[Cite as In re Petition for Adoption of A.M.D., 2016-Ohio-6976.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
IN THE MATTER OF ) CASE NO. 16 MA 0052
THE PETITION FOR ADOPTION OF: )
)
A.M.D. )
) OPINION
)
)
CHARACTER OF PROCEEDINGS: Civil Appeal from the Court of Common
Pleas, Probate Division, of Mahoning
County, Ohio
Case No. 2015 AD 0061
JUDGMENT: Affirmed.
APPEARANCES:
For Appellee Michael Donofrio: Atty. Lynn A. Maro
Maro & Schoenike Co.
7081 West Boulevard, Suite No. 4
Youngstown, Ohio 44512
For Appellant David DeSalvo: Atty. Andrew Zellers
Richard G. Zellers & Associates, Inc.
3810 Starrs Centre Dr.
Canfield, Ohio 44406
JUDGES:
Hon. Cheryl L. Waite
Hon. Gene Donofrio
Hon. Carol Ann Robb
Dated: September 22, 2016
[Cite as In re Petition for Adoption of A.M.D., 2016-Ohio-6976.]
WAITE, J.
{¶1} David DeSalvo, Appellant and biological father of A.M.D., appeals a
judgment of the Mahoning County Court of Common Pleas, Probate Division, which
determined that his consent to A.M.D.’s adoption by Michael Donofrio was not
required. The trial court concluded that Appellant failed to have more than de
minimis contact with the child, without justifiable cause, for more than one year
immediately preceding the filing of the adoption petition. Based on the analysis set
forth below, Appellant’s assignments of error are without merit and the judgment of
the trial court is affirmed.
{¶2} Appellant is the biological father of A.M.D. (d.o.b. 02/08/2009). On
October 11, 2013 A.M.D.’s mother, Erin Donofrio, married Appellee Michael Donofrio.
A.M.D. has resided with her mother, Appellee and Appellee’s son since 2011.
{¶3} Appellee filed a petition to adopt A.M.D. on October 2, 2015. The
petition alleged that Appellant’s consent was not required because he had failed,
without justifiable cause, to maintain more than de minimis contact with A.M.D. for at
least one year immediately preceding the filing of the adoption petition. On October
7, 2015, a notice of hearing on the petition for adoption was filed with the trial court,
with a certified mail receipt signed by Appellant on December 1, 2015.
{¶4} On March 2, 2016, the probate court held a hearing to determine
whether Appellant’s consent was required for the adoption to proceed. A step-parent
home study was filed with the court which recommended that it was in A.M.D.’s best
interests that the adoption be granted. Appellant, his mother and aunt, Appellee and
A.M.D.’s mother all testified.
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{¶5} Evidence was presented, and Appellant admitted, that he had no
visitation with the child since June of 2014. (Tr., p. 124.) Evidence was also
presented that Appellant made no telephone calls, sent no cards or letters, and had
not in any other way attempted to contact the minor child for over a year. (Tr., pp.
29-33.)
{¶6} Appellant testified that he had relapsed into drug addiction and had
entered a rehabilitation program from September of 2014 until June of 2015. (Tr., pp.
125, 127.) Appellant alleged that he had called and texted A.M.D.’s mother in an
attempt to contact the child. (Tr., p. 131.) Appellant acknowledged that he made no
attempt to contact the child from the time of his release in June of 2015 to October of
2015, when the adoption petition was filed. (Tr., p. 139.)
{¶7} In the trial court’s April 7, 2016, judgment entry, the judge concluded
that Appellant’s consent to the adoption was not needed as there had been no
justifiable cause for Appellant’s failure to contact A.M.D. The court recognized that
Appellant was in a drug rehabilitation program for a period of months, but observed
that nothing had prevented him from contacting A.M.D. at least by phone or mail
during that time. Moreover, Appellant made no attempt to contact A.M.D. for the
four-month period of time from his release from the rehabilitation program to the date
the petition was filed.
