[Cite as In re Adoption of Myers, 2013-Ohio-5152.]


                                       COURT OF APPEALS
                                      STARK COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


IN RE: ADOPTION OF ROBERT                            :   JUDGES:
DANIEL MYERS ADOPTION OF                             :
AUSTIN STEVEN MYERS                                  :   Hon. W. Scott Gwin, P.J.
                                                     :   Hon. William B. Hoffman, J.
                                                     :   Hon. Patricia A. Delaney, J.
                                                     :
                                                     :   Case No. 2013CA00137
                                                     :
                                                     :
                                                     :
                                                     :
                                                     :   OPINION


CHARACTER OF PROCEEDING:                                 Appeal from the Stark County Court of
                                                         Common Pleas, Probate Division, Case
                                                         Nos. 216131/216132



JUDGMENT:                                                AFFIRMED




DATE OF JUDGMENT ENTRY:                                  November 12, 2013




APPEARANCES:

For Petitioner-Appellant:                                For Mother-Appellee:

JEFFREY JAKMIDES                                         AARON KOVALCHIK
325 East Main St.                                        116 Cleveland Ave. N., Suite 808
Alliance, OH 44601                                       Canton, OH 44702
Stark County, Case No. 2013CA00137                                                                  2

Delaney, J.

          {¶1} Petitioner-appellant Brandy Myers hereby appeals from the June 18, 2013

decision of the Stark County Court of Common Pleas, Probate Division denying her

petition to adopt R.D.M. and A.S.M. without consent of appellee Mother, Lisa Myers.

          {¶2} This case is before us on the accelerated calendar pursuant to App.R.

11.2(C).

                             FACTS AND PROCEDURAL HISTORY

          {¶3} Appellee Lisa Marie Myers (“Mother”) has two sons with Brian Myers

(“Father”), her ex-husband: A.S.M., born on April 21, 2001, and R.D.M., born on

September 18, 2002. Mother and Father divorced in 2004; Father married petitioner-

appellant Brandy Myers (“Stepmother”) in 2005. Father obtained custody of the boys in

2007 and Mother had standard visitation. All parties testified Mother stopped exercising

her visitation rights in 2010; she did not see her sons on her designated Wednesdays,

weekends, or holidays.

          {¶4} Mother testified she stopped visitation to avoid confusing the children

because the parties were arguing during transfers. She further alleged Father and

Stepmother interfered with her visitation and communication.                On January 4, 2013,

Mother filed a Motion to Show Cause in the Stark County Court of Common Pleas,

Family Court Division, asserting Father denied her visitation.1

          {¶5} On October 18, 2012, Stepmother filed a Petition to adopt both A.S.M.

and R.D.M. in the Stark County Court of Common Pleas, Probate Division. The original

Petition asserted Mother’s consent was not required because she failed without

justifiable cause to provide for the maintenance and support of the minors as required
1
    The record notes the Family Court litigation is presently “on hold” pending the instant case.
Stark County, Case No. 2013CA00137                                                          3


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

Petition. (The Petition did not allege Mother failed to make contact with the minor

children during the one-year period prior to the filing of the Petition.) The trial court held

an evidentiary hearing on December 10, 2012, and determined Mother’s consent was

required for the adoption because Mother did provide support for the children in the

one-year period prior to the filing of the Petition.

       {¶6} Stepmother thereupon amended the Petition and alleged consent of

Mother is not required because Mother failed, without justifiable cause, to provide more

than de minimis contact with the minor children for a period of at least one year

immediately preceding the filing of the Petition.       Mother objected, stating she has

communicated with the minor children during the one-year period and further alleged

Father and Stepmother have denied her communication.

       {¶7} Another hearing was held before the trial court on May 20, 2013. Evidence

at the hearing consisted of the testimony of Mother, Stepmother, and Father.

       {¶8} Mother testified to two contacts with both minor children at Alliance High

School during the summer of 2012. She spoke to both children for several minutes the

first time and ate breakfast with them the second time. Mother stated Stepmother was

present for both contacts; Stepmother stated she was aware of only one contact.

Mother also stated she saw the children at her sister’s house, but the date of this

contact is not clear from the record. Mother also testified she saw both children at the

December probate court hearing and the boys were excited to see her.

       {¶9} Mother testified Father and Stepmother have interfered with and

discouraged her from more extensive contact with the minor children which she wants
Stark County, Case No. 2013CA00137                                                  4


to have. She stated she asked Stepmother for the family’s telephone number during

one of the contacts at Alliance High School and Stepmother refused to give it to her.

