Case Information
*1
[Cite as
In re Adoption of T.U.
,
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT WILLIAMS COUNTY
In re Adoption of T.U. Court of Appeals No. WM-19-012
Trial Court No. 20195009 DECISION AND JUDGMENT Decided: March 6, 2020 * * * * *
Tyler E. Cantrell, for appellant.
John S. Shaffer, for appellee.
* * * * *
MAYLE, J. Appellant, M.C. (“father”), appeals the July 2, 2019 judgment of the Williams County Probate Court finding that his consent to the adoption of his natural child, T.U. (“the child”), by appellee, M.U. (“stepfather”), was not required. For the following reasons, we affirm.
I. Background and Facts
{¶ 2} On April 23, 2019, stepfather petitioned the trial court to adopt the child. [1] In his petition, he alleged that, under R.C. 3107.07(A), father was not required to consent to the adoption because he had failed, without sufficient justification, to have more than de minimis contact with the child and to provide support to the child for at least one year prior to stepfather filing the petition.
{¶ 3} On July 2, 2019, the probate court held a hearing on whether father’s consent to the adoption was required. Father, stepfather, and S.U., the child’s mother, each testified at the hearing. Mother and father were married until 2012. In September 2012, after their
divorce was finalized (and after mother and stepfather began living together), mother and father reached an agreement under which father would pay no child support in exchange for giving up visitation with the child, with the understanding that stepfather would eventually adopt the child. Mother also agreed to waive father’s child support arrears. The zero-dollar support order was in effect at the time of the consent hearing. Mother and stepfather testified that father did not provide any financial
support, including gifts, to the child after the 2012 domestic relations court order was *3 filed. Father said that he obeyed the child support order and paid no child support, but he would have helped if mother had made him aware that the child needed something.
{¶ 6} Mother also said that father had not contacted the child in the five years prior to stepfather filing the petition to adopt the child. Although she had the same phone number that she did when she and father were married, she had not received any phone calls or text messages from father. Nor had she received any cards or letters from father. When mother first moved to Williams County, she lived with her parents, whose address father knew. She did not give father any of her subsequent addresses because she and father did not have any contact, but mother believed that it was “very easy to find out” where she lived. On cross, mother admitted that her parents had received a letter from father
to the child sometime “after we had sent him adoption papers,” but she did not know if father sent the letter before or after stepfather filed the adoption petition. According to stepfather, father sent “some kind of generic letters” saying that father had no way of contacting the child. Although stepfather said that he and mother learned about the letter after stepfather filed the adoption petition, he was not sure when father sent the letter. Mother did not respond to the letter because she knew that the parties would be in court for the adoption proceedings. Father testified that he had not seen the child since July or August of 2012.
He confirmed that he knew where mother and the child were living then. Mother did not, *4 however, give him any of her subsequent addresses. He claimed that he had attempted to call and send text messages to mother, but was unsuccessful because “apparently the numbers I remembered was not the numbers that they have because I got someone else when I tried to call[.]” He also unsuccessfully searched for the child on social media sites. Father explained that he did not have contact with the child because mother
“didn’t want me to have any contact visitation with the children, after what happened back in, well the divorce in Two Thousand and Twelve [sic]. That was the agreement that I give up the, the visitation and all that and all communication. That’s what I was informed of, ummm, and forced to by their mother.” Father acknowledged that the no- contact order from the domestic relations court was “[n]ot permanent, but at the time, indefinite” and said that he did not ask the domestic relations court to reinstate his parenting time because “I hadn’t seeked [sic] a lawyer to find out because I was having financial issues and job issues, so I wanted to make sure that I had the finances and resources to do so[.]” He also admitted that he only sought legal counsel after receiving a letter from stepfather’s attorney seeking father’s consent to adoption of the child. Father’s first successful contact with the child was in April 2019 when he sent a letter to the child, at maternal grandparents’ address, by certified mail. The return receipt for the letter showed a delivery date of April 11, 2019. Father recalled that the letter said “I was not able to get in contact with them because I had no contact with their *5 mother, their mother had made no contact with me letting me know any, ahh, address change were successful, so I had no as to where of at the time to call or get a hold of * * *” the child. He put his name and contact information in the letter, but did not receive a response. In addition to the April letter, father testified that he sent cards to the child and that “the first round was, the second round was not signed for * * *.”
{¶ 11} After hearing the testimony, the trial court found that stepfather had shown by clear and convincing evidence that father’s consent to the adoption was not required because father had failed without justifiable cause to communicate with the child or to provide more than de minimis support. The court reasoned that “a party in a divorce proceeding may waive support, [but] that does not extinguish the legal obligation to support.” Further, father agreed to have no contact with the child and, in exchange, he had not paid $800 per month in child support for seven years. The court determined that father “gained a significant benefit from relinquishing those things.” Father now appeals, raising one assignment of error:
The Court erred in finding that the Father’s consent was not required for the adoption[.]
