In re Adoption of A.R.A.

2023 Ohio 3606

• Court: Ohio Court of Appeals
• Decided: September 28, 2023
• Docket: 23 CA 0969
• Status: Published

Opinion

[Cite as In re Adoption of A.R.A., 2023-Ohio-3606.]

IN THE COURT OF APPEALS OF OHIO SEVENTH APPELLATE DISTRICT CARROLL COUNTY

IN THE MATTER OF:

THE ADOPTION OF: A.R.A.

OPINION AND JUDGMENT ENTRY Case No. 23 CA 0969

Civil Appeal from the Court of Common Pleas, Probate Division of Carroll County, Ohio Case No. 20225010

BEFORE: Cheryl L. Waite, Carol Ann Robb, Mark A. Hanni, Judges.

JUDGMENT: Affirmed.

Atty. Rhonda G. Santha, 6401 State Route 534, West Farmington, Ohio 44491, for Appellant

Atty. Herbert J. Morello, Morello Law Offices Ltd., 700 Courtyard Centre, 116 Cleveland Avenue, NW, Canton, Ohio 44702, for Appellee

Dated: September 28, 2023 –2–

WAITE, J.

{¶1} Appellant-Father appeals a June 15, 2023 judgment entry of the Carroll

County Court of Common Pleas, Probate Division in which the trial court determined that

Appellant’s consent was not necessary before allowing Appellee-Maternal Grandmother

to adopt the minor child in this matter, A.R.A. Appellant argues that a civil protection

order prevented him from contacting the child in the one-year look back period prior to

the filing of the adoption petition. He also alleges the court failed to consider his

participation in a custody proceeding that occurred during the relevant time period. For

the reasons that follow, Appellant’s arguments are without merit and the judgment of the

trial court is affirmed.

Factual and Procedural History

{¶2} Appellant and the natural mother (“Mother”), who is now deceased, had a

child together, A.R.A., on September 8, 2018. Appellant and Mother were unmarried but

had been living together for a short period of time. When the child was three months old,

Mother and Appellee obtained a protection order against Appellant after several instances

of physical violence, including one incident where Appellant assaulted Mother while she

was holding A.R.A. Mother obtained the protection order on January 7, 2019 and it

provided: “ALL TERMS OF THIS ORDER SHALL REMAIN IN EFFECT FOR A PERIOD

OF FIVE YEARS FROM ISSUANCE, OR UNTIL 1/7/2024 unless earlier modified or

terminated by order of this Court.” (Ex. A) The order noted that Appellant had several

serious felony convictions and may have possession of a hidden weapon despite his

weapons disability. The order protected Mother, A.R.A., Appellee, and Mother’s older

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child, who is not involved in the instant proceeding. Appellant has not seen A.R.A. since

the protective order was filed.

{¶3} After Mother died, Appellee obtained physical custody and was named legal

guardian of A.R.A. This was almost two years after the protection order was filed. The

custody arrangement resulted from Appellee’s motion seeking to establish paternity and

custody. During those proceedings, the parties agreed that Appellant could be

considered for visitation with A.R.A. if he could produce a seven-panel toenail negative

drug test to be conducted at Arcpoint Labs of Cuyahoga Falls. (10/10/21 J.E.) If he could

pass a single test, the court agreed to revisit the issue of supervised visitation with the

apparent goal of allowing future custody.

{¶4} Appellant took seven drug tests during the allocated time period, and these

results were admitted into evidence. Each of these tests were positive for one or more of

the following drugs: cocaine, THC, Norcocaine, and Benzodiazepines. Appellant took

some of these tests at facilities other than the specific lab ordered by the court because

he thought employees of the agreed lab had somehow conspired against him. He also

took some of the tests by submitting a urine sample, which was not a method approved

by the court.

{¶5} On December 16, 2022, Appellee filed a petition of adoption. She asserted

that Appellant’s consent was not required, as he had no more than de minimus contact

with the child in the year preceding the petition. The petition was filed more than a year

after the custody agreement was filed. Appellant was served with notice of the petition at

his last known address and a person with his same last name signed for the certified mail.

