Opinion
22CA10
12-29-2022
IN THE MATTER OF THE ADOPTION OF: R.R.
George L. Davis, IV, Portsmouth, Ohio, for Appellant. Chase B. Bunstine, Chillicothe, Ohio, for Appellee.
CIVIL CASE FROM COMMON PLEAS COURT, PROBATE DIVISION
George L. Davis, IV, Portsmouth, Ohio, for Appellant.
Chase B. Bunstine, Chillicothe, Ohio, for Appellee.
DECISION & JUDGMENT ENTRY
PETER B. ABELE, JUDGE
{¶1} This is an appeal from a Jackson County Common Pleas Court, Probate Division, judgment that denied an adoption petition. K.L., the child's legal custodian, petitioner below and appellant herein, assigns the following errors for our review:
FIRST ASSIGNMENT OF ERROR:
"THE TRIAL COURT ERRED AS A MATTER OF LAW BY PRECLUDING PETITIONER FROM PRESENTING EVIDENCE OF A FAILURE TO SUPPORT FOR THE ONE-YEAR PERIOD PRIOR TO PLACEMENT IN PETITIONER'S HOME."
SECOND ASSIGNMENT OF ERROR:
"THE TRIAL COURT ERRED BY DENYING PETITIONER'S PETITION FOR ADOPTION."
{¶2} On September 28, 2021, appellant filed a petition to adopt R.R. and alleged that consent to adopt is not required because both parents, biological mother B.A. (appellee) and biological father T.R., failed, without justifiable cause, to (1) have more than de minimis contact with R.R. for at least one year immediately preceding the filing of the adoption petition or the placement of the minor in the petitioner's home, and (2) provide for the maintenance and support of R.R., as required by law or judicial decree, for a period of at least one year immediately preceding the filing of the adoption petition or the placement of the minor in the petitioner's home.
{¶3} In contrast, appellee asserted that (1) appellee consented to the child's placement with appellant only because of her incarceration, and appellant promised to encourage "a good positive relationship" between appellee and R.R. upon appellee's release, (2) appellant did not permit appellee to have contact with R.R., (3) appellee mailed support payments directly to appellant, (4) appellee attempted to have contact with R.R. and mailed a birthday card when appellant did not permit her to see R.R., (5) before appellee's June 19, 2021 release from prison, she filed a pro se motion for parental visitation, and (6) appellee attempted to establish child support through the child support enforcement agency (CSEA), but CSEA did not pursue the matter because of the pending court case.
{¶4} On March 16, 2022, the trial court held a hearing on the issue of whether appellee's consent to the adoption is required. Before the hearing, appellant dismissed her claim about lack of contact. Thus, the sole remaining issue was whether appellant established, by clear and convincing evidence, that appellee failed, without justifiable cause, to provide for the child's maintenance and support for a period of at least one year that immediately preceded the filing of the adoption petition or the child's placement in the petitioner's home. Appellant, appellee, and CSEA Supervisor Tammy Hughes all testified. At the time of the hearing, R.R. was seven years old.
{¶5} Appellant has had custody of R.R. since April 25, 2019, and before that a temporary guardianship. On September 28, 2021, appellant filed the adoption petition. Appellant testified that R.R.'s father and mother failed, without justifiable cause, to provide for the maintenance and support of R.R. for a period of at least one year that immediately preceded the petition's filing. Appellant stated that appellee made "like a little doll that she crocheted and some cards that she wrote * * * handmade items," but made no financial contributions.
{¶6} On cross-examination, appellant acknowledged that she signed a statement of understanding of prospective custodian, filed April 25, 2019, that provides that appellee "retained certain residual rights." Appellant also conceded that the trial court reserved the child support issue for future consideration. Appellant further testified that she has been able to "fully support [R.R.'s] needs from April 19 to the present," with an income of "maybe 60,000" between September 18, 2020 and September 28, 2021. Appellant acknowledged she did not seek a support order from appellee, and that she has no interest in receiving financial support from appellee.
{¶7} Appellant also read several Facebook messages appellee sent to her, including a September 4, 2021 message:
Hey, I got paid and wanted to know if [R.R.] needed anything for school or anything else. I want to help in any way, shape or form I can. I don't make a lot, but I'm willing to spend my last penny on an anything she needs. How's her counseling going? How does she like school so far?
Appellant read another September 15, 2021 Facebook message from appellee:
[R.R.'s] birthday is this week and I wanted to know if you let me bring her gifts. I got her a lot. I miss
and love her so much. I also got to make a cake and I'm going to make it so you'll let me give it to her or if you just want to have it. I can give you money to help if you need help with her party or school or anything else. I got her a lot of nice things and have been saving awhile to be able to get them so I really want her to have them. I just want her to have a good birthday. If you don't want to say they are from me that's ok. I just want her to at least have them and enjoy them. Please get back to me.
