[Cite as In re Adoption of K.M.R., 2018-Ohio-1265.]


                                       COURT OF APPEALS
                                   MUSKINGUM COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

                                                              JUDGES:
IN THE MATTER OF:                                     :       Hon. John W. Wise, P.J.
                                                      :       Hon. W. Scott Gwin, J.
THE ADOPTION OF K.M.R.                                :       Hon. William B. Hoffman, J.
                                                      :
                                                      :
                                                      :       Case No. CT2017-0049
                                                      :
                                                      :
                                                      :       OPINION




CHARACTER OF PROCEEDING:                                  Appeal from the Muskingum County
                                                          Probate Court, Case No. 20154029


JUDGMENT:                                                 Affirmed



DATE OF JUDGMENT ENTRY:                                   April 2, 2018



APPEARANCES:

For Appellant                                             For Appellee

MILES D. FRIES                                            KYLE DAUGHERTY
Gottlieb, Johnston, Beam                                  46 East Berkley Street
&Dal Ponte, P.L.L.                                        Zanesville, OH 43701
320 Main Street, P.O. Box 190
Zanesville, OH 43702-0190
[Cite as In re Adoption of K.M.R., 2018-Ohio-1265.]


Gwin, J.,

        {¶1}    Appellant appeals the June 30, 2017 judgment entry of the Muskingum

County Court of Common Pleas, Probate Division, which found, pursuant to R.C.

3107.07(A), the consent of the father/appellee K.D. was required for the adoption of the

minor child.

                                          Facts & Procedural History

        {¶2}    Appellant is the great aunt and legal custodian of the minor child, K.R. On

November 15, 2011, K.R. was placed in the legal custody of appellant by the Muskingum

County Court of Common Pleas, Juvenile Division. Appellee is the biological father of

K.R. The biological mother of the child appeared at the hearing, but is not a party to this

appeal.

        {¶3}    On October 16, 2015, appellant filed a petition to adopt K.R. Appellant

alleged appellee’s consent for the petition to adopt was not required because appellee

failed, without justifiable cause, to provide more than de minimis contact with the child for

a period of at least one year immediately preceding either the filing of the adoption petition

or the placement of the child in her home. On October 28, 2015, appellee submitted a

letter to the trial court, objecting to the adoption.

        {¶4}    The trial court held the adoption hearing on February 11, 2016. At the

hearing, appellant testified she is K.R.’s great aunt. In June of 2011, the Muskingum

County Juvenile Court granted appellant temporary custody of both K.R. and her

biological mother, who was a minor at the time. K.R.’s mother was removed from

appellant’s home in July of 2012 and placed in foster care. The juvenile court awarded

legal custody of K.R. to appellant in November of 2011.
Muskingum County, Case No. CT2017-0049                                                    3


       {¶5}   Appellant testified that Exhibit A is the visitation agreement signed by

appellant, appellee, and the biological mother of K.R. Exhibit A is an entry from the

juvenile court granting legal custody of K.R. to appellant. It also contains visitation

stipulations for both K.R.’s mother and appellee. Exhibit A provides specific supervised

parenting times for K.R’s mother. As to appellee, Exhibit A states, “the parties agree that

[appellant] and the Father shall cooperate towards increasing his parenting time in the

best interest of the minor child” and “the parties agree to terminate protective supervision

of Muskingum County Children’s Services.”         Appellant testified she interpreted this

agreement as requiring appellee have only supervised visitation due to his record of

domestic violence and his adjudication as a Tier II sexual offender.

       {¶6}   Appellant stated that initially, appellee visited K.R. at her home two times

per week for two hours. This increased to three days per week, two hours per visit, after

the juvenile court awarded legal custody to appellant.       Further, that appellee came

regularly and interacted well with K.R. Between April 2013 and March 2014, appellant

allowed appellee to have visitations at his mother’s home with his mother supervising.

After March of 2014, appellee again returned to supervised visits at appellant’s home at

his suggestion.    Appellant testified that while appellee came to most visitations, he

cancelled a few.

       {¶7}   Appellant testified appellee last saw K.R. in June of 2014 and had not

contacted her to see K.R. or asked about K.R. since June 2014, despite seeing appellant

three times during the last six months for child support hearings.

