[Cite as In re Adoption of D.W.- E.H., 2022-Ohio-528.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
IN RE ADOPTION OF D.W.-E.H. : : No. 110705 A Minor Child : : [Appeal by C.W.H. Stepfather] :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: February 24, 2022
Civil Appeal from the Cuyahoga County Court of Common Pleas Probate Division Case No. 2021-ADP-09770
Appearances:
Taft Stettinius & Hollister, L.L.P., Jill Friedman Helfman, and Mary Kate Moller, for appellant-petitioner.
Peter A. Russell, for appellee-respondent.
CORNELIUS J. O’SULLIVAN, JR., J.:
Petitioner-appellant C.W.H.1 (hereinafter “petitioner”) appeals from
the probate court’s July 22, 2021 judgment in this adoption proceeding. In its
judgment, the trial court found that while respondent-appellee B.D.B. (hereinafter
1In accordance with this court’s policy, the parties’ initials are used for their privacy interest. “father”) failed to communicate with his child D.W.-E.H. (hereinafter “the child”)
for at least one year preceding the filing of petitioner’s adoption petition, father had
justifiable cause for such failure. After review of the law and facts as set forth below,
we affirm.
I. Procedural History
On March 30, 2021, petitioner filed a petition for adoption of the
child, who was five years old at the time.2 Petitioner alleged that the consent of
father was not required to proceed with the adoption on the ground that father
failed, without justifiable cause, to have any contact with the child for the one-year
period immediately preceding the filing of the petition, that is between March 30,
2020, and March 30, 2021.
Father’s counsel filed an objection to the petition on July 9, 2021. On
July 15, 2021, the trial court held a “consent hearing” to determine whether father’s
consent was required to proceed with the adoption. The court issued its decision on
July 22, 2021, finding that father had no contact with the child for the one year
preceding the filing of petitioner’s adoption petition, but that father had justifiable
cause for his failure to contact the child.
II. Factual History
The following facts were adduced at the July 15, 2021 consent
hearing. The child was born to J.H. (hereinafter “mother”) and father while mother
2 The child’s date of birth is December 26, 2015. was married to petitioner. Father had his paternity established shortly after the
child’s birth.
Initially, father would see the child often. He testified that he was the
child’s care provider during the day when mother worked — mother would bring the
child to his house — but petitioner was unaware of the arrangement. Father did not
like the secretive arrangement and told mother that she had to tell petitioner
because he (father) wanted to initiate a proceeding in juvenile court to obtain
visitation rights. Mother told petitioner and, thereafter, according to father, mother
told him, “[a]ll communication has to stop, and it would be handled through the
court.” Father hired an attorney and initiated a proceeding in juvenile court,
through which a visitation schedule and support obligations were established for
him. Father testified that the proceeding exhausted his savings.
The record demonstrates that, at all relevant times, all the parties
lived in Parma, Ohio. Generally, when father would exercise his visitation rights,
mother would drop the child off to father at a McDonald’s restaurant located in
Parma. The restaurant was approximately four miles from father’s house, which,
according to father, was a 10- to 15-minute drive from his house.
Father testified that he had a car accident in 2019 and, thereafter, no
longer had a vehicle; he mainly relied on public transportation as his mode of
transportation. He testified that sometimes friends would drive him places and
sometimes he would get an Uber driver for medical appointments because he would
get reimbursed by his insurance provider. According to father, it took anywhere from 30 minutes to two-and-a-half hours to get to the McDonald’s by bus from his
house because the trip required him to transfer buses.
Father testified that he lost his job in early 2020, when his employer
downsized due to the ramifications of the global Covid-19 pandemic. Father also
testified that he had medical issues, including diabetes and high blood pressure.
Mother testified that father’s court-ordered visitation schedule
afforded him 156 days a year of visitation with the child. She kept track of the
number of days father cancelled his visitation with the child since 2017. In 2017,
father cancelled 11 days; in 2018, he cancelled 18 days; in 2019, he cancelled 125
days; and in 2020, he cancelled all except one day, that being February 6, 2020. The
record demonstrates that father had no visitation with the child at any time in 2021
leading up to the July 2021 hearing. Father agreed that his last visit with the child
was on February 6, 2020. He paid mother $10 to bring the child to him for that
visitation.
