[Cite as In re Adoption of M.G., 2015-Ohio-5185.]




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




IN RE:                                                   CASE NO. 17-15-05

THE ADOPTION OF

       M.G.                                              OPINION

[BRYCE GARMAN - APPELLANT].



                 Appeal from Shelby County Common Pleas Court
                                 Probate Division
                          Trial Court No. 2014 ADP 016

                                     Judgment Affirmed

                          Date of Decision: December 14, 2015



APPEARANCES:

        Scott A. Kelly for Appellant

        Stanley R. Evans and Aaron D. Lowe for Appellee
Case No. 17-15-05


WILLAMOWSKI, J.

       {¶1} Petitioner-appellant Bryce Garman (“Garman”) brings this appeal

from the judgment of the Shelby County Court of Common Pleas, Probate

Division, denying his petition to adopt M.G. Garman alleges that the trial court

erred in determining that Garman failed to prove, by clear and convincing

evidence that the father, Aaron Mescher (“Aaron”) lacked justifiable cause for his

failure to support. For the reasons set forth below, the judgment is affirmed.

       {¶2} On January 3, 2008, M.G. was born to Staci Garman (“Staci”) and

Aaron. Tr. 16. No legal action was taken by any party to establish paternity, child

support, or visitation. Instead the parties proceeded by agreement of the parties

and their families with the desire “to keep stuff out of the court”.   Tr. 17. In the

winter of 2008, guardianship of M.G. was voluntarily granted to Staci’s mother.

Tr. 17. The guardianship continued until July of 2012. Tr. 18. On June 29, 2013,

Staci married Garman. Tr. 13. On December 8, 2014, Garman filed a petition to

complete a step-parent adoption of M.G. without the consent of Aaron. Doc. 1.

The petition alleged that Aaron’s consent was not necessary because he had failed

without justifiable cause to provide for M.G.’s maintenance and support as

required by law for at least one year immediately preceding the filing of the

petition. Id. On January 8, 2015, Aaron filed his answer and objection to the

adoption. Doc. 12. A hearing on the necessity of Aaron’s consent was held on



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March 16, 2015. Tr. 6. The trial court entered its judgment on April 2, 2015,

holding that Aaron had failed to support M.G. for the year immediately preceding

the petition, but that he had justifiable cause for that failure. Doc. 30. As a result,

the trial court determined that Aaron’s consent was necessary and, since Aaron did

not consent, dismissed the petition for adoption. Id. Garman filed his notice of

appeal on April 30, 2015. Doc. 31. On appeal, Garman raises the following

assignment of error:

       The trial court erred in holding that [Garman] failed to prove
       lack of justifiable cause for failure of [Aaron] to support the
       minor child for the one-year period prior to the filing of the
       petition for adoption.

       {¶3} Pursuant to R.C. 3107.06, the consent of both of a child’s biological

parents is required for an adoption to be granted. However, R.C. 3107.07(A)

provides that the consent of a parent will not be required if “the parent has failed

without justifiable cause to communicate 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 * * * the filing of the adoption

petition”. R.C. 3107.07(A). The petitioner must prove by clear and convincing

evidence not only that there has been a failure to support, but that there was a lack

of justifiable cause. In re Adoption of Masa, 23 Ohio St.3d 163, 166, 492 N.E.2d

140 (1986). This requirement was later reiterated by the Ohio Supreme Court in

In re Adoption of Bovett, 33 Ohio St.3d 102, 515 N.E.2d 919 (1987).


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        Pursuant to R.C. 3107.07(A), the petitioner for adoption has the
        burden of proving, by clear and convincing evidence, both (1)
        that the natural parent has failed to support the child for the
        requisite one-year period, and (2) that this failure was without
        justifiable cause.

        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.

Id. at syllabus. Once a nonconsenting parent has articulated a justifiable cause,

that parent has no burden to show that it was justifiable as that parent does not

have the burden of proof. In re Doe, 123 Ohio App.3d 505, 508, 704 N.E.2d 608

(1997).

