[Cite as In re M.G.B.-E., 2019-Ohio-753.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
CLINTON COUNTY
IN THE MATTER OF THE : CASE NO. CA2018-10-016 ADOPTION OF: : OPINION M.G.B.-E. 3/4/2019 :
APPEAL FROM CLINTON COUNTY COURT OF COMMON PLEAS PROBATE DIVISION Case No. 20155012
The Law Offices of Jason A. Showen, LLC, Jason A. Showen, 324 East Warren Street, Lebanon, Ohio 45036 for appellee
Rion, Rion & Rion, L.P.A., Inc., Bradley D. Anderson, Kevin M. Darnell, 130 West Second Street, Suite 2150, Dayton, Ohio 45402 for appellant
M. POWELL, J.
{¶ 1} Appellant, the biological father of M.G.B.-E., appeals a decision of the Clinton
County Court of Common Pleas, Probate Division, finding that his consent was not required
for the adoption of his daughter by her stepfather.
{¶ 2} When Father and Mother divorced in November 2004, Mother was awarded
custody of the couple's two children and Father was awarded visitation.1 Mother stopped
1. This case initially involved stepfather's petitions to adopt both children. The couple's oldest child reached the age of 18 during the course of this case and the case now only involves the petition to adopt M.G.B.-E. Clinton CA2018-10-016
allowing visitation and made allegations of abuse against Father and his relatives.
Problems between the parties and legal proceedings regarding visitation continued for
several years. Ultimately, the domestic relations court issued an order that Father's
parenting time should resume after Father and the children engaged in therapy to help the
transition of the children to spending time again with Father.
{¶ 3} Counseling had not commenced as of late 2008. Thus, the domestic relations
court dismissed the pending proceedings for want of prosecution and father's visitation was
never resumed. Mother changed the children's last names, moved several times and
remarried. Father, who also remarried, claims that for many years he did not know the
children's whereabouts until a babysitter saw his son at a sporting event in 2014 and he
was then able to determine where the children attended school and lived.
{¶ 4} Father filed a motion in the domestic relations court on May 14, 2015 to
reestablish parenting time. Four days later, stepfather filed a petition in probate court to
adopt the children and claimed Father's consent was not necessary because Father had
failed, without justifiable cause, to have more than de minimis contact with the children in
the year preceding the petition to adopt.
{¶ 5} The probate court found that Father's consent was not required for the
adoption and this court affirmed on appeal. In re M.G.B.-E., 12th Dist. Clinton No. CA2016-
06-017, 2016-Ohio-7912. However, the Ohio Supreme court determined that the probate
court had erred in failing to consider the Father's pending parenting proceedings in domestic
relations court and remanded the case for the probate court to consider those proceedings
in determining whether the Father failed without justifiable cause to have contact with his
children. In re M.G.B.-E., 154 Ohio St.3d 17, 2018-Ohio-1787.
{¶ 6} At a subsequent hearing, the parties disagreed regarding which domestic
relations court case records the probate court should consider on remand. Stepfather
-2- Clinton CA2018-10-016
argued that the court should only consider filings in the domestic relations court which
occurred prior to the date the adoption petition was filed. Father argued that the probate
court should consider all filings in domestic relations court up to the date of the hearing on
remand.
{¶ 7} On August 30, 2018, the probate court issued a decision in which it
determined that it should only consider domestic relations court filings up to the date of the
original hearing on the adoption petition. The probate court further stated that it had
considered the domestic relations court's filings up to the date of the original hearing on the
adoption petition and had again determined that Father's consent to the adoption was not
required.
{¶ 8} Father now appeals the probate court's decision on remand and raises the
following three assignments of error for our review:
{¶ 9} THE TRIAL COURT ERRED BY FAILING TO CONSIDER, CONSISTENT
WITH THE SUPREME COURT'S OPINION, THE FATHER'S ACTIONS IN THE
DOMESTIC RELATIONS COURT TO REESTABLISH PARENTING TIME.
{¶ 10} THE TRIAL COURT ERRED BY RULING THAT FATHER'S CONSENT WAS
NOT NECESSARY WITHOUT MAKING ANY FINDINGS, OR EVEN ADDRESSING,
WHETHER STEPFATHER PROVED BY CLEAR AND CONVINCING EVIDENCE THAT
FATHER'S LACK OF DE MINIMIS CONTACT WAS WITHOUT JUSTIFIABLE CAUSE.
