In re Adoption of B.G.F.

[Cite as In re Adoption of B.G.F., 2018-Ohio-5063.]

IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
SHELBY COUNTY

IN RE:
CASE NO. 17-18-06
THE ADOPTION OF:

B.G.F.
OPINION
[T.H.P. - APPELLANT]

Appeal from Shelby County Common Pleas Court
Probate Division
Trial Court No. 2017 ADP 00025

Judgment Affirmed

Date of Decision: December 17, 2018

APPEARANCES:

Justin M. Lopez for Appellant

Steven J. Geise for Appellee, C.M.F.
Case No. 17-18-06

SHAW, J.

{¶1} Respondent-Appellant, T.H.P. (“Father”) appeals the May 17, 2018

judgment of the Shelby County Court of Common Pleas, Probate Division, finding

Petitioner-Appellee, C.M.F., (“Step-Father”) proved by clear and convincing

evidence that Father failed to have more than de minimis contact with his biological

child, B.G.F., and that Father failed to provide maintenance and support of B.G.F.

as required by law or judicial decree for a period of at least one year immediately

preceding the filing of the adoption petition filed by Step-Father. As a result, the

trial court concluded that Father’s consent to Step-Father’s Petition for Adoption of

B.G.F. is not required, and ordered the case to proceed on the adoption petition. On

appeal, Father argues that he was not properly served with notice of the adoption;

that the trial court erred in failing to apply the consent requirements of R.C.

3107.07(B); and that the trial court’s decision is against the manifest weight of the

evidence.

{¶2} B.G.F. was born in 2014 in Indiana, to M.F. (“Mother”) and Father,

who were living together, but were not married. Shortly thereafter, Mother left

Father and moved to Ohio. In December of 2014, Mother and Step-Father began

living together and continued to reside in Ohio. Mother and Step-Father eventually

married in 2017.

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{¶3} On October 19, 2017, Step-Father filed a Petition for Adoption of

B.G.F. alleging that Father’s consent to the adoption petition is not required because

(1) Father failed without justifiable cause to provide more than de minimis contact

with B.G.F. for a year immediately preceding the filing of the adoption petition;

and (2) Father failed without justifiable cause to provide for the maintenance and

support of B.G.F. as required by law for a period of at least one year immediately

preceding the filing of the adoption petition. See R.C. 3107.07(A). Notice of a

hearing on the adoption petition was sent to Father and he filed an answer denying

Step-Father’s allegations pertaining to his claim that Father’s consent is not required

based upon the grounds set forth in R.C. 3107.07(A). Father subsequently filed

objections to the Petition for Adoption. The trial court set a hearing on the matter.

{¶4} On March 19, 2018, the trial court conducted a hearing on whether

Father’s consent to the Petition for Adoption is not required under R.C. 3107.07(A).

Step-Father presented his own testimony in addition to that of Mother, Mother’s

parents, and an acquaintance who knew both Father and Mother when they lived

together in Indiana. Father and Father’s mother both testified in support of Father’s

opposition to the adoption petition.

{¶5} The parties filed post-hearing briefs. In his brief, Father for the first

time argued that Step-Father had elected in his adoption petition to proceed under

the wrong statutory provision. In particular, Father maintained that Step-Father

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erroneously alleged Father is B.G.F.’s natural parent under R.C. 3107.07(A) in the

adoption petition. Father claimed that under Ohio Adoption Law he is considered

a putative father under R.C. 3107.07(B), which provides a different criteria for

proving that Father’s consent is not required to the adoption petition. Father

asserted that he was not properly served notice of the adoption petition, and argued

that the trial court should have conducted the evidentiary hearing applying the

standards set forth in R.C. 3107.07(B). Father further argued that, in any event,

Step-Father failed to demonstrate by clear and convincing evidence that the

adoption petition could proceed without Father’s consent under either R.C.

3107.07(A) or R.C. 3107.07(B).

