In re Adoption of B.A.H.

2012 Ohio 4441

• Court: Ohio Court of Appeals
• Decided: September 28, 2012
• Docket: 2012-CA-44
• Status: Published

Opinion

[Cite as In re Adoption of B.A.H., 2012-Ohio-4441.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT GREENE COUNTY

IN THE ADOPTION OF: : : Appellate Case No. 2012-CA-44 B.A.H. : : Trial Court No. 10167AD-12-11 : : (Civil Appeal from Common Pleas : (Court, Probate) : ...........

OPINION

Rendered on the 28th day of September, 2012.

...........

HARRY G. BEYOGLIDES,JR., Atty. Reg. #0018959, 130 West Second Street, Suite 1900, Dayton, Ohio 45402 Attorney for Appellant

MICHAEL R. VOORHEES, Atty. Reg. #0039293, Voorhees & Levy LLC, 11159 Kenwood Road, Cincinnati, Ohio 45242 Attorney for Appellee

.............

FAIN, J.

{¶ 1} Appellant B.N. appeals from an order of the Greene County Common Pleas

Court, Probate Division, finding that his consent is not necessary with regard to the adoption 2

of his minor child. B.N. contends that the trial court's order is against the manifest weight of

the evidence.

{¶ 2} We conclude that the record does not demonstrate by clear and convincing

evidence that B.N. willfully abandoned the birth mother during her pregnancy and up to the

time of her surrender of the baby, or that he willfully abandoned or failed to care for and

support the baby. Therefore, we conclude that the probate court erred in its determination

that B.N.’s consent was not required for adoption.

I. The Facts in Evidence

{¶ 3} A.W. was a minor, aged fifteen, when she became pregnant in 2011. She did

not inform her parents or the putative father, B.N., of the pregnancy until August. B.N. had

just turned eighteen years old at the time the pregnancy was discovered. On October 3, 2011,

A.W.’s parents sent her to live at Harbor House Maternity Home (“Harbor House”). The

child was born on December 1, 2011. A.W. and the child remained at Harbor House until

January 17, 2012, at which time A.W. executed a permanent surrender form giving the child to

an adoption agency, which then placed the child with appellees, S.H. and B.H.

{¶ 4} A.W. testified that she told B.N. that she was pregnant on August 3, 2011, and

that she told her parents a few weeks later. She testified that she and B.N. wanted to raise the

child. She testified that B.N. and his parents offered to let her live in their family residence.

She further testified that B.N. took her out at least twice a week prior to her move to Harbor

House. She testified that both B.N. and his parents offered to pay for her doctor visits during

this time, but that A.W.’s mother refused the offer. A.W. testified that her parents told her 3

she would no longer be able to see B.N. She testified that she had one doctor’s visit prior to

moving to Harbor House and that B.N. could not attend because he was attending high school

during that time and her parents did not want him to go. She testified that B.N. provided her

with maternity and baby clothes prior to leaving for Harbor House.

{¶ 5} A.W. testified that on October 3, 2011, her parents moved her to Harbor

House, which is approximately two and one-half hours away from her home. A.W. further

testified that B.N. did visit with her at least once while she was at Harbor House, and that he

tried to visit her more often, but the Harbor House staff cancelled some of his scheduled visits.

She also testified that B.N. did come visit the baby following the birth. A.W. testified that

when she was moved to Harbor House she was given the impression that staff prevented B.N.

from visiting her because he did not want to put the baby up for adoption. She further

testified that, at first, she contacted B.N. via her cellular telephone, but the Harbor House staff

found out and confiscated her cell phone. Finally, A.W. testified that she received personal

gifts, baby clothes, diapers, wipes and a toy from B.N. while at Harbor House.

{¶ 6} A.W.’s mother testified that she found out that her daughter was pregnant at

the end of August 2011. She testified that she spoke with B.N.’s parents and learned that they

did not want to place the baby for adoption. She testified that B.N. and his parents offered to

let A.W. reside with them, but she did not feel it was “moral” and refused the offer. She

further testified that she had over $500 in expenses associated with the birth and she requested

financial help from B.N.’s parents. She testified that the parents did not provide any financial

assistance, but she also testified that she never presented any bills to them for payment.

While she did testify that there was a $3,000 bill for Harbor House, she further testified that 4

the cost would be covered by the adoptive parents following the adoption. A.W.’s mother

further testified that she never spoke to B.N. about any financial issues and never presented

him with any bills. She testified that she failed to do so because B.N.’s mother had refused to

provide financial help.

