[Cite as In re Adoption of T.C.W., 2020-Ohio-1484.]

IN THE COURT OF APPEALS OF OHIO 

FOURTH APPELLATE DISTRICT 

MEIGS COUNTY 

IN THE MATTER OF THE : Case No. 19CA6 

ADOPTION OF: : 

 : DECISION AND JUDGMENT 

T.C.W. : ENTRY 

 : 

 

APPEARANCES: 

Lindsey A.B. Price, Price Law Office, Pomeroy, Ohio, for Appellant. 

Trenton Cleland, Law Office of Trenton Cleland, Pomeroy, Ohio, for 

Appellee.1

 

Smith, P.J. 

{¶1} Appellant, S.E., appeals the trial court’s judgment that entered an 

adoption decree determining that his consent to the adoption of his child was 

not required. Appellant first argues that the trial court did not afford him 

due process of law. Specifically, Appellant contends that the court violated 

his due process rights by (1) failing to give him the statutorily-required 

twenty-day notice of the adoption petition hearing, (2) by excluding him 

 

1

 Appellee has not filed an appellate brief or otherwise appeared in this appeal. When an appellee fails to 

file an appellate brief, App.R. 18(C) authorizes us to accept an appellant’s statement of facts and issues as 

correct, then reverse a trial court’s judgment as long as the appellant’s brief “reasonably appears to sustain 

such action.” In other words, an appellate court may reverse a judgment based solely on consideration of 

an appellant's brief. Harper v. Neal, 4th Dist. Hocking No. 15CA25, 2016-Ohio-7179, 2016 WL 5874628, 

¶ 14, citing Fed. Ins. Co. v. Fredericks, 2nd Dist., 2015-Ohio-694, 29 N.E.3d 313, 330–31, ¶ 79; Sites v. 

Sites, 4th Dist. Lawrence No. 09CA19, 2010-Ohio-2748, 2010 WL 2391647, ¶ 13; Sprouse v. Miller, 

Lawrence App. No. 06CA37, 2007-Ohio-4397, 2007 WL 2410894, fn. 1. 
Meigs App. No. 19CA6 2

from part of the consent portion of the hearing, and (3) by excluding him 

from the entire best-interest portion of the hearing. 

{¶2} Appellant did not object to any of the alleged errors at a time

when the trial court could have avoided any error. Thus, we review 

Appellant’s first assignment of error for plain error and will reverse the trial 

court’s judgment only if necessary to prevent a manifest miscarriage of 

justice. 

{¶3} The alleged inadequate notice did not infringe upon Appellant’s

due process rights in a manner that requires us to reverse the trial court’s 

judgment. Instead, Appellant’s appearance and participation in the hearing 

indicates that he received notice of the hearing. Appellant did not argue 

before the trial court that the notice was insufficient or that he needed 

additional time to prepare for the hearing. We thus do not believe that 

failing to recognize any defect in the notification procedure would result in a 

manifest miscarriage of justice. 

{¶4} Furthermore, we do not believe that the trial court deprived 

Appellant of an opportunity to be heard regarding the consent issue by 

ordering court staff to escort him from the hearing after the court had 

determined that Appellant’s consent to the adoption was not required. 

Before the court ordered Appellant’s removal, the court gave Appellant a 
Meigs App. No. 19CA6 3

fair opportunity to be heard regarding whether Appellant’s failure to have 

more than de minimis contact with the child was justifiable. Therefore, we 

do not believe that failing to recognize any error the court may have made 

by ordering Appellant’s removal after it determined his consent was not 

required resulted in a manifest miscarriage of justice as it pertains to the 

consent issue. 

{¶5} However, we believe that the trial court erred by excluding 

Appellant from the best-interest part of the hearing. By excluding Appellant 

from the best-interest part of the hearing, the court deprived Appellant of his 

only and last opportunity to be heard regarding the child’s best interest and 

the termination of his parental rights. For this reason, we believe that failing 

to recognize the court’s error in excluding Appellant from the best-interest 

part of the hearing would result in a manifest miscarriage of justice. 

Accordingly, we sustain the part of Appellant’s first assignment of error 

directed to the trial court’s decision that removed him from the courtroom 

before the best-interest portion of the hearing. 

{¶6} Appellant next challenges the trial court’s finding that his 

consent to the adoption is not required. He contends that the court 

incorrectly concluded that he failed to have more than de minimis contact 

with the child and that he lacked justifiable cause for the failure. We 
Meigs App. No. 19CA6 4

disagree. Appellant admitted that he has not had direct contact with the 

child in approximately three years. Moreover, Appellant’s only contacts 

with the child were a 2017 Christmas package and a 2018 Christmas card 

that contained $25. Additionally, the record contains some competent and 

credible evidence to support the trial court’s finding that Appellant lacked 

justifiable cause for his failure to have more than de minimis contact with 

the child. Appellant agreed that he could have walked to the child’s 

residence and “bang[ed] on the door” but that he did not so that he would not 

create unspecified “problems.” 

{¶7} Appellant also argues that the trial court failed to adequately

consider the best-interest factors when determining that the adoption is in the 

child’s best interest. However, we believe that our disposition of 

Appellant’s first assignment of error renders this last assignment of error 

moot. 

