[Cite as In re the Adoption of C.R.R., 2015-Ohio-5399.]


                                        COURT OF APPEALS
                                     FAIRFIELD COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



IN THE MATTER OF                                   :      JUDGES:
THE ADOPTION OF:                                   :      Hon. W. Scott Gwin, P.J.
                                                   :      Hon. Sheila G. Farmer, J.
C.R.R.                                             :      Hon. Patricia A. Delaney, J.
                                                   :
                                                   :
                                                   :      Case No. 15-CA-50
                                                   :
                                                   :
                                                   :      OPINION




CHARACTER OF PROCEEDING:                                  Appeal from the Court of Common
                                                          Pleas, Probate Division, Case No.
                                                          20145040



JUDGMENT:                                                 Affirmed




DATE OF JUDGMENT:                                         December 22, 2015




APPEARANCES:

For Appellant                                             For Appellee

HOLLY P. REGOLI                                           JAMIE WILLIAMS
433 East Main Street                                      323 Main Street
Lancaster, OH 43130                                       P.O. Box 53
                                                          Duncan Falls, OH 43734
Fairfield County, Case No. 15-CA-50                                                    2

Farmer, J.

       {¶1}   On December 15, 2006, Heather Romine gave birth to C.R.R. Established

biological father of the child is appellee, Steven Weston.

       {¶2}   On October 31, 2014, Ms. Romine's husband, appellant, Gary Romine, filed

a petition for adoption of C.R.R. The petition indicated appellee's consent was not

required.

       {¶3}   On November 12, 2014, appellee objected to the adoption. The parties filed

stipulations of facts and briefs on May 18, and June 12, 17, and 19, 2015. By entry filed

August 24, 2015, the trial court denied the adoption, finding appellee's consent was

necessary and appellee did not consent.

       {¶4}   Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

                                             I

       {¶5}   "THE TRIAL COURT'S RULING THAT THE PETITION FOR ADOPTION

WAS DENIED SHOULD BE SET ASIDE BECAUSE THE TRIAL COURT ERRED IN

RULING ON THE ISSUE OF WHETHER OR NOT CONSENT OF THE BIOLOGICAL

FATHER WAS NECESSARY WITHOUT AN EVIDENTIARY HEARING."

                                            II

       {¶6}   "THE TRIAL COURT'S RULING THAT THE PETITION FOR ADOPTION

WAS DENIED SHOULD BE SET ASIDE BECAUSE THE TRIAL COURT ERRED IN

RULING ON THE ISSUE OF WHETHER OR NOT CONSENT OF THE BIOLOGICAL

FATHER WAS NECESSARY WITHOUT CONSIDERING BOTH PARTS OF THE
Fairfield County, Case No. 15-CA-50                                                      3


STATUTE REGARDING CIRCUMSTANCES UNDER WHICH CONSENT BY THE

NATURAL PARENT IS NOT NECESSARY."

                                             I, II

       {¶7}   Appellant claims the trial court erred in finding consent was necessary

without considering both parts of R.C. 3107.07 and without conducting an evidentiary

hearing. We disagree.

       {¶8}   Although two assignments of error are presented, the pivotal issue is

whether appellant waived his right to an evidentiary hearing on the issue of consent. In

order to resolve this issue, it is necessary to review the procedural history.

       {¶9}   On November 12, 2014, appellee objected to the adoption and filed a

motion to bifurcate the consent issue from the issue of best interest. By entry filed

December 31, 2014, the trial court granted the motion, and stated the scheduled hearing

set for February 27, 2015 would "be on the issue of whether the biological father's consent

to the adoption is necessary." On February 27, 2015, a hearing entry was filed with the

following notations:



              Based upon the foregoing, the Court hereby ORDERS:

              4/30/15 Stipulation of facts

              5/29/15 Petitions brief due

              6/19/15 Respondents brief due

              7/31/15 Responses

              8/31/15 Court

              9/10/15 PT 1:30 - 3:00
Fairfield County, Case No. 15-CA-50                                                         4


              9/28/15 Hearing all day

              9/29/15 Hearing all day



       {¶10} Thereafter, each party filed stipulations of facts and briefs (May 18, June

12, 17, and 19, 2015). It is undisputed by the parties that the child receives social security

disability via appellee's disability and a child support arrearage does not exist. In the

original order for child support filed November 19, 2007 in Case No. 07PA155, appellant

was ordered to pay $0.00 per month because the child received a benefit of $942.00 per

month from appellee's social security disability and this amount offset appellee's

obligation.

