[Cite as In re D.R., 2011-Ohio-4755.]
                            STATE OF OHIO, BELMONT COUNTY

                                  IN THE COURT OF APPEALS

                                        SEVENTH DISTRICT


IN RE:                                        )    CASE NO. 11 BE 11
                                              )
         D.R.                                 )
                                              )    OPINION
                                              )
                                              )



CHARACTER OF PROCEEDINGS:                          Civil Appeal from the Court of Common
                                                   Pleas, Probate Division, of Belmont
                                                   County, Ohio
                                                   Case No. 10 AD 22

JUDGMENT:                                          Affirmed.

APPEARANCES:

For Appellees:                                     Atty. Tracey Lancione Lloyd
                                                   3800 Jefferson Street
                                                   P.O. Box 560
                                                   Bellaire, Ohio 43906

For Appellant:                                     Atty. Joseph A. Vavra
                                                   132 West Main Street
                                                   St. Clairsville, Ohio 43950


JUDGES:

Hon. Cheryl L. Waite
Hon. Gene Donofrio
Hon. Mary DeGenaro
                                                   Dated: September 14, 2011




WAITE, P.J.
                                                                                     -2-


      {1}    Appellant Clark Butler, father of minor child D.R., appeals the judgment

of the Belmont County Court of Common Pleas granting the petition of adoption filed

by Appellees Patricia and Timothy Ray. In granting the petition, the court found that

Appellant’s consent to the adoption was not necessary because he had failed to

provide maintenance and support to the child, without justifiable cause, for at least

one year prior to the placement of the child in Appellees’ home. Appellant argues

that he was incarcerated when the adoption petition was filed, and that his

incarceration should not have been used against him when determining whether his

consent to adoption was required. The record reflects that the court was aware of

Appellant’s incarceration but did not use it as a factor in determining that his consent

was not necessary. Instead, the court relied on the fact that Appellant had paid no

child support from 2004-2006. Appellant, who was represented by an attorney, made

no attempt to present any facially justifiable claim why he did not provide any

maintenance and support for the child for more than two years prior to placement of

the child in Appellees’ home. The judgment of the trial court is affirmed.

                                     Case History

      {2}    D.R. was born on September 16, 2003. Nicole L. Ray is the child’s

mother and Appellant is the father. On April 1, 2004, Appellant was ordered to pay

child support in the amount of $50 per month. On April 5, 2006, Appellees obtained

legal custody of the child by decree of the Belmont County Juvenile Court.

      {3}    On November 17, 2010, Appellees filed a petition for adoption. The

petition alleged that neither parents’ consent was required for the adoption. Notice of
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the petition was sent to Appellant at the Huttonsville Correctional Center in

Huttonsville, West Virginia.    On November 27, 2010, Appellant filed a pro se

objection to the adoption. The objection was based on Appellant’s belief that D.R.’s

biological grandmother would be a better custodian of the child. On December 28,

2010, the court appointed counsel to represent Appellant in the adoption

proceedings.

      {4}      The court held a hearing on March 4, 2011, to resolve an issue as to

whether parental consent was required for the adoption. Shannon Weekley of the

Belmont County Department of Jobs and Family Services testified that Appellant’s

first child support payment was not made until November 19, 2007, and then in the

amount of $5.04. (3/4/11 Tr., p. 10.) Appellant made a few payments in 2009, all

under $15 each. On cross-examination, Weekley testified that she was aware that

Appellant was in prison, that his child support payments came from prison, and that

Appellant had made some child support payments from January through June of

2010. Appellant did not present any evidence to add to or challenge Weekley’s

testimony. The probate court filed a judgment entry on March 4, 2011, finding that

the natural parents’ consent to adoption was not required. The court filed its final

decree of adoption on March 18, 2011. This appeal followed on April 1, 2011.

