[Cite as In re Adoption of A.S., 2017-Ohio-2814.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                      FULTON COUNTY


In re Adoption of A.S.                                  Court of Appeals No. F-16-008

                                                        Trial Court No. 20164013



                                                        DECISION AND JUDGMENT

                                                        Decided: May 12, 2017

                                                    *****

        Ian A. Weber, for appellant.

        Gary L. Smith, for appellees.

                                                    *****

        SINGER, J.

        {¶ 1} Appellant, C.P., appeals the September 28, 2016 judgment of the Fulton

County Court of Common Pleas, Probate Division, in which the court found his consent

was not required for the adoption of A.S., his daughter. Finding no error, we affirm.
                                Assignments of Error

     {¶ 2} Appellant sets forth the following assignments of error:

            1. The trial court abused its discretion by ruling that [C.P.], who is

     presumed to be the biological father by acknowledgement of paternity has

     failed without justifiable cause to provide more than de minimis contact

     with the minor child, [A.S.] pursuant to R.C. 3107.07, for a period of at

     least one year immediately preceding the filing of the Adoption when the

     biological mother intentionally lied to the presumed father that he was not

     the father as the result of an at home DNA test and whether this was a

     justifiable reason for the presumed father to stop consistent contact with the

     minor child.

            2. The trial court abused its discretion by denying the presumed

     father-appellant’s motion for D.N.A. testing to determine if he is or is not

     the biological father of the minor child.

            3. The trial court abused its discretion in determining that although

     the biological mother’s conduct was reprehensible in lying to [C.P.] about

     the DNA test results it was justified under R.C. 3107.07(A) when in fact the

     biological mother unduly influenced and defrauded [C.P.] by repeatedly

     stating he was not the father through an at home DNA test and any lack of

     contact was a direct result of her conduct or statements regarding the test.




2.
                                           Facts

       {¶ 3} On July 21, 2016, appellees, T.S. and R.S., petitioned the trial court for the

adoption of their granddaughter, A.S.

       {¶ 4} A.S. was born October 2014. Appellees are the maternal grandparents of

A.S., and their daughter, R.S., is the biological mother of A.S (“mother”).

       {¶ 5} On July 21, 2016, the mother voluntarily consented to and waived notice to

the adoption and hearing of A.S. A hearing was set for September 19, 2016. Notice of

this hearing was sent to appellant at the Lebanon Correctional Institute, where he was

incarcerated as of September 2015.

       {¶ 6} The notice to appellant stated that appellees were alleging that his consent

was not required due to his unjustifiable failure to provide more than de minimis contact

from July 21, 2015, to July 21, 2016, which was for one year preceding the petition for

adoption. The notice further informed appellant he would lose his parental rights,

“including the right to contact the minor” and the “legal relationship” between him and

the minor, “so that the minor thereafter is a stranger to [him] and the minor’s former

relatives for all purposes.” Appellant was given 14 days beyond service to file objection.

       {¶ 7} The record reflects that service was perfected, at the Lebanon Correctional

Institute, on July 28, 2016. However, there is no evidence of when appellant received the

notification.

       {¶ 8} Appellant filed his objection and notice of appearance on September 12,

2016, therein requesting a stay of the proceedings and a judicial determination of




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paternity. On that same day, appellees responded to appellant’s requests arguing that

since he signed the child’s birth certificate and thereby affirmed he was the biological

father, any paternity issue was moot and, therefore, there was no justification for his one-

year failure to have contact with the child.

       {¶ 9} Appellant then moved the court to appear by video or for a continuance to

arrange his appearance. The motion was denied because the court found the request

contrary to its policy of not transporting or allowing prisoners to testify in civil matters.

       {¶ 10} The hearing was held on September 19, 2016. At the hearing and for

appellees, both appellees and their daughter (A.S.’s mother) testified. For appellant, his

mother, the presumed paternal grandmother, testified.

       {¶ 11} First, appellee-grandmother testified how A.S. lived with them since she

was one week old, and that appellees had guardianship since January 2015. Appellee-

grandmother stated that, according to her recollection, appellant had not seen his daughter

since May 2015. She also said that, as far as she knew, he had not attempted to contact

his daughter.

       {¶ 12} Then appellee-grandfather testified. He confirmed the facts his wife stated,

however, he stated that his knowledge of whether appellant had contacted or tried to

contact A.S. was limited. In specific, he stated appellant did not have his phone number

and, thus, would not have been able to contact A.S. through him anyway.

       {¶ 13} Lastly, for appellees, A.S.’s biological mother testified. She spoke of her

and appellant’s relationship. She said they began dating around July 2012, and ended the




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relationship in February 2015. She stated that around the time they ended it, she told

appellant he was not A.S.’s biological father. As a result, the couple decided to order an

at-home DNA test to settle the paternity issue.

