[Cite as In re Adoption of A.R.M.R. , 2019-Ohio-253.] 

# Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 106969

IN RE: ADOPTION OF A.R.M.R. A Minor Child

[Appeal by J.J., Mother]

JUDGMENT: REVERSED AND REMANDED

Civil Appeal from the Cuyahoga County Court of Common Pleas Probate Division Case No. 2017 ADP 09087

BEFORE: E.T. Gallagher, J., E.A. Ga llagher,P.J., and Celebrezze, J.

RELEASED AND JOURNALIZED: January 24, 2019ATTORNEYS FOR APPELLANT

Cara L. Santosuosso Rachel P. Kareha Laubacher & Company Westgate Towers, Suite #626 20525 Center Ridge Road Rocky River, Ohio 44116

ATTORNEY FOR APPELLEE

Patrick Dichiro Law Office of Patrick Dichiro 6300 Rockside Road, Suite 302 Seven Hills, Ohio 44131

EILEEN T. GALLAGHER, J.: {¶1} Appellant-Mother, J.J. (“Mother”), appeal s the probate court’s determination that the adoption of the minor child, A.R.M.R., to the child’s stepmother could be completed without

Mother’s consent based on her fa ilure to support the child without justifiable cause. Mother raises the following assignments of error: 1. The decision of the trial court was agai nst the manifest weight of the evidence. 2. The trial court abused its discretion by failing to grant a reasonable continuance so that the parties could c onduct adequate discove ry prior to a full hearing. {¶2} After careful review, we reverse the trial court’s judgme nt and remand for proceedings consistent with this opinion. I. Procedural and Factual History {¶3} A.R.M.R. is the biological son of Mother and D.R. (“Father”). Petitioner-appellee, T.R., is A.R.M.R.’s stepmother (“petitioner” ). On November 21, 2017, the petitioner filed apetition for the adoption of A.R.M.R. At that time, A.R.M.R. was seven years old and Mother was subject to an order of the juvenile court that required her to pay $95 per month, plus a two percent processing fee, in child support. Th e petition alleged that Mother’s consent to the adoption was not required because she failed, without justifiabl e cause, to provide for the maintenance and support of A.R. M.R. during the year preceding the filing of the adoption petition. The petition was accompanied by a certifie d copy of Mother’s child support payment history from the Cuyahoga County Child Suppor t Enforcement Agency (“CSEA”), which reflected that no child support payments had b een made by Mother from November 1, 2016, to November 14, 2017. {¶4} A hearing on the petition for adoption wa s scheduled for January 4, 2018. On December 7, 2017, Mother received notice of the hear ing. The notice provided that if Mother wanted to contest the adoption, she was required to file an objection to the petition within 14 days of service and appear at the scheduled hearing. {¶5} Mother did not file written obj ections within 14 days of receiving notice. Instead, Mother appeared, pro se, at the January 4, 2018 hearin g with the intent to make oral objections to the petition for adoption. The tria l court granted Mother leave to file written objections to the adoption petition. Later that day, Mother f iled her written objections , and the trial court scheduled a hearing for February 12, 2018, to de termine whether Mother’s consent to the adoption was necessary. On January 5, 2018, the tria l court sent notice of the hearing to Mother. {¶6} On January 22, 2018, Mother contacted counsel to represent her in connection with the adoption petition. On February 12, 2018, the pa rties appeared before the court for the consent hearing. Before the hearing began, howev er, counsel for Mother objected to the hearing going forward without a reasonabl e continuance. Couns el indicated that she had just beenretained, did not have the opport unity to review the case file or relevant doc uments, and was under the impression the hearing “was just a pret rial hearing” and not “the fully contested [consent hearing].” Counsel stated that so meone from her office had contacted the court on February 6, 2018, in an effort to gain access to th e case documents and was told that, due to the confidentiality of the case information, counsel need ed to file a notice of appearance before she would be given access. Mother’s counsel explai ned that she attempted to file a notice of appearance the following day, but that for some reason it was not filed. Thus, counsel’s notice of appearance was made on the day of the consent hearing. {¶7} After consideration, the cour t denied the motion for continuance. The court noted that it had already given Mother an extension of the deadline to file objections to the adoption petition, that the case had already b een set for hearing for more th an a month, and that the notice clearly indicated that the case had been set for a hearing— not a pretrial conference — on a “fairly simple” issue of nonsupport. Accordingly, the probate court proceeded with the consent hearing, and the following testimony was adduced. {¶8} Father testified that he has custody of A.R.M.R. and that, prior to the filing of the adoption petition, Mother’s last child support pa yment was made on May 4, 2016. At the time of the hearing, Mother owed approximately $1,360.91 in outstanding child support. Father

