IN RE: ADOPTION OF S.M.H.
C.A. CASE NO. 2013 CA 59
IN THE COURT OF APPEALS FOR GREENE COUNTY, OHIO
January 10, 2014
2014-Ohio-45
T.C. NO. 10286SP-13-15; (Civil appeal from Common Pleas Court, Probate Division)
Rendered on the 10th day of January, 2014.
RONALD P. KELLER, Atty. Reg. No. 0016176, 85 W. Main Street, Xenia, Ohio 45385 Attorney for Appellant
DAVID S. PETERSON, Atty. Reg. No. 0007836, 87 S. Progress Drive, Xenia, Ohio 45385 Attorney for Appellee
FROELICH, P.J.
{1} R.S., Jr. (“R.S.“) the biological father of S.M.H, appeals from a judgment of the Greene County Court of Common Pleas, Probate Division, which found that his consent to S.M.H.‘s adoption by G.H. was not required. The court‘s conclusion was
{2} For the following reasons, the judgment of the probate court will be affirmed.
{3}
{4} Probate courts undertake a two-step analysis when applying
{5} The child, S.M.H. was born in 2002 and was eleven years old when the petition for adoption was filed. She had lived her entire life with her mother, F.H., who married G.H. in 2008, and had no contact with R.S. after four months of age. In early 2003, R.S. was convicted of menacing by stalking against the child‘s mother; as part of his sentence, the Xenia Municipal Court ordered him to have no contact with the child‘s mother for ten years. Around the same time, the mother also obtained a civil protection order for five years in the Greene County Court of Common Pleas,1 of which R.S. was also aware. These facts were undisputed.
{6} The petition for adoption was filed in February 2013 and alleged that R.S. had both failed to support and failed to contact his child for at least one year. However, the parties and a child support enforcement agency employee testified that child support had been terminated, at the request of the mother, in February 2003. R.S. was aware of the mother‘s request and, although he claimed that he had wanted to support his child, he did not claim to have objected to the termination of his support obligation. The mother‘s request was motivated by her concern that her address would be available to R.S. through the child support documents. Based on this testimony, the probate court found that R.S.‘s failure to support the child had been justified. This finding is not at issue in this appeal.
{8} Although F.H. testified that she had asked to terminate child support in 2003 because she did not want to provide her address to R.S. after he had menaced her, she and G.H. further testified that they had known R.S. since attending high school together, that they still had mutual friends, and that they attended the same church as F.H. had attended when she and R.S. were together. F.H. also testified that her mother‘s phone number and G.H.‘s parents’ phone number were the same as they had been when the parties were in high school, and that the parents had lived in the same places until very recently. G.H. testified that he was listed in the White Pages. F.H. and the church‘s pastor testified that her employment by the church was stated on the church‘s website, along with contact information, and that this listing could be obtained through a Google search. F.H. expressed her opinion that R.S. would have been able to find her address through mutual friends, her church, or through the Internet if he had wanted to do so. G.H.‘s mother also testified that she had run into R.S. at a grocery store in 2009, at which time they had discussed her son‘s marriage to the child‘s mother.
{9} R.S. asserted that, many years earlier, the child‘s mother had refused to let
{10} On rebuttal, F.H. denied that she had ever threatened to keep R.S. from his child and denied that she had desired to continue a sexual relationship with him at the time of their breakup.
{11} Following the hearing, the magistrate found that R.S. lacked justifiable cause for his failure to have contact with the child for at least one year prior to the filing of the petition and recommended that the petition for adoption be granted. R.S. filed objections to the magistrate‘s decision.
{12} On September 20, 2013, the probate court overruled R.S.‘s objections, agreed with the magistrate‘s conclusions, and issued a Final Decree of Adoption. The court stated:
* * * [R.S.] contends that his lack of contact was justifiable because he did not know where his daughter lived and that he was afraid to search because he was subject to protection orders for domestic violence and menacing by stalking. The Magistrate did not find [R.S.‘s] testimony credible. The Court agrees.
First and foremost, [R.S.] mistakenly assumed that the protection orders precluded him from contacting his child‘s mother and his child. It is clear on the face of the orders that neither of them applied to his daughter. Further, the protection orders were a result of [R.S.‘s] own conduct, not from any intentional efforts by the child‘s mother to interfere with parental rights. He cannot use his own misconduct to justify his decade-long absence from his daughter‘s life. Despite this, [R.S.] could have easily pursued visitation rights through Juvenile Court or through modification of the protection orders. He failed to make any attempt to do so. The child‘s mother testified that she would not have objected to supervised visitation.
[R.S.‘s] excuse that he did not know where his daughter lived is also not plausible, either. He, the child‘s mother and the Petitioner all knew each other from high school and had many common friends. They all lived in Xenia, Ohio - a small town with a population of only about 26,000. Although the child‘s mother did not flaunt her address and phone number, nor did she actively try to hide it from [R.S.] or anyone else. [R.S.‘s] testimony regarding his justification for not contacting his daughter for over 10 years simply is not credible. The Petitioner‘s evidence is.
{14} The parties did not dispute that R.S. had failed to have any contact with the child for many years. Thus, the probate court did not abuse its discretion in finding that R.S. had failed to have contact with the child. R.S. contends, however, that the court‘s conclusion as to whether the lack of contact was justified was not supported by clear and convincing evidence.
{15} F.H.‘s testimony and the copy of the Xenia Municipal Court‘s docket that R.S. himself presented to the court as an exhibit indicated that the court‘s order applied only to the mother, not to the child. (The municipal court‘s judgment was not presented as an exhibit.) Thus, the court‘s conclusion that the order, on its face, did not prevent contact with the child was not against the weight of the evidence. It also reasonably concluded that R.S.‘s assertion as to his understanding of the court‘s order lacked credibility. The probate court observed that R.S. did not attempt to obtain visitation by seeking modification of the court‘s order or by seeking visitation with his child through other court proceedings, as one might reasonably expect him to do if he sought to form or sustain a relationship with the child. The court‘s finding that R.S.‘s explanation for his inaction did not show justifiable cause for his failure to contact the child, and thus that R.S.‘s consent to the adoption was not required, was supported by clear and convincing evidence.
{16} The assignment of error is overruled.
{17} The judgment of the probate court will be affirmed.
DONOVAN, J. and WELBAUM, J., concur.
Copies mailed to:
Ronald P. Keller
David S. Peterson
Hon. Thomas M. O‘Diam