Stepmother admitted she refused to provide the number and stated Mother could have

found the number in the phone book. Mother stated she gave Stepmother her own

number and asked her to have the children call but they never did.

       {¶10} Mother further alleged Father and Stepmother prevented her from bringing

birthday treats into the children’s classrooms and turned her away when she attempted

to visit at the home. Father responded Mother would show up “out of the blue” at

inappropriate times yet fail to show up on other planned occasions.            Mother

acknowledged no visitation, even to the extent of sending birthday and holiday cards,

since 2010, on the basis that she didn’t want to “confuse” the children because of the

parties’ arguments.

       {¶11} On June 18, 2013, the trial court denied Stepmother’s Petition for

Adoption by Judgment Entry, finding Mother’s consent is required for the adoption of

A.S.M. and R.D.M.

       {¶12} Stepmother now appeals from the June 18, 2013 Judgment Entry of the

trial court, raising two assignments of error:

                               ASSIGNMENTS OF ERROR

       {¶13} “I. THE TRIAL COURT’S FINDING THAT MOTHER’S CONTACT WITH

THE MINOR CHILDREN IN THE ONE-YEAR PERIOD PRECEDING THE FILING OF

THE PETITION WAS MORE THAN DE MINIMIS UNDER R.C. 3107.07(A) WAS

UNREASONABLE, ARBITRARY, AND UNCONSCIONABLE.                         THE UNDISPUTED

FACTS SHOWED THAT MOTHER’S CONTACT WITH THE CHILDREN CONSISTED
Stark County, Case No. 2013CA00137                                                  5


OF, AT MOST, TWO INSTANCES OF INCIDENTAL CONTACT BEFORE SCHOOL

EACH LASTING A MATTER OF MINUTES AND ONE INSTANCE OF BRIEF

CONTACT DURING THE CHILDREN’S VISIT WITH MOTHER’S SISTER. THIS IS

INSUFFICIENT TO SHOW MORE THAN DE MINIMIS CONTACT UNDER THE

RELEVANT STATUTE.”

      {¶14} “II. THE TRIAL COURT’S FINDING THAT PETITIONER AND FATHER

‘SIGNIFICANTLY INTERFERED’ WITH MOTHER’S ABILITY TO COMMUNICATE

WITH AND VISIT THE CHILDREN WAS UNREASONABLE, ARBITRARY, AND

UNCONSCIONABLE. MOTHER’S ALLEGATIONS OF INTERFERENCE CONSISTED

OF A CLAIM SHE WAS DENIED A PHONE NUMBER WHICH HAD REMAINED THE

SAME SINCE 2005, WHICH WAS LISTED IN THE PHONE BOOK, AND OF WHICH

HER SISTER WAS IN POSSESSION; A CLAIM THAT THE CHILDREN’S SCHOOL

DID NOT PERMIT HER TO INTERRUPT CLASS TO SEE HER CHILDREN; A CLAIM

FATHER DID NOT DRIVE THE CHILDREN TO SEE HER (WHICH HE WAS NEVER

OBLIGATED TO DO); AND VAGUE ALLEGATIONS THAT SHE DID NOT WANT TO

FIGHT IN FRONT OF THE CHILDREN. EVEN IF TRUE, WHICH THEY ARE NOT,

NONE OF THESE ALLEGATIONS DEMONSTRATE ‘SIGNIFICANT INTERFERENCE’

BY PETITIONER OR FATHER.”

                                     ANALYSIS

      {¶15} Stepmother’s two assignments of error are related and will be considered

together. Stepmother asserts the trial court abused its discretion in finding Mother’s

consent is required for the adoption. We disagree.
Stark County, Case No. 2013CA00137                                                         6


       {¶16} The Supreme Court of the United States has recognized that natural

parents have a fundamental liberty interest in the care, custody, and management of

their children. Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 31 L.Ed.2d 551

(1972); Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982);

Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). A parent's

right to raise a child is an essential civil right. In re Murray, 52 Ohio St.3d 155, 157, 556

N.E.2d 1169 (1990). An adoption permanently terminates the parental rights of a natural

parent. In re Adoption of Reams, 52 Ohio App.3d 52, 55, 557 N.E.2d 159 (10th

Dist.1989). Thus, courts must afford the natural parent every procedural and

substantive protection allowed by law before depriving the parent of the right to consent

to the adoption of his or her child. In re Hayes, 79 Ohio St.3d 46, 48, 679 N.E.2d 680

(1997).

