[Cite as In re H.R., 2014-Ohio-5390.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                               LOGAN COUNTY




IN RE: THE ADOPTION OF H.R.                                 CASE NO. 8-14-15


[LARRY REISINGER II - APPELLANT].                           OPINION




                  Appeal from Logan County Common Pleas Court
                          Family Court - Probate Division
                             Trial Court No. 12 AD 12

                                        Judgment Affirmed

                          Date of Decision:      December 8, 2014




APPEARANCES:

        Elizabeth M. Mosser for Appellant

        Kathryn C. Dougherty for Appellees
Case No. 8-14-15


PRESTON, J.

       {¶1} Appellant, Larry Reisinger II (“Reisinger”), appeals the June 9, 2014

judgment entry of the Logan County Court of Common Pleas, Family Court –

Probate Division, concluding that Reisinger’s consent to the adoption of his

biological child, H.R., is not necessary. In its entry, the trial court ordered that

H.R.’s maternal grandparents, appellees, Ravonda (“Ravonda”) and Thomas

(“Thomas”) Taylor (collectively, the “Taylors”), “can proceed with the adoption

of their minor granddaughter without [Reisinger’s] consent.” For the reasons that

follow, we affirm.

       {¶2} H.R. was born on September 4, 2009 and placed in the Taylors’ home

on September 19, 2009. (Doc. Nos. 1, 7). Reisinger has been incarcerated since

January 2010, and he is currently incarcerated at the Belmont Correctional

Institution in St. Clairsville, Ohio. (See Aug. 16, 2012 Tr. at 24, 28, 32, 36); (Doc.

No. 33).

       {¶3} On June 5, 2012, the Taylors filed a petition to adopt H.R. (Doc. No.

1). In their petition, the Taylors asserted that Reisinger’s consent to the adoption

was not necessary because: (1) Reisinger “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”; and (2) Reisinger

“failed without justifiable cause to provide for the maintenance and support of the


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minor as required by law or judicial decree for a period of at least one year

immediately preceding the filing of the adoption petition.” (Doc. No. 1). Also on

June 5, 2012, H.R.’s biological mother, Roxanne Taylor, filed her consent to the

Taylors’ adoption of H.R. (Doc. No. 6).

      {¶4} The first two attempts by the clerk of the court to serve Reisinger with

notice of the Taylors’ petition and the hearing on the petition were unsuccessful.

(Doc. Nos. 14, 16, 23, 24, 25, 28). The clerk’s third attempt to serve Reisinger

with notice was successful. (Doc. Nos. 29, 30, 33). The clerk served that notice

on June 26, 2012, and the return receipt was signed on June 28, 2012. (Doc. Nos.

30, 33). On July 2, 2012, the trial court filed proof of service of the notice on

Reisinger. (Doc. No. 33). (See also Doc. No. 35).

      {¶5} On July 9, 2012, Reisinger, pro se, filed a handwritten document “To

Judge Michael L. Brady and Judge C. Douglas Chamberlain,” in which he stated,

among other things:

      I do not and will not under any circumstances give up my rights as a

      father to my daughter to allow her to be adopted. I protest the

      adoption. I ask the court to vacate the application for adoption.

      Ravonda and Thomas Taylor does [sic] not and the court does not

      have my approval for adoption.

(Doc. No. 34).


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      {¶6} On June 26, 2012, Reisinger, now represented by counsel, filed a

motion to dismiss the Taylors’ petition, arguing that the trial court should dismiss

the case because “the venue for the adoption petition is not appropriate in Logan

County” and because his “consent is necessary for the adoption and such consent

is not given.” (Doc. No. 36). Attached as an exhibit to Reisinger’s motion to

dismiss was a spreadsheet from the Union County, Ohio Child Support

Enforcement Agency, reflecting that, from July 2011 to June 2012, Reisinger paid

$4.50 each month toward his monthly child-support obligation of $128.81. (Id.,

Ex. B).

      {¶7} On August 1, 2012, the trial court filed an entry reflecting that the

Supreme Court of Ohio assigned retired judge C. Douglas Chamberlain to preside

in the case. (Doc. No. 37).

      {¶8} On August 8, 2012, the trial court ordered that the hearing on the

Taylors’ petition set for August 16, 2012 be changed to a hearing on Reisinger’s

motion to dismiss the petition. (Doc. No. 41).

