[Cite as In re K.E., 2011-Ohio-3363.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


                                               :     JUDGES:
                                               :
                                               :     Hon. W. Scott Gwin, P.J.
IN RE: K.E. & W.E.                             :     Hon. William B. Hoffman, J.
                                               :     Hon. Patricia A. Delaney, J.
                                               :
                                               :     Case No. 2011CA00021
                                               :
                                               :
                                               :
                                               :     OPINION



CHARACTER OF PROCEEDING:                           Appeal from the Stark County Court of
                                                   Common Pleas, Probate Division Case No.
                                                   207222-207223


JUDGMENT:                                          AFFIRMED



DATE OF JUDGMENT ENTRY:                            June 21, 2011



APPEARANCES:

For Appellant:                                       For Appellee:

ARNOLD F. GLANTZ                                     EUGENE O’BYRNE
4883 Dressler Road, NW                               101 Central Plaza South, Suite 500
Canton, OH 44718                                     Canton, OH 44702
[Cite as In re K.E., 2011-Ohio-3363.]


Delaney, J.

        {¶1}     Stepmother/Appellant appeals the January 3, 2011 decisions of the Stark

County Court of Common Pleas, Probate Division to deny Appellant’s petition to adopt

K.E. and W.E. without Mother/Appellee’s consent.

        {¶2}     This case comes to us on the expedited calendar under App.R. 11.2(C).

                         STATEMENT OF THE FACTS AND THE CASE

        {¶3}     K.E. and W.E. are the biological children of Appellee.       The children’s

father is married to Appellant, the children’s stepmother. The father has legal custody

of the children after the children were removed from Appellee’s care in 2002. In 2002,

Appellee was charged and pleaded guilty to two counts of Endangering Children.

Appellee was sentenced to three years of community control.

        {¶4}     In 2004, Appellee was granted supervised visitation with K.E. for two

hours per week at the Massillon YMCA.              After the first six weeks, Appellee was

permitted the same visitation with W.E. The trial court ordered Appellee to pay the

costs of the supervised visits.

        {¶5}     According to the App.R. 9(C) Statement of the Evidence, Appellee visited

with W.E. and K.E. at the Massillon YMCA, but the visits stopped in 2004. Appellee

stopped the visitation at the Massillon YMCA because she could no longer afford them.

The father permitted Appellee to visit the children at his home, but he decided to stop

the visitation at his home after several visits.

        {¶6}     The father did not tell Appellee his phone number and the trial court stated

that the father testified he would change his phone number if Appellee contacted him at

that number. Appellee stated that the father would call the police if Appellee appeared
Stark County, Case No. 2011CA00021                                                      3


at his house. Appellee sent a letter to the father regarding the children in 2004 or 2005.

Appellee sent the children Christmas gifts one year, but the father returned the gifts.

Appellee’s mother is permitted to see the children, but the father forbid her to give

Appellee his phone number.

       {¶7}   Appellee filed a Motion to Reallocate Parental Rights with the Stark

County Court of Common Pleas, Family Court Division on September 11, 2009.

       {¶8}   On October 7, 2009, Appellant filed petitions in the Stark County Court of

Common Pleas, Probate Division to adopt K.E. and W.E.             Appellant alleged that

Appellee’s consent for the petition to adopt was not required because Appellee had not

had de minimis contact with her children for a least a year proceeding the petition.

Father consented to the adoption but Appellee objected.

       {¶9}   Appellee dismissed her Motion to Reallocate Parental Rights due to the

Petitions for Adoption.

       {¶10} On November 1, 2010, the Probate Court held an evidentiary hearing on

the petitions. Local Rule 11.1 states that hearings before the Probate Court will not be

recorded unless requested. The parties did not request that the hearing be recorded

and therefore, no record exists of this hearing.

       {¶11} On January 3, 2011, the trial court issued Findings of Fact and

Conclusions of Law as to the petitions for adoption without consent. The trial court

found that Appellant failed to demonstrate by clear and convincing evidence that

Appellee lacked justifiable cause for failing to communicate with her children. The court

found that Appellee’s attempts to communicate with her children were significantly
Stark County, Case No. 2011CA00021                                                           4


discouraged or interfered with by the father.         The trial court therefore found that

Appellee’s consent was necessary for the adoption of the children.

       {¶12} On March 28, 2011, the trial court issued Judgment Entry determining the

Statement of Evidence pursuant to App.R. 9(C). The trial court conducted a hearing on

the matter and considered Appellant’s submission of additional evidence and Appellee’s

objections to that evidence. The trial court held that the facts set forth in the trial court’s

judgment entries issued January 3, 2011 comprised the Statement of Evidence under

App.R. 9(C).

       {¶13} Appellant now appeals the January 3, 2011 decisions.

