[Cite as In re D.T.B., 2021-Ohio-1023.]
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT PICKAWAY COUNTY
IN THE MATTER OF: : : D.T.B. AND M.G.B. : Case No. 19CA35 : 19CA36 : : DECISION AND JUDGMENT : ENTRY : __________________________________________________________ APPEARANCES:
William H. Fraser, Columbus, Ohio, and Shanna M. Mustard, Chillicothe, Ohio, for Appellant.
Jacqueline L. Kemp, Dublin, Ohio, for Appellee.
Smith, P.J.
{¶1} R.B. (“Appellant”) appeals the trial court’s judgment that
determined her consent to the adoption of her two biological children,
D.T.B. and M.G.B., is not required and the court’s decision that denied her
request for court-appointed counsel.
{¶2} Although Appellant raises four assignments of error, we find her
second assignment of error is dispositive. In her second assignment of error,
Appellant contends that denying her request for appointed counsel violates
her right to equal protection of the law. The Ohio Supreme Court recently
agreed with this argument and held that indigent parents in adoption Pickaway App. 19CA35 & 19CA36 2
proceedings have an equal protection right to appointed counsel. In re
Y.E.F., --- Ohio St.3d ---, 2020-Ohio-6785, --- N.E.3d ---.
{¶3} Accordingly, we sustain Appellant’s second assignment of error.
We reverse the trial court’s judgment and remand for further proceedings
consistent with this opinion. Appellant’s remaining assignments of error are
moot.
FACTS
{¶4} Appellant and the children’s father divorced in 2014. The father
later married J.B. (“Appellee”). A few years later, Appellee filed a petition
to adopt her two stepchildren. The petition alleged that Appellant’s consent
is not required because Appellant has failed without justifiable cause to
provide more than de minimis contact with the children and to provide for
the children’s maintenance and support as required by law for at least one
year immediately preceding the filing of the adoption petition. The father
consented to the adoption.
{¶5} The trial court set the matter for a consent hearing to be held on
September 3, 2019. Moments before the consent hearing was scheduled to
begin, Appellant filed a motion that requested the court to appoint counsel to
represent her. Appellant additionally asked the court to stay the proceedings Pickaway App. 19CA35 & 19CA36 3
pending the Ohio Supreme Court’s decision in Y.E.F. Appellant asserted
that Y.E.F. would be dispositive of her request for appointed counsel.
{¶6} The trial court denied Appellant’s motions. The court noted that
it initially had set the matter for a July 2, 2019 hearing, and that at that time,
Appellant had requested a continuance so that she could seek counsel. The
court additionally observed that at an August 20, 2019 status conference,
Appellant again stated that she wished to obtain counsel. The court
indicated that on both occasions, it had informed Appellant that court-
appointed counsel is not available in private adoption proceedings.
{¶7} The court further recognized that Appellant filed her motion for
court-appointed counsel and her motion to stay the proceedings less than ten
minutes before the consent hearing was scheduled to begin. The court thus
denied Appellant’s motions and proceeded with the consent hearing.
{¶8} At the consent hearing, Appellant testified that when the parties
divorced, the court granted Appellant parenting time with the children every
other weekend and each Wednesday from 4 p.m. to 7 p.m. Appellant stated
that she exercised her parenting time when the father allowed the visitations
and that the last time that she saw the children was on November 6, 2015.
{¶9} Appellant explained that she had attempted to visit the children
after November 6, 2015, but when she would arrive at the scheduled time, Pickaway App. 19CA35 & 19CA36 4
neither the father nor the children were home. Appellant claimed that this
process continued until May 6, 2018, when she decided that she no longer
could afford the $60 she had to spend in order to travel to the father’s house,
only to discover that neither the father nor the children were home.
Appellant stated that she would text the father to ensure that he and the
children would be home, and that she “begged and begged to see [the]
children.” Appellant testified that the father did not respond to her texts.
{¶10} Appellant explained that she sent the children birthday cards
and money every year since the parties divorced, and that in 2019, she sent
the children “flowers and teddy bears and a card.”
