In re Adoption of T.C.W.

Decision Date10 April 2020
Docket NumberCase No. 19CA6
Citation2020 Ohio 1484
PartiesIN THE MATTER OF THE ADOPTION OF: T.C.W.
CourtOhio Court of Appeals

DECISION AND JUDGMENT ENTRY

APPEARANCES:

Lindsey A.B. Price, Price Law Office, Pomeroy, Ohio, for Appellant.

Trenton Cleland, Law Office of Trenton Cleland, Pomeroy, Ohio, for Appellee.1

Smith, P.J.

{¶1} Appellant, S.E., appeals the trial court's judgment that entered an adoption decree determining that his consent to the adoption of his child was not required. Appellant first argues that the trial court did not afford him due process of law. Specifically, Appellant contends that the court violated his due process rights by (1) failing to give him the statutorily-required twenty-day notice of the adoption petition hearing, (2) by excluding himfrom part of the consent portion of the hearing, and (3) by excluding him from the entire best-interest portion of the hearing.

{¶2} Appellant did not object to any of the alleged errors at a time when the trial court could have avoided any error. Thus, we review Appellant's first assignment of error for plain error and will reverse the trial court's judgment only if necessary to prevent a manifest miscarriage of justice.

{¶3} The alleged inadequate notice did not infringe upon Appellant's due process rights in a manner that requires us to reverse the trial court's judgment. Instead, Appellant's appearance and participation in the hearing indicates that he received notice of the hearing. Appellant did not argue before the trial court that the notice was insufficient or that he needed additional time to prepare for the hearing. We thus do not believe that failing to recognize any defect in the notification procedure would result in a manifest miscarriage of justice.

{¶4} Furthermore, we do not believe that the trial court deprived Appellant of an opportunity to be heard regarding the consent issue by ordering court staff to escort him from the hearing after the court had determined that Appellant's consent to the adoption was not required. Before the court ordered Appellant's removal, the court gave Appellant a fair opportunity to be heard regarding whether Appellant's failure to have more than de minimis contact with the child was justifiable. Therefore, we do not believe that failing to recognize any error the court may have made by ordering Appellant's removal after it determined his consent was not required resulted in a manifest miscarriage of justice as it pertains to the consent issue.

{¶5} However, we believe that the trial court erred by excluding Appellant from the best-interest part of the hearing. By excluding Appellant from the best-interest part of the hearing, the court deprived Appellant of his only and last opportunity to be heard regarding the child's best interest and the termination of his parental rights. For this reason, we believe that failing to recognize the court's error in excluding Appellant from the best-interest part of the hearing would result in a manifest miscarriage of justice. Accordingly, we sustain the part of Appellant's first assignment of error directed to the trial court's decision that removed him from the courtroom before the best-interest portion of the hearing.

{¶6} Appellant next challenges the trial court's finding that his consent to the adoption is not required. He contends that the court incorrectly concluded that he failed to have more than de minimis contact with the child and that he lacked justifiable cause for the failure. We disagree. Appellant admitted that he has not had direct contact with the child in approximately three years. Moreover, Appellant's only contacts with the child were a 2017 Christmas package and a 2018 Christmas card that contained $25. Additionally, the record contains some competent and credible evidence to support the trial court's finding that Appellant lacked justifiable cause for his failure to have more than de minimis contact with the child. Appellant agreed that he could have walked to the child's residence and "bang[ed] on the door" but that he did not so that he would not create unspecified "problems."

{¶7} Appellant also argues that the trial court failed to adequately consider the best-interest factors when determining that the adoption is in the child's best interest. However, we believe that our disposition of Appellant's first assignment of error renders this last assignment of error moot.

{¶8} Accordingly, we sustain Appellant's first assignment of error in part and reverse and remand the trial court's judgment in part so that the court may afford Appellant an opportunity to be heard regarding whether the adoption is in the child's best interest. We overrule Appellant's assignments of error challenging the court's finding that Appellant's consent to the adoption is not required, and we affirm the trial court's decision that Appellant's consent to the adoption is not required. We overrule as moot Appellant's last assignment of error.

