[Cite as In re I.M.B., 2012-Ohio-6264.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

IN RE:                                            JUDGES:
                                                  Hon. W. Scott Gwin, P.J.
ADOPTION OF IMB                                   Hon. William B. Hoffman, J.
                                                  Hon. Julie A. Edwards, J.

                                                  Case No. 2012CA00137


                                                  OPINION




CHARACTER OF PROCEEDING:                       Appeal from the Stark County Court of
                                               Common Pleas, Probate Division Case No.
                                               213388


JUDGMENT:                                      Affirmed


DATE OF JUDGMENT ENTRY:                        December 31, 2012


APPEARANCES:


For Plaintiff-Appellant                        For Defendant-Appellee


JENNIFER LOWRY-JUERGENSEN                      ARNOLD GLANTZ
Crawford, Lowry & Associates                   4883 Dressler Road
116 Cleveland Aveenue NW                       Canton, Ohio 44718
Suite 800
Canton, Ohio 44702
Stark County, Case No. 2012CA00137                                                    2

Hoffman, J.

      {¶1}    Appellant Lara Barkheimer ("Grandmother") appeals the June 29, 2012

Judgment Entry entered by the Stark County Court of Common Pleas, Probate Division,

which denied her petition for adoption of her grandson, IMB, upon finding the consent of

the biological mother, Appellee Krystal Jennings ("Mother"), was required.

                          STATEMENT OF THE FACTS AND CASE

      {¶2}    Mother is the biological mother of IMB (dob 8/29/06). Grandmother is

IMB's maternal grandmother. In March, 2009, the Stark County Department of Job and

Family Services ("SCDJFS") placed IMB with Grandmother after Mother was involved in

an automobile accident while intoxicated and while IMB was in the vehicle, but not in a

safety restraint. The Stark County Court of Common Pleas, Family Court Division,

granted Grandmother custody of IMB in April, 2010.

      {¶3}    On November 15, 2011, Grandmother filed a Petition of Adoption. The

probate court conducted a hearing on May 14, 2012.         The following evidence was

adduced at the hearing.

      {¶4}    Grandmother testified Mother had no communication with IMB for the one

year period prior to her filing her adoption petition. Grandmother stated Mother made

only one attempt to communicate with the child during this time which was in the form of

a single text message. Grandmother acknowledged that she asked Mother to leave

them alone and advised her everything was fine. Grandmother indicated she wanted to

keep IMB safe and away from Mother because Mother had threatened Grandmother

and IMB. Mother requested visitation in 2009, but at no other time thereafter. Mother
Stark County, Case No. 2012CA00137                                                     3


did not send IMB birthday cards, letters, or gifts, and did not have any other

communication whatsoever with Grandmother.

       {¶5}    SCDJFS permitted visits between Mother and IMB, but required such

visits be supervised by Grandmother. Grandmother, however, did not allow the visits,

explaining she did not trust Mother.       After refusing to permit supervised visits,

Grandmother advised Mother to obtain an order from family court if she (Mother)

wanted visitation rights. Grandmother testified the custody order was silent on the issue

of visitation rights.

       {¶6}    Phone records reveal calls made between Mother's phone and

Grandmother's phone on 15 different days between June, 2011, and November, 2011.

Mother attempted to call four times on August 29, 2011, IMB's birthday. Phone records

also establish multiple calls were made from Grandmother's phone to Mother’s phone

throughout June, 2011. A three-way call involving Grandmother's and Mother's phone

numbers, which lasted under 2 minutes, occurred on IMB's birthday.

       {¶7}    Grandmother did not recall any phone conversations with Mother during

the year prior to her filing the petition. Grandmother stated any conversation on her

phone with Mother would have been by either Clark Barkheimer, her ex-husband with

whom she resided, or Jeremy Barkheimer, her step-son. Grandmother noted she never

responded to any phone calls or text messages from a phone number she did not

recognize. Grandmother stated she never blocked Mother's phone number from her

phone.

       {¶8}    Clark Barkheimer testified he did not know Mother's phone number. He

also stated he never answered Grandmother's phone calls or text messages, but had
Stark County, Case No. 2012CA00137                                                       4


looked at her phone. Barkheimer acknowledged Grandmother had her phone on her

person almost all of the time.         He reiterated he would not listen to or answer

Grandmother's phone. Barkheimer had never been served with or received a motion or

request for visitation.

       {¶9}   Jeremy      Barkheimer    testified   he   never   answered    or   touched

Grandmother's phone. He stated he had no personal knowledge of any threats made

by Mother to Grandmother, but maybe had heard of such threats once or twice. Jeremy

had no knowledge of any visitation requests made by Mother.

       {¶10} Mother testified she works full-time at KMart.           Mother stated she

attempted to contact Grandmother about 100 times in order to see IMB.              Mother

acknowledged her attempts to contact Grandmother decreased after the family court

had granted custody of IMB to Grandmother, and Grandmother had advised the court

Mother was harassing her.         Mother maintained she still attempted to contact

Grandmother.

       {¶11} Mother testified she wants to be in her son's life. She admitted she did not

ask for visitation at the custody hearing, but noted she was not allowed in the courtroom

at the time. Mother has filed a motion for visitation in the family court. Mother has gifts

for IMB. Mother explained she did not mail the gifts because she wanted IMB to receive

such directly from her, feared Grandmother would keep IMB from receiving the gifts if

she (Mother) mailed the items, and the postage would be a financial burden on her.

