IN RE: THE ADOPTION OF H.R. [LARRY REISINGER II - APPELLANT]
CASE NO. 8-14-15
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT LOGAN COUNTY
December 8, 2014
2014-Ohio-5390
PRESTON, J.
Appeal from Logan County Common Pleas Court Family Court - Probate Division Trial Court No. 12 AD 12
OPINION
Judgment Affirmed
APPEARANCES:
Elizabeth M. Mosser for Appellant
Kathryn C. Dougherty for Appellees
{1} Appellant, Larry Reisinger II (Reisinger), appeals the June 9, 2014 judgment entry of the Logan County Court of Common Pleas, Family Court Probate Division, concluding that Reisinger‘s consent to the adoption of his biological child, H.R., is not necessary. In its entry, the trial court ordered that H.R.‘s maternal grandparents, appellees, Ravonda (Ravonda) and Thomas (Thomas) Taylor (collectively, the Taylors), can proceed with the adoрtion of their minor granddaughter without [Reisinger‘s] consent. For the reasons that follow, we affirm.
{2} H.R. was born on September 4, 2009 and placed in the Taylors’ home on September 19, 2009. (Doc. Nos. 1, 7). Reisinger has been incarcerated since January 2010, and he is currently incarcerated at the Belmont Correctional Institution in St. Clairsville, Ohio. (See Aug. 16, 2012 Tr. at 24, 28, 32, 36); (Doc. No. 33).
{3} On June 5, 2012, the Taylors filed a petition to adopt H.R. (Doc. No. 1). In their petition, the Taylors asserted that Reisinger‘s consent to the adoption was not necessary because: (1) Reisinger failed without justifiable cause to provide more than de minimis contact with the minor for a period of at least one year immediately preceding the filing of the adoption petition; and (2) Reisinger failed without justifiable cause to provide for the maintenance and support of the
{4} The first two attempts by the clerk of the court to serve Reisinger with notice of the Taylors’ petition and the hearing on the petition were unsuccessful. (Doc. Nos. 14, 16, 23, 24, 25, 28). The clerk‘s third attempt to serve Reisinger with notice was successful. (Doc. Nos. 29, 30, 33). The clerk served that notice on June 26, 2012, and the return receipt was signed on June 28, 2012. (Doc. Nos. 30, 33). On July 2, 2012, the trial court filed proof of service of the notice on Reisinger. (Doc. No. 33). (See also Doc. No. 35).
{5} On July 9, 2012, Reisinger, pro se, filed a handwritten document To Judge Michael L. Brady and Judge C. Douglas Chamberlain, in which he stated, among other things:
I do not and will not under any circumstances give up my rights as a father to my daughter to allow her to be adopted. I protest the adoption. I ask the court to vacate the application for adoption. Ravonda and Thomas Taylor does [sic] not and the court does not have my approval for adoption.
(Doc. No. 34).
{7} On August 1, 2012, the trial court filed an entry reflecting that the Supreme Court of Ohio assigned retired judge C. Douglas Chamberlain to preside in the case. (Doc. No. 37).
{8} On August 8, 2012, the trial court ordered that the hearing on the Taylors’ petition set for August 16, 2012 be changed to a hearing on Reisinger‘s motion to dismiss the petition. (Doc. No. 41).
{9} On August 15, 2012, the Taylors filed a motion in response to [Reisinger‘s] motion to dismiss, contending that their Petition for Adoption was properly filed in Logan County and, that, [Reisinger‘s] consent to the adoption is not necessary. (Doc. No. 46).
{11} On February 6, 2013, the Taylors filed a motion for status, requesting that the trial court update the parties concerning the status of the case. (Doc. No. 54).
{12} On March 19, 2013, the triаl court filed an entry ordering the case stayed until the conclusion of a custody case involving H.R. in the Union County Court of Common Pleas, Juvenile Division. (Doc. No. 55).
