In re A.W.

• Citation: 2022 Ohio 3360
• Decision Date: 23 September 2022
• Docket Number: H-22-007
• Parties: In re Adoption of A.W.
• Court: United States Court of Appeals (Ohio)

2022-Ohio-3360

In re Adoption of A.W.

No. H-22-007

Court of Appeals of Ohio, Sixth District, Huron

September 23, 2022

Trial Court No. AD02021000016

Michael B. Jackson, for appellees.

Autumn D. Adams, for appellant.

DECISION AND JUDGMENT

ZMUDA .J.

I. Introduction

{¶ 1} This matter is before the court on the expedited appeal of the April 20, 2022 decision of the Huron County Court of Common Pleas, Probate Division, determining the consent of appellant, H.L., was not necessary for the proposed adoption of his child, A.W. by A.W.'s maternal aunt, J.W. and her husband, D.W. Finding no error, we affirm.

II. Facts and Procedural Background

{¶ 2} Appellant, H.L. (father) and C.P. (mother) are the biological parents of A.W., born January 31, 2016. A.W. lived with her father and mother until the fall of 2017, when father was sentenced to a four-year prison term. A.W. remained with mother until late 2017, when Lorain County Children Services placed A.W. in the temporary custody of mother's sister, J.W. On March 2, 2018, A.W. was adjudicated a neglected and dependent child based on both parent's substance abuse, criminal charges and convictions, and inability to provide for A.W.'s needs. A.W. remained in J.W.'s care.

{¶ 3} On August 21, 2018, the Lorain County Juvenile Court granted J.W. legal custody of A.W. By agreement of the parties, supervised visitation was at J.W.'s discretion, and J.W. could designate another person to supervise the visitation. Initially, J.W. permitted mother to have A.W. on designated weekends while she lived with Kristi O., J.W.'s and mother's cousin. J.W. permitted Kristi O. to supervise mother's visitation, and dropped her off to Kristi O, either at the house or at a point halfway between J.W.'s Norwalk home and Kristi O's home. Father remained incarcerated, and had no visitation with A.W., arranged through J.W.

{¶ 4} During the 2018 visits, and unknown to J.W., mother kept father in contact with A.W. Father called Kristi O's home on visitation weekends, and mother held the phone to A.W. so that father could speak to her. Father also sent letters or cards to Kristi O's address. In November 2018, mother broke off all contact with J.W. and moved from her cousin's home. Mother did not reestablish contact with J.W. for over 3 years.

{¶ 5} In 2019, J.W. married D.W. and they built their present home in Greenwich, about 20 minutes from Norwalk. J.W. lived at a temporary address, briefly, until completion of the new home. J.W. notified the court of her new address only, and not the temporary address. J.W. did not send notice to father of either new address. However, J.W. maintained the same phone number at all times, and J.W.'s family members, including mother, knew where J.W. lived.

{¶ 6} After more than a year without contact from either father or mother, J.W. and D.W. filed a petition for adoption on May 6, 2021. Father, through counsel, filed a timely objection. In November 2021, father was released from prison.

{¶ 7} After J.W. and D.W. filed the adoption petition, mother contacted J.W. and began spending time with A.W. again.^[1] During the pendency of the proceedings, father attempted to send a certified letter to J.W.^[2] After J.W. found a note on her door requesting signature, she conferred with her counsel who advised her to let the letter go "unclaimed."

{¶ 8} On March 9, 2022, the trial court held a trial on the issue of necessity for consent for the adoption.^[3] Father appeared with counsel. Mother did not appear, although she was represented at the trial by counsel.

{¶ 9} On April 22, 2022, the trial court entered its decision, finding no consent necessary for adoption. The trial court found a lack of justifiable cause for father's failure to contact his daughter, stating:

Conflicting evidence was presented about the efforts [father] made to have contact with [A.W.]. While incarcerated [father] stayed in touch with [mother] and some of [mother's] extended family. It was these persons through whom [father] was able to have some contact with [A.W.]. It has been more than 3 years, however, since [mother] and these family members have had contact with [A.W.]. Despite the lack of communication, the family always knew where to locate [J.W. and A.W.] but did not want to "create trouble." Despite a familial relationship, [mother's] cousins had no legal right to contact with [A.W.]. [Father and mother], however, certainly did pursuant to the Lorain County Juvenile Court order. Neither, however, chose to enforce their legal right by filing any sort of pleading in that court. When [father] could communicate with [A.W.] through [mother] or certain members of [mother's] family with whom he had a good rapport, he did, at least occasionally. When this avenue was no longer available, however, he did not pursue a more direct route to his daughter. The Lorain County Juvenile Court parenting time order required [father] and [mother] to make arrangements for visitation with [J.W.], and not through other family members. If difficulties arose in making those arrangements, the proper remedy would have been a motion to modify visitation or a motion to show cause filed in the Lorain County Juvenile Court. These options were not pursued by either of [A.W.'s] parents.

