[Cite as In re K.M., 2012-Ohio-6266.]


                                       COURT OF APPEALS
                                      STARK COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

IN RE:                                           JUDGES:
                                                 Hon. William B. Hoffman, P.J.
K.M.                                             Hon. Sheila G. Farmer, J.
                                                 Hon. Julie A. Edwards, J.

                                                 Case No. 2012CA00194


                                                 OPINION




CHARACTER OF PROCEEDING:                      Appeal from the Stark County Court of
                                              Common Pleas, Probate Division Case No.
                                              214375
JUDGMENT:                                     Affirmed

DATE OF JUDGMENT ENTRY:                       December 31, 2012

APPEARANCES:

For Appellant - Father                        For Appellee - Mother

JEFFREY JAKMIDES                              EDGAR M. MOORE, JR.
325 East Main Street                          4940 Munson Street
Alliance, Ohio 44601                          P.O. Box 35426
                                              Canton, Ohio 44735

                                              For Appellee –
                                              Prospective Adoptive Parents

                                              BARBARA K. ROMAN
                                              JENNIFER R. SINGLETON
                                              Meyers, Roman, Friedberg & Lewis
                                              28601 Chagrin Boulevard, Suite 500
                                              Cleveland, Ohio 44122

                                              For Loving Choice

                                              JOAN SELBY
                                              1428 Market Ave N # B
                                              Canton, Ohio 44714
Stark County, Case No. 2012CA00194                                                     2

Hoffman, P.J.


        {¶1}   Appellant Ricardo Saucedo (“Father”) appeals the October 9, 2012

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

which found his consent was not required for the adoption of his minor child, KM (DOB

12/1/11). Appellee is Cassie Ruiz (“Mother”).

                           STATEMENT OF THE FACTS AND CASE

        {¶2}   Father and Mother are the biological parents of KM. KM is Father’s first

child, and Mother’s third child. The parties are not, and have never been, married. The

parties were dating at the time Mother became pregnant, but were not living together.

Father was still in high school at the time, but also worked several jobs. Father lived

with Patricia Lalli, his mother, at the time. He assisted Lalli with expenses when he was

able.

        {¶3}   Shortly after learning she was pregnant with KM, Mother was evicted from

her residence and she and her daughter moved in with Father and Lalli. Mother’s son

lived in a shelter with the children’s maternal grandmother. Mother and her daughter

stayed with Father and Lalli for a brief period of time (the testimony revealed Mother

stayed no longer than a month). Mother did not pay rent to Lalli. Mother paid for food

for herself and her daughter with food stamps. Mother was unemployed during this

period. She did not receive child support from the father of her two other children.

There was no evidence establishing Father contributed to the household while Mother

was at the Lalli residence although, as mentioned supra, Father occasionally gave Lalli

some monies.
Stark County, Case No. 2012CA00194                                                    3


      {¶4}   After living briefly with Father and Lalli, Mother moved no less than six

times in the months prior to KM’s birth.     Mother lived with the grandmother of her

daughter and son, with several different friends, with the paternal grandfather of her

daughter and son, in a tent in her sister’s backyard, and in a homeless shelter.

      {¶5}   During the pregnancy, Father contacted Mother via cell phone, Facebook,

and conversations with Mother’s family. Father visited Mother while she was staying

with one of her friends. Father registered with the Putative Father Registry on

September 20, 2011. However, Father did not provide or offer Mother any financial

support or assistance in any manner during the pregnancy. Father claimed Mother

refused to speak with him, and he made offers of assistance to Mother’s mother and

sister. Father did post Facebook messages to Mother during her pregnancy. Those

posts did not offer any assistance.

      {¶6}   Mother planned to place KM for adoption once the baby was born. Mother

posted her plan on Facebook. Father discovered her intentions through discussions with

family and friends. Mother gave birth to KM on December 1, 2011. Mother refused to

allow Father to see KM. Father was 20 years old at the time of KM’s birth, Mother was

22 years old.   Mother surrendered custody of KM to Community Services of Stark

County on December 5, 2011.

