[Cite as In re Adoption of J.A.B., 2014-Ohio-1375.]


                                     THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                    TRUMBULL COUNTY, OHIO



ADOPTION OF: J.A.B., JR.                              :   OPINION

                                                      :   CASE NO. 2013-T-0114




Civil Appeal from the Trumbull County Court of Common Pleas, Probate Division, Case
No. 2013 ADP 0012.

Judgment: Affirmed.


Elise M. Burkey, Burkey, Burkey & Scher Co., L.P.A., 200 Chestnut Avenue, N.E.,
Warren, OH 44483 (For Appellant, Terry L. Paronish).

John H. Chaney, III, Daniel Daniluk, L.L.C., 1129 Niles-Cortland Road, S.E., Warren,
OH 44484 (For Appellee, Jasper A. Beede, Sr., Father).



COLLEEN MARY O’TOOLE, J.

        {¶1}     Appellant, Terry L. Paronish (“Aunt”), appeals from the October 21, 2013

 judgment of the Trumbull County Court of Common Pleas, Probate Division, denying

 her petition for placement for adoption.

        {¶2}     On August 27, 2003, J.A.B., Jr. (“the minor child”) was born in Texas to

 Jenny J. Paronish-McNabb (“Mother”) and appellee, Jasper A. Beede, Sr. (“Father”).1

 Mother and Father married after their son was born. The parties later divorced.



1. Aunt and Mother are sisters.
      {¶3}   The minor child, during the early years of his life, lived at various locations

including Ohio, Louisiana, and Texas. In August 2005, while the minor child and his

parents were residing along the Gulf coast, Hurricane Katrina hit the area, causing

severe destruction. As a result of the devastating storm, they lost everything, including

a place to live. Due to circumstances beyond their control, Father and Mother agreed

that it was best, at that time, for the minor child to reside back in Ohio with Aunt.

      {¶4}   Aunt, an unmarried Ohio resident, agreed to care for her nephew in the fall

of 2005. At that time, Father was employed. Although Father did not send money for

the minor child to Aunt, he indicated he sent money to Mother, apparently after the

couple split up. Father maintained contact with his son through letters and cards sent

via mail as well as through phone calls. Thereafter, from around that period through

sometime in 2008, Father had run-ins with the law and was in prison.                He was

incarcerated during that time-frame with the exception of a seven-month period.

Father continued to maintain contact with his son through letters and cards.

      {¶5}   Aunt later filed for custody of her nephew. On April 10, 2008, the Trumbull

County Court of Common Pleas, Juvenile Division, granted Aunt legal custody of the

minor child, Case No. 2006 JP 352. The juvenile court found that the minor child was

dependent upon Aunt for all care and support and that his natural parents were

unsuitable and/or unfit to care for him.

      {¶6}   Father began another prison term in 2009.            He is scheduled to be

released from a Texas prison in 2019, but is eligible for parole this summer. Father

has continued to maintain contact with his son through letters and cards. He opposes




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the termination of his parental rights. On the other hand, Mother, a Missouri resident,

filed a consent on April 15, 2013 to have Aunt adopt the minor child.

      {¶7}   On May 7, 2013, Aunt filed a petition for placement for adoption with the

Trumbull County Court of Common Pleas, Probate Division, Case No. 2013 ADP 0012.

Aunt alleged that the parents abandoned the minor child by failing to support or visit

him within one year prior to the filing of her petition pursuant to R.C. 3107.07. Aunt

further alleged that adoption would be in the minor child’s best interests.

      {¶8}   On May 31, 2013, Father filed a pro se written objection(s) to adoption, an

answer, a request for appointment of an attorney ad litem, a bench warrant, or in the

alternative, a telephonic/video conference, and a continuance.          In response, the

probate court appointed counsel for Father.

      {¶9}   A hearing on Aunt’s adoption petition was held on September 9, 2013.

Aunt was represented by counsel and testified at the hearing.            Father was also

represented by counsel and testified via telephone from prison in Texas. Mother, who

previously consented to the adoption, did not attend the hearing.

      {¶10} According to Father, he maintained consistent contact and communication

with his son through the mail since 2005 by sending multiple letters, cards, and

homemade “gifts.” The minor child and Aunt also sent responses back to him. Around

that period through sometime in 2008, Father was incarcerated, with the exception of a

seven-month period, and had no cash income. Since his latest 2009 incarceration,

Father has continued to send letters to his son from prison and has no cash income.