stated that he did not know whether Mother ha d been working during the period of November 21, 2016, through November 21, 2017. {¶9} Mother testified that she understood her s upport obligations under the juvenile court child-support order, but maintained that she was not always able to pay child support. Mother stated that she had been employed at Shinin g Star Learning Center from February 15, 2014, to November 30, 2016. However, she voluntarily left that position after she began attending schoolto become a dental assistant. She explained that the hours sh e was required to work at the daycare center conflicted with her school schedule, which requi red her to attend classes from 8:00 a.m. to 2:00 p.m. Monday through Friday. {¶10} On May 4, 2016, Mother made a $140 child support payment. Her next support payment of $41 was not made until December 29, 2017. Mother made a dditional child support payments of $200 on January 16, 2018, and $53.67 on Fe bruary 5, 2018. Mother stated that she had been subject to a child support income holdi ng order while she worked at Shining Star Learning Center and could not explain why none of her income was withheld to pay child support from May 2016 to November 2016. {¶11} Mother testified that after she left Shining Star Learning Center, she attempted to find part-time employment while she attended school. Throughout the hearing, Mother admitted that she did not produce any docum entary evidence to support her attempts to obtain employment during the relevant time period. Nevertheless, she testifie d that during her period of unemployment from 2016 to 2017, she applied for “ten to six jobs a day” online, and used a temporary service agency in Lakewood, Ohio, to apply for various factory and warehouse positions. Mother stated that she received a call-back regardin g a position she applied for at FedEx, but that the position was filled before she responded. Mother also admitted that she received a job offer for a position in Columbus , Ohio, but that she did not accept the position because it was too far away. In addition, Mother testified that she applie d for dental assistant positions on “professional site[s]” once she graduate d from the dental assistant program in July 2017. However, Mother testified that she di d not receive any legitimate job offers from November 2016 to November 14, 2017. Mother is cu rrently working three part-time jobs — at a snack bar in a bowling alley, at a McDonald’s restaurant, and as a dental assistant.{¶12} With respect to Mother’s finances while she attended school, Moth er testified that she obtained a grant to pay for her tuition a nd books, relied on public a ssistance programs, and lived with friends who “put [her] up for periods of time” in exchange for cooking, cleaning, and

child care. She stated that she had no other money coming in from November 2016 to November 2017, and that no friends or family w ould give her money to help her pay child

support. {¶13} Mother did not dispute that in April 2015, th e juvenile court held her in contempt for failure to pay child support. She explained th at she never filed a motion to modify her child support obligation because she “had no idea that [she ] could change that.” Mother testified that it was her belief that she was “obligated by law to pay that regardless of [her] position in any way, shape or form.” She further stated that she has a learning disability that precluded her from fully comprehending the court proceedings. {¶14} A.R.M.R.’s maternal grandmother testif ied that from November 2016 to November 2017, she gave Mother money for bus passes and a disposable camera to take photographs of

A.R.M.R. She stated that she did not know with whom Mother was living from November 2016 to November 2017, or whether Mother was employ ed during that time period. The grandmother

testified that Mother had neve r stated that she was unwilling to pay child support and that she believed Mother wanted to comp ly with her support obligations because “[s]he didn’t get it from her father, so she knows what it’s like.” Grandmot her testified that Moth er had never asked for assistance in paying her child support obligation. {¶15} At the conclusion of the hearing, counsel for Mother reiterated her continuing objection to the court’s decision to go forward with the full hearing. {¶16} On February 23, 2018, the probate court issu ed a decision, finding that Mother’sconsent was not required to proceed with the petition for adoption. The court stated, in relevant