{¶8} Accordingly, we sustain Appellant’s first assignment of error in 

part and reverse and remand the trial court’s judgment in part so that the 

court may afford Appellant an opportunity to be heard regarding whether the 

adoption is in the child’s best interest. We overrule Appellant’s assignments 

of error challenging the court’s finding that Appellant’s consent to the 

adoption is not required, and we affirm the trial court’s decision that 
Meigs App. No. 19CA6 5

Appellant’s consent to the adoption is not required. We overrule as moot 

Appellant’s last assignment of error. 

FACTS 

{¶9} On April 11, 2019, the child’s stepfather filed a petition to adopt 

the child. The petition alleged that Appellant’s consent is not required 

because Appellant failed without justifiable cause to provide more than 

de minimis contact with the child for a period of at least one year 

immediately preceding the filing of the adoption petition or the placement of 

the child in the home of the petitioner. On that same date, the court set the 

adoption petition for a hearing to be held on May 14, 2019. Additionally, 

the court sent a notice of hearing on the adoption petition to Appellant via 

certified mail. On April 29, 2019, the court sent another notice via certified 

mail. The record transmitted on appeal does not contain any information 

that reveals whether either piece of certified mail was successfully served 

upon Appellant. 

{¶10} Nevertheless, Appellant appeared for the adoption petition 

hearing. At the hearing, the child’s mother stated that Appellant had not had 

any contact with the child in almost three years. The child’s mother 

explained that in December 2018, Appellant sent a Christmas card that 

contained $25, and that in December 2017, Appellant sent some gifts for the 
Meigs App. No. 19CA6 6

child. The mother stated that other than those two mailings, Appellant had 

not had any other contact with the child. 

{¶11} Appellant agreed that he had not had any contact with the child

for more than one year preceding the adoption petition. The trial judge 

asked Appellant why he had not attempted to have contact with the child in 

nearly three years, even though he could have “walk[ed] down once a week 

and bang[ed] on the door.” Appellant indicated that he thought doing so 

would create “problems.” 

{¶12} After hearing the evidence regarding Appellant’s contact, or 

lack thereof, with the child, the court concluded that Appellant’s consent 

was not required. The court noted that the evidence did not suggest that the 

child’s mother and stepfather had attempted to hide from Appellant or to 

change their phone number. The court advised Appellant of his right to 

appeal and briefly explained to Appellant that Appellant should retain 

counsel or research how to file a notice of appeal. The court then asked 

court staff to “walk” Appellant out of the courtroom. 

{¶13} After Appellant left the courtroom, the trial judge explained to 

those remaining in the courtroom why he concluded that Appellant’s consent 

was not necessary. The judge explained that “anything” Appellant “did was 

de minimis.” The judge additionally indicated that Appellant “sat on his 
Meigs App. No. 19CA6 7

rights and didn’t do anything about it.” The court continued: “So, and I 

want, and I wanted to give him a fair shake. All right, so the records [sic] 

there, where we’re at right now the Court finds consent not necessary.” The 

court then asked the parties whether they were prepared to proceed with the 

remainder of the adoption hearing. 

{¶14} The trial court subsequently granted the adoption petition. 

ASSIGNMENTS OF ERROR 

Appellant raises the following assignments of error: 

“1A: The Probate Court erred in failing to provide Appellant Father 

sufficient notice of the hearing on petition for adoption.” 

“1B: The Probate Court erred in refusing to allow Appellant Father to 

be present for the entirety of the consent portion of the hearing.” 

“1C: The Probate Court erred in refusing to allow Appellant Father to 

be present for the best interest portion of the hearing.” 

“2. The Probate Court erred in finding that Appellant Father’s

consent to the adoption was not necessary because Appellant Father’s 

contact with the minor child was de minimis for the one year look 

back period and/or erred in failing to find that Father had justifiable 

cause for Father’s relative lack of contact with the minor child.” 

“3. The Probate Court erred in finding that it was bound by law to 

order that Appellant Father’s consent to the adoption was not 

necessary if the court found that Appellant Father’s contact with 

minor child was de minimis.” 

“4: The Probate Court erred in failing to sufficiently consider the best 

interest factors found in R.C. 3109.04 and R.C. 3107.161 in making 

the determination that the adoption was in the best interest of the 

minor child.” 
Meigs App. No. 19CA6 8

FIRST ASSIGNMENT OF ERROR 

{¶15} In his three-part first assignment of error Appellant argues that 

the trial court erred (1) by failing to provide him with sufficient notice of the 

adoption petition hearing, (2) by refusing to allow him to be present for the 

entire consent portion of the hearing, and (3) by refusing to allow him to be 

present for the best-interest part of the hearing. 

{¶16} Initially, we observe that Appellant did not object to the alleged 

inadequacies of the notice or to his removal from the courtroom midway 

through the hearing. It is well-settled that a party may not raise any new 

issues or legal theories for the first time on appeal. Stores Realty Co. v. 

Cleveland, 41 Ohio St.2d 41, 43, 322 N.E.2d 629 (1975). Thus, a litigant

who fails to raise an argument before the trial court forfeits the right to raise 

that issue on appeal. Independence v. Office of the Cuyahoga Cty. 

