Opinion
Case No. 2019 CA 00061
12-02-2019
IN THE MATTER OF THE ADOPTION OF K.M.T.
APPEARANCES: For - Appellee For - Appellant C. JOSEPH MCCOY 57 East Main Street Newark, OH 43055
JUDGES: Hon. W. Scott Hon. Patricia A. Delaney, J. Hon. Craig R. Baldwin, J.
OPINION
CHARACTER OF PROCEEDING: Civil appeal from the Licking County Court of Common Pleas, Probate Division, Case No. 2019-5030 JUDGMENT: Affirmed APPEARANCES: For - Appellee For - Appellant C. JOSEPH MCCOY
57 East Main Street
Newark, OH 43055 Gwin, P.J.
{¶1} Appellant appeals the June 28, 2019 judgment entry of the Licking County Court of Common Pleas, Probate Division, denying his petition for adoption and finding the adoption is not in the best interest of the minor child.
Facts & Procedural History
{¶2} On March 29, 2019, appellant S.T. filed a petition for the adoption of K.M.T. K.M.T. was born on June 14, 2013 and is the step-son of appellant. The petition alleges that the consent of A.L., the child's father ("Father") is not required because he has failed without justifiable cause to provide more than de minimis contact with the minor for a period of at least one year immediately preceding the filing of the adoption petition. The minor's mother ("Mother"), T.T., consents to the adoption.
{¶3} The trial court held a bifurcated hearing on appellant's petition on June 25, 2019. In the first portion of the hearing, the trial court heard evidence on the issue of whether Father's consent was necessary. In the second portion of the hearing, the trial court heard evidence on whether the adoption is in the best interest of the minor child.
{¶4} Mother testified in the first portion of the hearing. She stated she has not prevented Father from visiting with the child and Father last had personal contact with the child in December of 2015 when Father saw K.M.T. for Christmas when she and her family were in town visiting from North Carolina. Mother testified Father never provided the child with gifts or money, Father never wrote the child, and the last conversation Father had with the child was in 2015. Mother married appellant on March 27, 2018. She and appellant live with K.M.T., appellant and Mother's biological child, and Mother's oldest child, who she co-parents with the child's father.
{¶5} Mother testified Father has not done anything to have a relationship with K.M.T. and if Father had made an effort to have a relationship with K.M.T., she would not have done anything to prevent it. In June of 2016, on K.M.T.'s birthday, Father called Mother repeatedly and she was unable to answer because she was at work. Mother has not changed her phone number since 2014, Father knew the number, and both Father and paternal grandmother previously contacted her via that number. Mother did block Father on social media in 2015 because he tagged her in inappropriate things she did not want her friends and employer to see. Mother supports the adoption petition.
{¶6} Upon examination by the trial court, Mother testified K.M.T. was conceived in Ohio, and then was born in North Carolina after Mother left Ohio. Mother alleges Father was physically abusive, but she did not file criminal charges against him. Mother returned to Ohio in April of 2018. There is a child support order for Father from Mecklenburg County in North Carolina.
{¶7} J.L., paternal grandmother, testified Mother either blocked her number or did not answer multiple messages J.L. sent to her about visiting with K.M.T. J.L. and Father attempted to get Mother to send K.M.T. to them to visit, but Mother would not do it after previously bringing K.M.T. to visit them. J.L. and Father sent money to Mother for K.M.T. J.L. made sure she sent the money to K.M.T. that Father gave her. J.L. testified Mother used to come and visit them in Dayton several times per year and bring K.M.T. to the house so J.L. and Father could keep him for a few days. Mother did not notify J.L. she moved back from North Carolina. J.L. testified Mother blocked her and Father from K.M.T. approximately a year ago and J.L. sent K.M.T. something every year until he was five years old. J.L. believes Mother no longer permitted contact between K.M.T. and herself or Father because she wanted appellant to be K.M.T.'s Father. J.L. stated Father is a great Father to his daughter, who lives with her and Father. J.L. thinks Father loves K.M.T. and he will be a good father to him.
