[Cite as In re Adoption of A.V.H., 2019-Ohio-369.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )
IN RE: ADOPTION OF A.V.H. C.A. No. 29103
APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. 2017 AD 19
DECISION AND JOURNAL ENTRY
Dated: February 6, 2019
CALLAHAN, Judge.
{¶1} Appellant, Matthew W. (“Father”), appeals from a judgment of the Summit
County Court of Common Pleas, Probate Division, that held that his consent was not required for
the adoption of his minor child by the child’s stepfather, Chad H. (“Stepfather”). Because
Stepfather did not present clear and convincing evidence that Father failed to provide
maintenance or support for the child during the one-year look-back period, this Court reverses
and remands.
I.
{¶2} Father and Sarah H. (“Mother”) are the biological parents of A.V.H., born
October 23, 2013. Mother and Father divorced during September 2015, and Mother was
awarded custody of the child. Father was granted a standard order of companionship time with
the child and was ordered to pay child support of $50 per month at that time. The parties’ 2
divorce decree further provided that if Father was “unavailable or absent from the Akron area,
his parents shall have companionship time with [A.V.H.] in his place.”
{¶3} Father exercised his companionship time with A.V.H. after the divorce, but two
months later, he began serving a three-year term of incarceration on a felony conviction. The
paternal grandparents (“Grandparents”) took over his companionship time from that time
forward.
{¶4} Mother married Stepfather on May 21, 2016. On February 14, 2017, Stepfather
filed a petition to adopt A.V.H. He attached Mother’s signed consent to the adoption and alleged
that Father’s consent was not required because Father had failed without justifiable cause to
communicate with or provide for the maintenance and support of the child for at least one year
immediately preceding the filing of the petition. See R.C. 3107.07(A).
{¶5} The case proceeded to a hearing before a magistrate on whether Father’s consent
to the adoption was required. Because the trial court ultimately focused only on whether Father
had failed to provide for the maintenance and support of A.V.H. without justifiable cause, this
Court will confine its review to that issue. At the time of the hearing, Father was still
incarcerated, but participated in the hearing via videoconference.
{¶6} The evidence at the hearing revealed that Father earned $12 per month at the
prison. The Child Support Enforcement Agency (“CSEA”) was withdrawing three dollars each
month from Father’s prison account, but, for reasons not explained on the record, it was
deducting child support for Father’s child by a different mother, but not for A.V.H. CSEA had
intercepted $12.23 from Father’s income tax refund and sent it to Mother as child support for
A.V.H. No one disputed at the hearing that Father himself had provided A.V.H. with only one 3
payment of $12.23 during the relevant one-year period. Stepfather and the trial court focused on
that dollar amount as the only maintenance and support that Father had provided to A.V.H.
{¶7} There was also undisputed evidence, however, that A.V.H. visited at
Grandparents’ home on a regular basis and, while she was there, Grandparents provided for all of
her needs. Stepfather’s evidence did not address the care provided by Grandparents as part of
the maintenance and support provided by Father. Instead, Stepfather focused his evidence on
whether Father had justifiable cause for paying only $12.23 in support. He presented evidence
that Grandparents had made regular deposits to Father’s prison account, which averaged over
$300 per month. He argued that, for that reason, Father lacked justifiable cause for failing to pay
more than $12.23 in child support.
{¶8} Following the hearing, the magistrate decided that Father’s consent to the
adoption was not required because, during the one-year period immediately preceding the filing
of the petition, Father had failed, without justifiable cause, to provide for maintenance or support
of A.V.H. The trial court adopted the magistrate’s decision.
{¶9} Father filed timely objections and raised numerous arguments, including that he
had supported A.V.H. through the maintenance and support provided by Grandparents during
their regular companionship time with the child. The trial court did not explicitly address that
argument, but instead focused only on the $12.23 tax intercept. The trial court overruled
Father’s objections and held that Father’s consent to the adoption was not required because of his
unjustifiable failure to pay maintenance or support for A.V.H. during the relevant one-year
period. Father appeals and raises one assignment of error. 4
II.
ASSIGNMENT OF ERROR
THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR IN DETERMINING THAT FATHER’S CONSENT WAS NOT NECESSARY IN ORDER FOR A STEPPARENT ADOPTION TO TAKE PLACE.