{¶11} Appellee testified that she started living with the father and the
two children in 2016, and that since that time, Appellee never has seen
Appellant at the house. Appellee stated that the father and the children were
home during the times Appellant had been scheduled to visit them. Appellee
testified that neither she nor the father tried to prevent Appellant from
visiting the children.
{¶12} Appellee disputed Appellant’s claim that Appellant sent mail to
the children. Appellee stated that she has not received any cards in the mail
from Appellant. Pickaway App. 19CA35 & 19CA36 5
{¶13} The father testified that after the parties divorced, Appellant did
not consistently exercise her parenting time rights. He stated that Appellant
“would show up late or not show up at all.” The father indicated that
“probably half the time” Appellant did not appear at all. The father testified
that as a result of Appellant’s inconsistency, the father started keeping a log.
The father stated that the log started on January 7, 2015 and continued
through September 2015. In this log, the father documented the dates and
times when Appellant had been scheduled to have parenting time with the
children and whether Appellant appeared at the scheduled time. The father
documented “pickup time, drop off time, whether or not she showed.” The
father testified that Appellant had “around 22 no-shows” between January
and September 2015. The father explained that the log stopped as of
September 6, 2015, “because that was the last time [he] had recorded that
[Appellant] ever came to see them.”
{¶14} The father stated that he did not do anything to interfere with
Appellant’s visitations and never told Appellant that she was not welcome to
visit the children. The father additionally testified that he has not seen any
birthday cards in the mail that Appellant claimed to have sent the children.
{¶15} On cross-examination, the father agreed that Appellant had
called the house sporadically, but he did not agree that Appellant had called Pickaway App. 19CA35 & 19CA36 6
for the children. Instead, the father stated that Appellant left voicemails in
which she was “yelling and screaming” at the father. The father stated that
some of the voicemails were difficult to understand and that “a lot of them
have nothing to do with the children and they are just attacks at me and my
family.” The father explained that the “[v]oicemails were inappropriate,
accusing [him] of still have feeling[s] for [Appellant], harassing in nature,
derogatory comments about [Appellee], grandparents, things like that.” The
father denied that Appellant left voicemails in which she was “begging” to
see the children. The father stated that the voicemails involved “a lot of
* * * verbal attacks” and “at the end, sometimes [Appellant] would say,
‘babies, momma loves you.’ ”
{¶16} On September 30, 2019, the court found that Appellant’s
consent to the adoption is not required. The court noted that the petitioner
has the burden of proof to show by clear and convincing evidence that the
non-consenting parent failed to communicate or support the child and that
“the non-consenting parent has the burden of going forward to show
justifiable cause for such failure.” The court found clear and convincing
evidence that Appellant failed to provide more than de minimis contact with
the child. The court determined that Appellant had not visited the children
since 2015 and has not spoken with them since May 2017. Pickaway App. 19CA35 & 19CA36 7
{¶17} The court did not find Appellant’s claim of justifiable cause
credible. The court observed that Appellant did not present any evidence to
support her assertion of justifiable cause. The court noted that Appellant did
not present any evidence to show that (1) she spent $60 each time she
traveled to the father’s house, (2) she pursued court action to enforce her
visitation rights; (3) she attempted to seek legal counsel or any other
assistance in enforcing her right to visit the children; or (4) she attempted to
contact the school to inquire about parent-teacher conferences or any
extracurricular activities that she could attend. The court determined that
Appellant’s “lack of effort * * * to enforce her parental rights of
companionship does not support her claim of justifiable cause for failing to
provide more than de minimis contact with the child[ren].”
{¶18} This appeal followed.
ASSIGNMENTS OF ERROR
{¶19} Appellant raises four assignments of error.
I. THE TRIAL COURT ERRED IN ITS MEMORANDUM DECISION ON CONSENT BY PLACING THE BURDEN OF PROOF ON R.B. TO SHOW JUSTIFIABLE CAUSE FOR FAILING TO MAINTAIN MORE THAN DE MINIMIS CONTACT.
