[Cite as In re E.E.B., 2018-Ohio-1021.]


                                        COURT OF APPEALS
                                     RICHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


                                                :   JUDGES:
                                                :
                                                :   Hon. John W. Wise, P.J.
                                                :   Hon. Patricia A. Delaney, J.
                                                :   Hon. Earle E. Wise, Jr., J.
 IN RE E.E.B NKA E.E.H.                         :
                                                :   Case No. 17CA107
                                                :
                                                :
                                                :
                                                :
                                                :   OPINION


CHARACTER OF PROCEEDING:                            Appeal from the Richland County Court
                                                    of Common Pleas, Probate Division
                                                    Case No. 2017-5025



JUDGMENT:                                           AFFIRMED




DATE OF JUDGMENT ENTRY:                             March 16, 2018




APPEARANCES:

 For Petitioner-Appellant:                          For Father-Appellee:

 CHARLES D. LYNCH                                   CHARLES T. ROBINSON
 6 West 3rd Street, Suite 200                       3 N. Main Street, Suite 400
 Mansfield, OH 44902                                Mansfield, OH 44902
Richland County, Case No. 17CA107                                                             2

Delaney, J.

       {¶1} Petitioner-Appellant appeals the December 4, 2017 judgment entry of the

Richland County Court of Common Pleas, Probate Division, denying his Petition for

Adoption because Father-Appellee’s consent to the adoption of his child was necessary.

       {¶2} This appeal is expedited and is considered pursuant to App.R. 11(C)(2).

                         FACTS AND PROCEDURAL HISTORY

       {¶3} Father-Appellee and Mother are the parents of E.E.B. nka E.E.H., born on

April 3, 2010. Father and Mother were not married or living together at the time of the

child’s birth. In August 2010, a paternity action was filed in the Richland County Court of

Common Pleas, Domestic Relations Division. Father was determined to be the biological

father of E.E.H. Father was ordered to pay child support and Father is current on his

support. It appears from the record that the paternity action did not establish visitation.

       {¶4} Father visited with E.E.H. at least two times a month during the first two

years of the child’s life. Mother declined some visits because E.E.H. was suffering from

separation anxiety. Father’s last visit with E.H.H. was on April 10, 2012. Father and

Paternal Grandmother visited with E.E.H. and brought the child birthday presents and an

Easter basket.

       {¶5} Mother started living with her boyfriend, Petitioner-Appellant, on April 22,

2012. Petitioner is the former friend and roommate of Father. Mother and Petitioner live

in Father’s and Petitioner’s former residence.

       {¶6} Father texted Mother on January 1, 2013 to request a visit with E.E.H.

Father wanted to take E.E.H. to visit a family member’s gravesite. Mother declined the

visit because the child had just recovered from an illness. Father stated he stopped
Richland County, Case No. 17CA107                                                            3


requesting visitation with E.E.H. because he knew Mother would reject his requests.

Father knew Mother’s address, but Father did not send E.E.H. cards or presents. Father

stated he changed his focus to saving his money to pursue visitation through the court

system.

       {¶7} Mother stated she had declined some of Father’s requests for visitation with

E.E.H., but she never told Father he was permanently barred from visiting with E.E.H.

Mother would not offer alternative visitation opportunities when she denied Father’s

visitation requests. She told Father during her pregnancy that based on her family history,

it was in the best interests of the child for Father to be consistently involved in the child’s

life. If Father could not be consistent, Mother would not say anything negative about

Father, but she would not allow him to come in and out of the child’s life. She felt Father

understood her request for consistency. Mother denied interfering with Father’s visitations

with the child. Mother stated Father never asked to visit with the child.

       {¶8} On August 31, 2015, Father contacted Mother through Facebook to request

the child’s social security number. Mother did not respond.

       {¶9} Father worked with Paternal Grandmother to see if she could get visitation

with E.E.H. Grandmother tried to contact Mother for visitation, but Mother did not respond.

Grandmother’s last contact with Mother was May 2016.

       {¶10} On April 12, 2017, Father filed a motion to establish parenting time with the

Domestic Relations Division.

       {¶11} Mother and Petitioner changed their wedding date and were married after

Father filed his motion for parenting time. On May 23, 2017, Petitioner filed a Petition for

Adoption of E.E.H. with the Probate Division. Father objected to the petition.
Richland County, Case No. 17CA107                                                          4


       {¶12} On November 21, 2017, the Probate Division held a hearing on the Petition

for Adoption. The trial court bifurcated the hearing to first determine whether Father’s

consent to adoption was required under R.C. 3107.07(A). If the trial court determined

Father’s consent was not required under the statute, it would next consider the child’s

best interests.