Appellant, however, testified that she did not recall seeing those messages in September 2021. Appellant read another August 17, 2021 Facebook message from appellee:
Hey, I tried calling you and even sent a letter, but it was returned. Can you please tell me how [R.R.] is doing? Being out trying to get my life together and not seeing her has killed me. I was very disappointed they switch court dates even farther back because I put this motion in before I even left prison and it had taken this long. Really would love pictures and to see how she is.
{¶8} Jackson County Child Support Enforcement Agency (JCCSEA) Supervisor Tammy Hughes testified that appellee has other children with a different father and is current in their child support. In July 2021, appellee "came into the agency to ask for help in trying to make a payment on her case in which she's ordered to pay child support." The website did not work properly, so Hughes helped appellee make a payment. Appellee also inquired about establishing a support order for R.R., but when Hughes learned about pending litigation regarding the child, Hughes informed appellee that under JCCSEA policy, Hughes could not initiate a support order at that time. Appellee also visited the JCCSEA office again in October 2021.
{¶9} Appellee testified she is R.R.'s biological mother and that appellant obtained custody in April 2019. Appellee had been incarcerated and then released in June 2021. Appellee said that while incarcerated, she had frequent contact with appellant and called appellant once every two weeks. "I would write her letters every other week and then I would also send [R.R.] home stuff like cards and such and then I would also make random phone calls. I would call her all the time."
{¶10} While incarcerated, appellee offered financial support "several times" and told appellant "my family could also give support." Appellant, however, did not ask for support and said R.R. "had everything that she needed and she was fine."
{¶11} While in prison, appellee also visited the public defender's office:
about establishing a child support order with [R.R.] because I know that when [appellant] got custody of [R.R.] * * * a lot of people told me that if I didn't go and establish child support that adoption could be possible and I wanted to avoid that at all cost so I went and I talked to them about getting something set up and, I mean, it's prison so they kind of blew me off, told me it was something I had to do upon my release.
Appellee explained that prison policy only permits inmates to send money orders to recipients on an inmate's visitor list and, although appellee "sent [appellant] a visitor application once and she never filled it out so I was taking it as that she didn't want to and I didn't want to keep pushing it." Thus, appellant did not appear on appellee's visitor's list.
{¶12} While in prison, appellee received $20 state pay per month. Of that amount, five dollars went to appellee's other children, and she spent the remaining $15 to buy supplies to make crocheted items and cards for R.R.:
I would mail them out and then send them to her and then I would do every single holiday. I mean, they are in the letters, but even minor holidays, St. Patrick's day, daylight savings time, I would send her a card and, yes, I know that's not a big holiday, but it was something to let my daughter know that there wasn't a day that went by that I didn't think about her because I do a lot from prison, but it's what I could do; it's the only thing I could do.
{¶13} Soon after her release from prison, appellee began to groom dogs, cut grass, "basically doing a bunch of minimum [wage] jobs to be able to provide." When appellee started employment at Papa John's in July, she attempted to complete the application to establish a support order for R.R. Appellee also feared that appellant would seek to adopt R.R.:
because a lot of people told me not to trust [appellant], but I know that this person was the only person that had
* * * gave me access to my daughter somehow so even though when I asked to talk to [R.R.] and she denied it, she was still giving me more than what I had before so I trusted [appellant] so as soon as I got out and she stopped all communication, I was like, oh my God, they were right and feared for an adoption which I mean I had the suspect in prison that's why I tried to go through the public defender, but it was like as soon as when I got out and she stopped all contact, it became real real.
{¶14} After appellee's release, appellant did not respond to letters, phone calls, or messages. Appellee also referred to a certified mail receipt of a card she sent to appellant's address for R.R.'s birthday. Appellee stated that the card contained $100 cash for R.R., but appellant disputed that money had been included with the card. Appellee is now employed at Cheryl's Cookies and earns $18 per hour for five hours work per day, for approximately 25-30 hours per week.
{¶15} On May 24, 2022, the trial court determined that appellee's consent to the adoption is required. In particular, the court held that appellant did not ask "for support from the mother" and "the issue of child support was never discussed with the mother." The court further found that the evidence "shows several examples of attempts and/or offers by the mother to provide support for the child" - specifically on September 14, 2021 and September 15, 2021. The trial court concluded that although B.A.'s [appellee] de minimis monetary gifts did not constitute maintenance and support, the April 25, 2019 custody order also reserved "the issue of child support," that the reservation appeared to be unlimited, and the reservation "could be interpreted to reserve the right to commence the support order effective the date of the original order." The court further noted that "the child's needs were being met," appellee "knew the child's needs were being met," and appellant "made it clear to the mother that contribution toward support or the child by the mother was not necessary." Therefore, the court held:
[t]he evidence is clear that the mother attempted to initiate a child support order during the one year look back period. The court finds that in light of her recent release from prison and virtually immediate attempt to initiate support that justifiable cause existed to not pay support.
