[Cite as In re Adoption of C.A.H., 2020-Ohio-1260.]

COURT OF APPEALS 

KNOX COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

IN RE: JUDGES: 

 Hon. William B. Hoffman, P.J. 

 ADOPTION OF C.A.H. Hon. John W. Wise, J. 

 Hon. Craig R. Baldwin, J. 

 

 Case No. 19 CA 000037 

 O P I N IO N 

 

CHARACTER OF PROCEEDINGS: Appeal from the Knox County Court of 

Common Pleas, Probate Division, Case 

No. 2019-4008 

 

JUDGMENT: Affirmed 

 

DATE OF JUDGMENT ENTRY: March 31, 2020 

APPEARANCES: 

 

For Appellants For Appellee-Father

 

THE GILES LAW GROUP BRANDON S. CRUNKILTON 

Alysse L. Giles 51 Public Square 

109 E. High Street Mt. Vernon, Ohio 53050 

Mt. Vernon, Ohio 43050 

 

MANDY OVERTON, pro se ROBERT HANES, pro se 

17137 Vance Road #A658956 NCI 

Utica, Ohio 43080 15708 McConnelsville Road 

 Caldwell, Ohio 43724 
Knox County, Case No. 19 CA 000037 2 

Hoffman, P.J. 

{¶1} Petitioners-appellants Mark and Tammy Overton (“Grandparents”, 

collectively; “Mr. Overton” and “Mrs. Overton”, individually) appeal the October 10, 2019 

Judgment Entry entered by the Knox County Court of Common Pleas, Probate Division, 

which denied their Petition for Adoption of their minor grandson (“the Child”) after finding 

the consent of respondent-appellee Robert Hanes (“Father”) was required. 

STATEMENT OF THE FACTS AND CASE 

{¶2} Mandy Overton (“Mandy”) and Father are the biological parents of the Child. 

Mandy and Father were never married. Grandparents are the parents of Mandy and the 

maternal grandparents of the Child. Father has been incarcerated since approximately 

two weeks after the Child’s birth on May 26, 2011. He is scheduled for release in 2021. 

Grandparents have been the physical custodians of the Child since his birth. 

{¶3} On April 23, 2019, Grandparents filed a Petition for Adoption. Therein, 

Grandparents asserted the consent of Father was not required as he “has failed without 

justifiable cause to provide more than de minimis contact with the minor 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.” Mandy filed her Consent to Adoption on the 

same day. Father, through counsel, filed an Objection to Adoption on May 20, 2019. 

{¶4} Grandparents filed their First Amended Petition for Adoption of Minor on 

May 29, 2019. As reason Father’s consent was not required, Grandparents added Father 

“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.” Father did not file an objection to the amended petition. 
Knox County, Case No. 19 CA 000037 3 

{¶5} The trial court conducted a hearing on the petition and Father’s objection 

on July 15, 2019. Father was conveyed from the correctional institution to the Knox 

County Jail for the hearing. 

{¶6} Mr. Overton testified he has lived at the same address for approximately 17 

years and the address is public record. He indicated he has never prevented Father from 

mailing anything to his home. He added he has had the same phone number for 

approximately 10 years. Mr. Overton stated he has not blocked or restricted Father from 

contacting him at that number. He also noted he has a Facebook account, which he has 

had for 15 years, but Father has never sent him a Friend request. Mr. Overton 

acknowledged he did not accept the Friend request of Deborah Darr, Father’s mother. 

He added Father had not made any attempts to contact him between April 23, 2018, and 

April 23, 2019, the statutory lookback period. Father had sent the Child letters after the 

filing of the Petition for Adoption. The last contact he and Mrs. Overton had with Darr was 

over two years prior to the hearing. Mr. Overton added Grandparents provide for all of 

the Child’s needs. Father has never offered any assistance, financial or otherwise. 