       {¶8}   In November of 2014, appellant received four text messages from appellee,

each requesting unsupervised visitation with K.R. Appellant testified that, in these text
Muskingum County, Case No. CT2017-0049                                                       4


messages, appellee stated his attorney told him to contact appellant to return to his two

day per week visitation schedule, without supervision. Appellant stated she told appellee

his lawyer could contact her lawyer because she did not have any papers stating appellee

could have unsupervised visitation and told appellee he could come to appellant’s house

to see K.R. like he had been in the past, or not at all. Further, if appellee’s lawyer believed

he could have unsupervised visits, appellee’s lawyer should contact her lawyer and get it

settled. In the text messages, appellant also explained to appellee that he had already

broken the court-ordered visitation by refusing to see K.R. since June of 2014 and, if

appellee had any questions, to have his lawyer contact her lawyer.

       {¶9}   Appellant stated she twice changed her work schedule to accommodate

appellee’s visits, once in August of 2013 and once in December of 2014. Appellant

testified she has not changed her phone number in eleven (11) years.

       {¶10} Appellee testified he went to juvenile court to fill out paperwork for visitation

of K.R. at the end of 2014 or the beginning of 2015, but they sent it back to him because

he filled out something wrong. Appellee stated when he re-did the paperwork again, they

told him he could not get a court-appointed attorney. Appellee testified he withdrew his

first motion because he was told to do so before he could re-file a new motion. Appellee

stated he re-filed the papers several months after he originally attempted to file them.

However, he never heard anything after he re-filed the papers. Several months later,

appellee again grabbed some paperwork to file in domestic relations court; however, he

did not have the money to file them as the filing fee was $100. Appellee testified he never

retained an attorney, but he believes he re-filed the paperwork at least twice. At the
Muskingum County, Case No. CT2017-0049                                                    5


hearing, counsel for appellant presented a copy of the paperwork that showed a filing

date of September 26, 2014.

       {¶11} When asked why he did not visit K.R. after June of 2014, appellee stated

he was mad because the visits were not at his house. According to appellee, the juvenile

court advised him his status as a Tier II sexual offender did not require his visitation be

supervised. Thus, since appellant was not going to allow visitation at his home, he

decided to go to court and let the court decide where and when he could have visitation.

Appellee admitted he saw appellant at several child support hearings and did not ask

about K.R. and did not ask to see K.R. Appellee testified he did not contact appellant

since November of 2014. Appellee stated he did not contact appellant since then because

appellant told him if he had any questions to contact her attorney. Appellee did not believe

contacting appellant would do any good because she probably would not talk to him.

Appellee stated this was his personal belief and he has no documentation showing

appellant would not talk to him. When asked when he last visited with K.R., he stated he

thought it was in December of 2014, but if appellant testified it was June of 2014, it could

have been then.

       {¶12} Both the pleadings of appellant and the testimony of K.R.’s mother at the

adoption hearing established a hearing was set in juvenile court regarding visitation on

February 18, 2016.

       {¶13} The trial court issued a judgment entry on June 30, 2017. The trial court

found appellee’s consent to the adoption is necessary because appellant failed to prove,

by clear and convincing evidence, that appellee’s consent is not required in this case.

The trial court determined appellant did show appellee failed to provide more than de
Muskingum County, Case No. CT2017-0049                                                       6


minimis contact with K.R. for the year in question. However, the trial court found appellant

failed to show that it was without justifiable cause. The trial court stated appellee’s actions

were not, in essence, abandoning the child for the one year period in question.

       {¶14} The trial court found the evidence and testimony presented demonstrated

appellee attempted to have contact with K.R., acted in good faith in those attempts,

contacted appellant to exercise parenting time and, due to a dispute regarding the

supervision requirement and/or location of the visits, no visits occurred. Further, that

because appellee was dissatisfied with appellant’s insistence the visits be supervised in

her home, appellee filed a request in juvenile court to modify visitation and/or grant him

custody. Though no orders were issued by the juvenile court due to the failure of appellee

to correctly file the pleadings, the trial court noted the testimony and evidence established

a hearing was scheduled in juvenile court approximately one week from the date of the

adoption hearing. The trial court also noted appellee’s attempt to seek relief in domestic

relations court.      The trial court found appellee’s “actions demonstrate legitimate,

meaningful, and good faith efforts to arrange visits with his daughter in a reasonably

amicable fashion and then when those failed to make use of the judicial system as it has

been established to afford him a way to exercise his parental rights.” The court thus

found, by clear and convincing evidence, there is justifiable cause for appellee’s failure to

provide more than de minimis contact with K.R. for the one year in question. The trial

court found appellee’s consent was necessary, and dismissed appellant’s adoption

petition.