      {¶9} On August 15, 2012, the Taylors filed a “motion in response to

[Reisinger’s] motion to dismiss,” contending “that their Petition for Adoption was

properly filed in Logan County and, that, [Reisinger’s] consent to the adoption is

not necessary.” (Doc. No. 46).




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       {¶10} The trial court held the hearing as scheduled on August 16, 2012 on

Reisinger’s motion to dismiss the Taylors’ petition. (Aug. 16, 2012 Tr. at 4);

(Doc. No. 49). Judge Chamberlain presided at the hearing. (Aug. 16, 2012 Tr. at

1). At the conclusion of the hearing, the trial court ordered that the parties file

proposed findings of fact and conclusions of law, which Reisinger did on August

29, 2012, and the Taylors did on August 30, 2012. (Id. at 69); (Doc. Nos. 49, 50,

51).

       {¶11} On February 6, 2013, the Taylors filed a “motion for status,”

requesting that the trial court update the parties concerning the status of the case.

(Doc. No. 54).

       {¶12} On March 19, 2013, the trial court filed an entry ordering the case

stayed until the conclusion of a custody case involving H.R. in the Union County

Court of Common Pleas, Juvenile Division. (Doc. No. 55).

       {¶13} On April 4, 2013, the Taylors requested relief from the stay,

notifying the trial court of the conclusion of the Union County case. (Doc. No.

59).

       {¶14} On June 27, 2013, the trial court filed an entry in which Judge

Chamberlain withdrew from his assignment in the case. (Doc. No. 66).

       {¶15} On July 11, 2013, the trial court filed an entry reflecting that the case

was assigned to Judge Michael L. Brady. (Doc. No. 67). That same day, the trial


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court filed an entry granting the Taylors’ request for relief from the stay and

ordering a hearing on their petition for adoption to be held on September 20, 2013.

(Doc. No. 68).

       {¶16} On August 19, 2013, Reisinger filed a “motion finding consent to

adoption necessary.” (Doc. No. 84). In it, Reisinger asserted “that all pertinent

evidence as to the necessity of * * * Reisinger’s consent” was properly before the

trial court and requested that the trial court decide that issue “based upon the

transcript of the [August 15, 2012] hearing, the evidence, and the proposed

findings of fact presented.” (Id.).

       {¶17} On September 13, 2013, the trial court filed an order continuing the

September 20, 2013 hearing on the petition for adoption and allowing counsel for

the parties to file briefs in support of their respective positions, which they did in

October 2013. (Doc. Nos. 91, 92, 93).

       {¶18} On December 10, 2013, the Taylors filed a “motion for status,”

requesting that the trial court update the parties concerning the status of the case.

(Doc. No. 94).

       {¶19} On January 16, 2014, the Taylors filed an adoption home study,

letters of recommendation, and a home-safety audit. (Doc. Nos. 95, 96, 97).

       {¶20} On June 9, 2014, the trial court filed the judgment entry that is the

subject of this appeal.    (Doc. No. 98).      In it, the trial court concluded that:


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Reisinger’s consent to the adoption was not required under R.C. 3107.07(K)

because he failed to timely file an objection to the petition for adoption; that

Reisinger’s consent to the adoption was not necessary under R.C. 3107.07(A)

because he “had no, or at best, only de minimis contact with [H.R.] for the one

year time period immediately prior to the filing of the Petition for Adoption”; that

under R.C. 3107.07(A), “any support or maintenance [Reisinger] has paid or

provided has been miniscule and a token at best”; and that it is in H.R.’s “best

interest that she be adopted by [the Taylors] and have no contact with

[Reisinger].” (Id. at 15-16).

       {¶21} On July 9, 2014, Reisinger filed a notice of appeal. (Doc. No. 102).

He raises two assignments of error for our consideration.

                            Assignment of Error No. I

       The trial court erred and abused its discretion by finding
       consent of appellant, to the adoption of H.R., unnecessary.

       {¶22} In his first assignment of error, Reisinger argues that the trial court

erred when it concluded that Reisinger’s consent to the Taylors’ adoption of H.R.

was not necessary. Specifically, Reisinger argues that the trial court: overlooked

his timely filed objection; improperly construed his financial support of his

daughter to be insufficient; improperly construed his contacts with H.R. to be de

minimis; and failed to make a finding regarding whether his failures to provide

support and maintenance and to have more than de minimis contact with H.R.