II. Law and Analysis In his assignment of error, father raises two arguments. In the first, he
argues that the trial court incorrectly determined that his failure to provide support for the child was unjustified, despite the zero-dollar support order, because a parent is not *6 required to provide any support beyond what is in a child support order—even if the amount in the child support order is zero. In his second argument, father contends that the domestic relations court order is sufficient justification for his failure to have more than de minimis contact with the child for the year before stepfather filed the petition for adoption. Stepfather counters that father’s voluntary relinquishment of his right to see the child does not constitute sufficient justification for father’s lack of contact. Whether a parent is required to consent to the adoption of his child is
controlled by R.C. 3107.07. A parent’s consent is not required if the person petitioning
for the adoption alleges in the adoption petition, and, after a hearing, the probate court
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.” R.C. 3107.07(A). We strictly
construe exceptions to the requirement of parental consent to adoption in order to protect
the rights of natural parents.
In re Adoption of P.L.H.
,
parent’s consent is not required. R.C. 3701.07(A). To meet this burden, the petitioner
must present competent and credible evidence sufficient for the court to form a firm
*7
conviction or belief that the parent unjustifiably failed to support or contact the child.
In
re Zachary V.
, 6th Dist. Wood No. WD-01-039,
parent’s consent is not required based on his failure to support the child. First, the court
must determine whether the parent complied with his support obligations during the year
preceding the filing of the adoption petition.
In re Adoption of B.I.
,
{¶ 17} The probate court engages in a similar two-step process to determine when a parent’s consent is not required based on his failure to have more than de minimis contact with the child. In re Adoption of B.V.K.M. , 6th Dist. Lucas No. L-18-1137, 2019- Ohio-1173, ¶ 23. First, the court determines whether the parent failed to have more than de minimis contact with the child in the year preceding the filing of the adoption petition. Id. And second, if the parent’s contact with the child does not rise above the level of “de minimis,” the court must determine whether he had “justifiable cause” for his lack of contact. We review the probate court’s factual determination of whether the parent
complied with his support obligations or had more than de minimis contact with the child
for an abuse of discretion.
Id.
at ¶ 22, 23. A decision is an abuse of discretion when it is
“‘contrary to law, unreasonable, not supported by the evidence, or grossly unsound.’”
Moton v. Bailey
, 6th Dist. Lucas No. L-19-1122,
manifest-weight-of-the-evidence standard.
B.V.K.M.
at ¶ 22, 23. In doing so, we must
weigh the evidence and all reasonable inferences, consider the credibility of the
witnesses, and determine whether the trier of fact clearly lost its way in resolving
evidentiary conflicts so as to create such a manifest miscarriage of justice that the
decision must be reversed.
State v. Thompkins,
A. Father met his support obligation by complying with the zero-dollar child
support order. Father first argues that paying no child support pursuant to a zero-dollar
support order does not obviate the need for his consent to the child’s adoption. We agree.
In
In re Adoption of B.I.
,
{¶ 22}
Here, we are faced with precisely the same situation as the court in
B.I.
Although father did not provide any financial support for the child in the year before
stepfather filed the petition for adoption, he did so based on the domestic relations court
order setting his child support obligation at zero. By complying with the zero-dollar
support order, father “provide[d] for the maintenance and support of the minor
as
required by law or judicial decree
* * *,” so R.C. 3107.07(A) did not allow the adoption
to proceed without father’s consent. (Emphasis added.)
B.I.
at ¶ 43. And contrary to the
trial court’s finding that mother’s waiver of child support “does not extinguish [father’s]
legal obligation to support,” father had only
one
duty to support the child: the duty
outlined in the domestic relations court order. The trial court erred by finding otherwise.
Regardless, the trial court’s error was harmless. As discussed below,
father’s failure to have more than de minimis contact with the child was unjustified, and
“[b]ecause R.C. 3107.07(A) is written in the disjunctive, either a failure to communicate
or a failure to provide support for the one-year time period is sufficient to obviate the
need for a parent’s consent.”
In re Adoption of A.H.
, 9th Dist. Lorain No. 12CA010312,
B. Father’s voluntarily agreement to a no-contact order did not justify his lack of
contact with the child. Father also argues that the domestic relations court order provides
justifiable cause for his lack of contact with the child. We disagree. While not statutorily defined, “more than de minimis contact” implies
contact—either attempted or successful—beyond a single occurrence.
In re J.D.T.
, 2012-
Ohio-4537,
minimis, however, but focuses on his lack of contact being sufficiently justified. He *12 argues that the “no-contact” provision in the domestic relations court order provided the justification for his lack of contact with the child. Preliminarily, we note that it is unclear from the record what, exactly, the
domestic relations court order prohibited father from doing, i.e., visiting the child or
having any contact with the child. The distinction is important. A “no-visitation” order
prevents a parent from having parenting time with the child, while a “no-contact” order
prohibits all contact and communication with the child. While a “no-contact” order can
provide justifiable cause for a parent’s failure to have more than de minimis contact with
the child under R.C. 3107.07(A), a “no-visitation” order does not provide justifiable
cause.
