[Cite as In re Adoption of A.N.W., 2016-Ohio-463.]

STATE OF OHIO, BELMONT COUNTY 

IN THE COURT OF APPEALS 

SEVENTH DISTRICT 

IN THE MATTER OF ) CASE NO. 15 BE 0071 

) 

THE ADOPTION OF A.N.W ) 

AND L.D.W ) 

) 

) OPINION 

) 

CHARACTER OF PROCEEDINGS: Probate Appeal from the Probate Court 

of Belmont County, Ohio 

Case No. 15AD11 

JUDGMENT: Reversed and Vacated. 

APPEARANCES: 

For Plaintiff-Appellant: Atty. Mary F. Corabi 

 Corabi Law Office 

 424 Market Street 

 Steubenville, Ohio 43952 

For Defendant-Appellee: Atty.Michael Shaheen

 Shaheen Law Office 

128 South Marietta St. 

P.O. Box 579 

St. Clairsville, Ohio 43950 

JUDGES: 

Hon. Carol Ann Robb 

Hon. Gene Donofrio 

Hon. Mary DeGenaro 

Dated: February 4, 2016 

 
[Cite as In re Adoption of A.N.W., 2016-Ohio-463.]

ROBB, J. 

{¶1} Appellant R.W. appeals the decision of Belmont County Probate Court 

finding Appellant’s consent was not needed for Appellee S.K.K.W. to adopt the minor 

children. In finding consent was not needed, the probate court made two findings. 

First, it found Appellant failed, without justifiable cause, to provide maintenance and 

support for at least one year preceding the filing of the adoption petition (no support). 

Second, it found Appellant failed, without justifiable cause, to provide more than de 

minimis contact with the minor children for at least one year preceding the filing of the 

adoption petition (no contact). Appellant asserts each finding was incorrect. As to 

the support finding, she contends there was justifiable cause for failing to support 

because she was not ordered to pay child support. As to the contact finding, 

Appellant contends she did not receive notice that this was one of the reasons 

Appellee was claiming Appellant’s consent was not needed. 

{¶2} We find merit with both arguments. The probate court’s decision that 

Appellant’s consent was not needed for the adoption of the minor children is reversed 

and vacated. 

Statement of the Facts 

{¶3} Appellant and D.W. (Father) were divorced in Harrison County, Ohio in 

January 2008. Appellant and Father had two children – A.N.W. date of birth 12/21/00 

and L.D.W. date of birth 1/5/05. Following the divorce, Appellant was named 

residential parent and Father received approximately equal parenting time. Father 

paid court ordered child support. 

{¶4} Father married Appellee in 2011. 

{¶5} After several issues arose, one of which was substance abuse, Father 

filed a motion for reallocation of parental rights and asked for Appellant’s visitation to 

be supervised. 11/15/13 Motion (Harrison County). An Agreed Entry was issued in 

March 2014. Father was designated residential parent, Appellant received 

supervised visitation, and Father’s child support order was suspended. 3/10/14 

Agreed J.E. (Harrison County). In that entry, upon the request of Father and 

Appellant, no child support was awarded; Appellant was not required to pay child 

support. 3/10/14 Agreed J.E. (Harrison County). However, as to the non-covered 
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medical expenses, Appellant was responsible for 40% of them. 3/10/14 Agreed J.E. 

(Harrison County). 

{¶6} Father filed another motion regarding parenting time in November 2014. 

11/3/14 Motion (Harrison County). An order regarding that motion was issued in 

December 2014. In that order, Appellant’s visitation was suspended and she was 

only permitted to have contact with the children at the discretion of Father. 12/1/14 

J.E. (Harrison County). The previous child support order was not altered in the 

December 2014 order. 

{¶7} A review hearing for the December 2014 order occurred on May 27, 

2015. Appellant’s visitation remained at the sole discretion of the Father. Appellant’s 

boyfriend was ordered to have no contact with the minor children. 5/27/15 J.E. 

(Harrison County). 

{¶8} On June 9, 2015, Appellee filed a Petition for Adoption of Minor 

pursuant to R.C. 3107.05, with the Belmont County Probate Court for each of her 

minor step-children. In each petition it states Father consents to the adoptions and 

Appellant’s consent is not required. 6/9/15 Petitions. The ground for consent not 

being required was, “The parent has failed without justifiable cause 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 or 

the placement of the minor in the home of the petitioner.” 6/9/15 Petitions. The de 

minis contact ground was not marked on either petition. 6/9/15 Petitions. 

{¶9} Appellant received notice of the petitions and of the July 17, 2015 

hearing on the petitions. 6/18/15. Notice. The notice indicated the petitions alleged 

her consent was not required because of a failure, without justifiable cause, to 

provide support and maintenance. 6/18/15 Notice. 