{13} On April 4, 2013, the Taylors requested relief from the stay, notifying the trial court of the conclusion of the Union County case. (Doc. No. 59).
{14} On June 27, 2013, the trial court filed an entry in which Judge Chamberlain withdrew from his assignment in the case. (Doc. No. 66).
{15} On July 11, 2013, the trial court filed an entry reflecting that the case was assigned to Judge Michael L. Brady. (Doc. No. 67). That same day, the trial
{16} On August 19, 2013, Reisinger filed a motion finding consent to adoption necessary. (Doc. No. 84). In it, Reisinger asserted that all pertinent evidence as to the necessity of * * * Reisinger‘s consent was properly before the trial court and requested that the trial court decide that issue based upon the transcript of the [August 15, 2012] hearing, the evidence, and the proposed findings of fact presented. (Id.).
{17} On September 13, 2013, the trial court filed an order continuing the September 20, 2013 hearing on the petition for adoption and allowing counsel for the parties to file briefs in support of their respective positions, which they did in October 2013. (Doc. Nos. 91, 92, 93).
{18} On December 10, 2013, the Taylors filed a motion for status, requesting that the trial court update the parties concerning the status of the case. (Doc. No. 94).
{19} On January 16, 2014, the Taylors filed an adoption home study, letters of recommendatiоn, and a home-safety audit. (Doc. Nos. 95, 96, 97).
{20} On June 9, 2014, the trial court filed the judgment entry that is the subject of this appeal. (Doc. No. 98). In it, the trial court concluded that:
{21} On July 9, 2014, Reisinger filed a notice of appeal. (Doc. No. 102). He raises two assignments of error for our consideration.
Assignment of Error No. I
The trial court erred and abused its discretion by finding consent of appellant, to the adoption of H.R., unnecessary.
{22} In his first assignment of error, Reisinger argues that the trial court erred when it concluded that Reisinger‘s consent to the Taylors’ adoption of H.R. was not necessary. Specifically, Reisinger argues that the trial court: overlooked his timely filed objection; improperly construed his financial support of his daughter to be insufficient; improperly construed his contacts with H.R. to be de minimis; and failed to make a finding regarding whether his failures to provide support and maintenance and to have more than de minimis contact with H.R.
{23} We first address the trial court‘s conclusion that Reisinger‘s consent was not required under
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 pаrent 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.
{24} Because cases such as this one may involve the termination of fundamental parental rights, the party petitioning for adoption has the burden of proving, by clear and convincing evidence, that the parent failed to provide more than de minimis contact with the minor or failed to provide for the maintenance and support of the minor during the requisite one-year period and that therе was no justifiable cause for the failure. Id. at ¶ 24, citing In re R.L.H., 2d Dist. Montgomery No. 25734, 2013-Ohio-3462, ¶ 9. Once the petitioner has established this failure, the burden of going forward shifts to the parent to show some facially justifiable cause for the failure. * * * The burden of proof, however, remains with the petitioner. In re R.L.H. at ¶ 9, quoting In re A.N.B., 12th Dist. Preble No. CA2012-04-006, 2012-Ohio-3880, ¶ 10. Clear and convincing
{25} The Supreme Court of Ohio has articulated a two-step analysis for probate courts to employ when applying
{26} We begin by addressing whether the trial court abused its discretion by finding that Reisinger failed to provide more than de minimis contact with H.R. The Taylors have had custody of H.R. since December 2010. (Aug. 16, 2012 Tr. at 12, 23). According to Ravonda, desрite knowing the Taylors’ address and phone number, Reisinger had absolutely no contact with H.R.—[n]o phone calls, no letters, no gifts, and no emails. (Id. at 13-14). Thomas testified that Reisinger did not contact H.R. for the year preceding the Taylors’ filing their petition to adopt H.R. (Id. at 22-23). According to Ravonda, she was unaware if any contact took place between Reisinger and H.R. during H.R.‘s twice-a-month, overnight visitation with Reisinger‘s mother, Patricia Reisinger (Patricia). (Id. at 15).
