[Cite as In re T.F.H., 2015-Ohio-291.]


                                       COURT OF APPEALS
                                  TUSCARAWAS COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT




IN THE MATTER OF:                          :       JUDGES:
                                           :       Hon. William B. Hoffman, P.J.
THE ADOPTION OF                            :       Hon. Sheila G. Farmer, J.
                                           :       Hon. John W. Wise, J.
T.F.H. and J.L.H.                          :
                                           :       Case No. 2014 AP 10 0040
                                           :
                                           :       OPINION




CHARACTER OF PROCEEDING:                           Appeal from the Court of Common
                                                   Pleas, Probate Division, Case Nos.
                                                   14AD02914 and 14AD02915



JUDGMENT:                                          Affirmed




DATE OF JUDGMENT:                                  January 26, 2015




APPEARANCES:

For Plaintiffs-Appellants                          For Defendant-Appellee

DAVID K. SCHAFFNER                                 MICHAEL C. JOHNSON
132 Fair Avenue, NW                                117 South Broadway
New Philadelphia, OH 44663                         New Philadelphia, OH 44663
Tuscarawas County, Case No. 2014 AP 10 0040                                           2

Farmer, J.

       {¶1}   Cassandra Grove and appellee, Ronald Hampton, Jr., are the parents of

two children, J.L.H. born October 8, 2003 and T.F.H. born April 28, 2005. Following

dependency/neglect cases in 2005 (Case Nos. 2004JN00268 and 2005JN00317), the

juvenile court placed the children with appellee's mother and stepfather, Toni and

James Hafer, appellants herein.        Immediately thereafter, appellants returned the

children to their parents without a court order to do so.

       {¶2}   In early 2011, Ms. Grove and appellee separated and the children were

returned to appellants.

       {¶3}   On March 14, 2014, appellee filed a complaint for visitation (Case No.

2014VI00064). On April 10, 2014, appellants filed petitions for adoption, the underlying

cases herein. Appellee contested the adoptions. A hearing was held on August 22,

2014. By judgment entry filed September 10, 2014, the trial court determined appellee's

consent for the adoptions was necessary, and dismissed the petitions.

       {¶4}   Appellants filed an appeal and this matter is now before this court for

consideration. Assignment of error is as follows:

                                              I

       {¶5}   "THE COURT ERRED IN CONCLUDING THAT THE CONSENT OF

BIOLOGICAL PARENT RONALD HAMPTON, JR. WAS NECESSARY WHEN HE

FAILED WITHOUT JUSTIFIABLE CAUSE TO PROVIDE MORE THAN DE MINIMUS

CONTACT WITH THE CHILDREN FOR A PERIOD OF ONE YEAR IMMEDIATELY

PRECEDING THE FILING OF THE ADOPTION PETITION."
Tuscarawas County, Case No. 2014 AP 10 0040                                                 3


                                                I

       {¶6}   Appellants claim the trial court erred in finding appellee's consent for the

adoptions was necessary because there was overwhelming evidence of his failure to

communicate or even make a significant attempt to communicate with his children for

the one year period preceding the filing of the petitions. We disagree.

       {¶7}   In In re Adoption of Holcomb, 18 Ohio St. 3d 361 (1985), the Supreme

Court of Ohio held the following at syllabus:



              1. R.C. 3107.07(A) authorizes the adoption of a minor child without

       the consent of a parent who has failed without justifiable cause to

       communicate with that child for a period of at least one year immediately

       preceding the filing of the adoption petition.

              2. Pursuant to the explicit language of R.C. 3107.07(A), failure by a

       parent to communicate with his or her child is sufficient to authorize

       adoption without that parent's consent only if there is a complete absence

       of communication for the statutorily defined one-year period.

              3. Significant interference by a custodial parent with communication

       between    the   non-custodial    parent     and   the   child,   or   significant

       discouragement of such communication, is required to establish justifiable

       cause for the non-custodial parent's failure to communicate with the child.

       The question of whether justifiable cause exists in a particular case is a

       factual determination for the probate court and will not be disturbed upon
Tuscarawas County, Case No. 2014 AP 10 0040                                              4


       appeal unless such determination is unsupported by clear and convincing

       evidence.