However, the person who signed the certificate was Appellant’s sometime girlfriend, who

Case No. 23 CA 0969 –4–

happened to have his same last name. Appellant and the woman were not seeing each

other at the time she signed the certificate, and he alleges that she was unable to contact

him or otherwise notify of him of the notice. However, once Appellant and the woman

resumed their relationship sometime in February of 2023, she told him about the certified

mail. Appellant filed a handwritten response to the court on February 28, 2022, contesting

the adoption.

{¶6} On May 30, 2023, the court held a hearing addressing, first, whether

Appellant had timely objected to the adoption and, second, whether he had more than de

minimus contact with the child during the preceding year. Although the timeliness of the

objection is not at issue here, the court found that while Appellant could have filed his

objection sooner, because permanent loss of custody is the functional equivalent of the

death penalty it would accept his objection.

{¶7} At the hearing to determine whether Appellant’s consent was necessary,

both parties presented evidence in the form of physical documents and witness testimony.

Although Appellant argued the protection order prevented him from contacting or visiting

the child during the relevant time period, evidence was introduced that the protection

order specifically provided it could be modified or terminated prior to the expiration date

pursuant to a court order. Appellant initially testified that he did not believe he could have

the order terminated early, but he later admitted he had discussed this issue with an

attorney and knew early termination was possible. (Hrg., p. 110.) He also testified to his

belief that the October 10, 2021 court order which had ordered his drug testing served to

negate the protection order. He was asked if he felt the protective order fully prevented

him from any contact with the child. Appellant replied “[n]o, because I was, they was

Case No. 23 CA 0969 –5–

going to let me see her, prior to the, ‘cause why, you know, I just had to pass this drug

test. So I wasn’t thinking that [the protection order] would even mean anything.” (Hrg.,

p. 100.)

{¶8} As to the order regarding drug testing, Appellant explained that he changed

testing facilities even though the order contained a specific testing location because he

believed employees of the ordered lab were conspiring against him. He claimed that his

tests at this lab showed increasing levels of drugs in his system despite his claim that he

had used no drugs. Later, he admitted he used marijuana, but claimed that his medical

marijuana card permitted such use, even though the card had expired prior to his last few

drug tests. He claimed he did not think this was a problem. He did not explain the

presence of drugs other than marijuana, which were found at high levels in his samples.

He also submitted urine samples at least twice despite the fact that the court specifically

ordered a seven-panel toenail sample. He conceded that he was aware a urine sample

may result in more favorable results, as it would detect only drugs taken within a three-

day period. However, even the urine tests he submitted had tested positive.

{¶9} On June 15, 2023, the court determined, based largely on Appellant’s own

testimony, that his consent to adoption was not required because he had less than de

minimus contact with the child without justifiable cause. Regarding the protection order,

the court cited to the order itself, which contained language that it could be modified or

terminated prior to the expiration date. The court also cited Appellant’s testimony

conceding that he knew about this language, but took no steps to modify or terminate the

order. As to the prior custody case, the court relied on the fact that Appellant knew he

was required to pass only a single drug test to obtain visitation with the child, and yet

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could not produce even one negative test. The court attributed fault to Appellant for failing

to refrain from drug use in order to obtain visitation, noting that Appellee took no

intentional actions to bar Appellant’s visitation. Appellant timely appeals the court’s

determination that his consent to adopt was not necessary.

General Law

{¶10} An appellate court will not disturb a trial court's decision on an adoption

petition unless it is against the manifest weight of the evidence. In re D.R., 7th Dist.

Belmont No. 11 BE 11, 2011-Ohio-4755, ¶ 9, citing In re Adoption of Masa, 23 Ohio St.3d

163, 492 N.E.2d 140 (1986). A judgment supported by some competent, credible

evidence will not be reversed by a reviewing court as against the manifest weight of the

evidence. C.E. Morris Co. v. Foley Construction Co., 54 Ohio St.2d 279, 376 N.E.2d 578

(1978). Similarly, a reviewing court must not substitute its judgment for that of the trial

court where some competent and credible evidence supports the judgment. Myers v.