{¶ 7} B.N. testified that he attended a birthing class with A.W. prior to her move to

Harbor House. He also testified that she asked him to go to her doctor’s appointment with

her. He testified that it was originally set for after school, but he received a text message

from A.W. while he was in school that she and her mom had gone during the school day. He

testified that he did not have a job at the time, because he was in high school. He testified

that after the birth of the child he was completing his senior year of high school through an

on-line program and he had a job at a local restaurant. He testified that prior to the move to

Harbor House, he took A.W. out to dinner or had her to dinner at his parents’ home, where he

resided, four to five times a week. B.N. testified that he was never asked to pay for any

expenses.

{¶ 8} B.N. testified that he visited Harbor House during the pregnancy. He testified

that one visit was solely with the facility staff. He testified that A.W. had been in contact

with him until Harbor House staff confiscated her cell phone, after which he was unable to ask

A.W. whether she was in need of any assistance. He testified that he had one visit with A.W.

and thereafter contacted the staff regarding setting up another visit, but was told that the staff

“didn’t think it was necessary because she knew – they both knew where I stood with the

adoption * * * that I didn’t want it.”

{¶ 9} B.N. testified that he was unable to visit with A.W. again, but was able to visit 5

the baby twice following the birth. He testified that he was notified of the birth, by e-mail

from Harbor House staff, almost two weeks after the birth. He testified that he registered on

the putative father registry immediately. B.N. testified that prior to his visits with the baby he

asked Harbor House staff what he could provide and was told to bring diapers. He testified

that on his first visit with the baby he brought diapers, wipes, an outfit, a pacifier and a toy.

He testified that on the second visit he brought the baby a shirt and a rattle. He testified that

he was not permitted to visit the baby after he refused to sign the consent to adopt.

{¶ 10} B.N.’s mother, N.N., testified that after learning of the birth she and her family

offered to have A.W. reside with them in their home. She testified that they had a separate

bedroom solely for A.W.’s use, but the offer was rejected. She testified that B.N. procured a

crib, stroller, baby clothes and some maternity items for A.W.’s use. She testified that B.N.

provided dinners for A.W. and he attended a childbirth class with her. N.N. testified that her

son asked Harbor House what he needed to provide for A.W. and was informed that she had

been given everything that was necessary. N.N. testified that after the birth, B.N. asked the

Harbor House staff what he needed to provide for the baby and was told only to bring some

diapers. She also testified that B.N. visited with A.W. both prior to the birth and then visited

with the baby. She further testified that she and A.W.’s mother talked about the pregnancy

expenses, but the mother “did not know what they were at the time and [she told me] that we

would talk about it later.” N.N. testified that she and A.W.’s mother never had another

conversation about expenses and to the best of her knowledge, no bills were ever presented to

B.N.

{¶ 11} K.E., a staff member at Harbor House, testified that the facility is a “Christian 6

maternity home for unwed pregnant teenage girls.” She testified that A.W. entered the

facility in October, delivered the baby in December and returned home approximately one

month later. K.E. testified that she met with B.N. and his parents to discuss “their intentions”

and to get to know the family. She testified that B.N. came to Harbor House for three “birth

father” counseling sessions. She testified that she informed him of the birth by e-mail and

B.N. visited with the baby twice. She testified that he did bring diapers, clothes, a toy and a

pacifier during the visits.

{¶ 12} K.E. testified that she talked with B.N. and his parents about the financial

aspects of raising a baby and the costs associated with that. She testified that she “indirectly”

informed them of the costs associated with Harbor House, but never asked them to cover any

of the expenses. She also testified that she told them Harbor House was providing the baby

with formula through the “WIC program” and that neither A.W. nor B.N. would be expected

to pay for that cost.

II. The Course of Proceedings

{¶ 13} S.H. and B.H. filed a petition for adoption with the Greene County Probate

Court. The petition alleged that B.N.’s consent, as the putative father, was not required

because he had failed to support the child and had abandoned A.W. during her pregnancy and

up to the time of her surrender of the child.

{¶ 14} Following the hearing, the probate court made the following findings of fact:

1. [B.N.] did file the “Putative Father Registry Application” timely.

2. The child was born on December 1, 2011, the permanent surrender was 7

signed on January 17, 2012, and the child was placed with the petitioners on that date.