II. IN ITS ENTRIES DENYING MOTIONS, THE TRIAL COURT’S HOLDING THAT APPOINTED COUNSEL IS UNAVAILABLE TO INDIGENT ADOPTION RESPONDENTS VIOLATED APPELLANT Pickaway App. 19CA35 & 19CA36 8
MOTHER R.B.’S RIGHT TO EQUAL PROTECTION OF THE LAWS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND TO EQUAL PROTECTION AND BENEFIT GUARANTEED BY ARTICLE I, SECTION 2 OF THE OHIO CONSTITUTION.
III. IN ITS ENTRIES DENYING MOTIONS, THE TRIAL COURT’S DENIAL OF APPELLANT MOTHER R.B.’S REQUEST FOR APPOINTED COUNSEL IN THE CIRCUMSTANCES OF THIS CASE VIOLATED HER RIGHT TO DUE PROCESS OF LAW GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION.
IV. IN ITS ENTRIES DENYING MOTIONS, THE TRIAL COURT’S HOLDING THAT APPOINTED COUNSEL IS UNAVAILABLE TO INDIGENT ADOPTION RESPONSENTS VIOLATED APPELLANT MOTHER R.B.’S RIGHT TO REMEDY BY DUE COURSE OF LAW GUARANTEED BY ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION.
SECOND ASSIGNMENT OF ERROR
{¶20} We find that Appellant’s second assignment of error is
dispositive of this appeal and we will thus address the assignments of error
out of order. In her second assignment of error, Appellant contends that the
decision to deny her request for appointed counsel violates the state and
federal constitutional guarantees of equal protection of the law.
{¶21} Appellee asserts that the trial court did not err by denying
Appellant’s motion for requested counsel. Appellee notes that Appellant did Pickaway App. 19CA35 & 19CA36 9
not file the motion until moments before the consent hearing was scheduled
to begin. Appellee thus argues that the trial court properly denied
Appellant’s motion as untimely.
{¶22} Appellee also contends that Appellant’s failure “to present any
evidence, argument or proffer of evidence on the record” means that
Appellant forfeited the right to raise the issue on appeal.
{¶23} In response, Appellant cites several cases in which courts have
held that a litigant’s last-minute request for counsel merited appellate
consideration. State v. Mogul, 11th Dist. Trumbull No. 2003-T-0178, 2006-
Ohio-1873; Evans v. Evans, 10th Dist. Franklin Nos. 03AP-12 and 03AP80,
2003-Ohio-6073; Sabrina J. v. Robbin C., 6th Dist. Lucas No. L-00-1374,
2002-Ohio-2691; Francis v. Francis, 4th Dist. Lawrence No. 1925, 1990
WL 119250; In re Watts, 4th Dist. Washington No. 97CA650, 1999 WL
18564 (Jan. 11, 1999). Appellant requests that we consider her
constitutional claims to appointed counsel based upon their merits and not
upon a procedural technicality. Appellant further argues that her pro se
status during the probate court proceeding and the fundamental right at issue
means that we should afford her leniency.
{¶24} In the interests of justice and given the fundamental right at
stake, we will review Appellant’s assignments of error that challenge the Pickaway App. 19CA35 & 19CA36 10
merits of the probate court’s decision that she does not have a constitutional
right to appointed counsel. See Y.E.F. at ¶ 4 (considering parent’s
constitutional argument regarding right to appointed counsel in adoption
case even though parent requested trial court to appoint counsel seven days
before consent hearing was scheduled).
