In re R.L.H.

[Cite as In re R.L.H., 2013-Ohio-3462.]

IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY

IN THE MATTER OF :
THE ADOPTION OF: : Appellate Case No. 25734
:
R.L.H. : Trial Court Case No.
12-ADP-110
:
:
: (Probate Appeal from
: (Common Pleas Court)
:
...........

OPINION

Rendered on the 9th day of August, 2013.

...........

MARK D. WEBB, Atty. Reg. #0085089, John D. Smith Co., LPA, 140 North Main Street, Suite
B, Springboro, Ohio 45066
Attorney for Appellant

DAVID L. McNAMEE, Atty. Reg. #0068582, McNamee Law Offices, 42 Woodcroft Trial, Suite
D, Beavercreek, Ohio 45430
Attorney for Appellee

.............

HALL, J.,

{¶ 1} D.Q. (“Mother”) appeals from the trial court’s judgment entry finding her

consent to the adoption of her daughter R.L.H. not required. The trial court reached this
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conclusion after finding that Mother had failed without justifiable cause to have more than de

minimis contact with her daughter for at least one year immediately preceding an adoption

petition filed by L.H., the new wife of the child’s father, C.H. (“Father”), who has legal custody.

{¶ 2} Mother advances five related assignments of error on appeal. First, she contends

the trial court erred in finding her consent to the adoption not required. Second, she claims the

trial court erred in finding she failed to have contact or communicate with R.L.H. for at least one

year preceding the adoption petition. Third, she argues that the trial court erred in shifting the

burden of proof to her regarding whether justifiable cause existed for her failure to have contact

with her daughter. Fourth, she asserts that the trial court erred in applying an inappropriate

“illusory” test when analyzing the justifiable-cause issue. Fifth, even if use of the “illusory” test

was appropriate, she contends the trial court erred in applying it.

{¶ 3} The record reflects that Mother gave birth to R.L.H. in May 2008. Mother and

Father separated in October 2008. Father received legal custody of the child, and Mother received

parenting time. In October 2009, Mother began a relationship with another man, K.Q., whom she

later married. Mother admits that K.Q. was physically and emotionally abusive to her. This abuse

caused Father to refuse to allow Mother to exercise parenting time in her home. In November

2010, Mother and Father mutually agreed to a court order granting Mother parenting time once a

week for two hours at Erma’s House, a supervised visitation center.

{¶ 4} Between January 2011 and July 2011, Mother exercised parenting time at Erma’s

house. Mother and K.Q. permanently separated in April 2011, and later divorced, after she was

hospitalized due to his physical abuse. On August 4, 2011, Mother asked Erma’s House to

suspend her weekly parenting time with R.L.H. for thirty days. Erma’s House agreed and told
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Mother to contact the center by September 7, 2011, if she wished to resume her visits. Mother

failed to do so, and Erma’s House closed her case.

{¶ 5} On October 1, 2012, L.H. (who Father had married in July 2011), petitioned to

adopt R.L.H. Based on the evidence presented during a March 25, 2013 hearing, the trial court

found that “[a]fter Erma’s House closed the case, and between October 1, 2011 and October 1,

2012, [Mother] did not exercise any parenting time with R.L.H.” (Doc. #29 at 3). The trial court

further found that Mother “did not see, speak with, or correspond with R.L.H. during this time

period.” (Id.). Pursuant to R.C. 3107.07(A), the trial court determined that Mother’s consent to

the adoption was not required because she had failed without justifiable cause to have more than

de minimis contact with R.L.H. for the one year immediately preceding the adoption petition. (Id.

at 8). This appeal by Mother followed.

{¶ 6} The statute at issue, R.C. 3107.07(A), provides that consent to adoption is not

required of 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.

{¶ 7} The current statute was amended in 2008, and has been in effect since April 7,

2009. Prior to the amendment, R.C. 3107.07(A) stated that consent to adoption would not be
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required of a parent of a minor when “the parent has failed without justifiable cause to

communicate with the minor * * * 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.”

Am.Sub.H.B. No. 7, 2008 Ohio Laws 172 (effective April 7, 2009).