      {5}      A judgment entry finding that consent to adoption is not necessary is a

final appealable order. In re Greer (1994), 70 Ohio St.3d 293, 638 N.E.2d 999,

paragraph one of the syllabus. Although Appellant’s notice of appeal states that he is

appealing the judgment entry of adoption filed March 18, 2011, the entry he is
                                                                                   -4-

actually appealing (dealing with the issue of consent to adoption) was filed March 4,

2011. Despite Appellant’s misunderstanding as to which entry he was appealing, the

notice of appeal filed on April 1, 2001, appealing the entry filed on March 4, 2011,

was filed within the required 30-day appeal period set forth in App.R. 4(A).

                             ASSIGNMENT OF ERROR

      {6}    “THE TRIAL COURT ERRED BY FAILING TO RECOGNIZE THE

INCARCERATION OF FATHER-APPELLANT AS JUSTIFIABLE CAUSE TO NOT

PAY SUPPORT FOR A PERIOD OF ONE YEAR IMMEDIATELY BEFORE FILING

OF THE PLACEMENT PROCEEDINGS.”

      {7}    Appellant argues that the trial court should not have found that his

consent to adoption was unnecessary. He argues that he was incarcerated prior to

D.R.’s placement in Appellees’ home, and prior to the filing of the adoption petition.

He submits that his incarceration is justifiable cause for not making support

payments, and for that reason, his consent was required for the adoption to be

finalized. Appellant’s argument is not persuasive.

      {8}    The United States Supreme Court 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;

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

adoption affects these fundamental interests because it permanently terminates the

parental rights of a natural parent. In re Adoption of Reams (1989), 52 Ohio App.3d
                                                                                     -5-

52, 55, 557 N.E.2d 159. 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.

      {9}    An appellate court will not disturb a trial court's decision on an adoption

petition unless it is against the manifest weight of the evidence. In re Adoption of

Masa (1986), 23 Ohio St.3d 163, 492 N.E.2d 140. A judgment supported by some

competent, credible evidence will not be reversed by a reviewing court as against the

manifest weight of the evidence. C.E. Morris Co. v. Foley Construction Co. (1978),

54 Ohio St.2d 279, 376 N.E.2d 578. Similarly, a reviewing court must not substitute

its judgment for that of the trial court where there exists some competent and credible

evidence supporting the judgment rendered by the trial court.        Myers v. Garson

(1993), 66 Ohio St.3d 610, 614 N.E.2d 742.

      {10}   Once a petition of adoption is filed, the petitioner must generally obtain

the written consent of the natural mother and father. R.C. 3107.06. Such consent,

though, is not always required. R.C. 3107.07 sets forth a variety of exceptions to the

consent requirement.    At issue in this appeal is whether the exception in R.C.

3107.07(A) applies to eliminate the need for Appellant to consent:

      {11}   “(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
                                                                                        -6-

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.”

       {12}   Appellant relies on In re Schoeppner (1976), 46 Ohio St.2d 21, 345

N.E.2d 608 in support of his argument. Appellant cites the syllabus as authority for

the proposition that his incarceration should have prevented the trial court from

finding that his consent was not required:       “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.”

       {13}   Appellant’s citation to In re Schoeppner is not persuasive, however.

First, adoption law in Ohio has significantly changed since In re Schoeppner. Prior to

1976, the consent requirement and the exceptions to consent were less extensive

than they are today, and most of the provisions were contained in a single statute.

See former R.C. 3107.06.       In the pre-1976 version of the statute, the adoption

petitioner could not evade the parental consent requirement except by proving that

the natural parent willfully failed to support and maintain the child. In 1976, the

exceptions to the consent requirement were modified and moved to R.C. 3107.07. At

that time, the element of willfulness was removed from the consent exception dealing

with parental failure to support the minor child. See, e.g., In the Matter of Glazier

(Oct. 18, 1978), 5th Dist. No. 78-CA-2. In re Schoeppner, Appellant’s attempted

authority, dealt with a pre-1976 adoption petition in which the petitioners needed to
                                                                                           -7-

prove that “one or both of the parents have willfully failed to properly support and

maintain the child for a period of more than two years immediately preceding the

filing of the petition”. (Emphasis added.) Id. at 23; R.C. 3107.06(B)(4). Thus, it is

not clear whether In re Schoeppner would be decided the same way today, given that

the argument being made in that case was that “the mere fact of incarceration in a

penal institution does not constitute a willful failure to support a child”. (Emphasis

added.) Id.