{¶8} Appellant presents two assignments of error for review:
ASSIGNMENT OF ERROR NUMBER ONE
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The Probate Court committed an error by failing to cite the appropriate
applicable section of the Ohio Revised Code which applies to this case.
{¶9} In his first assignment of error, Appellant contends the trial court erred
in citing R.C. 3107.062 in the final judgment entry rather than citing to the relevant
statute relating to consent for adoption set forth in R.C. 3107.07.
{¶10} Although in its final judgment entry the trial court did cite R.C. 3107.062,
this appears merely to amount to a clerical error, as the court’s analysis correctly
followed the requirements of R.C. 3107.07. The trial court concluded that Appellant
was not required to provide consent to the adoption because he failed to meet even
the de minimis level of contact with A.M.D., without justifiable cause, for one year
immediately prior to the date Appellee filed his adoption petition. In addition, at the
hearing on the issue, the trial court stated:
We are here in regards to Case Number 2015 AD 61, the Adoption of
[A.M.D.]. We did have some prior conversations before the hearing in
my office with counsel, and there was some discussion about the
burden of proof and the level of proof that’s going to be necessary, and
I just want to clarify that before we go any further. 3107.07 says that
the burden of proof is by clear and convincing evidence that the birth
parent has failed without justifiable cause to provide more than de
minimus [sic] contact with the minor for at least one year immediately
preceding the filing of the adoption petition or the placement of the
minor in the home.
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(Tr., p. 6.)
{¶11} Therefore, this record demonstrates that the trial court applied the
appropriate statute and that the reference to R.C. 3107.062 amounts only to a
harmless clerical error. Appellant’s first assignment has no merit and is overruled.
ASSIGNMENT OF ERROR NUMBER TWO
The Probate Court committed reversible error when it held that
Appellant, David DeSalvo, consent was not necessary in the adoption
of his minor child because he failed to maintain more than de minimis
contact without justifiable cause.
{¶12} In his second assignment of error Appellant asserts the trial court erred
in concluding that his failure to contact his child was not justifiable.
{¶13} A natural parent has a fundamental interest in the care, custody and
management of their children. Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208,
31 L.Ed.2d 551 (1972). Because it permanently terminates a natural parent’s rights,
an adoption adversely affects that fundamental right. In re Adoption of Reams, 52
Ohio App.3d 52, 55, 557 N.E.2d 159 (1989). While careful review of the evidence is
required, this Court has held, “[a]n 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 D.R., 7th Dist. No. 11 BE 11, 2011-Ohio-4755, ¶ 9 citing In re
Adoption of Masa, 23 Ohio St.3d 163, 492 N.E.2d 140 (1986).
In determining whether a judgment is against the manifest weight of the
evidence, we must review the entire record, weigh the evidence and all
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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.
Stegall v. Crossman, 2d Dist. No. 20306, 2004-Ohio-4691, ¶ 29.
{¶14} Written consent of a minor child’s natural parents is normally required
before an adoption can proceed. However, R.C. 3107.07 sets out an exception to
consent under certain circumstances. R.C. 3107.07(A) provides:
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.
{¶15} The party petitioning for adoption has the burden of establishing, by
clear and convincing evidence, the parent at issue failed to communicate with the
child, without justifiable cause, for the statutorily mandated one-year period prior to
filing the adoption petition. In re Adoption of Holcomb, 18 Ohio St.3d 361, 368, 481
N.E.2d 613 (1985). If that burden is met, the parent then has “the burden of going
forward with the evidence * * * to show some facially justifiable cause for such
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failure.” (Emphasis deleted.) In re Adoption of Bovett, 33 Ohio St.3d 102, 104, 515
N.E.2d 919 (1987).