Garson, 66 Ohio St.3d 610, 614 N.E.2d 742 (1993).

{¶11} When a petition of adoption is filed, generally the petitioner must obtain the

written consent of the natural mother and father. R.C. 3107.06. Certain exceptions to

this rule are described in R.C. 3107.07. Relevant, here, is R.C. 3107.07(A) which

provides the following:

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

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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.

{¶12} “Because the burden of proof ultimately remains with the adoption

petitioner, once a natural parent has ‘presented facially justifiable reasons’ for his or her

failure to support the child, the burden shifts back to the petitioner to show that the natural

parent's justifications are illusory.” In re E.W.H., 4th Dist. Meigs No. 16CA8, 2016-Ohio-

7849, ¶ 33, citing In re Adoption of B.B.S., 2016-Ohio-3515, 70 N.E.3d 1, ¶ 22 (4th Dist.);

In re Adoption of Kessler, 87 Ohio App.3d 317, 324, 622 N.E.2d 354 (6th Dist.1993).

{¶13} “De minimis contact is not defined only as physical visitation with a child.

Other forms of contact and support including gifts, cards, letters, financial support and

telephone calls are also considered.” In re Petition for Adoption of A.M.D., 7th Dist.

Mahoning No. 16 MA 0052, 2016-Ohio-6976, ¶ 17.

{¶14} The term “justifiable cause” has been defined as “[c]apable of being legally

or morally justified; excusable; defensible.” In re E.W.H., 4th Dist. Meigs No. 16CA8,

2016-Ohio-7849, ¶ 33, citing In re Adoption of B.B.S., supra, at ¶ 16 (4th Dist.); quoting

Black's Law Dictionary (8th Ed.2004) 882.

ASSIGNMENT OF ERROR

The Carroll County Probate Court erred in its finding that the lack of

Appellant’s contact with minor child was “without justifiable cause.”

{¶15} Appellant contends that the protection order, which remains in effect,

prevented him from contacting the child during the one year period prior to Appellee’s

filing of the petition for adoption. He then contradicts the essence of that argument,

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asserting that a subsequent custody agreement exists allowing him visitation conditioned

on passing a single drug screen. He claims that the court failed to consider his efforts to

participate in that custody agreement by taking at least seven drug tests to satisfy the

terms of the agreement, wrongfully continuing to deny him visitation.

{¶16} Appellee responds that a trial court is given great discretion in determining

whether there has been de minimus contact with the child and, if not, whether there has

been justifiable cause to excuse lack of contact. Appellee contends Appellant, alone, is

responsible for his failure to contact A.R.A. Appellant conceded at the hearing that

passing a drug test, which he was given a year to accomplish, was his sole roadblock to

visitation and, later, custody. Despite taking seven tests, Appellant was unable to pass a

single drug test. As his failure to contact A.R.A. was without justifiable excuse, Appellee

maintains there was no abuse of discretion when the court determined that Appellant’s

consent was not required for her to adopt.

{¶17} Appellant relies on a case arising from the Ninth District where the court

determined that a protection order provided justifiable cause for the appellant’s lack of

contact with the minor child. In re Adoption of B.A.A., 9th Dist. Wayne No. 16AP0073,

2017-Ohio-8137. However, Appellant fails to mention that the appellant in that case did

move to modify the protection order. Id. at ¶ 17. The petition for adoption in that case

was filed one month after the appellant’s attempt to modify the protection order, and the

order in B.A.A. was not based on the appellant’s physical violence. Id. at ¶ 18. Instead,

he had been harassing the victim through text messages and appearing at her residence

and workplace despite being told to stop. Here, the order stemmed from Appellant’s

physical violence, including one instance where he assaulted the child’s mother while she

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was holding the infant A.R.A. Despite Appellant’s arguments, B.A.A. is factually

distinguishable from the instant matter.