FACTS

{¶9} On April 11, 2019, the child's stepfather filed a petition to adopt the child. The petition alleged that Appellant's consent is not required because Appellant failed without justifiable cause to provide more than de minimis contact with the child for a period of at least one year immediately preceding the filing of the adoption petition or the placement of the child in the home of the petitioner. On that same date, the court set the adoption petition for a hearing to be held on May 14, 2019. Additionally, the court sent a notice of hearing on the adoption petition to Appellant via certified mail. On April 29, 2019, the court sent another notice via certified mail. The record transmitted on appeal does not contain any information that reveals whether either piece of certified mail was successfully served upon Appellant.

{¶10} Nevertheless, Appellant appeared for the adoption petition hearing. At the hearing, the child's mother stated that Appellant had not had any contact with the child in almost three years. The child's mother explained that in December 2018, Appellant sent a Christmas card that contained $25, and that in December 2017, Appellant sent some gifts for the child. The mother stated that other than those two mailings, Appellant had not had any other contact with the child.

{¶11} Appellant agreed that he had not had any contact with the child for more than one year preceding the adoption petition. The trial judge asked Appellant why he had not attempted to have contact with the child in nearly three years, even though he could have "walk[ed] down once a week and bang[ed] on the door." Appellant indicated that he thought doing so would create "problems."

{¶12} After hearing the evidence regarding Appellant's contact, or lack thereof, with the child, the court concluded that Appellant's consent was not required. The court noted that the evidence did not suggest that the child's mother and stepfather had attempted to hide from Appellant or to change their phone number. The court advised Appellant of his right to appeal and briefly explained to Appellant that Appellant should retain counsel or research how to file a notice of appeal. The court then asked court staff to "walk" Appellant out of the courtroom.

{¶13} After Appellant left the courtroom, the trial judge explained to those remaining in the courtroom why he concluded that Appellant's consent was not necessary. The judge explained that "anything" Appellant "did was de minimis." The judge additionally indicated that Appellant "sat on his rights and didn't do anything about it." The court continued: "So, and I want, and I wanted to give him a fair shake. All right, so the records [sic] there, where we're at right now the Court finds consent not necessary." The court then asked the parties whether they were prepared to proceed with the remainder of the adoption hearing.

{¶14} The trial court subsequently granted the adoption petition.

ASSIGNMENTS OF ERROR

Appellant raises the following assignments of error:

"1A: The Probate Court erred in failing to provide Appellant Father sufficient notice of the hearing on petition for adoption."
"1B: The Probate Court erred in refusing to allow Appellant Father to be present for the entirety of the consent portion of the hearing."
"1C: The Probate Court erred in refusing to allow Appellant Father to be present for the best interest portion of the hearing."
"2. The Probate Court erred in finding that Appellant Father's consent to the adoption was not necessary because Appellant Father's contact with the minor child was de minimis for the one year look back period and/or erred in failing to find that Father had justifiable cause for Father's relative lack of contact with the minor child."
"3. The Probate Court erred in finding that it was bound by law to order that Appellant Father's consent to the adoption was not necessary if the court found that Appellant Father's contact with minor child was de minimis."
"4: The Probate Court erred in failing to sufficiently consider the best interest factors found in R.C. 3109.04 and R.C. 3107.161 in making the determination that the adoption was in the best interest of the minor child."
FIRST ASSIGNMENT OF ERROR

{¶15} In his three-part first assignment of error Appellant argues that the trial court erred (1) by failing to provide him with sufficient notice of the adoption petition hearing, (2) by refusing to allow him to be present for the entire consent portion of the hearing, and (3) by refusing to allow him to be present for the best-interest part of the hearing.

{¶16} Initially, we observe that Appellant did not object to the alleged inadequacies of the notice or to his removal from the courtroom midway through the hearing. It is well-settled that a party may not raise any new issues or legal theories for the first time on appeal. Stores Realty Co. v. Cleveland, 41 Ohio St.2d 41, 43, 322 N.E.2d 629 (1975). Thus, a litigant who fails to raise an argument before the...

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