[Cite as In re Adoption of Z.D.K., 2011-Ohio-4079.]


                                       COURT OF APPEALS
                                      STARK COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

                                                              JUDGES:
IN THE MATTER OF THE                                  :       Hon. W. Scott Gwin, P.J.
ADOPTION OF: Z.D.K                                    :       Hon. John W. Wise, J.
IN THE MATTER OF THE NAME                             :       Hon. Julie A. Edwards, J.
CHANGE OF: Z.D.K.                                     :
                                                      :
                                                      :       Case No. 2011-CA-00062
                                                      :
                                                      :
                                                      :       OPINION




CHARACTER OF PROCEEDING:                                  Civil appeal from the Stark County Court of
                                                          Common Pleas, Probate Division, Case
                                                          Nos. 209395 and 208692


JUDGMENT:                                                 Affirmed


DATE OF JUDGMENT ENTRY:                                   August 15, 2011


APPEARANCES:

For Plaintiff-Appellee                                    For Defendant-Appellant

DOUGLAS D. JONES                                          ANDY A. GINELLA
2867 Sharonwood Avenue N.W.                               4096 Holiday Street N.W.
Canton, OH 44708                                          Canton, OH 44718


                                                          JOHN L. JUERGENSEN
                                                          Washington Square Office Park
                                                          6545 Market Avenue North
                                                          North Canton, OH 44721
[Cite as In re Adoption of Z.D.K., 2011-Ohio-4079.]


Gwin, P.J.

         {¶1}    Appellant S.M. appeals a judgment of the Court of Common Pleas,

Probate Division, of Stark County, Ohio, which found his consent was not necessary for

petitioner-appellee J.M.K. to adopt his minor son, Z.D.M., now known as Z.D.K., and to

change the child’s surname to that of his adoptive father. Appellant assigns three errors

to the trial court:

         {¶2}    “I. THE TRIAL COURT ERRED AS A MATTER OF LAW IN FINDING

THAT APPELLANT, S. M. FAILED, WITHOUT JUSTIFIABLE CAUSE, TO PROVIDE

MORE THAN DE MINIMIS CONTACT WITH THE MINOR CHILD, Z. K. FOR A

PERIOD OF AT LEAST ONE YEAR IMMEDIATELY PRECEDING THE FILING OF THE

ADOPTION PETITION.

         {¶3}    “II. THE TRIAL COURT ERRED AS A MATTER OF LAW IN FINDING

THAT APPELLANT, S. M. FAILED TO PROVIDE FOR THE MAINTENANCE AND

SUPPORT OF THE MINOR CHILD, Z. K. FOR A PERIOD OF AT LEAST ONE YEAR

IMMEDIATELY PRECEDING THE FILING OF THE ADOPTION PETITION.

         {¶4}    “III. THE TRIAL COURT ERRED AS A MATTER OF LAW IN FINDING

THAT THE NAME CHANGE WAS IN THE BEST INTERESTS OF THE MINOR CHILD,

Z. K.”

         {¶5}    R.C. 3107.07 states in pertinent part:

         {¶6}    “Consent to adoption is not required of any of the following:

         {¶7}    “(A) 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 minimis
Stark County, Case No. 2011-CA-00062                                                       3


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.”

                                                 I.

       {¶8}   In his first assignment of error, appellant argues the court erred as a

matter of law in finding he had failed to maintain more than a de minimis contact with

the child without justifiable cause for a period of at least one year preceding the filing of

the adoption petition. We do not agree.

       {¶9}   The trial court found mother testified the child had never received any

letters, birthday cards or gifts from appellant and that she did not return any letters he

may have sent to the child. Mother admitted appellant had sent letters to her, but the

letters were not addressed to the child, and did not directly concern him.           Mother

admitted she did not want communication between appellant and the child, although

she allowed appellant’s parents an occasional visitation. She testified she did not know

whether the child had spoken with appellant while he was with the paternal

grandparents. The family moved in March of 2008 and did not provide appellant with a

forwarding address, and mother had obtained a civil protection order against appellant

that included the child as a protected person.

       {¶10} Appellant testified that he had written to the child in August and

September of 2010, which was after the petition to adopt was filed. Appellant testified

he had spoken on the phone with the child when the child was at the paternal

grandparents’ home. Appellant admitted this contact had not occurred for approximately
Stark County, Case No. 2011-CA-00062                                                  4


the past two years. Appellant testified he only learned of the family’s address when

mother filed the application to change the child’s name.

      {¶11} In October 2010, appellant filed a motion for visitation in the Stark County

Common Pleas Court, Domestic Relations Division. He testified it was his

understanding he was entitled to do so pursuant to the divorce decree.

      {¶12} Appellant correctly states that there is a fundamental liberty interest of

parents to make decisions concerning the care, custody and control of their children. In

Re: Adoption of Masa (1986), 23 Ohio St. 3d 163, 492 N.E.2d 140, citing Santosky v.

