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In re Adoption of X.A.F.

Court of Appeals of Ohio, Fourth District, Hens

January 12, 2018

IN THE MATTER OF: THE ADOPTION OF X.A.F.

         CIVIL CASE FROM COMMON PLEAS COURT, PROBATE DIVISION

          Steven L. Story, Pomeroy, Ohio, for Appellant. [1]

          DECISION AND JUDGMENT ENTRY

          Peter B. Abele, Judge.

         {¶ 1} Latesha Klein, respondent below and appellant herein, appeals the Athens County Common Pleas Court, Probate Division, judgment that determined, pursuant to R.C. 3107.07(A), that her consent to her child's adoption is not required. In particular, the trial court found that, for at least one year immediately preceding the filing of the adoption petition, appellant failed, without justifiable cause, to have more than de minimis contact with her child.

         {¶ 2} Appellant raises the following assignments of error for review:

FIRST ASSIGNMENT OF ERROR:
"THE PROBATE COURT ERRED BY FINDING THAT
APPELLANT'S FAILURE TO HAVE CONTACT WITH THE MINOR CHILD DURING THE LOOK BACK PERIOD WAS WITHOUT JUSTIFIABLE CAUSE "
SECOND ASSIGNMENT OF ERROR:
"THE PROBATE COURT ERRED BY FINDING THAT APPELLANT'S FAILURE TO PAY SUPPORT DURING THE LOOK BACK PERIOD WAS WITHOUT JUSTIFIABLE CAUSE "
THIRD ASSIGNMENT OF ERROR:
"THE PROBATE COURT ERRED IN ISSUING A BEST INTEREST HEARING NOTICE WITHOUT NOTIFYING APPELLANT OF THE HEARING "
FOURTH ASSIGNMENT OF ERROR:
"MISCELLANEOUS ISSUES WHICH CONTRIBUTED TO APPELLANT'S DIFFICULTIES IN THE HEARINGS BELOW WHICH, WHEN COMBINED WITH THE OTHER ASSIGNMENTS OF ERROR ARE SUFFICIENT TO JUSTIFY REVERSAL."

         {¶ 3} Elizabeth L. Fisher, petitioner below and appellee herein, is the wife of Brandan A. Fisher, X.A.F.'s father and custodian. On December 8, 2016, appellee filed a petition to adopt her stepchild and alleged that the biological mother's (appellant's) consent is not required because, for a period of at least one year immediately preceding the filing of the adoption petition, she has failed, without justifiable cause, to: (1) have more than de minimis contact with the child and (2) provide for the child's maintenance and support as required by law or judicial decree.

         {¶ 4} On February 9 and April 6, 2017, the Athens County Probate Court (trial court) held hearings on the issue of whether appellant's consent is necessary for the adoption to proceed. The court heard testimony from the biological parents, the petitioner, the maternal grandmother and the adoption assessor.

         {¶ 5} At the hearing, the child's father testified that after X.A.F. s October 24, 2012 birth, father, appellant and the child lived at father's parents' Meigs County home until April 2013, when appellant said that "she had to go get her life together." At that point, appellant moved to Kentucky and father had physical custody of the child. Father stated that, at first, appellant stayed in contact with him, but that May 2, 2013 is the last time father spoke with appellant when she signed a document that requested father have temporary custody of the child for six months. Father further testified that, after he hired an attorney to request full custody due to appellant's inappropriate child care and her drug addiction, the Meigs County Juvenile Court issued temporary orders that (1) designated father as the temporary residential parent and legal custodian, and (2) awarded appellant supervised visitation based upon the parties' agreement. Appellant subsequently filed a motion in the Juvenile Court to request visitation. Apparently, father appeared at the hearing, but appellant did not. Because appellant's whereabouts and activities were unknown, the juvenile court suspended appellant's previously ordered parenting time and awarded father full custody. At the adoption hearing, father also testified that appellee (Petitioner Elizabeth Fisher) began residing with him May 24, 2014, and the couple married October 22, 2016. Since he and appellee have been together, father explained that appellee has acted as a mother to the child and that he and appellee now have a child together. Father also stated that he understood that if the adoption is granted, appellee will have the same custody rights and obligations that he has.

         {¶ 6} Father further testified that (1) from December 8, 2015 to December 8, 2016, appellant did not visit, call, write, send cards or gifts; (2) appellant last visited X.A.F. when he was approximately one year old; (3) although his phone number changed in April 2017, his parents lived in the same location from 2015 to 2016 as when appellant and father resided there and that appellant had his parents' phone number; (4) his father worked at the same location for 30 years and appellant knew that location; and (5) the visitation entry stated that appellant should either contact the father or return to court "And she had all the rights to go back to court, and my address is in the court system, and if she wanted me to go back to court they will send me a court notice and we'll go back through there again."

         {¶ 7} Appellant, who did not have counsel at the hearing, testified that when she attempted to contact father, "he had shut off all contact with me, uh, he had his family, uh, the godmother of my son, he uh, basically told her if she had any contact with me or let my son, let her see, you know, Brandan was letting her, you know, watch my son." Appellant also testified that once when she arrived late to a supervised visitation, father said "you're late and we're taking him to the zoo." After that, father's number and address changed and she could not locate him or her child. Appellant also claimed that she had records of attempted contact through Facebook and that she had gifts for her son at her mother's home.

         {¶ 8} The evidence also reveals that on August 10, 2016, the Meigs County Juvenile Court ordered appellant to pay $168.95 per month for child support. However, father stated that, from December 8, 2015 to December 8, 2016, he received no support from appellant. Instead, he received a one-time $1, 200 payment days before the February 9, 2017 consent hearing. Appellant also testified concerning the child support issue and stated that in August 2016 she had been ordered to pay child support, and "I explained to the judge I was pregnant at high-risk with twins, and they're in the NIC Unit right now, and uh, I have made a payment just recently. A current payment of $1200.00 and I am not behind on any child support right now. I did that because I wasn't, you know, I was refused visitation for a year." It is, however, uncontroverted that appellant paid no support between December 2015 and December 2016.

         {¶ 9} Appellant's mother, Cynthia Klein, testified that she had her son (appellant's brother) send a message to father's mother about going to a birthday party on October 23, 2015. She also stated that on December 22, 2015, they sent a message to father's mother and asked for the new number, but his mother said that she did not know ...


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