[Cite as In re Adoption of A.R.L.P., 2024-Ohio-3318.]
COURT OF APPEALS KNOX COUNTY, OHIO FIFTH APPELLATE DISTRICT
IN THE ADOPTION OF: JUDGES: Hon. William B. Hoffman, P.J. A.R.L.P, K.R.A.P., & C.H.P. Hon. John W. Wise, J. Hon. Craig R. Baldwin, J.
Case Nos. 24CA00014, 24CA00015, & 24CA00016
OPINION
CHARACTER OF PROCEEDINGS: Appeal from the Knox County Court of Common Pleas, Probate Division, Case Nos. 20234006, 20234007, 20234008
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: August 28, 2024
APPEARANCES:
For Appellant For Appellee
CYNTHIA A. CUNNINGHAM DEVIN M. TRAINER KOREY M. KIDWELL Assistant Knox County Public Defender JEREMY R. ABRAMS 110 East High Street Kidwell & Cunningham, LTD Mount Vernon, OH 43050 112 North Main Street Mount Vernon, OH 43050 Knox County, Case Nos. 24CA00014, 24CA00015, & 24CA00016 2
Hoffman, P.J. {¶1} Petitioners-appellants B.L.P. and B.T.P. (“Aunt” or “Uncle,” individually;
“Appellants,” collectively) appeal the April 26, 2024 Judgment Entry entered by the Knox
County Court of Common Pleas, Probate Division, which denied their petitions for
adoption of their great nieces and nephew (“Child 1,” “Child 2,” and “Child 3,” individually;
“the Children,” collectively), finding the consent of respondent-appellee R.S. (“Father”)
was required.
STATEMENT OF THE FACTS AND CASE
{¶2} Stacie S. (“Mother”) and Father are the biological parents of the Children.1
Via Judgment Entry filed August 10, 2020, the Knox County Court of Common Pleas,
Juvenile Division, granted legal custody of the Children to Aunt, the Children’s maternal
great aunt (“the Juvenile Court Case”). The juvenile court granted Mother “frequent and
liberal visitation” with the Children. August 10, 2020 Judgment Entry at p. 2. However, the
trial court ordered Father’s visitation with Child 2 and Child 3 be supervised, and Father
have no contact with Child 1, unless recommended in a therapeutic setting.
{¶3} Appellants filed petitions for adoption of the Children on March 10, 2023. In
their petitions, Appellants indicated Father’s consent was not required because he failed
without justifiable cause to have more than de minimis contact with the Children for the
one year prior to the filing of the petition.
{¶4} The trial court conducted a consent and best interest hearing on the
petitions on February 2, 2024.
1 Mother passed away on February 26, 2022. Knox County, Case Nos. 24CA00014, 24CA00015, & 24CA00016 3
{¶5} Aunt testified she and Uncle have been married since 1996, and have four
biological children of their own. Aunt is the maternal great aunt of the Children and was
Mother’s maternal aunt. The Children have lived with Appellants for a little over five (5)
years and Aunt was granted legal custody of the Children in August, 2020. Appellant
noted Father had not seen Child 2 and Child 3 since 2020, when he had supervised
visitation through the Knox County Department of Job and Family Services. She added
Father had not seen Child 1 since 2019. Aunt recalled the last time Father saw the
Children was at Mother’s funeral on March 6, 2022. According to Aunt, Father did not
interact with the Children at the funeral and the Children did not recognize him.
{¶6} Aunt reiterated, since she was granted legal custody, Father had not made
any efforts to contact the Children and had not made any attempts to be involved in their
lives. It was only after Appellants filed their petitions Father phoned Aunt to arrange
visitation with the Children. According to Aunt, Father told her he had just found her
phone number. She indicated she has had the same cell phone number since 2009, and
the Knox County Department of Job and Family Services had the phone number as well
as her address.
{¶7} Aunt testified the Children have very good relationships with each other and
with Appellants. The Children are well adjusted to their current home, school, and
community. Child 1 engages in group counseling in and out of school as well as one-on-
one counseling in and out of school. Child 1 has an IEP (Individual Education Plan). Aunt
stated Child 1 does not do well with change and requires slow transitions into new
situations. Child 1 plays softball. Aunt described Child 2 as very smart and very healthy.