      {¶7}   On March 23, 2012, Kraig M. Slutz and Christina M. Martini-Slutz filed a

Petition for Adoption. Mother signed a Consent to Adoption. A search of the Ohio

Putative Father Registry was conducted pursuant to R.C. 3107.063, and revealed

Father had registered as a Putative Father. The Petition for Adoption indicated Father’s
Stark County, Case No. 2012CA00194                                                   4


consent was not required. On May 4, 2012, the Child Support Enforcement Agency

determined within 99.99% accuracy Father was the biological father of KM.

      {¶8}   The trial court scheduled a hearing on July 23, 2012. At the time of the

hearing, Father worked full-time as a process operator at Biery Cheese, and earned

approximately $500.00/week.

      {¶9}   Via Judgment Entry filed October 9, 2012, the trial court found Father

willfully abandoned Mother during the pregnancy; therefore, his consent was not

required pursuant to R.C. 3107.07(B)(2)(c).

      {¶10} It is from this judgment entry Father appeals, raising as his sole

assignment of error:

      {¶11} “I. THE TRIAL COURT’S FINDING THAT MR. SAUCEDO WILLFULLY

ABANDONED MS. RUIZ DURING THE PREGNANCY AND THAT HIS CONSENT

WAS THEREFORE UNNECESSARY FOR THE ADOPTION WAS AGAINST THE

MANIFEST WEIGHT OF THE EVIDENCE.”

                                              I

      {¶12} A putative father's consent is not necessary if he has willfully abandoned

the mother of the minor during her pregnancy and up to the time of her surrender of the

minor. R.C. 3107.07(B)(2)(c). Appellee must demonstrate by clear and convincing

evidence Father willfully abandoned Mother. In re Adoption of Hart (1989), 62 Ohio

App.3d 544, 552, 577 N.E.2d 77; In re Adoption of Suvak, Allen App. No. 1-03-51,

2004-Ohio-536, at ¶ 7.

      {¶13} Whether such an allegation has been proven by clear and convincing

evidence is a determination for the probate court and will not be disturbed on appeal
Stark County, Case No. 2012CA00194                                                    5

unless such determination is against the manifest weight of the evidence. In re Hart,

supra; see, also, In re Adoption of Vest (Mar. 13, 2001), Franklin App. No. 00AP-1150.

Judgments supported by some competent, credible evidence going to all the essential

elements of the case will not be reversed as being against the manifest weight of the

evidence. C.E. Morris Co. v. Foley Constr. Co. (1978), 54 Ohio St.2d 279, 281, 376

N.E.2d 578. The weight to be given the evidence and the credibility of the witnesses are

primarily for the trier of fact. State v. DeHass (1967), 10 Ohio St.2d 230, 227 N.E.2d

212, paragraph one of the syllabus.

      {¶14} We find the trial court’s determination Father willfully abandoned Mother

during her pregnancy was not against the manifest weight of the evidence. Father did

not offer or provide financial support to Mother. Father did not offer assistance with

food, vitamins, clothing, expenses or shelter. Father never transported Mother to her

doctor’s appointments. Father testified he made offers of assistance to Mother through

her mother and sister. The trial court did not find his testimony credible. The evidence

revealed Father was able to and did contact Mother either by cell phone or social media

throughout the pregnancy. Despite having contact with Mother, Father did not make

any offers of assistance or support.

      {¶15} Father’s sole assignment of error is overruled.
Stark County, Case No. 2012CA00194                                          6


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

Division, is affirmed.

By: Hoffman, P.J.

Farmer, J. and

Edwards, J. concur

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


                                      s/ Sheila G. Farmer __________________
                                      HON. SHEILA G. FARMER


                                      s/ Julie A. Edwards___________________
                                      HON. JULIE A. EDWARDS
Stark County, Case No. 2012CA00194                                                  7


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


IN RE:                                      :
                                            :
K.M.                                        :
                                            :
                                            :        JUDGMENT ENTRY
                                            :
                                            :
                                            :        Case No. 2012CA00194


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

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




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


                                            s/ Sheila G. Farmer __________________
                                            HON. SHEILA G. FARMER


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