[Cite as In re Adoption of K.R.S., 2020-Ohio-976.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
HANCOCK COUNTY
IN RE: THE ADOPTION OF:
CASE NO. 5-19-36
K.R.S.,
OPINION
[M.C. - APPELLANT]
Appeal from Hancock County Common Pleas Court
Probate Division
Trial Court No. 20185032
Judgment Affirmed
Date of Decision: March 16, 2020
APPEARANCES:
Brian C. Morrissey for Appellant
Jeffrey P. Nunnari for Appellee
Case No. 5-19-36
SHAW, P. J.
{¶1} Appellant-respondent, M.C. (“Father”) appeals the August 29, 2019
judgment of the Hancock County Court of Common Pleas, Probate Division, finding
that appellee-petitioner, T.S. (“Step-Father”), proved by clear and convincing
evidence that Father had failed to provide more than de minimis contact with his
biological child, K.R.S., and that Father had failed to provide maintenance and
support to K.R.S. in the year immediately preceding the filing of the adoption
petition. As a result, the trial court concluded that Father’s consent to Step-Father’s
Petition for Adoption of K.R.S. is not required, and ordered the case to proceed on
the adoption petition. On appeal, Father argues that he had justifiable cause for
failing to communicate with K.R.S. and for failing to provide maintenance and
support for K.R.S. Therefore, Father contends that the trial court’s decision is
against the manifest weight of the evidence.
Facts and Procedural History
{¶2} K.R.S. was born in Michigan in 2006 to E.S. (“Mother”) and Father,
who were not married.1 Mother and Step-Father married in 2017 after being
together for several years.
{¶3} On August 15, 2018, Step-Father filed a Petition for Adoption of K.R.S.
alleging that Father’s consent to the adoption is not required because (1) he had
1
The record indicates that even though Father was not named on the birth certificate, his paternity of K.R.S.
was established through a child support proceeding in Michigan.
-2-
Case No. 5-19-36
failed without justifiable cause to provide more than de minimis contact with K.R.S.
for a year immediately preceding the filing of the adoption petition; and (2) he had
failed without justifiable cause to provide for the maintenance and support of K.R.S.
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). Step-Father further included as
grounds for his petition that Father had been incarcerated from 2011 to 2013 due to
his third degree felony conviction for criminal sexual conduct; Father had been
incarcerated from December 2015 to October 2016 for parole violations; and that
Father is required to register as a sex offender for his lifetime.
{¶4} Notice of a Hearing on the Petition was sent to Father and he filed an
objection to the adoption. The trial court set a hearing on the matter.
{¶5} On August 8, 2019, the trial court conducted a hearing on whether
Father’s consent to the adoption is not required under R.C. 3107.07(A). Step-Father
and Mother provided testimony in support of establishing that Father’s consent to
the adoption is not required. Father and his father, paternal grandfather, both
testified in support of the position that Father’s consent is required.
{¶6} On August 29, 2019, the trial court issued a judgment entry finding that
Father’s consent to the adoption is not required. Specifically, the trial court found
by clear and convincing evidence that Father had failed to provide more than de
minimis contact with K.R.S. and had failed to provide maintenance and support for
-3-
Case No. 5-19-36
K.R.S. in the year immediately preceding the filing of the adoption petition.
Accordingly, the trial court determined that the adoption could proceed without
Father’s consent.
{¶7} Father filed a notice of appeal from this judgment entry, asserting the
following assignments of error.
ASSIGNMENT OF ERROR NO. 1
THE TRIAL COURT’S DECISION THAT THE APPELLANT
FAILED WITHOUT JUSTIFIABLE CAUSE TO PROVIDE
FOR THE MAINTENANCE AND SUPPORT OF HIS MINOR
CHILD WAS AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE.
ASSIGNMENT OF ERROR NO. 2
THE TRIAL COURT’S DECISION THAT THE APPELLANT
FAILED TO PROVIDE MAINTENANCE AND SUPPORT AS
REQUIRED BY LAW OR JUDICIAL DECREE IN THE YEAR
IMMEDIATELY PRECEDING THE FILING OF THE
ADOPTION PETITION IS AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE.