Fundamental Right of Natural Parents to Care and Custody of Children
{¶25} “The right of a natural parent to the care and custody of his
children is one of the most precious and fundamental in law.” In re
Adoption of Masa, 23 Ohio St.3d 163, 164, 492 N.E.2d 140 (1986), citing
Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599
(1982); accord Lassiter v. Durham Cty. Dept. of Social Servs., 452 U.S. 18,
27, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981), quoting Stanley v. Illinois, 405
U.S. 645, 651, 92 S.Ct. 1208, 1212, 31 L.Ed.2d 551 (1972) (explaining that
“a parent’s desire for and right to ‘the companionship, care, custody, and
management of his or her children’ is an important interest”); In re C.F., 113
Ohio St.3d 73, 2007-Ohio-1104, 862 N.E.2d 816, ¶ 28 (stating that “[t]he
right to parent one’s children is a fundamental right”). Indeed, “the
upbringing of children [is] among [the] associational rights th[e United
States Supreme] Court has ranked as ‘of basic importance in our society.’ ”
M.L.B. v. S.L.J., 519 U.S. 102, 116-17, 117 S.Ct. 555, 136 L.Ed.2d 473 Pickaway App. 19CA35 & 19CA36 11
(1996), quoting Boddie v. Connecticut, 401 U.S. 371, 376, 91 S.Ct. 780, 28
L.Ed.2d 113 (1971) (citations omitted); accord In re B.C., 141 Ohio St.3d
55, 2014-Ohio-4558, 21 N.E.3d 308, 2014 WL 5285371, ¶ 17, citing M.L.B.,
519 U.S. at 116 (“A parent’s relationship with his or her child is among the
‘associational rights’ sheltered by the Fourteenth Amendment to the United
States Constitution against unwarranted usurpation, disregard, or disrespect
by the state”); Lehr v. Robertson, 463 U.S. 248, 257-58, 103 S.Ct. 2985, 77
L.Ed.2d 614 (1983), quoting Prince v. Massachusetts, 321 U.S. 158, 166, 64
S.Ct. 438, 88 L.Ed. 645, 88 L.Ed.2d 645 (1944) (“ ‘[T]he custody, care and
nurture of the child reside first in the parents, whose primary function and
freedom include preparation for obligations the state can neither supply nor
hinder’ ”). “ ‘[T]he interest of parents in their relationship with their
children is sufficiently fundamental to come within the finite class of liberty
interests protected by the Fourteenth Amendment.’ ” M.L.B., 519 U.S. at
119, quoting Santosky, 455 U.S. at 774 (Rehnquist, J., dissenting).
Consequently, the parent-child relationship “ ‘undeniably warrants deference
and, absent a powerful countervailing interest, protection.’ ” Lassiter, 452
U.S. at 27, quoting Stanley, 405 U.S. at 651; M.L.B., 519 U.S. at 116 (stating
that the parent-child relationship deserves “shelter[] * * * against the State’s
unwarranted usurpation, disregard, or disrespect”). Pickaway App. 19CA35 & 19CA36 12
{¶26} “ ‘[F]ew consequences of judicial action are so grave as the
severance of natural family ties.’ ” M.L.B., 519 U.S. at 119, quoting
Santosky, 455 U.S. at 787 (Rehnquist, J., dissenting). “[P]arental status
termination is ‘irretrievabl[y] destructi[ve]’ of the most fundamental family
relationship” and permanently destroys “ ‘all legal recognition of the
parental relationship.’ ” Id. at 121, 127-28, quoting Santosky, 455 U.S. at
753, and Rivera v. Minnich, 483 U.S. 574, 580, 107 S.Ct. 3001, 97 L.Ed.2d
473 (1987). Thus, “ ‘state intervention to terminate [a parent-child]
relationship * * * must be accomplished by procedures meeting the
requisites of the Due Process Clause.’ ” Lehr, 463 U.S. at 258, quoting
Santosky, 455 U.S. at 752; accord In re Adoption of Zschach, 75 Ohio St.3d
648, 653, 665 N.E.2d 1070 (1996) (recognizing that adoption procedures,
which terminate a parent’s fundamental right, must comply with due
process); In re Adoption of Greer, 70 Ohio St.3d 293, 298, 638 N.E.2d 999
(1994) (determining that parent facing loss of parental rights through
adoption entitled to adequate notice and an opportunity to be heard).
