Opinion
Case No. 16CA8
11-10-2016
IN THE MATTER OF THE ADOPTION OF: E.W.H. P.R.H.
APPEARANCES: Joshua D. Price, Joshua Price Law Office, LLC, Pomeroy, Ohio, for Appellant. Steven L. Story, Story Law Office, Pomeroy, Ohio, for Appellee.
DECISION AND JUDGMENT ENTRY
APPEARANCES:
Joshua D. Price, Joshua Price Law Office, LLC, Pomeroy, Ohio, for Appellant. Steven L. Story, Story Law Office, Pomeroy, Ohio, for Appellee. McFarland, J.
{¶1} This is an appeal from a Meigs County Common Pleas Court, Probate Division, decision and entry on consent to adoption, which determined that the consent of the mother is required for the adoption of E.W.H. and P.R.H. On appeal, Angela Herald, f.k.a. Angela Smith, Appellant herein and spouse of the minor children's father, Frank Herald, contends that the trial court erred by concluding that the consent of the children's biological mother, Amber Duffy, Appellee, was necessary. Relevant to this appeal, the probate court specifically found that the petitioner's claim, that the mother failed to demonstrate justifiable cause for failing to provide support and maintenance for approximately one year prior to the filing of the petition for adoption, to be without merit.
{¶2} Because we conclude the trial court's decision was supported by clear and convincing evidence and was not against the manifest weight of the evidence, Appellant's sole assignment of error is overruled. Accordingly, we affirm the judgment of the trial court.
FACTS
{¶3} The minor children that are the subject of these proceedings are P.R.H., born in 2009, and E.W.H., born in 2011. Appellant filed the petitions for adoption of the children on November 13, 2015. Both petitions alleged that: (1) Appellee had failed without justifiable cause to provide more than de minimis contact with the children for at least one year immediately preceding the filing of the petitions; and, (2) that Appellee had failed without justifiable cause to provide for the maintenance and support of the children as required by law or judicial decree for a period of at least one year immediately preceding the filing of the petitions. In March 2016, Appellee, through counsel, filed answers, objections to the adoption petitions, and motions to dismiss. Appellant then filed memoranda contra the answers, objections, and motions to dismiss.
The parties do not dispute that, at the time of the hearing, Appellee was subject to a 2012 child support order.
{¶4} The adoption petitions came on for hearing on April 18, 2016. Frank Herald, Appellant, Stephanie Layne, Krista Duffy, Brian Duffy, and Amber Duffy testified. At the time of the hearing, P.R.H. was 6 years old, and E.W.H. was 4 years old.
The adoption petitions carried different trial court case numbers. The trial court's judgment entry noted since the evidence in both adoptions was nearly identical, both cases were consolidated into one hearing.
Stephanie Layne is Amber Duffy's cousin. Krista and Brian Duffy are Amber's parents, grandparents of the minor children subject to these proceedings.
{¶5} At the hearing, Frank Herald testified he is the biological father of both children. He is the residential parent and Appellee has visitation every other weekend. Herald has been with Appellant two years. Appellant takes care of the children, bathing them, cooking for them, and helping with homework. The children have a good relationship with Appellant, and they have asked if they can call her "Mom."
{¶6} Herald testified the last time Appellee had physical contact with the children was sometime in 2014, over a year before the petitions were filed. He did not know when Appellee last contacted the children by telephone. The children had not received birthday cards or presents from Appellee.
{¶7} Herald testified Appellee had used drugs since the children were born. He did not know how she supported her drug habit since she was not employed. According to Herald, Appellee had placed the children in danger due to her use of drugs and had been violent in the past, trying to run their vehicle off the road and once stabbing him with a small kitchen knife. He also testified Appellee received text messages at least one time indicating a drug transaction.
{¶8} Herald further testified Appellee had been incarcerated for 2 of the last 3 years for parole violations and drug-related trafficking charges. As a result, she had been incarcerated in prison and jail. Due to Appellee's incarceration, visitation was usually with Appellee's parents, the Duffys. Since Appellee's current release, she has supervised visitation. However, Herald has seen Appellee with the children, unsupervised. When the children return from visitation with her, they come back dirty and bruised from playing outside unattended.
{¶9} Herald testified Appellee had been ordered to pay child support since 2012, but had not paid any until making 2 payments after the adoption petition was filed. Herald concluded his testimony by explaining he consented to the adoption because he is, himself, adopted, and if anything happened to him, he would want to know his children were being cared for and educated.
{¶10} Appellant is employed by Local 80, the Insulator's Union, in an apprenticeship. She married Frank Herald in March 2016. She has known his children since late September 2014. Appellant testified she has two biological children of her own, but she treats all 4 children the same. Appellant testified she understood that if the adoption were granted, the subject children would have the same inheritance rights as her biological children, and that if she and their father divorced, she could be liable for child support.
