[Cite as In re Adoption of M.C.,

.]

IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT JACKSON COUNTY

IN THE MATTER OF: : Case Nos. 11CA5 : 11CA6 THE ADOPTION OF M.C. : : DECISION AND and : JUDGMENT ENTRY1 : IN THE MATTER OF: : : RELEASED 12/15/11 THE ADOPTION OF C.C. : ______________________________________________________________________ APPEARANCES:

D.P., Chillicothe, Ohio, pro se Appellant.

B.C. and T.C., Jackson, Ohio, pro se Appellees. ______________________________________________________________________ Harsha, P.J.

{¶1} D.P., the biological father of M.C. and C.C., appeals the trial court’s

decision to grant the petitions for adoption filed by the children’s stepfather, thereby

terminating D.P.’s parental rights. Father contends that the trial court violated his

procedural due process rights when it denied his request for appointed counsel.

However, Father failed to support his argument with any relevant authority to establish a

right to counsel exists for indigent parents in adoption proceedings initiated by a private

party. If an argument exists to support Father’s assigned error, it is not this Court’s duty

to root it out. Therefore, we reject Father’s contention.

{¶2} In addition, Father, who has been incarcerated throughout these

proceedings, claims he had a folder containing notes and evidence in his prison cell and

1 We recognize that under App.R. 11.2 this appeal receives priority status, and there has been a significant delay in the release of this decision. However, this delay was necessitated in part by a remand to the trial court to supplement the record. Jackson App. Nos. 11CA5 & 11CA6 2

the court denied him access to the folder during a hearing on the petition. Father

argues that the court violated his “Sixth Amendment” right to “conduct his own defense.”

However, the Sixth Amendment applies to criminal prosecutions, not adoption

proceedings. Moreover, there is no evidence the court denied Father access to the

folder as opposed to Father simply forgetting to bring it to the hearing. In fact, the court

allowed Father to submit the folder after the hearing concluded. Therefore, we reject

this argument.

{¶3} Father also contends that the trial court erred when it found his consent to

the adoptions was not required because there was no justifiable cause for his failure to

contact the children in the year immediately preceding the filing of the petitions. Father

claims he tried to send the children letters and cards but the Gallia County Prosecutor’s

Office seized these items under a “no contact” order stemming from his criminal case

involving the children’s mother and maternal grandfather. In other words, Father argues

his failure to communicate with the children is justified. However, the only evidence that

supports Father’s contentions is his own self-serving testimony, which the trial court was

free to disbelieve. Thus, we cannot say that the court’s finding was against the manifest

weight of the evidence. This decision renders moot Father’s additional contention that

the court erred when it found his consent was also not required because there was no

justifiable cause for his failure to provide maintenance and support for the children in the

requisite one-year period.

{¶4} Finally, Father complains that the trial court failed to conduct a best

interest hearing or make a best interest finding before it granted the adoption petitions.

However, it is apparent from the record that the trial court conducted the best interest Jackson App. Nos. 11CA5 & 11CA6 3

hearing at the same time it conducted the hearing on the consent issue and that the trial

court in fact made a best interest finding. Accordingly, we affirm the trial court’s

judgment.

I. Facts

{¶5} M.C. and C.C. are the biological children of D.P. and T.C. In 2010 T.C.’s

husband, B.C., filed petitions to adopt his stepchildren and thus terminate D.P.’s

parental rights. D.P., who opposed the petitions, filed a motion for appointed counsel,

which the trial court denied. After a hearing on the petitions, the trial court found that

D.P. had not had contact with or paid any support for the children for at least one year

immediately preceding the filing of the petitions. The court did not find any justifiable

cause for this lack of communication or support and concluded that D.P.’s consent to

the adoption was not necessary. Then, the court issued final decrees of adoption, and

this consolidated appeal followed.

II. Assignments of Error

{¶6} D.P. assigns four errors for our review:

THE PROBATE COURT COMMITTED SUBSTANTIAL REVERSBLE [sic] ERROR IN ITS RULING THAT BIOLOGICAL FATHER, APPELLANT * * *, FAILED TO SHOW JUSTIFIABLE CAUSES FOR NOT COMMUNICATE [sic] AND SUPPORTING HIS MINOR CHILDREN AND THAT HIS CONSENT TO ADOPTION OF C.C. AND M.C. WAS NOT NECESSARY.

THE PROBATE COURT DEPRIVED APPELLANT * * * OF HIS PROCEDURAL DUE PROCESS RIGHTS BY NOT APPOINTING HIM ASSISTANCE OF COUNSEL PRIOR TO CURTAILING HIS CONSTITUTIONAL CUSTODIAL RIGHTS.