{¶10} A step-parent adoption home study was completed; it recommended 

the adoption and indicated both minor children wanted the adoption to be granted. 

7/9/15 Home Study. 

{¶11} Following continuances, the hearing occurred on September 18, 2015. 

The court noted in the judgment entry that the adoption petitions did not allege lack of 

contact. However, the probate court indicated testimony, which was not objected to 

by Appellant, evinced lack of contact with the children. 10/21/15 J.E. The probate 
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court acknowledged that “the parties agreed that there would be no child support paid 

by respondent [Appellant] to the petitioner [Father] at that time.” 10/21/15 J.E. The 

probate court then reasoned, “The evidence before the Court shows that no child 

support was paid by the respondent. Additionally, in addition [sic] there were never 

any gifts, monies, presents or other financial support of the children regardless of the 

child support order.” 10/21/15 J.E. The probate court further found that Appellant 

had “no contact with the minor children, but for one incidental contact when the 

children were visiting a family member.” 10/21/15 J.E. Consequently, it concluded: 

[R]espondent [Appellant] failed without justifiable cause to provide for 

the maintenance and support of the minor children as required by law 

or judicial decree for a period of at least one year immediately 

preceding the filing of the adoption petition AND * * * failed without 

justifiable cause to provide more than de minimis contact with the minor 

children for a period of at least one year immediately preceding the 

filing of the petition for adoption.” 

10/21/15 J.E. 

{¶12} Appellant timely appealed from that final order. In re Adoption of Greer, 

70 Ohio St.3d 293, 638 N.E.2d 999 (1994), paragraph one of the syllabus (“A trial 

court's finding pursuant to R.C. 3107.07 that the consent to an adoption of a party 

described in R.C. 3107.06 is not required is a final appealable order.”). 

First Assignment of Error 

“The trial court erroneously found that the biological mother, without justifiable 

cause, failed to provide support for more than one year preceding the filing of the 

adoption and that the consent of the respondent is not necessary to proceed with the 

adoption.” 

{¶13} The analysis in any adoption case begins with the recognition that the 

right of a natural parent to the care and custody of his or her children is one of the 

most precious and fundamental in law. In re Adoption of Masa, 23 Ohio St.3d 163, 

165, 492 N.E.2d 140 (1986), citing Santosky v. Kramer (1982), 455 U.S. 745, 753, 

102 S.Ct. 1388, 1394 (1982). This is because adoption terminates fundamental 

rights. Masa citing R.C. 3107.15(A)(1). Therefore, “[a]ny exception to the 
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requirement of parental consent must be strictly construed so as to protect the right 

of natural parents to raise and nurture their children.” In re Schoeppner, 46 Ohio 

St.2d 21, 24, 345 N.E.2d 608 (1976). 

{¶14} R.C. 3107.07 governs whether parental consent to adopt is required. In 

the case at hand it was alleged that parental consent of the natural mother, 

Appellant, was not required based on R.C. 3107.07(A). That subsection states 

parental consent is not required if the parent either failed to communicate with or 

failed to support the child for a minimum of one year preceding the filing of the 

adoption petition and there was no justifiable cause for the failure. R.C. 3107.07(A). 

It is Appellee’s burden to prove by clear and convincing evidence both of those 

elements; petitioner must prove by clear and convincing evidence that the natural 

parent has failed to support the child for the requisite one-year period, and this failure 

was without justifiable cause. In re Adoption of M.B., 131 Ohio St.3d 186, 2012-

Ohio-236, 963 N.E.2d 142, ¶ 17 quoting In re Adoption of Bovett, 33 Ohio St.3d 102, 

515 N.E.2d 919 (1987), paragraph one of the syllabus, following Masa, 23 Ohio St.3d 

163. 

{¶15} The probate court undertakes a two-step analysis in determining 

whether the petitioner met his or her burden under R.C. 3107.07(A). In re Adoption 

of M.B. at ¶ 23. First, if dealing with support, the court must determine if a parent 

made a “financial contribution that comports with the requirements of R.C. 

3107.07(A) to contribute maintenance and support.” Id. Second, if it finds a failure of 

support, it must “determine whether justifiable cause for the failure has been proved 

by clear and convincing evidence.” Id. 

