[Cite as In re D.W., 2026-Ohio-3316.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
WOOD COUNTY
In re D.W. Court of Appeals No. {87}WD-26-016
Trial Court No. 2025 4012
DECISION AND JUDGMENT
Decided: August 25, 2026
*****
Alex M. Savickas, for appellee.
Anthony J. Richardson, II, for appellant.
*****
DUHART, J.
{¶ 1} This is an expedited appeal filed by appellant, J.M. (“father”), from the
February 18, 2026 judgment of the Wood County Court of Common Pleas, Probate
Division (“trial court”). The trial court found father’s consent unnecessary for the
adoption of his biological child, D.W. For the reasons that follow, we affirm the trial
court’s judgment.
{¶ 2} Father sets forth three assignments of error:
(1.) The trial court committed error by finding that [father] did not maintain
more than de minimis contact with, or provide sufficient support for, D.W.
(2.) The trial court committed error by finding that [father] did not have
legal justification when failing to maintain more than de minimis contact
with or when failing to provide sufficient support for D.W.
(3.) The trial court committed error by terminating [father’s] parental rights,
where finding his consent not necessary before the adoption of D.W. is
unconstitutional as applied to [father] and D.W.
Background
{¶ 3} Father and mother, R.W., are the natural parents of D.W., born November
2015, in Bowling Green (“BG”), Ohio. Mother and father have never been married to
each other, although they did live together in BG for a while until father left Ohio in 2016
or 2017. D.W. has always lived with mother. Father has not seen D.W. since he left
Ohio.
{¶ 4} Mother is married to petitioner, M.W., and they have three children together.
Father is not married.
{¶ 5} In January 2019, the Wood County Court of Common Pleas, Juvenile
Division (“juvenile court”), issued a judgment entry which established a child support
order for D.W. Father was ordered to pay $51.00 monthly, plus processing, for support
and $10.00 monthly, plus processing, for arrears, for a total monthly obligation of $61.20.
{¶ 6} On August 28, 2024, father filed for visitation with D.W. in juvenile court.
The matter was mediated between mother and father, and a temporary agreement was
reached wherein father could call D.W. every Friday. The calls started in the summer of
2025. Father estimated he called and spoke with D.W. a dozen times.
{¶ 7} On June 26, 2025, petitioner filed a petition to adopt D.W. in the trial court.
On June 30, 2025, petitioner filed an amended petition to adopt D.W.
2.
{¶ 8} On January 1, 2026, D.W. was diagnosed with leukemia and immediately
started treatment, which included surgery, chemotherapy, a bone marrow biopsy and a
lumbar puncture.
{¶ 9} On February 11, 2026, a hearing was held on the issue of whether or not
father’s consent to the adoption of D.W. was required. Mother, petitioner, father and
father’s mother (“grandmother”) testified.
{¶ 10} On February 18, 2026, the trial court issued its judgment entry, finding
father’s consent to the adoption of D.W. was not required. Father appealed.
Trial Court’s February 18, 2026 Judgment Entry
{¶ 11} What follows are the relevant portions of the trial court’s 21-page judgment
entry.
On February 11, 2026, a hearing was held . . . to determine whether or not
the consent of the biological father of the minor child is necessary for this
adoption. . .
The court received evidence. Based upon a review of the evidence and
applicable law, the court makes the following findings and orders.
FINDINGS
4. On June 26, 2025, a [“]Petition for Adoption of Minor[”] was filed . . . on
behalf of [petitioner]. The petitioner is the husband of mother and the
stepfather of [D.W.]. The petition requests this court approve the adoption
of [D.W.] by the petitioner and approve a legal change of name.
6. On June 30, 2025, an [“]Amended Petition for Adoption of Minor[”] was
filed . . . [and] again asserts the consent of father is not necessary for this
adoption to proceed. The . . . amended petition asserts that father has failed
without justifiable cause to have more than de minimis contact with [D.W.]
3.
for a period of one year immediately preceding the filing of the petition and
that father has failed without justifiable cause to provide meaningful and
regular maintenance and support for [D.W.] as required by law or judicial
decree for a period of one year immediately preceding the filing of the
petition. The . . . amended petition effectively amends the adoption petition
to reflect changes in Ohio adoption law.
17. On February 11, 2026, a contested consent hearing was held. . . The
court received evidence on the issue of the necessity of father’s consent.
The matter was then taken under advisement.
18. The amended petition asserts father’s consent is not necessary under
R.C. 3107.07(A) . . . [which] provides that the consent of a biological
parent is not required for an adoption 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 meaningful and regular
maintenance and support of the minor as required by law or
judicial decree for a period of one year immediately
preceding the filing of the adoption petition. . .
19. . . . [Regarding] . . . burdens of proof . . . [i]n interpreting R.C. 3107.07
(A), the Ohio Sixth District Court of Appeals and the Ohio Supreme Court
have noted the following:
The party who is petitioning for adoption must prove, by clear
and convincing evidence, that the parent failed to support or
communicate with the child during the applicable one-year
period and that there was not justifiable cause for the failure.
In re Adoption of Holcomb[,] . . . 18 Ohio St. 3d 361 . . .
[(1985)], paragraph four of the syllabus; In the Matter of the
Adoption of K.L.K.-F, aka K.L.L., . . . 2009-Ohio-2543, ¶ 5
(2d Dist.). After the petitioner has made this showing, the
burden shifts to the parent to show a facially justifiable cause
for the failure. In re Adoption of Bovett[,] . . . 33 Ohio St.3d
102 . . . [(1987)], paragraph two of the syllabus; In the Matter
of the Adoption of K.L.K.-F, aka K.L.L., supra. “The burden of
proof, however, remains with the petitioner,” who must
establish the lack of justifiable cause by clear and convincing
evidence. Bovett, supra, at paragraph two of the syllabus. . .
4.
In re Adoption of B.G.[,] . . . [2010-Ohio-5025, ¶ 15 (6th Dist.).]
20. . . . Clear and convincing evidence has been defined as “. . . that
measure or degree of proof which will produce in the mind of the trier of
facts a firm belief or conviction as to the allegations sought to be
established.” See Cross v. Ledford[,] . . . 161 Ohio St. 469 [(1954)].
21. . . . [T]he court finds the applicable one year look back period in this
matter would run from June 26, 2024, through June 26, 2025.
22. The court further notes that while the applicable one year look back
period is the focus of a court’s attention when reviewing the issue of
parental consent to an adoption, a “probate court is not restricted to
focusing solely on the one year statutory period.” In re Adoption of Z.H.,
2022[-]Ohio[-]3926, ¶ 46 (6th Dist.)[.] Rather, a trial court may consider
evidence outside the one year look back period when determining whether
parental consent is required in order to address certain subjective elements
of justifiable cause - such as evidence of the ongoing relationship and
interaction between the parties. See for example the discussions in In re
Adoption of Z.H. . . and In re Adoption of M.M., 2023[-]Ohio[-]397, [¶ 7,] .
. . [fn.] 2.
23. The petitioner asserts father’s consent is not necessary for this adoption
due to father’s lack of support and lack of contact during the applicable one
year look back period. For purposes of clarity, the court will address the
lack of support and lack of contact issues separately.
Petitioner’s Claim Father Has, Without Justifiable Cause, Failed to Provide
Meaningful and Regular Maintenance and Support For [D.W.] During the
Applicable One Year Look Back Period
25. The term “meaningful and regular maintenance and support” is a
relatively new term as it relates to the amount of support necessary to
determine that a parent’s consent is necessary for an adoption to proceed. . .
[under the] current version of R.C. 3107.07(A). . .
26. In . . . discussing the maintenance and support requirement within R.C.
3107.07(A) -- and specifically the consistent language referencing “as
required by law or judicial decree,” -- the Ohio Sixth District Court of
Appeals, [in In re Adoption of B.L., 2021-Ohio-1221, ¶ 78, 79 (6th Dist.)],
referenc[ed] . . .
