[Cite as In re Adoption of B.V.K.M., 2019-Ohio-1173.]




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


In re Adoption of B.V.K.M.                              Court of Appeals No. L-18-1137

                                                        Trial Court No. 2017 ADP 000127



                                                        DECISION AND JUDGMENT

                                                        Decided: March 29, 2019

                                                 *****

        Brian J. Ballenger, for appellant.

        Jill M. Varnes-Richardson, for appellee.

                                                 *****

        SINGER, J.

        {¶ 1} This is an appeal from the May 23, 2018 judgment of the Lucas County

Court of Common Pleas, Probate Division, by appellant, D.L., the father of B.V.K.M.,

and the cross-appeal of appellee, C.W.M., the stepfather of B.V.K.M. For the reasons

that follow, we reverse the judgment, in part, and affirm, in part.
       {¶ 2} Appellant sets forth one assignment of error:

              The ruling of the trial court that appellant’s consent to the adoption

       of his biological child was not required due to his failure to have contact

       with her for more than a year without justifiable cause was against the

       manifest weight of the evidence.

       {¶ 3} Appellee sets forth one cross-assignment of error:

              The ruling of the trial court that the appellant was justified in not

       paying support to B.V.K.M. is against the manifest weight of the evidence.


                                        Background

       {¶ 4} Appellant is the biological father of B.V.K.M., who was born in August

2006. Appellant and B.V.K.M.’s mother were never married, and mother left appellant

before B.V.K.M. was born.

       {¶ 5} On May 17, 2007, the Lucas County Court of Common Pleas, Juvenile

Division, named mother the residential and custodial parent of B.V.K.M. The juvenile

court ordered appellant to pay zero dollars monthly for child support, and ordered that

appellant was responsible for extraordinary medical expenses of the child. The court also

ordered appellant and mother to provide health insurance coverage for the child. This

support order was entered while appellant was incarcerated.

       {¶ 6} On April 16, 2009, appellant filed a motion to modify the allocation of

parental rights and responsibilities (“motion to modify”) with the juvenile court, seeking




2.
visitation with B.V.K.M. In January 2010, appellant and mother reached a settlement

regarding appellant’s visitation with the child.

       {¶ 7} In August 2010, mother and appellee were married.

       {¶ 8} Appellant visited with B.V.K.M. until November 28, 2015, when an incident

occurred at appellant’s home during a visit which caused the child to be very upset when

she returned to mother’s house (“the incident”). Appellant and mother then spoke on the

phone and had a disagreement about who would be at appellant’s house during visits with

the child. As a result, the visits between appellant and the child stopped.

       {¶ 9} On December 28, 2015, appellant filed a motion to modify with the juvenile

court seeking unsupervised visits with B.V.K.M. An evidentiary hearing was held on

May 26, 2016, and although appellant was at the courthouse, he left before the hearing

started due to a disagreement with his attorney and his overwhelming anxiety. Appellant

had also failed a drug test.

       {¶ 10} On June 30, 2016, the juvenile court magistrate issued a decision finding

appellant has a history of mental health and substance abuse, which the guardian ad litem

(“GAL”) confirmed are “currently untreated.” The magistrate followed the GAL

recommendation that appellant’s contact with B.V.K.M. be suspended until further order.

       {¶ 11} On July 13, 2016, the juvenile court judge issued a judgment entry

adopting the magistrate’s decision that it was in the child’s best interest that appellant’s

contact with the child be suspended in its entirety effective May 26, 2016, until further of

the court.




3.
         {¶ 12} On October 6, 2017, appellee filed a petition to adopt B.V.K.M. with the

probate court, in which he alleged mother’s consent to the adoption was required but

appellant’s consent was not required because appellant failed without justifiable cause to

provide more than de minimis contact with the child for at least a year before the

adoption petition was filed, and appellant failed without justifiable cause to provide for

the maintenance and support of the child for at least a year before the adoption petition

was filed. Mother provided her consent to the adoption; appellant filed an objection to

adoption.

         {¶ 13} On October 10, 2017, appellant filed a motion to modify with the juvenile

court, seeking supervised visits with B.V.K.M.

         {¶ 14} On April 23, 2018, a hearing was held in the probate court on the issue of

appellant’s consent. Appellant and mother both testified. Appellant testified, inter alia,

he receives Social Security, Medicaid and Medicare, he lives with his girlfriend and her

son, and he shares some expenses with his girlfriend. Appellant agreed that following the

disagreement in November 2015, mother told appellant not to call, text or come over

anymore. In addition, appellant acknowledged the magistrate suspended appellant’s

visitation with B.V.K.M. and his older daughter, R.L.L.,1 in June 2016. Appellant

testified he filed an action seeking visits with R.L.L. on February 1, 2017, but did not

seek visits with both children because “it was discussed at Harbor with my doctors that



1
    R.L.L. has a different mother.




4.
we file [for visits] for [R.L.L.] and do one [child] at a time.” Appellant admitted he filed

a motion to modify so he could visit with B.V.K.M. after the adoption petition was filed.

