[Cite as In re Adoption of K.R.S., 2020-Ohio-976.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                               HANCOCK COUNTY




IN RE: THE ADOPTION OF:
                                                          CASE NO. 5-19-36
        K.R.S.,
                                                          OPINION
[M.C. - APPELLANT]




                Appeal from Hancock County Common Pleas Court
                                Probate Division
                            Trial Court No. 20185032

                                      Judgment Affirmed

                            Date of Decision: March 16, 2020




APPEARANCES:

        Brian C. Morrissey for Appellant

        Jeffrey P. Nunnari for Appellee
Case No. 5-19-36


SHAW, P. J.

         {¶1} Appellant-respondent, M.C. (“Father”) appeals the August 29, 2019

judgment of the Hancock County Court of Common Pleas, Probate Division, finding

that appellee-petitioner, T.S. (“Step-Father”), proved by clear and convincing

evidence that Father had failed to provide more than de minimis contact with his

biological child, K.R.S., and that Father had failed to provide maintenance and

support to K.R.S. in the year immediately preceding the filing of the adoption

petition. As a result, the trial court concluded that Father’s consent to Step-Father’s

Petition for Adoption of K.R.S. is not required, and ordered the case to proceed on

the adoption petition. On appeal, Father argues that he had justifiable cause for

failing to communicate with K.R.S. and for failing to provide maintenance and

support for K.R.S. Therefore, Father contends that the trial court’s decision is

against the manifest weight of the evidence.

                                  Facts and Procedural History

         {¶2} K.R.S. was born in Michigan in 2006 to E.S. (“Mother”) and Father,

who were not married.1 Mother and Step-Father married in 2017 after being

together for several years.

         {¶3} On August 15, 2018, Step-Father filed a Petition for Adoption of K.R.S.

alleging that Father’s consent to the adoption is not required because (1) he had


1
 The record indicates that even though Father was not named on the birth certificate, his paternity of K.R.S.
was established through a child support proceeding in Michigan.

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failed without justifiable cause to provide more than de minimis contact with K.R.S.

for a year immediately preceding the filing of the adoption petition; and (2) he had

failed without justifiable cause to provide for the maintenance and support of K.R.S.

as required by law for a period of at least one year immediately preceding the filing

of the adoption petition. See R.C. 3107.07(A). Step-Father further included as

grounds for his petition that Father had been incarcerated from 2011 to 2013 due to

his third degree felony conviction for criminal sexual conduct; Father had been

incarcerated from December 2015 to October 2016 for parole violations; and that

Father is required to register as a sex offender for his lifetime.

       {¶4} Notice of a Hearing on the Petition was sent to Father and he filed an

objection to the adoption. The trial court set a hearing on the matter.

       {¶5} On August 8, 2019, the trial court conducted a hearing on whether

Father’s consent to the adoption is not required under R.C. 3107.07(A). Step-Father

and Mother provided testimony in support of establishing that Father’s consent to

the adoption is not required. Father and his father, paternal grandfather, both

testified in support of the position that Father’s consent is required.

       {¶6} On August 29, 2019, the trial court issued a judgment entry finding that

Father’s consent to the adoption is not required. Specifically, the trial court found

by clear and convincing evidence that Father had failed to provide more than de

minimis contact with K.R.S. and had failed to provide maintenance and support for


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K.R.S. in the year immediately preceding the filing of the adoption petition.

Accordingly, the trial court determined that the adoption could proceed without

Father’s consent.

       {¶7} Father filed a notice of appeal from this judgment entry, asserting the

following assignments of error.

                      ASSIGNMENT OF ERROR NO. 1

       THE TRIAL COURT’S DECISION THAT THE APPELLANT
       FAILED WITHOUT JUSTIFIABLE CAUSE TO PROVIDE
       FOR THE MAINTENANCE AND SUPPORT OF HIS MINOR
       CHILD WAS AGAINST THE MANIFEST WEIGHT OF THE
       EVIDENCE.

