[Cite as In re Adoption of M.F., 2014-Ohio-3801.]


STATE OF OHIO                    )                       IN THE COURT OF APPEALS
                                 )ss:                    NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                 )

IN RE: M.F.                                              C.A. No.    27166



                                                         APPEAL FROM JUDGMENT
                                                         ENTERED IN THE
                                                         COURT OF COMMON PLEAS
                                                         COUNTY OF SUMMIT, OHIO
                                                         CASE No.   2013 AD 16

                                 DECISION AND JOURNAL ENTRY

Dated: September 3, 2014



        CARR, Judge.

        {¶1}    Appellant, David O., appeals from the judgment of the Summit County Court of

Common Pleas, Probate Division. This court affirms.

                                                    I.

        {¶2}    M.F. was born on December 9, 2002.            Richard F. (“Father”) and Linda H.

(“Mother”) were listed as the biological father and mother, respectively, on the child’s birth

certificate. The parents were married at the time of birth, but divorced in 2006 in Mahoning

County, Ohio. Father was ordered to pay $476.38 per month in child support. Later, M.F.’s

mother married David O. (“Stepfather”).

        {¶3}    Father has been unemployed since 2006. Initially, he supported himself by living

on proceeds from the sale of a home. After the proceeds of the home sale were exhausted, Father

relied on unemployment and retirement funds to support himself.         Eventually, his retirement

savings were exhausted as well. Father now survives by living with his brother free of charge
                                               2


and receiving money from family members to help pay his bills. Father’s child support order

requires him to pay $476.38 per month. He made no child support payments after August 19,

2011.

        {¶4}   On May 12, 2010, the Municipal Court of Allegheny County, Pennsylvania,

issued an order preventing Father from having any contact with M.F. The order stemmed from

allegations that Father sexually abused M.F. A criminal investigation of Father began on May

13, 2010. Father was ultimately charged with indecent assault of a person less than 13 years of

age and endangering the welfare of children.

        {¶5}   On January 9, 2013, the criminal case against Father went to trial. He was

acquitted on January 13, 2013. After the case was resolved, the order of the Allegheny County

Municipal Court, which prevented Father from having any contact with his child, terminated.

        {¶6}   Three days after his acquittal, on January 16, 2013, Father attempted to contact

Mother and Stepfather via a court-approved email to continue with the previous court-approved

visitation schedule. Father did not receive a response. On January 18, 2013, Father attempted to

contact Mother through her work email. Father received no response to this attempted contact.

        {¶7}   While Father’s criminal case was pending, Mother and Stepfather relocated to

Summit County. On February 14, 2013, Stepfather filed a petition for adoption with the Probate

Division of the Summit County Court of Common Pleas. Stepfather sent notice of the petition to

Father; however, Father did not receive the notice because it was mailed to the wrong address.

Father was subsequently successfully served by regular mail. In the petition, Stepfather asserted

that consent of the biological father for adoption of M.F. was not required because Father had

failed to provide more than de minimis contact with the child and had failed to provide
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maintenance and support for the child during the one year period prior to the filing of the petition

without justification, as required by R.C. 3107.07.

          {¶8}   Father filed an objection to the petition for adoption on March 26, 2013. After

holding an evidentiary hearing, the probate magistrate denied Stepfather’s petition upon finding

that Father was justified in failing to have contact with the child or pay support for the child

during the requisite period. Stepfather filed timely objections to the magistrate’s decision.

Father filed a response to Stepfather’s objections. After considering Stepfather’s objections, the

probate court overruled them and adopted the magistrate’s decision.

          {¶9}   Stepfather filed an appeal that was dismissed by this Court for lack of a final,

appealable order. The Probate Court subsequently issued an opinion independently entering

judgment. Stepfather filed a timely appeal in which he raises two assignments of error for

review.

                                                II.

                                  ASSIGNMENT OF ERROR I

          THE TRIAL COURT ERRED IN SUSTAINING THE MAGISTRATE’S
          DECISION IN THAT THE MAGISTRATE RULED THAT THE CONSENT OF
          THE BIOLOGICAL FATHER WAS NECESSARY IN WHICH TO PROCEED
          WITH THE PETITION FOR ADOPTION BY THE STEP-PARENT, [DAVID
          O.], WHEN THE TRIAL COURT FOUND THE BIOLOGICAL FATHER WAS
          JUSTIFIED IN PAYING NO (0) FINANCIAL SUPPORT FOR THE BENEFIT
          OF THE MINOR CHILD.

                                 ASSIGNMENT OF ERROR II

          THE TRIAL COURT ERRED IN SUSTAINING THE MAGISTRATE’S
          DECISION IN THAT THE MAGISTRATE’S DECISION INDICATED THAT
          THE CONSENT OF THE BIOLOGICAL FATHER WAS REQUIRED IN
          WHICH TO PROCEED WITH THE PETITION FOR STEP-PARENT
          ADOPTION IN THAT THE BIOLOGICAL FATHER WAS JUSTIFIED IN
          NOT HAVING ANY CONTACT WHATSOEVER WITH THE MINOR CHILD
          IN EXCESS OF ONE YEAR PRIOR TO THE FILING OF THE PETITION FOR
          ADOPTION.
                                                  4


       {¶10} In his assignments of error, Stepfather argues that the trial court erred in adopting

the magistrate’s decision that found that the consent of the biological father was necessary to

proceed with the petition for adoption. Specifically, Stepfather argues that consent of the

biological father was not necessary because Father was not justified in failing to provide more

than de minimis contact with M.F. and failing to provide maintenance and support for M.F. in

the year prior to Stepfather’s petition for adoption.

