[Cite as In re Adoption of D.W.D.-H., 2023-Ohio-1999.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CLARK COUNTY
IN THE MATTER OF: : THE ADOPTION OF D.W.D.-H. : : C.A. No. 2023-CA-8 : : Trial Court Case No. 20225041 : : (Appeal from Common Pleas Court- : Probate Division) : :
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OPINION
Rendered on June 16, 2023
REGINA ROSEMARY RICHARDS, Attorney for Appellant
MARY ADELINE R. LEWIS, Attorney for Appellee
.............
TUCKER, J.
{¶ 1} Petitioner M.H. appeals from the trial court’s decision and judgment entry
denying his petition to adopt his minor stepchild.
{¶ 2} The trial court held that the petitioner could not adopt without the consent of
the child’s biological father, the respondent, who withheld consent. In finding consent
necessary, the trial court concluded that the respondent had failed to have more than de -2-
minimis contact with the child and had failed to provide maintenance and support for at
least one-year period immediately preceding the adoption petition. The trial court
nevertheless found consent necessary because the respondent had justifiable cause for
these shortcomings.
{¶ 3} The petitioner argues that the trial court’s justifiable-cause findings were
against the manifest weight of the evidence and that they constituted an abuse of
discretion. He also argues that the trial court committed plain error in not granting his
petition where it was in the best interest of the child and the respondent lacked justifiable
cause for not contacting or supporting the child.
{¶ 4} We hold that the trial court’s justifiable-cause finding regarding the
respondent’s not providing maintenance and support for his child was against the
manifest weight of the evidence. In light of this holding, the respondent’s consent to
adoption is not required.
{¶ 5} The trial court’s judgment will be reversed, and the case will be remanded for
the trial court to decide whether adoption is in the child’s best interest.
I. Background
{¶ 6} The minor at issue was born in 2016 during a relationship between
respondent Father and the child’s Mother. The relationship ended in the summer of 2018.
Mother subsequently obtained a civil-protection order against Father, and Father filed for
legal custody of the child. Father’s custody action was dismissed after he became
incarcerated in connection with multiple protection-order violations.
{¶ 7} Although Father did not obtain custody, he participated in supervised -3-
visitation with the child when not incarcerated. Eleven such visits occurred between
February and June 2019. Father then began weekly visits with the child at his own
mother’s house. Those visits transitioned into virtual visits during the COVID pandemic in
2020.
{¶ 8} Thereafter, in January 2021, Father was convicted of felony operating a
vehicle while under the influence of alcohol (OVI). The conviction resulted in revocation
of his community control for one of his protection-order violations. As a result of the OVI
conviction and the community-control revocation, Father went to prison from February
2021 through mid-June 2022. He then was transferred to a half-way house, where he
remained until his release in mid-October 2022.
{¶ 9} Petitioner Stepfather married the minor child’s Mother in June 2021. One
year and one day after their marriage, Stepfather petitioned to adopt the child. Although
Father did not consent, the petition alleged that his consent was unnecessary under R.C.
3107.07(A). Specifically, the petition alleged that Father had failed without justifiable
cause to have more than de minimis contact with the child or to provide for the child’s
maintenance and support as required by law or a judicial decree for at least one year
immediately preceding the petition’s filing.
{¶ 10} The trial court held a multi-day hearing on Stepfather’s petition in December
2022 and January 2023. The hearing addressed the need for Father’s consent and
whether adoption was in the child’s best interest. Witnesses included Father, Mother,
Stepfather, Father’s own mother, and Father’s adult daughter. Based on the evidence
presented, the trial court found that Father had failed to have contact with or to provide -4-
maintenance and support for his minor child during the one-year period of June 17, 2021
to June 17, 2022. After reviewing the testimony, however, the trial court found justifiable
cause for Father’s failure to contact or to provide for his child. The trial court found that
Father’s incarceration throughout the one-year period was a relevant consideration as to
contact and maintenance and support. With regard to contact, the trial court reasoned:
This Court also considers that [Father] did pursue his visitation
opportunities with the child and did indeed seek a legal court order to
enforce his rights to visitation. The Court also notes that in March of 2020,
[Mother] did secure a civil protection order against [Father] from having any
contact with her whatsoever. Additionally, she took steps to block [Father]
from being able to get any text messages to her for the benefit of the child.