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were justifiable.   In their brief, the Taylors do not address the trial court’s

conclusion that Reisinger failed to timely file an objection to the adoption; rather,

they argue that the trial court properly found that Reisinger failed to provide more

than de minimis contact with H.R. and that he failed to provide for the

maintenance and support of H.R. The Taylors also argue that while the trial

court’s analysis and findings do not contain the phrase “justifiable cause,” “the

import of the trial court findings was that there was no justifiable cause for

[Reisinger] to have less than de minimis contact with H.R. and to not provide

maintenance or support for her.” (Appellee’s Brief at 11).

       {¶23} We first address the trial court’s conclusion that Reisinger’s consent

was not required under R.C. 3107.07(A). “Ordinarily, the written consent of a

minor child’s natural parents is required prior to adoption, but R.C. 3107.07

provides exceptions to this requirement.” In re Adoption of K.C., 3d Dist. Logan

No. 8-14-03, 2014-Ohio-3985, ¶ 20. Specifically, R.C. 3107.07 states:

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

       (A) 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


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       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.

R.C. 3107.07(A). “R.C. 3107.07(A) is written in the disjunctive.” In re Adoption

of K.C. at ¶ 21. “Therefore, a failure without justifiable cause to provide either

more than de minimis contact with the minor or maintenance and support for the

one-year time period is sufficient to obviate the need for a parent’s consent.”

(Emphasis sic.)    Id., citing In re Adoption of A.H., 9th Dist. Lorain No.

12CA010312, 2013-Ohio-1600, ¶ 9.

       {¶24} Because cases such as this one may involve the termination of

fundamental parental rights, the party petitioning for adoption has the burden of

proving, by clear and convincing evidence, that the parent failed to provide more

than de minimis contact with the minor or failed to provide for the maintenance

and support of the minor during the requisite one-year period and that there was no

justifiable cause for the failure.   Id. at ¶ 24, citing In re R.L.H., 2d Dist.

Montgomery No. 25734, 2013-Ohio-3462, ¶ 9.             “‘Once the petitioner has

established this failure, the burden of going forward shifts to the parent to show

some facially justifiable cause for the failure. * * * The burden of proof, however,

remains with the petitioner.’” In re R.L.H. at ¶ 9, quoting In re A.N.B., 12th Dist.

Preble No. CA2012-04-006, 2012-Ohio-3880, ¶ 10.            “Clear and convincing


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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 (1954), paragraph three of the

syllabus. See also In re Adoption of K.C. at ¶ 24.

       {¶25} “The Supreme Court of Ohio has articulated a two-step analysis for

probate courts to employ when applying R.C. 3107.07(A).” In re Adoption of

K.C. at ¶ 23, citing In re Adoption of M.B., 131 Ohio St.3d 186, 2012-Ohio-236, ¶

23. The first step involves deciding a factual question—in this case, whether the

parent failed to provide more than de minimis contact with the minor or failed to

provide for the maintenance and support of the minor for a period of at least one

year immediately preceding the filing of the adoption petition. See id., citing In re

R.L.H. at ¶ 12, citing In re Adoption of M.B. at ¶ 23. See also In re Adoption of

S.J.M.H., 1st Dist. Hamilton No. C-130683, 2014-Ohio-3565, ¶ 29. “‘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 * * *.’” In re Adoption of K.C. at ¶ 23, quoting

In re Adoption of M.B. at ¶ 25. See also In re Adoption of S.J.M.H. at ¶ 29. In the

second step of the analysis, if a probate court finds the parent failed to provide


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more than de minimis contact or failed to provide for the maintenance and support

of the minor, the court then determines “whether justifiable cause for the failure

has been proved by clear and convincing evidence.” In re Adoption of M.B. at ¶

23. See also In re Adoption of K.C. at ¶ 23. “A probate court’s decision on

whether justifiable cause exists will not be disturbed on appeal unless the

determination is against the manifest weight of the evidence.” In re Adoption of

K.C. at ¶ 23, citing In re Adoption of M.B. at ¶ 24 and In re Adoption of Masa, 23

Ohio St.3d 163 (1986), paragraph two of the syllabus.