Additionally, “decrees forever terminating parental rights [fall] in the
category of cases in which the State may not ‘bolt the door to equal
justice.’ ” M.L.B., 519 U.S. at 124, quoting Griffin v. Illinois, 351 U.S. 12, Pickaway App. 19CA35 & 19CA36 13
24, 76 S.Ct. 585, 100 L.Ed. 891 (1956) (Frankfurter, J., concurring in
judgment).
{¶27} Cases involving the permanent termination of an “undeniably
important” parent-child bond “demand[ ] * * * close consideration.” Id. at
116-117. Courts thus should approach parental rights termination cases,
which include adoption cases, “ ‘mindful of the gravity’ of the circumstances
and the long-term impact on all the concerned parties.” In re Adoption of
P.A.C., 126 Ohio St.3d 236, 2010-Ohio-3351, 933 N.E.2d 236, ¶ 6, quoting
M.L.B., 519 U.S. at 117; see Greer, 70 Ohio St.3d at 298 (recognizing that
adoption “terminates all parental rights of a natural parent”).
{¶28} With these considerations in mind, we proceed to consider
Appellant’s arguments that denying her court-appointed counsel in the
adoption proceeding violates her right to equal protection under the law.
Equal Protection
{¶29} Appellant first asserts that denying her the right to appointed
counsel in this adoption proceeding between a step-parent and a non-
consenting biological parent deprives her of the equal protection of the law.
Appellant observes that Ohio law gives appointed counsel to indigent
parents facing the termination of parental rights in juvenile court
proceedings, but that no similar law gives parents facing the termination of Pickaway App. 19CA35 & 19CA36 14
parental rights via an adoption petition in probate court proceedings this
same right to court-appointed counsel. Appellant contends that both sets of
parents are similarly situated in that their fundamental parental rights are at
stake. Appellant alleges that the differing treatment between indigent
parents in the two types of proceedings violates the state and federal
constitutional guarantees of equal protection of the law.
{¶30} Appellant disputes any notion that equal protection principles
do not apply in private adoption proceedings. Appellant asserts that an
adoption proceeding involves state action. Appellant points out that even
though the state does not initiate an adoption proceeding, the state sanctions
an adoption through the actions of the probate court. Appellant contends
that this state sanctioning constitutes sufficient state action to render the
equal protection principles applicable to adoption proceedings.
{¶31} The Equal Protection Clause of the Fourteenth Amendment to
the United States Constitution states: “No State shall * * * deny to any
person within its jurisdiction the equal protection of the laws.” Ohio’s Equal
Protection Clause, Article I, Section 2 of the Ohio Constitution, provides:
“All political power is inherent in the people. Government is instituted for
their equal protection and benefit * * *.” “These two equal protection
provisions are functionally equivalent and require the same analysis.” State Pickaway App. 19CA35 & 19CA36 15
v. Aalim, 150 Ohio St.3d 489, 2017-Ohio-2956, 83 N.E.3d 883, ¶ 29, citing
Eppley v. Tri-Valley Local School Dist. Bd. of Edn., 122 Ohio St.3d 56,
2009-Ohio-1970, 908 N.E.2d 401, ¶ 11.
{¶32} The basic meaning of “equal protection of the laws” is that “all
persons similarly situated should be treated alike.” Cleburne v. Cleburne
Living Ctr., 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985);
Lehr, 463 U.S. at 265 (“The concept of equal justice under law requires the
State to govern impartially”). “Simply stated, the Equal Protection Clauses
require that individuals be treated in a manner similar to others in like
circumstances.” McCrone v. Bank One Corp., 107 Ohio St.3d 272, 2005-
Ohio-6505, 839 N.E.2d 1, ¶ 6. The equal protection provisions do not,
however, “ ‘deny to [the] State the power to treat different classes of persons
in different ways.’ ” Eisenstadt v. Baird, 405 U.S. 438, 446-447, 92 S.Ct.
