[Cite as In re Adoption of E.W., 2024-Ohio-5633.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
IN RE: :
ADOPTION OF E.W., JR., et al. : CASE NOS. CA2024-06-080 CA2024-06-081 : OPINION : 12/2/2024
:
CIVIL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS PROBATE DIVISION Case Nos. PA22-12-0108 and PA22-12-0109
Muhammad Hamidullah, for appellant.
D. Joseph Auciello, Jr., for appellees.
HENDRICKSON, J.
{¶ 1} Appellant, the biological mother of two children ("Mother"), appeals the
Butler County Probate Court's decision that her consent is not required for the adoption
of the children by their foster parents.
{¶ 2} The two children involved in this case were born in November 2017 and
September 2018. Butler County Children Services investigated allegations of abuse Butler CA2024-06-080 CA2024-06-081
regarding the children that involved a brain bleed in the younger child and a burn on the
older child. In January 2019, both children were removed from the home and placed in
foster care. They have remained in the same home since that time. Mother was charged
with two counts of child endangering involving the children. As part of a plea agreement
with the state, she pled guilty to one count of child endangering and was sentenced to 18
months in prison.
{¶ 3} Mother was released from prison in April 2021 with a requirement that she
have no contact with the children. Shortly after her release, she violated her parole by
having contact with the children. As a result, she was ordered to complete the Monday
program and was released from the program in October 2021. After her release, Mother
was out around a year, but again violated her parole and was sentenced to 72 days in
jail. She was released in January 2023.
{¶ 4} In December 2022, shortly before Mother's release from incarceration, the
foster parents filed a petition to adopt the children. The children's father failed to respond
or appear and the probate court therefore determined his consent was not required.
Mother contested the adoption and a hearing was held on the issue of whether her
consent was required. In a written decision, the probate court determined that Mother's
consent was not necessary because she failed to support the children in the one-year
period before the petition was filed.
{¶ 5} Mother now appeals this decision, raising the following assignment of error:
{¶ 6} THE TRIAL COURT ERRED BY FINDING THAT CONSENT IS NOT
REQUIRED BECAUSE APPELLANT/MOTHER DID NOT PROVIDE MAINTENANCE
AND SUPPORT FOR THE MINOR CHILDREN.
{¶ 7} We begin our analysis by recognizing that the right of natural parents to the
-2- Butler CA2024-06-080 CA2024-06-081
care and custody of their children is one of the most precious and fundamental in law. In
re Adoption of C.M.F., 2013-Ohio-4719, ¶ 8 (12th Dist.). Because adoption terminates
the parental rights of a natural parent, Ohio law requires the parent's consent to
an adoption unless a specific statutory exemption exists. In re Adoption of A.N.B., 2012-
Ohio-3880, ¶ 5 (12th Dist.).
{¶ 8} In Ohio, an exemption to parental consent exists if a court finds, after notice
and a hearing, that in the year preceding the adoption petition, the parent failed without
justifiable cause to have more than de minimis contact with the child or the parent failed
to provide maintenance and support for the child. R.C. 3107.07(A); In re Adoption of
A.O.P., 2022-Ohio-2532, ¶ 14 (12th Dist.). This exemption involves a two-step analysis:
(1) whether the parent failed to engage in more than de minimis contact with the child or
failed to provide for the maintenance and support to the child in the year immediately
preceding the filing of the adoption petition, and (2) whether the parent had justifiable
cause for the failure to contact the child or provide maintenance and support for the
child. In re Adoption of C.E.S., 2020-Ohio-6902, ¶ 21 (12th Dist.). Because the first
element is written in the alternative, the probate court need only find either a lack of
contact with the minor or a failure to provide maintenance and support to the minor. In
re Adoption of O.J.B., 2020-Ohio-4184, ¶ 9 (12th Dist.).
{¶ 9} The petitioner in an adoption proceeding bears the burden of proving the
elements of a consent exemption by clear and convincing evidence. In re Adoption of
M.G.B.-E., 2018-Ohio-1787, ¶ 31. After the petitioner has established a parent's lack of
contact or support, the parent bears the burden of going forward with evidence to show a
facially justifiable cause for the failure, although the burden of proof remains on the
petitioner. Id.; In re Adoption of A.O.P. at ¶ 15.
-3- Butler CA2024-06-080 CA2024-06-081
{¶ 10} When reviewing a probate court's decision on parental consent, an
appellate court applies two different standards of review. Id. at ¶ 11. An abuse of
discretion standard of review applies to the probate court's decision as to whether a
parent's contact with his or her child, or provision of maintenance and support for the
child, met the statutory standard. In re Adoption of C.E.S. at ¶ 22. However, the probate
court's decision on whether a parent had justifiable cause for the failure to contact or
provide maintenance and support to the child is reviewed under a manifest weight of the
evidence standard. Id. at ¶ 23.
{¶ 11} As mentioned above, the probate court found that Mother had failed to
provide support for her children in the year preceding the adoption petition. R.C. 3107.07
requires a trial court to determine whether the parent failed "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 Ohio,
there are two statuses of parental support obligations. In re Adoption of B.I., 2019-Ohio-
2450, ¶ 27. First, R.C. 3103.03 provides a general obligation of parents to support their
children. Id. Second, there is a specific child-support obligation imposed by judicial
decree that supersedes the general obligation. Id.