part: The court finds that [Mother] was subject to a child support order that required her to pay $95.00 per month for support of th e minor child and further finds that [Mother] was aware of and understood th at she had a child support obligation. The court finds that no support was paid for the minor child for the one year proceeding the filing of the adoption pe tition. This court further finds that [Mother] voluntarily terminated her em ployment in November 2016 and did not resume working until one year later. In light of [Mother]’s ability to work, her work history and her voluntary termina tion of employment, she is unable to establish justifiable cause fo r her failure to pay support. {¶17} Mother now appeals the trial court’s judgment. II. Law and Analysis A. Consent to Adoption {¶18} Pursuant to R.C. 3107.06(A), a petition to adopt a minor may be granted only if written consent to the adoption has been executed by the mother of the minor unless consent is not required under R.C. 3107.07. Under R.C. 3107.07, “[c]onsent to adoption” is not required of any of the following: (A) A parent of a minor, when it is alleged in the adoption petition and the court, after proper service of notice and hearing, finds by clear and convincing evidence that the parent has failed without jus tifiable cause * * * to provide for the maintenance and support of the minor as re quired by law or j udicial decree for a period of at least one year immediately pr eceding either the filing of the adoption petition * * *. {¶19} The Supreme Court of Ohio has hel d, “[p]ursuant to R.C. 3107.07(A), the petitioner for adoption has the burde n of proving, by clear and convi ncing evidence, both (1) that the natural parent has fa iled to support the child for the requis ite one-year period, and (2) that this failure was without ju stifiable cause.” In re Adoption of Bovett , 33 Ohio St.3d 102, 104, 515 N.E.2d 919 (1987). However,a natural parent may not simply remain mute while the petitioner is forced to demonstrate why the parent’s failure to provide support is unjus tifiable. Rather, once the petitioner has established, by cl ear and convincing evidence, that the natural parent has fa iled to support the child for at least the requisite one-year period, the burden of going forward with th e evidence is on the natural parent to show some facially justifiable cause for such failure. The burden of proof, however, remains with the petitioner.

Id

. {¶20} When applying the foregoing statutes, it is essential to recognize that “the right of a natural parent to the care and custody of his child ren is one of the most precious and fundamental

in law.” In re Adoption of Masa , 23 Ohio St.3d 163, 165, 492 N.E.2d 140 (1986), citing Santosky v. Kramer , 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). Adoption terminates those fundamental rights. For this reason, the Ohio Supreme Court has held that “[a]ny exception to the requirement of parental consent [to adopti on] must be strictly construed so as to protect the right of natural pare nts to raise and nurture their children.” Id ., citing In re Adoption of Schoeppner , 46 Ohio St.2d 21, 24, 345 N.E.2d 608 (1976).

B. Motion for Continuance {¶21} For the ease of discussion, we address Mothe r’s assignments of error out of order. In her second assignment of error, Mother argues the trial court abused its discretion by failing to grant a reasonable continuance so that the parties could conduct ad equate discovery. {¶22} The decision to grant or deny a moti on for a continuance rests in the sound

discretion of the trial court. State v. Unger , 67 Ohio St.2d 65, 423 N.E.2d 1078 (1981). An

abuse of discretion occurs where the trial c ourt’s decision is unreasonable, arbitrary, or

unconscionable. Blakemore v. Blakemore , 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). {¶23} In Unger, the Ohio Supreme Court noted that “[t]here are no mechanical tests for deciding when a denial of a con tinuance is so arbitrary as to violate due process. The answermust be found in the circumstances present in every case, particular ly in the reasons presented to the trial judge at the time the request is denied.” Unger at 67. The Supreme Court identified

certain factors a court should consider in evalua ting a motion for a continuance. These factors

include: the length of the delay requested; whether other continuances have been requested and received, the inconvenience to litigants , witnesses, opposing counsel and the court; whether the requested delay is for legitimate reasons or whether it is dilatory, purposeful, or contrived; whet her the defendant contributed to the circumstance which gives rise to the request for a continuance; and other relevant factors, depending on the unique facts of each case.