          {¶26} We begin by addressing whether the trial court abused its discretion

by finding that Reisinger failed to provide more than de minimis contact with H.R.

The Taylors have had custody of H.R. since December 2010. (Aug. 16, 2012 Tr.

at 12, 23). According to Ravonda, despite knowing the Taylors’ address and

phone number, Reisinger had “absolutely no contact” with H.R.—“[n]o phone

calls, no letters, no gifts,” and no emails. (Id. at 13-14). Thomas testified that

Reisinger did not contact H.R. for the year preceding the Taylors’ filing their

petition to adopt H.R. (Id. at 22-23). According to Ravonda, she was unaware if

any contact took place between Reisinger and H.R. during H.R.’s twice-a-month,

overnight visitation with Reisinger’s mother, Patricia Reisinger (“Patricia”). (Id.

at 15).




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       {¶27} Reisinger testified that he has communicated with H.R. since his

incarceration. (Id. at 29). Reisinger testified that he speaks with H.R. over the

phone “[w]henever [his] mom gets visitation” every other week. (Id. at 29, 31).

According to Reisinger, he writes letters addressed to H.R. and sends them to

Patricia’s address. (Id. at 29-30). Reisinger also testified that he writes letters to

Patricia multiple times a week, and in those letters, he “will write something off to

the side for [H.R.].” (Id.).

       {¶28} Patricia testified that her overnight visitation with H.R. every other

weekend began in September 2011; however, if H.R. is ill, “[s]ometimes a whole

month might go by before [Patricia] see[s] [H.R.] again.” (Id. at 40-41, 43).

According to Patricia, she observed Reisinger speak with H.R. on the phone

during Patricia’s visitations with H.R. (Id. at 41-43).       Patricia testified that

Reisinger wrote letters to H.R., only some of which Patricia kept. (Id. at 44).

Patricia identified Movant’s Exhibit A as a copy of an envelope addressed from

Reisinger to Patricia postmarked October 18, 2011, along with copies of the

envelope’s contents: a letter from Reisinger to H.R. dated November 22, 2011 and

a note from Reisinger to Patricia, requesting that Patricia read Reisinger’s letter to

H.R. (Id. at 44-46); (Movant’s Ex. A). Patricia identified Movant’s Exhibit B as

“the second birthday of September 2011 card” to H.R.; however, only the cover of

the card was made part of Movant’s Exhibit B. (Aug. 16, 2012 Tr. at 46-48);


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(Movant’s Ex. B). Patricia identified Movant’s Exhibit C as a copy of a Christmas

card addressing Patricia and H.R., sent by Reisinger in December 2011. (Aug. 16,

2012 Tr. at 47-48); (Movant’s Ex. C). Patricia identified Movant’s Exhibit D as a

“miss you” card and drawing that Reisinger sent H.R.; however, because H.R. was

ill, Patricia had not seen her since July 7, 2012, and the card and drawing she

identified as Movant’s Exhibit D arrived after that date, so H.R. had not seen

them.    (Aug. 16, 2012 Tr. at 48-49); (Movant’s Ex. D).        Patricia identified

Movant’s Exhibit E as a letter Reisinger wrote to H.R. “in 2011,” which she read

to H.R. (Aug. 16, 2012 Tr. at 49); (Movant’s Ex. E).

        {¶29} On cross-examination, Patricia acknowledged that the October 18,

2011 postmark on Movant’s Exhibit A predates the November 22, 2011 letter that

was purportedly inside the envelope, but Patricia explained, “[T]his is at another

time. I have had that – the letters that I had, I had in that envelope. That is

probably why I thought it went together.” (Aug. 16, 2012 Tr. at 54-55). Patricia

acknowledged that the cards and letters constituting Movant’s Exhibits B, C, D,

and E were undated. (Id. at 56-57). Patricia could not recall how many visits she

has had with H.R. since her visitation began in September 2011. (Id. at 59).

        {¶30} On re-direct examination, Reisinger’s counsel asked Patricia whether

the letters and cards submitted as exhibits at the hearing were “all the cards and

letters that [Reisinger] has ever sent to [H.R.].” (Id. at 61). Patricia responded,


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“Card wise, yes. Letters, as I have stated, with my letters, he would, you know,

tell me give [H.R.] loves [sic] and kisses. Or tell her daddy will be calling.