{¶ 8} “By changing the standard from ‘communicate,’ which could imply a single

contact, to ‘more than de minimis contact,’ which seems to imply more than a single contact, the

Legislature indicated its intent to require more effort from the parent to have contact and

communication with the child.” In re J.D.T., 7th Dist. Harrison No. 11 HA 10,

2012-Ohio-4537, 978 N.E.2d 602, ¶ 9.

{¶ 9} “Because cases such as these 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 [have more than de minimis contact] with the child

during the requisite one-year period and that there was no justifiable cause for the failure of

[contact].” (Citations omitted.) In re Adoption of Holcomb, 18 Ohio St.3d 361, 368, 481

N.E.2d 613 (1985). “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 A.N.B., 12th Dist. Preble No.

CA2012-04-006, 2012-Ohio-3880, ¶ 10, citing In re Adoption of Bovett, 33 Ohio St.3d 102, 104,

515 N.E.2d 919 (1987).

{¶ 10} “While R.C. 3107.07(A) has since been amended to add the ‘de minimis

contact’ language, the burden of proof has remained the same.” (Citation omitted.) J.D.T. at ¶

11. The burden of clear and convincing evidence “is that measure or degree of proof which is
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more than a mere ‘preponderance of the evidence,’ but not to the extent of such certainty as is

required ‘beyond a reasonable doubt’ in criminal cases, and 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, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the syllabus.

{¶ 11} In a recent decision, the Ohio Supreme Court clarified the standard of review

under R.C. 3107.07(A). See In re Adoption of M.B., 131 Ohio St.3d 186, 2012-Ohio-236, 963

N.E.2d 142. In M.B., the court considered the branch of R.C. 3107.07(A) that pertains to

provision of financial support. Id. at ¶ 2. However, due to the similar nature of the findings that

are required for both prongs of R.C. 3107.07(A), the court’s discussion appears to apply to the

review of both requirements under R.C. 3107.07(A), i.e., that a parent’s consent to adoption is

not required if the parent either fails to provide financial support, or fails, without justifiable

cause, to provide more than de minimis contact with the child.

{¶ 12} In M.B., the Ohio Supreme Court first noted that probate courts undertake a

two-step analysis when applying R.C. 3107.07(A). Id. at ¶ 23. The first step involves deciding

a factual question–in that case, whether the parent willfully had failed to provide for the support

and maintenance of a minor child. Id. at ¶ 21. Probate courts have discretion over the factual

decision of “whether the biological parent provided support as contemplated by R.C. 3107.07(A)

‘and his or her judgment should not be tampered with absent an abuse of discretion.’” (Citations

omitted.) Id. In the second step, if a probate court finds a failure of support, the court then

determines the issue of whether there is justifiable cause for the failure. Id. at ¶ 23. A probate

court decision on whether justifiable cause exists will not be disturbed on appeal unless the

determination is against the manifest weight of the evidence. Id. at ¶ 24; In re Adoption of Masa,
 6

23 Ohio St.3d 163, 492 N.E.2d 140 (1986), paragraph two of the syllabus.

{¶ 13} As we noted, these issues are similar to those involving contact with the minor

child. The first consideration is whether the parent has had more than de minimis contact with

the child. This is a factual consideration. If the trial court decides that issue adversely to the

parent, then the court further considers whether the lack of contact is justifiable.

{¶ 14} Although Mother has divided her appellate argument into five assignments of

error, the overriding issue before us is whether the trial court erred in finding, by clear and

convincing evidence, that Mother had failed without justifiable cause to have more than de

minimis contact with her daughter for at least one year immediately preceding the adoption

petition. As a means of analysis, we first will determine whether the record supports the trial

court’s resolution of that issue. See In re B.A.H., 2d Dist. Greene No. 2012-CA-44,

2012-Ohio-4441, ¶20-21 (explaining that an appellate court will not reverse a trial court’s

decision that an adoption petitioner met his or her burden under R.C. 3107.07 unless the decision

is against the manifest weight of the evidence). We then will turn to Mother’s specific arguments.

