In re Adoption of L.B.R.

2019 Ohio 3001

IN RE ADOPTION OF: L.B.R. and D.R.-M.R.

Appellate Case No. 2019-CA-14

COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CLARK COUNTY

July 26, 2019

Trial Court Case Nos. 20185040 and 20185041

(Appeal from Probate Court)

OPINION

FRANK MATTHEW BATZ, Atty. Reg. No. 0093817, 126 North Philadelphia Street, Dayton, Ohio 45403 Attorney for Respondent-Appellant

JOHN M. SPENCER, Atty. Reg. No. 0003255, 30 Warder Street, Suite 250, Springfield, Ohio 45504 Attorney for Petitioner-Appellee

WELBAUM, P.J.

{¶ 1} Michael H. appeals from a judgment finding that his consent was not required for the adoption of his daughters, L.B.H. and D.R.-M.H.¹ According to Michael, the trial court's decision was based on insufficient evidence and was also against the manifest weight of the evidence. Michael further contends that his trial counsel rendered ineffective assistance.

{¶ 2} After reviewing the record and applicable legal principles, we find that the judgment was not against the manifest weight of the evidence and, therefore, was also not based on insufficient evidence. In addition, Michael retained his own counsel in this private adoption proceeding and was not entitled to attack the judgment based on ineffective assistance of counsel. Even if Michael could assert such a claim, it would be without merit. Accordingly, the judgment of the trial court will be affirmed.

I. Facts and Course of Proceedings

{¶ 3} On August 3, 2018, Jason R. filed a petition in the trial court, seeking to adopt L.B.H. and D.R.-M.H., who were born, respectively, in 2008 and 2011. Jason's wife, Barbara S., was the children's biological mother, and Michael was their biological father. Barbara and Michael were married in 2010 and were divorced in 2013. At the time of the divorce, Michael was in prison serving a 24-month sentence for driving under the influence ("DUI"). As a result, the divorce decree awarded custody of the children to Barbara. Michael was not given visitation rights because he was in prison. However,the decree stated that he could petition the court for visitation once he was released from prison. While Michael was in prison, he did write some letters to his children.

{¶ 4} After Michael was released to a halfway house in March 2014, Barbara met him at a local restaurant and allowed him to see the girls. L.B.H. remembered Michael, but the younger daughter did not. After a few visits, Michael was rearrested and was sent back to prison to finish out his term. Barbara was upset because she had allowed visitation, only to have the children exposed again to the disruption. Michael was then released from prison in July 2014. Michael is a habitual DUI offender, and he has had six DUI convictions.

{¶ 5} After Michael was released in 2014, he did not ask the domestic relations court to establish visitation; in fact, he has never asked the court to order visitation. On several occasions, Barbara worked with Michael to reestablish visitation, but he always violated the boundaries that had been set. Michael had some visits between July 2014 and September 2015, but he had no more visits after September 20, 2015. Between then and when Michael was arrested again in December 2015, he did not ask for visits. The 2015 arrest was for DUI and possession of a large amount of drugs. The minimum mandatory prison term for these alleged crimes was three years, and Michael expected that he would serve five years.

{¶ 6} The case remained pending until Michael was eventually sentenced and went to prison in March 2017. During that fifteen-month time period, Michael did not ask to see his daughters, nor did he file any requests with the court for visitation. He ended up being imprisoned from March 2017 until early February 2018. During this prison term, Michael did not communicate at all with his daughters. In April 2017, Barbara contacted Michael through an email system for prisoners. During their correspondence, Barbara told Michael that she would not let him see the girls unless there was a court order. Due to Michael's drinking and criminal activity, she wanted visitation to be supervised.

{¶ 7} After Michael was released in February 2018, he did not file a request with the domestic relations court for visitation. He also did not contact Barbara until March 26, 2018, when he sent her a text message from a phone number she did not recognize. The text told Barbara to check the child support account and to tell L.B.H. "Happy Birthday." In response, Barbara said that she did not need or want Michael's money, and that the best thing he could do would be to let her husband, Jason, adopt L.B.H., as that is what L.B.H. had requested for her birthday. See Plaintiff's Ex. 3 (a collection of text messages).

