[Cite as In re Adoption of J.R.J., 2019-Ohio-4701.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                      DARKE COUNTY

 IN THE MATTER OF THE ADOPTION                        :
 OF J.R.J. (PROPOSED NAME AFTER                       :
 ADOPTION)                                            :   Appellate Case No. 2019-CA-12
                                                      :
                                                      :   Trial Court Case No. 18-5-013
                                                      :
                                                      :   (Appeal from Probate Court)
                                                      :
                                                      :
                                                      :

                                               ...........

                                               OPINION

                          Rendered on the 15th day of November, 2019.

                                               ...........

PATRICK J. JANIS, Atty. Reg. No. 0012194 and JEREMY M. TOMB, Atty. Reg. No.
0079664, 124 West Main Street, Troy, Ohio 45373
     Attorneys for Appellants

JOSE M. LOPEZ, Atty. Reg. No. 0019580 and KEVIN M. DARNELL, Atty. Reg. No.
0095953, 18 East Water Street, Troy, Ohio 45373
     Attorneys for Appellee

                                                .............




WELBAUM, P.J.
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      {¶ 1} Appellant, Dusty Johnson, appeals from the judgment of the Darke County

Probate Court dismissing his petition to adopt his wife’s minor child, J.R.J. Johnson

contends that the dismissal of the petition was erroneous because the probate court

incorrectly determined that J.R.J.’s biological father (“Father”) needed to consent to the

adoption. For the reasons outlined below, the judgment of the probate court will be

affirmed.



                          Facts and Course of Proceedings

      {¶ 2} On May 21, 2018, Johnson filed a petition to adopt his wife’s minor child,

J.R.J. The petition alleged that consent to the adoption by Father was not required

because Father had failed, without justifiable cause, to provide more than de minimis

contact with J.R.J. for at least one year immediately preceding the filing of the adoption

petition. Father objected to the proposed adoption, and the issue of whether his consent

was required for the adoption came before the probate court at an evidentiary hearing on

December 4, 2018.

      {¶ 3} During the evidentiary hearing, Johnson’s wife, who is J.R.J.’s biological

mother (“Mother”), testified that she had audio-recorded several telephone conversations

she had with Father and that she had reviewed those conversations prior to the hearing.

Mother also indicated that the audio-recorded telephone conversations had not been

included in the discovery materials provided to Father. In light of this information, the

probate court continued the evidentiary hearing so that the audio-recorded conversations

could be provided to and reviewed by Father’s counsel. Once the conversations in

question were exchanged and reviewed by counsel, the evidentiary hearing resumed on
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March 21, 2019.

         {¶ 4} After hearing testimony from Johnson, Mother, Father, and Father’s wife, and

after reviewing several exhibits, including the audio-recorded telephone conversations,

on July 12, 2019, the probate court issued a judgment entry dismissing Johnson’s petition

for adoption.    The dismissal was based on the probate court’s finding that Father’s

consent was required for Johnson to adopt J.R.J. Specifically, the probate court found

that Johnson and Mother had failed to establish by clear and convincing evidence that

Father’s failure to contact J.R.J. during the period in question was without justifiable

cause.

         {¶ 5} Johnson now appeals from that judgment, raising a single assignment of

error for review.



                                    Assignment of Error

         {¶ 6} Under his sole assignment of error, Johnson contends that the probate court

erroneously determined that Father’s consent was required for Johnson to adopt J.R.J.

We disagree.

         {¶ 7} A parent has a fundamental right to care for and have custody of his or her

child, and that right is terminated when a child is adopted. In re Adoption of E.E.R.K., 2d

Dist. Miami No. 2013 CA 35, 2014-Ohio-1276, ¶ 16. Unless consent is not required

under R.C. 3107.07, a petition to adopt a minor may be granted only if written consent to

the adoption has been executed by certain parties, including the minor’s father. R.C.

