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In re Adoption of S.S.

Court of Appeals of Ohio, Third District, Van Wert

November 27, 2017


         Appeal from Van Wert County Common Pleas Court Probate Division Trial Court No. 20164016

          Gregory A. Grimslid for Appellant.

          Thomas Luth for Appellee.


          WILLAMOWSKI, J.

         {¶1} 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.

         Facts and Procedural History

         {¶2} SS is the daughter of Michael and Stephanie L. Hogenkamp ("Stephanie").[1] 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.

         {¶3} 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. Tr. 26-27.

         {¶4} 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.

         {¶5} 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.

         {¶6} 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.

         {¶7} 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.

         {¶8} 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.

         {¶9} 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. 10.

         {¶10} 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.

         {¶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. Id.

         {¶12} 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. Id.

         {¶13} On May 12, 2017, Michael filed a notice of appeal. In his appellate brief, he raises the following four assignments of error:

         First ...

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