[Cite as In re Adoption of G.A.J.-K., 2025-Ohio-1276.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MIAMI COUNTY
IN THE MATTER OF: THE ADOPTION : OF G.A.J.-K. : : C.A. No. 2024-CA-24 : : Trial Court Case No. 20245017 : : (Appeal from Common Pleas Court- : Probate Division) : :
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OPINION
Rendered on April 11, 2025
JAY M. LOPEZ & CHARLYNE L. ADAMS, Attorneys for Appellant
WILMER J. DECHANT, JR., Attorney for Appellee
.............
HUFFMAN, J.
{¶ 1} Stepfather appeals from the probate court’s order granting a directed verdict
in favor of Father on Stepfather’s petition to adopt G.A.J.-K. (“the child”). For the reasons
that follow, the probate court erred in granting a directed verdict in favor of Father on the
issue of whether his consent to the child’s adoption was required. The judgment of the -2-
probate court will be reversed, and the matter will be remanded for further proceedings
consistent with this opinion.
Facts and Procedural History
{¶ 2} On May 15, 2024, Stepfather filed a petition to adopt the child, who was born
in 2013. The child’s mother was married to Stepfather, had custody of the child, and
consented to the adoption. The petition stated that Father’s consent was not required
because he had “failed without justifiable cause to provide more than de minimis contact
with the minor for a period of at least one year immediately preceding the filing of the
adoption petition.”
{¶ 3} A hearing to determine whether Father’s consent to the adoption was
required occurred on August 12, 2024. The following evidence was presented at the
hearing.
{¶ 4} Father testified, as on cross-examination, that he had lived in Kettering since
March 2024 with his 3-year-old son, his girlfriend Kayla, and Kayla’s two-year-old
daughter. He had also lived in Tipp City with a previous girlfriend, Taylor, during the year
preceding the filing of the adoption petition. Father admitted that he had not had in-
person contact with the child who was the subject of the adoption petition since May or
June 2023, when he saw her at his mother’s house; he did not recall the length of that
visit. He also acknowledged that he had not had any phone, email, or social media
contact with the child since May 15, 2023.
{¶ 5} Father stated that he had previously contacted the child via Facebook
Messenger. He acknowledged that, during the year in question, he had been aware of -3-
the child’s residential and school addresses. Father also stated that, during that time,
Mother had invited him to attend one event, when she and the child “were going to the
pool.” However, Father then acknowledged text messages in which Mother had invited
him to a birthday party on July 8, 2023, and to go on a boat ride with the child the following
day. Father acknowledged that Mother had not prevented him from attending the events
and that he had stated he would attend the events, but he chose not to do so. Father
also testified that he did not know which church the child regularly attended, and he
denied that Mother had given him that information, but he then acknowledged text
messages dated April 9 and April 30, 2023, in which Mother had sent him the address of
the church.
{¶ 6} He stated that, as of May 16, 2023, he and Mother had an agreed upon
parenting schedule of “every other week,” although there was no court order in place;
according to Father, he had C.A.J.-K. certain days during his weeks, which coordinated
with the days he had his other child. Father did not recall when he had last exercised
his parenting time.
{¶ 7} Father was questioned about specific text message exchanges with Mother.
One of these exchanges suggested that Mother would only allow the child to go with
Father if Taylor was present, but Father denied that Mother had required his parenting
time to be supervised by Taylor or that he had ever agreed to that. Father also
acknowledged that, “as of August 4, 2023,” he had had one in-person visit with the child
and no other contact; on that date, he also posted on Facebook “ever notice how peaceful
life is since you stop dealing with certain individuals[?]” -4-
{¶ 8} Father had an altercation in May 2023 with his girlfriend Taylor; it resulted in
Father pleading guilty to disorderly conduct on August 17, 2023. Father was aware that
he had been blocked from Mother’s phone after his criminal case involving Taylor.
Father identified a text message from the day of his plea, sent at 4:49 p.m., in which
Mother had accused him of screaming at her; Father agreed that it was reasonable to
assume that Mother had been at work at the time, because she worked five days a week.
When asked if he had called Mother at work and told her to stay out of his business with
Taylor, Father stated that he only “got involved” after Mother called Taylor. He
acknowledged raising his voice and said that Mother had blocked his cell phone number
that day. He also admitted that, before June 30, 2023, Mother had repeatedly asked him
to stop calling her on her cell phone while she was at work, and he did not remember if
he had complied with this request.