5.
. . . In re Adoption of A.C.B., . . . 2020-Ohio-629. . ., [where] the Ohio
Supreme Court . . . stated:
. . . The starting point -- and because the language is clear, the
ending point -- for our analysis is the text of the statute. The
plain text of R.C. 3107.07(A) instructs a trial court to
determine whether a natural parent provided maintenance
and support “as required by law or judicial decree” for a
period of at least one year immediately preceding the filing of
the adoption petition. Id. at ¶ 8.
[T]he judicial decree sets forth precisely what father was
required to pay: $85 per week, for a total of $4,420 over the
course of a year. Father did not pay what the judicial decree
required. He paid only $200 for the entire year before
stepfather filed the adoption petition. Thus, under the plain
language of the statute, father did not “provide for the
maintenance and support” of A.C.B. “as required by law or
judicial decree” for the requisite one-year period. Id. . . .
27. In the B.L. case . . . [t]he evidence established the parent paid 31% of
the required child support payments and 50% of the required payments on
[her] arrearage. The trial court, and the Ohio Sixth District Court of
Appeals, concluded the probate court did not abuse its discretion in finding
the parent had failed to make support payments as required by law or
judicial decree and finding that the parent had the ability to make one
hundred percent of certain support obligations for the one year look back
period.
28. In addressing whether the failure to pay support is [“]justifiable[”] as
used in the adoption statutes . . .:
. . . Ohio courts have recognized that in addition to its legal
connotations, the term [“]justifiable[”] also contains a moral
component. In re Adoption of B.I., . . . 2017-Ohio-9116, ¶ 10
(1st Dist.), citing Black’s Law Dictionary . . . (8th Ed.[]2004).
To this end, the Ohio Supreme Court has held that in
assessing whether the failure to support a child is justified, a
distinction is made between a parent who is unwilling but
financially able to support, and a parent who is willing to
support but financially unable to do so. In re: Adoption of
Masa, 23 Ohio St.3d 163, 166, . . . (1986). “The latter could
6.
constitute justification.” Id. Thus, it reasonably follows that
evidence demonstrating a parent’s inability to obtain gainful
employment during the relevant one-year time period, despite
his or her best efforts, would be a significant factor in
assessing whether the parent was willing, but financially
unable to comply with a child support obligation.”
In re Adoption of A.R.M.R., 2019[-]Ohio[-] 253, ¶ 26 (8th Dist.)[.]
29. Ohio courts have further noted that a parent’s substance abuse addiction
and rehabilitation efforts can lead to a finding of [“]justifiable cause[”] for
failure to pay support in certain instances. See for example the discussion
in Matter of Adoption of L.G., 2019[-]Ohio[-]4410 (5th Dist.).
30. As to how payments of monies for a child made outside of the Child
Support Enforcement Agency [(“CSEA”)] should be considered, R.C.
3121.45 states:
. . . Any payment of money by the person responsible for the
support payments under a support order to the person entitled
to receive the support payments that is not made to . . . the
[CSEA] administering the support order . . ., shall not be
considered a payment of support under the support order and,
unless the payment is made to discharge an obligation other
than support, shall be deemed to be a gift. . .
31. In the case at bar, father was ordered to pay child support through an
order issued by the . . . Juvenile Court on January 17, 2019. . . In this order,
father was required to pay a total of $61.20 per month in support, arrears,
and processing fees. Father’s total yearly support obligation amounted to
$734.40.
32. It appears undisputed that during the applicable one year look back
period, child support payments for father were made through the [CSEA]
for five out of twelve months. . . Father’s total support payments through the
Wood County [CSEA] amounted to $306.00. Father made less than one
half of the minimum child support ordered to be paid during the applicable
one-year period of time.
33. During the February 11, 2026[] hearing, father testified he was
unemployed . . . - without any substantive or documentary collaborating
information - that his mental health and substance abuse service providers
have advised him he cannot work. Father presented Exhibit H
7.
demonstrating that [he] is receiving public assistance in the form of
Supplemental Nutrition Assistance and Medical Assistance (“SNAP”)
benefits. Father presented no other evidence as to his inability to work or
otherwise support [D.W.].
34. In addressing whether father’s mental health and substance abuse
related issues rise to the level of “justifiable cause” for father’s failure to
pay support for [D.W.] as required within the applicable one year look back
period, the court notes the following.
• A review of the January 17, 2019[] order establishing father’s support
order - admitted as Exhibit A - reveals that [his] child support obligation
expressly took into consideration [his] then admission into a treatment
facility where [he] was, at that time, expected to remain for the next
twenty[-]four months. In short, father’s reduced minimum support order
already factored in [his] substance abuse or mental health issues.
• The January 17, 2019[] support order, specifically noted the minimum
support order made could be modifiable upon a change of circumstances
such as father leaving the treatment facility. Through the one year look
back period, there was no evidence of father requesting modification of the
underlying support order.
• As noted, father provided no other independent information - other than
[his] statement and a statement by [grandmother] - supporting the assertion
that [he] was simply unable to work. In addition, Exhibit H the document
provided by father establishing that father is receiving SNAP benefits,
actually references certain allowed expenses should an individual be
“employed or seeking employment through job-search, or in training.” It is
obvious the receipt of SNAP benefits is not proof that someone is unable to
become employed.
• As also noted, during the applicable one year look back period, father was
able to make just five of twelve scheduled payments. There is no definitive
evidence presented establishing what happened in the other seven months
other than a general reference that father did not receive his SNAP benefits.
Regardless of whether father did or did not receive his SNAP benefits, it
remained [his] responsibilities to ensure the sum of $61.20 per month be
sent to support [D.W.]. Father did not ensure this was done.
35. During the February 11, 2026[] hearing, there was testimony
surrounding [grandmother’s] effort to send mother certain monies for
[D.W.’s] [“]support[”] during times when payments were not received
8.
through the [CSEA]. A review of copies of certain text messages between
[grandmother] and mother’s father . . . and mother’s mother . . . - admitted
as Exhibits I and K - reflects at least one check, which was not cashed or
received by mother, was sent as a Christmas gift. This is not in the nature
of support and occurred well before the applicable one year look back
period. Additional checks which [grandmother] testified as to sending were
not cashed and there was no definitive evidence that they were ever
received by mother. [Grandmother’s] sending a gift of cash or monies
cannot be considered satisfaction of father’s child support obligation.
36. Mother and the petitioner testified that, due to the inconsistency in
receiving support payments from father, any support received from father
was not considered by them to be regular.
37. From the evidence presented, the court finds clear and convincing
evidence exists to conclude that father failed to provide, without justifiable
cause, meaningful and regular maintenance and support for [D.W.] during
the applicable one year look back period. Father did not ensure that his
reduced child support obligation was paid as required by court order. The
evidence further demonstrates that father did not have justifiable cause for
his failure to provide support.
Petitioner’s Claim Father Has Failed, Without Justifiable Cause, to Have
More Than De Minimis Contact With [D.W.] During the Applicable One
Year Look Back Period
38. With the court’s conclusion relatively to father’s failure to provide
meaningful and regular maintenance and support, father’s consent to this
adoption can be found to be not necessary without further analysis.
[However,] . . . petitioner further claims father has failed, without justifiable
cause, to have more than de minimis contact with [D.W.] during the
applicable one year look back period resulting in father’s consent not being
necessary for this matter to move forward. Although not necessary, the
court will address father’s contact and communication with [D.W.] given
the evidence presented.
39. . . . When addressing the requirement [of R.C. 3107.07(A) as it relates
to contact between a parent and child,] . . . Ohio courts have noted:
. . . The . . . [adoption] statute was amended in 2008, and has
been in effect since April 7, 2009. Prior to the amendment,
R.C. 3107.07 (A) stated that consent to adoption would not be
required of a parent of a minor when “the parent has failed
9.
without justifiable cause to communicate with the minor . . .