The record demonstrates that father had mother’s telephone number
and knew where she lived. He scheduled visitation time twice in October 2020 but
cancelled both visits. From October 19, 2020, to the date of the July 15, 2021 trial,
father never requested to exercise his visitation time. From October 19, 2020, to
July 15, 2021, father did not contact mother to request to call, text, or communicate
via any technological platform (i.e., video chat, FaceTime) with the child. He did not
send any mail to the child, including on his fifth birthday or holidays. Father
testified that he used Facebook to video chat with people, but Mother blocked him on Facebook. Mother testified that Father never requested to be “friends” on
Facebook.
Father contended that his lack of transportation and health problems
prevented him from visiting with his son. Father testified that the lack of
transportation was particularly prohibitive after universal awareness of the Covid-
19 virus and a subsequent “stay-at-home order” was implemented by the Ohio
Director of Health, effective March 23, 2020.3 Father testified that he did not want
to get the child sick.
Mother admitted that she was hesitant to have the child travel on a
bus, or be out in public spaces in general, because of the pandemic and the child’s
tendency to “touch everything.” She testified that she only took the child out in
“emergency situations.” Mother described her state of mind regarding Covid-19 as
“fearful” and testified that she watched the child “like a hawk.” According to father,
mother’s concern about the child being out in public persisted after the stay-at-home
order was no longer effective.
Father testified that mother would not answer his phone calls — a
point mother conceded — but she would generally respond to his text messages. In
June 2020, father texted mother requesting that his visitation with the child resume
3 The stay-at-home order mandated, among other things, that Ohio residents stay at home or their place of residence except for “essential activities”; “essential governmental functions”; and “essential business and operations.” Transporting children under a custody order was deemed an essential activity. See Director’s Stay At Home Order Ohio Department of Health, https://coronavirus.ohio.gov (accessed January 18, 2022). The order expired in May 2020. because businesses were starting to reopen and activities were starting to resume.
Mother responded as follows:
Well everything isn’t open. And the things that are there are precautions to follow. These precautions are not suggestions when it comes to [the child]. He does not completely understand the virus and what all we have to do to keep safe. I have not taken him anywhere unless it was absolutely necessary because he likes to touch everything and if his hands aren’t then washed he could get sick. He does not know how to use hand sanitizer, but it worries me because he could get sick by putting his hands in his mouth. Yes, the stay at home order was lifted, but that doesn’t mean things are back to normal.
No visitation was scheduled. Father contacted mother again in July
2020, and stated that “this virus could go until next year some time. I think we just
need to come up some visitation safety plan and resume visitation.” Mother
responded, “I think part of the safety plan would be not while numbers are rising.”
Mother reiterated her concern about the child “touching everything,” and not
understanding the virus. She further stated, “I don’t think a park is a good place
right now because they are not being cleaned.” Again, no visitation was scheduled.
Father contacted mother in September 2020 and told mother he
believed the situation created by the pandemic was the “new normal,” and he was
“ready for visitation to start back up with safety measures in place” for the child.
Mother responded,
[j]ust because you may see it as the new normal does not mean it is any less serious as it was back in March. Yes, things are opening back up but when it comes to [the child’s] safety I will not turn a blind eye to it. What safety measures do you think there should be? I would like details. What do you think a visit would look like now? Do you have reliable transportation? So you are ready; did you consider what [the child] wants or is ready for? Father responded to mother’s concerns and detailed the safety
measures he would take with the child and told mother that he “always takes [his
son’s] feeling into consideration as to what is best for him.” Father further told
mother that visitation was necessary for him and the child to continue their
relationship. Father also told mother that he did not have a vehicle and would be
“open if you would like to bring and pick him up.”
A visit was arranged, but father cancelled it because the child was
congested and father did not “want him coming out congested.” A rescheduled visit
was cancelled by father because father was sick, and mother testified that he never
contacted her again after October 2020.
Mother admitted that in June 2019, she sent a letter to father asking
him for consent for petitioner to adopt the child and offering him relief from back
child support in exchange. Father did not respond to the letter. He testified that he
did want to “lose his son” then or at the time of the consent hearing. Father
contended that his lack of contact with the child was because of the pandemic. He
explained,
The pandemic had me scared for myself, for my son. It drew concern for me, you know. So, we didn’t know very much about it, so * * * I just wasn’t going to bring my son out. I knew his mom was a stay-at-home mom. I knew that she really didn’t have to really come out [except] for probably just emergencies. So I was comfortable with [the child] being there and not coming out.