{¶7} On cross-examination, Mr. Overton indicated he was aware Father had 

been incarcerated since the Child was two weeks old. He admitted he and Mrs. Overton 

had taken the Child to visit Mandy when she was incarcerated. Mr. Overton conceded 

the Child had received presents from Father through the Angel Tree Project. 

{¶8} Mrs. Overton testified similarly to her husband. She has lived at the same 

address for approximately 17 years, and has never received any mail from Father. Mrs. 

Overton added she had not seen any mail addressed to the Child from Father since the 

first year of the Child’s life. She has had the same phone number for ten or twelve years, 
Knox County, Case No. 19 CA 000037 4 

and has never blocked or restricted Father from contacting her. Mrs. Overton noted she 

and Darr are Facebook friends, and the two occasionally have contact with one another 

on Facebook. The last visit Darr had with the Child was Christmas, 2017. The last gift 

the Child had received from Father through the Angel Tree Project was prior to April, 

2018. Mrs. Overton acknowledged Darr had brought gifts for the Child, but had not done 

so since Christmas, 2017. She added she has never received any child or other financial 

support for the Child from Father. 

{¶9} On cross-examination, Mrs. Overton acknowledged Darr asked if she could 

take the Child to see Father at the prison for Father’s Day, but indicated Darr never 

followed up. Mrs. Overton then admitted she would not have allowed the Child to go to 

the prison to see Father. She would not definitely state whether she would accept a call 

from Father from prison. 

{¶10} Father testified he was incarcerated at Noble Correction Facility for 7 1⁄2 

years and was currently incarcerated at Grafton Reintegration Center. Father admitted 

he has been incarcerated since the Child was two weeks old. He explained Mandy would 

bring the Child to the Coshocton County Jail to see him prior to his transfer to prison. 

Father stated he pays monthly child support which is withheld from the wages he receives 

from his prison job. Father indicated he does not have access to a cell phone, text 

messaging, a computer, or the Internet. He claimed he does not know either Mr. or Mrs. 

Overton’s phone number. Father noted he has Grandparents’ address and has mailed a 

letter to the Child every month since his incarceration. Mandy confirmed to Father the 

letters were received. He has also sent the Child presents through the Angel Tree Project. 

Father completed the application for 2018, but did not receive confirmation or notification 
Knox County, Case No. 19 CA 000037 5 

regarding whether the Child received a gift at Christmas that year. In December, 2018, 

he withdrew cash from his prison account to purchase a large envelope in which to mail 

the Child a drawing of Spiderman his bunkmate had drawn. On re-direct, Father stated 

he sent a second drawing to the Child in February, 2019. 

{¶11} On cross-examination, Father stated he earns about $20/month and $4.50 

is withheld for child support. Father explained he purchases personal hygiene products, 

phone minutes, and stamps with the remaining funds. He admitted he had not attempted 

to contact the Overtons by phone or on Facebook to request visits with the Child because 

“I already know what the answer to that is going [to] be.” Transcript of July 15, 2019 

Hearing at 76. 

{¶12} Deborah Darr was asked about the Angel Tree Project. A letter to her from 

the Angel Tree Project was admitted. The letter stated Father submitted applications for 

the Child to receive a Christmas gift on his behalf each year beginning 2013, through 

2018. Darr testified she has made attempts to contact the Overtons in order to visit the 

Child. Darr noted her attempts to take the Child to visit Father never came to fruition. 

{¶13} On cross-examination, Darr indicated she had contact with the Angel Tree 

Project regarding the delivery of the Child’s 2018 gift. Darr was advised the organization 

made several attempts to contact Grandparents to schedule delivery and they were 

seeking her assistance. Darr assumed the gift was ultimately delivered as she did not 

hear back from the Angel Tree Project. 

{¶14} Via Judgment Entry filed October 10, 2019, the trial court denied 

Grandparents’ Petition for Adoption. The trial court found Father’s consent was required 

because Grandparents failed to prove, by clear and convincing evidence, Father did not 
Knox County, Case No. 19 CA 000037 6 

have more than de minimis contact with the Child during the statutory lookback period, 

and (2) Father did not provide for the maintenance and support of the Child during the 

statutory lookback period. 