{¶ 12} The Ohio Supreme Court has determined that when a parent is subject to
a child support order, considering whether the parent has failed to support a child "as
required by law or judicial decree" requires the court to determine if the parent complied
with the terms of the child support order. In re Adoption of A.C.B., 2020-Ohio-629, ¶ 8.
In this case, Mother acknowledged that she was under a child support obligation during
the one-year lookback period. The documentary evidence at the consent hearing
established that Mother was under a child support order to pay $167.24 a month during
-4- Butler CA2024-06-080 CA2024-06-081
the relative time period.
{¶ 13} The parties stipulated to the admission of a payment summary prepared by
the Butler County Child Support Enforcement Agency. This document shows that in the
year preceding the adoption petition, December 28, 2021 through December 28, 2022,
Mother only met her monthly obligation during the months of March and December 2022.
She made only partial payments in February, May and June. During the months of
January, April, July, August, September, October, and November, Mother made no
payments at all.
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[Cite as In re Adoption of E.W., 2024-Ohio-5633.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
IN RE: :
ADOPTION OF E.W., JR., et al. : CASE NOS. CA2024-06-080 CA2024-06-081 : OPINION : 12/2/2024
:
CIVIL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS PROBATE DIVISION Case Nos. PA22-12-0108 and PA22-12-0109
Muhammad Hamidullah, for appellant.
D. Joseph Auciello, Jr., for appellees.
HENDRICKSON, J.
{¶ 1} Appellant, the biological mother of two children ("Mother"), appeals the
Butler County Probate Court's decision that her consent is not required for the adoption
of the children by their foster parents.
{¶ 2} The two children involved in this case were born in November 2017 and
September 2018. Butler County Children Services investigated allegations of abuse Butler CA2024-06-080 CA2024-06-081
regarding the children that involved a brain bleed in the younger child and a burn on the
older child. In January 2019, both children were removed from the home and placed in
foster care. They have remained in the same home since that time. Mother was charged
with two counts of child endangering involving the children. As part of a plea agreement
with the state, she pled guilty to one count of child endangering and was sentenced to 18
months in prison.
{¶ 3} Mother was released from prison in April 2021 with a requirement that she
have no contact with the children. Shortly after her release, she violated her parole by
having contact with the children. As a result, she was ordered to complete the Monday
program and was released from the program in October 2021. After her release, Mother
was out around a year, but again violated her parole and was sentenced to 72 days in
jail. She was released in January 2023.
{¶ 4} In December 2022, shortly before Mother's release from incarceration, the
foster parents filed a petition to adopt the children. The children's father failed to respond
or appear and the probate court therefore determined his consent was not required.
Mother contested the adoption and a hearing was held on the issue of whether her
consent was required. In a written decision, the probate court determined that Mother's
consent was not necessary because she failed to support the children in the one-year
period before the petition was filed.
{¶ 5} Mother now appeals this decision, raising the following assignment of error:
{¶ 6} THE TRIAL COURT ERRED BY FINDING THAT CONSENT IS NOT
REQUIRED BECAUSE APPELLANT/MOTHER DID NOT PROVIDE MAINTENANCE
AND SUPPORT FOR THE MINOR CHILDREN.
{¶ 7} We begin our analysis by recognizing that the right of natural parents to the
-2- Butler CA2024-06-080 CA2024-06-081
care and custody of their children is one of the most precious and fundamental in law. In
re Adoption of C.M.F., 2013-Ohio-4719, ¶ 8 (12th Dist.). Because adoption terminates
the parental rights of a natural parent, Ohio law requires the parent's consent to
an adoption unless a specific statutory exemption exists. In re Adoption of A.N.B., 2012-
Ohio-3880, ¶ 5 (12th Dist.).
{¶ 8} In Ohio, an exemption to parental consent exists if a court finds, after notice
and a hearing, that in the year preceding the adoption petition, the parent failed without
justifiable cause to have more than de minimis contact with the child or the parent failed
to provide maintenance and support for the child. R.C. 3107.07(A); In re Adoption of
A.O.P., 2022-Ohio-2532, ¶ 14 (12th Dist.). This exemption involves a two-step analysis:
(1) whether the parent failed to engage in more than de minimis contact with the child or
failed to provide for the maintenance and support to the child in the year immediately
preceding the filing of the adoption petition, and (2) whether the parent had justifiable
cause for the failure to contact the child or provide maintenance and support for the
child. In re Adoption of C.E.S., 2020-Ohio-6902, ¶ 21 (12th Dist.). Because the first
element is written in the alternative, the probate court need only find either a lack of
contact with the minor or a failure to provide maintenance and support to the minor. In
re Adoption of O.J.B., 2020-Ohio-4184, ¶ 9 (12th Dist.).
