[Cite as In re Adoption of L.S., 2020-Ohio-224.]




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




IN RE: THE ADOPTION OF:                                   CASE NO. 5-19-20

       L.S.

[CODY SCHOONOVER - APPELLANT]                             OPINION



                 Appeal from Hancock County Common Pleas Court
                                 Probate Division
                             Trial Court No. 20185044

                                      Judgment Affirmed

                            Date of Decision: January 27, 2020



APPEARANCES:

        Drew J. Mihalik for Appellant

        James W. Fruth for Appellee
Case No. 5-19-20


WILLAMOWSKI, J.

       {¶1} Respondent-appellant Cody R. Schoonover (“Schoonover”) appeals the

judgment of the Probate Division of the Hancock County Court of Common Pleas

(“trial court”), alleging that the trial court erred in determining that paternal consent

was not necessary for the adoption of L.S. and in determining that there was not

justifiable cause for his failure to make more than de minimis contact with L.S. For

the reasons set forth below, the judgment of the trial court is affirmed.

                            Facts and Procedural History

       {¶2} Schoonover and Kayla N. Sealey (“Kayla”) are the biological father and

biological mother of L.S. Doc. 2. In 2016, there was an order of visitation in place

under which Schoonover could visit L.S. for two hours on Wednesdays and every

other Sunday. January 4 Tr. 36. Under this order, Schoonover’s visits with L.S.

had to be supervised. Id. at 36. According to Kayla, these visits were supervised

because Schoonover “ha[d] a history of drug and alcohol abuse.” May 6 Tr. 24. In

January of 2017, Schoonover was caught operating a vehicle impaired. January 4

Tr. 30, 67. After this incident, Schoonover alleged that Kayla stopped allowing

Schoonover to visit with L.S. Id. at 67.

       {¶3} Schoonover then filed a contempt motion with the Juvenile Division of

the Hancock County Court of Common Pleas (“Juvenile Division”). Id. at 67-68,

82. The parties subsequently worked out an agreement, and Schoonover voluntarily

dismissed his contempt motion. Id. Under this agreement, visitation between

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Schoonover and L.S. occurred at Schoonover’s parent’s house. Id. at 103. In July

of 2017, Kayla married Bradley M. Sealey (“Bradley”). Doc. 1. May 6 Tr. 7. At

this time, L.S. and Kayla began to live with Bradley. Doc. 1. May 6 Tr. 18.

       {¶4} On September 23, 2017, Schoonover had his last visitation with L.S.

January 4 Tr. 37. On September 26, 2017, Schoonover inadvertently sent Kayla a

text that appears to have been intended for another person. Ex. B. In this text,

Schoonover appeared to be making an offer to sell drugs. Ex. B. Kayla testified

that this led her to believe that he was “not finished using drugs.” May 6 Tr. 35.

Kayla then informed Schoonover’s father that L.S. was not going to visit at their

house with Schoonover any longer. Id. In December of 2017, Schoonover filed a

contempt motion with the Juvenile Division in Case No. 20144197, alleging that

Kayla was interfering with his visitation. Id. at 69-70.

       {¶5} In between December of 2017 and February of 2018, Schoonover was

not employed. Id. at 21. In February of 2018, Schoonover was also caught driving

without a license. Ex. X. At this time, the Juvenile Division issued a temporary

order of visitation in Case No. 20144197. January 4 Tr. 70, 74. Under this order,

Schoonover was permitted to have supervised visits with L.S. at Harmony House.

Id. Schoonover testified that visitation was to happen at Harmony House because

of his substance abuse issues. Id. However, Schoonover testified that he never

visited L.S. at Harmony House. Id. at 72. Schoonover stated that this was, in part,

because he was incarcerated in April of 2018. Id.

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       {¶6} In May of 2018, Schoonover was charged with forgery and breaking

and entering. Id. at 99. Pursuant to a motion in lieu of conviction, Schoonover went

to a rehabilitation center in New York to address his substance abuse issues. Id. at

99-100. He remained in rehabilitation from May to August of 2018. Id. at 23.