As [Mother] was the sole custodian of the child, all attempts to contact the
child would have to go through her. Consequently, [Mother] effectively
eliminated [Father’s] sole means to contact his child.
This notwithstanding, the Court received testimony that [Father] tried
to contact his child by way of his mother—who made several trips on
[Father’s] behalf to try and contact the child. [Father] had sent two birthday
cards and one Christmas card in this manner. Unfortunately, these attempts
did not go well and the Petitioner directed [Father’s] mother not to return to
their residence but to seek visitation through said Larry Alexander Center.
[Father’s] mother took no further initiatives.
In review, it is clear that [Father] had no contact with his child during -5-
the applicable one year period of time. However, [Father] was incarcerated
during the entire applicable period. He had tried to utilize the courts in
seeking visitation with his child to no avail as he was incarcerated on that
occasion. He was ordered not to have contact with the mother of his child—
his sole avenue to have contact with the child—by way of a protection order.
And even if he had chosen to violate the court order and to contact [Mother]
by her phone, he was blocked, technologically speaking, from doing so.
Under all of these circumstances, the Court does find that [Father’s] failure
to have contact with his child was justifiably excusable.
January 23, 2023 Decision and Entry at 4-5.
{¶ 11} With regard to the issue of maintenance and support, the trial court
reasoned:
The Court now considers the issue concerning the provision of
maintenance and support for the child. The parties presented much less
testimony on this particular issue. [Mother] claims that the last financial
assistance from [Father] was in 2018. Nevertheless, [Mother] concedes that
[Father] provided food, diapers, and clothing for the child. She also testified
that [Father] had given her a debit card to use for the care of the child. She
claims that she did not utilize the card as she did not trust [Father].
[Father] testified that even though he was incarcerated, that he
directed his mother to take gifts to [Mother] for the benefit of the child. This
testimony was not disputed by the Petitioner. The Court also notes here that -6-
for the first twenty-five months of the child’s life, that [Father] did provide for
the child as he was gainfully employed as a roofing contractor. Clearly, this
occupation was put on hold during the time of [Father’s] incarceration.
Again, [Father] was incarcerated during the entire applicable one
year period of time. He did make certain overtures for the care of his child,
including the provision of a debit card and the provision of various gifts for
the child. Further, it remains unclear to this Court why [Mother] did not seek
a court order of support from [Father]. This fact seems to have clouded both
parties’ understanding that maintenance and support of the child still was
required under common law. Both parties seem to have assumed that
formal support payments were not expected, as they were not demanded.
This notwithstanding, the Court finds here that [Father’s] failure to provide
for the maintenance and support of the child during the applicable one year
period of time was justifiably excusable.
Id. at 5-6.
{¶ 12} Finally, the trial court declined to decide whether adoption was in the child’s
best interest. Given that Father’s lack of consent precluded Stepfather from adopting, the
trial court found no need to resolve the best-interest issue. Id. at 6-7.
II. Analysis
{¶ 13} Stepfather’s first two assignments of error challenge the trial court’s finding
of justifiable cause for Father’s failure to contact his child and failure to provide
maintenance and support. In the first assignment of error, Stepfather contends the
manifest weight of the evidence did not support a justifiable-cause finding based on -7-
Father’s being in prison during the relevant one-year period where Father stopped
providing maintenance and support in 2018 or 2019, ceased contact with the child in
November 2020, and did not begin his prison term until February 2021. In the second
assignment of error, Stepfather makes essentially the same arguments under an abuse-
of-discretion standard. Finally, in his third assignment of error, Stepfather claims the trial
court committed plain error by not finalizing the adoption where it found adoption to be in
the child’s best interest.