{¶8} On cross-examination, J.L. testified Father lives with her. Father did not establish visitation rights because Mother used to bring K.M.T. to visit when she visited from North Carolina so he did not need to go to court. J.L. could not remember when Father last had contact with K.M.T., but stated she and Father could not reach or contact him after that date. J.L. sent money to Mother's parents' address in North Carolina. J.L. stated she and Father sent K.M.T. a big box and a bike every year. J.L. did not know Mother moved back to Ohio until the hearing. J.L. stated Father also thought Mother was still in North Carolina because they discussed on the drive to the hearing that they were not sure why the hearing was in Ohio rather than North Carolina. J.L. had contact with Mother after K.M.T. turned four until Mother did not answer J.L.'s calls. J.L. could not remember the dates she called Mother, but testified she called her several times. Mother provided J.L. with an address in North Carolina at which to send clothes and shoes in November of 2017. J.L. does not remember if she texted Mother to obtain her new address.
{¶9} Father testified he has tried to get in contact with K.M.T. Father stated he has not tried since 2017 to contact K.M.T. because he did not have a phone number for Mother and he usually contacted her via Facebook messenger. Father testified to one incident when he was supposed to go to North Carolina and stay in a hotel to see K.M.T., but when the time came around for him to go, Mother stopped messaging him and would not reply to his calls or texts or messages through Facebook. Father described Facebook messenger messages he sent to Mother prior to November of 2017 when she blocked him and/or stopped responding, including him attempting to talk with K.M.T. and see him for his birthday.
{¶10} On cross-examination, Father stated he last saw K.M.T. in 2016 for Christmas. Father never filed anything in court to obtain visitation rights, but has paid child support. Father did not file anything with regard to visitation rights because he did not know how to get in contact with Mother, did not know where to file, and had no address for her to send anything.
{¶11} After Father's testimony, the trial court entered a finding that the consent of Father is unnecessary because, by his own admission, he has not tried to have contact with K.M.T. since 2017.
{¶12} The trial court then permitted appellant to present evidence as to the second stage of the hearing, the best interest stage. Counsel for appellant stated they would rely on the testimony previously presented and requested the court rely on the home assessor report prepared and submitted to the court.
{¶13} Father showed the trial court multiple photographs, including K.M.T opening gifts at Father's house in 2016, K.M.T. with Father's other daughter together, Father in North Carolina to visit K.M.T. in 2015, and Father's dad and K.M.T. together. Father detailed how he visited and saw K.M.T. during previous years, including at Christmas. Father testified he is currently on probation for possession of marijuana and had another conviction for possession of marijuana approximately two years ago. Father does not remember ever being physically abusive to Mother, although he acknowledges they did fight. Father stated the police were called once, but Mother told them Father did not touch her. Father has completed a year and a half of college and works full time as a cook. Father has two children, K.M.T. and a daughter.
{¶14} The trial court then inquired of Mother. Mother testified Father slapped her in the face and spit in her face. When the police arrived, Mother told them they were just arguing and it was nothing physical. Mother testified if Father had been successful in contacting her in the last year and a half and asked to visit K.M.T., she would have said ok, let's meet up. She would be hesitant since K.M.T. doesn't know Father and would like supervised visits, but would have allowed him because he is the biological Father. Counsel for appellant declined to ask any further questions.
{¶15} At the hearing, the trial court noted this was a difficult case, but concluded it was unable to find it is in the best interest of the child to grant the adoption. The trial court then stated court was adjourned. Counsel for appellant then asked to call appellant as a witness to address best interest. The trial court responded that appellant had already rested his case. Counsel for appellant stated he was relying on the home assessor report for the court to examine. The court stated the hearing had concluded and the adoption petition was denied.
{¶16} The "report on proposed adoption" by the adoption assessor provides Father "is reported to be uninterested, irresponsible, and inconsistent in most of his activities and affairs. The biological father also has exhibited abusive behavior towards Mother and has never followed through on anything involving K.M.T. He is reported to have 4 or 5 other children. He also has had a reported history of drug and alcohol abuse." At the conclusion of the report, the assessor stated she would recommend the petition for adoption be approved.