       {¶ 15} Mother testified at the hearing, inter alia, that she never asked appellant to

pay any extraordinary medical expenses for B.V.K.M., and B.V.K.M. was covered under

mother’s health insurance through work. Mother further testified that from either the end

of 2014 or the beginning of 2015, until November 2015 when appellant’s visits stopped,

appellant gave her $100 per month to help with B.V.K.M.’s needs. Mother stated

appellant has always received one version or another of Social Security benefits.

       {¶ 16} With respect to the incident in November 2015, mother testified appellant

said there were people at his house during the visit and there was a gun, but it was a BB

gun. In addition, mother testified appellant admitted there were drugs at his residence.

       {¶ 17} The parties also stipulated to certain facts, including: appellant had no

contact with B.V.K.M. for one year preceding the filing of the adoption petition, and his

last contact with her was November 28, 2015; appellant voluntarily paid mother $100 to

help support B.V.K.M. until late 2015, and he has provided no financial support for

B.V.K.M. since that date; appellant has not provided any gifts to B.V.K.M. for one year

preceding the filing of the adoption petition; appellant has an extensive history of severe

and persistent mental illness, and began treatment when he was about eight years old;

and, on March 1, 2018, the juvenile court permitted appellant to have visits with R.L.L.

       {¶ 18} On May 23, 2018, the probate court issued its judgment entry. Regarding

child support and maintenance, the court noted appellant was subject to a zero dollar




5.
support order, he was responsible for extraordinary medical expenses for B.V.K.M., but

was never asked to pay, and B.V.K.M. was covered under mother’s health insurance.

The court found appellee failed to prove appellant’s consent was not required due to

appellant’s failure to provide maintenance and support.

       {¶ 19} With respect to appellant’s contact with B.V.K.M., the court found,

pursuant to the stipulations, appellant had no contact with B.V.K.M. since November 28,

2015. The court observed appellant filed several motions to modify in the juvenile court,

including one which was filed several days after the adoption petition was filed. The

court noted appellant attached to his October 10, 2017 objection to adoption, a letter

dated April 11, 2017, from a psychiatrist in which the doctor opined appellant had

received significant benefits from his treatment program and was ready for visitation with

R.L.L. The court acknowledged appellant testified that a determination was made that

appellant would proceed with an attempt to visit R.L.L. first, yet stated, “the court does

not understand this reasoning. Had [appellant] filed for visitation with the child who is

the subject of this matter at the same time he filed for visitation with [R.L.L.], the

juvenile court could have addressed that issue.” The court continued, “[i]nstead, he made

no effort to obtain visitation with the child who is the subject of this adoption.” The court

found appellant failed without justifiable cause to provide more than de minimis contact

with B.V.K.M. for at least a year before the adoption petition was filed. The court further

found appellant’s consent in the adoption proceeding was not required. Appellant

appealed and appellee cross-appealed.




6.
                             Appellant’s Assignment of Error

        {¶ 20} Appellant argues his consent to the adoption of B.V.K.M. was required

because his lack of contact with her for more than a year was justified because of the

juvenile court’s no contact order. Appellee counters the no contact order did not prevent

appellant from filing a motion to modify, as appellant had done in his other daughter’s

case.

                                             Law

        {¶ 21} R.C. 3107.07(A) provides that consent to an adoption is not required of a

parent of a minor child

               when it is alleged in the adoption petition and the court * * * 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.

        {¶ 22} In In re Adoption of M.B., 131 Ohio St.3d 186, 2012-Ohio-236, 963 N.E.2d

142, ¶ 23, the Ohio Supreme Court determined probate courts must undertake a two-step

analysis when applying R.C. 3107.07(A). In the first step, the court decides the factual

question of whether the parent willfully failed to provide for the support and maintenance

of the child for at least one year immediately preceding the filing of the adoption petition.




7.
Id. at ¶ 21, 23. An appellate court reviewing this decision applies an abuse-of-discretion

standard. Id. at ¶ 25. In the second step, if the probate court finds the parent has failed to

support the child, the court then determines whether there was justifiable cause for the

failure. Id. at ¶ 23. This determination will not be disturbed on appeal unless it is against

the manifest weight of the evidence. Id. at ¶ 24.

       {¶ 23} With respect to a parent’s contact with the child, the probate court also uses

a two-step analysis. In re Adoption of K.A.H., 10th Dist. Franklin No. 14AP-831, 2015-

Ohio-1971, ¶ 7. The first step involves the factual question of whether the petitioner has

proven, by clear and convincing evidence, that the parent failed to have more than de

minimis contact with the child for at least one year immediately preceding the filing of

the adoption petition. Id. An appellate court applies an abuse-of-discretion standard

when reviewing this decision. Id. In the second step, if the probate court finds the parent

failed to have more than de minimis contact with the child, the court then determines

whether there is justifiable cause for the failure. Id. This determination will not be

disturbed on appeal unless it is against the manifest weight of the evidence. Id.

