In re K.D.
Decided: April 9, 2010
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Robert S. Salem, for appellant.
David C. Bruhl, for appellee.
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SINGER, J.
{¶ 1} Aрpellant appeals the judgment of the Lucas County Court of Common Pleas, Probate Division, finding that he failed without justification to have more than de minimis contact with his daughter for more than a year preceding an adoption petitiоn. For the reasons that follow, we affirm.
{¶ 3} K.D. remained hospitalized for approximately two months. By the time she was released from the hospital, children‘s services had arranged for appellees, K.D.‘s maternal uncle and aunt, to provide for her temporary care. On July 6, 2006, the Lucas County Court of Common Pleas, Juvenile Division, adjudicated K.D. neglected and awarded appellees temporary custody. At the outset, children‘s services put in place a case plan to rеunify K.D. with her parents. Her mother was to participate in substance abuse treatment, her father, appellant, J.W., was to take anger management and parenting classes.
{¶ 4} On March 2, 2007, following a hearing that appellant did not attend, the juvenile court granted children‘s services’ motion to grant legal custody of K.D. to appellees. In April 2007, however, appellant contacted the court, asserting that he had not received notice of the legal custody heаring.
{¶ 5} The court held a second hearing, following which the parties were referred to mediation. The mediation resulted in a consent agreement wherein appellant was afforded supervised weekly visitation with K.D. under the auspices of the Children‘s Rights Council. The mediation agreement was reduced to judgment in the juvenile court.
{¶ 6} Appellant failed to appear or was late beyond the agreed limits for three of seven visitations between October 26, 2007, and January 25, 2008. This prompted the
{¶ 7} At the final visitation, on January 25, 2008, the visitation supеrvisor reported that things did not go well. K.D. was very anxious when left alone with appellant, crying and screaming when not distracted. As a result of this observed behavior, appellees contacted their attorney.
{¶ 8} Appellees’ attorney sent appellant a letter, advising him that because he had been habitually absent/tardy from visitations, failed to complete the anger management or parenting classes as ordered and was suspected to be off his medications for bi-polar disorder, that appellees intended to seek a court order barring further visitation or, alternatively, visitation preceded by drug testing. Appellees’ counsel sent a second letter to the Children‘s Rights Council, advising the orgаnization that K.D. would not be returning for further visitation with appellant.
{¶ 9} Appellees never filed for an order barring further visitation. Nevertheless, it is undisputed that, from the time of the attorney‘s letter forward, appellant had no visitation, communication or contact with K.D. On April 14, 2009, appellees petitioned the trial court to adopt K.D. In their application, appellees asserted that the consent of neither parent was necessary because K.D.‘s parents had failed without justification to have more than de minimis contact with the child for the previous year.1
{¶ 11} At the conclusion of the hearing, the trial court found that appellant had failed to provide more than de minimis contact with the child without justifiable cause for a period in excess of one year prior to the adoption petition and, therefore, his consent to аdoption was unnecessary. Appellant appeals this judgment, setting forth the following two assignments of error:
{¶ 12} “I. The trial court erred as a matter of law in holding that appellees’ unilateral termination of court-ordered visitations did not сonstitute significant interference with appellant‘s efforts to contact his daughter, and therefore did not establish justifiable cause for appellant‘s lack of contact with his daughter[.]
{¶ 13} “II. The trial court erred as a matter of law in holding thаt appellant‘s limited cognitive abilities and psychological condition did not establish justifiable cause for appellant‘s lack of contact with his daughter.”
{¶ 14} Ordinarily, a minor child may be adopted only with the natural parent‘s consent.
