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In re Adoption of P.K.H.

Court of Appeals of Ohio, Fourth District, Scioto

June 19, 2019

IN THE MATTER OF THE ADOPTION OF P.K.H.

          CIVIL CASE FROM COMMON PLEAS COURT, PROBATE DIVISION

          Brigham M. Anderson, Ironton, Ohio, for Appellant. [1]

          Andrew S. Hanes, Wheelersburg, Ohio, for Appellee.

          DECISION & JUDGMENT ENTRY

          ABELE, J.

         {¶ 1} Tyler M.R. Hollar, petitioner below and appellant herein, appeals the Scioto County Common Pleas Court, Probate Division, judgment that denied his petition for the adoption of his stepson, P.K.H. Appellant raises the following assignments of error for review:

FIRST ASSIGNMENT OF ERROR:
"THE PROBATE COURT ERRED BY DENYING THE PETITION FOR ADOPTION WHEN NO MATERIAL EVIDENCE WAS PUT FORTH BY THE APPELLEE AS REQUIRED BY O.R.C. SECTION 3107.161(C) REGARDING THE BEST INTEREST DETERMINATION AND APPELLEE FAILED TO PROVE THAT THE CHILD'S CURRENT PLACEMENT IS NOT THE LEAST DETRIMENTAL AVAILABLE ALTERNATIVE" SECOND ASSIGNMENT OF ERROR:
"THE PROBATE COURT ERRED IN DENYING APPELLANT'S PETITION FOR ADOPTION AS SUCH IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE."

         {¶ 2} On February 27, 2015, appellant filed a petition to adopt P.K.H., his minor stepson. In his petition, appellant alleged that the biological father's consent is not required because, for a period of at least one year immediately preceding the filing of the adoption petition, the child's biological father failed, without justifiable cause, to: (1) have more than de minimis contact with the child, and (2) provide for the child's maintenance and support as required by law or judicial decree.

         {¶ 3} At the October 21, 2015 hearing, the trial court found that the child's biological father, Jeremy Tyler Booker, the respondent below and appellee herein, filed his objection to the adoption eleven days late. Thus, because appellee's consent was not necessary under R.C. 3107.07(K), the court proceeded to the best interest hearing.

         {¶ 4} At the best interest hearing, appellee testified that he met P.K.H.'s mother, Tyler Ann Hollar (Mrs. Hollar), in 2008, approximately one year prior to P.K.H.'s birth. Later, appellee was away for military training, but came home to see P.K.H. before appellee's year long deployment the following month. Appellee testified that he has been deployed on active military duty three times, twice after P.K.H.'s birth. During appellee's deployment, he maintained medical insurance for the child[2] and he and Mrs. Hollar kept in communication. When appellee returned from deployment, he testified that he visited P.K.H. and that contact remained civil between appellee and Mrs. Hollar. When appellee later married Joannie Book (Mrs. Book), the Books continued to visit P.K.H., and Mrs. Book, the appellee's son M.B., and appellee's mother also attended the Hollars' wedding.

         {¶ 5} Appellee stated that their informal visitation arrangement worked well until his last deployment around 2014, when things soured. Appellee testified that he saw P.K.H. on May 12, 2014 and then "tried to get him a couple of times after that and they always had plans and then I talked to him on his birthday and that was it." Appellee wanted to see P.K.H. once more before his deployment, but Mrs. Hollar did not allow it. Appellee stated that he had been friends with Mrs. Hollar on Facebook prior to his deployment, but after his 2014 deployment, Mrs. Hollar blocked him. Eventually, appellee and his wife consulted an attorney who advised them to wait until appellee returned from his deployment. When appellee returned, he and his wife asked an attorney to send the Hollars a letter to attempt to establish parenting time outside the court system. Appellee, however, did not receive a response to his letter, but instead received service of the petition to adopt P.K.H.

         {¶ 6} Appellee's wife, Joannie Book, testified that she and appellee met through the military and married in 2013. Mrs. Book, a National Guard recruiter, last saw P.K.H. in May 2014 when appellee prepared for his third deployment. Mrs. Book testified that appellee's visits with P.K.H. were "on their terms, at their convenience, at their home." Mrs. Book explained that at one point, she was friends with P.K.H.'s mother and would take her step-son, M.B., to visit P.K.H. so they "can maintain a relationship as brothers." Mrs. Book also testified about going to the Columbus Zoo with her husband (appellee), the Hollars and P.K.H. Mrs. Book's friendship with Mrs. Hollar "decreased when visitation [with P.K.H.] dissolved" in 2014. Mrs. Book testified that when her husband deployed in May 2014, Mrs. Hollar blocked her and appellee from contacting her or from viewing her Facebook social media profile. Mrs. Book also stated that she and appellee decided to wait until he returned from his deployment to retain legal counsel to seek visitation with P.K.H.

