[Cite as In re Adoption of B.T.R., 2020-Ohio-2685.]


                                        COURT OF APPEALS
                                     MORROW COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



                                                         JUDGES:
IN RE:                                                   Hon. John W. Wise, P.J.
                                                         Hon. Craig R. Baldwin, J.
                                                         Hon. Earle E. Wise, Jr., J.
         THE ADOPTION OF
                                                         Case No. 2019 CA 0005
         B.T.R.
                                                         OPINION




CHARACTER OF PROCEEDING:                              Civil Appeal from the Court of Common
                                                      Pleas, Probate Division, Case No. 2019
                                                      AD 898

JUDGMENT:                                             Affirmed



DATE OF JUDGMENT ENTRY:                               April 27, 2020



APPEARANCES:

For Plaintiff-Appellant                               For Defendant-Appellee

STEPHANIE L. TACKETT                                  TODD R. TROUTMAN, II
REESE PYLE MEYER PLL                                  PRO SE
36 North Second Street                                215 Woods Avenue
P. O. Box 919                                         Newark, Ohio 43055
Newark, Ohio 43058-0919
Morrow County, Case No. 2019 CA 0005                                                     2


Wise, John, P. J.

       {¶1}   Appellant Tyler J. Lightle appeals the September 20, 2019, decision by the

Morrow County Court of Common Pleas, Probate Division, denying his step-parent

adoption petition.

       {¶2}   No Appellee’s brief has been filed in this matter.

                           STATEMENT OF THE FACTS AND CASE

       {¶3}   The relevant facts and procedural history are as follows:

       {¶4}   On July 15, 2019, Petitioner-Appellant, Tyler J. Lightle, filed a step-parent

petition for adoption of the minor child, B.T.R. (DOB 7/19/2012) in the Morrow County

Court of Common Pleas, Probate Division. The petition alleged, pursuant to R.C.

§3107.07(A), that the biological father's consent was not necessary because he had not

had more than de minimis contact with the minor child for a period of at least one year

preceding the filing of the adoption petition.

       {¶5}   Respondent-Appellee, Todd R. Troutman II, was served and later filed his

objection to the adoption with the Court on August 9, 2019. In his objection he argued

that he had fulfilled his fiscal support obligations but had been barred from having any

contact with his child or from even knowing where the child resides.

       {¶6}   On August 9, 2019, Mr. Troutman filed a Motion for Change of Parenting

Time in the Licking County Common Pleas Court, Domestic Relations Division, Case

Number 2013 DR 00016. Said motion was later amended and re-filed on August 30, 2019.

That matter is currently still pending in the Licking County Domestic Relations Court.
Morrow County, Case No. 2019 CA 0005                                                     3


       {¶7}   On September 19, 2019, the adoption hearing was held in the Morrow

County Probate Court. At said hearing, the probate court heard testimony from Petitioner

Tyler Lightle, B.T.R.’s mother, and Mr. Troutman.

       {¶8}   The trial court, after advising Petitioner's counsel prior to the hearing,

decided to conduct the hearing out of order and took the testimony of Mr. Troutman before

it would hear Petitioner's case in chief.

       {¶9}   Mr. Troutman appeared pro se and was questioned by the court. He testified

that a parentage matter had been filed in the Licking County Domestic Relations Court

shortly after the minor child's birth in 2013. He testified that child support had been

ordered at that time. The parties stipulated that he was current in paying child support.

He further testified that he had also filed a Motion for Change in Parenting Time, under

the aforementioned parentage matter, after the adoption petition had been filed. Mr.

Troutman admitted that he had not had contact with B.T.R. in over one year.

       {¶10} After court inquiry, he further alleged that he had written letters to B.T.R.,

but the letters were never mailed. The letters were not produced, nor were they admitted

into evidence at the hearing.

       {¶11} B.T.R.'s mother testified that she had requested her address to be sealed

with the child support enforcement agency due to a history of domestic violence she had

suffered by Mr. Troutman when she was pregnant with B.T.R. She also testified that her

phone number and email address had never changed since she had known Mr.

Troutman.

       {¶12} The trial court concluded the hearing without testimony from the Petitioner

because the court determined, based on Mr. Troutman's testimony, that his consent was
Morrow County, Case No. 2019 CA 0005                                                      4


necessary in order to proceed with the adoption. The court based its decision on Mr.

