IN RE: THE ADOPTION OF: C.H.B., [R.A.V. - APPELLANT]
CASE NO. 3-19-18
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT CRAWFORD COUNTY
March 16, 2020
2020-Ohio-979
Appeal from Crawford County Common Pleas Court Probate Division Trial Court No. 000934 Judgment Affirmed
Anthony M. Heald for Appellant
Bradley S. Starkey for Appellee
SHAW, P.J.
{¶1} This appeal, having been placed on the accelerated calendar, is sua sponte being assigned and considered on the regular calendar pursuant to Loc.R. 12(1). Under the authority of Loc.R. 12(5), we have elected to issue a full opinion in lieu of a judgment entry.
{¶2} Appellant-respondent, R.A.V. (“Father“), appeals the October 24, 2019 judgment of the Crawford County Court of Common Pleas, Probate Division, finding that appellees-petitioners, M.B. and K.B. (“Maternal Grandparents“), proved by clear and convincing evidence that Father‘s consent is not necessary to their petition for adoption of his child, C.H.B., as he had failed to provide more than de minimis contact with the child and had failed to provide maintenance and support for the child for a period of one year immediately preceding the filing of the petition or the placement of the minor in the home of the petitioners. As a result, the trial court ordered the case to proceed on the adoption without Father‘s consent. On appeal, Father argues that he had justifiable cause for failing to communicate with C.H.B. and for failing to provide maintenance and support for C.H.B. Therefore, Father contends that the trial court‘s decision is against the manifest weight of the evidence.
{¶3} C.H.B. was born in 2015 to I.J.K.B. (“Mother“) and Father, who were never married to each other.1 Petitioners are the parents of Mother and the maternal grandparents of C.H.B.
{¶4} On November 20, 2018, Maternal Grandparents filed a Petition for Adoption of C.H.B. alleging that Father‘s consent to the adoption is not required because (1) he had failed without justifiable cause to provide more than de minimis contact with C.H.B. for a year immediately preceding the filing of the adoption petition; and (2) he had failed without justifiable cause to provide for the maintenance and support of C.H.B. as required by law for a period of at least one year immediately preceding the filing of the adoption petition. See
{¶5} On January 2, 2019, Father filed an objection to the adoption. The parties also filed stipulations acknowledging that Father had been convicted by a jury in the Delaware County Common Pleas Court of one count of second degree felony child endangering and one count of third degree felony child endangering against C.H.B. in case number 15 CRI 09 0419. Both of the convictions involved additional findings of serious physical harm to C.H.B. The parties stipulated that
{¶6} The parties further stipulated that on September 25, 2018, Father was granted judicial release and placed on a five-year term of community control following his completion of a program at a Community Based Correctional Facility (“CBCF“). Father was released from the CBCF on January 2, 2019, and placed on community control. According to the stipulations, the conditions of Father‘s community control prohibit him from having contact with C.H.B. or Mother. With regard to the issue of support, the parties’ stipulations stated that Father was incarcerated during the relevant one-year period and therefore he was unable to seek or obtain employment during that time.
{¶7} On January 17, 2019, the trial court issued an “Agreed Judgment Entry” ordering the parties to submit legal memoranda on the issue of whether Father‘s consent to the adoption petition is required under
{¶8} On January 28, 2019, Father filed a “Memorandum Contra” acknowledging his failure to communicate with and to provide support for C.H.B.,
{¶9} On February 5, 2019, Maternal Grandparents filed a “Brief in Support of Final Adoption,” arguing that Father‘s convictions for child endangerment against C.H.B. precluded him from asserting that his imprisonment and no contact orders arising from his conduct underlying those convictions constituted justifiable cause under
{¶10} On October 24, 2019, the trial court issued a judgment entry finding that Father had “failed without justifiable cause to provide more than de minimis contact with the child for at least one year immediately preceding the filing of the petition and that [he] has failed without justifiable cause to provide for the maintenance and support of the child for at least one year immediately preceding filing of the petition.” (Doc. No. 17 at 2). Specifically, with respect to its conclusion
{¶11} Father filed this appeal, asserting the following assignments of error.
ASSIGNMENT OF ERROR NO. 1
THE COURT ERRED TO THE PREJUDICE OF THE APPELLANT AND ABUSED ITS DISCRETION BY FINDING THAT THERE WAS CLEAR AND CONVINCING EVIDENCE OF A FAILURE WITHOUT JUSTIFIABLE CAUSE BY APPELLANT TO PROVIDE FOR THE MAINTENANCE AND SUPPORT OF HIS MINOR CHILD [C.H.B.] FOR A PERIOD OF AT LEAST ONE YEAR IMMEDIATELY PRECEDING EITHER THE FILING OF THE ADOPTION PETITION OR THE PLACEMENT OF THE MINOR IN THE HOME OF THE PETITIONERS, THE APPELLEES.