       {¶17} The termination of a natural parent's right to object to the adoption of her

child requires strict adherence to the controlling statutes. In re Adoption of Kuhlmann,

99 Ohio App.3d 44, 649 N.E.2d 1279 (1st Dist.1994). Ordinarily, the written consent of a

minor child's natural parents is required prior to adoption, but R.C. 3107.07 provides

exceptions to this requirement. R.C. 3107.07(A) 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, 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
Stark County, Case No. 2013CA00137                                                      7


             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.

       {¶18} We note Stepmother has the burden of proof in this action. “The party

petitioning for adoption has the burden of proving, by clear and convincing evidence,

that the parent failed to communicate with the child during the requisite one-year period

and that there was no justifiable cause for the failure of communication.” In re Adoption

of Holcomb, 18 Ohio St.3d 361, 368, 481 N.E.2d 613 (1985). See also In re Adoption of

Bovett, 33 Ohio St.3d 102, 104, 515 N.E.2d 919 (1987). “No burden is to be placed

upon the non-consenting parent to prove that his failure to communicate was justifiable.”

Holcomb at 368.     “Once the clear and convincing standard has been met to the

satisfaction of the probate court, the reviewing court must examine the record and

determine if the trier of fact had sufficient evidence before it to satisfy this burden of

proof. * * * The determination of the probate court should not be overturned unless it is

unsupported by clear and convincing evidence.” Id.

       {¶19} Therefore, for Stepmother to prevail in this adoption proceeding without

Mother’s consent, she must prove by clear and convincing evidence that (1) there has

been a failure of communication or support by Mother for the one-year period and (2)

the failure is unjustified. We find Stepmother has not met this burden. Stepmother has

not established failure to communicate; she acknowledges the children encountered

Mother at school at least once. Stepmother and Father further acknowledge refusing to

provide the phone number, not following through with agreements for transportation,

and generally hindering contact, which is significant because Stepmother must also
Stark County, Case No. 2013CA00137                                                       8


establish that the failure to communicate was without justifiable cause. “If the natural

parent presents evidence showing that his failure to communicate was not unjustified,

the petitioner must prove by clear and convincing evidence that such failure was not

justified.” In re Adoption of Shea, 10th Dist. No. 90–AP–245, 1990 WL 106468, (July 24,

1990), citing Holcomb, supra.

       {¶20} Stepmother asks us to conclude Mother’s testimony lacked credibility, but

we are not the finders of fact. Moreover, as we have previously noted, “[n]o burden is to

be placed upon the non-consenting parent to prove that his failure to communicate was

justifiable.” In re D.N.O., 5th Dist. Stark No. 2012-CA-00239, 2013-Ohio-2512, ¶ 23,

appeal not allowed, 135 Ohio St.3d 1472, 2013-Ohio-2512, 989 N.E.2d 71, citing

Holcomb at 368.

       {¶21} Holcomb further held: “Significant interference by a custodial parent with

communication between the non-custodial parent and the child, or significant

discouragement of such communication, is required to establish justifiable cause for the

non-custodial parent's failure to communicate with the child. The question of whether

justifiable cause exists in a particular case is a factual determination for the probate

court and will not be disturbed upon appeal unless such determination is unsupported

by clear and convincing evidence.” 18 Ohio St.3d 361, 481 N.E.2d 613, paragraph three

of the syllabus. Stepmother insists the interference alleged here is not “significant,” but

clear and convincing evidence supports the trial court’s determination, not least of which

is Stepmother and Father’s own testimony. We do not make value judgments about the

quality of Mother’s interaction with the children or whether she should have been

deterred by looking in a phone book for a number. The question before us is more
Stark County, Case No. 2013CA00137                                                    9


objective, to wit, whether the probate court’s conclusions are supported by clear and

convincing evidence.

      {¶22} We have reviewed the record and find Stepmother failed to meet her

evidentiary burden in this case. The trial court's decision is supported by clear and

convincing evidence establishing Mother did have contact with the minor children within

the one-year period, and furthermore, her failure to have more extensive contact was

justified due to the significant interference by Father and Stepmother. See, In re K.E.,

5th Dist. Stark No. 2011CA00021, 2011-Ohio-3363.

                                    CONCLUSION

      {¶23} Accordingly, Stepmother’s two assignments of error are overruled and the

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

By: Delaney, J. and

Gwin, P.J.

Hoffman, J., concur.



                                       HON. PATRICIA A. DELANEY




                                       HON. W. SCOTT GWIN



                                       HON. WILLIAM B. HOFFMAN