On this record, the trial court found that father had no contact with
the child for the one year preceding the filing of petitioner’s adoption petition, and that father had justifiable cause for his failure to contact the child. Petitioner
appeals, and raises three assignments of error:
Assignment of Error No. 1: The trial court erred when it found that [father] had justifiable cause for failing to have any contact with [the child] in the one year preceding the filing of the March 30, 2021 petition for adoption.
Assignment of Error No. 2: The trial court erred and misstated the testimony when it found that the parties “acknowledged” that [mother] blocked [father] on Facebook, and that she “refused” telephone contact with him when there is no such evidence in the record, thereby making the erroneous conclusion that justifiable cause existed.
Assignment of Error No. 3: Because [father] failed to timely file his objections pursuant to R.C. 3107.07(K), the trial court erred when it found that his consent to the adoption was required.
III. Law and Analysis
R.C. Chapter 3107 governs adoption proceedings in the state of Ohio.
In re Adoption of Kuhlmann, 99 Ohio App.3d 44, 49, 649 N.E.2d 1279 (1st
Dist.1994). An adoption proceeding is a two-step process, which involves a
“consent” phase and a “best interest” phase. In re Adoption of Jordan, 72 Ohio
App.3d 638, 645, 595 N.E.2d 963 (10th Dist.1991); R.C. 3107.14(C); In re Adoption
of Walters, 112 Ohio St.3d 315, 2007-Ohio-7, 859 N.E.2d 545, ¶ 5.
The Ohio Supreme Court has held that “[a] trial court’s finding
pursuant to R.C. 3107.07 that the consent to an adoption of a party described in
R.C. 3107.06 is not required is a final appealable order.” In re Adoption of Greer,
70 Ohio St.3d 293, 638 N.E.2d 999 (1994), paragraph one of the syllabus; see also
In re Adoption of Johnson, 72 Ohio St.3d 1217, 651 N.E.2d 429 (1995), following
Greer. Thus, the fact that the probate court has not yet proceeded to the “best interest” phase of the adoption does not preclude appellate review of the probate
court’s decision in the “consent phase.” In re Adoption of B.M.S. & J.C.S., 10th Dist.
Franklin No. 07AP-236, 2007-Ohio-5966, ¶ 16, citing Greer.
Failure to Contact; Justifiable Cause
“Because adoption acts to permanently terminate parental rights, the
written consent of a minor child’s parents is ordinarily required in order to proceed
with the adoption action.” In re Adoption of A.L.S., 2018-Ohio-507, 106 N.E.3d 69,
¶ 13 (12th Dist.).
R.C. 3107.07(A) sets forth the following exception relative to this case:
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.
In the case sub judice, the trial court found by clear and convincing
evidence that father failed to have contact with the child for the year preceding
petitioner filing the adoption petition. The court found that there was not clear and
convincing evidence that father failed without justifiable cause to have such contact,
however.
In the first assignment of error, petitioner contends that the trial
court erred in its justifiable cause finding. In the second assignment of error,
petitioner contends that the court’s justifiable cause finding was based on the court’s erroneous finding that the parties acknowledged that mother blocked father on
Facebook and that mother refused telephone contact with father. The assignments
of error are interrelated and we consider them together.
Petitioner had the burden of proving by clear and convincing evidence
that father’s failure to have contact with the child was without justifiable cause. In
re Adoption of Bovett, 33 Ohio St.3d 102, 515 N.E.2d 919 (1987), paragraph one of
the syllabus. A probate court’s justifiable cause decision will not be disturbed on
appeal unless that determination is against the manifest weight of the evidence. In
re Adoption of M.B., 131 Ohio St.3d 186, 2012-Ohio-236, 963 N.E.2d 142, ¶ 24, citing
In re Adoption of Masa, 23 Ohio St.3d 163, 164, 492 N.E.2d 140 (1986), paragraph
two of the syllabus.
In general, a trial court’s judgment should not be overturned as being
against the manifest weight of the evidence if some competent and credible evidence
supports that judgment. Yannitell v. Oaks, 4th Dist. Washington No. 07CA63,
2008-Ohio-6271, ¶ 16, citing C.E. Morris v. Foley Constr. Co., 54 Ohio St.2d 279,
376 N.E.2d 578 (1978). Furthermore, factual findings must be given great deference
on review because the trier of fact is in the best position to view the witnesses and
observe their demeanor, gestures and voice inflections, and use these observations
to weigh the credibility of the proffered testimony. Seasons Coal Co. v. Cleveland,
10 Ohio St.3d 77, 461 N.E.2d 1273 (1984). Upon review of the record, the probate court had sufficient evidence
to determine that father had justifiable cause for his failure to have contact with the
child for the year preceding the filing of the adoption petition.