{¶ 15} Here the manifest weight of the evidence supports the trial court’s finding that

Mother failed to have more than de minimis contact with R.L.H. during the relevant one-year

time period, October 1, 2011 to October 1, 2012. The evidence supports the trial court’s finding

that Mother voluntarily suspended her agreed-upon, court-ordered parenting time at Erma’s

house in August 2011 and did not seek to reinstate it prior to October 1, 2012. (Hearing Tr. at

8-9, 36, 70). The evidence also supports the trial court’s finding that Mother did not “see, speak

with, or correspond with R.L.H.” during the one-year time period. (Id. at 14, 27, 38). In her own

testimony, Mother did not appear to challenge that fact. Rather, Mother argued that she, or others
 7

acting on her behalf, repeatedly had attempted to arrange her contact or communication with

R.L.H. during the relevant time frame. (Id. at 54-78).

{¶ 16} The critical issue on appeal, then, is whether L.H., the adoption petitioner,

proved, by clear and convincing evidence, that Mother’s lack of contact was without justifiable

cause. In its ruling, the trial court recognized that significant interference by a custodial parent

with contact between the non-custodial parent and the child, or significant discouragement of

such contact, may establish justifiable cause for the non-custodial parent’s lack of contact.

Holcomb, 18 Ohio St.3d at 367-368, 481 N.E.2d 613.

{¶ 17} Mother argued below that justifiable cause existed because she unsuccessfully

and repeatedly had attempted to establish contact with R.L.H. during the one-year period through

Father and through R.L.H.’s maternal and paternal grandmothers. In addition, she argued that

Father significantly had interfered with any contact or communication by twice moving and not

providing her with his address or phone number. Finally, she cited stress from her physical abuse

by K.Q. and the stress of being a single working mother caring for an infant child, apparently

from her relationship with K.Q., as facially justifiable cause for her lack of contact with R.L.H.

{¶ 18} The trial court addressed the foregoing arguments and found them lacking merit.

Significantly, it found the testimony about Mother and others trying to establish contact with

R.L.H. on her behalf “not credible.” (Doc. #29 at 5-6). Moreover, even if Mother had sent one

text message to the paternal grandmother, as alleged, the trial court found this effort de minimis.

(Id.). The trial court also reasoned that even if Mother’s other family members had attempted

contact with R.L.H., “there was no credible evidence tending to show that [Mother herself]

initiated such contacts.” (Id.).
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{¶ 19} The trial court did recognize that Father had moved without giving Mother his

new address or phone number. It also acknowledged Mother’s stress from her physical abuse by

K.Q. and from having to care for an infant child. The trial court opined that these two issues

established “facially justifiable cause for her failure to contact R.L.H.” (Id. at 6). The trial court

proceeded to find, however, that the adoption petitioner, L.H., had proven by clear and

convincing evidence that these “facially justifiable” excuses for a lack of contact were “illusory.”

The trial court reasoned:

With respect to [Mother’s] first justification, the evidence showed that

[K.Q.] assaulted [Mother] on April 23, 2011. From April 24, 2011 until July 28,

2011, however, [Mother] continued to exercise parenting time with R.L.H. This

tends to undermine [Mother’s] claim that the stress of the assault precluded her

from providing more than de minimis contact with R.L.H. between October 1,

2011 and October 2, 2012. Moreover, even assuming that [Mother’s] stress and

commitment to counseling precluded her exercise of parenting time during the

relevant time period, no evidence was presented that showed that such stress and

commitment precluded [Mother] from contacting R.L.H. by perhaps less stressful

means, such as telephone, letter, or card. Accordingly, the Court finds that [L.H.]

has shown by clear and convincing evidence that [Mother’s] first justification is

illusory.

With respect to [Mother’s] second justification, the evidence showed that

prior to [Mother’s] suspension of supervised parenting time, [Father] drove R.L.H.

to each and every scheduled visitation at Erma’s House. The evidence further
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showed that [Mother], and not [Father], canceled several scheduled visits and

chose to suspend visitation at Erma’s House. Finally, the evidence showed that

[Mother] chose not to respond to a letter from Erma’s House advising her that her

case would be closed in the absence of a response. There was no evidence

showing that [Father] in any way interfered with or discouraged [Mother’s] efforts

to respond to the letter, or that he would have interfered with or discouraged the

reinstitution of supervised parenting time at Erma’s House.