{¶ 9} Father acknowledged that there was an agreed order related to child support
dated May 2, 2023; that order specified that Father was prohibited from requesting a
modification of child support for three years. Mother admitted into evidence a complaint
Father had filed on April 29, 2024, to allocate parental rights and responsibilities and for
parenting time. Mother’s attorney represented to the court that, in the juvenile court
proceedings related to that filing, Father had also requested a modification of child
support, but the juvenile court did not address the request for modification of child support
because of the agreed duration of the parties’ 2023 order. Father admitted that he had
requested the modification of child support in April 2024 because he wasn’t able to make
the child support payment in the prior order and was “backed up” with an arrearage of -5-
$4,092.27.
{¶ 10} Father testified that he had not had any contact with Stepfather between
May 15, 2023, and May 15, 2024, because Father was trying to work through Mother.
Father acknowledged that he had told Mother “you don’t f…ing know about a damn thing
your Karma is coming soon bitch,” and called her a “leach.” Father denied that Mother
had expressed concern to him about his cocaine usage. When shown a text message
in which Mother mentioned his alleged drug use, he stated, “She obviously stated that in
the text messages, yes.” Father denied abusing “non-prescribed” Adderall and stated
that he had had a prescription for Adderall for over a year.
{¶ 11} Brooke Sparks testified that she was the child’s godmother and had last had
contact with Father at a church festival in Vandalia in the fall of 2023, when she went
there with her own children, Mother, and G.A.J.-K. Father had also been present with
his mother and was “off to the side” watching the child on a ride. Father told Sparks that
he did not want to be there because he had other plans.
{¶ 12} Stepfather testified that he had known the child since March 2018. He and
Mother were married in June 2021. Stepfather had last had contact with Father in
September 2023 via text message. According to Stepfather, he “accidently butt dialed”
Father, and Father texted him back to ask if everything was all right; Stepfather responded
yes. Stepfather stated that he had not blocked Father on any social media.
{¶ 13} The child’s soccer coach testified that she had had no contact with Father
during the relevant time period and had never observed him at any of the child’s practices
or games during that time. The coach had known Father for ten years, and they had -6-
each other’s cell phone numbers, but she had never received communication from Father
regarding the child. She testified that she thought he would have felt comfortable enough
to reach out to her about sports or anything else related to the child.
{¶ 14} Mother testified that Father saw the child once during the relevant period at
the church festival on June 9, 2023; she denied that Father saw the child at his mother’s
home in June 2023. Between May 15, 2023, and May 15, 2024, Mother asked Father to
attend events with the child but he did not do so, and he often contacted her at her work
after she repeatedly asked him not to do so. Mother worked 8:00 a.m. to 5:00 p.m., and
when called by Father during that time, she told him she was at work. According to
Mother, they discussed various things, including the child and Father’s “domestic
violence,” but Father never scheduled parenting time with the child.
{¶ 15} Mother testified that, if parenting times were ever arranged, Father did not
attend. For example, Mother stated that she invited Father to the home of Stepfather’s
father for a birthday party, to Land of Illusion for Father’s Day, to go on a boat ride twice
with the child, and to meet for dinner with his grandmother when she was visiting.
According to Mother, Father did not follow through on what he said he would do and did
not attend any of the visits Mother attempted to arrange. For his part, Father also never
attempted to arrange a visit with the child himself during the relevant time period.
{¶ 16} According to Mother, Father had recently deleted her on Instagram and
blocked her on Facebook. Between August 2023 and May 2024, Mother did not offer
Father any parenting time other than the occasions discussed above and did not have
any communication with him. Father also did not request any parenting time during that -7-
period. According to Mother, if Father had found a means to communicate with the child,
she would have allowed him to have access to the child “in a safe environment.” She
did allow the child to interact with Father’s family, and Father could have had access to
the child then. Mother testified that Father’s sister and brother-in-law took the child to
Steak and Shake and skate boarding in the summer of 2023, Father’s sister came to a
soccer practice in the fall of 2023, and Mother and the child met Father’s brother and
sister at McDonald’s and spent the day with them in November 2023. Mother did not
receive communication from any of Father’s family members requesting parenting time
on Father’s behalf.