       {¶15} Appellant appeals the June 30, 2017 judgment entry and assigns the

following as error:
Muskingum County, Case No. CT2017-0049                                                    7


       {¶16} “I. THE TRIAL COURT ERRED IN FINDING THAT PETITIONER FAILED

TO SHOW FATHER’S FAILURE TO COMMUNICATE WITH THE MINOR CHILD WAS

[NOT] JUSTIFIABLE.”

                                                I.

       {¶17} In her assignment of error, appellant argues the trial court erred in finding

that appellant failed to show appellee’s failure to provide more than de minimis contact

was without justifiable cause.

       {¶18} 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, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972). A

parent’s right to raise a child is an essential civil right. In re Murray, 52 Ohio S.3d 155,

556 N.E.2d 1169 (1990). An adoption permanently terminates the parental rights of a

natural parent. In re Adoption of Reams, 52 Ohio App.3d 52, 557 N.E.2d 159 (10th Dist.

1989). 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 child. In re Hayes, 79 Ohio St.3d 46, 679 N.E.2d 680 (1997).

       {¶19} The termination of a natural parent’s right to object to the adoption of his or

her child requires strict adherence to the controlling statutes. In re Adoption of Kuhlmann,

99 Ohio App.3d 44, 649 N.E.2d 1279 (1st Dist. 1994). 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 if the parent of the minor has failed, without justifiable

cause, to provide more than de minimus 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
Muskingum County, Case No. CT2017-0049                                                    8


of at least one year immediately preceding the filing of the adoption petition. R.C.

3107.07(A).

       {¶20} The Ohio Supreme Court articulated a two-step analysis for probate courts

to employ when applying R.C. 3107.07(A). In re Adoption of M.B., 131 Ohio St.3d 186,

2012-Ohio-236, 963 N.E.2d 142. The first step involves the factual question of whether

the petitioner has proven, by clear and convincing evidence, the natural parent failed to

provide for the maintenance and support of the child or failed to have more than de

minimis contact with the child.      Id.   “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.” Id.

The term abuse of discretion connotes more than an error of law or judgment; it implies

that the court’s attitude is unreasonable, arbitrary, or unconscionable. Blakemore v.

Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983).

       {¶21} If a probate court finds a failure to have more than de minimis contact, the

court proceeds to the second step of the analysis and determines whether justifiable

cause for the failure has been proven by clear and convincing evidence. In re Adoption

of M.B., 131 Ohio St.3d 186, 2012-Ohio-236, 963 N.E.2d 142. The question of whether

justifiable cause for the failure to contact the child has been proven in a particular case,

“is a determination for the probate court and will not be disturbed on appeal unless such

determination is against the manifest weight of the evidence.” Id. This is because the

probate court is in the best position to observe the demeanor of the parties, to assess

their credibility, and to determine the accuracy of their testimony. In re Adoption of

Holcomb, 18 Ohio St.3d 361, 481 N.E.2d 613 (1985). We note that a judgment supported
Muskingum County, Case No. CT2017-0049                                                        9


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., 54 Ohio

St.2d 279, 376 N.E.2d 578 (1978). 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 trial court. Myers v. Garson, 66 Ohio St.3d 610, 614 N.E.2d

742 (1993). The underlying rationale for giving deference to the findings of the trial court

rests with the knowledge that the trial judge is best able to view the witnesses and observe

their demeanor, gestures, and voice inflections, and use these observations in weighing

the credibility of the proffered testimony. Seasons Coal Co. v. City of Cleveland, 10 Ohio

St.3d 77, 461 N.E.2d 1273 (1984).

       {¶22} As explained above, appellant has the burden to prove, by clear and

convincing evidence, (1) that the natural parent failed to have more than de minimis

contact or failed to provide for the maintenance and support of the child, for the requisite

one year period and (2) that there was no justifiable cause for the failure. In re Adoption

of Holcomb, 18 Ohio St.3d 361, 481 N.E.2d 613 (1985). “No burden is to be placed upon

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

       {¶23} 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 appellant for the one-year period and (2)

the failure is unjustified. If the petitioner meets her burden of proof, then the natural parent

has the burden of going forward with evidence to show some justifiable cause for his or

her failure to support or contact the child. However, the burden of proof never shifts from

the petitioner. In re Adoption of Bovett, 33 Ohio St.3d 102, 515 N.E.2d 919 (1987).
Muskingum County, Case No. CT2017-0049                                                   10


       {¶24} In this case, appellant’s petition for adoption alleged appellee’s consent was

not required because for a period of at least one year immediately preceding the petition’s

filing, appellee failed, without justifiable cause, to provide more than de minimis contact

with the child. The trial court found appellant established, by clear and convincing

evidence, appellee failed to provide more than de minimis contact with the child for the

year in question. However, the trial court found appellant failed to show appellee’s failure

was without justifiable cause.