Id. at 67-68. {¶24} In this case, Mother did not file a motion for continuance in advance of the hearing date. Rather, counsel objected to the hearing going forward based on counsel’s belief that the hearing was a pretrial conference and not the full evidentiary hearing on the issue of consent. As stated, counsel explained th at she had been recently retain ed, had just filed a notice of appearance on the day of the hearing, and did not have the opportunity to review the case file or relevant documents prior to the hearing. {¶25} On appeal, Mother argues the trial cour t’s judgment amounted to an abuse of discretion because it denied her the opportunity to review the CSEA documents submitted by the petitioner. In addition, Mother contends that by failing to a fford counsel the opportunity to prepare and conduct meaningful discovery, the tr ial court’s judgment “placed [Mother] at a significant disadvantage” by limiting her ability to demonstrate some facially justifiable cause for the nonpayment of her child support obligation. {¶26} Regarding counsel’s inability to review the relevant evidence of Mother’s child-support payment history, the pe titioner correctly states that Moth er has not disputed the factthat she did not make child support payments in the year preceding the adoption petition. Moreover, the record reflects that the only document introduced by the petitioner at the hearing was a printout of Mother’s child support paym ent history from CSEA — a certified copy that was previously submitted with the adoption petition. Under thes e circumstances, we are unable to conclude that counsel’s inability to review the CSEA document prior to the consent hearing infringed upon Mother’s constitu tional due process rights. {¶27} Accordingly, resolution of this assigned error relies on the circumstances encompassing Mother’s representation at the consent hearing and whether the trial court’s judgment prejudicially affected Mother’s substantial rights. As stated, Mother does not dispute that she failed to make mandatory child support payments from November 2016 through November 2017. Thus, whether Mother’s failure to provide for the main tenance and support of A.R.M.R. was justifiable was a param ount determination in this case. {¶28} Ohio courts have recognized that in a ddition to its legal connotations, the term “justifiable” also contai ns a moral component. In re Adoption of B.I. , 1st Dist. Hamilton No. C-170064, 2017-Ohio-9116, ¶ 10, citing Black’s Law Dictionary 882 (8th Ed.2004). To this end, the Ohio Supreme Court has held that in a ssessing whether the failure to support a child is justified, a distinction is made between a parent who is unwilling but financially able to support, and a parent who is willing to suppor t but financially unable to do so. In re: Adoption of Masa , 23 Ohio St.3d 163, 166, 492 N.E.2d 140 (1986). “The latter could constitute justification.”

Id . Thus, it reasonably follows that evidence demonstrating a parent’s inability to obtain gainful employment during the relevant one -year time period, despite his or her best efforts, would be a significant factor in assessing whether the parent was willing, but financially unable to comply with a child support obligation.{¶29} After careful review, we find the trial court’s denial of the motion for continuance effectively prevented Mother from having a reas onable opportunity to satis fy her burden of proof on this highly relevant and cont ested issue. Here, the record reflects that counsel for Mother

