[Cite as In re N.L.T., 2015-Ohio-433.]


STATE OF OHIO                     )                   IN THE COURT OF APPEALS
                                  )ss:                NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN                  )

IN RE: N.L.T.                                         C.A. No.      14CA010567



                                                      APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
                                                      COURT OF COMMON PLEAS
                                                      COUNTY OF LORAIN, OHIO
                                                      CASE No.   2013AD00039

                                 DECISION AND JOURNAL ENTRY

Dated: February 6, 2015



        BELFANCE, Presiding Judge.

        {¶1}     Appellant Linda McCune (“Mother”) appeals from the judgment of the Lorain

County Court of Common Pleas, Probate Division, which overruled Mother’s objections to the

magistrate’s decision and concluded that Mother’s consent to the adoption of her biological

daughter, N.L.T., was not necessary. For the reasons set forth below, we affirm.

                                                 I.

        {¶2}     N.L.T. was born July 28, 2010, to Mother and Todd Young (“Father”), who were

not married. Petitioner-Appellee Natalie Trachsel is Father’s aunt and N.L.T.’s great aunt. Ms.

Trachsel obtained temporary custody of N.L.T. in April 2012, and legal custody on June 14,

2012, following Mother and Father’s incarceration and failure to comply with their case plans.

Both Mother and Father suffered from substance abuse problems.

        {¶3}     On June 25, 2013, Ms. Trachsel filed a petition to adopt N.L.T. She asserted that

neither Mother nor Father’s consent was necessary because both parents failed without justifiable
                                                  2


cause for at least a year prior to the filing of the petition to (1) provide more than de minimis

contact with N.L.T. and to (2) provide for the maintenance and support of N.L.T. as required by

law. Nonetheless, Father consented to the adoption of N.L.T.

       {¶4}       Prior to the hearing before a magistrate, Mother’s counsel filed a motion to

transport Mother from prison to the hearing. The trial court subsequently denied the motion.

Mother’s counsel objected to Mother’s absence at the hearing but did not present any witnesses

on Mother’s behalf. Also, Mother’s counsel never sought to try and produce Mother’s testimony

via alternate means or methods.

       {¶5}       The magistrate concluded that Ms. Trachsel did not establish by clear and

convincing evidence that Mother failed without justifiable cause to provide for the maintenance

and support of N.L.T. for the year prior to the filing of the petition but did conclude that the

evidence established that Mother failed without justifiable cause to provide more than de

minimis contact with N.L.T. for the year prior to the filing of the petition.

       {¶6}       Mother filed objections to the magistrate’s decision, which the trial court

thereafter overruled and concluded that Mother’s consent to the adoption of N.L.T. was not

necessary pursuant to R.C. 3107.07(A). Mother has appealed, raising three assignments of error

for our review.

                                                 II.

                                   ASSIGNMENT OF ERROR I

       THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT
       FAILED TO TRANSPORT MOTHER FOR THE HEARING UPON REQUEST
       OF HER COUNSEL OR OTHERWISE ORDER MOTHER TO PARTICIPATE
       BY ALTERNATIVE METHODS.
                                                 3


                                  ASSIGNMENT OF ERROR II

       MOTHER RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL WHEN
       HER TRIAL ATTORNEY DID NOT REQUEST ALTERNATIVE METHODS
       FOR MOTHER’S PARTICIPATION.

       {¶7}    Mother asserts in her first assignment of error that the trial court erred in denying

her request to transport her from prison to the hearing and erred in failing to order her to

participate by alternate means. Mother asserts in her second assignment of error that trial

counsel was ineffective in failing to request that Mother participate by alternate means. As these

assignments of error are related and were addressed together in Mother’s brief, they will be

addressed similarly here.