{¶16} The Ohio Supreme Court has held, “it is a question of fact whether a 

parent of a minor has willfully failed to provide for the maintenance and support of a 

minor child.” Id. at ¶ 21. A probate court’s judgment on the issues will “not be 

tampered with absent an abuse of discretion.” Id. Furthermore, “[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.” Id. at ¶ 24 quoting In re Adoption of Masa, 23 Ohio St.3d 

163, at paragraph two of the syllabus and citing In re Adoption of Bovett, 33 Ohio 
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St.3d 102. A reviewing court will usually affirm the judgment of the probate court in 

adoption proceedings as long as the record contains some competent and credible 

evidence supporting the probate court's findings. In re Adoptions of Groh, 153 Ohio 

App.3d 414, 2003-Ohio-3087, ¶ 31. See C.E. Morris Co. v. Foley Construction Co., 

54 Ohio St.2d 279, 376 N.E.2d 578 (1978). 

{¶17} This first assignment of error deals with providing maintenance and 

support. Maintenance and support are not defined in R.C. 3107.07(A). In re Adoption 

of M.B., 2012-Ohio-236 at ¶ 20. Therefore, we give them their ordinary meaning. 

Maintenance is defined as “[f]inancial support given by one person to another.” Id. 

citing Black's Law Dictionary 1039 (9th Ed.2009). Support is defined as 

“[s]ustenance or maintenance; esp., articles such as food and clothing that allow one 

to live in the degree of comfort to which one is accustomed.” In re Adoption of M.B. at 

¶ 20 citing Black's Law Dictionary 1577 (9th Ed.2009). 

{¶18} R.C. 3107.07(A) requires maintenance and support as “required by law 

or judicial decree.” De minimis monetary gifts from a biological parent to a minor 

child have been found to not constitute maintenance and support, because they are 

not payments as required by law or judicial decree. In re Adoption of M.B. at ¶ 20. 

{¶19} Appellant admits she did not pay child support and that she did not offer 

any in-kind monetary gifts. She acknowledges that within the applicable time frame 

she did not purchase any school supplies or clothes for the children. Nor did she 

give them any gifts for birthdays or holidays. Tr. 40, 45, 48. Thus, the issue before 

us is not whether she failed to provide support and maintenance, but rather was her 

failure justified. She claims her failure to provide maintenance and support was 

justified because the Harrison County Common Pleas Court, which presided over the 

custody issues, specifically indicated she was not required to pay child support. 

{¶20} Although the Belmont County Probate Court acknowledged there was 

no support order, it still found Appellant failed, without justifiable cause, to provide for 

the maintenance and support of the minor children. It reached this conclusion 

because no support was paid and because gifts, monies, presents or financial 

support was not provided, “regardless of the child support order.” 10/29/15 J.E. 

{¶21} Appellee contends this determination was correct and cites to a 

decision from our court, In re Adoption of M.S. and J.S., 7th Dist. No. 11BE14, 
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11BE15, 2011-Ohio-6403, for the proposition that a party is not relieved from her duty 

to support her children simply because no child support is ordered. 

{¶22} In analyzing the issue, our prior decision is addressed first. In re 

Adoption of M.S. and J.S. does not stand for the proposition Appellee contends. In 

that case, four years prior to the filing of the petition, the biological parents reached 

an agreement that was memorialized by the Juvenile Court. Id. at ¶ 2. They agreed 

biological father would relinquish his parental rights and responsibilities, pay mother 

$500, and cooperate in having the children’s last name changed to their biological 

mother’s maiden name. Id. In return mother relinquished her right to prior 

arrearages and her right to a child support order. Id. The parties agreed the court 

retained jurisdiction over the issues of parenting time, child support, and related 

issues. Id. Step-father filed an adoption petition alleging biological father’s consent 

was not needed because biological father failed, without justifiable cause, to 

communicate with the children and to provide support and maintenance. Id. at ¶ 3. 

Biological father was notified of the petition and hearing, but did not appear at the 

hearing. Id. at ¶ 4. Following testimony and evidence, the probate court found that 

biological father failed, without justifiable cause, to provide support and maintenance 

or to contact the children for at least one year prior to the filing the petition. Id. at ¶ 7. 

{¶23} Biological father appealed and argued there was justifiable cause for 

his failure to communicate and his failure to provide support and maintenance. Our 

analysis concerned solely the failure to communicate, and we found the probate 

court’s determination that there was not justifiable cause for the failure to 

communicate was supported by clear and convincing evidence. Id. at ¶ 15-20. We 

did not address the failure to provide support or maintenance. Id. We specifically 

stated, “Since the existence of either an unjustified failure to communicate or failure 

to support allows a probate court to act without that parent's permission, we need not 

address the father's alternative argument concerning his failure to support his 

children.” Id. at ¶ 20. Therefore, our opinion does not address whether a no support 

order is justifiable cause for failure to provide support and maintenance. 