       {14}    Second, In re Schoeppner did not hold that a parent’s incarceration

prevented a trial court from finding that the consent was not required for an adoption.

That Court concluded only that incarceration, in and of itself, did not remove the

consent requirement: “[A]lthough the fact of imprisonment might, when combined

with other factors, lend support to a finding of a willful failure to support * * * it will not

constitute such failure as a matter of law.” (Citations omitted.) Id. at 24. Other

courts have found that imprisonment, along with other factors, can be used to support

a finding that a parent’s consent is not needed for an adoption. In Matter of Adoption

of Carter (Dec. 15, 1995), 4th Dist. No. 95 CA 11; Dallas v. Dotson (1996), 113 Ohio

App.3d 484, 681 N.E.2d 464; In re Apanovitch v. Apanovitch (March 6, 1980), 8th

Dist. No. 40469. Some courts have simply held that “[f]inancial failure can not be

justified because during part of the time a parent was in prison.” In re Adoption of

Devin Scott S., 6th Dist. No. L-03-1067, 2003-Ohio-3985, ¶5. In the instant appeal,

the fact of Appellant’s incarceration was not used as a reason, in and of itself, for the

court to conclude that his consent was not required for the adoption. The trial court
                                                                                   -8-

reasoned that consent was not required because Appellant completely failed to pay

any child support in the years 2004, 2005, and 2006.

       {15}    Further, Appellant admits that he was not incarcerated in 2004 or for

four months in 2005, and does not dispute that no child support payments were

made in those time periods. The record reveals that Appellant was first ordered to

make support payments in 2004, but did not make his first support payment until

November 19, 2007, in the amount of $5.04.        Thus, the record establishes that

Appellant’s incarceration was irrelevant for at least 16 months during which he failed

to pay child support. Even if we completely accepted Appellant’s argument, it is

apparent that there are reasons apart from the fact of his incarceration that explain

the trial court’s decision.

       {16}    Appellant is under the mistaken impression that the trial court was

required to find that no maintenance and support was provided in the twelve months

preceding the filing of the adoption petition.     The consent exception in R.C.

3107.07(A) is broader than that. It applies if no maintenance and support is provided

for at least one year preceding either the filing of the adoption petition or the

placement of the child in the home of the petitioner. D.R. was placed in Appellees’

home on April 5, 2006, and it is this date the court used to determine Appellant’s

maintenance and support obligations.

       {17}    Appellant also cites to In re Adoption of C.L.B., 191 Ohio App.3d 64,

2010-Ohio-5190, 944 N.E.2d 1190, in support. Although In re Adoption of C.L.B.

involved an incarcerated parent who opposed the adoption of the child, the facts of
                                                                                    -9-

that case distinguish it from the present appeal. In In re Adoption of C.L.B., the

parents of the minor child divorced in 2002, and the father, identified only as “Ben

C.”, was required to pay child support of $23.26 per month. In August of 2008, Ben

began serving a four-year prison term. In October 2009, the child’s new stepfather

petitioned to adopt the child. He alleged that Ben’s consent was not required based

on his failure to provide more than de minimis contact or to provide maintenance and

support in the year preceding the petition.    Ben contested the adoption.      At the

adoption hearing, a child support enforcement agency caseworker testified that Ben

had not paid any child support from June of 2008 through October of 2009, thus

establishing that there was no maintenance or support for the twelve months prior to

the filing of the petition. Up to this point, In re Adoption of C.L.B. and the instant

appeal are fairly similar.

