In re J.R.A.

2022 Ohio 3014

• Court: Ohio Court of Appeals
• Decided: August 30, 2022
• Docket: 2022 AP 04 0009
• Status: Published

Opinion

[Cite as In re J.R.A., 2022-Ohio-3014.]

COURT OF APPEALS TUSCARAWAS COUNTY, OHIO FIFTH APPELLATE DISTRICT

IN RE: J.R.A. : JUDGES: : Hon. Earle E. Wise, Jr., P.J. : Hon. W. Scott Gwin, J. : Hon. Patricia A. Delaney, J. : : : Case No. 2022 AP 04 0009 : : OPINION

CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Probate Division, Case No. 21AD003359

JUDGMENT: Affirmed

DATE OF JUDGMENT: August 30, 2022

APPEARANCES:

For Appellant For Appellees

DONOVAN R. HILL TARA WRIGHT-TIMBERLAKE 122 Market Avenue North 122 South Wooster Avenue Suite 101 Strasburg, OH 44680 Canton, OH 44702 Tuscarawas County, Case No. 2022 AP 04 0009 2

Wise, Earle, P.J.

{¶ 1} Appellant, T.D., appeals the April 5, 2022 judgment entry and final decree

of adoption of the Court of Common Pleas of Tuscarawas County, Ohio, Probate Division,

granting the adoption petition of Appellees, J.F. and C.F.

FACTS AND PROCEDURAL HISTORY

{¶ 2} On May 29, 2020, the Juvenile Division granted appellees legal custody of

a minor child, J.R.A., born in December 2017 (Case No. 2019CC00068). Mother of the

child is appellant herein; father is R.A. Appellant was granted supervised visitation.

Appellees are not related to the child.

{¶ 3} On September 14, 2021, appellees filed a petition for adoption of the child

and to change the child's name to J.R.F. The petition alleged consent of the parents was

not required because each failed without justifiable cause to provide more than de minimis

contact with, and maintenance and support to, the minor child for at least one year prior

to the filing of the petition.

{¶ 4} A hearing was held on April 5, 2022. At the conclusion of the hearing, the

trial court found the parents failed, without justifiable cause, 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. By judgment entry filed April 5, 2022, the trial court found,

in considering the factors in R.C. 3107.161, it was in the child's best interest to grant the

adoption petition. A final decree of adoption was filed same date, granting the petition for

adoption and the requested name change.

{¶ 5} Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows: Tuscarawas County, Case No. 2022 AP 04 0009 3

I

{¶ 6} "THE TRIAL COURT'S DECISION WAS AGAINST THE MANIFEST

WEIGHT OF THE EVIDENCE."

II

{¶ 7} "THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED

APPELLANT'S MOTION TO CONTINUE."

{¶ 8} We will address the assignments of error out of order for ease of discussion.

{¶ 9} In her second assignment of error, appellant claims the trial court abused

its discretion in denying her request for a continuance. We disagree.

{¶ 10} The grant or denial of a continuance rests in the trial court's sound

discretion. State v. Unger, 67 Ohio St.2d 65, 423 N.E.2d 1078 (1981). In order to find an

abuse of that discretion, we must determine the trial court's decision was unreasonable,

arbitrary or unconscionable and not merely an error of law or judgment. Blakemore v.

Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983). "There are no mechanical tests

for deciding when a denial of a continuance is so arbitrary as to violate due process. The

answer must be found in the circumstances present in every case, particularly in the

reasons presented to the trial judge at the time the request is denied." Ungar v. Sarafite,

376 U.S. 575, 589, 84 S.Ct. 841, 1 L.Ed.2d 921 (1964).

{¶ 11} The petition for adoption was filed on September 14, 2021. After repeated

failed service attempts, appellant was served with the hearing notice on January 14, 2022.

On February 7, 2022, appellant was appointed counsel to represent her. In the same Tuscarawas County, Case No. 2022 AP 04 0009 4

judgment entry, the hearing was continued from February 17, 2022, to April 5, 2022. The

hearing commenced as scheduled on April 5, 2022. Appellant's appointed counsel was

present, but appellant was not. T. at 4. Appellant's counsel informed the trial court he

attempted to contact appellant, but she was not responding to the number he had in his

file. Id. Appellant was aware of the date and time of the hearing as she and her counsel

discussed the upcoming hearing during a telephone call on March 15, 2022. T. at 5.