Executive, 142 Ohio St.3d 125, 2014-Ohio-4650, 28 N.E.3d 1182, ¶ 30 

(stating that “an appellant generally may not raise an argument on appeal 

that the appellant has not raised in the lower courts”); State v. Quarterman, 

140 Ohio St.3d 464, 2014-Ohio-4034, 19 N.E.3d 900, ¶ 21 (explaining that 

defendant forfeited his constitutional challenge by failing to raise it during 

trial court proceedings); Gibson v. Meadow Gold Dairy, 88 Ohio St.3d 201, 

204, 724 N.E.2d 787 (2000) (concluding that party waived arguments for 
Meigs App. No. 19CA6 9

purposes of appeal when party failed to raise those arguments during trial 

court proceedings); State ex rel. Gutierrez v. Trumbull Cty. Bd. of Elections, 

65 Ohio St.3d 175, 177, 602 N.E.2d 622 (1992) (explaining that an appellant 

cannot “present * * * new arguments for the first time on appeal”); accord

State ex rel. Jeffers v. Athens Cty. Commrs., 4th Dist. Athens No. 15CA27, 

2016-Ohio-8119, 2016 WL 7230928, fn.3 (stating that “[i]t is well-settled 

that failure to raise an argument in the trial court results in waiver of the 

argument for purposes of appeal”); State v. Anderson, 4th Dist. Washington 

No. 15CA28, 2016-Ohio-2704, 2016 WL 1643247, ¶ 24 (explaining that 

“arguments not presented in the trial court are deemed to be waived and may 

not be raised for the first time on appeal”). 

{¶17} Appellate courts may, however, consider a forfeited argument 

using a plain-error analysis. See Risner v. Ohio Dept. of Nat. Resources, 

Ohio Div. of Wildlife, 144 Ohio St.3d 278, 2015-Ohio-3731, 42 N.E.3d 718, 

¶ 27 (stating that reviewing court has discretion to consider forfeited 

constitutional challenges); see also Hill v. Urbana, 79 Ohio St.3d 130, 133-

34, 679 N.E.2d 1109 (1997), citing In re M.D., 38 Ohio St.3d 149, 527 

N.E.2d 286 (1988), syllabus (stating that “[e]ven where [forfeiture] is clear, 

[appellate] court[s] reserve[] the right to consider constitutional challenges 

to the application of statutes in specific cases of plain error or where the 
Meigs App. No. 19CA6 10

rights and interests involved may warrant it”). For the plain error doctrine to 

apply, the party claiming error must establish (1) that “ ‘an error, i.e., a 

deviation from a legal rule’ ” occurred, (2) that the error was “ ‘an “obvious” 

defect in the trial proceedings,’ ” and (3) that this obvious error affected 

substantial rights, i.e., the error “ ‘must have affected the outcome of the 

trial.’ ” State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 

860, ¶ 22, quoting State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 

(2002); Schade v. Carnegie Body Co., 70 Ohio St.2d 207, 209, 436 N.E.2d 

1001, 1003 (1982) (“A ‘plain error’ is obvious and prejudicial although 

neither objected to nor affirmatively waived which, if permitted, would have 

a material adverse affect [sic] on the character and public confidence in 

judicial proceedings.”). For an error to be “plain” or “obvious,” the error 

must be plain “ ‘under current law.’ ” Johnson v. United States, 520 U.S. 

461, 467, 468, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997), quoting United 

States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). 

Accord Barnes, supra, at 27; State v. G.C., 10th Dist. Franklin No. 15AP536, 2016-Ohio-717, ¶ 14. Thus, the error must be plain “at the time of 

appellate consideration.” Johnson at 467. 

{¶18} The plain error doctrine is not, however, readily invoked in 

civil cases. Instead, an appellate court “must proceed with the utmost 
Meigs App. No. 19CA6 11

caution” when applying the plain error doctrine in civil cases. Goldfuss v. 

Davidson, 79 Ohio St.3d 116, 121, 679 N.E.2d 1099 (1997). The Supreme 

Court of Ohio has set a “very high standard” for invoking the plain error 

doctrine in a civil case. Perez v. Falls Financial, Inc., 87 Ohio St.3d 371, 

721 N.E.2d 47 (2000). Thus, “the doctrine is sharply limited to the 

extremely rare case involving exceptional circumstances where error, to 

which no objection was made at the trial court, seriously affects the basic 

fairness, integrity, or public reputation of the judicial process, thereby 

challenging the legitimacy of the underlying judicial process itself.” 

Goldfuss, 79 Ohio St.3d at 122, 679 N.E.2d 1099; accord Gable v. Gates 

Mills, 103 Ohio St.3d 449, 2004-Ohio-5719, 816 N.E.2d 1049, ¶ 43. 