Failure to Transport

       {¶8}    “The United States Supreme Court has determined that parents have a

fundamental liberty interest in the care, custody, and management of their children.” In re C.M.,

9th Dist. Summit Nos. 23606, 23608, 23629, 2007-Ohio-3999, ¶ 14, citing Santosky v. Kramer,

455 U.S. 745, 753 (1982). In the context of permanent custody cases, this Court has stated that

“Ohio courts have recognized that parents have a constitutionally protected right to be present at

permanent custody hearings, but that this right is not absolute if the parent is incarcerated.” In re

C.M. at ¶ 14. “[I]n evaluating the due process right of an incarcerated parent to be present at a

permanent custody hearing, Ohio courts have looked to the test established by the United States

Supreme Court in Mathews v. Eldridge, 424 U.S. 319, 335 (1976).” In re C.M. at ¶ 14. Under

that test, the incarcerated person’s right to be present at the hearing “is determined by balancing:

(1) the private interest affected; (2) the risk of erroneous deprivation and the probable value of

additional safeguards; and (3) the governmental burden of additional procedural requirements.”

Id.; see also In re Adoption of B.J.M., 42 Kan.App.2d 77, 84 (2009) (applying Mathews in an
                                                 4


adoption case).    “[T]his Court and other appellate districts have specifically held that an

incarcerated parent’s right to due process is not violated when the parent is represented by

counsel at the hearing, a full record of the proceedings is made, and any testimony that the parent

may wish to present could be offered by way of deposition.” In re C.M. at ¶ 24.

       {¶9}    On appeal, Mother has presented a very limited argument. The record reflects

that Mother’s counsel was present and participated in the hearing. Mother does not argue that

she lacked representation by counsel at the hearing, that a full record of the proceedings was not

made, or that the testimony she wished to present could not have been offered by deposition. See

id. Instead, she appears to assert that there was no order authorizing her deposition to be taken at

the prison and that such violated her rights. She has cited no law for this proposition. See

App.R. 16(A)(7). There is nothing in the record that suggests trial counsel filed a request to take

Mother’s deposition or to present Mother’s testimony via alternate means.           Mother’s brief

appears to acknowledge that trial counsel could have filed a motion seeking to take Mother’s

deposition, could have requested that Mother appear telephonically, or could have submitted an

affidavit in lieu of her appearance. However, trial counsel did not do so. Mother has not cited to

any authority for the proposition that the trial court had to order the same in the absence of a

motion. See App.R. 16(A)(7). Accordingly, it is difficult to discern how the trial court’s order

denying Mother’s motion to be transported for the hearing deprived her of her due process rights

given Mother’s acknowledgment of the other ways she could have participated in the hearing.

       {¶10} In light of Mother’s limited argument on appeal, her first assignment of error is

overruled.
                                                5


Ineffective Assistance of Counsel

       {¶11} Mother asserts in her second assignment of error that trial counsel was ineffective

in failing to request alternate means for her participation at the hearing. As noted above, parents

have a fundamental liberty interest in the care, custody and management of their children. See In

re C.M., 2007-Ohio-3999, at ¶ 14. Assuming without deciding that a claim of ineffective

assistance of counsel is applicable in a private adoption case, Mother has not met her burden.

See In re Forfeiture of Property of Rhodes, 2d Dist. Montgomery No. 25464, 2013-Ohio-3046, ¶

12 (noting that “there can be no separate constitutional right to effective assistance of counsel

when the basic right to counsel has not attached[]”) (Internal quotations and citation omitted.);

see also In re Adoption of M.C., 4th Dist. Jackson Nos. 11CA5, 11CA6, 2011-Ohio-6527, ¶ 8

(noting that the Supreme Court of Ohio has not addressed whether an indigent parent contesting

a private party adoption has a procedural due process based right to appointed counsel).

       {¶12} The test for ineffective assistance of counsel “requires a demonstration that

counsel’s performance fell below an objective standard of reasonable representation and that the

client has suffered prejudice.” In re C.M. at ¶ 27. “A deficient performance is one that fell

below an objective standard of reasonableness. [Whereas t]o establish prejudice, the [mother]

must show that there is a reasonable possibility that, but for counsel’s errors, the result of the

proceeding would have been different.” (Internal quotations and citations omitted.) In re N.H.,

9th Dist. Summit No. 24355, 2008-Ohio-6617, ¶ 26. Even assuming that Mother could establish

that her counsel’s performance was deficient, there is nothing in the record establishing what

evidence Mother would present via alternate means nor is there any suggestion that that evidence

would establish Mother was justified in failing to have more than de minimis contact with N.L.T.