ASSIGNMENT OF ERROR NO. 3
THE TRIAL COURT’S DECISION THAT APPELLANT
FAILED WITHOUT JUSTIFIABLE CAUSE TO PROVIDE DE
MINIMUS [SIC] CONTACT WITH HIS CHILD FOR AT
LEAST ONE YEAR PRECEDING THE FILING THE
ADOPTION PETITION WAS AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE.
{¶8} For ease of discussion, we elect to address the assignments of error
together.
-4-
Case No. 5-19-36
First, Second, and Third Assignments of Error
{¶9} On appeal, Father argues that the trial court erred in finding his consent
to Step-Father’s adoption of K.R.S. is not required. Specifically, Father argues that
the trial court erred in determining that he had failed without justifiable cause both
to provide more than de minimis contact with the child and to provide proper
maintenance and support during the one-year look-back period of R.C. 3107.07(A).
Legal Standard
{¶10} 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
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.
{¶11} One such statutory exemption to the consent requirement 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,
-5-
Case No. 5-19-36
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.
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, 2014-Ohio-5390, ¶ 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 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.
{¶12} The Supreme Court of Ohio has articulated a two-step analysis for
probate courts to employ when applying R.C. 3107.07(A). See In re the Adoption
of B.G.F., 3d Dist. Shelby No. 17-18-06, 2018-Ohio-5063, ¶ 25 citing In re Adoption
of M.B., 131 Ohio St.3d 186, 2012-Ohio-236, ¶ 23.
{¶13} 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. In re Adoption of M.B. at ¶ 23. 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
-6-
Case No. 5-19-36
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.” In re Adoption of
M.B. 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).
{¶14} 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. 2 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
2
Recently, the Supreme Court of Ohio articulated a three-step analysis for maintenance and support issues
under R.C. 3107.07(A). Specifically, the Supreme Court state that “the court must first determine what the
law or judicial decree required of the parent during the year immediately preceding either the filing of the
adoption petition or the placement of the minor in the home of the petitioner. Second, the court determines
whether during that year the parent complied with his or her obligation under the law or judicial decree.
Third, if during that year the parent did not comply with his or her obligation under the law or judicial decree,
the court determines whether there was justifiable cause for that failure. See In re Adoption of B.I., 157 Ohio
St. 3d 29, 2019-Ohio-2450, ¶ 15. The same burdens of proof and standards of review apply to steps two and
three as stated in In re Adoption of M.B., 131 Ohio St.3d 186, 2012-Ohio-236.
-7-
Case No. 5-19-36
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, 2015 WL 135320, ¶
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 Adduced at the Hearing
{¶15} In support of his position that Father’s consent to the adoption is not
required, Step-Father testified that K.R.S. was thirteen-years-old at the time of the
hearing and that he has known K.R.S. for ten years. Step-Father explained that he
and Mother have been in a relationship for several years, living together in a
household with five other children. Step-Father acknowledged that K.R.S. regards
him as a father figure and confides in him. Step-Father further stated that Father
has had no contact with or provided any financial support for K.R.S. within the year
preceding the filing of the adoption petition in August 2018.
-8-
Case No. 5-19-36
{¶16} Mother provided testimony also describing a close relationship
between Step-Father and K.R.S. She explained that the adoption petition was filed
because K.R.S. asked Step-Father to adopt him. Mother recalled that the last time
Father saw K.R.S. was in October of 2015, and the last time that Father had any
meaningful contact with K.R.S. was in 2010 prior to Father being incarcerated for
the first time. Mother stated that she is sole legal custodian of K.R.S. and that
Father’s visitation was suspended while he was incarcerated. Mother explained that
K.R.S. still has contact with his paternal grandfather and Father’s extended family.
Mother stated that she would permit Father to see K.R.S. if he asked, but Father has
not. Mother further testified that even though Father’s visitation with K.R.S. is
restricted, he is nevertheless permitted to have other forms of contact like sending
birthday cards or gifts, which Father has not attempted to do.
