Probate Appeal from Common Pleas Court Trial Court Case No. 12-ADP-110
MARK D. WEBB, Atty. Reg. #0085089, John D. Smith Co., LPA, Attorney for Appellant
DAVID L. McNAMEE, Atty. Reg. #0068582, McNamee Law Offices, Attorney for Appellee
(¶ 1} D.Q. ("Mother") appeals from the trial court's judgment entry finding her consent to the adoption of her daughter R.L.H. not required. The trial court reached this conclusion after finding that Mother had failed without justifiable cause to have more than de minimis contact with her daughter for at least one year immediately preceding an adoption petition filed by L.H., the new wife of the child's father, C.H. ("Father"), who has legal custody.
(¶ 2} Mother advances five related assignments of error on appeal. First, she contends the trial court erred in finding her consent to the adoption not required. Second, she claims the trial court erred in finding she failed to have contact or communicate with R.L.H. for at least one year preceding the adoption petition. Third, she argues that the trial court erred in shifting the burden of proof to her regarding whether justifiable cause existed for her failure to have contact with her daughter. Fourth, she asserts that the trial court erred in applying an inappropriate "illusory" test when analyzing the justifiable-cause issue. Fifth, even if use of the "illusory" test was appropriate, she contends the trial court erred in applying it.
(¶ 3} The record reflects that Mother gave birth to R.L.H. in May 2008. Mother and Father separated in October 2008. Father received legal custody of the child, and Mother received parenting time. In October 2009, Mother began a relationship with another man, K.Q., whom she later married. Mother admits that K.Q. was physically and emotionally abusive to her. This abuse caused Father to refuse to allow Mother to exercise parenting time in her home. In November 2010, Mother and Father mutually agreed to a court order granting Mother parenting time once a week for two hours at Erma's House, a supervised visitation center.
(¶ 4} Between January 2011 and July 2011, Mother exercised parenting time at Erma's house. Mother and K.Q. permanently separated in April 2011, and later divorced, after she was hospitalized due to his physical abuse. On August 4, 2011, Mother asked Erma's House to suspend her weekly parenting time with R.L.H. for thirty days. Erma's House agreed and told Mother to contact the center by September 7, 2011, if she wished to resume her visits. Mother failed to do so, and Erma's House closed her case.
(¶ 5} On October 1, 2012, L.H. (who Father had married in July 2011), petitioned to adopt R.L.H. Based on the evidence presented during a March 25, 2013 hearing, the trial court found that "[a]fter Erma's House closed the case, and between October 1, 2011 and October 1, 2012, [Mother] did not exercise any parenting time with R.L.H." (Doc. #29 at 3). The trial court further found that Mother "did not see, speak with, or correspond with R.L.H. during this time period." (Id.). Pursuant to R.C. 3107.07(A), the trial court determined that Mother's consent to the adoption was not required because she had failed without justifiable cause to have more than de minimis contact with R.L.H. for the one year immediately preceding the adoption petition. (Id. at 8). This appeal by Mother followed.
(¶ 6} The statute at issue, R.C. 3107.07(A), provides that consent to adoption is not required of 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 petition or the placement of the minor in the home of the petitioner.
(¶ 7} The current statute was amended in 2008, and has been in effect since April 7, 2009. Prior to the amendment, R.C. 3107.07(A) stated that consent to adoption would not be required of a parent of a minor when "the parent has failed without justifiable cause to communicate with the minor * * * 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." Am.Sub.H.B. No. 7, 2008 Ohio Laws 172 (effective April 7, 2009).
(¶ 8} "By changing the standard from 'communicate, ' which could imply a single contact, to 'more than de minimis contact, ' which seems to imply more than a single contact, the Legislature indicated its intent to require more effort from the parent to have contact and communication with the child." In re J.D.T., 7th Dist. Harrison No. 11 HA 10, 2012-Ohio-4537, 978 N.E.2d 602, ¶ 9.
(¶ 9} "Because cases such as these may involve the termination of fundamental parental rights, the party petitioning for adoption has the burden of proving, by clear and convincing evidence, that the parent failed to [have more than de minimis contact] with the child during the requisite one-year period and that there was no justifiable cause for the failure of [contact]." (Citations omitted.) In re Adoption of Holcomb, 18 Ohio St.3d 361, 368, 481 N.E.2d 613 (1985). "Once the petitioner has established this failure, the burden of going forward shifts to the parent to show some facially justifiable cause for the failure. * * * The burden of proof, however, remains with the petitioner." In re A.N.B., 12th Dist. Preble No. CA2012-04-006, 2012-Ohio-3880, ¶ 10, citing In re Adoption of Bovett, 33 Ohio St.3d 102, 104, 515 N.E.2d 919 (1987).
(¶ 10} "While R.C. 3107.07(A) has since been amended to add the 'de minimis contact' language, the burden of proof has remained the same." (Citation omitted.) J.D.T. at ¶ 11. The burden of clear and convincing evidence "is that measure or degree of proof which is more than a mere 'preponderance of the evidence, ' but not to the extent of such certainty as is required 'beyond a reasonable doubt' in criminal cases, and which will produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to ...