                      ASSIGNMENT OF ERROR NO. 2

       THE TRIAL COURT’S DECISION THAT THE APPELLANT
       FAILED TO PROVIDE MAINTENANCE AND SUPPORT AS
       REQUIRED BY LAW OR JUDICIAL DECREE IN THE YEAR
       IMMEDIATELY PRECEDING THE FILING OF THE
       ADOPTION PETITION IS AGAINST THE MANIFEST
       WEIGHT OF THE EVIDENCE.

                      ASSIGNMENT OF ERROR NO. 3

       THE TRIAL COURT’S DECISION THAT APPELLANT
       FAILED WITHOUT JUSTIFIABLE CAUSE TO PROVIDE DE
       MINIMUS [SIC] CONTACT WITH HIS CHILD FOR AT
       LEAST ONE YEAR PRECEDING THE FILING THE
       ADOPTION PETITION WAS AGAINST THE MANIFEST
       WEIGHT OF THE EVIDENCE.

       {¶8} For ease of discussion, we elect to address the assignments of error

together.


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                  First, Second, and Third Assignments of Error

       {¶9} On appeal, Father argues that the trial court erred in finding his consent

to Step-Father’s adoption of K.R.S. is not required. Specifically, Father argues that

the trial court erred in determining that he had failed without justifiable cause both

to provide more than de minimis contact with the child and to provide proper

maintenance and support during the one-year look-back period of R.C. 3107.07(A).

                                    Legal Standard

       {¶10} The right of natural parents to the care and custody of their children is

one of the most precious and fundamental in law. In re Adoption of Masa, 23 Ohio

St.3d 163, 164 (1986) citing Santosky v. Kramer, 455 U.S. 745, 753 (1982). An

adoption permanently terminates the parental rights of a natural parent. In re

Adoption of Reams, 52 Ohio App.3d 52, 55 (10th Dist.1989). Therefore, “[b]ecause

adoption terminates these rights, Ohio law requires parental consent to an adoption

unless a specific statutory exemption exists.” In re Adoption of A.N.B., 12th Dist.

Preble No. CA2012-04-006, 2012-Ohio-3880, ¶ 5 citing In re Caudill, 4th Dist.

Jackson No. 05CA4, 2005-Ohio-3927, ¶ 14.

       {¶11} One such statutory exemption to the consent requirement is contained

in R.C. 3107.07(A), which states.

       Consent to adoption is not required of any of the following:

       (A) A parent of a minor, when it is alleged in the adoption
       petition and the court, after proper service of notice and hearing,

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Case No. 5-19-36


       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.

R.C. 3107.07(A). “R.C. 3107.07(A) is written in the disjunctive.” In re Adoption

of H.R., 3d Dist. Logan No. 8-14-15, 2014-Ohio-5390, ¶ 23. “Therefore, a failure

without justifiable cause to provide either more than de minimis contact with the

minor or maintenance and support for the one-year time period is sufficient to

obviate the need for a parent’s consent.” (Emphasis sic.) Id.; see also In re Adoption

of A.H., 9th Dist. Lorain No. 12CA010312, 2013-Ohio-1600, ¶ 9.

       {¶12} The Supreme Court of Ohio has articulated a two-step analysis for

probate courts to employ when applying R.C. 3107.07(A). See In re the Adoption

of B.G.F., 3d Dist. Shelby No. 17-18-06, 2018-Ohio-5063, ¶ 25 citing In re Adoption

of M.B., 131 Ohio St.3d 186, 2012-Ohio-236, ¶ 23.

       {¶13} The first step involves the factual question of whether the petitioner

has proven, by clear and convincing evidence, the natural parent failed to provide

for the maintenance and support of the child or failed to have more than de minimis

contact with the child. In re Adoption of M.B. at ¶ 23. Clear and convincing

evidence is that measure or degree of proof which is more than a mere

“preponderance of the evidence,” but not to the extent of such certainty as is


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required “beyond a reasonable doubt” in criminal cases, and which will produce in

the mind of the trier of facts a firm belief or conviction as to the facts sought to be

established. Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the

syllabus. “A trial court has discretion to make these determinations, and, in

connection with the first step of the analysis, an appellate court applies an abuse-of-

discretion standard when reviewing a probate court decision.” In re Adoption of

M.B. at ¶ 25. The term abuse of discretion connotes more than an error of law or

judgment; it implies that the court’s attitude is unreasonable, arbitrary, or

unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217 (1983).

