[Cite as In re Adoption of D.M.E., 2014-Ohio-3370.]


                                       COURT OF APPEALS
                                   MUSKINGUM COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

IN RE:                                                   JUDGES:
                                                         Hon. William B. Hoffman, P.J.
ADOPTION OF D.M.E.                                       Hon. John W. Wise, J.
                                                         Hon. Craig R. Baldwin, J.

                                                         Case No. CT2014-0019


                                                         OPINION




CHARACTER OF PROCEEDING:                              Appeal from the Muskingum County Court
                                                      of Common Pleas, Probate Division, Case
                                                      No. 20134033


JUDGMENT:                                             Affirmed


DATE OF JUDGMENT ENTRY:                               July 28, 2014


APPEARANCES:


For Appellee                                          For Appellant


SUSAN J. MONTGOMERY MCDONALD                          JEANETTE M. MOLL
Gottlieb, Johnston, Bean & DalPonte, PLL              Jeanette M. Moll, LLC
320 Main Street                                       PO Box 461
PO Box 190                                            803 B Market Street
Zanesville, Ohio 43702-0190                           Zanesville, Ohio 43701
[Cite as In re Adoption of D.M.E., 2014-Ohio-3370.]


Hoffman, P.J.


        {¶1}    Appellant Denise Eminhizer appeals the March 14, 2014 Entry entered by

the Muskingum County Court of Common Pleas, Probate Division, which dismissed her

Petition for Adoption. Appellee is Tisha Watiker (“Mother”).

                                STATEMENT OF THE FACTS AND CASE

        {¶2}    Mother is the biological mother of D.M.E. (dob 9/14/2007). On April 12,

2011, the Muskingum County Court of Common Pleas, Juvenile Division, granted legal

custody of D.M.E. to Appellant, a family friend.          D.M.E. had been placed in the

temporary custody of Appellant on January 12, 2011, during an open Muskingum

County Children Services case involving Mother.

        {¶3}    Mother was incarcerated for a period of eleven months between May 7,

2012, and February 9, 2013. During her incarceration, Mother did not make any efforts

to seek parenting time with D.M.E.

        {¶4}    On November 13, 2013, Appellant filed a Petition for Adoption of D.M.E.

pursuant to R.C. 3107.05.             Therein, Appellant alleged Mother’s consent was not

required as:

                a. The 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 the filing of the adoption petition or the placement

        of the minor in the home of the petitioner; and

                b. The parent has failed without justifiable cause to provide for the

        maintenance and support of the minor as required by law of judicial

        decree for a period of at least one year immediately preceding the filing of
Muskingum County, Case No. CT2014-0019                                          3


      the adoption petition or the placement of the minor in the home of the

      petitioner.

      {¶5}   The one year period in question is November 13, 2012, to November 13,

2013. The petition further alleged the consent of D.M.E.’s father was not required as the

father was not known and no person had timely registered as putative father of the child

pursuant to R.C. 3107.062.

      {¶6}   On December 11, 2013, Mother, with permission from the trial court, filed

an objection to the petition. The trial court scheduled the matter for hearing on January

16, 2014. Following the presentation of testimony, the parties filed respective findings

of fact and conclusions of law.

      {¶7}   At the hearing, Dick Watiker, Mother’s father, with whom Mother lives,

testified he tried on a number of occasions to arrange for himself and Mother to spend

time with D.M.E. after Mother’s release from prison. Watiker explained he contacted

Appellant on Mother’s behalf because the relationship between Mother and Appellant

was strained at best. Exhibit A contained records for Watiker’s cell phone, which

showed 16 outgoing calls from Watiker’s phone to Appellant’s phone, and 1 incoming

call from Appellant’s phone to Watiker’s phone between November 13, 2012, and

November 13, 2013. Seven pages of Exhibit B revealed a series of text messages sent

from Watiker to Appellant between February 22, 2013, and September 8, 2013.

