In re Adoption of M.S.
2011 Ohio 6403
Ohio Ct. App.2011Background
- The biological father and the children's mother were never married and have two daughters born in 2004 and 2005.
- In 2007, the juvenile court adopted a settlement in which the father relinquished parental rights, agreed to pay $500, and agreed to have the children’s last names changed; the court retained jurisdiction over parenting time, child support, and related issues.
- On January 22, 2011, the mother married Jesse Schafer, who filed petitions to adopt the children on January 24, 2011, alleging lack of consent due to the father’s failure to communicate or provide support in the prior year.
- The father was personally served on February 18, 2011, but neither he nor his counsel appeared by the March 11, 2011 adoption hearing date.
- At the hearing, the stepfather testified he had known the children for five years and had primarily lived with them since 2009; he stated the father had not provided support or contacted the children.
- The probate court granted the step-parent adoption on March 11, 2011, finding lack of communication and lack of support for at least one year prior to the petition, without justifiable cause.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the father had justifiable cause for failing to communicate | Loos argues the juvenile order prohibited contact. | Loos contends the juvenile order barred communication with the children. | No justifiable cause; absence of communication supported by clear and convincing evidence. |
Key Cases Cited
- In re Adoption of Holcomb, 18 Ohio St.3d 361 (Ohio 1985) (burden shifting in parental consent cases; strict standard to prove failure to communicate or support by clear and convincing evidence)
- In re Bovett, 33 Ohio St.3d 102 (Ohio 1987) (courts may shift burden to natural parent to show justifiable cause once failure is established)
- In re Mineer, 4th Dist. No. 03CA768, 2004-Ohio-656 (Ohio Fourth Dist. 2004) (order must specify no contact to justify lack of communication)
- In re Bryan W., 6th Dist. No. H-96-039 (Ohio Sixth Dist. 1997) (mother's failure to communicate may be justified if prior order prohibited contact)