[Cite as In re Adoption of J.A.B., 2014-Ohio-1375.]
THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
TRUMBULL COUNTY, OHIO
ADOPTION OF: J.A.B., JR. : OPINION
: CASE NO. 2013-T-0114
Civil Appeal from the Trumbull County Court of Common Pleas, Probate Division, Case
No. 2013 ADP 0012.
Judgment: Affirmed.
Elise M. Burkey, Burkey, Burkey & Scher Co., L.P.A., 200 Chestnut Avenue, N.E.,
Warren, OH 44483 (For Appellant, Terry L. Paronish).
John H. Chaney, III, Daniel Daniluk, L.L.C., 1129 Niles-Cortland Road, S.E., Warren,
OH 44484 (For Appellee, Jasper A. Beede, Sr., Father).
COLLEEN MARY O’TOOLE, J.
{¶1} Appellant, Terry L. Paronish (“Aunt”), appeals from the October 21, 2013
judgment of the Trumbull County Court of Common Pleas, Probate Division, denying
her petition for placement for adoption.
{¶2} On August 27, 2003, J.A.B., Jr. (“the minor child”) was born in Texas to
Jenny J. Paronish-McNabb (“Mother”) and appellee, Jasper A. Beede, Sr. (“Father”).1
Mother and Father married after their son was born. The parties later divorced.
1. Aunt and Mother are sisters.
{¶3} The minor child, during the early years of his life, lived at various locations
including Ohio, Louisiana, and Texas. In August 2005, while the minor child and his
parents were residing along the Gulf coast, Hurricane Katrina hit the area, causing
severe destruction. As a result of the devastating storm, they lost everything, including
a place to live. Due to circumstances beyond their control, Father and Mother agreed
that it was best, at that time, for the minor child to reside back in Ohio with Aunt.
{¶4} Aunt, an unmarried Ohio resident, agreed to care for her nephew in the fall
of 2005. At that time, Father was employed. Although Father did not send money for
the minor child to Aunt, he indicated he sent money to Mother, apparently after the
couple split up. Father maintained contact with his son through letters and cards sent
via mail as well as through phone calls. Thereafter, from around that period through
sometime in 2008, Father had run-ins with the law and was in prison. He was
incarcerated during that time-frame with the exception of a seven-month period.
Father continued to maintain contact with his son through letters and cards.
{¶5} Aunt later filed for custody of her nephew. On April 10, 2008, the Trumbull
County Court of Common Pleas, Juvenile Division, granted Aunt legal custody of the
minor child, Case No. 2006 JP 352. The juvenile court found that the minor child was
dependent upon Aunt for all care and support and that his natural parents were
unsuitable and/or unfit to care for him.
{¶6} Father began another prison term in 2009. He is scheduled to be
released from a Texas prison in 2019, but is eligible for parole this summer. Father
has continued to maintain contact with his son through letters and cards. He opposes
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the termination of his parental rights. On the other hand, Mother, a Missouri resident,
filed a consent on April 15, 2013 to have Aunt adopt the minor child.
{¶7} On May 7, 2013, Aunt filed a petition for placement for adoption with the
Trumbull County Court of Common Pleas, Probate Division, Case No. 2013 ADP 0012.
Aunt alleged that the parents abandoned the minor child by failing to support or visit
him within one year prior to the filing of her petition pursuant to R.C. 3107.07. Aunt
further alleged that adoption would be in the minor child’s best interests.
{¶8} On May 31, 2013, Father filed a pro se written objection(s) to adoption, an
answer, a request for appointment of an attorney ad litem, a bench warrant, or in the
alternative, a telephonic/video conference, and a continuance. In response, the
probate court appointed counsel for Father.
{¶9} A hearing on Aunt’s adoption petition was held on September 9, 2013.
Aunt was represented by counsel and testified at the hearing. Father was also
represented by counsel and testified via telephone from prison in Texas. Mother, who
previously consented to the adoption, did not attend the hearing.
{¶10} According to Father, he maintained consistent contact and communication
with his son through the mail since 2005 by sending multiple letters, cards, and
homemade “gifts.” The minor child and Aunt also sent responses back to him. Around
that period through sometime in 2008, Father was incarcerated, with the exception of a
seven-month period, and had no cash income. Since his latest 2009 incarceration,
Father has continued to send letters to his son from prison and has no cash income.
{¶11} According to Aunt, Father never paid her any support for the minor child,
even when he was employed. Aunt acknowledged that Father has had contact and
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communication with his son for many years, and throughout his incarcerations, through
letters, cards, and homemade “gifts.”