{¶18} Appellant also cites to In re Adoption of M.G.B.-E., 154 Ohio St.3d 17, 2018-

Ohio-1787, 110 N.E.3d 1236. Appellant explains the Supreme Court held that a parent’s

actions in filing custody motions must be taken into consideration when determining

whether justifiable cause for failure to contact exists. However, the Supreme Court held

in that case that while custody motions and other related filings are to be considered, they

are not a determinative factor. Id. at ¶ 40.

{¶19} The M.G.B.-E. Court explained that because these matters are factually

determinative, a close look at the custody motion was required, particularly as the mother

of the children violated court orders by failing to bring the children to court appointed

visitation and had taken other efforts to impede the appellant’s parenting time. Those

intentional efforts included actions by the mother to change the children’s last name

without informing the appellant, changing her telephone number without informing the

appellant or the domestic relations court, and moving residences without providing the

new address. Id. at ¶ 44. The appellant had also taken efforts to learn where the children

attended school and made an effort to establish his presence in their lives. Id. at ¶ 46.

{¶20} The facts of M.G.B.-E. are completely distinguishable from those in the

instant case. Significantly, Appellant fails to note that the trial court did, in fact, take into

consideration the prior custody filing. The court determined that participating in the

custody motion filed by Appellee was Appellant’s sole effort towards contacting his child.

The court discussed the fact that as a result of this proceeding, Appellant’s only obstacle

in visiting his child was to produce a single negative drug test. The court decided it was

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Appellant’s own fault that he could not pass a drug test despite his knowledge that if he

was successful, he would obtain visitation and perhaps custody. Thus, despite being

given a clear path to visitation, Appellant was stopped only by his own actions.

{¶21} At the hearing, Appellant made several excuses as to why he did not

produce a negative test, including a claim of a conspiracy against him and reliance on an

expired medical marijuana card. Even if Appellant’s arguments regarding the medical

marijuana card somehow excused his marijuana use, it did not explain the other drugs

found in his system (cocaine, norcocaine, and benzodiazepines). Appellant also violated

multiple terms of the court’s order by testing at a facility not authorized by the court and

submitting a type of test not approved by the order.

{¶22} Also significant is Appellant’s lack of any other attempt to establish a

relationship with the child. Even though he knew that the protection order could be

modified or terminated, he did not attempt this, by his own admission. Unlike M.G.B.-E.,

there is no evidence that Appellant made any other attempt to establish his presence in

the child’s life or evidence that any person (other than Appellant himself) intentionally

acted to interfere with any attempt to establish a relationship. Also of note, the reason for

the protection order was to prevent physical violence by Appellant, as there was at least

one instance where he placed the child in danger of physical injury as an infant.

{¶23} Based on this record, there is no evidence aside from a single custody

agreement (with which Appellant made no real attempt to comply) to demonstrate

justifiable cause to excuse Appellant’s failure to have even de minimus contact with the

child. Appellant himself admitted the protection order could have been modified or

terminated but he took no action to explore that option. He also admitted that the

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protection order was ultimately of no concern as the custody agreement provided him a

path to visitation. Appellant’s assignment of error is without merit and is overruled.

Conclusion

{¶24} Appellant argues that a civil protection order prevented him from seeing the

child, and that he had filed a motion to obtain custody, which should have been given

more weight by the trial court prior to deciding his consent to adoption was not required.

For the reasons provided, Appellant’s arguments are without merit and the judgment of

the trial court is affirmed.

Robb, J. concurs.

Hanni, J. concurs.

Case No. 23 CA 0969 [Cite as In re Adoption of A.R.A., 2023-Ohio-3606.]

For the reasons stated in the Opinion rendered herein, the assignment of error is

overruled and it is the final judgment and order of this Court that the judgment of the Court

of Common Pleas, Probate Division, of Carroll County, Ohio, is affirmed. Costs to be

taxed against the Appellant.

A certified copy of this opinion and judgment entry shall constitute the mandate in

this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a

certified copy be sent by the clerk to the trial court to carry this judgment into execution.

NOTICE TO COUNSEL

This document constitutes a final judgment entry.