3107.06. “ ‘Any exception to the requirement of parental consent [to adoption] must be

strictly construed so as to protect the right of [biological] parents to raise and nurture their
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children.’ ” In re Adoption of M.M.R., 2d Dist. Champaign No. 2017-CA-12, 2017-Ohio-

7222, ¶ 5, quoting In re Adoption of Schoeppner, 46 Ohio St.2d 21, 24, 345 N.E.2d 608

(1976). (Other citation omitted.) The party who contends that consent is not required

for the adoption has the burden of proof throughout the proceeding. In re Adoption of

M.G.B.-E., 154 Ohio St.3d 17, 2018-Ohio-1787, 110 N.E.3d 1236, ¶ 38-39, citing In re

Adoption of Holcomb, 18 Ohio St.3d 361, 368, 481 N.E.2d 613 (1985), paragraph four of

the syllabus.

       {¶ 8} The exceptions for when parental consent is not required for the adoption of

a minor are set forth in R.C. 3107.07. Section (A) of that statute states, in pertinent part,

that consent to adoption is not required from the parent of a minor when:

       [I]t 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.

R.C. 3107.07(A).

       {¶ 9} When applying R.C. 3107.07(A), probate courts undertake a two-step

analysis. “The first step involves deciding a factual question or questions: whether the

parent had failed to provide for the support and maintenance of a minor child or had failed

to have more than de minimis contact with the child.” M.M.R. at ¶ 7. “Probate courts

have broad discretion over these factual determinations, which will not be disturbed
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absent an abuse of discretion.” (Citations omitted) Id.

       {¶ 10} If a probate court finds that a parent failed to provide maintenance and

support or failed to have less than de minimis contact with the child, the court’s second

step is to determine whether a lack of justifiable cause for the failure has been proven by

clear and convincing evidence.       “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 required ‘beyond a reasonable doubt’ in criminal cases,

and which will produce in the mind of the trier of [fact] a firm belief or conviction as to the

facts sought to be established.” Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118

(1954), paragraph three of the syllabus.

       {¶ 11} “Once the petitioner has established, by clear and convincing evidence, that

the biological parent has failed to communicate with or to support the child for the one-

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

show some facially justifiable cause for the failure.” In re Adoption of R.M.Z., 2d Dist.

Montgomery No. 23511, 2009-Ohio-5627, ¶ 11, citing In re Adoption of Bovett, 33 Ohio

St.3d 102, 515 N.E.2d 919 (1987), paragraph two of the syllabus. “The burden of proof,

however, remains at all times with the petitioner, who must establish the lack of justifiable

cause by clear and convincing evidence.” Id., citing Bovett.

       {¶ 12} “The question of whether justifiable cause * * * 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 evidence.” M.M.R., 2d

Dist. Champaign No. 2017-CA-12, 2017-Ohio-7222, at ¶ 8; In re Adoption of Masa, 23

Ohio St.3d 163, 492 N.E.2d 140 (1986), paragraph two of the syllabus. “In determining
                                                                                          -6-


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.” In re Adoption of B.A.H., 2d Dist.

Greene No. 2012-CA-44, 2012-Ohio-4441, ¶ 21, quoting Steagall v. Crossman, 2d Dist.

Montgomery No. 20306, 2004-Ohio-4691, ¶ 29.

       {¶ 13} In this case, there is no dispute that Father failed to have any contact with

J.R.J. during the six years immediately preceding the filing of the adoption petition.

Since it is undisputed that Father did not have any contact with J.R.J. for the statutorily-

required period of time, the only issue to be determined on appeal is whether the weight

of the evidence supports the probate court’s finding that Johnson and Mother failed to

establish by clear and convincing evidence that said failure was without justifiable cause.

       {¶ 14} With regard to justifiable cause, the Supreme Court of Ohio has held that

“[s]ignificant 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.” Holcomb, 18 Ohio St.3d 361, 481 N.E.2d 613, at paragraph

three of the syllabus. In so holding, the Supreme Court refused to adopt a “precise and

inflexible meaning” for “justifiable cause,” but instead stated that “the better-reasoned

approach would be to leave to the probate court as finder of fact the question of whether

or not justifiable cause exists.” Id. at 367, citing In re Adoption of McDermitt, 63 Ohio

St.2d 301, 408 N.E.2d 680 (1980). In this regard, the Supreme Court of Ohio stressed
                                                                                         -7-


that “[t]he probate court is in the best position to observe the demeanor of the parties, to

assess their credibility, and to determine the accuracy of their testimony.” Id.