THE PROBATE COURT ERRED IN FAILING TO MAKE A SPECIFIC FINDING THAT THE ADOPTION WAS IN THE BEST INTEREST OF THE MINOR CHILDREN AND FURTHER IN FAILING TO SCHEDULE A HEARING TO DETERMINE THE BEST INTEREST OF THE MINOR CHILDREN. Jackson App. Nos. 11CA5 & 11CA6 4

THE JACKSON COUNTY PROBATE-JUVENILE JUDGE, STEPHEN D. MICHAEL, ERRED WHEN DID [sic] NOT ALLOW APPELLANT * * * ACCESS TO HIS NOTES AND EVIDENCE (LEGAL FOLDER) AND BY DOING SO APPELLANT WAS UNPREPARED TO PRESENT HIMSELF AND/OR UNABLE TO PRESENT ANY EVIDENCE ON HIS OWN BEHALF.

For ease of analysis, we will address the assignments of error out of order.

III. Right to Counsel

{¶7} In his second assignment of error, Father contends that he is indigent2

and the trial court violated his procedural due process rights when it refused to appoint

him counsel. At the trial level, Father argued that he had a right to appointed counsel

under the Sixth Amendment of the United States Constitution and Article I, Section 10 of

the Ohio Constitution,3 not the Due Process Clause. “It is well-settled that failing to

object at the trial court level to a complained of error results in a waiver of that error on

appeal. Thus, an appellate court may recognize an error that an appellant waived only

if it constitutes plain error.” In re E.W., Washington App. Nos. 10CA18-10CA20, 2011-

Ohio-2123, at ¶11 (internal citations omitted). However, as we explain below, Father

failed to support his argument with any relevant authority to establish that the trial court

committed plain error when it denied his request.

2 Father claims he filed an “Affidavit of Indigent [sic]” to support his motion. (Appellant’s Br. 5). Father actually filed an “Affidavit of Poverty.” Although the affidavit does not specifically refer to Father’s inability to pay for an attorney, Father averred that he had income of $12.00 per month from prison labor and could not “pay the cost of this case or give security for it[.]” (Aff. of Poverty ¶¶3-4.). 3 At the hearing on the adoption petition, the following exchange occurred:

JUDGE MICHAEL: * * * Now you’re probably going to ask me about a lawyer. [FATHER]: Yes, sir. JUDGE MICHAEL: And I don’t have to, and I won’t appoint you a lawyer. [FATHER]: Ok, that’s fine.

We do not interpret Father’s response as a waiver of his right to counsel. Rather, he appears to simply acknowledge the court has made a final decision on his request for counsel. Jackson App. Nos. 11CA5 & 11CA6 5

{¶8} Neither the Supreme Court of Ohio nor this Court has addressed the issue

of whether an indigent parent contesting an adoption petition filed by a private party has

a procedural due process based right to appointed counsel. Father claims R.C.

2151.352 confers such a right. He also cites State ex rel. Asberry v. Payne,

,

,

, which involved a right to counsel claim

based on this statute. However, R.C. 2151.352 confers a statutory right to counsel, not

a constitutional right, and only applies in proceedings under Chapters 2151 and 2152 of

the Revised Code. Adoption proceedings fall under Chapter 3107. Therefore, these

arguments are meritless.

{¶9} Father also cites Juv.R. 4(A), which states: “Every party shall have the

right to be represented by counsel and every child, parent, custodian, or other person in

loco parentis the right to appointed counsel if indigent. These rights shall arise when a

person becomes a party to a juvenile court proceeding.” However, the Ohio Rules of

Juvenile Procedure “prescribe the procedure to be followed in all juvenile courts of this

state in all proceedings coming within the jurisdiction of such courts * * *.” Juv.R. 1(A)

(Emphasis added). The adoption proceedings occurred in probate court, not juvenile

court. Moreover, even if the Juvenile Rules applied, Juv.R. 4(A) also provides: “This

rule shall not be construed to provide for a right to appointed counsel in cases in which

that right is not otherwise provided for by constitution or statute.” In other words, the

rule does not create a right to appointed counsel, let alone a procedural due process

based right to counsel. We also reject this argument.

{¶10} Finally, Father cites Lassiter v. Department of Social Services (1981),

,

,

for the following proposition: “The right to Jackson App. Nos. 11CA5 & 11CA6 6

cuounsel [sic] in proceedings to terminate parental right’s [sic] is a due-process right.”

