[Cite as In re Adoption of E.E.R.K., 2014-Ohio-1276.]




                IN THE COURT OF APPEALS FOR MIAMI COUNTY, OHIO

IN THE MATTER OF:                                        :

        THE ADOPTION OF E.E.R.K.                         :        C.A. CASE NO.          2013 CA 35

                                                         :        T.C. NO.       86114

                                                         :            (Civil appeal from Common
                                                                       Pleas Court, Probate Division)
                                                         :

                                                         :

                                             ..........

                                            OPINION

                         Rendered on the          28th       day of          March        , 2014.

                                             ..........

JAY M. LOPEZ, Atty. Reg. No. 0080819, 18 E. Water Street, Troy, Ohio 45373
     Attorney for Appellant, N.M.

RICHARD HEMPFLING, Atty. Reg. No. 0029986, 15 W. Fourth Street, Suite 100, Dayton,
Ohio 45402
      Attorney for Appellees, R.D.K. and M.A.K.

JONATHAN E. FAULKNER, Atty. Reg. No. 0078359, 7700 N. Main Street, Dayton, Ohio
45415
      Attorney for Appellee, S.M.
                                  ..........

DONOVAN, J.
[Cite as In re Adoption of E.E.R.K., 2014-Ohio-1276.]
        {¶ 1}     Petitioner-appellant N.M. (“N.”) appeals from an order of the Miami County

Court of Common Pleas, Probate Division, granting petitioner-appellees R.D.K. and

M.A.K.’s (hereinafter “the Ks”) petition to adopt a minor child, E.E.R.K. N., the putative

father of E.E.R.K. filed a timely notice of appeal with this Court on October 2, 2013.

        {¶ 2}     N. met petitioner-appellee S.M. (“S.”) in May of 2012, and the two began

dating shortly thereafter. Some time in June of 2012, N. and S. began a sexual relationship.

 In July of 2012, S. and N. discovered that she was pregnant after taking a home pregnancy

test. A genetic test was later performed which confirmed that N. is the biological father of

E.E.R.K. Approximately two or three weeks after the discovery of the pregnancy, S. and

N.’s relationship ended.

        {¶ 3}     Throughout the pregnancy, S. lived at her grandmother’s house. N., only

eighteen at the time of the relationship, lived with his parents at their home. N. had just

graduated from high school and worked full-time at Menard’s, a home improvement store

located in Tipp City, Ohio.         After their relationship ended, S. and N. communicated

primarily via text messages, with the occasional telephone conversation. N. informed S.

that he wanted to keep the child, get married, and possibly join the military in order to

provide for her. S. refused N.’s offer of marriage and began exploring adoption as a

realistic alternative.

        {¶ 4}     During the remainder of the pregnancy, S. and N. sporadically

communicated through text messages. From the beginning of December 2012 until March

6, 2013, when E.E.R.K. was born, S. and N. did not communicate at all. We note that on

February 22, 2013, N. filed a timely application to join the putative father registry.

        {¶ 5}     On March 7, 2013, the day after E.E.R.K. was born, S. filed a pre-placement
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application with the Miami County Probate Court seeking to place the minor child with the

Ks for the purposes of adoption. The trial court held a hearing on March 13, 2013, during

which E.E.R.K. was formally surrendered to the Ks. The trial court also issued a

pre-adoption custody order.

       {¶ 6}    After a home study with the Ks, the trial court filed an entry approving

placement on April 29, 2013. On May 3, 2013, the Ks filed a petition to formally adopt

E.E.R.K. On August 14, 2013, the trial court held a hearing in order to determine whether

the consent of N., the putative father, was necessary to go forward with the adoption. The

trial court issued a decision on September 4, 2013, finding that N.’s consent was not

required for the adoption to be finalized.

       {¶ 7}    It is from this judgment that N. now appeals.

       {¶ 8}    N.’s first assignment of error is as follows:

       {¶ 9}    “THE TRIAL COURT ERRED IN PLACING THE MINOR CHILD IN

THE CARE OF THE PROSPECTIVE ADOPTIVE PARENTS AS THE APPELLANT

TIMELY FILED WITH THE PUTATIVE FATHER REGISTRY.”

       {¶ 10} In his first assignment, N. contends that the trial court erred when it issued

an interlocutory order placing E.E.R.K. in the care of the Ks despite his action of filing a

timely application with the putative father registry. In support of his argument, N. relies on

R.C. 3107.064, which states as follows:

               (A) Except as provided in division (B) of this section, a court shall

       not issue a final decree of adoption or finalize an interlocutory order of

       adoption unless the mother placing the minor for adoption or the agency or
                                                                                             4

       attorney arranging the adoption files with the court a certified document

       provided by the department of job and family services under section 3107.063

       of the Revised Code. The court shall not accept the document unless the

       date the department places on the document pursuant to that section is

       thirty-one or more days after the date of the minor’s birth.