{¶17} Mother stated that she had not received any child support from Father
for K.R.S. since January of 2010. She testified the current child support order in
place was issued in the State of Michigan, where Father lives and where she and
K.R.S. lived prior to 2016. Mother stated that this order obligates Father to pay
child support for K.R.S. in the amount of $22.06 per week. In 2011, shortly after
he reported to prison, Father successfully petitioned to have his child support
payments “reserved” so that his prison wages were not garnished and arrearages did
not accrue while he was incarcerated. However, testimony at the hearing indicated
-9-
Case No. 5-19-36
that Father was required to notify the proper authorities within twenty-eight days of
his release from prison to have the child support order reinstated, which father failed
to do.
{¶18} For his part, Father testified that upon his recent release from prison a
condition of his parole prohibits him from having contact with minors, even his own
child. Father explained his ability to interact with K.R.S. is complicated by the fact
that he also is not permitted to have a device with internet capabilities. Father
acknowledged that prior to 2015, when he returned to prison for a parole violation,
he had special permission from his parole officer to see K.R.S. However, Father
claimed that after he returned to prison in 2015, he lost contact with Mother and did
not know of K.R.S.’s whereabouts.
{¶19} Father admitted that he has not paid child support for K.R.S. since he
was released from prison in October of 2018, despite being employed full-time for
almost a year. Father claimed he did not know how to reinstate his child support
order. Father stated that he met with his parole officer twice a month; that he has
had the same parole officer for the past eighteen months; and that his parole officer
is aware he has a child. Father acknowledged that he is permitted to see K.R.S. with
permission from his parole officer, but that permission is not currently in place.
{¶20} Paternal Grandfather also testified on father’s behalf. He recalled
being in touch with Mother regarding K.R.S. around Christmas of 2015. However,
-10-
Case No. 5-19-36
the two had a falling out when Mother discovered that Paternal Grandfather left
K.R.S. alone with Father when Mother had allowed Paternal Grandfather to take
K.R.S. for a visitation. Paternal Grandfather claimed he lost contact with Mother
and K.R.S. after that point, and only discovered that they were living in Ohio when
he learned about the adoption petition. Paternal Grandfather noted that Mother
recently permitted K.R.S. to spend a weekend with him and his extended family.
The visitation time was arranged between Mother and Father’s sister.
Discussion
1. Failure to Provide Contact
{¶21} In its August 29, 2019 Judgment Entry, the trial court found that there
is no justifiable cause for Father’s failure to communicate with K.R.S., specifically
the trial court found:
[Father] acknowledges that he has not visited or contacted
[K.R.S.] within the last year. However, [Father] argues that there
is justifiable cause due to his order that he not have contact with
any children including his own. This requirement is a condition
of his probation. [Father] acknowledged that he was able to earn
his way to have contact with [K.R.S.] at one time. After [Father’s]
initial release from prison, he was compliant with probation and
received permission from his probation officer to have visits with
[K.R.S.]. Those visits occurred until [Father] violated his
probation and was placed back in prison. Since his last release
from prison, he has not yet re-earned privileges to have visits and
therefore visits have not occurred. Therefore, it is not simply the
order of no contact that has precluded [Father] from the ability
to visit his son, it is [Father’s] own behavior that caused the
privilege to be taken away by his probation officer and the Court
cannot find that failure justifiable. Accordingly, the Court hereby
-11-
Case No. 5-19-36
finds by clear and convincing evidence that [Father] has failed
without justifiable cause to provide more than de minimus [sic]
contact with the child for a period of at least a year immediately
preceding the filing of the adoption petition.
(Doc. No. 25 at 3-4.)
{¶22} It is undisputed that Father has failed to maintain contact with K.R.S.
since 2015. Nevertheless, Father argues that the conditions of his parole, which
required him to have no contact with minors, and the suspension of his visitation
with K.R.S. is justifiable cause for his failure to communicate with K.S for at least
one year immediately preceding the filing of the adoption petition. Father further
argues that Mother’s move to Ohio constituted significant interference which also
justifies his lack of contact with K.R.S.
{¶23} At the outset, we note that the record supports the trial court’s
observation that “it is not simply the order of no contact that has precluded [Father]
from the ability to visit his son.” (Doc. No. 25 at 3). Rather, the record clearly
indicates that there were means that Father could have pursued to have contact with
K.R.S. The record demonstrates that Father was in fact granted permission by his
parole officer in 2015 to have contact with K.R.S. This notwithstanding, there is
nothing in the record to indicate Father again attempted to get permission from his
parole officer to see K.R.S. during the time he was released from prison for parole
violations in October 2016 or in October 2018, after he served a three-month prison
term. The record further indicates that Father never sought visitation through the
-12-
Case No. 5-19-36
Michigan Court by attempting to modify the agreement to provide for parenting
time.