{¶ 11} TO THE EXTENT THAT THE TRIAL COURT RULED THAT FATHER'S LACK
OF DE MINIMIS CONTACT WAS WITHOUT JUSTIFIABLE CAUSE, THAT FINDING WAS
AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶ 12} R.C. 3107.07(A) provides that a parent's consent to the adoption of his child
is not required if the probate court finds that the parent has failed without justifiable cause
to provide more than de minimis contact with the child for at least one year immediately
-3- Clinton CA2018-10-016
preceding the filing of the adoption petition. Even if a parent has completely failed to
communicate with his child during the one-year statutory period, his consent will still be
required if there is justifiable cause for the failure. In re Adoption of Holcomb, 18 Ohio St.3d
361, 367.
{¶ 13} In his first assignment of error, Father argues that the trial court erred when it
failed to consider filings in the domestic relations court case up to the date of the remand
hearing. As mentioned above, the probate court determined that it would only consider the
filings to the date of the original hearing on the adoption petition.
{¶ 14} In its decision remanding the case to the probate court to consider the
domestic relations court parenting proceedings, the Ohio Supreme Court held that "strictly
construing R.C. 3107.07(A) in favor of Father requires the probate court to take into account
Father's efforts to reestablish parental rights and responsibilities through the domestic
relations court during the year preceding the filing of the adoption petitions, as well as
Mother's efforts to impede Father's contact with the children." In re M.G.B.-E., 154 Ohio
St.3d 17, 2018-Ohio-1787 at ¶ 40.
{¶ 15} The supreme court determined that the probate court erred in failing to
consider Father's efforts to enforce his parental rights prior to the filing of stepfather's
petition, as these efforts were relevant. Id. at ¶ 43. The supreme court then discussed the
fact that Father could have done more to protect and nurture his relationship with the
children, but also discussed the fact that Mother has "a history and ongoing pattern of
impeding Father's opportunities to develop and maintain a relationship with the children,
reaching back to the time of the parents' divorce." Id. at ¶ 44.
{¶ 16} The supreme court also reviewed Mother's history of impeding Father's
parenting time with the children, then discussed the fact that "Mother and Father continue
to actively litigate the question of Father's parenting time." Id. at ¶ 45. The supreme court
-4- Clinton CA2018-10-016
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[Cite as In re M.G.B.-E., 2019-Ohio-753.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
CLINTON COUNTY
IN THE MATTER OF THE : CASE NO. CA2018-10-016 ADOPTION OF: : OPINION M.G.B.-E. 3/4/2019 :
APPEAL FROM CLINTON COUNTY COURT OF COMMON PLEAS PROBATE DIVISION Case No. 20155012
The Law Offices of Jason A. Showen, LLC, Jason A. Showen, 324 East Warren Street, Lebanon, Ohio 45036 for appellee
Rion, Rion & Rion, L.P.A., Inc., Bradley D. Anderson, Kevin M. Darnell, 130 West Second Street, Suite 2150, Dayton, Ohio 45402 for appellant
M. POWELL, J.
{¶ 1} Appellant, the biological father of M.G.B.-E., appeals a decision of the Clinton
County Court of Common Pleas, Probate Division, finding that his consent was not required
for the adoption of his daughter by her stepfather.
{¶ 2} When Father and Mother divorced in November 2004, Mother was awarded
custody of the couple's two children and Father was awarded visitation.1 Mother stopped
1. This case initially involved stepfather's petitions to adopt both children. The couple's oldest child reached the age of 18 during the course of this case and the case now only involves the petition to adopt M.G.B.-E. Clinton CA2018-10-016
allowing visitation and made allegations of abuse against Father and his relatives.
Problems between the parties and legal proceedings regarding visitation continued for
several years. Ultimately, the domestic relations court issued an order that Father's
parenting time should resume after Father and the children engaged in therapy to help the
transition of the children to spending time again with Father.
{¶ 3} Counseling had not commenced as of late 2008. Thus, the domestic relations
court dismissed the pending proceedings for want of prosecution and father's visitation was
never resumed. Mother changed the children's last names, moved several times and
remarried. Father, who also remarried, claims that for many years he did not know the
children's whereabouts until a babysitter saw his son at a sporting event in 2014 and he
was then able to determine where the children attended school and lived.
{¶ 4} Father filed a motion in the domestic relations court on May 14, 2015 to
reestablish parenting time. Four days later, stepfather filed a petition in probate court to
adopt the children and claimed Father's consent was not necessary because Father had
failed, without justifiable cause, to have more than de minimis contact with the children in
the year preceding the petition to adopt.
