[Cite as In re Adoption of L.L.L., 2018-Ohio-4556.]

IN THE COURT OF APPEALS 

TWELFTH APPELLATE DISTRICT OF OHIO 

PREBLE COUNTY 

IN THE ADOPTIONS OF: : 

 L.L.L and A.R.L. : CASE NO. CA2018-07-008 

 : O P I N I O N 

 11/13/2018 

 : 

 : 

APPEAL FROM PREBLE COUNTY COURT OF COMMON PLEAS 

PROBATE DIVISION 

Case No. 20174025 

Susan M. Deaton, 9729 Ariadne Trail, Centerville, Ohio 45458, for plaintiff-appellant 

Joshua A. Liles, 202 East Central Avenue, Miamisburg, Ohio 45342, for defendant-appellee 

 HENDRICKSON, J.

{¶ 1} Appellant, the biological father of two children, appeals a decision of the Preble 

County Court of Common Pleas, Probate Division, finding his consent was not required for 

the adoption of the children by their stepfather. 

{¶ 2} Appellant and the children's mother divorced in February 2012. The mother 

was named residential and custodial parent of the couple's two children. Visitations with 

appellant were to be supervised and scheduled between the parties. According to the 

mother, appellant only attended seven of fourteen requested visitations, was late to some of 
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those visits, and did not seem very interested in visiting with his children. The mother 

stopped scheduling visitations and left initiating visits up to appellant. Both appellant and the 

mother agree that appellant has not had any contact with the children since January 2014. 

{¶ 3} The mother remarried in July 2015. In November 2017, the children's 

stepfather filed petitions to adopt the children. The petitions alleged that appellant's consent 

was not required because he had failed to have contact with the children in the year 

preceding the petition. 

{¶ 4} At a hearing on the consent issue, appellant admitted he has not had contact 

with the children for several years, but claimed it was not his choice. He testified that he 

visited the children within a few months of the divorce, but after there were some problems, 

he was told that any further communication would need to come through the parties' lawyers 

and he was not allowed back on the mother's property. He claims that he attempted to send 

cards and letters and attempted to contact the mother through family and friends. He also 

claims he looked for the mother on social media. Appellant admitted that he has never filed 

any type of motions for contempt or to modify parenting as a means to visit with the children. 

{¶ 5} The mother and stepfather both testified that there has been no contact in any 

manner from appellant, including no phone calls, letters or cards, no contact through social 

media, nor has appellant attempted contact through family or friends. The mother testified 

that she lived at the same address from 2011 until 2016 and that she has worked in the same 

job since the time visitation ended. 

{¶ 6} The trial court determined that appellant's consent to the adoption was not 

required because he had failed without justifiable cause to provide more than de minimus 

contact with the children for at least one year immediately preceding filing of the adoption 

petition. Appellant now appeals the court's decision, raising three assignments of error for 

our review. 
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{¶ 7} Assignment of Error No. 1: 

{¶ 8} THE PROBATE COURT ERRED BY CONTINUING THE CONSENT HEARING 

WITHOUT FATHER'S ATTORNEY PRESENT. 

{¶ 9} Assignment of Error No. 2: 

{¶ 10} THE PROBATE COURT ERRED BY FINDING THAT APPELLEE HAD MET 

THEIR [sic] BURDEN OF PROOF BY CLEAR AND CONVINCING EVIDENCE. 

{¶ 11} Assignment of Error No. 3: 

{¶ 12} THE PROBATE COURT ERRED BY FINDING THAT FATHER HAD NO 

JUSTIFIABLE CAUSE FOR FAILING TO SEE HIS CHILDREN FOR ONE YEAR 

IMMEDIATELY PRECEEDING THE ADOPTION PETITION. 

{¶ 13} In his first assignment of error, appellant contends that his due process rights 

were violated when the court held the consent hearing without his attorney present. He 

argues "[t]he moment Father stated that he was supposed to have counsel present and that 

he did not know where his attorney was, his situation demanded that the probate court 

immediately stop the hearing." 