{¶11} Stephanie Layne testified she visited Appellee several times at the Middleport jail. Layne testified since Appellee has been released from prison, she has been doing well and interacts well with her children. Appellee avoids people that would negatively affect her rehabilitation and stays more involved with her family.
{¶12} Krista Duffy testified her daughter's drug problem has been hard on the family. Mrs. Duffy quit her job at Walmart, after 15 years, to care for the children.
Mrs. Duffy has two other daughters and two other grandchildren, whom she cares for regularly in her home.
{¶13} Appellee lived with her parents from June 2014 until October 2014, when she turned herself in to authorities. Appellee was thereafter held at the Middleport jail until April 2015. During Appellee's time at jail, Krista and other family visited her and took P.R.H. to visit. They also had phone contact. Krista facilitated phone contact between Appellee and her children by depositing money into Appellee's account at the jail so she could make calls. Appellee sometimes spoke to her family and the children 2-3 times a day. Appellee went to rehab in April 2015 and was released from the rehab facility at the end of September 2015.
{¶14} Krista also testified Frank Herald lived with the Duffy family from June 2014 until August 2015. Herald and Appellee stayed in the same room.
{¶15} Krista concluded her direct testimony by stating she believes Appellee loves the children. Mrs. Duffy voiced concern that if Appellee lost her parental rights, she might "get back on drugs" or try to kill herself. Mrs. Duffy is also aware that if the adoption is granted, the Duffys' rights as grandparents are terminated.
{¶16} On cross-examination, Mrs. Duffy admitted Appellee was not in counseling currently. She thinks Appellee has drug screens when she checks in with her probation officer. The Duffys were the ones who made Appellee's 2 child support payments since the adoption petitions were filed.
{¶17} Brian Duffy testified he is very close to E.W.H. and P.R.H. Mr. Duffy works for a construction company and is only home on weekends. He admitted Appellee's addiction to opiates had a bad effect on the family.
{¶18} Mr. Duffy also testified Frank Herald stayed at their home. Herald and Appellee had separate rooms but sometimes stayed together. Herald stayed there intermittently after Appellee turned herself in to authorities in October 2014. The Duffys did not charge Herald for rent or meals. When Appellee was released from rehab in September 2015, Herald took his children and left.
{¶19} Finally Appellee testified. She admitted she had had a drug problem for 12 years. For some time, she had an opiate addiction and used needles to inject heroin. She struggles with her addiction every day, but testified she did not "wanna (sic) be that person anymore." Appellee opposed the adoption because she loves her children and they are "all she has."
{¶20} Appellee pleaded to criminal charges and as part of her plea bargain she was given the option of prison or rehab. She agreed to testify against the person that introduced her to heroin. Appellee voluntarily turned herself in to authorities on October 7, 2014. She was held in the Middleport jail until she left for rehab at River City in Cincinnati on April 7, 2015. She was released from rehab on September 29, 2015. She has resided with her parents since then.
At the time of the hearing, Appellee was pregnant. --------
{¶21} Appellee testified during the time she was in Middleport jail, she was unable to work to support herself or pay child support. While she was in River City, she was not free to leave and work. Not having a driver's license has also prevented her from being employed over the years. The last time Appellee was employed was in 2011.
{¶22} During the time Appellee and Herald both resided in her parents' home, they cohabited as man and wife. They parented the children together. Appellee testified they discussed child support and he told her "not to worry about it that he was getting it taken care of. That he was getting it dropped."
{¶23} On cross-examination, Appellee admitted that she has been off drugs while previously incarcerated in prison, but began using again when she was released. She has not been sentenced on the current drug case. She admitted that when she was using, she "found a way" to pay for her drugs. She testified that "it's not like I didn't want to pay child support. It's not like I want to be like this."
{¶24} Appellee testified she has not done drug counseling, indicating it was because her medical card has not "come through yet." She did participate in prison counseling. She currently has drug screens when reporting to probation and as part of her prenatal care. Appellee testified she wants to go back to school and "make something of herself."
{¶25} Appellee testified she is different now because she never had help for her problem previously or had any rehabilitation. She took as many classes as she could at River City. Appellee explained her time at River City "opened her eyes" and made her want to change. She learned that she was strong enough to quit.
{¶26} As to placing her children in danger, Appellee testified she left them with her mother so she wasn't "running around with them" or placing them in danger. Appellee denied "blacking out" or having memory lapses due to her addiction. She did admit to receiving text messages about drugs when she was still with the children's father.
{¶27} Following the conclusion of testimony, the parties entered various exhibits. The trial court subsequently entered judgment finding Appellee's consent was necessary and denied Appellant's petition for adoption of the minor children by judgment entry file-stamped May 26, 2016. It is from the decision and entry that Appellant brings her timely appeal, setting forth one assignment of error for our review.
