In re Adoption of E.G.C.

[Cite as In re Adoption of E.G.C., 2021-Ohio-4178.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
CLINTON COUNTY
IN RE: :
THE ADOPTION OF E.G.C. : CASE NO. CA2021-07-022
: OPINION
11/29/2021
:
:
:
APPEAL FROM CLINTON COUNTY COURT OF COMMON PLEAS
PROBATE DIVISION
Case No. 20195020
Andrew T. McCoy, Clinton County Prosecuting Attorney, for appellee.
Peterson Law Office, and Shaun D. Peterson, for appellant.
Smith, Meier & Webb, LPA, and Andrew P. Meier and Chase T. Kirby, for appellee.
PIPER, P.J.
{¶1} Appellant, T.C. ("Stepfather"), appeals a decision of the Clinton County Court
of Common Pleas, Probate Division, dismissing his petition to adopt his stepchild, E.G.C.1
1. Pursuant to Loc.R. 6(a), we sua sponte remove this case from the accelerated calendar for purposes of
issuing this written decision.
Clinton CA2021-07-022
{¶2} Our court has previously considered this case after the probate court originally
found that consent to adopt was not needed from E.G.C.'s biological father ("Father")
because he had only de minimis contact with the child for over a year. In re E.G.C., 12th
Dist. Clinton No. CA2020-09-014, 2021-Ohio-276, ¶ 1. However, we remanded the issue
to the probate court with instructions for the court to determine pursuant to R.C. 3107.07(A)
whether Father's lack of contact with the child was justifiable.
{¶3} The factual background of the case remains the same as in the first appeal.
The child was born in 2012 and lived with her mother ("Mother") and Father, who as a
couple did not marry. When the child was approximately 18 months old, Mother moved out
of the residence she and Father shared. Thereafter, Father maintained visitation with the
child, including alternating weekends and some weekdays. Father married S.T. ("Wife") in
April 2016, which marriage lasted six months.
{¶4} Father saw the child for the last time in 2017. From that point forward, Father
did not send any letters, cards, or presents to the child, and Father did not visit her. The
child's paternal grandparents spoke to the child through Skype or FaceTime on a few
occasions, and Father may have been present in the background but there was no
communication between Father and the child during those exchanges. At some point
Father moved to Pennsylvania where he remained for at least a year before moving back
to Clinton County.
{¶5} At some point in 2017, Mother became uncomfortable with allowing Father to
see the child unless supervised because Wife told Mother that Father had engaged in
inappropriate conduct with the child such as taking showers naked with her and Father
watching "daddy/daughter porn."
{¶6} Mother married Stepfather in June 2018. Approximately a year later,
Stepfather filed a stepparent adoption petition in the probate court. Stepfather alleged that
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Father's consent was not required because Father had not seen the child in more than one
year. The probate court held a hearing to determine whether Father's consent was
necessary for the adoption. The probate court subsequently issued an entry deciding that
Father's consent to Stepfather's adoption of the child was not necessary because Father
had only de minimis contact with the child in the year prior to the filing of the petition.
However, the probate court did not determine whether the lack of contact was justifiable as
required by statute. As such, this court remanded the matter for the probate court to
address whether Father's lack of contact with the child was justifiable.
{¶7} During the pendency of the proceedings on remand, Clinton County Children
Services filed an amended report regarding Stepfather's adoption petition. Originally, the
agency recommended approval of Stepfather as an adoptive parent. However, the agency
filed an amendment to the report noting that it could no longer recommend approval of
Stepfather because he had previously been convicted of a drug-related felony. Upon
receiving the amended report, the probate court summarily dismissed Stepfather's petition
without a hearing and without first complying with this court's remand instructions to
determine if Father's lack of contact had been justifiable.
{¶8} Stepfather now appeals the probate court's decision, raising three
assignments of error. However, we address only Stepfather's first assignment of error, as
we find it dispositive of the appeal.2
{¶9} Assignment of Error No. 1:
{¶10} THE TRIAL COURT ERRED IN DISMISSING THE CASE WITHOUT A
HEARING BASED UPON THE CORRECTED JOB AND FAMILY SERVICES'
ASSESSOR'S CORRECTED REPORT.
2. Given our decision on Stepfather's first assignment of error, his remaining two assignments are not ripe
for review.
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{¶11} In his first assignment of error, Stepfather argues that the probate court erred
in dismissing his adoption petition without a hearing. As we stated in the previous appeal,
the law in Ohio is clear regarding the proper statutory steps that must be followed when
adoption of a child is at issue.
{¶12} The right of natural parents to the care and custody of their child is one of the
most precious and fundamental in law. In re Adoption of C.M.F., 12th Dist. Butler Nos.
CA2013-06-090 and CA2013-06-091, 2013-Ohio-4719, ¶ 8. An adoption permanently
terminates those parental rights of a natural parent. In re L.C.W., 12th Dist. Butler No.
CA2014-08-169, 2015-Ohio-61, ¶ 10. Thus, Ohio law requires parental consent to an
adoption unless a specific statutory exception exists. In re Adoption of C.E.S., 12th Dist.