ASSIGNMENT OF ERROR NO. 2
THE COURT ERRED TO THE PREJUDICE OF THE APPELLANT AND ABUSED ITS DISCRETION BY FINDING THAT THERE WAS A FAILURE WITHOUT JUSTIFIABLE CAUSE BY APPELLANT TO PROVIDE MORE THAN DE MINIMIS CONTACT WITH HIS MINOR CHILD [C.H.B.] FOR A PERIOD OF AT LEAST ONE YEAR IMMEDIATELY PRECEDING EITHER THE FILING OF THE ADOPTION PETITION OR THE PLACEMENT OF THE MINOR IN THE HOME OF THE PETITIONERS, THE APPELLEES.
THE COURT ERRED TO THE PREJUDICE OF THE APPELLANT AND ABUSED ITS DISCRETION BY FINDING THAT THE JURY‘S VERDICT IN CASE NO. 18 CR I 09 0419 [SIC] MUST BE ACCEPTED IN THIS PROCEEDING AS ESTABLISHED FACT IN THAT DOING OTHERWISE WOULD CONSTITUTE EX POST FACTO CONJECTURE AND SPECULATION.
{¶12} Initially, we note that on appeal Maternal Grandparents raise two issues in their brief that are not responsive to the assignments of error. First, Maternal Grandparents contend that the trial court‘s judgment entry finding that Father‘s consent to the adoption is not required does not constitute a final appealable order. To the contrary, the Supreme Court of Ohio has expressly held that a trial court‘s finding that consent is not required pursuant to
{¶13} Second, Maternal Grandparents argue that Father‘s objection to their adoption petition was filed outside the fourteen-day time limit prescribed by
{¶14} We recognize that under
{¶15} Accordingly, we find no merit to these arguments made by Maternal Grandparents and we turn to addressing the issues raised on appeal.
{¶16} For ease of discussion, we elect to address the first and second assignments of error together.
First and Second Assignments of Error
{¶17} In his first and second assignments of error, Father argues the trial court erred in finding that his consent to the adoption is not required. Specifically,
Legal Standard
{¶18} The right of natural parents to the care and custody of their children is one of the most precious and fundamental in law. In re Adoption of Masa, 23 Ohio St.3d 163, 164 (1986) citing Santosky v. Kramer, 455 U.S. 745, 753 (1982). An adoption permanently terminates the parental rights of a natural parent. In re Adoption of Reams, 52 Ohio App.3d 52, 55 (10th Dist.1989). Therefore, “[b]ecause adoption terminates these rights, Ohio law requires parental consent to an adoption unless a specific statutory exemption exists.” In re Adoption of A.N.B., 12th Dist. Preble No. CA2012-04-006, 2012-Ohio-3880, ¶ 5 citing In re Caudill, 4th Dist. Jackson No. 05CA4, 2005-Ohio-3927, ¶ 14.
{¶19} One such statutory exception to the consent requirement is contained in
Consent to adoption is not required of any of the following:
(A) A parent of a minor, when it is alleged in the adoption petition and the court, after proper service of notice and hearing, finds by clear and convincing evidence that the parent has failed without justifiable cause to provide more than de minimis contact with the minor or to provide for the maintenance and support of the minor as required by law or judicial decree for a period of at
least one year immediately preceding either the filing of the adoption petition or the placement of the minor in the home of the petitioner.
