[Cite as In re Adoption of R.L.A., 2024-Ohio-5218.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
IN RE ADOPTION OF R.L.A. : No. 113860 A Minor Child :
[Appeal by Father, A.A.] :
:
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: October 31, 2024
Civil Appeal from the Cuyahoga County Court of Common Pleas Probate Division Case No. 2021 ADP 09875
Appearances:
Cullen Sweeney, Cuyahoga County Public Defender, and Britta Barthol, Assistant Public Defender, for appellant.
Hilton Parker, LLC, Jonathan Hilton, and Geoffrey Parker, for appellee.
MICHAEL JOHN RYAN, J.:
The biological father appeals the trial court’s decision that his consent
for adoption of child, “R.L.A.” (“the child”), was not necessary because he lacked
justifiable cause for failure to provide more than de minimis contact and failure to provide maintenance and support of the minor child during the relevant time frame.
After a thorough review of the facts and the law, we affirm.
Procedural History and Facts
The child was born on March 30, 2017; he is currently seven years old.
The child has lived with the prospective adoptive father for his entire life, except for
the first three days after his birth and a short period of time during his infancy.
Prior to the child’s birth, the biological mother (“Mother”), who was
married to the biological father, met the prospective adoptive father and they agreed
that the prospective adoptive father would raise the child.
When the child was first born, Mother and the biological father gave
the paternal grandmother guardianship over the child. When the child was three
days old, however, he went to live with his prospective adoptive father.
Mother and the biological father divorced in 2018. Mother filed to
terminate the paternal grandmother’s guardianship and give guardianship to the
prospective adoptive father. Except for a short period of time when paternal
grandmother took the child for paternity testing,1 the child has resided solely with
the prospective adoptive father. The prospective adoptive father’s longtime partner
also lives in the home and coparents the child with the prospective adoptive father.
The prospective adoptive father filed a petition for adoption of the child
on July 30, 2021. In the petition, he stated that the biological father’s consent to the
1 The record does not indicate how many days the child stayed with paternal
grandmother. adoption was not required because the father had 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. Mother gave her consent for the adoption
on March 3, 2022. On July 15, 2022, the biological father filed an objection to the
petition for the adoption.
On July 28, 2023, a magistrate held a hearing on the matter. The
prospective adoptive father testified that he met Mother when she came to his place
of employment as a customer. At the time, Mother was noticeably pregnant. They
struck up a conversation and Mother told the prospective adoptive father that she
was married, but her husband — the child’s biological father — did not want
anything to do with the child, so she would consider having a prospective adoptive
father raise him. They exchanged phone numbers and continued to communicate.
A few weeks prior to Mother’s due date, the prospective adoptive father and Mother
went shopping for baby items, which the prospective adoptive father purchased and
placed in his home. It is uncontested that the prospective adoptive father has
provided for all of the child’s basic needs during the entirety of the child’s life.
According to the prospective adoptive father, the biological father has
not seen the child since a 2018 guardianship hearing. The biological father has not
contacted petitioner or the child and has not provided any financial support or gifts
for the child. The prospective adoptive father testified that he has not stopped
biological father from visiting or supporting the child and has not asked for financial
support from the biological father. He further testified that he never acted nor asked anyone else to act in a way that prevented the biological father from visiting the
minor and that the paternal grandmother has visited the child.
The prospective adoptive father testified that the paternal grandmother
had the child for a short period of time to get paternity testing on the child completed
and she knew where he lived and has visited the child. He also has regular contact
with Mother, who comes to his house regularly to have her hair cut. The prospective
adoptive father explained that he is a full-time stay-at-home father to the child and
cuts hair out of his house.
The prospective adoptive father admitted he had blocked the
biological father on social media, but stated he did not block his phone number. He
also testified that during the pandemic, his house was “closed” for the safety of the
child. The prospective adoptive father was not asked, and did not testify, how long
that closure lasted.
