In Re Adoption of G.T.R., Ca2007-03-039 (7-23-2007)
{¶ 1} Appellant, Michael C. (“father“), appeals the determination of the Clermont County Court of Common Pleas, Probate Division, that his consent was not requirеd for the adoption of his two children by the new husband of the children‘s mother.
{¶ 2} Father and mother were divorced in 2001, and in the decree, father was ordered to pay child support for the couple‘s two minor children from the marriage. The mother subsequently remarried, and in September 2006, her husband filed a petition for adoption of
{¶ 3} An evidentiary hearing was hеld before a probate court magistrate. The magistrate issued a decision on January 17, 2007. Relying upon the guidance provided by
{¶ 4} Father appeals the decision of the probate court, presenting two assignments of error for our review.
{¶ 5} Assignment of Error No. 1:
{¶ 6} “APPELLANT [FATHER] WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL[.]”
{¶ 7} Assignment of Error No. 2:
{¶ 8} “THE TRIAL COURT ERRED IN GRANTING APPELLEE‘S [STEPFATHER] PETITION FOR ADOPTION[.]”
{¶ 9} Father argues under the first assignment of error that his trial counsel was ineffective for failing to notify him that the magistrate‘s decision had been issued until it was too late to timеly file objections.
{¶ 10} Father asserts in his second assignment of error that the stepfather did not carry his burden to show that father‘s failure to communicate with his children was unjustified. In support of his argument, father contends that he testified at the hearing that he failed to communicate with his children because the children‘s mother prohibited him from contacting them.
{¶ 11} First, we begin our discussion with the statutory provision and corresponding law
{¶ 12}
{¶ 13} “(A) A parent of a minor, when it is alleged in the adoption petition and the court finds after proper service of notice and hearing, that the parent has failed without justifiable cause to communicate with the minor or to provide for the maintenаnce 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.”
{¶ 14} The petitioner for adoption hаs the burden to prove by clear and convincing evidence that the natural parent failed to support or communicate with the child for a one-year period and that the failure was without justifiable cause. In re Adoption of Masa (1986), 23 Ohio St.3d 163, paragraph one of syllabus; In re Adoption of Holcomb (1985), 18 Ohio St.3d 361, paragraph four of syllabus.
{¶ 15} Once the petitioner has established, by clear and convincing evidence, that the natural parent has failed to support the child for at least the requisite one-year period, the burden of going forward with the evidence shifts tо the natural parent to show some facially justifiable cause for such failure; the burden of proof, however, remains with the petitioner. In re Adoption of Bovett (1987), 33 Ohio St.3d 102, paragraph two of syllabus; In re Adoption of Barkhurst, Butler App. No. CA2002-04-0819, 2002-Ohio-4711, ¶ 12.
{¶ 16} The questiоn of whether a natural parent‘s failure to communicate or support his or her child has been proven by the petitioner by clear and cоnvincing evidence to have been without justifiable cause is a determination for the probate court, and will not be disturbed on appeal unless suсh determination is against the manifest weight of the evidence. Bovett,
{¶ 17} Under
{¶ 18} Father‘s two assignments of error on appeal are problematic for his goal of overturning the prоbate court‘s decision.
{¶ 19} First, father claims his trial counsel‘s ineffectiveness forces him to sustain a “heavier burden” of showing plain error in the probate court‘s finding that he failed without justifiable cause to communicate with his children. See
{¶ 20} Secondly, father directly attacks the probate court‘s determination that he failed without justifiable cause to communicate with his children for the requisite period, by arguing that justifiable cause was shown.
{¶ 21} A significant factor in this case, however, is conspicuous by its absence in father‘s arguments. Specifically, father ignores and does not challenge the probate court‘s determination that he failed without justifiable cause to maintain or support his children as required by law or judicial decree for a period of at least one year immediately preceding the filing of the adoption petition.
{¶ 22}
{¶ 23} Regardless of our determination on whether father failed without justifiable cause to communicate with his children, father‘s consent to the adoption is not required because of the determination that he failed without justifiable cause to provide maintenance and suppоrt for his children for one year prior to the adoption petition. The probate court‘s determination that father failed to provide maintenance and support for his children stands as an order of the probate court.1
{¶ 24} Any analysis and decision we would render on father‘s two assignments of error would have no impact on the outcome of this case. See Miner v. Witt (1910), 82 Ohio St. 237, 238 (duty of a reviewing court is to decide actual controversies by a judgment thаt can be carried into effect, and not to give opinions upon moot questions or abstract propositions, or to declare princiрles or rules of law that cannot affect the matter in issue in the case); see Andonian v. A.C. S, Inc. (1994), 97 Ohio App.3d 572, 575-576 (court will not issue an advisory opinion and will not issue a decision that dоes not affect the case before it).
{¶ 25} Accordingly, father‘s first and second assignments of error are overruled.
{¶ 26} Judgment affirmed.
YOUNG, P.J., and BRESSLER, J., concur.