{¶ 5} The probate court found that Father's consent was not required for the
adoption and this court affirmed on appeal. In re M.G.B.-E., 12th Dist. Clinton No. CA2016-
06-017, 2016-Ohio-7912. However, the Ohio Supreme court determined that the probate
court had erred in failing to consider the Father's pending parenting proceedings in domestic
relations court and remanded the case for the probate court to consider those proceedings
in determining whether the Father failed without justifiable cause to have contact with his
children. In re M.G.B.-E., 154 Ohio St.3d 17, 2018-Ohio-1787.
{¶ 6} At a subsequent hearing, the parties disagreed regarding which domestic
relations court case records the probate court should consider on remand. Stepfather
-2- Clinton CA2018-10-016
argued that the court should only consider filings in the domestic relations court which
occurred prior to the date the adoption petition was filed. Father argued that the probate
court should consider all filings in domestic relations court up to the date of the hearing on
remand.
{¶ 7} On August 30, 2018, the probate court issued a decision in which it
determined that it should only consider domestic relations court filings up to the date of the
original hearing on the adoption petition. The probate court further stated that it had
considered the domestic relations court's filings up to the date of the original hearing on the
adoption petition and had again determined that Father's consent to the adoption was not
required.
{¶ 8} Father now appeals the probate court's decision on remand and raises the
following three assignments of error for our review:
{¶ 9} THE TRIAL COURT ERRED BY FAILING TO CONSIDER, CONSISTENT
WITH THE SUPREME COURT'S OPINION, THE FATHER'S ACTIONS IN THE
DOMESTIC RELATIONS COURT TO REESTABLISH PARENTING TIME.
{¶ 10} THE TRIAL COURT ERRED BY RULING THAT FATHER'S CONSENT WAS
NOT NECESSARY WITHOUT MAKING ANY FINDINGS, OR EVEN ADDRESSING,
WHETHER STEPFATHER PROVED BY CLEAR AND CONVINCING EVIDENCE THAT
FATHER'S LACK OF DE MINIMIS CONTACT WAS WITHOUT JUSTIFIABLE CAUSE.
{¶ 11} TO THE EXTENT THAT THE TRIAL COURT RULED THAT FATHER'S LACK
OF DE MINIMIS CONTACT WAS WITHOUT JUSTIFIABLE CAUSE, THAT FINDING WAS
AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶ 12} R.C. 3107.07(A) provides that a parent's consent to the adoption of his child
is not required if the probate court finds that the parent has failed without justifiable cause
to provide more than de minimis contact with the child for at least one year immediately
-3- Clinton CA2018-10-016
preceding the filing of the adoption petition. Even if a parent has completely failed to
communicate with his child during the one-year statutory period, his consent will still be
required if there is justifiable cause for the failure. In re Adoption of Holcomb, 18 Ohio St.3d
361, 367.
{¶ 13} In his first assignment of error, Father argues that the trial court erred when it
failed to consider filings in the domestic relations court case up to the date of the remand
hearing. As mentioned above, the probate court determined that it would only consider the
filings to the date of the original hearing on the adoption petition.
{¶ 14} In its decision remanding the case to the probate court to consider the
domestic relations court parenting proceedings, the Ohio Supreme Court held that "strictly
construing R.C. 3107.07(A) in favor of Father requires the probate court to take into account
Father's efforts to reestablish parental rights and responsibilities through the domestic
relations court during the year preceding the filing of the adoption petitions, as well as
Mother's efforts to impede Father's contact with the children." In re M.G.B.-E., 154 Ohio
St.3d 17, 2018-Ohio-1787 at ¶ 40.
{¶ 15} The supreme court determined that the probate court erred in failing to
consider Father's efforts to enforce his parental rights prior to the filing of stepfather's
petition, as these efforts were relevant. Id. at ¶ 43. The supreme court then discussed the
fact that Father could have done more to protect and nurture his relationship with the
children, but also discussed the fact that Mother has "a history and ongoing pattern of
impeding Father's opportunities to develop and maintain a relationship with the children,
reaching back to the time of the parents' divorce." Id. at ¶ 44.
{¶ 16} The supreme court also reviewed Mother's history of impeding Father's
parenting time with the children, then discussed the fact that "Mother and Father continue
to actively litigate the question of Father's parenting time." Id. at ¶ 45. The supreme court
-4- Clinton CA2018-10-016
continued by discussing the fact that the probate court had failed to consider the domestic
relations court proceedings or orders despite Father's proffer. Id. The supreme court took
judicial notice of the domestic relations court filings, including the fact that a magistrate has
found Mother in contempt of court for interfering with Father's parenting time and that
Mother had "actively and intentionally interfered with the children's relationship with" Father.
