[Cite as In re L.R.O., 2020-Ohio-3200.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                      DARKE COUNTY

                                                :
 IN THE MATTER OF: L.R.O.                       :   Appellate Case No. 2019-CA-19
                                                :   Trial Court Case No. 18-5-11
                                                :
 and                                            :
                                                :
                                                :
 IN THE MATTER OF: C.A.O.                       :   Appellate Case No. 2019-CA-20
                                                :   Trial Court Case No. 18-5-12
                                                :
                                                    (Appeal from Probate Court)


                                          ...........

                                          OPINION

                              Rendered on the 5th day of June, 2020.

                                          ...........

SCOTT A. KELLY, Atty. Reg. No. 0082280, 118 North Main Avenue, Sidney, Ohio 45365
    Attorney for Appellants

DAVID A. ROHRER, Atty. Reg. No. 0042428, 537 South Broadway, Suite 203, Greenville,
Ohio 45331
      Attorney for Appellee

                                          .............

TUCKER, P.J.
                                                                                      -2-


        {¶ 1} Appellants-Petitioners, the maternal grandparents of minor children L.R.O.

and C.A.O. (“Grandparents”), appeal from a judgment of the Darke County Court of

Common Pleas, Probate Division, which found that Mother’s consent was required in their

action to adopt the minor children. For the reasons that follow, the judgment of the

probate court will be reversed, and this cause will be remanded for further proceedings

consistent with this opinion.



                                I.   Facts and Procedural History

        {¶ 2} Mother is the biological mother C.A.O. (born in December 2007) and L.R.O.

(born in March 2011).      In August 2012, in an action in Kenton County, Kentucky,

Grandparents 1 were awarded temporary custody of the minor children.         They were

subsequently awarded permanent custody of the children by the same court in February

2013.

        {¶ 3} On May 10, 2018, Grandparents filed petitions for the adoption of the two

children. In the petitions, they alleged that Mother’s consent to the adoption was not

required because she had failed, without justifiable cause, to provide support for or to

engage in more than de minimis contact with the children during the relevant statutory

time period. Mother entered an appearance in the action and contested the allegations

in the petitions.

        {¶ 4} The two petitions were consolidated for a hearing conducted on June 27,

2019.    Following the hearing, the probate court concluded Mother’s consent was



1
 Grandparents are the children’s maternal grandmother and her husband, who have
been married since 2006.
                                                                                          -3-


required. Grandparents filed a timely appeal.



                                   II.    Contact with Children

          {¶ 5} The first assignment of error asserted by Grandparents states:

          THE TRIAL COURT’S HOLDING THAT THE APPELLANTS FAILED TO

          PROVE LACK OF JUSTIFIABLE CAUSE FOR THE FAILURE OF

          RESPONDENT TO HAVE MORE THAN DE MINIMIS CONTACT WITH

          THE MINOR CHILDREN FOR THE ONE-YEAR PERIOD PRIOR TO THE

          FILING OF THE PETITION FOR ADOPTION IS AGAINST THE MANIFEST

          WEIGHT OF THE EVIDENCE.

          {¶ 6} Grandparents contend the evidence did not support a finding that Mother had

justifiable cause for her failure to have more than de minimis contact with the children

during the year prior to the filing of the petitions for adoption.

          {¶ 7} Because adoption acts to permanently terminate parental rights, the written

consent of a minor child's parents is ordinarily required in order to proceed with the

adoption action. In re Adoption of A.L.S., 2018-Ohio-507, 106 N.E.3d 69, ¶ 13 (12th

Dist.).     However, R.C. 3107.07 provides exceptions to the consent requirement.

Specifically, R.C. 3107.07(A) provides that consent is not required of a parent “when it is

alleged in the adoption petition and the court * * * 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.”
                                                                                              -4-


The statute is written in the disjunctive; thus, the failure without justifiable cause to provide

either more than de minimis contact or maintenance and support for the one-year time

period is sufficient to obviate the need for a parent's consent. In re Crandall, 1st Dist.

Hamilton No. C-060770, 2007-Ohio-855, ¶ 10.