       {¶ 15} Here, the record indicates that Father and Mother, who were never married,

entered into an agreed entry as to the care, custody, maintenance, and control of J.R.J.

in June 2010.    The agreed entry provided Mother with full custody of J.R.J. while

awarding Father parenting time on alternating weekends and one weekday evening.

The evidence establishes that between 2010 and 2012, Mother and Father struggled with

their visitation agreement, as Mother did not get along with Father or Father’s wife and

was oftentimes uncooperative and temperamental.

       {¶ 16} The audio-recorded telephone conversations submitted into evidence

establish that Mother consistently made visitation difficult for Father during that time.1

During one of their conversations, Mother and Father discussed a time when Mother

refused to let Father see J.R.J. for a period of nine months, which required Father to go

to court. See Defendant’s Exhibit 12 (Transcript of Audio Recordings), p. 93. During

that same conversation, Father expressed his desire to attend a doctor’s appointment for

J.R.J. and to be part of J.R.J.’s life more than just on the weekends, to which Mother

eventually responded, “good luck seeing him more than you do cause you’re not.” Id. at

93-94. This is just one of many examples of the obstinate behavior displayed by Mother

on the audio recordings.

       {¶ 17} Mother’s obstinate behavior was also evidenced by records from Erma’s



1 Although the audio recordings were not time-stamped, the contents of the recordings
indicate that they were made around the time J.R.J. was three years old. Given that
J.R.J. was born in March 2008, the conversations would have taken place sometime
between March 2011 and March 2012.
                                                                                       -8-


House, a social services facility that Mother and Father used to assist with visitation

exchanges. The records from Erma’s House document various instances where Mother

made the visitation process difficult for Father. For instance, the records indicate that

Mother canceled multiple scheduled visitation exchanges, denied Father make-up-time

for missed exchanges, and refused to provide Father with requested information, such as

a copy of J.R.J.’s insurance card. The records also indicate that on June 23, 2011,

Erma’s House staff refused to further assist Mother and Father’s visitation exchanges due

to Mother’s disrespectful behavior towards the staff. In addition to the records from

Erma’s House, the evidence also establishes that Mother and Father entered into a

second agreed entry issued on September 9, 2011, due to Mother denying Father

visitation, for which the court awarded Father make-up visitation.

       {¶ 18} The crux of the evidentiary hearing, however, concerned Father’s admitted

absence from J.R.J.’s life since 2012. In an effort to establish no justification for that

absence, Mother and Johnson testified that Father had knowledge of their address, phone

numbers, and business information, thus making it possible for Father to have contacted

J.R.J. Mother testified that Father had not called her since 2011, and she submitted

evidence establishing that she had had the same phone number since 2009. Mother

further claimed that Father was aware of her e-mail address and could have found her

through her photography business, which she advertises online. Johnson additionally

testified that Father knew his phone number and could have obtained his contact

information online through his electrical contracting company. Mother and Johnson both

adamantly denied ever taking any action to prevent Father from contacting J.R.J. during

the six-year period in question.
                                                                                       -9-


       {¶ 19} In contrast, Father testified that after 2012, he had no idea where Mother,

Johnson, and J.R.J. lived or how to get into contact with them. The record indicates that

prior to September 2011, Mother, Johnson, and J.R.J. resided on Main Street in Gordon,

Ohio. Father testified that he was aware of this address and had picked up J.R.J. a few

times at that location. However, Father claimed that at the end of 2012, he went to the

Gordon residence in an effort to see J.R.J. only to find the residence empty. The record

indicates that on September 1, 2011, Mother, Johnson, and J.R.J. moved from the

Gordon residence to a residence on Verona-Pitsburg Road in Arcanum, Ohio. Although

Mother testified that Father was aware of their new address, Father claimed otherwise.

Father testified that he never received notification of the new address and that he had no

way to contact Mother because, despite calling her several times in 2012, Mother would

not answer her phone or possibly blocked his calls.

