In re Adoption of C.L.D.

2022 Ohio 368

• Court: Ohio Court of Appeals
• Decided: February 4, 2022
• Docket: 21CA1
• Status: Published

Opinion

[Cite as In re Adoption of C.L.D., 2022-Ohio-368.]

IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT GALLIA COUNTY

In the Matter of the Adoption of: : Case No. 21CA1

C.L.D. : DECISION AND : JUDGMENT ENTRY

: RELEASED 2/4/2022 ______________________________________________________________________ APPEARANCES:

Warren N. Morford, Jr., Ironton, Ohio, for appellant.

Andrew J. Noe, Gallipolis, Ohio, for appellees. ______________________________________________________________________ Hess, J.

{¶1} V.C.T. appeals the judgment of the Gallia County Court of Common Pleas,

Probate Division, granting the petition of R.L.D. to adopt his child based on its

determination that V.C.T.’s consent was unnecessary, and the adoption was in the best

interest of the child. V.C.T. contends that his consent was required because he had

justifiable cause for having de minimis contact with the child during the one-year period

prior to the filing of the adoption petition. He also contends that the adoption was not in

the child’s best interest and that the trial court erred to his prejudice because he was not

transported from the Noble Correctional Institution for the hearings but instead attended

via a video conferencing service.

{¶2} We find that the trial court did not abuse its discretion in finding V.C.T. had

de minimis contact with his child and its finding that he lacked a justifiable cause was not

against the manifest weight of the evidence. According to the evidence presented at the

hearing, V.C.T. knew how to contact his child, was not significantly interfered with or Gallia App. No. 21CA1 2

discouraged from doing so by the custodial parent, and only sent one or two letters to the

child during the relevant period. We overrule his first two assignments of error. V.C.T.

failed to make any argument in support of his third and fourth assignments of error,

therefore, in accordance with App.R. 12(A)(2), we disregard them. We affirm the trial

court’s judgment.

I. FACTS AND PROCEDURAL HISTORY

{¶3} V.C.T. married Cynthia L.D and they had one child, C.L.D., in 2007. In

2016, V.C.T. was charged with multiple felonies and was imprisoned from 2016 until

September 2021. The marriage ended in 2017. Cynthia remarried and her husband,

R.L.D., filed a petition to adopt C.L.D in March 2020. In September 2020, the trial court

held a hearing and determined that V.C.T.’s consent to the adoption was unnecessary.

In December 2020, the trial court held a hearing, determined that adoption was in the

child’s best interest, and issued a final decree of adoption on January 11, 2021. V.C.T.

appealed.

II. ASSIGNMENTS OF ERROR

{¶4} V.C.T. presents four assignments of error:

I. The trial court erred to his maternal [sic] prejudice, when it determined, his consent was not required to the adoption of [C.L.D.].

II. The trial court erred to his material prejudice, when it found that petitioners/appellees had met their burden proof of party [sic] under R.C. 3107.07.

III. The trial court erred to his material prejudice, when it determined that the best interest of [C.L.D.] would be served by granting the subject Petition for Adoption.

IV. The trial court erred, to his material prejudice, by conducting the hearings via Blue Jeans. At all times pertinent hereto, the appellant, [V.C.T.], has been incarcerated. The rial [sic] counsel refused to Gallia App. No. 21CA1 3

have appellant transported from Noble Correctional Institution to trial court.

V.C.T. failed to include references to the record that he relies on in support of his

arguments and he failed to make any arguments in support of his third and fourth

assignments of error as required by App.R. 16(A)(3) and (7), so it would be within our

authority to summarily overrule them and affirm the trial court’s judgments. Ogle v.

Kroger Co., 4th Dist. Hocking No. 13CA22, 2014-Ohio-1099, ¶ 14, citing App.R.

12(A)(2); App.R. 16(A)(3) (stating that an appellant's brief must include “[a] statement of

the assignments of error presented for review, with reference to the place in the record

where each error is reflected”); App.R. 16(A)(7) (requiring that an appellant's brief

include “[a]n argument containing the contentions of the appellant with respect to each

assignment of error presented for review and the reasons in support of the contentions,

with citations to the authorities, statutes, and parts of the record on which appellant

relies”). Nevertheless, in the interest of justice, we will address V.C.T.’s first and second

assignments of error for which he provides a legal argument.