{¶16} Appellant acknowledges that he last saw or contacted his daughter in
June of 2014. Therefore, the key issue is whether his complete absence from
A.M.D.’s life for over a year was justifiable. Appellant’s argument that his absence
was justified rests almost solely in his treatment for drug addiction. Appellant admits
he is an addict. Appellant asserts that shortly after he saw A.M.D. in June of 2014,
he relapsed and was subsequently admitted into a rehabilitation facility from
September of 2014 until June of 2015. Appellant claims that he was discouraged by
his counselors from having contact with any family members while in rehabilitation,
which inhibited his ability to contact his child. However, at hearing, Appellant and his
mother testified that he maintained regular contact with his mother during this period,
including off-site visits for lunch and shopping for two hours at a time. (Tr., pp. 79,
87, 130.) Appellant presented no evidence that he or any of his family members
contacted A.M.D.’s mother to attempt to arrange any visits between Appellant and
A.M.D. during the time Appellant was visiting other family members.
{¶17} De minimis contact is not defined only as physical visitation with a child.
Other forms of contact and support including gifts, cards, letters, financial support
and telephone calls are also considered when analyzing whether Appellant
maintained the requisite contact. Appellant testified that he attempted to contact
A.M.D.’s mother via voicemail and text messages, utilizing his mother’s telephone.
(Tr., pp. 129-131.) However, A.M.D.’s mother testified that she had maintained the
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same home address and cell phone number for several years and received no
contact from Appellant regarding conversing with or visiting A.M.D. during the
relevant time period. (Tr., p. 47.) While Appellant did present evidence he sent
mother text messages prior to the period relevant to this appeal, he submitted no
such evidence for the statutory period in question.
{¶18} Appellant claims that he sent a number of gifts and holiday cards to
A.M.D. At the hearing, Appellant’s aunt testified that she took gifts to A.M.D. on one
occasion but testified that they were from other family members. (Tr., p. 74.)
Appellant’s mother testified that gifts were taken to A.M.D. that purportedly came
from Appellant, but admitted that these had no gift tags to indicate from whom they
were sent. (Tr., p. 103.) A.M.D.’s mother agreed that neither she nor the child had
any contact at all from Appellant from October of 2014 until October of 2015 by
means of voice mail, text messages or cards. (Tr., pp. 45-46.)
{¶19} Appellant was released from rehabilitation approximately four months
prior to the date Appellee filed the adoption petition. Appellant admits that he made
no effort to contact A.M.D. during that time period. (Tr., pp. 137-139.) Appellant
contends that he was entirely involved in getting his life back together and finding
employment and that he was also concerned that A.M.D.’s mother might have a
police report filed against him because she had contacted police to report her
harassment by Appellant’s mother in 2011. (Tr., pp.137-138.)
{¶20} Ultimately, the trial court was not persuaded by Appellant’s testimony
and concluded that there was no justifiable cause for Appellant’s failure to maintain
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more than a de minimis contact with A.M.D. for the year immediately preceding the
filing of the adoption petition. Under these circumstances, where conflicting
testimony is given, the trial court is in the best position to observe the demeanor of
the parties and assess their credibility as well as decide the weight to be given to the
evidence. In re A.L.C., 7th Dist. No. 14 BE 4, 2014-Ohio-4045, ¶ 8. While Appellant
is to be applauded for his efforts at achieving sobriety and overcoming his addiction,
this does not provide a blanket waiver from contact with his child while in
rehabilitation, just as incarceration does not provide, in itself, justifiable cause for
failing to maintain a relationship with one’s child. In re D.R., ¶ 22. The record
supports the trial court’s determination that, despite having ample opportunity to
maintain and foster a relationship with his child, Appellant failed without justifiable
cause to have more than de minimis contact with A.M.D. for one year immediately
preceding the adoption petition. The trial court’s judgment is not against the manifest
weight of the evidence. Appellant’s second assignment of error is without merit and
is overruled.
{¶21} Based on the foregoing, the trial court did not err in concluding that
Appellant’s consent was not required in order for the instant adoption to proceed.
Appellant’s assignments of error are both without merit and the judgment of the trial
court is affirmed.
Donofrio, P.J., concurs.
Robb, J., concurs.