The biological father testified that he inadvertently ran into the
prospective adoptive father’s partner at a bakery. According to biological father, he
asked to see his son and the partner stated, “error, error, that’s not your son,” so
father responded, “that’s fine, I’ll see you in court.” The biological father stated he
never filed to pay child support or for visitation and did not seek to look up
petitioner’s address online, because he did not know how to. The biological father testified that he currently has three minor
children that reside with him.2 He and the child’s Mother were married at the time
of the child’s birth. At time of the child’s birth, they gave guardianship to paternal
grandmother. The biological father was caring for his two older children and
working a full-time job. He and the child’s Mother divorced in 2018.
The biological father testified that he had not had contact with the
child nor the prospective adoptive father since the 2018 guardianship hearing. At
that hearing, where he was not represented by counsel, he told the court that he was
unable to financially provide for the child.
According to the biological father, he would have visited the child if
he knew how to contact the prospective adoptive father. He testified that the child
is on his lease, and he has a room for the child. He admitted he has never provided
financially for the child.
According to the biological father, at some point he asked Mother how
he could get in contact with the prospective adoptive father, but Mother provided
him with two incorrect phone numbers. Although the biological father claimed he
did not know where the prospective adoptive father lived, he testified that he had
been to his house. He testified that he got a call from his mother (paternal
grandmother), who told him about the prospective adoptive father and his partner:
So I got a call from my mother first, and then – that the kid was going to [prospective adoptive father and partner] . . . and she [paternal grandmother] went over there to grab him and that’s when I found out 2 The youngest child was born after Mother and the biological father divorced. The
record does not indicate whether Mother is the biological mother of that child. [about prospective adoptive father and partner]. And the[n] he showed me his house where [he] bought the crib and everything. And at the time I didn’t know [the child] was mine until I did a DNA test.
...
And at the last place I knew they lived was on — — Blvd., like — — Street or something like that. But I don’t remember the house, the address, or anything where basically that [is].
When asked whether the house he visited was the address the
prospective adoptive father put on his petition to adopt, the biological father stated
that he did not know. The biological father said he was not close to his own mother,
so he did not inquire if she knew where the child lived.
The biological father’s brother testified that his brother struggled
financially during the pandemic. He knew that the biological father wanted the child
to live with him and had moved into a house with space for the child.
The magistrate issued a decision, recommending that the adoption
proceed without the consent of the biological father. The biological father filed
objections to the magistrate’s decision; he subsequently also filed supplemental
objections. On April 9, 2024, the trial court overruled the biological father’s
objections and adopted the magistrate’s recommended decision. The trial court
ordered that the petition for adoption of the child proceed without the consent of
the biological father.
The biological father filed a timely notice of appeal and raises one
assignment of error for our review:
The trial court erred when it adopted the Magistrate’s decision finding that father’s consent was not required for the adoption where there was clear and convincing evidence that father has failed without justifiable cause to provide de minimis contact and de minimis maintenance and support of the minor as this finding is against the weight of the evidence.
Relevant Law
R.C. 3107.07(A) provides that consent to adoption is not required
when
[a] parent of a minor, when it is alleged in the adoption petition and the court, after proper service of notice and hearing, finds by clear and convincing evidence that the parent has failed without justifiable cause to provide more than de minimis contact with the minor or to provide for the maintenance and support of the minor as required by law or judicial decree for a period of at least one year immediately preceding either the filing of the adoption petition or the placement of the minor in the home of the petitioner.
If a court determines that a parent has failed either “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” under R.C. 3107.07(A),
the court must then consider whether that failure was “without justifiable cause.”
