[Cite as In re Adoption of C.L.B., 191 Ohio App.3d 64, 2010-Ohio-5190.]




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




IN RE ADOPTION OF C.L.B.;                                          CASE NO. 9-10-29

BEN C., APPELLANT.                                                 OPINION




                 Appeal from Marion County Common Pleas Court
                                  Probate Division
                           Trial Court No. 09 ADP 52026

                       Judgment Reversed and Cause Remanded

                           Date of Decision: October 25, 2010




APPEARANCES:

        Ted I. Coulter, for appellant.

        Thomas A. Mathews, for appellee Steven B.



        WILLAMOWSKI, Presiding Judge.

        {¶ 1} Appellant Ben C. (“Ben”) brings this appeal from the judgment of

the Court of Common Pleas of Marion County, Probate Division, determining that
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his consent was not necessary for the adoption of his son, C.L.B., by his

stepfather, Steven B. (“Steven”). For the reasons set forth below, the judgment is

reversed.

        {¶ 2} C.L.B. was born to Ben and Jessica B. (“Jessica”) on January 19.

The two divorced on December 4, 2002, and a shared-parenting plan was

implemented. Minimal support in the amount of $23.26 per month was ordered.

Jessica subsequently married Steven on October 16, 2004. On August 19, 2008,

Ben was sentenced to a four-year prison term and was incarcerated. Steven filed a

petition to adopt C.L.B. on October 6, 2009. The petition alleged that Ben had

“failed without justifiable cause to communicate with the minor for a period of

one year immediately preceding the filing of the adoption petition * * * [or] 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 * * *.” Based upon these failures, the

petition alleged that Ben’s consent was not necessary.

        {¶ 3} On March 3, 2010, a hearing was held on the petition.          Leslie

Millington, a case worker with the Child Support Enforcement Agency (“CSEA”),

testified that Ben had not paid child support from October 5, 2008, to October 6,

2009. Millington also testified that the last payment was received on June 18,

2008.       When questioned, she testified that she was not aware of any



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communications between Ben and CSEA to establish a withholding from his

prison account. Millington found no communication from either parent in the

portion of the file she had in court with her. However, she also testified that she

did not have a full file and that the requests could be in the remainder of the file.

       {¶ 4} Jessica testified that she had not received any support from Ben. She

also testified that Ben had no contact whatsoever with C.L.B., that there were no

gifts, letters, calls, or visits. She did admit that she had moved during the time in

question. When questioned about a visit between Ben and C.L.B. in December

2008, Jessica denied that it had occurred and testified that she would not have

allowed C.L.B. to visit Ben. She continued to deny the visit even when shown a

picture of the visit and a permission slip signed by her and given to Ben’s mother

so that she could take C.L.B. into the prison. She claimed that she had contacted

CSEA to advise them that Ben was in prison and to take money from his prison

account. She stated that she had not received any acknowledgment of her request

from them.

       {¶ 5} Ben testified that he earned $18 per month in prison. From that

money, he is required to pay his fines, hygiene products, and snack foods. He

testified that he had twice contacted CSEA to have them take money from his

prison account for child support. The first letter was sent on January 12, 2009, and

the second was sent on July 23, 2009. He received no reply until February 5,



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2010, when the Ohio Department of Rehabilitation and Correction sent him a copy

of a letter showing that child support was being withheld. Ben testified that he is

not able to write a check for his support as that is against the prison policy.

       {¶ 6} As for contact, Ben testified that his parents brought C.L.B. to see

him on December 6, 2008, for the Wings Ministry Christmas Party. In order for

C.L.B. to attend, Jessica had to sign an authorization slip permitting him to enter

the facility. Ben also presented a photo of himself, wearing his prison uniform, his

parents, and C.L.B. that was printed on December 20, 2008. Ben identified the

photo as being taken at the party. Ben testified that he mails a letter or card to

C.L.B. every two weeks. He also mailed him a shirt for his birthday on January

19, 2009. None of these items were returned to him, so he assumed that they were

received. He paid for the postage and purchased the envelopes from the prison

commissary out of the $18 a month he earns. Ben did indicate that sending letters

to C.L.B. was difficult due to Jessica’s numerous changes of address. Ben was

unable to call C.L.B. because he does not have a phone number.

       {¶ 7} Leslie C., Ben’s mother, testified that she and her husband took

C.L.B. to visit Ben at the prison. She stated that she met Jessica to have her sign

the authorization and that Jessica signed it. She also testified that she had the

picture taken on December 6, 2008, and had it developed on December 20, 2008.

