In re Adoption of D.W.- E.H.

[Cite as In re Adoption of D.W.- E.H., 2022-Ohio-528.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

IN RE ADOPTION OF D.W.-E.H. :
: No. 110705
A Minor Child :
:
[Appeal by C.W.H. Stepfather] :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: February 24, 2022

Civil Appeal from the Cuyahoga County Court of Common Pleas
Probate Division
Case No. 2021-ADP-09770

Appearances:

Taft Stettinius & Hollister, L.L.P., Jill Friedman Helfman,
and Mary Kate Moller, for appellant-petitioner.

Peter A. Russell, for appellee-respondent.

CORNELIUS J. O’SULLIVAN, JR., J.:

Petitioner-appellant C.W.H.1 (hereinafter “petitioner”) appeals from

the probate court’s July 22, 2021 judgment in this adoption proceeding. In its

judgment, the trial court found that while respondent-appellee B.D.B. (hereinafter

1In accordance with this court’s policy, the parties’ initials are used for their
privacy interest.
“father”) failed to communicate with his child D.W.-E.H. (hereinafter “the child”)

for at least one year preceding the filing of petitioner’s adoption petition, father had

justifiable cause for such failure. After review of the law and facts as set forth below,

we affirm.

I. Procedural History

On March 30, 2021, petitioner filed a petition for adoption of the

child, who was five years old at the time.2 Petitioner alleged that the consent of

father was not required to proceed with the adoption on the ground that father

failed, without justifiable cause, to have any contact with the child for the one-year

period immediately preceding the filing of the petition, that is between March 30,

2020, and March 30, 2021.

Father’s counsel filed an objection to the petition on July 9, 2021. On

July 15, 2021, the trial court held a “consent hearing” to determine whether father’s

consent was required to proceed with the adoption. The court issued its decision on

July 22, 2021, finding that father had no contact with the child for the one year

preceding the filing of petitioner’s adoption petition, but that father had justifiable

cause for his failure to contact the child.

II. Factual History

The following facts were adduced at the July 15, 2021 consent

hearing. The child was born to J.H. (hereinafter “mother”) and father while mother

2 The child’s date of birth is December 26, 2015.
was married to petitioner. Father had his paternity established shortly after the

child’s birth.

Initially, father would see the child often. He testified that he was the

child’s care provider during the day when mother worked — mother would bring the

child to his house — but petitioner was unaware of the arrangement. Father did not

like the secretive arrangement and told mother that she had to tell petitioner

because he (father) wanted to initiate a proceeding in juvenile court to obtain

visitation rights. Mother told petitioner and, thereafter, according to father, mother

told him, “[a]ll communication has to stop, and it would be handled through the

court.” Father hired an attorney and initiated a proceeding in juvenile court,

through which a visitation schedule and support obligations were established for

him. Father testified that the proceeding exhausted his savings.

The record demonstrates that, at all relevant times, all the parties

lived in Parma, Ohio. Generally, when father would exercise his visitation rights,

mother would drop the child off to father at a McDonald’s restaurant located in

Parma. The restaurant was approximately four miles from father’s house, which,

according to father, was a 10- to 15-minute drive from his house.

Father testified that he had a car accident in 2019 and, thereafter, no

longer had a vehicle; he mainly relied on public transportation as his mode of

transportation. He testified that sometimes friends would drive him places and

sometimes he would get an Uber driver for medical appointments because he would

get reimbursed by his insurance provider. According to father, it took anywhere
from 30 minutes to two-and-a-half hours to get to the McDonald’s by bus from his

house because the trip required him to transfer buses.

Father testified that he lost his job in early 2020, when his employer

downsized due to the ramifications of the global Covid-19 pandemic. Father also

testified that he had medical issues, including diabetes and high blood pressure.

Mother testified that father’s court-ordered visitation schedule

afforded him 156 days a year of visitation with the child. She kept track of the

number of days father cancelled his visitation with the child since 2017. In 2017,

father cancelled 11 days; in 2018, he cancelled 18 days; in 2019, he cancelled 125

days; and in 2020, he cancelled all except one day, that being February 6, 2020. The

record demonstrates that father had no visitation with the child at any time in 2021

leading up to the July 2021 hearing. Father agreed that his last visit with the child

was on February 6, 2020. He paid mother $10 to bring the child to him for that

visitation.