{¶10} Father’s sole assignment of error is that the trial court committed reversible error
in concluding that his consent to the adoption of A.V.H. was not required under R.C.
3107.07(A). R.C. 3107.06 generally requires the written consent of the natural parents of a
minor child who is the subject of a petition to adopt. However, consent is not required under
R.C. 3107.07(A), which provides that a parent’s consent to adoption is not required if the trial
court 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 * * * the filing of the adoption petition[.]”
{¶11} The Ohio Supreme Court has repeatedly emphasized that, in construing the
language of R.C. 3107.07:
Our analysis must begin with the recognition that the right of a natural parent to the care and custody of his children is one of the most precious and fundamental in law. Adoption terminates those fundamental rights. For this reason, we have held that “* * * [a]ny exception to the requirement of parental consent [to adoption] must be strictly construed so as to protect the right of natural parents to raise and nurture their children.”
(Internal citations omitted.) In re Adoption of Masa, 23 Ohio St.3d 163, 164 (1986). See also In
re Adoption of P.L.H., 151 Ohio St.3d 554, 2017-Ohio-5824, ¶ 23.
{¶12} Consequently, Stepfather had the burden to prove, by clear and convincing
evidence both (1) that Father had failed to provide maintenance or support to the child for the
requisite one-year look-back period, and (2) that his failure was without justifiable cause. In re 5
Adoption of Masa at paragraph one of the syllabus. Clear and convincing evidence is that which
will “‘produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to
be established.’” In re Adoption of Holcomb, 18 Ohio St.3d 361, 368 (1985), quoting Cross v.
Ledford, 161 Ohio St. 469 (1954), paragraph three of the syllabus.
{¶13} As the Supreme Court has emphasized, the probate court must conduct a two-step
inquiry. In re Adoption of M.B., 131 Ohio St.3d 186, 2012-Ohio-236, ¶ 23. The first step of this
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[Cite as In re Adoption of A.V.H., 2019-Ohio-369.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )
IN RE: ADOPTION OF A.V.H. C.A. No. 29103
APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. 2017 AD 19
DECISION AND JOURNAL ENTRY
Dated: February 6, 2019
CALLAHAN, Judge.
{¶1} Appellant, Matthew W. (“Father”), appeals from a judgment of the Summit
County Court of Common Pleas, Probate Division, that held that his consent was not required for
the adoption of his minor child by the child’s stepfather, Chad H. (“Stepfather”). Because
Stepfather did not present clear and convincing evidence that Father failed to provide
maintenance or support for the child during the one-year look-back period, this Court reverses
and remands.
I.
{¶2} Father and Sarah H. (“Mother”) are the biological parents of A.V.H., born
October 23, 2013. Mother and Father divorced during September 2015, and Mother was
awarded custody of the child. Father was granted a standard order of companionship time with
the child and was ordered to pay child support of $50 per month at that time. The parties’ 2
divorce decree further provided that if Father was “unavailable or absent from the Akron area,
his parents shall have companionship time with [A.V.H.] in his place.”
{¶3} Father exercised his companionship time with A.V.H. after the divorce, but two
months later, he began serving a three-year term of incarceration on a felony conviction. The
paternal grandparents (“Grandparents”) took over his companionship time from that time
forward.
{¶4} Mother married Stepfather on May 21, 2016. On February 14, 2017, Stepfather
filed a petition to adopt A.V.H. He attached Mother’s signed consent to the adoption and alleged
that Father’s consent was not required because Father had failed without justifiable cause to
communicate with or provide for the maintenance and support of the child for at least one year
immediately preceding the filing of the petition. See R.C. 3107.07(A).
{¶5} The case proceeded to a hearing before a magistrate on whether Father’s consent
to the adoption was required. Because the trial court ultimately focused only on whether Father
had failed to provide for the maintenance and support of A.V.H. without justifiable cause, this
Court will confine its review to that issue. At the time of the hearing, Father was still
incarcerated, but participated in the hearing via videoconference.
{¶6} The evidence at the hearing revealed that Father earned $12 per month at the
prison. The Child Support Enforcement Agency (“CSEA”) was withdrawing three dollars each
month from Father’s prison account, but, for reasons not explained on the record, it was
deducting child support for Father’s child by a different mother, but not for A.V.H. CSEA had
intercepted $12.23 from Father’s income tax refund and sent it to Mother as child support for
A.V.H. No one disputed at the hearing that Father himself had provided A.V.H. with only one 3
payment of $12.23 during the relevant one-year period. Stepfather and the trial court focused on
that dollar amount as the only maintenance and support that Father had provided to A.V.H.
