[Cite as In re Adoption of A.S., 2017-Ohio-2814.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT FULTON COUNTY
In re Adoption of A.S. Court of Appeals No. F-16-008
Trial Court No. 20164013
DECISION AND JUDGMENT
Decided: May 12, 2017
*****
Ian A. Weber, for appellant.
Gary L. Smith, for appellees.
SINGER, J.
{¶ 1} Appellant, C.P., appeals the September 28, 2016 judgment of the Fulton
County Court of Common Pleas, Probate Division, in which the court found his consent
was not required for the adoption of A.S., his daughter. Finding no error, we affirm. Assignments of Error
{¶ 2} Appellant sets forth the following assignments of error:
1. The trial court abused its discretion by ruling that [C.P.], who is
presumed to be the biological father by acknowledgement of paternity has
failed without justifiable cause to provide more than de minimis contact
with the minor child, [A.S.] pursuant to R.C. 3107.07, for a period of at
least one year immediately preceding the filing of the Adoption when the
biological mother intentionally lied to the presumed father that he was not
the father as the result of an at home DNA test and whether this was a
justifiable reason for the presumed father to stop consistent contact with the
minor child.
2. The trial court abused its discretion by denying the presumed
father-appellant’s motion for D.N.A. testing to determine if he is or is not
the biological father of the minor child.
3. The trial court abused its discretion in determining that although
the biological mother’s conduct was reprehensible in lying to [C.P.] about
the DNA test results it was justified under R.C. 3107.07(A) when in fact the
biological mother unduly influenced and defrauded [C.P.] by repeatedly
stating he was not the father through an at home DNA test and any lack of
contact was a direct result of her conduct or statements regarding the test.
2. Facts
{¶ 3} On July 21, 2016, appellees, T.S. and R.S., petitioned the trial court for the
adoption of their granddaughter, A.S.
{¶ 4} A.S. was born October 2014. Appellees are the maternal grandparents of
A.S., and their daughter, R.S., is the biological mother of A.S (“mother”).
{¶ 5} On July 21, 2016, the mother voluntarily consented to and waived notice to
the adoption and hearing of A.S. A hearing was set for September 19, 2016. Notice of
this hearing was sent to appellant at the Lebanon Correctional Institute, where he was
incarcerated as of September 2015.
{¶ 6} The notice to appellant stated that appellees were alleging that his consent
was not required due to his unjustifiable failure to provide more than de minimis contact
from July 21, 2015, to July 21, 2016, which was for one year preceding the petition for
adoption. The notice further informed appellant he would lose his parental rights,
“including the right to contact the minor” and the “legal relationship” between him and
the minor, “so that the minor thereafter is a stranger to [him] and the minor’s former
relatives for all purposes.” Appellant was given 14 days beyond service to file objection.
{¶ 7} The record reflects that service was perfected, at the Lebanon Correctional
Institute, on July 28, 2016. However, there is no evidence of when appellant received the
notification.
{¶ 8} Appellant filed his objection and notice of appearance on September 12,
2016, therein requesting a stay of the proceedings and a judicial determination of
3. paternity. On that same day, appellees responded to appellant’s requests arguing that
since he signed the child’s birth certificate and thereby affirmed he was the biological
father, any paternity issue was moot and, therefore, there was no justification for his one-
year failure to have contact with the child.
{¶ 9} Appellant then moved the court to appear by video or for a continuance to
arrange his appearance. The motion was denied because the court found the request
contrary to its policy of not transporting or allowing prisoners to testify in civil matters.
{¶ 10} The hearing was held on September 19, 2016. At the hearing and for
appellees, both appellees and their daughter (A.S.’s mother) testified. For appellant, his
mother, the presumed paternal grandmother, testified.
{¶ 11} First, appellee-grandmother testified how A.S. lived with them since she
was one week old, and that appellees had guardianship since January 2015. Appellee-
grandmother stated that, according to her recollection, appellant had not seen his daughter
since May 2015. She also said that, as far as she knew, he had not attempted to contact
his daughter.