{28} Patricia testified that her overnight visitation with H.R. every other weekend began in September 2011; however, if H.R. is ill, [s]ometimes a whole month might go by before [Patricia] see[s] [H.R.] again. (Id. at 40-41, 43). According to Patricia, she observed Reisinger speak with H.R. on the phone during Patricia‘s visitations with H.R. (Id. at 41-43). Patricia testified that Reisinger wrote letters to H.R., only some of which Patricia kept. (Id. at 44). Patricia identified Movant‘s Exhibit A as a copy of an envelope addressed from Reisinger to Patricia postmarked October 18, 2011, along with copies of the envelope‘s contents: a letter from Reisinger to H.R. dated November 22, 2011 and a note from Reisinger to Patricia, requesting that Patricia read Reisinger‘s letter to H.R. (Id. at 44-46); (Movant‘s Ex. A). Patricia identified Movant‘s Exhibit B as the second birthday of September 2011 card to H.R.; however, only the cover of the card was made part of Movant‘s Exhibit B. (Aug. 16, 2012 Tr. at 46-48);
{29} On cross-examination, Patricia acknowledged that the October 18, 2011 postmark on Movant‘s Exhibit A predates the November 22, 2011 letter that was purportedly inside the envelope, but Patricia explained, [T]his is at another time. I have had that – the letters that I had, I had in that envelope. That is probably why I thought it went together. (Aug. 16, 2012 Tr. at 54-55). Patricia acknowledged that the cards and letters constituting Movant‘s Exhibits B, C, D, and E were undated. (Id. at 56-57). Patricia could not recall how many visits she has had with H.R. since her visitation began in September 2011. (Id. at 59).
{30} On re-direct examination, Reisinger‘s counsel asked Patricia whether the letters and cards submitted as exhibits at the hearing were all the cards and letters that [Reisinger] has ever sent to [H.R.]. (Id. at 61). Patricia responded,
Card wise, yes. Letters, as I have stated, with my letters, he would, you know, tell me give [H.R.] loves [sic] and kisses. Or tell her daddy will be calling. Things like that. (Id.).
{31} In finding that Reisinger failed to provide more than de minimis contact with H.R., the trial court found Patricia to be less than credible at the August 16, 2012 hearing, noting the discrepancy between the October 18, 2011 postmark and November 22, 2011 letter in Movant‘s Exhibit A. (June 9, 2014 Judgment Entry, Doc. No. 98, at 11). The trial court also observed that Movant‘s Exhibits B, C, D, and E were undated and that Reisinger and Patricia did not state with any certainty how many visits H.R. had with Patricia or how often Reisinger spoke with H.R. during the visits. (Id. at 12). Finally, the trial court took judicial notice that it was Patricia, not Reisinger, who requested in the Union County court that Reisinger be granted visitation while in prison. (Id.).
{32} The trial court‘s finding that Reisinger failed to provide more than de minimis contact with H.R. was not an abuse of discretion. We begin by noting, as we did recently in In re Adoption of K.C., that the current version of
{33} The Taylors testified that they knew of no contact between Reisinger and H.R. for the year preceding their filing their petition to adopt H.R. on June 5, 2012. Between June 5, 2011 and September 2011, Patricia did not have visitation with H.R., and judging by Reisinger‘s and Patricia‘s testimony, Reisinger had no contact with H.R. during that time. And while Reisinger and Patricia testified that Reisinger called Patricia during Patricia‘s visitations with H.R., neither Reisinger nor Patricia specified on how many occasions Reisinger called. In fact, Patricia testified that [s]ometimes a whole month might go by before [she] see[s] [H.R.] again. Reisinger introduced no telephone or other records verifying his contacts with H.R. Finally, as the trial court noted, the cards and letters introduced as exhibits by Reisinger at the August 16, 2012 hearing were undated, except for one of the exhibits, Movant‘s Exhibit A, which bore a date discrepancy between the envelope and the letter it contained.