{¶5} However, in accordance with App.R. 12(A)(2), we disregard the third and

fourth assignments of error because V.C.T. makes no argument in support of these

assignments of error. See App.R. 12(A)(2) (“The court may disregard an assignment of

error presented for review if the party raising it fails to * * * argue the assignment

separately in the brief as required under App.R. 16(A)”); see also State v. Nelson, 4th

Dist. Ross No. 20CA3733, 2021-Ohio-2752, ¶ 8-9; Jones v. Jones, 4th Dist. Highland

No. 20CA3, 2021-Ohio-1498, ¶ 36-37; Haldy v. Hoeffel, 3rd Dist. Henry No. 7-19-08,

2020-Ohio-975, ¶ 16 (“appellate courts are not obligated to search the record or Gallia App. No. 21CA1 4

formulate legal arguments on behalf of the parties”); Nob Hill E. Condominium Assn. v.

Grundstein, 8th Dist. Cuyahoga No. 95919, 2011-Ohio-2552, ¶ 11 (stating that an

appellate court is “not obliged to scour the record in search of evidence to support an

appellant's assignment of error”); State ex rel. Petro v. Gold, 166 Ohio App.3d 371,

2006-Ohio-943, 850 N.E.2d 1218, ¶ 94 (10th Dist.) (finding it is “not appropriate for this

court to construct the legal arguments in support of an appellant's appeal. ‘If an

argument exists that can support this assignment of error, it is not this court's duty to root

it out.’ ”).

IIl. LEGAL ANALYSIS

A. Consent for Adoption

{¶6} In his first two assignments of error, V.C.T. contends that the trial court

erred in finding that his consent to the adoption was unnecessary and that the petitioner

R.L.D. failed to show by clear and convincing evidence that V.C.T.’s consent was

unnecessary.

{¶7} R.C. 3107.07(A) provides that consent to adoption is not required where:

(A) 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 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.

{¶8} R.C. 3107.07(A) involves “a two-step analysis.” In re Adoption of M.B., 131

Ohio St.3d 186, 2012-Ohio-236, 963 N.E.2d 142, ¶ 23. First, a court must consider

whether a parent failed to have more than de minimis contact with the child or failed to

support the child for a minimum of one year preceding the filing of the adoption Gallia App. No. 21CA1 5

petition. Id. Second, if the parent failed in either respect, the court determines whether

justifiable cause exists. Id. A parent ordinarily “has justifiable cause for failing to

communicate when the custodial parent significantly interferes with or significantly

discourages communication.” In re Adoption of M.G.B.-E., 154 Ohio St.3d 17, 2018-

Ohio-1787, 110 N.E.3d 1236, ¶ 39.

{¶9} The party petitioning for adoption has the burden of proving by clear and

convincing evidence that the parent failed without justifiable cause to have more than de

minimis contact with the child. In re Holcomb, 18 Ohio St.3d 361, 368, 481 N.E.2d 613

(1985). “No burden is to be placed upon the non-consenting parent to prove that his

failure * * * was justifiable.” Id.

{¶10} The probate court possesses discretion in determining whether a parent

failed to have contact with the child during the one-year period. In re Adoption of

M.B. at ¶ 25; accord In the Matter of K.M.F. and K.A.F., 4th Dist. Highland Nos. 19CA1,

19CA2, 2019-Ohio-2451, ¶ 13 (“Generally, a probate court possesses discretion to

determine whether a parent failed to have contact with or support the child during the

one-year period.” citing In re Adoption of M.B. at ¶ 25). Therefore, an appellate court will

not disturb the probate court's finding concerning a parent's failure to have contact with

the child in the absence of an abuse of discretion. Id. Abuse of discretion means an “

‘unreasonable, arbitrary, or unconscionable use of discretion, or * * * a view or action that

no conscientious judge could honestly have taken.’ ” State v. Kirkland, 140 Ohio St.3d

73, 2014-Ohio-1966, 15 N.E.3d 818, ¶ 67, quoting State v. Brady, 119 Ohio St.3d 375,

2008-Ohio-4493, 894 N.E.2d 671, ¶ 23. “Abuse-of-discretion review is deferential and

does not permit an appellate court to simply substitute its judgment for that of the trial Gallia App. No. 21CA1 6

court.” State v. Darmond, 135 Ohio St.3d 343, 2013-Ohio-966, 986 N.E.2d 971, ¶ 34.