In regard to telephonic communication between father and mother,
petitioner contends that an exhibit introduced at the consent hearing established
that father did not call mother and, thus, that the trial court’s finding that mother
would not answer father’s calls was erroneous. The exhibit demonstrated that from
March 2020 to March 2021, no calls were made from father’s cell phone to mother’s
cell phone. But father testified that he did not call mother because, historically,
mother would not answer his calls. Mother acknowledged that that was true,
explaining, “[i]n the past I did not answer [father’s calls], simply because I didn’t
want the opportunity for him to say * * * that I said something that I didn’t, so I left
everything to text messages.”
The trial court was not restricted to focusing solely on the one-year
statutory period in making its determination as to justifiable cause. In the Matter
of C.D.G., 2d Dist. Montgomery Nos. 28664 and 28665, 2020-Ohio-2959, ¶ 15.
Thus, “justifiable cause may be demonstrated by events either before or during the
one-year period prior to the filing of the petition or a combination of both.” In re
J.M.M., 3d Dist. Henry Nos. 7-20-06 and 7-20-07, 2021-Ohio-775, at ¶ 25. In the
case sub judice, the court considered mother and father’s telephonic history and
properly found that mother and father did not communicate with each other by calling; rather, their telephonic communication with each other was limited to text
messaging.
In regard to Facebook, father testified that mother “took [him] off” of
and “blocked” him on Facebook, which was the way he video chatted with people. It
is true that mother never acknowledged that she “blocked” father on Facebook.
Rather, mother testified that father never asked her if they could be Facebook
friends. Thus, the trial court’s finding that “[t]he parties acknowledged that
[mother] blocked [father] from communicating with her on Facebook” was not
supported by the testimony.
The trial court’s justifiable cause finding was not based solely on the
parties’ Facebook status, however. Rather, the trial court relied on numerous other
facts in finding that father had justifiable cause for his lack of contact with the child.
Specifically, the trial court found that the Covid-19 pandemic was the
reason father suspended his visits with the child. The record supports that finding.
Mother was “fearful” about the pandemic and watched the child “like a hawk.” She
testified that except for emergencies, she did not take the child out of her house.
Father likewise wanted to keep the child safe and believed that that
would occur with the child being at home with mother under the stay-at-home
orders. The record further demonstrates that when pandemic-related restrictions
were lifted, father contacted mother and attempted to resume visitation with the
child. While mother did not “outright” deny father’s request, she expressed continuing concerns about the pandemic, especially given that the child “touched
everything.”
The trial court also found that the “circumstances of [father’s]
relationship with [mother] and Petitioner is also relevant to the issue of justifiable
cause.” The record supports this finding. The child was conceived as a result of an
affair between mother and father while mother was married to petitioner. Mother
and father conducted their affair, at least to some degree, at the home where mother,
petitioner, and the child resided at all relevant times. Father testified that, because
of these facts, he did not go to mother’s house and did not send mail there either.
Moreover, because of the young age of the child, the child did not have his own
phone; phone communication therefore had to occur through mother. Mother
admitted that she would not answer father’s calls — she would only text message
with him.
The trial court also considered father’s financial status. Father
testified that he was involved in a car accident in 2019, and was not able to afford a
replacement vehicle, and in the beginning of 2020, he was downsized from his job.
Father explained that he exhausted his savings establishing paternity and visitation
and, although having significant difficulty communicating with mother or child to
arrange for visitation, he was unable to pursue further legal action to enforce his
visitation rights. Despite his financial situation, father rejected mother’s financial
enticement to him to consent to petitioner adopting the child, stating he did not
want to “lose his son.” Petitioner contends that the trial court was not permitted to consider
factors other than father’s communication with the child. He cites In re Adoption
of Hedrick, 110 Ohio App.3d 622, 674 N.E.2d 1256 (8th Dist.1996), in support of his
contention. In Hedrick, this court stated that “[t]he standard of proof to establish
justifiable cause for the non-custodial parent’s failure to communicate with the child
is ‘* * * significant interference by a custodial parent with communication between
the non-custodial parent and the child, or significant discouragement of such
communication * * *.’” Id. at 625, quoting In re Adoption of Holcomb, 18 Ohio St.