{¶24} Potentially, Appellee is trying to equate our holding on communication 

to support and maintenance. Regarding communication, we found that a court order 

does not provide justifiable cause for the failure to communicate unless it specifies 
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there is to be no contact. Id. at ¶ 18. In In re Adoption of M.S. and J.S. there was not 

justifiable cause for the failure to communicate because, in addition to other factors, 

the order was not a no contact order. Id. at ¶ 17-18. 

{¶25} If we apply our holding regarding a no contact order to the case at 

hand, it does not help Appellee’s cause. The March 2014 reallocation order indicates 

Father and Appellant requested that no child support be awarded. 3/10/14 J.E. 

(Harrison County). The trial court determined the amount was fair, appropriate and in 

the best interest of the children. 3/10/14 J.E. (Harrison County). That support order 

was not modified in any subsequent order and remains in effect. A no contact order 

would be equivalent to a no child support order, and therefore, there would be 

justifiable cause for the failure to provide support or maintenance. 

{¶26} This conclusion is supported by decisions from our sister districts. In re 

Adoption of K.A.H., 10th Dist. No. 14AP-831, 2015-Ohio-1971, ¶ 15-23 (zero support 

order constitutes justifiable cause for providing no support and maintenance); In re 

Adoption of Collene, 3d Dist. No. 3-08-08, 2008-Ohio-5827, ¶ 13-16, 20 (same); In re 

Adoption of W.K.M., 166 Ohio App.3d 684, 2006-Ohio-2326, ¶ 9 (2d Dist.); In re Way, 

4th Dist. No. 01CA23, 2002-Ohio-117 (same); In re Adoption of Stephens, 2d Dist. 

No. 18956, 2001 WL 1636284 (Dec. 21, 2001) (same); In re Adoption of Thiel, 3d 

Dist. No. 6-98-12, 1999 WL 152902 (Feb. 23, 1999) (same); In the Matter of Adoption 

of Jarvis, 9th Dist. No. 17761, 1996 WL 724748 (Dec. 11, 1996) (same). 

{¶27} In looking at the issue of whether a zero support order or a no support 

order provides justifiable cause to not provide support or maintenance, the common 

argument made by the party claiming it does not provide justifiable cause is that the 

biological parent still owes a common law and statutory (R.C. 3103.03(A)) duty of 

support. In re Adoption of K.A.H. at ¶ 15, 17. In rejecting that assertion, appellate 

courts have acknowledged Ohio recognizes that a biological parent’s duty to support 

his or her children is a principle of natural law that is fundamental in our society and 

that duty is not impaired by the termination of marriage. Id. at ¶ 16; In re Way

(“There is no question that parents have a duty to support their children.”). Also 

recognized is R.C. 3103.03(A) mandates that “The biological or adoptive parent of a 

minor child must support the parent's minor children out of the parent's property or by 

the parent's labor.” In re Adoption of K.A.H. at ¶ 17. However, in divorce cases, the 
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parents’ obligation to support a minor child is governed by the domestic relations 

child support statute, R.C. 3109.05. In re Adoption of K.A.H. at ¶ 18 referencing 

Meyer v. Meyer, 17 Ohio St.3d 222, 224, 478 N.E.2d 806 (1985); In re Adoption of 

Collene at ¶ 13; In re Way referencing Meyer; In re Adoption of Thiel. 

{¶28} “Where a domestic relations court has reviewed the facts and 

determined that no support is due from one of the parents, that is an applicable 

judicial order for the purposes of R.C. 3107.07 until it is modified.” In re Adoption of 

K.A.H. at ¶ 21 quoting, In re Adoption of Thiel, 3d Dist. No. 6–98–12; In re Adoption 

of W.K.M., 2006-Ohio-2326, at ¶ 9 (common law duty of support incorporated into 

domestic relations decree). To additionally compel the application of the common 

law or a statutory duty under R.C. 3103.03 “when there is already a valid judicial 

order in existence would be to incorrectly interpret R.C. 3107.07 to mean: ‘as 

required by law in addition to a judicial decree where a domestic relations court has 

determined that child support should be not set.’” In re Adoption of K.A.H. at ¶ 21, 

quoting In re Adoption of Jarvis, 9th Dist. No. 17761. That is an expansive 

interpretation appellate courts have declined to apply. In re Adoption of K.A.H.; In re 

Adoption of Jarvis. 

{¶29} Thus, a party receiving a no support or zero support order is relieved of 

his or her obligation to provide support of any kind. In re Adoption of K.A.H., 2015-

Ohio-1971 at ¶ 20; In re Adoption of W.K.M., 2006-Ohio-2326, at ¶ 9 (common law 

duty incorporated into domestic relations decree); In re Way, 2002-Ohio-117 

(Appellant could reasonably assume she was relieved of obligation to support of any 

kind. “If this was not the case and if appellant did risk the loss of her parental rights 

by complying with that order, we believe that notions of fundamental fairness require 

that appellant be provided notice to that effect.”). 