received access to her client’s case file on the da y of the consent hearing, and was required to actively access evidence and relevant testimony for the first time as it was being introduced. In essence, Mother was placed in a position where sh e had to defend her righ t to have a continued relationship with her minor child without counsel’s full grasp of th e circumstances alleged in the petition and without the opportunity to present ev idence to corroborate her testimony. Without evidentiary quality documents to support her attempts to gain employment while attending school, Mother’s sole evidence supporting her ju stifiable cause was her own testimony — the credibility of which was impeached by the abse nce of corroborating evidence. Given the magnitude of the rights involved and the potential to forever termin ate Mother’s parental rights, we believe due process re quired a continuance. {¶30} The significance of Mother’s limited acce ss to discovery and her failure to introduce evidence at the consent hearing has not been lost on the petitioner. On appeal, the petitioner asserts that Mother’s failure to produce evidence to co rroborate her efforts to obtain employment during the relevant time period suggests that her credibility “was shaky at best.” Similarly, counsel for petitioner continuously raised Mother’s failure to produce documentary evidence during the consent hearing. For instan ce, counsel for the petitioner noted that Mother did not produce paychecks evidencing her wage withholdings while employed by the daycare center. Counsel also disput ed the alleged justifiable cau se supporting Mother’s nonpayment and had Mother admit during her cross-examination that she di d not produce any evidence to support her testimony that she actively pursued employment while a ttending school, “likeapplications, or copies of an e-mail.” {¶31} In addition, it’s necessary to note that issu es relating to Mother’s visitation rights and her unfavorable history in th e juvenile court case were extensively raised in appellee’s merit brief, seemingly in an effort to disparage Mother’s credibility. While such factors may be relevant during a best-interests stage of an adoption petition, the adequacy of a natural parents past behavior and relationship with his or her child are not issues for the probate court to consider when assessing the financ ial requirements of R.C. 3107.07(A). {¶32} Under these unique circumstan ces, we find the trial court abused its discretion by denying counsel’s request for a continuance. Based upon the substantial barriers placed before Mother in her effort to demonstrate a facially justifiable cause, we find the potential prejudice suffered by Mother far outweighed any inconve nience that may have resulted from a brief continuance. Contrary to pe titioner’s petition on appeal, the r easons supporting the request for a continuance were not merely d ilatory, contrived, or a frivolous a ttempt to delay. Rather, the request for continuance was ma de following counsel’s good faith misunderstanding of the proceedings and the realization that Mother’s fundamental rights coul d not be effectively defended without meaningful di scovery or prepared counsel. Moreover, we are unable to conclude that counsel’s unprepar edness was avoidable where Mothe r’s case file was not released to counsel until the day of the consent hearing due to issues of confid entiality. While counsel may have had a miscommunication w ith the court concerning her notice of appearance, we are unwilling to hold counsel’s misunderstandings agai nst Mother where the termination of her parental rights was on the line. {¶33} In finding an abuse of discretion, we reco gnize the trial court previously went to great lengths to provide Mother with additional time to file written objections to the petition foradoption. We further recognize that counsel for Mother did not expressly raise the inadequacy of discovery at the time she requested the continuance. However, viewing the record in its entirety, it is evident that counsel’s failure to directly reference discove ry or potential evidence supporting Mother’s justifiable cause merely highlights the unf avorable position Mother was placed in by having to go forward in a pro ceeding with counsel who only obtained access to the case file moments before the hearing was sc heduled to begin. Without a comprehensive understanding of the case, counsel had no opport unity to formulate a detailed basis for the continuance and reasonably assert ed that a continuance was nece ssary under such circumstances. {¶34} While the trial court characterized the hearing as a fairly simple issue, its implications were far reaching a nd significant to all parties i nvolved. Thus, resolution of the contested issues should be pred icated on the review of all re levant and available evidence following adequate discovery and the opportunity to prepare. {¶35} Mother’s second assignment of error is sustained. {¶36} Mother’s first assignment of error is rendered moot. Judg ment reversed and remanded for a new hearing in order to provide Mother with the opportunity to present evidence documenting her pursuit of employment during the relevant time period. It is ordered that appellant recover from appellee costs he rein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the common pleas court, probate division, to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appella te Procedure.EILEEN T. GALLAGHER, JUDGE FRANK D. CELEBREZZE, JR., J., CONCURS; EILEEN A. GALLAGHER, P.J., DISSENTS WITH SEPARATE OPINION

EILEEN A. GALLAGHER, P.J., DISSENTING {¶37} I respectfully dissent. Based on the record before us, I would affirm the trial

court’s decision that Mother’s consent to the adoption of A.R.M.R. wa s not required under R.C. 3107.07(A). {¶38} First, although the majority raises a number of important, legitimate concerns related to the protection of Moth er’s fundamental rights, I do not agree, under the particular facts and circumstances here, that the tr ial court abused its di scretion in denying Mother’s request for a continuance. Abuse of discretion is a very high standard. Reversal of a trial court’s decision for abuse of discretion requires a showing that th e trial court acted unreasonably, arbitrarily or unconscionably. Blakemore v. Blakemore , 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). When reviewing a matter for abuse of discretion, we may not substitute our judgment for that of

the trial court. State ex rel. Duncan v. Chippewa Twp. Trustees , 73 Ohio St.3d 728, 732, 654 N.E.2d 1254 (1995). On the record before us, I do not believe the requis ite showing has been

made. {¶39} The majority concludes that “due process required a continuance” and that the trial court, therefore, abused its discretion in deny ing Mother’s request for a continuance because Mother “was placed in a position where she ha d to defend her right to have a continued relationship with her minor child without counsel’s full grasp of th e circumstances alleged in the petition and without the opportunity to presen t evidence to corroborate her testimony.”However, on appeal, Mother asserts only that the trial court abused its discretion in denying her

motion for continuance because she was denied an opportunity to conduct discovery. Her second assignment of error — the assignment of error addressing the trial court’s denial of her motion for continuance — states: “The trial court abused its discretion by failing to grant a reasonable continuance so that the parties c ould conduct adequate disc overy prior to a full hearing.” In support of this assignment of error, Mother argues that the trial court’s refusal “to allow for the exchanging of discovery” with petitioner violated her right to due process and that “[w]ithout having the ability to conduct disc overy, Mother was placed at a significant disadvantage, and was unable to adequately prepare for trial in this matter.” {¶40} However, Mother’s counsel did not me ntion a need for discovery when she requested a continuance at the hearing. 1 As a general matter, a pa rty cannot raise new arguments on appeal that were not presented below, and a trial court cannot be said to have abused its discretion by failing to consider arguments that were never presented to it. See, e.g., State v.