ASSIGNMENT OF ERROR
"I. THE TRIAL COURT'S DECISION THAT RESPONDENT'S CONSENT TO THE ADOPTION OF THE
SUBJECT MINOR CHILDREN WAS NECESSARY IS CONTRARY TO LAW AND AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE."
APPLICABLE LAW REGARDING PARENTAL CONSENT
IN ADOPTION PROCEEDINGS
{¶28} The relationship between a parent and child is a constitutionally protected liberty interest. In re B.B.S. - -N.E.3d - -, 2016-Ohio-3515, (4th Dist.) ¶ 12. See In re Adoption of Zschach, 75 Ohio St.3d 648, 653, 665 N.E.2d 1070 (1996). Therefore, a parent's consent to an adoption is required and any exception to this 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).
{¶29} R.C. 3107.07(A) provides for exceptions to requiring the natural parent's consent for adoptions:
"Consent 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 justifiable cause to provide more than de minimis contact with the minor or to provide for the maintenance and support of the minor as required by law or judicial decree for a period of at least one year immediately preceding either the filing of the adoption petition or the placement of the minor in the home of the petitioner."
{¶29} "[T]he petitioner for adoption has the burden of proving, by clear and convincing evidence, both (1) that the natural parent has failed to support the child for the requisite one-year period, and (2) that this failure was without justifiable cause." In re B.B.S., supra, at ¶ 14, quoting In re Adoption of Bovett, 33 Ohio St.3d 102, 515 N.E.2d 919 (1987) paragraph one of the syllabus.
"Lest one may think we are placing an unfair burden on the adopting parent, it should be pointed out that the adopting parent has no legal duty to prove a negative. If the natural parent does not appear to go forward with any evidence of justification, obviously the adopting parent has only the obligation of proving failure of support by the requisite standard." (Emphasis added). In re B.B.S. supra, at ¶ 14, quoting In re Adoption of Masa, 23 Ohio St.3d 163, 167, 492 N.E.2d 140 (1986).
{¶30} Thus, a natural parent may not simply remain mute while the petitioner is forced to demonstrate why the parent's failure to provide support is unjustifiable. Instead, once the petitioner has established by clear and convincing evidence that the natural parent has failed to support the child for at least the requisite one-year period, the burden of going forward with the evidence is on the natural parent to show some facially justifiable cause for such failure. The burden of proof, however, remains with the petitioner. In re B.B.S. supra; Bovett at 104, 515 N.E.2d 919; quoting In re Adoption of Masa.
{¶31} "The question of whether a natural parent's failure to support his or her child has been proven by the petitioner by clear and convincing evidence to have been without justifiable cause is a determination for the probate court * * *." Id. at paragraph four of the syllabus; In re B.B.S., at ¶ 15. We will uphold a trial court's determination regarding parental consent to adopt as long as its finding is not against the manifest weight of the evidence. In re J.S., 4th Dist. Hocking No. 08CA2, 2008-Ohio-2834, ¶ 9; See Bovett, 515 N.E.2d 919, paragraph four of the syllabus; Masa, 492 N.E.2d 140, paragraph two of the syllabus; In re B.I.P., 4th Dist. Jackson No. 07CA9, 2007-Ohio-6846, at ¶ 17. Thus, we will not disturb a trial court's parental consent finding as long as some competent, credible evidence supports its decision. See C.E. Morris Co. v. Foley Construction Co., 54 Ohio St.2d 279, 376 N.E.2d 578, (1978), syllabus. When we apply this standard, we defer to the trial court on issues of weight and credibility. This is because the trial court, as the trier of fact, is obviously in a better position than the appellate court to view the witnesses and to observe their demeanor, gestures and voice inflections, and to use those observations in weighing the credibility of the proffered testimony. See Myers v. Garson, 66 Ohio St.3d 610, 615, 614 N.E.2d 742 (1993). Moreover, a trial court is free to believe all, part or none of the testimony of each witness who appears before it. See Rogers v. Hill, 124 Ohio App.3d 468, 470, 706 N.E.2d 438 (4th Dist.1998).
{¶32} Maintenance and support are not defined in R.C. 3107.07(A). In re A.N.W., 7th Dist. Belmont No. 15BE0071, 2016-Ohio-462, ¶ 17; In re Adoption of M.B., 2012-Ohio-236 at ¶ 20. Therefore, we give them their ordinary meaning. Maintenance is defined as "[f]inancial support given by one person to another." Id. citing Black's Law Dictionary 1039 (9th Ed. 2009). Support is defined as "[s]ustenance or maintenance; esp., articles such as food and clothing that allow one to live in the degree of comfort to which one is accustomed." In re Adoption of M.B. at ¶ 20 citing Black's Law Dictionary 1577 (9th Ed. 2009).