3. [The mothers of the two parents] discussed medical expenses and

support as early as September, 2011. [ A.W.’s] parents were committed to

paying medical expenses and support for [A.W.] and her unborn child. [B.N.’s]

parents did not commit to same, and paid nothing. [B.N.] provided some used

maternity clothes, a few fast food meals, and one shirt for [A.W.] during her

pregnancy and up to the time she surrendered the child. [B.N.] provided no

financial support to [A.W.] during this period.

4. [B.N.] provided no financial support for the child from the date of his

conception through the present time. He did provide a few clothes, a pack of

drapers [sic] and a package of baby wipes.

5. [B.N.] was employed for a majority of the term of [A.W.’s]

pregnancy and the time before the child was placed with [S.H. and B.H.].

None of his income was given to [A.W.] or the caregivers of [the baby].

{¶ 15} The probate court went on to make the following conclusions of law:

1. [B.N.’s] responsibility to provide support for [A.W.] during her

pregnancy and up to the time of her signing the permanent surrender is a

statutory obligation under R.C. 3107.07(B)(2)(c).

2. [B.N.’s] responsibility to provide support for his minor child which

begins in utero and continues to this day is a statutory obligation under R.C.

3107.07(B)(2)(b).

3. By clear and convincing evidence the court finds that [B.N.] 8

willfully abandoned the birth mother during her pregnancy and up to the time

of her signing the permanent surrender of her child, and he failed to provide

support for his minor child, which begins in utero and continues to this day.

4. Therefore, the consent of [B.N.] is not required in this case.

{¶ 16} From the order determining that his consent is not required in order to proceed

with the adoption of the minor child, B.N. appeals.

III. The Adopting Parents Failed to Prove, by Clear and Convincing Evidence,

that the Putative Father Abandoned the Mother During the Pregnancy

or that He Abandoned, or Failed to Support, the Child

{¶ 17} The putative father’s sole assignment of error states as follows:

THE TRIAL COURT ERRED IN CONCLUDING THAT THERE

WAS CLEAR AND CONVINCING EVIDENCE THAT THE CONSENT OF

[B.N.] IS NOT REQUIRED UNDER R.C. § 3107.07(B).

{¶ 18} B.N. contends that the evidence does not support a finding that he willfully

abandoned A.W. during her pregnancy or that he abandoned or failed to support his minor

child.

{¶ 19} “A parent has a fundamental right to care for and have custody of his or her

child.” In re K. C., 2d Dist. Montgomery No. 22243, 2008-Ohio-2593, ¶ 10. Those rights

are terminated when a child is adopted. Thus, in Ohio, putative fathers must consent to any

adoption unless one of the exceptions set forth in R.C. 3107.07 applies. That statute

provides, in pertinent part, as follow: 9

Consent to adoption is not required of any of the following:

***

(B) The putative father of a minor if either of the following applies:

(1) The putative father fails to register as the minor's putative father

with the putative father registry established under section 3107.062 of the

Revised Code not later than thirty days after the minor's birth;

(2) The court finds, after proper service of notice and hearing, that any

of the following are the case:

(a) The putative father is not the father of the minor;

(b) The putative father has willfully abandoned or failed to care for and

support the minor;

(c) The putative father has willfully abandoned the mother of the minor

during her pregnancy and up to the time of her surrender of the minor, or the

minor's placement in the home of the petitioner, whichever occurs first.

{¶ 20} “Any 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.” In re Schoeppner, 46 Ohio St.2d 21, 24, 345 N.E.2d 608 (1976). Thus, in order

to determine that B.N.’s consent is not required, S.H. and B.H. must demonstrate by clear and

convincing evidence the existence of the exception to the consent requirement. In re

Adoption of Hart, 62 Ohio App.3d 544, 552, 577 N.E.2d 77 (6th Dist.1989). Clear and

convincing evidence requires a level of proof that produces a firm belief as to the facts sought

to be established. In re A. U., 2d Dist. Montgomery Nos. 20583, 20585, 2004–Ohio–6219, ¶ 10

17.

{¶ 21} Whether S.H. and B.H. have met this burden is a determination for the

probate court that will not be disturbed on appeal unless the decision is against the manifest

weight of the evidence. Id. Judgments supported by some competent, credible evidence

going to all the essential elements of the case will not be reversed as being against the

manifest weight of the evidence. C.E. Morris Co. v. Foley Constr. Co., 54 Ohio St.2d 279,

281, 376 N.E.2d 578 (1978). The weight to be given the evidence and the credibility of the

witnesses are primarily for the trier of fact. State v. DeHass, 10 Ohio St.2d 230, 12, 227

N.E.2d 212 (1967), paragraph one of the syllabus. “In determining whether a judgment is

against the manifest weight of the evidence, we 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 and an order for

a new trial.” Steagall v. Crossman, 2d Dist. Montgomery No. 20306, 2004-Ohio-4691, ¶ 29.

