In the Matter of the Adoption of K.A.H et al., (W.J.H., Appellant).
No. 14AP-831 (Prob. No. 559762)
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
May 21, 2015
[Cite as In re Adoption of K.A.H., 2015-Ohio-1971.]
TYACK, J.
(REGULAR CALENDAR)
Rendered on May 21, 2015
Nina P. Scopetti, for appellee.
J. Douglas Stewart, for appellant.
APPEAL from the Franklin County Court of Common Pleas, Probate Division
TYACK, J.
{¶ 1} Appellant, W.J.H., is appealing the decision of the Franklin County Probate Court which required that P.C.‘s consent be obtained before his children can be adopted by their step-father. For the following reasons, we affirm the probate court‘s decision.
{¶ 2} W.J.H. presents three assignments of error for our consideration:
[I.] THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BECAUSE IT MISAPPLIED THE “MORE THAN DE MINIMIS CONTACT WITH THE MINOR CHILD” STANDARD SET FORTH UNDER
§3107.07 OHIO REVISED CODE .[II.] THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY DETERMINING THAT THE EXISTENCE OF A ZERO SUPPORT ORDER NEGATES THE FATHER‘S COMMON LAW DUTY OF SUPPORT.
[III.] THE TRIAL COURT COMMITTED ERROR TO THE PREJUDICE OF THE APPELLANT BY FAILING TO APPLY
§3107.07 (K) THEREBY PROMOTING SURPRISES AT TRIAL AND FRUSTRATING THE ORDERS OF THE COURT.
{¶ 3} W.J.H. petitioned to adopt two minor children, K.A.C. and P.C.C. Both children were born to S.H., formerly known as S.C., while she was married to P.C. The couple divorced in 2009. The divorce decree incorporated a shared parenting plan and ordered that P.C. pay no child support. S.H. was employed as a physician during all material times and appeared to be drawing an income many times greater than P.C. Shortly after the divorce, P.C. moved to England.
{¶ 4} In 2011, S.H. and the petitioner W.J.H. were married. In April 2013, W.J.H. petitioned to adopt the children. P.C. received notice of the adoption petition on or about June 13, 2013 and filed a written objection on July 26, 2013. The petition for adoption alleged that P.C.‘s consent to the adoption was not necessary due to the provisions of
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.
{¶ 5} After a hearing, the probate court‘s magistrate found that the consent of P.C. was required. This finding was based upon a factual finding that between July 1, 2012 and March 24, 2013, P.C. placed calls to his children totaling 91 minutes at a cost of 112 British Pounds Sterling, the equivalent of roughly $174 U.S.D. Because of the phone calls and because of an undetermined number of cards and gifts which were provided during the relevant time frame, the magistrate found W.J.H. failed to demonstrate by clear and convincing evidence that P.C. did not have more than de minimis contact with his children.
{¶ 7} The Supreme Court of Ohio has articulated a two-step analysis for probate courts to employ when applying
{¶ 8} W.J.H.‘s first assignment of error argues that P.C.‘s 91 minutes of phone calls and a few cards do not amount to more than de minimis contact with the children. There is evidence that many of these minutes were spent waiting for the maternal grandparents, who P.C. would call to put the children on the phone. There is also evidence that, on some phone calls, P.C. was unable to speak to the children.
{¶ 9} We review the probate determination of the significance of these facts under an abuse of discretion standard. M.B. at ¶ 25. “The term ‘abuse of discretion’ connotes more than an error of law or judgment; it implies that the court‘s attitude is unreasonable, arbitrary or unconscionable.” Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).
{¶ 10} W.J.H. makes the argument that since the legislature recently changed the language of
{¶ 11} Comparing examples of when other courts have found that no more than de minimis contact existed, we see that the standard has not been raised higher by Ohio courts: In re Adoption of A.L.C., 7th Dist. No. 14 BE 4, 2014-Ohio-4045 (father did not contact the child for over one year but argued he had a justifiable cause); In re Adoption of R.L.H., 2d Dist. No. 25734, 2013-Ohio-3462 (mother voluntarily suspended her agreed upon court-ordered parenting time, and mother did not see, speak, or correspond with the child); In re Adoption of K.D., 6th Dist. No. L-09-1302, 2010-Ohio-1592 (father‘s only effort to contact the child was through an internet site and a visit to a clerk‘s office, and the father‘s limited cognition and bi-polar disorder did not provide justifiable cause); In re M.F., 9th Dist. No. 27166, 2014-Ohio-3801 (father failed to contact the child, but was prevented by court order and later by the mother ignoring his email requests); In re Adoption of J.A.C., 4th Dist. No. 14CA3654, 2015-Ohio-1662 (father only performed a single two-hour visitation during the year). Contrasting these examples where courts found that there was no more than de minimis contact with the children with P.C.‘s short but regular phone calls, we cannot find that the probate court‘s decision is unreasonable, arbitrary or unconscionable.
