Court of Appeals of Ohio, Seventh District, Mahoning
IN THE MATTER OF THE PETITION FOR ADOPTION OF: A.J.S., A MINOR
Appeal from the Court of Common Pleas, Probate Division of
Mahoning County, Ohio Case No. 2016 AD 0004
Appellee Attorney Matthew Giannini
Appellant Attorney R. Kibler
Gene Donofrio, Hon. Cheryl L. Waite, Hon. Carol Ann Robb
Appellant, W.C., appeals from a Mahoning County Probate Court
judgment granting the petition of appellee, J.S., for the
adoption of A.S.
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.
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.
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.
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.
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.
Appellant filed a timely notice of appeal on July 26, 2017.
He now raises two assignments of error.
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.
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.
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
Pursuant to R.C. 3107.07(A), consent to adoption is not
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.
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.
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
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).
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.
As to maintenance and support, the trial court heard
testimony from appellant, mother, and paternal grandmother.
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).
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