{¶ 22} The issue is whether there is clear and convincing evidence in this record that

B.N. willfully abandoned A.W. or the baby, or failed to care for or support the child. We

begin with the question of willful abandonment. R.C. 3107.07 does not define the term

“willfully.” “Willful” is defined as “proceeding from a conscious motion of the will;

voluntary. Intending the result which actually comes to pass; designed; intentional; not

accidental or involuntary.” Black’s Law Dictionary 824 (Abridged Fifth Ed. 1983).

{¶ 23} During the two months between learning of the pregnancy and A.W.’s move

to Harbor House, B.N. attempted to have A.W. move into his parent’s home. He also 11

provided meals for A.W. several times per week. He attended a child-birth class and

attempted to attend a doctor visit. He also procured numerous maternity and baby items

during this time. Contrary to the finding of the probate court, B.N. was not employed during

the majority of the pregnancy. Instead, he became employed after the child’s birth, when he

switched to an on-line program for the completion of his senior year of high school.

{¶ 24} The evidence demonstrates that during the approximately two and one-half

months following A.W.’s move to Harbor House, B.N. attended several sessions with the

staff and visited once with A.W. The evidence also establishes that he attempted to initiate

more visits, but was either rebuffed by Harbor House staff or had his scheduled visits

cancelled. Once he was informed of the child’s birth, B.N. initiated two visits with the baby

prior to the surrender. At no time did B.N. agree to the adoption.

{¶ 25} Based upon this record it is clear that B.N. did not willfully abandon either

A.W. or his child. To the contrary, it is clear that he attempted to remain in contact with both

A.W. and his child, and any limitation in his contact was the result of actions of A.W.’s

parents and the Harbor House staff. A.W. was moved to a facility over two hours from her

home and B.N. Yet B.N. managed to attend counseling sessions and visitations with A.W.

and the baby. And this despite the fact that not only was communication discouraged, but his

ability to communicate suffered significant interference when Harbor House took away

A.W.’s cell phone. The only reasonable conclusion to be drawn from the evidence in this

record is that B.N. neither willfully, nor otherwise, abandoned A.W. or the baby.

{¶ 26} We next turn to the issue of whether B.N. failed to support the baby. We

conclude that he did not fail in his duty. The uncontradicted evidence demonstrates that B.N. 12

and his family offered to let A.W. reside with them during the pregnancy. Furthermore, B.N.

gathered numerous maternity items as well as items for use after the baby was born. These

actions represent significant efforts by an unemployed eighteen-year-old high-school student

to support the baby, especially in view of the fact that he was told by the Harbor House staff

that no additional assistance was required.

{¶ 27} No one discussed actual financial costs with B.N., and no one presented him

with any bills. In fact, the only evidence regarding the discussion of costs with B.N. was the

testimony of K.E., and she only described a generalized discussion of the average cost of

raising a child. It was never made clear on this record that Harbor House actually intended to,

or in fact did, invoice A.W.’s mother for any costs incurred during her stay there. To the

contrary, the evidence merely reflects that A.W.’s mother was made aware that Harbor House

had incurred approximately $3,000 in costs with regard to A.W.’s stay there. Furthermore,

although A.W.’s mother testified that she had incurred over $500 in medical costs prior to

taking her daughter to Harbor House, she conceded that she never made B.N. aware of these

costs and she never presented him with any of the actual bills.

{¶ 28} We conclude that upon this record S.H. and B.H. failed to prove, by clear and

convincing evidence, that B.N. willfully abandoned either A.W. or the minor child. Nor is

the evidence in the record sufficient to prove, by clear and convincing evidence, that B.N.

failed to provide support for the baby. Therefore, we conclude that the probate court erred in

determining that B.N.’s consent is not required for the adoption of the child.

{¶ 29} B.N.’s sole assignment of error is sustained. 13

IV. Conclusion

{¶ 30} B.N.’s sole assignment of error having been sustained, the order of the probate

court from which this appeal is taken is Reversed, and this cause is Remanded for further

proceedings consistent with this opinion.

DONOVAN and HALL, JJ., concur.

Copies mailed to:

Harry G. Beyoglides, Jr. Michael R. Voorhees Hon. Robert A. Hagler