{¶20} The Supreme Court of Ohio has articulated a two-step analysis for probate courts to employ when applying
{¶21} The first step involves the factual question of whether the petitioner has proven, by clear and convincing evidence, the natural parent failed to provide for the maintenance and support of the child or failed to have more than de minimis contact with the child. In re Adoption of M.B. at ¶ 23. Clear and convincing evidence is that measure or degree of proof which is more than a mere “preponderance of the evidence,” but not to the extent of such certainty as is required “beyond a reasonable doubt” in criminal cases, and which will produce in
{¶22} If a probate court makes a finding that the parent failed to support or contact the children, the court proceeds to the second step of the analysis and determines whether the petitioner proved by clear and convincing evidence that this failure was without justifiable cause. In re Adoption of M.B., 131 Ohio St.3d 186, 2012-Ohio-236. The question of whether justifiable cause for the failure to contact the child has been proven in a particular case, “is a determination for the probate court and will not be disturbed on appeal unless such determination is against the manifest weight of the evidence.” Id. “In determining whether a judgment is against the manifest weight of the evidence, we must review the entire record, weigh the evidence and all reasonable inferences, consider witness credibility, and determine whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of justice that there must be a reversal of
1. Failure to Provide Contact
{¶23} The parties stipulate that Father had no communication with C.H.B. during the relevant statutory time period. However, Father maintains that the no contact orders issued in his criminal case constitute justifiable cause and therefore the requirement for his consent to the adoption cannot be obviated. The trial court concluded the following with respect to Father‘s failure to contact C.H.B:
The petitioner cites the cases of In re Adoption of A.S. (2011) 2011-Ohio-1505, and In re A.K. (2017) 2017-Ohio-9165, as authority for the proposition that a respondent who has been convicted and incarcerated for an offense against the child the subject of an adoption petition should not be allowed to reap any legal benefit from the consequences of that conviction. This court finds the reasoning set forth in those two decisions to be persuasive and applicable in this case. So, based upon the incarceration and the reason for that incarceration this court finds there was not justifiable cause for the failure to provide
more than de minimis contact with the child for one year immediately preceding the filing of the petition * * *.
(Doc. No. 17 at 2) (emphasis sic).
{¶24} Father relies upon In re Schoeppner to argue that the trial court improperly considered his incarceration in finding that his consent to the adoption is not required. See In re Schoeppner, 46 Ohio St.2d 21 (1976). It goes without saying that Ohio adoption law has changed significantly since In re Schoeppner addressed a prior version of the consent requirement and exceptions in 1976, which was less extensive than today and most of the provisions were contained in a single statute.4 Nevertheless, In re Schoeppner did not hold, as Father appears to contend, that a parent‘s incarceration prevented a trial court from finding that the consent was not required for an adoption. Rather, that Court concluded only that incarceration, in and of itself, did not remove the consent requirement: “[A]lthough the fact of imprisonment might, when combined with other factors, lend support to a finding of a willful failure to support * * * it will not constitute such failure as a matter of law.” (Citations omitted.) Id. at 24.
No Contact Provisions and Justifiable Cause
{¶25} Here, the trial court relied on the reasoning recently set forth by the Eighth District to conclude that the orders prohibiting Father from having contact
{¶26} In In re A.K., the father was convicted and sentenced to serve a prison term of twenty three years to life for murdering the children‘s mother. In re A.K., et. al, 8th Dist. Cuyahoga No. 105426, 2017-Ohio-9165, ¶ 2. In October of 2006, the juvenile court issued a no contact order against the father. Id. Specifically, the order stated that “Father shall have no contact with the minor children absent an Order from this Court.” Id. at ¶ 25. In February of 2007, the juvenile court granted permanent custody of the children to the children‘s maternal grandparents.” Id. at ¶ 2. There was no order of child support in effect and the maternal grandparents did not request support. Id. at ¶ 8.
{¶27} In June of 2015, the maternal grandparents filed a petition to adopt the children asserting the father‘s consent was not required. In re A.K., 2017-Ohio-9165, ¶ 3. The father objected to the petition arguing he had justifiable cause, pointing to the no contact order issued by the juvenile court. Id. at ¶ 5. The magistrate held hearings on the issue of the father‘s consent where the father established that he “has numerous letters and cards that he has written to the children that he gives to the paternal grandmother for safekeeping.” Id. at ¶ 6. The father further “participates in a program that allows him to have Christmas gifts
{¶28} The magistrate determined that the father‘s failure to communicate and to provide support were justified, requiring the father‘s consent to the adoption. In re A.K., 2017-Ohio-9165, ¶ 10. The maternal grandparents filed objections, which were sustained by the trial court. Id. at 13. Specifically, the trial court concluded that ” ‘[b]ut for [the father‘s] heinous actions, the children‘s mother would still be alive,’ the father ‘would not be in prison, and the children would not now be subject to these Adoption proceedings. He should not now be allowed to reap any legal benefit from the consequences of his crime.’ ” Id. at ¶ 27, citing the trial court‘s Journal Entry No. 1382500 (Dec. 4, 2016), at p. 7.
{¶29} On appeal, the Eighth District upheld the trial court‘s conclusion that the no contact order did not constitute justifiable cause under
We wholly agree with the trial court‘s conclusion that ‘public policy dictates that the very unique circumstances of this case not be disregarded.’ ‘[U]nlike individuals who are in prison for crimes unrelated to their children,’ ‘it would be entirely unjust to allow [Respondent] to use his imprisonment’ to justify the failure to contact and support where Respondent‘s ‘own actions’ ‘necessitated his prison sentence in the first place.’