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.” . . . By changing the
standard from [“]communicate,[”] which could imply a single
contact, to [“]more than de minimis contact,[”] which seems
to imply more than a single contact, the legislature indicated
its intent to require more effort from the parent to have
contact and communication with the child. . . In re J.D.T.,
2012-Ohio-4537, . . . ¶ 79 (7th Dist.).
In the Matter of the Adoption of J.R.H.[,] . . . 2013-Ohio-3385[,] . . . ¶ . . .
20 & 21 [(2d Dist.).]
40. When addressing [“]justifiable cause[”] specifically on the issue of
failure to have contact or communicate with a child in an adoption context,
the Ohio Sixth District Court of Appeals, [in In re Petition for Adoption of
A.V., 2022-Ohio-2969, ¶ 33 (6th Dist.)] has further noted:
. . . A custodial parent’s significant interference or significant
discouragement of contact between the child and the noncustodial parent may constitute justifiable cause for the noncustodial parent’s failure to have contact with the child. Id.
Once the non-custodial parent presents evidence of significant
interference or discouragement of contact, it becomes
necessary for petitioner to demonstrate that the lack of contact
was not justifiable. In re Adoption of Riegle, . . . 2002-Ohio694 [(3d Dist.)]. In determining whether the failure to
provide contact is justifiable, the issue is not whether it was
possible for the natural parent to have done more to overcome
the interference. In re Adoption of C.N.A., 2018-Ohio-897, . .
. ¶ 17. . .[(3d Dist.)]
41. When discussing what constitutes “justifiable cause” for a non-custodial
parent’s failure to communicate, Ohio courts have further held:
. . . Significant interference by a custodial parent with
communication between the non-custodial parent and the
child, or significant discouragement of such communication,
is required to establish justifiable cause for the non-custodial
parent’s failure to communicate with the child. . .
10.
In re Adoption of Myers[,] . . . 2013[-]Ohio[-]5152[,] . . . ¶ 21 [(5th Dist.),]
citing Holcomb, supra, paragraph three of the syllabus.
42. In addition, when reviewing the efforts of a parent to make contact with
or communicate with a child during the applicable one year look back
period, the Ohio Sixth District Court of Appeals [in In re Petition for
Adoption of Z.H., 2022-Ohio-3926, at ¶ 48 (6th Dist.),] has further pointed
out that:
. . . the issue to be resolved is not whether [the parent] could
have done more to contact her child but whether she did
enough, such that it can be said that it was “more than de
minimis.”
43. Impacting the discussion surrounding justifiable cause and whether the
consent of a parent is needed for an adoption, the Ohio Supreme Court --while rejecting the proposition that a probate court may never proceed with
an adoption proceeding if there are parenting matters pending in a juvenile
court -- has held “that a probate court must consider the existence of
pending parenting time matters when determining whether an exception to
the requirement of parental consent to adoption applies.” In re Adoption of
M.G.B.-E. . . , 2018[-]Ohio[-]1787, ¶ 1.
44. The Ohio Supreme Court’s discussion in M.G.B.-E. [at ¶ 40,]
acknowledges that, in reviewing whether justifiable cause exists for failing
to communicate or have contact with a minor child for purposes of the
adoption consent standard:
. . . The probate court must strictly construe R.C. 3107.07(A)
in favor of [a] father to protect his rights as a natural parent.
In re Adoption of Schoeppner, 46 Ohio St.2d 21, 24 . . .
(1976). And strictly construing R.C. 3107.07(A) in favor of
[a] father requires the probate court to take into account [a]
father’s efforts to reestablish parental rights and
responsibilities through the domestic-relations court during
the year preceding the filing of the adoption petitions, as well
as mother’s efforts to impede father’s contact with the
children. . .
11.
45. At the February 11, 2026[] hearing, the evidence presented relevant to
father’s contact or communication with [D.W.] during the one year look
back period and other applicable times included, but was not limited to:
• The evidence established father’s last face to face contact with [D.W.]
occurred in 2017.
• Father testified that [he] left . . . [BG] area in roughly 2017 to reside in the
State of Alabama with [his] parents. [D.W.] was roughly two years of age
at that time when father left.
• Eventually, father returned with his parents to the State of New York.
• On August 28, 2024 - some ten months before the subject matter adoption
proceedings began - father filed a [“]Pro Se Motion[”] in the . . . Juvenile
Court. This motion requested father receive parenting time/visitation with
[D.W.]. . .
• Father suggested he filed his pro se motion for parenting time due to an
inability to reach an agreement with mother relative to parenting time with
[D.W.].
• Until the August 28, 2024[] filing of father’s motion in . . . Juvenile Court,
there had been no requests made by any party for court orders relative to
parenting time impacting [D.W.].
• While father’s pro se motion for parenting time was pending in . . .
Juvenile Court - the subject matter adoption proceedings were initiated on
June 26, 2025.
• The evidence established that in the late summer or fall, 2025, the parties
reached a mediated temporary agreement in . . . Juvenile Court relative to
father’s parenting time. Namely, father was provided the opportunity to
begin phone calls with [D.W.] on Fridays.
• During the February 11, 2026[] hearing, the petitioner and mother were
questioned as to why the underlying adoption proceedings were initiated
while father’s pro se parenting time motion was pending in . . . Juvenile
Court. The petitioner and mother testified that the adoption proceeding was
not done in retaliation for father filing his motion, but rather was primarily
due to the fact that [D.W.] had expressed a desire to have her name be
similar to her siblings; father’s overall lack of involvement with [D.W.]; the
stability of father; and to solidify the family structure surrounding [D.W.].
12.
• Father’s motion in . . . Juvenile Court is currently stayed pending a
decision on the pending adoption proceedings.
• During the February 11, 2026[] hearing, father presented [Exhibits [I
through P which] . . . were copies of emails or text messages from father or
[grandmother] sent to mother or mother’s father . . . or mother’s mother . . .,
which father submits demonstrates [his] efforts to establish contact or
communication with [D.W.].
• Exhibit I is a text message from [grandmother] to [mother’s father] dated
January 29, 2023[, which] . . . references [grandmother’s] attempts to send
a card and check to [D.W.] for Christmas. Exhibit I was sent outside the
one year look back period and was apparently presented in an effort to
establish the context of efforts made by or on behalf of father.
• Exhibit J is a copy of a text message from [grandmother] to [mother’s
mother] dated March 19, 2023. In this text, [grandmother] indicates
attempts to contact mother have not been successful and requests [mother’s
mother] contact mother to “make arrangements” as to when the best time to
come and visit [D.W.] would be. Exhibit J was sent outside the one year
look back period and is not clear as to who was desirous of visiting with
[D.W.] - father himself or [grandmother] and [grandmother’s] husband.
• Exhibit K is an email from father to mother dated November 24, 2024. In
this email, father sends happy birthday greetings to [D.W.]. This email is
within the one-year look back period. Significantly, in this email, father
makes no request to see [D.W.].
• Exhibit L is an email from father to mother dated March 29, 2025. The
email sends along a link to an ice-skating video. This email is within the
one-year look back period. Significantly, in this email, father makes no
request to see [D.W.].
• Exhibit M is an email from father to mother dated May 2, 2025. The
email thanks mother for all that mother is doing. This email is within the
one-year look back period. Significantly, in this email, father makes no
request to see [D.W.].
• Exhibit N is an email from father to mother dated May 11, 2025. In this
email, father wishes mother a happy Mother’s Day and expresses what a
“great mom” mother is and asks mother to say hi to [D.W.]. This email is
within the one-year look back period. Significantly, in this email, father
makes no request to see [D.W.].
13.
• Exhibit O is an email from father to mother dated May 20, 2025. In this
email, father expresses displeasure on not knowing how [D.W.] is doing or
receiving information. This email is within the one-year look back period.
Once again, in this email, father makes no actual request to see [D.W.].