{¶ 17} Mother testified she knew where Father lived during the relevant period and
would not have allowed the child to spend the night there, although Father did not invite
the child to do so or attempt to arrange any such visit. Mother expressed concern about
the child’s safety in the company of Father and Kayla.
{¶ 18} Mother acknowledged that she let the child spend the night at Father’s Tipp
City address before May 2023, when he resided with Taylor, but she did not do so after
May 15, 2023. According to Mother, there was an incident in which the child had gone
to Father’s house and then called Mother crying and saying that she wanted to come
home, because she had tried to show Father her school project but he had rushed her
and yelled at her. Mother stated that the child also had told her that her paternal
grandfather made her uncomfortable.
{¶ 19} Mother stated that being contacted by Father while she was at work had
caused her “severe anxiety and PTSD”; he had screamed and cursed at her over the -8-
phone while she was at work. Mother also testified that the child had had panic attacks
in Father’s care. She stated that the child did not receive a Christmas present from
Father in 2023.
{¶ 20} On cross-examination, Mother acknowledged that in February 2023, she
had told Father to communicate with her only via text messages; however, she had taken
numerous phone calls from him after that time. Mother stated that she did not want
Father to have unsupervised time with the child for the child’s safety. She acknowledged
that there was no court order restricting Father’s parenting time, and she had not sought
one. The record does not reflect any specific parenting time order for Father during the
relevant time period.
{¶ 21} Mother identified a July 5, 2023 text message she sent to Father in which
she stated that she would not force the child to be around him or his father if the child did
not feel safe. According to Mother, when Father did ask to see the child, Mother would
offer an alternative in which others could be around, so the child felt comfortable, but then
Father wouldn’t come. She acknowledged that she “always” placed restrictions on
Father. Mother allowed Father to speak to the child directly, and she had the child call
Father on his birthday. According to Mother, the child “made a big deal” about Father
asking her about school even though she had been out of school for weeks at that point.
{¶ 22} Mother stated that G.A.L.-K. had her own cell phone. Nonetheless, Father
would call Mother’s phone when Mother was at work or when the child was in bed.
Mother stated that Father had called the child (on Mother’s phone) during the year
preceding the filing of the petition at 9:00 p.m., when the child was sleeping, and then he -9-
would not answer when the child called him back. Mother told Father that the child had
a bedtime. She also testified that she always told G.A.L.-K. if Father had called. When
asked if she admitted that Father made contact with the child, Mother responded, “During
the relevancy period before I blocked him, yes.”
{¶ 23} With respect to her safety concerns, Mother testified that she imposed
conditions on Father’s parenting time because Father would drink and drive with the child
and get in fights with his girlfriends in front of the child. He had also left the child at “Get
Air” (a trampoline park) on a Saturday night when she was 9 years old, and Get Air had
contacted Mother because the child had been “crying and freaking out,” had approached
a detective, and had tried to find her father after he said he would be right back but had
been unable to find him. According to Mother, that was the last time Father had had
contact with the child without anyone else around.
{¶ 24} Mother stated that Father last saw the child in June 2023, at a festival, and
that the child last talked with Father by phone in July 2023 on Father’s birthday.
According to Mother, when the child was in therapy, Father referred to the therapist as
“the B word” and accused Mother of “putting things in [the child’s] head.” The child
stopped counseling in October 2023; she no longer had anxiety or panic attacks at that
time because she hadn’t been around her father. Mother testified that the child did not
want to be around her grandfather and had made statements that her grandmother
“enables her father and grandfather.”
{¶ 25} Mother stated that she had not made any efforts to reestablish a relationship
between Father and the child, because she did not believe that was her “job” and because -10-
the child “has been the best mentally she has ever been” in the year preceding the
hearing. Mother testified that she had invited Father to some things despite the fact that
G.A.J.-K. did not want him to come. Mother testified that the child has not asked to see
Father since the end of August 2023. She also recounted that, when she had had the
child call Father on his last birthday, the child had wished Father a happy birthday, but
then Father handed the phone to his father, and the child “got off the phone while making
faces.” According to Mother, the child had stated that Father lied all the time and didn’t
follow through on things he said he would do, and this “stressed [the child] out” and made
her sad.