Moreover, the evidence showed that [Father] did not substantially interfere

with or discourage [Mother’s] efforts to contact R.L.H. after Erma’s House closed

the case. The evidence showed that [Father] relocated and changed his telephone

without notifying [Mother]. The evidence also showed, however, that in May or

June, 2011, [Mother] spoke with [Father] and did not ask for his contact

information. This was consistent with [Mother’s] practice of initiating contact

with [Father] through [R.L.H.’s paternal grandmother]. [Father’s] relocation and

change of telephone number did not impact this practice, as [the paternal

grandmother] maintained the same address and telephone number. The evidence

showed, however, that [Mother] did not contact [the paternal grandmother] during

the relevant time period.

Further, even assuming that [Mother] believed that it was necessary or

desirable to break with her previous practice and contact [Father] directly, the

evidence showed that she made no effort to do so. [Paternal grandmother] testified

that she last spoke with [Mother] in June, 2011, and that she last spoke with
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[maternal grandmother] in January, 2012. [Father], [L.H.], and [paternal

grandmother] each testified that neither [Father] nor [L.H.] ever directed [paternal

grandmother] to withhold [Father’s] contact information from [Mother] or

[maternal grandmother]. [Paternal grandmother] testified, however, that neither

[Mother] nor [maternal grandmother] asked her for [Father’s] contact information.

Thus, the evidence showed that, although [Mother] likely could have obtained

[Father’s] contact information with minimum effort, she made no effort to do so.

In a similar vein, to the extent that [Mother] believed that such effort would have

been futile, [Mother] could have filed a motion in the Juvenile Court, much the

same as the motion that she filed pro se in 2010, but did not do so. In light of the

foregoing, the Court finds that [L.H.] has shown by clear and convincing evidence

that [Mother’s] second justification is illusory.

(Doc. #29 at 6-8).

{¶ 20} By characterizing Mother’s proposed “facially justifiable causes” for non-contact

with R.L.H. “illusory,” the trial court essentially found that adoption-petitioner L.H. had proven,

by clear and convincing evidence, that the alleged causes were not the real reasons for Mother’s

failure to have contact. See, e.g., Cambridge Dictionaries Online, illusory,

http://dictionary.cambridge.org/us/dictionary/british/illusory (defining “illusory” to mean “not

real and based on illusion”); Dictionary.com, illusory

http://dictionary.reference.com/browse/illusory (defining “illusory” to mean “deceptive,”

“misleading,” or “unreal” and identifying synonyms including “fallacious,” “specious,” and

“false.” ).
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{¶ 21} The manifest weight of the evidence supports the trial court’s finding that

Mother’s “facially justifiable” reasons for not contacting R.L.H. were illusory or not the real

reasons. Although Mother testified to being stressed after her April 2011 assault, she permanently

separated from her abuser at that time and continued exercising parenting time at Erma’s House

through July 2011. She then voluntarily stopped the visits and did not seek to reinstate them until

after L.H. filed for adoption and the relevant one-year period had expired. Under these

circumstances, we cannot say the trial court’s finding is against the weight of the evidence.

{¶ 22} The potential substantial interference by Father with Mother’s contact with

R.L.H. involved him moving without providing her his new address or phone number. Although

such actions can constitute substantial interference, the weight of the evidence supports the trial

court’s finding that they did not here. Notably, the trial court found that the established practice

between Mother and Father was for her to initiate contact with him by going through an

intermediary, typically R.L.H.’s paternal grandmother. (Doc. #29 at 7-8). The trial court also

found that paternal grandmother’s address and phone number had remained constant before,

during, and after the relevant time period. Despite this fact, the trial court found that Mother had

not contacted paternal grandmother during the relevant time. (Id. at 3, 8). As noted above, the

trial court rejected as “not credible” testimony that Mother and others had attempted to establish

contact with R.L.H. on her behalf. (Id. at 5-6). Under similar circumstances, this court has found

that moving without providing contact information may not constitute justifiable cause for

non-contact with a child where the non-custodial parent can reach the custodial parent through a

third-party relative but declines to do so. In re Adoption of T.M.P., 2d Dist. Champaign No. 2003