{¶30} It is noted that a zero support or no support order differs from the 

absence of a support order. When a court is silent on support or has not entered an 

order regarding support, that fact alone does not constitute justifiable cause for failing 

to provide support and maintenance. In re Adoption of S.L.N, 4th Dist. No. 

07CA3189, 2008-Ohio-2996, ¶ 33 (court’s order was silent, it did not expressly 

relieve party of support); In re Caudill, 4th Dist. No. 05CA4, 2005-Ohio-3927, ¶ 23-25 

(lack of support order does not alone constitute justifiable cause for failure to provide 
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support); In re Adoption of Moore, 5th Dist. No. 03CA74, 2004-Ohio-2802, ¶ 8-9 

(absence of a support order); In re Placement for Adoption Of C.E.T, 2d Dist. No. 

19566, 2003-Ohio-3783, ¶ 11 (support had yet to be adjudicated and thus was 

controlled by common law duty); In re Adoption of Kuhlmann, 99 Ohio App.3d 44, 

649 N.E.2d 1279 (1st Dist.1994) (absence of court order and claimed ignorance of 

the law to support). 

{¶31} Considering all the above, a zero support order or a no support order 

constitutes justifiable cause for failing to provide support and maintenance, including 

non-monetary assistance. We conclude that the probate court’s decision that the no 

support order did not provide justifiable cause for the failure to provide support and 

maintenance was incorrect. 

{¶32} That said, the no support order did not relieve her of all obligations of 

support and maintenance. In the March 2014 Reallocation Judgment Entry, the 

Harrison County Common Pleas Court ordered Father to maintain the health 

insurance on the children, but ordered the non-covered medical expenses split. 

3/10/14 J.E. (Harrison County). Father was instructed to pay 60% and Appellant was 

instructed to pay 40%. 3/10/14 J.E. (Harrison County). That order was not modified 

in any subsequent order. 

{¶33} Appellant may be of the opinion that the zero support order relieves her 

of her obligation to pay the non-covered medical expenses. That opinion is incorrect. 

The zero support order did not apply to non-covered medical expenses; the trial court 

specifically ordered her to pay 40% of the non-covered medical expenses. As stated 

above, maintenance and support are not defined in R.C. 3107.07(A) and thus, we 

must apply the general definition. In re Adoption of M.B. at ¶ 20. Non-covered 

medical expenses would fall under the general definition of either support or 

maintenance. Therefore, since there is a specific non-covered medical expense 

order, the zero support order would not constitute justifiable cause for failing to pay 

non-covered medical expenses. 

{¶34} That conclusion, however, does not mean there was not justifiable 

cause for failing to pay non-covered medical expenses. There could be many 

reasons why the failure to pay non-covered medical expenses would be justified. For 

instance, there is a line of cases that have held, “a natural parent is not obligated to 
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provide support where the person in custody of the child is advised of the parent's 

financial condition and expresses no interest in receiving financial assistance.” In re 

Adoption of M.G., 3d Dist. No. 17-15-05, 2015-Ohio-5185, ¶ 4, quoting In re J.A.B., 

11th Dist. No.2013–T–0114, 2014–Ohio–1375, ¶ 44, quoting In re Adoption of 

Hadley, 2d Dist. No. 90 CA 117, 1991 WL 227737. See also In re Adoption of 

LaValley, 2d Dist. No. 17710, 1999 WL 961785 (July 9, 1999). 

{¶35} That line of cases, however, is inapplicable in this situation. Here, there 

is a clear indication Appellant and Father agreed Appellant would not pay child 

support. Yet, there is no evidence to indicate the parties agreed Appellant did not 

have to pay non-covered medical expenses. 

{¶36} The evidence, in this instance, indicated Appellant knew her son has 

asthma and allergies. Tr. 41-42. She was aware that the asthma requires 

medication and a breathing machine, and the allergies require on-going visits to the 

doctor. Tr. 41-42. She testified she knew there were expenses associated with the 

child’s conditions. Tr. 41-42. Appellee also testified about the medical expenses and 

indicated that within the applicable one year period there were non-covered medical 

expenses for both children. Tr. 34-35. 

{¶37} Although Appellant was aware there were non-covered medical 

expenses within the applicable period, the evidence indicated Appellant was not 

asked for reimbursement. Appellant was asked if Appellee, Father or anyone in the 

household asked her for reimbursement for the children’s medical bills. Tr. 48. She 

indicated they did not. Tr. 48. She was then asked if she ever received a certified 

letter indicating her share of the medical bills. Tr. 48-49. She stated she did not. Tr. 