       {¶11} The right to parent one's children is a fundamental right. Troxel v. Granville, 530

U.S. 57, 66 (2000); In re C.F., 113 Ohio St.3d 73, 2007-Ohio-1104, ¶ 28. Parents have a

“fundamental liberty interest” in the care, custody, and management of the child. Santosky v.

Kramer, 455 U.S. 745, 753 (1982). In recognition of the significance of that fundamental

interest, the Ohio Supreme Court has described the permanent termination of parental rights as

“the family law equivalent of the death penalty in a criminal case.” In re Hayes, 79 Ohio St.3d

46, 48 (1997). Therefore, parents “must be afforded every procedural and substantive protection

the law allows.” Id. This includes notice and an opportunity to be heard when a parent faces the

risk of termination of his or her parental rights. In re Z.H., 9th Dist. Summit No. 26844, 2013-

Ohio-3904, ¶ 14, citing In re Thompkins, 115 Ohio St.3d 409, 2007-Ohio-5238, ¶ 13. In regard

to the permanent termination of parental rights specific to the context of adoptions, as a general

rule, the biological parent must consent and may withhold consent to adoption. R.C. 3107.06;

see also In re Adoption of G.V., 126 Ohio St.3d 249, 2010-Ohio-3349, ¶ 6 (stating “Because

adoption terminates fundamental rights of the natural parents, * * * [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.”). The biological parent’s consent is not

required, however, in certain limited circumstances.
                                                 5


       {¶12} R.C. 3107.07(A) provides that a parent’s consent to adoption is not required if 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.

       {¶13} “Because R.C. 3107.07(A) is written in the disjunctive, either a failure to

communicate or a failure to provide support for the one-year time period is sufficient to obviate

the need for a parent's consent.” In re Adoption of A.H., 9th Dist. Lorain No. 12CA010312,

2013-Ohio-1600, ¶ 9, citing In re Adoption of McDermitt, 63 Ohio St.2d 301, 304 (1980). “The

petitioner has the initial burden of establishing, by clear and convincing evidence, that the parent

has failed to support and/or have contact with the children for at least the requisite one-year

period.” In re Adoption of A.H., 9th Dist. Lorain No. 12CA010312, 2013-Ohio-1600, ¶ 12,

citing In re Adoption of Bovett, 33 Ohio St.3d 102 (1987), paragraph one of the syllabus. “Once

the petitioner has established, by clear and convincing evidence, that the natural parent has failed

to support the child for at least the requisite one-year period, the burden of going forward with

the evidence shifts to the natural parent to show some facially justifiable cause for such failure.

The burden of proof, however, remains with the petitioner.” Bovett, 33 Ohio St.3d at paragraph

two of the syllabus.

A. Failure to provide maintenance and support

       {¶14} “[T]he question of whether justifiable cause for failure to pay child support has

been proven by clear and convincing evidence in a particular case is a determination for the

probate court and will not be disturbed on appeal unless such determination is against the

manifest weight of the evidence.” In re Adoption of M.B., 131 Ohio St.3d 186, 2012-Ohio-236, ¶
                                                6


24, quoting In re Adoption of Masa, 23 Ohio St.3d. 163 (1986), paragraph two of the syllabus. It

is the parent's overall “ability to pay [that] is a key factor in determining whether there is

justifiable cause for failure to support a child.” In re Adoption of Masa, 23 Ohio St.3d 163, 167

(1986). “To determine whether the parent is financially capable of paying support requires an

examination of the amount of income from all sources, the amount of the support order, and the

entire financial situation including the types and amounts of other financial obligations.” In re

Adoption of A.H., 9th Dist. Lorain No. 12CA010312, 2013-Ohio-1600, ¶ 15.

       {¶15} In this case, Stepfather met the initial burden of proving that Father did not

provide support payments in the one-year period prior to the petition for adoption. Mahoning

County Child Support records presented in the evidentiary hearing before the magistrate showed

that the last support payment was received on August 19, 2011. Father does not dispute that he

did not make support payments after that date, including the one-year period prior to the petition

for adoption. Given that Stepfather established Father’s failure to pay, Father was required to go

forward with evidence showing “some facially justifiable cause for such failure.” Bovett, 33

Ohio St.3d at 104.

       {¶16} The probate court properly found that Father’s failure to provide support

payments was justified because he was financially incapable of paying his support obligations.

Father has been unemployed since 2006. Since losing his job, Father made attempts to secure

employment in his profession. Despite efforts during and after his criminal investigation and

trial, he has been unable to find employment. Thus, Father did not have employment income

from which he could fulfill his support obligations.

