[Cite as In re Adoption of Z.A.,

.]

COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT

JUDGES: IN THE MATTER OF: THE : Hon. Sheila G. Farmer, P.J. ADOPTION OF Z.A. - O.J. : Hon. W. Scott Gwin, J. : Hon. William B. Hoffman, J. : : : Case No. 16-CA-05 : : : OPINION

CHARACTER OF PROCEEDING: Civil appeal from the Licking County Court of Common Pleas, Probate Division, Case No. 20155108

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: May 25, 2016

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

KAREN H. WENTWORTH THOMAS CRISCO 20 1/2 N. PARK PLACE BOX 4805 NEWARK, OH 43058 Licking County, Case No. 16-CA-05 2

Gwin, J.

{¶1} Father/appellant appeals the December 29, 2015 and January 4, 2016

judgment entries of the Licking County Court of Common Pleas, Probate Division,

granting Stepfather/appellee’s petition to adopt Z.A.-O.J. without Father/appellant’s

consent.

Facts & Procedural History

{¶2} Z.A.-O.J., born August 20, 2007, is the biological child of appellant/Father,

T.C. The child’s mother, A.J., is married to appellee, J.J., the child’s stepfather. On

October 28, 2015, appellee filed a petition to adopt Z.A.-O.J. Appellee alleged that

appellant’s consent for the petition to adopt was not required because appellant failed,

without justifiable cause, to have de minimus contact with the child for at least a year

preceding the petition and/or failed, without justifiable cause, to provide for the

maintenance and support of the child as required by law or judicial decree for at least a

year preceding the petition. A.J. consented to the adoption, but appellant objected.

{¶3} On October 28, 2015, the trial court issued a judgment entry setting a

hearing and ordering notice pursuant to R.C. 3107.11. Notice of the hearing was sent to

appellant at the Southeastern Correctional Institution by certified mail, which was returned

signed on November 20, 2015. The notice was a completed copy of Probate Form 18.2.

On November 30, 2015, appellant filed a motion to convey. Appellant also filed multiple

ex parte letters with the trial court.

{¶4} The trial court held the adoption hearing on December 29, 2015. The trial

court first held a hearing on the issue of consent and found the consent of appellant was

not necessary. Immediately after the consent hearing, the trial court conducted a hearing Licking County, Case No. 16-CA-05 3

as to the best interest of the child. The report of the certified adoption assessor, filed with

the trial court, stated the assessor recommended the trial court grant the adoption. The

trial court determined it was in the best interest of the child to grant appellee’s adoption

petition.

{¶5} On December 29, 2015, the trial court issued a judgment entry finding

appellant’s consent was not required because he failed, without justifiable cause, to: (1)

provide more than de minimus contact with the child and (2) provide for the maintenance

and support of the child as required by law or judicial decree, for a period of at least one

year immediately preceding the filing of the adoption petition. The trial court stated in its

judgment entry that appellant has been in prison since 2009 and his sentence does not

expire until 2018. Further, appellant has had no contact with the child since October

2008. The trial court stated while there was no child support order, there was a common

law duty of support and there was no gifts or support to the child. The trial court issued

a final decree of adoption on December 29, 2015.

{¶6} On January 4, 2016, the trial court issued findings in accordance with its

December 29th entries. The trial court stated A.J. was never married to appellant.

Appellee married A.J. in 2012 and appellee and the child have bonded with one another.

The trial court further stated the child does not know appellant because appellant has not

seen the child since October 3, 2008, a period which exceeds seven (7) years. The trial

court found appellant has not provided any financial support for the child since October

3, 2008. The trial court determined that, despite the lack of judicial decree ordering

support, appellant had a common law duty to provide financial support even if this support Licking County, Case No. 16-CA-05 4

was minimal because of his incarceration. Appellant provided no gifts, birthday, or

Christmas cards.

{¶7} The trial court found appellant’s prison sentence does not expire until

September 20, 2018 and appellant had no contact with the child since October 3, 2008;

no correspondence, no telephone calls, and no e-mails via JPAY. Further, the trial court

stated there was no evidence presented that appellant attempted to obtain court-ordered

visitation. The trial court found the fact that appellant had been in jail and then in prison

was as a result of his own wrongdoing and therefore, was not justifiable cause for the

failure to communicate or support. The trial court considered appellee’s Exhibits 1, 2,

and 3, which were certified copies of judgment entries of conviction of appellant from the

Franklin County Court of Common Pleas, with two of these felony convictions for

appellant having committed offenses of violence. The trial court stated that, as a matter

of law and pursuant to the Rules of Evidence, it could not consider the ex parte letters

sent by appellant to the court, other than for the fact that appellant did not consent to the

adoption. The trial court also found letters sent by others on appellant’s behalf were

inadmissible hearsay.