       {¶ 24} The consent provisions of R.C. 3107.07(A) are to be strictly construed in

order to protect the interests of the non-consenting parent. Id., citing In re Adoption of

Sunderhaus, 63 Ohio St.3d 127, 132, 585 N.E.2d 418 (1992).




8.
                                         Standards

       {¶ 25} Clear and convincing evidence is defined as:

              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, 120

       N.E.2d 118 (1954), paragraph three of the syllabus.

       {¶ 26} An abuse of discretion connotes that the trial court’s decision was

unreasonable, arbitrary or unconscionable and not merely an error of law or judgment.

Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

       {¶ 27} “A manifest weight of the evidence challenge contests the believability of

the evidence presented.” (Citation omitted.) State v. Wynder, 11th Dist. Ashtabula No.

2001-A-0063, 2003-Ohio-5978, ¶ 23. A determination is not against the manifest weight

of the 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.

                                          Analysis

       {¶ 28} Upon review, we find appellee has met his initial burden of proving

appellant did not provide more than de minimis contact with B.V.K.M. in the one-year

period prior to the filing of the petition for adoption. The record shows the adoption

petition was filed on October 6, 2017, and appellant stipulated he had no contact with




9.
B.V.K.M. since November 28, 2015. We therefore find the probate court did not abuse

its discretion in finding appellant had no contact with B.V.K.M. since 2015, which was

more than one year before the adoption petition was filed.

       {¶ 29} Regarding whether the lack of contact was justified, appellee asserts

appellant had the ability and the knowledge to petition the juvenile court for visitation

rights with B.V.K.M. but did not do so. Appellee notes the probate court acknowledged

that had appellant filed for visits with B.V.K.M., the issue could have been addressed. In

addition, appellee argues the no contact order was not permanent and was subject to

modification since the order states “until further order of this Court.”

       {¶ 30} Upon review, the record shows appellant testified he did not seek visits

with B.V.K.M. in February 2017, when he sought visits with R.L.L., due to discussions

he had with his doctors that he file for visits with one child at a time.

       {¶ 31} With respect to the no contact order, we addressed a similar issue in In re

Bryan W., 6th Dist. Huron No. H-96-039, 1997 Ohio App. LEXIS 1771 (May 2, 1997).

There, the juvenile court issued an order, in February 1990, barring Bryan’s birth mother

from “contact or communication, direct or indirect,” with Bryan. Id. at *1. In June 1990,

the juvenile court allowed mother one hour a week of supervised visits with Bryan, but in

September 1990, the court ordered mother’s visits suspended until further order of the

court. Id. at *2. In March 1996, Bryan’s grandparents filed with the probate court a

petition to adopt him, in which they alleged mother’s consent to the adoption was not

necessary because she failed, without justifiable cause, to communicate with Bryan for at




10.
least one year prior to the filing of the petition. Id. at *2-3. A hearing on the necessity of

mother’s consent was held, where mother acknowledged she had not communicated with

Bryan since August of 1990. Id. However, mother argued the juvenile court’s no contact

order prevented her from having contact with Bryan, so the lack of communication was

justifiable. Id. The probate court concluded the September 1990 order did not prevent

mother from communicating with Bryan. Id. at *5. Thus, the court found mother’s

failure to communicate was not justifiable, and mother’s consent to the adoption was not

required. Id. at *3, 5.

       {¶ 32} On appeal, we reversed. Id. at *1. We found the juvenile court had never

revoked its February 1990 order barring mother’s contact with Bryan, and that order did

not expire nor was it rendered meaningless by subsequent orders. Id. at *6. We therefore

concluded the no contact court order was effective and provided justification for mother’s

failure to contact Bryan. Id. at *7.

       {¶ 33} Here, we find, in accordance with our holding in In re Bryan W., that the

July 13, 2016 judgment entry of the juvenile court suspending appellant’s contact with

B.V.K.M. until further of the court was in effect and provided justification for appellant’s

failure to contact B.V.K.M. We further find the probate court’s ruling that appellant

failed without justifiable cause to provide more than de minimis contact with B.V.K.M.

for at least one year immediately preceding the filing of the adoption petition is not

supported by competent, credible evidence, and is therefore against the manifest weight

of the evidence. Accordingly, appellant’s assignment of error is well-taken.




11.
                            Appellee’s Cross-Assignment of Error

       {¶ 34} Appellee contends the probate court’s ruling that appellant was justified in

not paying support for B.V.K.M. is against the manifest weight of the evidence.