       {¶ 20} Although Mother presented evidence of Father’s wife e-mailing her in 2010,

Father testified that he was not familiar with Mother’s e-mail address and did not recall

ever e-mailing Mother. Father also testified that he knew Mother was a photographer,

but was unaware of the name of her photography business. Father also testified that he

attempted to research Mother’s contact information online, but only found contact

information for the old address in Gordon. Father further testified that during the period

in question, he knew Johnson only as “Dusty” and could not remember Johnson’s last

name until he received the adoption petition paperwork. In sum, Father testified that he

simply did not know how to find J.R.J. and, other than continuing to pay child support, he

took no action on the matter until he received the petition for adoption in 2018.

       {¶ 21} Upon review, the only evidence supporting Mother and Johnson’s claim that
                                                                                       -10-


Father knew of their whereabouts was their own testimony, which the probate court did

not find credible.     Nothing else in the record demonstrates that Mother or Johnson

notified Father of their move from Gordon to Arcanum. Although Mother testified that

she was aware of the local rule2 requiring her to provide written notice of a change of

address to both Father and the juvenile court that adjudicated J.R.J.’s visitation, and

although Mother claimed to have provided such notice, the relevant juvenile court docket

admitted into evidence established that no such notice was ever filed with the court. The

probate court believed that Mother’s failure to file the notice was crucial, and given the

absence of any objective evidence indicating otherwise, the probate court found that

Mother moved her residence without notifying Father. We agree that the failure to file

the notice supports the notion that Father was not informed of the change of address.

The evidence of Mother’s behavior with regard to visitation between 2010 and 2012 also

supports that notion, as such a failure is consistent with her previous tendency to make

visitation difficult for Father.

       {¶ 22} On the other hand, Father’s only explanation for why he did not take any

further action to contact J.R.J. after 2012 was that he simply did not know what to do or

how to find J.R.J. The probate court, however, found this excuse plausible. Therefore,



2 Mother and Father’s visitation agreement was adjudicated in the Montgomery County
Juvenile Court, which has a local rule governing parenting time, i.e., Mont. Co. Juv.R.
5.15. Section (E) of that rule provides: “Notice of Change of Address: Both parents shall
give written notice to the other parent immediately upon any change of address and/or
phone number, unless a restrictive order has been obtained from the Court. A copy of the
notice, including the party's name and case number, shall also be provided to the Juvenile
Court Support Office, Juvenile Justice Center 380 W. Second Street, Dayton, Ohio
45422.” In addition, R.C. 3109.051(G)(1) requires a “residential parent” who intends to
move to a residence other than the one specified in the parenting time order, to file a
“notice of intent to relocate” with the court that issued the parenting time order.
                                                                                          -11-


Johnson and Mother were required to produce clear and convincing evidence showing

that Father’s failure to contact J.R.J. was unjustifiable. As previously noted, the probate

court found that Johnson and Mother did not satisfy this burden of proof given that they

failed to provide any objective evidence establishing that they had notified Father of their

move from Gordon to Arcanum.          The probate court also found Mother’s evidence

purporting to show that Father knew her phone number and e-mail address was not

persuasive since it would have been easy for Mother to have simply ignored Father’s calls

and messages.

       {¶ 23} Although the probate court’s interpretation of the evidence is not the only

reasonable interpretation, after reviewing the record and weighing all the evidence and

reasonable inferences, we do not find that it was against the manifest weight of the

evidence for the probate court to conclude that Johnson and Mother failed to establish by

clear and convincing evidence that Father’s failure to contact J.R.J. was without justifiable

cause. Therefore, because Johnson and Mother did not satisfy their burden to establish

a lack of justifiable cause, the probate court correctly determined that Father’s consent

was required for J.R.J.’s adoption.

       {¶ 24} Johnson’s sole assignment of error is overruled.



                                        Conclusion

       {¶ 25} Having overruled Johnson’s assignment of error, the judgment of the

probate court is affirmed.

                                      .............
                                       -12-


FROELICH, J. and TUCKER, J., concur.



Copies sent to:

Patrick J. Janis
Jeremy M. Tomb
Jose M. Lopez
Kevin M. Darnell
Hon. Jason R. Aslinger