{¶30} Other Ohio appellate districts have reached similar conclusions in cases involving these circumstances. See e.g., In re Adoption of N.T.R., 10th Dist. Franklin No. 16AP-589, 2017-Ohio-265 (where the father had raped his stepdaughter and the Ohio Department of Rehabilitation and Correction had ordered that the father not contact his daughter because his daughter lived with his stepdaughter, the victim, and the appellate court determined that the father had failed to have more than de minimis contact with his daughter, and that this failure was without justifiable cause); Askew v. Taylor, 5th Dist. Stark No.2004CA00184, 2004-Ohio-5504, ¶ 14-16 (finding that, although appellant had been incarcerated and was prohibited from having contact with his children pursuant to court order, he was incarcerated on two counts of felony child endangering as a result of injuring the children, and justice requires that the court not ignore the reason appellant was put into his current position; appellant‘s own violent acts caused the subsequent lack of contact, and that he created his own circumstances and should not be allowed to benefit from the consequences of this); In re Adoption of Tucker, 11th Dist. Trumbull No. 2000-T-0144, 2001-Ohio-8774 (finding, in the context of justifiable
{¶31} While it is our belief that the foregoing decisions should probably be limited to their facts and applied on a case-by-case basis, here, it is undisputed by the parties that Father was convicted of two counts of felony child endangering with additional findings of serious physical harm against C.H.B. Thus, it was Father‘s voluntary and violent criminal conduct towards C.H.B. that resulted in the no contact order with C.H.B. Therefore, in this instance, even assuming arguendo that a no contact order had been in existence for the entire one-year statutory period, we conclude that the trial court‘s determination that the no contact order issued in the ancillary criminal case did not constitute justifiable cause under
2. Failure to Provide Maintenance and Support
{¶32} On appeal, Father also contends that no support order had ever been issued by a court of competent jurisdiction regarding his support of C.H.B. Notably, the only evidence in the record regarding Father‘s support obligation for C.H.B. is the parties’ stipulation that Father “was also not able to seek work or obtain
{¶33} Recently, the Supreme Court of Ohio reviewed the various statutory provisions governing a natural parent‘s duty to support his or her child. See In re Adoption of B.I., 157 Ohio St. 3d 29, 2019-Ohio-2450. The majority in B.I. explained that:
R.C. 3103.03 sets forth a parent‘s obligation to support his or her children in the absence of a child-support order. “Under R.C. 3103.03, all parents, whether married or not, have a duty to support their minor children; it follows logically from this that all children have a right to be supported by their parents, regardless of the parents’ marital status.” In re Dissolution of Marriage of Lazor, 59 Ohio St.3d 201, 202, 572 N.E.2d 66 (1991).7 But this general statutory declaration does not end our inquiry; it is merely the beginning.
* * *
Ohio‘s statutory scheme regarding families and children makes clear that there are two statuses of parental obligation: first, a general obligation of parents to support their children imposed by law in R.C. 3103.03, and second, a specific child-support obligation imposed by judicial decree pursuant to R.C. 3109.05 and Chapter 3119 that supersedes the general obligation once the court issues its decree. When R.C. 3107.07(A) uses ‘or’ in the phrase ‘by law or judicial decree,’ it recognizes that a parent‘s obligation of support can have one of two possible statuses–general or specific. But a parent can have only one obligation status at a time. * * * A parent is subject either to the general obligation or to a specific obligation and is evaluated accordingly.
{¶34} In the case sub judice, Father relies on the rationale expressed in In re Adoption J.A.B. to support his stance that justifiable cause for failure to support under
{¶35} However, in light of the Supreme Court‘s holding in B.I, the Eleventh District has since acknowledged its reasoning in In re Adoption J.A.B. does not consider a parent‘s general obligation to provide child support under
{¶36} Here, we are not persuaded by Father‘s argument that his incarceration and the absence of a support order obviated his independent obligation
Third Assignment of Error
{¶37} In his third assignment of error, Father argues that the trial court improperly considered the facts of his underlying convictions for child endangering against C.H.B. in determining that his consent is not required to the adoption. Initially, we note that Father has pointed us to no authority that would prevent the trial court from considering such circumstances. To the contrary, at least one appellate district has stated that “[i]t would be a grave injustice for the court to be unable to consider the underlying circumstances of appellant‘s situation and the reasons for his incarceration in making a justifiable cause determination under
{¶38} For all these reasons, the assignments of error are overruled and the judgment of the trial court is affirmed.
Judgment Affirmed
PRESTON and ZIMMERMAN, J.J., concur.
/jlr