In Lassiter, a county social services department, i.e. the state, filed a petition to

terminate a mother’s parental rights.

. The mother claimed she was

indigent and entitled to appointed counsel under the Fourteenth Amendment Due

Process Clause.

. Contrary to what Father’s description of Lassiter implies, the

Court declined to adopt a categorical rule that the “Constitution requires the

appointment of counsel in every parental termination proceeding.”

. Instead,

the court adopted a case-by-case approach to the issue.

.

{¶11} However, a private party (the children’s stepfather) filed the adoption

petitions in this case. The Fourteenth Amendment provides protection against

“governmental—not private—action.” Ford Motor Credit Co. v. Ryan,

,

,

, citing Blum v. Yaretsky (1982),

,

,

. Father advances no argument as to how

state action exists in this case. Moreover, Father makes no effort to explain how

Lassiter, which adopted a case-by-case approach to the right to counsel issue for

parental termination proceedings initiated by the state, creates a categorical rule that

procedural due process requires appointment of counsel in adoptions initiated by private

parties.

{¶12} We recognize this Court has “long had a policy of affording ‘considerable

leniency’ to pro se litigants.” State v. Ritchie, Pickaway App. No. 10CA20, 2011-Ohio-

164, at ¶5, quoting Robb v. Smallwood,

,

,

. “We have not held pro se litigants to the same standard as

attorneys.”

quoting

. However, Father has failed to advance any Jackson App. Nos. 11CA5 & 11CA6 7

relevant authority for his claim that a categorical, procedural due process based right to

appointed counsel exists for indigent parents in adoption proceedings initiated by a

private party. If an argument exists to support Father’s assigned error, it is not this

Court’s duty to root it out, particularly when the alleged error involves a constitutional

issue of first impression in this Court. See State v. Lynch, Cuyahoga App. No. 95770,

; See, also, Brown v. August, Wayne App. No. 01CA0024,

,

, at *4 (“It is not the obligation of an appellate court to

search for authority to support an appellant’s argument as to an alleged error.”).

Accordingly, we overrule the second assignment of error.

IV. Sixth Amendment

{¶13} In his fourth assignment of error, Father contends that the trial court

violated his right under the Sixth Amendment to the United States Constitution to

“conduct his own defense” because during the hearing on the petition, the court denied

him access to a folder in his prison cell containing notes and evidence The Sixth

Amendment provides:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

(Emphasis added). Thus by its plain language, this Amendment applies to “criminal

prosecutions,” not adoption proceedings.

{¶14} Moreover, there is no evidence that the trial court denied Father access to

the folder as opposed to Father simply forgetting to bring it with him. Though the court Jackson App. Nos. 11CA5 & 11CA6 8

had no obligation to do so, after the hearing the court allowed Father to submit his file

for the court’s review. Father merely speculates that had he been able to present his

folder in open court, the outcome of the proceedings would have been different. In his

argument for this assignment of error, Father also complains that when he did submit

the folder, the trial court ignored certain evidence in it. We address these issues in our

discussion of the first assignment of error. We overrule Father’s fourth assignment of

error.

V. Consent

{¶15} “It is undisputed that parents have a fundamental liberty interest in the

care, custody and management of their children.” In re Adoption of S.L.N., Scioto App.

No. 07CA3189,

, citing Troxel v. Granville (2000),

,

,

. The right to raise one’s child is an “essential and

basic civil right [.]”

citing In re Hayes (1997),

,

.

An adoption terminates that right. In re Adoption of Greer,

,

,

. See R.C. 3107.15(A)(1).

{¶16} “Generally, children cannot be adopted without the consent of their natural

parents because consent is a jurisdictional prerequisite to adoption.” S.L.N. at ¶19,

citing McGinty v. Jewish Children’s Bureau (1989),

,

(per curiam). However, R.C. 3107.07(A) offers an exception to this general rule.

Consent to adoption is not required of “[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 Jackson App. Nos. 11CA5 & 11CA6 9

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.” R.C. 3107.07(A).

{¶17} Thus “[t]he party that seeks to adopt a child without parental consent must

prove, by clear and convincing evidence, both (1) that the natural parent failed to

support or to communicate with the child for the requisite one-year time period, and (2)

that the failure was without justifiable cause.” S.L.N. at ¶21, citing In re Adoption of

Bovett (1987),

,

, at paragraph one of the syllabus.

“Once the petitioner has established, by clear and convincing evidence, that the

biological parent has failed to communicate with or to support the child for the one-year

period, the burden of going forward with evidence shifts to the biological parent to show

some facially justifiable cause for the failure.” In re Adoption of R.M.Z., Montgomery

App. No. 23511,

, at ¶11, citing Bovett at paragraph two of the syllabus.