Appellant's counsel acknowledged the notice appellant received informed her that her

appearance was mandatory. Id. Appellant's counsel then requested a continuance "to

try and get ahold of my client. I'm not sure where she is. I did speak with her, so I will

attempt to represent the wishes she communicated to me during that phone call as best

I can today, but I would formally request a continuance to try to secure her personal

appearance." T. at 8. The trial court denied the request as follows (Id.):

I'm gonna deny the continuance request. Mother has been served

validly with notice of these proceedings. She as much as came to the Court

to request appointed counsel, which we have done, so, and you've

communicated with her. It's my understanding, based upon your

representations today, you've communicated to her about today's hearing,

the date and time for today's hearing, so we're gonna proceed.

{¶ 12} Appellant's counsel then informed the trial court he was notified appellant

was attempting to appear via Lifesize because she did not have transportation to the

hearing. T. at 8-9. The trial court stated, "mom knew, she should have made Tuscarawas County, Case No. 2022 AP 04 0009 5

arrangements to get transportation, and if she gets on Lifesize, we'll let her join in the

hearing." T. at 9. At no time did appellant join the hearing.

{¶ 13} When appellant was appointed counsel on February 7, 2022, she was

notified the hearing was continued to April 5, 2022. In a telephone call with her counsel

on March 15, 2022, appellant was aware of the hearing date. Appellant had several

weeks to arrange transportation to the hearing or to set up her appearance via Lifesize.

She failed to do either without any explanation as to why. Appellant's counsel participated

in the hearing and cross-examined the witnesses.

{¶ 14} Upon review, we find the trial court did not abuse its discretion in denying

appellant's continuance request.

{¶ 15} Assignment of Error II is denied.

{¶ 16} In her first assignment of error, appellant claims the trial court's decision

was against the manifest weight of the evidence. Specifically, appellant claims the trial

court erred in finding appellees met their burden. We disagree.

{¶ 17} On review for manifest weight, the standard in a civil case is identical to the

standard in a criminal case: a reviewing court is to examine the entire record, weigh the

evidence and all reasonable inferences, consider the credibility of witnesses and

determine "whether in resolving conflicts in the evidence, the jury [or finder of fact] clearly

lost its way and created such a manifest miscarriage of justice that the conviction

[decision] must be reversed and a new trial ordered." State v. Martin, 20 Ohio App.3d

172, 175, 485 N.E.2d 717 (1st Dist.1983). In State v. Thompkins, 78 Ohio St.3d 380, Tuscarawas County, Case No. 2022 AP 04 0009 6

387, 678 N.E.2d 541 (1997), quoting Black's Law Dictionary 1594 (6th Ed.1990), the

Supreme Court of Ohio explained the following:

Weight of the evidence concerns "the inclination of the greater

amount of credible evidence, offered in a trial, to support one side of the

issue rather than the other. It indicates clearly to the jury that the party

having the burden of proof will be entitled to their verdict, if, on weighing the

evidence in their minds, they shall find the greater amount of credible

evidence sustains the issue which is to be established before them. Weight

is not a question of mathematics, but depends on its effect in inducing

belief." (Emphasis sic.)

{¶ 18} In weighing the evidence, however, we are always mindful of the

presumption in favor of the trial court's factual findings. Eastley v. Volkman, 132 Ohio

St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517.

{¶ 19} As this court explained in In re Adoption of B.T.R., 5th Dist. Morrow No.

2019 CA 0005, 2020-Ohio-2685, ¶ 18:

The right of a natural parent to the care and custody of his or her

children is one of the most fundamental in law. This fundamental liberty

interest of natural parents in the care, custody and management of their

children is not easily extinguished. Santosky v. Kramer (1982), 455 U.S.

745, 753-754. Adoption terminates those fundamental rights. R.C. Tuscarawas County, Case No. 2022 AP 04 0009 7

3107.15(A)(1). Any exception to the requirement of parental consent must

be strictly construed so as to protect the right of the natural parents to raise

and nurture their children. In Re: Adoption of Schoeppner (1976), 46 Ohio

St.2d 21, 345 N.E.2d 608.

{¶ 20} R.C. 3107.07 governs consents not required. Subsection (A) states the

following:

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

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.

{¶ 21} "Because R.C. 3107.07(A) is written in the disjunctive, 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., 9th Dist. Lorain No.

12CA010312, 2013-Ohio-1600, ¶ 9, citing In re Adoption of McDermitt, 63 Ohio St.2d 301

(1980). Tuscarawas County, Case No. 2022 AP 04 0009 8

{¶ 22} "Clear and convincing evidence" is that evidence "which will provide in the

mind of the trier of facts a firm belief or conviction as to the facts sought to be

established." Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph

three of the syllabus. Accord In re Adoption of Holcomb, 18 Ohio St.3d 361, 368, 481

N.E.2d 613 (1985). "Where the degree of proof required to sustain an issue must be clear

and convincing, a reviewing court will examine the record to determine whether the trier

of facts had sufficient evidence before it to satisfy the requisite degree of proof." Cross at

477. Sufficiency of the evidence "is a test of adequacy. Whether the evidence is legally

sufficient to sustain a verdict [decision] is a question of law." Thompkins, supra, at 386.