When Schoonover returned in August of 2018, the motions filed in Case No.

20144197 were still pending before the Juvenile Division. Id. at 80.

       {¶7} On October 24, 2018, Bradley initiated Case No. 20185044, which is

now before this Court, by filing a petition to adopt L.S. Doc. 1. There is no evidence

in the record that indicates that Schoonover visited L.S. in between his return from

New York in August of 2018 and the filing of this petition in October of 2018. On

November 1, 2018, Schoonover filed an objection to the adoption of L.S. Doc. 10.

In his response to this objection, Bradley alleged that Schoonover “failed, without

justifiable cause, to have contact with [L.S.] for at least a year.” Doc. 13.

       {¶8} On November 27, 2018, the Juvenile Division held a hearing on the

motions that had been filed in Case No. 20144197. Id. at 79. Ex. 2. On December

13, 2018, the Juvenile Division issued a Consent Magistrate’s Order Judgment Entry

in Case No. 20144197. Ex. 2. The trial court then held hearings on Bradley’s

petition for adoption in Case No. 20185044 on January 4, 2019 and May 6, 2019.

Doc. 28, 29. At the hearings on this petition, the trial court heard testimony from

Schoonover, Kayla, and Bradley. Further, the trial court received evidence that

documented Schoonover’s child support payment history. Ex. C. In between

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Case No. 5-19-20


October of 2017 and October of 2018, Schoonover made one documented child

support payment of $164.00 in August of 2018. May 6 Tr. 21. Ex. C.

       {¶9} At both of these hearings on this petition, Schoonover requested that

the trial court take judicial notice of the file in Juvenile Division Case No. 20144197.

January 4 Tr. 12. May 6 Tr. 60-61. Schoonover asserted that his filings with the

Juvenile Division in Case No. 20144197 should qualify as more than de minimis

contact under R.C. 3107.07(A) that occurred within the year preceding the filing of

Bradley’s petition. Doc. 20. The trial court ultimately denied Schoonover’s request

to take judicial notice of Case No. 20144197. Doc. 20.

       {¶10} The trial court issued its judgment entry for Case No. 20185044 on

May 23, 2019. Doc. 20. The trial court found that the last time that Schoonover

had contact with L.S. was in September of 2017. Doc. 20. The trial court then

found that Schoonover failed to have contact with L.S. for one year prior to the filing

of Bradley’s petition. Doc. 20. For this reason, the trial court determined that

Schoonover’s consent was not required for the adoption to proceed. Doc. 20. The

appellant filed his notice of appeal on June 21, 2019. Doc. 22. On appeal,

Schoonover raises the following assignments of error:

                             First Assignment of Error

       The trial court abused its discretion in finding that paternal
       consent to the adoption of L.S. was not necessary.




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                            Second Assignment of Error

       The trial court’s finding that appellant failed to demonstrate
       justifiable cause pursuant to R.C. 3107.07 was against the
       manifest weight of the evidence.

                              First Assignment of Error

       {¶11} Schoonover subdivides this assignment of error into two separate

arguments. First, he asserts that the trial court erred by failing to take judicial notice

of a prior case that had been filed in the Juvenile Division. Second, he alleges that

the filing of this action within one year before the filing of Bradley’s petition

qualifies as more than de minimis contact under R.C. 3107.07. For the sake of

clarity, we will analyze each of these arguments in separate analyses.

                                    First Argument

       {¶12} In this argument, Schoonover alleges that

       [t]he Trial Court erred in not taking judicial notice pursuant to
       Evidence Rule 201 of a Hancock County Juvenile Court
       proceeding involving L.S., which was ongoing during the alleged
       statutory one-year period pursuant to R.C. 3107.07, and further,
       pending at the time of the filing of and the pendency of the petition
       to Adopt * * *.

Appellant’s Brief, 6.