{¶17} On June 28, 2019, the trial court issued a judgment entry finding the consent of Father is not required because he failed without justifiable cause to provide more than de minimis contact with the minor for a period of at least one year immediately preceding the filing of the adoption petition. Also on June 28, 2019, the trial court issued a judgment entry denying appellant's petition, finding the adoption is not in the best interest of the minor child.
{¶18} The trial court found as follows: during her pregnancy, Mother relocated to North Carolina where the child was born, but Father did not follow her; Father regularly pays child support to Mother and during the first several years of the child's life, he maintained contact and communication with the child; Father resides with his mother in Dayton, Ohio; Mother did not notify Father or the paternal grandmother when she moved from North Carolina and returned to Ohio; Father and the paternal grandmother strongly desire to be involved in the child's life; previously, there was bonding between the child and Father/paternal grandmother; appellant married Mother fifteen months after he divorced his first wife; the petition for adoption was filed two days after Mother and appellant's first wedding anniversary; and there is no evidence that any party to this proceeding has been convicted of any criminal offense of violence involving a child or an adult.
{¶19} The trial court found the testimony of the paternal grandmother credible and believed her testimony that she loves her grandson and has attempted to be a part of his life, but has been thwarted in her efforts to do so by Mother. The trial court also found the testimony of Father credible that he loves the child and wants to be a part of his life, but has been thwarted in efforts to do so by Mother. The trial court noted Mother testified she really had no objections to Father visiting the child as long as the visits were supervised and as long as there was a "breaking in" period because the child had not seen his Father in quite some time.
{¶20} The trial court stated appellant did not testify at the hearing; however, after the parties rested and after the trial court announced its decision, counsel for appellant unsuccessfully sought to reopen the case to allow appellant to testify. Further, that there was no motion or request by any party to admit any exhibits which may have been identified by witnesses as potential exhibits. The trial court specifically stated it carefully and thoroughly considered the factors pursuant to R.C. 3107.161 in determining what is in the best interest of the minor child. The trial court concluded it was not in the best interest of the child to permanently sever all the parental rights of Father and it is in the best interest of the child to renew the positive relationship the child previously had with the paternal grandmother. The trial court is "convinced that both the father and grandmother wish to contribute to this child's happiness." Further, it is not in the best interests of the child, at this time, to grant the adoption.
{¶21} The trial court stated it "carefully reviewed the assessor's report" which supports the proposed adoption in which the assessor made negative comments about Father. However, the trial court discounted those comments because the sole source of information about Father is from Mother. As to Father, the trial court found he previously had a relationship with the minor child, he pays child support for the minor child, and he does not have four or five other children. The trial court believed it was the intention of Mother to do everything possible to help appellant adopt the child even if it meant not being totally truthful to the assessor regarding Father.
{¶22} Appellant appeals the June 28, 2019 judgment entry of the Licking County Probate Court and assigns the following as error:
{¶23} "I. THE PROBATE COURT ABUSED ITS DISCRETION BY DENYING THE PETITION FOR ADOPTION BECAUSE THE COURT'S DETERMINATION THAT THE PROPOSED STEPPARENT ADOPTION IS NOT IN K.M.T.'S BEST INTEREST IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE."
I.
{¶24} The decision to grant or deny an adoption petition is fact specific. In re Adoption of Charles B., 50 Ohio St.3d 88, 552 N.E.2d 884 (1990). Thus, trial courts have broad discretion to determine whether the petition should be granted or denied. Id.
{¶25} R.C. 3107.14(C) allows a probate court to issue a final decree of adoption at the conclusion of a hearing on the adoption petition if the court finds: (1) that the required consents have been obtained or executed and (2) that the adoption is in the best interests of the person sought to be adopted. Thus, the trial court must undertake a two-step analysis, consisting of a consent phase and a best interest phase. In re Adoption of Jordan, 72 Ohio App.3d 638, 595 N.E.2d 963 (12th Dist. 1991).
