In re Adoption of C.J.C., 2016 Ohio 4909

Child C.L.S. born July 2008; DNA later established Brett Topovski as father.
In July 2014, Anthony Cicconetti petitioned to adopt and change the child’s name to C.J.C.; petition alleged Topovski failed to provide support and had not had more than de minimis contact for the year before the petition.
On July 19, 2013, an incident occurred when a friend of Cicconetti retrieved the child from Topovski’s home; police responded and Cicconetti sent Topovski a "No Trespass" letter instructing him to cease contact with her.
Topovski testified the letter and past trespass conviction deterred him from contacting the child; he admitted he did not send cards/gifts during the year and did not file a juvenile visitation motion despite consulting counsel.
Probate court found by clear and convincing evidence that Topovski failed without justifiable cause to provide more than de minimis contact during the year preceding the petition; it permitted trial-limited evidence and credited Cicconetti’s testimony.
Ninth District Court of Appeals affirmed, overruling Topovski’s evidentiary and manifest-weight/sufficiency challenges.

Issue	Plaintiff's Argument (Topovski)	Defendant's Argument (Cicconetti)	Held
Whether the probate court improperly limited evidence about events before the one-year statutory period relevant to "justifiable cause"	Court wrongly limited cross-examination and prevented showing a prior continuous relationship and that Cicconetti’s actions on July 19, 2013 caused the lapse	Prior relationship before the statutory year was not disputed; court appropriately focused testimony on the one-year period while allowing general background	Trial court did not abuse discretion; evidence was not precluded and assignment of error overruled
Whether the finding that Topovski lacked justifiable cause (and that petitioner proved failure to have more than de minimis contact for one year) is against the manifest weight / unsupported by clear and convincing evidence	The July 19 incident and Cicconetti’s conduct effectively cut off contact and justify his failure to pursue visitation; evidence insufficient to show lack of justifiable cause	The no-trespass letter did not prohibit contact with child; Topovski had prior experience using juvenile court and did not pursue available remedies; court found Cicconetti more credible	Probate court’s finding was supported by clear and convincing evidence and not against the manifest weight; assignment of error overruled

State v. Sage, 31 Ohio St.3d 173 (1987) (trial court has discretion over admission/exclusion of relevant evidence)
In re Adoption of Holcomb, 18 Ohio St.3d 361 (1985) (burden on petitioner to prove lack of justifiable cause by clear and convincing evidence; significant custodial-parent interference can establish justifiable cause)
In re Adoption of Lauck, 82 Ohio App.3d 348 (1992) (court may examine events preceding the statutory year that bear on justification for failure to communicate)
Eastley v. Volkman, 132 Ohio St.3d 328 (2012) (distinguishes sufficiency and weight of the evidence standards on review)
In re Adoption of Bovett, 33 Ohio St.3d 102 (1987) (probate court’s finding under R.C. 3107.07(A) will not be disturbed unless against manifest weight)
In re Doe, 123 Ohio App.3d 505 (1997) (questions of justifiable cause are factual determinations for the probate court)
Cross v. Ledford, 161 Ohio St. 469 (1954) (clear and convincing standard requires a firm belief or conviction)