Moreover, appellate courts “ ‘should be hesitant to decide [forfeited errors] 

for the reason that justice is far better served when it has the benefit of 

briefing, arguing, and lower court consideration before making a final 

determination.’ ” Risner at ¶ 28, quoting Sizemore v. Smith, 6 Ohio St.3d 

330, 332, 453 N.E.2d 632 (1983), fn. 2; accord Mark v. Mellott Mfg. Co., 

Inc., 106 Ohio App.3d 571, 589, 666 N.E.2d 631 (4th Dist.1995) (“Litigants 

must not be permitted to hold their arguments in reserve for appeal, thus 

evading the trial court process.”). Additionally, “[t]he plain error doctrine 

should never be applied to reverse a civil judgment * * * to allow litigation 
Meigs App. No. 19CA6 12

of issues which could easily have been raised and determined in the initial 

trial.” Goldfuss, 79 Ohio St.3d at 122, 679 N.E.2d 1099. 

{¶19} Therefore, in the case at bar, we will review Appellant’s threepart first assignment of error for plain error. 

{¶20} Natural parents possess a constitutionally-protected, 

“ ‘fundamental liberty interest in the care, custody, and management of their 

children.’ ” In re Adoption of K.N.W., 4th Dist. Athens Nos. 15CA36 and 

15CA37, 2016-Ohio-5863, ¶ 21, citing State ex rel. V.K.B. v. Smith, 138 

Ohio St.3d 84, 2013-Ohio-5477, 3 N.E.3d 1184, ¶ 16, quoting In re 

Hockstok, 98 Ohio St.3d 238, 2002-Ohio-7208, 781 N.E.2d 971, ¶ 16; In re 

Mullen, 129 Ohio St.3d 417, 2011-Ohio-3361, 953 N.E.2d 302, ¶ 11. 

Because an adoption permanently terminates a natural parent’s parental 

rights, courts must afford the natural parent every procedural and substantive 

protection before it deprives a parent of the right to consent to the adoption. 

In re Hayes, 79 Ohio St.3d 46, 48, 679 N.E.2d 680 (1997). “ ‘Among those 

protections are the right to adequate notice and an opportunity to be heard 

before any parental rights which may exist are terminated.’ ” State ex rel. 

Smith v. Smith, 75 Ohio St.3d 418, 421, 662 N.E.2d 366 (1996), quoting In 

re Adoption of Greer, 70 Ohio St.3d 293, 298, 638 N.E.2d 999 (1994), citing 

Lehr v. Robertson, 463 U.S. 248, 103 S.Ct. 2985, 77 L.Ed.2d 614 (1983); In 
Meigs App. No. 19CA6 13

re Adoption of Zschach, 75 Ohio St.3d 648, 653, 665 N.E.2d 1070 (1996)

(observing that “ ‘[t]he fundamental requirement of due process is the 

opportunity to be heard “at a meaningful time and in a meaningful 

manner” ’ ”), quoting Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 

47 L.Ed.2d 18 (1976), quoting Armstrong v. Manzo, 380 U.S. 545, 552, 85 

S.Ct. 1187, 14 L.Ed.2d 62 (1965). Moreover, courts must strictly construe 

adoption statutes “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); accord In re Adoption of B.I., 157 Ohio St.3d 29, 2019-Ohio2450, 131 N.E.3d 28, ¶ 12; In re Adoption of G.V., 126 Ohio St.3d 249, 

2010-Ohio-3349, 933 N.E.2d 245, ¶ 6; In re Adoption of Masa, 23 Ohio 

St.3d 163, 165, 492 N.E.2d 140 (1986). 

{¶21} Upon the filing of a petition to adopt, R.C. 3107.11(A) requires 

a trial court to “fix a time and place for hearing the petition” and to provide 

at least twenty days’ notice of the time and place of the hearing to any 

person whose consent to the adoption is necessary and to any person whose 

consent is not necessary under R.C. 3107.07(A) and certain other provisions. 

Under R.C. 3107.07(A), a biological parent’s consent is unnecessary if “the 

parent has failed without justifiable cause to provide more than de minimis 

contact with the minor * * * for a period of at least one year immediately 
Meigs App. No. 19CA6 14

preceding either the filing of the adoption petition or the placement of the 

minor in the home of the petitioner.” Once the court determines whether 

“the required consents have been obtained or excused,” the court then must 

consider whether “the adoption is in the best interest of the person sought to 

be adopted.” R.C. 3107.14(C); In re Adoption of Walters, 112 Ohio St.3d 

315, 2007-Ohio-7, 859 N.E.2d 545 ¶ 5. 

{¶22} Appellant first asserts that he did not receive adequate notice of 

the hearing. He alleges that R.C. 3107.11 requires the court to send notice 

of an adoption petition hearing at least twenty days before the hearing. 

Appellant argues that he did not receive notice of the adoption petition 

hearing at least twenty days before the hearing and that the trial court, 

therefore, lacked jurisdiction to proceed with the adoption petition hearing. 

{¶23} In In re Adoption of Chapman, 4th Dist. Ross No. 03CA2722, 

2004-Ohio-254, 2004 WL 102796, this court determined that a trial court 

lacked jurisdiction over a parent in an adoption proceeding when the parent 

had not received notice of the adoption petition hearing at least twenty days 

before the date of the hearing. In Chapman, the parent had been served by 

publication with the last date of publication occurring approximately two 

and one-half weeks before the adoption petition hearing. The parent did not 
Meigs App. No. 19CA6 15

appear for the adoption petition hearing and the trial court subsequently 

entered an adoption decree. 