{35} Reisinger argues that the trial court wholly failed to make a finding as to whether a failure to provide support, or failure to contact the child, was justifiable. (Appellant‘s Brief at 11). Reisinger argues that he testified that he did not attempt to contact H.R. when she was with the Taylors because they would have thrown out his cоrrespondence or blocked his communication with
{36} In addition to the testimony we discussed above, Reisinger testified on direct examination that he did not send letters to H.R. at the Taylors’ residence [b]ecause they will not give it to [H.R.]. They will get it and throw it straight away. (Aug. 16, 2012 Tr. at 30). When asked why he thought that, Reisinger responded, We do not get along. And they are trying to take my kid. They won‘t even let my family see my daughter. My mom had to go through court just to get visitation to even see my daughter, because they wouldn‘t allow it. (Id.). When the Taylors’ counsel asked Reisinger on cross-examination why he did not send any information, any packages, any letters, any e-mail or call to the Taylors [sic] residence where [H.R.] is, Reisinger responded that he did not send emails because he cannot get on the computer in prison and that, [a]s far as letters and stuff, the Taylors would just throw them away. (Id. at 35). Reisinger acknowledged that he had the Taylors’ address and that Patricia had the Taylors’ рhone number. (Id. at 34-35). Ravonda testified on cross-examination that she did not get along with Reisinger and that Reisinger was [p]robably not someone that [she] would be comfortable calling up and having a conversation with. (Id. at 19-20).
His relationship is now distant. We have tried since February of 2011 to try to get this situation going. The judge first ruled it was in the best interest for the child to see the father. But the Taylors have fought through the long distance and due to the travel time, the judge had ordered that once he gets closer to home, then she would allow the visits.
(Emphasis added.) (Id. at 53).
{38} We first address Reisinger‘s argument that the trial court wholly failed to make a justifiable-cause finding. While the trial court did not mention the phrase justifiable cause in its analysis and findings, it is clear from its judgment entry that it found that Reisinger‘s failure to provide more than de minimis contact with H.R. was not supported by justifiable cause.
by clear and convincing evidence that the parent has failed without justifiable cause to provide more than de minimis contact with the minor * * * for a period of at least one year immediately рreceding * * * the filing of the adoption petition * * *.
(Emphasis added.) Particularly in light of the two-step
{39} We next address Reisinger‘s substantive arguments concerning justifiable cause. Once the Taylors established a failure by Reisinger to provide more than de minimis contact with H.R., the burden of going forward shifted to Reisinger to show some facially justifiable cause for the failure. In re R.L.H., 2013-Ohio-3462, at ¶ 9, citing In re A.N.B., 2012-Ohio-3880, at ¶ 10. Based on our review of the record, we cannot conclude that the determination that justifiable cause did not exist is against the manifest weight of the evidence.
{40} In support of his justifiable-cause position, Reisinger relies on his incarceration, his sour relationship with the Taylors, and the denied request for visitations at the prison. We reject Reisinger‘s arguments. First, [a] trial court is not obligated to find justifiable cause exists solely on the basis that a parent is
{41} For the foregoing reasons, we hold that the trial court did not err in concluding that Reisinger‘s consent to the Taylors’ adoption of H.R. was not required under
{42} Reisinger‘s first assignment of error is overruled.
Assignment of Error No. II
The trial court erred by analyzing the best interest of the child on the issue of consent, when no evidence was taken at trial as to best interest, and the court improperly took judicial notice of another court‘s case to make its finding.
{43} In his second assignment of error, Reisinger argues that the trial court erred by addressing H.R.‘s best interest in its June 9, 2014 judgment entry because a child‘s best interest is not part of the
{44} Reisinger‘s second assignment of error is overruled.
Judgment Affirmed
WILLAMOWSKI, P.J. and SHAW, J., concur.
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