In re Adoption of M.G.B.-E. et al.
Submitted November 21, 2017
from the Court of Appeals for Clinton County, No.
Law Offices of Jason A. Showen, L.L.C., and Jason A. Showen,
Rion, & Rion, LP. A., Inc., Jon Paul Rion, Travis T.
Dunnington, and Bradley D. Anderson, for appellant.
1} This appeal addresses a probate court's
authority to proceed on an adoption petition-specifically, to
determine whether parental consent is required for the
adoption-when preexisting matters concerning the parenting of
the child are pending in another court. Appellant, D.H.
("Father"), asks this court to hold broadly that a
probate court "may not proceed with an adoption petition
if any pending parenting matter is proceeding in another
court." We reject Father's proposition of law, but
we hold more narrowly that a probate court must consider the
existence of pending parenting matters when determining
whether an exception to the requirement of parental consent
to adoption applies.
and procedural background
2} The legal issues raised in this appeal are
relatively straightforward. But the factual record-replete
with contradictory testimony, allegations of abuse from both
sides, regular failures to comply with court orders, and a
13-year history of animosity between two parents-complicates
adoption petitions and consent requirements
3} Appellee, D.E. ("Stepfather"), filed
petitions in the Clinton County Probate Court to adopt
M.G.B.-E. and R.S.B.-E., the minor children of his wife,
V.B.-E. ("Mother"), and Father, her ex-husband.
Under R.C. 3107.06, a petition to adopt a minor who was born
to married parents may not be granted without the written
consent of both the mother and the father of the minor,
unless an exception set forth in R.C. 3107.07 applies.
Stepfather's adoption petitions state that Father's
consent is not required because Father failed without
justifiable cause to provide more than de minimis contact
with the children for at least a year immediately preceding
the filing of the adoption petitions. See R.C.
3107.07(A) ("Consent to an adoption is not required of *
* * [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 * * * for a period of
at least one year immediately preceding * * * the filing of
the adoption petition"). Father objected to the adoption
petitions and disputed the applicability of the R.C.
3107.07(A) exception to the R.C. 3107.06 parental-consent
4} The probate court held a hearing on the necessity
of Father's consent. Witnesses included Mother; Father;
Stepfather; Father's current wife, S.H.
("Stepmother"); and Father and Stepmother's
babysitter. Much of the evidence concerned Mother and
Father's acrimonious relationship, dating from before
their 2004 divorce.
divorce decree and subsequent parenting litigation
5} Father and Mother were married for about five
years and, during that marriage, had two children-a son,
R.S.B.-E., and a daughter, M.G.B.-E. In the course of their
divorce proceedings, Mother accused Father and his brothers
of sexually abusing the children. A November 2004 final
divorce decree granted Mother custody of the children and
granted Father parenting time. The decree incorporated the
parties' agreement that the children were not to be left
unsupervised with a particular paternal uncle.
6} Mother impeded Father's parenting time from
the outset. Between October 2004 and April 2006, as evidenced
by more than 25 police reports filed by Father, Mother
regularly refused to deliver one or both of the children to
Father for parenting time in accordance with the final
decree. In May 2005, Father moved for temporary and permanent
custody of the children, alleging that Mother had repeatedly
denied him parenting time and that Mother and the
children's maternal grandfather were physically and
mentally abusing the children. In 2005 and 2006, Father filed
at least five motions to hold Mother in contempt.
7} Subsequent to the divorce decree, Mother made
additional allegations of sexual abuse of the children by
Father to Highland County Children Services, Montgomery
County Children Services, and the Warren County Sheriffs
Office. A letter dated June 17, 2005, from Montgomery County
Children Services reports no indication of "anything
improper, neglectful or abusive [having] occurred during
visits with paternal family members."
8} In June 2006, Mother unilaterally cut off
parenting time between Father and the children after the
children returned from parenting time with Father with,
according to Mother, physical evidence of and verbal
statements by M.G.B.-E. regarding sexual abuse. Mother took
M.G.B.-E. to her pediatrician and to Cincinnati
Children's Hospital with complaints of vaginal and anal
bleeding and allegations of abuse. An examination revealed no
physical signs of abuse. Mother also contacted the Warren
County Sheriffs Office. Both children reported sexual abuse
to Warren County detectives.
9} Based on her June 2006 allegations, Mother
obtained an ex parte civil protection order from the Highland
County Common Pleas Court in September 2006 that prohibited
Father from having contact with Mother or the children.
Father denied Mother's allegations and again moved for
temporary custody of the children in November 2006. Mother
and Father agreed to dismiss the protection order in March
10} Also in March 2007, a domestic-relations
magistrate held a hearing on the parties' motions that
had been filed between March 2005 and November 2006. The
parties agreed that the magistrate would address only
Father's most recent motion for contempt (regarding
parenting time during the summer of 2006), Mother's
motion to restrict Father's parenting time to supervised
visits, and Father's motion for in camera interviews of
the children. The parties agreed to dismiss all other pending
11} Before the domestic-relations court issued a
decision on the pending motions, Mother successfully applied
to the Highland County Probate Court to have the
children's last names changed from Father's last name
to her maiden name. Despite the parties' continuing
litigation in the domestic-relations court, Mother's
applications stated that Father's address was unknown and
was not ascertainable with reasonable diligence. Father was
not personally served with the applications, and he claims
that he received no notice of the applications whatsoever.
12} In September 2007, the domestic-relations court
ruled on the motions argued at the March 2007 hearing. As
part of her consideration, the magistrate interviewed both
children and reviewed a guardian-ad-litem report,
psychological evaluations and the Highland County Children
Services' file regarding the allegations of sexual abuse.
The court denied Father's motion for contempt. Although
the magistrate noted that the allegations were
unsubstantiated, she found that Mother reasonably denied
Father parenting time pending the investigation of those
allegations. With respect to Mother's motion to restrict
Father's parenting time, the court ordered that
Father's "parenting time shall be limited pending
therapy" with one of three named therapists or a
mutually agreed-upon therapist "for the parents and
children to help the children to transition to spending time
with" Father. The court expected that "within 6
months the children should have transitioned into parenting
alone with" Father.
13} The parties had not commenced counseling by the
time the court held a review hearing in April 2008, but the
parties agreed to contact a therapist and schedule
counseling. In September 2008, however, the court dismissed
the matter for want of prosecution. Father admits that
arranging counseling "fell through the cracks."
14} For at least six years after September 2008,
when the domestic-relations court dismissed the parenting
matter for lack of prosecution, the children did not receive
any voicemail, telephone call, text message, e-mail, card,
letter or gift from Father. Father testified that from 2010
until at least August 2014, he had no way of contacting the
children because he did not know where they were living and
because he did not have a working telephone number for
Mother. Mother changed addresses and telephone numbers
multiple times without informing the domestic-relations court
or Father, as required by the final divorce decree. Father
did see R.S.B.-E. once during that period, at a church picnic
in July 2010, but he claims that he was unable to speak with
R.S.B.-E., because Mother "haul[ed] [R.S.B.-E.] away in
the other direction."
Father learns of the children's whereabouts and ...