{¶12} Following the hearing, and at the court’s request, Aunt and Father
submitted post-trial briefs. On October 21, 2013, the probate court concluded that Aunt
failed to sustain the burden of proof that Father had abandoned the minor child. Thus,
the court denied Aunt’s adoption petition as consent of Father is required. Aunt filed a
timely appeal raising three assignments of error:
{¶13} “[1.] The trial court erred in not determining that the father failed to support
or communicate with the minor child in the year prior to the juvenile court granting
appellant legal custody (placement of the minor in the home of the petitioner).
{¶14} “[2.] The trial court erred in finding that letters from prison are not di
minimis (sic) contact with a minor child for purposes of determing (sic) his right to
consent.
{¶15} “[3.] The trial court erred in finding that father had justifiable cause to not
support the child because he was in prison.”
{¶16} Preliminarily, we note that Aunt’s appeal focuses on the denial of her May
7, 2013 adoption petition in which she alleged that the parents abandoned the minor
child by failing to support or visit him within one year prior to the filing of her petition
pursuant to R.C. 3107.07. Aunt additionally alleges that the parents also abandoned
their son within one year prior to April 10, 2008 when she was granted legal custody.
Thus, Aunt is essentially requesting the termination of Father’s parental rights including
his right to consent regarding the placement and/or adoption of the minor child. See
generally In re Adoption of Lasky, 11th Dist. Portage Nos. 2004-P-0087, 2004-P-0088,
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and 2004-P-0089, 2005-Ohio-1565, ¶17 (holding that adoptions terminate fundamental
rights of natural parents.)
{¶17} We commend Aunt for being involved and supporting her nephew due to
such an unfortunate set of events. However, for the following reasons, we fail to see
that the probate court committed any error in requiring the consent of Father with
respect to Aunt’s adoption petition.
{¶18} “[I]t is well established that a parent’s right to raise a child is an essential
and basic civil right. In re Hayes (1997), 79 Ohio St.3d 46, 48 * * *. The permanent
termination of parental rights has been described as the family law equivalent of the
death penalty in a criminal case. In re Hoffman, 97 Ohio St.3d 92, 2002-Ohio-5368, at
¶14 * * *. See, also, In re Smith (1991), 77 Ohio App.3d 1, 16 * * *. Based upon these
principles, the Ohio Supreme Court has determined that a parent ‘must be afforded
every procedural and substantive protection the law allows.’ (Citation omitted.) Hayes
at 49.” In re Phillips, 11th Dist. Ashtabula No. 2005-A-0020, 2005-Ohio-3774, ¶22.
(Parallel citations omitted.)
{¶19} “In cases involving the termination of parental rights, an appellate court
applies the civil manifest weight of the evidence standard of review. In re D.H, 11th
Dist. Geauga No. 2007-G-2759, 2007-Ohio-3337, ¶20-21. ‘Judgments supported by
some competent, credible evidence going to all the essential elements of the case will
not be reversed by a reviewing court as being against the manifest weight of the
evidence.’ C.E. Morris Co. v. Foley Constr. Co., 54 Ohio St.2d 279 * * * (1978),
syllabus.” In re B.R.C. and E.J.C., 11th Dist. Portage Nos. 2013-P-0059 and 2013-P-
0060, 2014-Ohio-69, ¶41. (Parallel citation omitted.)
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{¶20} In her first assignment of error, Aunt argues the probate court erred in not
determining that Father failed to support or communicate with the minor child in the
year prior to the juvenile court granting her legal custody.
{¶21} R.C. 5103.16(D)(3) states in part:
{¶22} “If the parent or parents of the child * * * have abandoned the child, as
determined under division (A) of section 3107.07 of the Revised Code, the application
for approval of the proposed adoptive placement may be brought by the relative
seeking to adopt the child * * * in the probate court of the county in which the child is a
resident, * * * or where the person or persons with whom the child is to be placed
reside. Unless the parent, parents, or guardian of the person of the child personally
have appeared before the court and applied for approval of the placement, notice of
the hearing on the application shall be served on the parent, parents, or guardian.”
{¶23} R.C. 3107.07(A) provides that consent to adoption is not required of:
{¶24} “(A) A parent of a minor, when it is alleged in the adoption petition and the
court finds after proper service of notice and hearing, that the parent has failed without
justifiable cause to communicate 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.”