       {18}   The two cases diverge, however, when we look at the mitigating

evidence presented to the trial court. In the case at bar, Appellant did not testify or

present any evidence in opposition to the adoption petition. In In re Adoption of

C.L.B., Ben did testify and also presented other evidence. At hearing, Ben stated

that he only earned $18 per month in prison, and that money was used to pay his

fines and to purchase hygiene products, snack foods, and postal supplies.           He

testified that he contacted CSEA to have them take money from his prison account

for child support, but that they failed to do so for more than a year. He also stated

that he could not write checks to pay child support because it was against prison

policy. He testified that he sent various cards and birthday presents to C.L.B. and
                                                                                     -10-

that he assumed they had been delivered. He stated that it was difficult to keep in

contact with C.L.B. due to many changes in his address, and because he did not

have a current phone number.

       {19}   The Third District Court of Appeals examined Ben’s testimony in light of

the relative evidentiary burdens of the parties involved in the adoption proceeding.

The court held that the party petitioning for adoption has the burden of proof, as well

as the initial burden of going forward with the evidence, to establish that the

biological parents failed to support or to communicate with the child. Id. at 69, citing

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 C.L.B. further held that, once the adoption

petitioner has established a failure to support or to communicate, the burden of going

forward with the evidence shifted to the natural parents to provide a facially justifiable

cause for the lack of support or communication. Id. This holding is consistent with In

re Adoption of Masa (1986), 23 Ohio St.3d 163, 492 N.E.2d 140:             “it should be

pointed out that the adopting parent has no legal duty to prove a negative. If the

natural parent does not appear or go forward with any evidence of justification,

obviously the adopting parent has only the obligation of proving failure of support by

the requisite standard.” Id. at 167; see also, In re Adoption of Bovett (1987), 33 Ohio

St.3d 102, 515 N.E.2d 919, paragraph two of the syllabus. If the natural parent

provides a facially justifiable cause, then the burden of going forward with the

evidence returns to the adoption petitioner to establish that alleged cause is not

justifiable cause for failing to provide support or communication. Id. The burden of
                                                                                     -11-

proof is always on the petitioner, but the burden of going forward with evidence shifts

once the petitioner has demonstrated a failure to provide support or communication.

       {20}   Based on this caselaw, the Third District held that the petitioner did not

rebut Ben’s claims that he attempted to provide child support and attempted to

communicate with the child.

       {21}   In the instant appeal, the adoption petitioner provided proof of failure to

support using the requisite standard.      Appellant, however, failed to provide any

explanation as to why he did not make any child support payments for at least twelve

months prior to the date that Appellees took custody of D.R. Appellant presented

absolutely no evidence that he was prevented from making support during any part of

the period in question.    As earlier stated, incarceration alone is not a justifiable

excuse even if it had lasted for the entire period considered by the trial court, which it

did not. Due to this key factual difference, Appellant is misplaced in his assertion that

the trial court was required to reach the same conclusion as the court in In re

Adoption of C.L.B.

       {22}   In conclusion, the record shows that Appellant failed without justifiable

cause to provide for the maintenance and support of D.R. for more than twelve

months prior to the date Appellees obtained legal custody of the child. Based on this

evidence, the trial court concluded that Appellant’s consent was not needed for the

adoption. Appellant did not rebut this evidence or make any type of argument as to

how his incarceration might have affected his ability to provide maintenance and

support.   On appeal, Appellant contends that the mere fact of his incarceration
                                                                                    -12-

should have preserved his right to prevent the adoption by withholding his consent.

The cases cited by Appellant in this appeal are inapposite to his argument. The fact

that the natural parent was incarcerated prior to the filing of an adoption petition does

not, by itself, prevent a court from finding that the parent’s consent is not needed for

approval of the adoption. In this case, once the failure of support was established,

Appellant failed to even raise the fact of his incarceration as a reason for failing to

provide support, failed to provide evidence that he attempted and was prevented

from providing support and failed to address any other reasons why support was not

provided during the period in question.         For these reasons, Appellant’s sole

assignment of error is overruled and the judgment of the trial court is affirmed.


Donofrio, J., concurs.

DeGenaro, J., concurs.