49. Lastly, she was asked if she knew if there were any outstanding medical bills. 

Tr. 49. She avowed she did not. Tr. 49. Appellee testified that she did not request 

reimbursement for non-covered medical expenses from Appellant. Tr. 36. She was 

not aware of whether Father asked Appellant for reimbursement. Father did not offer 

any testimony regarding non-covered medical expenses. 

{¶38} Failing to request reimbursement or to submit bills to Appellant for her 

to pay non-covered medical expenses may constitute justifiable cause for failing to 

pay the non-covered medical expenses. One court has stated when there is a zero 

support order and there is no submission of medical bills or oral request for 
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reimbursement, there is justifiable cause for failing to provide support and 

maintenance. In re Adoption of Collene, 2008-Ohio-5827, ¶ 18- 20. Likewise, when 

a biological parent attempts to provide the children with medical coverage and makes 

payments toward their living expenses and those efforts are spurned, there is 

justifiable cause for the failure to provide support. In re Adoption of Lawrence 

Stojkov, 11th Dist. No. 2002-T-0151, 2003-Ohio-705, ¶ 15. 

{¶39} Another court has stated when there is an absence of a support order, 

financial ability to provide support, knowledge of where to send money, and no 

indication that offers of support were spurned, there was no justifiable cause for 

failing to support. In re Caudill, 2005-Ohio-3927, ¶ 25. In that case, there is no 

specific discussion of medical expenses or submission of bills. However, the 

language of the opinion insinuates it is the party seeking to provide support and 

maintenance that is supposed to send money or offer to pay without receiving a bill or 

having a request to do so. 

{¶40} In the case sub judice, we do not have a situation where Father and 

Appellee are spurning Appellant’s attempts to provide support and maintenance. 

Appellant, Father and Appellee all testified that Appellant was permitted to give 

and/or send gifts to the children. Appellee and Father did nothing to prevent 

Appellant from giving the children money or gifts. Consequently, it could be 

concluded that nothing prevented Appellant from asking Appellee or Father what she 

owed for non-covered medical expenses. That said, the evidence failed to establish 

that Father or Appellee asked Appellant to pay for non-covered medical expenses. 

Thus, there was no expressed defiance on Appellant’s part to pay for the noncovered medical expenses. 

{¶41} This whole issue of justifiable cause comes down to whose obligation 

was it to question or notify the other party of non-covered medical expenses. Was 

the Father required to submit a bill to Appellant for her 40% of non-covered medical 

expenses? If so, there was justifiable cause for failing to pay her portion. The 

testimony at the hearing failed to show she received any bill; no one testified she was 

notified of the bills. Or was Appellant, who knew there were some non-covered 

medical expenses given son’s asthma and allergies, required to ask Father or 
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Appellee if there were any non-covered medical expenses for which she needed to 

reimburse them? If it was, there was not justifiable cause in this situation. 

{¶42} The March 10, 2014 Reallocation Judgment Entry does not address 

whose obligation it is; it is silent on the matter. No judgment entry in the record 

before us indicates the obligation of either party in this matter. The logical resolution 

of this issue is that the party who receives the bill should submit it to the other party 

for reimbursement. In this case, the obligation belongs to Appellee and Father 

because they are the party taking the children to the doctor and receiving the bill. 

Failing to submit bills to or request reimbursement from Appellant establishes 

justifiable cause for her failure to pay her percentage of non-covered medical 

expenses. 

{¶43} Consequently, given all the above, the probate court’s decision that 

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

of the children for a period of at least one year immediately preceding the filing of the 

adoption petition was against the manifest weight of the evidence and is reversed. 

The zero support order provided justifiable cause for failing to provide support or 

maintenance of any kind, except for the non-covered medical expenses. Likewise, 

there was justifiable cause to not pay non-covered medical expenses because Father 

and Appellee did not submit the medical bills to Appellant or notify her of her portion 

to pay. 

Second Assignment of Error 

“The trial court erred in finding that the respondent failed without justifiable 

cause to prove more than de minimus [sic] contact with the minor children for a 

period of at least one year immediately preceding the filing of the petition for 

adoption, thus finding that the consent of the respondent was not necessary.” 

{¶44} The probate court found Appellant failed, without justifiable cause, to 

provide more than de minimis contact with the minor children for at least one year 

preceding the filing of the adoption petition. In holding as such, the probate court 

acknowledged the adoption petitions did not indicate consent was not necessary 

because of a lack of contact. However, it still concluded that since testimony and 

evidence submitted to the court at the hearing was not objected to, it was permitted 

to make a no contact finding if the evidence supported such a finding. It found that 
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the evidence did; “The Court further finds that the respondent [Appellant] had no 

contact with the minor children, but for one incidental contact when the children were 

visiting a family member.” 10/29/15 J.E. 