{¶ 26} Mother testified that, after the July 5, 2023 text messages, she gave Father
many opportunities to see the child, but he never did so. Mother had expressed
concerns to Father about domestic violence, his cocaine use, lack of stable housing, and
the child’s panic attacks. Mother stated that she would have allowed Father to see the
child in the year preceding the filing of the petition, but not alone. She also testified that
Father had never attempted to contact the child directly on the child’s cell phone or email;
Father only attempted to contact the child by means of Mother’s cell phone.
{¶ 27} At the end of Mother’s testimony, the probate court clarified the following
points in an exchange with Mother: from May to August 2023, Father had made phone
calls to and texted Mother regarding the child; Father sometimes called when the child
was sleeping, and the child would call back the next day but Father did not answer; and
Father had talked with the child on Father’s birthday.
{¶ 28} Stepfather also called Officer Jared Bailey, a patrol officer with the Huber -11-
Heights Police Department, to testify at the hearing. He stated that, on May 28, 2023, he
had been dispatched to a “domestic case” at a cookout involving Father and Father’s
then-girlfriend, Taylor; Taylor reported that she had found cocaine in Father’s wallet, and
an argument had ensued. Taylor left the gathering, leaving their child with Father. When
she returned to pick up the child, Father was talking to another woman, and a second
argument ensued. Taylor reported that Father had grabbed her and thrown her down.
Bailey photographed her injuries. According to Bailey, Taylor reported that she and
Father lived in Tipp City, but Tipp City police were unsuccessful in contacting Father.
Although Taylor reported that Father had possessed cocaine, none was found.
{¶ 29} At the conclusion of Stepfather’s evidence, Father’s attorney moved for a
directed verdict. Father’s attorney argued that he had had at least some contact with the
child during the relevant time and that Mother had substantially interfered with his
attempts to have contact with the child. Stepfather’s attorney responded that Mother had
facilitated contact but any contact that occurred was minimal and that Mother had had
legitimate concerns for the child’s safety. The court took the motion for directed verdict
under advisement.
{¶ 30} On September 18, 2024, the probate court granted Father’s motion for a
directed verdict and dismissed Stepfather’s petition for adoption. It found that Stepfather
had not established by clear and convincing evidence that Father failed to have more
than de minimis contact with the child without justifiable cause. Specifically, the trial
court concluded that there was justifiable cause for Father’s limited contact due to
Mother’s interference. The court noted that the petition had been filed three weeks after -12-
Father filed a complaint for custody and allocation of parental rights and responsibilities
in the juvenile court. The court also noted that Mother and Father had agreed to an
every-other-weekend parenting schedule in May 2023, but almost immediately, Mother
had required supervised visitation. The court found that, during the one-year prior to the
filing of the petition, Mother admitted that she had gotten text messages from Father
wanting to see the child, the child had called and talked with Father (for his birthday), and
Father had sometimes called after 9:00 p.m. and Mother would not let him speak to the
child, but the child would attempt to call him back. Mother had also blocked Father on
her cell phone and told him not to call her at work. Father had seen the child in person
at a festival in June 2023.
{¶ 31} The court found that Mother admitted there had been texts and phone calls
between Father and the child between May and August 2023.1 The court found that,
because of concerns about Father’s rumored cocaine use, Mother had made efforts to
keep Father away from the child during the one-year period prior to the filing of the
petition.
{¶ 32} The court stated that, in examining whether the parent’s failure to have
contact was justified, “the court is not restricted to focusing only on events occurring
during the statutory one-year period. The court must also examine preceding events
having any bearing on the parent’s failure to communicate with his child.”
(Emphasis in original.) The court also noted that even a parent’s complete failure to
1 The trial court’s judgment entry states that there were phone calls and texts between Father and the child during this period, Judgment Entry at ¶ 7, but Mother’s testimony was that there was contact between Father and Mother during this time, except for the child’s call to Father on his birthday. Tr. p. 83, 87. -13-
contact a child will not eliminate the need for the parent’s consent to an adoption if there
was justifiable cause for the failure, and the petitioner bears the burden to show lack of
justifiable cause. The court stressed that “[t]ypically, a noncustodial parent has
justifiable cause for failing to communicate when the custodial parent significantly
interferes with or significantly discourages communication.” (Emphasis in original.)
