[Cite as In re Adoption of V.R.K., 2018-Ohio-4881.]

 

 

IN THE COURT OF APPEALS OF OHIO 

SECOND APPELLATE DISTRICT 

 GREENE COUNTY 

IN THE MATTER OF THE 

ADOPTION OF: V.R.K. 

: 

: 

: 

: 

: 

: 

: 

: 

: 

:

Appellate Case No. 2018-CA-34 

Trial Court Case No. 10910AD 

(Appeal from Probate Court) 

. . . . . . . . . . . 

O P I N I O N 

Rendered on the 7th day of December, 2018. 

. . . . . . . . . . . 

WILLIAM R. ZIMMERMAN, JR., Atty. Reg. No. 0078925, 108 E. Poplar Street, Sidney, 

Ohio 45365 

 Attorney for Appellant 

 

MICHAEL R. VOORHEES, Atty. Reg. No. 0039293, 11159 Kenwood Road, Cincinnati, 

Ohio 45242 

 Attorney for Appellees 

. . . . . . . . . . . . . 

 
-2- 

HALL, J. 

{¶ 1} C.H., the putative father of V.R.K., appeals from the trial court’s decision and 

judgment entry finding that his consent to the child’s adoption was not required under 

R.C. 3107.07(B)(2)(b). 

{¶ 2} C.H. advances two assignments of error. First, he contends the trial court 

erred in not considering whether he “willfully” failed to care for and support V.R.K. Second, 

he claims the trial court’s finding that he failed to care for and support the child was against 

the manifest weight of the evidence. 

{¶ 3} The record reflects that V.R.K.’s mother, J.C., voluntarily gave the child to a 

private adoption agency in March 2018, just days after the child’s birth. The agency 

promptly placed the child with appellees J.K. and M.K., who filed a petition to adopt. 

Although putative father C.H. did not consent to adoption, the petition alleged that his 

consent was not required under R.C. 3107.07(B)(2)(b) because he (1) was not the child’s 

father, (2) willfully abandoned or failed to care for and support the child, and/or (3) willfully 

abandoned J.C. during her pregnancy and up to the time of her surrender of the child or 

the child’s placement in the petitioners’ home. The matter proceeded to a June 28, 2018 

hearing to resolve the need for C.H.’s consent. Based on the evidence presented, the trial 

court made the following findings of fact: 

 Mother and Putative Father began dating sometime in the spring of 

2017. They broke off their relationship several months later. 

 In early July, 2017, Mother found out she was pregnant. She told 

Putative Father about the pregnancy and informed him he was the child’s 

father. They mutually decided to try to work out their relationship. Mother 
-3- 

agreed to move in with Putative Father at his mother’s house in Sidney, 

Ohio. Putative Father promised to quit drinking and to get a job. 

 Sometime during the autumn of 2017, Mother broke off their 

relationship again and moved out of Putative Father’s mother’s house. 

Mother contended Putative Father was still drinking and had not obtained a 

job. Her contention regarding drinking was corroborated shortly after the 

breakup when Putative Father encountered legal issues related to alcohol 

use. 

 Mother moved in with her grandmother, who also lived in Sidney, 

Ohio. She also blocked Putative Father on her cell phone and on Facebook. 

Evidence showed Putative Father tried to text Mother several times shortly 

after their breakup and then again after the baby was born. Mother did not 

respond to the messages. 

 Putative Father knew where Mother was living and where her 

grandmother’s house was located. Testimony of Putative Father and his 

mother indicates they went by the home where Mother was living a few 

times, but they contend no one was home. 

 There is extensive evidence that Putative Father communicated 

frequently with Mother’s mother, with whom Mother was not living, through 

Facebook Messenger. It appears that their conversations were centered on 

Putative Father’s desire to get back with Mother and his interest in being 

involved in the child’s life. Nothing ever came of those conversations. 