In re A.K., 2022-Ohio-350, ¶ 26 (DeWine, J., concurring). The burden of proof is
on the person seeking to adopt the child. Id. Thus, here, the prospective adoptive
father had to show by clear and convincing evidence that the biological father failed
to contact or support the child within the statutory time frame and that the failure
was without justification. The court determined that because the petition for
adoption was filed on June 30, 2021, the relevant look-back year was June 30, 2020,
to June 30, 2021. R.C. 3107.07(A) operates only to determine whether an adoption may
proceed without a biological parent’s consent. In re A.K. at ¶ 12, citing
In re Adoption of Jorgensen, 33 Ohio App.3d 207 (3d Dist. 1986). Its operation
does not result directly in the adoption to which it relates. In re A.K. at id., citing
In re Adoption of Jorgensen. “[R.C. 3107.07(A)] only permits a court to proceed
with the adoption and then only when [the court] finds after hearing that the
adoption is in the best interest of the child [may it] enter[ ] a final decree of
adoption.” In re A.K. at id., quoting In re Adoption of Jorgensen at 209.
While this court reviews the probate court’s finding that a parent
failed to provide support for an abuse of discretion, “[w]hether justifiable cause has
been proven by clear and convincing evidence is a separate issue the determination
of which will only be reversed on appeal if it is against the manifest weight of the
evidence.” (Cleaned up.) In re Adoption of S.G.L., 2024-Ohio-2248, ¶ 20 (9th
Dist.). When addressing a manifest weight challenge, this court “weighs the
evidence and all reasonable inferences, considers the credibility of witnesses and
determines whether in resolving conflicts in the evidence, the [finder of fact] clearly
lost its way and created such a manifest miscarriage of justice that the [judgment]
must be reversed and a new [hearing] ordered.” (Cleaned up.) In re Adoption of
S.G.L. at id. When weighing the evidence, this court “must always be mindful of the
presumption in favor of the finder of fact.” In re Adoption of S.G.L. at id., quoting
Eastley v. Volkman, at ¶ 21. Notably, in this case, the jurist was the same since the
inception of the case. Finally, a trial court is not restricted to focusing solely on the one-year
statutory period in making its determination as to justifiable cause. In the Matter
of C.D.G., 2020-Ohio-2959, ¶ 15 (2d Dist.). Thus, “justifiable cause may be
demonstrated by events either before or during the one-year period prior to the
filing of the petition or a combination of both.” In re J.M.M., 2021-Ohio-775, ¶ 25
(3d Dist.).
Duty to Support
The first step of our analysis is to determine “what the law or judicial
decree required of the parent during the year immediately preceding either the filing
of the adoption petition or the placement of the minor in the home of the petitioner.”
In re Adoption of B.I., 2019-Ohio-2450, ¶ 15. Here the trial court found that there
was no court order regarding the biological father’s duty to pay child support.
In In re Adoption of B.I., the Ohio Supreme Court found that no
separate obligation arises by law under which a parent is required to provide
maintenance and support to the child if a trial court has issued a decree relieving a
parent of any child-support obligation. Id. at ¶ 17. If there is a court order that states
that a parent is not obligated to pay child support, then there is no separate duty
under law for that parent to provide financial support. In other words, if a court
order relieves the parent of paying for the maintenance and support of the child, the
parent is completely relieved of the duty. Here, it is undisputed that the biological
father was not under a court order to pay child support. Thus, we consider whether
he was otherwise obligated under the law to support the child. “Under R.C. 3103.03, all parents, whether married or not, have a duty
to support their minor children.” In re Adoption of B.I., at ¶ 21. This is true even in
cases where the guardian does not express an interest in receiving financial
assistance. See In re Adoption of K.J.F., 2020-Ohio-977, ¶ 23 (3d Dist.) (holding
that justifiable cause for failure to support under R.C. 3107.07(A) does not exist even
if the child’s legal custodian has not asked for financial assistance).
Thus, in this case, the biological father had a duty to support the child,
even in the absence of a court order or a request from the prospective adoptive father
for support.
The trial court found that father had not supported his child in the
year preceding the filing of the petition to adopt. That finding is supported by both
the biological father and the prospective adoptive father’s testimonies that the
biological father had not financially supported the child during the relevant time
period or throughout the child’s life.