{¶6} On May 18, 2018, the trial court issued a judgment entry finding that

Father’s consent to the adoption petition is not required. Specifically, the trial court

found that Father is not a putative father, but the natural parent of B.G.F., and

consequently, R.C. 3107.07(A) applied. The trial court further found that Step-

Father proved by clear and convincing evidence that Father failed to have more than

de minimis contact with B.G.F. and failed to provide maintenance and support to

B.G.F. in the year immediately preceding the filing of the adoption petition.

Accordingly, the trial court determined that the adoption petition could proceed

without Father’s consent.

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{¶7} Father filed a notice of appeal from this judgment entry, asserting the

following assignments of error.

ASSIGNMENT OF ERROR NO. 1

APPELLANT WAS NOT PROPERLY SERVED WITH THE
NOTICE OF ADOPTION.

ASSIGNMENT OF ERROR NO. 2

THE TRIAL COURT ERRED IN NOT APPLYING THE
CONSENT REQUIREMENTS OF R.C. 3107.07(B).

ASSIGNMENT OF ERROR NO. 3

THE TRIAL COURT’S DECISION THAT APPELLANT DID
NOT MEET THE CONSENT REQUIREMENTS OF R.C.
3107.07(A) IS AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE.

{¶8} For ease of discussion, we elect to address the first and second

assignment of error together.

First and Second Assignments of Error

{¶9} In these assignments of error, Father argues that he was not served with

proper notice of the Petition for Adoption of B.G.F. Specifically, Father contends

that in the adoption petition Step-Father marked the two boxes pertaining to R.C.

3107.07(A), which governs when a natural parent’s consent is not required to an

adoption petition of a minor child. However, Father maintained that under Ohio

Adoption Law he is considered a putative father and, therefore, R.C. 3107.07(B)

applies, which sets forth a different evidentiary standard for whether Father’s

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consent is needed in order for the adoption to take place. The relevant portions of

R.C. 3107.07 at issue in this case state:

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 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.

(B) The putative father of a minor if either of the following
applies:

(1) The putative father fails to register as the minor’s
putative father with the putative father registry established
under section 3107.062 of the Revised Code not later than
fifteen days after the minor’s birth;

(2) The court finds, after proper service of notice and
hearing, that any of the following are the case:

(a) The putative father is not the father of the minor;

(b) The putative father has willfully abandoned or
failed to care for and support the minor;

(c) The putative father has willfully abandoned the
mother of the minor during her pregnancy and up to
the time of her surrender of the minor, or the minor’s
placement in the home of the petitioner, whichever
occurs first.

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{¶10} The term “parent” is not defined in Chapter 3107 of the Revised Code,

which governs adoption, however, according to R.C. 3107.01(H):

“Putative father” means a man * * * who may be a child’s father
and to whom all of the following apply:

(1) He is not married to the child’s mother at the time of
the child’s conception or birth;

(2) He has not adopted the child;

(3) He has not been determined, prior to the date a petition
to adopt the child is filed, to have a parent and child
relationship with the child by a court proceeding pursuant to
sections 3111.01 to 3111.18 of the Revised Code, a court
proceeding in another state, an administrative agency
proceeding pursuant to sections 3111.38 to 3111.54 of the
Revised Code, or an administrative agency proceeding in
another state;

(4) He has not acknowledged paternity of the child
pursuant to sections 3111.21 to 3111.35 of the Revised Code.

{¶11} In support of his assertion that R.C. 3107.07(A) applies to this case,

Step-Father filed with the adoption petition B.G.F.’s Indiana Certificate of Birth on

which Father’s name appears. The Indiana Certificate of Birth also designates

Father’s last name as B.G.F.’s last name. Father maintains that his name on the

birth certificate alone is insufficient to conclusively demonstrate that he is B.G.F.’s

natural parent under Ohio Adoption Law. Consequently, Father maintains that for

purposes of the notice and hearing pertaining to the adoption petition, he must be

considered a putative father, which invokes R.C. 3107.07(B). Therefore, Father

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contends that he was not properly served notice of the adoption petition and further

contends that the trial court erred by conducting the evidentiary hearing under the

criteria set forth in R.C. 3107.07(A).