                                    Legal Standard

       {¶13} “Judicial notice allows a court to accept, ‘for purpose of convenience

and without requiring a [party’s] proof, * * * a well-known and indisputable fact.’”

In re C.Y., 6th Dist. Lucas No. L-13-1184, 2014-Ohio-1144, ¶ 16, quoting State v.


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Case No. 5-19-20


Blaine, 4th Dist. Highland No. 03CA9, 2004-Ohio-1241, ¶ 12. Under the Ohio

Rules of Evidence,

      “[a] judicially noticed fact must be one not subject to reasonable
      dispute in that it is either (1) generally known within the
      territorial jurisdiction of the trial court or (2) capable of accurate
      and ready determination by resort to sources whose accuracy
      cannot reasonably be questioned.”

Evid.R. 201(B). Under Evid.R. 201(D), “[a] court shall take judicial notice if

requested by a party and supplied with the necessary information.” Evid.R. 201(D).

      Under Ohio law, the general rule is that

      ‘[a] trial court may not take judicial notice of prior proceedings
      in the court, but may only take judicial notice of prior proceedings
      in the immediate case.’ Diversified Mortgage Investors, Inc. v.
      Athens Cty. Bd. of Revision (1982), 7 Ohio App.3d 157, 159, 454
      N.E.2d 1330 [(4th Dist.)]. See, also, D & B Immobilization Corp. v.
      Dues (1997), 122 Ohio App.3d 50, 53, 701 N.E.2d 32 [(8th Dist.)];
      In re Knotts (1996), 109 Ohio App.3d 267, 271, 671 N.E.2d 1357
      [(3d Dist.)]; Woodman v. Tubbs Jones (1995), 103 Ohio App.3d
      577, 580, 660 N.E.2d 520 [(8th Dist.)]; State v. Velez (1991), 72
      Ohio App.3d 836, 838, 596 N.E.2d 545 [(3d Dist.)]; Kiester v. Ehler
      (1964), 9 Ohio App.2d 52, 56, 222 N.E.2d 782 [(2d Dist.)]; Burke
      v. McKee (1928), 30 Ohio App. 236, 238, 164 N.E. 776 [(4th Dist.)].
      The rationale for this holding is that, if a trial court takes notice
      of a prior proceeding, the appellate court cannot review whether
      the trial court correctly interpreted the prior case because the
      record of the prior case is not before the appellate court. Dues,
      supra, at 53, 701 N.E.2d 32. See Deli Table, Inc. v. Great Lakes
      Mall (Dec. 31, 1996), [(11th Dist.)] Lake * * * No. 95-L-012 [1996
      WL 761984], at 13; Phillips v. Rayburn (1996), 113 Ohio App.3d
      374, 379, 680 N.E.2d 1279 [(4th Dist.)].

Pollard v. Elber, 2018-Ohio-4538, 123 N.E.3d 359, ¶ 14 (6th Dist.). See Ohio

Medical Indemnity, Inc. v. Poe, 3d Dist. Hancock No. 5-77-26, 1978 WL 215841,


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Case No. 5-19-20


*5 (May 24, 1978) (holding that “[a] court cannot take judicial notice of other cases

in that court but must require proof of such cases by evidence or stipulation * * *.”).

       {¶14} However, on this issue, the Supreme Court of Ohio has also held that

“a trial court is not required to suffer from institutional amnesia.” Indus. Risk

Insurers v. Lorenz Equip. Co., 69 Ohio St.3d 576, 580, 635 N.E.2d 14, 18 (1994).

       ‘[I]t is axiomatic that a trial court may take judicial notice of its
       own docket’—including the docket in a separate case. Indus. Risk
       Insurers[, supra, at 580]. The trial court cannot take judicial
       notice of a docket ‘for the truth of the matters asserted in the
       other litigation,’ however, but only ‘to establish the fact of such
       litigation.’ State ex rel. Coles v. Granville, 116 Ohio St.3d 231,
       2007-Ohio-6057, 877 N.E.2d 968, ¶ 20, quoting Liberty Mut. Ins.
       Co. v. Rotches Pork Packers, Inc., 969 F.2d 1384, 1388 (2d
       Cir.1992), and Kramer v. Time Warner, Inc., 937 F.2d 767, 774 (2d
       Cir.1991).