       {¶ 11} Pursuant to the express language in R.C. 3107.064, the statute only applies

when the trial court has issued a final decree of adoption, or in the event the court finalized

an interlocutory order of adoption. By its explicit terms, the statute does not apply when the

trial court has merely issued an initial interlocutory order placing a minor child with

adoptive parents. Therefore, N.’s reliance on R.C. 3107.064 is misplaced since the statute

has no application regarding the trial court’s issuance of an interlocutory order placing

E.E.R.K. in the care of the Ks. The interlocutory order was neither a final decree of

adoption nor an attempt to finalize an interlocutory order of adoption. R.C. 3107.064 has

no effect or bearing on the trial court’s initial order of placement.

       {¶ 12} N.’s first assignment of error is overruled.

       {¶ 13} N.’s second and final assignment of error is as follows:

       {¶ 14} “THE TRIAL COURT ERRED IN FINDING THE FATHER’S CONSENT

UNNECESSARY FOR THE ADOPTION.”

       {¶ 15} In his final assignment, N. argues that the trial court erred when it found that

his consent was unnecessary to complete the adoption, even though he was the putative

father. Specifically, N. contends that the evidence does not support a finding that he

willfully abandoned S. during her pregnancy or that he abandoned or failed to support his
                                                                                            5

minor child.

       {¶ 16} “A parent has a fundamental right to care for and have custody of his or her

child.” In re K. C., 2d Dist. Montgomery No. 22243, 2008-Ohio-2593, ¶ 10. Those rights

are terminated when a child is adopted. Thus, in Ohio, putative fathers must consent to any

adoption unless one of the exceptions set forth in R.C. 3107.07 applies. That statute

provides, in pertinent part, as follow:

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

                ***

                (B) The putative father of a minor if either of the following applies:

                (1) The putative father fails to register as the minor's putative father

       with the putative father registry established under section 3107.062 of the

       Revised Code not later than thirty days after the minor's birth;

                (2) The court finds, after proper service of notice and hearing, that any

       of the following are the case:

                (a) The putative father is not the father of the minor;

                (b) The putative father has willfully abandoned or failed to care for

       and support the minor;

                (c) The putative father has willfully abandoned the mother of the

       minor during her pregnancy and up to the time of her surrender of the minor,

       or the minor's placement in the home of the petitioner, whichever occurs first.

In re B.A.H., 2d Dist. Greene No. 2012-CA-44, 2012-Ohio-4441.

       {¶ 17}     “Any exception to the requirement of parental consent [to adoption] must
                                                                                             6

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

children.” In re Schoeppner, 46 Ohio St.2d 21, 24, 345 N.E.2d 608 (1976). Thus, in order

to determine that N.’s consent is not required, S. and the Ks must demonstrate by clear and

convincing evidence the existence of the exception to the consent requirement. In re

Adoption of Hart, 62 Ohio App.3d 544, 552, 577 N.E.2d 77 (6th Dist.1989). Clear and

convincing evidence requires a level of proof that produces a firm belief as to the facts

sought to be established. In re A.U., 2d Dist. Montgomery Nos. 20583, 20585,

2004–Ohio–6219, ¶ 17.

       {¶ 18} Whether S. and the Ks have met this burden is a determination for the

probate court that will not be disturbed on appeal unless the decision is against the manifest

weight of the evidence. Id. Judgments supported by some competent, credible evidence

going to all the essential elements of the case will not be reversed as being against the

manifest weight of the evidence. C.E. Morris Co. v. Foley Constr. Co., 54 Ohio St.2d 279,

281, 376 N.E.2d 578 (1978). The weight to be given the evidence and the credibility of the

witnesses are primarily for the trier of fact. State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d

212 (1967), paragraph one of the syllabus.    “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.” Steagall v. Crossman, 2d Dist. Montgomery No. 20306, 2004-Ohio-4691, ¶

29.
[Cite as In re Adoption of E.E.R.K., 2014-Ohio-1276.]
        {¶ 19} Initially, we must determine whether clear and convincing evidence was

adduced at the consent hearing which established that N. willfully abandoned S. or the baby,

or failed to care for or support the minor child. As we noted in In re B.A.H., R.C. 3107.07

does not define the term “willfully.” “‘Willful’ is defined as ‘proceeding from a conscious

motion of the will; voluntary. Intending the result which actually comes to pass; designed;

intentional; not accidental or involuntary.’ Black’s Law Dictionary 824 (Abridged Fifth Ed.

