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In re Petition for Adoption of A.J.S.

Court of Appeals of Ohio, Seventh District, Mahoning

February 22, 2018

IN THE MATTER OF THE PETITION FOR ADOPTION OF: A.J.S., A MINOR

         Civil Appeal from the Court of Common Pleas, Probate Division of Mahoning County, Ohio Case No. 2016 AD 0004

          For Appellee Attorney Matthew Giannini

          For Appellant Attorney R. Kibler

          Hon. Gene Donofrio, Hon. Cheryl L. Waite, Hon. Carol Ann Robb JUDGES.

          OPINION

          DONOFRIO, JUDGE.

         {¶1} Appellant, W.C., appeals from a Mahoning County Probate Court judgment granting the petition of appellee, J.S., for the adoption of A.S.

         {¶2} Mother gave birth to A.S. on December 27, 2010. Appellant is A.S.'s biological father. Mother and appellant were never married. For some time after A.S.'s birth, appellant exercised regular visitation with her. No parenting order was in place, but mother and appellant worked out a visitation schedule. Appellant also paid child support at that time.

         {¶3} Appellant last visited with A.S. in February 2014. On July 15, 2014, mother married appellee. In December 2014, appellant filed a motion in the Trumbull County Common Pleas Court for the reallocation of parental rights and responsibilities. But appellant did not follow through with the motion and it was dismissed. Appellant also failed to appear at a child support contempt hearing in April 2015. The Trumbull County Court ordered that appellant was to have no companionship at that time.

         {¶4} Appellee filed a petition to adopt A.S. on February 26, 2016. The petition alleged that appellant's consent was not required because (1) he had failed without justifiable cause to provide more than de minimus contact with A.S. for at least one year preceding the filing of the petition and (2) he had failed without justifiable cause to provide for A.S.'s maintenance and support for at least one year preceding the filing of the petition. Appellant filed objections to the proposed adoption.

         {¶5} The probate court held a hearing on August 10, 2016, on the issue of whether appellant's consent to the proposed adoption was required. In a September 27, 2016 judgment entry, the court found that appellant had failed without justifiable cause to provide for A.S.'s maintenance and support for at least one year preceding the filing of the adoption petition. The court noted that the last time appellant made a child support payment was in July 2014 and that appellant had not made any substantial payment to benefit A.S. The court found that a Christmas gift of a stuffed animal and kitchen playset was de minimis and did not fulfill the role of parental support. It further found that appellant attempted to use his mother's (A.S.'s paternal grandmother's) desire to see A.S. and her gifts of money toward A.S.'s benefit to count toward his parental responsibility of child support. Consequently, the court found that appellant's consent was not required for the adoption, pursuant to R.C. 3107.07, and set the matter for a best interest hearing.

         {¶6} Next, the probate court held the best interest hearing. In its June 29, 2017 judgment entry, the court found that appellant has had the opportunity to enforce his rights and has failed to follow through with what was required of him. It found the evidence demonstrated that appellant did not find it important to follow through with maintaining contact with A.S. or with supporting her with the necessities of food, shelter, and clothing. The court also found there was no evidence that the adoption was not in A.S.'s best interest. The court found the step-parent adoption was in A.S.'s best interest.

         {¶7} Appellant filed a timely notice of appeal on July 26, 2017. He now raises two assignments of error.

         {¶8} Appellant's first assignment of error states:

THE TRIAL COURT'S DETERMINATION THAT RESPONDENT-APPELLANT FAILED WITHOUT JUSTIFIABLE CAUSE TO PROVIDE MAINTENANCE AND SUPPORT FOR THE CHILD DURING THE ONE YEAR PERIOD PRIOR TO THE FILING OF THE PETITION FOR ADOPTION WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

         {¶9} Appellant contends the probate court erred in finding that he failed to provide maintenance and support for A.S. without justifiable cause. He asserts the evidence demonstrated that he purchased birthday and Christmas gifts for A.S. each year. Appellant also asserts the evidence demonstrated that he gave his mother money each month to pay for A.S.'s gymnastics classes from November 2014 through December 2015.

         {¶10} Moreover, appellant argues his failure to provide maintenance and support was justifiable because he had lost his job. He was only working "odd jobs" and gave the money he earned to his mother to use for his support and for gymnastics lessons and gifts for A.S. Appellant points out that during this time, he did not have a car or a driver's license.

         {¶11} Pursuant to R.C. 3107.07(A), consent to adoption is not required from:

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.

         {¶12} According to the statute, either a lack of contact or a lack of support can relieve the petitioner from having to obtain the parent's consent.

         {¶13} A probate court has discretion to determine whether a biological parent provided support as contemplated by R.C. 3107.07(A) and the court's judgment will not be reversed absent an abuse of discretion. In re Adoption of M.B., 131 Ohio St.3d 186, 2012-Ohio-236, 963 N.E.2d 142, ¶ 21. Abuse of discretion connotes more than an error of law or judgment; it implies the trial court's attitude was arbitrary, unreasonable, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

         {¶14} An adoption case such as this involves the termination of fundamental parental rights. Therefore, the burden of proof is clear and convincing evidence. Clear and convincing evidence is that proof which establishes in the minds of the trier of fact a firm conviction as to the allegations sought to be proved. Cross v. Ledford, 161 Ohio St. 469, 477, 120 N.E.2d 118 (1954). When a party must prove a claim by clear and convincing evidence, a reviewing court must examine the record to determine whether the trier of facts had sufficient evidence before it to satisfy the requisite degree of proof. State v. Schiebel, 55 Ohio St.3d 71, 74, 564 N.E.2d 54 (1990).

         {¶15} Thus, we must examine the evidence to determine whether the probate court properly found by clear and convincing evidence that appellant failed to provide for A.S.'s maintenance and support as required by law or judicial decree for at least one year immediately preceding the filing of the adoption petition. The probate court did not make a finding that appellant failed to provide more than de minimis contact with the minor. Therefore, this analysis will focus solely on the evidence as to maintenance and support.

         {¶16} As to maintenance and support, the trial court heard testimony from appellant, mother, and paternal grandmother.

         {¶17} Appellant testified that he owes in excess of $6, 000 in child support. (Aug. 10, 2016 Tr. 19-20; Ex. 3). Specifically, the Child Support Enforcement Agency (CSEA) payment history report indicated appellant's arrearage was $6, 430.83 as of July 31, 2016. (Aug. 10, 2016 Ex. 3). Appellant's court-ordered monthly obligation at that time was $239.90. (Aug. 10, 2016 Ex. 3). Appellant admitted that in the last two years, he made only one child support payment of $50. (Aug. 10, 2016 Tr. 20). He further admitted that the $50 payment was made after he was served with the adoption petition. (Aug. 10, 2016 Tr. 18-19).

         {¶18} On April 20, 2015, appellant failed to appear at a hearing on his child support contempt case. (Aug. 10, 2016 Tr. 13; Ex. 2). A bench warrant was subsequently issued for his failure to appear. (Aug. 10, 2016 Tr. 13; Ex. 2). Additionally, at that time, the trial court ordered appellant's child ...


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