“The burden of proof, however, remains at all times with the petitioner, who must

establish the lack of justifiable cause by clear and convincing evidence.”

citing

Bovett at paragraph two of the syllabus.

{¶18} “Clear and convincing evidence is the measure or degree of proof that will

produce in the mind of the trier of fact a firm belief or conviction as to the allegations

sought to be established. It is intermediate, being more than a mere preponderance,

but not to the extent of such certainty as required beyond a reasonable doubt as in

criminal cases. It does not mean clear and unequivocal.” In re Estate of Haynes

(1986),

,

. However, even under the clear and

convincing standard, our review is deferential. “We will not disturb a finding that Jackson App. Nos. 11CA5 & 11CA6 10

parental consent is unnecessary for an adoption unless it is against the manifest weight

of the evidence.” S.L.N. at ¶22, citing Bovett at paragraph four of the syllabus. “In other

words, if the trial court’s finding is supported by some competent credible evidence, that

decision will survive appellate review.”

citing Shemo v. Mayfield Hts.,

,

,

.

{¶19} We recognize that the trial court, as trier of fact, “is obviously in a better

position than the appellate court to view the witnesses and to observe their demeanor,

gestures and voice inflections, and to use those observations in weighing the credibility

of the proffered testimony.” Id. at ¶23, citing Myers v. Garson,

,

,

. “Accordingly, we defer to the trial court on issues of

weight and credibility.”

A trial court is “free to believe all, part, or none of the

testimony of any witness who appears before it.”

citing Rogers v. Hill (1998),

,

.

{¶20} Although Father contends that he sent the children letters and cards

during the year preceding the filing of the adoption petition, he appears to concede that

the children never received these communications. Therefore, he does not contend that

the petitioner failed to establish by clear and convincing evidence that he failed to

contact his children during the year preceding the filing of the petition. However, Father

claims the Gallia County Prosecutor’s Office intercepted the letters and cards based on

a “no contact” order stemming from his criminal case involving T.C. and the children’s

maternal grandfather. Thus, Father contends that he had a justifiable cause for not

communicating with the children.

{¶21} Father claims a “no contact” order prohibits contact with T.C.’s “immediate Jackson App. Nos. 11CA5 & 11CA6 11

family,” which includes the children.4 Some courts have held that a “no contact” court

order is justifiable cause for a parent’s failure to communicate with his children. In re

K.K., Lorain App. Nos. 05CA008849 & 05CA008850,

. However,

the only evidence that supports Father’s claim that this order existed or that the Gallia

County Prosecutor’s Office in fact seized letters and cards is Father’s testimony.

{¶22} After the hearing on the petition, Father submitted a folder containing

other “evidence” to the trial court. This folder included a letter purportedly sent by an

Assistant State Public Defender stating that Father was “ordered to have no contact

with [his] daughters” and that the Gallia County Prosecutor’s Office had a file that

“included cards that [Father] sent to [his] daughters.” The trial court found that none of

the documents Father submitted were “relevant” and “did not consider them in making

its findings.” We disagree with the court’s relevancy finding concerning the letter

because it tends to make the existence of the no contact order and confiscated

communications more probable. See Evid.R. 401. However, the letter clearly

constitutes inadmissible hearsay. See Evid.R. 801(C). Moreover, it does not appear

that the petitioner ever received a copy of the documents Father submitted or had an

opportunity to object to them.

{¶23} Father attached what appears to be a copy of the alleged “no contact”

order to his appellate brief. However, he did not offer the order as evidence at the trial

level. Therefore, it is not part of the trial record, and we cannot consider it. See App.R.

9.5

4 At the hearing on the petition, Father indicated he believed the order did not include his children and the prosecutor’s office improperly seized the letters and cards. 5 The parties included many other documents in their briefs that we cannot consider because they are not part of the record. Father, T.C., and B.C. submitted affidavits. Father also submitted a copy of a docket Jackson App. Nos. 11CA5 & 11CA6 12

{¶24} Thus the only evidence of the “no contact” order and confiscated cards

and letters was Father’s own self-serving testimony, which the trial court was free to

disbelieve. See S.L.N., supra, at ¶23. Therefore, the trial court’s finding that Father’s

consent to the adoption was unnecessary because he failed, without justifiable cause,

to communicate with his children for the requisite time period was not against the

manifest weight of the evidence. We overrule Father’s first assignment of error to the

extent it challenges this finding. This decision renders moot Father’s additional

contention that the court erred when it found that his consent was not required because

he failed, without justifiable cause, to provide for the maintenance and support of the

children for the requisite time period.