We next consider whether the father had a justifiable reason for not
supporting his child. Because the biological father admitted that he has never
supported the child, the burden of production shifts to him to “show some facially
justifiable cause” for not supporting his child. See In re Adoption of A.H., 2013-
Ohio-1600, ¶ 12 (9th Dist.). To meet this burden, the biological father must produce
evidence of his “entire financial situation,” including the “types and amounts” of
other obligations. Id. at ¶ 15. The biological father testified that he was an “essential worker,” so he
kept his job at a cell phone store during the pandemic. He was employed as a
supervisor and earned both an hourly rate and commission. Both he and his
brother, who worked with him, testified that the biological father’s commissions fell
during the pandemic, but there was no evidence presented regarding the amount his
income decreased. Neither the father nor his brother testified or submitted evidence
as to what the biological father’s hourly pay or earnings were during the year prior
to the filing of the petition.
When a biological parent has some income but does not apply any of
it to the child, this “weighs against a finding of justification.” In re Adoption of
L.C.F., 2015-Ohio-1545, ¶ 19 (8th Dist.). The biological father testified that he was
providing for other children in his case but failed to give any insight as to what his
expenses were as to those children.
The biological father relies on In re S.L.P., 2020-Ohio-495 (8th Dist.),
to support his claim that he could not afford to support his son and that petitioner
did not ask for him to provide support. But in In re S.L.P., the biological parent
provided her tax returns to show her minimal income and, in addition, was
consistent in giving gifts to her child. Id. at ¶ 7.
Here, the biological father failed to give the trial court evidence of his
finances to facially show justifiable cause. And, unlike the parent in S.L.P., the
biological father has failed to provide even de minimis support at any point during
the child’s life. The biological father failed to present evidence, other than
generalizations about his reduced income, that show that he was unable to provide
support during the statutory time period, or throughout the child’s life. The
biological father’s vague testimony about his finances — especially with no overview
of income and expenses — is insufficient to meet his burden.
The limited evidence presented by the biological father about his
ability to support his child did not demonstrate a facial justification for his failure to
do so. Because the biological father did not meet his burden of going forward, the
burden did not shift back to the prospective adoptive father to prove that the
biological father’s failure to support the child was not justified.
Therefore, we conclude that the trial court’s finding that the biological
father failed to support his child within the year prior to the filing of the adoption
petition was supported by clear and convincing evidence and was not against the
manifest weight of the evidence.
Duty to Communicate
R.C. 3107.07(A) is written in the disjunctive; therefore, either a failure
to communicate or a failure to provide support for the one-year time period is
sufficient to obviate the need for a parent’s consent. In re Adoption of A.H., 2013-
Ohio-1600, at ¶ 9, citing In re Adoption of McDermitt, 63 Ohio St.2d 301 (1980).
Thus, although our analysis could end with finding that the biological father had no
justifiable reason for his failure to support his child, we will also consider whether
the prospective adoptive father showed by clear and convincing evidence that the biological father had no justifiable reasons for his failure to communicate with the
child.
The prospective adoptive father had the burden of proving by clear
and convincing evidence that the biological father’s failure to have contact with the
child was without justifiable cause. In re Adoption of D.W.-E.H., 2022-Ohio-528,
¶ 26 (8th Dist.), citing In re Adoption of Bovett, 33 Ohio St.3d 10 (1987). A probate
court’s justifiable cause decision will not be disturbed on appeal unless that
determination is against the manifest weight of the evidence. In re Adoption of
D.W.-E.H. at id., citing In re Adoption of M.B., 2012-Ohio-236.
A trial court’s factual findings must be given great deference on
review because the trier of fact is in the best position to view the witnesses and
observe their demeanor, gestures, and voice inflections and use these observations
to weigh the credibility of the proffered testimony. In re Adoption of D.W.-E.H. at
¶ 27, citing Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77 (1984).
The Ohio Supreme Court has found that “significant interference or
significant discouragement” of communication may be justifiable cause for a
noncustodial parent’s failure to have contact with a child. In re Adoption of D.W.-
E.H., at ¶ 41, citing In re Adoption of Holcomb, 18 Ohio St.3d 361 (1985).