{¶24} Approximately five months after the adoption decree, the parent

filed a Civ.R. 60(B) motion for relief from judgment. The trial court denied 

the parent’s motion, and he appealed. 

{¶25} We strictly construed the R.C. 3107.11(A) twenty-day notice 

requirement and determined that because the parent had not received notice 

in accordance with the twenty-day period set forth in R.C. 3107.11(A), “the 

trial court did not have jurisdiction over [the parent] in the adoption 

proceedings.” Id. at ¶ 11. We thus agreed with the parent that the trial court 

lacked jurisdiction to enter an order in the adoption proceeding and reversed 

the trial court’s judgment. Id. at ¶ 12. 

{¶26} Here, we do not believe that Chapman requires us to conclude 

that the trial court lacked jurisdiction to enter an adoption decree involving 

Appellant’s child. Unlike the parent in Chapman, Appellant does not 

dispute that he received notice of the adoption petition hearing at some point 

before the hearing occurred. Furthermore, Appellant, again unlike the parent 

in Chapman, appeared for the adoption petition hearing and participated in 

the consent phase of the adoption petition hearing. 
Meigs App. No. 19CA6 16

{¶27} Moreover, we observe that a party may waive a challenge to a 

court’s personal jurisdiction by voluntarily appearing before the court. State 

v. Mbodji, 129 Ohio St.3d 325, 2011-Ohio-2880, 951 N.E.2d 1025, ¶ 10; 

Gliozzo v. Univ. Urologists of Cleveland, Inc., 114 Ohio St.3d 141, 2007-

Ohio-3762, 870 N.E.2d 714, ¶ 13. In the present case, Appellant appeared 

before the court and did not raise any claim that he lacked adequate notice of 

the adoption petition hearing. He also did not request a continuance in order 

to obtain counsel or to gather evidence to present at the adoption petition 

hearing. Furthermore, Appellant has not argued on appeal what evidence or 

arguments he would have made to counter his admission that he failed to 

have contact with his child for approximately three years. Consequently, 

under the circumstances present in the case at bar, we are unable to conclude 

that the trial court erred by failing to give Appellant the statutorily-required 

twenty days’ notice of the adoption petition hearing. 

{¶28} Appellant next argues that the trial court violated his due 

process rights by removing him from the hearing once the court determined 

that his consent was not necessary. 

{¶29} Even when a court determines that a parent’s consent is not 

required due to the parent’s unjustifiable failure to have more than 

de minimis contact with the child for at least one year before the adoption 
Meigs App. No. 19CA6 17

petition, the parent retains a due process right to notice and an opportunity to 

be heard on the question whether the adoption is in the child’s best interest. 

In re Adoption of R.M.T., 12th Dist. Warren No. CA2017-12-177, 2018-

Ohio-1691, 2018 WL 2041564, ¶ 26; In re Adoption of Groh, 153 Ohio 

App.3d 414, 2003-Ohio-3087, ¶ 71-73, 794 N.E.2d 695 (7th Dist.); In re 

Adoption of Jordan, 72 Ohio App.3d 638, 646, 595 N.E.2d 963 (12th Dist. 

1991); In re Adoption of Jorgensen, 33 Ohio App.3d 207, 209, 515 N.E.2d 

622 (3d Dist.1986). In R.M.T., for instance, the court found that the father 

“was entitled to an opportunity to participate in the proceedings to show that 

the adoption was not in [the child’s] best interest,” even though the trial 

court had found that the father’s consent to the adoption was not required. 

The court explained: 

“[U]ntil the hearing on the merits of the petition and the best

interest of the minor child has been determined the natural 

parent not only retains parental rights and responsibilities but 

retains an overriding interest in being heard relevantly on the

issue of whether the proposed adoption would be in the best 

interest of the child.” In re Adoption of Jordan, 72 Ohio 

App.3d 638, 646, 595 N.E.2d 963 (12th Dist. 1991), quoting In 

re Adoption of Jorgensen, 33 Ohio App.3d 207, 209, 515 

N.E.2d 622 (3d Dist.1986). 

Id. at ¶ 26; accord In re Adoption of B.M.S., 10th Dist. Franklin No. 07AP236, 2007-Ohio-5966, 2007 WL 3293369, ¶ 14. 
Meigs App. No. 19CA6 18

{¶30} Here, the trial judge inexplicably removed Appellant from the 

courtroom once the court determined that Appellant’s consent to the 

adoption was not required. After Appellant’s removal, the court continued 

with the hearing and considered whether adoption was in the child’s best 

interest. By depriving Appellant of an opportunity to be heard on the matter 

of the child’s best interest, the trial court plainly violated Appellant’s due 

process rights. R.M.T. at ¶ 26; Groh at ¶ 71-73; Jordan, 72 Ohio App.3d at 

646; Jorgensen, 33 Ohio App.3d at 209. 