{¶26} In this case, the trial court found Father's consent was not required. The probate court then proceeded to the best interest phase.
{¶27} R.C. 3107.161 governs contested adoptions. Subsection (B) states that when a court makes a determination in a contested adoption proceeding concerning the best interest of the child, the court "shall consider all relevant factors including, but not limited to, the following": (1) the least detrimental available alternative for safeguarding the child's growth and development; (2) the age and health of the child at the time of the best interest determination; (3) the wishes of the child, if the child's age makes this feasible; (4) the duration of the separation of the child from the parent; (5) whether the child will be able to enter into a more stable and permanent family relationship, taking into account the child's current placement; (6) the likelihood of a safe reunification with a parent within a reasonable amount of time; (7) the importance of permanency, stability, and continuity of relationships for the child; (8) the child's interactions with the parents, siblings, and any other person who may significantly affect the child's best interest; (9) the child's adjustment to the current home, school, and community; (10) the mental and physical health of all persons involved in the situation; and (11) whether any person involved in the situation has been convicted of or accused or any criminal offense involving any act resulting in the child being abused or neglected.
{¶28} A person who contests the adoption petition has the burden of providing to the court "material evidence needed to determine what is in the best interest of the child" and establishing the child's current placement is not the least detrimental available. R.C. 3107.161(C). The least detrimental alternative is the "alternative that would have the least long-term negative impact on the child." R.C. 3107.161(A). However, the petitioner retains the burden of proving adoption is in the best interest of the child. In re Adoption of A.L.S., 12th Dist. Butler No. CA2017-09-146, 2018-Ohio-507; In re Adoption of H.T., 3rd Dist. Logan No. 8-17-57, 2018-Ohio-2806.
{¶29} We will reverse a trial court's best interest determination only if we find an abuse of the court's discretion. To find an abuse of discretion, we consider whether the court's decision was unreasonable, arbitrary, or unconscionable. In re Adoption of Ridenour, 61 Ohio St.3d 319, 574 N.E.2d 1055 (1991). As to the manifest weight of the evidence, a judgment supported by some competent and credible evidence going to all the essential elements of the case will not be reversed on appeal. C.E. Morris v. Foley Constr., 54 Ohio St.2d 279, 376 N.E.2d 578 (1978). A reviewing court must not substitute its judgment for that of the trial court where there exists some competent and credible evidence supporting the judgment rendered by the trial court. Id.
{¶30} Appellant makes three arguments to why the trial court's finding as to best interest was against the manifest weight of the evidence.
{¶31} First, appellant contends the trial court's finding that Mother thwarted the efforts of Father conflicts with the court's judgment entry finding Father was a parent who failed, without justifiable cause, to provide more than de minimis contact with the minor for a period of at least one year prior to the adoption petition. Appellant argues the judgment entry by the trial court on consent implicitly means Mother did not significantly interfere or discourage communication between Father and K.M.T. We disagree with appellant.