Appellee observes appellant testified he receives Social Security benefits and he had been

giving $100 per month to help with the child. Appellee notes those payments stopped in

November 2015. Appellee argues appellant’s voluntary payments show appellant had the

ability to pay money but chose not to continue these payments. Appellee asserts

appellant has not provided support or maintenance for over a year, and his consent for the

adoption is not required.

       {¶ 35} Appellant counters his lack of support of B.V.K.M. was justified because

of the juvenile court’s zero support order.

       {¶ 36} In its judgment entry, the probate court found, based on the stipulations,

appellant was subject to a zero dollar support payment pursuant to a court order, which

remains in effect. The court set forth “it is well settled law that a birth parent is not

obligated to pay child support once a court of competent jurisdiction has issued a zero

support order.”

       {¶ 37} Upon review, we find appellee has met his initial burden of proving

appellant failed to provide for the support and maintenance of B.V.K.M. for at least one

year immediately preceding the filing of the adoption petition. The record shows the

adoption petition was filed on October 6, 2017, and appellant stipulated that he provided

no financial support for B.V.K.M. since late 2015.




12.
       {¶ 38} As to whether there was justifiable cause for appellant’s failure to support

B.V.K.M., the probate court found appellant was subject to a zero dollar support order

and appellee failed to prove appellant’s consent was not required due to appellant’s

failure to provide maintenance and support.

       {¶ 39} In Ohio, the general support statute, R.C. 3103.03, provides that the

biological parent of a minor child must support that child. As set forth previously, R.C.

3107.07(A) states that a parent’s consent to the adoption of a child is not required if the

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

child as required by law or judicial decree.

       {¶ 40} In In re Jarvis, 9th Dist. Summit No. 17761, 1996 Ohio App. LEXIS 5569,

*12 (Dec. 11, 1996), the court held a judicial decree of child support supersedes R.C.

3103.03, the duty of support which is required by law. The court found the father was

not required by law or judicial decree to provide financial support for his child, thus the

alleged non-payment of such support was justified and father’s consent to the child’s

adoption was necessary. Id. at *15. The majority of Ohio appellate courts have followed

this line of reasoning, that if a judicial decree of support exists, the decree supersedes any

duty of support required by law. See In re Adoption of B.I., 2017-Ohio-9116, 101 N.E.3d

1171 (1st Dist.) (zero support order is a justifiable excuse for a parent who failed to pay

support for a child, thus the consent exception in R.C. 3107.07(A) does not apply); In re

Adoption of A.N.W., 7th Dist. Belmont No. 15 BE 0071, 2016-Ohio-463 (a no child

support order constitutes justifiable cause for failing to provide support and maintenance)




13.
In re K.A.H., 10th Dist. Franklin No. 14AP-831, 2015-Ohio-1971 (zero support order is a

justifiable excuse and consent to adoption is required); In re Way, 4th Dist. Washington

No. 01CA23, 2002 Ohio App. LEXIS 112 (Jan. 9, 2002) (juvenile court order which

relieved parent of child support obligation, as parent had no job and subsisted solely on

SSI benefits, provided justification for parent’s failure to support child); In re Adoption of

Stephens, 2d Dist. Montgomery No. 18956, 2001 Ohio App. LEXIS 5777 (Dec. 21, 2001)

(an order relieving a parent of child support justifies a parent’s failure to pay); and In re

Adoption of Thiel, 3d Dist. Hardin No. 6-98-12, 1999 Ohio App. LEXIS 950 (Feb. 23,

1999) (court order that no child support is due from a parent is justifiable cause for failing

to provide child support).

       {¶ 41} We find the approach embraced by the majority of Ohio appellate courts is

persuasive. As a result, we conclude if a judicial decree of zero child support exists, the

decree supersedes any duty of support required by law under R.C. 3103.03, thus the

consent exception in R.C. 3107.07(A) is inapplicable and the parent’s consent to the

adoption is required.

       {¶ 42} Applying this approach to the case under consideration, we find the probate

court’s finding that appellant’s consent to B.V.K.M.’s adoption was required is supported

by competent, credible evidence and is not against the manifest weight of the evidence.

Accordingly, we find appellee’s cross-assignment of error is found not well-taken.




14.
       {¶ 43} On consideration whereof, the judgment of the Lucas County Court of

Common Pleas, Probate Division, is reversed, in part, and affirmed, in part. This matter

is remanded for proceedings consistent with this decision. Appellee is ordered to pay the

costs of this appeal pursuant to App.R. 24.


                                                               Judgment reversed, in part,
                                                                    and affirmed, in part.




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




Arlene Singer, J.                              _______________________________
                                                           JUDGE
Christine E. Mayle, P.J.
                                               _______________________________
Gene A. Zmuda, J.                                          JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                    http://www.supremecourt.ohio.gov/ROD/docs/.




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