In re D.L.C.
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
IN RE: D.L.C.
JUDGES:
Hon. W. Scott Gwin, P.J.
Hon. Patricia A. Delaney, J.
Hon. Earle E. Wise, Jr., J.
Case No. 2020 CA 123
O P I N I O N
CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Probate Division, Case No. 236525
JUDGMENT: Affirmed
DATE OF JUDGMENT: February 12, 2021
APPEARANCES:
For Appellant-Father: JEFFREY JAKMIDES, 325 East Main Street, Alliance, OH 44601
For Appellee-Petitioner: KRISTEN D. GUARDADO, 4600 Beverly Avenue, NW, Canton, OH 44714
Wise, Earle, J.
{¶ 1} Appellant-Father, D.A., appeals the July 31, 2020 judgment entry of the Court of Common Pleas of Stark County, Ohio, Probate Division, finding his consent was not required for a petition for adoption. Appellee-Petitioner is step-father, L.C., Jr.
FACTS AND PROCEDURAL HISTORY
{¶ 2} On February 28, 2020, appellee filed a petition for adoption of his step-daughter, D.L.C. born in October 2009. The child was born to mother, C.C., and appellant. They were never married. At the time of D.L.C.‘s birth, appellant was incarcerated. Paternity was established.
{¶ 3} Appellant was released from prison in April 2012 and then incarcerated again from October 2014 to April 2020.
{¶ 4} The petition for adoption alleged appellant‘s consent was not necessary because appellant failed without justifiable cause to either provide more than de minimis contact with the child or maintenance and support for the child for the period of one year immediately preceding the filing of the petition. Appellant objected to the adoption. A hearing was held on July 13, 2020. By judgment entry filed July 31, 2020, the trial court found although appellant failed to provide more than de minimis contact with the child for a period of at least one year immediately preceding the filing of the petition, he had justifiable cause. However, the trial court found appellant, without justifiable cause, failed to support the child during the one year period preceding the filing of the petition. Therefore, the trial court concluded appellant‘s consent was not required for the adoption.
{¶ 5} Appellant filed an appeal and this matter is now before this court for consideration. Assignments of error are as follows:
I
{¶ 6} “THE TRIAL COURT‘S FINDING THAT FATHER FAILED WITHOUT JUSTIFIABLE CAUSE TO PROVIDE FOR THE MAINTENANCE AND SUPPORT OF THE MINOR CHILD WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.”
II
{¶ 7} “THE TRIAL COURT‘S HOLDING THAT FATHER‘S INCARCERATION DID NOT CONSTITUTE A JUSTIFIABLE CAUSE FOR HIS
I
{¶ 8} In his first assignment of error, appellant claims the trial court‘s decision that he failed, without justifiable cause, to provide maintenance and support for the child was against the manifest weight of the evidence. We disagree.
{¶ 9}
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.
{¶ 10} In its judgment entry filed July 31, 2020, the trial court found although appellant failed to provide more than de minimis contact with the child for a period of at least one year immediately preceding the filing of the petition, he had justifiable cause. However, the trial court found appellant “has, without justifiable cause, failed to provide maintenance and support of Child as required by law or judicial decree during the year immediately preceding the filing of the Petition. Therefore the Court find that Father‘s consent to the Petition is not required.” Appellant argues the trial court‘s decision that he failed, without justifiable cause, to provide maintenance and support for the child was against the manifest weight of the evidence.
{¶ 11} As held by the Supreme Court of Ohio in In re Adoption of M.B., 131 Ohio St.3d 186, 2012-Ohio-236, 963 N.E.2d 142, paragraph two of the syllabus:
A probate court determination of whether a financial contribution constitutes maintenance and support for purposes of
reviewed for an abuse of discretion; but whether justifiable cause for the failure to pay child support has been proved by clear and convincing evidence is a separate question for the probate court and will not be disturbed on appeal unless it is against the manifest weight of the evidence.
{¶ 12} In order to find an abuse of discretion, we must determine the trial court‘s decision was unreasonable, arbitrary or unconscionable and not merely an error of law or judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983).
{¶ 13} Clear and convincing evidence is that evidence “which will provide in the mind of the trier of facts a firm belief or conviction as to the facts sought to be established.” Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the syllabus.
{¶ 14} On review for manifest weight, a judgment supported by some competent, credible evidence will not be reversed by a reviewing court as against the manifest weight of the evidence. C.E. Morris Co. v. Foley Construction Co., 54 Ohio St.2d 279, 376 N.E.2d 578 (1978).
{¶ 15} The petitioner for adoption bears the burden of proof. In re Adoption of Bovett, 33 Ohio St.3d 102, 515 N.E.2d 919 (1987), paragraph one of the syllabus. “Although the nonconsenting parent is responsible for articulating a justifiable cause, no burden is to be placed upon the nonconsenting parent to establish that his or her failure was justifiable.” In re Doe, 123 Ohio App.3d 505, 508, 704 N.E.2d 608 (9th Dist.1997).
{¶ 16} Appellant does not contest the trial court‘s finding that he failed to provide maintenance and support for the child during the year immediately preceding the filing
of the petition. Appellant‘s arguments focus on the trial court‘s finding of “without justifiable cause.” In his appellate brief at 6, appellant argues he “provided undisputed evidence to support his theories of justifiable cause, namely his incarceration which prevented him from earning any income with which to provide any support” for the child.