       {¶13} Pursuant to the statute, the parties stipulated at the hearing that Father did

not have any contact with the child from May 23, 2016 to May 23, 2017. The issue before

the trial court was whether the failure of Father to provide more than de minimis contact

with the child was with justifiable cause.

       {¶14} Father, Mother, and Paternal Grandmother testified at the hearing. At the

conclusion of the hearing, the trial court found Petitioner failed to establish by clear and

convincing evidence that Father failed to provide de minimis contact with the child. The

trial court acknowledged that Father did not visit with E.E.H. and did not attempt to contact

E.E.H. with cards or otherwise. The trial court also noted there was no court-ordered

visitation established in the paternity action, thereby leaving it to the parties to work out

visitation. The trial court stated:

       I think both sides in this matter have good points and both sides in this

       matter have done some things that probably isn’t the best thing to do when

       considering a child. Be that as it may, it’s before me to make that

       determination and this Court draws a line when it comes to individuals

       attempting to say that there was unjustified interference and not following

       through unless a Motion is filed to get an order, that a person can get

       visitation because the old adage is how many times do you go to a dry well
Richland County, Case No. 17CA107                                                         5


       and there’s no water in the bottom * * * although it would have been much

       easier if Biological Father would have insisted to send come cards, that’s

       not hard * * * but yet then on the other hand, it’s problematic when, ah, if it

       started out communication broke down to no communication and I know

       there’s a lot of emotion going on here from the nature of how this happened,

       but it happened, it is what it is, and so the Court’s called upon to see if more

       than de minimis contact filing a Motion to get something established,

       because you don’t have any right to visit without it, * * *

       {¶15} However, on May 23, 2017 during the statutory one-year look-back period,

Father filed a motion to establish visitation, which the Domestic Relations Division stayed

pursuant to the pending Petition for Adoption:

       * * * I believe that it does show that there’s been an attempt, especially when

       the Motion’s filed to get visitation and the Court has heard no testimony

       other than the fact there’s been no visitation between [E.E.H.] and paternal

       grandmother or the Court assumes Father after May 23rd of 2017.

       * * * sometimes the law is just not kind to get things moving on and here

       you folks have been sitting here since * * * six months, seven months or so.

       Well, again, it’s, ah, it requires the Court to make a call as to whether the

       Court feels there’s a substantial interference and if the filing of a Motion for

       visitation during the one year is sufficient. Ah, and I heard the testimony and

       that’s why sometimes historical background is beneficial to see how the, the

       case gets here.
Richland County, Case No. 17CA107                                                        6


       {¶16} The trial court then determined under “these narrowed circumstances” that

there was justifiable cause for Father’s de minimis contact with the child:

       * * * Father’s filing the Motion for parenting time and that it was pending

       before the adoption’s filed, that under these circumstances would not have

       been done if it wasn’t for the position of Biological Mother that if you’re not

       going to pay attention when this child’s born, you’re not going to pay any

       attention, not come in and be, I think as she put it, a hop in, hop out Father,

       which I can certainly understand how she would feel that way, but it’s rather

       clear to the Court that it was the intention of Biological Mother that Father

       and/or, well, we’ll just stick with Father that since he hasn’t done what

       father’s ought to in her position or her mind set, that you’re not going to

       come in later.

(T. 131-145).

       {¶17} The trial court journalized its decision denying the Petition for Adoption on

December 4, 2017. It is from this judgment Petitioner now appeals.

                               ASSIGNMENT OF ERROR

       {¶18} Petitioner raises one Assignment of Error:

       {¶19} “THE TRIAL COURT ERRED WHEN IT DETERMINED THAT THE FILING

OF A MOTION FOR PARENTING TIME IN THE DOMESTIC RELATIONS COURT

PRIOR TO THE FILING OF AN ADOPTION PETITION CONSTITUTES IN AND OF

ITSELF MORE THAN DE MINIMIS CONTACT WITH THE MINOR CHILD WHICH

CONSTITUTES GROUNDS FOR DENYING PETITIONER’S REQUEST TO ADOPT

THE MINOR CHILD.”
Richland County, Case No. 17CA107                                                          7


                                        ANALYSIS

       {¶20} Petitioner contends the trial court erred when it denied its Petition for

Adoption. We disagree.

       {¶21} R.C. 3107.07(A) sets forth, in part, the requirements for a parent's consent

to an adoption. R.C. 3107.07(A) states that a probate court may not grant a petition to

adopt a minor child absent the consent of the child's parent. However, the statute further

states that the consent of a parent is not required for adoption if the court finds that “the

parent has failed without justifiable cause to communicate 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 * * * the filing of the adoption petition”

R.C. 3107.07(A).