{¶ 23} We note the weight to be given to the evidence and the credibility of the

witnesses are issues for the trier of fact. State v. Jamison, 49 Ohio St.3d 182, 552 N.E.2d

180 (1990). The trier of fact "has the best opportunity to view the demeanor, attitude, and

credibility of each witness, something that does not translate well on the written page."

Davis v. Flickinger, 77 Ohio St.3d 415, 418, 674 N.E.2d 1159 (1997).

{¶ 24} In determining the issues of contact and maintenance and support, the

Supreme Court of Ohio developed a three-step analysis:

The court must first 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. 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 Tuscarawas County, Case No. 2022 AP 04 0009 9

under the law or judicial decree, the court determines whether there was

justifiable cause for that failure.

In re Adoption of B.I., 157 Ohio St.3d 29, 2019-Ohio-2450, 131 N.E.3d 28, ¶ 15; In re

Adoption of A.K., ––– Ohio St.3d –––, 2022-Ohio-350, ––– N.E.3d –––, ¶ 17.

{¶ 25} At the conclusion of the hearing, the trial court found the parents failed,

without justifiable cause, 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. T. at

61. The trial court did not make any finding regarding support and maintenance.

Therefore, our review is limited to de minimis contact.

{¶ 26} For the first step, appellant made no argument there was any law or judicial

decree prohibiting her from contacting the child.

{¶ 27} For the second step, in its judgment entry filed April 5, 2022, the trial court

found appellant failed to provide more than de minimis contact with the child. In her

appellate brief, appellant does not dispute this finding. Appellant argues appellees failed

to prove there was no justifiable cause for her failure to provide more than de minimis

contact with the child. Appellant's Brief at 4.

{¶ 28} In 2019, the child was in the custody of the maternal grandmother. T. at 16.

Her age and health situation were not conducive to caring for an eighteen-month old child,

so she reached out to appellees because she knew they were interested in adopting a

child. Id. Appellees received legal custody of the child on May 29, 2020. T. at 12.

Appellant was granted visitation, but last visited the child before the final custody hearing Tuscarawas County, Case No. 2022 AP 04 0009 10

held on February 6, 2020. T. at 17-18, 21, 27, 29. The adoption petition was filed on

September 14, 2021. In the one year preceding the filing of the petition, appellant did not

try to contact the child via "correspondence, cards, [or] anything like that," and appellees

did not interfere in any way. T. at 18-19, 28-29. Appellant did not request or schedule

visitation and appellees never denied visitation. T. at 19, 28-29. Adoptive father believed

appellant knew his address and telephone number. T. at 22-23, 24. Appellant never

contacted him. T. at 23. Adoptive mother knew appellant had her telephone number. T.

at 28. Appellant texted her once in January prior to the final custody hearing on February

6, 2020. T. at 27-28. The trial court concluded "consent is not required by either of the

parents for the reason of failure to provide more than de minimis contact with the minor

for a period of at least one year prior to the filing of the petition." T. at 62.

{¶ 29} Appellant was aware of the hearing and failed to appear and testify on her

own behalf.

{¶ 30} Although it is appellees' burden to prove by clear and convincing evidence

appellant failed to provide more than de minimis contact with the child for the one-year

period and the failure was unjustified, appellant "has the burden of going forward with

evidence to show some justifiable cause for his or her failure to support or contact the

child. However, the burden of proof never shifts from the petitioner." In re: K.M.R., 5th

Dist. Muskingum No. CT2017-0049, 2018-Ohio-1265, ¶ 23, citing In re Adoption of Bovett,

33 Ohio St.3d 102, 515 N.E.2d 919 (1987).

{¶ 31} The evidence clearly shows appellant failed to provide even de minimis

contact with the child for more than one year preceding the filing of the petition. Appellant

had been granted visitation with the child, but failed to exercise it. She had appellees' Tuscarawas County, Case No. 2022 AP 04 0009 11

contact information. There is no evidence of appellees or anyone else interfering in any

way with appellant attempting to contact the child. Appellant was able to contact and

communicate with her court appointed counsel.

{¶ 32} Upon review, we find the trial court neither lost its way nor created a

miscarriage of justice in finding appellant's failure to provide de minimis contact with the

child for the one-year period was not justifiable. The trial court's decision in finding

consent was not required was not against the manifest weight of the evidence.

{¶ 33} Assignment of Error I is denied.

{¶ 34} The judgment of the Court of Common Pleas of Tuscarawas County,

Probate Division, is hereby affirmed.

By Wise, Earle, P.J.

Gwin, J. and

Delaney, J. concur.

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