3d 361, 367-368, 481 N.E.2d 613 (1985).
Hedrick leaves out a key word the Supreme Court used in Holcomb.
Specifically, the Holcomb Court stated that “[t]ypically, a parent has justifiable
cause for non-communication if the adopting spouse has created substantial
impediments to that communication.” (Emphasis added.) Id. at 367.4 Interference
by the custodial parent was the primary reason for the lack of contact by the
noncustodial parent in Hedrick, while in this case a variety of factors contributed to
father’s lack of contact.
The Holcomb Court acknowledged that “‘justifiable cause’ is
imprecise and has been variously defined by the courts below.” Id. Because of the
imprecision in defining justifiable cause, the court stated that “the better-reasoned
4The Ohio Supreme Court reiterated this standard in In re Adoption of M.G.B.-E., 154 Ohio St.3d 17, 2018-Ohio-1787, 110 N.E. 3d 1236, ¶ 39. approach would be to leave to the [lower] court as finder of fact [on] the question of
whether or not justifiable cause exists.” Id.
Further, in Holcomb, the noncustodial parent alleged that the
custodial parent significantly interfered with the noncustodial parent’s
communication with the children. Addressing that specific ground, the court stated
[a]s guidance to the probate courts, we state additionally that significant interference by a custodial parent with communication between the non-custodial parent and the child, or significant discouragement of such communication, is required to establish justifiable cause for the non-custodial parent’s failure to communicate with the child.
(Emphasis sic.) Id. at 367-368.
Thus, Holcomb considered a specific allegation of “significant
interference or significant discouragement” of communication as justifiable cause
for a noncustodial parent’s failure to have contact with a child. It has been judicially
recognized, however, that there are other circumstances aside from a custodial
parent’s interference with or discouragement of communication with a noncustodial
parent’s attempt to communicate with a child that can create justifiable cause.
In In re Adoption of A.K., Slip Opinion No. 2022-Ohio-350, the
Supreme of Ohio held that 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 so finding, the court relied on In re Adoption of B.I.,
157 Ohio St.3d 29, 2019-Ohio-2450, 131 N.E.3d 28, wherein it held that “a parent’s
nonsupport of his or her minor child pursuant to a judicial decree does not extinguish the requirement of that parent’s consent to the adoption of the child.” Id.
at ¶ 1.
Demonstrating in a properly submitted petition by clear and
convincing evidence a custodial parent’s interference with or discouragement of a
child’s communication with a noncustodial parent is one way to establish justifiable
cause, but it is not the only way.
Further, petitioner contends that father could have had his visitation
order revisited so that he could have had contact with the child. But as the court
held in In re Adoption of A.K.,
[petitioners] have the burden to establish that there was no justifiable cause for [the noncustodial parent’s] failure to contact [the child]. * * * For this court to impose some additional requirement on a parent that they must attempt to modify the relevant court order would be an inappropriate shift of the petitioner’s burden to the parent, in contravention of R.C. 3107.07.
Id. at ¶ 20.
Just as the Ohio Supreme Court observed with lamentation in In re
Adoption of M.G.B.-E., 154 Ohio St.3d 17, 2018-Ohio-1787, this court believes father
“could undoubtedly have done more to protect and nurture his relationship with his
[child].” Id. at ¶ 44. “But strictly construing R.C. 3107.07(A) in Father’s favor, and
remaining cognizant that parents facing the termination of their parental rights
must be afforded every protection the law allows, In re Hayes, 79 Ohio St.3d 46, 48,
679 N.E.2d 680 (1997),” we conclude that the lower court did not err in determining
that father had justifiable cause for the failure to contact the child. In re Adoption of M.G.B.-E. at ¶ 43. The lower court was in the best position to determine the
credibility of witnesses and weigh the evidence. The novelty of the global Covid-19
pandemic, father’s medical conditions, loss of work and transportation, exhaustion
of resources in prior litigation, along with the other specific factors discussed above,
demonstrate that the trial court’s justifiable cause finding was supported by some
competent and credible evidence. The first and second assignments of error are
therefore overruled.
Father’s Objection
In the third assignment, petitioner contends that father failed to
timely file his objection, obviating the need for his consent under R.C. 3107.o7(K).
The record reflects that petitioner failed to raise the timeliness of
father’s objection at the trial-court level. It is well settled that a party may not raise
any new issues or legal theories for the first time on appeal. Stores Realty Co. v.