Troutman's testimony that he was current in paying child support, that he had filed for

child visitation rights in the Licking County Common Pleas Court, that he was present in

court that day to contest the adoption, and that he had attempted contact with the child

with letters over the past several years. The probate court further found that B.T.R.'s

mother did not provide Mr. Troutman with her current address and had her address sealed

at the Licking County Court of Common Pleas. The trial court found that Mr. Troutman's

consent was necessary and denied the adoption petition. (See Sept. 9, 2019, Judgment

Entry).

          {¶13} Appellant-Petitioner now appeals, raising the following assignments of error

for review:

                                ASSIGNMENTS OF ERROR

          {¶14} “I. THE TRIAL COURT ERRED WHEN IT MISAPPLIED R.C. 3107.07(A)

AS IT APPLIES TO DE MINIMIS CONTACT WHEN IT ERRONEOUSLY DETERMINED

THAT MR. TROUTMAN'S PAYMENT OF CHILD SUPPORT AND HIS FILING OF A

DOMESTIC RELATIONS MATTER, AFTER THE DATE OF THE FILING OF THE

ADOPTION PETITION, CONSTITUTED MORE THAN DE MINIMIS CONTACT.

          {¶15} “II. THE TRIAL COURT ERRED IN FINDING THAT THE BIOLOGICAL

FATHER'S CONSENT WAS NECESSARY TO THE ADOPTION WHEN HE MADE

STATEMENTS THAT HE HAD WRITTEN LETTERS TO THE MINOR CHILD BUT

FAILED TO PRODUCE THE LETTERS OR ENTER THEM INTO EVIDENCE.

          {¶16} “III. THE TRIAL COURT ERRED IN FINDING THAT THE BIOLOGICAL

FATHER'S CONSENT WAS NECESSARY TO THE ADOPTION BECAUSE THE
Morrow County, Case No. 2019 CA 0005                                                       5


MOTHER HAD HER ADDRESS SEALED AT THE CHILD SUPPORT ENFORCEMENT

AGENCY DUE TO A HISTORY OF DOMESTIC VIOLENCE AGAINST HER FROM MR.

TROUTMAN.”

                                           I., II. and III.

       {¶17} As each of Appellant’s assignments of error challenge the trial court’s denial

of the step-parent adoption petition, we shall address them together.

       {¶18} The right of a natural parent to the care and custody of his or her children

is one of the most fundamental in law. This fundamental liberty interest of natural parents

in the care, custody and management of their children is not easily extinguished.

Santosky v. Kramer (1982), 455 U.S. 745, 753–754. Adoption terminates those

fundamental rights. R.C. 3107.15(A)(1). Any exception to the requirement of parental

consent must be strictly construed so as to protect the right of the natural parents to raise

and nurture their children. In Re: Adoption of Schoeppner (1976), 46 Ohio St.2d 21, 345

N.E.2d 608

       {¶19} 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
Morrow County, Case No. 2019 CA 0005                                                           6


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

       petitioner.

       {¶20} The petitioner for adoption has the burden of proving by clear and

convincing evidence the natural parent has failed to provide more than de minimis contact

with or to provide for the maintenance and support of the child for at least a one-year

period prior to the filing of the petition, and also must prove the failure was without

justifiable cause. 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.” In re Adoption of Holcomb, 18 Ohio St.3d 361, 368, 481

N.E.2d 613 (1985). “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.

       {¶21} In Cross v. Ledford (1954), 161 Ohio St. 469, 120 N.E.2d 118, the Ohio

Supreme Court explained that clear and convincing evidence is more than a

preponderance of the evidence but does not rise to the level of beyond a reasonable

doubt as required in criminal cases. It must produce in the mind of the trier of fact a firm

belief or conviction as to the allegations sought to be established. Cross, syllabus by the

court, paragraph three.

       {¶22} An appellate court will not disturb a trial court's decision on adoption unless

it is against the manifest weight of the evidence. In re Adoption of Masa (1986), 23 Ohio

St.3d 163. A judgment supported by some competent, credible evidence will not be
Morrow County, Case No. 2019 CA 0005                                                        7


reversed by a reviewing court as against the manifest weight of the evidence. C.E. Morris

Co. v. Foley Construction Co. (1978), 54 Ohio St.2d 279. A reviewing court must not

substitute its judgment for that of the trial court where there exists some competent and

credible evidence supporting the judgment rendered by the trial court. Myers v. Garson,

66 Ohio St.3d 610, 1993-Ohio-9.

       {¶23} Justifiable cause has been found to exist if the custodial parent significantly

interferes with or discourages communication between the natural parent and the child.

