In re D.R.
- Reporters:
- ,
- Before:
- Cheryl L. Waite, Gene Donofrio, Mary DeGenaro
WAITE, P.J.
Case History
{2} D.R. was born on September 16, 2003. Nicole L. Ray is the child‘s mother and Appellant is the father. On April 1, 2004, Appellant was ordered to pay child support in the amount of $50 per month. On April 5, 2006, Appellees obtained legal custody of the child by decree of the Belmont County Juvenile Court.
{3} On November 17, 2010, Appellees filed a petition for adoption. The petition alleged that neither parents’ consent was required for the adoption. Notice of
{4} The court held a hearing on March 4, 2011, to resolve an issue as to whether parental consent was required for the adoption. Shannon Weekley of the Belmont County Department of Jobs and Family Services testified that Appellant‘s first child support payment was not made until November 19, 2007, and then in the amount of $5.04. (3/4/11 Tr., p. 10.) Appellant made a few payments in 2009, all under $15 each. On cross-examination, Weekley testified that she was aware that Appellant was in prison, that his child support payments came from prison, and that Appellant had made some child support payments from January through June of 2010. Appellant did not present any evidence to add to or challenge Weekley‘s testimony. The probate court filed a judgment entry on March 4, 2011, finding that the natural parents’ consent to adoption was not required. The court filed its final decree of adoption on March 18, 2011. This appeal followed on April 1, 2011.
{5} A judgment entry finding that consent to adoption is not necessary is a final appealable order. In re Greer (1994), 70 Ohio St.3d 293, 638 N.E.2d 999, paragraph one of the syllabus. Although Appellant‘s notice of appeal states that he is appealing the judgment entry of adoption filed March 18, 2011, the entry he is
ASSIGNMENT OF ERROR
{6} “THE TRIAL COURT ERRED BY FAILING TO RECOGNIZE THE INCARCERATION OF FATHER-APPELLANT AS JUSTIFIABLE CAUSE TO NOT PAY SUPPORT FOR A PERIOD OF ONE YEAR IMMEDIATELY BEFORE FILING OF THE PLACEMENT PROCEEDINGS.”
{7} Appellant argues that the trial court should not have found that his consent to adoption was unnecessary. He argues that he was incarcerated prior to D.R.‘s placement in Appellees’ home, and prior to the filing of the adoption petition. He submits that his incarceration is justifiable cause for not making support payments, and for that reason, his consent was required for the adoption to be finalized. Appellant‘s argument is not persuasive.
{8} The United States Supreme Court has recognized that natural parents have a fundamental liberty interest in the care, custody, and management of their children. Stanley v. Illinois (1972), 405 U.S. 645, 651, 92 S.Ct. 1208, 31 L.Ed.2d 551; Santosky v. Kramer (1982), 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599; Troxel v. Granville (2000), 530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49. An adoption affects these fundamental interests because it permanently terminates the parental rights of a natural parent. In re Adoption of Reams (1989), 52 Ohio App.3d 52, 55, 557 N.E.2d 159. Courts must afford the natural parent every procedural and substantive protection allowed by law before depriving the parent of the right to consent to the adoption of his or her child. In re Hayes (1997), 79 Ohio St.3d 46, 48, 679 N.E.2d 680.
{9} An appellate court will not disturb a trial court‘s decision on an adoption petition unless it is against the manifest weight of the evidence. In re Adoption of Masa (1986), 23 Ohio St.3d 163, 492 N.E.2d 140. 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. (1978), 54 Ohio St.2d 279, 376 N.E.2d 578. Similarly, a reviewing court must not substitute its judgment for that of the trial court where there exists some competent and credible evidence supporting the judgment rendered by the trial court. Myers v. Garson (1993), 66 Ohio St.3d 610, 614 N.E.2d 742.
{10} Once a petition of adoption is filed, the petitioner must generally obtain the written consent of the natural mother and father.
