[Cite as In re Adoption of C.A.H., 2020-Ohio-1260.]


                                       COURT OF APPEALS
                                      KNOX COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


 IN RE:                                               JUDGES:
                                                      Hon. William B. Hoffman, P.J.
         ADOPTION OF C.A.H.                           Hon. John W. Wise, J.
                                                      Hon. Craig R. Baldwin, J.

                                                      Case No. 19 CA 000037


                                                      O P I N IO N




 CHARACTER OF PROCEEDINGS:                            Appeal from the Knox County Court of
                                                      Common Pleas, Probate Division, Case
                                                      No. 2019-4008


 JUDGMENT:                                            Affirmed

 DATE OF JUDGMENT ENTRY:                              March 31, 2020


 APPEARANCES:


 For Appellants                                       For Appellee-Father

 THE GILES LAW GROUP                                  BRANDON S. CRUNKILTON
 Alysse L. Giles                                      51 Public Square
 109 E. High Street                                   Mt. Vernon, Ohio 53050
 Mt. Vernon, Ohio 43050

 MANDY OVERTON, pro se                                ROBERT HANES, pro se
 17137 Vance Road                                     #A658956 NCI
 Utica, Ohio 43080                                    15708 McConnelsville Road
                                                      Caldwell, Ohio 43724
Knox County, Case No. 19 CA 000037                                                         2


Hoffman, P.J.
       {¶1}   Petitioners-appellants   Mark    and   Tammy     Overton       (“Grandparents”,

collectively; “Mr. Overton” and “Mrs. Overton”, individually) appeal the October 10, 2019

Judgment Entry entered by the Knox County Court of Common Pleas, Probate Division,

which denied their Petition for Adoption of their minor grandson (“the Child”) after finding

the consent of respondent-appellee Robert Hanes (“Father”) was required.

                           STATEMENT OF THE FACTS AND CASE

       {¶2}   Mandy Overton (“Mandy”) and Father are the biological parents of the Child.

Mandy and Father were never married. Grandparents are the parents of Mandy and the

maternal grandparents of the Child. Father has been incarcerated since approximately

two weeks after the Child’s birth on May 26, 2011. He is scheduled for release in 2021.

Grandparents have been the physical custodians of the Child since his birth.

       {¶3}   On April 23, 2019, Grandparents filed a Petition for Adoption. Therein,

Grandparents asserted the consent of Father was not required as he “has failed without

justifiable cause to provide more than de minimis contact with the minor 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.” Mandy filed her Consent to Adoption on the

same day. Father, through counsel, filed an Objection to Adoption on May 20, 2019.

       {¶4}   Grandparents filed their First Amended Petition for Adoption of Minor on

May 29, 2019. As reason Father’s consent was not required, Grandparents added 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

the petitioner.” Father did not file an objection to the amended petition.
Knox County, Case No. 19 CA 000037                                                       3


       {¶5}   The trial court conducted a hearing on the petition and Father’s objection

on July 15, 2019. Father was conveyed from the correctional institution to the Knox

County Jail for the hearing.

       {¶6}   Mr. Overton testified he has lived at the same address for approximately 17

years and the address is public record. He indicated he has never prevented Father from

mailing anything to his home.     He added he has had the same phone number for

approximately 10 years. Mr. Overton stated he has not blocked or restricted Father from

contacting him at that number. He also noted he has a Facebook account, which he has

had for 15 years, but Father has never sent him a Friend request.             Mr. Overton

acknowledged he did not accept the Friend request of Deborah Darr, Father’s mother.

He added Father had not made any attempts to contact him between April 23, 2018, and

April 23, 2019, the statutory lookback period. Father had sent the Child letters after the

filing of the Petition for Adoption. The last contact he and Mrs. Overton had with Darr was

over two years prior to the hearing. Mr. Overton added Grandparents provide for all of

the Child’s needs. Father has never offered any assistance, financial or otherwise.

       {¶7}   On cross-examination, Mr. Overton indicated he was aware Father had

been incarcerated since the Child was two weeks old. He admitted he and Mrs. Overton

had taken the Child to visit Mandy when she was incarcerated. Mr. Overton conceded

the Child had received presents from Father through the Angel Tree Project.

       {¶8}   Mrs. Overton testified similarly to her husband. She has lived at the same

address for approximately 17 years, and has never received any mail from Father. Mrs.

Overton added she had not seen any mail addressed to the Child from Father since the

first year of the Child’s life. She has had the same phone number for ten or twelve years,
Knox County, Case No. 19 CA 000037                                                       4


and has never blocked or restricted Father from contacting her. Mrs. Overton noted she

and Darr are Facebook friends, and the two occasionally have contact with one another

on Facebook. The last visit Darr had with the Child was Christmas, 2017. The last gift

the Child had received from Father through the Angel Tree Project was prior to April,

2018. Mrs. Overton acknowledged Darr had brought gifts for the Child, but had not done

so since Christmas, 2017. She added she has never received any child or other financial

support for the Child from Father.