In Re: Adoption of: Holcomb (1985), 18 Ohio St.3d 361, 481 N.E.2d 613. A probate court

may examine any preceding events that may have a bearing on the parent's failure to

communicate with the child, and the court is not restricted to focusing solely on events

occurring during the statutory one-year period. In re: Adoption of Lauck (1992), 82 Ohio

App.3d 348, 612 N.E.2d 459.

       {¶24} A probate court's determination as to “justifiable cause” under R.C.

3107.07(A) will not be disturbed on appeal unless such determination is against the

manifest weight of the evidence. In Re Adoption of Masa (1986), 23 Ohio St.3d 163, 492

N.E.2d 140, paragraph two of the syllabus. The language of R.C. 3107.07(A) must be

strictly construed to protect the interest of the non-consenting parent subject to forfeiture

of his or her parental rights. In Re Adoption of Sunderhaus (1992) 63 Ohio St.3d 127,

132, 585 N.E.2d 418.

       {¶25} The trial court, as the trier of fact here, determines the weight and credibility

of the evidence. Seasons Coal Company, Inc. v. City of Cleveland (1984), 10 Ohio St.3d

77, 461 N.E.2d 1273. We may not substitute our judgment for that of the trier of fact. Pons

v. Ohio State Medical Board (1993), 66 Ohio St.3d 619, 614 N.E.2d 748.
Morrow County, Case No. 2019 CA 0005                                                       8


       {¶26} Here, the trial court found that the Father’s consent was necessary in this

matter and denied the Petition for Adoption. September 20, 2019, Judgment Entry.

                                             Support

       {¶27} The trial court found that the Father has provided current child support for

the child over the last year.

       {¶28} Upon review of the record we find that Mr. Troutman testified that he was

the father of B.T.R., that parentage had been established, that a monthly support of

$229.25 had been ordered, and that he was current on his child support obligation. (T. at

7-8). Counsel for the Petitioner stipulated on the record to the fact that Mr. Troutman had

been paying child support over the last 12 months. (T. at 11).

       {¶29} We therefore find the trial court did not err in determining Father provided

for the support for the Child as required by judicial decree within the relevant statutory

time frame.

                                       De Miminis Contact

       {¶30} In addition to finding the Father was current on his child support obligations,

the trial court noted the following evidence in support of its determination: Jessica Lightle

has made it difficult for Todd Troutman to have contact with the child; He has attempted

to contact the child over the last several years through written correspondence; and he

has attempted by Court action to establish contact with his child. (See September 20,

2019, Judgment Entry at 2).

       {¶31} Upon review, we find that the record supports the trial court’s findings. At

the hearing, the Father testified that he wanted to establish a relationship with B.T.R. (T.

at 9); that he was never given an address or phone number to contact the child (Id.); that
Morrow County, Case No. 2019 CA 0005                                                         9


in fact B.T.R.’s mother’s address was sealed in the original child support order (T. at 10);

that he filed for visitation with the Licking County Common Pleas Court and that service

had been returned stating that it was a “bad address” (Id.); and that over the past seven

years he wrote letters to B.T.R., which he still had but had been unable to send because

he did not have an address (T. at 19).

       {¶32} Counsel for Petitioner stipulated that the mother’s address had been sealed

in the court orders. (T. at 12-13).

       {¶33} The trial court as the trier of fact is free to accept or reject any or all of the

testimony of the witnesses. The trial court obviously chose to believe Father in this

instance.

       {¶34} Upon review of the entire record in this matter, we find the trial court's

determination Father's consent to the adoption was necessary because Father provided

more than de minimis contact was supported by the record.

       {¶35} Appellant's assignments of error are overruled.

       {¶36} Accordingly, the judgment of the Court of Common Pleas, Probate Division,

Morrow County, Ohio, is affirmed.

By: Wise, John, P. J.
Baldwin, J., and
Wise, Earle, J., concur.



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