         {¶ 7} Appellee's mother, Teresa Book, testified that she attended several events including one of P.K.H.'s birthday parties, a soccer game, and appellant's wedding to Mrs. Hollar. Teresa explained that she sees appellee's other son, M.B., several times per week and would like to see P.K.H. more often. She also stated that appellee had been a "Godsend" for her granddaughter, who had been placed with appellee, and added that appellee's wife's interactions with P.K.H. were "a joy to watch."

         {¶ 8} Ten-year-old M.B., appellee's son and P.K.H.'s half-brother, testified that he and P.K.H. liked to climb trees and play kick ball, tag, and hide-and-seek. M.B. also stated that had not seen P.K.H. in about a year and a half and that he missed him.

         {¶ 9} Assistant County Prosecutor Shane Tieman testified that he had been appointed as the guardian ad litem for appellee's other son, M.B., during a custody case that involved appellee and M.B.'s biological mother, Christy Sparks. In that case, Tieman conducted an investigation and filed a report. Tieman testified that, subsequent to that interaction, he became more familiar with appellee through community and school activities, such as Cub Scouts and sporting events, because M.B. and Tieman's son are the same age. Tieman stated that appellee and his wife provide good structure, are dependable, made M.B. follow rules and respect them, as well as his mother, and are active in M.B.'s school and extracurricular activities.

         {¶ 10} Scioto County Children's Services Caseworker Naomi Kinsel testified that she is the ongoing caseworker for appellee's niece, who had been placed with appellee. Kinsel stated that appellee and his wife are appropriate with the niece, as well as with appellee's son, M.B., and that appellee and his wife have been drug screened and have had a home safety audit.

         {¶ 11} Appellee's friend, Shane Hatfield testified and stated that he has known appellee "since he was born probably," and that he and appellee served in the military together and had been deployed together to Iraq in 2009-2010 where appellee had served as team commander. Hatfield stated that appellee is a great father to M.B., but that he had not observed interaction with P.K.H.

         {¶ 12} The best interest hearing continued on January 27, 2016. Evan Washburn testified that he had known appellee for four and a half years and had served as appellee's commanding officer in the Army National Guard during appellee's last deployment to Afghanistan. Washburn explained that during their deployment, he requested appellee to take a position as platoon sergeant "because of what I'd seen and the potential in him to do that job."

         {¶ 13} Tara Boyer testified that she has known appellee for thirteen years and became friends with him and his wife through her husband. Boyer testified that she observed appellee with his son, M.B. over the past four or five years during several week-long family vacations and other visits.

         {¶ 14} Tyler Ann Hollar, mother of P.K.H. (and appellant's wife), testified that appellee had not been ordered to pay child support through the court, but instead he had agreed to make a $275 per month direct deposit into her account. Mrs. Hollar testified that the payments stopped in December 2013 and appellee told her that he discontinued the payments because he could no longer see P.K.H. consistently. Mrs. Hollar also testified that she did not block Mrs. Book from her Facebook, but rather had deactivated her Facebook account on multiple occasions. However, Mrs. Hollar did testify that she "unfriended" appellee when she saw a photo on his Facebook page of him building a tree house for his son, M.B. Mrs. Hollar testified that she did not unfriend appellee to stop him from seeing her posts, but because she did not want to see his. Mrs. Hollar also testified that she and P.K.H. participated in appellee's wedding to Mrs. Book.

         {¶ 15} Mrs. Hollar testified that in 2010 she and appellant became engaged, and their son, G.H., was born in 2012. Mrs. Hollar explained that appellant is a great father and treats P.K.H. the same as G.H. Mrs. Hollar stated that appellant picks P.K.H. up from school, has coached his teams, and is very involved in his life. Mrs. Hollar said when P.K.H. began calling appellant "daddy" or "dada," she did not correct him because appellee had never been involved in P.K.H.'s life and she was unsure if he would ever be a part in P.K.H.'s life. Mrs. Hollar also testified that P.K.H. has some indications of sensory processing disorder and/or obsessive compulsive disorder and that if appellee were to be granted parenting time, it "would open up a whole new can of worms for him that, you know, he [P.K.H.] doesn't deserve. Um, I feel like he would be confused once again, um, and as far as consistency, I'm not sure in a year or two down the road that Mr. Book would not be deployed again or leave work or leave the town for pipefitting job or something like that." Mrs. Hollar also stated she would like appellee's name to be removed from P.K.H.'s birth certificate and, instead, substitute appellant's name.

         {¶ 16} Mrs. Hollar's niece, Christian Livingston, and other friends of Mrs. Hollar and appellant including Amanda Eldridge, Vanessa Tuttle, Megan Flannery, Maddison Enz, Ashley Schwamberger, along with appellant's brother, Dirk Hollar, all testified that appellant has a great relationship with P.K.B., has been a positive influence in his life and that they favor the adoption. Furthermore, clinical counselor Leasa Mowery ...


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