Things like that.” (Id.).

       {¶31} In finding that Reisinger failed to provide more than de minimis

contact with H.R., the trial court found Patricia “to be less than credible at the

August 16, 2012 hearing,” noting the discrepancy between the October 18, 2011

postmark and November 22, 2011 letter in Movant’s Exhibit A. (June 9, 2014

Judgment Entry, Doc. No. 98, at 11). The trial court also observed that Movant’s

Exhibits B, C, D, and E were undated and that Reisinger and Patricia did not state

with any certainty how many visits H.R. had with Patricia or how often Reisinger

spoke with H.R. during the visits. (Id. at 12). Finally, the trial court took judicial

notice that it was Patricia, not Reisinger, who requested in the Union County court

that Reisinger be granted visitation while in prison. (Id.).

       {¶32} The trial court’s finding that Reisinger failed to provide more than de

minimis contact with H.R. was not an abuse of discretion. We begin by noting, as

we did recently in In re Adoption of K.C., that the current version of R.C.

3107.07(A) became effective April 7, 2009. 2014-Ohio-3985, at ¶ 22. “The prior

version of the statute required a finding that the parent failed to ‘communicate’

with the minor child for a period of one year.” Id. “The Legislature amended the

statute to require a finding that the parent failed to ‘provide more than de minimis


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contact’ with the minor child for a period of one year.” Id. “‘By changing the

standard from ‘communicate,’ which could imply a single contact, to ‘more than

de minimis contact,’ which seems to imply more than a single contact, the

Legislature indicated its intent to require more effort from the parent to have

contact and communication with the child.’” Id., quoting In re J.D.T., 7th Dist.

Harrison No. 11 HA 10, 2012-Ohio-4537, ¶ 9.

       {¶33} The Taylors testified that they knew of no contact between Reisinger

and H.R. for the year preceding their filing their petition to adopt H.R. on June 5,

2012. Between June 5, 2011 and September 2011, Patricia did not have visitation

with H.R., and judging by Reisinger’s and Patricia’s testimony, Reisinger had no

contact with H.R. during that time. And while Reisinger and Patricia testified that

Reisinger called Patricia during Patricia’s visitations with H.R., neither Reisinger

nor Patricia specified on how many occasions Reisinger called. In fact, Patricia

testified that “[s]ometimes a whole month might go by before [she] see[s] [H.R.]

again.” Reisinger introduced no telephone or other records verifying his contacts

with H.R. Finally, as the trial court noted, the cards and letters introduced as

exhibits by Reisinger at the August 16, 2012 hearing were undated, except for one

of the exhibits, Movant’s Exhibit A, which bore a date discrepancy between the

envelope and the letter it contained.




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         {¶34} For these reasons, we hold that the trial court did not abuse its

discretion in finding that Reisinger failed to provide more than de minimis contact

with H.R. for the one-year period preceding the Taylors’ petition for adoption.1

Based on that holding, and because R.C. 3107.07(A) is written in the disjunctive,

we decline to address the trial court’s finding regarding whether Reisinger

provided maintenance and support to H.R., and we instead proceed to address

whether Reisinger possessed justifiable cause for failing to provide more than de

minimis contact with H.R. for the one-year period preceding the Taylors’ petition

for adoption. See In re Adoption of K.C., 2014-Ohio-3985, at ¶ 21.

         {¶35} Reisinger argues that the trial court “wholly failed to make a finding

as to whether a failure to provide support, or failure to contact the child, was

justifiable.” (Appellant’s Brief at 11). Reisinger argues that he testified that he

