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In re S.A.N.

Court of Appeals of Ohio, Twelfth District, Warren

July 29, 2019

IN RE: S.A.N.

          APPEAL FROM WARREN COUNTY COURT OF COMMON PLEASPROBATE DIVISION Case No. 20185022

          Schroeder Maundrell Barbiere & Powers, William P. Schroeder, Sarah E. Ambach, for appellee

          Ostrowski Law Firm Co., L.P.A., Andrea G. Ostrowski, for appellant

          OPINION

          PIPER, J.

         {¶ 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 not required.

         {¶ 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 magistrate's decision.

         {¶ 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 petitioner. Id.

         {¶ 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 attend.

         {¶ 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 ...


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