{¶25} This court stated in In re Adoption of Pushcar, 11th Dist. Lake No. 2005-L-
050, 2005-Ohio-5114, ¶11-15:
{¶26} “We will reverse a trial court’s determination under R.C. 3107.07(A) only if
it is against the manifest weight of the evidence. In re Adoption of Masa (1986), 23
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Ohio St.3d 163, * * *, at paragraph 2 of the syllabus; In re Adoption of Bovett (1987), 33
Ohio St.3d 102, * * *, at paragraph four of the syllabus.
{¶27} “In Bovett, the Court set forth the standard to apply in proceedings under
R.C. 3107.07(A). The Court held:
{¶28} “‘1. Pursuant to R.C. 3107.07(A), the petitioner for adoption has the
burden of proving, by clear and convincing evidence, both (1) that the natural parent
has failed to support the child for the requisite one-year period, and (2) that this failure
was without justifiable cause. (In re Adoption of Masa (1986), 23 Ohio St.3d 163, * *
*, paragraph one of the syllabus, followed.)
{¶29} “‘2. Once the petitioner has established, by clear and convincing evidence
that the natural parent has failed to support the child for at least the requisite one-year
period, the burden of going forward with the evidence shifts to the natural parent to
show some facially justifiable cause for such failure. The burden of proof, however,
remains with the petitioner.
{¶30} “‘3. Under R.C. 3107.07(A), the probate court shall determine the issue of
justifiable cause by weighing the evidence of the natural parent’s circumstances for the
statutory period for which he or she failed to provide support. The court shall
determine whether the parent’s failure to support the child for that period as a whole
(and not just a portion thereof) was without justifiable cause.’ Id. at paragraphs one,
two, and three of the syllabus.” (Parallel citations omitted.)
{¶31} As stated, Aunt alleged in her May 7, 2013 adoption petition that the
parents abandoned the minor child by failing to support or visit him within one year
prior to the filing of her petition pursuant to R.C. 3107.07. Following Father’s
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objections, a hearing on the petition was held. Father testified that he maintained
consistent contact and communication with his son through the mail since 2005 by
sending multiple letters, cards, and homemade “gifts.” The minor child and Aunt also
sent responses back to him. Around that period through sometime in 2008, Father was
incarcerated, with the exception of a seven-month period, and had no cash income.
Since his latest 2009 incarceration, Father has continued to send letters to his son from
prison and has no cash income.
{¶32} Our review of the record supports the probate court’s findings that Father
was without income during the one year preceding the filing of Aunt’s May 7, 2013
adoption petition and throughout his incarceration and that Father had more than de
minimis contact with the minor child. In fact, within the one year period preceding her
filing of the adoption petition, Aunt acknowledged that Father has had contact and
communication with his son through mail correspondences.
{¶33} Aunt also alleges that the probate court should have focused on the time
period within one year of her being granted legal custody of the minor child, i.e., April
10, 2008. However, the record also reflects that Father did not abandon his son during
that time period. Again, around 2005 through sometime in 2008, Father was
incarcerated, with the exception of a seven-month period, had no cash income, and
communicated with his son through letters. Thus, Father was in a similar position
during 2007 to 2008 as he was in the one year period preceding the filing of Aunt’s
adoption petition in 2013. Therefore, contrary to Aunt’s assertion, nothing has
changed.
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{¶34} Upon review, the probate court correctly determined that Father “was
without income during the one year preceding the filing of the petition for placement for
adoption and throughout his incarceration” and that Father had “more than de minimis
contact with the minor.” (Emphasis added.) Furthermore, using either the year prior to
the April 10, 2008 legal custody date or the year prior to the May 7, 2013 adoption
petition filing, the record establishes that Father did not abandon his son under R.C.
5103.16(D)(3) and 3107.07(A). Beginning in 2005 through the date of the September
9, 2013 hearing, Aunt testified that Father sent the minor child a letter once every
couple of months. Father, however, testified that he sent letters to his son more often.
Regardless, the time-frame evidence reveals that Father communicated with his son,
through his only established means, within the year prior to the April 10, 2008 legal
custody date and within the year prior to the May 7, 2013 adoption petition filing. Thus,
Father’s consent to adoption is required.
{¶35} Aunt’s first assignment of error is without merit.
{¶36} In her second assignment of error, Aunt contends the probate court erred
in finding that letters from prison are not de minimis contact with the minor child for
purposes of determining Father’s right to consent.