Cleveland, 41 Ohio St.2d 41, 43, 322 N.E.2d 629 (1975). Thus, a litigant who fails to
raise an argument before the trial court forfeits the right to raise that issue on appeal.
Independence v. Office of the Cuyahoga Cty. Executive, 142 Ohio St. 3d 125, 2014-
Ohio-4650, 28 N.E.3d 1182, ¶ 30.
Appellate courts may consider a forfeited argument using a plain-
error analysis. See Risner v. Ohio Dept. of Natural Resources, 144 Ohio St.3d 278,
2015-Ohio-3731, 42 N.E.3d 718, ¶ 27. For the plain error doctrine to apply, the party
claiming error must establish (1) that “‘an error, i.e., a deviation from a legal rule’”
occurred, (2) that the error was “‘an obvious defect in the trial proceedings,’” and (3) that this obvious error affected substantial rights, i.e., the error “‘must have affected
the outcome of the trial.’” State v. Rogers, 143 Ohio St. 3d 385, 2015-Ohio-2459, 38
N.E.3d 860, ¶ 22, quoting State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240
(2002); Schade v. Carnegie Body Co., 70 Ohio St.2d 207, 209, 436 N.E.2d 1001
(1982) (“A ‘plain error’ is obvious and prejudicial although neither objected to nor
affirmatively waived which, if permitted, would have a material adverse affect on the
character and public confidence in judicial proceedings.”).
The plain error doctrine is not readily invoked in civil cases. Instead,
an appellate court “must proceed with the utmost caution” when applying the plain
error doctrine in civil cases. Goldfuss v. Davidson, 79 Ohio St.3d 116, 121, 679
N.E.2d 1099 (1997). The Ohio Supreme Court has set a “very high standard” for
invoking the plain error doctrine in a civil case. Perez v. Falls Fin. Inc., 87 Ohio
St.3d 371, 375, 721 N.E.2d 47 (2000). Thus, “the doctrine is sharply limited to the
extremely rare case involving exceptional circumstances where error, to which no
objection was made at the trial court, seriously affects the basic fairness, integrity,
or public reputation of the judicial process, thereby challenging the legitimacy of the
underlying judicial process itself.” Goldfuss at 122.
Because petitioner failed to raise the issue of the timeliness of father’s
objection at the trial-court level, he has waived review of the issue on appeal. The
third assignment of error is therefore overruled.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed. The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court, probate division, to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
CORNELIUS J. O’SULLIVAN, JR., JUDGE
MICHELLE J. SHEEHAN, J., CONCURS; KATHLEEN ANN KEOUGH, P.J., DISSENTS (WITH SEPARATE OPINION)
KATHLEEN ANN KEOUGH, P.J., DISSENTING:
Respectfully, I dissent.
Initially, I note that the majority rejects petitioner’s argument that the
standard for justifiable cause announced in Holcomb — significant interference by
a custodial parent with communication between the noncustodial parent and the
child, or significant discouragement of such communication — is the only way to
demonstrate justifiable cause. Majority opinion at ¶ 43. The majority concludes
that although significant interference by a custodial parent with the child’s
communication with the noncustodial parent is one way to establish justifiable
cause, it is not the only way. Id. Even assuming that to be true, the majority’s
reliance on In re Adoption of A.K., Slip Opinion No. 2022-Ohio-350, as support for
its conclusion is misplaced. In In re Adoption of A.K., 2020-Ohio-3279, 155 N.E.2d 239 (8th
Dist.), this court held that 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. The Ohio Supreme Court recently affirmed this court’s
decision in In re Adoption of A.K., Slip Opinion No. 2022-Ohio-350.
A court undertakes a two-step analysis when applying R.C.
3107.07(A) — whether a parent has failed to communicate with or failed to support
a child for a minimum of one year preceding the filing of the adoption petition and,
if so, whether there was justifiable cause for the failure. In re Adoption of M.B., 131
Ohio St.3d 186, 2012-Ohio-236, 963 N.E.2d 142, ¶ 23. But in In re Adoption of A.K.,
the Supreme Court concluded there is an “automatic exemption” from the two-step
justifiable-cause inquiry under R.C. 3107.07(A) where a court order specifically
orders a parent to have no contact with his child. Id. at ¶ 16-17. The court applied a
three-part test that asks (1) what the law or judicial decree required of the parent
during the year immediately preceding either the filing of the adoption petition; (2)
whether during that year the parent complied with his obligation under the law or
judicial decree; and (3) if the parent did not comply with his obligation during that
year, there was justifiable cause for that failure. Id. at ¶ 14. The court concluded
that its analysis ended at the first step of the three-part analysis, without reaching
the justifiable cause step, because the no-contact order mandated that the father do
just what was ordered — have no contact or communication with his children. Id.