       {¶22} The petitioner for adoption has the burden of proving by clear and

convincing evidence that (1) the natural parent failed to either support or communicate

with the child for the requisite one year period and that (2) this failure was without

justifiable cause. In re adoption of Bovett, 33 Ohio St.3d 102, 515 N.E.2d 919 (1987),

paragraph one of the syllabus; In re Adoption of Masa, 23 Ohio St.3d 163, 492 N.E.2d

140 (1986), paragraph one of syllabus. In Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d

118 (1954), the Supreme Court of Ohio explained that clear and convincing evidence is

more than a preponderance of the evidence but does not rise to the level of beyond a

reasonable doubt as required in criminal cases. It must produce in the mind of the trier of

fact a firm belief or conviction as to the allegations sought to be established. Cross,

paragraph 3 of the syllabus. Judgments supported by some competent, credible evidence

going to all the essential elements of the case will not be reversed by a reviewing court
Richland County, Case No. 17CA107                                                          8

as being against the manifest weight of the evidence. In re Adoption of Breckenridge,

Franklin App. No. 03AP–1166, 2004–Ohio–2145, ¶ 10.

       {¶23} 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). Justifiable

cause has been found to exist if the custodial parent significantly interferes with or

discourages communication between the natural parent and the child. In re Adoption of

I.M.M., 5th Dist. Ashland No. 16 COA 018, 2016-Ohio-5891, ¶ 29 citing In Re Adoption

of Holcomb, 18 Ohio St.3d 361, 481 N.E.2d 613 (1985). A probate court may examine

any preceding events that may have a bearing on the parent's failure to communicate

with the child, and the court is not restricted to focusing solely on events occurring during

the statutory one-year period. In re Adoption of Lauck, 82 Ohio App.3d 348, 612 N.E.2d

459 (1992).

       {¶24} The relationship between a parent and child is a constitutionally protected

liberty interest. See In re Adoption of Zschach, 75 Ohio St.3d 648, 665 N.E.2d 1070

(1996). Therefore, any exception to the parental consent requirement for adoption “must

be strictly construed so as to protect the right of the natural parents to raise and nurture

their children.” In re Adoption of Schoeppner 46 Ohio St.2d 21, 24, 345 N.E.2d 608 (1976).

       {¶25} The parties stipulated that Father had no contact with the child for the one-

year statutory period. Father was current on his child support obligations. The issue in

this case was whether Father had justifiable cause for his failure to support or contact the

child during the statutory one-year period.
Richland County, Case No. 17CA107                                                                 9


       {¶26} The trial court first found that based on the circumstances of the case,

Father had justifiable reasons for failing to support and contact the child. Mother was in a

relationship with Petitioner, Father’s former roommate and friend. The paternity action did

not establish formalized visitation with the child. Visitation was dependent upon the

parties. In the first few years of the child’s life, Father did participate in visitation. At times,

however, Mother denied Father’s visitation requests and did not offer alternatives. Father

worked with Paternal Grandmother to establish visits, but Mother denied visitation with

Paternal Grandmother. Father testified that he gave up trying to request visitation and

focused on trying to obtain visitation through the courts.

       {¶27} The trial court next found that when Father filed a Motion to Establish

Parenting Time on April 12, 2017, the motion was an effort by Father to legally contact

his child. Father filed the motion within the one-year statutory period. After Father filed his

motion, Mother changed her wedding date so that Petitioner could file his Petition for

Adoption on May 23, 2017. The trial court observed the filing of the Petition as an example

of Mother’s interference with Father’s relationship with the child.

       {¶28} We agree with the trial court that both Father and Mother have good

arguments to support their positions. Strictly construing the matter to protect the rights of

the natural parent, however, we find the trial court’s judgment is supported the by manifest

weight of the evidence. The probate court properly considered events outside of the one-

year period to determine whether those events had any bearing on Father’s failure to

communicate with the child. The circumstances of this case demonstrate there exists

some competent and credible evidence to find Petitioner could not support his burden to

show that Father had no justifiable cause for his failure to support or contact the child.
Richland County, Case No. 17CA107                                           10


                                    CONCLUSION

       {¶29} Petitioner’s sole Assignment of Error is overruled.

       {¶30} The judgment of the Richland County Court of Common Pleas, Probate

Division is affirmed.

By: Delaney, J.,

Wise, P.J. and

E. Wise, J., concur.