Pollard at ¶ 17. See Natl. Distillers & Chem. Co. v. Limbach, 71 Ohio St.3d 214,

643 N.E.2d 101 (1994) (holding that the law allows a court to take “‘judicial notice’

of [its] docket records” but that the relevant “cases do not state that we may take

judicial notice of evidence contained in the transcripts.”).

                                   Legal Analysis

       {¶15} In this case, Schoonover requested that the trial court take judicial

notice of Case No. 20144197. May 6 Tr. 61. In the January 4, 2019 hearing,

Schoonover’s counsel stated the following:

       Mr. Schoonover has been actively involved with this child in case
       number 20144197 of the Hancock County Juvenile Court. The
       Court that Your Honor is the Judge over. And throughout this
       case we’re going to respectfully request that the Court would take

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       judicial notice of that file, and there will be the most recent
       judgment entry demonstrating Mr. Schoonover’s involvement.

(Emphasis added.) January 4 Tr. 12. Similarly, at the May 6, 2019 hearing,

Schoonover’s counsel made the following request:

       Your Honor, as the Judge in this Court, you would have reviewed
       that case from start to finish. This case has been in court three
       times. That case file is pertinent because one, it shows that Mr.
       Schoonover initiated the action based upon not seeing the child,
       which was an issue in the case and has been testified now on two
       separate periods. This was filed as an agreement of the parties.

(Emphasis added.) May 6 Tr. 61-62.

       {¶16} In the first request, Schoonover’s counsel stated that the judgment

entry of this action was going to be introduced as evidence, which would have been

sufficient to prove the existence of Case No. 20144197 for the purposes of this

litigation. In both of these requests, Schoonover asked for the trial court to take

judicial notice of the file. Thus, he did not simply ask for the trial court to take

judicial notice of the existence of a prior action on its docket. Rather, Schoonover

asked the trial court to take judicial notice of the content of the case file. Under

Ohio law, trial courts “cannot take judicial notice of a docket ‘for the truth of the

matters asserted in the other litigation,’ however, but only ‘to establish the fact of

such litigation.’” Pollard, supra, at ¶ 17 quoting Granville, supra, at ¶ 20. Thus,

the trial court did not err in declining to take judicial notice of the content of the file

for Case No. 20144197.



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       {¶17} Regardless of whether the trial court had erred in failing to take

judicial notice of this prior case file, Schoonover was still able to argue that his

filings in Case No. 20144197 were more than the de minimis contact that is required

under R.C. 3107.01(A). In response to Schoonover’s request for judicial notice,

Bradley did not object to the trial court “considering the fact that [Schoonover] filed

a motion.” May 6 Tr. 65. Bradley only objected to the trial court “taking judicial

notice of the entire file * * *.” May 6 Tr. 65.

       {¶18} Further, the trial court heard testimony from Schoonover and Kayla

regarding the circumstances that led Schoonover to file his contempt motion in Case

No. 20144197. January 4 Tr. 68-69, 70-71, 74, 79-83. May 6 Tr. 35-36. The trial

court also heard testimony regarding the temporary order that the Juvenile Division

issued and the failure of Schoonover to exercise visitation pursuant to this temporary

order. January 4 Tr. 68-69. May 6 Tr. 38. Schoonover also introduced into

evidence the judgement entry from Case No. 20144197, which the Juvenile Division

issued on December 13, 2018. Ex. 2. May 6 Tr. 116.

       {¶19} Because of this evidence at the hearing, the trial court was able to

consider the existence of Case No. 20144197 in determining whether paternal

consent was required for this adoption to proceed. Further, the trial court considered

testimony that detailed the circumstances surrounding this prior action. After

reviewing the evidence in the record, we conclude that the trial court complied with



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Ohio law in denying Schoonover’s request to take judicial notice of the content of

the file in Case No. 20144197. For these reasons, this argument is without merit.