CA 1, 2003-Ohio-2404, ¶ 12-13, 21.
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{¶ 23} Based on the hearing testimony and the trial court’s findings of fact, the record

supports the trial court’s determination that L.H. proved, by clear and convincing evidence, that

Mother failed without justifiable cause to have more than de minimis contact with her daughter

for at least one year immediately preceding the adoption petition. In reaching this conclusion, we

note that “the weight to be given the evidence and the credibility of the witnesses are primarily

for the trier of fact.” In re B.A.H., 2012-Ohio-4441, at ¶ 21. “‘In determining whether a judgment

is against the manifest weight of the evidence, we must review the entire record, weigh the

evidence and all reasonable inferences, consider witness credibility, and determine whether, in

resolving conflicts in the evidence, the trier of fact “clearly lost its way and created such a

manifest miscarriage of justice” that there must be a reversal of the judgment and an order for a

new trial.’” Id., quoting Steagall v. Crossman, 2d Dist. Montgomery No. 20306,

2004-Ohio-4691, ¶ 29. Here we cannot say the trial court’s judgment is against the weight of the

evidence. Although this conclusion effectively resolves the case, we turn now to Mother’s

specific assignments of error, insofar as they are not subsumed in what we have decided above.

{¶ 24} In her first assignment of error, Mother contends generally that “the trial court

erred in finding that [her] consent was not required * * *.” In support, she claims the trial

court’s decision is against the weight of the evidence. She also cites her alleged attempted contact

with her daughter, Father’s alleged interference, her abusive relationship with K.Q., Father’s

address and phone number changes, and her justifiable-cause arguments. Having examined the

first assignment of error, we find nothing therein that we did not fully address in our analysis

above. Accordingly, the first assignment of error is overruled.

{¶ 25} Mother’s second assignment of error challenges the trial court’s finding that she
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failed to contact R.L.H. during the relevant one-year time period. The substance of her argument,

however, actually does not dispute the fact of actual lack of contact. Instead, she asserts that there

were “numerous attempted contacts by Mother and Mother’s family” that were rebuffed by

“Father’s continued and concentrated efforts to interfere with Mother’s parenting time.”

(Emphasis added.) (Appellant’s brief at 6). Mother further argues that she and her family “made

multiple and consistent attempts to contact and exercise parenting time with the minor child.” (Id.

at 7). In its ruling, however, the trial court found the evidence Mother presented on this issue “not

credible.” (Doc. #29 at 5-6). The trial court concluded that the efforts at contact, if any existed at

all, were de minimis. (Id. at 6). The trial court was entitled to assess the credibility of the

witnesses, and its finding on this issue is not against the manifest weight of the evidence.

{¶ 26} Under her second assignment of error, Mother also complains about Father

moving without providing his address. As noted above, however, Mother and her family knew

how to establish contact through paternal grandmother. Despite that fact, Father presented

evidence that they did not try to do so. (See, e.g., Hearing Tr. at 42-43, 46-50, 72). As the trier of

fact, the trial court was entitled to credit this evidence. Mother additionally claims that she paid

her court-ordered child support. But that issue is not material in a failure-to-contact case. Mother

also claims that a card for R.L.H. was returned and that Father and his family threatened to call

the police if attempts at contact continued. We note, however, that the card allegedly was sent by

the maternal grandmother, not Mother. (Hearing Tr. at 84). Maternal grandmother also mentioned

receiving threats from someone that the police would be called if she continued trying to

establish contact. (Id. at 87). Father presented contrary evidence, however, that no card ever was

received and that neither he nor anyone in his family ever threatened to call the police. (Id. at 24,
 14

29, 39, 48-49). Again, we defer to the trial court to resolve these evidentiary disputes. The second

assignment of error is overruled.

{¶ 27} Mother’s third assignment of error claims the trial court erroneously shifted the

burden of proof by requiring her to establish “justifiable cause” by clear and convincing

evidence. This argument lacks merit for at least three reasons. First, the trial court expressly

recognized that once an adoption petitioner establishes, by clear and convincing evidence, a lack

of contact and a lack of justifiable cause, the burden of production shifts to the parent to show

some facially justifiable cause. (Doc. #29 at 4). The trial court also recognized that the burden of

proof remains with the adoption petitioner, even where the parent makes some facial showing.

