2020 Ohio 1260
Ohio Ct. App.2020Background
- Child born May 26, 2011; Father incarcerated ~two weeks after birth and remained incarcerated during the relevant period; maternal grandparents (Mark and Tammy Overton) have had physical custody since birth.
- Grandparents filed an adoption petition April 23, 2019; mother consented; Father timely objected May 20, 2019; grandparents filed an amended petition May 29 adding an allegation about failure to pay support.
- Statutory issue: whether Father’s consent was excused under R.C. 3107.07(A) because he allegedly failed without justifiable cause (during the one-year lookback) to (a) provide more than de minimis contact with the child, or (b) provide maintenance and support as required by law or decree.
- Evidence at the July 15, 2019 hearing: Father testified he mailed monthly letters, sent Christmas gifts through Angel Tree (2013–2018), and mailed drawings in Dec 2018 and Feb 2019; Father earns about $20/month in prison employment with child-support withholding. Grandparents testified they had little or no contact from Father during the lookback and last received gifts or visits years earlier.
- Trial court credited Father’s testimony, found his mail/gifts constituted more-than-de minimis contact and that he complied with the child-support order during the relevant year. Trial court denied adoption petition. Grandparents appealed.
Issues
| Issue | Plaintiff's Argument (Overton) | Defendant's Argument (Hanes) | Held |
|---|---|---|---|
| 1. Whether Father waived objection to amended petition so consent not required under R.C. 3107.07(K) | Father did not object to the amended petition, so his consent was waived under R.C. 3107.07(K) | Father filed a timely objection to the original petition; the amended petition added only an additional statutory ground and did not require a new objection | Court: Waiver argument forfeited on appeal; in any event Father’s timely objection to the original petition was sufficient — no waiver |
| 2. Whether Father’s consent excused for failure to provide more-than-de minimis contact during the one-year lookback | Grandparents: Father had essentially no contact for ~8 years before filing; no justifiable cause | Father: mailed monthly letters and sent gifts/drawings; lacked phone/internet access in prison; mail/gifts show contact | Court: Trial court credited Father; mail and gifts constituted more-than-de minimis contact; consent required |
| 3. Whether Father’s consent excused for failure to provide maintenance/support under law or decree | Grandparents: Father failed to comply with child-support obligations and provided no financial support | Father: wage withholding from prison job satisfied the order; he was in compliance with March 2019 support order | Court: Under three-step B.I. test, Father complied with the applicable support order during the relevant year; consent required |
Key Cases Cited
- In re Adoption of Bovett, 33 Ohio St.3d 102 (Ohio 1987) (petitioner bears burden to prove by clear and convincing evidence parent failed to contact or support)
- In re Adoption of Holcomb, 18 Ohio St.3d 361 (Ohio 1985) (nonconsenting parent need not prove failure to communicate was justifiable)
- In re Adoption of B.I., 157 Ohio St.3d 29 (Ohio 2019) (three-step test for determining failure to provide child support under R.C. 3107.07)
- Hadley v. Figley, 46 N.E.3d 1129 (Ohio App. 2015) (issues not raised in trial court are waived on appeal)