When Child 2 came into Appellants’ home, she was unable to speak properly, had issues Knox County, Case Nos. 24CA00014, 24CA00015, & 24CA00016 4
with her eyes which required surgery, and was suffering from malnutrition. Child 2 is a
cheerleader and also plays softball. Aunt noted the Children do not currently have any
relationship with Father. Child 3 was an infant when he was placed with Appellants. Child
3 had some health issues. Child 3 had seasonal asthma and was hospitalized a couple
of times as a result, but has outgrown the issue. Child 3 is involved with wrestling,
baseball, and football.
{¶8} Aunt believed adoption was in the best interest of the Children as it would
provide them with permanency and stability. Aunt stated, if adoption is granted, she would
continue to allow maternal family members to spend time with the Children.
{¶9} On cross-examination, Aunt indicated she had changed addresses twice,
but never notified Father. She added Father had her phone number, explaining he called
and texted her during the period he had visitation with the Children. Aunt admitted she
told Bobbi Wallace, her sister and the Children’s maternal grandmother, she would prefer
Father not approach the Children at Mother’s funeral. She also conceded she told
Wallace she (Wallace) was putting the Children in harm’s way by allowing them to have
contact with Father. Aunt also told Wallace she (Wallace) should not have the Children
because she attempted to communicate with Father. She agreed she stated, in a text
message to Wallace, there was no way in the world she would allow the Children to have
visitation with Father. Aunt acknowledged she informed Wallace she would never forgive
her (Wallace) if Father was granted visitation with Child 2 and Child 3. She also disclosed
she had not allowed Wallace to have contact with the Children for “a long time,” in part,
because Wallace was working with Father. Knox County, Case Nos. 24CA00014, 24CA00015, & 24CA00016 5
{¶10} Aunt stated she had blocked Father on social media, but not on her phone.
She also admitted the Children’s school and sports uniforms bear Appellants’ sir name,
not their legal sir name. However, she denied legally changing the Children’s names.
{¶11} Father was called to testify as if on cross-examination during Appellants’
presentation of evidence. Father stated he is currently a head shift leader at a Donato’s
Pizza. He and Mother are the biological parents of the Children. Father noted Mother
passed away in February, 2022, but added he and Mother had not lived together since
2018, or 2019. Father and Mother lost custody of the Children in early August, 2020. Both
Father and Mother were addicted to methamphetamines at the time. The juvenile court
found Father had sexually abused Child 1, and ordered Father to have no contact with
Child 1. The juvenile court granted Father supervised contact with Child 2 and 3.
{¶12} Father did not know Appellants’ address and did not know “there was a way
to get someone’s address.” Tr. at p. 51. Father also did not have Aunt’s phone number.
Father indicated he contacted Aunt through Job and Family Services when he had
supervised visitation with the Children. Although he asked Mother, while she was still
alive, and Bobbi Wallace, Mother’s mother, for Aunt’s phone number, both women
refused to provide it to him for fear Aunt would prevent them from seeing the Children.
He assumed neither Job and Family Services nor his attorney in the Juvenile Court Case
would give him Aunt’s phone number because the case was closed. Father could not
contact Appellants through social media as Aunt had blocked him. Father explained he
was unable to send cards, gifts, or letters to the Children because he did not have contact
information for Appellants. He did not have any way to contact Appellants until after the
filing of the petitions. Father acknowledged he had not had any contact with the Children Knox County, Case Nos. 24CA00014, 24CA00015, & 24CA00016 6
between March 9, 2022, and March 9, 2023. Father had not seen Child 1 since 2018, and
had not seen Child 2 and Child 3 since 2020. Counsel for the parties stipulated Father
paid child support.
{¶13} During examination by his counsel, Father stated he was never charged
with or convicted of any criminal offense related to the abuse of Child 1. Father continued
to deny he abused Child 1 despite the juvenile court’s finding. Father indicated he had
no information about the Children, including the names of their therapists and teachers,
where they attended school, and whether they played sports, until after the petitions were
filed. He explained he did not seek custody or visitation through the juvenile court because
he did not know those options were available. Father recalled, prior to Mother’s funeral,
Wallace messaged him to tell him Aunt did not want him to speak to or approach the
Children at the funeral. Father testified, after Aunt told Wallace Appellants planned to
adopt the Children, Wallace gave him Aunt’s phone number because Wallace feared
Appellants would take the Children away from her.
