In re Adoption of A.S.
2011 Ohio 1505
Ohio Ct. App.2011Background
- Sesher petitioned for stepparent adoption of A.S. (minor) on 9/28/2010; mother Ashli Walker (nka Sesher) and biological father John Kirkbride, Jr. were identified; Kirkbride objected on 11/1/2010.
- Trial court held 11/23/2010 that Kirkbride’s consent was not required due to de minimis contact and lack of maintenance for at least one year before filing/placement.
- Final decree of adoption filed 11/23/2010 finding it in A.S.’s best interest to grant the petition.
- Appellant appealed; assigns error arguing (a) justifiable cause exists for failure to support; (b) paternal grandparents’ visitation support can be imputed to Kirkbride; (c) petitioner failed to prove lack of communication by clear and convincing evidence.
- Trial court relied on failure to provide > de minimis contact and failure to provide maintenance as required; court rejected asserted justifications and affirmed the adoption.
- Appellate court affirmed the trial court’s judgment, holding consent not required.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether father had justifiable cause for failing to support | Kirkbride’s support was excused by Franklin County order setting support at $0 | Kirkbride still had a statutory duty to support and failed to do so | No justifiable cause; obligation remained; consent not required |
| Whether paternal grandparents’ visitation can be imputed to father | Grandparents’ court-ordered visitation constitutes paternal support | Visitation cannot substitute for the father’s own support obligation | Not a basis to require consent; court did not impute support |
| Whether trial court proved lack of communication by clear and convincing evidence | There was at least some contact and communication | Record shows no affirmative contact by father with A.S. | Record supports finding of de minimis contact; lack of meaningful communication justified no consent |
Key Cases Cited
- In re Masa, 23 Ohio St.3d 163 (1986) (consent not required if failure to support/de minimis contact established by clear and convincing evidence)
- In re Bovett, 33 Ohio St.3d 102 (1987) (burden on petitioner to prove non-consent by clear and convincing evidence)
- C.E. Morris Co. v. Foley Construction Co., 54 Ohio St.2d 279 (1978) (manifest weight/credible evidence standard for trial court findings)
- Askew v. Taylor, 2004-Ohio-5504 (2004) (relevance of incarceration and lack of contact to consent analysis)