at ¶ 15. Accordingly, the court found that (1) a parent’s right to consent to the adoption of his child is not extinguished under R.C. 3107.07(A) when the parent did
not have more than de minimis contact with the minor child during the statutory
period because the parent was acting in compliance with a no-contact order that
prohibited all communication and contact with the child; and (2) the father’s
consent was therefore required for the adoption proceedings to go forward. Id. at
¶ 21.
Because the Supreme Court did not consider the justifiable cause
question in In re Adoption of A.K., it should not be cited as a case demonstrating
that a circumstance other than a custodial parent’s significant interference with or
discouragement of communication with a noncustodial parent’s attempt to
communicate with a child can create justifiable cause under R.C. 3107.07(A). The
majority’s citation to In re Adoption of B.I., 157 Ohio St.3d 29, 2019-Ohio-2450, 131
N.E.3d 28, is likewise misplaced because B.I. relied upon the same three-part test
utilized by the Supreme Court in In re Adoption of A.K. and similarly resolved the
matter at the first step of the three-part test, without conducting any justifiable cause
analysis under R.C. 3107.07(A). Id. at ¶ 14.
With regard to the justifiable cause finding in this case, I would
reverse the trial court’s determination that father had justifiable cause for not
contacting the child for at least one year preceding the filing of petitioner’s adoption
petition because the court’s determination is against the manifest weight of the
evidence. In determining whether a judgment is against the manifest weight of the
evidence, the 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 the judgment should be reversed and a
new trial should be ordered. Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-
2179, 972 N.E.2d 517, ¶ 20. Weight of the evidence concerns “the inclination of the
greater amount of credible evidence, offered in a trial, to support one side of the
issue rather than the other.” (Emphasis sic.) State v. Thompkins, 78 Ohio St.3d 380,
387, 678 N.E.2d 541 (1997).
The majority concludes that the trial court properly determined that
father had justifiable cause for his failure to have any communication or contact
whatsoever with the child in the one year preceding the filing of the adoption
petition because father testified that (1) he knew mother would not answer her
phone if he called; (2) he suspended visits with the child due to the COVID-19
pandemic in an effort to keep himself and the child safe; (3) his affair with mother
made him reluctant to go to mother’s house or send mail there; (4) his lack of
transportation made it difficult for him to visit the child; and (5) his financial status
prohibited him from seeing the child or enforcing his visitation rights in court. I find
father’s testimony to be wholly self-serving and not credible and, accordingly, find
the trial court’s conclusion that these factors demonstrated justifiable cause to be
against the manifest weight of the evidence.
Father’s alleged transportation issues did not prevent him from
seeing the child. Rather, it is apparent from the record that he simply did not want to make the effort required to see the child. Father acknowledged that his home is
only four miles from a McDonald’s restaurant in Parma where he is court-ordered
to meet mother to exercise his parenting time with the child. He testified that it
takes only ten to fifteen minutes to travel by car from his home to the McDonald’s,
and that girlfriends and other friends drove him to the McDonald’s in 2019 after his
car accident. And despite his testimony that he could not ride his bike to the
McDonald’s because of his alleged bad back, he admitted that his back does not
prevent him from working full-time as a security guard at the Jack Casino.
If father had truly wanted to see the child, he could have asked a
friend to take him to McDonald’s, as he had done in the past. Or he could have
ridden his bike, walked to the McDonald’s, or taken the Line 54 bus there in a single
30-minute ride. Indeed, father was accustomed to riding the bus; he admitted that
he took the bus 45 to 55 minutes to and from his job, which is located 15 miles from
his home. Significantly, he also admitted that he took the bus to visit his one-year-
old child born of another relationship. Father’s testimony established that he was
able to find transportation to visit his other child, just not the child involved in this
case. Thus, I find his testimony that transportation issues kept him from seeing the
child not credible.
Father’s testimony that his medical conditions kept him from visiting
the child is likewise not credible. Father testified that although he was laid off from
his job in March 2020 early in the pandemic, he was recalled to work as a security
guard at the casino in June 2020. Father admitted he took the bus to and from work and that he worked full-time as a security guard in the casino despite his medical
conditions. Based on his own testimony, father’s medical conditions did not prevent
him from riding the bus and working in a seemingly high-risk environment during
the pandemic; they apparently only prevented him from visiting the child that is the
subject of the adoption petition in this case.