• Exhibit P is an email from father to mother dated August 30, 2025. This
email reminds [D.W.] to “always listen” to mother and to [D.W.’s]
grandmother. This email is outside the one year look back period. This
email makes no request to see [D.W.].
46. Based on the court’s review of the testimony surrounding Exhibits I
through P, it is noteworthy the messages were not sent or meant to be
communications or contact with [D.W.]. There are also no requests to see
or communicate with, or contact, [D.W.].
47. Even taking into consideration father’s pending motion in . . . Juvenile
Court - which is perhaps the only substantive effort taken by father to
establish some sort of contact with [D.W.] - the court finds father’s efforts
as presented in the exhibits and testimony, simply do not rise to more than
de minimis contact during the applicable look back period. Father’s
actions are de minimis and not sufficient to require [his] consent for this
adoption to proceed.
48. The court further finds justifiable cause for father’s lack of contact with
[D.W.] has not been established. The court finds from the actual evidence
presented that there were no efforts by mother to hide where mother and
[D.W.] lived or to otherwise [“]substantially interfere[”] with father’s
ability to make contact with [D.W.] during the applicable one year look
back period. Mother testified she had the same phone number since the
fifth-grade. It was apparent from the evidence that father was aware of
where mother and [D.W.] resided or was able to reach mother and [D.W.]
should he desire to make requests for parenting time or contact [D.W.].
49. Based on all the evidence before the court, the court finds by clear and
convincing evidence that father has failed without justifiable cause to
provide more than de minimis contact with [D.W.] during the applicable
one year look back period.
Based on the findings above and all the evidence presented, the court issues
the following orders.
14.
IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED, the
consent of . . . the biological father of the minor child in this matter, is
found not necessary for this adoption to proceed.
IT IS FURTHER ORDERED this matter shall be set for a hearing to
determine whether the proposed adoption is in the best interest of the minor
child.
. . . (Emphasis added.)
Assignments of Error
{¶ 12} We will analyze father’s first and second assignments of error together.
De Minimis Contact
{¶ 13} Father argues the trial court incorrectly held that his consent was not
necessary where he maintained more than de minimis contact with, and provided
sufficient support for, D.W. He contends that the record contains unchallenged testimony
and evidence which shows that although he did not get to physically see his daughter, he
and his mother still made efforts and attempted to contact D.W. through and with cards,
calls, emails, text messages and gifts. He maintains that this contact is certainly beyond a
single occurrence and should be deemed sufficient to maintain more than de minimis
contact considering he lives in another state. He submits this court should find that
competent, credible evidence in the record supports that he maintained more than de
minimis contact with D.W.
Justification
{¶ 14} Father also argues that he was justified in not having de minimis contact
with D.W., as he certainly attempted to maintain contact and has within the look back
period been granted time to call and build a relationship with her. He likens his case to,
15.
inter alia, In re B., 2025-Ohio-2801 (6th Dist.). Father submits, assuming his attempted
contact is not enough, this court should consider his state of mind and the barriers he
faced trying to contact D.W., with whom he concedes he does not have too much of a
relationship, yet.
{¶ 15} Father contends he deals with mental health issues, which led to temporary
incarceration and was a barrier for communication with D.W., and he is dependent on
others to assist him with his affairs. He further asserts that his attempts and effort were
not embraced, and there was no effort on mother’s part to assist in developing his
relationship with D.W. He submits “[p]erhaps [mother], along with petitioner, was biased
and never followed up or encouraged her daughter to build a relationship with [father]
and [father] sensed it and, unfortunately, respected [mother’s] clear desire.”
{¶ 16} Father maintains that he could not have a Facebook connection with
mother, and he communicated through other avenues by including grandmother and
mother’s parents in an effort to convey messages to and see D.W. He claims mother’s
testimony supports these facts and further reveals potential bias toward him as she
expressed how short calls with him were problematic, and she admitted that she did not
share her address with him.
{¶ 17} Father argues “[w]ith the mental health issues, the incarceration, and the
covert plot against him [by mother and petitioner], father stood no chance to do anything
but what the Juvenile Court would grant him, which was only phone calls.” He claims he
“had justifiable cause to not accomplish more contact than he did.”
16.
Support
{¶ 18} Father argues the trial court erred when it found that he did not provide
sufficient gifts and financial contribution to constitute maintenance and support for
purposes of R.C. 3107.07(A). He concedes he did not pay all of his child support
payments but claims that, through grandmother, he attempted to pay nine out of the
twelve months due, and they also sent numerous gifts and cards for D.W.’s birthday and
Christmas. He also maintains that he reached out and expressed he was willing to
support D.W. further if she needed anything.
Justification
{¶ 19} Father again argues that he and grandmother were sending payments to
support D.W., but not consistently as ordered by the Juvenile Court. He speculates that
mother and petitioner “did not need, forgot about, and/or ignored the payments” and
“showed no interest in receiving any financial interest from [father], and as a result any
failure attributable to [father] should be deemed justifiable.” He also claims “it makes
sense that [mother and petitioner] would stage the situation to look like [father] did not
want to support his child.”
{¶ 20} Father submits that he attempted to support D.W. to the best of his ability
and, “based on his medical professional mother” he needs help when dealing with his
affairs, including making child support payments and sending gifts to D.W. He further
claims that he could not work and has yet to receive his social security benefits, which
would help cover all costs including his child support.
17.
{¶ 21} Finally, father requests that this court hold, consistent with other appellate
courts like In re Adoption of Sunderhaus, 63 Ohio St.3d 127 (1992), that because mother
failed to allow him to visit D.W. and refused to accept the support payments, there is
justifiable cause and his consent is needed in order for the adoption to proceed.
Law
Consent to Adoption
{¶ 22} Written consent is generally required of parents before an adoption may
proceed. R.C. 3107.06. There are exceptions, however, which are set forth in R.C.
3107.07, which states in pertinent part:
{¶ 23} Consent to adoption is not required of any of the following:
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
have 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 one year immediately preceding the filing of the adoption
petition.
{¶ 24} Since R.C. 3107.07(A) is written in the disjunctive, either a parent’s failure
to have contact or a parent’s failure to provide maintenance and support for the one-year
time period is sufficient suffices to obviate the need for that parent’s consent. In re
Adoption of McDermitt, 63 Ohio St.2d 301, 304 (1980).
{¶ 25} The consent provisions of R.C. 3107.07(A) must be strictly construed in
order to protect the interests of the non-consenting parent. In re Adoption of Sunderhaus,
63 Ohio St.3d at 132.
18.
De Minimis Contact/Justification
{¶ 26} “The term ‘contact’ is not defined in the statute; however, the dictionary
defines it as, inter alia, ‘an establishing of communication with someone or an observing
or receiving of a significant signal from a person or object.’ Merriam-Webster’s
Collegiate Dictionary 268 (11th Ed.2005).” In re N.L.T., 2015-Ohio-433, ¶ 27 (9th Dist.).
{¶ 27} “‘[M]ore than de minimis contact’ implies contact-either attempted or
successful-beyond a single occurrence. . . That is, the statute demands ‘more quality and
quantity’ and requires ‘more effort from the parent to have contact and communication
with the child’ than is shown by one-time contact. . .” In re Adoption of T.U., 2020-Ohio841, ¶ 25 (6th Dist.).
{¶ 28} In In re Adoption of M.M., 2023-Ohio-397, ¶ 28 (6th Dist.), this court noted
the probate court found there was clear and convincing evidence that the appellant did not
have more than de minimis contact during the one-year period preceding the filing of the
adoption petition, as the appellant had no in-person contact with his child in the four
years before the petition was filed, and any contact between the appellant and his child
during some visitation exchanges (for another child) was no more than de minimis.
“Regarding justifiable cause, the probate court noted that although [the appellant] had
inquired about seeing [the child] on a few occasions during the relevant period, ‘[a] tepid
response to an occasional request to see a child does not rise to the level of interference,
nor does it provide justification for a parent's failure to have more than de minimis
contact with a child.’” Id. at ¶ 29.