      {¶11} According to Aunt, Father never paid her any support for the minor child,

even when he was employed. Aunt acknowledged that Father has had contact and




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communication with his son for many years, and throughout his incarcerations, through

letters, cards, and homemade “gifts.”

      {¶12} Following the hearing, and at the court’s request, Aunt and Father

submitted post-trial briefs. On October 21, 2013, the probate court concluded that Aunt

failed to sustain the burden of proof that Father had abandoned the minor child. Thus,

the court denied Aunt’s adoption petition as consent of Father is required. Aunt filed a

timely appeal raising three assignments of error:

      {¶13} “[1.] The trial court erred in not determining that the father failed to support

or communicate with the minor child in the year prior to the juvenile court granting

appellant legal custody (placement of the minor in the home of the petitioner).

      {¶14} “[2.] The trial court erred in finding that letters from prison are not di

minimis (sic) contact with a minor child for purposes of determing (sic) his right to

consent.

      {¶15} “[3.] The trial court erred in finding that father had justifiable cause to not

support the child because he was in prison.”

      {¶16} Preliminarily, we note that Aunt’s appeal focuses on the denial of her May

7, 2013 adoption petition in which she alleged that the parents abandoned the minor

child by failing to support or visit him within one year prior to the filing of her petition

pursuant to R.C. 3107.07. Aunt additionally alleges that the parents also abandoned

their son within one year prior to April 10, 2008 when she was granted legal custody.

Thus, Aunt is essentially requesting the termination of Father’s parental rights including

his right to consent regarding the placement and/or adoption of the minor child. See

generally In re Adoption of Lasky, 11th Dist. Portage Nos. 2004-P-0087, 2004-P-0088,




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and 2004-P-0089, 2005-Ohio-1565, ¶17 (holding that adoptions terminate fundamental

rights of natural parents.)

      {¶17} We commend Aunt for being involved and supporting her nephew due to

such an unfortunate set of events. However, for the following reasons, we fail to see

that the probate court committed any error in requiring the consent of Father with

respect to Aunt’s adoption petition.

      {¶18} “[I]t is well established that a parent’s right to raise a child is an essential

and basic civil right. In re Hayes (1997), 79 Ohio St.3d 46, 48 * * *. The permanent

termination of parental rights has been described as the family law equivalent of the

death penalty in a criminal case. In re Hoffman, 97 Ohio St.3d 92, 2002-Ohio-5368, at

¶14 * * *. See, also, In re Smith (1991), 77 Ohio App.3d 1, 16 * * *. Based upon these

principles, the Ohio Supreme Court has determined that a parent ‘must be afforded

every procedural and substantive protection the law allows.’ (Citation omitted.) Hayes

at 49.” In re Phillips, 11th Dist. Ashtabula No. 2005-A-0020, 2005-Ohio-3774, ¶22.

(Parallel citations omitted.)

      {¶19} “In cases involving the termination of parental rights, an appellate court

applies the civil manifest weight of the evidence standard of review. In re D.H, 11th

Dist. Geauga No. 2007-G-2759, 2007-Ohio-3337, ¶20-21. ‘Judgments supported by

some competent, credible evidence going to all the essential elements of the case will

not be reversed by a reviewing court as being against the manifest weight of the

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

syllabus.” In re B.R.C. and E.J.C., 11th Dist. Portage Nos. 2013-P-0059 and 2013-P-

0060, 2014-Ohio-69, ¶41. (Parallel citation omitted.)




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      {¶20} In her first assignment of error, Aunt argues the probate court erred in not

determining that Father failed to support or communicate with the minor child in the

year prior to the juvenile court granting her legal custody.

      {¶21} R.C. 5103.16(D)(3) states in part:

      {¶22} “If the parent or parents of the child * * * have abandoned the child, as

determined under division (A) of section 3107.07 of the Revised Code, the application

for approval of the proposed adoptive placement may be brought by the relative

seeking to adopt the child * * * in the probate court of the county in which the child is a

resident, * * * or where the person or persons with whom the child is to be placed

reside. Unless the parent, parents, or guardian of the person of the child personally

have appeared before the court and applied for approval of the placement, notice of

the hearing on the application shall be served on the parent, parents, or guardian.”

      {¶23} R.C. 3107.07(A) provides that consent to adoption is not required of:

      {¶24} “(A) A parent of a minor, when it is alleged in the adoption petition and the

court finds after proper service of notice and hearing, 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 either the filing of the adoption petition or the placement of

the minor in the home of the petitioner.”

