In re Adoption of L.S.

• Citation: 2020 Ohio 224
• Decision Date: 27 January 2020
• Docket Number: CASE NO. 5-19-20
• Parties: IN RE: THE ADOPTION OF: L.S. [CODY SCHOONOVER - APPELLANT]
• Court: United States Court of Appeals (Ohio)

2020 Ohio 224

IN RE: THE ADOPTION OF: L.S. [CODY SCHOONOVER - APPELLANT]

CASE NO. 5-19-20

COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT HANCOCK COUNTY

January 27, 2020

OPINION

Appeal from Hancock County Common Pleas Court Probate Division

Trial Court No. 20185044

Judgment Affirmed

APPEARANCES:

Drew J. Mihalik for Appellant

James W. Fruth for Appellee

WILLAMOWSKI, J.

{¶1} Respondent-appellant Cody R. Schoonover ("Schoonover") appeals the judgment of the Probate Division of the Hancock County Court of Common Pleas ("trial court"), alleging that the trial court erred in determining that paternal consent was not necessary for the adoption of L.S. and in determining that there was not justifiable cause for his failure to make more than de minimis contact with L.S. For the reasons set forth below, the judgment of the trial court is affirmed.

Facts and Procedural History

{¶2} Schoonover and Kayla N. Sealey ("Kayla") are the biological father and biological mother of L.S. Doc. 2. In 2016, there was an order of visitation in place under which Schoonover could visit L.S. for two hours on Wednesdays and every other Sunday. January 4 Tr. 36. Under this order, Schoonover's visits with L.S. had to be supervised. Id. at 36. According to Kayla, these visits were supervised because Schoonover "ha[d] a history of drug and alcohol abuse." May 6 Tr. 24. In January of 2017, Schoonover was caught operating a vehicle impaired. January 4 Tr. 30, 67. After this incident, Schoonover alleged that Kayla stopped allowing Schoonover to visit with L.S. Id. at 67.

{¶3} Schoonover then filed a contempt motion with the Juvenile Division of the Hancock County Court of Common Pleas ("Juvenile Division"). Id. at 67-68, 82. The parties subsequently worked out an agreement, and Schoonover voluntarily dismissed his contempt motion. Id. Under this agreement, visitation betweenSchoonover and L.S. occurred at Schoonover's parent's house. Id. at 103. In July of 2017, Kayla married Bradley M. Sealey ("Bradley"). Doc. 1. May 6 Tr. 7. At this time, L.S. and Kayla began to live with Bradley. Doc. 1. May 6 Tr. 18.

{¶4} On September 23, 2017, Schoonover had his last visitation with L.S. January 4 Tr. 37. On September 26, 2017, Schoonover inadvertently sent Kayla a text that appears to have been intended for another person. Ex. B. In this text, Schoonover appeared to be making an offer to sell drugs. Ex. B. Kayla testified that this led her to believe that he was "not finished using drugs." May 6 Tr. 35. Kayla then informed Schoonover's father that L.S. was not going to visit at their house with Schoonover any longer. Id. In December of 2017, Schoonover filed a contempt motion with the Juvenile Division in Case No. 20144197, alleging that Kayla was interfering with his visitation. Id. at 69-70.

{¶5} In between December of 2017 and February of 2018, Schoonover was not employed. Id. at 21. In February of 2018, Schoonover was also caught driving without a license. Ex. X. At this time, the Juvenile Division issued a temporary order of visitation in Case No. 20144197. January 4 Tr. 70, 74. Under this order, Schoonover was permitted to have supervised visits with L.S. at Harmony House. Id. Schoonover testified that visitation was to happen at Harmony House because of his substance abuse issues. Id. However, Schoonover testified that he never visited L.S. at Harmony House. Id. at 72. Schoonover stated that this was, in part, because he was incarcerated in April of 2018. Id. {¶6} In May of 2018, Schoonover was charged with forgery and breaking and entering. Id. at 99. Pursuant to a motion in lieu of conviction, Schoonover went to a rehabilitation center in New York to address his substance abuse issues. Id. at 99-100. He remained in rehabilitation from May to August of 2018. Id. at 23. When Schoonover returned in August of 2018, the motions filed in Case No. 20144197 were still pending before the Juvenile Division. Id. at 80.

{¶7} On October 24, 2018, Bradley initiated Case No. 20185044, which is now before this Court, by filing a petition to adopt L.S. Doc. 1. There is no evidence in the record that indicates that Schoonover visited L.S. in between his return from New York in August of 2018 and the filing of this petition in October of 2018. On November 1, 2018, Schoonover filed an objection to the adoption of L.S. Doc. 10. In his response to this objection, Bradley alleged that Schoonover "failed, without justifiable cause, to have contact with [L.S.] for at least a year." Doc. 13.

{¶8} On November 27, 2018, the Juvenile Division held a hearing on the motions that had been filed in Case No. 20144197. Id. at 79. Ex. 2. On December 13, 2018, the Juvenile Division issued a Consent Magistrate's Order Judgment Entry in Case No. 20144197. Ex. 2. The trial court then held hearings on Bradley's petition for adoption in Case No. 20185044 on January 4, 2019 and May 6, 2019. Doc. 28, 29. At the hearings on this petition, the trial court heard testimony from Schoonover, Kayla, and Bradley. Further, the trial court received evidence that documented Schoonover's child support payment history. Ex. C. In betweenOctober of 2017 and October of 2018, Schoonover made one documented child support payment of $164.00 in August of 2018. May 6 Tr. 21. Ex. C.