       {¶ 8} The party petitioning for adoption has the burden of proving, by clear and

convincing evidence, that either exception applies. In re R.L.H., 2d Dist. Montgomery

No. 25734, 2013-Ohio-3462, ¶ 9. “Clear and convincing evidence is that measure or

degree of proof which is more than a mere ‘preponderance of the evidence,’ but not to

the extent of such certainty as is required ‘beyond a reasonable doubt’ in criminal cases,

and which will produce 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, 120 N.E.2d 118

(1954), paragraph three of the syllabus.

       {¶ 9} The Supreme Court of Ohio has set forth a two-part analysis for probate

courts to employ when applying R.C. 3107.07(A). In re Adoption of M.B., 131 Ohio St.3d

186, 2012-Ohio-236, 963 N.E.2d 142, ¶ 23.               The first step involves the factual

determination of whether the parent failed to have contact or to provide support for a

period of at least one year immediately preceding the filing of the adoption petition. Id.

The probate court exercises discretion in making these determinations, and thus, an

appellate court applies an abuse of discretion standard when reviewing the probate

court’s decision. Id. at ¶ 21. If the probate court finds the parent failed to provide more

than de minimis contact or failed to provide for the maintenance and support of the minor,

it then must determine whether justifiable cause for the failure has been proved by clear

and convincing evidence.       Id. at ¶ 23.    Judgments supported by some competent,
                                                                                       -5-


credible evidence going to all the essential elements of the case will not be reversed on

appeal. C.E. Morris Co. v. Foley Constr. Co., 54 Ohio St.2d 279, 281, 376 N.E.2d 578

(1978).

      {¶ 10} The issue before us is whether the probate court reasonably found that

Mother had justifiable cause for her failure to have more than de minimis contact with her

children for one year immediately preceding the filing of the adoption petition.2 There is

no dispute that Mother had only de minimis contact with the children. However, the

probate court found Mother “attempted to visit with her children. [Mother] made the

request, and the Court believes the request was made on multiple occasions in multiple

ways.” The court further found Grandparents did not permit visitation. Indeed, maternal

grandmother admitted she did not permit visitation.            To justify this decision,

Grandparents presented the testimony of the children’s therapist, who indicated she did

not disagree with the decision to deny visitation. Based upon this evidence, the court

found Mother had justifiable cause for having de minimis contact with the children. See

In re Adoption of Holcomb, 18 Ohio St.3d 361, 481 N.E.2d 613 (1985), paragraph three

of the syllabus; but see In re Adoption of T.R.S., 7th Dist. Belmont No. 13 BE 43, 2014-

Ohio-3808, ¶ 16-17 (noting that R.C. 3107.07 was amended in 2009, and the parental

consent requirement is now preserved only if the parent has provided more than de

minimus contact and support, and noting that significant interference, or significant

discouragement, in the communication between the non-custodial parent and the child by



2
 R.C. 3107.07(A) provides two relevant year-long time periods: the year before the child
was placed with the petitioner and the year prior to the filing of the petition. See In re
Crandall, 1st Dist. Hamilton No. C-060770, 2007-Ohio-855, ¶ 10. In this case, the parties
and the court focused on the year prior to the filing of the petition.
                                                                                             -6-


the custodial parent establishes justifiable cause for the non-custodial parent's failure to

communicate with the child.)

       {¶ 11} We cannot conclude that the probate court's judgment was unsupported by

clear and convincing evidence. In reaching this conclusion, we note that “the weight to

be given the evidence and the credibility of the witnesses are primarily for the trier of fact.”

State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the

syllabus. Mother repeatedly testified to her efforts to have contact with her children via

mail, text messages, telephone, and Facebook Messenger. She also testified that she

asked for visitation. Mother testified Grandmother would block her messages and mail

from reaching the children, but did permit some interactions on Facebook Messenger

during October and November 2017. The probate court was free to credit Mother’s

testimony that she took these actions over Grandmother’s testimony to the contrary.

       {¶ 12} The first assignment of error is overruled.