       {¶ 14} The mother testified that she lied to appellant about the DNA test results

and led him to believe that he was not A.S.’s biological father, as of April 2015. Her

primary rationale for the deception was that she feared for A.S.’s well-being and found

appellant to be a “dangerous person.”

       {¶ 15} Despite the admitted deceit, the mother stated appellant often asked

whether he was the father. She also confirmed that he continuously asked about the

child’s well-being, and that she eliminated interaction between them because she could

not afford to accept collect calls from prison.

       {¶ 16} She also testified that the presumed, paternal grandmother had not given up

on attempting to build or maintain a relationship with A.S., despite being lied to about the

at-home paternity test. For example, she stated that in September 2015, the paternal

grandmother wanted A.S. to visit appellant in prison for his birthday. The mother refused

the visitation and stated in her view a prison was not appropriate for an infant visit.

       {¶ 17} After the mother’s testimony was complete, appellees concluded their

calling of witnesses. Then, on behalf of appellant, his mother was called to testify.

       {¶ 18} The paternal grandmother clarified that appellant and A.S.’s mother were

engaged to marry. She also expressed how she and her son adored and still adore A.S.

She recalled receiving the first indication that A.S. may not have been her biological




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granddaughter as early as March 2015. Her recollection was that, up until that point, she

and her son were heavily involved in A.S.’s life. She also stated she purchased blood

cord storage and funded the baby shower prior to A.S. being born.

       {¶ 19} The paternal-grandmother, further, discussed the events of May 25, 2015,

which was the day appellees asserted was the last contact appellant had with A.S. She

said that she was present and recalls her son holding A.S. She confirmed that she and her

son, even up until the day of the September 19, 2016 hearing, were confused and unsure

whether A.S. was biologically related to them. Her testimony began to shape the

devastation she and her son experienced as a result of, first, feeling hoodwinked about

being biologically related to A.S., and then, being strung along for over a year about the

DNA test results.

       {¶ 20} The paternal grandmother stressed the amount of times she and her son

inquired about the test results. She implied that not only A.S.’s mother but, also,

appellees, the maternal grandparents, were in on the deceit. She said the maternal

grandparents would block her calls and, she stated, the maternal grandmother even went

as far as suggesting A.S. call her “Auntie Michelle” one day in light of the child not

being her biological granddaughter. Lastly, the paternal grandmother confirmed for the

record that she and her son both wanted A.S. to visit prison, to no avail, on his birthday in

September 2015.

       {¶ 21} The court rendered its judgment on September 28, 2016, finding appellant

acknowledged being the biological father and therefore had an obligation to provide at




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least de minimis contact with his daughter. The court found he failed in this respect and

ordered that his consent was not required. The court also declared his request for judicial

determination of paternity moot.

       {¶ 22} Appellant filed a timely notice of appeal from the September 28, 2016

judgment.

                                    Standard of Review

       {¶ 23} “The question of whether justifiable cause exists in a particular case is a

factual determination for the probate court and will not be disturbed upon appeal unless

such determination is unsupported by clear and convincing evidence.” In re Adoption of

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

                                     Law and Analysis

       {¶ 24} In appellant’s first and third assigned errors, he asserts that the trial court

erred in finding he unjustifiably failed to provide de minimis contact with A.S. when her

mother lied and said he was not the biological father. In the second assigned error,

appellant argues the court erred in denying his request for judicial determination of

paternity.

       {¶ 25} Appellees respond that since appellant was already presumed to be the

father; and he, not the mother’s deception, was the proximate cause of his failing to

contact or maintain the child-parent relationship with A.S.

       {¶ 26} Because we find establishing the parental relationship is necessary to

address the first and third assigned errors, we address the second assigned error first.




7.
       {¶ 27} R.C. 3107.07(A) provides that a parent’s consent to adoption is not

required if the parent fails without justifiable cause to communicate with the minor for a

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

R.C. 3107.07(A); see also In re Adoption of T.M., 6th Dist. Sandusky No. S-09-010,

2009-Ohio-5194, ¶ 13. This exception must be strictly construed so as to protect the right

of natural parents to raise and nurture their children. In re Adoption of Schoeppner, 46

Ohio St.2d 21, 24, 345 N.E.2d 608 (1976).

       {¶ 28} “The ability of a court to dispense with the consent requirement under R.C.

3107.07(A) is dependent upon the establishment of the parent-child relationship[.]” In re

Adoption of Sunderhaus, 63 Ohio St.3d 127, 130, 585 N.E.2d 418 (1992).