{¶12} To the contrary, Step-Father points to the presence of Father’s name

on the Indiana Certificate of Birth indicating that he is the natural father of B.G.F.

and demonstrating that B.G.F. was given Father’s last name at birth. Step-Father

further relies on an Indiana statute that states:

A child born out of wedlock shall be recorded:

(1) under the name of the mother; or

(2) as directed in a paternity affidavit executed under section 2.1 of this
chapter.

I.C. 16-37-2-13.

{¶13} Step-Father maintains that under the foregoing Indiana Statute, the

placement of B.G.F. on the Indiana Certificate of Birth under Father’s last name

required, and could have only occurred where a valid affidavit of paternity has been

executed by Mother and Father. Step-Father also directs us to testimony from

Mother at the evidentiary hearing indicating that Father was at the hospital at the

time of B.G.F.’s birth and that she executed her portion of a paternity affidavit

stating that Father is B.G.F.’s natural father at that time. Step-Father’s arguments

on appeal and the relevant Indiana statutes suggest that the Indiana paternity

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affidavit has a similar effect to an acknowledgement of paternity under Ohio law. 1

See R.C. 3111.23 et seq. Thus, Step-Father contends that Father is B.G.F.’s natural

father for purposes of these adoption proceedings under Ohio Adoption Law.

{¶14} In resolving this issue, the trial court agreed with Step-Father and

found the Indiana statute cited above to be instructive. Specifically, the trial court

found that:

It is apparent to this court since [Father] is identified on the
Indiana birth certificate as a parent of [B.G.F.] a paternity
affidavit pursuant to Indiana Code 16-37-2-2.1 was executed.
Otherwise his name will not appear on the birth certificate.

Accordingly, the court finds that he is not a putative father but is
a parent and, therefore, this action properly proceeded under
R.C. 3107.07(A).

(Doc. No. 19 at 4-5.)

Discussion

{¶15} At the outset, we note that R.C. 3705.09(F)(2), the Ohio statute which

governs the filing of a birth certificate, states:

If the mother was not married at the time of conception or birth
or between conception and birth, the child shall be registered by
the surname designated by the mother. The name of the father of
such child shall also be inserted on the birth certificate if both the
mother and the father sign an acknowledgement of paternity
affidavit before the birth record has been sent to the local
registrar. If the father is not named on the birth certificate

1
And perhaps could even be considered to constitute a finding of paternity in “an administrative proceeding
in another state” under R.C. 3107.01(H)(3) which would specifically exclude Father from the definition of
“putative father” under Ohio Adoption Law. This notwithstanding, we do not find it necessary to make or
rely on any such finding in our resolution of this appeal.

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pursuant to division (F)(1) or (2) of this section, no other
information about the father shall be entered on the record.

{¶16} Moreover, in reviewing the pertinent Indiana statutory authority we

recognize that a paternity affidavit executed in accordance with Indiana Code

section 16-37-2-2.1 “conclusively establishes the man as the legal father of a child

without any further proceedings by a court.” I.C. 16-37-2-2.1 (p); see, also, IC 31-

14-2-1 (stating that “[a] man’s paternity may only be established: (1) in [a paternity]

action under this article; or (2) by executing a paternity affidavit in accordance with

IC 16-37-2-2.1); IC 31-14-7-3 (stating that “[a] man is a child’s legal father if the

man executed a paternity affidavit in accordance with IC 16-37-2-2.1 and the

paternity affidavit has not been rescinded or set aside under IC 16-37-2-2.1). In

addition, a paternity affidavit executed in accordance with IC 16-37-2-2.1 “(1)

establishes paternity; (2) gives rise to parental rights and responsibilities of the

person * * *, and (3) may be filed with a court by the department of child services.”