        {¶4} “The 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.” Masa, supra at

163.    As long as the record contains some competent and credible evidence

supporting the probate court’s findings, the judgment will be affirmed. In re

Adoption of Groh, 153 Ohio App.3d 414, 2003-Ohio-3087, ¶31, 794 N.E.2d 695

(7th Dist.).

        Parents have a duty in Ohio under common and statutory law to
        support their children. Haskins v. Bronzetti, 64 Ohio St.3d 202,
        205 (1992). However, the person in custody of the child is not


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Case No. 17-15-05


       entitled to receive support payments from noncustodial parents
       on the basis of a general duty of support when no support order
       was issued at the time of the custody award. See Meyer v. Meyer,
       17 Ohio St.3d 222, syllabus (1985). In addition, a natural parent
       is not obligated to provide support where the person in custody
       of the child is advised of the parent's financial condition and
       expresses no interest in receiving financial assistance. In re
       Adoption of Hadley, 2d Dist. Greene No. 90 CA 117, 1991 WL
       227737.

In re J.A.B., 11th Dist. Trumbull No. 2013-T-0114, 2014-Ohio-1375, ¶44.

       {¶5} At the hearing, Staci testified that no court proceedings were initiated

after M.G.’s birth because they all wanted to avoid going to court. Tr. 17. Staci

testified that Aaron, or his family on Aaron’s behalf, had paid half of the hospital

bill from the birth of M.G. Tr. 18. Two weeks after M.G. was born, the parties

agreed that they would not go to court to have parental rights and responsibilities

established and support was just to be discussed later. Tr. 19. Staci admitted that

she had refused to give M.G.’s social security number to Aaron or his family so

that they could set up any financial accounts for her. Tr. 21. Staci testified that in

the year preceding the petition, Aaron had provided no support for M.G. Tr. 22.

Staci denied telling Aaron that she did not want support. Tr. 23. According to

Staci in July of 2013, Aaron told her he wanted to go to court to establish his

rights and responsibilities and she told him to do what he felt was necessary. Tr.

24. On cross-examination, Staci admitted that prior to her marriage to Garman,

she had consulted with a lawyer about him adopting M.G. Tr. 34. Staci also



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admitted that she had originally allowed Aaron to visit with M.G. four times a

month, but over time had decreased that visitation to twice a month and then when

it was convenient for Staci after the petition for adoption was filed. Tr. 35, 51.

Staci admitted that she did not want to go to court and have support established.

Tr. 38-42.   Staci indicated that she did not allow Aaron to visit with M.G.

anyplace besides her home and only when she or her mother could supervise. Tr.

138.

       {¶6} Garman testified that he was married to Staci. Tr. 54. However, he

was not able to testify to any information as he was not aware of what

conversations occurred between Staci and Aaron or as to what occurred between

them. Tr. 55-56. On cross-examination, Garman testified that his only knowledge

about the support was what Staci told him. Tr. 57. Garman also testified that he

and Staci had started discussing having him adopt M.G. before they were married

in 2013. Tr. 58.

       {¶7} Aaron testified that after M.G. was born, he told Staci that he wanted

to go to court to set up child support and visitation, but she stated that she

preferred they “keep this civil and between us.” Tr. 66. Aaron testified that Staci

originally allowed him to visit with M.G. every other Wednesday and every other

Saturday. Tr. 69. Then the visits were cut down to twice a month in June of 2012.

Tr. 69. In December of 2013, Staci informed him he would have to text her and



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she would tell him what time was “available to visit” M.G. Tr. 69. The visits

occurred at Staci’s home, though he was permitted to take M.G. to get ice cream a

couple of times until Staci told him to stop doing that. Tr. 70. Aaron testified that

he never went to court because he did not want to do anything that would be

emotionally detrimental to M.G. and Staci was adamant that they not go to court.

Tr. 71. According to Aaron, he was intimidated by Staci and was afraid that she

would “cut [him] out of the picture”. Tr. 71.

