[Cite as In re I.M.B., 2012-Ohio-6264.]

COURT OF APPEALS 

STARK COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

IN RE: 

ADOPTION OF IMB 

 

JUDGES: 

Hon. W. Scott Gwin, P.J. 

Hon. William B. Hoffman, J. 

Hon. Julie A. Edwards, J. 

Case No. 2012CA00137 

O P I N I O N 

CHARACTER OF PROCEEDING: Appeal from the Stark County Court of 

Common Pleas, Probate Division Case No. 

213388 

JUDGMENT: Affirmed 

DATE OF JUDGMENT ENTRY: December 31, 2012 

APPEARANCES: 

For Plaintiff-Appellant For Defendant-Appellee 

JENNIFER LOWRY-JUERGENSEN ARNOLD GLANTZ 

Crawford, Lowry & Associates 4883 Dressler Road 

116 Cleveland Aveenue NW Canton, Ohio 44718 

Suite 800 

Canton, Ohio 44702 
Stark County, Case No. 2012CA00137 2

Hoffman, J. 

{¶1} Appellant Lara Barkheimer ("Grandmother") appeals the June 29, 2012 

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

which denied her petition for adoption of her grandson, IMB, upon finding the consent of 

the biological mother, Appellee Krystal Jennings ("Mother"), was required. 

STATEMENT OF THE FACTS AND CASE 

{¶2} Mother is the biological mother of IMB (dob 8/29/06). Grandmother is 

IMB's maternal grandmother. In March, 2009, the Stark County Department of Job and 

Family Services ("SCDJFS") placed IMB with Grandmother after Mother was involved in 

an automobile accident while intoxicated and while IMB was in the vehicle, but not in a 

safety restraint. The Stark County Court of Common Pleas, Family Court Division, 

granted Grandmother custody of IMB in April, 2010. 

{¶3} On November 15, 2011, Grandmother filed a Petition of Adoption. The 

probate court conducted a hearing on May 14, 2012. The following evidence was 

adduced at the hearing. 

{¶4} Grandmother testified Mother had no communication with IMB for the one 

year period prior to her filing her adoption petition. Grandmother stated Mother made 

only one attempt to communicate with the child during this time which was in the form of 

a single text message. Grandmother acknowledged that she asked Mother to leave 

them alone and advised her everything was fine. Grandmother indicated she wanted to 

keep IMB safe and away from Mother because Mother had threatened Grandmother 

and IMB. Mother requested visitation in 2009, but at no other time thereafter. Mother 
Stark County, Case No. 2012CA00137 3

did not send IMB birthday cards, letters, or gifts, and did not have any other 

communication whatsoever with Grandmother. 

{¶5} SCDJFS permitted visits between Mother and IMB, but required such 

visits be supervised by Grandmother. Grandmother, however, did not allow the visits, 

explaining she did not trust Mother. After refusing to permit supervised visits, 

Grandmother advised Mother to obtain an order from family court if she (Mother) 

wanted visitation rights. Grandmother testified the custody order was silent on the issue 

of visitation rights. 

{¶6} Phone records reveal calls made between Mother's phone and 

Grandmother's phone on 15 different days between June, 2011, and November, 2011. 

Mother attempted to call four times on August 29, 2011, IMB's birthday. Phone records 

also establish multiple calls were made from Grandmother's phone to Mother’s phone 

throughout June, 2011. A three-way call involving Grandmother's and Mother's phone 

numbers, which lasted under 2 minutes, occurred on IMB's birthday. 

{¶7} Grandmother did not recall any phone conversations with Mother during 

the year prior to her filing the petition. Grandmother stated any conversation on her 

phone with Mother would have been by either Clark Barkheimer, her ex-husband with 

whom she resided, or Jeremy Barkheimer, her step-son. Grandmother noted she never 

responded to any phone calls or text messages from a phone number she did not 

recognize. Grandmother stated she never blocked Mother's phone number from her 

phone. 

{¶8} Clark Barkheimer testified he did not know Mother's phone number. He 

also stated he never answered Grandmother's phone calls or text messages, but had 
Stark County, Case No. 2012CA00137 4

looked at her phone. Barkheimer acknowledged Grandmother had her phone on her 

person almost all of the time. He reiterated he would not listen to or answer 

Grandmother's phone. Barkheimer had never been served with or received a motion or 

request for visitation. 

{¶9} Jeremy Barkheimer testified he never answered or touched 

Grandmother's phone. He stated he had no personal knowledge of any threats made 

by Mother to Grandmother, but maybe had heard of such threats once or twice. Jeremy 

had no knowledge of any visitation requests made by Mother. 

{¶10} Mother testified she works full-time at KMart. Mother stated she 

attempted to contact Grandmother about 100 times in order to see IMB. Mother 

acknowledged her attempts to contact Grandmother decreased after the family court 

had granted custody of IMB to Grandmother, and Grandmother had advised the court 

Mother was harassing her. Mother maintained she still attempted to contact 

Grandmother. 

{¶11} Mother testified she wants to be in her son's life. She admitted she did not 

ask for visitation at the custody hearing, but noted she was not allowed in the courtroom 

at the time. Mother has filed a motion for visitation in the family court. Mother has gifts 

for IMB. Mother explained she did not mail the gifts because she wanted IMB to receive 

such directly from her, feared Grandmother would keep IMB from receiving the gifts if 

she (Mother) mailed the items, and the postage would be a financial burden on her. 