                                  III.   Support of the Children

       {¶ 13} The second assignment of error is as follows:

       THE TRIAL COURT’S HOLDING THAT THE APPELLANTS FAILED TO

       PROVE LACK OF JUSTIFIABLE CAUSE FOR THE FAILURE OF

       RESPONDENT TO PROVIDE FOR THE MAINTENANCE AND SUPPORT

       OF THE MINOR CHILDREN AS REQUIRED BY LAW OR JUDICIAL

       DECREE FOR THE ONE-YEAR PERIOD PRIOR TO THE FILING OF THE

       PETITIONS FOR ADOPTION IS AGAINST THE MANIFEST WEIGHT OF

       THE EVIDENCE.
                                                                                          -7-


       {¶ 14} Grandparents assert the probate court erred in its conclusion that Mother

had justifiable cause for failing to pay support for the children.

       {¶ 15} At the outset, we note the Grandparents’ framing of this assignment of error

is incorrect. The probate court did not address the issue of justifiable cause. Instead,

the court relied upon cases in which this court indicated that any support paid by the

biological parent during the relevant time period is sufficient to trigger the requirement of

consent. See, e.g., In re Adoption of C.L.A., 2d Dist. Darke No. 1366, 1995 WL 570555;

Vecchi v. Thomas, 670 Ohio App.3d 688, 588 N.E.2d 186 (2d Dist.1990). Relying on the

cited prior decisions of this court, the probate court found Mother’s consent was required

because she made some child support payments during the relevant time period.

       {¶ 16} Since this appeal was filed, the Ohio Supreme Court has reviewed the “as

required by law or judicial decree” language contained in R.C. 3107.07(A). In In re

Adoption of A.C.B., Ohio Slip Opinion No. 2020-Ohio-629, ___ N.E.3d ___, it interpreted

that language differently than we did in our prior decisions.         A.C.B. interprets the

language as follows:

       The starting point -- and because the language is clear, the ending point --

       for our analysis is the text of the statute. The plain text of R.C. 3107.07(A)

       instructs a trial court to determine whether a natural parent provided

       maintenance and support “as required by law or judicial decree” for a period

       of at least one year immediately preceding the filing of the adoption petition.

       Here, the judicial decree sets forth precisely what father was required to

       pay: $85 per week, for a total of $4,420 over the course of a year. Father

       did not pay what the judicial decree required. He paid only $200 for the
                                                                                        -8-


         entire year before stepfather filed the adoption petition. Thus, under the

         plain language of the statute, father did not “provide for the maintenance

         and support” of A.C.B. “as required by law or judicial decree” for the

         requisite one-year period.

Id. at ¶ 8.

         {¶ 17} The record in this case shows Mother was ordered to make monthly support

payments of $200 per child. It is undisputed Mother made no child support payments

from May 10 to December 31, 2017. It is further undisputed that, between January 1

and May 10, 2018, Mother made only two payments of child support totaling $60. Mother

testified her 2017 income tax refund was garnished and the $250 refund was paid as child

support in 2018.       However, the probate court did not credit this testimony. 3    Even

assuming arguendo her tax return was paid as support, Mother paid less than ten percent

of her obligation during the year preceding the filing of the petitions. Thus, the record

shows Mother did not make the support payments required by the Kentucky order.

Therefore, in light of the Supreme Court’s holding in In re Adoption of A.C.B., the probate

court erred by concluding Mother had met the R.C. 3107.07(A) support requirement.

         {¶ 18} Given its finding that Mother satisfied the R.C. 3107.07(A) support

requirement, the probate court did not consider evidence concerning whether Mother had

justifiable cause for failing to provide support as required by the child support order.

Thus, this matter must be remanded to the probate court for a justifiable cause

determination.

         {¶ 19} The second assignment of error is sustained.


3
    Mother did not file an appellate brief and did not appeal the court’s decision.
                                                                                         -9-




                                       IV.    Conclusion

       {¶ 20} The second assignment of error being sustained, the judgment of the

probate court is reversed as to the finding that Mother paid support as required by law or

judicial decree.   The matter is remanded for a determination of whether Mother

presented justifiable cause for failing to meet her support obligation and, in light of that

determination, whether her consent to the adoption is necessary.

                                     .............



DONOVAN, J. and WELBAUM, J., concur.



Copies sent to:

Scott A. Kelly
David A. Rohrer
Hon. Jason R. Aslinger
