[Cite as In re Adoption of A.S., 2011-Ohio-1505.]


                                        COURT OF APPEALS
                                      LICKING COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



IN THE MATTER OF THE                                   JUDGES:
ADOPTION OF:                                           Hon. William B. Hoffman, P.J.
                                                       Hon. Sheila G. Farmer, J.
A. S.                                                  Hon. John W. Wise, J.

                                                       Case No. 10-CA-140


                                                       OPINION




CHARACTER OF PROCEEDING:                            Appeal from the Court of Common Pleas,
                                                    Probate Division, Case No. 2010-1091



JUDGMENT:                                           Affirmed




DATE OF JUDGMENT ENTRY:                             March 25, 2011




APPEARANCES:

For Appellant                                       For Appellee

TITUS G. DONNELL                                    W. SCOTT HAYES
503 South Front Street                              195 East Broad Street
Suite 254                                           P.O. Box 958
Columbus, OH 43215                                  Pataskala, OH 43062
Licking County, Case No. 10-CA-140                                                      2

Farmer, J.

       {¶1}    On September 28, 2010, appellee, Bryce Sesher, filed a petition for a

stepparent adoption of A. S., a minor child. Mother of the child is Ashli Walker, nka

Ashli Sesher; biological father is appellant, John Kirkbride, Jr. On November 1, 2010,

appellant filed an objection to the petition.

       {¶2}    A hearing was held on November 23, 2010. By judgment entry filed same

date, the trial court found appellant's consent was not necessary as he had failed to

provide more than de minimus contact with the child and failed to provide maintenance

and support for the child for a period of one year immediately preceding the filing of the

petition or the placement of the minor in the home of the petitioner. A final decree of

adoption was filed on November 23, 2010 wherein the trial court found it was in the

child's best interest to grant the petition.

       {¶3}    Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

                                                I

       {¶4}   "RESPONDENT/APPELLANT FATHER HAD JUSTIFIABLE CAUSE FOR

FAILING TO PROVIDE SUPPORT FOR A.S. DURING THE ONE-YEAR PERIOD

IMMEDIATELY PRECEDING THE FILING OF THE ADOPTION PETITION BECAUSE

THE      FRANKLIN         COUNTY          JUVENILE      COURT      ORDER       PLACING

RESPONDENT/APPELLANT FATHER'S CHILD SUPPORT ORDER AT ZERO

ALLEVIATED       RESPONDENT/APPELLANT               FATHER'S   STATUTORY      SUPPORT

OBLIGATION."
Licking County, Case No. 10-CA-140                                                       3


                                            II

      {¶5}   "THE SUPPORT OFFERED BY MR. KIRKBRIDE'S PARENTS DURING

THEIR COURT ORDERED VISITATION CAN BE IMPUTED TO MR. KIRKBRIDE AND

IS SUFFICIENT TO REQUIRE HIS CONSENT FOR THE ADOPTION OF A.S."

                                            III

      {¶6}   "THE PETITIONER/APPELLEE FAILED TO PROVE BY CLEAR AND

CONVINCING       EVIDENCE       THAT     RESPONDENT/APPELLANT               FAILED   TO

COMMUNICATE WITH A.S. DURING THE YEAR IMMEDIATELY PRECEDING THE

FILING OF THE ADOPTION PETITION."

                                         I, II, III

      {¶7}   Appellant claims the trial court erred in finding his consent was not

required for the adoption petition pursuant to R.C. 3107.07. We disagree.

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

petition 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 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.

      {¶9}   R.C. 3107.07 governs "[c]onsents not required," and states the following:

      {¶10} "Consent to adoption is not required of any of the following:
Licking County, Case No. 10-CA-140                                                      4


       {¶11} "(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

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."

       {¶12} "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. (In re Adoption of Masa [1986], 23 Ohio St.3d 163, 23 OBR 330, 492

N.E.2d 140, paragraph one of the syllabus, followed.)" In Re Adoption of Bovett (1987),

33 Ohio St.3d 102, paragraph one of the syllabus.

       {¶13} Pursuant to judgment entry finding consent not required filed November

23, 2010, the trial court based its decision on appellant's failure to "provide more than

de minimis contact with the minor for a period of at least one year immediately

preceding the filing of the petition" and failure 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."

       {¶14} Appellant argues the trial court failed to consider that his lack of support

for the child was justifiable, as he was ordered to pay $0.00 in child support per a

Franklin County paternity action (Case No. 08JU-07-10133):
Licking County, Case No. 10-CA-140                                                       5


       {¶15} "EFFECTIVE 2/9/09, AND ANY TIME AFTERWARD THAT PRIVATE

HEALTH INSURANCE IS IN EFFECT, THE FOLLOWING ORDERS SHALL APPLY:

       {¶16} "1. DEFENDANT SHALL PAY CHILD SUPPORT IN THE AMOUNT OF

$0.00 PER MONTH, PLUS PROCESSING CHARGE, FOR THE MINOR CHILD

PURSUANT TO THE CHILD SUPPORT WORKSHEET.

       {¶17} "***

       {¶18} "EFFECTIVE 2/9/09, AND ANY TIME AFTERWARD THAT PRIVATE

HEALTH INSURANCE IS NOT IN EFFECT, THE FOLLOWING ORDERS SHALL

APPLY:

       {¶19} "1. DEFENDANT SHALL PAY CHILD SUPPORT IN THE AMOUNT OF

$0.00 PER MONTH, PLUS PROCESSING CHARGE, AND $0.00 PER MONTH IN

CASH MEDICAL SUPPORT, PLUS PROCESSING CHARGE, PURSUANT TO THE

CHILD SUPPORT WORKSHEET, FOR THE ONE (1) MINOR CHILD."