19.
{¶ 29} This court noted that while the appellant observed that repeated attempts to
contact a child can be viewed by a probate court as more than de minimis contact under
R.C. 3107.01(A), that “does not mean that multiple-but minimal-attempts to contact a
child must be considered ‘more than de minimis contact’ simply because they spanned
beyond a ‘single occurrence.’” Id. at ¶ 43-44. This court further found that the
appellant’s “efforts during the relevant [one-year] time period . . . were certainly minimal
and, depending upon the credibility of the witnesses, may have been singular.” Id. at ¶
44. The appellant sent a text asking to talk to his child on the child’s birthday and the
appellant approached the child’s stepfather when they ran into each other in public on two
occasions, discussed the child and the appellant asked to see the child on both occasions,
but never followed up. Id. at ¶ 45. Rather, “he left it to stepfather to follow up and
coordinate the visit for him.” Id. In addition, the appellant ran into stepfather in public a
third time and the appellant said he wanted to see his child and asked what the child
wanted for Christmas. Id.
{¶ 30} The appellant also saw the child in the back seat of a car during another
child’s custody exchange but did not speak with his child. Id. at ¶ 46. And, while the
appellant testified “that he has repeatedly called and texted . . . about [the child]
(including when he disguised himself by calling from [someone else’s] phone), he did not
provide a specific timeframe for those efforts, nor did he produce any texts or call logs.”
Id. at ¶ 47.
{¶ 31} This court determined that “. . . a few requests to stepfather during random
public meetings, plus his seeing [the child] sitting in the backseat of a car at the sheriff’s
20.
station (but not talking to him), is insufficient to demonstrate that the trial court’s
determination regarding [the appellant’s] ‘de minimis contact’ was somehow
unreasonable, arbitrary, or unconscionable.” Id. at ¶ 49. This court therefore found that
the probate court did not abuse its discretion by concluding that the petitioner satisfied his
burden to demonstrate the appellant did not have more than de minimis contact with his
child during the year preceding the adoption petition. Id. at ¶ 50.
{¶ 32} In In re Adoption of A.W., 2022-Ohio-3360, ¶ 1 (6th Dist.), the appellant
appealed the probate court’s determination that his consent was not necessary for the
proposed adoption of his child by the child’s caregivers. This court found the appellant’s
contentions that the caregivers hid the child, interfered with his ability to contact the child
and took steps to prevent others from finding or contacting the child were unsupported.
Id. at ¶ 36. The appellant had the caregiver’s phone number but did not call within a year
of the adoption petition. Id. The appellant did send two letters to his child, one shortly
after receiving the results of the paternity test and another one month before trial. Id. at ¶
37. Although the appellant testified he did not know the caregivers’ new address, there
was no evidence to suggest that he tried to obtain the correct address or took any steps to
communicate with his child. Id.
{¶ 33} The appellant’s witnesses testified that he reached out to them to ask for
updates on the child, but no one testified that he wanted to communicate with the child or
sought assistance to do so. Id. at ¶ 38. The appellant arguably showed an interest in his
child’s well-being, but there is no evidence that he had any interest in communicating
with or seeing the child. Id. To the extent that the appellant suggests that he sought
21.
contact with his child, he actually only contacted third parties. Id. at ¶ 39. Despite the
provision in a juvenile court order for contact through the caregiver, the appellant never
sought to initiate visitation. Id.
{¶ 34} This court found, after considering the record, that the greater weight of the
evidence supported the trial court’s finding, clearly and convincingly, that the appellant
lacked justifiable cause for having no contact with the child. Id. at ¶ 40.
{¶ 35} In In re Adoption of A.L.E., 2017-Ohio-256, ¶ 5 (4th Dist.), the evidence
revealed that the appellant had been incarcerated three times for a total of six years due to
drug-related offenses and did not attempt to contact his child while incarcerated. He had
not seen his child in over four years before the adoption petition was filed, he made three
child support payments in the one-year period before the petition was filed and his only
contact with his child within that period was sending one birthday card. Id. at ¶ 5-6, 18.
At the time of the petition hearing, the appellant lived with his parents, was selfemployed and took medication for his opiate/heroin addiction such that he lost his drug
cravings and felt the best he had in 20 years. Id. at ¶ 6-7. The appellant’s mother
supported his recovery and said he was a changed person on the medication. Id. at ¶ 7.
{¶ 36} The trial court determined the appellant’s consent to the adoption was not
required because he failed, without justifiable cause, to provide more than de minimis
contact with his child for at least the one-year period before the petition was filed. Id. at
¶ 8. The court recognized the appellant’s actions to improve his life and address his longterm drug addiction were admirable, but the actions did not establish justifiable cause for
22.
failing to provide more than de minimis contact with his child during the one-year period.
Id. at ¶ 8, 18.
Meaningful and Regular Maintenance and Support/Justification
{¶ 37} “[T]he maintenance and support required by R.C. 3107.07(A) is that which
is specifically ‘required by law or judicial decree.’” In re Adoption of M.B., 2012-Ohio236, at ¶ 20. “De minimis monetary gifts from a biological parent to a minor child do not
constitute maintenance and support, because they are not payments as required by law or
judicial decree as R.C. 3107.07(A) requires. To decide otherwise would render the
phrase ‘as required by law or judicial decree’ meaningless.” Id.
{¶ 38} Moreover, “[t]he plain text of R.C. 3107.07(A) instructs a trial court to
determine whether a natural parent provided maintenance and support ‘as required by law
or judicial decree’ for a period of at least one year immediately preceding the filing of the
adoption petition.” In re Adoption of A.C.B., 2020-Ohio-629, at ¶ 8. In that case, the
Supreme Court of Ohio determined “the judicial decree set[] forth precisely what [the
parent] was required to pay: $85 per week, for a total of $4,420 over the course of a year.
[The parent] did not pay what the judicial decree required. . . Thus, under the plain
language of the statute, [the parent] did not ‘provide for the maintenance and support’ of
[the child] ‘as required by law or judicial decree’ for the requisite one-year period.” Id.
{¶ 39} “Every day, families rely on court orders to define parents’ lawful
obligations. They structure their lives around what the court has ordered. Our decision
today ensures that the judgment of the court with the jurisdiction to set child-support
levels can be relied upon.” In re Adoption of B.I., 2019-Ohio-2450, ¶ 42.
23.
{¶ 40} “Under Ohio law . . . drug addiction is not considered a ‘justifiable cause’
for a parent’s failure to provide maintenance and support to a minor child.” Matter of
L.C.C., 2018-Ohio-4617, ¶ 51 (10th Dist.). That court cited, as examples: In re Adoption
of K.N.W., 2016-Ohio-5863, ¶ 36 (4th Dist.) “(father’s loss of employment and continued
unemployment resulted from his voluntary decision to use illegal drugs and did not
provide a justifiable cause for his failure to pay maintenance and support); In re Adoption
of Lassiter, 101 Ohio App.3d 367, 378 . . . (2d Dist.[]1995) . . . (drug addiction alone is
not a justifiable cause for failure to provide support).” Id.
{¶ 41} Ohio courts have determined that incarceration and a non-consenting
parent’s voluntary acts are factors to consider when deciding whether that parent has
justifiable cause for not paying support under R.C. 3107.07. In re Adoption of N.T.R.,
2017-Ohio-265, ¶ 17 (10th Dist.), citing, inter alia, In re Adoption of Z.A.-O.J., 2016-Ohio-3159, ¶ 27 (5th Dist.) (incarceration alone is not a justifiable cause since the nonconsenting parent created the circumstances and was in jail as a result of his own
wrongdoings).
Burden of Proof
{¶ 42} In In re Adoption of M.B., 2012-Ohio-236, ¶ 23, the Ohio Supreme Court
determined that probate courts must undertake a two-step analysis when applying R.C.