The record demonstrates that father had mother’s telephone number

and knew where she lived. He scheduled visitation time twice in October 2020 but

cancelled both visits. From October 19, 2020, to the date of the July 15, 2021 trial,

father never requested to exercise his visitation time. From October 19, 2020, to

July 15, 2021, father did not contact mother to request to call, text, or communicate

via any technological platform (i.e., video chat, FaceTime) with the child. He did not

send any mail to the child, including on his fifth birthday or holidays. Father

testified that he used Facebook to video chat with people, but Mother blocked him
on Facebook. Mother testified that Father never requested to be “friends” on

Facebook.

Father contended that his lack of transportation and health problems

prevented him from visiting with his son. Father testified that the lack of

transportation was particularly prohibitive after universal awareness of the Covid-

19 virus and a subsequent “stay-at-home order” was implemented by the Ohio

Director of Health, effective March 23, 2020.3 Father testified that he did not want

to get the child sick.

Mother admitted that she was hesitant to have the child travel on a

bus, or be out in public spaces in general, because of the pandemic and the child’s

tendency to “touch everything.” She testified that she only took the child out in

“emergency situations.” Mother described her state of mind regarding Covid-19 as

“fearful” and testified that she watched the child “like a hawk.” According to father,

mother’s concern about the child being out in public persisted after the stay-at-home

order was no longer effective.

Father testified that mother would not answer his phone calls — a

point mother conceded — but she would generally respond to his text messages. In

June 2020, father texted mother requesting that his visitation with the child resume

3
The stay-at-home order mandated, among other things, that Ohio residents stay
at home or their place of residence except for “essential activities”; “essential
governmental functions”; and “essential business and operations.” Transporting children
under a custody order was deemed an essential activity. See Director’s Stay At Home
Order Ohio Department of Health, https://coronavirus.ohio.gov (accessed January 18,
2022). The order expired in May 2020.
because businesses were starting to reopen and activities were starting to resume.

Mother responded as follows:

Well everything isn’t open. And the things that are there are
precautions to follow. These precautions are not suggestions when it
comes to [the child]. He does not completely understand the virus and
what all we have to do to keep safe. I have not taken him anywhere
unless it was absolutely necessary because he likes to touch everything
and if his hands aren’t then washed he could get sick. He does not know
how to use hand sanitizer, but it worries me because he could get sick
by putting his hands in his mouth. Yes, the stay at home order was
lifted, but that doesn’t mean things are back to normal.

No visitation was scheduled. Father contacted mother again in July

2020, and stated that “this virus could go until next year some time. I think we just

need to come up some visitation safety plan and resume visitation.” Mother

responded, “I think part of the safety plan would be not while numbers are rising.”

Mother reiterated her concern about the child “touching everything,” and not

understanding the virus. She further stated, “I don’t think a park is a good place

right now because they are not being cleaned.” Again, no visitation was scheduled.

Father contacted mother in September 2020 and told mother he

believed the situation created by the pandemic was the “new normal,” and he was

“ready for visitation to start back up with safety measures in place” for the child.

Mother responded,

[j]ust because you may see it as the new normal does not mean it is any
less serious as it was back in March. Yes, things are opening back up
but when it comes to [the child’s] safety I will not turn a blind eye to it.
What safety measures do you think there should be? I would like
details. What do you think a visit would look like now? Do you have
reliable transportation? So you are ready; did you consider what [the
child] wants or is ready for?
 Father responded to mother’s concerns and detailed the safety

measures he would take with the child and told mother that he “always takes [his

son’s] feeling into consideration as to what is best for him.” Father further told

mother that visitation was necessary for him and the child to continue their

relationship. Father also told mother that he did not have a vehicle and would be

“open if you would like to bring and pick him up.”

A visit was arranged, but father cancelled it because the child was

congested and father did not “want him coming out congested.” A rescheduled visit

was cancelled by father because father was sick, and mother testified that he never

contacted her again after October 2020.

Mother admitted that in June 2019, she sent a letter to father asking

him for consent for petitioner to adopt the child and offering him relief from back

child support in exchange. Father did not respond to the letter. He testified that he

did want to “lose his son” then or at the time of the consent hearing. Father

contended that his lack of contact with the child was because of the pandemic. He

explained,

The pandemic had me scared for myself, for my son. It drew concern
for me, you know. So, we didn’t know very much about it, so * * * I just
wasn’t going to bring my son out. I knew his mom was a stay-at-home
mom. I knew that she really didn’t have to really come out [except] for
probably just emergencies. So I was comfortable with [the child] being
there and not coming out.