       {¶11} R.C. 3107.07 governs consents not required for an adoption.               Under

subsection (A), consent is not required of:



              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 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.
Fairfield County, Case No. 15-CA-50                                                        5


       {¶12} In his brief to the trial court, appellant argued appellee "had failed without

justifiable cause to provide for the maintenance and support of the minor child as required

by law or judicial decree for a period of at least one year immediately preceding the filing

of the adoption petition or the placement of the minor in the home of the Petitioner."

Appellant argued appellee "both failed to provide more than de minimus contact with his

daughter and he did not financially support her voluntarily."

       {¶13} In our review of the consent issue, we find the trial court was presented with

an issue of law, not fact, after it was conceded that the social security disability payments

were considered child support.       In its entry filed August 24, 2015, the trial court

summarized the procedural history as follows:



              The issues concerning Consent and Best Interest were bifurcated by

       agreement of the parties and therefore the Court is presented with motions

       and proposed facts limited to the matter of Consent at this time pursuant to

       ORC 3107.07.

              The parties were asked to submit Statements of Facts and Findings

       of law to the Court. The parties attempted to develop a stipulations of fact

       but were unable to successfully reach an agreement. Petitioners each filed

       a proposed stipulations of facts which the court is treating as a proposed

       finding of fact on 5/18/2014. Petitioner timely filed his brief on 6/12/2015.

       Biological father filed a stipulation of fact on 5/18/2015 and 6/19/201115

       (sic). Biological father filed his brief timely on 7/17/2015.
Fairfield County, Case No. 15-CA-50                                                        6


              This matter came before the Court for a non-oral hearing based on

      motions and proposed stipulations of fact on August 12, 2015 as to matters

      of Consent pursuant to ORC 3107.07(A). The Court asked for and received

      additional information from the parties filed on August 21, 2015.



      {¶14} The trial court went on to determine the following:



              The Court addresses the child support issue outlined in the briefs

      and proposed stipulations as contemplated in ORC 3107.07. Father has

      had his Social Security Disability Income redirected to mother Heather

      Romine on behalf of his minor child [C.R.]. As of August 21, 2015, the

      payments have continuously been paid to Heather Romine since November

      2007.

              The Supreme Court of Ohio, in Williams v. Williams, 88 Ohio St. 3d

      441 (2000), stated that social security disability payments made to a child

      on behalf of the non-custodial parent should result in full credit against that

      parent's current child support obligation, stating as follows:

              "we hold that a disabled parent is entitled to a full credit in his or her

      child support obligation for Social Security payments received by a minor

      child. Accordingly, appellant's child support obligation shall be set off by

      those Social Security payments received on Jessica's behalf. Since the

      amount of Social Security payments Jessica received exceeds what

      appellant owed, the trial court shall enter judgment reflecting that no child
Fairfield County, Case No. 15-CA-50                                                    7

      support is owed from the time she first received the Social Security

      benefits." Williams v. Williams, 88 Ohio St. 3d 441 (2000)

             Therefore the Court finds that pursuant to ORC 3101.07, that

      respondent biological father has maintained a child support payment history

      for the preceding 12 months to the filing of the Petition of Adoption and

      therefore his consent is found to be necessary for the Petition of Adoption

      to be granted. Respondent biological father has objected to the Petition of

      Adoption and does not consent to the adoption and therefore the Court finds

      that all necessary consents are not obtained and the Petition for Adoption

      cannot be granted by this court.



      {¶15} Because R.C. 3107.07(A) uses the conjunction "or" as opposed to "and,"

the issue of consent was completely addressed by the trial court.

      {¶16} Upon review, we find the issue of consent was resolved as a matter of law

and was not a disputed fact, and find the trial court did not err in denying the adoption

petition as appellee's consent was necessary.

      {¶17} Assignments of Error I and II are denied.
Fairfield County, Case No. 15-CA-50                                           8


      {¶18} The judgment of the Court of Common Pleas of Fairfield County, Ohio,

Probate Division is hereby affirmed.

By Farmer, J.

Gwin, P.J. and

Delaney, J. concur.

SGF/sg 121