3107.07(A). In the first step, the probate court decides whether the petitioner has proved,
by clear and convincing evidence, that the parent willfully failed to have more than de
minimis contact with the minor child or failed to provide maintenance and support. Id. at
24.
¶ 21. An appellate court reviewing this decision applies an abuse-of-discretion standard.
Id. at ¶ 25.
{¶ 43} In the second step, if the probate court has found the parent failed to have
more than de minimis contact or failed to provide the required maintenance and support,
the probate court then determines whether the petitioner has proved, by clear and
convincing evidence, that there is no justifiable cause for the failure. Id. at ¶ 23. If the
petitioner has made this showing, the burden of going forward with evidence shifts to the
parent to show some facially justifiable reason for the failure. In re Adoption of Bovett,
33 Ohio St.3d at paragraph two of the syllabus. However, the burden of proving a lack of
justifiable cause remains on the petitioner. In re Adoption of M.G.B.-E., 2018-Ohio-1787,
at ¶ 39. Generally, a parent has justifiable cause for failing to communicate with the child
if the other parent significantly discourages or interferes with communication or contact.
Id. This determination will not be disturbed on appeal unless it is against the manifest
weight of the evidence. In re Adoption of M.B. at ¶ 24.
Standards of Review
Clear and Convincing
{¶ 44} Clear and convincing evidence is a degree of proof which is more than a
preponderance of the evidence but is not to the extent of such certainty required beyond a
reasonable doubt in criminal cases, and which produces in the mind of the trier of fact a
firm belief or conviction as to the facts sought to be established. Ledford, 161 Ohio St. at
paragraph three of the syllabus.
25.
Abuse of Discretion
{¶ 45} An abuse of discretion indicates the trial court's decision was unreasonable,
arbitrary or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).
Manifest Weight
{¶ 46} “A probate court’s determination as to ‘justifiable cause’ under R.C.
3107.07(A) will not be disturbed on appeal unless such determination is against the
manifest weight of the evidence.” In re Petition for Adoption of Z.H., 2022-Ohio-3926, ¶
32 (6th Dist.), citing In re Adoption of Masa, 23 Ohio St.3d 163 (1986), paragraph two of
the syllabus.
{¶ 47} When determining if a judgment is against the manifest weight of the
evidence, we must review the record, weigh the evidence and all reasonable inferences,
consider the credibility of the witnesses and decide whether in resolving any conflicts in
the evidence, the trier of fact “clearly lost its way and created such a manifest miscarriage
of justice that the conviction must be reversed and a new trial ordered.” State v. Prescott,
2010-Ohio-6048, ¶ 48 (6th Dist.), citing State v. Thompkins, 78 Ohio St.3d 380, 387
(1997). See also In re Adoption of T.U., 2020-Ohio-841, ¶ 19 (6th Dist.).
{¶ 48} “In weighing the evidence, the court of appeals must always be mindful of
the presumption in favor of the finder of fact.” Eastley v. Volkman, 2012-Ohio-2179, ¶
21. “The underlying rationale of giving deference to the findings of the trial court rests
with the knowledge that the trial judge is best able to view the witnesses and observe
their demeanor, gestures and voice inflections, and use these observations in weighing the
credibility of the proffered testimony.” Seasons Coal Co., Inc. v. Cleveland, 10 Ohio
26.
St.3d 77, 80 (1984). “‘If the evidence is susceptible of more than one construction, the
reviewing court is bound to give it that interpretation which is consistent with the verdict
and judgment, most favorable to sustaining the verdict and judgment.’” Id. at fn. 3,
quoting 5 Ohio Jur.3d, Appellate Review, § 603, at 191-192 (1978). See also In re Z.C.,
2023-Ohio-4703, ¶ 14.
{¶ 49} An appellate court can only disregard the presumption in favor of the factfinder “when evidence contradicts a fact-finder’s findings” or “when a witness’s
testimony is so inconsistent as to material facts, so impeached, or so fantastical as to
make it patently unbelievable.” State v. Reillo, 2026-Ohio-2701, ¶ 3. Only in those
exceptional cases, the appellate court “sits as a ‘“‘thirteenth juror’” who may disagree
with the fact-finder’s resolution of the conflicting evidence.’ (Emphasis added.)” Id. at ¶
27, quoting State v. Martin, 2022-Ohio-4175, ¶ 26, quoting Thompkins at 327. “[S]uch a
case could be one in which internally contradictory testimony as to material facts, direct
impeachment, or fantastical testimony clearly undermines a witness’s credibility on a
cold record.” Reillo at ¶ 31.
Analysis
{¶ 50} Although the trial court found that petitioner had proven both that father
had failed to support D.W. and that he had failed to have more than de minimis contact
within the one-year period preceding the filing of the adoption petition (“look-back
period”), under R.C. 3107.07(A), either a failure to have contact or a failure to support
during the look-back period is sufficient to obviate the need for a parent’s consent to the
27.
adoption. We will begin by reviewing the trial court’s finding that father failed, without
justifiable cause, to have more than de minimis contact with D.W. during the look-back
period.
Contact
{¶ 51} Father argues that his contact with D.W. was more than de minimis, and he
also argues that he was justified in not having de minimis contact with D.W. because he
attempted to maintain contact.
{¶ 52} The trial court found the petitioner proved, by clear and convincing
evidence, that there was no more than de minimis contact for the look-back period. We
review this decision for abuse of discretion.
{¶ 53} The record shows that father had not seen D.W. since 2017. At the hearing,
father testified that he was 35 years old. He initially testified that he left BG when D.W.
was about seven or eight years old (which would have been in or around 2022 or 2023),
but he later testified he left BG in 2016 or 2017, when D.W. was about two years old.
{¶ 54} The record further shows that in late August 2024, father filed for visitation
with D.W. in juvenile court, and in late June 2025, petitioner filed the petition and
amended petition to adopt D.W. From June 26, 2024, through June 26, 2025, the lookback period, father alone, not grandmother, texted mother five times, but never requested
to see D.W. Mother testified that neither she nor petitioner blocked father’s ability to
reach D.W., but mother did block father on Facebook when they were dating.
{¶ 55} Assuming without deciding that the five texts would be considered
“contact,” this contact was less than minimal, at best. Arguably, the only contact that
28.
father sought to have with D.W. during the look-back period was in his juvenile court
filing for visitation. As a result of that filing, an agreement was reached wherein father
could call D.W. every Friday. Starting in the summer of 2025 (after the end of the lookback period), father called and spoke with D.W. a dozen times, per his estimation, until
October 2025, when he was arrested and went to jail following a domestic violence
incident with his stepfather. Father did not talk to D.W. thereafter.
{¶ 56} Based upon the evidence and the applicable law, we find the trial court did
not abuse its discretion in finding that the petitioner proved, by clear and convincing
evidence, that father had no more than de minimis contact with D.W. during the lookback period.
{¶ 57} Our second consideration is whether the trial court erred in finding that
petitioner proved, by clear and convincing evidence, that father lacked justification for
father’s failure to have contact with D.W. during the look-back period. In this context we
apply a manifest weight of the evidence standard and first review the evidence to
determine whether father presented evidence to show some facially justifiable cause for
the failure.
{¶ 58} Father claims that his failure was excusable and justifiable due to his
mental health issues and incarceration, as well as mother’s lack of effort to assist in
developing his relationship with D.W and mother and petitioner’s bias, their failure to
follow up or encourage D.W. to build a relationship with father, and their covert plot
against father. Father compares his case to, inter alia, In re B., 2025-Ohio-2801 (6th
Dist.). In that case, this court found the one parent tried to contact the child, but the other
29.
parent actively interfered with those efforts: directly; through family members; through
post-divorce legal proceedings; by calling the police; and coaching the child to hate the
one parent and refuse to visit or communicate with the one parent. Id. at ¶ 20.
{¶ 59} A review of the record shows that while father advanced several arguments
as to why he failed to contact D.W. during the look-back period, we find that he did not
produce evidence to demonstrate “some facially justifiable cause” for his failure.