IC 16-37-2-2.1(j).

{¶17} Moreover, IC 16-37-2-2.1 provides a comprehensive list of specific

contents that must be included in a valid paternity affidavit, such as a signed

statement by both parents indicating that they understand that signing a paternity

acknowledgment affidavit is voluntary; they understand their rights and

responsibilities under the affidavit; the alternatives to signing the affidavit; and the

consequences of signing the affidavit. See IC 16-37-2-2.1(e)(5). A valid paternity

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affidavit must also contain the mother’s sworn statement asserting that the “man

who reasonably appears to be the child’s biological father” is the child’s biological

father and a statement by a person identified as the father attesting to a belief that

he is the child’s biological father. See IC 16-37-2-2.1(g).

{¶18} Thus, under both Ohio and Indiana law, where an unmarried woman

gives birth to a child, the father’s name appears on the birth certificate only when

he has voluntarily acknowledged paternity in writing. Furthermore, in Indiana, a

man’s execution of a paternity affidavit conclusively establishes that the man is the

child’s natural father, without any further judicial ratification through a court

proceeding.

{¶19} Here, B.G.F.’s Indiana Certificate of Birth was provided to the trial

court. And, as the trial court observed, the birth certificate identified Father as

B.G.F.’s biological father. We concur with the trial court’s rationale that because

Indiana Law dictates that Father’s name could not have appeared on the birth

certificate unless he had voluntarily executed a valid paternity affidavit meeting the

requirements of Indiana Law, the birth certificate together with Mother’s testimony

that such an affidavit was in circulation and was signed by her at the time of B.G.F.’s

birth, is indeed substantial evidence of paternity. See Pula v. Pula-Branch, 8th Dist.

Cuyahoga No. 93460, 2011-Ohio-4949 (according similar weight to the father’s

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name on the birth certificate to establish paternity in a child support action involving

Ohio and Hawaii law).

{¶20} Therefore, we do not find persuasive Father’s contention that he is

considered to be a putative father under Ohio Adoption Law for purposes of these

proceedings. Accordingly, we conclude that the trial court did not err when it found

that Father had been properly served with notice of the adoption petition and that

R.C. 3107.07(A) was the appropriate statute to apply to the adoption proceedings.

Therefore, we overrule the first and second assignments of error on this basis.

Third Assignment of Error

{¶21} In his third assignment of error, Father challenges the trial court’s

conclusion that Step-Father proved by clear and convincing evidence that Father

failed to provide more than de minimis contact with B.G.F. and failed to provide

maintenance and support to B.G.F. as required by law or judicial decree for a period

of at least one year immediately preceding the filing of the adoption petition under

R.C. 3107.07(A). Specifically, Father maintains the trial court’s conclusion that his

consent to the adoption petition is not required is against the manifest weight of the

evidence.

Legal Standard

{¶22} The right of natural parents to the care and custody of their children is

one of the most precious and fundamental in law. In re Adoption of Masa, 23 Ohio

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St.3d 163, 164 (1986) citing Santosky v. Kramer, 455 U.S. 745, 753 (1982). An

adoption permanently terminates the parental rights of a natural parent. In re

Adoption of Reams, 52 Ohio App.3d 52, 55 (10th Dist.1989). Therefore, “[b]ecause

adoption terminates these rights, Ohio law requires parental consent to an adoption

unless a specific statutory exemption exists.” In re Adoption of A.N.B., 12th Dist.

Preble No. CA2012-04-006, 2012-Ohio-3880, ¶ 5 citing In re Caudill, 4th Dist.

Jackson No. 05CA4, 2005-Ohio-3927, ¶ 14.

{¶23} As previously discussed, the pertinent statutory provision in

determining whether Father’s consent to Step-Father’s adoption petition is required

is contained in R.C. 3107.07(A), which states.

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 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.