{¶8} Appellant appeals the December 29, 2015 and January 4, 2016 judgment

entries of the Licking County Court of Common Pleas, Probate Division, and assigns the

following as error:

{¶9} “I. THE TRIAL COURT ERRED IN FINDING CAUSE FOR NON-SUPPORT

AND NON-CONTACT JUSTIFIABLE UNDER R.C. 3107.07(A).

{¶10} “II. THE COURT ERRED BY DENYING DUE PROCESS TO CONTESTING

PARENT BY NOT ALLOWING TESTIMONY, DEPOSITION, THE OPPORTUNITY TO Licking County, Case No. 16-CA-05 5

PRESENT ADDITIONAL EVIDENCE, CROSS EXAMINATION OF THE EVIDENCE

AGAINST ME THEREFORE DENYING ME MY RIGHT TO BE HEARD.

{¶11} “III. THE COURT ERRED IN NOT AFFORDING BIOLOGICAL PARENT

WITH PROCEDURAL RIGHT TO CONTEST ISSUE OF BEST INTERESTS OF THE

CHILD.

{¶12} “IV. THE COURT ERRED BY APPLYING THE WRONG BURDEN OF

PROOF.

{¶13} “V. THE COURT ERRED IN NOT FINDING PETITIONER’S PROOF OF

INCARCERATION AS SOLE REASONING FOR FAILURE TO COMMUNICATE AND

SUPPORT BEING AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

{¶14} “VI. THE COURT ERRED IN ALLOWING TESTIMONY CONTRADICTIVE

TO THE CLAIMS MADE IN THE PETITION.”

{¶15} We first note that appellant has failed to file a transcript in accordance with

App.R. 9(B). Pursuant to App.R. 9(B)(1), “it is the obligation of the appellant to ensure

that the proceedings the appellant considers necessary for inclusion in the record,

however those proceedings were recorded, are transcribed in a form that meets the

specifications of App.R. 9(B)(6).” Though the file contained an audio recording of the

adoption hearing, it is clear from the Staff Notes to App.R. 9 that while a trial court may

choose to record the proceedings through the use of an audio-recording device,

“regardless of the method of recording the proceedings, a transcript is required for the

record on appeal * * * For parties who cannot afford to have a transcript prepared, existing

case law authorizes the use of a statement of proceedings under App.R. 9(C).” 2011

Staff Note, Appellate Rule 9. Licking County, Case No. 16-CA-05 6

{¶16} In this case, appellant did not file a transcript or an App.R. 9(C) statement

of proceedings of the hearing held on the petition for adoption. When portions of the

transcript or statement of proceedings necessary for resolution of the assigned error are

omitted from the record, the reviewing court has nothing to pass on and thus, as to those

assigned errors, the court has no choice to presume the validity of the lower court’s

proceedings. Knapp v. Edwards Laboratories,

,

(1980).

I.

{¶17} In his first assignment of error, appellant argues the trial court abused its

discretion in finding his failure to communicate and/or support was not justifiable.

Appellant contends A.J. significantly interfered with his ability to communicate with the

child as appellant attempted to contact the child and A.J. refused his calls and letters.

Further, that since there was no judicial decree of support and A.J. never requested

financial assistance from appellant, the finding that his failure to support was not justifiable

was an abuse of discretion. Finally, appellant contends his incarceration provided

justifiable cause for any failure to communicate and/or support.

{¶18} The Supreme Court of the United States has recognized that natural

parents have a fundamental liberty interest in the care, custody, and management of their

children. Stanley v. Illinois,

,

,

(1972). A

parent’s right to raise a child is an essential civil right. In re Murray, 52 Ohio S.3d 155,

(1990). An adoption permanently terminates the parental rights of a

natural parent. In re Adoption of Reams,

,

(10th Dist.

1989). Thus, courts must afford the natural parent every procedural and substantive Licking County, Case No. 16-CA-05 7

protection allowed by law before depriving the parent of the right to consent to the

adoption of his child. In re Hayes,

,

(1997).

{¶19} The termination of a natural parent’s right to object to the adoption of his or

her child requires strict adherence to the controlling statutes. In re Adoption of Kuhlmann,

,

(1st Dist. 1994). Ordinarily, the written consent of

a minor child’s natural parents is required prior to adoption. R.C. 3107.07 provides

exceptions to this requirement if the parent of the minor has failed, without justifiable

cause, to provide more than de minimus contact with the minor or to provide for the

maintenance and support of the minor as required by law or judicial decree for a period

of at least one year immediately preceding the filing of the adoption petition. R.C.