or that she had more than de minimis contact with N.L.T. See R.C. 3107.07(A). As the focus of
                                                 6


the hearing was whether Mother’s consent was necessary and the trial court determined Mother’s

lack of contact with N.L.T. was not based upon justifiable reasons, in order to establish

prejudice, Mother would necessarily have to show that there was a reasonable possibility that the

evidence she would have presented would likely have led to a different outcome. See In re N.H.,

at ¶ 26. Given the record before us, Mother cannot do so, as it is mere speculation as to what

evidence Mother would have presented. See In re C.M. at ¶ 31.1

       {¶13} Further, we note that there was ample evidence in the record of the lack of contact

Mother had with N.L.T. and there was evidence that there were occasions for her to have contact

with her child. In light of that evidence, and the lack of evidence in the record as to the nature or

substance of Mother’s testimony, we overrule Mother’s second assignment of error.

                                 ASSIGNMENT OF ERROR III

       THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT
       DETERMINED THAT MOTHER’S CONSENT IS NOT NECESSARY FOR
       HER CHILD TO BE ADOPTED.

       {¶14} Mother argues in her third assignment of error that the trial court erred in

concluding that Mother’s consent was not required for the adoption of N.L.T.

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




       1
         In this respect, we observe that in a direct appeal context it is difficult to advance a
prejudice argument without resorting to evidence outside of the record of the proceedings on
appeal. However, it is possible that Civ.R. 60(B) could provide a potential remedy in such a
case.
                                                 7


R.C. 3107.07(A).2      Clear and convincing evidence “requires that the proof * * * produce in the

mind of the trier of facts a firm belief or conviction as to the facts sought to be established.”

(Internal quotations and citations omitted.) In re Adoption of Holcomb, 18 Ohio St.3d 361, 368

(1985).

          {¶16} Because R.C. 3107.07(A) is written in the disjunctive, either a failure to have

more than de minimis contact or a failure to provide required support for at least the one-year

time period is sufficient to obviate the need for a parent’s consent. See In re Adoption of A.H.,

9th Dist. Lorain No. 12CA010312, 2013-Ohio-1600, ¶ 9.

          {¶17} The instant appeal only involves whether Mother, without justifiable cause, failed

to provide more than de minimis contact with N.L.T. for at least the year prior to June 25, 2013.

The probate court’s determination that Mother failed to provide more than de minimis contact

with N.L.T. is reviewed for an abuse of discretion. See In re Adoption of M.B., 131 Ohio St.3d

186, 2012-Ohio-236, paragraph two of the syllabus; see In re Adoption of J.R.H., 2d Dist. Clark

No. 2013-CA-29, 2013-Ohio-3385, ¶ 25-28 (discussing the application of the standard in In re

Adoption of M.B. to de minimis contact situations as well as failure to support cases). Whether

justifiable cause has been proven by clear and convincing evidence is a separate issue the

determination of which will only be reversed on appeal if it is against the manifest weight of the

evidence. See In re Adoption of M.B. at paragraph two of the syllabus; In re Adoption of J.R.H.

at ¶ 25-28.



2
  R.C. 3107.07 was amended effective April 7, 2009. The prior version of the statute required a
finding that the parent failed to “communicate” with the minor child for a period of one year.
See In re J.D.T., 7th Dist. Harrison No. 11 HA 10, 2012-Ohio-4537, ¶ 9 (noting that by changing
the standard from “communicate,” which could imply a single contact, to “more than de minimis
contact,” which seems to imply more than a single contact, the Legislature indicated its intent to
require more effort from the parent to have contact and communication with the child).
                                                8


       {¶18} “[A] party filing a petition for adoption who relies upon R.C. 3107.07(A) bears

the burden of establishing by clear and convincing evidence that the exception to the consent

requirement contained therein has been satisfied.” (Alterations sic.) In re Adoption of Pushcar,

110 Ohio St.3d 332, 2006-Ohio-4572, ¶ 13. Mother’s argument on appeal appears to be that Ms.

Trachsel failed to prove by clear and convincing evidence that Mother’s actions with respect to

N.L.T. constituted de minimis contact and/or that the amount of contact was not justified under

the circumstances.

       {¶19} The term “contact” is not defined in the statute; however, the dictionary defines it

as, inter alia, “an establishing of communication with someone or an observing or receiving of a

significant signal from a person or object.” Merriam-Webster’s Collegiate Dictionary 268 (11th

Ed.2005). The question before this Court is whether the trial court erred in concluding Mother’s

actions did not constitute more than de minimis contact with N.L.T.