{¶16} Thus, the trial court determined that the petitioner did not satisfy her burden of proof concerning the failure to pay support without justifiable cause and denied the petition. This appeal followed.
{¶17} The relationship between a parent and child is a constitutionally protected liberty interest. See In re Adoption of Zschach, 75 Ohio St.3d 648, 653, 665 N.E.2d 1070 (1996), In re Adoption of B.B.S., 2016-Ohio-3515, 70 N.E.3d 1 (4th Dist.), ¶ 12. Thus, a parent's consent to an adoption is generally required, and any exception to this requirement must be strictly construed in favor of the biological parent to protect his or her fundamental right to parent a child. In re Adoption of M.G.B.-E., 154 Ohio St.3d 17, 2018-Ohio-1787, 110 N.E.3d 1236, ¶ 40, citing In re Adoption of Schoeppner, 46 Ohio St.2d 21, 24, 345 N.E.2d 608 (1976).
{¶18} A minor child's natural parent's written consent is usually required prior to an adoption. However, R.C. 3107.07 provides exceptions to this requirement:
{¶19} 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 * * * the filing of the adoption petition * * *.
{¶20} "The petitioner for adoption has the burden of proving, by clear and convincing evidence, both (1) that the natural parent has failed to support the child for the requisite one-year period, and (2) that this failure was without justifiable cause." In re Adoption of Bovett, 33 Ohio St.3d 102, 515 N.E.2d 919 (1987), paragraph one of the syllabus.
{¶21} The question of whether a petitioner has proved, by clear and convincing evidence, a natural parent's failure to support his or her child without justifiable cause is a determination for the probate court and will not be disturbed on appeal unless that determination is against the manifest weight of the evidence. Id. at paragraph four of the syllabus; In re B.B.S. at ¶ 15; In re J.S., 4th Dist. Hocking No. 08CA2, Ohio-2834, ¶ 9; In the Matter of Adoption of C.L.D., 4th Gallia No. 21CA1, 2022-Ohio-368, ¶ 11. A judgment is not against the manifest weight of the evidence if some competent, credible evidence in the record supports the judgment. C.E. Morris Co. v. Foley Construction Co., 54 Ohio St.2d 279, N.E.2d 578, syllabus (1978). Appellate courts will also defer to a trial court on issues of weight and credibility because the trial court, as the trier of fact, is in the best position to view the witnesses, to observe their demeanor, gestures, and voice inflections, and to use those observations to weigh witness credibility. In re E.W.H., 4th Dist. Meigs No. 16CA8, 2016-Ohio-7849, ¶ 31.
I.
{¶22} In her first assignment of error, appellant asserts that the trial court erred as a matter of law by precluding her from presenting evidence concerning appellee's failure to support R.R. for the one-year period prior to the child's placement in her home. At the hearing, appellant sought to offer evidence of appellee's failure to support from the one- year period prior to the placement of the child in her home, but the trial court only permitted evidence regarding appellee's failure to support from the one-year period prior to the adoption petition's filing. Thus, in the case at bar appellant argues that the one-year look-back period should start on April 25, 2019, when she obtained custody. The adoption petition alleged that R.R. "is living in the home of the petitioner, and was placed therein for adoption on the 30 day of May, 2017 by [T.R./father]."
{¶23} Appellee, however, contends that the one-year lookback period should start on September 28, 2021, the date of the adoption petition's filing. Appellee points out that, despite appellant's characterization, the April 25, 2019 placement did not constitute an adoption placement, but rather the date that the court determined temporary custody. Thus, appellee argues that the trial court properly focused on the date the adoption petition, September 28, 2021. We agree.
{¶24} After our review, we disagree with appellant's contention that the trial court placed R.R. with appellant for adoption. Instead, the April 25, 2019 Order of Legal Custody reveals that the court temporarily placed R.R. in appellant's custody and appellant signed a Statement of Understanding that specifically acknowledged that the natural parents retained the right to consent to adoption. See In re Adoption of Kreyche, 15 Ohio St.3d 159, 472 N.E.2d 1106 (1984). According to R.C. 2151.353(3)(c):
A person identified in a complaint or motion filed by a party to the proceedings as a proposed legal custodian shall be awarded legal custody of the child only if the person identified signs a statement of understanding for legal custody that contains at least the following provisions:
* * *
(c) That the parents of the child have residual parental rights, privileges, and responsibilities, including, but not limited to, the privilege of reasonable visitation, consent to adoption, the privilege to determine the child's religious affiliation, and the responsibility for support.