A. Justifiable Cause
{¶ 14} We begin our analysis with a review of the law governing Stepfather’s first
two assignments of error. Under R.C. 3107.06, a biological parent ordinarily must consent
before a court may grant an adoption petition. Exceptions are found in R.C. 3107.07(A),
which provides that consent is not required when a court finds by clear and convincing
evidence that the parent has failed, without justifiable cause, to have more than de
minimis contact with the child or to provide maintenance and support for the child for at
least the one-year period immediately preceding the adoption petition.
{¶ 15} The party petitioning for adoption has the burden to prove by clear and
convincing evidence that one of the two consent exceptions applies. In re Adoption of
Holcomb, 18 Ohio St.3d 361, 481 N.E.2d 613 (1985), paragraph four of the syllabus.
Clear and convincing evidence is that which produces “in the mind of the trier of fact[ ] a
firm belief or conviction as to the facts sought to be established.’ ” Id. at 368, citing Cross
v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the syllabus.
Once the petitioner has established by clear and convincing evidence that the biological -8-
parent has failed to have more than de minimis contact or has failed to provide support
for the child within at least the one year immediately preceding the petition filing date, the
burden of going forward with evidence shifts to the biological parent to show some facially
justifiable cause for the failure. In re Adoption of Bovett, 33 Ohio St.3d 102, 515 N.E.2d
919 (1987), paragraph two of the syllabus. The burden of proof, however, remains at all
times with the petitioner, who must prove the lack of justifiable cause by clear and
convincing evidence. Id.; see also Holcomb at 368 (“No burden is to be placed upon the
non-consenting parent to prove that his failure to communicate was justifiable.”).
{¶ 16} The phrase “justifiable cause” is not defined in R.C. 3107.07. However, it
has been defined as meaning “[c]apable of being legally or morally justified; excusable;
defensible.” (Citations omitted.) In re Adoption of B.I., 2017-Ohio-9116, 101 N.E.3d 1171,
¶ 10 (1st Dist.), aff’d, 157 Ohio St.3d 29, 2019-Ohio-2450, 131 N.E.3d 28. The Ohio
Supreme Court has “refused to adopt a ‘precise and inflexible meaning’ for ‘justifiable
cause,’ but instead has concluded that ‘the better-reasoned approach would be to leave
to the probate court as finder of fact the question of whether or not justifiable cause
exists.’ ” In the Matter of Adoption of D.D.G., 2d Dist. Montgomery No. 27741, 2018-Ohio-
35, ¶ 5, quoting In re Adoption of W.K.S., 2d Dist. Champaign No. 2014-CA-16, ¶ 22,
citing Holcomb at 367. An important consideration regarding justifiable cause is a parent’s
willingness and ability to contact or support a child. In re Adoption of J.R.I., 2023-Ohio-
475, 209 N.E.3d 93, ¶ 38 (2d Dist.), citing In re Adoption of Masa, 23 Ohio St.3d 163,166,
492 N.E.2d 140 (1986).
{¶ 17} Whether a biological parent has failed to have more than de minimis contact -9-
with or has failed to provide maintenance and support for a child involves a trial court’s
resolution of questions of fact and is subject to abuse-of-discretion review. In re Adoption
of M.B., 131 Ohio St.3d 186, 2012-Ohio-236, 963 N.E.2d 142, ¶ 21. A trial court’s
justifiable-cause determination regarding a biological parent’s failure to do these things
will not be disturbed unless that determination is against the manifest weight of the
evidence. Id. at ¶ 24, quoting Masa, paragraph two of the syllabus. This standard requires
us to weigh the evidence and all reasonable inferences, consider the credibility of the
witnesses, and determine whether in resolving conflicts in the evidence, the court clearly
lost its way and created a manifest miscarriage of justice. In re Adoption of J.L., 1st Dist.
Hamilton No. C-180453, 2019-Ohio-366, ¶ 25.
