[Cite as In re M.G.B.-E., 2019-Ohio-753.]



                                     IN THE COURT OF APPEALS

                           TWELFTH APPELLATE DISTRICT OF OHIO

                                            CLINTON COUNTY




 IN THE MATTER OF THE                                   :          CASE NO. CA2018-10-016
 ADOPTION OF:
                                                        :                   OPINION
                      M.G.B.-E.                                              3/4/2019
                                                        :




             APPEAL FROM CLINTON COUNTY COURT OF COMMON PLEAS
                              PROBATE DIVISION
                              Case No. 20155012



The Law Offices of Jason A. Showen, LLC, Jason A. Showen, 324 East Warren Street,
Lebanon, Ohio 45036 for appellee

Rion, Rion & Rion, L.P.A., Inc., Bradley D. Anderson, Kevin M. Darnell, 130 West Second
Street, Suite 2150, Dayton, Ohio 45402 for appellant



        M. POWELL, J.

        {¶ 1} Appellant, the biological father of M.G.B.-E., appeals a decision of the Clinton

County Court of Common Pleas, Probate Division, finding that his consent was not required

for the adoption of his daughter by her stepfather.

        {¶ 2} When Father and Mother divorced in November 2004, Mother was awarded

custody of the couple's two children and Father was awarded visitation.1 Mother stopped




1. This case initially involved stepfather's petitions to adopt both children. The couple's oldest child reached
the age of 18 during the course of this case and the case now only involves the petition to adopt M.G.B.-E.
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allowing visitation and made allegations of abuse against Father and his relatives.

Problems between the parties and legal proceedings regarding visitation continued for

several years.   Ultimately, the domestic relations court issued an order that Father's

parenting time should resume after Father and the children engaged in therapy to help the

transition of the children to spending time again with Father.

       {¶ 3} Counseling had not commenced as of late 2008. Thus, the domestic relations

court dismissed the pending proceedings for want of prosecution and father's visitation was

never resumed. Mother changed the children's last names, moved several times and

remarried. Father, who also remarried, claims that for many years he did not know the

children's whereabouts until a babysitter saw his son at a sporting event in 2014 and he

was then able to determine where the children attended school and lived.

       {¶ 4} Father filed a motion in the domestic relations court on May 14, 2015 to

reestablish parenting time. Four days later, stepfather filed a petition in probate court to

adopt the children and claimed Father's consent was not necessary because Father had

failed, without justifiable cause, to have more than de minimis contact with the children in

the year preceding the petition to adopt.

       {¶ 5} The probate court found that Father's consent was not required for the

adoption and this court affirmed on appeal. In re M.G.B.-E., 12th Dist. Clinton No. CA2016-

06-017, 2016-Ohio-7912. However, the Ohio Supreme court determined that the probate

court had erred in failing to consider the Father's pending parenting proceedings in domestic

relations court and remanded the case for the probate court to consider those proceedings

in determining whether the Father failed without justifiable cause to have contact with his

children. In re M.G.B.-E., 154 Ohio St.3d 17, 2018-Ohio-1787.

       {¶ 6} At a subsequent hearing, the parties disagreed regarding which domestic

relations court case records the probate court should consider on remand. Stepfather

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argued that the court should only consider filings in the domestic relations court which

occurred prior to the date the adoption petition was filed. Father argued that the probate

court should consider all filings in domestic relations court up to the date of the hearing on

remand.

       {¶ 7} On August 30, 2018, the probate court issued a decision in which it

determined that it should only consider domestic relations court filings up to the date of the

original hearing on the adoption petition. The probate court further stated that it had

considered the domestic relations court's filings up to the date of the original hearing on the

adoption petition and had again determined that Father's consent to the adoption was not

required.

       {¶ 8} Father now appeals the probate court's decision on remand and raises the

following three assignments of error for our review:

       {¶ 9} THE TRIAL COURT ERRED BY FAILING TO CONSIDER, CONSISTENT

WITH THE SUPREME COURT'S OPINION, THE FATHER'S ACTIONS IN THE

DOMESTIC RELATIONS COURT TO REESTABLISH PARENTING TIME.

       {¶ 10} THE TRIAL COURT ERRED BY RULING THAT FATHER'S CONSENT WAS

NOT NECESSARY WITHOUT MAKING ANY FINDINGS, OR EVEN ADDRESSING,

WHETHER STEPFATHER PROVED BY CLEAR AND CONVINCING EVIDENCE THAT

FATHER'S LACK OF DE MINIMIS CONTACT WAS WITHOUT JUSTIFIABLE CAUSE.

       {¶ 11} TO THE EXTENT THAT THE TRIAL COURT RULED THAT FATHER'S LACK

OF DE MINIMIS CONTACT WAS WITHOUT JUSTIFIABLE CAUSE, THAT FINDING WAS

AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

       {¶ 12} R.C. 3107.07(A) provides that a parent's consent to the adoption of his child

is not required if the probate court finds that the parent has failed without justifiable cause

to provide more than de minimis contact with the child for at least one year immediately

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preceding the filing of the adoption petition. Even if a parent has completely failed to

communicate with his child during the one-year statutory period, his consent will still be

required if there is justifiable cause for the failure. In re Adoption of Holcomb, 18 Ohio St.3d

361, 367.

       {¶ 13} In his first assignment of error, Father argues that the trial court erred when it

failed to consider filings in the domestic relations court case up to the date of the remand

hearing. As mentioned above, the probate court determined that it would only consider the

filings to the date of the original hearing on the adoption petition.