did not attempt to contact H.R. when she was with the Taylors “because they

would have thrown out his correspondence or blocked his communication with



1
  Reisinger argues in a footnote, and without citing authority, that the judge who issued the June 9, 2014
judgment entry “did not, in fact, sit in the actual hearing” but nevertheless said in the June 9, 2014
judgment entry, “This Court also took the opportunity during the hearing on August 16, 2012 to observe the
parties and their testimony, and applied the usual tests of credibility to their testimony, including, but not
limited to, their interest in the outcome.” (Appellant’s Brief at 10, fn. 1, quoting June 9, 2014 Judgment
Entry, Doc. No. 98, at 3). Reisinger takes issue with the successor judge’s finding Patricia’s testimony “to
be less than credible.” (June 9, 2014 Judgment Entry, Doc. No. 98, at 11). Some Ohio courts have held
that a successor judge cannot render a judgment on the transcript when witness credibility is a factor, even
if the parties attempt to stipulate to the contrary. Vergon v. Vergon, 87 Ohio App.3d 639, 643 (8th
Dist.1993), citing Arthur Young & Co. v. Kelly, 68 Ohio App.3d 287, 295 (10th Dist.1990); Welsh v.
Brown-Graves Lumber Co., 58 Ohio App.2d 49, 51-52 (9th Dist.1978). However, we need not and do not
address that issue because even assuming Patricia’s testimony was credible, the testimony and the exhibits
offered at the August 16, 2012 hearing demonstrate that the trial court did not abuse its discretion in finding
that Reisinger failed to provide more than de minimis contact with H.R.

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[H.R.].” (Id. at 11). Reisinger also argues that the Union County court denied him

visitation with H.R. while he is in prison.

       {¶36} In addition to the testimony we discussed above, Reisinger testified

on direct examination that he did not send letters to H.R. at the Taylors’ residence

“[b]ecause they will not give it to [H.R.]. They will get it and throw it straight

away.” (Aug. 16, 2012 Tr. at 30). When asked why he thought that, Reisinger

responded, “We do not get along. And they are trying to take my kid. They won’t

even let my family see my daughter. My mom had to go through court just to get

visitation to even see my daughter, because they wouldn’t allow it.” (Id.). When

the Taylors’ counsel asked Reisinger on cross-examination why he did not send

“any information, any packages, any letters, any e-mail or call to the Taylors [sic]

residence where [H.R.] is,” Reisinger responded that he did not send emails

because he “cannot get on the computer” in prison and that, “[a]s far as letters and

stuff, the Taylors would just throw them away.”           (Id. at 35).    Reisinger

acknowledged that he had the Taylors’ address and that Patricia had the Taylors’

phone number. (Id. at 34-35). Ravonda testified on cross-examination that she

“did not get along” with Reisinger and that Reisinger was “[p]robably not”

“someone that [she] would be comfortable calling up and having a conversation

with.” (Id. at 19-20).




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       {¶37} When Reisinger’s counsel asked him on direct examination, “Have

you asked for visitation during your incarceration?,” Reisinger responded, “Yes, I

have.” (Emphasis added.) (Id. at 28). However, Ravonda testified that it was

Patricia who requested that she be allowed to take H.R. to the prison where

Reisinger is incarcerated to see Reisinger. (Id. at 15). When asked on direct

examination to “describe [Reisinger’s] relationship with [H.R.],” Patricia

responded:

       His relationship is now distant. We have tried since February of

       2011 to try to get this situation going. The judge first ruled it was in

       the best interest for the child to see the father. But the Taylors have

       fought through the long distance and due to the travel time, the judge

       had ordered that once he gets closer to home, then she would allow

       the visits.

(Emphasis added.) (Id. at 53).

       {¶38} We first address Reisinger’s argument that the trial court “wholly

failed” to make a justifiable-cause finding. While the trial court did not mention

the phrase “justifiable cause” in its analysis and findings, it is clear from its

judgment entry that it found that Reisinger’s failure to provide more than de

minimis contact with H.R. was not supported by justifiable cause.                 R.C.

3107.07(A) provides, “Consent to adoption is not required” if the trial court “finds


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by clear and convincing evidence that 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 * *

*.” (Emphasis added.) Particularly in light of the two-step R.C. 3107.07(A)

analysis articulated by the Supreme Court of Ohio in In re Adoption of M.B., the

best practice is for the trial court to state on the record its finding concerning

justifiable cause. 2012-Ohio-236, at ¶ 23. However, Reisinger directed us to no

authority suggesting that the trial court must refer explicitly to “justifiable cause”

in its analysis, and we found none.

