Court of Appeals of Ohio, Twelfth District, Warren
FROM WARREN COUNTY COURT OF COMMON PLEASPROBATE DIVISION Case
Schroeder Maundrell Barbiere & Powers, William P.
Schroeder, Sarah E. Ambach, for appellee
Ostrowski Law Firm Co., L.P.A., Andrea G. Ostrowski, for
1} Appellant (Mother) is the biological mother of
S.A.N. and appeals a decision of the Warren County Probate
Court finding that her consent to the adoption of S.A.N. was
2} SAN.'s paternal grandmother
("Grandmother") was awarded legal custody of the
child in March 27, 2013 and Mother was granted telephone
contact with the child. Mother only made phone calls in the
first few months following the legal custody determination
and had no contact with S.A.N. for approximately five years.
3} Grandmother filed a petition to adopt S.A.N. on
April 4, 2018. She alleged in the petition that Mother's
consent to the adoption was not required because Mother had
failed to communicate with S.A.N. in the one-year period
preceding the petition. Mother objected to the adoption and a
magistrate held a hearing on the consent issue. The
magistrate determined that Mother's consent was not
required. The trial court overruled objections to the
4} Mother now appeals the trial court's decision
finding her consent to the adoption was not required. She
raises one assignment of error for our review:
5} THE TRIAL COURT ERRED WHEN IT HELD THAT
MOTHER'S CONSENT WAS NOT NECESSARY FOR THE ADOPTION.
6} The right of natural parents to the care and
custody of their child is one of the most precious and
fundamental in law. In re A.N.L, 12th Dist. Nos.
CA2004-11-131 and CA2005-04-046, 2005-Ohio-4239; see also
Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct.
1388, 1394 (1982). Because adoption terminates these rights,
Ohio law requires parental consent to an adoption unless a
specific statutory exemption exists. In re Caudill,
4th Dist. No. 05CA4, 2005-Ohio-3927; R.C. 3107.06.
7} An exemption to parental consent exists if a
court finds, after notice and a hearing, that in the year
preceding the adoption petition, the parent failed without
justifiable cause to have more than de minimis contact with
the child or failed to provide support and maintenance for
the child. R.C. 3107.07(A). In this case, the trial court
found that Mother's consent was not required because she
had failed without justifiable cause to communicate with
S.A.N. in the one year preceding the petition.
8} When a petitioner for adoption alleges that a
parent's consent is not required based on a failure to
communicate, the burden is on the petitioner to establish by
clear and convincing evidence both that the parent failed to
communicate and that the failure was without justifiable
cause. In re Adoption of M.B., 131 Ohio St.3d 186,
2012-Ohio-236, ¶ 22; In re Adoption of Holcomb,
18 Ohio St.3d 361 (1985), paragraph four of the syllabus.
Once the petitioner has established the failure to
communicate, the burden of going forward shifts to the parent
to show some facially justifiable cause for the failure.
In re Adoption of Bovett, 33 Ohio St.3d 102, 104
(1987). The burden of proof, however, remains with the
9} At the consent hearing, Grandmother testified
that she first met S.A.N. in March 2012, when Mother let her
take the child even though they had not met before. She
testified that she then did not hear from Mother for six
days. After the initial visit, S.A.N. then visited
Grandmother the next several weekends. Based on statements
from S.A.N. during a visit, Grandmother reported suspected
abuse to Warren County Children Services and the child was
placed in Grandmother's temporary custody. In the
following months, Grandmother supervised Mother's
visitations. Mother was sporadic with visitation and often
had inappropriate conversations with the child, so
visitations were moved to the agency, but Mother did not
10} In March 2013, S.A.N. was placed in the legal
custody of Grandmother. The court's order stated that
Mother was "to have reasonable and appropriate telephone
contact with the minor child." Although ...