 Putative Father’s mother did communicate a few times with Mother. 
-4- 

On January 1, 2018, Mother informed her that she decided to pursue an 

adoption plan for V.R.K. Putative Father’s mother expressed her 

displeasure with the idea. 

 V.R.K. was born on March 6, 2018 in Sidney, Ohio. Mother signed a 

permanent surrender agreement with the adoption agency on March 9, 

2918, which was filed and approved in Greene County Juvenile Court. The 

adoption agency placed the child with Petitioners the same day. The child 

has been in Petitioners’ continuous care since that date. 

 Putative Father contends that he (and his mother) offered to throw a 

baby shower for Mother before V.R.K. was born, and to buy diapers and 

other necessities after her birth. There is no evidence that those offers ever 

materialized. 

 There is no evidence that Putative Father ever actually provided any 

support for V.R.K. after she was born. He did not set up support payments 

through the Child Support Enforcement Agency. He did not pay any portion 

of Mother’s medical expenses during the pregnancy after they split up and 

did not pay anything toward V.R.K.’s care and support after her birth. There 

is also no evidence that Putative Father ever actually provided any nonmonetary support to the child, in the form of clothes, diapers, formula or 

other baby essentials. Even if Putative Father’s testimony that he offered to 

assist is true, the fact is he did not follow through and actually provide 

anything. Putative Father admitted that at trial. 

 Mother and Putative Father have never been married to each other. 
-5- 

Putative Father is not named as the father on V.R.K.’s birth certificate. 

Putative Father did not file a parentage action before Petitioners filed the 

Petition for Adoption. He also did not attempt to establish his parent-child 

relationship with V.R.K. by an acknowledgment of paternity or through and 

administrative determination. Putative Father did not institute any 

proceedings in Juvenile Court to seek custody of V.R.K. 

 Mother was a credible witness. Her testimony was clear, concise and 

confident. 

 Likewise, Putative Father’s mother was a credible witness. However, 

her testimony carries little weight because it was not substantially relevant 

to the legal issues in this case. 

 Putative Father’s credibility was questionable to this Court. Although 

he was polite and respectful during his testimony, his demeanor and 

hesitancy in answering questions clouded the believability of his responses 

in many instances. He certainly did not corroborate his claims of offering

support for the child with any evidence that he actually did so. Putative 

Father simply did not convey to the Court a sense of complete sincerity in 

his desire to be a true father to the child. Instead, he left the Court with a 

distinct impression that his objection to the adoption was for his mother’s 

benefit more so than his own. 

 The abundance of Exhibits Putative Father offered into evidence 

were not persuasive. While the Exhibits demonstrate Putative Father’s 

efforts to communicate with others by means of text messaging and 
-6- 

Facebook Messenger, they do not establish any genuine showing of actual 

support for the Mother or the child. 

 After the trial, this Court ordered the parties to obtain a paternity test. 

The parties filed the DNA Test Report with the Court on June 10, 2018. The 

Report showed a 99.999995% probability that Putative Father is the 

biological father of V.R.K. Petitioners did not offer any evidence to refute 

the test results. 

(Decision and Judgment Entry, Doc. #26 at 2-4.) 

{¶ 4} In its conclusions of law, the trial court recognized that C.H.’s legal status as 

the putative father made his consent to adoption necessary unless a statutory exception 

applied. (Id. at 5.) The trial court then correctly looked to R.C. 3107.07(B), which sets 

forth circumstances under which a putative father’s consent to adoption is not required. 

The trial court found that R.C. 3107.07(B)(1) did not apply because C.H. properly had 

registered on the putative father registry. 

{¶ 5} The trial court then turned to R.C. 3107.07(B)(2), which provides that consent 

is unnecessary if any of the following apply: “(a) The putative father is not the father of 

the minor; (b) The putative father has willfully abandoned or failed to care for and support 

the minor; (c) The putative father has willfully abandoned the mother of the minor during 

her pregnancy and up to the time of her surrender of the minor, or the minor’s placement 

in the home of the petitioner, whichever occurs first.” 