{¶ 12} Then appellee-grandfather testified. He confirmed the facts his wife stated,
however, he stated that his knowledge of whether appellant had contacted or tried to
contact A.S. was limited. In specific, he stated appellant did not have his phone number
and, thus, would not have been able to contact A.S. through him anyway.
{¶ 13} Lastly, for appellees, A.S.’s biological mother testified. She spoke of her
and appellant’s relationship. She said they began dating around July 2012, and ended the
4. relationship in February 2015. She stated that around the time they ended it, she told
appellant he was not A.S.’s biological father. As a result, the couple decided to order an
at-home DNA test to settle the paternity issue.
{¶ 14} The mother testified that she lied to appellant about the DNA test results
and led him to believe that he was not A.S.’s biological father, as of April 2015. Her
primary rationale for the deception was that she feared for A.S.’s well-being and found
appellant to be a “dangerous person.”
{¶ 15} Despite the admitted deceit, the mother stated appellant often asked
whether he was the father. She also confirmed that he continuously asked about the
child’s well-being, and that she eliminated interaction between them because she could
not afford to accept collect calls from prison.
{¶ 16} She also testified that the presumed, paternal grandmother had not given up
on attempting to build or maintain a relationship with A.S., despite being lied to about the
at-home paternity test. For example, she stated that in September 2015, the paternal
grandmother wanted A.S. to visit appellant in prison for his birthday. The mother refused
the visitation and stated in her view a prison was not appropriate for an infant visit.
{¶ 17} After the mother’s testimony was complete, appellees concluded their
calling of witnesses. Then, on behalf of appellant, his mother was called to testify.
{¶ 18} The paternal grandmother clarified that appellant and A.S.’s mother were
engaged to marry. She also expressed how she and her son adored and still adore A.S.
She recalled receiving the first indication that A.S. may not have been her biological
5. granddaughter as early as March 2015. Her recollection was that, up until that point, she
and her son were heavily involved in A.S.’s life. She also stated she purchased blood
cord storage and funded the baby shower prior to A.S. being born.
{¶ 19} The paternal-grandmother, further, discussed the events of May 25, 2015,
which was the day appellees asserted was the last contact appellant had with A.S. She
said that she was present and recalls her son holding A.S. She confirmed that she and her
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[Cite as In re Adoption of A.S., 2017-Ohio-2814.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT FULTON COUNTY
In re Adoption of A.S. Court of Appeals No. F-16-008
Trial Court No. 20164013
DECISION AND JUDGMENT
Decided: May 12, 2017
*****
Ian A. Weber, for appellant.
Gary L. Smith, for appellees.
SINGER, J.
{¶ 1} Appellant, C.P., appeals the September 28, 2016 judgment of the Fulton
County Court of Common Pleas, Probate Division, in which the court found his consent
was not required for the adoption of A.S., his daughter. Finding no error, we affirm. Assignments of Error
{¶ 2} Appellant sets forth the following assignments of error:
1. The trial court abused its discretion by ruling that [C.P.], who is
presumed to be the biological father by acknowledgement of paternity has
failed without justifiable cause to provide more than de minimis contact
with the minor child, [A.S.] pursuant to R.C. 3107.07, for a period of at
least one year immediately preceding the filing of the Adoption when the
biological mother intentionally lied to the presumed father that he was not
the father as the result of an at home DNA test and whether this was a
justifiable reason for the presumed father to stop consistent contact with the
minor child.
2. The trial court abused its discretion by denying the presumed
father-appellant’s motion for D.N.A. testing to determine if he is or is not
the biological father of the minor child.
3. The trial court abused its discretion in determining that although
the biological mother’s conduct was reprehensible in lying to [C.P.] about
the DNA test results it was justified under R.C. 3107.07(A) when in fact the
biological mother unduly influenced and defrauded [C.P.] by repeatedly
stating he was not the father through an at home DNA test and any lack of
contact was a direct result of her conduct or statements regarding the test.
2. Facts
{¶ 3} On July 21, 2016, appellees, T.S. and R.S., petitioned the trial court for the
adoption of their granddaughter, A.S.