On this record, the trial court found that father had no contact with

the child for the one year preceding the filing of petitioner’s adoption petition, and
that father had justifiable cause for his failure to contact the child. Petitioner

appeals, and raises three assignments of error:

Assignment of Error No. 1: The trial court erred when it found that
[father] had justifiable cause for failing to have any contact with [the
child] in the one year preceding the filing of the March 30, 2021 petition
for adoption.

Assignment of Error No. 2: The trial court erred and misstated the
testimony when it found that the parties “acknowledged” that [mother]
blocked [father] on Facebook, and that she “refused” telephone contact
with him when there is no such evidence in the record, thereby making
the erroneous conclusion that justifiable cause existed.

Assignment of Error No. 3: Because [father] failed to timely file his
objections pursuant to R.C. 3107.07(K), the trial court erred when it
found that his consent to the adoption was required.

III. Law and Analysis

R.C. Chapter 3107 governs adoption proceedings in the state of Ohio.

In re Adoption of Kuhlmann, 99 Ohio App.3d 44, 49, 649 N.E.2d 1279 (1st

Dist.1994). An adoption proceeding is a two-step process, which involves a

“consent” phase and a “best interest” phase. In re Adoption of Jordan, 72 Ohio

App.3d 638, 645, 595 N.E.2d 963 (10th Dist.1991); R.C. 3107.14(C); In re Adoption

of Walters, 112 Ohio St.3d 315, 2007-Ohio-7, 859 N.E.2d 545, ¶ 5.

The Ohio Supreme Court has held that “[a] trial court’s finding

pursuant to R.C. 3107.07 that the consent to an adoption of a party described in

R.C. 3107.06 is not required is a final appealable order.” In re Adoption of Greer,

70 Ohio St.3d 293, 638 N.E.2d 999 (1994), paragraph one of the syllabus; see also

In re Adoption of Johnson, 72 Ohio St.3d 1217, 651 N.E.2d 429 (1995), following

Greer. Thus, the fact that the probate court has not yet proceeded to the “best
interest” phase of the adoption does not preclude appellate review of the probate

court’s decision in the “consent phase.” In re Adoption of B.M.S. & J.C.S., 10th Dist.

Franklin No. 07AP-236, 2007-Ohio-5966, ¶ 16, citing Greer.

Failure to Contact; Justifiable Cause

“Because adoption acts to permanently terminate parental rights, the

written consent of a minor child’s parents is ordinarily required in order to proceed

with the adoption action.” In re Adoption of A.L.S., 2018-Ohio-507, 106 N.E.3d 69,

¶ 13 (12th Dist.).

R.C. 3107.07(A) sets forth the following exception relative to this case:

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.

In the case sub judice, the trial court found by clear and convincing

evidence that father failed to have contact with the child for the year preceding

petitioner filing the adoption petition. The court found that there was not clear and

convincing evidence that father failed without justifiable cause to have such contact,

however.

In the first assignment of error, petitioner contends that the trial

court erred in its justifiable cause finding. In the second assignment of error,

petitioner contends that the court’s justifiable cause finding was based on the court’s
erroneous finding that the parties acknowledged that mother blocked father on

Facebook and that mother refused telephone contact with father. The assignments

of error are interrelated and we consider them together.

Petitioner had the burden of proving by clear and convincing evidence

that father’s failure to have contact with the child was without justifiable cause. In

re Adoption of Bovett, 33 Ohio St.3d 102, 515 N.E.2d 919 (1987), paragraph one of

the syllabus. A probate court’s justifiable cause decision will not be disturbed on

appeal unless that determination is against the manifest weight of the evidence. In

re Adoption of M.B., 131 Ohio St.3d 186, 2012-Ohio-236, 963 N.E.2d 142, ¶ 24, citing

In re Adoption of Masa, 23 Ohio St.3d 163, 164, 492 N.E.2d 140 (1986), paragraph

two of the syllabus.

In general, a trial court’s judgment should not be overturned as being

against the manifest weight of the evidence if some competent and credible evidence

supports that judgment. Yannitell v. Oaks, 4th Dist. Washington No. 07CA63,

2008-Ohio-6271, ¶ 16, citing C.E. Morris v. Foley Constr. Co., 54 Ohio St.2d 279,

376 N.E.2d 578 (1978). Furthermore, factual findings must be given great deference

on review because the trier of fact is in the best position to view the witnesses and

observe their demeanor, gestures and voice inflections, and use these observations

to weigh the credibility of the proffered testimony. Seasons Coal Co. v. Cleveland,

10 Ohio St.3d 77, 461 N.E.2d 1273 (1984).
 Upon review of the record, the probate court had sufficient evidence

to determine that father had justifiable cause for his failure to have contact with the

child for the year preceding the filing of the adoption petition.