Accordingly, the probate court's decision may be reversed only if an appellant can

demonstrate that the decision was unreasonable, arbitrary, or unconscionable.

{¶11} However, the question of justifiable cause is a factual matter for the

probate court that an appellate court will not disturb unless the probate court's finding “

‘is against the manifest weight of the evidence.’ ” M.B. at ¶ 24, quoting In re Adoption of

Masa, 23 Ohio St.3d 163, 492 N.E.2d 140 (1986), paragraph two of the syllabus. “When

an appellate court reviews whether a trial court's decision is against the manifest weight

of the evidence, the court weighs the evidence and all reasonable inferences, considers

the credibility of witnesses and determines whether in resolving conflicts in the evidence,

the factfinder clearly lost its way and created such a manifest miscarriage of justice that

the judgment must be reversed.” Martin v. Jones, 2015-Ohio-3168, 41 N.E.3d 123, ¶ 68

(4th Dist.), citing Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d

517, ¶ 25. Generally, an appellate court will presume that a trial court's findings are

accurate and will reverse a judgment as being against the manifest weight of the

evidence only in the exceptional case in which the evidence weighs heavily against the

judgment. In re K.N.W., 4th Dist. Athens Nos. 15CA36, 15CA37, 2016-Ohio-5863, ¶ 27.

{¶12} When reviewing evidence under the manifest weight of the evidence

standard, an appellate court generally must defer to the factfinder's credibility

determinations. Eastley at ¶ 21. Thus, “ ‘ “every reasonable intendment must be made in

favor of the judgment and the finding of facts.” ’ ” Id., quoting Seasons Coal Co., 10 Ohio

St.3d at 80, fn. 3, quoting 5 Ohio Jurisprudence 3d, Appellate Review, Section 60, at

191-192 (1978). Furthermore, “ ‘ “[i]f the evidence is susceptible of more than one Gallia App. No. 21CA1 7

construction, the reviewing court is bound to give it that interpretation which is consistent

with the verdict and judgment, most favorable to sustaining the verdict and judgment.” ’

” Id., quoting Seasons Coal Co., 10 Ohio St.3d at 80, fn. 3, quoting 5 Ohio Jurisprudence

3d, Appellate Review, Section 60, at 191-192 (1978); Matter of Adoption of T.C.W., 4th

Dist. Meigs No. 19CA6, 2020-Ohio-1484, ¶ 40-44.

{¶13} Here the trial court determined that V.C.T.’s consent was unnecessary

because he had failed without justifiable cause to provide more than de minimis contact

with the child for a period of at least one year immediately preceding the filing of the

adoption petition. The adoption petition was filed on March 11, 2020, therefore the

relevant one-year look back period began March 11, 2019. The trial court found that

V.C.T. made only three attempts to contact his child since his incarceration in September

2016: (1) a phone call prior to March 2017; (2) a letter in October 2017; and (3) a letter

during the relevant one-year period. The trial court found that V.C.T.’s failure to have

more than de minimis contact was without justifiable cause because he had accurate

contact information for the child and neither the mother nor petitioner did anything to

significantly interfere with or significantly discourage communication between V.C.T. and

the child.