In re Adoption of T.R.S.
, 7th Dist. Belmont No. 13 BE 43,
only have the parents’ testimony about their agreement. Mother testified that father
agreed to “giving up visitation” in exchange for mother “giv[ing] up” child support and
waiving father’s child support arrears. Father testified that mother did not want him to
have “contact visitation with the children” and that their agreement required him to “give
*13
up the, the visitation and all that and all communication.” This testimony is far from
conclusive regarding the terms of the parents’ agreement. However, because we are
required to strictly construe the consent exceptions in R.C. 3107.07 in favor of protecting
a natural parent’s rights,
P.L.H.
,
no-contact order, father argues that the existing no-contact order, standing alone, provided sufficient justification for his lack of contact with the child. In support of his argument, he cites In re Adoption of B.V.K.M. , 6th Dist. Lucas No. L-18-1137, 2019- Ohio-1173. In B.V.K.M. , the juvenile court suspended, “in its entirety,” the father’s
contact with the child based on the father’s untreated mental health and substance abuse
issues.
Id.
at ¶ 10-11. The father complied with the no-contact order and did not have
any contact with the child for the year prior to the stepfather filing a petition for adoption.
at ¶ 17. Relying on an earlier case,
In the matter of Adoption of Bryan W.
, 6th Dist.
Huron No. H-96-039,
{¶ 31}
In
Bryan W.
, 6th Dist. Huron No. H-96-039,
B.V.K.M.
and
Bryan W.
Crucially, in this case, father
agreed
to have no contact with the
child—in exchange for a zero-dollar support order—making his situation more akin to
that of the father in
In re Adoption of J.F.M.
, 12th Dist. Butler No. CA2016-03-044,
regarding custody of their children, the parents entered an agreement that reduced the father’s child support obligation to zero, relieved father of all other financial obligations relating to the children, suspended the father’s visitation with the children, and required *15 that the father have no contact with the children. Id. at ¶ 4. The father complied with the order and did not provide more than de minimis contact to the children after the agreed entry was filed. Id. at ¶ 5. Fifteen months later, the children’s stepfather filed a petition to adopt them. Id. The probate court determined that the father’s consent to the adoption was unnecessary because he unjustifiably failed to have contact with the children in the year prior to the stepfather filing the petition. Id. at ¶ 6. The father, citing Bryan W. , argued on appeal that the no-contact order
sufficiently justified his lack of contact and that his consent to the adoption was required. Id. at ¶ 12. The Twelfth District found that Bryan W. was distinguishable because the father voluntarily agreed to forgo contact with the children and “[u]nlike those cases finding justifiable cause based on the existence of a ‘no contact’ court order, this matter involved Father’s own decision to terminate contact with the children.” Id. at ¶ 13. And, although the no-contact order was modifiable, the father never attempted to have the order modified so that he could reinitiate contact with the children. Id. at ¶ 14. The court concluded that the father’s “general reason” for failing to have contact with the children—i.e., the no-contact order—standing alone, was insufficient to show justifiable cause because the father agreed to the no-contact provision and did not seek to have the order modified. at ¶ 15. Like the Twelfth District in J.F.M. , we cannot ignore the fact that father
voluntarily agreed to have no contact with his child. This is not a situation where a court
*16
ordered a parent to have no contact with a child because the parent’s behavior was
potentially dangerous or damaging to the child.
See, e.g., B.V.K.M.
, 6th Dist. Lucas No.
L-18-1137,
failed without justifiable cause to have more than de minimis contact with the child for the year preceding stepfather filing the petition to adopt the child was supported by the manifest weight of the evidence. Accordingly, father’s second argument is not well- taken, and his assignment of error is overruled.
III. Conclusion Based on the foregoing, the July 2, 2019 judgment of the Williams County
Probate Court is affirmed. Father is ordered to pay the costs of this appeal pursuant to App.R. 24.
Judgment affirmed. A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. ____________________________ JUDGE Christine E. Mayle, J.
____________________________ Gene A. Zmuda, P.J. JUDGE CONCUR.
____________________________ JUDGE This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.
Notes
[1] Stepfather also petitioned to adopt N.U., T.U.’s sibling and father’s natural child. Father failed to perfect his appeal of the trial court’s decision in N.U.’s case, however, so father’s consent to N.U.’s adoption is not at issue in this appeal.
[2] Until 2009, R.C. 3107.07(A) allowed an adoption to proceed without a parent’s consent if the parent “failed without justifiable cause to communicate with” the child for the year prior to the filing of an adoption petition. Former R.C. 3107.07(A), 2008 Sub.H.B. No. 7.