1983).” Id., 2d Dist. Greene No. 2012-CA-44, 2012-Ohio-4441, at ¶ 22.

        {¶ 20} On the record before us, it is undisputed that N. never provided any

financial, material, or emotional support during S.’s pregnancy. N. testified that he never

even asked S. if she needed anything. The record establishes that while N. sent S. a series

of text messages inquiring about the status of her pregnancy, the messages were sent

sporadically. With a few exceptions where she did not respond, the record establishes that

S. answered the majority of N.’s inquiries in a timely fashion.

        {¶ 21} Conversely, the record of text messages indicates that N. would wait days in

many instances before responding to S.’s messages, if he answered her at all. One such

instance occurred on November 8, 2012, when S. texted N. to inform him that the baby was

a girl. N. did not respond until late the next night on November 9, 2012, to ask when she

found out. S. responded early the next morning. On the morning of November 12, 2012,

S. sent a text inviting N. to talk to her about the baby, rather than text message. N. did not

respond. The next morning on November 13, 2012, S. sent a message to N. stating that she

needed to talk to him about the baby. N. responded by text message stating, “What is it?

I’m at work right now.” During the ensuing exchange, S. attempted to get N. to call her on

his break or when he got home later that evening. S. received no response from N. until
                                                                                              8

after midnight when he responded that he had fallen asleep.

       {¶ 22} A week later, just after midnight on November 21, 2012, N. sent S. a text

inquiring how she and the baby were doing. S. responded that the baby was very active and

she was getting progressively more uncomfortable as the pregnancy advanced.                 On

November 22, 2012, N. sent a message to S. asking if she would look up some auto parts for

him because she worked at an auto parts store at the time. S. did not respond. Ten days

later on the evening of December 2, 2012, N. sent a text message to S. which stated, “How

ya been?” N. did not attempt to communicate with S. for approximately three months until

March 6, 2013, the day E.E.R.K. was born, when he sent a text requesting S. to speak with

him.

       {¶ 23} We note that very early in the pregnancy, S. went to N.’s house to speak with

him, but he was not home at the time. S. spoke to N.’s mother instead. N.’s mother

offered to let S. come and live at their house. N.’s mother testified that she and her husband

also offered to adopt the child. While S. refused both offers, N. testified that he was

unaware that his mother was going to make either offer. N. testified that he never “pushed

the idea” of S. moving in to his parents’ house and never spoke with S. about the offers.

Additionally, we note that while N. initially stated that he was willing to join the military in

order to support S. and the child, he never pursued the idea. At the time of the consent

hearing, N. was still living at his parents’ house and working at Menard’s.

       {¶ 24} Unlike the putative father in B.A.H. who made every effort to be involved

with and support the mother and child, N.’s sporadic, then non-existent, communication with

S., coupled with a complete lack of financial and emotional support establish that he
                                                                                           9

willfully abandoned S. and the baby, and failed to care for or support the minor child. N.

was not involved with his mother’s offer of home and shelter to S.. N. himself never even

suggested a willingness to raise the child on his own. Additionally, there was no third party

involved who attempted to discourage or thwart N.’s involvement with S. or the baby.

        {¶ 25} When S. attempted to reach out to him regarding the impending birth of their

child, N. made himself available only via text message, and then, only sporadically.

Significantly, N. did not try to communicate with S. for the last three months of her

pregnancy. After the baby was born, N. only sent her a text message. We further note that

even though he was employed, he never offered S. any financial support while she was

pregnant nor after she gave birth to E.E.R.K. By his own admission, N. never gave S. any

emotional support during the pregnancy.

        {¶ 26} We conclude that upon this record, S. and the Ks adduced sufficient

evidence to prove, by clear and convincing evidence, that N. willfully abandoned S. and the

minor child. Additionally, the evidence in the record is sufficient to prove, by clear and

convincing evidence, that N. failed to provide support for the baby. Therefore, we conclude

that the trial court did not err in determining that N.’s consent is not required for the

adoption of the child.

        {¶ 27} N.’s second assignment of error is overruled.

        {¶ 28} Both of N.’s assignments of error having been overruled, the judgment of the

trial court is affirmed.

                                          ..........

FAIN, J. and WELBAUM, J., concur.
                              10

Copies mailed to:

Jay M. Lopez
Richard Hempfling
Jonathan E. Faulkner
Hon. W. McGregor Dixon, Jr.