In regard to telephonic communication between father and mother,

petitioner contends that an exhibit introduced at the consent hearing established

that father did not call mother and, thus, that the trial court’s finding that mother

would not answer father’s calls was erroneous. The exhibit demonstrated that from

March 2020 to March 2021, no calls were made from father’s cell phone to mother’s

cell phone. But father testified that he did not call mother because, historically,

mother would not answer his calls. Mother acknowledged that that was true,

explaining, “[i]n the past I did not answer [father’s calls], simply because I didn’t

want the opportunity for him to say * * * that I said something that I didn’t, so I left

everything to text messages.”

The trial court was not restricted to focusing solely on the one-year

statutory period in making its determination as to justifiable cause. In the Matter

of C.D.G., 2d Dist. Montgomery Nos. 28664 and 28665, 2020-Ohio-2959, ¶ 15.

Thus, “justifiable cause may be demonstrated by events either before or during the

one-year period prior to the filing of the petition or a combination of both.” In re

J.M.M., 3d Dist. Henry Nos. 7-20-06 and 7-20-07, 2021-Ohio-775, at ¶ 25. In the

case sub judice, the court considered mother and father’s telephonic history and

properly found that mother and father did not communicate with each other by
calling; rather, their telephonic communication with each other was limited to text

messaging.

In regard to Facebook, father testified that mother “took [him] off” of

and “blocked” him on Facebook, which was the way he video chatted with people. It

is true that mother never acknowledged that she “blocked” father on Facebook.

Rather, mother testified that father never asked her if they could be Facebook

friends. Thus, the trial court’s finding that “[t]he parties acknowledged that

[mother] blocked [father] from communicating with her on Facebook” was not

supported by the testimony.

The trial court’s justifiable cause finding was not based solely on the

parties’ Facebook status, however. Rather, the trial court relied on numerous other

facts in finding that father had justifiable cause for his lack of contact with the child.

Specifically, the trial court found that the Covid-19 pandemic was the

reason father suspended his visits with the child. The record supports that finding.

Mother was “fearful” about the pandemic and watched the child “like a hawk.” She

testified that except for emergencies, she did not take the child out of her house.

Father likewise wanted to keep the child safe and believed that that

would occur with the child being at home with mother under the stay-at-home

orders. The record further demonstrates that when pandemic-related restrictions

were lifted, father contacted mother and attempted to resume visitation with the

child. While mother did not “outright” deny father’s request, she expressed
continuing concerns about the pandemic, especially given that the child “touched

everything.”

The trial court also found that the “circumstances of [father’s]

relationship with [mother] and Petitioner is also relevant to the issue of justifiable

cause.” The record supports this finding. The child was conceived as a result of an

affair between mother and father while mother was married to petitioner. Mother

and father conducted their affair, at least to some degree, at the home where mother,

petitioner, and the child resided at all relevant times. Father testified that, because

of these facts, he did not go to mother’s house and did not send mail there either.

Moreover, because of the young age of the child, the child did not have his own

phone; phone communication therefore had to occur through mother. Mother

admitted that she would not answer father’s calls — she would only text message

with him.

The trial court also considered father’s financial status. Father

testified that he was involved in a car accident in 2019, and was not able to afford a

replacement vehicle, and in the beginning of 2020, he was downsized from his job.

Father explained that he exhausted his savings establishing paternity and visitation

and, although having significant difficulty communicating with mother or child to

arrange for visitation, he was unable to pursue further legal action to enforce his

visitation rights. Despite his financial situation, father rejected mother’s financial

enticement to him to consent to petitioner adopting the child, stating he did not

want to “lose his son.”
 Petitioner contends that the trial court was not permitted to consider

factors other than father’s communication with the child. He cites In re Adoption

of Hedrick, 110 Ohio App.3d 622, 674 N.E.2d 1256 (8th Dist.1996), in support of his

contention. In Hedrick, this court stated that “[t]he standard of proof to establish

justifiable cause for the non-custodial parent’s failure to communicate with the child

is ‘* * * significant interference by a custodial parent with communication between

the non-custodial parent and the child, or significant discouragement of such

communication * * *.’” Id. at 625, quoting In re Adoption of Holcomb, 18 Ohio St.

3d 361, 367-368, 481 N.E.2d 613 (1985).

Hedrick leaves out a key word the Supreme Court used in Holcomb.