{¶ 6} Based on the evidence presented, the trial court held that C.H. in fact was 

V.R.K.’s biological father. It also found that C.H. did not willfully abandon V.R.K. or the 

child’s mother. Rather the trial court held that V.R.K.’s mother, J.C., voluntarily broke off 
-7- 

her relationship with C.H. and moved out of his residence before giving birth and placing 

the child for adoption. Under these circumstances, the trial court declined to find that C.H. 

willfully had abandoned mother or child. 

{¶ 7} The trial court opined that resolution of the case hinged on whether C.H. had 

“failed to care for and support” the child. On this issue, the trial court noted C.H.’s 

admission during the hearing that he never actually provided any care or support for 

V.R.K. Based on the evidence, the trial court characterized his efforts as “empty” offers 

of support with a “lack of action.” (Decision and Judgment Entry, Doc. #26 at 7.) The trial 

court also rejected C.H.’s argument that J.C. significantly had impeded his efforts to care 

for and support their child. The trial court found “no evidence that any third party ever 

remotely interfered with anything Putative Father did or attempted to do toward caring for 

or supporting the child.” (Id.). Although J.C. had “blocked” C.H. on social media, V.R.K. 

was not in J.C.’s care anyway after being placed with the adoption agency. Thus, the trial 

court rejected the notion that “if you are blocked you are somehow no longer obligated to 

provide care and support for your child.” (Id. at 8.) The trial court then reasoned: 

 Putative Father admitted he has never actually provided any care or 

support for V.R.K. He admitted he never contacted the adoption agency to 

whom Mother surrendered permanent custody of the child, even though he 

knew or could have easily determined the name and contact information of 

the agency through the Ohio Department of Job and Family Services. Had 

he contacted the agency, he could have provided support through that 

avenue, regardless of whether Mother continued to ignore his messages. 

The complete lack of Putative Father’s care for and support of V.R.K., as 
-8- 

required in R.C. 3107.07(B)(2)(b), is easy to resolve in this case. 

 The Court is not impressed with the effort Putative Father expended 

to show his desire to be a real dad to V.R.K. since her birth. He had several 

weeks between the child’s birth and the date Petitioners filed the Adoption 

Petition in which to take legal action to formally establish his parentage. He 

did not do anything. He could have attempted to gain custody through 

Juvenile Court. He did not do anything. The clear message in R.C. 

3107.07(B)(2)(b) is that a putative father cannot sit back, do nothing while 

others care for and support his child, and then claim he deserves to get the 

child. 

 It is the decision of this Court that Putative Father failed to care for 

and support V.R.K. after her birth. Petitioners have met their burden of proof 

on this element by clear and convincing evidence. Putative Father has failed 

to refute that evidence with sufficient, credible evidence to the contrary. 

Accordingly, it is the decision of this Court that the consent of Putative 

Father to the proposed adoption of V.R.K. is not required. 

(Id.). 

{¶ 8} On appeal, C.H. contends the trial court erred in failing to consider whether 

his failure to care for and support V.R.K. was “willful.” This argument requires 

interpretation of R.C. 3107.07(B)(2)(b) as well as analysis of the record. As set forth 

above, the statute makes a putative father’s consent to adoption unnecessary if he “has 

willfully abandoned or failed to care for and support the minor.” The initial issue raised by 

C.H.’s argument is whether “willfully” only modifies “abandoned” or whether it also 
-9- 

modifies “failed to care for and support.” This court addressed that issue in In re Adoption 

of R.C.A., 2d Dist. Montgomery No. 19509, 2003-Ohio-607, reasoning: “Although it is 

perhaps unclear whether the word ‘willfully’ modifies only ‘abandoned’ or also modifies 

‘failed to care for and support,’ this court previously has read [R.C.] 3107.07(B) as 

requiring a petitioner to establish a willful failure to care for and support a child.” Id. at ¶ 

10, fn. 3, citing In re of Bachman, 2d Dist. Montgomery No. 15720, 1996 WL 535320 