{¶14} Father testified he has been clean for five (5) years. He was in drug
treatment for 1 ½ - 2 years with Riverside Recovery. Father complied with all mental
health evaluations required in the Juvenile Court Case, but continued therapy was not
recommended.
{¶15} Uncle testified he and Aunt have been married for 28 years. The Children
have lived with Appellants since 2018. He described Aunt as a good mother. He noted
the Children and Appellants’ four biological children get along well. Uncle agreed with
the testimony of Aunt Father only attempted to communicate and/or visit with the Children
after Appellants filed the petitions. During his cross-examination, Uncle indicated he and Knox County, Case Nos. 24CA00014, 24CA00015, & 24CA00016 7
Aunt discussed whether Father should have contact with the Children and wanted any
ordered contact to be supervised.
{¶16} Appellants called family members to testify on their behalf. Each one stated
Appellants were good parents to the Children and provided the Children with a safe,
stable home. The family members had little to no contact with Father and any contact
occurred prior to the Juvenile Court Case. During her cross-examination, Appellants’
daughter-in-law noted she has heard a lot of negative comments about Father, including
from the Child 1. Appellants also called several individuals who have had worked with
the Children over the years, including a family advocate with Knox County Head Start,
Child 1’s second grade teacher, Child 1’s school counselor, Child 1’s intervention
specialist, and the Children’s pediatrician. Each witness spoke positively about
Appellants and the Children, and expressed no concerns about the care Appellants
provide to the Children.
{¶17} Bobbi Wallace, Mother’s mother, Aunt’s sister, and the Children’s maternal
grandmother, testified on Father’s behalf. Wallace stated she had not seen the Children
in seven (7) months, but previously had the Children every other weekend as well as a
week in May when Appellants were away. Wallace explained the disruption in visitation
happened because she had contact with Father.
{¶18} Wallace recalled, when Mother was still alive, Aunt made it difficult for
Mother to see the Children and became angry at Mother and limited her visitation with the
Children because she talked to Father. Wallace described how Mother would be upset
when she returned from her visits with the Children because Aunt belittled her. Wallace
heard Aunt and her family speak negatively about Father. Aunt told Wallace she would Knox County, Case Nos. 24CA00014, 24CA00015, & 24CA00016 8
be angry if Father was granted visitation and did not want Father in the Children’s lives at
all.
{¶19} Prior to Mother’s funeral, Aunt texted Wallace and directed her to contact
Father and instruct him not to approach or talk to the Children at the service. Aunt would
not contact Father herself. Wallace repeatedly texted Aunt about seeing the Children and
asked her to tell the Children she (Wallace) loved and missed them. Unbeknownst to
Wallace, Aunt had blocked Wallace on her phone because Wallace had contact with
Father. Wallace stated, when Aunt finally texted her back, Aunt informed Wallace “she
was going to block me because she didn’t want to hear my falseness, that I did not love
[the Children] or miss them, that if I loved them I would do anything and everything I could
to protect them.” Tr. at p. 140.
{¶20} Wallace acknowledged Father had asked her for Aunt’s phone number, but
stated she refused to give it to him because she feared Aunt would prevent her from
seeing the Children. In March, 2023, Aunt informed Wallace she and Uncle had legally
adopted the Children and did not need Father’s consent to do so. Thereafter, Wallace
gave Father Aunt’s phone number because she feared Appellants would move to
Michigan and she would never see the Children again. Wallace noted Father had never
asked for Appellants’ address, but had previously asked for their phone number, which
she did not provide until March, 2023.
{¶21} Bria Palms (a.k.a. Bria Hunter), Uncle’s sister, testified she has known the
Children since they were placed with Appellants. Although Bria had not met Father prior
to the hearing, Aunt discussed Father with her. Bria recalled Aunt used vulgar and
derogatory language to describe Father, calling him “a piece of crap” and “a child Knox County, Case Nos. 24CA00014, 24CA00015, & 24CA00016 9
molester.” Tr. at p. 147. Bria indicated Aunt blocked Father on social media and
repeatedly stated she did not want Father or Mother to have anything to do with the
Children. Prior to Mother’s death, Aunt made it very difficult for Mother to visit the
Children, claiming Mother was still on drugs. Bria described Aunt as a liar and a
narcissist, who was abusive towards the Children. Bria added she observed Aunt verbally
abuse Child 1, calling Child 1 fat and stupid, and “flicked [Child 1] upside of the head.” Tr.
at p. 150.