{¶ 4} A.S. was born October 2014. Appellees are the maternal grandparents of
A.S., and their daughter, R.S., is the biological mother of A.S (“mother”).
{¶ 5} On July 21, 2016, the mother voluntarily consented to and waived notice to
the adoption and hearing of A.S. A hearing was set for September 19, 2016. Notice of
this hearing was sent to appellant at the Lebanon Correctional Institute, where he was
incarcerated as of September 2015.
{¶ 6} The notice to appellant stated that appellees were alleging that his consent
was not required due to his unjustifiable failure to provide more than de minimis contact
from July 21, 2015, to July 21, 2016, which was for one year preceding the petition for
adoption. The notice further informed appellant he would lose his parental rights,
“including the right to contact the minor” and the “legal relationship” between him and
the minor, “so that the minor thereafter is a stranger to [him] and the minor’s former
relatives for all purposes.” Appellant was given 14 days beyond service to file objection.
{¶ 7} The record reflects that service was perfected, at the Lebanon Correctional
Institute, on July 28, 2016. However, there is no evidence of when appellant received the
notification.
{¶ 8} Appellant filed his objection and notice of appearance on September 12,
2016, therein requesting a stay of the proceedings and a judicial determination of
3. paternity. On that same day, appellees responded to appellant’s requests arguing that
since he signed the child’s birth certificate and thereby affirmed he was the biological
father, any paternity issue was moot and, therefore, there was no justification for his one-
year failure to have contact with the child.
{¶ 9} Appellant then moved the court to appear by video or for a continuance to
arrange his appearance. The motion was denied because the court found the request
contrary to its policy of not transporting or allowing prisoners to testify in civil matters.
{¶ 10} The hearing was held on September 19, 2016. At the hearing and for
appellees, both appellees and their daughter (A.S.’s mother) testified. For appellant, his
mother, the presumed paternal grandmother, testified.
{¶ 11} First, appellee-grandmother testified how A.S. lived with them since she
was one week old, and that appellees had guardianship since January 2015. Appellee-
grandmother stated that, according to her recollection, appellant had not seen his daughter
since May 2015. She also said that, as far as she knew, he had not attempted to contact
his daughter.
{¶ 12} Then appellee-grandfather testified. He confirmed the facts his wife stated,
however, he stated that his knowledge of whether appellant had contacted or tried to
contact A.S. was limited. In specific, he stated appellant did not have his phone number
and, thus, would not have been able to contact A.S. through him anyway.
{¶ 13} Lastly, for appellees, A.S.’s biological mother testified. She spoke of her
and appellant’s relationship. She said they began dating around July 2012, and ended the
4. relationship in February 2015. She stated that around the time they ended it, she told
appellant he was not A.S.’s biological father. As a result, the couple decided to order an
at-home DNA test to settle the paternity issue.
{¶ 14} The mother testified that she lied to appellant about the DNA test results
and led him to believe that he was not A.S.’s biological father, as of April 2015. Her
primary rationale for the deception was that she feared for A.S.’s well-being and found
appellant to be a “dangerous person.”
{¶ 15} Despite the admitted deceit, the mother stated appellant often asked
whether he was the father. She also confirmed that he continuously asked about the
child’s well-being, and that she eliminated interaction between them because she could
not afford to accept collect calls from prison.
{¶ 16} She also testified that the presumed, paternal grandmother had not given up
on attempting to build or maintain a relationship with A.S., despite being lied to about the
at-home paternity test. For example, she stated that in September 2015, the paternal
grandmother wanted A.S. to visit appellant in prison for his birthday. The mother refused
the visitation and stated in her view a prison was not appropriate for an infant visit.
{¶ 17} After the mother’s testimony was complete, appellees concluded their
calling of witnesses. Then, on behalf of appellant, his mother was called to testify.
{¶ 18} The paternal grandmother clarified that appellant and A.S.’s mother were
engaged to marry. She also expressed how she and her son adored and still adore A.S.
She recalled receiving the first indication that A.S. may not have been her biological
5. granddaughter as early as March 2015. Her recollection was that, up until that point, she
and her son were heavily involved in A.S.’s life. She also stated she purchased blood
cord storage and funded the baby shower prior to A.S. being born.