       {¶8} On cross-examination, Aaron testified that he has paid into an account

in his name for M.G.’s benefit. Tr. 74. Aaron also testified that Staci had never

asked for any money. Tr. 76. Aaron admitted that he was employed and earned

$14.50 an hour working at least forty hours a week. Tr. 77. Based upon his

income, Aaron admitted that he has been able to financially assist in the support of

M.G. Tr. 79. According to Aaron, he last spoke to Staci about going to court in

December 2013. Tr. 80. Aaron’s understanding of what was meant by going to

court would be to establish child support and visitation. Tr. 80. However, Aaron

admitted that he did not specifically use the words “child support” or have

conversations specifically regarding financial support. Tr. 82. Aaron testified that

Staci had told him that she did not want financial support from him for M.G. after

M.G. was born and she never indicated differently. Tr. 83.




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       {¶9} On redirect, Aaron testified that the approximate balance in the

account he had set up for M.G. was $18,500.00. Tr. 86. Aaron did not give that

money to Staci because he was told by a prior attorney that the money would be

viewed as a gift, not child support if it was not paid through the courts. Tr. 86.

Aaron testified that each of the times that he suggested they go to court to resolve

the issues of visitation and support, Staci talked him out of it, insisting that they

could “still continue to be civil about this”. Tr. 88. Staci told him that the

reduction in visitation was because their schedules were so busy that it had to be

that way. Tr. 88. Aaron testified that every time he would ask for additional time

or to be allowed to have M.G. for a weekend, Staci would reduce his visitation, so

he became scared of asking for anything. Tr. 89. As of November 2014, Staci had

stopped all visitation. Tr. 89. On one occasion, Aaron was allowed to take M.G.

to a restaurant down the street from Staci’s mother’s home, but when he took

M.G. back, Staci was upset because he had not texted her to inform her that he

was taking M.G. to that diner. Tr. 90. Upon questioning by the judge, Aaron

testified that he had no items for M.G. at his home because Stacie did not permit

M.G. to come to his home. Tr. 94-95.

       {¶10} James Tesno (“Tesno”) testified that he had consulted with Aaron on

two separate occasions. Tr. 101. In February of 2008, he consulted with Aaron

about a guardianship.     Tr. 102.   At a later meeting, they discussed filing a



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proceeding in court to establish parental rights and responsibilities for M.G. Tr.

102. Although Tesno did not recall the exact advice he gave Aaron, he testified

that he would usually advise a client to not make direct payments for support to

the other parent, but to have a support order set up by the court. Tr. 103.

       {¶11} Dennis McMahon (“McMahon”) testified that he has been Aaron’s

employer since April of 2013. Tr. 111-12. McMahon testified that Aaron is quiet

and does not speak up much. Tr. 112. When McMahon learned that Aaron had a

daughter, he asked him about a child support order and Aaron told him that Staci

did not want any. Tr. 112.

       {¶12} Azile Mescher (“Azile”) testified that she is Aaron’s mother and

M.G.’s grandmother. Tr. 117. Azile testified that after M.G. was born, the

families had a meeting and the issue of financial responsibility was raised. Tr.

118. At that time, Staci told them that she did not want any money, just for Aaron

to pay half of the hospital bill. Tr. 118-19. Aaron paid the bill by giving her the

money as he did not have a checking account and she then paid it with a check.

Tr. 127. Azile testified that she asked for M.G.’s social security number so that an

account could be opened for M.G. in case Staci wanted money in the future. Tr.

119. According to Azile, Aaron talked to Staci on multiple occasions about going

to court to establish parental rights and responsibilities, but ended up not doing it

as he did not want to upset the situation. Tr. 121. Azile described Aaron as very



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timid and more of a follower. Tr. 122. Azile testified that Aaron had been

continuously contributing to an account for M.G.’s support in case Staci ever

asked for money, but Staci has never asked. Tr. 130-31. When questioned by the

judge, Azile testified that she asked for M.G.’s social security number to set up a

fund, but Staci refused to give it to her and insisted that she did not want any

financial help.1 Tr. 131.