1029, 31 L.Ed.2d 349 (1972), quoting Reed v. Reed, 404 U.S. 71, 75, 92
S.Ct. 251, 30 L.Ed.2d 225 (1971); accord State v. Noling, 149 Ohio St.3d
327, 2016-Ohio-8252, ¶ 12, 75 N.E.3d 141. Instead, the equal protection
provisions prohibit legislation that treats “similar groups differently based on
criteria that are unrelated to the purpose of the law.” Noling at ¶ 13, citing
Johnson v. Robison, 415 U.S. 361, 374, 94 S.Ct. 1160, 39 L.Ed.2d 389
(1974); Lehr, 463 U.S. at 265 (“The sovereign may not draw distinctions Pickaway App. 19CA35 & 19CA36 16
between individuals based solely on differences that are irrelevant to a
legitimate governmental objective”).
{¶33} In the case at bar, Appellant argues that she, like other parents
facing the loss of their parental rights via a probate court adoption
proceeding, is similarly situated to parents facing the loss of their parental
rights via a juvenile court parental-rights termination proceeding. Appellant
contends that the two sets of parents face similar circumstances, i.e., the loss
of their fundamental right to a parent-child relationship. Appellant asserts
that this shared loss of a fundamental right places the two sets of parents in
the same or similar categories for purposes of an equal protection analysis.
{¶34} Recently, the Ohio Supreme Court held in Y.E.F that indigent
parents are entitled to appointed counsel in adoption proceedings. The court
first determined that the necessary state action exists in an adoption
proceeding. Id. at ¶ 26. The court noted that adoption is a state function that
requires government action to effectuate. Id.
{¶35} The court next concluded that indigent parents in both adoption
proceedings and parental-rights termination proceedings are similarly
situated because both types of parents “face the same termination of their
fundamental constitutional right to parent their children as a result of judicial
action.” Id. at ¶ 28. The court thus determined that “the Equal Protection Pickaway App. 19CA35 & 19CA36 17
Clause requires equal treatment * * * absent a compelling interest to treat
them differently and a statutory mechanism narrowly tailored to address only
that interest.” Id. at ¶ 30.
{¶36} The court found that the state failed to offer a “compelling
justification for affording parents facing termination of their parental rights
in juvenile court a right to appointed counsel while withholding that benefit
from parents facing termination of their parental rights through adoption
proceedings in probate court.” Id. at ¶ 31. The court ultimately held that
“indigent parents are entitled to counsel in adoption proceedings in probate
court as a matter of equal protection of the law under the Fourteenth
Amendment to the United States Constitution and Article I, Section 2 of the
Ohio Constitution.” Id. at ¶ 33.
{¶37} The court’s decision in Y.E.F. is dispositive of Appellant’s
second assignment of error and requires us to reverse the trial court’s
judgment and remand for further proceedings.
{¶38} Accordingly, based upon the foregoing reasons, we sustain
Appellant’s second assignment of error.
THIRD AND FOURTH ASSIGNMENTS OF ERROR
{¶39} In her third assignment of error, Appellant alleges that the
decision to deny her request for appointed counsel violates the United States Pickaway App. 19CA35 & 19CA36 18
Constitution’s guarantee of due process of law. In her fourth assignment of
error, Appellant argues that the court’s decision violates the Ohio
Constitution’s Due Course of Law Clause.
{¶40} In light of our disposition of Appellant’s second assignment of
error, Appellant’s constitutional arguments contained in her third and fourth
assignments are moot. Therefore, we do not address them. See App.R.
12(A)(1)(c).
{¶41} Accordingly, based upon the foregoing reasons, we overrule
Appellant’s third and fourth assignments of error as moot.
FIRST ASSIGNMENT OF ERROR
{¶42} In her first assignment of error, Appellant asserts that the trial
court erred by requiring her to show justifiable cause for failing to maintain
more than de minimis contact with the children. Appellant contends that
case law is clear that a non-consenting parent does not bear the burden of
proof on the issue of justifiable cause. Appellant argues that the language
that the trial court recited in its decision―that “the nonconsenting parent has
the burden of going forward to show justifiable cause for such
failure”―shows that the court incorrectly required Appellant to prove that
she had justifiable cause for failing to maintain more than de minimis Pickaway App. 19CA35 & 19CA36 19
contact with the children during the year preceding the filing of the adoption
petition.