{¶ 33} The probate court applied the three-step analysis set forth in In re Adoption
of B.I., 2019-Ohio-2450, which stated:
The court must first determine what the law or judicial decree required of
the parent during the year immediately preceding . . . the filing of the
adoption petition . . . . Second, the court determines whether during that
year the parent complied with his or her obligation under the law or judicial
decree. Third, if during that year the parent did not comply with his or her
obligation under the law or judicial decree, the court determines whether
there was justifiable cause for that failure.
Id. at ¶ 15.
{¶ 34} Applying this analysis, the probate court found that Father had had some
contact with the child in June 2023 through August 2023. Further, the court found that
Mother had interfered with Father’s relationship with the child by making it clear to him
that she felt harassed and blocking him from her phone and social media. The court also
noted that Father had filed a complaint to allocate parental rights or for parenting time
weeks prior to the filing of the petition for adoption. On these bases, the court concluded
that Stepfather had failed to establish by clear and convincing evidence that Father did -14-
not have more than de minimis contact with the child in the year prior to the petition
without justifiable cause; in the court’s view, Mother’s interference constituted justifiable
cause for Father’s limited contact. The court granted the motion for a directed verdict
and dismissed the petition for adoption.
Assignments of Error and Analysis
{¶ 35} Stepfather asserts four assignments of error on appeal. His first three
assignments of error are related, and we will consider them together.
THE TRIAL COURT ABUSED ITS DISCRETION BY
DETERMINING FATHER HAD MORE THAN DE MINIMIS CONTACT
WITH THE MINOR CHILD FOR THE YEAR PRECEDING THE FILING OF
THE PETITION FOR ADOPTION.
THE TRIAL COURT ERRED WHEN IT DETERMINED THAT
FATHER HAD JUSTIFIABLE CAUSE FOR FAILURE TO HAVE DE
MINIMIS CONTACT WITH THE MINOR CHILD, AS THE DECISION IS
AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND CONTARY
TO LAW.
THE TRIAL COURT ERRED AS A MATTER OF LAW BY
GRANTING RESPONDENT-APPELLEE’S MOTION FOR DIRECTED
VERDICT.
{¶ 36} In his first assignment, Stepfather argues that the trial court should have
found that he met his burden of showing that Father failed to have more than de minimis
contact with the child in the year preceding the filing of the petition for adoption. -15-
Stepfather asserts that the trial court’s judgment entry contains language “which on its
face appears contradictory.” He asserts that the legislature intended for adoptions to go
forward without the respondent’s consent even when some communication with the minor
child occurred during the relevant period. Stepfather argues that the probate court relied
upon an outdated statute and case law.
{¶ 37} In his second assignment of error, Stepfather challenges the probate court’s
finding that there was justifiable cause for Father’s limited contact with the child. He
argues that Mother did not block Father from contacting the child directly, as the child had
her own phone and email address by which to communicate with Father. Stepfather also
asserts that Father knew that Mother had blocked his calls and should have considered
other reasonable alternatives, including reaching out to the child directly or to him. He
argues that Father’s testimony suggests that he was more interested in speaking with
Mother than the child. Stepfather notes that Father refused to see the child while
supervised. He argues that the probate court should have determined that Father lacked
justifiable cause for his failure to have more than de minimis contact with the child.
{¶ 38} In his third assignment of error, Stepfather asserts that there was “clearly
enough evidence” favoring his petition and that the trial court’s directed verdict was
inappropriate.
{¶ 39} Father responds that R.C. 3107.07(A) does not specify that in-person
contact is required, just that contact be more than de minimis. He argues that, although
his contact with the child was not extensive, it was more than de minimis. While
acknowledging that some of his calls were made after 9:00 p.m., they show that he was -16-
trying to reach the child, and he relied upon Mother to let the child know he had called.
{¶ 40} Father asserts that Mother’s unilateral demand for supervised parenting
time, with only his girlfriend Taylor serving as supervisor, constituted substantial
interference, and that she did not otherwise facilitate parenting time and his relationship
with the child. Father argues that the directed verdict was appropriate because the
probate court “could only come to the conclusion that the adoption petition must be
dismissed” because Stepfather had failed to meet his burden.
{¶ 41} In reply, Stepfather asserts that Father’s contact with the child at the festival
was “not quality contact with the child” and was not “purposely initiated” by Father.