         {¶14} If a probate court makes a finding that the parent failed to support or

contact the children, the court proceeds to the second step of the analysis and

determines whether justifiable cause for the failure has been proven by clear and

convincing evidence. 2 In re Adoption of M.B., 131 Ohio St.3d 186, 2012-Ohio-236.

The question of whether justifiable cause for the failure to contact the child has been

proven 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


2
  Recently, the Supreme Court of Ohio articulated a three-step analysis for maintenance and support issues
under R.C. 3107.07(A). Specifically, the Supreme Court state that “the court must first determine what the
law or judicial decree required of the parent during the year immediately preceding either the filing of the
adoption petition or the placement of the minor in the home of the petitioner. Second, the court determines
whether during that year the parent complied with his or her obligation under the law or judicial decree.
Third, if during that year the parent did not comply with his or her obligation under the law or judicial decree,
the court determines whether there was justifiable cause for that failure. See In re Adoption of B.I., 157 Ohio
St. 3d 29, 2019-Ohio-2450, ¶ 15. The same burdens of proof and standards of review apply to steps two and
three as stated in In re Adoption of M.B., 131 Ohio St.3d 186, 2012-Ohio-236.

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evidence.” Id. “In determining whether a judgment is against the manifest weight

of the evidence, we must review the entire record, weigh the evidence and all

reasonable inferences, consider witness credibility, and determine whether, in

resolving conflicts in the evidence, the trier of fact clearly lost its way and created

such a manifest miscarriage of justice that there must be a reversal of the judgment

and an order for a new trial.” (Internal quotations omitted.) In re Adoption of

L.C.W., 12th Dist. Butler No. CA2014-08-169, 2015-Ohio-61, 2015 WL 135320, ¶

14. In so doing, we must be mindful that the probate court is in the best position to

observe the demeanor of the parties and assess the credibility and accuracy of the

testimony.

                          Evidence Adduced at the Hearing

       {¶15} In support of his position that Father’s consent to the adoption is not

required, Step-Father testified that K.R.S. was thirteen-years-old at the time of the

hearing and that he has known K.R.S. for ten years. Step-Father explained that he

and Mother have been in a relationship for several years, living together in a

household with five other children. Step-Father acknowledged that K.R.S. regards

him as a father figure and confides in him. Step-Father further stated that Father

has had no contact with or provided any financial support for K.R.S. within the year

preceding the filing of the adoption petition in August 2018.




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       {¶16} Mother provided testimony also describing a close relationship

between Step-Father and K.R.S. She explained that the adoption petition was filed

because K.R.S. asked Step-Father to adopt him. Mother recalled that the last time

Father saw K.R.S. was in October of 2015, and the last time that Father had any

meaningful contact with K.R.S. was in 2010 prior to Father being incarcerated for

the first time. Mother stated that she is sole legal custodian of K.R.S. and that

Father’s visitation was suspended while he was incarcerated. Mother explained that

K.R.S. still has contact with his paternal grandfather and Father’s extended family.

Mother stated that she would permit Father to see K.R.S. if he asked, but Father has

not. Mother further testified that even though Father’s visitation with K.R.S. is

restricted, he is nevertheless permitted to have other forms of contact like sending

birthday cards or gifts, which Father has not attempted to do.

       {¶17} Mother stated that she had not received any child support from Father

for K.R.S. since January of 2010. She testified the current child support order in

place was issued in the State of Michigan, where Father lives and where she and

K.R.S. lived prior to 2016. Mother stated that this order obligates Father to pay

child support for K.R.S. in the amount of $22.06 per week. In 2011, shortly after

he reported to prison, Father successfully petitioned to have his child support

payments “reserved” so that his prison wages were not garnished and arrearages did

not accrue while he was incarcerated. However, testimony at the hearing indicated


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that Father was required to notify the proper authorities within twenty-eight days of

his release from prison to have the child support order reinstated, which father failed

to do.

