In re S.S.

101 N.E.3d 527, 2017 Ohio 8956
CourtCourt of Appeals of Ohio, Third District, Van Wert County
DecidedNovember 27, 2017
DocketNO. 15–17–06
StatusPublished
Cited by10 cases

This text of 101 N.E.3d 527 (In re S.S.) is published on Counsel Stack Legal Research, covering Court of Appeals of Ohio, Third District, Van Wert County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re S.S., 101 N.E.3d 527, 2017 Ohio 8956 (Ohio Super. Ct. 2017).

Opinion

WILLAMOWSKI, J.

{¶ 1} Father-appellant Michael E. Brunswick ("Michael") appeals the judgment of the Probate Division of the Court of Common Pleas of Van Wert County for finding that Michael's consent was not necessary for his daughter, SS, to be adopted by SS's mother's husband, Wesley A. Sweigart ("Sweigart"). On October 31, 2016, Sweigart submitted a petition to adopt SS that alleged Michael's consent was not necessary for this adoption, claiming that Michael had not had more than de minimis contact with SS for one year prior to the filing of this petition. For the reasons set forth below, the judgment of the lower court is reversed.

Facts and Procedural History

{¶ 2} SS is the daughter of Michael and Stephanie L. Hogenkamp ("Stephanie").1 Doc. 1. SS has lived with her mother, Stephanie, in Van Wert County since May 1, 2015. Tr. 2-3. Throughout SS's childhood, Michael has paid child support pursuant to a court order that was issued in Mercer County. Doc. 9. However, no court order was issued that governed Michael's visitation rights. Tr. 3, 7. Rather, Michael worked out his schedule for visitation through verbal agreements with Stephanie. Tr. 4, 8. According to the testimony of both parties, Michael was able to visit SS regularly through the fall of 2015. Tr. 4. In 2015, however, Stephanie moved in with Wesley Sweigart ("Sweigart"), who is now her husband, and is the petitioner in this case seeking to adopt SS. Tr. 31. Doc. 1. Shortly after Stephanie moved in with Sweigart, Michael's pattern of visitation began to change. Tr. 4, 26. At this point, Stephanie's description of events begins to contradict Michael's description of events. Tr. 4, 27, 52. At trial, each party provided different reasons for why Michael's pattern of regular visitation was interrupted. Tr. 4, 27.

{¶ 3} When Michael testified, he began by explaining that he and Stephanie had no formal court order governing his visitation rights. Tr. 25-26. Initially, he and Stephanie had a verbal agreement that he could see SS "whenever [he] wanted to see her." Tr. 26. In 2014, however, Michael got a trucking job that required him to be gone for up to thirty days at a time. Tr. 26. While he had this job, he would take SS for the week each month in which he was not traveling for his job. Tr. 26. In 2015, he got a job where he worked daily in Waynesfield, Ohio. Tr. 26. During this time, he visited SS frequently during the week and on weekends as SS and Stephanie *529lived under two miles away from his house. Tr. 32-33. However, when Stephanie moved to Van Wert in May of 2015 to live with Sweigart, SS began to stay with Michael every other weekend. Tr. 26-27. He testified that it was harder to visit SS during the week since she lived in Van Wert and he lived in Celina. Tr. 32-33. Under this arrangement, he would get to pick up his daughter every other Friday and spend time with her over the weekend before dropping her off at Stephanie's house on Sunday evening. Tr. 26-27.

{¶ 4} This pattern of seeing SS every other weekend continued until the fall of 2015. Tr. 32. Michael testified that he had SS for the first weekend of October in 2015. He testified that he had SS for a weekend in November but did not get SS for a second weekend in November because his weekend fell close to the Thanksgiving holiday, and Stephanie had family engagements for SS that weekend. Tr. 26. Michael testified that he moved to Waynesfield, Ohio in early December. Tr. 29. Michael also testified that he had SS for a weekend in early December shortly after he moved to Waynesfield. Tr. 28.

{¶ 5} At this point, Michael's attorney introduced a picture of Michael with SS that had been uploaded onto Facebook on December 10, 2015. Sweigart's attorney pointed out that the date on the Facebook page did not indicate that this picture was taken on that date and could have been taken long before the date on which the picture was uploaded. Tr. 47-49. However, Michael explained that this picture was taken in the house he had moved into in December 2015 and demonstrated that SS had been with him after October 4, 2015. Tr. 35. Michael did not get SS for a second weekend in December because his next scheduled weekend to be with SS fell on Christmas, and Stephanie would not allow him to take SS over the holiday. Tr. 26.

{¶ 6} Michael then testified that the last time he had SS was the weekend of January 8-10, 2016. Tr. 27. Michael said that he was scheduled to get SS on the weekend of January 22-24, 2016. Tr. 26. However, on January 22, 2016, he received a text message from Stephanie that said he "could not have her [SS] until I got an attorney." Tr. 26. Michael subsequently sought legal representation, but this process was delayed by the fact that he had to save up money to afford an attorney. Tr. 27. He testified that he did not have the funds to retain an attorney after he paid for his move to Waynesfield, Ohio and Christmas presents. Tr. 27.

{¶ 7} In between January of 2016 and the hearing, Michael testified that he had some contact with SS. In May of 2016, he texted Stephanie on SS's birthday to see if Stephanie would allow him to talk to his daughter. Stephanie returned his text with a phone call, and Michael was allowed to speak to his daughter for five minutes on her birthday. Tr. 29-30. On Sweetest Day in 2016, Michael also sent a flower to SS at school. Tr. 33. Stephanie admitted during her testimony that SS did come home from school one day in 2016 with a flower and a stuffed animal on Sweetest Day. Tr. 8-9.

{¶ 8} By September 2016, Michael had obtained legal representation. Tr. 27-29. He testified that the process of getting legal representation was not completed until a payment plan was worked out with his attorney. Tr. 28. On September 30, 2016, Michael filed a motion for shared parenting in the Mercer County Juvenile Court. Tr. 31. This document also requested an order that would govern visitation going forward. Tr. 31. Specifically, Michael asked for the right to see his daughter every other weekend during the school year and to have his daughter every other week when school was out of session in the summer time. Tr. 31-32. During her testimony, *530Stephanie claimed that she did not receive notice of the Mercer County action prior to Sweigart filing to adopt SS. Tr. 15. However, a copy of the filing was introduced during the hearing that had a timestamp indicating that the motion had been filed on September 30, 2016. Tr. 32.

{¶ 9} When Stephanie testified at the hearing, she presented a different timeline from the one offered by Michael. Stephanie testified that the final contact that Michael had with SS was on October 4, 2015. Tr. 4. Stephanie also testified that the final time Michael contacted Stephanie was on the day he was supposed to get SS for his second weekend in October. Tr. 4. Michael texted Stephanie, saying, "[W]hen am I getting my daughter." Tr. 9. She responded by telling Michael that they "would talk when he had a lawyer." Tr. 10.

{¶ 10} Stephanie then clarified that comment by saying, "I didn't say I wouldn't speak to him. I just said that we weren't going to talk about it right that minute because he was just being completely rude to me by saying when am I getting my daughter. We had always referred to her as ours." Tr. 10. She admitted that she had the ability to dictate when Michael could see SS. Tr. 10, 11. She attempted to clarify her statement about Michael getting a lawyer, saying that this discussion meant that "[w]hen he got a lawyer * * * he and I would talk.

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Cite This Page — Counsel Stack

Bluebook (online)
101 N.E.3d 527, 2017 Ohio 8956, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-ss-ohctapp3vanwert-2017.