{¶25} Consequently, after our review of the unique facts present in the case sub judice, we find no error in the trial court's determination that the one-year look-back period started one year before the filing of the adoption petition, rather than an "alternative" look-back period.
{¶26} Accordingly, based upon the foregoing reasons we overrule appellant's first assignment of error.
II.
{¶27} In her second assignment of error, appellant asserts that the trial court's denial of her petition for adoption is against the manifest weight of the evidence.
{¶28} Maintenance and support are not defined in R.C. 3107.07(A). In re E.W.H. at ¶ 32, In re A.N.W., 7th Dist. Belmont No. 15BE0071, 2016-Ohio-463, ¶ 17; In re Adoption of M.B, 131 Ohio St.3d 186, 2012-Ohio-236, 963 N.E.2d 142, ¶ 20. Thus, courts must give those terms their ordinary meaning. Maintenance is defined as “[f]inancial support given by one person to another.” Id. citing Black's Law Dictionary 1039 (9th Ed.2009). Support is defined as “[s]ustenance or maintenance; esp., articles such as food and clothing that allow one to live in the degree of comfort to which one is accustomed.” In re Adoption of M.B. at ¶ 20, citing Black's Law Dictionary 1577 (9th Ed.2009). “Justifiable” means ‘[c]apable of being legally or morally justified; excusable; defensible.” In re B.B.S. at ¶ 16, quoting Black's Law Dictionary (8th Ed.2004) 882.
{¶29} In the case sub judice, after the trial concluded that appellee failed to support her child, the burden to go forward with the evidence shifted to appellee to show a justifiable reason for this failure. In re Bovett at 104, 515 N.E.2d at 922; In re Adoption of Way, 4th Dist. Washington No. 01CA23, 2002 WL 59629, *3 (Jan. 9, 2002). The evidence adduced at the hearing reveals that appellee had been incarcerated 9 of the 12 months of the look-back period, and earned $20 per month. Although incarceration alone may not constitute a justifiable excuse, it is one factor that a court may consider when determining justifiable cause for the failure to provide maintenance and support. Frymier v. Crampton, 5th Dist. Licking No. 02-CA8, 2002-Ohio-3591. Here, immediately after her release from prison appellee sought employment.
{¶30} Further, courts have also concluded that when a custodian, who is in a better financial position than the natural parent and expresses no interest in receiving financial assistance from the natural parent, adequately provides for a child's needs, the natural parent's failure to support the child may be justifiable. In re Adoption of LaValley, 2d Dist. Montgomery No. 17710, 1999 WL 961785, *5 (Jul. 9, 1999)(parent no reason to believe that financial assistance necessary for child's support and persons caring for child expressed no interest in receiving financial assistance or contribution from the parent, no such abdication of parental responsibility is suggested by the natural parent's failure to provide financial assistance that is neither needed nor requested); In re Adoption of Hadley, 2d Dist. Green No. 90CA117, 1991 WL 227737, *3 (May 6, 1991); In re Adoption of Howell, 77 Ohio App.3d at 97, 601 N.E.2d 92; In re Way at *3; In re J.S. at ¶ 12; In re Adoption of Hughes at ¶ 21; In re E.W.H. at ¶ 46.
{¶31} In the case sub judice, appellant testified about her income and that she did not seek appellee's financial assistance. We recognize, however, that R.C. 3103.03 provides for a parent's duty to support their child even in the absence of a child-support order and regardless if a request for support has been made. In re B.I., 157 Ohio St.3d 29, 2019-Ohio-2450, 131 N.E.3d 28. Here, however, appellee testified that on multiple occasions she asked appellant if she needed help and offered her family's financial assistance.
{¶32} After our review, we fully agree with the trial court's conclusion that the evidence adduced at the hearing established a "justifiable reason" for appellee not to provide financial support for her daughter. We agree with the trial court that this appellee had, at every turn, attempted to provide support for her child to the best of her ability and this is not the type of situation when a parent's consent to adopt is not required. Accordingly, based upon the foregoing reasons, we overrule appellant's second assignment of error and affirm the trial court's judgment.
JUDGMENT AFFIRMED.
JUDGMENT ENTRY
It is ordered that the judgment be affirmed and appellee recover of appellant the costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Jackson County Common Pleas Court, Probate Division, to carry this judgment into execution.
A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Smith, P. J. & Hess, J.: Concur in Judgment & Opinion
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.