{¶ 14} However, a review of the record does not support appellant's factual 

allegations. The record does not contain any type of a notice of appearance by an attorney 

on behalf of appellant. At the start of the hearing, the court discussed the procedure and 

purpose of the hearing with appellant, who appeared pro se. The court also discussed 

possible resolutions to the case, including the parties agreeing to various scenarios. 

Referring to the mother and stepfather, appellant mentioned that he would not mind talking to 

"their lawyer" but did not mention anything regarding hiring an attorney of his own, nor did he 

request a continuance to have his attorney present or to obtain an attorney or express any 

concern over proceeding pro se. After further discussion with the court, appellant determined 

that he could not consent to the adoption under any terms and indicated that he wanted to 
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have a hearing on the issue. 

{¶ 15} The mother and stepfather each testified, and appellant was able to ask 

questions on cross-examination. Appellant then testified and discussed the lack of contact 

with the children and his reasons for the failure to visit. On cross-examination, the 

stepfather's attorney asked appellant if he had ever filed a contempt of court action or a 

request to modify the parenting agreement or any other type of action in order to visit with his 

children. Appellant initially interrupted the question by stating, "I have spoken to two lawyers. 

One of which * * *" when the court instructed him to wait until the question was completed. 

After the question was completed, appellant responded, "I'm supposed to be having an 

attorney present at this time. I don't know where my attorney is. But, yes, I have hired an 

attorney for Contempt of Court charges against [Mother]." The stepfather's attorney then 

asked if anything had been filed "right now" and appellant responded that he did not believe 

so. Again, at no point did appellant ask to continue the hearing, nor did he express concern 

that he was unable to proceed without an attorney. Given the factual circumstances, we find 

nothing in the situation required the trial court to stop the hearing and grant a continuance. 

{¶ 16} Moreover, appellant's due process rights were not violated. The parent-child 

relationship is a constitutionally protected liberty interest to which due process applies. In re 

A.N.B., 12th Dist. Preble No. CA2012-12-017, 2013-Ohio-2055, ¶ 15. Due process requires 

notice and an opportunity to be heard and to participate in the hearing in a meaningful 

manner. Id. at ¶ 15-16. As discussed above, the court discussed the nature of the hearing 

and the issues to be decided with appellant; in particular the court explained it would be 

deciding whether consent to the adoption was required, whether appellant had contact with 

the children in the year preceding the petition, and whether there was justification for any 

failure to visit. 

{¶ 17} Appellant was then able to participate in the hearing and cross-examined both 
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the mother and stepfather. He was also allowed to testify on his own behalf. Accordingly, 

because he was given notice and an opportunity to be heard in a meaningful manner, his due 

process rights were not violated. Appellant's first assignment of error is overruled. 

{¶ 18} In his second and third assignments of error, appellant challenges the trial 

court's determination that the stepfather met his burden to establish that appellant did not 

have justifiable cause for the failure to contact the children in the year preceding the adoption 

petition. 

{¶ 19} The right of natural parents to the care and custody of their child is one of the 

most precious and fundamental in law. In re Adoption of: A.N.L., 12th Dist. Preble Nos. 

CA2004-11-131 and CA2005-04-046, 2005-Ohio-4239. See also Santosky v. Kramer, 455 

U.S. 745, 753, 102 S.Ct. 1388, 1394 (1982). Because adoption terminates these rights, Ohio 

law requires parental consent to an adoption unless a specific statutory exemption exists. In 

re Caudill, 4th Dist. Jackson No. 05CA4, 2005-Ohio-3927; R.C. 3107.06. 

{¶ 20} An exemption to parental consent exists if a court finds by clear and 

convincing evidence that in the year preceding the adoption petition, the parent failed without 

justifiable cause to have more than de minimis contact with the child. R.C. 3107.07(A). 

Stepfather, as the petitioner in this case, has the burden of proving these elements by clear 

and convincing evidence. In re Adoption of Holcomb, 18 Ohio St.3d 361 (1985), paragraph 

four of the syllabus. 

{¶ 21} Appellant first argues that the only testimony this court can review is the 

testimony of stepfather and appellant because the mother was not sworn in. He further 

argues that the burden of clear and convincing evidence could not be met with the testimony 

of the two remaining opposing parties. 