      {¶25} This court stated in In re Adoption of Pushcar, 11th Dist. Lake No. 2005-L-

050, 2005-Ohio-5114, ¶11-15:

      {¶26} “We will reverse a trial court’s determination under R.C. 3107.07(A) only if

it is against the manifest weight of the evidence. In re Adoption of Masa (1986), 23




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Ohio St.3d 163, * * *, at paragraph 2 of the syllabus; In re Adoption of Bovett (1987), 33

Ohio St.3d 102, * * *, at paragraph four of the syllabus.

      {¶27} “In Bovett, the Court set forth the standard to apply in proceedings under

R.C. 3107.07(A). The Court held:

      {¶28} “‘1. Pursuant to R.C. 3107.07(A), the petitioner for adoption has the

burden of proving, by clear and convincing evidence, both (1) that the natural parent

has failed to support the child for the requisite one-year period, and (2) that this failure

was without justifiable cause. (In re Adoption of Masa (1986), 23 Ohio St.3d 163, * *

*, paragraph one of the syllabus, followed.)

      {¶29} “‘2. Once the petitioner has established, by clear and convincing evidence

that the natural parent has failed to support the child for at least the requisite one-year

period, the burden of going forward with the evidence shifts to the natural parent to

show some facially justifiable cause for such failure. The burden of proof, however,

remains with the petitioner.

      {¶30} “‘3. Under R.C. 3107.07(A), the probate court shall determine the issue of

justifiable cause by weighing the evidence of the natural parent’s circumstances for the

statutory period for which he or she failed to provide support.           The court shall

determine whether the parent’s failure to support the child for that period as a whole

(and not just a portion thereof) was without justifiable cause.’ Id. at paragraphs one,

two, and three of the syllabus.” (Parallel citations omitted.)

      {¶31} As stated, Aunt alleged in her May 7, 2013 adoption petition that the

parents abandoned the minor child by failing to support or visit him within one year

prior to the filing of her petition pursuant to R.C. 3107.07.          Following Father’s




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objections, a hearing on the petition was held. Father testified that he maintained

consistent contact and communication with his son through the mail since 2005 by

sending multiple letters, cards, and homemade “gifts.” The minor child and Aunt also

sent responses back to him. Around that period through sometime in 2008, Father was

incarcerated, with the exception of a seven-month period, and had no cash income.

Since his latest 2009 incarceration, Father has continued to send letters to his son from

prison and has no cash income.

      {¶32} Our review of the record supports the probate court’s findings that Father

was without income during the one year preceding the filing of Aunt’s May 7, 2013

adoption petition and throughout his incarceration and that Father had more than de

minimis contact with the minor child. In fact, within the one year period preceding her

filing of the adoption petition, Aunt acknowledged that Father has had contact and

communication with his son through mail correspondences.

      {¶33} Aunt also alleges that the probate court should have focused on the time

period within one year of her being granted legal custody of the minor child, i.e., April

10, 2008. However, the record also reflects that Father did not abandon his son during

that time period.    Again, around 2005 through sometime in 2008, Father was

incarcerated, with the exception of a seven-month period, had no cash income, and

communicated with his son through letters. Thus, Father was in a similar position

during 2007 to 2008 as he was in the one year period preceding the filing of Aunt’s

adoption petition in 2013.     Therefore, contrary to Aunt’s assertion, nothing has

changed.




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      {¶34} Upon review, the probate court correctly determined that Father “was

without income during the one year preceding the filing of the petition for placement for

adoption and throughout his incarceration” and that Father had “more than de minimis

contact with the minor.” (Emphasis added.) Furthermore, using either the year prior to

the April 10, 2008 legal custody date or the year prior to the May 7, 2013 adoption

petition filing, the record establishes that Father did not abandon his son under R.C.

5103.16(D)(3) and 3107.07(A). Beginning in 2005 through the date of the September

9, 2013 hearing, Aunt testified that Father sent the minor child a letter once every

couple of months. Father, however, testified that he sent letters to his son more often.

Regardless, the time-frame evidence reveals that Father communicated with his son,

through his only established means, within the year prior to the April 10, 2008 legal

custody date and within the year prior to the May 7, 2013 adoption petition filing. Thus,

Father’s consent to adoption is required.

      {¶35} Aunt’s first assignment of error is without merit.

      {¶36} In her second assignment of error, Aunt contends the probate court erred

in finding that letters from prison are not de minimis contact with the minor child for

purposes of determining Father’s right to consent.