       {¶ 14} In its decision remanding the case to the probate court to consider the

domestic relations court parenting proceedings, the Ohio Supreme Court held that "strictly

construing R.C. 3107.07(A) in favor of Father requires the probate court to take into account

Father's efforts to reestablish parental rights and responsibilities through the domestic

relations court during the year preceding the filing of the adoption petitions, as well as

Mother's efforts to impede Father's contact with the children." In re M.G.B.-E., 154 Ohio

St.3d 17, 2018-Ohio-1787 at ¶ 40.

       {¶ 15} The supreme court determined that the probate court erred in failing to

consider Father's efforts to enforce his parental rights prior to the filing of stepfather's

petition, as these efforts were relevant. Id. at ¶ 43. The supreme court then discussed the

fact that Father could have done more to protect and nurture his relationship with the

children, but also discussed the fact that Mother has "a history and ongoing pattern of

impeding Father's opportunities to develop and maintain a relationship with the children,

reaching back to the time of the parents' divorce." Id. at ¶ 44.

       {¶ 16} The supreme court also reviewed Mother's history of impeding Father's

parenting time with the children, then discussed the fact that "Mother and Father continue

to actively litigate the question of Father's parenting time." Id. at ¶ 45. The supreme court

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continued by discussing the fact that the probate court had failed to consider the domestic

relations court proceedings or orders despite Father's proffer. Id. The supreme court took

judicial notice of the domestic relations court filings, including the fact that a magistrate has

found Mother in contempt of court for interfering with Father's parenting time and that

Mother had "actively and intentionally interfered with the children's relationship with" Father.

Id.

       {¶ 17} The Ohio Supreme Court further reviewed the fact that the probate court "put

a lot of weight [on] the fact that the father dropped the ball" in the parenting action in 2008.

However, the supreme court determined that Father's "failure to engage a therapist nearly

ten years ago does not, by itself, determine the question of justifiable cause" and that after

learning where the children attended school, Father made efforts to reinsert himself in the

children's lives. Id. at 46. The court concluded that "[f]acing resistance from Mother, as he

has from the outset of their divorce, Father appropriately turned to the domestic relations

court with a motion to reestablish parenting time." The supreme court concluded that the

domestic relations proceedings should be a factor in determining whether Father's consent

to the adoption is required.

       {¶ 18} Some of the domestic relations court filings referred to by the Ohio Supreme

Court postdate the original hearing on the adoption petition. Similarly, this court has

previously held that when considering whether a custodial parent has substantially

interfered with the noncustodial parent's efforts at communication with a child, the probate

court is not restricted to focusing solely on the one-year statutory look-back period

established by R.C. 3107.07(A). In re A.L.S., 12th Dist. Butler No CA2017-09-146, 2018-

Ohio-507, ¶ 23.

       {¶ 19} Given the Ohio Supreme Court's consideration of domestic relations court

events after the original hearing, along with the fact that the probate court should strictly

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construe the statute in favor of protecting the Father's parental rights as a natural parent,

we hold that a probate court is not restricted to considering only evidence arising during the

one year look-back period in its determination of whether a parent's consent to adoption is

required. In so holding, we do not extend the one year look-back period but recognize that

evidence arising either before or after that period may provide relevant context for the

events occurring within the look-back period. We find that the probate court erred in failing

to consider all the relevant evidence in the domestic relations court action as of the time of

the remand hearing. We therefore find merit to Father's first assignment of error.

       {¶ 20} In his second assignment of error, Father argues that the probate court erred

by finding his consent was not necessary without making findings that his lack of

communication with the child was without justifiable cause.

       {¶ 21} As mentioned above, the Ohio Supreme Court remanded the case for the

probate court to consider the domestic relations court findings in determining whether

Father's failure to communicate was without justifiable cause. On remand, the probate court

stated that it had considered the domestic court proceedings to the date of the original

hearing, and then simply stated, "'this [c]ourt still finds that the biological father's consent is

not necessary as no contact or de minimis contact at best by the natural father [D.H.]" [sic].

The probate court then discussed the fact that the father failed to schedule counseling after

the divorce and no action was taken to see his children until the domestic relations court

motion in 2015.

       {¶ 22} The probate court's decision neither mentions nor addresses the issue of

justifiable cause. Nothing in the probate court's decision gives any indication that the

probate court considered the issue of whether Mother had interfered or impeded Father's

attempts to communicate with the children. As mentioned by the Ohio Supreme Court,

Mother has a history and an ongoing pattern of impeding Father's opportunities to have a

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relationship with his children. M.G.B.-E., 2018-Ohio-1787, at ¶ 44. Moreover, the Ohio

Supreme Court specifically stated that "Father's failure to engage a therapist nearly ten

years ago, does not, by itself, determine the question of justifiable cause." Id. at ¶ 46.

         {¶ 23} Although we have already determined the probate court erred in failing to

consider all of the domestic relations court evidence, we further find that the probate court's

decision does not provide an adequate basis for this court to determine whether the court

followed the remand order that it should consider and weigh the evidence and determine

the issue of justifiable cause. We, therefore, find merit to Father's second assignment of

error.

         {¶ 24} In conclusion, we find the trial court erred in failing to consider all of the

domestic relations court evidence and failed to issue a decision that reflects consideration

of the issue of justifiable cause for Father's failure to communicate. Accordingly, Father's

first and second assignments of error are sustained. As the case must be remanded for

the probate court to consider additional evidence, Father's third assignment of error, which

involves consideration of the manifest weight of the evidence is moot. The judgment of the

probate court is reversed and remanded.

         {¶ 25} Judgment reversed and remanded.


         HENDRICKSON, P.J. and S. POWELL, J., concur.




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