       {¶12} Mother last saw and spoke with IMB before the custody matter was closed

in April, 2010. Mother acknowledged the financial, emotional/psychological, and other
Stark County, Case No. 2012CA00137                                                      5


issues she had in the past. Mother stated she understood she could eventually regain

custody of IMB.

      {¶13} Joanne Corns testified she has known Mother since Mother was 12 years

old. Corns' daughter and Mother were friends. Corns stated Mother had attempted to

contact Grandmother on a number of occasions when Mother was at Corns' home.

Corns recalled Grandmother would hang up on Mother when Mother asked to see IMB.

Corns was with Mother when Mother called Grandmother on IMB's birthday. Corns

heard Grandmother tell Mother IMB was better off without her and to leave them alone.

      {¶14} Via Judgment Entry filed June 29, 2012, the trial court denied

Grandmother's adoption petition. Although the trial court found Mother had failed to

communicate with IMB during the one year period prior to Grandmother's filing the

adoption petition, the trial court found Mother had justifiable cause for the failure to

communicate. The trial court found Mother's consent to the adoption was necessary.

      {¶15} It is from this judgment entry Grandmother appeals, assigning as error:

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

MOTHER’S CONSENT WAS NECESSARY FOR THE ADOPTION OF HER SON BY

THE APPELLANT.”

                                                I

      {¶17} The termination of a natural parent's right to object to the adoption of her

child requires strict adherence to the controlling statutes. In re Adoption of Kuhlmann

(1994), 99 Ohio App.3d 44, 649 N.E.2d 1279. Ordinarily, the written consent of a minor

child's natural parents is required prior to adoption. R.C. 3107.07 provides exceptions to

this requirement.
Stark County, Case No. 2012CA00137                                                      6


       {¶18} R.C. 3107.07(A) states:

       {¶19} “Consent to adoption is not required of any of the following:

       {¶20} “(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.”

       {¶21} Appellant has the burden of proof in this action. “The party petitioning for

adoption has the burden of proving, by clear and convincing evidence, that the parent

failed to communicate with the child during the requisite one-year period and that there

was no justifiable cause for the failure of communication.” In re Adoption of Holcomb

(1985), 18 Ohio St.3d 361, 368, 481 N.E.2d 613. See also In re Adoption of Bovett

(1987), 33 Ohio St.3d 102, 104, 515 N.E.2d 919. “No burden is to be placed upon the

non-consenting parent to prove that his failure to communicate was justifiable.”

Holcomb at 368.

       {¶22} “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.
Stark County, Case No. 2012CA00137                                                        7


       {¶23} Therefore, for Grandmother to prevail in this adoption proceeding without

Mother's consent, she must prove by clear and convincing evidence that (1) there has

been a failure of communication or support by the natural parent for the one-year period

and (2) the failure is unjustified.

       {¶24} Grandmother must also establish that the failure to communicate was

without justifiable cause. “If the natural parent presents evidence showing that his failure

to communicate was not unjustified, the petitioner must prove by clear and convincing

evidence that such failure was not justified.” In re Adoption of Shea (July 24, 1990), 10th

Dist. No. 90–AP–245, 1990 WL 106468, citing Holcomb.

       {¶25} Holcomb further held:

       {¶26} “Significant interference by a custodial parent with communication

between the non-custodial parent and the child, or significant discouragement of such

communication, is required to establish justifiable cause for the non-custodial parent's

failure to communicate with the child. 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.” 18 Ohio St.3d 361, 481 N.E.2d 613, paragraph three of the

syllabus.

       {¶27} In the instant action, although the trial court found Mother had failed to

communicate with IMB during the one year period prior to Grandmother’s filing of the

petition for adoption, the trial court also found Mother presented evidence showing her

failure to communicate was justified as the result of significant interference and
Stark County, Case No. 2012CA00137                                                           8


discouragement of communication by Grandmother.                We find there is sufficient

evidence to support the trial court’s decision.

       {¶28} The evidence presented at trial established Mother made sustained efforts

over a significant period of time to communicate with her son. Phone records of both

Mother and Grandmother’s phones showed a number of calls between the two phones

over a six month period. The trial court found Mother’s testimony as to her reason for

not mailing gifts to IMB to be credible. 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 Mother in this instance.

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

determination Mother’s consent to the adoption was necessary was supported by clear

sufficient evidence.

       {¶30} Grandmother’s sole assignment of error is overruled.

       {¶31} The judgment of the Stark County Court of Common Pleas, Probate

Division, is affirmed.

By: Hoffman, J.

Gwin, P.J. and

Edwards, J. concur                             s/ William B. Hoffman _________________
                                               HON. WILLIAM B. HOFFMAN


                                               s/ W. Scott Gwin _____________________
                                               HON. W. SCOTT GWIN


                                               s/ Julie A. Edwards___________________
                                               HON. JULIE A. EDWARDS
Stark County, Case No. 2012CA00137                                                  9


               IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
                          FIFTH APPELLATE DISTRICT


IN RE:

ADOPTION OF IMB                             :
                                            :
                                            :
                                            :
                                            :        JUDGMENT ENTRY
                                            :
                                            :
                                            :        Case No. 2012CA00137


         For the reasons stated in our accompanying Opinion, the judgment of the Stark

County Court of Common Pleas, Probate Division, is affirmed.       Costs assessed to

Grandmother/Appellant.




                                            s/ William B. Hoffman _________________
                                            HON. WILLIAM B. HOFFMAN


                                            s/ W. Scott Gwin _____________________
                                            HON. W. SCOTT GWIN


                                            s/ Julie A. Edwards___________________
                                            HON. JULIE A. EDWARDS