{¶45} Appellant contends she did object to the contact testimony and in many 

instances the probate court sustained her objections. Thus, she asserts the probate 

court erred when it made a ruling on contact. Appellant further contends the probate 

court’s decision was against the manifest weight of the evidence because the 

evidence established she saw the children during the applicable one year period. 

{¶46} Appellee admits the petitions did not indicate she was seeking a finding 

that consent was not needed based on no contact. However, she contends that 

although Appellant did object to contact testimony at times, Appellant also introduced 

testimony and evidence of contact. It appears Appellee is either asserting Appellant 

waived any objection to the probate court deciding the contact issue or acquiesced to 

a decision on contact. Appellee further asserts the probate court’s contact decision 

was not against the manifest weight of the evidence. 

{¶47} Given the arguments presented, the first question we must decide is 

whether the probate court was permitted to render a ruling on contact. R.C. 

3107.07(A) provides: 

Consent to adoption is not required of any of the following: 

(A) A parent of a minor, when it is alleged in the adoption petition and 

the court, after proper service of notice and hearing, finds by clear and 

convincing evidence that the parent has failed without justifiable cause 

to provide more than de minimis contact with the minor or to provide for 

the maintenance and support of the minor as required by law or judicial 

decree for a period of at least one year immediately preceding either 

the filing of the adoption petition or the placement of the minor in the 

home of the petitioner. 

Emphasis added. R.C. 3107.07(A). 

{¶48} It has been found that R.C. 3107.07(A) requires notice as to why the 

consent of the birth parent is not necessary. See In re Adoption of S.J.M.H., 1st Dist. 

No. C-130683, 2014-Ohio-3565, ¶ 19 (indicating R.C. 3107.07 and 3107.11, the 
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statute on notice of the hearing, provide the parent whose consent is alleged to be 

not necessary is entitled to notice of the filing of the petition for adoption, the date 

and time of the hearing set on the petition for adoption, and notice as to why the 

consent of the birth parent is not necessary). Given the language of R.C. 

3107.07(A), especially the emphasized portion – “when it is alleged in the adoption 

petition” – that holding appears to be correct.

{¶49} Furthermore, it is noted, “[b]asic procedural due process requires that, 

in order for a person to forfeit his rights, he must be on notice that his rights are in 

jeopardy. This is especially so where parental rights are involved.” In re Adoption of 

Sunderhaus, 63 Ohio St.3d 127, 132, 585 N.E.2d 418 (1992). See also In re 

Walters, 5th Dist. No. 2005-CA-65, 2006-Ohio-631, ¶ 11 (“Due process of law 

requires adequate notice and an opportunity to be heard before parental rights are 

terminated.”). Ohio's adoption statutes are in derogation of the common law, and 

thus, strict compliance with the statutes is necessary to protect the fundamental 

rights of natural parents. In re Adoption of Baby Girl E., 10th Dist. No. 04AP932, 

2005-Ohio-3565, ¶ 24, citing Lemley v. Kaiser, 6 Ohio St.3d 258, 452 N.E.2d 1304 

(1983). 

{¶50} Consequently, Appellant was entitled to notice that Appellee was 

seeking an order that no consent was needed because Appellant failed, without 

justifiable cause, to provide more than de minimis contact with the children. It is 

fundamentally unfair for an adoption petition and hearing to proceed on a claim when 

the parent whose consent is claimed to not be needed is not given prior notice of the 

claim. That parent would be unable to prepare a defense to the claim. For instance, 

if the hearing proceeds on the matter of contact and the nonconsenting parent is not 

given prior notice of that claim, the nonconsenting parent would not have cell phone 

records or other specific evidence of dates when contact occurred or evidence as to 

why no contact was justified. Thus, R.C. 3107.07(A) and basic principles of due 

process are violated when a nonconsenting parent does not receive notice as to why 

his or her consent is not needed prior to the hearing. 

{¶51} In this situation there was no notice. Therefore, the probate court 

should not have issued a ruling on the contact claim. 
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{¶52} That said, it is alleged that Appellant, the nonconsenting parent, waived 

notice of the claim because she allegedly did not object to contact testimony. 

Consequently, this court must determine whether Appellant preserved the error. 

{¶53} The transcript of the hearing demonstrates that there were numerous 

instances where Appellant objected to contact testimony: 

[Testimony of Father] Q: Okay, now during that process do you recall 

any order that says [Appellant] could not contact your children by mail, 

email, Facebook or phone? 