{¶7} There was also undisputed evidence, however, that A.V.H. visited at
Grandparents’ home on a regular basis and, while she was there, Grandparents provided for all of
her needs. Stepfather’s evidence did not address the care provided by Grandparents as part of
the maintenance and support provided by Father. Instead, Stepfather focused his evidence on
whether Father had justifiable cause for paying only $12.23 in support. He presented evidence
that Grandparents had made regular deposits to Father’s prison account, which averaged over
$300 per month. He argued that, for that reason, Father lacked justifiable cause for failing to pay
more than $12.23 in child support.
{¶8} Following the hearing, the magistrate decided that Father’s consent to the
adoption was not required because, during the one-year period immediately preceding the filing
of the petition, Father had failed, without justifiable cause, to provide for maintenance or support
of A.V.H. The trial court adopted the magistrate’s decision.
{¶9} Father filed timely objections and raised numerous arguments, including that he
had supported A.V.H. through the maintenance and support provided by Grandparents during
their regular companionship time with the child. The trial court did not explicitly address that
argument, but instead focused only on the $12.23 tax intercept. The trial court overruled
Father’s objections and held that Father’s consent to the adoption was not required because of his
unjustifiable failure to pay maintenance or support for A.V.H. during the relevant one-year
period. Father appeals and raises one assignment of error. 4
II.
ASSIGNMENT OF ERROR
THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR IN DETERMINING THAT FATHER’S CONSENT WAS NOT NECESSARY IN ORDER FOR A STEPPARENT ADOPTION TO TAKE PLACE.
{¶10} Father’s sole assignment of error is that the trial court committed reversible error
in concluding that his consent to the adoption of A.V.H. was not required under R.C.
3107.07(A). R.C. 3107.06 generally requires the written consent of the natural parents of a
minor child who is the subject of a petition to adopt. However, consent is not required under
R.C. 3107.07(A), which provides that a parent’s consent to adoption is not required if the trial
court 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 * * * the filing of the adoption petition[.]”
{¶11} The Ohio Supreme Court has repeatedly emphasized that, in construing the
language of R.C. 3107.07:
Our analysis must begin with the recognition that the right of a natural parent to the care and custody of his children is one of the most precious and fundamental in law. Adoption terminates those fundamental rights. For this reason, we have held that “* * * [a]ny exception to the requirement of parental consent [to adoption] must be strictly construed so as to protect the right of natural parents to raise and nurture their children.”
(Internal citations omitted.) In re Adoption of Masa, 23 Ohio St.3d 163, 164 (1986). See also In
re Adoption of P.L.H., 151 Ohio St.3d 554, 2017-Ohio-5824, ¶ 23.
{¶12} Consequently, Stepfather had the burden to prove, by clear and convincing
evidence both (1) that Father had failed to provide maintenance or support to the child for the
requisite one-year look-back period, and (2) that his failure was without justifiable cause. In re 5
Adoption of Masa at paragraph one of the syllabus. Clear and convincing evidence is that which
will “‘produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to
be established.’” In re Adoption of Holcomb, 18 Ohio St.3d 361, 368 (1985), quoting Cross v.
Ledford, 161 Ohio St. 469 (1954), paragraph three of the syllabus.
{¶13} As the Supreme Court has emphasized, the probate court must conduct a two-step
inquiry. In re Adoption of M.B., 131 Ohio St.3d 186, 2012-Ohio-236, ¶ 23. The first step of this
inquiry was for the trial court to “determine if a parent made a financial contribution that
comports with the requirements of R.C. 3107.07(A) to contribute maintenance and support[.]”
Id. Only after the trial court finds clear and convincing evidence of a lack of sufficient
maintenance and support does it go to the second step of the test to determine whether the parent
had justifiable cause for his failure to pay. Id.