{¶32} As detailed above, the trial court must undertake a two-step analysis, a consent phase and a best interest phase; there are separate legal standards as to whether the consent is required and whether the adoption is in the best interest of the child. The trial court specifically stated it considered it considered the factors in R.C. 3107.161 in determining the best interest of the child. The finding by the trial court that Father and J.L. want to be a part of the child's life but have been "thwarted in efforts to do so by Mother," in the context of determining the best interest of the child is separate from the trial court's legal conclusion for purposes of determining whether Father's consent was needed and that Father failed, without justifiable cause, to provide more than de minimis contact with the minor for a period of one year prior to the adoption petition. Whether Father and/or J.L. attempted to be part of the child's life is relevant to the trial court's consideration of several of the best interest factors, including the relationship among the parties, the need for permanency, stability, and continuity of those relationships, the duration of the separation of the child from Father, and the child's interaction with Father and J.L. See In re B.M.S., 192 Ohio App.3d 394, 2011-Ohio-714, 949 N.E.2d 111 (10th Dist. Franklin) (holding the trial court can consider the biological Father's reason for not paying support and Mother actively denying the biological father visitation within the context of determining the best interest of the child even though the trial court found the father's consent was not needed); In the Matter of the Adoption of P.K.H., 4th Dist. Scioto No. 18CA3850, 2019-Ohio-2680 (finding though the father's consent was not needed, the trial court could find in the best interest phase that he attempted messages and phone calls but was rebuffed by Mother); In re Adoption of L.G., 6th Dist. Sandusky No. S-19-013, 2019-Ohio-2422 (finding the trial court could consider Mother's refusal to allow visits in the best interest phase after finding the father's consent not necessary); In the Matter of M.R.M., 7th Dist. Mahoning No. 17 MA 0088, 2017-Ohio-7710 (considering Dad's testimony he had not seen the child in several years due to the Mother's interference in the best interest phase of the adoption hearing).
{¶33} Appellant next contends the trial court's decision regarding best interest was against the manifest weight of the evidence because Father failed to meet his burden of proof to provide the court with material evidence needed to determine the best interest of the child and establish the child's current placement as not the least detrimental alternative. Father has the burden to provide to the court material evidence needed to determine what is in the best interest of the child and evidence needed to determine the alternative with the least long-term negative impact on the child. Though Father does have this burden in the best interest phase, ultimately the burden of proving the adoption is in the best interest of the child is on appellant.
{¶34} We find the trial court's determination that Father met his burden regarding best interest and least detrimental alternative is not against the manifest weight of the evidence. The testimony offered by Father and J.L. addresses several of the best interest factors, including factor 2 (J.L.'s testimony about the child's age); factors 5, 6, and 7 (testimony about visitation with the child since birth and how they have attempted to visit since); factor 8 (testimony about K.M.T.'s Christmas visits with Father, J.L., and Father's other child); factor 4 (testimony that the lack of contact was not solely the fault of Father because he and J.L. attempted to message Mother to continue visitation like they previously had); and factor 11 (testimony that Father's convictions were misdemeanors involving the use of marijuana). Father and J.L.'s testimony can be considered material evidence as to the best interest of the child. In the Matter of M.R.M., 7th Dist. Mahoning No. 17 MA 0088, 2017-Ohio-7710. The trial court is in the best position to observe the witnesses and weigh their credibility. Seasons Coal Co., Inc. v. City of Cleveland, 10 Ohio St.3d 771 (1984).
{¶35} As to the first best interest factor, the alternative with the least long-term negative impact on the child, Father presented evidence, in the form of his own testimony and J.L.'s testimony, that Father and J.L. would like to continue current placement of the minor child with Mother and visitation by Father and J.L. several times per year in person and additional contact by phone as had been the pattern until Mother did not respond to their inquiries. Father additionally offered the testimony of J.L., who opined Father would continue to be a good Father to K.M.T., as he is to his other child, if the petition is denied. In the trial court's inquiry of Mother, she testified that she had no objection to Father visiting the child within the last year because Father is the biological father of K.M.T., though she would be hesitant and request supervised visitation. From Father and J.L.'s testimony, the trial court could find the involvement of Father and J.L. in the child's life and the renewal of the positive relationship they previously had would benefit the child, making adoption not the least detrimental alternative.
{¶36} Appellant also takes issue with specific findings of the trial court as being contrary to the weight of the evidence and not relevant to the best interest of the child. We find the trial court's determinations are supported by competent and credible evidence. As to the determination that Mother thwarted the efforts by Father and J.L., both Father and J.L. testified they attempted to contact Mother, either via phone or Facebook messenger, to attempt to set up a visit like they previously had with K.M.T. and Mother did not answer the calls or messages. J.L. believes Mother stopped answering approximately one year prior to the filing of the adoption petition. Both Father and J.L. testified that they did not know Mother and K.M.T. moved back to Ohio from North Carolina. As to the finding regarding child support, Father testified he pays child support for K.M.T. Mother did not present any evidence to dispute this testimony.