{¶ 18} With the foregoing standards in mind, we turn to Stepfather’s first two
assignments of error. As noted above, they both address the trial court’s finding of
justifiable cause for Father’s failure to have more than de minimis contact with his child
and failure to provide maintenance and support for the child. The first assignment of error
challenges the trial court’s justifiable-cause finding under a manifest-weight-of-the-
evidence standard. The second assignment of error raises the same issue under an
abuse-of-discretion standard. Given that both assignments of error address the trial
court’s justifiable-cause determination, we conclude that the manifest-weight standard is
the correct one to apply. In re Adoption of M.B. at ¶ 24; see also In re F.D.H., 2023-Ohio-
730, __ N.E.3d __ (2d Dist.), ¶ 8 (“The question of whether justifiable cause has been
proven will not be disturbed on appeal unless the determination is against the manifest
weight of the evidence.”). -10-
{¶ 19} With regard to the maintenance-and-support issue, the trial court made a
factual finding that Father had supported the child “for the first twenty-five months of the
child’s life” or through July 2018. This is consistent with Mother’s testimony that Father
last provided assistance for the child by contributing to the cost of food, diapers, and
clothing when she and Father resided together in 2018. Mother testified that she had not
received any assistance from Father since then.
{¶ 20} As set forth above, however, the trial court found justifiable cause for
Father’s non-support. It reasoned that Father’s imprisonment from February 2021 through
June 2022 created a “significant obstacle” to his ability to maintain contact and to provide
maintenance and support. The trial court noted that Father previously had provided food,
diapers, and clothing for the child and had provided a debit card for Mother’s use. In
addition, the trial court cited Father’s provision of gifts for the child during his incarceration
through his mother. Finally, the trial court found it “unclear” why Mother did not seek a
child-support order. The trial court opined that Mother and Father both seemed to have
believed no support was required because no support was demanded.
{¶ 21} Upon review, we conclude that the trial court’s justifiable-cause finding
regarding Father’s lack of maintenance and support was against the manifest weight of
the evidence. Under R.C. 3107.07(A), a biological parent’s consent to adoption is not
required if he has failed without justifiable cause to provide maintenance and support as
required by law or a judicial decree for a period of “at least one year” immediately
preceding the adoption petition. Here the trial court found that Father supported the child
until July 2018, which was nearly four years before Stepfather petitioned for adoption in -11-
June 2022.
{¶ 22} Although Father’s imprisonment beginning in February 2021 may have
impeded his ability to provide support after that date, it did nothing to explain Father’s
non-support for more than two and one-half years from July 2018 until he went to prison
in February 2021. As further discussed herein, this failure to provide support and
maintenance in the period before Father’s incarceration was relevant to whether the
incarceration constituted justifiable cause for his failure to provide support and
maintenance while incarcerated. Father also admittedly did not provide any
maintenance and support for the child following his release from prison. Father was sent
to a half-way house in June 2022. He began working in August 2022, earning $14 per
hour with a subsequent raise to $19.50 per hour. Although he claimed to have set aside
some money and toys for the child, he had not actually given Mother anything at the time
of the adoption hearing.
{¶ 23} Even setting aside Father’s actions after Stepfather filed for adoption in
June 2022, the fact remains that Father provided no maintenance and support for the
child from July 2018 through June 2022. Although Mother never sought court-ordered
child support, Father had an independent statutory obligation to support his child. In re
Adoption of B.I., 2017-Ohio-9116, 101 N.E.3d 1171, at ¶ 27 (“Ohio’s statutory scheme
regarding families and children makes clear that there are two statuses of parental
obligation: first, a general obligation of parents to support their children imposed by law
in R.C. 3103.03, and second, a specific child-support obligation imposed by judicial
decree pursuant to R.C. 3109.05 and Chapter 3119 that supersedes the general -12-
obligation once the court issues its decree.”); In re Placement for Adoption of C.E.T, 2d
Dist. Montgomery No. 19566, 2003-Ohio-3783, ¶ 11 (“The juvenile court in this case has
never adjudicated the issue of [mother’s] obligation to support her child, which, in the
absence of an adjudication, is controlled by the general statutory obligation of a parent to
provide for the support of the child, found in R.C. 3103.03.”).
{¶ 24} Father’s failure to provide for his child for nearly four years before the
adoption petition’s filing and for more than two and one-half years before he went to prison
supported a compelling inference that his incarceration for the one year immediately
preceding the petition did not “cause” his non-support, justifiably or otherwise. The Eighth
District Court of Appeals addressed a similar situation in In re Apanovitch, 8th Dist.