She testified that Ben gave her a letter to send to C.L.B., but she did not have an



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address for C.L.B. at the time to send it to him. She would have taken the letter to

Jessica at her place of employment, but Jessica has had her banned from the

location. At the party, Ben had a shirt made for C.L.B. and sent it to him.

       {¶ 8} The remainder of the hearing dealt with whether the adoption should

be granted, not whether consent was required. The trial court then took the matter

under advisement. On March 17, 2010, the trial court entered judgment finding

that Ben’s consent was not necessary because of lack of support and de minimis

contact.   The trial court then granted the adoption.       Ben appeals from this

judgment and raises the following assignments of error.

                             First Assignment of Error

       The trial court erred by failing to recognize the incarceration of
       [Ben] as justifiable cause for [Ben] to not communicate or to pay
       support for a period of one year before the filing of the adoption
       petition.

                            Second Assignment of Error

       The trial court’s determination that [Steven] proved by clear and
       convincing evidence that [Ben] failed to pay child support or to
       communicate with the minor child for one year before the filing of
       the adoption petition without justifiable cause is against the manifest
       weight of the evidence.

       {¶ 9} Parents have a fundamental right to the care and custody of their

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

599. “The fundamental liberty interest of natural parents in the care, custody and

management of their child[ren]” is not easily extinguished. Id. at 753. Since


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adoption terminates this fundamental right, it generally is not permissible absent

the written consent of both parents. In re Adoption of R.M.Z., 2d Dist. No. 23511,

2009-Ohio-5627.

             Pursuant to R.C. 3107.07(A), a parent’s consent to adoption is
       not required when that parent “has failed without justifiable cause to
       communicate 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.” Because R.C. 3107.07(A) is written in the
       disjunctive, either failure to communicate or failure to support
       during the one-year time period is sufficient to obviate the need for
       a parent’s consent. In re Adoption of Ford, 166 Ohio App.3d 161,
       849 N.E.2d 330, 2006-Ohio-1889, at ¶4, citing In re Adoption of
       McDermitt (1980), 63 Ohio St.2d 301, 304, 408 N.E.2d 680.

             The party petitioning for adoption has the burden of proving,
       by clear and convincing evidence, that the biological parent failed to
       support or to communicate with the child during the requisite one-
       year period and that there was no justifiable cause for the failure of
       support or communication. In re Adoption of Holcomb (1985), 18
       Ohio St.3d 361, 481 N.E.2d 613, paragraph four of the syllabus; In
       re Adoption of Masa (1986), 23 Ohio St.3d 163, 166, 492 N.E.2d
       140. To prove facts by clear and convincing evidence requires that
       the proof “ ‘ * * * produce in the mind of the trier of facts a firm
       belief or conviction as to the facts sought to be established.’”
       Holcomb, supra, at 368, 481 N.E.2d 613, citing Cross v. Ledford
       (1954), 161 Ohio St. 469, 120 N.E.2d 118, paragraph three of the
       syllabus.

              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 Bovett
       (1987), 33 Ohio St.3d 102, 515 N.E.2d 919, paragraph two of the
       syllabus. The burden of proof, however, remains at all times with


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       the petitioner, who must establish the lack of justifiable cause by
       clear and convincing evidence. Id.

Id. at ¶9-11. “Any exception to the requirement of parental consent to an adoption

must be strictly construed so as to protect the right of natural parents to raise and

nurture their children.” In re Adoption of Schoeppner (1976), 46 Ohio St.2d 21,

24, 345 N.E.2d 608.

       {¶ 10} In both assignments of error, Ben alleges that the trial court erred by

failing to recognize his incarceration as a justifiable reason for his failure to

provide support or have more than de minimis contact with C.L.B.. Ben claims

that the finding that his consent was not necessary was against the manifest weight

of the evidence.      “The fact of incarceration in a penal institution does not

constitute a willful failure to properly support and maintain a child, within the

meaning of R.C. 3107.06(B)(4), so as to vitiate the requirement of consent by both

natural parents prior to the entry of a decree of adoption.” Id. at paragraph one of

the syllabus. R.C. 3107.06 does not specify that imprisonment is an exception to

the consent requirement.      Id. at 24.     Although the act that resulted in the

imprisonment was voluntary and thus results in a voluntary reduction in income

that need not result in a reduction of child support, imprisonment, in and of itself,

is not a voluntary lack of support.

