[Cite as In re Adoption of R.M.C.T., 2017-Ohio-5800.]


                                       COURT OF APPEALS
                                    FAIRFIELD COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


IN RE: THE ADOPTION OF R.M.C.T.                   :     JUDGES:
                                                  :     Hon. W. Scott Gwin, P.J.
K.S.-T and R.A.-T                                 :     Hon. John W. Wise, J.
                                                  :     Hon. Craig R. Baldwin, J.
        Plaintiffs-Appellants                     :
                                                  :
-vs-                                              :
                                                  :
T.B.                                              :     Case No. 17-CA-13
                                                  :
        Defendant-Appellee                        :     OPINION



CHARACTER OF PROCEEDING:                                Appeal from the Fairfield County
                                                        Court of Common Pleas, Probate
                                                        Division, Case No. 20160039




JUDGMENT:                                               Affirmed




DATE OF JUDGMENT:                                       July 10, 2017




APPEARANCES:

For Plaintiffs-Appellants                               For Defendant-Appellee

DORIAN KEITH BAUM                                       T.B., Pro Se
Baum Law Offices, LLC                                   41 N. 40th St. B2
123 South Broad St., Suite 314                          Newark, Ohio 43055
Lancaster, Ohio 43130
Fairfield County, Case No. 17-CA-13                                                 2

Baldwin, J.

       {¶1}   Plaintiffs-appellants K.S.-T and R.A.-T appeal from the February 8, 2017

Entry of the Fairfield County Court of Common Pleas, Probate Division, holding that

appellee T.B.’s consent to the adoption of R.M.C.T. was required and dismissing their

petition to adopt R.M.C.T.

                             STATEMENT OF THE FACTS AND CASE

       {¶2}   R.M.C.T. was born on June 12, 2015 and is the biological son of appellee

T.B. At the time of R.M.C.T.’s birth, appellee was in prison. In November of 2015,

R.M.C.T.’s mother left him with appellants. Appellants have cared for R.M.C.T. since such

time without any financial assistance, support or maintenance from appellee.

       {¶3}   On August 23, 2016, appellants filed a petition seeking to adopt R.M.C.T.

The child’s mother consented to the adoption, but appellee objected. An evidentiary

hearing was held on November 23, 2016. At the hearing, there was testimony that

appellee had been in prison from June of 2015 until January 22, 2016 for felony theft and

then again from February 14, 2016 until April 19, 2016 for felony attempted robbery.

Appellee visited with the child in June of 2015 and October of 2015 and several other

times before when the child’s mother brought him to visit appellee while he was in prison.

       {¶4}   At the hearing, appellee testified that, after his release from prison on

January 22, 2016, he contacted appellant K.S.-T by phone seeking visitation with his son.

She told him that she was busy and would contact him later, but never did. Appellee

testified that he tried calling again, but there was no answer. He further testified that he

was then told by the child’s mother to leave appellants alone. Appellee learned that he

was blocked on Facebook from contacting appellants. Appellee admitted at the hearing
Fairfield County, Case No. 17-CA-13                                                 3


that he did not provide any money to appellants for his son’s care, but testified that he

had been unable to do so because he had no income while in jail and since he could not

get in contact with appellants. Appellee never contacted child support.

       {¶5}   In June of 2016, appellee obtained employment that he had maintained as

to the date of the hearing. On August 5, 2016, he filed a pro se complaint for parentage,

seeking reasonable parenting time. On the same date, he filed an affidavit of income and

expenses indicating that he made approximately $14,000.00 a year and had no housing

monthly expenses. At the time, appellee was residing with his grandfather. Appellee

agreed that he did not pay any support between June of 2016 and August 5, 2016.

       {¶6}   At the hearing, appellee’s mother testified that she had tried to make contact

with appellant K.S.-T. to see her grandson, but her messages were not returned and/or

her calls were not accepted.

       {¶7}   At the hearing, appellants denied that either appellee or his family had

contacted them.

       {¶8}   The trial court, in an Entry filed on February 8, 2017, found, in part, that

appellee’s consent to the adoption was required because appellants had failed to prove

by clear and convincing evidence pursuant to R.C. 3107.07 that appellee failed without

justifiable cause to provide for the maintenance and support of the minor for a period of

at least one year immediately preceding the filing of the adoption petition. The trial court

dismissed the petition based on appellee’s objection.

       {¶9}   Appellants now raise the following assignment of error on appeal:

       {¶10} I. THE PROBATE COURT’S DECISION THAT APPELLANT’S (SIC)

CONSENT TO THE ADOPTION OF THE SUBJECT MINOR CHILD WAS NECESSARY
Fairfield County, Case No. 17-CA-13                                                  4


IS CONTRARY TO LAW AND IS AGAINST THE MANIFEST WEIGHT OF THE

EVIDENCE.

                                                  I

       {¶11} Appellants, in their first assignment of error, argue that the trial court erred

in finding that appellee’s consent to the adoption of R.M.C.T. was necessary. Appellants

specifically contend that the trial court erred in finding that appellee’s undisputed failure

to provide support and maintenance for the minor child during the one year period prior

to the filing of the adoption petition did not rise to the level of abandonment.