{¶24} Moreover, the record suggests that Mother was candid about her move
to Ohio with K.R.S. and she maintained a point of contact with the court in Michigan
using Maternal Grandmother’s address. Despite Father’s contentions, the record
fails to establish that Mother attempted to hide K.R.S. from him. To the contrary,
Paternal Grandfather was able to make contact with Mother in Ohio and even
arranged for weekend visitations with K.R.S. Yet, Father did not attempt to contact
K.R.S. through his family members. Based on the foregoing, we find that the trial
court’s determination that Father has failed without justifiable cause to provide more
than de minimis contact with K.R.S. during the relevant one year time frame is
supported by the manifest weight of the evidence.
2. Failure to Provide Maintenance and Support
{¶25} In its August 29, 2019 Judgement Entry, the trial court found that there
is no justifiable cause for Father’s failure to provide maintenance and support for
K.R.S. Specifically, the trial court found:
[Father] is not listed on the birth certificate provided to the Court
as [K.R.S.’s] father. However the Court was provided
documentation that [Mother] and [Father] were involved in a
paternity action regarding [K.R.S.] in the Jackson County Court
in Michigan. (See Exhibits 8, 9, and 10). These documents
illustrate that [Father] has established paternity of this child, was
ordered to pay support at one time and that support was
“reserved” when [Father] was incarcerated. (See Exhibit 10).
-13-
Case No. 5-19-36
The court order goes on to state “[c]hild support shall be
reinstated 28 days after the payer of support is released from
incarceration. The payer must immediately report his release
from incarceration to the Friend of Court.” [Father] admits that
he never contacted the Court to have child support reinstated
after his release from prison on either occasion. He argues since
no support was ordered he did not fail to support [K.R.S.] and
therefore [Father’s] consent is necessary for this adoption. The
Court is not convinced. Failing to contact the Court to have the
support order reinstated is failing to support the child. [Father]
also admits that he did not send any money to the child for
support since 2012 when his prison wages were garnished for
child support. [Father] also admits that he is currently employed
full-time and has been for over a year. The Court hereby finds by
clear and convincing evidence that [Father] has failed without
justifiable cause 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 the filing of the adoption
petition or the placement of the minor in the home of [Step-
Father].
(Doc. No. 25 at 3.)
{¶26} On appeal, Father likens this case to those cases which have held that
a parent’s nonsupport of his or her minor child pursuant to a zero-support order of
a court of competent jurisdiction provides “justifiable cause” for the parent’s failure
to provide maintenance and support and therefore does not extinguish the
requirement of that parent’s consent to the adoption of the child. See In re Adoption
of B.I., 157 Ohio St. 3d 29, 2019-Ohio-2450.
{¶27} However, this is not a case where a court has reduced a parent’s child
support to zero, thereby relieving the parent of the duty to provide support under a
judicial decree. See In re Adoption of B.I., 157 Ohio St. 3d 29, 2019-Ohio-2450, ¶
-14-
Case No. 5-19-36
17. Rather, the uncontroverted evidence before the trial court indicates that there is
in place a valid child support order obligating Father to pay $22.06 per week for
K.R.S.’s support and that this order was “reserved” or “paused” at Father’s request
while he was incarcerated in 2012. It is undisputed by the parties that Father was
required to notify the proper authorities in Michigan to reinstate his child support
obligation within twenty-eight days of his release from prison. Father
acknowledges that he failed to do so. We concur with the trial court’s conclusion
in this instance that “[f]ailing to contact the Court to have the support order
reinstated is failing to support the child.” (Doc. No. 25 at 3). Accordingly, we
conclude the trial court’s determination that Father failed without justifiable cause
to provide for the support for K.R.S. as required by law or judicial decree within the
relevant statutory time frame is supported by the weight of the evidence.
{¶28} For all these reasons, the assignments of error are overruled and the
judgment of the trial court is affirmed.
Judgment Affirmed
PRESTON and WILLAMOWSKI, J.J., concur.
/jlr
-15-