MS. CORABI [Attorney for Appellant]: You know I’m going to object 

your Honor, I think we’re here because of the support issue is the only 

thing he checked. 

THE COURT: Sustained. 

MR. SHAHEEN [Attorney for Appellee]: Have you ever in anyway 

prohibited [Appellant] from contacting your children? 

MS. CORABI: Objection your Honor. 

MR. SHAHEEN: Well I’m trying to talk about how she might deliver 

support that my client would interfered with. 

THE COURT: Overruled. 

* * * 

MR. SHAHEEN: Is it true that [Appellant] had been in and out of jail, 

half a dozen times, three or four times? 

MS. CORABI: I’m going to object to the child support issue your Honor. 

MR. SHAHEEN: The ability to pay. 

THE COURT: Overruled, yes. 

* * * 
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[Testimony of Appellant] Q: Now we get to December 2014, and it says 

again that you can establish visits but you need to complete drug and 

alcohol evaluation. 

MS. CORABI: I’m going to objection, your Honor, how is this dealing 

with support? 

THE COURT: Overruled. 

MR. SHAHEEN: A review of this order says, page one says that you 

don’t have any (inaudible) previously ordered parenting time but you 

would have contact with client, right? 

A: Yes. 

Q: At his discretion, (inaudible) times and dates, right? 

A: Yes. 

Q: So you’re not prohibited from having visits you just have to go 

through him. 

A: Yes. 

Q: Did you ever do that? 

A: No. 

MS. CORABI: Objection your Honor it doesn’t have to do with support. 

He’s talking about visits at this point. 

THE COURT: Overruled. 

* * * 

Q: And any visits in “14” would have been at your parent’s house 

cause that would have been pursuant to supervision order, right? 

A: Yes, yes. 
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Q: But you deny that it was just once before you went to jail and once 

after you went to jail? You don’t have to look at her I’m asking the 

questions. 

A: I don’t understand your question. 

Q: Okay, you admit to me that 

MS. CORABI: Can I object again your Honor. I just don’t know what 

this has to do with child support. 

THE COURT: Very little I agree. 

MR. SHAHEEN: Well if she is going to tell me, just for clarification, if 

she’s going to tell they went to her house eight time [sic] in “14” and she 

prepared this meal and pack their school lunch, I want to know. 

THE COURT: And opportunity to give gifts and present [sic] and 

whatever I understand. 

Tr. 8, 23, 52-53, 53-54. 

{¶54} This quoted dialog demonstrates Appellant objected to questions that 

solely concerned contact. This dialog also indicates the question of support, as 

presented by Appellee, overlapped the question of contact. In attempt to show that 

neither Father nor Appellee thwarted attempts to support the children, the witnesses 

– Appellant, Father and Appellee – were asked whether Appellee or Father 

prevented or did not let the children receive messages or gifts or contact from 

Appellant. 

{¶55} There were instances where Appellant did not object to contact 

questions and where Appellant asked witnesses about contact. Tr. 27 (direct of 

Appellee no objection); 32 (Appellant’s cross of Appellee); 35 (redirect of Appellee no 

objection); 45-48 (Appellant direct); 51-52 (Appellant cross no objection). However in 

all these instances the contact questions went to the element of support. They were 

either asked to demonstrate the Father and Appellee did not prevent support and 
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contact in any manner, or to show that the contact encompassed support by 

providing food and shelter. 

{¶56} Furthermore, the probate court’s ruling on the first objection concerning 

contact, which is quoted above, indicates that as long as the question somehow 

concerned support it was permitted. Tr. 8. The probate court’s later rulings on 

objections also support that conclusion. Moreover, at the end of the hearing the 

probate court stated, “This is an issue of support.” Tr. 58. Thus, the probate court’s 

own statement appears to be an indication that the hearing only concerned support. 

{¶57} Consequently, for all the above stated reasons, this assignment of error 

has merit. Basic principles of due process and R.C. 3107.07(A) required Appellant to 

receive notice that Appellee was seeking an order that no consent was needed 

because Appellant failed, without justifiable cause, to have more than de minimis 

contact with the children for a period of at least one year immediately preceding the 

filing of the adoption petitions. Appellant did not waive notice of contact and/or 

acquiesce to a ruling on contact. Thus, given the facts of this case, the probate court 

erred in rendering a ruling on contact. 

Conclusion 

{¶58} Both assignments of error have merit. The probate court’s decision that 

no consent is needed for the adoption is reversed and vacated. 

Donofrio, P.J., concurs. 

DeGenaro, J., concurs.