                                ASSIGNMENT OF ERROR

       {¶14} Appellant raises one Assignment of Error:

       {¶15} “I.    THE TRIAL COURT ERRED IN CONCLUDING THAT MANDY

FAILED TO PROVE THAT THERE WAS NO JUSTIFIABLE CAUSE FOR SANDRA’S

FAILURE TO COMMUNICATE WITH THEIR CHILDREN IN THE YEAR PROCEEDING

MANDY’S PETITION TO ADOPT THEM.”

                                              I.

       {¶16} Appellant argues the trial court erred in finding that Appellant failed to

prove by clear and convincing evidence that there was no justifiable cause for

Appellee’s failure to communicate with her children. We disagree.

       {¶17} 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 (1972), 405 U.S. 645, 651, 92 S.Ct. 1208, 31 L.Ed.2d

551; Santosky v. Kramer (1982), 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599;
Stark County, Case No. 2011CA00021                                                        5

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

right to raise a child is an essential civil right. In re Murray (1990), 52 Ohio St.3d 155,

157, 556 N.E.2d 1169. An adoption permanently terminates the parental rights of a

natural parent. In re Adoption of Reams (1989), 52 Ohio App.3d 52, 55, 557 N.E.2d

159. 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 (1997), 79 Ohio St.3d 46, 48, 679 N.E.2d 680.

       {¶18} 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

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

child's natural parents is required prior to adoption. R.C. 3107.07 provides exceptions

to this requirement.

       {¶19} R.C. 3107.07(A) states:

       {¶20} “Consent to adoption is not required of any of the following:

       {¶21} “(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

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.”

       {¶22} Appellant 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
Stark County, Case No. 2011CA00021                                                      6


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

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

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

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

Holcomb at 368.

       {¶23} “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.

       {¶24} Therefore, for Appellant to prevail in this adoption proceeding without

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

been a failure of communication or support by the natural parent for the one-year period

and (2) the failure is unjustified.

       {¶25} Appellant must also 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 (July 24, 1990),

10th Dist. No. 90-AP-245, 1990 WL 106468, citing Holcomb.

       {¶26} Holcomb further held:

       {¶27} “Significant interference by a custodial parent with communication

between the non-custodial parent and the child, or significant discouragement of such
Stark County, Case No. 2011CA00021                                                        7


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.

       {¶28} As stated above the evidentiary hearing held before the Probate Court

was not recorded; therefore, no transcript was provided to this Court for its review. If no

transcript is available, the parties have another avenue to provide a record to the

reviewing court under App.R. 9(C). App.R. 9(C) states:

       {¶29} “If no report of the evidence or proceedings at a hearing or trial was made,

or if a transcript is unavailable, the appellant may prepare a statement of the evidence

or proceedings from the best available means, including the appellant's recollection.

The statement shall be served on the appellee no later than twenty days prior to the

time for transmission of the record pursuant to App.R. 10, who may serve objections or

propose amendments to the statement within ten days after service. The statement and

any objections or proposed amendments shall be forthwith submitted to the trial court

for settlement and approval. The trial court shall act prior to the time for transmission of

the record pursuant to App.R. 10, and, as settled and approved, the statement shall be

included by the clerk of the trial court in the record on appeal.”

       {¶30} The Statement of the Evidence in this appeal consists of the Findings of

Fact as set forth in the January 3, 2011 judgment entries.
Stark County, Case No. 2011CA00021                                                    8


       {¶31} Upon the record before us, we find Appellant failed to meet her evidentiary

burden in this case. The trial court’s decision is supported by clear and convincing

evidence that Appellee’s reasons for not communicating with or supporting her children

for the one-year period was justified due to the significant interference by the father.

The evidence presented to this Court demonstrates that Appellee attempted to

communicate with her children but those efforts were discouraged by the father.

       {¶32} Accordingly, Appellant’s Assignment of Error is overruled.

       {¶33} The judgment of the Stark County Court of Common Pleas, Probate

Division, is affirmed.

By: Delaney, J.

Gwin, P.J. and

Hoffman, J. concur.



                                        HON. PATRICIA A. DELANEY



                                        HON. W. SCOTT GWIN



                                        HON. WILLIAM B. HOFFMAN


PAD:kgb
[Cite as In re K.E., 2011-Ohio-3363.]


                IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT

                                               :
                                               :
                                               :
                                               :
IN RE: K.E. & W.E.                             :
                                               :   JUDGMENT ENTRY
                                               :
                                               :
                                               :
                                               :   Case No. 2011CA00021
                                               :




    For the reasons stated in our accompanying Opinion on file, the judgment of the

Stark County Court of Common Pleas, Probate Division is affirmed. Costs assessed to

Appellant.




                                            HON. PATRICIA A. DELANEY



                                            HON. W. SCOTT GWIN



                                            HON. WILLIAM B. HOFFMAN