           {¶13} On rebuttal Staci testified that she only permitted Aaron to see M.G.

if he was supervised. Tr. 137. She claimed to have reasons for doing so based

upon “some things that have happened in Aaron’s past”. Tr. 137. However, she

does not believe that she is intimidating or controlling. Tr. 136-37. The judge

then asked Staci about why she was reducing visitation.                    Tr. 140-41.   Staci

indicated that Aaron had been arrested for “some inappropriate stuff on his

computer” and that he was convicted of it, but the record was sealed. Tr. 141. As

a result, Staci has always insisted that the visits be supervised and Aaron is

allowed to be in a room with M.G. by himself as long as Staci or her parents can

see him. Tr. 142.

           {¶14} In its judgment entry, the trial court determined that Garman had

shown by a preponderance of the evidence that Aaron had failed to support M.G.

for the year immediately preceding the filing of the petition. Doc. 30 at 3.             This

finding is supported by the evidence. The trial court then determined that Aaron
1
    The number was provided to Aaron after a couple of years had passed.


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had put forth a facially justifiable reason for this failure based upon the fact that

Staci had declined support and that she had actively interfered with the parent-

child relationship between Aaron and M.G. Initially, this court notes that due to

the inaction of both Aaron and Staci, there was no court ordered child support.

Garman argues that the trial court’s decision was erroneous because it was based

upon Staci’s failure to prosecute a claim for child support. Although this was one

of the reasons offered by the trial court, it was only one of the factors considered

as part of the totality of the circumstances. We would emphasize that prosecution

of a claim for child support is not a necessary predicate to a finding of failure to

support. The offer of support and the decline of it by Staci, along with her

repeated statements that they should not go to court, but should keep it just

between them, back the trial court’s determination that a facially justifiable reason

was provided. This then requires that Garman prove by clear and convincing

evidence that there was no justifiable reason.

       {¶15} The trial court in this case found that Garman had failed to prove by

clear and convincing evidence that there was no justifiable reason for the lack of

support. Id. at 5. In doing so, the trial court held as follows.

       Under the circumstances of this case the parties[’] interactions
       are an important consideration for this Court. On one hand the
       mother has been in complete control of every aspect of [M.G.’s]
       life. Staci dictated all contact between Aaron and [M.G.] from
       the beginning, controlling when, where and for how long
       visitation (between father and daughter) would be. Aaron, on


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      the other hand, never wanted to make waves (with Staci) fearing
      disputes would cause emotional issues with [M.G.].

      During the Court’s questioning of Staci, the Court inquired as to
      why visitation decreased as [M.G.] aged, as opposed to
      increasing as most visitation arrangements provide. Staci’s
      response was that she had concerns for [M.G.’s] safety due to a
      criminal conviction that Aaron received while in college. Such
      conviction has since been expunged. Staci’s explanation was not
      credible to this Court because her concerns were never revealed
      before being questioned by the Court. The Court finds that
      Staci’s restrictions were not related to safety concerns for [M.G.]
      and that she actively interfered with the parent-child
      relationship between Aaron and [M.G.].

      The Court observed the demeanor, gestures and voice inflections
      of Staci and Aaron and concludes that Staci dominated Aaron
      and thwarted his ability to become a part of [M.G.’s] life by
      constricting his visitation and refusing support. Staci owed
      [M.G.] the duty to pursue child support from her father. Her
      pursuit of obtaining support is just as important as the father’s
      responsibility to pay it.

Id. at 4-5. All of these findings by the trial court were supported by the testimony

at the hearing. Based upon the evidence before it, the trial court determined that

Garman had not proven by clear and convincing evidence that Aaron lacked a

justifiable reason for failing to provide support and maintenance for M.G. as there

was no court order for support and Staci had repeatedly discouraged any

suggestion of going to court and had previously refused financial assistance when

it was offered..    As there was competent, credible evidence to support the

judgment of the trial court, the trial court did not abuse its discretion in




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determining that Aaron’s consent to the adoption was necessary and in dismissing

the petition for adoption. The assignment of error is thus overruled.

       {¶16} Having found no error prejudicial to appellant in the particulars

assigned and argued, the judgment of the Court of Common Pleas, Probate

Division is affirmed.

                                                               Judgment Affirmed

ROGERS, P.J. and SHAW, J., concur.

/hlo




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