{¶9} At both of these hearings on this petition, Schoonover requested that the trial court take judicial notice of the file in Juvenile Division Case No. 20144197. January 4 Tr. 12. May 6 Tr. 60-61. Schoonover asserted that his filings with the Juvenile Division in Case No. 20144197 should qualify as more than de minimis contact under R.C. 3107.07(A) that occurred within the year preceding the filing of Bradley's petition. Doc. 20. The trial court ultimately denied Schoonover's request to take judicial notice of Case No. 20144197. Doc. 20.

{¶10} The trial court issued its judgment entry for Case No. 20185044 on May 23, 2019. Doc. 20. The trial court found that the last time that Schoonover had contact with L.S. was in September of 2017. Doc. 20. The trial court then found that Schoonover failed to have contact with L.S. for one year prior to the filing of Bradley's petition. Doc. 20. For this reason, the trial court determined that Schoonover's consent was not required for the adoption to proceed. Doc. 20. The appellant filed his notice of appeal on June 21, 2019. Doc. 22. On appeal, Schoonover raises the following assignments of error:

First Assignment of Error

The trial court abused its discretion in finding that paternal consent to the adoption of L.S. was not necessary.

Second Assignment of Error

The trial court's finding that appellant failed to demonstrate justifiable cause pursuant to R.C. 3107.07 was against the manifest weight of the evidence.

First Assignment of Error

{¶11} Schoonover subdivides this assignment of error into two separate arguments. First, he asserts that the trial court erred by failing to take judicial notice of a prior case that had been filed in the Juvenile Division. Second, he alleges that the filing of this action within one year before the filing of Bradley's petition qualifies as more than de minimis contact under R.C. 3107.07. For the sake of clarity, we will analyze each of these arguments in separate analyses.

First Argument

{¶12} In this argument, Schoonover alleges that

[t]he Trial Court erred in not taking judicial notice pursuant to Evidence Rule 201 of a Hancock County Juvenile Court proceeding involving L.S., which was ongoing during the alleged statutory one-year period pursuant to R.C. 3107.07, and further, pending at the time of the filing of and the pendency of the petition to Adopt * * *.

Appellant's Brief, 6.

Legal Standard

{¶13} "Judicial notice allows a court to accept, 'for purpose of convenience and without requiring a [party's] proof, * * * a well-known and indisputable fact.'" In re C.Y., 6th Dist. Lucas No. L-13-1184, 2014-Ohio-1144, ¶ 16, quoting State v.Blaine, 4th Dist. Highland No. 03CA9, 2004-Ohio-1241, ¶ 12. Under the Ohio Rules of Evidence,

"[a] judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned."

Evid.R. 201(B). Under Evid.R. 201(D), "[a] court shall take judicial notice if requested by a party and supplied with the necessary information." Evid.R. 201(D).

Under Ohio law, the general rule is that

'[a] trial court may not take judicial notice of prior proceedings in the court, but may only take judicial notice of prior proceedings in the immediate case.' Diversified Mortgage Investors, Inc. v. Athens Cty. Bd. of Revision (1982), 7 Ohio App.3d 157, 159, 454 N.E.2d 1330 [(4th Dist.)]. See, also, D & B Immobilization Corp. v. Dues (1997), 122 Ohio App.3d 50, 53, 701 N.E.2d 32 [(8th Dist.)]; In re Knotts (1996), 109 Ohio App.3d 267, 271, 671 N.E.2d 1357 [(3d Dist.)]; Woodman v. Tubbs Jones (1995), 103 Ohio App.3d 577, 580, 660 N.E.2d 520 [(8th Dist.)]; State v. Velez (1991), 72 Ohio App.3d 836, 838, 596 N.E.2d 545 [(3d Dist.)]; Kiester v. Ehler (1964), 9 Ohio App.2d 52, 56, 222 N.E.2d 782 [(2d Dist.)]; Burke v. McKee (1928), 30 Ohio App. 236, 238, 164 N.E. 776 [(4th Dist.)]. The rationale for this holding is that, if a trial court takes notice of a prior proceeding, the appellate court cannot review whether the trial court correctly interpreted the prior case because the record of the prior case is not before the appellate court. Dues, supra, at 53, 701 N.E.2d 32. See Deli Table, Inc. v. Great Lakes Mall (Dec. 31, 1996), [(11th Dist.)] Lake * * * No. 95-L-012 , at 13; Phillips v. Rayburn (1996), 113 Ohio App.3d 374, 379, 680 N.E.2d 1279 [(4th Dist.)].

Pollard v. Elber, 2018-Ohio-4538, 123 N.E.3d 359, ¶ 14 (6th Dist.). See Ohio Medical Indemnity, Inc. v. Poe, 3d Dist. Hancock No. 5-77-26, 1978 WL 215841,*5 (May 24, 1978) (holding that "[a] court cannot take...