But even assuming for the sake of argument that the COVID-19
pandemic and father’s transportation issues prevented him from physically visiting
with the child in this case (even though he was able to visit his other child), I find
father’s testimony about his alleged inability to visit the child insufficient to establish
justifiable cause for his lack of contact with the child because at a minimum, father
could have communicated with the child.
“[V]isitation does not equate with communication because a parent
can communicate with a child ‘notwithstanding the inability to physically visit with
the child.’” In re Adoption of A.L.E., 4th Dist. Meigs No. 16CA10, 2017-Ohio-256,
¶ 25, quoting In re Adoption of Doyle, 11th Dist. Ashtabula Nos. 2003-A-0071 and
2003-A-0072, 2004-Ohio-4197, ¶ 17. Thus, even where a parent is incarcerated
during the one year preceding the filing of an adoption petition, courts have
routinely found no justifiable cause for the parent’s failure to communicate with his
or her child. See, e.g., Doyle (no justifiable cause for failure to communicate where
incarcerated mother could have sent cards or letters to children); In re Adoption of
C.A.L., 2015-Ohio-2014, 35 N.E.3d 44, ¶ 34 (12th Dist.) (despite inability to
physically visit with child, no justifiable cause for failure to communicate because father could have sent cards, letters, or gifts); In re N.L.T., 9th Dist. Lorain No. 14
CA 010567, 2015-Ohio-433, ¶ 29-30 (no justifiable cause where incarcerated mother
did not send child any gifts, pictures, or letters, and never called the father, whose
telephone number she knew, and asked to speak with the child).
Despite his testimony that he could not physically visit with the child
in the one year preceding the filing of the adoption petition, father clearly had other
means by which he could have communicated with the child. Although the parties
acknowledged that all communication between father and mother was by text, the
record reflects that father never texted mother and asked if she would accept a call
from him so that he could speak to the child, who according to mother’s testimony,
loves to chat on the phone. He also never texted mother and asked her to pass along
a message to the child. And although father has Facebook and admittedly video
chats with other people, he never asked mother if he could video chat through
Facebook with the child.
Furthermore, nothing prevented father from sending gifts or mail to
the child. But father never sent the child a birthday card, a Christmas card, a
birthday gift, a Christmas gift, or any other mail during the one-year period
preceding the filing of the adoption petition. Father’s testimony that he did not
know the child’s address or could not have found the address is simply not credible
in light of the fact that he carried on the affair in the house where the child has lived
since birth and the fact that mother’s address is available on public records. And
father’s testimony that he did not send mail to the child because he was “uncomfortable” doing so because the child lives in the house where he carried on
the affair is also incredible in light of father’s testimony that he does not want to
“lose his son.” It would seem that a parent who does not want to “lose” his child
would do anything possible to maintain contact with the child, despite any
inconvenience to the parent or minor uncomfortable feelings.
Although father testified that he does not want to lose his child to
adoption, the record demonstrates that father lost interest in maintaining a
relationship with the child. The child was born in 2015. Pursuant to the Juvenile
Court’s order, father is entitled to visit the child 156 days each year. In 2017, father
cancelled 11 visitation days. In 2018, he cancelled 91 days. In 2019, father cancelled
125 visitation days; in 2020, he cancelled all visitation days except one, and in 2021,
father neither had nor requested any parenting days. In light of this evidence, I find
father’s testimony regarding the alleged factors that prevented him from
communicating with the child in the one year prior to the filing of the adoption
petition entirely not credible, especially because father admitted that mother never
prohibited him from visiting the child. Accordingly, I find the trial court’s judgment
that father had justifiable cause for his failure to have de minimis contact with the
child to be against the manifest weight of the evidence.
By finding justifiable cause under these circumstances of this case,
the majority sets a new standard for justifiable cause under R.C. 3107.07(A) — that
meaningless contacts with the custodial parent are sufficient to establish justifiable
cause. That is not the standard. The statute specifically provides that consent to adoption is not required where the noncustodial parent, without justifiable cause,
has not had more than de minimis contact “with the minor” for the statutory period.
Thus, whether there was justifiable cause should be evaluated with respect to
father’s communication with the child (of which there was none), not his
communication with mother. Accordingly, I dissent.