{¶ 19} The paternal-grandmother, further, discussed the events of May 25, 2015,
which was the day appellees asserted was the last contact appellant had with A.S. She
said that she was present and recalls her son holding A.S. She confirmed that she and her
son, even up until the day of the September 19, 2016 hearing, were confused and unsure
whether A.S. was biologically related to them. Her testimony began to shape the
devastation she and her son experienced as a result of, first, feeling hoodwinked about
being biologically related to A.S., and then, being strung along for over a year about the
DNA test results.
{¶ 20} The paternal grandmother stressed the amount of times she and her son
inquired about the test results. She implied that not only A.S.’s mother but, also,
appellees, the maternal grandparents, were in on the deceit. She said the maternal
grandparents would block her calls and, she stated, the maternal grandmother even went
as far as suggesting A.S. call her “Auntie Michelle” one day in light of the child not
being her biological granddaughter. Lastly, the paternal grandmother confirmed for the
record that she and her son both wanted A.S. to visit prison, to no avail, on his birthday in
September 2015.
{¶ 21} The court rendered its judgment on September 28, 2016, finding appellant
acknowledged being the biological father and therefore had an obligation to provide at
6. least de minimis contact with his daughter. The court found he failed in this respect and
ordered that his consent was not required. The court also declared his request for judicial
determination of paternity moot.
{¶ 22} Appellant filed a timely notice of appeal from the September 28, 2016
judgment.
Standard of Review
{¶ 23} “The question of whether justifiable cause exists in a particular case is a
factual determination for the probate court and will not be disturbed upon appeal unless
such determination is unsupported by clear and convincing evidence.” In re Adoption of
Holcomb, 18 Ohio St.3d 361, 481 N.E.2d 613 (1985), paragraph three of syllabus.
Law and Analysis
{¶ 24} In appellant’s first and third assigned errors, he asserts that the trial court
erred in finding he unjustifiably failed to provide de minimis contact with A.S. when her
mother lied and said he was not the biological father. In the second assigned error,
appellant argues the court erred in denying his request for judicial determination of
paternity.
{¶ 25} Appellees respond that since appellant was already presumed to be the
father; and he, not the mother’s deception, was the proximate cause of his failing to
contact or maintain the child-parent relationship with A.S.
{¶ 26} Because we find establishing the parental relationship is necessary to
address the first and third assigned errors, we address the second assigned error first.
7. {¶ 27} R.C. 3107.07(A) provides that a parent’s consent to adoption is not
required if the parent fails without justifiable cause to communicate with the minor for a
period of at least one year immediately preceding the filing of the adoption petition. See
R.C. 3107.07(A); see also In re Adoption of T.M., 6th Dist. Sandusky No. S-09-010,
2009-Ohio-5194, ¶ 13. This exception must be strictly construed so as to protect the right
of natural parents to raise and nurture their children. In re Adoption of Schoeppner, 46
Ohio St.2d 21, 24, 345 N.E.2d 608 (1976).
{¶ 28} “The ability of a court to dispense with the consent requirement under R.C.
3107.07(A) is dependent upon the establishment of the parent-child relationship[.]” In re
Adoption of Sunderhaus, 63 Ohio St.3d 127, 130, 585 N.E.2d 418 (1992).
{¶ 29} R.C. 3111.02(A) states “[t]he parent and child relationship between a child
and the natural father of the child may be established by an acknowledgment of paternity
as provided in sections 3111.20 to 3111.35 of the Revised Code, and pursuant to sections
3111.01 to 3111.18 or 3111.38 to 3111.54 of the Revised Code.”
{¶ 30} R.C. 3111.03(A)(3) follows with “[a] man is presumed to be the natural
father of a child” if “[a]n acknowledgment of paternity has been filed pursuant to section
3111.23 * * *of the Revised Code and has not become final under former section
3111.211[.]”
{¶ 31} R.C. 3111.23 provides that the mother, potential father, a child support
enforcement agency, a local registrar of vital statistics, or a hospital staff person may, in
person or by mail, “file an acknowledgment of paternity with the office of child support
8. in the department of job and family services, acknowledging that the child is the child of
the man who signed the acknowledgment.”