{¶22} After hearing all the evidence, the trial court took the matter under
advisement. Via Judgment Entry filed April 26, 2024, the trial court denied Appellants’
petitions, concluding Father’s consent was required. The trial court found, although Father
failed to have contact with the Children during the statutory period, his failure was
justifiable because Aunt “significantly interfered with and discouraged [Father] contacting
the [C]hildren.” April 26, 2024 Judgment Entry at p. 6, unpaginated. The trial court further
found the no-contact order issued by the juvenile court constituted justifiable cause for
Father’s failure to contact Child 1.
{¶23} It is from this judgment entry Appellants appeal, raising the following
assignments of error:
I. THE TRIAL COURT ABUSED ITS DISCRETION BY FINDING
THAT THE BIOLOGICAL FATHER’S CONSENT WAS NECESSARY,
AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
II. THE TRIAL COURT ERRED BY NOT ADDRESSING THE BEST
INTERESTS OF THE CHILDREN. Knox County, Case Nos. 24CA00014, 24CA00015, & 24CA00016 10
Standard of Review
{¶24} The right of a natural parent to the care and custody of his or her children
is one of the most fundamental in the law and, as a fundamental liberty interest, it cannot
be easily extinguished. (Citation omitted.) In re Adoption of M.T.R., 2022-Ohio-2473, ¶19.
“Adoption permanently terminates the parental rights of the natural parent” and, as such,
“Ohio law requires parental consent to an adoption unless a specific statutory exception
exists.” (Citation omitted.) Id.
{¶25} An exemption to parental consent exists if a court finds, after notice and a
hearing, in the year preceding the adoption petition, the parent failed without justifiable
cause to have more than de minimis contact with the child or the parent failed to provide
maintenance and support for the child. R.C. 3107.07(A); In re Adoption of A.O.P., 2022-
Ohio-2532, ¶ 14 (12th Dist.). This exemption involves a two-step analysis: (1) whether the
parent failed to engage in more than de minimis contact with the child or failed to provide
for the maintenance and support to the child in the year immediately preceding the filing
of the adoption petition, and (2) whether the parent had justifiable cause for the failure to
contact the child or provide maintenance and support for the child. In re Adoption of
C.E.S., 2020-Ohio-6902, ¶ 21 (12th Dist.). Because the first element is written in the
alternative, the probate court need only find either a lack of contact with the minor or a
failure to provide maintenance and support to the minor. In re Adoption of O.J.B., 2020-
Ohio-4184, ¶ 9 (12th Dist.).
{¶26} The petitioner in an adoption proceeding bears the burden of proving the
elements of a consent exemption by clear and convincing evidence. In re Adoption of
S.A.N., 2019-Ohio-3055, ¶ 8 (12th Dist.). After the petitioner has established a parent's Knox County, Case Nos. 24CA00014, 24CA00015, & 24CA00016 11
lack of contact or support, the parent bears the burden of going forward with evidence to
show a facially justifiable cause for the failure, although, the burden of proof remains on
the petitioner. In re Adoption of O.J.B., 2020-Ohio-4184, ¶ 10 (12th Dist.).
{¶27} When reviewing a probate court's decision on parental consent, an
appellate court applies two different standards of review. Id. at ¶ 11. An abuse of
discretion standard of review applies to the probate court's decision as to whether a
parent's contact with his or her child, or provision of maintenance and support for the
child, met the statutory standard. In re Adoption of C.E.S. at ¶ 22. However, the probate
court's decision on whether a parent had justifiable cause for the failure to contact or
provide maintenance and support to the child is reviewed under a manifest weight of the
evidence standard. In re Adoption of Masa, 23 Ohio St.3d 163, paragraph two of syllabus
(1986).