Specifically, the Holcomb Court stated that “[t]ypically, a parent has justifiable

cause for non-communication if the adopting spouse has created substantial

impediments to that communication.” (Emphasis added.) Id. at 367.4 Interference

by the custodial parent was the primary reason for the lack of contact by the

noncustodial parent in Hedrick, while in this case a variety of factors contributed to

father’s lack of contact.

The Holcomb Court acknowledged that “‘justifiable cause’ is

imprecise and has been variously defined by the courts below.” Id. Because of the

imprecision in defining justifiable cause, the court stated that “the better-reasoned

4The Ohio Supreme Court reiterated this standard in In re Adoption of M.G.B.-E.,
154 Ohio St.3d 17, 2018-Ohio-1787, 110 N.E. 3d 1236, ¶ 39.
approach would be to leave to the [lower] court as finder of fact [on] the question of

whether or not justifiable cause exists.” Id.

Further, in Holcomb, the noncustodial parent alleged that the

custodial parent significantly interfered with the noncustodial parent’s

communication with the children. Addressing that specific ground, the court stated

[a]s guidance to the probate courts, we state additionally that
significant interference by a custodial parent with communication
between the non-custodial parent and the child, or significant
discouragement of such communication, is required to establish
justifiable cause for the non-custodial parent’s failure to communicate
with the child.

(Emphasis sic.) Id. at 367-368.

Thus, Holcomb considered a specific allegation of “significant

interference or significant discouragement” of communication as justifiable cause

for a noncustodial parent’s failure to have contact with a child. It has been judicially

recognized, however, that there are other circumstances aside from a custodial

parent’s interference with or discouragement of communication with a noncustodial

parent’s attempt to communicate with a child that can create justifiable cause.

In In re Adoption of A.K., Slip Opinion No. 2022-Ohio-350, the

Supreme of Ohio held that a parent’s lack of contact with a child pursuant to a court-

ordered “no contact order” constituted justifiable cause for a parent’s failure to

communicate with the child. In so finding, the court relied on In re Adoption of B.I.,

157 Ohio St.3d 29, 2019-Ohio-2450, 131 N.E.3d 28, wherein it held that “a parent’s

nonsupport of his or her minor child pursuant to a judicial decree does not
extinguish the requirement of that parent’s consent to the adoption of the child.” Id.

at ¶ 1.

Demonstrating in a properly submitted petition by clear and

convincing evidence a custodial parent’s interference with or discouragement of a

child’s communication with a noncustodial parent is one way to establish justifiable

cause, but it is not the only way.

Further, petitioner contends that father could have had his visitation

order revisited so that he could have had contact with the child. But as the court

held in In re Adoption of A.K.,

[petitioners] have the burden to establish that there was no justifiable
cause for [the noncustodial parent’s] failure to contact [the child]. * *
* For this court to impose some additional requirement on a parent that
they must attempt to modify the relevant court order would be an
inappropriate shift of the petitioner’s burden to the parent, in
contravention of R.C. 3107.07.

Id. at ¶ 20.

Just as the Ohio Supreme Court observed with lamentation in In re

Adoption of M.G.B.-E., 154 Ohio St.3d 17, 2018-Ohio-1787, this court believes father

“could undoubtedly have done more to protect and nurture his relationship with his

[child].” Id. at ¶ 44. “But strictly construing R.C. 3107.07(A) in Father’s favor, and

remaining cognizant that parents facing the termination of their parental rights

must be afforded every protection the law allows, In re Hayes, 79 Ohio St.3d 46, 48,

679 N.E.2d 680 (1997),” we conclude that the lower court did not err in determining

that father had justifiable cause for the failure to contact the child. In re Adoption
of M.G.B.-E. at ¶ 43. The lower court was in the best position to determine the

credibility of witnesses and weigh the evidence. The novelty of the global Covid-19

pandemic, father’s medical conditions, loss of work and transportation, exhaustion

of resources in prior litigation, along with the other specific factors discussed above,

demonstrate that the trial court’s justifiable cause finding was supported by some

competent and credible evidence. The first and second assignments of error are

therefore overruled.

Father’s Objection

In the third assignment, petitioner contends that father failed to

timely file his objection, obviating the need for his consent under R.C. 3107.o7(K).

The record reflects that petitioner failed to raise the timeliness of

father’s objection at the trial-court level. It is well settled that a party may not raise

any new issues or legal theories for the first time on appeal. Stores Realty Co. v.