Cuyahoga No. 40469, 1980 WL 354559 (Mar. 6, 1980). The issue there was whether a
biological father, who was imprisoned during the one year prior to an adoption petition,
had justifiable cause for failing to provide maintenance and support for his child. In finding
no justifiable cause, the Eighth District recognized that the father had failed to provide for
his child for two years before going to prison. It reasoned:
The question before the Court is whether a wilful failure to support
becomes a failure to support with justifiable cause when the parent is
incarcerated. The Court is of the opinion that if it is wilful to begin with, it
continues to be so even if the parent is subsequently incarcerated, at least
where the original failure to support was for a substantial period of time.
Having failed to support for two years, the Court will not presume the father
would have changed his ways but for the fact of incarceration. -13-
Revised Code 3107.07 provides that the consent to adoption of the
parent of a minor is not required when the parent “has failed without
justifiable cause * * * 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 * * *.” In re
Schoeppner, 46 Ohio St.2d 21, 345 N.E.2d 608 (1976) held that
imprisonment alone did not constitute a wilful failure to support as a matter
of law, but might constitute such a failure when combined with other factors.
Here the Court is of the opinion that such other factors are present. Although
he did attempt some communication with the child after he was imprisoned,
the plain fact is that his interest in and support of the child when he was
under no constraints, was totally inadequate to the needs of the child. The
legislature in January of 1977 shortened the period of non-support which
would obviate consent of the non-supporting parent from two years to one
year. In this case, the non-support has spanned four years, two years when
the father was free and two years when he was incarcerated. The Court
thus holds that wilful non-support over a substantial period continues to be
wilful after the non-supporting parent is incarcerated.
Id. at *1.
{¶ 25} We find the Eighth District’s reasoning in Apanovitch to be persuasive and -14-
equally applicable here. 1 Under R.C. 3107.07(A), Stepfather was required to prove
Father’s non-support for a period of “at least one year” immediately before the filing of the
adoption petition. Stepfather actually proved that Father had failed to support his child for
nearly four years immediately before the adoption petition, and more than two and one-
half of those years of non-support occurred before Father’s imprisonment. Under these
circumstances, we are unpersuaded that Father’s unjustifiable non-support before going
to prison can be transformed into justifiable non-support by virtue of his OVI conviction,
violation of a protection order, and resulting prison sentence. Father’s history of non-
support before, during, and after his imprisonment constituted clear and convincing
evidence that his imprisonment did not “cause” his failure to provide for his child.
{¶ 26} Although Apanovitch is directly analogous to the present case, the same
idea has been expressed in other adoption cases involving justifiable-cause
determinations. For example, in In re J.R.I., 2023-Ohio-475, 209 N.E.3d 93, this court
examined justifiable cause for a parent’s failure to maintain more than de minimis contact
with a child. At issue was whether the lack of contact was justified by a no-contact court
order. We cited and relied on a concurring opinion by Justice DeWine in In re Adoption of
A.K., 168 Ohio St.3d 225, 2022-Ohio-350, 198 N.E.3d 47. Therein, Justice DeWine
reasoned that whether a no-contact order provides justifiable cause depends in part on
1 In Bovett, 33 Ohio St.3d 102, 515 N.E.2d 919, the Ohio Supreme Court recognized that the test is whether a parent’s non-support is “without justifiable cause,” not whether the non-support is “willful.” Id. at 105, fn. 2. While the Eighth District referred to both willful non-support and a lack of justifiable cause in Apanovitch, the Ohio Supreme Court acknowledged in Bovett “that there is a close similarity between the two standards.” Id. In any event, the Eighth District’s analysis of the issue supports our finding of no justifiable cause. -15-
“ ‘the extent to which the parent’s lack of contact with his or her child was truly a result of
the order.’ ” In re J.R.I. at ¶ 31, quoting In re Adoption of A.K. at ¶ 24 (DeWine, J.,
concurring). A no-contact order would not justify a lack of contact where a parent
previously had “sworn off any desire to have contact with the child.” In such a case, “the
order is not the reason for the lack of contact[.]” In re Adoption of A.K. at ¶ 46 (DeWine,
J., concurring).