VI. Best Interest

{¶25} In his third assignment of error, Father contends that the trial court never

held a best interest hearing and never made a best interest finding before it granted the

adoption petitions. R.C. 3107.11(A) provides:

After the filing of a petition to adopt an adult or a minor, the court shall fix a time and place for hearing the petition. * * * At least twenty days before the date of hearing, notice of the filing of the petition and of the time and place of hearing shall be given by the court to all of the following:

(1) Any * * * person whose consent to the adoption is required by this chapter but who has not consented;

(2) A person whose consent is not required as provided by division (A), (G), (H), or (I) of section 3107.07 of the Revised Code and has not consented;

*** {¶26} R.C. 3107.14(C) provides:

If, at the conclusion of the hearing, the court finds that the required

in a case involving a paternity complaint for support and a note purportedly from the trial judge in this matter. Jackson App. Nos. 11CA5 & 11CA6 13

consents have been obtained or excused and that the adoption is in the best interest of the person sought to be adopted as supported by the evidence, it may issue, subject to division (C)(1)(a) of section 2151.86, section 3107.064, and division (E) of section 3107.09 of the Revised Code, and any other limitations specified in this chapter, a final decree of adoption * * *.

{¶27} “Thus, an adoption proceeding is a two-step process involving a ‘consent’

phase and a ‘best-interest’ phase. Even if a court determines that a parent’s consent is

not required, it must still make a separate determination that the adoption is in the

child’s best interest.” In re Adoption of Jordan (1991),

,

. See In re Adoption of Walters,

,

,

, citing R.C. 3107.14(C). But contrary to Father’s contention, nothing

“either requires or prevents a separate hearing for the consent and best-interests

portions of an adoption proceeding.” Id. at ¶21. “[A]lthough a court may choose to hold

separate hearings on consent and the best interests of the child, there is no requirement

to do so. One hearing to address both requirements is sufficient, provided notice of the

adoption hearing pursuant to R.C. 3107.11(A) is afforded the biological parent.” Id.

{¶28} Here, the record indicates that the trial court held the best interest hearing

at the same time it held the consent hearing. At the hearing, the trial court specifically

told the petitioner’s attorney: “Basically this is your motion for the Court, so it’s your job

to prove to me that this is lawful and in the child’s best interest * * *.” (Emphasis

added). In addition, in discussing Father’s convictions for assault and abduction, the

trial judge noted that the judgment entry related to these convictions “is going to tell me

something about how long you’re going to be and what affect that has on… it certainly

goes to best interests * * *.” Therefore, we reject Father’s contention that the court

failed to conduct a best interest hearing. Jackson App. Nos. 11CA5 & 11CA6 14

{¶29} Moreover, the trial court did make a “best interest” finding. Admittedly, in

the January 18, 2011 judgment entries where the trial court finds that Father’s consent

to the adoptions is unnecessary, the court purported to grant the adoption petitions and

made no best interest findings. But in the final decrees of adoption, the trial court

specifically found that granting the petitions was “in the best interest” of the children.

Therefore, we reject Father’s argument that the court failed to make the requisite best

interests finding. And since Father does not contend that the trial court erroneously

found that adoption was in the best interest of the children, we do not address that

issue. Accordingly, we overrule Father’s third assignment of error.

VII. Summary

{¶30} We overrule Father’s second, third, and fourth assignments of error. We

overrule Father’s first assignment of error to the extent he challenges the court’s finding

that he lacked justifiable cause for not communicating with the children for the requisite

time period. His first assignment of error is moot to the extent he challenges the court’s

finding that he lacked justifiable cause for not supporting the children for the requisite

time period. Accordingly, we affirm the trial court’s judgment.

JUDGMENT AFFIRMED. Jackson App. Nos. 11CA5 & 11CA6 15

JUDGMENT ENTRY

It is ordered that the JUDGMENT IS AFFIRMED and that Appellant shall pay the costs.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing the Jackson County Common Pleas Court, Probate Division, to carry this judgment into execution.

Any stay previously granted by this Court is hereby terminated as of the date of this entry.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions.

Abele, J.: Concurs in Judgment and Opinion. Kline, J.: Concurs in Judgment and Opinion as to Assignment of Error III; Concurs in Judgment Only as to Assignments of Error I, II, & IV.

For the Court

BY: ________________________________ William H. Harsha, Presiding Judge

NOTICE TO COUNSEL

Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.