{¶ 15} “* * * The question оf whether justifiable cause exists in a particular case is a factual determination for the probate court and will not be disturbed upon appeal unless such determination is unsupported by clear and convincing evidence.” Holcomb, аt paragraph three of the syllabus. Clear and convincing evidence is that measure “* * * which will produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to be established.” Cross v. Ledford (1954), 161 Ohio St. 469, paragraph three of the syllаbus. “[S]ignificant interference by a custodial parent with communication between the non-custodial parent and the child, or significant discouragement of such communication, is required to establish justifiable cause for the non-custodial parеnt‘s failure to communicate with the child.” Holcomb at 367-368 (Emphasis in original.)
{¶ 16} There is no dispute in this matter that appellant had no contact with K.D. for a period in excess of one year prior to the application for adoption. The only issue
{¶ 17} Judgments supported by some competent credible evidence will not be disturbed on appeal as against the manifest weight. C.E. Morris v. Foley Constr. Co. (1978), 54 Ohio St. 2d 279, syllabus. Thus, if there is any evidence of record by which the trial court could have reached a firm conviction that appellant‘s failure to contact his daughter for a year was not justified, the trial court‘s judgment must be affirmed. Holcomb at 368.
{¶ 18} At trial, appellant testified that his last contact with K.D. was on January 25, 2008. A few days later, appellant received the letter from appellees’ attorney, advising him that they intended to cease visitation through the Children‘s Rights Council and to seek an order barring further visitation. Appellant testified that in February 2008, he attempted to contact appellee‘s attorney, but was advised he was unavailable. In Oсtober 2008, according to appellant, he asked his wife to contact appellees through Myspace.com, a social networking website. Appellant and his wife testified that there was no response to the message.
{¶ 19} Aрpellant continued, testifying that between March and May 2009, he visited the juvenile court, attempting to obtain appellees’ contact information. According to appellant, he was advised that this information was confidential. In May 2009, аfter appellant received service of the adoption petition, he sought legal representation, but
{¶ 20} Appellant argues that the January 30, 2008 letter from appellees’ attorney and their cancellation of visitation at the Children‘s Rights Council was a significant interfеrence with his non-custodial rights and a significant discouragement of communication with the child, by itself sufficient justifiable cause for non-contact. Alternatively, appellant suggests, given his mental condition of bi-polar disorder, “exacerbated after he stopped taking his medication in December 2008,” and his limited education, he had difficulty understanding the proceedings. Such diminished cognition forms an alternate reason to find justifiable cause for his lack of contact, appellant insists.
{¶ 21} The trial court refused to find the letter from appellees’ attorney sufficient interference with appellant‘s rights to constitute justifiable cause for his failure to contact his daughter for the next year. We note that neither the attorney‘s letter to appellant, nor his letter to Children‘s Rights Council, deny visitation. The letter to Children‘s Rights Council advises that appellees will not be bringing K.D. back to that location. The letter to appellant indicates that appellees will seek an order denying visitation or, alternatively, drug testing 24 hours prior to supervised visitation.
{¶ 22} It may be that appellant misunderstood the letter or ascribed to it more authority than was due, but we cannot see how this letter by itself justifies essentially no аttempt to make contact with this child for the next year. The one year period prior to the
{¶ 23} With respect to whether appellant‘s limited cognition and bi-polar disorder should operate to provide justifiable cause for appellant‘s lack оf contact, we fail to find evidence that this should be the case. Appellant, by his own admission, was on his medications for eight months during this period, so assuming any kind of efficacy for this medication, he should have been functional during some of this time. Apрellant also testified that he had completed the tenth grade and introduced no evidence of illiteracy or other cognitive impairment. Accordingly, the trial court‘s rejection of this proposition is not against the weight of the еvidence. Appellant‘s remaining assignment of error is not well-taken.
{¶ 24} On consideration whereof, the judgment of the Lucas County Court of Common Pleas, Probate Division, is affirmed. It is ordered that appellant pay court costs of this appeal pursuant to
JUDGMENT AFFIRMED.
Arlene Singer, J. _______________________________
JUDGE
Thomas J. Osowik, P.J. _______________________________
Keila D. Cosme, 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.sconet.state.oh.us/rod/newpdf/?source=6.