{¶ 32} The presumption established under R.C. 3111.03(A)(3), as it relates to this
case, “can only be rebutted by clear and convincing evidence that includes the results of
genetic testing[.]” See R.C. 3111.03(B).
{¶ 33} Here, the record reveals that appellant acknowledged paternity of A.S. on
October 9, 2014, which was two days after her birth. This acknowledgement was
notarized and filed with job and family services. The filing occurred in time for the
Office of Vital Statistics to record appellant’s name as father on A.S.’s birth certificate.
See R.C. 3111.31. Based on the record, and because no evidence was offered to rebut the
presumption under R.C. 3111.03(B), we find the parent-child relationship was established
between appellant and A.S. Therefore, the trial court did not err in denying appellant’s
request for judicial determination of paternity. The second assigned error is found not
well-taken.
{¶ 34} Next we address whether the court erred in finding appellant failed without
justifiable cause to communicate with A.S. from July 21, 2015 to July 21, 2016. See R.C.
3107.07(A).
{¶ 35} The finding of the probate court in adoption proceedings “will not be
disturbed on appeal unless such determination is against the manifest weight of the
evidence.” In re Adoption of Bovett, 33 Ohio St.3d 102, 515 N.E.2d 919 (1987),
paragraph four of the syllabus. A determination is not against the manifest weight of the
9. evidence when it is supported by competent, credible evidence. C.E. Morris Co. v. Foley
Constr. Co., 54 Ohio St.2d 279, 376 N.E.2d 578 (1978), syllabus.
{¶ 36} Here, appellant has always been the presumed father of A.S., and therefore
appellant was entitled to seek his rights as an unmarried father of his child. However,
appellant took no legal action to secure his rights prior to the adoption. To the contrary,
from May 2015 forward appellant relied on A.S.’s mother’s misrepresentation that he
was not the biological father. We note that this deception was unconscionable, however,
we find the trial court’s rationale persuasive on addressing the impact of this deception in
its analysis. The court stated:
The court further finds that [A.S.’s mother]’s deceptive conduct of
informing [appellant] that he is not the biological father of the child when
she knew that the test results confirmed that he was the biological father
was reprehensible at best. However, since the results of this unofficial
genetic testing had no bearing on [appellant’s] status as a legal father of
A.S., coupled with the fact that [appellant] failed to seek an official
paternity test through the Fulton County CSEA, and further failed to
petition this Court for guaranteed minimum parenting rights, the Court
finds that [appellant’s] failure to provide more than de minimis contact with
A.S. for a period of time between July 21, 2015 through July 21, 2016 was
not justifiable.
10. {¶ 37} More specifically, appellant made no attempt to communicate with his
child, aside from requesting through his mother that the child visit him in prison. Prior to
being incarcerated, appellant did not contact his daughter after May 2015. Appellant was
then incarcerated in September 2015 and, thereafter, failed to contact A.S. See In re
Adoption of T.M., 6th Dist. Sandusky No. S-09-010, 2009-Ohio-5194, at ¶ 17 (“Ohio
courts have consistently held that incarceration alone is not a justifiable reason for failing
to communicate with one’s child.”). Appellant did not send a card, letter, gift, or
message, nor did he specifically call A.S. during the relevant time period.
{¶ 38} Based on the foregoing, we find that the trial court did not err in
determining that appellant’s failure to communicate with his child for one year prior to
the date the petition to adopt was filed was without justifiable cause. Therefore,
appellant’s consent to A.S.’s adoption was not required, and the first and third assigned
errors are found not well-taken.
Conclusion
{¶ 39} The judgment of the Fulton County Court of Common Pleas, Probate
Division, is affirmed. Appellant is ordered to pay the costs of this appeal pursuant to
App.R. 24.
Judgment affirmed.
11. In re Adoption of A.S. C.A. No. F-16-008
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. _______________________________ JUDGE Arlene Singer, J. _______________________________ Thomas J. Osowik, J. JUDGE CONCUR. _______________________________ JUDGE
12.