                                Second Argument

      {¶20} In his next argument, Schoonover alleges that

      [t]he existence of a prior, pending, and ongoing Hancock County
      Juvenile Court custody matter, instigated by Appellant Cody
      Schoonover (biological father) pro se and specifically addressing
      parenting and companionship time with L.S., through the
      statutory one-year period, constituted de minimis contact
      pursuant to R.C. 3107.07.

Appellant’s Brief, 10.

                                  Legal Standard

      {¶21} “[T]he right of a natural parent to the care and custody of his children

is one of the most precious and fundamental in law.” In re Adoption of Masa, 23

Ohio St.3d 163, 164, 492 N.E.2d 140 (1986). “Under most circumstances, both of

a minor’s natural parents must provide written consent prior to the adoption of that

minor.” In re Adoption of S.S., 2017-Ohio-8956, 101 N.E.3d 527, ¶ 16 (3d Dist.).

However, R.C. 3107.07(A) provides the following exception to this general rule:

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

      (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


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       petition or the placement of the minor in the home of the
       petitioner.

R.C. 3107.07(A). The application of R.C. 3107.07(A) involves a two-step analysis.

In re Adoption of M.B., 131 Ohio St.3d 186, 2012-Ohio-236, 963 N.E.2d 142, ¶ 23.

       The first step involves deciding a factual question—in this case,
       whether the parent willfully had failed to provide more than de
       minimis contact with the minor child. ‘A trial court has discretion
       to make these determinations, and in connection with the first step
       of the analysis, an appellate court applies an abuse-of-discretion
       standard when reviewing a probate court decision * * *.’ In the
       second step, if a probate court finds a failure to provide more than
       de minimis contact, the court then determines the issue of whether
       there is justifiable cause for the failure. A probate court’s
       decision on whether justifiable cause exists will not be disturbed
       on appeal unless the determination is against the manifest weight
       of the evidence.

In re Adoption of K.C., 3d Dist. Logan No. 8-14-03, 2014-Ohio-3985, ¶ 20.

       {¶22} “Under the abuse of discretion standard, an appellate court is not to

substitute its judgment for the trial court’s judgment.” Schroeder v. Niese, 2016-

Ohio-8397, 78 N.E.3d 339, ¶ 7 (3d Dist.). “Thus, a mere error of judgment does not

rise to the level of an abuse of discretion.” In re A.T., 3d Dist. Crawford Nos. 3-19-

07, 3-19-08, and 3-19-09, 2019-Ohio-5038, ¶ 13, quoting Siferd v. Siferd, 2017-

Ohio-8624, 100 N.E.3d 915, ¶ 16 (3d Dist.). “[T]o constitute an abuse of discretion,

the trial court’s decision must be unreasonable, arbitrary, or capricious.” Mousa v.

Saad, 3d Dist. Marion No. 9-18-12, 2019-Ohio-742, ¶ 29, quoting Southern v.

Scheu, 3d Dist. Shelby No. 17-17-16, 2018-Ohio-1440, ¶ 10.



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                                             Legal Analysis

         {¶23} When he testified at the hearing on Bradley’s petition, Schoonover

admitted that he had not had visitation with L.S. since September 23, 2017. January

4 Tr. 37. Thus, Schoonover did not visit with L.S. at all in the one-year period

before Bradley filed his petition on October 24, 2018. Doc. 1. Schoonover stated

that he had not called, texted, or communicated with L.S. in this timeframe. January

4 Tr. 37. Similarly, Schoonover also testified that he did not send letters, gifts, or

packages to L.S. in this yearlong period. Id. at 38, 40. Further, Bradley and Kayla

testified that Schoonover did not contact, communicate with, or visit L.S. in the year

preceding the filing of Bradley’s petition. May 6 Tr. 10-12, 28, 31-33. Bradley and

Kayla also stated that they did not receive any packages, emails, texts, letters, calls,

packages, or gifts from Schoonover to L.S. Id. at 10-12, 33.