{¶ 60} Father testified he did not have a phone for periods of time (up to five
years), including during the look-back period, because he wanted to stay on track with his
sobriety and did not want a phone. He testified that over the years he sold his phones,
had his phones stolen and changed phone numbers repeatedly. He also testified about
how the phones were not working the majority of the time that he was incarcerated, from
October through December 2025. He further testified that during the look-back period he
did not have a computer and although he did have his own e-mail, he could not remember
the password. We find that none of the foregoing qualifies as “facially justifiable cause”
for father’s failure to have contact with D.W.
{¶ 61} Father further testified that mother did not update him about her change in
address when she moved or about her new cell phone number, but he later testified that
he “didn’t know she changed her cell number because she -- she replied to [him] on her
old number too, so . . .” Father’s testimony was unclear as to exactly when mother’s
address and/or cell phone number changed. Moreover, father did not testify or present
evidence to establish that he ever sought mother’s updated address or phone number.
30.
{¶ 62} Father also attempted to assert justifiable cause by blaming mother for his
lack of contact and lack of relationship with D.W. (because mother exerted no effort in
assisting him or encouraging that relationship) and by claiming that mother and petitioner
plotted against father, but father presented no evidence of significant interference or
significant discouragement of contact between father and D.W.
{¶ 63} Considering the record, the greater weight of the evidence supported the
trial court’s finding, clearly and convincingly, that father lacked justifiable cause for
having no more than de minimis contact with D.W. during the look-back period (June
2024 through June 2025). D.W., during that time, was nine and ten years old,
respectively, but when father texted mother five times, he never requested to talk with
D.W. or see D.W. or have contact with D.W. As noted by the trial court, the only real
effort father made to have contact with D.W. during the look-back period was when he
filed for visitation.
{¶ 64} Because father did not meet his burden of going forward, the burden did
not shift back to petitioner to prove that father had no more than de minimis contact with
D.W. during the look-back period. We therefore conclude that the trial court’s finding
that father failed without justification to have more than de minimis contact with D.W.
during the look-back period was supported by clear and convincing evidence and was not
against the manifest weight of the evidence.
{¶ 65} We could end our analysis here but choose to examine the support issue.
31.
Support
{¶ 66} Father admits that he did not pay all of his child support payments, but he
argues that he attempted to pay, with grandmother’s help, nine months out of twelve
months of child support, and they sent numerous gifts and cards for D.W.’s birthday and
Christmas. Father was also willing to support D.W. further if she needed anything.
{¶ 67} The record shows that the petitioner offered documentary evidence
regarding father’s child support obligation and payment history for D.W. The evidence
included the juvenile court’s January 17, 2019 judgment entry, wherein father was
required to pay a total of $61.20 per month in support, arrears, and processing fees
through the CSEA. The evidence shows that for the look-back period, father paid child
support through the CSEA for five months out of twelve months.
{¶ 68} Based upon the evidence and the applicable law, we find the trial court did
not abuse its discretion in finding that the petitioner proved, by clear and convincing
evidence, that father did not provide maintenance and support for D.W. as required by
law or judicial decree for the look-back period.
{¶ 69} Our second consideration is whether the trial court erred in finding that
petitioner proved, by clear and convincing evidence, that father lacked justification for
father’s failure to provide maintenance and support for D.W. as required by law or
judicial decree for the look-back period. We apply a manifest weight of the evidence
standard and first review the evidence to determine whether father presented evidence to
show some facially justifiable cause for the failure.
32.
{¶ 70} Father claims that he could not work because of his mental illness and
addiction, and he presented documentary evidence that he received public assistance, but
he presented no documentary evidence which indicated that he suffered from ongoing
mental illness and was unable to work. Rather, he relied on grandmother, a registered
nurse, who testified that father has mental health and substance abuse issues. She
testified that father has depression and high anxiety, he cannot work, his income source is
public assistance and she handles his finances. She testified that during the look-back
period, she sent approximately four checks to mother’s parents’ house (D.W.’s
grandparents’ house) - “there was one [check] for $124, so it’s double payments. . . and
then there was a regular payment for $62. . . for child support.” Grandmother said the
checks were never cashed so she did not have any documentary evidence.
{¶ 71} A review of the record and the applicable law reveals that father offered a
few reasons as to why he failed to provide maintenance and support to D.W., as required
by law or judicial decree during the look-back period, however, we find that he did not
produce evidence to demonstrate “some facially justifiable cause” for his failure. For
example, father argues that mother failed to accept the support payments, however, “[d]e
minimis monetary gifts from a biological parent to a minor child do not constitute
maintenance and support, because they are not payments as required by law or judicial
decree as R.C. 3107.07(A) requires.” In re Adoption of M.B., 2012-Ohio-236, at
paragraph one of the syllabus. Moreover, grandmother, not father, sent checks to D.W.’s
grandparents’ house. The law is clear, these gifts sent by grandmother do not constitute
father providing maintenance and support as required by R.C. 3107.07(A).
33.
{¶ 72} In addition, father and grandmother testified that father could not work due
to mental illness and addiction. This limited evidence about father’s inability to work to
support D.W. did not demonstrate a facial justification for his failure to do so. Because
father did not meet his burden of going forward, the burden did not shift back to
petitioner to prove that father’s failure to support D.W. was not justified.
{¶ 73} We therefore conclude that the trial court’s finding that father failed to
support D.W. during the look-back period was supported by clear and convincing
evidence and was not against the manifest weight of the evidence.
{¶ 74} Accordingly, father’s first and second assignments of error are not welltaken.
Third Assignment of Error
Father’s Arguments
{¶ 75} Father argues the trial court erred by terminating his parental rights, where
finding his consent was not necessary before the adoption of D.W. is unconstitutional as
applied to him and D.W. He asserts that termination of his parental rights and his and
D.W.’s familial rights in any subsequent adoption proceeding by Ohio adoption law
would be unconstitutional as applied to him and D.W., where he is fit to parent and has
struggled financially and with mental health issues during the look-back period. He notes
since he did not raise a constitutional issue with the trial court, the plain error doctrine
applies.
{¶ 76} Father observes the Fourteenth Amendment to the United States
Constitution provides no governmental entity or employee shall, “deprive any person of
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life, liberty, or property, without due process of law.” He notes the United States
Supreme Court has “recognized that the Amendment’s Due Process Clause . . .
‘guarantees more than fair process.’” Troxel v. Granville, 530 U.S. 57, 65 (2000), citing
Washington v. Glucksberg, 521 U.S. 702, 719 (1997). He contends the due process clause
“includes a substantive component that ‘provides heightened protection against
government interference with certain fundamental rights and liberty interests.’” Id. at 65,
quoting Washington at 720. He further notes that “the interest of parents in the care,
custody, and control of their children - is perhaps the oldest of the fundamental liberty
interests recognized. . . It is cardinal . . . that the custody, care and nurture of the child
reside first in the parents, whose primary function and freedom include preparation for
obligations the state can neither supply nor hinder.” Id. at 65-66. He submits this liberty
interest extends to parents and their children. Santosky v. Kramer, 455 U.S. 745, 760
(1982).
{¶ 77} Father asserts the trial court subscribed to petitioner’s rationale that father’s
consent was not required for D.W.’s adoption under R.C. 3107.07(A), and father “is set to
lose all rights to D.W. upon her adoption. That is as prejudicial of an outcome as it can
get.” Father claims that “no expert testimony, empirical data, or other scientific evidence
[was] submitted . . . to contradict the fact that he suffered from mental health challenges
during the look[-]back period, or to support that he should be found unfit or unworthy of
having veto power in the adoption of his biological child.”
{¶ 78} Father contends he “was hopefully set to start receiving social security
benefits to cover his support obligation and he was also working hard on increasing his
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visitation and companionship time from phone calls to in person visitation with D.W.”