{¶24} R.C. 3107.07(A). “R.C. 3107.07(A) is written in the disjunctive.” In

re Adoption of H.R., 3d Dist. Logan No. 8-14-15, ¶ 23. “Therefore, a failure without

justifiable cause to provide either more than de minimis contact with the minor or

maintenance and support for the one-year time period is sufficient to obviate the

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need for a parent’s consent. ” (Emphasis sic.) Id.; see also In re Adoption of A.H.,

9th Dist. Lorain No. 12CA010312, 2013-Ohio-1600, ¶ 9.

{¶25} The Supreme Court of Ohio has articulated a two-step analysis for

probate courts to employ when applying R.C. 3107.07(A). In re Adoption of M.B.,

131 Ohio St.3d 186, 2012-Ohio-236, ¶ 23. The first step involves the factual

question of whether the petitioner has proven, by clear and convincing evidence, the

natural parent failed to provide for the maintenance and support of the child or failed

to have more than de minimis contact with the child. Id. Clear and convincing

evidence is that measure or degree of proof which is 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 (1954), paragraph three of the

syllabus. “A trial court has discretion to make these determinations, and, in

connection with the first step of the analysis, an appellate court applies an abuse-of-

discretion standard when reviewing a probate court decision.” Id. at ¶ 25. The term

abuse of discretion connotes more than an error of law or judgment; it implies that

the court’s attitude is unreasonable, arbitrary, or unconscionable. Blakemore v.

Blakemore, 5 Ohio St.3d 217 (1983).

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{¶26} If a probate court makes a finding that the parent failed to support or

contact the children, the court proceeds to the second step of the analysis and

determines whether justifiable cause for the failure has been proven by clear and

convincing evidence. In re Adoption of M.B., 131 Ohio St.3d 186, 2012-Ohio-236.

The question of whether justifiable cause for the failure to contact the child has been

proven in a particular case, “is a determination for the probate court and will not be

disturbed on appeal unless such determination is against the manifest weight of the

evidence.” Id. “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.” (Internal quotations omitted.) In re Adoption of L.C.W.,

12th Dist. Butler No. CA2014-08-169, 2015-Ohio-61, ¶ 14. In so doing, we must

be mindful that the probate court is in the best position to observe the demeanor of

the parties and assess the credibility and accuracy of the testimony.

Evidence at the Hearing

{¶27} The following evidence pertaining to the issue of whether Father’s

consent to Step-Father’s Petition for Adoption of B.G.F. is not required under R.C.

3107.07(A) was adduced at the evidentiary hearing before the trial court. Step-

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Father presented the testimony of his wife, B.G.F.’s Mother. Mother testified that

she and Father lived together for several years prior to B.G.F.’s birth. However,

during her pregnancy with B.G.F., Father was in a relationship with someone else.

Mother explained that at the time of B.G.F.’s birth she lived with Father’s mother

in Indiana (“Paternal Grandmother”). Mother testified that Father had a history of

being physically violent towards her. She recalled that in the Fall of 2018,

approximately two weeks after B.G.F. was born, Father grabbed her by the throat

while she was holding the car seat with B.G.F. in it. Specifically, she stated that “I

still had stitches from my c-section. [Father] told me to bring him some tapioca

pudding and I didn’t do it. He was on his way out and he attacked me when I was

holding my newborn son in a car seat and told me to shut that little bastard up before

he killed him.” (Tr. at 18). Two days later Mother moved to her parents’ home in

Shelby County, Ohio with B.G.F. Shortly after moving to Ohio, Mother began a

relationship with Step-Father. Mother and Step-Father moved in together and lived

next door to Mother’s parents (“Maternal Grandparents”).

More Than De Minimis Contact

{¶28} Mother testified that she had not seen Father since September 2015.

At that time, Father asked to see B.G.F. and Mother facilitated Father’s visitation

with B.G.F. at Maternal Grandparents’ house. Mother explained that she told Father

he could see B.G.F. whenever he wanted provided that he visited B.G.F. at Maternal

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Grandparents’ house while under their supervision and that he did not take B.G.F.

away from the home. Mother’s testimony regarding this interaction with Father was

corroborated by Maternal Grandparents who were both present at the time.