      {¶8}   Mother testified she filed pro se documents with the juvenile court prior to

November 13, 2013, after she became frustrated when her attempts to see D.M.E.

proved futile.   The juvenile court clerk informed Mother Attorney Susan McDonald
Muskingum County, Case No. CT2014-0019                                            4


remained her attorney. Mother had her first appointment with Attorney McDonald on

October 22, 2013.

        {¶9}   On October 24, 2013, Mother filed a Complaint to Establish Parenting

Time in the Muskingum County Juvenile Court. The complaint was never served on

Appellant per order of the juvenile court, which decided not to proceed on the complaint

until the adoption was heard in February, 2014.

        {¶10} With respect to maintenance and support, the testimony revealed Mother

became employed at Rally’s Restaurant in June, 2013, and immediately advised her

supervisor of her support obligation. Three support payments were made in the year

prior to the filing of the petition on October 9, 2012, October 23, 2013, and November 6,

2013.

        {¶11} Via Entry filed February 20, 2014, the trial court determined, upon

application of the two pronged test set forth in R.C. 3107.07(A) to the facts in the case,

Mother’s consent was necessary. The trial court found Appellant failed to establish by

clear and convincing evidence that either of the two prongs were satisfied.       The trial

court found Appellant “failed to show that [Mother] abandoned her child by failing to

support her child for the one year period in question.”       The trial court also noted

Appellant did establish Mother failed to provide more than de minimis contact with

D.M.E. for the year in question, however, the court found Appellant “failed to show that it

was without justifiable cause.”

        {¶12} Mother subsequently filed a motion to dismiss the petition based upon the

trial court’s findings. Via Entry filed March 14, 2014, the trial court granted Mother’s

motion and dismissed Appellant’s petition for adoption.
Muskingum County, Case No. CT2014-0019                                             5


       {¶13} It is from this entry Appellant appeals, raising as error:

       {¶14} "I. THE MUSKINGUM COUNTY PROBATE COURT COMMITTEED [SIC]

REVERSIBLE ERROR IN FINDING CONSENT NECESSARY WHERE THERE WAS

NOT MORE THAN DE MINIMUS CONTACT IN THE YEAR PRECEEDING [SIC] THE

FILING OF THE PETITION.

       {¶15} "II. THE MUSKINGUM COUNTY PROBATE COURT COMMITTED

REVERSIBLE ERROR IN FINDING CONSENT NECESSARY WHERE THE MOTHER

HAD NOT SUPPORTED THE MINOR CHILD PURSUANT TO JUDICIAL DECREE IN

THE ONE YEAR PRECEEDING [SIC] THE FILING OF THE PETITION."

                                                  I

       {¶16} In her first assignment of error, Appellant contends the trial court erred in

finding Mother’s consent was necessary as Mother did not provide more than de

minimis contact with the child in the year preceding the filing of the petition.

       {¶17} R.C. 3107.07(A) provides:

              Consent to adoption is not required of any of the following:

              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 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. (Emphasis added).
Muskingum County, Case No. CT2014-0019                                             6


       {¶18} Therefore, for Appellant to prevail in this adoption proceeding without

Mother's consent, she must prove by clear and convincing evidence (1) there has been

a failure of communication or support by Mother for the one-year period and (2) the

failure is unjustified.

       {¶19} “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, 368, 481 N.E.2d 613

(1985). See also In re Adoption of Bovett, 33 Ohio St.3d 102, 104, 515 N.E.2d 919

(1987). “No burden is to be placed upon the non-consenting parent to prove that his

failure to communicate was justifiable.” Holcomb at 368. “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. * * * The determination of the probate court should not be

overturned unless it is unsupported by clear and convincing evidence.” Id.