Cleveland, 41 Ohio St.2d 41, 43, 322 N.E.2d 629 (1975). Thus, a litigant who fails to

raise an argument before the trial court forfeits the right to raise that issue on appeal.

Independence v. Office of the Cuyahoga Cty. Executive, 142 Ohio St. 3d 125, 2014-

Ohio-4650, 28 N.E.3d 1182, ¶ 30.

Appellate courts may consider a forfeited argument using a plain-

error analysis. See Risner v. Ohio Dept. of Natural Resources, 144 Ohio St.3d 278,

2015-Ohio-3731, 42 N.E.3d 718, ¶ 27. For the plain error doctrine to apply, the party

claiming error must establish (1) that “‘an error, i.e., a deviation from a legal rule’”

occurred, (2) that the error was “‘an obvious defect in the trial proceedings,’” and (3)
that this obvious error affected substantial rights, i.e., the error “‘must have affected

the outcome of the trial.’” State v. Rogers, 143 Ohio St. 3d 385, 2015-Ohio-2459, 38

N.E.3d 860, ¶ 22, quoting State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240

(2002); Schade v. Carnegie Body Co., 70 Ohio St.2d 207, 209, 436 N.E.2d 1001

(1982) (“A ‘plain error’ is obvious and prejudicial although neither objected to nor

affirmatively waived which, if permitted, would have a material adverse affect on the

character and public confidence in judicial proceedings.”).

The plain error doctrine is not readily invoked in civil cases. Instead,

an appellate court “must proceed with the utmost caution” when applying the plain

error doctrine in civil cases. Goldfuss v. Davidson, 79 Ohio St.3d 116, 121, 679

N.E.2d 1099 (1997). The Ohio Supreme Court has set a “very high standard” for

invoking the plain error doctrine in a civil case. Perez v. Falls Fin. Inc., 87 Ohio

St.3d 371, 375, 721 N.E.2d 47 (2000). Thus, “the doctrine is sharply limited to the

extremely rare case involving exceptional circumstances where error, to which no

objection was made at the trial court, seriously affects the basic fairness, integrity,

or public reputation of the judicial process, thereby challenging the legitimacy of the

underlying judicial process itself.” Goldfuss at 122.

Because petitioner failed to raise the issue of the timeliness of father’s

objection at the trial-court level, he has waived review of the issue on appeal. The

third assignment of error is therefore overruled.

Judgment affirmed.

It is ordered that appellee recover from appellant costs herein taxed.
 The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the

common pleas court, probate division, to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

CORNELIUS J. O’SULLIVAN, JR., JUDGE

MICHELLE J. SHEEHAN, J., CONCURS;
KATHLEEN ANN KEOUGH, P.J., DISSENTS (WITH SEPARATE OPINION)

KATHLEEN ANN KEOUGH, P.J., DISSENTING:

Respectfully, I dissent.

Initially, I note that the majority rejects petitioner’s argument that the

standard for justifiable cause announced in Holcomb — significant interference by

a custodial parent with communication between the noncustodial parent and the

child, or significant discouragement of such communication — is the only way to

demonstrate justifiable cause. Majority opinion at ¶ 43. The majority concludes

that although significant interference by a custodial parent with the child’s

communication with the noncustodial parent is one way to establish justifiable

cause, it is not the only way. Id. Even assuming that to be true, the majority’s

reliance on In re Adoption of A.K., Slip Opinion No. 2022-Ohio-350, as support for

its conclusion is misplaced.
 In In re Adoption of A.K., 2020-Ohio-3279, 155 N.E.2d 239 (8th

Dist.), this court held that a parent’s lack of contact with a child pursuant to a court-

ordered no-contact order constituted justifiable cause for a parent’s failure to

communicate with the child. The Ohio Supreme Court recently affirmed this court’s

decision in In re Adoption of A.K., Slip Opinion No. 2022-Ohio-350.

A court undertakes a two-step analysis when applying R.C.