Upon review of the record, the probate court had sufficient evidence
to determine that the biological father did not have justifiable cause for his failure to
have contact with the child for the year preceding the filing of the adoption petition. The biological father argued that he had justifiable cause for his
failure to communicate with the child because he did not know where the child lived
or how to contact him and because the prospective adoptive father and Mother
substantially interfered with his ability to communicate.
The biological father claims he tried to find the prospective adoptive
father on social media but could not, Mother gave him incorrect phone numbers for
the prospective adoptive father, and he did not know how to otherwise find the
prospective adoptive father’s address. He also claims he ran into the partner of
prospective adoptive father at a bakery and the partner refused to give him any
information on the child’s whereabouts. The biological father did not testify to the
date the supposed run-in occurred, or whether it occurred during the statutory look-
back year.
The biological father admitted his mother contacted him shortly after
the child’s birth and told him that the child was living with the prospective adoptive
father. Additionally, his mother (the paternal grandmother) had the child in her
home for a short period of time and she had visited the child in the prospective
adoptive father’s home. Thus, the biological father’s mother knew where the child
was located and visited the child, but the biological father did not try to visit the child
or even ascertain his whereabouts.
The biological father stated that the last time he saw his child was at
the 2018 guardianship hearing. The biological father admitted he did not try to
discuss visitation or contact information with the prospective adoptive father at that hearing. The prospective adoptive father testified that he never kept the child from
the biological father nor told anyone else to keep his location secret.
The biological father has had no contact with the child during the
statutory look-back year, or before or after that year. Despite the biological father’s
claims to the contrary, it is not the prospective adoptive parent’s duty to contact the
biological parent to see if he or she wants contact with the child; rather, it was the
biological’s father’s duty to request contact with the child. The interference that the
biological father claims prevented him from seeing his son — Mother giving him the
wrong phone number, the prospective adoptive father blocking him on social media,
and an unplanned run-in with petitioner’s partner — do not amount to substantial
interference with contact.
We also find that the prospective adoptive father’s testimony that his
house was “closed” during the pandemic does not amount to substantial
interference. There was no testimony about how long the prospective adoptive
father kept people out of his home due to the pandemic. The relevant look-back
period was from June 20, 2020, to June 20, 2021, and we note that Ohio’s stay-at-
home orders only lasted until May 29, 2020. It is unclear that the prospective
adoptive father kept his home closed to visitors past that date; in fact, there was no
testimony regarding dates at all, other than his house was closed “during the
pandemic.”
This case is distinguishable from this court’s decision in In re
Adoption of D.W.-E.H., 2022-Ohio-528 (8th Dist.), wherein the custodial parent, the mother, blocked the father on social media and refused telephone contact with
him. In that case, this court upheld the probate court’s decision that the father had
a justifiable reason for failing to communicate with his child. The trial court took
into consideration the pandemic, father’s medical condition, and that the child was
conceived during an affair that took place at the home mother shared with the
prospective adoptive father. Likewise, in this case, we are deferring to the trial
court’s findings — herein, the court found no justifiable cause based on the specific
facts of this case.
There are several ways the biological father could have tried to contact
the child. The paternal grandmother knew where the child lived. The biological
father himself had visited the child previously, he just could not remember the
address. An excuse that he is not “close” to paternal grandmother and could not
remember where the prospective adoptive father live are insufficient to justify his
complete lack of communication with the child.
Therefore, we conclude that the trial court’s finding that the biological
father failed to communicate with his child within the year prior to the filing of the
adoption petition was supported by clear and convincing evidence and was not
against the manifest weight of the evidence.
The sole assignment of error is overruled. Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate be sent to said court to carry this judgment
into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure.
MICHAEL JOHN RYAN, JUDGE
LISA B. FORBES, P.J., and ANITA LASTER MAYS, J., CONCUR