{¶15} It is from this judgment entry Grandparents appeal, raising the following 

assignments of error: 

 I. THE TRIAL COURT ERRED IN REQUIRING FATHER’S 

CONSENT TO PROCEED WITH APPELLANTS’ PETITION TO ADOPT 

THE MINOR CHILD BECAUSE FATHER DID NOT OBJECT TO THE 

AMENDED PETITION, AND THUS HIS CONSENT WAS NOT REQUIRED 

BY R.C. 3107.07(K). 

 II. THE TRIAL COURT ERRED IN FINDING THAT FATHER’S 

CONSENT WAS REQUIRED DUE TO FATHER’S COMPLETE LACK OF 

CONTACT WITH THE CHILD FOR APPROXIMATELY 8 YEARS 

PRECEDING THE FILING OF THE PETITION, WHICH WAS NOT 

JUSTIFIABLE DUE TO HIS TOTAL LACK OF INACTION TO SECURE 

CONTACT WITH THE CHILD, AND THE MATERNAL GRANDPARENTS’ 

LACK OF INTERFERENCE WITH FATHER’S ABILITY TO CONTACT THE 

CHILD. 

 III. THE TRIAL COURT ERRED IN FINDING THAT FATHER’S 

CONSENT WAS REQUIRED, BECAUSE THERE WAS NO JUSTIFIABLE 

CAUSE FOR FATHER’S FAILURE TO FULFILL THE REQUIREMENTS 
Knox County, Case No. 19 CA 000037 7 

OF THE JUDICIAL DECREES ORDERING HIM TO PAY CHILD 

SUPPORT. 

I 

{¶16} In their first assignment of error, Grandparents assert the trial court erred in 

finding Father’s consent was required as Father failed to object to the amended petition 

for adoption; therefore, his consent was not required pursuant to R.C. 3107.07(K). We 

disagree. 

{¶17} Under R.C. 3107.07(K), a parent’s consent to adoption is not required if the 

parent receives proper notice of the adoption petition and “fails to file an objection to the 

petition within fourteen days.” 

{¶18} The record before this Court reveals Grandparents did not raise this 

argument to the trial court. Failure to raise an issue before the trial court operates as a 

waiver of a party’s right to assert such for the first time on appeal. See, Hadley v. Figley, 

5th Dist. Ashland App. No. 15-COA-001, 2015-Ohio-4600, 46 N.E.3d 1129, ¶ 22 (Citation 

omitted). Because Grandparents failed to raise Father’s failure to object to the amended 

petition, we find they have waived this issue on appeal. 

{¶19} Additionally, we find Father was not required to object to the amended 

petition. Father filed a timely objection to Grandparents’ original petition. The trial court 

scheduled the matter for hearing prior to Grandparents’ filing their amended petition. The 

amended petition in the present case was identical to the original petition for adoption 

with the addition of a second statutory reason the adoption could proceed without the 
Knox County, Case No. 19 CA 000037 8 

consent of Father. Father’s objection to Grandparents’ assertion his consent was not 

required was already on the record. 

{¶20} Grandparents’ first assignment of error is overruled. 

II, III 

{¶21} We elect to address Grandparents’ second and third assignments of error 

together. In their second assignment of error, Grandparents argue the trial court erred in 

finding Father’s consent was required as the evidence established Father failed without 

justifiable cause to have any contact with the Child for approximately 8 years preceding 

the filing of the petition. In their third assignment of error, Grandparents maintain the trial 

court erred in finding Father’s consent was required as the evidence established Father 

failed without justifiable cause to provide support of the Child as ordered by judicial 

decrees. 