{¶ 27} This court also addressed justifiable cause for an incarcerated father’s non-
support in In re Adoption of Stidham, 2d Dist. Montgomery No. 16930, 1998 WL 656567
(Sept. 25, 1998). In that case, the biological father had failed to support his daughter for
the entire nine years of her life. With regard to the one-year period preceding the adoption
petition, the father worked during the first few months, was in a drug-rehabilitation facility
for the middle months, and chose not to work during the last few months. Reviewing these
facts, this court reasoned: “[Father] paid no support during the statutory period before he
entered [the rehabilitation center], and he paid no support during the statutory period after
he left. And with a view to [Father’s] nine-year history relative to the basic needs of his
daughter, * * * the trial court reasonably could infer that the appellant’s residence at the
rehabilitation center was not a justifiable cause for his routine failure to provide
maintenance and support as required by R.C. 3107.07.” Id. at *4.
{¶ 28} Finally, in In re Adoption of Carter, 4th Dist. Gallia No. 95 CA 11, 1995 WL
756569, the Fourth District Court of Appeals considered whether a biological father had
justifiable cause for not supporting his child where he was injured for approximately the
first two months of the relevant one-year period and was incarcerated for the remaining -16-
ten months. In upholding a finding of no justifiable cause, the Fourth District reasoned:
We note that appellant has never supported his child. When
appellant received a $33,000 worker’s compensation settlement in 1989, he
squandered the entire settlement within thirty days on hotel bills, limousine
rentals, alcohol and crack cocaine. A reasonable person would have
resisted the temptation to squander the money at that speed. A reasonable
person would have retained some of that money or would have retained
some assets purchased with that money until at least April 5, 1990, the date
appellee filed his petition to adopt the child. A reasonable person would
have retained some of the money or assets for the benefit of his or her minor
child.
We should not and will not condone appellant’s purposeful
dissipation of his assets. Appellant should not benefit from the fact that he
recklessly and rapidly squandered the entire $33,000 settlement prior to the
one-year period immediately preceding the filing of the petition for adoption.
Appellee’s assertion that he had no funds during the relevant time period
with which to support his child because he quickly expended the entire
$33,000 settlement for hotel bills, limousine rentals, alcohol and crack
cocaine is untenable.
Id. at *5-6.
{¶ 29} The foregoing cases are distinguishable from the present case in some
ways. To varying degrees, however, each supports our determination that Father’s non- -17-
support of his child prior to his imprisonment was relevant to whether that imprisonment
truly caused the non-support during his prison term. For the reasons set forth above, we
reiterate our belief that Father’s history of non-support provided clear and convincing
evidence that his imprisonment did not truly and justifiably cause his lack of support for
his child.
{¶ 30} The trial court’s other findings also fail to support its justifiable-cause
determination. The trial court noted that Father had provided food, diapers, and clothing
for the child, but these events occurred prior to Mother and Father’s separation in 2018.
Mother testified that Father provided no support after that time. For his part, Father himself
admitted providing no support after 2019.
{¶ 31} As for Father’s provision of a debit card, that also occurred before he went
to prison. Sometime after the parties separated, Father gave Mother the card while telling
her that he had reported it stolen. During the adoption-petition hearing, Father
acknowledged on cross-examination that this may be why Mother never used the card.
Father’s provision of a debit card that he told Mother he had reported stolen cannot
reasonably be considered maintenance and support.
{¶ 32} Father’s provision of the card also helped explain why Mother at least
initially did not seek a formal child-support order. During the adoption-petition hearing,
Mother testified that she and Father had intended the debit card to be in lieu of a formal
support order. She explained:
[Father] had asked me not to go through the child support agency for
child support and said that he would give me a debit card that did not have -18-
my name on it. I was not on the account, so I expressed my concern with
that and I told him that—you know, if he wanted to make that arrangement,
for my name to be on the account.
