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In re Adoption of K.M.R.

Court of Appeals of Ohio, Fifth District, Muskingum

April 2, 2018


          Appeal from the Muskingum CountyProbate Court, Case No. 20154029

          Miles D. Fries, Gottlieb, Johnston, Beam & Dal Ponte, P.L.L. For Appellant

          Kyle Daugherty For Appellee

          Hon. John W. Wise, P.J. Hon. W. Scott Gwin, J. Hon. William B. Hoffman, J. JUDGES:


          Gwin, J.

         {¶1} Appellant appeals the June 30, 2017 judgment entry of the Muskingum County Court of Common Pleas, Probate Division, which found, pursuant to R.C. 3107.07(A), the consent of the father/appellee K.D. was required for the adoption of the minor child.

         Facts & Procedural History

         {¶2} Appellant is the great aunt and legal custodian of the minor child, K.R. On November 15, 2011, K.R. was placed in the legal custody of appellant by the Muskingum County Court of Common Pleas, Juvenile Division. Appellee is the biological father of K.R. The biological mother of the child appeared at the hearing, but is not a party to this appeal.

         {¶3} On October 16, 2015, appellant filed a petition to adopt K.R. Appellant alleged appellee's consent for the petition to adopt was not required because appellee failed, without justifiable cause, to provide more than de minimis contact with the child for a period of at least one year immediately preceding either the filing of the adoption petition or the placement of the child in her home. On October 28, 2015, appellee submitted a letter to the trial court, objecting to the adoption.

         {¶4} The trial court held the adoption hearing on February 11, 2016. At the hearing, appellant testified she is K.R.'s great aunt. In June of 2011, the Muskingum County Juvenile Court granted appellant temporary custody of both K.R. and her biological mother, who was a minor at the time. K.R.'s mother was removed from appellant's home in July of 2012 and placed in foster care. The juvenile court awarded legal custody of K.R. to appellant in November of 2011.

          {¶5} Appellant testified that Exhibit A is the visitation agreement signed by appellant, appellee, and the biological mother of K.R. Exhibit A is an entry from the juvenile court granting legal custody of K.R. to appellant. It also contains visitation stipulations for both K.R.'s mother and appellee. Exhibit A provides specific supervised parenting times for K.R's mother. As to appellee, Exhibit A states, "the parties agree that [appellant] and the Father shall cooperate towards increasing his parenting time in the best interest of the minor child" and "the parties agree to terminate protective supervision of Muskingum County Children's Services." Appellant testified she interpreted this agreement as requiring appellee have only supervised visitation due to his record of domestic violence and his adjudication as a Tier II sexual offender.

         {¶6} Appellant stated that initially, appellee visited K.R. at her home two times per week for two hours. This increased to three days per week, two hours per visit, after the juvenile court awarded legal custody to appellant. Further, that appellee came regularly and interacted well with K.R. Between April 2013 and March 2014, appellant allowed appellee to have visitations at his mother's home with his mother supervising. After March of 2014, appellee again returned to supervised visits at appellant's home at his suggestion. Appellant testified that while appellee came to most visitations, he cancelled a few.

         {¶7} Appellant testified appellee last saw K.R. in June of 2014 and had not contacted her to see K.R. or asked about K.R. since June 2014, despite seeing appellant three times during the last six months for child support hearings.

         {¶8} In November of 2014, appellant received four text messages from appellee, each requesting unsupervised visitation with K.R. Appellant testified that, in these text messages, appellee stated his attorney told him to contact appellant to return to his two day per week visitation schedule, without supervision. Appellant stated she told appellee his lawyer could contact her lawyer because she did not have any papers stating appellee could have unsupervised visitation and told appellee he could come to appellant's house to see K.R. like he had been in the past, or not at all. Further, if appellee's lawyer believed he could have unsupervised visits, appellee's lawyer should contact her lawyer and get it settled. In the text messages, appellant ...

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