Stepfather also points out that Father never answered the child’s calls when she returned
his late-night calls the next day. Stepfather reasserts that Mother had legitimate
concerns about the child’s unsupervised time with Father and that nothing had prevented
Father from contacting the child directly, rather than through Mother.
Applicable Law
{¶ 42} R.C. 3107.07 states that consent to adoption is not required of any of the
following:
(A) A parent of a minor, when it is alleged in the adoption petition and the
court, after proper service of notice and hearing, finds by clear and
convincing evidence that the parent has failed without justifiable cause to
provide more than de minimis contact with the minor or to provide for the
maintenance and support of the minor as required by law or judicial decree -17-
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.
{¶ 43} “When construing R.C. 3107.07(A), courts are ‘obliged to strictly construe
. . . [its] language to protect the interests of the non-consenting parent who may be
subjected to the forfeiture or abandonment of his or her parental rights.’ ” In re Adoption
of M.M., 2023-Ohio-397, ¶ 34 (6th Dist.), quoting In re Adoption of Sunderhaus, 63 Ohio
St.3d 127, 132 (1992). “That is because ‘[t]he rights to conceive and to raise one's
children have been deemed essential, . . . basic civil rights of man, . . . and [r]ights far
more precious . . . than property rights.’ ” (Internal citations omitted.) Id., quoting
Stanley v. Illinois, 405 U.S. 645, 651 (1972). “The permanent termination of parental
rights is ‘the family law equivalent of the death penalty in a criminal case.’ ” Id., quoting
In re Smith, 77 Ohio App.3d 1, 16 (6th Dist. 1991).
{¶ 44} “Thus, ‘a party filing a petition for adoption who relies upon R.C. 3107.07(A)
bears the burden of establishing by clear and convincing evidence that the exception to
the consent requirement contained therein has been satisfied.’ ” In re A.J.W., 2024-
Ohio-3124, ¶ 51 (2d Dist.), quoting Sunderhaus at 132. “ ‘Clear and convincing evidence
is that measure or degree of proof which is more than a mere “preponderance of the
evidence,” but not to the extent of such certainty as is required “beyond a reasonable
doubt” in criminal cases, and which will produce in the mind of the trier of facts a firm
belief or conviction as to the facts sought to be established.’ ” Id., quoting Cross v.
Ledford, 161 Ohio St. 469 (1954), paragraph three of the syllabus. “Once the petitioner -18-
has established one of the exceptions to the consent requirement, ‘the burden of going
forward shifts to the parent to show some facially justifiable cause for the failure.’ ” Id.,
quoting In re A.N.B., 2012-Ohio-3880, ¶ 10 (12th Dist.), citing In re Adoption of Bovett, 33
Ohio St.3d 102, 104 (1987). However, “ ‘[t]he burden of proof remains with the
petitioner.’ ” Id., quoting A.N.B., citing Bovett.
{¶ 45} In analyzing whether a biological parent has failed to engage in more than
de minimis contact pursuant to R.C. 3107.07(A), the probate court applies a two-step
analysis:
. . . First, the probate court must determine whether the parent has
failed to provide more than de minimis contact with the child. In re
Adoption of M.M.R., 2017-Ohio-7222, ¶ 7 (2d Dist.). The first step involves
deciding a factual question – in this case, whether Father failed to provide
more than de minimis contact with [the child] for a period of at least one
year immediately preceding the filing of the adoption petition. Id.
A.J.W. at ¶ 52.
{¶ 46} “Though not defined by statute, ‘more than de minimis contact’ implies
contact – either attempted or successful – beyond a single occurrence.” In re Adoption
of L.K.P., 2024-Ohio-2551, ¶ 10 (2d Dist.), quoting In re Adoption of T.U., 2020-Ohio-841,
¶ 25 (6th Dist.). Put differently, it demands “ ‘more quality and quantity’ and requires
‘more effort from the parent to have contact and communication with the child’ than is
shown by a one-time contact.” Id., quoting In re Adoption of K.A.H., 2015-Ohio-1971,
¶ 10 (10th Dist.). “Black’s Law Dictionary describes de minimis as ‘trifling; negligible.’ ” -19-
Id., quoting Black’s Law Dictionary (11th ed. 2019.) “De minimis contact certainly
includes any physical visitation with a child, but can also include other forms of contact
and support, such as ‘gifts, cards, letters, financial support and telephone calls.’ ” A.J.W.
at ¶ 54, quoting In re Adoption of A.M.D., 2016-Ohio-6976, ¶ 17 (7th Dist.). We note that
even the incarceration of a parent generally “does not justify the failure to have more than
de minimis contact with the child, because it does not preclude other forms of contact,
such as letter writing or phone calls.” A.J.W. at ¶ 59.