Maternal Grandparents each testified that they offered for Father to come to their

home so that he could regularly visit with B.G.F., which Father did on one occasion.

Mother and Maternal Grandparents confirmed that Father never returned to exercise

visitation with B.G.F.

{¶29} However, Mother remained in contact with Paternal Grandmother who

regularly visited B.G.F. at Maternal Grandparents’ home. Mother also stated that

she also frequently facilitated video chats via FaceTime between Paternal

Grandmother and B.G.F. Mother explained that the video chats were always

completed by her calling Paternal Grandmother’s phone. Mother recalled that one

time Father entered the same room as Paternal Grandmother while she was video

chatting with B.G.F. The video chatting session ended shortly thereafter.

{¶30} For his part, Father acknowledged that he had only seen B.G.F. two

times since Mother left Indiana and claimed that he video chatted with B.G.F. less

than twenty times between September 2015 and July 2017. He recalled that the

video chats lasted from one to ten minutes. Father explained that the video chats

took place on Paternal Grandmother’s phone because Mother had blocked his phone

number. Father claimed Mother secretly facilitated FaceTime chats between

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himself and [B.G.F.] unbeknownst to Step-Father because Step-Father did not like

Father. He recalled that during these conversations if Step-Father came home

Mother would disconnect the video chat or ask Paternal Grandmother to call her

back and speak to B.G.F. without the video component. Father also claimed that

two weeks before Mother married Step-Father in September of 2017, within the

relevant one-year statutory period, Mother allowed B.G.F. to Facetime with him and

B.G.F. called him “Daddy.” Father also claimed that Mother sent him voice

recordings of B.G.F. calling him “Daddy,” but Father did not bring the recordings

to court as evidence for the hearing.

{¶31} To the contrary, Mother denied that she facilitated video chat

interactions specifically between Father and B.G.F., and claimed that the

arrangements were exclusively made so that Paternal Grandmother could maintain

contact with B.G.F. Mother further testified that Father had not attempted to

participate in the FaceTime chats or attempted to otherwise see B.G.F. within the

relevant one-year statutory time period prior to the filing of the adoption petition in

October of 2017. Paternal Grandmother also provided testimony about these

interactions on FaceTime. She estimated that since October 2016 she had five or

six FaceTime conversations with B.G.F. and stated that the majority of the time the

chats were arranged between Mother and herself, and that some of the time Father

just happened to be present. (Tr. at 134).

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{¶32} Father did not dispute that he had been physically abusive toward

Mother in the past. Father also acknowledged that Maternal Grandparents had

offered to facilitate supervised visitations between him and B.G.F. in their home,

but he claimed that he felt “real uncomfortable” being at the home because he knew

that Maternal Grandmother did not like him. (Tr. at 91). Father also stated that he

did not like the conditions Mother put on his visitations with B.G.F. With regards

to seeking visitations, Father admitted that “I guess it’s true that I didn’t make an

effort. I tried to renegotiate that, that was my effort.” (Tr. at 95). Father further

admitted that he had not filed a custody action to enforce his parental rights in court.

Maintenance and Support

{¶33} With regard to support, Mother stated that even though Father was at

the hospital at the time of B.G.F.’s birth, Father did not contribute to the medical

expenses related to the birth. Rather, those expenses were paid by Medicaid.

Mother further stated that there was never a child support or custody order in place.

However, Mother testified that other than two small toys that Father sent with

Paternal Grandmother when she visited B.G.F. during his first year, Father had not

paid for clothing or diapers for B.G.F., and had never sent a birthday or Christmas

card to B.G.F. On the other hand, Mother explained that Paternal Grandmother had

given B.G.F. several gifts and had given Mother money for B.G.F. Specifically,

Mother recalled that in the year preceding the filing of the adoption petition Paternal

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Grandmother gave B.G.F. a swing set and two cashier’s checks in the amount of

$50.00 each for his birthday. Mother stated that the gifts were always clearly from

Paternal Grandmother and not from Father. For instance, Mother testified that the

order form with the swing set given to B.G.F. indicated that Paternal Grandmother

was the purchaser.