         {¶24} Schoonover argues that a contempt motion that he filed with the

Juvenile Division in December of 2017 qualifies as more than de minimis contact

with L.S. that is required under R.C. 3107.07(A).1 However, the filing of a contempt

motion with the Juvenile Division is contact with a court, not contact with L.S. See

In re Adoptions of Doyle, 11th Dist. Ashtabula Nos. 2003-A-0071, 2003-A-0072,

2004-Ohio-4197, ¶ 19 (holding that “a [parent’s] letter requesting visitation sent to



1
 Most of the arguments that Schoonover advances to support this assertion are, in fact, arguments that address
whether his failure to engage in more than de minimis contact was justified by the circumstances surrounding
this case. We will consider these arguments under his second assignment of error wherein he asserts that
there was justifiable cause for his lack of contact with L.S.

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the court cannot be deemed communication with the child, as the child remains

unaware that the parent is attempting meaningful communication.”). Thus, the

action of filing a contempt motion is not, in and of itself, more than the de minimis

contact that is required under R.C. 3107.07(A).2

         {¶25} Given the evidence produced at these hearings, we conclude that the

trial court did not abuse its discretion in finding that Bradley had established, by

clear and convincing evidence, that Schoonover did not have more than de minimis

contact with L.S. in the one-year period before Bradley filed his petition for

adoption. Thus, this argument is without merit. For these reasons, Schoonover’s

first assignment of error is overruled.

                                     Second Assignment of Error

         {¶26} Schoonover argues that the trial court’s determination—that there was

not justifiable cause for his failure to have more than de minimis contact with L.S.—

was against the manifest weight of the evidence. We will herein reincorporate and

then supplement the legal standard set forth under the second argument in

Schoonover’s first assignment of error.




2
  This does not mean that the filing of a motion addressing parental rights is insignificant in the process of
determining whether parental consent is necessary for an adoption to proceed. See In re Adoption of S.S.,
supra. Depending on the facts of the case, the filing of such a motion could be evidence of significant
interference with a parent’s visitation rights or of a justifiable cause for a parent’s failure to engage in more
than de minimis contact with a child. We will consider the significance of the filing of Schoonover’s
contempt motion in our analysis of his second assignment of error.

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                                   Legal Standard

       {¶27} “In determining whether a natural parent’s failure to have more than

de minimis contact was justified, the central question is whether there was a

significant interference with visitation and communication and not whether it was

possible for the natural parent to have done more to overcome the interference with

visitation and communication.” In re Adoption of C.N.A., 2018-Ohio-897, 108

N.E.3d 553, ¶ 9 (3d Dist.), quoting In re J.P.E., 11th Dist. Trumbull No. 2016-T-

0113, 2017-Ohio-1108, ¶ 17. An appellate court will not reverse a trial court’s

determination as to whether there was justifiable cause for a parent’s failure to have

more than de minimis contact with his or her child “unless [that] determination is

against the manifest weight of the evidence.” In re K.C., supra, at ¶ 20.

       In determining 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 C.N.A. at ¶ 9, quoting In re Adoption of N.T.R. 10th Dist. Franklin

No. 16AP-589, 2017-Ohio-265, ¶ 11.

                                   Legal Analysis

       {¶28} Schoonover makes several arguments against the trial court’s

determination that his failure to contact L.S. was without justifiable cause. First,

Schoonover argues that the trial court did not consider his actions in Case No.

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20144197 in deciding whether justifiable cause existed in this case. However, the

trial court, in its judgment entry, did consider the contempt motion that Schoonover

filed. Doc. 20. The trial court noted that Kayla was never held in contempt; that

their disputes ended with agreements between the parties; and that Schoonover

failed to contact L.S. in spite of these agreements. Doc. 20.