         {¶18} For his part, Father testified that upon his recent release from prison a

condition of his parole prohibits him from having contact with minors, even his own

child. Father explained his ability to interact with K.R.S. is complicated by the fact

that he also is not permitted to have a device with internet capabilities. Father

acknowledged that prior to 2015, when he returned to prison for a parole violation,

he had special permission from his parole officer to see K.R.S. However, Father

claimed that after he returned to prison in 2015, he lost contact with Mother and did

not know of K.R.S.’s whereabouts.

         {¶19} Father admitted that he has not paid child support for K.R.S. since he

was released from prison in October of 2018, despite being employed full-time for

almost a year. Father claimed he did not know how to reinstate his child support

order. Father stated that he met with his parole officer twice a month; that he has

had the same parole officer for the past eighteen months; and that his parole officer

is aware he has a child. Father acknowledged that he is permitted to see K.R.S. with

permission from his parole officer, but that permission is not currently in place.

         {¶20} Paternal Grandfather also testified on father’s behalf. He recalled

being in touch with Mother regarding K.R.S. around Christmas of 2015. However,


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the two had a falling out when Mother discovered that Paternal Grandfather left

K.R.S. alone with Father when Mother had allowed Paternal Grandfather to take

K.R.S. for a visitation. Paternal Grandfather claimed he lost contact with Mother

and K.R.S. after that point, and only discovered that they were living in Ohio when

he learned about the adoption petition.    Paternal Grandfather noted that Mother

recently permitted K.R.S. to spend a weekend with him and his extended family.

The visitation time was arranged between Mother and Father’s sister.

                                    Discussion

1. Failure to Provide Contact

       {¶21} In its August 29, 2019 Judgment Entry, the trial court found that there

is no justifiable cause for Father’s failure to communicate with K.R.S., specifically

the trial court found:

       [Father] acknowledges that he has not visited or contacted
       [K.R.S.] within the last year. However, [Father] argues that there
       is justifiable cause due to his order that he not have contact with
       any children including his own. This requirement is a condition
       of his probation. [Father] acknowledged that he was able to earn
       his way to have contact with [K.R.S.] at one time. After [Father’s]
       initial release from prison, he was compliant with probation and
       received permission from his probation officer to have visits with
       [K.R.S.]. Those visits occurred until [Father] violated his
       probation and was placed back in prison. Since his last release
       from prison, he has not yet re-earned privileges to have visits and
       therefore visits have not occurred. Therefore, it is not simply the
       order of no contact that has precluded [Father] from the ability
       to visit his son, it is [Father’s] own behavior that caused the
       privilege to be taken away by his probation officer and the Court
       cannot find that failure justifiable. Accordingly, the Court hereby

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       finds by clear and convincing evidence that [Father] has failed
       without justifiable cause to provide more than de minimus [sic]
       contact with the child for a period of at least a year immediately
       preceding the filing of the adoption petition.

(Doc. No. 25 at 3-4.)

       {¶22} It is undisputed that Father has failed to maintain contact with K.R.S.

since 2015. Nevertheless, Father argues that the conditions of his parole, which

required him to have no contact with minors, and the suspension of his visitation

with K.R.S. is justifiable cause for his failure to communicate with K.S for at least

one year immediately preceding the filing of the adoption petition. Father further

argues that Mother’s move to Ohio constituted significant interference which also

justifies his lack of contact with K.R.S.

       {¶23} At the outset, we note that the record supports the trial court’s

observation that “it is not simply the order of no contact that has precluded [Father]

from the ability to visit his son.” (Doc. No. 25 at 3). Rather, the record clearly

indicates that there were means that Father could have pursued to have contact with

K.R.S. The record demonstrates that Father was in fact granted permission by his

parole officer in 2015 to have contact with K.R.S. This notwithstanding, there is

nothing in the record to indicate Father again attempted to get permission from his

parole officer to see K.R.S. during the time he was released from prison for parole

violations in October 2016 or in October 2018, after he served a three-month prison

term. The record further indicates that Father never sought visitation through the

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Michigan Court by attempting to modify the agreement to provide for parenting

time.