{¶43} Appellant correctly notes that although she bore the burden of
production, she did not bear the burden of persuasion. Appellant contends
that her burden of production required only that she present a facially
justifiable reason for failing to maintain more than de minimis contact with
the children, and that once she satisfied her burden of production, the burden
shifted to Appellee to establish that Appellant’s claimed justification was
illusory.
{¶44} Appellant claims that she presented evidence to show that the
father “hindered” Appellant from maintaining contact with the children and
that this evidence demonstrates that she set forth a facially justifiable reason
for failing to maintain more than de minimis contact with the children.
Appellant refers to the following evidence to support her assertion that she
presented evidence of justifiable cause: (1) Appellant testified that shortly
after the parties divorced, the father alienated the children from her; (2)
Appellant testified that she had called the children nearly forty times during
the year preceding the adoption petition; (3) Appellant stated that she had
attempted to visit the children every year until 2018, when she decided that
her trips to the father’s house were futile; and (4) Appellant testified that she Pickaway App. 19CA35 & 19CA36 20
texted the father to ensure that the father and the children would be present
at Appellant’s designated visitation time, but the father did not respond.
{¶45} Appellant faults the trial court for requiring her to corroborate
her testimony rather than taking Appellant’s testimony at face value.
Appellant contends that requiring her to corroborate her testimony with
extrinsic evidence misallocated the burden of persuasion. Appellant argues
that she was not required to present extrinsic evidence to prevail on the issue
of justifiable cause, but rather, Appellee was required to persuade the court
that Appellant lacked justifiable cause. Appellant asserts that the trial court
should have required Appellee to prove that Appellant’s claimed
“justification was illusory.”
{¶46} Appellant additionally contends that even if the trial court had
properly allocated the burden of proof, Appellee did not present clear and
convincing evidence that Appellant lacked justifiable cause for failing to
maintain more than de minimis contact with the children.
{¶47} Appellee does not agree that the trial court incorrectly required
Appellant to bear the burden of proving that Appellant had justifiable cause
for failing to maintain more than de minimis contact with the children.
Appellee instead asserts that Appellant failed to satisfy her burden of
producing evidence that would support a finding of justifiable cause. Pickaway App. 19CA35 & 19CA36 21
Appellee contends that Appellant’s proffered reasons fail to show that
Appellant had justifiable cause for failing to maintain more than de minimis
contact with the children during the year preceding the filing of the adoption
petition. Appellee claims that Appellant did not present evidence that either
the father or Appellee significantly interfered with Appellant’s
communication efforts with the children or that they significantly
discouraged communication.
{¶48} Given our disposition of Appellant’s second assignment of
error and our decision to reverse and remand the trial court’s judgment, we
believe that a ruling regarding the trial court’s alleged improper allocation of
the burden of proof and its factual findings is not appropriate at this time.
Instead, our remand requires the trial court to appoint counsel for Appellant
and then hold a new consent hearing to determine whether Appellant had
justifiable cause for failing to maintain more than de minimis contact with
the children. On remand, the trial court will revisit the justifiable cause issue
anew, and its decision may render the issues Appellant raises in her first
assignment of error moot.
{¶49} Accordingly, based upon the foregoing reasons, we overrule
Appellant’s first assignment of error. Pickaway App. 19CA35 & 19CA36 22
CONCLUSION
{¶50} We sustain Appellant’s second assignment of error and reverse
and remand the trial court’s judgment for further proceedings consistent with
this opinion. We overrule Appellant’s remaining assignments as moot.
JUDGMENT REVERSED AND REMANDED. Pickaway App. 19CA35 & 19CA36 23
JUDGMENT ENTRY
It is ordered that the JUDGMENT IS REVERSED and the CAUSE IS REMANDED. Appellee shall pay the costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Pickaway County Common Pleas Court – Probate Division 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.
Abele, J., and Wilkin, J., concur in Judgment and Opinion.
For the Court,
________________________ Jason P. Smith Presiding Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.