{¶31} Moreover, we believe that the trial court’s error is of sufficient 

magnitude to result in a miscarriage of justice because of the fundamental 

liberty interest at stake. By removing Appellant from the hearing, the court 

denied Appellant the opportunity to show the court that the adoption is not in 

the child’s best interest. The court thus denied Appellant his last and only 

opportunity to establish that the court should not permanently sever his 

relationship with the child and permanently terminate his fundamental 

parental rights. Thus, we believe that failing to correct the trial court’s error 

would create a manifest miscarriage of justice in that it would permit the 

termination of Appellant’s parental rights without affording Appellant an 

opportunity to be heard on the merits. 
Meigs App. No. 19CA6 19

{¶32} We do not, however, believe that the trial court plainly erred by 

depriving Appellant of a fair opportunity to be heard regarding whether his 

consent to the adoption is required. The court removed Appellant from the 

courtroom after the court had heard Appellant’s testimony and explanation 

why he did not have contact with the child during the year preceding the 

adoption petition. Before the court removed Appellant, the court questioned 

Appellant and listened to his answers. Additionally, while Appellant 

remained in the courtroom, the court informed Appellant that it determined 

that his consent was not necessary and explained that the court did not 

believe Appellant had established a “justifiable reason” for failing to 

communicate with the child. The court then advised Appellant of his right 

to appeal, and Appellant stated that he wanted to appeal the court’s decision. 

Shortly thereafter, the court requested court staff to escort Appellant out of 

the courtroom. 

{¶33} After the court removed Appellant, the court expounded upon 

its rationale for finding that Appellant’s consent was not required. We do 

not believe that the court’s ruminations during Appellant’s absence deprived 

Appellant of a fair opportunity to be heard regarding the consent issue. 

{¶34} Accordingly, we sustain the part of Appellant’s first assignment 

of error that challenges the court’s decision to exclude him from the best-
Meigs App. No. 19CA6 20

interest part of the hearing. In all other respects, we overrule Appellant’s 

first assignment of error. 

SECOND AND THIRD ASSIGNMENTS OF ERROR 

{¶35} Appellant’s second and third assignments of error challenge the

trial court’s finding that his consent to the adoption was not required. 

Because the same essential principles apply to both assignments of error, we 

consider them together. 

{¶36} In his second assignment of error, Appellant claims that the trial 

court wrongly determined that he failed without justifiable cause to have 

more than de minimis contact with the child for the one-year period 

preceding the filing of the adoption petition. 

{¶37} In his third assignment of error, Appellant asserts that the trial 

court erred by concluding that Ohio law required it to find that Appellant’s 

consent to adopt was not required if the court determined that Appellant’s 

contact with the child was de minimis. 

{¶38} Because parents have a constitutionally protected fundamental 

liberty interest in the care, custody, and management of their children, 

parental consent to an adoption ordinarily is required. In re Adoption of 

Schoeppner, 46 Ohio St.2d 21, 24, 345 N.E.2d 608 (1976); accord In re 

Adoption of M.G.B.-E., 154 Ohio St.3d 17, 2018-Ohio-1787, 110 N.E.3d 
Meigs App. No. 19CA6 21

1236, ¶ 40; R.C. 3107.06. Any exception to the consent requirement “must 

be strictly construed so as to protect the right of natural parents to raise and 

nurture their children.” In re Adoption of Schoeppner, 46 Ohio St.2d 21, 24, 

345 N.E.2d 608 (1976); accord In re Adoption of M.G.B.-E., 154 Ohio St.3d 

17, 2018-Ohio-1787, 110 N.E.3d 1236, ¶ 40. 

{¶39} R.C. 3107.07 defines the circumstances under which a parent’s 

consent to adoption is not required. As relevant in the case at bar, under 

R.C. 3107.07(A), a parent’s consent to adoption is not required if the trial 

court “finds by clear and convincing evidence that the parent 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 either the 

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

the petitioner.” 

{¶40} R.C. 3107.07(A) thus involves “a two-step analysis.” In re 

Adoption of M.B., 131 Ohio St.3d 186, 2012-Ohio-236, 963 N.E.2d 142, 

¶ 23. First, a court must consider whether a parent failed to have more than 

de minimis contact with the child or failed to support the child for a 

minimum of one year preceding the filing of the adoption petition. Id. 

Second, if the parent failed in either of the foregoing respects, the court then 

determines whether justifiable cause exists. Id. A parent ordinarily “has 
Meigs App. No. 19CA6 22

justifiable cause for failing to communicate when the custodial parent 

significantly interferes with or significantly discourages communication.” In 

re Adoption of M.G.B.-E., 154 Ohio St.3d 17, 2018-Ohio-1787, 110 N.E.3d 

1236, ¶ 39. 

{¶41} The party petitioning for adoption has the burden of proving by

clear and convincing evidence that the parent failed without justifiable cause 

to have more than de minimis contact with the child. In re Holcomb, 18 

Ohio St.3d 361, 368, 481 N.E.2d 613 (1985); accord In re B.B.S., 4th Dist. 

Washington No. 15CA35, 2016-Ohio-3515, ¶ 30. In other words, “[n]o 

burden is to be placed upon the non-consenting parent to prove that his 

failure * * * was justifiable.” Holcomb at 368. 