{¶28} When conducting a manifest weight review, an 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 there must be
a reversal of the judgment. In re Adoption of E.G.C., 2022-Ohio-2381, ¶ 16 (12th Dist.). In
applying this standard, however, this court must be mindful the probate court “is in the
best position to observe the demeanor of the parties and assess the credibility and
accuracy of the testimony.” In re Adoption of C.A.L., 2015-Ohio-2014, ¶ 29 (12th Dist.). Knox County, Case Nos. 24CA00014, 24CA00015, & 24CA00016 12
Analysis
I
{¶29} In their first assignment of error, Appellants argue the probate court abused
its discretion in denying their petition for adoption as the court’s finding Father had
justifiable cause for his lack of contact with the Children in the one year preceding the
adoption petition was against the manifest weight of the evidence. We disagree.
{¶30} The evidence was undisputed Father failed to communicate in any manner
with the Children since the Juvenile Court Case concluded in August, 2020. However, as
mentioned above, even if a parent has completely failed to communicate with his child
during the one-year statutory period, his consent will still be required if there is justifiable
cause for the failure. In re Adoption of Holcomb, 18 Ohio St.3d 361 (1985); In re M.G.B.-
E., 2019-Ohio-753, ¶ 12 (12th Dist.).
{¶31} Upon our review of the record, we find there is competent and credible
evidence to support the trial court's determination Father had justifiable cause for his
failure to contact the Children. The evidence presented at the hearing established
Appellants, particularly Aunt, actively prevented Father from having even minimal contact
with the Children. Aunt blocked Father on social media. She did not notify Father of
Appellants’ changes of address in 2021, and again in 2022. Father sought information
about the Children and requested Appellants’ contact information from Wallace and
Mother. However, because Aunt threatened to withhold contact with the Children from
Wallace and Mother if they even spoke to Father, neither woman would disclose the
information. Prior to Mother’s funeral, Aunt told Wallace to contact Father and instruct him Knox County, Case Nos. 24CA00014, 24CA00015, & 24CA00016 13
not to speak with or approach the Children at the service. Aunt also told family members
she did not want Father to have any involvement in the Children’s lives.
{¶32} Typically, a noncustodial parent has justifiable cause for failing to
communicate when the person with custody of the child significantly interferes with or
significantly discourages communication. In re Adoption of M.G.B.-E., 2018-Ohio-1787, ¶
39. A probate court may examine any preceding events that may have a bearing on the
parent's failure to communicate with the child, and the court is not restricted to focusing
solely on events occurring during the statutory one-year period. (Citation omitted.) In re
Adoption of B.T.R., 2020-Ohio-2685, ¶ 23 (5th Dist.).
{¶33} The trial court also found Father’s lack of contact with Child 1 was justifiable
because he was acting in compliance with the no contact order issued in the Juvenile
Court Case. We agree. 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 re Adoption of A.K., 2022-Ohio-350.
{¶34} The trial court heard the evidence, and was in the best position to ascertain
the veracity of the witnesses. Given the testimony and evidence presented, we cannot
find the trial court abused its discretion in denying Appellants’ petitions. We further find
the trial court’s finding Father’s consent was required as he had justifiable cause for his
lack of contact with the Children was not against the manifest weight of the evidence.
{¶35} Appellants’ first assignment of error is overruled.
II
{¶36} In their second assignment of error, Appellants contend the trial court erred
in failing to address and analyze the best interest factors. We disagree. Knox County, Case Nos. 24CA00014, 24CA00015, & 24CA00016 14
{¶37} Under Ohio law, an adoption involves a two-step process: a consent phase
and a best interest phase. R.C. 3107.14(C); In re Adoption of Baby Boy Brooks, 136 Ohio
App.3d 824, 832 (10th Dist. 2000). While a court is required to determine what is in the
best interest of the child, the threshold issue in an adoption case is whether parental
consent is required. In re Adoption of Kuhlmann, 99 Ohio App.3d 44, 51 (1st Dist.1994).
“Parental consent to an adoption, if required, is a jurisdictional prerequisite.” (Citations
omitted.) In re Adoption of Baby Boy Brooks, at 832. “Thus, upon finding that parental
consent is required and denied, a probate court cannot then consider the best interest of
the child because the court lacks jurisdiction to proceed.” Id.
{¶38} Because the trial court found Father’s consent was required, we find the
trial court was not required to make a best interest determination and the trial court did
not err in failing to do so.
{¶39} Appellants’ second assignment of error is overruled.
{¶40} The judgment of the Knox County Court of Common Pleas, Probate
Division, is affirmed.
By: Hoffman, P.J. Wise, J. and Baldwin, J. concur