{¶ 8} Between March 26, 2018 and June 18, 2018, Barbara and Michael communicated on four occasions.² Only the first text message was initiated by Michael. On May 3, 2018, Barbara contacted Michael because his girlfriend had posted pictures of Barbara's children on social media. Barbara did not want her children shown on social media because Michael was involved in criminal activity and she did not know the persons with whom Michael and his girlfriend associated. Michael did not reply to this text.

{¶ 9} On June 8, 2018, Barbara called Michael on the phone due to a conflict concerning a mutual friend. Her intent was to tell Michael that she was not involved and did not want her name being discussed on Facebook. Michael did not ask about thechildren, and none of the conversation was about them. Later that night, Barbara texted Michael after receiving a phone call from the mutual friend. He did not reply to the text.

{¶ 10} Their final communication was on June 28, 2018. Once again, Michael's girlfriend had discussed the children on social media, and Barbara sent him a text message to let him know. During this text conversation, Barbara mentioned that she had shown L.B.H. his text on her birthday and had asked L.B.H. if she (Barbara) could send a picture of L.B.H. to Michael. L.B.H. said no. L.B.H. also did not want Michael to have her phone number. Barbara told L.B.H. that she would put Michael's phone number in her phone so she could text him, but L.B.H. said that was not necessary.

{¶ 11} During this text conversation, Barbara also mentioned various changes Michael would need to make for informal visitation; if he did not do so, he would have to file a motion for parenting time. As noted, this was the last contact between the parties, and Michael did not thereafter file any motion to seek parenting time. Jason then filed the petition for adoption on August 3, 2018.

{¶ 12} The evidence also revealed that Michael made a child support payment of $1,000 on March 28, 2018, which was within the one-year period before the petition was filed. Michael made no other support payments during that time, other than minimal amounts of around $5.00, which were taken from his prison pay. He did make payments on September 10, 2018, and on November 13, 2018, after the petition was filed. As of December 19, 2018, his child support arrearage was $13,592.15. This represented the amount of unpaid support between September 16, 2013 and December 19, 2018.

{¶ 13} After hearing the evidence, the trial court filed an entry in January 2019, concluding that Michael's consent was not a prerequisite for the children's adoption because he had failed without justifiable cause to provide more than de minimis contact with the children for the year preceding the filing of the petition. The court stated that it could not make a similar finding regarding financial support and maintenance of the children during that time period, because Michael was incarcerated for six months of this time, and several months elapsed before he could fully rejoin the workforce. Michael timely appealed from the court's decision.

II. Sufficiency and Manifest Weight Challenges

{¶ 14} Because Michael's first two assignments of error are interrelated, we will consider them together. These assignments of error are as follows:

The Trial Court's Determination That the Biological Father's Consent Was Unnecessary for the Adoption of the Children Was Based on Insufficient Evidence as a Matter of Law.

The Trial Court's Determination That the Biological Father's Consent Was Unnecessary for the Adoption of the Children Was Against the Manifest Weight of the Evidence.

{¶ 15} Under these assignments of error, Michael contends that he attempted to contact his children on multiple occasions, but that Barbara significantly interfered with and discouraged his attempts. Thus, according to Michael, his lack of contact was based on justifiable cause.

{¶ 16} Before discussing these points, we will review the legal standards for challenges to the sufficiency and manifest weight of the evidence. "A sufficiency of the evidence argument disputes whether the [prevailing party] has presented adequate evidence on each element of the offense to allow the case to go to the jury or sustain the verdict as a matter of law." State v. Wilson, 2d Dist. Montgomery No. 22581, 2009-Ohio-525, ¶ 10, citing State v. Thompkins, 78 Ohio St.3d 380, 678 N.E.2d 541 (1997). In such situations, we apply the test from State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), which states that:

An appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.

(Citation omitted). Jenks at paragraph two of the syllabus.

{¶ 17} Unlike sufficiency, "[a] weight of the evidence argument challenges the believability of the evidence and asks which of...