       {¶20}     Ms. Trachsel testified that, after she was made aware that N.L.T. had been taken

into the custody of Summit County Children Services, she sought to obtain temporary custody of

N.L.T., which she did in April 2012. In June 2012, Ms. Trachsel was granted legal custody of

N.L.T. As part of the order granting legal custody, Mother and Father were allowed reasonable

visitation with N.L.T. Ms. Trachsel requested only that the visitations be supervised due to

Mother and Father’s ongoing substance abuse issues.

       {¶21} During the one-year period, Mother was in and out of jail and community based

correctional facilities.   Mother was arrested in June 2012, for the illegal manufacture of

methamphetamine. She was in jail until August 14, 2012, whereupon she was released pending

sentencing. On August 28, 2012, Mother failed to appear in court and a warrant was issued.

Mother was arrested on September 17, 2012, and was in jail until November 28, 2012. From that
                                                9


date until January 21, 2013, Mother was held in a community based correctional facility, at

which point she escaped. Mother was arrested February 3, 2013, and remained in jail until

March 31, 2013.      Thereafter, Mother was in Oriana House and then a community based

correctional facility until August 12, 2013, when she again escaped. When Mother was arrested

next, new drug-related charges were filed against her, and Mother ultimately was sentenced to

4.5 years in prison in Marysville.

       {¶22} Ms. Trachsel lived in Sheffield Village but traveled to Akron every weekend to

help take care of her ailing father. She would always bring N.L.T. with her and testified that

Mother could have visited any of the weekends that she was at her father’s. During the relevant

time period, her father lived with Ms. Trachsel’s sister and Father. After Ms. Trachsel’s father

passed away on February 3, 2013, Ms. Trachsel continued to visit the Akron home to prepare it

for use as a rental unit. Ms. Trachsel indicated that Mother never once came to visit N.L.T. at

Ms. Trachsel’s father’s house during the relevant period.

       {¶23} Ms. Trachsel’s sister (Father’s mother) testified that she did not remember Mother

coming to her father’s home during the period at issue, although Mother did call. However,

when Mother would call, she would want to speak to Father and did not ask about seeing N.L.T.

Father confirmed that Mother never came to Ms. Trachsel’s father’s house during the relevant

period. Father testified that, sometimes, while Mother was at a community based correctional

facility, Mother would call, tell him she was out on a pass, and ask him to meet her somewhere.

Father indicated that Mother would ask to do that as opposed to visiting with him and N.L.T. at

Ms. Trachsel’s father’s house. Father stated that Mother could have visited N.L.T. during the

time she had passes because the location of Ms. Trachsel’s father’s house was near the location
                                                10


where Mother asked Father to meet her. Father even testified that he suggested that they visit

with N.L.T. but Mother suggested doing other things.

       {¶24} A witness who knew both Ms. Trachsel and Father testified that she saw Mother

and Father together at a restaurant in Akron around October or November 2012. It was the

witness’ understanding that Mother was in a rehabilitation facility at the time and so was

surprised to see her at a restaurant drinking what she believed to be an alcoholic beverage. The

witness additionally indicated that she would see N.L.T. every weekend at Ms. Trachsel’s

father’s house and during the relevant period she never saw Mother there.

       {¶25} Ms. Trachsel’s mother testified that Mother knew how to get in contact with her

and would see Mother occasionally. Even though they were divorced, Ms. Trachsel’s mother

visited Ms. Trachsel’s father’s house approximately twice a month on the weekends while Ms.

Trachsel’s father was very ill. According to Ms. Trachsel’s mother, Mother did not come over

while she was there and when she called, she never asked about N.L.T. According to Ms.

Trachsel, the last time Mother visited with N.L.T. was March 2012. Ms. Trachsel denied that

she ever told anyone that Mother could not visit and stated she did not receive letters that were

purportedly sent to N.L.T. by Mother.

       {¶26} Nonetheless, Ms. Trachsel testified that Mother “contacted [Ms. Trachsel] and left

[her] a handful of messages on [her] cell phone during this period of June 2012 to June 2013.