3107.07(A).

{¶20} Appellee has the burden of proof in this action. “The party petitioning for

adoption has the burden of proving, by clear and convincing evidence, that the parent

failed to communicate with the child during the requisite one-year period and that there

was no justifiable cause for the failure of communication.” In re Adoption of Holcomb,

,

(1985). “No burden is to be placed upon the non-

consenting parent to prove that his failure to communicate was justifiable.”

{¶21} “Once the clear and convincing standard has been met to the satisfaction

of the probate court, the reviewing court must examine the record and determine if the

trier of fact had sufficient evidence before it to satisfy this burden of proof.” In re Adoption

of Holcomb,

,

(1985). The determination of the probate

court should not be overturned unless it is unsupported by clear and convincing evidence.

Clear and convincing evidence is the “measure or degree of proof that will produce in Licking County, Case No. 16-CA-05 8

the mind of the trier of fact a firm belief or conviction as to the allegations sought to be

established.” In re: Estate of Haynes,

,

(1986).

{¶22} With respect to a failure to support, the Ohio Supreme Court stated, “[t]he

question of whether justifiable cause for failure to pay child support has been proven by

clear and convincing evidence in a particular case is a determination for the probate court

and will not be disturbed on appeal unless such determination is against the manifest

weight of the evidence.” In re Adoption of M.B.,

,

,

.

{¶23} Therefore, for appellee to prevail in this adoption proceeding without

appellant’s consent, he must prove by clear and convincing evidence that: (1) there has

been a failure of communication or support by appellant for the one-year period and (2)

the failure is unjustified. Appellee must also establish the failure to communicate or

support was without justifiable cause. If the petitioner meets his burden of proof, then the

natural parent has the burden of going forward with evidence to show some justifiable

cause for his or her failure to support or contact the child. However, the burden of proof

never shifts from the petitioner. In re Adoption of Bovett,

,

(1987).

{¶24} In its judgment entry, the trial court found appellant’s prison sentence does

not end until 2018, appellant has not had contact with the child since 2008, and there has

been no correspondence, telephone calls, e-mails via JPAY, or attempt to obtain court-

ordered visitation. Based upon these findings by the trial court, we find the trial court did

not abuse its discretion in determining appellant failed to communicate for the one-year

period prior to the adoption petition. As to any evidence or testimony provided at the Licking County, Case No. 16-CA-05 9

hearing, when portions of the transcript or statement of proceedings necessary for

resolution of the assigned error are omitted from the record, we have nothing to pass on

and thus, as to those assigned errors, we have no choice to presume the validity of the

lower court’s proceedings. Knapp v. Edwards Laboratories,

,

(1980).

{¶25} Appellant next contends the trial court erred in finding his failure to maintain

and support was not justifiable because there was no judicial decree of support and A.J.

never requested financial assistance from appellant. Appellant argues he only made $24

per week at the prison job and this money was used for hygiene items.

{¶26} Although the trial court did find in its judgment entry there was no judicial

decree ordering appellant to provide child support, R.C. 3107.07 is written in the

conjunctive. It is the failure to provide for the maintenance and support of the child as

required by law or judicial decree. Thus, appellant was still under a statutory and common

law duty to support his child. In re Adoption of A.S., 5th Dist. Licking No. 10-CA-140,

; R.C. 2919.21(A)(2). It is appellant’s position that because he was in

prison, he was unable to provide support for the child. However, appellant made no

attempts “within his means” to provide support, such as a portion of the money he earns

from his employment at the prison. See R.C. 2919.21(D). As noted by the trial court,

appellant did not provide any financial support, even if the support was minimal because

of his incarceration. Despite the lack of a judicial decree, appellant was still obligated

under the law to provide support to this child, which he failed to do. In re Adoption of

A.S., 5th Dist. Licking No. 10-CA-140,

; R.C. 2919.21(A)(2). Licking County, Case No. 16-CA-05 10

{¶27} Finally, appellant argues his incarceration provided justifiable cause for any

failure to communicate and/or maintain support. The trial court found appellant was in jail

and in prison as a result of his own wrongdoings and this is not justifiable cause for the

failure to communicate and/or maintain support. Incarceration alone is not a justifiable

excuse, even if it lasts for the entire period considered by the court. In re D.R., 7th Dist.