                4. 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.***



       {¶8}     Clear and convincing evidence is that evidence "which will provide in the

mind of the trier of facts a firm belief or conviction as to the facts sought to be

established."    Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the

syllabus. We note the weight to be given to the evidence and the credibility of the

witnesses are issues for the trier of fact. State v. Jamison, 49 Ohio St.3d 182 (1990).

The trier of fact "has the best opportunity to view the demeanor, attitude, and credibility

of each witness, something that does not translate well on the written page." Davis v.

Flickinger, 77 Ohio St.3d 415, 418, 1997-Ohio-260.

       {¶9}     In its judgment entry filed September 10, 2014, the trial court considered

the facts and stated the following:



                Mr. Hampton is the son of Toni Hafer and the stepson of James

       Hafer. The relationship between these parties is very acrimonious. The

       original basis for this was not clearly presented through the evidence, but

       does appear to be centered originally around the neglect of the children.
Tuscarawas County, Case No. 2014 AP 10 0040                                        5


            There is no court order which specifically prevents Mr. Hampton

     from seeing or communicating with his children. He alleges that since

     2011, he has been contacting the Hafers and trying to arrange to visit [J.]

     and [T.]. He further alleges that the Hafers have repeatedly told him that

     he could not see them and that any gifts, letters or cards that he might

     send would not be given to the children and would be destroyed.

            In the year preceding the filing of this adoption petition, Mr.

     Hampton alleges that he called his mother on March 20, 25, and 31, 2013

     in an attempt to arrange visitation with his children. His phone records

     verify that these calls were made.

            The actual content of his calls to his mother are in dispute. Mr.

     Hampton alleges that he simply continued to ask to see his children. Mr.

     and Mrs. Hafer allege that the calls from Mr. Hampton were of a harassing

     nature, filled with insults and vulgarities directed at the Hafers.

            The Court is sure that the content of these calls was somewhere in

     between both extremes. The Court is also sure that both Mrs. Hafer and

     her son behaved very immaturely and both engaged in belligerent

     behavior directed toward each other with such behavior having very little

     to do with visitation.       It is clear that in whatever fashion they

     communicated, Mr. Hampton continued to ask to see his children and Mrs.

     Hafer would not let him do so.
Tuscarawas County, Case No. 2014 AP 10 0040                                                6


       {¶10} The acrimony pointed out by the trial court was intense. The mother of the

children testified she told appellee that after the children were taken back into custody

by appellants in 2011, Mrs. Hafer told her "anything sent to their home [gifts], would be

thrown in the trash." T. at 114. This testimony gives some credence to the lack of a

relationship between appellee and appellants.

       {¶11} Appellee testified he called appellants' residence several times and his

mother told him "don't ever call me again, and hung up," and also told him he was dead

to her. T. at 78-80, 83-84, 104, 105. Appellee presented telephone records of several

calls he made to appellants in 2013. Respondent's Exhibits 1- 6. Appellee's live-in

girlfriend, Mandy Harbold, testified to being present during some of the calls. T. at 67,

69, 72. Appellee never went to the residence in fear he would be arrested. T. at 79,

108.

       {¶12} Appellants agree appellee called the residence several times, but testified

when he called, he was accusatory and hateful. T. at 10, 40.

       {¶13} It is noteworthy that appellants did not file their petitions for adoption until

after appellee had filed for visitation. The record illustrates the parties did not seek

court intervention when appellants returned the children to the parents in 2005 (in

violation of a court order) and when the parents returned the children to appellants in

2011 until the request for visitation was made three years later in 2014. T. at 4-5, 47,

78, 85.

       {¶14} We concur with the trial court's analysis that appellants, specifically Mrs.

Hafer, hindered the visitation that appellee was entitled to and also created a hostile
Tuscarawas County, Case No. 2014 AP 10 0040                                          7


environment for him to seek visitation. Appellee attempted contact, but was thwarted by

his own mother.

      {¶15} Upon review, we find sufficient clear and convincing evidence to support

the trial court's decision on justifiable cause and that appellee's consent to the

adoptions was necessary.

      {¶16} The sole assignment of error is denied.

      {¶17} The judgment of the Court of Common Pleas of Tuscarawas County,

Ohio, Probate Division is hereby affirmed.

By Farmer, J.

Hoffman, P.J. and

Wise, J. concur.




SGF/sg 109