{¶34} Father maintained that he paid for the majority of the gifts and money

given to B.G.F. when Paternal Mother visited him. For instance, Father claimed

that he paid for eighty percent of the swing set given to B.G.F. in the Summer of

2016 and that he purchased the two fifty dollar cashier checks for B.G.F.’s birthday

in 2016. Father claimed he did not attempt to make Mother aware that the gifts

were from him because he knew that Step-Father did not like him and was afraid it

would jeopardize Paternal Grandmother’s access to B.G.F. A copy of the cashier’s

checks were presented as evidence at trial. The exhibit indicated that the checks

were issued in August of 2016 and cashed in November of 2016. Despite Mother’s

testimony that the checks were from Paternal Grandmother’s bank, Father’s name

appeared on the checks as the remitter. Paternal Grandmother provided testimony

supporting Father’s stance that he paid for most of the gifts she brought to B.G.F.

when she visited him.

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Trial Court’s Ruling

{¶35} The trial court made the following findings in its judgment entry

concluding that Father’s consent to the adoption petition is not required under R.C.

3107.07(A). Specifically, with regard to Father’s lack of contact the trial court

found that:

In this case, [Father] concedes that he has had very little
communication or contact with [B.G.F.]. He has not seen [B.G.F.]
in person since 2015. According to his testimony, he may have
had some contact five or six times in the year before the filing of
the adoption petition through FaceTime. [Father] claims that he
and [Mother] arranged FaceTime conversation for him to
communicate with [B.G.F.]. The other evidence does not support
[Father’s] contention. His testimony suggests that contact was
less than a minute to five minutes each. However, his claims of
communication and contact are not credible. His testimony is
discredited by his own witness, his mother, who indicated that
when she was FaceTiming with [Mother] that [Father] may have
been in the background and any communication or contact would
have been minimal at best. It was the grandmother that was
seeking contact with [B.G.F.], not the Father. Mother even denies
that minimal contact.

This court also finds that there was no justification for the failure
to communicate. The evidence demonstrated that offers were
made for [Father] to visit or see the child and he failed to do so.
There was little or no evidence to suggest that [Father] was
prevented from communicating with [B.G.F.].

(Doc. No. 20 at 6).

{¶36} With regard to Father’s failure to support, the trial court noted it is well

established in Ohio Adoption Law that “[d]e minimis monetary gifts from a

biological parent to a minor child do not constitute maintenance and support,

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because they are not payments as required by law or judicial decree as R.C.

3107.07(A) requires.” In re Adoption of M.B., 131 Ohio St.3d 186, 2012-Ohio-236,

at ¶ 20. The trial court found that:

In this case, the evidence is that except for two $50.00 checks no
monetary support was provided for [B.G.F.] and, those two
checks were issued more than one year before the filing of the
adoption petition. Even if considered within the one year period
those two checks hardly constitute maintenance or support. Even
if, as now claimed, that [Father] provided funds for purchasing
gifts given to [B.G.F.] by the grandmother those gifts were
insufficient to be considered as maintenance and support.

(Doc. No. 20 at 7).

{¶37} On appeal, Father claims that the video chats he engaged in with

B.G.F., of which the evidence indicates were merely five or six within the relevant

statutory time period, were enough to satisfy the more than de minimis requirement

under R.C. 3107.07(A). In the alternative, Father contends that he had reasonable

justification for failing to have more than de minimis contact with B.G.F. due to

Mother placing an unreasonable barrier to him visiting with B.G.F.