Belmont No. 11 BE 11,

. Rather, incarceration is only one factor to

consider when determining whether a parent has justifiable cause for failing to provide

maintenance and support for the child. Frymier v. Crampton, 5th Dist. Licking No. 02 CA

8,

. Here, there is no evidence appellant made an attempt to support his

child and there is no evidence he was prevented from providing some support during the

period in question. Further, appellant created his own circumstances and his own violent

acts caused the subsequent lack of support. See Askew v. Taylor, 5th Dist. Stark No.

2004CA00184,

; In re Adoption of A.S., 5th Dist. Licking No. 10-CA-140,

; R.C. 2919.21(A)(2).

{¶28} Appellant’s first assignment of error is overruled.

II.

{¶29} In appellant’s second assignment of error, he contends the trial court erred

by not granting his motion to convey to allow him to testify at the adoption hearing and by

not permitting him to enter an official deposition.

{¶30} We have frequently noted that an incarcerated prisoner has no absolute due

process right to attend a civil trial to which he is a party. Rachel v. Rachel, 5th Dist. Stark

No. 2012CA00243,

; Alexander v. Alexander, 5th Dist. Muskingum No.

CT–6–0061, 2007–Ohio–3933; Wagner v. Strip, 5th Dist. Licking No. 11–CA–82, 2012– Licking County, Case No. 16-CA-05 11

Ohio–4954, appeal not allowed,

, 2013–Ohio–553,

;

Allen v. Allen, 5th Dist. Muskingum No. CT2013–0015, 2013–Ohio–2729. Whether a

prisoner should be permitted to attend a civil trial to personally argue his case depends

upon the particular circumstances of each case. Abuhilwa v. Board, 4th Dist. Pickaway

No. 08CA3,

. Further, the decision whether or not to allow an

incarcerated party to be present is within the sound discretion of the trial court. Miklas v.

Miklas, 7th Dist. Belmont No. 14 BE 46,

. An abuse of discretion is “more

than an error of law or judgment; it implies that the court’s attitude is unreasonable,

arbitrary, or unconscionable. Blakemore v. Blakemore,

,

(1983).

{¶31} The trial court denied appellant’s motion to convey him from prison to the

hearing, although the trial court did acknowledge that through his ex parte letters,

appellant stated he did not consent to the adoption and was objecting to a finding that his

consent was not required for the adoption. In his motion to convey, appellant provides

no information as to the type of evidence he sought to present if he was conveyed to the

hearing. However, appellant indicates in his brief he wished to provide his own testimony

that A.J. refused to take his calls and letters he sent to the child through A.J.’s relatives

were not given to the child. Appellant also states in his brief he sought to attend the

hearing to argue he was not required to provide maintenance and support to the child

because there was no judicial decree of support in place.

{¶32} Given the type of evidence appellant contends he could have offered,

appellant could have presented this testimony via deposition or affidavit. See In re Joseph

P., 6th Dist. Lucas No. L-02-1385,

. Though appellant argues the trial Licking County, Case No. 16-CA-05 12

court erred in not permitting him to submit a deposition, there is no indication in the record

appellant attempted to file either an affidavit or a deposition. Nothing in the record

indicates appellant made any type of request to the trial court with regards to deposition

costs and/or a request to file a deposition or affidavit. See In re H.S., 12th Dist. Clermont

No. CA2013-02-012,

.

{¶33} Further, as detailed above in appellant’s first assignment of error, his legal

argument regarding the duty of maintenance and support fails. Appellant admits he

makes $24.00 per month at a prison work job and he did not send or attempt to send any

of this monthly amount to A.J. Simply because there was not judicial decree in place with

regards to the maintenance and support of the child does not relieve appellant of this

duty. The statutory language at issue does not require a petitioner to demonstrate both

the natural parents’ failure to support the child and to communicate with the child; the

statute is to be read in the disjunctive. In re Adoption of McDermitt,

,

(1980). Therefore, in light of the fact that appellant’s legal argument

regarding his failure to maintain and support the child fails, the trial court did not abuse

its discretion in denying appellant’s motion to convey.

{¶34} Appellant’s second assignment of error is overruled.

III.

{¶35} In his third assignment of error, appellant argues the trial court erred in not

clearly noting in the notice of hearing that both the issues of consent and best interest

would be considered at the December 29, 2015 hearing. Further, appellant contends the

trial court erred in not holding a separate best interest hearing. Licking County, Case No. 16-CA-05 13

{¶36} The notice of hearing sent to appellant by certified mail stated the consent

of appellant is not required because he has failed to communicate with the minor child or

provide for the maintenance or support for a period of at least one year. It stated the time

and place of the hearing on the petition.