{¶ 12} We note the well-established law that the right to parent one‘s children is a fundamental right. Troxel v. Granville, 530 U.S. 57, 66 (2000); In re C.F., 113 Ohio St.3d 73, 2007-Ohio-1104, ¶ 28. Parents have a “fundamental liberty interest” in the care, custody, and management of the child. Santosky v. Kramer, 455 U.S. 745, 753 (1982). In recognition of the significance of that fundamental interest, the Supreme Court of Ohio has described the permanent termination of parental rights as “the family law equivalent of the death penalty in a criminal case.” In re Hayes, 79 Ohio St.3d 46, 48 (1997). Therefore, parents “must be afforded every procedural and substantive protection the law allows.” Id. In regard to the permanent termination of parental rights specific to the
{¶ 13} We find that the probate court did not abuse its discretion in determining that W.J.H. failed to prove by clear and convincing evidence that P.C. did not provide more than de minimis contact with his children.
{¶ 14} The first assignment of error is overruled.
{¶ 15} W.J.H.‘s second assignment of error argues that the existence of a zero support order does not negate P.C.‘s common law duty of support. P.C. argues that the existence of a zero support order is justifiable cause to not have provided financial support for his children. A probate court‘s decision on whether justifiable cause exists will not be disturbed on appeal unless the determination is against the manifest weight of the evidence. M.B. at ¶ 24; Masa at paragraph two of the syllabus. Decisions supported by competent, credible evidence going to all the essential elements of the case will not be reversed as being against the manifest weight of the evidence. Melvin v. Ohio State Univ. Med. Ctr., 10th Dist. No. 10AP-975, 2011-Ohio-3317, ¶ 34; see C. E. Morris Co. v. Foley Const. Co., 54 Ohio St.2d 279 (1978).
{¶ 16} Examining the nature of the duty of support and maintenance to which
{¶ 17} “The biological or adoptive parent of a minor child must support the parent‘s minor children out of the parent‘s property or by the parent‘s labor.”
{¶ 18} However, when a husband and wife are divorced, their obligation to support a minor child is governed by the domestic relations child support statute,
{¶ 19} The probate court, in the case at bar, determined that the shared parenting plan which set P.C.‘s child support payments as $0 was incorporated into the divorce decree. The probate court reasoned that, when no support order is issued at the time of the custody award, the custodial parent is not entitled to support payment. See Id. The trial court then found that when no support was due from one of the parents, said determination is an applicable judicial order for purposes of consent under
{¶ 20} In In re Way, the mother‘s consent was found not be required by the probate court under
We believe that appellant could have reasonably assumed that this order relieved her of any obligation to provide support of any kind. If this was not the case, and if appellant did risk the loss of her parental rights by complying with that order, we believe that notions of fundamental fairness require that appellant be provided notice to that effect.
Id. at 10. The fourth district, in its analysis, continually relies on the fact that a juvenile court relieved the mother of child support.
{¶ 21} Other appellate courts have found that a zero support order is a justifiable excuse to not provide support. In re Adoption of Stephens, 2d Dist. No. 18956 (Dec. 21, 2001). “Where a domestic relations court has reviewed the facts and determined that no support is due from one of the parents, that is an applicable judicial order for the purposes of
To additionally compel the application of
R.C. 3103.03 when there is already a valid judicial order in existence would be to incorrectly interpretR.C. 3107.07 to mean: “as required by law in addition to a judicial decree where a domestic relations court has determined that child support should be not set.” We decline to apply this expansive interpretation of the statutes to the detriment of the natural parent.
(Emphasis sic.) In re Adoption of Jarvis, 9th Dist. No. 17761 (Dec. 11, 1996).
{¶ 22} The record indicates that P.C. did provide some gifts and birthday cards. This court has held that supplying gifts and other nonessential items is not considered support or maintenance for purposes of
{¶ 23} However, we find that the child support order of zero dollars that was incorporated into the divorce decree governs in this case. P.C.‘s common-law duty to support, which is reduced to statute
{¶ 24} The second assignment of error is overruled.
{¶ 25} The third assignment of error argues that the trial court committed error to the prejudice of appellant by failing to apply
{¶ 26}
Except as provided in divisions (G) and (H) of this section, a juvenile court, agency, or person given notice of the petition pursuant to division (A)(1) of section 3107.11 of the Revised Code that fails to file an objection to the petition within fourteen days * * *.
{¶ 27} It is clear that P.C. failed to file an objection to the petition within the requisite 14 days, but he did file on July 26, 2013. However, the hearing on the matter did not occur for several more months in October 2013. W.J.H. did not raise this matter until after the magistrate had already issued a decision on his objections to the magistrate‘s decision.
{¶ 28} A party who fails to raise an argument in the court below waives his or her right to raise it on appeal. State ex rel. Zollner v. Indus. Comm., 66 Ohio St.3d 276, 278 (1993). It is well-settled that a litigant‘s failure to raise an issue before the trial court waives the litigant‘s right to raise that issue on appeal. Ordinarily, errors which arise
{¶ 29} The third assignment of error is overruled.
{¶ 30} Having overruled the assignments of error, the decision of the Franklin County Court of Common Pleas, Probate Division, is affirmed.
Judgment affirmed.
SADLER and LUPER SCHUSTER, JJ., concur.