       {¶29} Second, Schoonover alleges that he attempted to “open a line of

communication” between himself and L.S. by texting Kayla and Bradley in the

spring of 2018. January 4 Tr. 62, 64. He argues that these efforts were thwarted by

Kayla and Bradley’s failure to respond. Schoonover points to two text messages

that he sent to Kayla in February and May of 2018. Ex. 4. In these text messages,

he asked for L.S.’s social security number and stated that he wanted this information

to secure unspecified veteran’s benefits for L.S. Ex. 4. Kayla did not respond to

these texts with L.S.’s social security number. Ex. 4. Schoonover similarly texted

Bradley to ask for this information in April of 2018. Ex. 1. Bradley also did not

respond with L.S.’s social security number. Ex. 1.

       {¶30} Schoonover suggests that Kayla and Bradley’s refusal to respond to

these texts represents an interference in communication between him and L.S.

Appellant’s Brief, 17. However, Schoonover’s text messages do not contain a

message for L.S. Ex. 1, 4. Kayla also testified that she did not respond with L.S.’s

social security number because she did not trust Schoonover with that information

and did not believe that L.S. would, in fact, receive any of these promised benefits.

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May 6 Tr. 40-41. Kayla also noted that, at this time, Schoonover had a charge of

forgery against him. Id. at 31.

       {¶31} Further, Kayla stated that she did not change her phone number or

block Schoonover’s phone calls, though she did block Schoonover on Facebook.

Id. at 18, 26, 52. Ex. V. Kayla and Bradley testified that they did not hide any

communications, letters, gifts, or packages from Schoonover for L.S. Id. at 9-11,

33. Schoonover knew where L.S. lived and went to school. May 6 Tr. 9, 26.

January 4 Tr. 40. The evidence in the record also indicates that Schoonover was in

touch with a number of other individuals on social media during this timeframe. Ex.

C, P, Q, T, S.

       {¶32} Third, Schoonover argues that Kayla interfered with his ability to visit

and contact L.S. To support this assertion, he points to the contempt motion that he

filed with the Juvenile Division in December of 2017. January 4 Tr. 69. Schoonover

testified that he filed this contempt motion because Kayla was causing difficulties

with his visitation. May 6 Tr. at 68-69. Kayla testified that this issue arose after

she received a text from Schoonover that led her to believe that he was still using

drugs. May 6 Tr. 35. After she received this text, Kayla indicated that she did not

want L.S. to have supervised visits with Schoonover at Schoonover’s parent’s

house. Id. Through this litigation, Schoonover was, by February of 2018, able to

secure a temporary order from the Juvenile Division that gave him the right to

supervised visits with L.S. at Harmony House. January 4 Tr. 70-71.

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       {¶33} However, according to Schoonover’s testimony, he never availed

himself of his right to visit with L.S. at Harmony House. Id. at 99. Further, there

is no testimony from Schoonover that indicates that he attempted to communicate

with or contact L.S. during this timeframe. Thus, even if Kayla unjustifiably

interfered with Schoonover’s visitation in December of 2017, this interference does

not explain Schoonover’s failure to attempt to contact L.S. during this timeframe.

See In re K.D., 6th Dist. Lucas No. L-09-1302, 2010-Ohio-1592, ¶ 21-22. (holding

that a letter from the mother’s attorney that cancelled visitation was not justifiable

cause for a father’s failure to attempt to make contact with his child.). This alleged

interference also does not explain why Schoonover failed to exercise his visitation

rights with L.S. after the temporary order was in place.

       {¶34} Fourth, Schoonover points to a series of texts that Kayla exchanged

with his father, Robert Schoonover (“Robert”), in July of 2018. These texts read,

in their relevant part, as follows:

       [Kayla]: In order to reinitiate visits with you and [your wife], my
       attorney recommends that you take [L.S.] to dinner before we set
       in stone more or less. So, if you want to take him either tomorrow
       evening * * * or * * * next Tuesday * * * if either of those work
       for you.

