IN RE: ADOPTION OF O.J.B.
CASE NO. CA2020-01-004
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO WARREN COUNTY
8/24/2020
[Cite as In re Adoption of O.J.B., 2020-Ohio-4184.]
APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS PROBATE DIVISION Case No. 20195052
Diehl & Hubbell, LLC, Kelly McKoy, 304 East Warren Street, Lebanon, Ohio 45036, for appellees
M. POWELL, P.J.
{1} Appellant, the biological mother of O.J.B. (“mother“), appeals the decision of the Warren County Court of Common Pleas, Probate Division, determining that her consent to O.J.B.‘s adoption was not required. For the reasons discussed below, we affirm the probate court‘s decision.
{2} O.J.B. was born in August 2017. Shortly after his birth, O.J.B.‘s maternal grandparents, appellees herein, (“grandmother” and “grandfather” individually, or “grandparents” collectively), received temporary custody of O.J.B. through the Warren
{3} Grandparents filed a petition to adopt O.J.B. on July 1, 2019. The probate court held a hearing in September 2019 in which mother appeared and objected to the adoption. The probate court chose to bifurcate the hearing on grandparents’ adoption petition and separately address the issues of the necessity of parental consent and the child‘s best interest. In November 2019, the probate court held a hearing on the issue of parental consent. At this hearing, the probate court heard testimony from grandmother, grandfather, and mother. In addition, both parties presented several documentary exhibits, including the order from the juvenile court granting grandparents legal custody of O.J.B. and screenshots of several text message conversations between mother and grandparents. As a result of the hearing, the probate court determined that mother‘s consent to the adoption was not required because mother had unjustifiably failed to engage in more than de minimis contact with O.J.B. or to provide maintenance and support to O.J.B. in the year immediately preceding the filing of the adoption petition.1
{4} Mother appeals that decision, raising one assignment of error for review.
{5} Sole Assignment of Error:
{7} In her sole assignment of error, mother argues the trial court erred in determining that her consent to the adoption was not required. In support, she contends that she maintained “significant” contact with her child during the year preceding the adoption petition and that she had no obligation to provide support. Mother alternatively asserts that any failure to maintain contact was justifiable because grandfather had prevented her from contacting O.J.B. since February 2019, and she was unable to physically meet with O.J.B. because she was thousands of miles away in Hawaii. Finally, mother argues that any failure to provide support was justifiable because she was “barely making enough to support herself,” had additional expenses relating to the birth and care of her second child, and any extra money she earned she saved to afford travel to Ohio.
{8} Natural parents have the right to the care and custody of their children. In re Adoption of C.M.F., 12th Dist. Butler Nos. CA2013-06-090 and CA2013-06-091, 2013-Ohio-4719, 8. An adoption permanently terminates the parental rights of a natural parent. In re Adoption of L.C.W., 12th Dist. Butler No. CA2014-08-169, 2015-Ohio-61, ¶ 10;
{9} At issue here is the exemption to parental consent found in
[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.
{10} The petitioner bears the burden of proving each element by clear and convincing evidence. In re adoption of S.A.N., 12th Dist. Warren No. CA2019-03-025, 2019-Ohio-3055, ¶ 8. After the petitioner has established the parent‘s lack of contact or support, the parent bears the burden of going forward with evidence to show a facially justifiable cause for the failure, although, the burden of proof remains on the petitioner. Id., citing citing In re Adoption of Bovett, 33 Ohio St.3d 102, 104 (1987).
{11} An appellate court applies two different standards of review to the probate court‘s decision on parental consent. The probate court has discretion to determine whether the parent‘s contact with the child or provision of support met the statutory standard,
{12} For the second element, justifiable cause, an appellate court applies a manifest weight of the evidence standard. An appellate court will not overturn the probate court‘s determination unless it was against the manifest weight of the evidence. See In re Adoption of Masa, 23 Ohio St.3d 163 (1986), paragraph two of the syllabus. On a manifest weight of the evidence review, this court examines the entire record, weighs the evidence and all reasonable inferences, considers witness credibility, and determines whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of justice that the judgment must be reversed and a new trial ordered. In re Adoption of L.C.W., 12th Dist. Butler No. CA2014-08-169, 2015-Ohio-61, ¶ 14.