(Sept. 13, 1996).1

{¶ 9} In the present case, the trial court’s ruling is perhaps ambiguous as to 

whether it required proof of a “willful” failure by C.H. to care for and support his child. As 

evidence that it did not, C.H. cites the trial court’s observation that “the law does not give 

a putative father an excuse of ‘justifiable cause’ for not providing the child care and 

support[.]” (Decision and Judgment Entry, Doc. #26 at 8.) The trial court made this 

observation, however, in the context of pointing out that the “justifiable cause” standard, 

which is found in R.C. 3107.07(A), applies to a legally recognized parent, not a putative 

father. 

 

1 The appellees cite In re Adoption of P.L.H., 151 Ohio St.3d 554, 2017-Ohio-5824, 91 

N.E.3d 698, for the proposition that the word “willfully” in R.C. 3107.07(B)(2)(b) modifies 

only “abandoned” and not “failed to care for and support.” We note, however, that P.L.H.

had nothing to do with whether the word “willfully” modified “failed to care for and support.” 

The issue in the case involved the meaning of “willfully abandoned” as applied to a 

putative father’s treatment of the birth mother. The Ohio Supreme Court was not called 

on to decide, and did not decide, whether the word “willfully” modified “failed to care for 

and support.” In the course of its analysis, the court did observe that “[a] putative father’s 

failure to care for and support the minor child provides a relevant basis under R.C. 

3107.07(B)(2)(b) for determining that his consent to the adoption is not required.” 

(Emphasis sic) Id. at ¶ 27. But the court’s omission of the word “willful” before the word 

“failure” in this passing reference to an issue not before it does not constitute a holding 

that the word “willfully” in the statute modifies only “abandoned.” In our view, the appellees 

read too much into P.L.H. in making such an argument. 
-10-

{¶ 10} Other portions of the trial court’s opinion support a conclusion that it did 

require proof of a “willful” failure to care for and support V.R.K. The trial court recognized 

C.H.’s admission that he never provided any care and support for the child. If this bare 

failure to provide care and support were sufficient to satisfy R.C. 3107.07(B)(2)(b), the 

trial court could have stopped its analysis there. But it did not. It proceeded to identify 

ways in which C.H. could have provided support for V.R.K. despite the fact that the child 

had been placed for adoption. (Id. at 8). That analysis, which supports a determination 

that C.H.’s failure to provide support was “willful,” would have been unnecessary and 

irrelevant if the trial court believed the mere act of failure to provide support alone satisfied 

the statute. Moreover, if the burden of going forward is upon the putative father to provide 

some evidence that failure to provide support is other-than-willful, we believe he has failed 

in that regard.2 

{¶ 11} For the foregoing reasons, we reject C.H.’s argument that the trial court 

erred in failing to expressly state that it had considered whether his failure to care for and 

support V.R.K. was “willful.” Accordingly, his first assignment of error is overruled. 

{¶ 12} C.H.’s second assignment of error challenges the weight of the evidence to 

support the trial court’s finding that he failed to provide care and support. More 

 

2 In re Adoption of Lozan, 2d Dist. Montgomery No. 7547, 1982 WL 3762 (July 19, 1982), 

this court clarified an adoption petitioner’s burden to prove that a putative father’s lack of 

care and support was “willful.” Addressing the consent-to-adoption exceptions in R.C. 

3107.07(B), this court reasoned: “[W]e believe that it is sound law that petitioner need 

only produce evidence of failure to support, and the burden of going forward (not burden 

of proof) with some evidence of the nonwillfulness is upon the objecting party. Once 

evidence is introduced on the non-willful failure by the objecting party, the petitioner must 

prove willful failure by ‘clear and convincing evidence.’ ” Id. at *2. In the present case, 

C.H. admitted his failure to support V.R.K., and we see no evidence that this failure was 

non-willful. In any event, as explained above, the trial court’s analysis supports a 

conclusion that it believed his failure to provide care and support for his child was willful. 
-11-

specifically, he contends any finding that he “willfully” failed to provide care and support 

for V.R.K. is against the manifest weight of the evidence. C.H. reasons that his failure to 

provide support for his child cannot be deemed “willful” for two reasons: (1) the petitioners 

failed to prove that he was capable of providing support and (2) V.R.K.’s mother, J.C., 

rejected his offers of support for the child. To buttress his argument, C.H. cites numerous 

cases for the general proposition that a failure to provide support is not willful where a 

putative father is incapable of providing support or where offers of support are rejected. 