       {¶ 29} R.C. 3111.02(A) states “[t]he parent and child relationship between a child

and the natural father of the child may be established by an acknowledgment of paternity

as provided in sections 3111.20 to 3111.35 of the Revised Code, and pursuant to sections

3111.01 to 3111.18 or 3111.38 to 3111.54 of the Revised Code.”

       {¶ 30} R.C. 3111.03(A)(3) follows with “[a] man is presumed to be the natural

father of a child” if “[a]n acknowledgment of paternity has been filed pursuant to section

3111.23 * * *of the Revised Code and has not become final under former section

3111.211[.]”

       {¶ 31} R.C. 3111.23 provides that the mother, potential father, a child support

enforcement agency, a local registrar of vital statistics, or a hospital staff person may, in

person or by mail, “file an acknowledgment of paternity with the office of child support




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in the department of job and family services, acknowledging that the child is the child of

the man who signed the acknowledgment.”

       {¶ 32} The presumption established under R.C. 3111.03(A)(3), as it relates to this

case, “can only be rebutted by clear and convincing evidence that includes the results of

genetic testing[.]” See R.C. 3111.03(B).

       {¶ 33} Here, the record reveals that appellant acknowledged paternity of A.S. on

October 9, 2014, which was two days after her birth. This acknowledgement was

notarized and filed with job and family services. The filing occurred in time for the

Office of Vital Statistics to record appellant’s name as father on A.S.’s birth certificate.

See R.C. 3111.31. Based on the record, and because no evidence was offered to rebut the

presumption under R.C. 3111.03(B), we find the parent-child relationship was established

between appellant and A.S. Therefore, the trial court did not err in denying appellant’s

request for judicial determination of paternity. The second assigned error is found not

well-taken.

       {¶ 34} Next we address whether the court erred in finding appellant failed without

justifiable cause to communicate with A.S. from July 21, 2015 to July 21, 2016. See R.C.

3107.07(A).

       {¶ 35} The finding of the probate court in adoption proceedings “will not be

disturbed on appeal unless such determination is against the manifest weight of the

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

paragraph four of the syllabus. A determination is not against the manifest weight of the




9.
evidence when it is supported by competent, credible evidence. C.E. Morris Co. v. Foley

Constr. Co., 54 Ohio St.2d 279, 376 N.E.2d 578 (1978), syllabus.

       {¶ 36} Here, appellant has always been the presumed father of A.S., and therefore

appellant was entitled to seek his rights as an unmarried father of his child. However,

appellant took no legal action to secure his rights prior to the adoption. To the contrary,

from May 2015 forward appellant relied on A.S.’s mother’s misrepresentation that he

was not the biological father. We note that this deception was unconscionable, however,

we find the trial court’s rationale persuasive on addressing the impact of this deception in

its analysis. The court stated:

              The court further finds that [A.S.’s mother]’s deceptive conduct of

       informing [appellant] that he is not the biological father of the child when

       she knew that the test results confirmed that he was the biological father

       was reprehensible at best. However, since the results of this unofficial

       genetic testing had no bearing on [appellant’s] status as a legal father of

       A.S., coupled with the fact that [appellant] failed to seek an official

       paternity test through the Fulton County CSEA, and further failed to

       petition this Court for guaranteed minimum parenting rights, the Court

       finds that [appellant’s] failure to provide more than de minimis contact with

       A.S. for a period of time between July 21, 2015 through July 21, 2016 was

       not justifiable.




10.
       {¶ 37} More specifically, appellant made no attempt to communicate with his

child, aside from requesting through his mother that the child visit him in prison. Prior to

being incarcerated, appellant did not contact his daughter after May 2015. Appellant was

then incarcerated in September 2015 and, thereafter, failed to contact A.S. See In re

Adoption of T.M., 6th Dist. Sandusky No. S-09-010, 2009-Ohio-5194, at ¶ 17 (“Ohio

courts have consistently held that incarceration alone is not a justifiable reason for failing

to communicate with one’s child.”). Appellant did not send a card, letter, gift, or

message, nor did he specifically call A.S. during the relevant time period.

       {¶ 38} Based on the foregoing, we find that the trial court did not err in

determining that appellant’s failure to communicate with his child for one year prior to

the date the petition to adopt was filed was without justifiable cause. Therefore,

appellant’s consent to A.S.’s adoption was not required, and the first and third assigned

errors are found not well-taken.

                                         Conclusion

       {¶ 39} The judgment of the Fulton County Court of Common Pleas, Probate

Division, is affirmed. Appellant is ordered to pay the costs of this appeal pursuant to

App.R. 24.


                                                                          Judgment affirmed.




11.
                                                               In re Adoption of A.S.
                                                               C.A. No. F-16-008




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Mark L. Pietrykowski, J.                       _______________________________
                                                           JUDGE
Arlene Singer, J.
                                               _______________________________
Thomas J. Osowik, J.                                       JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE




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