Opinion
Case No. 19CA000012 Case No. 19CA000013 Case No. 19CA000014 Case No. 19CA000015
10-15-2019
IN THE MATTER OF THE ADOPTION OF: L.G., B.G. C.G., M.G.
APPEARANCES: For Plaintiff-Appellant MICHAEL J. SHAHEEN BRANDON D. LIPPERT 128 S. Marietta Street P.O. Box 579 St. Clairsville, OH 43950 For Defendant-Appellee DIANA E. DUDGEON 201 N. Main Street P.O. Box 272 Urichsville, OH 44683
JUDGES: Hon. W. Scott Gwin, P.J. Hon. Patricia A. Delaney, J. Hon. Earle E. Wise, Jr., J.
OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case Nos. 18 PA 53407, 18 PA 53408, 18 PA 53409, 18 PA 53410 JUDGMENT: Affirmed APPEARANCES: For Plaintiff-Appellant MICHAEL J. SHAHEEN
BRANDON D. LIPPERT
128 S. Marietta Street
P.O. Box 579
St. Clairsville, OH 43950 For Defendant-Appellee DIANA E. DUDGEON
201 N. Main Street
P.O. Box 272
Urichsville, OH 44683 Wise, Earle, J.
{¶ 1} Petitioner-appellant appeals the March 27, 2019 judgment of the Guernsey County Probate Court which found pursuant to R.C. 3107.07(A), that consent was required from appellee K.H before appellant could adopt L.G., B.G., C.G., and M.G.
FACTS AND PROCEDURAL HISTORY
{¶ 2} Appellant is the stepmother of the four children at issue here, who range in age from 6 to 13. Their father is J.G and appellee is their biological mother. Father and appellee divorced in 2014. Father is the primary residential parent and legal custodian of the children. Appellee was ordered to pay $300 a month in child support.
{¶ 3} Appellant filed a petition for adoption for each of the four children on October 16, 2018. Father filed a consent to appellant's adoption of the children on December 16, 2018. On December 17, 2018, appellant filed amended petitions. In her petitions, appellant alleged pursuant to R.C. 3107.07(A) that consent was not required from appellee because appellee had failed, without justifiable cause, to provide for the maintenance and support of the children as required by law or judicial decree for at least one year prior to the petition for adoption.
{¶ 4} A hearing was held on March 13, 2019 to address the consent issue only. Father testified mother had intermittent contact with the children, and that before the petitions for adoption were filed, he had never received any child support save for a $184 tax intercept in March of 2017. After appellant filed her petitions to adopt the children, however, mother obtained employment and had made one child support payment as of the date of the hearing. Father stated appellee's failure to support her children stemmed from her inability to defeat her opiate addiction.
{¶ 5} Appellant testified she had lived with father and the children for 4 years and that she and father married on December 31, 2017. She stated appellee had minimal contact with the children and did not acknowledge the children's birthdays, school events or milestones, and did not help with school clothing or other essentials.
{¶ 6} Appellee testified that between July 2016 and October 2018, she regularly attempted visitation, but father and appellant insisted on supervising the visits and would only do so when it was convenient for himself and appellant. She stated father and appellant also refused to permit appellee's parents to visit the children. Appellee stated there was never a judgment from any court prohibiting her from visiting with her children or ordering supervised visits.
{¶ 7} Appellee testified she was arrested for possession of heroin on May of 2017 and subsequently granted treatment in lieu of conviction. When she failed drug screens, however, she was sentenced to three months at the Eastern Ohio Correction Center.
{¶ 8} Appellee testified she was released in July 2018, and has been compliant with the terms and conditions of her probation. She obtained employment in November 2018 and is paying child support through payroll withholding.
{¶ 9} Appellee did not dispute that she had failed to pay child support as required prior to December 2018. She stated, however, she had to quit her job in September 2016 to take care of her mother who had cancer, and during that time fell deeper into her addiction. She further outlined the time she spent either in jail or rehabilitation, during which time she was unable to work, and explained she was unable to seek employment immediately after being released as she was required to fulfill her community service obligations and attend outpatient group therapy sessions. Appellee admitted she has been an addict for 20 years. As of the date of the consent hearing, she had been clean for one year, albeit 6 months of that time being spent either incarcerated or in rehabilitation.
{¶ 10} At the conclusion of the hearing, the trial court took the matter under advisement. On March 27 the court issued its judgment entry finding appellee's consent was required before appellant would be permitted to adopt the children. The trial court found that although mother had failed to pay child support for the requisite one-year "look-back" period, her failure was justified because she had spent that time battling her addiction, and had made considerable progress toward rehabilitation.
{¶ 11} Appellant filed an appeal and the matter is now before this court for consideration. Appellant raises one assignment of error:
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{¶ 12} "THE TRIAL COURT ABUSED ITS DISCRETION BY FINDING THAT APPELLEE'S CONSENT WAS REQUIRED BECAUSE THERE WAS JUSTIFIABLE CAUSE FOR NONPAYMENT OF MAINTENANCE AND SUPPORT OF THE MINOR CHILDREN."
{¶ 13} As an initial matter, we note this case is before this court on the accelerated calendar which is governed by App.R. 11.1. Subsection (E), determination and judgment on appeal, provides in pertinent part: "The appeal will be determined as provided by App.R. 11.1. It shall be sufficient compliance with App.R. 12(A) for the statement of the reason for the court's decision as to each error to be in brief and conclusionary form."