{¶ 9} The petitioner in an adoption proceeding bears the burden of proving the
elements of a consent exemption by clear and convincing evidence. In re Adoption of
M.G.B.-E., 2018-Ohio-1787, ¶ 31. After the petitioner has established a parent's lack of
contact or support, the parent bears the burden of going forward with evidence to show a
facially justifiable cause for the failure, although the burden of proof remains on the
petitioner. Id.; In re Adoption of A.O.P. at ¶ 15.
-3- Butler CA2024-06-080 CA2024-06-081
{¶ 10} When reviewing a probate court's decision on parental consent, an
appellate court applies two different standards of review. Id. at ¶ 11. An abuse of
discretion standard of review applies to the probate court's decision as to whether a
parent's contact with his or her child, or provision of maintenance and support for the
child, met the statutory standard. In re Adoption of C.E.S. at ¶ 22. However, the probate
court's decision on whether a parent had justifiable cause for the failure to contact or
provide maintenance and support to the child is reviewed under a manifest weight of the
evidence standard. Id. at ¶ 23.
{¶ 11} As mentioned above, the probate court found that Mother had failed to
provide support for her children in the year preceding the adoption petition. R.C. 3107.07
requires a trial court to determine whether the parent failed "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 Ohio,
there are two statuses of parental support obligations. In re Adoption of B.I., 2019-Ohio-
2450, ¶ 27. First, R.C. 3103.03 provides a general obligation of parents to support their
children. Id. Second, there is a specific child-support obligation imposed by judicial
decree that supersedes the general obligation. Id.
{¶ 12} The Ohio Supreme Court has determined that when a parent is subject to
a child support order, considering whether the parent has failed to support a child "as
required by law or judicial decree" requires the court to determine if the parent complied
with the terms of the child support order. In re Adoption of A.C.B., 2020-Ohio-629, ¶ 8.
In this case, Mother acknowledged that she was under a child support obligation during
the one-year lookback period. The documentary evidence at the consent hearing
established that Mother was under a child support order to pay $167.24 a month during
-4- Butler CA2024-06-080 CA2024-06-081
the relative time period.
{¶ 13} The parties stipulated to the admission of a payment summary prepared by
the Butler County Child Support Enforcement Agency. This document shows that in the
year preceding the adoption petition, December 28, 2021 through December 28, 2022,
Mother only met her monthly obligation during the months of March and December 2022.
She made only partial payments in February, May and June. During the months of
January, April, July, August, September, October, and November, Mother made no
payments at all. In total, Mother paid $610.32 toward her yearly support obligation of
$2,006.88, which amounts to approximately 30 percent of her obligation. Therefore, we
agree with the trial court that Mother did not comply with the terms of the child support
order and therefore failed to support the children "as required by law or judicial decree."
{¶ 14} However, not every failure to provide support as required by law or judicial
decree will mean that a parent's consent to an adoption is not required. In re Adoption of
A.C.B. at ¶ 16. The next step of the analysis requires the court to determine if there is
justifiable cause for the failure to support. Id. Both this court and the Ohio Supreme Court
have previously recognized that key factor in determining whether there is justifiable
cause for a parent's failure to support her child is the parent's ability to pay. In re Adoption
of Masa, 23 Ohio St. 3d 163 (1986); In re Adoption of A.O.P., 2022-Ohio-2532, ¶ 27 (12th
Dist.). Generally, determining whether a parent is financially capable of paying support
requires an examination of the amount of income from all sources, the amount of the
support order, and the parent's entire financial situation including the types and amounts
of other financial obligations. In re Adopt. of S.G.L., 2024-Ohio-2248, ¶ 22 (9th Dist.).
{¶ 15} As mentioned above, although the overall burden of proof remains with the
petitioners, Mother was required to go forward with evidence to demonstrate a
-5- Butler CA2024-06-080 CA2024-06-081
facially justifiable cause for the failure to support. In re Adoption of A.O.P. at ¶ 15. When
the evidence establishes a lack of the requisite contact or support, a parent "may not
simply remain mute," but instead, must demonstrate some facially justifiable cause for the
failure. In re A.L.H., 2020-Ohio-3527, ¶ 8 (9th Dist.).
{¶ 16} Mother testified that she was working during most of the lookback period.
She testified that shortly after her release in October 2021, she began working for Pacific
Manufacturing. She stated that she worked there for four or five months but quit when
they would not let her switch from third shift to first shift. She indicated that she was living
with her stepfather and believed that child support deductions were taken out during this
time. She also testified that she was working for DoorDash during the relevant time
period, but did not consider it "a legit job" and did not pay child support on her earnings.
{¶ 17} Mother did not provide any specifics regarding the hours or compensation
she received, nor any information on her expenses or overall financial situation. When
questioned why she did not meet her child support obligations, Mother indicated only that
she was "unable to" but did not provide any further detail or explanation. Accordingly, we
find the trial court did not err in finding that justifiable cause for Mother's failure to support
the children was not established.
{¶ 18} In conclusion, we find that the probate court did not err in determining that
Mother's consent to the adoption was not required because she failed, without justifiable
cause, to support the children as required by judicial decree. Mother's sole assignment
of error is overruled.
{¶ 19} Judgment affirmed.
BYRNE, P.J., and M. POWELL, J., concur.
-6-