{¶14} Based on our review of the record, we find that the trial court did not abuse

its discretion when it determined that V.C.T. failed to have more than de minimis contact

with the child during the year preceding the filing of the adoption petition. At the hearing,

Cynthia L.D. testified that during the relevant one-year period, V.C.T. sent only one letter

to his child and she did nothing to prevent V.C.T. from contacting the child. Both Cynthia

and R.L.D. testified that V.C.T. had their phone number, and V.C.T. only attempted to Gallia App. No. 21CA1 8

telephone one time back in 2017. V.C.T. testified that he sent two letters during the

relevant one-year period and did not try to make contact by telephone. V.C.T. also

testified that he signed his child up for a charitable program that sends Christmas gifts on

behalf of inmates to their children, but Cynthia L.D. testified that the charity told her that

V.C.T.’s mother signed the child up for the program. Other than one letter according to

Cynthia L.D., or possibly two letters according to V.C.T., V.C.T did not have any other

contact with the child. Therefore, we lack any basis to find that the trial court acted

unreasonably, unconscionably, or arbitrarily in determining that V.C.T did not have more

than de minimis contact with the child.

{¶15} Furthermore, we find that the court's finding that V.C.T. lacked justifiable

cause for failing to have more than de minimis contact with the child is not against the

manifest weight of the evidence. Both Cynthia L.D. and R.L.D. testified that V.C.T. had

the child’s home address and home phone number and could have written letters to or

telephoned the child. Neither of them blocked his phone number, nor was there any court

ordered injunction preventing V.C.T. from contacting his child. R.L.D. received a collect

call from V.C.T. from the county jail sometime in 2017 but did not accept the charges.

V.C.T. indicated that even though he “always have money on my books to make phone

calls, I always have money to call home” he never attempted to call his child after that

initial attempt in 2017 because he was told by a county jail employee that he would have

criminal charges brought against him. Thus, V.C.T. admitted he never attempted to

telephone his child during the relevant one-year period. We defer to the trial court in

making credibility determinations and in evaluating how much weight to give V.C.T.’s

testimony. We believe that the foregoing evidence constitutes some competent and Gallia App. No. 21CA1 9

credible evidence to support the court's finding that V.C.T.’s failure to contact the child

was not justifiable. Consequently, we will not disturb the court's finding.

{¶16} We overrule V.C.T.’s first and second assignments of error and affirm the

trial court’s finding that V.C.T.’s consent to the adoption was unnecessary.

B. App.R. 12(A)(2) – Failure to Make an Argument

{¶17} V.C.T.’s third assignment of error challenges the trial court’s finding that the

adoption is in the child’s best interest and his fourth assignment of error challenges his

participation in the hearings via a video conferencing service.

{¶18} The trial court held a best interest hearing and V.C.T. participated via a

video conferencing service. He had an attorney present, called witnesses, and testified

on his own behalf. R.C. 3107.161(B)(1) - (11) governs the best interest factors a trial

court should consider when determining whether a contested adoption is in the child’s

best interest. The trial court’s decision specifically referenced R.C. 3107.161, analyzed a

number of those factors in light of the evidence presented at the hearing, and determined

that adoption was in the child’s best interest. V.C.T has failed to identify any error in the

record or make any argument to support his contention that the adoption was not in the

child’s best interest. In accordance with App.R. 12(A)(2), we disregard his third

assignment of error.

{¶19} Likewise, V.C.T. participated in both the consent hearing and the best

interest hearing via a video conference service. There is nothing in the record to indicate

he was prejudiced in any manner by this method of participation. In fact, he requested on

at least one occasion to speak confidentially with his attorney during the best interest

hearing and was readily accommodated. Again, he failed to refer to any place in the Gallia App. No. 21CA1 10

record or make any argument to support his contention that he was materially prejudiced

by participation via video conference.

{¶20} Thus, in accordance with App.R. 12(A)(2), we disregard his third and fourth

assignments of error. We affirm the judgment of the trial court.

JUDGMENT AFFIRMED. Gallia App. No. 21CA1 11

JUDGMENT ENTRY

It is ordered that the JUDGMENT IS AFFIRMED and that appellant shall pay the costs.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing the Gallia County Common Pleas Court, Probate Division to carry this judgment into execution.

Any stay previously granted by this Court is hereby terminated as of the date of this entry.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.

Smith, P.J. & Abele, J.: Concur in Judgment and Opinion.

For the Court

BY: ________________________________ Michael D. Hess, Judge

NOTICE TO COUNSEL

Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.