{¶37} R.C. 3107.11 requires the publication must give notice of the filing of the

petition and must list the time and place of the hearing. The Supreme Court’s Rules of

Superintendence Standard Probate Forms, Rule 51, Form 18.2, sets forth the form to be

used in giving notice of hearing on the petition for an adoption. The notice which was

sent to appellant by certified mail is identical to the form promulgated by the Rules.

Accordingly, we find the trial court did not err in utilizing the notice as provided by the

standard probate forms. In re Walters, 5th Dist. Fairfield No. 2005-CA-65, 2005-CA-66,

.

{¶38} Additionally, the trial court conducted a separate best interest hearing

immediately after the hearing on consent. See In the Matter of the Adoption of A.S., 5th

Dist. Licking No. 10-C

. The trial court considered the report by

the certified adoption assessor in concluding the adoption was in the best interest of the

child.

{¶39} Appellant’s third assignment of error is overruled.

IV.

{¶40} In his fourth assignment of error, appellant contends the trial court erred and

abused its discretion in not properly applying the burden of proof. In our discussion of

appellant’s first assignment of error, we outlined the appropriate burden of proof in an

adoption case. Upon our review of the trial court’s judgment entries, we find the trial court Licking County, Case No. 16-CA-05 14

did not abuse its discretion in its application of the burden of proof in the instant case.

Further, any argument as to whether the trial court correctly applied the burden of proof

during the adoption hearing is not supported by the record on appeal as we must presume

the regularity of the proceedings below. Knapp v. Edwards Laboratories,

,

(1980). Appellant’s fourth assignment of error is overruled.

V.

{¶41} In his fifth assignment of error, appellant argues the trial court’s

determination was against the manifest weight of the evidence because appellee only

provided evidence of appellant’s incarceration, which does not show any lack of

communication or support.

{¶42} A judgment that is supported by some competent, credible evidence will not

be reversed by a reviewing court as against the manifest weight of the evidence. C.E.

Morris Co. v. Foley Construction Co.,

(1978). We must give deference

to the findings of the trial court since it is in the best position to observe the witnesses and

weigh their credibility. Seasons Coal Co., Inc. v. City of Cleveland,

(1984). Courts have found that imprisonment, along with other factors, can be used to

support a finding that a parent’s consent is not needed for an adoption. In re D.R., 7th

Dist. Belmont No. 11 BE 11,

.

{¶43} Here, while the trial court did find in its judgment entry that appellant has

been in prison since 2009 and will not be released until 2018, the trial court also found he

had no contact with the child since on or before October 3, 2008; no correspondence,

telephone calls, or e-mails, he did not attempt to obtain visitation, and he did not send Licking County, Case No. 16-CA-05 15

any gifts, birthday, or Christmas cards. Thus, the trial court considered factors other than

appellant’s incarceration in its determination that appellant’s consent was not required.

{¶44} As to appellant’s argument that appellee only provided evidence of

appellant’s incarceration at the adoption hearing, given the lack of transcript or App.R.

9(C) statement, we must presume the regularity of the proceedings below and find the

trial court’s findings with regard to communicate or support are not against the manifest

weight of the evidence. Knapp v. Edwards Laboratories,

,

(1980).

VI.

{¶45} In his final assignment of error, appellant argues the testimony of A.J. was

contradictory and thus the trial court erred and abused its discretion in finding her

testimony credible.

{¶46} The weight to be given to the evidence and the credibility of the witnesses

and issues for the trier of fact. In re T.F.H., 5th Dist. Tuscarawas No. 2014 AP 0040;

State v. Jamison,

,

(1990). The trier of fact “has the

best opportunity to view the demeanor, attitude, and credibility of each witness.” Davis v.

Flickinger,

,

,

. Accordingly, the weight

to be given to the evidence and credibility of A.J. is an issue for the trial court, and this

Court must give deference to the trial court in such determinations. Further, due to the

lack of transcript or App.R. 9(C) statement, we must presume the regularity of the

proceedings below. Knapp v. Edwards Laboratories,

,

(1980). Appellant’s sixth assignment of error is overruled. Licking County, Case No. 16-CA-05 16

{¶47} Based on the foregoing, we overrule appellant’s assignments of error. The

December 29, 2015 and January 4, 2016 judgment entries of the Licking County Court of

Common Pleas, Probate Division, are affirmed.

By Gwin, J.,

Farmer, P.J., and

Hoffman, J., concur