       {¶ 11} In this case, there is no question that Jessica did not receive financial

support in the one year prior to the petition. The question is whether there was a


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justifiable reason for the failure to support. Ben is not required to prove that he

has a justifiable reason, only to present a facially justifiable claim. Steven, as

petitioner, has the burden of proof that there is no justifiable claim. The trial court

held that Ben did not prove that he had made attempts to support C.L.B. because

he had no documentation of his attempts and “CSEA has no records of those

communications.” However, this finding is not supported by the record. Ben

testified that he had submitted two requests to CSEA within the time frame in

question to have money withheld from his prison account for child support. He

testified that he sent the requests via U.S. mail and they were not returned to him.

He also testified that he does not have access, per prison policy, to the account to

send payment himself.              Jessica testified that she also requested that CSEA

withhold money from Ben’s prison account for child support. Millington testified

that although she did not have any record of the communications alleged by both

Jessica and Ben, she did not have the full file with her in court. She testified that

the communications could be in those files. Thus, she did not testify that they

were not sent, were not received, or did not exist. Her testimony only confirms

that she, personally, was unaware of the communications. Some communication

must have been received from some source by CSEA because it did eventually

start withholding money from the prison account.1 Without evidence to contradict


1
   The trial court attributed this to communication from Leslie after the petition was filed, but there was no
testimony to support this conclusion. The record indicates that Ben, Jessica, and Leslie all contacted CSEA


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the evidence that Ben attempted to provide support for C.L.B.,2 by contacting

CSEA to have it withhold funds, the only evidence is that he did so.3 The burden

of proving that Ben did not do so is on the petitioner, not Ben. This burden was

not met. Thus, the trial court erred in finding to the contrary.

         {¶ 12} The second question is whether Ben had more than de minimis

contact or a justifiable cause for any lack of contact within the prior year. Jessica

testified that there was none and refused to admit that she was wrong even when

presented with direct evidence to the contrary. She testified that she would not

have allowed C.L.B. to attend a visit at the prison, even though the permission slip

authorizing the visit had her signature and was notarized. She also denied that the

visit occurred after a photo showing C.L.B. with Ben and his grandparents was

entered into evidence.4 She also testified that she had moved without giving a

forwarding address. Ben testified that he had sent letters and cards every two

weeks, though some may have gone to an old address. He also testified that he

saw C.L.B. once during the time frame. He was unable to phone C.L.B. because


to have the money withheld, though the record brought by Millington does not have any of the
communication in it.
2
    The petitioner argues that Ben could have provided support for C.L.B. by having his parents pay his
obligation. This court notes that there is no requirement under the law for a grandparent to pay child
support on behalf of the parent. Leslie testified that she was not financially able to do so and was only able
to pay a minimal amount after the petition by taking out a loan.
3
   There is no requirement that such requests be sent by certified mail. Ben testified that he had sent the
requests via U.S. mail. If an item is not returned to the sender, the presumption is that it was delivered.
Here, testimony was presented that it was sent. No testimony was presented that it was not received, only
that Millingford had no knowledge of any communications.
4
   To believe her testimony concerning the visit in light of all the contradictory documentary evidence
would be unreasonable.


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he did not have a current phone number. Leslie testified that she took C.L.B., with

Jessica’s permission, to visit Ben. She testified that she was unable to mail a letter

that Ben had given her for C.L.B. because she did not have the current address.

Despite Jessica’s testimony that no letters, gifts, or phone calls were received and

no visit occurred, her testimony is less than credible. By her own testimony, she

never provided a forwarding address and would not have allowed visits. She did

not deny that Ben did not have her phone number. The trial court found that there

was contact, though it was de minimis. Given the lack of cooperation by Jessica,

as indicated by her attitude towards the visit, there was a facially justifiable reason

for any further lack of communication. The petitioner failed to prove by clear and

convincing evidence that the limited contact between C.L.B. was not justifiable

given the limitations in ability Ben had. Since the petitioner failed to prove by

clear and convincing evidence that there was no support or no more than de

minimis contact each without a justifiable reason for the failure, within the one-

year time frame immediately preceding the filing of the adoption petition, the trial

court erred in determining that Ben’s consent was not necessary. Thus, the first

and second assignments of error are sustained.

       {¶ 13} The judgment of the Court of Common Pleas of Marion County,

Probate Division, is reversed, and the matter is remanded for further proceedings.

                                                                  Judgment reversed
                                                                and cause remanded.


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      PRESTON, J., concurs.

      SHAW, J., concurs in judgment only.




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