{¶ 47} If the probate court finds that the parent failed to have more than de
minimis contact with the child during the applicable time period, “ ‘the court's second step
is to determine whether justifiable cause for the failure has been proven by clear and
convincing evidence.’ ” Id. at ¶ 53, quoting M.M.R. at ¶ 8, citing In re Adoption of J.R.H.,
2013-Ohio-3385, ¶ 27 (2d Dist.). The term “justifiable cause” is not defined in R.C.
3107.07, and the Ohio Supreme Court has “refused to adopt a ‘precise and inflexible
meaning’ ” for that term; instead, it 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 exits.’ ” (Citations omitted.) In re J.R.I., 2023-Ohio-475, ¶ 34 (2d Dist.),
citing In re Adoption of D.D.G., 2018-Ohio-35 (2d Dist.). “ ‘[A]n important consideration
regarding justifiable cause is the parent’s willingness and ability to . . . contact a child.’ ”
In re Adoption of R.A.H., 2021-Ohio-1667, ¶ 14 (2d Dist.), citing In re Adoption of Masa,
23 Ohio St.3d 163, 166 (1986). “Additionally, a parent’s ‘efforts to enforce his parental
rights, prior to the filing of [a stepparent’s] adoption petition’ are a relevant consideration
when reaching the justifiable cause conclusion.” Id., citing Adoption of M.G.B.-E., 2018- -20-
Ohio-1787, ¶ 43. “ ‘[S]ignificant 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.’ ” In re the Adoption of F.D.H., 2023-Ohio-730,
¶ 11, quoting In re Adoption of Holcomb, 18 Ohio St.3d 361, 367-368 (1985).
{¶ 48} A directed verdict is proper “if, construing the evidence most strongly in
favor of the nonmoving party, the trial court ‘finds that upon any determinative issue
reasonable minds could come to but one conclusion . . . and that conclusion is adverse
to such party.’ ” Simon v. Larreategui, 2022-Ohio-1881, ¶ 18 (2d Dist.), citing Mancz v.
McHenry, 2021-Ohio-82, ¶ 44 (2d Dist.), quoting Civ.R. 50(A)(4). “Because motions for
directed verdicts . . . test the legal sufficiency of the evidence, not its weight or witness
credibility, our review of the trial court's judgment is de novo.” Id. at ¶ 20, citing Schafer
v. RMS Realty, 138 Ohio App.3d 244, 257 (2d Dist. 2000).
1. De Minimis Contact
{¶ 49} As noted above, the relevant period herein was May 15, 2023, to May 15,
2024, the date Stepfather filed the petition to adopt the child. The probate court found
that Father “had sufficient contact” during that period. Father testified that he had not
had phone, email, or social media contact with the child since May 15, 2023. He also
testified that he had been aware of the child’s residential and school addresses and
acknowledged that Mother had invited him to attend certain events with the child but, by
his own admission, he chose not to attend. There was no evidence that Father sent
letters or gifts to the child. -21-
{¶ 50} The child’s soccer coach testified that Father did not attend the child’s
soccer practices or games. Mother testified that Father repeatedly called her at work to
discuss “many things,” but he did not schedule parenting time with the child. Father
acknowledged that he wanted to speak with Mother, did not contact the child directly on
her phone or via email, and did not seek contact with her through Stepfather or Father’s
family members. The one time that Father did have in-person contact with the child at a
festival, the child’s godmother testified that Father had told her that he did not want to be
there because he had other plans. Pursuant to R.C. 3107.07, Father was charged with
making the effort to contact the child, and the burden was not on Mother, although she
did make efforts to arrange parenting time.