3107.07(A) — whether a parent has failed to communicate with or failed to support

a child for a minimum of one year preceding the filing of the adoption petition and,

if so, whether there was justifiable cause for the failure. In re Adoption of M.B., 131

Ohio St.3d 186, 2012-Ohio-236, 963 N.E.2d 142, ¶ 23. But in In re Adoption of A.K.,

the Supreme Court concluded there is an “automatic exemption” from the two-step

justifiable-cause inquiry under R.C. 3107.07(A) where a court order specifically

orders a parent to have no contact with his child. Id. at ¶ 16-17. The court applied a

three-part test that asks (1) what the law or judicial decree required of the parent

during the year immediately preceding either the filing of the adoption petition; (2)

whether during that year the parent complied with his obligation under the law or

judicial decree; and (3) if the parent did not comply with his obligation during that

year, there was justifiable cause for that failure. Id. at ¶ 14. The court concluded

that its analysis ended at the first step of the three-part analysis, without reaching

the justifiable cause step, because the no-contact order mandated that the father do

just what was ordered — have no contact or communication with his children. Id.

at ¶ 15. Accordingly, the court found that (1) a parent’s right to consent to the
adoption of his child is not extinguished under R.C. 3107.07(A) when the parent did

not have more than de minimis contact with the minor child during the statutory

period because the parent was acting in compliance with a no-contact order that

prohibited all communication and contact with the child; and (2) the father’s

consent was therefore required for the adoption proceedings to go forward. Id. at

¶ 21.

Because the Supreme Court did not consider the justifiable cause

question in In re Adoption of A.K., it should not be cited as a case demonstrating

that a circumstance other than a custodial parent’s significant interference with or

discouragement of communication with a noncustodial parent’s attempt to

communicate with a child can create justifiable cause under R.C. 3107.07(A). The

majority’s citation to In re Adoption of B.I., 157 Ohio St.3d 29, 2019-Ohio-2450, 131

N.E.3d 28, is likewise misplaced because B.I. relied upon the same three-part test

utilized by the Supreme Court in In re Adoption of A.K. and similarly resolved the

matter at the first step of the three-part test, without conducting any justifiable cause

analysis under R.C. 3107.07(A). Id. at ¶ 14.

With regard to the justifiable cause finding in this case, I would

reverse the trial court’s determination that father had justifiable cause for not

contacting the child for at least one year preceding the filing of petitioner’s adoption

petition because the court’s determination is against the manifest weight of the

evidence. In determining whether a judgment is against the manifest weight of the

evidence, the appellate court 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 the judgment should be reversed and a

new trial should be ordered. Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-

2179, 972 N.E.2d 517, ¶ 20. Weight of the evidence concerns “the inclination of the

greater amount of credible evidence, offered in a trial, to support one side of the

issue rather than the other.” (Emphasis sic.) State v. Thompkins, 78 Ohio St.3d 380,

387, 678 N.E.2d 541 (1997).

The majority concludes that the trial court properly determined that

father had justifiable cause for his failure to have any communication or contact

whatsoever with the child in the one year preceding the filing of the adoption

petition because father testified that (1) he knew mother would not answer her

phone if he called; (2) he suspended visits with the child due to the COVID-19

pandemic in an effort to keep himself and the child safe; (3) his affair with mother

made him reluctant to go to mother’s house or send mail there; (4) his lack of

transportation made it difficult for him to visit the child; and (5) his financial status

prohibited him from seeing the child or enforcing his visitation rights in court. I find

father’s testimony to be wholly self-serving and not credible and, accordingly, find

the trial court’s conclusion that these factors demonstrated justifiable cause to be

against the manifest weight of the evidence.

Father’s alleged transportation issues did not prevent him from

seeing the child. Rather, it is apparent from the record that he simply did not want
to make the effort required to see the child. Father acknowledged that his home is

only four miles from a McDonald’s restaurant in Parma where he is court-ordered

to meet mother to exercise his parenting time with the child. He testified that it

takes only ten to fifteen minutes to travel by car from his home to the McDonald’s,

and that girlfriends and other friends drove him to the McDonald’s in 2019 after his

car accident. And despite his testimony that he could not ride his bike to the

McDonald’s because of his alleged bad back, he admitted that his back does not

prevent him from working full-time as a security guard at the Jack Casino.

If father had truly wanted to see the child, he could have asked a

friend to take him to McDonald’s, as he had done in the past. Or he could have

ridden his bike, walked to the McDonald’s, or taken the Line 54 bus there in a single

30-minute ride. Indeed, father was accustomed to riding the bus; he admitted that

he took the bus 45 to 55 minutes to and from his job, which is located 15 miles from

his home. Significantly, he also admitted that he took the bus to visit his one-year-

old child born of another relationship. Father’s testimony established that he was

able to find transportation to visit his other child, just not the child involved in this

case. Thus, I find his testimony that transportation issues kept him from seeing the

child not credible.