Then approximately—I don’t know—maybe a week or two later, he
said he reported the card stolen. And at that same time, he had been calling
my employer trying to get me thrown in prison. So it was my gut feeling that
he was providing that card to get me to use it to say that I stole it so he could
get me put in jail for it.
Transcript Vol. I at 101.
{¶ 33} But regardless of Mother’s failure to seek a child-support order, as noted
above, Father retained an independent statutory obligation to support his child. Although
the trial court opined that Mother and Father both seemed to have believed no support
was required because no support was demanded, this conclusion was unsupported by
the evidence. Father’s provision of a debit card was at least an implicit recognition of his
duty to support his child. During his testimony, Father himself characterized the debit card
as his “child support.” Moreover, Mother’s acceptance of the card did nothing to suggest
that she neither needed nor desired child support. Indeed, it suggested the opposite. We
see no evidence to support the existence of a mutual understanding that child support
was not requested or required.
{¶ 34} Finally, the trial court noted that Father’s mother had given gifts to the child
during Father’s incarceration on his behalf. The record reflects that these gifts were given
twice for the child’s birthday and once for Christmas while Father was imprisoned.
Nominal gifts of this nature do not constitute maintenance and support under R.C. -19-
3107.07(A). In re Adoption of Stidham, 2d Dist. Montgomery No. 16930, 1998 WL
656567, at *2.
{¶ 35} For the foregoing reasons, we conclude that the trial court’s justifiable-
cause determination regarding Father’s failure to provide maintenance and support for
his child was against the manifest weight of the evidence. On that issue, the trial court
clearly lost its way and created a manifest miscarriage of justice. Based on our review of
the record, Stepfather met his burden to prove by clear and convincing evidence that
Father had failed, without justifiable cause, to provide maintenance and support for his
child for at least one year immediately preceding the adoption petition filing date.
{¶ 36} In light of this determination, we need not address Stepfather’s additional
argument that Father failed to have more than de minimis contact with the child during
the relevant time. “Because R.C. 3107.07(A) is written in the disjunctive, either failure to
communicate or failure to support during the one-year time period is sufficient to obviate
the need for a parent’s consent.” In re Adoption of R.M.Z., 2d Dist. Montgomery No.
23511, 2009-Ohio-5627, ¶ 9, citing In re Adoption of Ford, 166 Ohio App.3d 161, 2006-
Ohio-1889, 849 N.E.2d 330, ¶ 4 (3d Dist.), citing In re Adoption of McDermitt, 63 Ohio
St.2d 301, 304, 408 N.E.2d 680 (1980).
{¶ 37} Stepfather’s first assignment of error is sustained. The second assignment
of error is overruled as moot, as it raises the same issue under an incorrect standard of
review.
B. Best-Interest Determination
{¶ 38} In his third assignment of error, Stepfather contends the trial court -20-
“committed plain error by not finalizing the stepparent adoption when it found that it was
in the best interest of the child but that Father’s failure to contact and/or support the child
was justified for the applicable period and therefore his consent was required.”
{¶ 39} Contrary to Stepfather’s argument, the trial court did not find that adoption
was in the child’s best interest. Although the evidentiary hearing encompassed that issue,
the trial court declined to decide it. Given its finding that Father’s consent was required,
the trial court explained that it did “not reach a decision” regarding the best interest of the
child. In our view, the proper procedure is to remand the case for the trial court to resolve
the best-interest question in the first instance. Although Father’s consent to adoption is
not required, the trial court still must find that adoption by Stepfather is in the child’s best
interest in order for the petition to be granted. In re Adoption of J.A.M., 2d Dist. Greene
No. 2022-CA-14, 2022-Ohio-2313, ¶ 9, 11. Accordingly, Stepfather’s third assignment of
error is overruled.
III. Conclusion
{¶ 40} Having sustained Stepfather’s first assignment of error, we reverse the trial
court’s judgment denying his adoption petition. The case is remanded for the trial court to
determine whether adoption is in the best interest of the child.
WELBAUM, P.J. and HUFFMAN, J., concur.