{¶22} R.C. 3107.07(A) provides: 

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

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

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

convincing evidence that the parent has failed without justifiable cause to 

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. 
Knox County, Case No. 19 CA 000037 9 

{¶23} The petitioner for adoption has the burden of proving by clear and 

convincing evidence the natural parent has failed to provide more than de minimis contact 

with or to provide for the maintenance and support of the child for at least a one-year 

period prior to the filing of the petition, and also must prove the failure was without 

justifiable cause. In re Adoption of Bovett, 33 Ohio St.3d 102, 104, 515 N.E.2d 919 

(1987). “No burden is to be placed upon the non-consenting parent to prove that his failure 

to communicate was justifiable.” In re Adoption of Holcomb, 18 Ohio St.3d 361, 368, 481 

N.E.2d 613 (1985). “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. 

* * * The determination of the probate court should not be overturned unless it is 

unsupported by clear and convincing evidence.” Id.

Contact 

{¶24} The trial court found Grandparents “failed to prove, by clear and convincing 

evidence, that Father did not have more than de minimis contact with the minor child for 

a period of one year immediately preceding the filing of the Petition.” October 10, 2019 

Judgment Entry at para. 5. 

{¶25} The trial court noted the following evidence in support of its determination. 

Father consistently over several year sent Christmas gifts to the Child through the Angel 

Tree Project. Father completed the application for 2018, but did not receive confirmation 

or notification regarding whether the Child received a gift at Christmas that year. Father 

testified he has mailed a letter to the Child every month since his incarceration. Mandy 

confirmed to Father the letters were received. In December, 2018, he withdrew cash from 
Knox County, Case No. 19 CA 000037 10 

his prison account to purchase a large envelope in which to mail the Child a drawing of 

Spiderman his bunkmate had drawn. Father also sent a second drawing to the Child in 

February, 2019. The trial court noted, “If the correspondence was not received by the 

minor child, it was necessarily caused by Petitioners’ interference.” Id. at para. 9. The 

trial court found Father’s lack of physical contact with the Child was justifiable and his 

“contact through consistent mail correspondence and Christmas gifts constitutes more 

than de minimis contact under the specific circumstances at issue in this case.” Id. at 

para. 10. 

{¶26} The trial court as the trier of fact is free to accept or reject any or all of the 

testimony of the witnesses. The trial court obviously chose to believe Father in this 

instance. 

{¶27} Upon review of the entire record in this matter, we find the trial court's 

determination Father's consent to the adoption was necessary because Father provided 

more than de minimis contact was supported by clear and convincing evidence. 

Support 

{¶28} A probate court must engage in a “three-step analysis” when determining 

whether a parent has failed to provide for the maintenance and support of a child under 

R.C. 3107.07(A). As the Ohio Supreme Court explained in In re Adoption of B.I., 157 

Ohio St.3d 29, 2019-Ohio-2450, 131 N.E.3d 28: 

 To determine whether a parent has failed to provide child support as 

required by law or judicial decree involves a three-step analysis. The court 

must first determine what the law or judicial decree required of the parent 
Knox County, Case No. 19 CA 000037 11 

during the year immediately preceding either the filing of the adoption 

petition or the placement of the minor in the home of the petitioner. Second, 

the court determines whether during that year the parent complied with his 

or her obligation under the law or judicial decree. Third, if during that year 

the parent did not comply with his or her obligation under the law or judicial 

decree, the court determines whether there was justifiable cause for that 

failure. Id. at ¶ 15. 

{¶29} The trial court’s judgment entry reflects in March, 2019, Father was ordered 

to pay child support in the amount of $2.06/month for child support, $0.41/month on 

arrears, and a 2% processing fee, effective November 1, 2018. Father earns 

approximately $20/month and approximately $5.00/month is withheld for child support. 

{¶30} Because Father was in compliance with the March, 2019 child support 

order, we find the trial court did not err in determining Father provided for the support for 

the Child as required by judicial decree within the relevant statutory time frame. 

{¶31} Grandparents’ second and third assignments of error are overruled. 

 
Knox County, Case No. 19 CA 000037 12 

{¶32} The judgment of the Knox County Court of Common Pleas, Probate 

Division, is affirmed. 

By: Hoffman, P.J. 

Wise, John, J. and 

Baldwin, J. concur