Id.
{¶ 17} The Ohio Supreme Court further reviewed the fact that the probate court "put
a lot of weight [on] the fact that the father dropped the ball" in the parenting action in 2008.
However, the supreme court determined that Father's "failure to engage a therapist nearly
ten years ago does not, by itself, determine the question of justifiable cause" and that after
learning where the children attended school, Father made efforts to reinsert himself in the
children's lives. Id. at 46. The court concluded that "[f]acing resistance from Mother, as he
has from the outset of their divorce, Father appropriately turned to the domestic relations
court with a motion to reestablish parenting time." The supreme court concluded that the
domestic relations proceedings should be a factor in determining whether Father's consent
to the adoption is required.
{¶ 18} Some of the domestic relations court filings referred to by the Ohio Supreme
Court postdate the original hearing on the adoption petition. Similarly, this court has
previously held that when considering whether a custodial parent has substantially
interfered with the noncustodial parent's efforts at communication with a child, the probate
court is not restricted to focusing solely on the one-year statutory look-back period
established by R.C. 3107.07(A). In re A.L.S., 12th Dist. Butler No CA2017-09-146, 2018-
Ohio-507, ¶ 23.
{¶ 19} Given the Ohio Supreme Court's consideration of domestic relations court
events after the original hearing, along with the fact that the probate court should strictly
-5- Clinton CA2018-10-016
construe the statute in favor of protecting the Father's parental rights as a natural parent,
we hold that a probate court is not restricted to considering only evidence arising during the
one year look-back period in its determination of whether a parent's consent to adoption is
required. In so holding, we do not extend the one year look-back period but recognize that
evidence arising either before or after that period may provide relevant context for the
events occurring within the look-back period. We find that the probate court erred in failing
to consider all the relevant evidence in the domestic relations court action as of the time of
the remand hearing. We therefore find merit to Father's first assignment of error.
{¶ 20} In his second assignment of error, Father argues that the probate court erred
by finding his consent was not necessary without making findings that his lack of
communication with the child was without justifiable cause.
{¶ 21} As mentioned above, the Ohio Supreme Court remanded the case for the
probate court to consider the domestic relations court findings in determining whether
Father's failure to communicate was without justifiable cause. On remand, the probate court
stated that it had considered the domestic court proceedings to the date of the original
hearing, and then simply stated, "'this [c]ourt still finds that the biological father's consent is
not necessary as no contact or de minimis contact at best by the natural father [D.H.]" [sic].
The probate court then discussed the fact that the father failed to schedule counseling after
the divorce and no action was taken to see his children until the domestic relations court
motion in 2015.
{¶ 22} The probate court's decision neither mentions nor addresses the issue of
justifiable cause. Nothing in the probate court's decision gives any indication that the
probate court considered the issue of whether Mother had interfered or impeded Father's
attempts to communicate with the children. As mentioned by the Ohio Supreme Court,
Mother has a history and an ongoing pattern of impeding Father's opportunities to have a
-6- Clinton CA2018-10-016
relationship with his children. M.G.B.-E., 2018-Ohio-1787, at ¶ 44. Moreover, the Ohio
Supreme Court specifically stated that "Father's failure to engage a therapist nearly ten
years ago, does not, by itself, determine the question of justifiable cause." Id. at ¶ 46.
{¶ 23} Although we have already determined the probate court erred in failing to
consider all of the domestic relations court evidence, we further find that the probate court's
decision does not provide an adequate basis for this court to determine whether the court
followed the remand order that it should consider and weigh the evidence and determine
the issue of justifiable cause. We, therefore, find merit to Father's second assignment of
error.
{¶ 24} In conclusion, we find the trial court erred in failing to consider all of the
domestic relations court evidence and failed to issue a decision that reflects consideration
of the issue of justifiable cause for Father's failure to communicate. Accordingly, Father's
first and second assignments of error are sustained. As the case must be remanded for
the probate court to consider additional evidence, Father's third assignment of error, which
involves consideration of the manifest weight of the evidence is moot. The judgment of the
probate court is reversed and remanded.
{¶ 25} Judgment reversed and remanded.
HENDRICKSON, P.J. and S. POWELL, J., concur.
-7-