D.K. , 8th Dist. 106539, 2018-Ohio-2522, ¶ 17; Glendell-Grant v. Grant , 8th Dist. Cuyahoga No. 105895, 2018-Ohio-1094, ¶ 11. {¶41} Further, Mother has not identified any di scovery she contends she needed in order to properly prepare for the hearing. Although Mo ther argues that she was disadvantaged by the parties’ inability to exchange discovery “because every single document presented by Petitioner during the trial on the matter was unseen by counsel for Respondent before the trial,” the only document petitioner introduced at the hearing was a printout of Mother’s child support payment history from CSEA — a certified copy of which had been previously submitted with the petition

1 Although Mother asserts in her brief that her counsel asked the trial court, when arguing for a continuance, that “she please be provided with an opportunity to conduct discovery on the matter,” the transcript of the hearing and the prehearing discussions relating to counsel’s reques t for a continuance do not reflect this.for adoption. {¶42} Mother did not dispute that she did not make any child support payments during the year preceding the filing of the adoption petiti on. Thus, the only issue to be decided at the hearing was whether justifiable cause existed fo r Mother’s failure to support A.R.M.R. during this time period — a determination that turned on Mother’s efforts to obtain employment. Any

evidence related to that issue would have been within Mother’s custody and control and not dependent on any discovery to be obtained from petitioner (or anyone else). Accordingly, I

would overrule Mother’s sec ond assignment of error. {¶43} I would also overrule Mother’s first assignment of error. In her first assignment of error, Mother challenges the proba te court’s finding that her cons ent to the adoption of A.R.M.R. was not required under R.C. 3107.07(A) because she failed, without justifia ble cause, to support A.R.M.R. for the year prior to the filing of the petition for adoption. {¶44} “‘The question of whether justifiable cause for failure to pay child support has been proven by clear and convincing evidence in a par ticular case is a deter mination for the probate court and will not be disturbed on appeal unless such determination is against the manifest weight of the evidence.’” In re Adoption of M.B. , 131 Ohio St.3d 186, 2012-Ohio-236, 963 N.E.2d 142, ¶ 24, quoting In re Adoption of Bovett , 33 Ohio St.3d 102, 515 N.E.2d 919 (1987), paragraph four of the syllabus; see also In re Adoption of L.C.F., 8th Dist. Cuyahoga Nos. 101798 and 101799, 2015-Ohio-1545, ¶ 10. On a manifest weight of the evidence challenge, an appellate court weighs the evidence, including all reasonable inferences, considers the credibility of witnesses and determines whether, in resolving conflicts in the evidence, the trier of fact “‘clearly lost its way and created such a manifest miscarriage of justice’” that reversal of the trial court’s judgment is required. State v. Thompkins , 78 Ohio St.3d 380, 678 N.E.2d 541 (1997),quoting State v. Martin , 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983); Eastley v.

Volkman , 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 20; see also In re Adoption of

K.N.W. , 4th Dist. Athens Nos. 15CA36, 15CA37, ¶ 27. {¶45} As the majority observes, in determining whether a fa ilure to support a child is justifiable, there is a distinction between a pare nt who is unwilling but able to financially support a child, and a parent who is willing to provi de financial support but unable to do so. In re Adoption of Masa , 23 Ohio St.3d 163, 166-167, 492 N.E.2d 140 (1986). When determining whether justifiable cause exists for a parent’s failure to support, the trial court “weigh[s] the evidence of the natural parent’s circumstances fo r the statutory period for which he or she failed to provide support.” Bovett at paragraph three of the syllabus. To preserve the right to consent to adoption, a biological parent “must justify hi s or her failure to suppor t for substantially the entire one-year period.” In re Adoption of Tyler K. Kilbane & Ashley Kilbane , 130 Ohio App.3d 203, 207, 719 N.E.2d 1012 (8th Dist.1998), quoting In re Adoption of Kessler , 87 Ohio App.3d 317, 321-322, 622 N.E.2d 354 (6th Dist.1993). “‘It is not enough to show that a failure to support was justified for some time during the year; rather, it mu st be demonstrated that no modicum of support reasonably could have been provided at any time during the year.’”