{¶14} This Court will confine its review to the first step of the inquiry because it is
dispositive. It was within the trial court’s discretion to determine whether Father had provided
sufficient maintenance and support to preserve his parental right to withhold consent to the
adoption. Id. at ¶ 25. The trial court did not have the discretion, however, to ignore relevant
evidence that was presented for its consideration at the hearing. See, e.g., In re A.J.S., 120 Ohio
St.3d 185, 2008-Ohio-5307, ¶ 57.
{¶15} Because R.C. 3107.07(A) does not define “maintenance” or “support” we
construe those terms according to their plain and ordinary meanings. See R.C. 1.42.
“‘Maintenance’” is defined as “‘[f]inancial support given by one person to another[,]’” and
“‘support’” as “‘[s]ustenance or maintenance; esp., articles such as food and clothing that allow
one to live in the degree of comfort to which one is accustomed.’” In re Adoption of M.B. at ¶
20, citing Black's Law Dictionary 1039 (9th Ed.2009). 6
{¶16} Several appellate districts have held that a non-custodial parent who regularly
visits with the child weekly or biweekly and provides “food, shelter and other necessities such as
clothing, diapers or shoes for the child” has supplied sufficient maintenance and support during
the one-year period to avoid forfeiture of his or her right to consent to the adoption under R.C.
3107.07(A). See, e.g., In re Adoption of D.J.S., 5th Dist. Tuscarawas No. 2017 AP 08 0023,
2017-Ohio-8567, ¶ 17-19 (citing cases from the Third, Fourth, and Sixth Appellate Districts).
{¶17} No one disputed that Father himself had provided only $12.23 in child support
paid directly to Mother during the relevant one-year period. The trial court ended its
maintenance and support inquiry there, however, and moved to the second step of the inquiry.
Prior to the second step of the inquiry, however, the trial court was required to fully consider the
evidence before it about whether Father had sufficiently provided for the maintenance and
support of A.V.H.
{¶18} In addition to the $12.23 child support payment, the trial court had evidence
before it that Grandparents, on behalf of Father, had taken over Father’s companionship time and
provided for all of the child’s needs during her regular companionship time at their home. Father
pointed to that evidence in his objections to the magistrate’s decision and emphasized that the
burden to prove a lack of support was on Stepfather, yet the trial court failed to explicitly
consider that evidence in overruling Father’s objections.
{¶19} After Father was incarcerated, Grandparents stepped into Father’s shoes to
exercise his companionship time, as set forth in the divorce decree. A.V.H. stayed at their home
on a regular basis and, while she was there, Grandparents provided her with food, clothing, toys,
entertainment, child care, and met all of her other needs. From the beginning of the look-back
period on February 14, 2016, until May 2016, A.V.H. spent every weekend from Sunday 7
morning until Monday evening and all day on Wednesdays, from 7 a.m. to 7 p.m., with
Grandparents. From May 2016, through the remainder of the one-year period, A.V.H. was cared
for by Grandparents every other Saturday morning through Sunday evening and for 10 hours
every other Wednesday. Grandmother further testified that both parents worked on Wednesdays
while Grandparents cared for the child for the entire day.
{¶20} During the one-year look-back period, young A.V.H. had spent at least 93 days
with Grandparents, during which they fed, bathed, and clothed her; supervised, entertained, and
cared for her; and met all of her other needs. Although no financial value was placed on the
support provided by Grandparents, it was Stepfather’s burden to prove, by clear and convincing
evidence, that their support was not sufficient to defeat the operation of R.C. 3107.07(A). The
trial court erred by failing to consider the support provided by Grandparents and by not requiring
Stepfather to prove, by clear and convincing evidence, that this support was not sufficient to
preserve Father’s right to withhold consent to the adoption of A.V.H. Father’s assignment of
error is sustained for that reason.
III.
{¶21} Father’s assignment of error is sustained insofar as it alleges that Stepfather failed
to prove that Father failed to provide for the maintenance and support of A.V.H. during the
relevant one-year period. The judgment of the Summit County Court of Common Pleas, Probate
Division, is reversed and the cause remanded for further proceedings consistent with this
opinion.
Judgment reversed and cause remanded. 8
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellee.
LYNNE S. CALLAHAN FOR THE COURT
CARR, P. J. HENSAL, J. CONCUR.
APPEARANCES:
DENISE E. FERGUSON, Attorney at Law, for Appellant.
CORINNE HOOVER SIX and JACK HINNEBERG, Attorneys at Law, for Appellee.