{¶ 14} One of the important purposes of the accelerated calendar is to enable an appellate court to render a brief and conclusory decision more quickly than in a case on the regular calendar where the briefs, facts, and legal issues are more complicated. Crawford v. Eastland Shopping Mall Assn., 11 Ohio App.3d 158, 463 N.E.2d 655 (10th Dist. 1983).
{¶ 15} This appeal shall be considered in accordance with the aforementioned rules.
{¶ 16} In her sole assignment of error, appellant argues the trial court abused its discretion by finding appellant's failure to pay child support was justified, and thereby requiring appellee's consent before appellant can adopt the children. We disagree.
{¶ 17} As recognized by the Supreme Court of the United States, natural parents have a fundamental liberty interest in the care, custody, and management of their children. Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972). A parent's right to raise a child is an essential civil right. In re Murray, 52 Ohio S.3d 155, 556 N.E.2d 1169 (1990). Adoption permanently terminates the parental rights of a natural parent. In re Adoption of Reams, 52 Ohio App.3d 52, 557 N.E.2d 159 (10th Dist. 1989). Courts must therefore afford the natural parent every procedural and substantive protection allowed by law before depriving a parent of the right to consent to the adoption of their child. In re Hayes, 79 Ohio St.3d 46, 679 N.E.2d 680 (1997).
{¶ 18} While written consent of a minor child's natural parents is usually required prior to adoption, R.C 3107.07(A) provides exceptions. Specifically, consent is not required "* * * 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."
{¶ 19} The burden of proof is upon appellant. "The party petitioning for adoption has the burden of proving, by clear and convincing evidence, that the parent failed to communicate with the child during the requisite one-year period and that there was no justifiable cause for the failure of communication." In re Adoption of Holcomb, 18 Ohio St.3d 361, 481 N.E.2d 613 (1985). "No burden is to be placed upon the non-consenting parent to prove that his failure to communicate was justifiable." Id.
{¶ 20} The Supreme Court of Ohio has stated "[t]he question of whether justifiable cause for failure to pay child support has been proven by clear and convincing evidence in a particular case is a determination for the probate court and will not be disturbed on appeal unless such determination is against the manifest weight of the evidence." In re Adoption of M.B., 131 Ohio St.3d 186, 2012-Ohio-236, 963 N.E.2d 142.
{¶ 21} Appellant's petition alleged only that appellee failed to financially support her children for the requisite one-year period. In order to prevail in this matter, appellant was required to prove by clear and convincing evidence that: (1) there has been a failure of support by appellant for the one-year period and (2) the failure is unjustified. If appellant met her burden of proof, then appellee had the burden of going forward with evidence to show some justifiable cause for her failure to support her children. However, the burden of proof never shifts from the petitioner. In re Adoption of Bovett, 33 Ohio St.3d 102, 515 N.E.2d 919 (1987).
{¶ 22} It is undisputed that mother failed to pay child support as required during the one year look-back period. The only question is whether or not mother's non-payment was justified.
{¶ 23} Appellant urges us to find the trial court abused its discretion in finding appellee's non-payment justified because appellee, through her addiction, put herself in the position in which she found herself, and is therefore her addiction is not "justifiable cause." Appellant cites several cases to support this argument, however, none are on all fours factually with this matter, and one - In re Adoption of A.S., 5th Dist. Licking App. No. CT 2011-10-CA, 2011-Ohio-1505 - was abrogated by the Supreme Court of Ohio in June. Unlike the cases cited by appellant, appellee here did not physically harm or abuse her children.
{¶ 24} Appellee cites In re E.W.H, P.R.H, 4th Dist. Meigs No. 16CA8, 2016-Ohio-7849 which also involved a step-parent adoption petition and a biological parent struggling with addiction and failing to financially support her children. In that matter, as here, the biological parent was making her first attempt at rehabilitation and her children were still young Thus there still existed a reasonable opportunity to cultivate a parent-child relationship. Additionally, in that matter as here, rehabilitation and incarceration hindered mother's ability to meet her child support obligation. The Fourth District ultimately found no error in the probate court's finding that mother's failure to meet her child support obligations was justified.
{¶ 25} In the matter before us, appellee testified she had initially needed to quit her job to care for her mother who had cancer. During that time her opiate addiction intensified and she was eventually arrested for possessing heroin. By the date of the hearing on the adoption petitions, however, appellee had been through treatment for her drug addiction, obtained employment, and began paying on her support obligations. She testified she was unable to seek employment immediately after her release as she was still required to attend group therapy sessions and perform 100 hours of community service. In short, the record demonstrates that appellee has made nothing but forward progress since her arrest on drug charges.
{¶ 26} The probate court was in the best position to observe the demeanor of the witnesses, their gestures and voice inflections and to assign credibility to their testimony accordingly. Based on the record before us, and the case law submitted by both parties, we conclude the trial court's finding that appellee's failure to pay her child support obligations as ordered was justified is not against the manifest weight of the evidence.
{¶ 27} The sole assignment of error is overruled.
{¶ 28} The judgment of the Guernsey County Probate Court is affirmed. By Wise, Earle, J. Gwin, P.J. and Delaney, J. concur. EEW/rw