       {¶17} After losing his job, Father had four other financial resources: (1) income

property, (2) unemployment compensation, (3) retirement funds, (4) and generosity of his
                                                7


siblings. In the 2006 divorce settlement between Father and Mother, Father received a home

owned by the couple. To meet his needs and obligations, he sold the home. Father used the

proceeds from the sale of the home to cover his expenses until 2008. After the proceeds from the

sale of the home were exhausted, Father relied upon unemployment compensation to meet his

needs and obligations. Additionally, Father moved into his brother’s home in 2008 to decrease

his expenses. During this time, Father paid his child support obligations using proceeds of the

sale of the home and his unemployment compensation.

       {¶18} Subsequently, Father relied on retirement funds to meet his needs and obligations.

The retirement funds consisted of a 401(k) plan. Father withdrew six hundred dollars per month.

He was able to stay current on his obligations, including his child support obligation, until the

retirement funds were fully expended.

       {¶19} The investigation of Father and his criminal case took nearly two years and eight

months to resolve. During this time, Father borrowed money from his siblings to pay his legal

bills and continued to live with his brother. Father sought employment while the case was

pending and after his case was resolved. However, he has been unable to secure employment.

       {¶20} Father’s overall ability to pay, viewed in light of each financial resource, shows

that Father was unable to provide maintenance and support to his child. Father has had no

employment income since 2006, despite attempts to secure employment in his field. During this

period of unemployment, Father liquidated property, took steps to decrease his expenses,

exhausted unemployment benefits, and cashed out his retirement savings. He relied on the

generosity of his siblings to meet his needs and obligations. Despite his financial circumstances,

Father made support payments until August 19, 2011, the point at which his financial resources

were fully exhausted. Because Father’s resources were depleted, he was financially incapable of
                                                 8


paying his support obligations and his subsequent failure to provide maintenance and support

was justifiable.

B. Failure to provide de minimis contact

       {¶21} Some courts have held that a “no contact” court order constitutes justifiable cause

for a parent's failure to communicate with his children. See, e.g., In the Matter of the Adoption of

Bryan W., 6th Dist. Huron No. H–96–039, 1997 WL 224968 (May 2, 1998). To determine

whether the lack of communication was justified, the specific language and terms of the order

must be examined to determine whether the court order prohibited all communication by the

parent. See In re Adoption of K.K., 9th Dist. Lorain Nos. 05CA008849 and 05CA008850, 2006-

Ohio-1488, ¶12.

       {¶22} Stepfather met the initial burden of proving that Father did not provide more than

de minimis contact in the one-year period prior to the petition for adoption. Father does not

dispute that he did not communicate with the child in the year preceding the petition for

adoption. Because Stepfather established a lack of communication, the burden of going forward

with evidence shifted to Father to demonstrate some facially justifiable cause for his failure to

communicate. Bovett, 33 Ohio St.3d at 104.

       {¶23} The Municipal Court of Allegheny County, Pennsylvania, issued three bail release

conditions to Father on May 12, 2010. The second condition stated in its entirety, “You are to

have no contact with the victim.” In this case, the alleged victim was his daughter, M.F. The

order contained no qualifying terms and made no provision for any sort of approved contact.

This order remained in place until Father’s case was disposed on January 13, 2013.              By

complying fully with the terms of this order, Father was legally prevented from having any

contact with his child for eleven of the twelve months preceding the petition for adoption.
                                                9


       {¶24} After the order was lifted, Father attempted to contact the child. Three days after

Father’s case was disposed, Father used a court-approved email to contact Mother and Stepfather

to reestablish the previously approved visitation schedule. After he received no response, Father

attempted to contact Mother via an alternate email address. Father did not receive a response to

the second email. Twenty seven days after the second email was sent, Stepfather filed the

petition for adoption. Thus, Father made two attempts to reestablish contact with the child, both

of which occurred during the final month of the one-year look back period required by R.C.

3107.07.

       {¶25} Because the no contact order prevented Father from having contact with his

daughter during the first eleven months of the one-year look back period and Father made

multiple attempts to contact his daughter through Mother during the remaining month of the one-

year look back period, Father’s failure to provide more than de minimis contact was justified.

C. Conclusion

       {¶26} The probate court did not err in finding that, although Father failed to provide

maintenance and support and failed to provide more than de minimis contact during the requisite

one-year look back period prior to Stepfather’s petition for adoption, he showed justifiable cause

for his failures. Therefore, Father’s consent was necessary to proceed with the petition for

adoption. Accordingly, the assignment of error is overruled.

                                               II.

       {¶27} Stepfather’s assignments of error are overruled. The judgment of the Summit

County Court of Common Pleas, Probate Division is affirmed.

                                                                              Judgment affirmed.
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       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                     DONNA J. CARR
                                                     FOR THE COURT



HENSAL, P. J.
MOORE, J.
CONCUR.


APPEARANCES:

JEFFREY V. HAWKINS, Attorney at Law, for Appellant.

RICHARD FOLEY, pro so, Appellee.