2. Justifiable Cause
{¶ 51} The probate court determined that there was justifiable cause for Father’s
limited contact with the child due to Mother’s interference. Although Mother had blocked
Father on her own cell phone on August 17, 2023, the record reflects that Father had
multiple other ways to reach his child, as one might reasonably expect him to do if he
sought to form or sustain a relationship with the child. See In re A.J.W., 2024-Ohio-3124,
¶ 59 (2d Dist.), quoting In re Adoption of S.M.H., 2014-Ohio-45, ¶ 15 (2d Dist.). Most
significantly, Mother had blocked Father on her cell phone as a means to reach the child
because he had abused that method of contact, calling Mother while she was at work
after she had asked him not to do so and when he knew the child would not be present,
or after the child went to bed. Under these circumstances, we conclude that Father’s
attempts to contact Mother were not synonymous with attempting to contact the child. -22-
See In re Adoption of B.R.R., 2024-Ohio-478, ¶ 52 (7th Dist.).
{¶ 52} Stepfather testified that he had once accidentally ‘butt dialed” Father on his
cell phone, and Father texted him in response. This demonstrated that Father had
Stepfather’s phone number, and thus an additional means of contacting the child.
Stepfather stated that he had not blocked Father on any social media. The soccer coach
testified that she had a relationship with Father, including that he had once helped her
move, and she thought he would have felt comfortable enough to reach out to her about
sports or anything else regarding the child. Nothing in Stepfather’s or the coach’s
testimony suggested that they would not have facilitated Father’s contact with the child,
and Mother stated that if Father had found a means to reach the child other than her cell
phone, she would have allowed the contact. Father had ample means to contact the
child other than Mother’s cell phone.
{¶ 53} Mother’s testimony further made clear that Father could have had access
to the child when she and the child spent time with Father’s family members. The child
also had her own cell phone and email address that Father could have used to contact
her directly. Mother tried to facilitate communication between Father and the child, and
Father failed to demonstrate any willingness to contact the child through the several
means available to him. It was not Mother’s responsibility to arrange contact between
the child and Father, although she made numerous attempts to do so.
{¶ 54} For the reasons set forth above, we conclude that reasonable minds
certainly could have disagreed as to whether Stepfather had shown that Father failed to
have more than de minimis contact with the child for one year preceding the filing of the -23-
petition without justifiable cause. There was not insufficient evidence to support
Stepfather’s petition as a matter of law, and the trial court could not properly consider the
weight or credibility of the evidence on a motion for directed verdict. Thus, the probate
court erred in granting Father’s motion for a directed verdict. Because we reach this
conclusion on Stepfather’s third assignment of error, we will remand for the probate court
to allow Father to present his evidence and then to weigh all of the evidence to determine
whether Stepfather’s petition is supported by clear and convincing evidence, including as
to his assertion that Father’s consent to the adoption was unnecessary. We need not
address Stepfather’s assignments of error that the trial court’s conclusion was against the
manifest weight or an abuse of discretion, as those issues are not ripe for appeal at this
time.
{¶ 55} Stepfather’s third assignment of error is sustained. Stepfather’s first and
second assignments of error are not ripe for review.
{¶ 56} Stepfather’s fourth assignment of error states:
THE TRIAL COURT ERRED WHEN IT FAILED TO PROPERLY CORRECT
THE TRANSCRIPT TO CONFORM TO THE AUDIO RECORD OF THE
{¶ 57} Stepfather asserts that he filed a motion to correct the record on November
4, 2024, in the probate court. He notes that an amended transcript was filed on
November 18, 2024, but he contends that four requested changes “material” to his appeal
were not made. Stepfather then filed a second motion to correct the record. Father
points out that a second amended transcript was filed on December 9, 2024, and that the -24-
alleged errors are so insignificant that they would not change the decision of the trial court.
{¶ 58} The audio recording of the proceedings before the probate court is not part
of our appellate record. Accordingly, we have no way to compare it with the original
transcript, or the amended transcript(s), as Stepfather urges us to do. Having concluded
that the record reflects that Stepfather met his burden to overcome Father’s motion for a
directed verdict, further analysis of Stepfather’s fourth assignment of error is
unnecessary.
{¶ 59} Having sustained Stepfather’s third assignment of error, the judgment of the
probate court is reversed. The matter is remanded to the probate court for further
proceedings consistent with this opinion.
TUCKER, J. and LEWIS, J., concur.