{¶37} “A trial court is not obligated to find justifiable cause exists solely on the
basis that a parent is incarcerated. Dallas v. Dotson, 113 Ohio App.3d 484, * * * (9th
Dist.1996); In re A.M.W., 9th Dist. Medina Nos. 07CA0062-M, 07CA0063-M, 2008-
Ohio-1456; In re Adoption of Caleb M.J., [6th Dist. Lucas No. L-07-1186, 2007-Ohio-
5599,] at ¶11. Instead, when a parent is in prison, reviewing courts have determined
that imprisonment is one of several factors the court should consider. In re D.R., 7th
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Dist. Belmont No. 11 BE 11, 2011-Ohio-4755, ¶14.” In re Adoption of C.M.F., 12th
Dist. Butler Nos. 2013-06-090 and 2013-06-091, 2013-Ohio-4719, ¶17. (Parallel
citation omitted.)
{¶38} Incarceration does not preclude a parent from communicating with his
child. In re Adoption of Doyle, 11th Dist. Ashtabula Nos. 2003-A-0071 and 2003-A-
0072, 2004-Ohio-4197, ¶14. An incarcerated defendant may send cards or letters to
his child or otherwise attempt to communicate outside the realm of physical visitation.
Id. at ¶17.
{¶39} In this case, the record establishes that Father is no model citizen.
However, Father sought to maintain a bond with the minor child from the time of his
son’s birth and throughout his prior and current incarcerations. In fact, Father did not
allow his incarcerations to hinder his attempts to remain in contact with his son. As
stated, from 2005, Father has communicated with the minor child through letters from
prison, his only permitted means of communication allowed by Aunt. The minor child
and Aunt also sent responses back to him. Father also sent his son cards and
homemade “gifts.”
{¶40} Aunt opposes the probate court’s finding that she “conceded” that Father
had more than de minimis contact with the minor child. However, a review of the
record reveals that Aunt, at a minimum, acknowledged that Father has had contact and
communication with his son for many years, and throughout his incarcerations, i.e.,
from 2005, through letters, cards, and homemade “gifts.”
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{¶41} Based on the facts presented, the probate court did not err in finding that
Father had more than de minimis contact with his son for purposes of determining his
right to consent.
{¶42} Aunt’s second assignment of error is without merit.
{¶43} In her third assignment of error, Aunt maintains the probate court erred in
finding that Father had justifiable cause to not support the minor child because he was
in prison.
{¶44} Parents have a duty in Ohio under common and statutory law to support
their children. Haskins v. Bronzetti, 64 Ohio St.3d 202, 205 (1992). However, the
person in custody of the child is not entitled to receive support payments from non-
custodial parents on the basis of a general duty of support when no support order was
issued at the time of the custody award. See Meyer v. Meyer, 17 Ohio St.3d 222,
syllabus (1985). In addition, a natural parent is not obligated to provide support where
the person in custody of the child is advised of the parent’s financial condition and
expresses no interest in receiving financial assistance. In re Adoption of Hadley, 2d
Dist. Greene No. 90 CA 117, 1991 Ohio App. LEXIS 3783, *7-8 (Aug. 1, 1991).
{¶45} The record in this case reflects that Aunt did not express an interest in
receiving financial assistance from Father. The juvenile court considered the issue of
child support and stated in its April 10, 2008 order that “[n]o child support is being
requested at this time.” Aunt understood that there was no court order requiring Father
to pay support. In fact, when asked about this issue during the September 9, 2013
hearing before the probate court, Aunt outlined her reasoning for not requesting
financial assistance from Father stating that it was due to his incarceration. Thus, Aunt
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cannot now use Father’s lack of providing financial assistance as a basis for
terminating his parental rights.
{¶46} The facts in this case do not support a finding that Father has abandoned
or lost interest in his son. Even though Aunt did not pursue support from Father, the
facts here also reveal that Father is not the type of parent that is able to financially
support his child but is unwilling to do so. Rather, Father has maintained contact and
communication with the minor child and, when previously employed, provided financial
assistance to Mother for their son. Thus, Father is the type of parent willing to support,
but due to his incarceration, even though it was his own voluntary act to commit a
crime, is unable to do so as he has no income.
{¶47} The probate court properly considered Father’s incarceration as a factor in
determining that Aunt had not presented sufficient evidence to support a finding that
Father failed without justifiable cause to support his son.
{¶48} Aunt’s third assignment of error is without merit.
{¶49} For the foregoing reasons, appellant’s assignments of error are not well-
taken. The judgment of the Trumbull County Court of Common Pleas, Probate
Division, is affirmed.
DIANE V. GRENDELL, J.,
THOMAS R. WRIGHT, J.,
concur.
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In re Adoption of J.A.B.
Combined Opinion