Camile A. Celestino v. Robert Schneider, 92-LW-4930

• Decision Date: 11 December 1992
• Docket Number: 92-LW-4930,L-92-055
• Parties: Camile A. Celestino, et al., Appellees v. Robert Schneider, Appellant Court of Appeals
• Court: Ohio Court of Appeals

Camile A. Celestino, et al., Appellees v. Robert Schneider, Appellant

No. L-92-055.

92-LW-4930 (6th)

Court of Appeals of Ohio, Sixth District Lucas

December 11, 1992

Trial Court No. AD 91-0098.

Paul McCrory, Jr., for appellees.

Sharon Griffin, for appellant.

OPINION

SHERCK J.

This case is appealed from the Probate Division of the Lucas County Court of Common Pleas which granted an adoption petition that was filed by the stepfather of two minor children. We find that the manifest weight of the evidence demonstrates that appellant, who is the minor children's natural father, made some meager contribution toward the children's support and, as a result of that contribution retains the right to object to the proposed adoption of his children. We also find that the court erred in granting the petition for adoption without first examining the best interests of the children. For these reasons, we reverse and remand.

Appellant Robert W. Schneider is the biological father of two minor children, Andrew and Natalie. The children were born of the marriage between appellant and Camile Celestino, f.k.a Camile Schneider, f.k.a. Camile Pizza. That marriage ended in divorce in 1988. Camile Celestino was awarded custody of the two children, and appellant was ordered to pay approximately $94 per week as child support

Camile Celestino subsequently married David Celestino who decided to adopt the two children. Camile and David Celestino, appellees in this case, filed their petition to adopt the children and asserted, in accordance with R.C. 3107.07, that the consent of appellant Robert Schneider was not required because appellant had failed to communicate with or support the children for one year preceding the date of the petition.

The cause was assigned to The Honorable Judge Puffenberger. Appellant requested that Judge Puffenberger recuse himself because the Judge was acquainted with Camile Celestino. In response to this request, Judge Puffenberger did recuse himself and The Honorable Judge Restivo was assigned to the case by Chief Justice Moyer of the Ohio Supreme Court. Because Camile Celestino was the daughter of Lucas County Prosecutor Anthony Pizza, appellant's counsel then sent a letter to Judge Restivo inquiring about any professional relationship between Prosecutor Pizza and Judge Restivo. The letter read:

"Pursuant to Judge Puffenberger's September 20th letter to Chief Justice Moyer requesting your assignment to above-captioned case, as copied to you, and just received by me this week, please advise if County Prosecutor Pizza has ever acted as your legal counsel, in either a personal or professional capacity. If so, we must respectfully request you to recuse yourself from the aforecited proposed appointment."

Judge Restivo responded with a letter reading:

"This is in response to your letter of October 3, 1991 regarding my assignment to the aforementioned case.

"Please be advised that I foresee no conflict of interest in this case, and therefore, I have no intention of recusing myself."

The case was then called for a hearing before Judge Restivo on November 21, 1991. The purpose of the hearing was to inquire into the assertions that appellant's consent to the proposed adoption was not required because he had failed to support or communicate with the children for one year prior to the filing of the petition. The evidence showed, and the court found, that appellant had not fully complied with his court ordered child support obligations. Appellant had made but one payment of $36 during the year preceding the filing of tile adoption petition. In an effort to explain his significant lack of child support payments, appellant stated that he had attempted to provide additional support. According to appellant, he was financially unable to give substantially greater support; however, he testified that he had sent some small additional checks that were returned by the Child Support Enforcement Agency because they were personal checks, not certified.

The trial court apparently rejected appellant's testimony and found that appellant's failure to pay additional support constituted a willful and intentional disregard of appellant's obligations.

The trial court made no findings regarding the alleged failure to communicate with the children, but determined that appellant's consent to the adoption was not necessary because appellant had failed to support the children for one year prior to the filing of the petition. The court then overruled appellant's objection to the petition.

After overruling appellant's objections to the petition, the court granted the petition for adoption. Appellant has timely appealed to this court asserting three assignments of error:

"ASSIGNMENT OF ERROR #1: The trial court erred as a matter of law when it granted Appellees' petition for adoption immediately following hearing on Appellant's alleged willful failure to support.

"ASSIGNMENT OF ERROR #2: The trial court abused its discretion when it ruled against Appellant contrary to the manifest weight of the evidence.

"ASSIGNMENT OF ERROR #3: Because of an apparent and potential conflict of interest, the trial bench committed reversible error when the presiding judge refused to recuse himself from the case."

I

In his first assignment of error, appellant asserts that the trial court erred in granting the petition based solely on the finding that appellant's consent was not necessary and without making a further determination that adoption was in the best interests of the children. Appellees concede this point.

After a court determines that the consent of a parent is not necessary, the court must still determine if adoption is in the best interests of the child. R.C. 3107.14; In re Adoption of Jorgenson (1986), 33 Ohio App.3d 207. In this case, there was no evidence presented, nor any finding made, concerning the question of whether the adoption was in the best interests of the children. Accordingly, we find appellant's first assignment of error well-taken.

II

Appellant next argues that the court's finding that his consent was not required is not supported by the manifest weight of the evidence. Appellees contend, on the other hand, that...