(Id. at 5). The trial court’s approach is consistent with this court’s case law. See, e.g., In re

R.M.Z., 2d Dist. Montgomery No. 23511, 2009-Ohio-5627, ¶ 11. Second, to the extent that the

trial court imposed a burden of production on Mother, it found that she satisfied it. (Doc. #29 at

6). Third, the trial court placed the ultimate burden of proof on L.H. to establish, by clear and

convincing evidence, that Mother’s facial showing was “illusory” or not real, and that Mother

had failed without justifiable cause to have more than de minimis contact with R.L.H. (Id. at

6-8). Having reviewed the record, we see no improper burden shifting. The third assignment of

error is overruled.

{¶ 28} In her fourth and fifth assignments of error, Mother quarrels with the trial court’s

use of the word “illusory” to describe her claimed “facially justifiable cause” for not contacting

R.L.H.

{¶ 29} As set forth above, the trial court first required the adoption petitioner, L.H., to

establish Mother’s non-contact with R.L.H. and a lack of justifiable cause. It then imposed on
 15

Mother a burden of production to make some showing of a facially justifiable cause for her lack

of contact. The trial court found that Mother met this burden, reasoning:

[Mother] claims that her failure was justified by both her post-traumatic

stress disorder and the stress of being a single working mother of an infant and

[Father’s] significant interference with and discouragement of her efforts to

communicate with R.L.H. In support, [Mother] presented evidence that showed

that she was the victim of domestic violence on April 23, 2011. [Mother] also

presented evidence that showed that [Father] relocated and changed his telephone

number without providing her his new contact information. In light of the

foregoing, the Court finds that [Mother] has shown a facially justifiable cause for

her failure to contact R.L.H.

(Doc. #29 at 6).

{¶ 30} On appeal, Mother argues that the foregoing finding by the trial court should

have ended the matter. Having presented some evidence of a “facially” justifiable reason for her

non-contact, Mother reasons that the trial court’s inquiry should have ended and her consent to

the adoption should have been required. According to Mother, the trial court erred in proceeding

to look behind her facially justifiable cause to find it “illusory.”

{¶ 31} In finding that Mother had met her burden, however, the trial court simply

recognized that significant stress and a custodial parent’s relocation can justify a failure to

contact a child. Therefore, the trial court required L.H. to prove, by clear and convincing

evidence, that these proffered reasons did not constitute justifiable cause in this case. The

remainder of the trial court’s opinion appropriately explained why Mother’s “facially” justifiable
 16

cause did not qualify as justifiable cause in this case and why L.H. had carried her ultimate

burden of proof on the issue. (Doc. #29 at 6-8).

{¶ 32} Mother criticizes the trial court for allowing L.H. to prove that her proffered

reasons for not contacting R.L.H. were “illusory.” She argues that this approach gave L.H. “a

second bite at the apple.” (Appellant’s brief at 9). According to Mother, “[t]he effect of the

illusory test is to shift the burden of going forward to the respondent parent to show that

justifiable cause was ‘good enough.’” (Id.). Mother further argues that the “illusory” test has been

applied only a few times by other appellate districts in R.C. 3107.07 cases involving a failure to

support rather than a failure to contact. Finally, she argues that her facially justifiable cause was

not “illusory” in any event. (Id. at 11-14).