Although we have reviewed those cases, the trial court reasonably could have found the 

two propositions upon which C.H. relies inapplicable on the facts before us. 

{¶ 13} “The question of whether a putative father ‘has abandoned or failed to care 

for and support the minor’ has been proven by the petitioner by clear and convincing 

evidence is a determination for the probate court. We may not disturb the judgment of the 

probate court unless such determination is against the manifest weight of the evidence.” 

In re Adoption of Woods, 2d Dist. Montgomery No. 11068, 1989 WL 14719, *2 (Feb. 24, 

1989), citing In re Adoption of Bovett, 33 Ohio St.3d 102, 515 N.E.2d 919 (1987). 

Judgments supported by some competent, credible evidence going to all the essential 

elements of the case will not be reversed as being against the manifest weight of the 

evidence. C.E. Morris Co. v. Foley Constr. Co., 54 Ohio St.2d 279, 281, 376 N.E.2d 578 

(1978). “In determining whether a judgment is against the manifest weight of the 

evidence, we must review the entire record, weigh the evidence and all reasonable 

inferences, consider witness credibility, and determine whether, in resolving conflicts in 

the evidence, the trier of fact ‘clearly lost its way and created such a manifest miscarriage 

of justice’ that there must be a reversal of the judgment and an order for a new trial.” 
-12-

Steagall v. Crossman, 2d Dist. Montgomery No. 20306, 2004-Ohio-4691, ¶ 29. 

{¶ 14} Here C.H.’s argument about a lack of proof that he was capable of providing 

support for V.R.K. fails because his own hearing testimony supported an inference that 

he was capable of doing so. Indeed, C.H. testified at the hearing that he tried to provide 

support for both J.C. and the child but that he was “shut out” and “blocked” or never 

received a response and could not get in touch with J.C. (See, e.g., Hearing Tr. at 12-15, 

36.) C.H. never suggested at the hearing that he lacked the capacity to provide any 

support. It is unconvincing for C.H. to testify at the hearing that he tried to provide support 

while now insisting that he lacked the ability to provide support. If C.H. tried to provide 

support for V.R.K. and J.C., as he testified at the hearing, then the trial court reasonably 

could have inferred from his own evidence that he was capable of providing some support. 

In light of this determination, we need not dwell on whether C.H.’s claimed unemployment 

or other circumstances precluded him from providing support for his child. 

{¶ 15} With regard to C.H.’s other argument, the trial court recognized that J.C. 

had attempted to avoid contact with him. It nevertheless reasoned that he could have 

provided support for the child, who no longer was in J.C.’s care, through the Ohio 

Department of Job and Family Services or through the adoption agency if he had made 

any effort to contact those entities. Despite C.H.’s knowledge that V.R.K. had been placed 

for adoption, the trial court found that he made no real attempt to support the child. It 

concluded that “Putative Father here is solely responsible for his empty offers of support 

for V.R.K., but lack of action in providing it.” (Decision and Judgment Entry, Doc. #26 at 

7.) This finding is supported by the record. Therefore, C.H.’s second assignment of error 

is overruled. 
-13-

{¶ 16} The judgment of the Greene County Probate Court is affirmed. 

. . . . . . . . . . . . . 

WELBAUM, P.J. and TUCKER, J., concur. 

Copies sent to: 

William R. Zimmerman, Jr. 

Michael R. Voorhees 

Hon. Thomas M. O’Diam