While they may have been reluctant to respond, there is no evidence that either [J.W. or D.W.] engaged in any affirmative action to thwart [father's or mother's] attempts to communicate with [A.W.]. There is no evidence of interference. The Court therefore clearly and convincingly finds that the failure of [father and mother] to provide more than de minimis contact with [A.W.] during the one-year period immediately preceding the filing of the adoption petition was without justifiable cause.

Father filed a timely appeal of this decision.^[4]

III. Assignment of Error and Analysis

{¶ 10} In his appeal, father argues the following as error:

Father was justified in having minimal contact with A.W., as J.W. hid A.W. from Father and refused to communicate with multiple relatives when they attempted to find A.W. for Father.

{¶ 11} R.C. 3107.07(A) governs adoption without the consent of a parent, based on lack of contact with the child, and provides:

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 either the filing of the adoption petition or the placement of the minor in the home of the petitioner.

{¶ 12} A petitioner seeking adoption without consent of the parent must demonstrate that consent is not necessary by clear and convincing evidence. In re Adoption of T.U., 2020-Ohio-841, 152 N.E.2d 943, ¶ 15 (6th Dist). "Clear and convincing evidence is that measure or degree of proof which is more than a mere 'preponderance of the evidence,' but not to the extent of such certainty as is required 'beyond a reasonable doubt' in criminal cases, and which will produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to be established." Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the syllabus; see also In re Adoption of T.U. at ¶ 15.

{¶ 13} Where the claim is lack of contact, the trial court must find that a petitioner has proven, by clear and convincing evidence, that there was no more than de minimis contact for at least a year prior to the petition, and we review the decision regarding this factual question for an abuse of discretion. (Citation omitted) In re Adoption of B.V.K.M., 6th Dist. Lucas No. L-18-1137, 2019-Ohio-1173, ¶ 23. Should a petitioner demonstrate a lack of contact during the year prior to the adoption petition, the burden shifts to the parent to demonstrate a "facially justifiable" cause for the lack of contact. In re Adoption of T.U. at ¶ 15, citing In re Adoption of B.G., 6th Dist. Erie Nos. E-10-024 and E-10-024, 2010-Ohio-5025, ¶ 15 (additional citation omitted.).

{¶ 14} The petitioner still bears the burden of proof, however, and must demonstrate the lack of a justifiable cause by clear and convincing evidence to satisfy the requirements of R.C. 3107.07(A). (Emphasis added) In re Adoption of T.U. at ¶ 15, citing In re Adoption of B.G. at ¶ 15. In reviewing a trial court's determination regarding justifiable cause, we apply a manifest weight of the evidence standard. In re Adoption of M.B., 131 Ohio St.3d 186, 2012-Ohio-236, 963 N.E.2d 142, ¶ 3. "Thus, if there is any evidence of record by which the trial court could have reached a firm conviction that [father's] failure to contact his daughter for a year was not justified, the trial court's judgment must be affirmed." In re K.D., 6th Dist. Lucas No. L-09-1302, 2010-Ohio-1592, ¶ 17, citing In re Adoption of Holcomb, 18 Ohio St.3d 361, 368, 481 N.E.2d 613 (1985).

{¶ 15} In reviewing the trial court's decision, we first address the factual question, whether J.W. and D.W. demonstrated that father failed to have more than de minimis contact with A.W. for a year prior to the petition. In re Adoption of M.B. at ¶ 23; R.C. 3107.07(A). In this case, the parties do not dispute this fact, and father acknowledged he had no contact with A.W. after mother stopped visitation.

{¶ 16} Because lack of contact is not in dispute, we next address whether J.W. and D.W. proved, by clear and convincing evidence, that father lacked a justifiable cause for his failure to...