{¶12} Mother last saw and spoke with IMB before the custody matter was closed 

in April, 2010. Mother acknowledged the financial, emotional/psychological, and other 
Stark County, Case No. 2012CA00137 5

issues she had in the past. Mother stated she understood she could eventually regain 

custody of IMB. 

{¶13} Joanne Corns testified she has known Mother since Mother was 12 years 

old. Corns' daughter and Mother were friends. Corns stated Mother had attempted to 

contact Grandmother on a number of occasions when Mother was at Corns' home. 

Corns recalled Grandmother would hang up on Mother when Mother asked to see IMB. 

Corns was with Mother when Mother called Grandmother on IMB's birthday. Corns 

heard Grandmother tell Mother IMB was better off without her and to leave them alone. 

{¶14} Via Judgment Entry filed June 29, 2012, the trial court denied 

Grandmother's adoption petition. Although the trial court found Mother had failed to 

communicate with IMB during the one year period prior to Grandmother's filing the 

adoption petition, the trial court found Mother had justifiable cause for the failure to 

communicate. The trial court found Mother's consent to the adoption was necessary. 

{¶15} It is from this judgment entry Grandmother appeals, assigning as error: 

{¶16} “I. THE TRIAL COURT ERRED IN FINDING THAT THE BIOLOGICAL 

MOTHER’S CONSENT WAS NECESSARY FOR THE ADOPTION OF HER SON BY 

THE APPELLANT.” 

I 

{¶17} The termination of a natural parent's right to object to the adoption of her 

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

(1994), 99 Ohio App.3d 44, 649 N.E.2d 1279. 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. 
Stark County, Case No. 2012CA00137 6

{¶18} R.C. 3107.07(A) states: 

{¶19} “Consent to adoption is not required of any of the following: 

{¶20} “(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.” 

{¶21} Appellant 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), 18 Ohio St.3d 361, 368, 481 N.E.2d 613. See also In re Adoption of Bovett

(1987), 33 Ohio St.3d 102, 104, 515 N.E.2d 919. “No burden is to be placed upon the 

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

Holcomb at 368. 

{¶22} “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.
Stark County, Case No. 2012CA00137 7

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

Mother's consent, she must prove by clear and convincing evidence that (1) there has 

been a failure of communication or support by the natural parent for the one-year period 

and (2) the failure is unjustified. 

{¶24} Grandmother must also establish that the failure to communicate was 

without justifiable cause. “If the natural parent presents evidence showing that his failure 

to communicate was not unjustified, the petitioner must prove by clear and convincing 

evidence that such failure was not justified.” In re Adoption of Shea (July 24, 1990), 10th 

Dist. No. 90–AP–245, 1990 WL 106468, citing Holcomb.

{¶25} Holcomb further held: 

{¶26} “Significant interference by a custodial parent with communication 

between the non-custodial parent and the child, or significant discouragement of such 

communication, is required to establish justifiable cause for the non-custodial parent's 

failure to communicate with the child. The question of whether justifiable cause exists in 

a particular case is a factual determination for the probate court and will not be 

disturbed upon appeal unless such determination is unsupported by clear and 

convincing evidence.” 18 Ohio St.3d 361, 481 N.E.2d 613, paragraph three of the 

syllabus. 

{¶27} In the instant action, although the trial court found Mother had failed to 

communicate with IMB during the one year period prior to Grandmother’s filing of the 

petition for adoption, the trial court also found Mother presented evidence showing her 

failure to communicate was justified as the result of significant interference and 
Stark County, Case No. 2012CA00137 8

discouragement of communication by Grandmother. We find there is sufficient 

evidence to support the trial court’s decision. 

{¶28} The evidence presented at trial established Mother made sustained efforts 

over a significant period of time to communicate with her son. Phone records of both 

Mother and Grandmother’s phones showed a number of calls between the two phones 

over a six month period. The trial court found Mother’s testimony as to her reason for 

not mailing gifts to IMB to be credible. 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 Mother in this instance. 

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

determination Mother’s consent to the adoption was necessary was supported by clear 

sufficient evidence. 

{¶30} Grandmother’s sole assignment of error is overruled. 

{¶31} The judgment of the Stark County Court of Common Pleas, Probate 

Division, is affirmed. 

By: Hoffman, J. 

Gwin, P.J. and 

Edwards, J. concur s/ William B. Hoffman _________________

 HON. WILLIAM B. HOFFMAN 

 s/ W. Scott Gwin _____________________

 HON. W. SCOTT GWIN 

 s/ Julie A. Edwards___________________

 HON. JULIE A. EDWARDS 

 
Stark County, Case No. 2012CA00137 9

IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

IN RE: 

ADOPTION OF IMB : 

 : 

 : 

 : 

 : JUDGMENT ENTRY 

 : 

 : 

 : Case No. 2012CA00137 

 For the reasons stated in our accompanying Opinion, the judgment of the Stark 

County Court of Common Pleas, Probate Division, is affirmed. Costs assessed to 

Grandmother/Appellant. 

 s/ William B. Hoffman _________________

 HON. WILLIAM B. HOFFMAN 

 s/ W. Scott Gwin _____________________

 HON. W. SCOTT GWIN 

 s/ Julie A. Edwards___________________

 HON. JULIE A. EDWARDS