       {¶39} We next address Reisinger’s substantive arguments concerning

justifiable cause. Once the Taylors established a failure by Reisinger to provide

more than de minimis contact with H.R., the burden of going forward shifted to

Reisinger to show some facially justifiable cause for the failure. In re R.L.H.,

2013-Ohio-3462, at ¶ 9, citing In re A.N.B., 2012-Ohio-3880, at ¶ 10. Based on

our review of the record, we cannot conclude that the determination that justifiable

cause did not exist is against the manifest weight of the evidence.

       {¶40} In support of his justifiable-cause position, Reisinger relies on his

incarceration, his sour relationship with the Taylors, and the denied request for

visitations at the prison. We reject Reisinger’s arguments. First, “‘[a] trial court is

not obligated to find justifiable cause exists solely on the basis that a parent is


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incarcerated. * * * Instead, when a parent is in prison, reviewing courts have

determined that imprisonment is one of several factors the court should consider.’”

In re J.A.B., 11th Dist. Trumbull No. 2013-T-0114, 2014-Ohio-1375, ¶ 37, quoting

In re Adoption of C.M.F., 12th Dist. Butler Nos. CA2013-06-090 and

CA2013-06-091, 2013-Ohio-4719, ¶ 17. Second, Reisinger based his decision not

to attempt to contact H.R. while she was with the Taylors on Reisinger’s “not

get[ting] along” with the Taylors, not any attempt by the Taylors to obstruct his

communication with H.R.                Indeed, Ravonda testified that Reisinger had the

Taylors’ contact information but had “absolutely no contact” with H.R. Finally,

the record contains conflicting evidence concerning whether it was Reisinger or

Patricia who moved for visitation at the prison.2

         {¶41} For the foregoing reasons, we hold that the trial court did not err in

concluding that Reisinger’s consent to the Taylors’ adoption of H.R. was not

required under R.C. 3107.07(A) because he failed without justifiable cause to

provide more than de minimis contact with H.R. for a period of at least one year

immediately preceding the filing of the adoption petition. Based on our holding,



2
  The trial court took “judicial notice of the pleadings contained within the Union County Common Pleas
Court, Juvenile Court, Case No. 20930056” and found “that [Reisinger] never filed any pleadings * * *
requesting visitation with his daughter while imprisoned. Rather, it was [Reisinger’s] mother who urged *
* * a visitation order for [Reisinger].” (June 9, 2014 Judgment Entry, Doc. No. 98, at 12). “[A] court does
not have the authority to take judicial notice of the proceedings in another case, including its own judgment
entries.” Hurst v. Hurst, 5th Dist. Licking No. 12-CA-70, 2013-Ohio-2674, ¶ 81. Therefore, in our
manifest-weight review, we disregard the trial court’s statements concerning the pleadings in the Union
County case.

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we need not and do not address Reisinger’s argument that the trial court

overlooked his timely filed objection.

       {¶42} Reisinger’s first assignment of error is overruled.

                            Assignment of Error No. II

       The trial court erred by analyzing the best interest of the child
       on the issue of consent, when no evidence was taken at trial as to
       best interest, and the court improperly took judicial notice of
       another court’s case to make its finding.

       {¶43} In his second assignment of error, Reisinger argues that the trial

court erred by addressing H.R.’s best interest in its June 9, 2014 judgment entry

because a child’s best interest is not part of the R.C. 3107.07(A) analysis. While

we agree that a child’s best interest in not part of the R.C. 3107.07(A) analysis, we

concluded above that the trial court did not err in concluding that Reisinger’s

consent was not necessary under R.C. 3107.07(A). The trial court’s best-interest

analysis was surplusage and does not affect our decision to affirm the judgment of

the trial court. See The Ohio Bank v. Wagner, 3d Dist. Allen No. CA-2001-0143,

2002-Ohio-2078, ¶ 13. See also Davis v. Widman, 184 Ohio App.3d 705, 2009-

Ohio-5430, ¶ 16 (3d Dist.), quoting Advantage Bank v. Waldo Pub, L.L.C., 3d

Dist. Marion No. 9-08-67, 2009-Ohio-2816, ¶ 46 (“[A] judgment by the trial court

which is correct, but for a different reason, will be affirmed on appeal as there is

no prejudice to the appellant.”).

       {¶44} Reisinger’s second assignment of error is overruled.

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       {¶45} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                               Judgment Affirmed

WILLAMOWSKI, P.J. and SHAW, J., concur.

/jlr




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