{¶37} Upon review, we find the trial court's best interest determination is not against the manifest weight of the evidence and the trial court did not abuse its discretion in deciding it was not in the best interest of the child for the adoption to be granted. Considering the testimony presented and the trial court's broad discretion, the trial court, in reaching its decision, properly considered the relevant best interest factors, weighed the evidence, and determined witness credibility.
{¶38} Lastly, appellant argues the trial court's decision as to the best interest of the child is against the manifest weight of the evidence because the trial court announced its decision to deny the petition before providing appellant with an opportunity to rebut any testimony by Father or personally examine appellant or K.M.T.
{¶39} We disagree with appellant. After the trial court announced its decision as to consent, the trial court permitted appellant to present evidence as to best interest. Counsel for appellant stated they would rely on the testimony previously presented and requested the trial court rely on the home assessor report prepared and submitted to the court. After Father testified and Mother testified and answered the questions posed of the trial court, counsel for appellant declined to ask any further questions. After the trial court verbally announced its decision that the adoption was not in the best interest of the child and stated the hearing was adjourned, counsel for appellant then asked to call appellant as a witness to address best interest. The trial court denied counsel for appellant's request and stated the hearing was over. A trial court has the discretion to determine whether to permit a party to reopen his or her case after resting to offer additional evidence and this decision will not be disturbed on appeal absent an abuse of discretion. Columbus v. Grant, 1 Ohio App.3d 96 (1981). In this case, we find no abuse of discretion. The trial court permitted appellant to present any evidence he wanted in the best interest phase of the hearing. After the testimony of Father and Mother, the trial court asked counsel if he had any questions for them. Appellant did not ask to present his testimony or the testimony of K.M.T. until after the trial court announced its decision.
{¶40} Appellant relied on the adoption assessor report and argues the trial court did not properly take the report into consideration in its best interest determination. While the assessor's report recommends the adoption be granted, the trial court found such recommendation and conclusions in the report to be based solely on Mother and appellant's "report" of Father's activities and lack of interest in the child. Given that the report specifically states Father "is reported" to be uninterested, irresponsible, and inconsistent in his affairs, we find the trial court's finding to be supported by competent and credible evidence. As to the weight the trial court gave the adoption assessor's report, as an appellate court, we neither weigh the evidence nor judge the credibility of witnesses. Cross Truck v. Jeffries, 5th Dist. Stark No. CA-5758, 1982 WL 2911 (Feb. 10, 1982). As detailed above, we find there is competent and credible evidence upon which the trial court, as the fact finder, could base his judgment.
{¶41} Appellant suggests that, pursuant to the relevant adoption statutes, the trial court should have utilized resources to gather information to make a proper decision and that since the trial court needed more information to determine the best interest of K.M.T., the trial court should have continued the hearing. We first note that there is nothing in the trial court's judgment entry indicating it did not have enough information to make a best interest determination. Rather, the trial court explicitly found it was not in the best interest of the child for the adoption to be granted based upon the testimony and evidence presented by each party. Additionally, options cited by appellant such as a continuance, examining the petitioners separate and apart from each other, and an in camera interview of the minor child are all discretionary. R.C. 3107.14(B) ("the court may continue the hearing * * *); R.C. 3107.14(B) ("the trial court may examine the petitioner separate and apart from each other"); R.C. 3107.161 ("the wishes of the child in any case which the child's age and maturity makes this feasible"). We find the trial court's failure to utilize these options when none of the parties so requested during the hearing is not unreasonable, arbitrary, or unconscionable.
{¶42} Based on the foregoing, we find the trial court's best interest determination was not against the manifest weight of the evidence and the denial of the adoption petition was not an abuse of discretion. Appellant's assignment of error is overruled.
{¶43} The June 28, 2019 judgment entry of the Licking County Court of Common Pleas, Probate Division, is affirmed. By Gwin, P.J., Delaney, J., and Baldwin, J., concur