        {¶24} Moreover, the record suggests that Mother was candid about her move

to Ohio with K.R.S. and she maintained a point of contact with the court in Michigan

using Maternal Grandmother’s address. Despite Father’s contentions, the record

fails to establish that Mother attempted to hide K.R.S. from him. To the contrary,

Paternal Grandfather was able to make contact with Mother in Ohio and even

arranged for weekend visitations with K.R.S. Yet, Father did not attempt to contact

K.R.S. through his family members. Based on the foregoing, we find that the trial

court’s determination that Father has failed without justifiable cause to provide more

than de minimis contact with K.R.S. during the relevant one year time frame is

supported by the manifest weight of the evidence.

2. Failure to Provide Maintenance and Support

        {¶25} In its August 29, 2019 Judgement Entry, the trial court found that there

is no justifiable cause for Father’s failure to provide maintenance and support for

K.R.S. Specifically, the trial court found:

        [Father] is not listed on the birth certificate provided to the Court
        as [K.R.S.’s] father.        However the Court was provided
        documentation that [Mother] and [Father] were involved in a
        paternity action regarding [K.R.S.] in the Jackson County Court
        in Michigan. (See Exhibits 8, 9, and 10). These documents
        illustrate that [Father] has established paternity of this child, was
        ordered to pay support at one time and that support was
        “reserved” when [Father] was incarcerated. (See Exhibit 10).

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       The court order goes on to state “[c]hild support shall be
       reinstated 28 days after the payer of support is released from
       incarceration. The payer must immediately report his release
       from incarceration to the Friend of Court.” [Father] admits that
       he never contacted the Court to have child support reinstated
       after his release from prison on either occasion. He argues since
       no support was ordered he did not fail to support [K.R.S.] and
       therefore [Father’s] consent is necessary for this adoption. The
       Court is not convinced. Failing to contact the Court to have the
       support order reinstated is failing to support the child. [Father]
       also admits that he did not send any money to the child for
       support since 2012 when his prison wages were garnished for
       child support. [Father] also admits that he is currently employed
       full-time and has been for over a year. The Court hereby finds by
       clear and convincing evidence that [Father] has failed without
       justifiable cause 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 or the placement of the minor in the home of [Step-
       Father].

(Doc. No. 25 at 3.)

       {¶26} On appeal, Father likens this case to those cases which have held that

a parent’s nonsupport of his or her minor child pursuant to a zero-support order of

a court of competent jurisdiction provides “justifiable cause” for the parent’s failure

to provide maintenance and support and therefore does not extinguish the

requirement of that parent’s consent to the adoption of the child. See In re Adoption

of B.I., 157 Ohio St. 3d 29, 2019-Ohio-2450.

       {¶27} However, this is not a case where a court has reduced a parent’s child

support to zero, thereby relieving the parent of the duty to provide support under a

judicial decree. See In re Adoption of B.I., 157 Ohio St. 3d 29, 2019-Ohio-2450, ¶

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17. Rather, the uncontroverted evidence before the trial court indicates that there is

in place a valid child support order obligating Father to pay $22.06 per week for

K.R.S.’s support and that this order was “reserved” or “paused” at Father’s request

while he was incarcerated in 2012. It is undisputed by the parties that Father was

required to notify the proper authorities in Michigan to reinstate his child support

obligation within twenty-eight days of his release from prison.                Father

acknowledges that he failed to do so. We concur with the trial court’s conclusion

in this instance that “[f]ailing to contact the Court to have the support order

reinstated is failing to support the child.” (Doc. No. 25 at 3).    Accordingly, we

conclude the trial court’s determination that Father failed without justifiable cause

to provide for the support for K.R.S. as required by law or judicial decree within the

relevant statutory time frame is supported by the weight of the evidence.

       {¶28} For all these reasons, the assignments of error are overruled and the

judgment of the trial court is affirmed.

                                                                 Judgment Affirmed

PRESTON and WILLAMOWSKI, J.J., concur.

/jlr




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