Father’s testimony that his medical conditions kept him from visiting

the child is likewise not credible. Father testified that although he was laid off from

his job in March 2020 early in the pandemic, he was recalled to work as a security

guard at the casino in June 2020. Father admitted he took the bus to and from work
and that he worked full-time as a security guard in the casino despite his medical

conditions. Based on his own testimony, father’s medical conditions did not prevent

him from riding the bus and working in a seemingly high-risk environment during

the pandemic; they apparently only prevented him from visiting the child that is the

subject of the adoption petition in this case.

But even assuming for the sake of argument that the COVID-19

pandemic and father’s transportation issues prevented him from physically visiting

with the child in this case (even though he was able to visit his other child), I find

father’s testimony about his alleged inability to visit the child insufficient to establish

justifiable cause for his lack of contact with the child because at a minimum, father

could have communicated with the child.

“[V]isitation does not equate with communication because a parent

can communicate with a child ‘notwithstanding the inability to physically visit with

the child.’” In re Adoption of A.L.E., 4th Dist. Meigs No. 16CA10, 2017-Ohio-256,

¶ 25, quoting In re Adoption of Doyle, 11th Dist. Ashtabula Nos. 2003-A-0071 and

2003-A-0072, 2004-Ohio-4197, ¶ 17. Thus, even where a parent is incarcerated

during the one year preceding the filing of an adoption petition, courts have

routinely found no justifiable cause for the parent’s failure to communicate with his

or her child. See, e.g., Doyle (no justifiable cause for failure to communicate where

incarcerated mother could have sent cards or letters to children); In re Adoption of

C.A.L., 2015-Ohio-2014, 35 N.E.3d 44, ¶ 34 (12th Dist.) (despite inability to

physically visit with child, no justifiable cause for failure to communicate because
father could have sent cards, letters, or gifts); In re N.L.T., 9th Dist. Lorain No. 14

CA 010567, 2015-Ohio-433, ¶ 29-30 (no justifiable cause where incarcerated mother

did not send child any gifts, pictures, or letters, and never called the father, whose

telephone number she knew, and asked to speak with the child).

Despite his testimony that he could not physically visit with the child

in the one year preceding the filing of the adoption petition, father clearly had other

means by which he could have communicated with the child. Although the parties

acknowledged that all communication between father and mother was by text, the

record reflects that father never texted mother and asked if she would accept a call

from him so that he could speak to the child, who according to mother’s testimony,

loves to chat on the phone. He also never texted mother and asked her to pass along

a message to the child. And although father has Facebook and admittedly video

chats with other people, he never asked mother if he could video chat through

Facebook with the child.

Furthermore, nothing prevented father from sending gifts or mail to

the child. But father never sent the child a birthday card, a Christmas card, a

birthday gift, a Christmas gift, or any other mail during the one-year period

preceding the filing of the adoption petition. Father’s testimony that he did not

know the child’s address or could not have found the address is simply not credible

in light of the fact that he carried on the affair in the house where the child has lived

since birth and the fact that mother’s address is available on public records. And

father’s testimony that he did not send mail to the child because he was
“uncomfortable” doing so because the child lives in the house where he carried on

the affair is also incredible in light of father’s testimony that he does not want to

“lose his son.” It would seem that a parent who does not want to “lose” his child

would do anything possible to maintain contact with the child, despite any

inconvenience to the parent or minor uncomfortable feelings.

Although father testified that he does not want to lose his child to

adoption, the record demonstrates that father lost interest in maintaining a

relationship with the child. The child was born in 2015. Pursuant to the Juvenile

Court’s order, father is entitled to visit the child 156 days each year. In 2017, father

cancelled 11 visitation days. In 2018, he cancelled 91 days. In 2019, father cancelled

125 visitation days; in 2020, he cancelled all visitation days except one, and in 2021,

father neither had nor requested any parenting days. In light of this evidence, I find

father’s testimony regarding the alleged factors that prevented him from

communicating with the child in the one year prior to the filing of the adoption

petition entirely not credible, especially because father admitted that mother never

prohibited him from visiting the child. Accordingly, I find the trial court’s judgment

that father had justifiable cause for his failure to have de minimis contact with the

child to be against the manifest weight of the evidence.

By finding justifiable cause under these circumstances of this case,

the majority sets a new standard for justifiable cause under R.C. 3107.07(A) — that

meaningless contacts with the custodial parent are sufficient to establish justifiable

cause. That is not the standard. The statute specifically provides that consent to
adoption is not required where the noncustodial parent, without justifiable cause,

has not had more than de minimis contact “with the minor” for the statutory period.

Thus, whether there was justifiable cause should be evaluated with respect to

father’s communication with the child (of which there was none), not his

communication with mother. Accordingly, I dissent.