{13} Here, the probate court found that mother neither sufficiently contacted O.J.B. in the year preceding the adoption petition, nor provided any maintenance or support for O.J.B. Regarding the interaction between mother and O.J.B., the probate court observed that contact was sporadic. Mother directly spoke to O.J.B. on only one occasion between June 2018 and July 2019 via a telephone call. The court noted that mother requested to speak with O.J.B. through video call on two other occasions, but neither video call occurred. In the first instance, mother and grandparents arranged for a call in September 2018, but mother did not show up for the scheduled call. In the second instance, mother called grandparents sometime in January 2019 to arrange a video call. During this meeting mother became vocally argumentative with grandparents, such that grandfather ended the telephone call before the parties could further arrange a video call. The probate court also
{14} Considering the lack of maintenance and support, the probate court found that mother did not provide for O.J.B.‘s support or maintenance yet she had worked various jobs throughout the look-back period. The probate court noted that mother did not have a child support obligation imposed upon her by court order, but that mother had a general duty, pursuant to
{15} After review of the record, we find that the probate court did not err when it determined that mother‘s consent was not required for the adoption to proceed. Contrary to mother‘s assertion on appeal that she had “significant” contact, mother admitted at the hearing that she only communicated with O.J.B. on one occasion via telephone. Additionally, mother had no physical interaction with O.J.B. because she lived in Hawaii and never visited Ohio between June 2018 and July 2019. One telephone call, over the course of a year, is not “significant” contact. See e.g. In re Adoption of T.U., 6th Dist. Williams No. WM-19-012, 2020-Ohio-841, ¶ 25 (must be more effort than one time contact); see also In re Adoption of K.A.H., 10th Dist. Franklin No. 14AP-831, 2015-Ohio-1971, ¶ 10. Moreover, grandmother testified that mother never asked to speak to O.J.B. after February 2019. The lack of communication between mother and O.J.B. is in contrast to mother‘s communication with grandmother. While also irregular and limited, mother stayed in touch with grandmother. Grandmother testified that her contact with mother consisted of a few
{16} Turning to the next element, the record establishes that mother‘s failures to engage in more than de minimis contact with O.J.B. or to provide support for him was without justifiable cause. Mother argues that she was justified in not contacting O.J.B. because grandfather barred contact. On appeal mother argues that grandfather prevented contact around February 2019, however, this differs from her testimony at the hearing wherein she indicated grandfather prohibited her contact in the fall of 2018. The record further belies mother‘s contention that grandparents interfered with her contact because both grandmother and mother testified that they tried, but failed, to arrange a video call with O.J.B. around January 2019. Also, mother admitted that she stayed in contact with grandmother into mid-2019 and grandmother never expressly told her not to contact O.J.B. Grandfather testified that he only spoke to mother on a few occasions during the look-back year. Grandfather acknowledged that he told mother to return to Ohio to care for O.J.B and that he refused to pay for mother‘s travel expenses, however, he testified that he did not prohibit her from contacting O.J.B. Therefore, the record shows that grandparents did not significantly interfere with mother‘s ability to contact O.J.B. See e.g. In re Adoption of A.L.S., 2018-Ohio-507 at ¶ 26 (no substantial interference by adoption petitioner where parent knew where child resided, yet never visited, and only engaged in sporadic telephone calls). Also, mother admitted that she did not engage in other indirect forms of communication with
{17} As to justifiable cause for failing to provide support, mother‘s reliance on In re Adoption of B.I., 157 Ohio St.3d 29, 2019-Ohio-2450, is misplaced. At issue in In re Adoption of B.I. was the effect of a “no-support order” on a parent‘s general statutory obligation to provide child support pursuant to
{18} Next, it is the “period as a whole” that the probate court must consider when determining whether there was justifiable cause for the parent‘s lack of support. In re adoption of Bovett, 33 Ohio St.3d 102 at paragraph three of the syllabus. Moreover, “ability
{19} Finally, mother acknowledged at the hearing that she was willing and able to provide support for O.J.B. but believed it was unnecessary to send money or supplies to grandparents because they did not need it or request it. As the Ohio Supreme Court has explained, “one of the factors which the probate court may consider in addition to ability but failure to pay court-ordered support is the voluntariness or intent of the parent‘s failure to make such payments.” (Emphasis added.) In re Adoption of Lay, 25 Ohio St.3d 41, 43 (1986). Here, mother‘s admission shows that the lack of support was an intentional decision to withhold funds and supplies. Accordingly, the probate court‘s determination that there was no justifiable cause for mother‘s failure to support O.J.B. was not against the manifest weight of the evidence.
{20} In light of the foregoing, mother‘s sole assignment of error is overruled.
{21} Judgment affirmed.
S. POWELL and PIPER, JJ., concur.