      {¶9}   On cross-examination, Mrs. Overton acknowledged Darr asked if she could

take the Child to see Father at the prison for Father’s Day, but indicated Darr never

followed up. Mrs. Overton then admitted she would not have allowed the Child to go to

the prison to see Father. She would not definitely state whether she would accept a call

from Father from prison.

      {¶10} Father testified he was incarcerated at Noble Correction Facility for 7 ½

years and was currently incarcerated at Grafton Reintegration Center. Father admitted

he has been incarcerated since the Child was two weeks old. He explained Mandy would

bring the Child to the Coshocton County Jail to see him prior to his transfer to prison.

Father stated he pays monthly child support which is withheld from the wages he receives

from his prison job. Father indicated he does not have access to a cell phone, text

messaging, a computer, or the Internet. He claimed he does not know either Mr. or Mrs.

Overton’s phone number. Father noted he has Grandparents’ address and has mailed a

letter to the Child every month since his incarceration. Mandy confirmed to Father the

letters were received. He has also sent the Child presents through the Angel Tree Project.

Father completed the application for 2018, but did not receive confirmation or notification
Knox County, Case No. 19 CA 000037                                                         5


regarding whether the Child received a gift at Christmas that year. In December, 2018,

he withdrew cash from his prison account to purchase a large envelope in which to mail

the Child a drawing of Spiderman his bunkmate had drawn. On re-direct, Father stated

he sent a second drawing to the Child in February, 2019.

       {¶11} On cross-examination, Father stated he earns about $20/month and $4.50

is withheld for child support. Father explained he purchases personal hygiene products,

phone minutes, and stamps with the remaining funds. He admitted he had not attempted

to contact the Overtons by phone or on Facebook to request visits with the Child because

“I already know what the answer to that is going [to] be.” Transcript of July 15, 2019

Hearing at 76.

       {¶12} Deborah Darr was asked about the Angel Tree Project. A letter to her from

the Angel Tree Project was admitted. The letter stated Father submitted applications for

the Child to receive a Christmas gift on his behalf each year beginning 2013, through

2018. Darr testified she has made attempts to contact the Overtons in order to visit the

Child. Darr noted her attempts to take the Child to visit Father never came to fruition.

       {¶13} On cross-examination, Darr indicated she had contact with the Angel Tree

Project regarding the delivery of the Child’s 2018 gift. Darr was advised the organization

made several attempts to contact Grandparents to schedule delivery and they were

seeking her assistance. Darr assumed the gift was ultimately delivered as she did not

hear back from the Angel Tree Project.

       {¶14} Via Judgment Entry filed October 10, 2019, the trial court denied

Grandparents’ Petition for Adoption. The trial court found Father’s consent was required

because Grandparents failed to prove, by clear and convincing evidence, Father did not
Knox County, Case No. 19 CA 000037                                                  6


have more than de minimis contact with the Child during the statutory lookback period,

and (2) Father did not provide for the maintenance and support of the Child during the

statutory lookback period.

      {¶15} It is from this judgment entry Grandparents appeal, raising the following

assignments of error:



             I. THE TRIAL COURT ERRED IN REQUIRING FATHER’S

      CONSENT TO PROCEED WITH APPELLANTS’ PETITION TO ADOPT

      THE MINOR CHILD BECAUSE FATHER DID NOT OBJECT TO THE

      AMENDED PETITION, AND THUS HIS CONSENT WAS NOT REQUIRED

      BY R.C. 3107.07(K).

             II. THE TRIAL COURT ERRED IN FINDING THAT FATHER’S

      CONSENT WAS REQUIRED DUE TO FATHER’S COMPLETE LACK OF

      CONTACT WITH THE CHILD FOR APPROXIMATELY 8 YEARS

      PRECEDING THE FILING OF THE PETITION, WHICH WAS NOT

      JUSTIFIABLE DUE TO HIS TOTAL LACK OF INACTION TO SECURE

      CONTACT WITH THE CHILD, AND THE MATERNAL GRANDPARENTS’

      LACK OF INTERFERENCE WITH FATHER’S ABILITY TO CONTACT THE

      CHILD.

             III. THE TRIAL COURT ERRED IN FINDING THAT FATHER’S

      CONSENT WAS REQUIRED, BECAUSE THERE WAS NO JUSTIFIABLE

      CAUSE FOR FATHER’S FAILURE TO FULFILL THE REQUIREMENTS
Knox County, Case No. 19 CA 000037                                                         7


       OF THE JUDICIAL DECREES ORDERING HIM TO PAY CHILD

       SUPPORT.



                                                 I

       {¶16} In their first assignment of error, Grandparents assert the trial court erred in

finding Father’s consent was required as Father failed to object to the amended petition

for adoption; therefore, his consent was not required pursuant to R.C. 3107.07(K). We

disagree.

       {¶17} Under R.C. 3107.07(K), a parent’s consent to adoption is not required if the

parent receives proper notice of the adoption petition and “fails to file an objection to the

petition within fourteen days.”