       {¶20} Mother made repeated attempts (albeit indirectly through a third party) to

contact Appellant to arrange visits with the child. Appellant hindered any contact, which

is significant because Appellant must also establish the failure to communicate was

without justifiable cause. “If the natural parent presents evidence showing that his failure

to communicate was not unjustified, the petitioner must prove by clear and convincing

evidence that such failure was not justified.” In re Adoption of Shea, 10th Dist. No. 90–

AP–245, 1990 WL 106468, (July 24, 1990),citing Holcomb, supra.
Muskingum County, Case No. CT2014-0019                                            7

       {¶21} The Holcomb Court further held: “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 appeal unless such determination is

unsupported by clear and convincing evidence.” 18 Ohio St.3d 361, 481 N.E.2d 613,

paragraph three of the syllabus.

       {¶22} The trial court found Appellant met her burden of proving, by clear and

convincing evidence, Mother failed to communicate with the minor child during the

requisite one-year period, but failed to establish there was no justifiable cause for the

failure of communication. We further find the trial court's decision is supported by clear

and convincing evidence establishing Mother attempted to have contact with the minor

child within the one-year period, but her failure was justifiable.

       {¶23} Appellant’s first assignment of error is overruled.

                                                  II

       {¶24} In her second assignment of error, Appellant maintains the trial court erred

in finding Mother’s consent was necessary as Mother had failed to support the minor

child in the one year preceding the filing of the petition.

       {¶25} The relevant inquiry is not whether the parent provided support as would

be expected, “but whether the parent's failure to support * * * is of such magnitude as to

be the equivalent of abandonment.” Gorski v. Myer, 5th Dist. No.2005CA00033, 2005–

Ohio–2604, ¶ 14, citing Celestino v. Schneider, 84 Ohio App.3d 192(6th Dist.1992). The
Muskingum County, Case No. CT2014-0019                                             8


Ohio Supreme Court emphasized that monetary gifts to the child do not qualify as

support because they are not payments as required by law or judicial decree as R.C.

3107.07(A) requires. In re: Adoption of M.B., 131 Ohio St.3d 186, 2012–Ohio–236, 963

N.E.2d 142, ¶ 20. A probate judge has discretion to determine whether the biological

parent provided support as contemplated by R.C. 3107.07(A) “and his or her judgment

should not be tampered with absent an abuse of discretion.” See, Bovett, supra; See

also In re: Adoption of Charles B., 50 Ohio St.3d 88, 552 N.E.2d 884 (1990), paragraph

three of the syllabus (“adoption matters must be decided on a case-by-case basis

through the able exercise of discretion by the trial court”). In re: Adoption of M.B., supra

at ¶ 21.

       {¶26} In In re: Adoption of M.B., the Ohio Supreme Court             addressed the

question of “whether a parent's making a single payment of support or sending a

Christmas card is sufficient support to frustrate R.C. 3107.07(A), or on the other end of

the spectrum, whether a parent's missing one or two payments of support in the year

preceding the filing of an adoption petition negates the need for parental consent to

adoption.” Id. at para. 25. The High Court concluded, “A trial court has discretion to

make these determinations, and in connection with the first step of the analysis, an

appellate court applies an abuse-of-discretion standard when reviewing a probate court

decision regarding whether a financial contribution from a parent constitutes

maintenance and support for purposes of R.C. 3107.07(A).” Id.

       {¶27} Appellant contends although Mother was employed, commencing in June,

2013, she did not pay any child support until October, 2013. Appellant concludes

Mother’s failure to make child support payments while employed was “the legal
Muskingum County, Case No. CT2014-0019                                         9


equivalent of abandonment” yet Mother offered “no justifiable cause beyond an alleged

delay in the withholding order.” Brief of Appellant at 17.

       {¶28} Upon securing employment in June, 2013, Mother immediately advised

her employer of the support obligation and contacted the Child Support Enforcement

Agency. CSEA withheld the child support from Mother’s paycheck commencing on

October 9, 2013. The trial court found Mother’s actions did not constitute a failure to

provide maintenance and support. We find the trial court did not abuse its discretion in

making this determination.

       {¶29} Appellant’s second assignment of error is overruled.

       {¶30} The judgment of the Muskingum County Court of Common Pleas is

affirmed.

By: Hoffman, P.J.

Wise, J. and

Baldwin, J. concur