       [Robert]: Tomorrow will be fine Thanks

       [Kayla]: Ok you can pick him up at our house at 5 then.

       [Robert]: Ok



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       [Kayla]: Also, we do not want [L.S.] speaking with [Schoonover],
       FaceTime, or on the phone etc, and conversation about him
       should not take place. We are trying to get visitation established
       for you and [your wife], and it’s not about [Schoonover]. Also, no
       negative comments about anyone in our family. We don’t talk
       about you guys and expect the same. And we just ask to know
       where [L.S.] will be.

Ex. 7. Schoonover asserts that these indicate that Kayla was interfering with

Schoonover’s contact with L.S.

       {¶35} However, on cross-examination, Robert testified that this statement

meant that he was not to initiate contact with Schoonover while he (Robert) was

visiting with L.S. May 6 Tr. 93. Robert also affirmed that Kayla’s intention was

“not to make it easy on [Schoonover]” because he “had to step up to the plate and

do his own part as a dad * * *.” Id. Thus, the evidence at the hearing indicates that

these texts appear to be directed at Robert’s conduct during his visits with L.S. and

not a restriction on Schoonover’s ability to contact L.S. of his own volition.

       {¶36} Fifth, Schoonover points to the fact that he was incarcerated in April

of 2018 and was in rehabilitation in New York in between May of 2018 and August

of 2018. He argues that he could not have visited L.S. during these timeframes even

with the temporary order in place. However, this argument belies the fact that

Schoonover was not required to visit L.S. physically in order to have more than de

minimis contact with his son. See Matter of Adoption of Hupp, 9 Ohio App.3d 128,

130, 458 N.E.2d 878, 882 (8th Dist. 1982) (holding that “[p]hysical visitation is not



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necessary to preserve a parent’s interest and a parent’s right to retain parental

status.”).

       {¶37} “Ohio courts have consistently held that incarceration alone is not a

justifiable reason for failing to communicate with one’s child.” In re Adoption of

T.M., 6th Dist. Sandusky No. S-09-010, 2009-Ohio-5194, ¶ 17.               However,

Schoonover admitted that he did not attempt to contact L.S. while he was

incarcerated. January 4 Tr. 4. See In re Adoption of R.M.Z., 2d Dist. Montgomery

No. 23511, 2009-Ohio-5627, ¶ 21 (holding that “[i]ncarceration of a parent, absent

additional circumstances, does not justify failure to communicate with a child,

because it does not preclude letter-writing and phone calls.”).

       {¶38} Similarly, Schoonover testified that, while he was in rehabilitation, he

did not call, text, or communicate with L.S. even though his rehabilitation program

did not limit these kinds of contact. January 4 Tr. 38, 40. He also stated that he did

not send letters, gifts, or packages to L.S. during this time. Id. at 38. Even after

Schoonover returned from rehabilitation, he admitted that he did not visit with L.S.

at Harmony House; did not call, text, or communicate with L.S.; and did not send

letters, packages or gifts to L.S. Id. at 37-38, 40. Further, there is no evidence in

the record that indicates that Kayla or Bradley interfered with Schoonover’s ability

to visit L.S. in between August of 2018, when Schoonover returned from

rehabilitation, and October of 2018, when Bradley filed his petition for adoption.



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       {¶39} After considering the evidence in the record, we do not find any

indication in the record that the trial court’s judgment is against the manifest weight

of the evidence. The determination of the trial court on this matter is based upon

some competent, credible evidence. Given the specific facts of this case, we cannot

conclude that the trial court erred in determining that Schoonover’s consent was not

necessary for this adoption to proceed. For this reason, Schoonover’s second

assignment of error is overruled.

                                     Conclusion

       {¶40} Having found no error prejudicial to the appellant in the particulars

assigned and argued, the judgment of the Probate Division of the Hancock County

Court of Common Pleas is affirmed.

                                                                 Judgment Affirmed

SHAW, P.J., and PRESTON, J., concur.

/hls




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