{¶ 33} We find Mother’s arguments unpersuasive. We do not view the trial court’s

usage of the term “illusory,” when referring to Mother’s reasons given to justify lack of contact,

as imposition of an “illusory test” as argued in briefing. The ultimate issue in this case was

whether L.H. proved, by clear and convincing evidence, that Mother had failed without justifiable

cause to have more than de minimis contact with R.L.H. for the requisite one-year period. It does

not follow that L.H. could not carry this burden simply because Mother was able to articulate

“facially” valid reasons for her non-contact. We see nothing wrong with allowing L.H. to prove,

again by clear and convincing evidence, that Mother’s “facially justifiable” reasons did not

actually cause her non-contact, i.e., that such reasons were “illusory.” Indeed, L.H. could not be

expected to disprove the proffered reasons until after Mother articulated them. The Ohio

Supreme Court has recognized this very point: “‘[I]t should be pointed out that the adopting

parent has no legal duty to prove a negative. If the natural parent does not appear to go forward
 17

with any evidence of justification,’” the adopting parent need not attempt to refute the

justification. (Emphasis sic) Bovette, 33 Ohio St.3d at 104, 515 N.Ed.2d 919, quoting Masa, 23

Ohio St.3d at 167, 492 N.Ed.2d 140.

{¶ 34} Numerous Ohio courts, including this one, have allowed an adoption petitioner to

attempt to refute a parent’s proffered facially justifiable cause for a lack of contact or support.1

See, e.g., In re Adoption of A.M.B., 2d Dist. Montgomery No. 21973, 2007-Ohio-2584, ¶ 8-10

(affirming a judgment finding consent to adoption not required based on a lack of communication

where the trial court allowed the adoption petitioner to refute the biological parent’s proffered

facially justifiable cause); In re Adoption of S.B.D., 2d Dist. Miami No. 2006-CA-25,

2006-Ohio-5133, ¶ 33 (“In the present case, the trial court recognized and properly applied the

foregoing burdens. It first found that Jennifer Denson had proven Mertz’s failure to communicate

by clear and convincing evidence. It then found that Mertz had come forward with evidence of

some justifiable cause for her failure to communicate. The trial court next recognized that

Denson bore the ultimate burden to prove, again by clear and convincing evidence, that Mertz’s

failure to communicate was without justifiable cause. Finally, the trial court concluded that

Denson had met this burden.”); In re Adoption of A.H., 9th Dist. Lorain No. 12CA010312,

2013-Ohio-1600, ¶ 13; In re D.R., 7th Dist. Belmont No. 11 BE 11, 2011-Ohio-4755, ¶ 19 (“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.”); In re K.R.E., K.E. & A.E., 9th Dist. Lorain

1
Although Mother attempts to distinguish the no-contact and no-support cases, R.C. 3107.07(A) requires proof of either one. Due
to the similar nature of the findings required, we see no reason why different standards would apply to no-contact and no-support cases and
no reason why case law addressing no-support cases would not be equally applicable to no-contact cases.
 18

No. 06CA008891, 2006-Ohio-4815, ¶ 20; In re Adoption of Cutright, 4th Dist. Ross No.

03CA2696, 2003-Ohio-3795, ¶ 13-14.2

{¶ 35} Based on the foregoing authority, we find no error in the trial court allowing L.H.

to prove that Mother’s proffered reasons for not contacting R.L.H. were “illusory.” For the

reasons set forth more fully in our substantive analysis above, we also reject Mother’s argument

that her facially justifiable cause was not “illusory.” As we explained above, the manifest weight

of the evidence supports the trial court’s finding that Mother’s facially justifiable reasons for not

contacting R.L.H. were illusory or not the real reasons. Accordingly, Mother’s fourth and fifth

assignments of error are overruled.

{¶ 36} The judgment of the Montgomery County Probate Court is affirmed.

.............

DONOVAN, J., concurs.

FROELICH, J., concurring:

{¶ 37} The court’s use of the word “illusory” is interpreted by the Appellant as

suggesting that she demonstrated justifiable cause, but that the court then found that this was not

“good enough.”

{¶ 38} I agree that there is no middle ground - one is either pregnant or not, a number is

either odd or even - there is either justifiable cause or there is not.

{¶ 39} In contested permanent custody or adoption cases where the stakes are so high, a

trial court may often rightfully go into a more detailed explanation of its rationale in order for the

parties to appreciate that their concerns and arguments were heard and weighed. Here, the court

2
Although this list of case law is not exhaustive, additional citations to such a well-established principle would serve no purpose.
 19

found that the petitioner had met her burden as to lack of contact and lack of justifiable cause.

..........

Copies mailed to:

Mark D. Webb
David L. McNamee
Hon. Alice O. McCollum