Kilbane at 207, quoting Kessler at 321-322; see also Bovett at paragraph three of the syllabus (“Under R.C. 3107.07(A), the probate court shall determine * * * whet her the parent’s failure to support the child for that period as a whole (and not just a portion thereof) was without justifiable cause.”) (Emphasis deleted.) {¶46} Mother argues that justifiable cause ex isted for her failure to support A.R.M.R. during the relevant time period b ecause she was attending a dental assistant program and could not find a job that would accomm odate her school schedule.{¶47} Although unemployment and a lack of inco me may constitute justification for a failure to support — see, e.g., In re Adoption of S.A.H. , 4th Dist. Ross No. 07CA2947, 2007-Ohio-3710, ¶ 20 (“It is axiomatic that a natu ral parent’s failure to support her child is justified when that parent’s financial condition is such that she is unable to do so.”) — a parent’s “voluntary unemployment” does not excu se a failure to support a child. See, e.g., In re Adoption of J.A.C. , 4th Dist. Scioto No. 14CA3654, 2015-Ohio-1662, ¶ 2, 17-22; see also In Re Adoption of Deems , 91 Ohio App.3d 552, 556-557, 632 N.E.2d 1347 ( 3d Dist.1993) (“[T]he law does not sanction [a parent’s] voluntary ter mination of gainful employment as a justification or excuse for not contributing to the support of his children.”); In re LaFave , 2d Dist. Montgomery No. 17697, 1999 Ohio App. LEXIS 3714, 11-12 (Aug. 13, 1999) (A parent’s “[v]oluntary unemployment, for whatever good and worthy reasons (such as being a role model for her children [by seeking higher education]) is not by itself sufficient justifiable cause for failure to meet even any small part of court-required ch ild support payments.”); In re Adoption of Christopher James Dutton , 7th Dist. Mahoning No. 83 C.A. 141, 1984 Ohio App. LEXIS 10905, 6-8 (Sept. 25, 1984) (where father “opted to give up a good job and atte nd school while living on hi s mother’s financial assistance and ultimately welfare, ” his failure to support his child was “self-imposed and not justifiable”). {¶48} In this case, Mother’s testimony regarding her efforts to seek employment and her willingness to support her son was not credible. Mother testif ied that after she left her employment at Shining Star on November 30, 2016, sh e applied for “ten to six jobs a day” online and through a temporary service in Lakewood, but was not called back regarding any jobs — except one in Columbus and one at FedEx that was filled before she called back. Mother stated

that she had no documentation of her efforts to find employment during this time period.{¶49} Although Mother claimed that she was w illing to pay child support when she was able to do so, she had been previously held in c ontempt for failing to pay child support. She also did not make any child support payments during the last six months she worked at Shining Star. Although Mother testified that she had been s ubject to a child support income holding order when she worked at Shining Star and could not explain why none of her income at Shining Star had been withheld to pay child support from May 2016 to November 2016, she also indicated that she knew child support was not being withhe ld from her paychecks during that time period and talked to her employer “several times about it.” Although Mother graduated from the dental assistant program on July 6, 2017, she was not employed again until November 14, 2017 — more than four months later. Mother offered no expl anation as to why she did not return to work immediately after she completed the dental assistant program. {¶50} Following a thorough review of the reco rd, I believe that the trial court’s

determination that Mother faile d, without justifiable cause, to support A.R.M.R. for the year preceding the filing of the adoption petition, is s upported by clear and convincing evidence and is not against the manifest weight of the evidence. Accordingly, I would overrule Mother’s first assignment of error and affirm the trial court’s decision that Mother’s consent to the adoption was not required under R.C. 3107.07(A). 2

2 Although I believe the facts and law require affirmance of the trial court’s decision, I believe it is also important to note that adoption is a two-step process. Even where a probate court makes a determination that a biological parent’s consent to adoption is not required, the court must still determine that adoption is in the best interest of the child before an adoption can proceed. See, e.g., L.C.F., 2015-Ohio-1545, at ¶ 7. If, as Mother contends, she has a close, meaningful relationship with her son, it may be that adoption by petitioner would not be in A.R.M.R.’s best interest.