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In re Adoption of D.J.S.

Court of Appeals of Ohio, Fifth District, Tuscarawas

November 13, 2017

IN THE MATTER OF: THE ADOPTION OF D.J.S.

         Appeal from the Tuscarawas County Court of Common Pleas, Probate Divison, Case No. 17 AD 03082

          For Plaintiff-Appellant-H.F. A. JENNA HOKES

          For Defendant-Appellees JASON L. JACKSON

          JUDGES: Hon. W. Scott Gwin, P.J., Hon. Craig R. Baldwin, J., Hon. Earle E. Wise, J.

          OPINION

          BALDWIN, J.

         {¶1} Appellant mother appeals the July 6, 2017 decision of the Tuscarawas County Court of Common Pleas, Probate Division, finding that her consent to the adoption of her son, D.J.S., was not necessary because she failed to provide support and maintenance for one year prior to the date the petition for adoption was filed. The biological father did not appeal the adverse decision terminating his parental rights.

         {¶2} This appeal is expedited and is being considered pursuant to App.R.11.2(C).

         STATEMENT OF THE FACTS AND THE CASE

         {¶3}Appellees sought and were granted custody of D.J.S. by the Harrison County Juvenile Court in 2008. The order granting Appellees custody stated "[t]he [Appellees] do not wish child support at this time as it would assist both natural parents to get on their feet financially without this additional burden. Further, the [Appellees] will add the minor child to their health insurance thus removing him from public assistance." The Appellees did not seek support from Appellant at any time and Appellant made no support payments.

         {¶4} On March 9, 2017, Appellees filed a petition for adoption of D.J.S. alleging that Appellant's consent to the adoption was unnecessary because Appellant 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. (R.C. 3107.07) Appellant submitted a written objection to the petition for adoption on March 31, 2017.

         {¶5} The Trial Court conducted a hearing on June 8, 2017 limited to the determination of whether Appellant's consent was unnecessary because of a failure to provide maintenance and support for D.J.S. for the year prior to the filing of the Petition for Adoption. The Appellees focused on maintenance and support and abandoned the allegation that Appellant failed to provide more than de minimis contact because they agreed that Appellant had regular bi-weekly and overnight visitation with D.J.S. during which time she provided food, shelter and care to D.J.S. Appellant did not receive any financial contribution from Appellees to maintain her son on the overnight visits and D.J.S. returned to Appellees' home without any indication that he had not been fed or received appropriate supervision. Appellant also testified to engaging in appropriate activities with D.J.S. during the visitation as well as taking him to see other relatives.

         {¶6} On July 6, 2017 the Trial Court decided that Appellant's consent to the adoption was unnecessary because Appellant failed without justifiable cause 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 the filing of the adoption petition. The Court found that "[f]rom time to time, appellant has exercised visitation with her son and has done so in the year prior to the filing of this petition." (Judgment Entry, p. 2, para. 4) With regard to support and maintenance, the Trial Court concluded that "Neither party has made any meaningful attempt to provide adequate support for their son since he was placed in the custody of [Appellees]." Appellant's contention that the order granting legal custody to the Appellees did not require payment of support and thus excused her failure to make payment was rejected by the Trial Court as justifiable cause for failing to provide support because "[e]ven though no support was ordered by the Court in 2008, support by the biological parents is still mandated by ORC 2919.21." The Court noted that Appellant was not so destitute that she could not pay any support and that she had no justifiable cause for failing to do so.

         {¶7} The Trial Court conducted a second hearing and decided, on July 27, 2017, that adoption was in the best interests of the child and issued a final Decree of Adoption.

         {¶8} Appellant appeals the July 6, 2017 Decision and asserts the ...


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