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In re Adoption of M.G.B.-E.

Supreme Court of Ohio

May 9, 2018

In re Adoption of M.G.B.-E. et al.

          Submitted November 21, 2017

          Appeal from the Court of Appeals for Clinton County, No. CA2016-06-017, 2016-Ohio-7912.

          The Law Offices of Jason A. Showen, L.L.C., and Jason A. Showen, for appellee.

          Rion, Rion, & Rion, LP. A., Inc., Jon Paul Rion, Travis T. Dunnington, and Bradley D. Anderson, for appellant.

          FRENCH, JUDGE.

         {¶ 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.

         Facts 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 our analysis.

         The 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 requirement.

         {¶ 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.

         The 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 2007.

         {¶ 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 motions.

         {¶ 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."

         2008-2014: Father's absence

         {¶ 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."

         2014-2015: Father learns of the children's whereabouts and ...

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