Court of Appeals of Ohio, Third District, Van Wert
IN RE: THE ADOPTION OF S.S. MICHAEL E. BRUNSWICK - APPELLANT
from Van Wert County Common Pleas Court Probate Division
Trial Court No. 20164016
Gregory A. Grimslid for Appellant.
Luth for Appellee.
Father-appellant Michael E. Brunswick ("Michael")
appeals the judgment of the Probate Division of the Court of
Common Pleas of Van Wert County for finding that
Michael's consent was not necessary for his daughter, SS,
to be adopted by SS's mother's husband, Wesley A.
Sweigart ("Sweigart"). On October 31, 2016,
Sweigart submitted a petition to adopt SS that alleged
Michael's consent was not necessary for this adoption,
claiming that Michael had not had more than de minimis
contact with SS for one year prior to the filing of this
petition. For the reasons set forth below, the judgment of
the lower court is reversed.
and Procedural History
SS is the daughter of Michael and Stephanie L. Hogenkamp
("Stephanie"). Doc. 1. SS has lived with her mother,
Stephanie, in Van Wert County since May 1, 2015. Tr. 2-3.
Throughout SS's childhood, Michael has paid child support
pursuant to a court order that was issued in Mercer County.
Doc. 9. However, no court order was issued that governed
Michael's visitation rights. Tr. 3, 7. Rather, Michael
worked out his schedule for visitation through verbal
agreements with Stephanie. Tr. 4, 8. According to the
testimony of both parties, Michael was able to visit SS
regularly through the fall of 2015. Tr. 4. In 2015, however,
Stephanie moved in with Wesley Sweigart
("Sweigart"), who is now her husband, and is the
petitioner in this case seeking to adopt SS. Tr. 31. Doc. 1.
Shortly after Stephanie moved in with Sweigart, Michael's
pattern of visitation began to change. Tr. 4, 26. At this
point, Stephanie's description of events begins to
contradict Michael's description of events. Tr. 4, 27,
52. At trial, each party provided different reasons for why
Michael's pattern of regular visitation was interrupted.
Tr. 4, 27.
When Michael testified, he began by explaining that he and
Stephanie had no formal court order governing his visitation
rights. Tr. 25-26. Initially, he and Stephanie had a verbal
agreement that he could see SS "whenever [he] wanted to
see her." Tr. 26. In 2014, however, Michael got a
trucking job that required him to be gone for up to thirty
days at a time. Tr. 26. While he had this job, he would take
SS for the week each month in which he was not traveling for
his job. Tr. 26. In 2015, he got a job where he worked daily
in Waynesfield, Ohio. Tr. 26. During this time, he visited SS
frequently during the week and on weekends as SS and
Stephanie lived under two miles away from his house. Tr.
32-33. However, when Stephanie moved to Van Wert in May of
2015 to live with Sweigart, SS began to stay with Michael
every other weekend. Tr. 26-27. He testified that it was
harder to visit SS during the week since she lived in Van
Wert and he lived in Celina. Tr. 32-33. Under this
arrangement, he would get to pick up his daughter every other
Friday and spend time with her over the weekend before
dropping her off at Stephanie's house on Sunday evening.
This pattern of seeing SS every other weekend continued until
the fall of 2015. Tr. 32. Michael testified that he had SS
for the first weekend of October in 2015. He testified that
he had SS for a weekend in November but did not get SS for a
second weekend in November because his weekend fell close to
the Thanksgiving holiday, and Stephanie had family
engagements for SS that weekend. Tr. 26. Michael testified
that he moved to Waynesfield, Ohio in early December. Tr. 29.
Michael also testified that he had SS for a weekend in early
December shortly after he moved to Waynesfield. Tr. 28.
At this point, Michael's attorney introduced a picture of
Michael with SS that had been uploaded onto Facebook on
December 10, 2015. Sweigart's attorney pointed out that
the date on the Facebook page did not indicate that this
picture was taken on that date and could have been taken long
before the date on which the picture was uploaded. Tr. 47-49.
However, Michael explained that this picture was taken in the
house he had moved into in December 2015 and demonstrated
that SS had been with him after October 4, 2015. Tr. 35.
Michael did not get SS for a second weekend in December
because his next scheduled weekend to be with SS fell on
Christmas, and Stephanie would not allow him to take SS over
the holiday. Tr. 26.
Michael then testified that the last time he had SS was the
weekend of January 8-10, 2016. Tr. 27. Michael said that he
was scheduled to get SS on the weekend of January 22-24,
2016. Tr. 26. However, on January 22, 2016, he received a
text message from Stephanie that said he "could not have
her [SS] until I got an attorney." Tr. 26. Michael
subsequently sought legal representation, but this process
was delayed by the fact that he had to save up money to
afford an attorney. Tr. 27. He testified that he did not have
the funds to retain an attorney after he paid for his move to
Waynesfield, Ohio and Christmas presents. Tr. 27.