{¶ 17} In In re Adoption of Z.A., 5th Dist. Licking No. 16-CA-05, 2016-Ohio-3159, ¶ 27, this court stated the following:
Incarceration alone is not a justifiable excuse, even if it lasts for the entire period considered by the court. In re D.R., 7th Dist. Belmont No. 11 BE 11, 2011-Ohio-4755. Rather, incarceration is only one factor to consider when determining whether a parent has justifiable cause for failing to provide maintenance and support for the child. Frymier v. Crampton, 5th Dist. Licking No. 02 CA 8, 2002-Ohio-3591.
{¶ 18} In its judgment entry filed July 31, 2020, the trial court found a child support order by any court did not exist; therefore, appellant was “subject to a general duty of support pursuant to
{¶ 19} In his appellate brief at 13, appellant argued “the support that he was able to provide consisted of birthday and Christmas gifts delivered” by his mother,
sometimes to the child‘s mother and sometimes to the maternal grandmother. Appellant‘s mother testified the last time she delivered gifts was in 2017. T. at 47-48, 55. In its judgment entry filed July 31, 2020, the trial court noted that even if it were to accept that the gifts were actually gifts from appellant and “thereby a means of maintenance and support,” the last of those gifts were received well beyond the one year period of time under review.
{¶ 20} Appellant argues the trial court should have considered that mother of the child made no effort to obtain support
{¶ 21} We find clear and convincing evidence to establish that appellant‘s failure to provide maintenance or support for the child was not justifiable. Appellant admitted to not providing any support while he was incarcerated for several years preceding the filing of the petition. “Even a meager contribution to the child‘s support could satisfy the
maintenance and support requirement of
{¶ 22} Upon review, we find the trial court‘s decision to be supported by competent credible evidence and is not against the manifest weight of the evidence.
{¶ 23} Assignment of Error I is denied.
II
{¶ 24} In his second assignment of error, appellant claims the trial court‘s finding that his incarceration did not constitute justifiable cause was unreasonable, arbitrary, and unconscionable, and violates the Equal Protection Clause. We disagree.
{¶ 25} As acknowledged by appellant in his appellate brief at 15, he did not raise this constitutional challenge to the trial court. Review of a statute‘s constitutionality at this stage is discretionary. State v. Awan, 22 Ohio St.3d 120, 489 N.E.2d 277 (1986). We will review appellant‘s argument and analysis it under the plain error standard. In re M.D., 38 Ohio St.3d 149, 527 N.E.2d 286 (1988), syllabus.
{¶ 26} Civil plain error is defined in Goldfuss v. Davidson, 79 Ohio St.3d 116, 679 N.E.2d 1099 (1997), syllabus, as “error, to which no objection was made at the trial court, seriously affects the basic fairness, integrity, or public reputation of the judicial process, thereby challenging the legitimacy of the underlying judicial process itself.” The Goldfuss court at 121, explained the following:
The plain error doctrine originated as a criminal law concept. In applying the doctrine of plain error in a civil case, reviewing courts must proceed with the utmost caution, limiting the doctrine strictly to those extremely rare cases where exceptional circumstances require its application to prevent a manifest miscarriage
{¶ 27} “Simply stated, the Equal Protection Clauses require that individuals be treated in a manner similar to others in like circumstances.” McCrone v. Bank One Corp., 107 Ohio St.3d 272, 2005-Ohio-6505, 839 N.E.2d 1, ¶ 6. “The right to parent one‘s children is a fundamental right” and adoption extinguishes a natural parent‘s fundamental right to parent. In re C.F., 113 Ohio St.3d 73, 2007-Ohio-1104, 862 N.E.2d 816, ¶ 28, citing Troxel v. Granville, 530 U.S. 57, 66, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000); In re Adoption of G.V., 126 Ohio St.3d 249, 2010-Ohio-3349, 933 N.E.2d 245, ¶ 6. “Inasmuch as the statutory scheme at issue in this case creates a distinction that involves a fundamental right, it will be upheld under the Equal Protection Clause if it furthers a compelling state interest and is narrowly drawn to serve only that interest.” Matter of L.C.C., 10th Dist. Franklin No. 18AP-167, 2018-Ohio-4617, ¶ 26.
{¶ 28} Appellant argues the application of
parent his child because he is poor: “[i]t is unconscionable that the size of Father‘s bank account is the deciding factor in whether his consent is required before his child is adopted and his fundamental right to parent his child is stripped away from him.” Appellant‘s Brief at 17-18.
{¶ 29} The statute does not set a minimum amount for maintenance and support. As stated above in ¶ 21, “[e]ven a meager contribution to the child‘s support could satisfy the maintenance and support requirement of
{¶ 30} Upon review, we do not find the trial court‘s finding that appellant‘s incarceration did not constitute justifiable cause to be a violation of the Equal Protection Clause.
{¶ 31} Assignment of Error II is denied.
{¶ 32} The judgment of the Court of Common Pleas of Stark County, Ohio, Probate Division is hereby affirmed.
By Wise, Earle, J.
Gwin, P.J. and
Delaney, J. concur.
EEW/db