{¶42} A probate court possesses discretion when determining whether 

a parent failed to have contact with the child during the one-year period. Id.

at ¶ 25. Thus, in the absence of an abuse of discretion, an appellate court 

will not disturb the probate court’s finding concerning a parent’s failure to 

have contact with the child. Id. Abuse of discretion means an 

“ ‘unreasonable, arbitrary, or unconscionable use of discretion, or 

* * * a view or action that no conscientious judge could honestly have 

taken.’ ” State v. Kirkland, 140 Ohio St.3d 73, 2014-Ohio-1966, 15 N.E.3d 

818, ¶ 67, quoting State v. Brady, 119 Ohio St.3d 375, 2008-Ohio-4493, 894 
Meigs App. No. 19CA6 23

N.E.2d 671, ¶ 23. “An abuse of discretion includes a situation in which a 

trial court did not engage in a ‘ “sound reasoning process.” ’ ” State v. 

Darmond, 135 Ohio St.3d 343, 2013-Ohio-966, 986 N.E.2d 971, ¶ 34, 

quoting State v. Morris, 132 Ohio St.3d 337, 2012-Ohio-2407, 972 N.E.2d 

528, ¶ 14, quoting AAAA Ents., Inc. v. River Place Community Urban 

Redevelopment Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990). The 

“[a]buse-of-discretion review is deferential and does not permit an appellate 

court to simply substitute its judgment for that of the trial court.” Darmond

at ¶ 34. Accordingly, the probate court’s decision may be reversed only if 

an appellant can demonstrate that the decision was unreasonable, arbitrary, 

or unconscionable. 

{¶43} The question of justifiable cause, however, is a factual matter

for the probate court that an appellate court will not disturb unless the 

probate court’s finding “ ‘is against the manifest weight of the evidence.’ ” 

M.B. at ¶ 24, quoting In re Adoption of Masa, 23 Ohio St.3d 163, 492 

N.E.2d 140 (1986), paragraph two of the syllabus. “When an appellate court 

reviews whether a trial court’s decision is against the manifest weight of the 

evidence, the court weighs the evidence and all reasonable inferences, 

considers the credibility of witnesses and determines whether in resolving 

conflicts in the evidence, the factfinder clearly lost its way and created such 
Meigs App. No. 19CA6 24

a manifest miscarriage of justice that the judgment must be reversed.” 

Martin v. Jones, 2015-Ohio-3168, 41 N.E.3d 123, ¶ 68 (4th Dist.), citing 

Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, 

¶ 25. Generally, an appellate court will presume that a trial court’s findings 

are accurate and will reverse a judgment as being against the manifest 

weight of the evidence only in the exceptional case in which the evidence 

weighs heavily against the judgment. In re K.N.W., 4th Dist. Athens Nos. 

15CA36, 15CA37, 2016-Ohio-5863, ¶ 27. 

{¶44} Moreover, when reviewing evidence under the manifest weight 

of the evidence standard, an appellate court generally must defer to the 

factfinder’s credibility determinations. Eastley at ¶ 21. Thus, “ ‘ “every 

reasonable intendment must be made in favor of the judgment and the 

finding of facts.” ’ ” Id., quoting Seasons Coal Co., 10 Ohio St.3d at 80, fn. 

3, quoting 5 Ohio Jurisprudence 3d, Appellate Review, Section 60, at 191-

192 (1978). Furthermore, “ ‘ “[i]f the evidence is susceptible of more than 

one construction, the reviewing court is bound to give it that interpretation 

which is consistent with the verdict and judgment, most favorable to 

sustaining the verdict and judgment.” ’ ” Id., quoting Seasons Coal Co., 10 

Ohio St.3d at 80, fn. 3, quoting 5 Ohio Jurisprudence 3d, Appellate Review, 

Section 60, at 191-192 (1978). 
Meigs App. No. 19CA6 25

{¶45} Consequently, “we should not reverse a judgment merely 

because the record contains evidence that could reasonably support a 

different conclusion.” Bugg v. Fancher, 4th Dist. Highland No. 06CA12, 

2007-Ohio-2019, 2007 WL 1225734, ¶ 9. Instead, as we explained in Bugg: 

It is the trier of fact’s role to determine what evidence is the 

most credible and convincing. The fact finder is charged with 

the duty of choosing between two competing versions of 

events, both of which are plausible and have some factual 

support. Our role is simply to insure the decision is based upon 

reason and fact. We do not second guess a decision that has 

some basis in these two factors, even if we might see matters 

differently. Rather, we must defer to the trier of fact in that 

situation. 

Id. at ¶ 9. 

{¶46} As such, when there are two fairly reasonable views of the 

evidence or two conflicting versions of events, neither of which is 

unbelievable, we will not choose which one is more credible. State v. Gore, 

131 Ohio App.3d 197, 201, 722 N.E.2d 125 (7th Dist.1999). We 

additionally observe that the factfinder is free to believe all, part, or none of 

the testimony of each witness appearing before it and “may separate the 

credible parts of the testimony from the incredible parts.” KB Resources, 

LLC v. Patriot Energy Partners, LLC, 7th Dist. Columbiana No. 17 CO 

0002, 2018-Ohio-2771, 2018 WL 3487166, ¶ 85; Thompson v. Hayslip, 74 

Ohio App.3d 829, 600 N.E.2d 756 (4th Dist. 1991). 
Meigs App. No. 19CA6 26

{¶47} After our review of the evidence here, we do not believe that 

the trial court abused its discretion by determining that Appellant failed to 

have more than de minimis contact with the child during the year preceding 

the filing of the adoption petition. At the hearing, Appellant admitted that he 

had not had any direct contact with the child in approximately three years. 