       {¶12} The Supreme Court of the United States has recognized that natural

parents have a fundamental liberty interest in the care, custody, and management of their

children. Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972). A

parent's right to raise a child is an essential civil right. In re Murray, 52 Ohio St.3d 155,

556 N.E.2d 1169 (1990). An adoption permanently terminates the parental rights of a

natural parent. In re Adoption of Reams, 52 Ohio App.3d 52, 557 N.E.2d 159 (10th

Dist.1989). Thus, courts must afford the natural parent every procedural and substantive

protection allowed by law before depriving the parent of the right to consent to the

adoption of his child. In re Hayes, 79 Ohio St.3d 46, 679 N.E.2d 680 (1997).

       {¶13} The termination of a natural parent's right to object to the adoption of his or

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

99 Ohio App.3d 44, 649 N.E.2d 1279 (1994). 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.

       {¶14} R.C. 3107.07(A) states that consent to adoption is not required of:
Fairfield County, Case No. 17-CA-13                                                     5


              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 minimus 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.

       {¶15} Appellants have the burden of proof in this action. With regard to support,

the relevant inquiry is not whether the parent provided support as would be expected, “but

whether the parent's failure to support * * * is of such magnitude as to be the equivalent

of abandonment.” Gorski v. Myer, 5th Dist. Stark No.2005CA00033, 2005–Ohio–2604 at

paragraph 14. A probate judge has discretion to determine whether the biological parent

provided support as contemplated by R.C. 3107.07(A) “and his or her judgment should

not be tampered with absent an abuse of discretion.” In re Adoption of Bovett, 33 Ohio

St.3d 107, 515 N.E.2d 919 (1987).

       {¶16} “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.” In re Adoption

of Holcomb, 18 Ohio St.3d 361, 481 N.E.2d 613 (1985). The determination of the probate

court should not be overturned unless it is unsupported by clear and convincing evidence.

Id. Clear and convincing evidence is the “measure or degree of proof that will produce in

the mind of the trier of fact a firm belief or conviction as to the allegations sought to be
Fairfield County, Case No. 17-CA-13                                                    6

established.” In re: Estate of Haynes, 25 Ohio St.3d 101, 495 N.E.2d 23 (1986) at

paragraph 24.

       {¶17} With respect to a failure to support, the Ohio Supreme Court stated, “[t]he

question of whether justifiable cause for failure to pay child support has been proven by

clear and convincing evidence in a particular case is a determination for the probate court

and will not be disturbed on appeal unless such determination is against the manifest

weight of the evidence.” In re Adoption of M.B., 131 Ohio St.3d 186, 2012–Ohio–236, 963

N.E.2d 142.

       {¶18} Therefore, for appellants to prevail in this adoption proceeding without

appellee's consent, they must prove by clear and convincing evidence that: (1) there has

been a failure of communication or support by appellee for the one-year period and (2)

the failure is unjustified.

       {¶19} Appellants must also establish the failure to communicate or support was

without justifiable cause. If the petitioner meets his burden of proof, then the natural parent

has the burden of going forward with evidence to show some justifiable cause for his or

her failure to support or contact the child. However, the burden of proof never shifts from

the petitioner. In re Adoption of Bovett, 33 Ohio St.3d 102, 515 N.E.2d 919 (1987).

       {¶20} In the case sub judice, the trial court found that appellee had

justifiable reasons for failing to provide support and maintenance. The trial court

noted that appellee had been incarcerated from August 23, 2015 until January 22,

2016 and then again from February 14, 2016 to April 19, 2016 and was unable to

pay support during such time. The trial court further found that after he was

released from prison and able to obtain employment in June of 2016, appellee tried
Fairfield County, Case No. 17-CA-13                                                         7


to contact appellants by telephone and Facebook, but that they did not answer his

calls and blocked him on Facebook. As noted by the trial court, appellants:

       thus concealed not only [the child] from [appellee], but also themselves. In

       order to visit with [the child] or provide support for [the child], [appellee] was

       forced to avail himself of the judicial system. Therefore, he filed on August

       5, 2016 a pro se Complaint for Parentage seeking a grant of reasonable

       parenting time along with and (sic) Affidavit of Income and Expenses for

       purposes of the court establishing a support order for [the child]. These are

       not the actions of a parent abandoning his child.

       {¶21} The trial court further emphasized that appellants had not sought support

from appellee either personally or otherwise.

       {¶22} The trial court, as the trier of fact here, determines the weight and credibility

of the evidence. Seasons Coal Co., Inc. v. City of Cleveland, 10 Ohio St.3d 77, 461 N.E.2d

1273 (1984). We may not substitute our judgment for that of the trier of fact. Pons v. Ohio

State Medical Board, 66 Ohio St.3d 619, 614 N.E.2d 748 (1993). Here, the trial court

obviously chose to believe the testimony of appellee regarding why he did not support the

child. From his testimony, the trial court could conclude that his failure to support to the

child was justified due to significant discouragement of communication by appellants and,

for at least part of the time, due to lack of income. We find there is sufficient evidence to

support the trial court's decision.

       {¶23} Appellants’ sole assignment of error is, therefore, overruled.
Fairfield County, Case No. 17-CA-13                                           8


       {¶24} Accordingly, the judgment of the Fairfield County Court of Common Pleas,

Probate Division, is affirmed.

By: Baldwin, J.

Gwin, P.J. and

John Wise, J. concur.