      {¶37} “A trial court is not obligated to find justifiable cause exists solely on the

basis that a parent is incarcerated. Dallas v. Dotson, 113 Ohio App.3d 484, * * * (9th

Dist.1996); In re A.M.W., 9th Dist. Medina Nos. 07CA0062-M, 07CA0063-M, 2008-

Ohio-1456; In re Adoption of Caleb M.J., [6th Dist. Lucas No. L-07-1186, 2007-Ohio-

5599,] at ¶11. Instead, when a parent is in prison, reviewing courts have determined

that imprisonment is one of several factors the court should consider. In re D.R., 7th




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Dist. Belmont No. 11 BE 11, 2011-Ohio-4755, ¶14.” In re Adoption of C.M.F., 12th

Dist. Butler Nos. 2013-06-090 and 2013-06-091, 2013-Ohio-4719, ¶17.            (Parallel

citation omitted.)

      {¶38} Incarceration does not preclude a parent from communicating with his

child. In re Adoption of Doyle, 11th Dist. Ashtabula Nos. 2003-A-0071 and 2003-A-

0072, 2004-Ohio-4197, ¶14. An incarcerated defendant may send cards or letters to

his child or otherwise attempt to communicate outside the realm of physical visitation.

Id. at ¶17.

      {¶39} In this case, the record establishes that Father is no model citizen.

However, Father sought to maintain a bond with the minor child from the time of his

son’s birth and throughout his prior and current incarcerations. In fact, Father did not

allow his incarcerations to hinder his attempts to remain in contact with his son. As

stated, from 2005, Father has communicated with the minor child through letters from

prison, his only permitted means of communication allowed by Aunt. The minor child

and Aunt also sent responses back to him.        Father also sent his son cards and

homemade “gifts.”

      {¶40} Aunt opposes the probate court’s finding that she “conceded” that Father

had more than de minimis contact with the minor child. However, a review of the

record reveals that Aunt, at a minimum, acknowledged that Father has had contact and

communication with his son for many years, and throughout his incarcerations, i.e.,

from 2005, through letters, cards, and homemade “gifts.”




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      {¶41} Based on the facts presented, the probate court did not err in finding that

Father had more than de minimis contact with his son for purposes of determining his

right to consent.

      {¶42} Aunt’s second assignment of error is without merit.

      {¶43} In her third assignment of error, Aunt maintains the probate court erred in

finding that Father had justifiable cause to not support the minor child because he was

in prison.

      {¶44} Parents have a duty in Ohio under common and statutory law to support

their children. Haskins v. Bronzetti, 64 Ohio St.3d 202, 205 (1992). However, the

person in custody of the child is not entitled to receive support payments from non-

custodial parents on the basis of a general duty of support when no support order was

issued at the time of the custody award. See Meyer v. Meyer, 17 Ohio St.3d 222,

syllabus (1985). In addition, a natural parent is not obligated to provide support where

the person in custody of the child is advised of the parent’s financial condition and

expresses no interest in receiving financial assistance. In re Adoption of Hadley, 2d

Dist. Greene No. 90 CA 117, 1991 Ohio App. LEXIS 3783, *7-8 (Aug. 1, 1991).

      {¶45} The record in this case reflects that Aunt did not express an interest in

receiving financial assistance from Father. The juvenile court considered the issue of

child support and stated in its April 10, 2008 order that “[n]o child support is being

requested at this time.” Aunt understood that there was no court order requiring Father

to pay support. In fact, when asked about this issue during the September 9, 2013

hearing before the probate court, Aunt outlined her reasoning for not requesting

financial assistance from Father stating that it was due to his incarceration. Thus, Aunt




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cannot now use Father’s lack of providing financial assistance as a basis for

terminating his parental rights.

      {¶46} The facts in this case do not support a finding that Father has abandoned

or lost interest in his son. Even though Aunt did not pursue support from Father, the

facts here also reveal that Father is not the type of parent that is able to financially

support his child but is unwilling to do so. Rather, Father has maintained contact and

communication with the minor child and, when previously employed, provided financial

assistance to Mother for their son. Thus, Father is the type of parent willing to support,

but due to his incarceration, even though it was his own voluntary act to commit a

crime, is unable to do so as he has no income.

      {¶47} The probate court properly considered Father’s incarceration as a factor in

determining that Aunt had not presented sufficient evidence to support a finding that

Father failed without justifiable cause to support his son.

      {¶48} Aunt’s third assignment of error is without merit.

      {¶49} For the foregoing reasons, appellant’s assignments of error are not well-

taken.    The judgment of the Trumbull County Court of Common Pleas, Probate

Division, is affirmed.



DIANE V. GRENDELL, J.,

THOMAS R. WRIGHT, J.,

concur.




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