       {¶25} Upon our review of the record, we find the decision of the trial court that

appellee had justifiable cause for his failure to contact K.R. is not against the manifest

weight of the evidence as there exists some competent and credible evidence supporting

the judgment rendered by trial court. The trial court found appellee attempted to have

contact with K.R. and acted in good faith in those attempts. Both appellant and appellee

confirmed appellee texted appellant in November of 2014 to request visitation with K.R.

and that they disagreed on where the visits would take place and whether they would be

supervised.

       {¶26} Appellant testified it was her understanding from the November 15, 2011

entry and visitation agreement that appellee could only have supervised visitation due to

his record of domestic violence and his adjudication as a Tier II sexual offender. Appellee

testified he believed he could have unsupervised visitation. While the November 15, 2011

entry specifically provides that K.R.’s biological mother shall have visitation at specific

times supervised by appellant, with regards to appellee, the agreement states only that

the parties agree to terminate protective supervision of Muskingum County Children
Muskingum County, Case No. CT2017-0049                                                    11


Services and that appellant and appellee “shall cooperate towards increasing his

parenting time in the best interest of the minor child.”

       {¶27} Appellant testified she told appellee he could come to her house to see K.R.

like he had been in the past, or not at all. Further, that if he believed he could have

unsupervised visitation or had any questions, his lawyer should contact her lawyer and

get it settled. Appellee stated he did not contact appellant directly because appellant told

him if he had any questions to contact her attorney and because he did not believe

contacting her would do any good. Appellee stated this was his personal belief and

testimony, and he had no documentation to show appellant would not talk to him. Further,

appellee testified that since they disagreed on whether he could have unsupervised

visitation, he decided to go to court and let the court decide when and where he could

have visitation.

       {¶28} While appellee and/or his attorney did not contact appellant’s lawyer,

appellee attempted to challenge the custody and/or visitation requirements by filing a

request in juvenile court. Appellee testified he believed he re-filed the paperwork at least

twice, however, no hearing was scheduled because he filled out something wrong.

Further, that he got papers to file a request in domestic relations court, but did not

ultimately file them because he did not have the money to pay the $100 filing fee. The

testimony and evidence establish there was a hearing set regarding visitation in the

juvenile court on February 18, 2016, approximately one week after the adoption hearing.

       {¶29} Here, the trial court obviously chose to believe the testimony of appellee.

As noted above, the trial court is in the best position to observe the demeanor of the

parties, to assess their credibility, and to determine the accuracy of their testimony. In re
Muskingum County, Case No. CT2017-0049                                                  12

Adoption of Holcomb, 18 Ohio St.3d 361, 481 N.E.2d 613 (1985). We may not substitute

our judgment for that of the trier of fact. Pons v. Ohio State Medical Board, 66 Ohio St.3d

619, 614 N.E.2d 748 (1993). From the testimony and the evidence presented, the trial

court could conclude appellee’s failure to maintain more than de minimis contact with K.R.

was justified. See In re Adoption of R.M.C.T., 5th Dist. Fairfield No. 17-CA-13, 2017-

Ohio-5800; In the Matter of the Adoption of K.O.D.K., 5th Dist. Ashland No. 15-COA-039,

2016-Ohio-1003. Moreover, as we have previously noted, “[n]o burden is to be placed

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

In re D.N.O., 5th Dist. Stark No. 2012-CA-00239, 2013-Ohio-2512.

       {¶30} Based on the foregoing, we overrule appellant’s assignment of error. The

June 30, 2017 judgment entry of the Muskingum County Court of Common Pleas, Probate

Division, is affirmed.



By Gwin, J., and

Wise, John, P.J., concur

Hoffman, J., dissents




WSG:clw 0313
Muskingum County, Case No. CT2017-0049                                                  13

Hoffman, dissents

      {¶31} I respectfully dissent from the majority opinion. My reasons follow.