When [Mother] did leave a message, she would ask how [N.L.T.] was. [Ms. Trachsel] would

return [Mother’s] call to [the community based correctional facility where Mother was staying]

and [Ms. Trachsel] would let them know.” Mother, however, would never ask to visit N.L.T.

       {¶27} In March 2013, Ms. Trachsel attempted to increase contact with Mother. Ms.

Trachsel asked Mother to put her on the visitors’ list to discuss Mother’s interest in maintaining a
                                                11


relationship with N.L.T. Mother claimed to have put Ms. Trachsel on the list, but, when Ms.

Trachsel called to check on whether she was on the list, the jail stated she was not.

       {¶28} Mother argues that the phone calls to Ms. Trachsel asking about N.L.T.’s well-

being amount to contact with N.L.T. and, because there were multiple instances of Mother

calling, there was more than de minimis contact. Mother maintains that, because N.L.T. was

only two years old during the relevant time frame, Mother’s level of contact was reasonable

under the circumstances.

       {¶29} In this case, there was no evidence that, during the one-year period, Mother

visited with N.L.T., spoke to her, or sent her any gifts, pictures, or letters. Mother argues that

N.L.T. was too young to speak to on the phone; however, this fact would go to whether Mother’s

failure to talk to N.L.T. was justified, not to whether Mother had contact with N.L.T. It is

difficult for this Court to conclude that Mother’s actions amount to any contact with N.L.T. See

In re R.L.H., 2d Dist. Montgomery No. 25734, 2013-Ohio-3462, ¶ 15-16 (concluding that,

where evidence supported trial court’s finding that mother did not “‘see, speak with, or

correspond with R.L.H.’ during the one-year time period[,]” the issue became whether the record

established that mother’s lack of contact was not justified). Based on the entirety of the record,

we cannot say that the trial court abused its discretion in overruling Mother’s objection and

concluding that Mother failed without justifiable cause to have more than de minimis contact

with N.L.T. during the relevant period.

       {¶30} Moreover, we cannot say that the trial court’s conclusion that Mother’s lack of

contact was not justifiable was against the manifest weight of the evidence. While there was

evidence that, while Mother was in and out of jail and community based correctional facilities

during the year, there was also evidence that Mother had passes which allowed to her visit
                                                12


people in the community, including Father. The record also contains testimony evidencing that

Mother chose not to use her passes to visit with N.L.T. Additionally, there was testimony that

Mother had the necessary phone numbers to make arrangements to see N.L.T. and that N.L.T.

was frequently brought to Ms. Trachsel’s father’s residence in Summit County where visitation

with N.L.T. could have taken place; yet, Mother never called to do so or even to speak with

N.L.T.

         {¶31} In addressing the prior version of the statute, the Supreme Court has stated that

“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.”

In re Adoption of Holcomb, 18 Ohio St.3d at 367-368. The record before us does not contain

evidence that Ms. Trachsel interfered with any attempts by Mother to make contact with N.L.T.

         {¶32} Accordingly, we overrule Mother’s third assignment of error.

                                                III.

         {¶33}    In light of the foregoing, we overrule Mother’s assignments of error and affirm

the judgment of the Lorain County Court of Common Pleas, Probate Division.

                                                                              Judgment affirmed.




         There were reasonable grounds for this appeal.

         We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27.
                                                13


       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                      EVE V. BELFANCE
                                                      FOR THE COURT



MOORE, J.
CONCURS.

CARR, J.
DISSENTING.

       {¶34} The law clearly acknowledges that parents have a constitutional right to be

present at a permanent custody proceeding.           Even though incarcerated, mother was still

guaranteed the due process right to “meaningfully participate” in the adoption hearing below

either by being physically transported or at least having her testimony presented in some form,

such as by deposition. “[C]ounsel had a duty to protect her (Mother’s) rights, and the trial court

was responsible for the basic integrity of the proceedings herein.” In re Roque, 11th Dist.

Trumbull No. 2005-T-0138, 2006-Ohio-7007, ¶ 20.            Neither was done here.    Under these

circumstances, Mother’s due process rights were violated. I would reverse and remand for a new

hearing.
                                         14


APPEARANCES:

DENISE FERGUSON, Attorney at Law, for Appellant.

SUSAN K. PRITCHARD, Attorney at Law, for Appellee.

TODD YOUNG, pro se, Appellee.