       {¶20} Appellant argues because there was no judicial decree ordering him to

provide child support, he was released from the obligation. Although this is true, R.C.

3107.07 is written in the conjunctive. It is the failure to provide for the maintenance and

support of the child as required by law or judicial decree. The Franklin County order

satisfies the failure to support as required by judicial decree; however, appellant was

still under a statutory duty to support his child:

       {¶21} "(A) No person shall abandon, or fail to provide adequate support to:

       {¶22} "(2) The person's child who is under age eighteen, or mentally or

physically handicapped child who is under age twenty-one." R.C. 2919.21(A)(2). R.C.

2919.21(D) provides the following affirmative defense:
Licking County, Case No. 10-CA-140                                                       6


      {¶23} "It is an affirmative defense to a charge of failure to provide adequate

support under division (A) of this section or a charge of failure to provide support

established by a court order under division (B) of this section that the accused was

unable to provide adequate support or the established support but did provide the

support that was within the accused's ability and means."

      {¶24} It is appellant's position that because he was in prison, he was unable to

provide support for the child.1 However, appellant made no attempt "within his means"

to provide support.

      {¶25} Appellant also argues his parents have a companionship order with the

child (Franklin County Case No. 09JU-5859), and therefore they provide de facto

support for their one day a month visit with the child. R.C. 2919.21(F) addresses this

argument:

      {¶26} "It is not a defense to a charge under division (B) of this section that the

person whom a court has ordered the accused to support is being adequately supported

by someone other than the accused."

      {¶27} The real issue is whether appellant's incarceration is sufficient to establish

"justifiable cause." The facts in this case are strikingly similar to the facts in Askew v.

Taylor, Stark App. No. 2004CA00184, 2004-Ohio-5504. In Askew, the biological father

was incarcerated on two counts of felony child endangering as a result of injuring his

children. The appellant sub judice was incarcerated on one count of felonious assault

and one count of child endangering involving A. S. The Askew court held the following

at ¶15:

1
 On December 14, 2007, appellant was sentenced to serve nine years in prison
(Franklin County Case No. 07CR-01-683).
Licking County, Case No. 10-CA-140                                                         7


       {¶28} "As a result of appellant's criminal behavior, the Stark County Court of

Common Pleas, Family Court Division, entered an order prohibiting appellant from

having contact with his children.     As noted by appellee, appellant 'created his own

circumstances and should not be allowed to benefit from the consequences of this.'

Appellant's own violent acts caused both the subsequent lack of support for and contact

with DeVaughnte. See Frymier [v. Crampton, Licking App. No. 02 CA 8, 2002-Ohio-

3591], supra. Under the specific facts and circumstances of this case, we find that, the

trial court's determination that appellant's consent to the adoption was not required was

proper."

       {¶29} Apart from the language of Askew, appellant made no attempt to support

his child. We conclude despite the lack of a judicial decree, appellant was still obligated

under the law to provide support to his child which he failed to do.

       {¶30} Appellant also argues the trial court erred in finding he 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 petition." In support, appellant

points to the testimony of the child's mother, Ashli Sesher. Mrs. Sesher testified the

paternal grandparents took the child to visit appellant in jail when the child was nine

months old. T. at 15. At the time of the filing of the petition, the child was two years old.

Mrs. Sesher also testified to an occasional comment in a letter to "Tell [A. S.] hi" when

the child was six months old. T. at 15-16. Appellant argues the following testimony

established contact:

       {¶31} "Q. Okay. Was there any contact prior to - - excuse me, after June of '08?

       {¶32} "A. Not that I am aware of.
Licking County, Case No. 10-CA-140                                                    8


       {¶33} "Q. Prior to that were you aware of any other contact other than the one at

the jail?

       {¶34} "A. He would call the house, their house, and they would - - I'm sure, let

them speak to him - - let her speak to him.

       {¶35} "Q. Okay. You're not aware of - -

       {¶36} "A. I'm not.

       {¶37} "Q. - - when this happened. Okay. Has there been any kind of gifts made

from him?

       {¶38} "A. No.

       {¶39} "Q. Money?

       {¶40} "A. No.

       {¶41} "Q. Other payments?

       {¶42} "A. Nope.

       {¶43} "Q. Any other kinds of contact?

       {¶44} "A. No." T. at 16.

       {¶45} We find this exchange does not establish any contact, but indicates Mrs.

Sesher's lack of knowledge of any particular contact. There is no other testimony in the

record affirmatively establishing any contact by appellant with A. S.

       {¶46} Upon review, we conclude the trial court's decision that appellant neither

supported nor contacted the child without justifiable cause is substantiated by the

record.

       {¶47} Assignments of Error I, II, and III are denied.
Licking County, Case No. 10-CA-140                                             9


      {¶48} The judgment of the Court of Common Pleas of Licking County, Ohio,

Probate Division is hereby affirmed.

By Farmer, J.

Hoffman, P.J. and

Wise, J. concur.




                                       s/ Sheila G. Farmer__________________




                                       _s/ William B. Hoffman________________




                                       _s/ John W. Wise   ________________

                                                      JUDGES

SGF/sg 315
Licking County, Case No. 10-CA-140                                             10


            IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO

                            FIFTH APPELLATE DISTRICT




IN THE MATTER OF THE                     :
ADOPTION OF:                             :
                                         :
A. S.                                    :        JUDGMENT ENTRY
                                         :
                                         :
                                         :        CASE NO. 10-CA-140




        For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Licking County, Ohio, Probate Division is

affirmed. Costs to appellant.




                                         s/ Sheila G. Farmer__________________




                                         _s/ William B. Hoffman________________




                                         _s/ John W. Wise     ________________

                                                        JUDGES