{¶38} In addressing Father’s contention that his video chats with B.G.F.

constituted more than de minimis contact for the purposes of the statute, we note

that there was conflicting testimony as to the nature and frequency of these alleged

video chats between Father and B.G.F. within the one-year statutory timeframe.

While the record reveals that Father maintained that Mother secretly facilitated

direct communication between he and B.G.F., other testimony indicated that the

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video chats were arranged solely so that Paternal Grandmother could have contact

with B.G.F. and Father happened to be present on occasion. As previously, stated,

we defer to the probate court in determining factual disputes on this matter. See In

re Adoption of A.M.L., 12th Dist. Warren No. CA2015-01-004, 2015-Ohio-2224, ¶

11.

{¶39} We also note that the record does not support Father’s contention that

Mother substantially interfered with his ability to communicate with B.G.F. By his

own admission, Father acknowledged that Mother attempted to facilitate Father’s

visitation with B.G.F., albeit under certain conditions—i.e. at her parents’ home,

who lived next door, and under their supervision. Mother further clarified at the

hearing that she did not want Father or Paternal Grandmother to take B.G.F. from

the home until B.G.F. was old enough to communicate with her and tell her what

took place during the visits.

{¶40} These initial conditions do not appear to be unreasonable given the

uncontroverted testimony in the record regarding the physical violence between

Mother and Father when they lived at Paternal Grandmother’s home in Indiana.

Moreover, despite the acrimonious history between Father and Mother in the past,

Maternal Grandparents, who resided next door to Mother and B.G.F., remained

willing to host Father at his convenience so that he could build a relationship with

B.G.F., which Father chose not to do. Notably, the record indicates that Paternal

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Grandmother frequently visited with B.G.F. in Ohio and stayed overnight at

Maternal Grandparents during several of these visits. See In re Adoption of J.F.R.-

W., 7th Dist. Belmont No. 16 BE 0045, 2017-Ohio-1265, ¶ 44-45 (stating non-

custodial parent’s knowledge of residence of child weighs heavily against finding

custodial parent prevented contact).

{¶41} As for the issue of maintenance and support, the trial court’s

conclusion that Father only provided two fifty dollar checks to Mother for gifts to

B.G.F. was supported by the record. As previously discussed, “[d]e minimis

monetary gifts from a biological parent to a minor child do not constitute

maintenance and support, because they are not payments as required by law or

judicial decree as R.C. 3107.07(A) requires.” In re Adoption of M.B., 131 Ohio

St.3d 186, 2012-Ohio-236, at ¶ 20. Again, even though father claimed that he paid

for the majority of the gifts given to B.G.F. by Paternal Grandmother, the trial court

was free to believe Mother’s testimony that the gifts were in fact from Paternal

Grandmother. “A probate judge has discretion to determine 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.’ ” In re

Adoption of M.B. at ¶ 21, citing In re Adoption of Bovett, 33 Ohio St.3d at 107; see

also In re Adoption of Charles B., 50 Ohio St.3d 88 (1990), paragraph three of the

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syllabus (“adoption matters must be decided on a case-by-case basis through the

able exercise of discretion by the trial court”).

{¶42} The record clearly indicates that the trial court chose not to believe

Father’s testimony. As noted above, the trial court is in the best position to observe

the demeanor of the parties, to assess their credibility, and to determine the accuracy

of their testimony. In re Adoption of Holcomb, 18 Ohio St.3d 361 (1985). From the

testimony and the evidence presented, we find no abuse of discretion in the trial

court’s conclusion that Step-Father proved by clear and convincing evidence that

Father had failed without justifiable cause to provide more than de minimis contact

with B.G.F or to provide for the maintenance and support of B.G.F. as required by

law or judicial decree for a period of at least one year immediately preceding either

the filing of the adoption petition. Accordingly, the third assignment of error is

overruled.

{¶43} For all these reasons, the assignments of error are overruled and

judgment of the trial court is affirmed.

Judgment Affirmed

WILLAMOWSKI, P.J. and PRESTON, J., concur.

/jlr

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