Kramer (1982), 455 U.S. 745,. 753, 102 S.Ct. 1388, 71 L.Ed. 2d 599 and In re: Baby

Girl Baxter (1985), 17 Ohio St.3d 229, 479 N.E.2d 257

      {¶13}    Any exception to the requirement of parental consent 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 (1976), 46 Ohio St. 2d. 21, 345 N.E.2d 608.

      {¶14} The petitioner for adoption has burden of proving by clear and convincing

evidence that the natural parent has failed to provide support or maintain more than de

minimis contact with the child for at least a one year period prior to the filing of the

petition, and also must prove the failure was without justifiable cause. In Re: Adoption

of Bovett (1987), 33 Ohio St. 3d 102, 515 N.E.2d 919. 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. Id.

      {¶15} In Cross v. Ledford (1954), 161 Ohio St. 469, 120 N.E.2d 118, the Ohio

Supreme Court explained that clear and convincing evidence is more than a
Stark County, Case No. 2011-CA-00062                                                    5


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, syllabus

by the court, paragraph three.

       {¶16} One instance of justifiable cause for failure of communication is the

significant interference or significant discouragement of communication by a custodial

parent. In Re: Adoption of: Holcomb (1985), 18 Ohio St. 3d 361, 481 N.E.2d 613. The

trial court noted 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 (1992), 82 Ohio App. 3d 348, 612 N.E.2d 459.

       {¶17} Appellant urges mother’s statement that she did not want any

communication between the child and appellant indicates significant interference or

discouragement. Appellant argues mother admitted she did not provide him with the

family’s mailing address, and he suggests she refused and returned mail addressed to

the child once appellant had discovered the address. The record shows the petitioner-

appellee testified he was the one who retrieved the mail and he was aware of only one

letter from appellant to mother.

       {¶18} Both mother and appellee testified they would have accepted and allowed

the child to read any letters appellant had sent him.

      {¶19} Appellant concludes his consent to the adoption was required because his

inability to have more than de minimis contact with the child was justified because of

mother’s interference with his attempts to reach the child.
Stark County, Case No. 2011-CA-00062                                                    6


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

credibility of the evidence. Seasons Coal Company, Inc. v. City of Cleveland (1984), 10

Ohio St.3d 77, 461 N.E.2d 1273. We may not substitute our judgment for that of the trier

of fact. Pons v. Ohio State Medical Board (1993), 66 Ohio St.3d 619, 614 N.E.2d 748..

Here, the trial court believed the testimony of mother and appellee that appellant did not

send letters to the child during the one year period prior to the filing of the adoption

petition, and if appellant had, they would have permitted the child to read the letters.

From this the trial court could conclude appellant had failed to maintain more than de

minimus contact with the child for a period of at least one year immediately preceding

the filing of the petition, and such failure was unjustified.

       {¶21} The first assignment of error is overruled.

                                                 II

       {¶22} In his second assignment of error, appellant argues the trial court erred

as a matter of law in finding he had failed to provide for the maintenance and support of

the child for a period of at least one year immediately preceding the filing of the

adoption petition. Because R.C. 3107.07(A) is written in the disjunctive, either a failure

to communicate or a failure to support during the one-year time period is sufficient to

obviate the need for a parent's consent. In re: Adoption of McDermitt (1980), 63 Ohio

St.2d 301, 304, 408 N.E.2d 680.

       {¶23} Because we find the trial court did not err in finding appellant had failed

without justification to communicate with the child,I, supra., we find this issue is moot,

and accordingly, we overrule it.
Stark County, Case No. 2011-CA-00062                                                      7


                                                 III

         {¶24} In his third assignment of error, appellant challenges the court’s finding it

was in the best interest of the child to change his surname to that of the step-father.

         {¶25} Appellant has conceded if we find the court was correct in finding his

consent to the adoption was not required, then this assignment of error is moot. We

agree.

         {¶26} The third assignment of error is overruled as moot.

         {¶27} For the foregoing reasons, the judgment of the Court of Common Pleas,

Probate Division, of Stark County, Ohio, is affirmed.

By Gwin, P.J.,

Wise, J., and

Edwards, J., concur




                                               _________________________________
                                               HON. W. SCOTT GWIN

                                               _________________________________
                                               HON. JOHN W. WISE

                                               _________________________________
                                               HON. JULIE A. EDWARDS
WSG:clw 0714
[Cite as In re Adoption of Z.D.K., 2011-Ohio-4079.]


                IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

                                   FIFTH APPELLATE DISTRICT


IN THE MATTEROF
THE ADOPTION OF: Z.D. K.
IN THE MATTER OF:
THE NAME CHANGE OF Z.D.K.                             :
                                                      :
                                                      :
                                                      :
                                                      :
                                                      :       JUDGMENT ENTRY
                                                      :
                                                      :
                                                      :
                                                      :       CASE NO. 2011-CA-00062




    For the reasons stated in our accompanying Memorandum-Opinion, the judgment of

the Court of Common Pleas, Probate Division, of Stark County, Ohio, is affirmed. Costs

to appellant.




                                                          _________________________________
                                                          HON. W. SCOTT GWIN

                                                          _________________________________
                                                          HON. JOHN W. WISE

                                                          _________________________________
                                                          HON. JULIE A. EDWARDS