In between January of 2016 and the hearing, Michael testified
that he had some contact with SS. In May of 2016, he texted
Stephanie on SS's birthday to see if Stephanie would
allow him to talk to his daughter. Stephanie returned his
text with a phone call, and Michael was allowed to speak to
his daughter for five minutes on her birthday. Tr. 29-30. On
Sweetest Day in 2016, Michael also sent a flower to SS at
school. Tr. 33. Stephanie admitted during her testimony that
SS did come home from school one day in 2016 with a flower
and a stuffed animal on Sweetest Day. Tr. 8-9.
By September 2016, Michael had obtained legal representation.
Tr. 27-29. He testified that the process of getting legal
representation was not completed until a payment plan was
worked out with his attorney. Tr. 28. On September 30, 2016,
Michael filed a motion for shared parenting in the Mercer
County Juvenile Court. Tr. 31. This document also requested
an order that would govern visitation going forward. Tr. 31.
Specifically, Michael asked for the right to see his daughter
every other weekend during the school year and to have his
daughter every other week when school was out of session in
the summer time. Tr. 31-32. During her testimony, Stephanie
claimed that she did not receive notice of the Mercer County
action prior to Sweigart filing to adopt SS. Tr. 15. However,
a copy of the filing was introduced during the hearing that
had a timestamp indicating that the motion had been filed on
September 30, 2016. Tr. 32.
When Stephanie testified at the hearing, she presented a
different timeline from the one offered by Michael. Stephanie
testified that the final contact that Michael had with SS was
on October 4, 2015. Tr. 4. Stephanie also testified that the
final time Michael contacted Stephanie was on the day he was
supposed to get SS for his second weekend in October. Tr. 4.
Michael texted Stephanie, saying, "[W]hen am I getting
my daughter." Tr. 9. She responded by telling Michael
that they "would talk when he had a lawyer." Tr.
Stephanie then clarified that comment by saying, "I
didn't say I wouldn't speak to him. I just said that
we weren't going to talk about it right that minute
because he was just being completely rude to me by saying
when am I getting my daughter. We had always referred to her
as ours." Tr. 10. She admitted that she had the ability
to dictate when Michael could see SS. Tr. 10, 11. She
attempted to clarify her statement about Michael getting a
lawyer, saying that this discussion meant that "[w]hen
he got a lawyer * * * he and I would talk. I never said he
couldn't have her [SS]." Tr. 11.
On October 31, 2016-which was one month after Michael had
filed a motion for shared parenting with the Mercer County
Juvenile Court on September 30, 2016-Sweigart filed a
petition to adopt SS. Doc. 1. Tr. 32. The petition claimed
that Michael's consent to the adoption was not necessary,
alleging that Michael had not had more than de minimis
contact with SS for one year prior to the filing of
Sweigart's petition for adoption. Doc. 1. The hearing on
this matter was held on January 4, 2017. Doc. 9. On April 13,
2017, the trial court issued a judgment entry that determined
Michael's consent was not necessary for the adoption of
SS by Sweigart to proceed. Doc. 13. The judgment entry began
with several initial findings. The trial court found that no
allegation was made that Michael failed to provide child
support, that SS received a flower from Michael on Sweetest
Day in 2016, and that Stephanie texted Michael on January 22,
2016, saying that "he could not see the child until he
had an attorney." Id. The trial judge noted
that Michael and his girlfriend, Linessa Falor, testified
that the last date on which SS stayed with Michael was
January 10, 2016. Id. The trial judge also noted
that Stephanie and her husband, Sweigart, testified that the
last time SS stayed with Michael was October 4, 2015.
The trial court then addressed the two key issues that
determined whether Michael's consent was necessary.
First, the trial court found that Michael had not visited SS
since October 4, 2015, determining that Stephanie's
testimony was more credible. Id. Since the action
for adoption was filed by Sweigart on October 31, 2016, the
trial court thus determined that Michael failed to
communicate with SS for one year prior to the filing of the
adoption paperwork, making his consent unnecessary for the
adoption to proceed. Id. The trial court
characterized the Sweetest Day gift and birthday call to SS
to be de minimis contact. Id. Second, the trial
court found that the mother did not cause significant
interference to Michael's ability to visit his daughter.
Id. The trial court further stated that it did not
consider Stephanie's "unusual request" that
Michael get an attorney to be an obstacle that would justify
Michael in not having more than de minimis contact with his
daughter in between October 4, 2015 and October 31, 2016.
On May 12, 2017, Michael filed a notice of appeal. In his
appellate brief, he raises the following four assignments of