{¶ 22} The rules of evidence require that "[b]efore testifying, every witness shall be 

required to declare that the witness will testify truthfully, by oath or affirmation administered in 
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a form calculated to awaken the witness' conscience and impress the witness' mind with the 

duty to do so." Evid.R. 603. "The oath or affirmation is a prerequisite to the testimony of a 

witness and a trial court errs by relying on unsworn testimony in reaching its decision." In re 

E.C., 3d Dist. Defiance No. 4-15-08, 2015-Ohio-4807, ¶ 6; Allstate Ins. Co. v. Rule, 64 Ohio 

St.2d 67, 69 (1980). 

{¶ 23} Although appellant claims that the mother was not sworn in, the record reveals 

otherwise. At the start of the hearing, the court discussed the fact that all three persons 

present would be testifying and stated "So, just to get it over with I'll have all three of you 

raise your right hands. Do all of you solemnly swear or affirm that the testimony you are 

about to give will be the truth, the whole truth, and nothing but the truth, so help you God?" 

The transcript of the hearing indicates affirmative answers from both the stepfather and 

appellant, but is silent with regard to mother. 

{¶ 24} However, the transcriber's certificate states that the transcript was transcribed 

from a record taken from a digital recording of the hearing. The fact that the mother's 

affirmative answer was not apparent on the recording does not negate the other facts 

surrounding the swearing-in process that indicate the mother was sworn in. In fact, directly 

after the swearing-in by the court, the stepfather's attorney called mother to the stand and the 

court stated, "Okay, [mother], you've been sworn. Just go ahead and have a seat there * * *." 

 Given these facts, we find no merit to appellant's argument that mother's testimony cannot 

be considered because she was not sworn in. 

{¶ 25} Appellant further argues that the evidence does not clearly and convincingly 

support a finding that he did not have justifiable cause for the failure to contact his children. 

"Even if a parent has completely failed to communicate with his children during the statutory 

period, his consent to adoption will still be required if there exists justifiable cause for the 

failure." In re Adoption of M.G.B.-E., Slip Opinion No. 2018-Ohio-1787, ¶ 38-39. The burden 
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of proving a lack of justifiable cause remains on the petitioner in the adoption proceeding. Id. 

at 39. A noncustodial parent typically has justifiable cause for failing to communicate when 

the custodial parent significantly interferes with or significantly discourages communication. 

Id. 

{¶ 26} Appellant argues that the court erred in finding there was not justifiable cause 

for his failure to visit with the children because the evidence was not clear and convincing, 

because he was unable to visit the children without trespassing onto private property and 

because he was unable to contact the mother. 

{¶ 27} As mentioned above, appellant does not dispute that he has not had contact 

with the children since 2014. He testified that in 2014, the last time he attempted to see the 

children, the police were called and he was told not to come back to the residence in the 

future. He claims that this effectively "trespassed him" from the residence and he could not 

have possibly attempted to see his children by visiting them at their home because the 

mother would not allow it. 

{¶ 28} However, the fact that mother told appellant not to come back to her residence 

did not foreclose all opportunities for appellant's contact with his children. Appellant could 

have filed a motion for visitation and requested that the court order some other method of 

visitation which could work under the parties' circumstances. Appellant could have attempted 

phone calls, cards, or other types of communication with the children. Instead, appellant did 

nothing, in any manner, to restore contact with the children until the adoption petition was 

filed nearly four years later. 

{¶ 29} Appellant claims he did not know where mother lived or that she had remarried 

and also that he attempted contact through other parties, including mother's parents. 

However, the court found that appellant did not attempt to contact the mother or children, 

even though the mother resided in the same house until 2016 and still works for the same 
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employer. Because the trial judge is in the best position to view the witnesses and to 

observe the demeanor, gestures and voice inflection during testimony, issues of credibility 

are for the trier of fact to resolve. In re Adoption of A.M.L., 12th Dist. Warren No. CA2015-

01-004, 2015-Ohio-2224, ¶ 11. Accordingly, we find no error in the court's determination in 

this matter. Accordingly, appellant's second and third assignments of error are overruled. 

{¶ 30} Judgment affirmed. 

 S. POWELL, P.J., and PIPER, J., concur.