{11} “(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
{12} Appellant relies on In re Schoeppner (1976), 46 Ohio St.2d 21, 345 N.E.2d 608 in support of his argument. Appellant cites the syllabus as authority for the proposition that his incarceration should have prevented the trial court from finding that his consent was not required: “The fact of incarceration in a penal institution does not constitute a willful failure to properly support and maintain a child, within the meaning of
{13} Appellant‘s citation to In re Schoeppner is not persuasive, however. First, adoption law in Ohio has significantly changed since In re Schoeppner. Prior to 1976, the consent requirement and the exceptions to consent were less extensive than they are today, and most of the provisions were contained in a single statute. See former
{14} Second, In re Schoeppner did not hold that a parent‘s incarceration prevented a trial court from finding that the consent was not required for an adoption. That Court concluded only that incarceration, in and of itself, did not remove the consent requirement: “[A]lthough the fact of imprisonment might, when combined with other factors, lend support to a finding of a willful failure to support * * * it will not constitute such failure as a matter of law.” (Citations omitted.) Id. at 24. Other courts have found that imprisonment, along with other factors, can be used to support a finding that a parent‘s consent is not needed for an adoption. In Matter of Adoption of Carter (Dec. 15, 1995), 4th Dist. No. 95 CA 11; Dallas v. Dotson (1996), 113 Ohio App.3d 484, 681 N.E.2d 464; In re Apanovitch v. Apanovitch (March 6, 1980), 8th Dist. No. 40469. Some courts have simply held that “[f]inancial failure can not be justified because during part of the time a parent was in prison.” In re Adoption of Devin Scott S., 6th Dist. No. L-03-1067, 2003-Ohio-3985, ¶5. In the instant appeal, the fact of Appellant‘s incarceration was not used as a reason, in and of itself, for the court to conclude that his consent was not required for the adoption. The trial court
{15} Further, Appellant admits that he was not incarcerated in 2004 or for four months in 2005, and does not dispute that no child support payments were made in those time periods. The record reveals that Appellant was first ordered to make support payments in 2004, but did not make his first support payment until November 19, 2007, in the amount of $5.04. Thus, the record establishes that Appellant‘s incarceration was irrelevant for at least 16 months during which he failed to pay child support. Even if we completely accepted Appellant‘s argument, it is apparent that there are reasons apart from the fact of his incarceration that explain the trial court‘s decision.
{16} Appellant is under the mistaken impression that the trial court was required to find that no maintenance and support was provided in the twelve months preceding the filing of the adoption petition. The consent exception in
{17} Appellant also cites to In re Adoption of C.L.B., 191 Ohio App.3d 64, 2010-Ohio-5190, 944 N.E.2d 1190, in support. Although In re Adoption of C.L.B. involved an incarcerated parent who opposed the adoption of the child, the facts of
{18} The two cases diverge, however, when we look at the mitigating evidence presented to the trial court. In the case at bar, Appellant did not testify or present any evidence in opposition to the adoption petition. In In re Adoption of C.L.B., Ben did testify and also presented other evidence. At hearing, Ben stated that he only earned $18 per month in prison, and that money was used to pay his fines and to purchase hygiene products, snack foods, and postal supplies. He testified that he contacted CSEA to have them take money from his prison account for child support, but that they failed to do so for more than a year. He also stated that he could not write checks to pay child support because it was against prison policy. He testified that he sent various cards and birthday presents to C.L.B. and
{19} The Third District Court of Appeals examined Ben‘s testimony in light of the relative evidentiary burdens of the parties involved in the adoption proceeding. The court held that the party petitioning for adoption has the burden of proof, as well as the initial burden of going forward with the evidence, to establish that the biological parents failed to support or to communicate with the child. Id. at 69, citing In re Adoption of Holcomb (1985), 18 Ohio St.3d 361, 481 N.E.2d 613, paragraph four of the syllabus. In re Adoption of C.L.B. further held that, once the adoption petitioner has established a failure to support or to communicate, the burden of going forward with the evidence shifted to the natural parents to provide a facially justifiable cause for the lack of support or communication. Id. This holding is consistent with In re Adoption of Masa (1986), 23 Ohio St.3d 163, 492 N.E.2d 140: “it should be pointed out that the adopting parent has no legal duty to prove a negative. If the natural parent does not appear or go forward with any evidence of justification, obviously the adopting parent has only the obligation of proving failure of support by the requisite standard.” Id. at 167; see also, In re Adoption of Bovett (1987), 33 Ohio St.3d 102, 515 N.E.2d 919, paragraph two of the syllabus. If the natural parent provides a facially justifiable cause, then the burden of going forward with the evidence returns to the adoption petitioner to establish that alleged cause is not justifiable cause for failing to provide support or communication. Id. The burden of
{20} Based on this caselaw, the Third District held that the petitioner did not rebut Ben‘s claims that he attempted to provide child support and attempted to communicate with the child.
{21} In the instant appeal, the adoption petitioner provided proof of failure to support using the requisite standard. Appellant, however, failed to provide any explanation as to why he did not make any child support payments for at least twelve months prior to the date that Appellees took custody of D.R. Appellant presented absolutely no evidence that he was prevented from making support during any part of the period in question. As earlier stated, incarceration alone is not a justifiable excuse even if it had lasted for the entire period considered by the trial court, which it did not. Due to this key factual difference, Appellant is misplaced in his assertion that the trial court was required to reach the same conclusion as the court in In re Adoption of C.L.B.
{22} In conclusion, the record shows that Appellant failed without justifiable cause to provide for the maintenance and support of D.R. for more than twelve months prior to the date Appellees obtained legal custody of the child. Based on this evidence, the trial court concluded that Appellant‘s consent was not needed for the adoption. Appellant did not rebut this evidence or make any type of argument as to how his incarceration might have affected his ability to provide maintenance and support. On appeal, Appellant contends that the mere fact of his incarceration
Donofrio, J., concurs.
DeGenaro, J., concurs.