidence. Father did
not offer or provide financial support to Mother. Father did not offer assistance with
food, vitamins, clothing, expenses or shelter. Father never transported Mother to her
doctor’s appointments. Father testified he made offers of assistance to Mother through
her mother and sister. The trial court did not find his testimony credible. The evidence
revealed Father was able to and did contact Mother either by cell phone or social media
throughout the pregnancy. Despite having contact with Mother, Father did not make
any offers of assistance or support.
{¶15} Father’s sole assignment of error is overruled.
Stark County, Case No. 2012CA00194 6
{¶16} The judgment of the Stark County Court of Common Pleas, Probate
Division, is affirmed.
By: Hoffman, P.J.
Farmer, J. and
Edwards, J. concur
s/ William B. Hoffman _________________
HON. WILLIAM B. HOFFMAN
s/ Sheila G. Farmer __________________
HON. SHEILA G. FARMER
s/ Julie A. Edwards___________________
HON. JULIE A. EDWARDS
Stark County, Case No. 2012CA00194 7
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
IN RE: :
:
K.M. :
:
: JUDGMENT ENTRY
:
:
: Case No. 2012CA00194
For the reasons stated in our accompanying Opinion, the judgment of the Stark
County Court of Common Pleas, Probate Division, is affirmed. Costs to Appellant.
s/ William B. Hoffman _________________
HON. WILLIAM B. HOFFMAN
s/ Sheila G. Farmer __________________
HON. SHEILA G. FARMER
s/ Julie A. Edwards___________________
HON. JULIE A. EDWARDS