Butler Nos. CA2020-07-069 thru CA2020-07-071, 2020-Ohio-6902, ¶ 19. "[A]ny exception
to the requirement of parental consent to adoption must be strictly construed so as to protect
the right of natural parents to raise and nurture their children." In re B.N.S., 12th Dist. Butler
Nos. CA2020-03-034 thru CA2020-03-036, 2020-Ohio-4413, ¶ 27.
{¶13} As determined in the previous appeal, the relevant exception is based upon
R.C. 3107.07(A), wherein consent to an adoption is not required upon a finding by clear
and convincing evidence that the biological "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 either the filing of the adoption petition or the placement of the minor
in the home of the petitioner."
{¶14} Ohio law is clear that in order to find R.C. 3107.07(A) applicable and that
consent is not required, the probate court must engage in a two-step analysis. In re J.F.M.,
12th Dist. Butler No. CA2016-03-044, 2016-Ohio-4823, ¶ 11. As applicable to the case sub
judice, the probate court must first determine whether the parent failed to engage in more
than de minimis contact with the minor. Id. Second, the probate court must determine
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whether the parent had "justifiable cause" for the failure to contact the minor. Id.{¶15} The petitioner bears the burden of proving each element by clear and
convincing evidence. In re Adoption of O.J.B., 12th Dist. Warren No. CA2020-01-004,
2020-Ohio-4184, ¶ 10. After the petitioner has established the parent's lack of contact or
support, the parent bears the burden of going forward with evidence to show a facially
justifiable cause for the failure, although, the burden of proof remains on the petitioner. In
re Adoption of J.F.M., 12th Dist. Butler No. CA2016-03-044, 2016-Ohio-4823, ¶ 11.
{¶16} Should a probate court determine that a biological parent's lack of contact was
not justifiable, that parent's consent to the adoption is no longer necessary because R.C.
3107.07(A) applies and consent is not required. At that point, the probate court's statutory
duty is to consider whether adoption by the petitioner is within the child's best interests. In
re Adoption of A.L.S., 12th Dist. Butler No. CA2017-09-146, 2018-Ohio-507. According to
the statutes that govern probate courts in the adoption proceeding, the court's determination
regarding the best interest of a child in a contested adoption proceeding must be made after
consideration of the factors provided in R.C. 3107.161. In re Adoption of A.M.L., 12th Dist.
Warren No. CA2015-01-004, 2015-Ohio-2224, ¶ 9. According to that provision,
the court shall consider all relevant factors, which include, but
are not limited to, all of the following:
(1) The least detrimental available alternative for safeguarding
the child's growth and development;
(2) The age and health of the child at the time the best interest
determination is made and, if applicable, at the time the child
was removed from the home;
(3) The wishes of the child in any case in which the child's age
and maturity makes this feasible;
(4) The duration of the separation of the child from a parent;
(5) Whether the child will be able to enter into a more stable
and permanent family relationship, taking into account the
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conditions of the child's current placement, the likelihood of
future placements, and the results of prior placements;
(6) The likelihood of safe reunification with a parent within a
reasonable period of time;
(7) The importance of providing permanency, stability, and
continuity of relationships for the child;
(8) The child's interaction and interrelationship with the child's
parents, siblings, and any other person who may significantly
affect the child's best interest;
(9) The child's adjustment to the child's current home, school,
and community;
(10) The mental and physical health of all persons involved in
the situation;
(11) Whether any person involved in the situation has been
convicted of, pleaded guilty to, or accused of any criminal
offense involving any act that resulted in a child being abused
or neglected [or other specific crimes].
{¶17} The person contesting an adoption petition has the burden of providing
"material evidence needed to determine what is in the best interest of the child" and the
burden of establishing "that the child's current placement is not the least detrimental
available alternative." R.C. 3107.161(C). For these purposes, "least detrimental available
alternative" means "the alternative that would have the least long-term negative impact on
the child." R.C. 3107.161(A). However, the petitioner retains the burden of proving that
adoption is in the best interest of the child.
{¶18} The record indicates that the probate court made an initial determination
pursuant to the statute that Father had only de minimis contact with the child for the year
prior to Stepfather's adoption petition. The probate court was then required to determine
whether Father's lack of contact was justifiable. If not justifiable, Father's consent is not
required, and the probate court must determine if Stepfather's adoption of the child is in her
best interests.
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{¶19} Instead of following the proper statutory steps outlined above, the probate
court dismissed Stepfather's petition after the child services agency modified its
recommendation. However, an agency's recommendation does not relieve the probate
court of its statutory duty to perform the process delineated above, nor does it undermine
the probate court's discretion in the adoption matter.3 Thus, on remand, the probate court
shall first determine whether Father's de minimis contact with the child was justifiable. The
probate court shall then take whatever additional steps are required by statute to rule upon
Stepfather's adoption petition. Stepfather's first assignment of error is, therefore, sustained.
{¶20} Judgment reversed and the matter is remanded for further proceedings.
S. POWELL and BYRNE, JJ., concur.
3. The agency's opinion on suitability issued pursuant to R.C. 3107.031 is not determinative of a judicial
judgment as to the child's best interests.
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