He submits that to stop his “progress by looking back through a tough year of his life,
when he had no choice due to [a] medical condition, would clearly interrupt [his] primary
function and freedom to prepare his daughter for obligations the [S]tate can neither
supply nor hinder.” He asserts that while the “look[-]back period is [c]onstitutional
applied to others . . . it cannot be fair and [c]onstitutional as applied to [him] in light of
his circumstances in the adoption of his biological child.” He insists that “just because he
suffered from mental health challenges during the . . . look[-]back period does not mean
that he is unfit.”
Petitioner’s Arguments
{¶ 79} Petitioner counters that the plain language of the consent statute, R.C.
3107.07(A), makes father’s constitutional argument inapplicable because father argues
that statute should only apply to those parents who are found to be unfit. Petitioner
contends that the concept of unfitness is applicable to a children’s services agency filing a
dependency, neglect or abuse matter in juvenile court under R.C. 2151.353. He further
submits that R.C. 3107.01(N) defines parent as “a legally recognized natural or adoptive
parent of a child” and it does not subject that definition to an unfitness finding under R.C.
2151.
Standard of Review
{¶ 80} Typically, the determination of “whether a statute or ordinance is
constitutional is a question of law that we review de novo.” Community Hosps. &
Wellness Centers v. State, 2020-Ohio-401, ¶ 52 (6th Dist.), quoting Cleveland v. State,
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2019-Ohio-3820, ¶ 15. However, if a party fails to lodge an objection in the trial court,
the appellate court applies a plain-error standard of review. State v. Tibbetts, 92 Ohio
St.3d 146, 160-161 (2001).
{¶ 81} “[I]n appeals of civil cases, the plain error doctrine is not favored and may
be applied only in the extremely rare case involving exceptional circumstances where
error seriously affects the basic fairness, integrity, or public reputation of the judicial
process itself.” Uretsky v. Uretsky, 2003-Ohio-1455, ¶ 7 (10th Dist.), citing Goldfuss v.
Davidson, 79 Ohio St.3d 116 (1997), syllabus. “Indeed, the plain error doctrine
implicates errors in the judicial process where the error is clearly apparent on the face of
the record and is prejudicial to the appellant.” Skydive Columbus Ohio, LLC v. Litter,
2010-Ohio-3325, ¶ 13 (10th Dist.), citing Reichert v. Ingersoll, 18 Ohio St.3d 220, 223
(1985).
{¶ 82} For an appellate court to reverse a judgment under a plain-error analysis,
the appellant must show that “but for a plain or obvious error, the outcome of the
proceeding would have been otherwise, and reversal must be necessary to correct a
manifest miscarriage of justice.” State v. Quarterman, 2014-Ohio-4034, ¶ 16. See also
United States v. Olano, 507 U.S. 725, 731-732 (1993) (To show plain error, there must be
an error, that is plain, which affects substantial rights, and seriously affects the fairness,
integrity or public reputation of judicial proceedings.).
Law
{¶ 83} Father contends that he has a fundamental right in the care, custody, and
control of D.W. He therefore argues that, as applied to him, R.C. 3107.07(A) violates the
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Fourteenth Amendment to the United States Constitution, which protects him against the
deprivation of his liberty interest, without due process of law.
As-Applied Constitutional Challenge
{¶ 84} “Legislation is given a strong presumption of constitutionality.” McNalley
v. Keiser, 2025-Ohio-5561, ¶ 8 (6th Dist.), citing Yajnik v. Akron Dept. of Health, Hous.
Div., 2004-Ohio-357, ¶ 16.
{¶ 85} A party challenging the constitutionality of a statute as applied has the
burden of presenting clear and convincing evidence of currently occurring facts that make
the statute unconstitutional and void when applied to those facts. McNalley at ¶ 10, citing
Brandt v. Pompa, 2022-Ohio-4525, ¶ 27. “Under an as-applied due-process challenge,
the challenger must demonstrate that there was an actual-not hypothetical-violation of his
constitutional rights[.]” In re Adoption of H.N.R., 2015-Ohio-5476, ¶ 32.
Fundamental Rights
{¶ 86} In State v. Lowe, 2007-Ohio-606, ¶ 9, the Supreme Court of Ohio, citing
Moore v. E. Cleveland, 431 U.S. 494, 503 (1977), set forth that “[f]undamental rights are
those liberties that are ‘deeply rooted in this Nation’s history and tradition.’” The Lowe
court recognized that “[t]he United States Supreme Court has expanded the Due Process
Clause beyond the specific freedoms named within the Bill of Rights . . . [t]hus, ‘liberty’
interests specially protected by the Due Process Clause include the right[] . . . to direct
the education and upbringing of one’s children, Meyer v. Nebraska . . . , 262 U.S. 390[,
399] . . . [(1923)].”
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Strict Scrutiny
{¶ 87} When it is alleged that the law restricts the exercise of a fundamental right,
the strict-scrutiny test is used to assess the constitutionality of a statute under the Due
Process Clause. Lowe at ¶ 18, citing Glucksberg, 521 U.S. at 721. A statute survives
strict scrutiny if it is narrowly drawn to serve a compelling governmental/state interest.
Disciplinary Counsel v. Tamburrino, 2016-Ohio-8014, ¶ 18.
Compelling Interest
{¶ 88} “The [S]tate’s interest is determined through its intent in enacting the
legislation at issue.” In re H.N.R., 2015-Ohio-5476, ¶ 27, citing, inter alia, State ex rel.
Evans v. Moore, 69 Ohio St.2d 88, 91 (1982) and Hamdi v. Rumsfeld, 542 U.S. 507, 517
(2004) (governmental interests identified from the language of the statute in question).
{¶ 89} The State has an interest in protecting the welfare of children and
“[u]ltimately, the goal of adoption statutes is to protect the best interests of children.” In
re Zschach, 75 Ohio St.3d 648, 651 (1996). “In cases where adoption is necessary, this is
best accomplished by providing the child with a permanent and stable home . . . and
ensuring that the adoption process is completed in an expeditious manner.” Id., citing In
re Adoption of Ridenour, 61 Ohio St.3d 319, 328 (1991) (State has a strong interest in
permanent placement of children) and In re Adoption of Baby Girl Hudnall (1991), 71
Ohio App.3d 376, 380 (1991) (State has legitimate interests in facilitating adoption of
young children and having adoption proceeding completed expeditiously).
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Analysis
{¶ 90} Upon review, father argues the application of the look-back period set forth
in R.C. 3107.07(A), is not fair and is not constitutional as applied to him because during
that time, he suffered from mental health challenges.
{¶ 91} Applying plain error review to father’s assigned error, the first step is to
determine whether father has shown that an error occurred.
{¶ 92} While father argues that terminating his fundamental right to parent D.W.
in a subsequent adoption proceeding is unconstitutional as applied to him, he did not
present clear and convincing evidence of currently occurring facts that made R.C.
3107.07(A) unconstitutional when applied to those facts. Moreover, father did not
mention that the strict-scrutiny test is used to assess the constitutionality of R.C.
3107.07(A) under the Due Process Clause. Thus, father did not assert that the statute is
not narrowly drawn or that the statute did not serve a compelling state interest.
{¶ 93} In light of the foregoing, we are unable to conclude that the trial court
plainly erred when it found, pursuant to R.C. 3107.07(A), that father’s consent to D.W.’s
adoption was not necessary due to father’s failure without justifiable cause to provide for
the maintenance and support of D.W. or more than de minimis contact with D.W. during
the look-back period. Therefore, we find the alleged due process violation is neither
plain nor obvious. Accordingly, father’s third assignment of error is not well-taken.
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Conclusion
{¶ 94} The judgment of the Wood County Court of Common Pleas, Probate
Division, is affirmed. Father to pay the costs of appeal pursuant to App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
Gene A. Zmuda, J. ____________________________
JUDGE
Myron C. Duhart, J.
Charles E. Sulek, J. JUDGE
CONCUR.
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
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