The testimony showed that Appellant’s only contact with the child was 

through a 2018 Christmas card and a 2017 Christmas package. Other than 

those two instances, Appellant did not have any other contact with the child. 

Therefore, we lack any basis to find that the trial court acted unreasonably, 

unconscionably, or arbitrarily by determining that Appellant did not have 

more than de minimis contact with the child. 

{¶48} Furthermore, we do not believe that the court’s finding that 

Appellant lacked justifiable cause for failing to have more than de minimis 

contact with the child is against the manifest weight of the evidence. 

Appellant indicated that even though he could have attempted to contact the 

child, he did not because he was afraid of causing “problems.” The court 

noted that Appellant could have walked to the child’s residence “once a 

week and bang[ed] on the door.” Appellant responded: “Oh no, that wasn’t 

allowed.” The court asked Appellant whether he bore some responsibility 

for not attempting to contact the child. Appellant stated that he “guess[ed]” 
Meigs App. No. 19CA6 27

so, but “when you live with the devil, I mean you aint [sic] allowed to do a 

certain thing, you, I mean it just causes problems at home.” We believe that 

the foregoing evidence constitutes some competent and credible evidence to 

support the court’s finding that Appellant’s failure to contact the child was 

not justifiable. Consequently, we will not disturb the court’s finding. 

{¶49} Appellant further alleges that the trial court erred as a matter of 

law. Appellant asserts that the court operated under an erroneous 

presumption that Ohio law required the court to find that Appellant’s 

consent to the adoption is not required if the court found that Appellant’s 

contact with the child was de minimis. Appellant cites various parts of the 

adoption hearing transcript to support his argument. However, after our 

review of the entire record, we are unable to agree with Appellant that the 

trial court applied an incorrect legal rule when it found that Appellant’s 

consent to the adoption is not required. We note that a court speaks only 

through its journal entries and that none of the journal entries in this case 

indicate that the court applied an incorrect rule of law. E.g., S.P. Drilling 

Services, Inc. v. Cooper's Excavating LLC, 4th Dist. Adams No. 17CA1058, 

2019-Ohio-55, 2019 WL 171567, ¶ 13, citing Short v. Greenfield Meadows 

Assoc., 4th Dist. Highland No. 07CA14, 2008-Ohio-3311, ¶ 11. 
Meigs App. No. 19CA6 28

Additionally, the entirety of the adoption hearing transcripts fails to show 

that the trial court applied an incorrect legal rule. 

{¶50} Accordingly, based upon the foregoing reasons, we overrule 

Appellant’s second and third assignments of error and affirm the trial court’s 

judgment. 

FOURTH ASSIGNMENT OF ERROR 

{¶51} In his fourth assignment of error, Appellant argues that the trial 

court erred by failing to adequately consider the best-interest factors. We 

believe that our disposition of Appellant’s assignment of error challenging 

the court’s decision to remove him from the courtroom before the bestinterest hearing renders Appellant’s fourth assignment of error moot. Thus, 

we do not address it. App.R. 12(A)(1)(c). 

{¶52} Accordingly, based upon the foregoing reasons, we summarily 

overrule Appellant’s fourth assignment of error. 

CONCLUSION 

{¶53} Based upon the foregoing reasons, we sustain the portion of 

Appellant’s first assignment of error that challenges the court’s decision to 

remove him from the courtroom before the best-interest hearing. In all other 

respects, we overrule Appellant’s first assignment of error. We also overrule 
Meigs App. No. 19CA6 29

Appellant’s second and third assignments of error. We overrule as moot 

Appellant’s fourth assignments of error. 

{¶54} We affirm the trial court’s decision that Appellant’s consent to 

the adoption is not required. But we reverse the trial court’s judgment 

granting the adoption, and we remand the matter to the trial court so that it 

may allow Appellant an opportunity to be heard on the matter of the child’s 

best interest. 

JUDGMENT AFFIRMED IN 

PART AND REVERSED AND 

REMANDED IN PART. 
Meigs App. No. 19CA6 30

JUDGMENT ENTRY 

 It is ordered that the JUDGMENT BE AFFIRMED IN PART AND 

REVERSED AND REMANDED IN PART. Costs shall be divided equally 

between the parties. 

 The Court finds there were reasonable grounds for this appeal. 

 It is ordered that a special mandate issue out of this Court directing 

the Meigs County Common Pleas Court, Probate Division, to carry this 

judgment into execution. 

 Any stay previously granted by this Court is hereby terminated as of 

the date of this entry. 

 A certified copy of this entry shall constitute the mandate pursuant to 

Rule 27 of the Rules of Appellate Procedure. 

Abele, J. & Hess, J.: Concur in Judgment and Opinion. 

For the Court, 

 ______________________________ 

 Jason P. Smith 

 Presiding Judge 

NOTICE TO COUNSEL 

 Pursuant to Local Rule No. 14, this document constitutes a final 

judgment entry and the time period for further appeal commences from 

the date of filing with the clerk.