      {¶32} In its June 30, 2017 Entry, the trial court stated:

             Father attempted to have contact with [the child] and acted in good

      faith in those attempts.      It is uncontroverted that Father contacted

      [Appellant] to exercise parenting time with his child, however, due to a

      dispute regarding the supervision requirement and/or location of the visits

      no visits occurred. Dissatisfied with [Appellant’s] insistence that the visits

      be supervised in her home the Father did in fact file a request in Juvenile

      Court to modify the visitation and/or grant him custody. In that Father,

      acting pro se, purportedly failed to correctly file all necessary pleadings no

      hearing and/or orders were issued by the Juvenile Court to date. While

      unclear, the testimony established that in fact a Mediation hearing was

      scheduled in Juvenile Court approximately one week from this hearing date.

      Dissatisfied with the lack of timely results in the Juvenile Court Father even

      attempted to seek relief in the Muskingum County Domestic Relations Court

      to effectuate seeing his child, to no avail. Clearly Father’s actions

      demonstrate legitimate, meaningful and good faith efforts to arrange visits

      with [the child] in a reasonably amicable fashion and then when those failed

      to make use of the judicial system as it has been established to afford him

      a way to exercise his parental rights. Therefore, the Court finds by clear

      and convincing evidence that there is justifiable cause for Father’s failure to
Muskingum County, Case No. CT2017-0049                                                    14


       provide more than de minimis contact with minor for the one year in

       question.

       {¶33} I disagree with the trial court’s conclusion, and find Appellee’s failure to

provide more than de minimis contact with the child was without justifiable cause.

       {¶34} Pursuant to the juvenile court’s November 15, 2011 order, which awarded

legal custody of the child to Appellant, Appellee was granted supervised parenting time.

Appellee initially visited the child three times per week at Appellant’s home. Between

April, 2013, and March, 2014, Appellant allowed Appellee to have visitations at his

mother’s home with his mother supervising. When Appellee’s mother was no longer able

to supervise the visits, Appellee again returned to supervised visits at Appellant’s home.

Appellee visited regularly until he was released from probation after which time he began

cancelling visits. His last visit with the child was in June, 2014.

       {¶35} Appellee told the trial court the visits did not stop because he did not want

to see the child. Rather, Appellee felt once he had his own place and a driver’s license,

he “should be able to visit in my own house because – just ‘cause I’m a registered sex

offender don’t mean I can’t have visitation by myself.” Tr. at 61. When the trial court asked

Appellee if the visits stopped for the reason Appellant stated, Appellee responded:



              No. I – I pretty much – I was mad because the visits wasn’t going to

       be able to be at my house. After – I mean, I did agree and I – it was my

       idea to go back to [Appellant’s], but I figure I was doing better and my license

       and my own place, I should be able to take my child there. And since she

       wasn’t going to allow that, pretty much they was supposed to stay at
Muskingum County, Case No. CT2017-0049                                                   15


       [Appellant’] and then I got mad and pretty much we was – I was like, I’ll just

       go to court and try there.” Id. at 62-63.



       {¶36} Appellee filed paperwork in juvenile court in September, 2014, seeking to

modify the visitation order and/or be granted custody of the child. The paperwork was

returned to Appellee as it was not properly completed.         Appellee never refiled the

paperwork as he did not have the filing fee.

       {¶37} When Appellee contacted Appellant requesting unsupervised visitation in

November, 2014, Appellant advised him she would not permit unsupervised visitation as

she had not received any documentation from the juvenile court advising her such was

permitted. Appellant instructed Appellee to have his attorney contact her attorney, and

informed him he could continue supervised visits with the child at her home. Appellee

made no further requests to see the child.

       {¶38} I find the fact Appellee was attempting to modify his visitation in juvenile

court was not justifiable cause for failing to provide more than de minimis contact with the

child. Appellee acknowledged the paperwork was never filed because he did not have

the filing fee. Without filing the necessary paperwork, the juvenile court had nothing to

rule on and a modification was not going to occur. Furthermore, there was no evidence

Appellant hindered Appellee’s ability to exercise his parenting time. Appellee could have

visited the child, albiet under Appellant’s supervision, but did not do so.       Appellee

acknowledged he stopped the visits because he was mad as he felt he should be able to

visit with the child in his own home.      I also find the fact Appellee did not like the
Muskingum County, Case No. CT2017-0049                                               16


arrangement and was “mad” about it was not justifiable cause for failing to provide more

than de minimis contact with the child.

      {¶39} Accordingly, I find the trial court’s determination Appellee’s consent was

necessary was against the manifest weight of the evidence.