       {¶18} The record before this Court reveals Grandparents did not raise this

argument to the trial court. Failure to raise an issue before the trial court operates as a

waiver of a party’s right to assert such for the first time on appeal. See, Hadley v. Figley,

5th Dist. Ashland App. No. 15-COA-001, 2015-Ohio-4600, 46 N.E.3d 1129, ¶ 22 (Citation

omitted). Because Grandparents failed to raise Father’s failure to object to the amended

petition, we find they have waived this issue on appeal.

       {¶19} Additionally, we find Father was not required to object to the amended

petition. Father filed a timely objection to Grandparents’ original petition. The trial court

scheduled the matter for hearing prior to Grandparents’ filing their amended petition. The

amended petition in the present case was identical to the original petition for adoption

with the addition of a second statutory reason the adoption could proceed without the
Knox County, Case No. 19 CA 000037                                                           8


consent of Father. Father’s objection to Grandparents’ assertion his consent was not

required was already on the record.

       {¶20} Grandparents’ first assignment of error is overruled.


                                             II, III

       {¶21} We elect to address Grandparents’ second and third assignments of error

together. In their second assignment of error, Grandparents argue the trial court erred in

finding Father’s consent was required as the evidence established Father failed without

justifiable cause to have any contact with the Child for approximately 8 years preceding

the filing of the petition. In their third assignment of error, Grandparents maintain the trial

court erred in finding Father’s consent was required as the evidence established Father

failed without justifiable cause to provide support of the Child as ordered by judicial

decrees.

       {¶22} R.C. 3107.07(A) provides:



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

              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.
Knox County, Case No. 19 CA 000037                                                             9


       {¶23} The petitioner for adoption has the burden of proving by clear and

convincing evidence the natural parent has failed to provide more than de minimis contact

with or to provide for the maintenance and support of the child for at least a one-year

period prior to the filing of the petition, and also must prove the failure was without

justifiable cause. 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.” In re Adoption of Holcomb, 18 Ohio St.3d 361, 368, 481

N.E.2d 613 (1985). “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.

                                               Contact

       {¶24} The trial court found Grandparents “failed to prove, by clear and convincing

evidence, that Father did not have more than de minimis contact with the minor child for

a period of one year immediately preceding the filing of the Petition.” October 10, 2019

Judgment Entry at para. 5.

       {¶25} The trial court noted the following evidence in support of its determination.

Father consistently over several year sent Christmas gifts to the Child through the Angel

Tree Project. Father completed the application for 2018, but did not receive confirmation

or notification regarding whether the Child received a gift at Christmas that year. Father

testified he has mailed a letter to the Child every month since his incarceration. Mandy

confirmed to Father the letters were received. In December, 2018, he withdrew cash from
Knox County, Case No. 19 CA 000037                                                         10


his prison account to purchase a large envelope in which to mail the Child a drawing of

Spiderman his bunkmate had drawn. Father also sent a second drawing to the Child in

February, 2019. The trial court noted, “If the correspondence was not received by the

minor child, it was necessarily caused by Petitioners’ interference.” Id. at para. 9. The

trial court found Father’s lack of physical contact with the Child was justifiable and his

“contact through consistent mail correspondence and Christmas gifts constitutes more

than de minimis contact under the specific circumstances at issue in this case.” Id. at

para. 10.

      {¶26} The trial court as the trier of fact is free to accept or reject any or all of the

testimony of the witnesses. The trial court obviously chose to believe Father in this

instance.

      {¶27} Upon review of the entire record in this matter, we find the trial court's

determination Father's consent to the adoption was necessary because Father provided

more than de minimis contact was supported by clear and convincing evidence.

                                             Support

      {¶28} A probate court must engage in a “three-step analysis” when determining

whether a parent has failed to provide for the maintenance and support of a child under

R.C. 3107.07(A). As the Ohio Supreme Court explained in In re Adoption of B.I., 157

Ohio St.3d 29, 2019-Ohio-2450, 131 N.E.3d 28:



             To determine whether a parent has failed to provide child support as

      required by law or judicial decree involves a three-step analysis. The court

      must first determine what the law or judicial decree required of the parent
Knox County, Case No. 19 CA 000037                                                        11


       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. Id. at ¶ 15.



       {¶29} The trial court’s judgment entry reflects in March, 2019, Father was ordered

to pay child support in the amount of $2.06/month for child support, $0.41/month on

arrears, and a 2% processing fee, effective November 1, 2018.                 Father earns

approximately $20/month and approximately $5.00/month is withheld for child support.

       {¶30} Because Father was in compliance with the March, 2019 child support

order, we find the trial court did not err in determining Father provided for the support for

the Child as required by judicial decree within the relevant statutory time frame.

       {¶31} Grandparents’ second and third assignments of error are overruled.
Knox County, Case No. 19 CA 000037                                      12


       {¶32} The judgment of the Knox County Court of Common Pleas, Probate

Division, is affirmed.



By: Hoffman, P.J.
Wise, John, J. and
Baldwin, J. concur