{¶33} As we have noted in previous decisions, the word "justifiable" means "[c]apable of being legally or morally justified; excusable; defensible." In re B.B.S., supra, at ¶ 16, quoting Black's Law Dictionary (8th Ed. 2004) 882. Some facially justifiable reasons for failure to support one's child are: (1) unemployment and a lack of income, and (2) the custodian, who is in a better financial position than the natural parent, adequately provides for a child's needs and expresses no interest in receiving any financial assistance. In re Adoption of Hughes, 4th Dist. Ross No. 07CA2947, 2007-Ohio-3710, ¶¶ 20-21.
LEGAL ANALYSIS
{¶34} The sole issue for our consideration is the portion of the trial court's decision which held Appellee did have justifiable cause for not paying child support in the year prior to the filing of the adoption petitions. Appellant contends that the trial court improperly applied R.C. 3107.07(A). The Meigs County Probate Court found as follows:
"The Court finds that A.D. did have justifiable cause for not paying any child support in the year prior to the filing of the adoption. The Court finds that she was incarcerated in the Middleport jail for approximately one-half of the time and in drug rehabilitation the other half of the time. Based on the evidence presented, she did not and could not have earned any money during almost the entire year prior to the filing of the petitions for adoption. Jail and rehab were not like prison where she would have had an opportunity to earn at least a small wage."
* * *
"Further, the Court finds that prior to reporting to jail, A.D. was residing at the home of her parents with her children and their father, F.H. The Court finds that during the time they cohabitated, F.H. told A.D. not to worry about the child support payments.* * * This is further justification for A.D.'s lack of child support payments. Therefore, the Court finds the petitioner's argument that the mother failed, without justifiable cause, to support the children, to be without merit."
{¶35} Appellant emphasizes the mother was aware of the child support order, "found money" to support her prior drug addiction, and argues the mother should be held responsible for supporting her children while in jail and rehab. Appellant contends the trial court mistakenly focuses on the mother's inability to work during jail and rehab while ignoring that the mother's own behavior and choices led her to drug addiction. Appellant also argues the trial court improperly relied on the father's statement "not to worry" about the child support order, as well as improperly relying on the mother's family's provision and gifts as support. It is undisputed that A.D. failed to provide a single court-ordered child support payment during the time period prior to the filing for the petition for adoption, November 13, 2014 to November 13, 2015.
{¶36} In re Adoption of C.S., 2nd Dist. Montgomery No. 20557, 20558, and 20559, 2004-Ohio-5933, a step-mother, "Jennifer," appealed from a judgment of the Montgomery County Probate Court, which denied her petition for adoption with the consent of the father. In the sole assignment of error, Jennifer claimed that the trial court erred in holding that the mother's, "Gayle's," consent to adoption was required. After review of the record, the Second District noted that although Jennifer had argued that Gayle's drug addiction was not a justifiable basis for her failure to support her children, the court observed Gayle's testimony that she had stopped using drugs in June 2003 and that she and a new child subsequently had serious health problems that required hospitalization. The Second District held at ¶ 31:
"This case does not present a situation where Gayle's drug abuse was the sole reason for her failure to pay the court-ordered support during the relevant time period. * * * In Masa, the supreme court held that the ability to pay is a key factor in determining whether there is justifiable cause for failure to support a child. 23 Ohio St.3d at 167, 492 N.E.2d 140."
{¶37} In In re Adoption of Zachary Steven S., 6th Dist. Lucas No. L-03-1056, 2003-Ohio-3981, the appellant argued that appellee's incarceration of approximately six months was not sufficient to justify nonsupport and that her drug addiction did not relieve her of the responsibility to support her child. The appellant contended that appellee had the ability to work and simply chose not to. The Sixth District appellate court noted, pursuant to Dallas v. Dotson, 113 Ohio App.3d 484, 681 N.E.2d 464, (1996), that incarceration for less than the entire statutory period of non-support is only one factor the court may consider in looking at the entire period. In re Adoption of Zachary Steven S., supra, at ¶ 18. Appellant also cited In re Adoption of Lassiter, 101 Ohio App.3d 367, 655 N.E.2d 781 (1995), which stated that drug addiction alone is not a justifiable cause for failure to support.
{¶38} The Sixth District noted that, as in Dallas, appellee was incarcerated for less than the one-year statutory period. Id. at 19. However, in Dallas, the natural father advanced no evidence to justify his non-support for the months preceding his incarceration. Dallas at 487, 681 N.E.2d 464. Similarly, in Lassiter, the obligated parent offered no basis other than drug addiction for his failure to pay support. Lassiter at 378, 655 N.E.2d 781. The Lassiter court noted that the parent had held four or five jobs since the birth of his son and that his drug usage had been intermittent. Id. at 379, 655 N.E.2d 781. Further, the parent testified that he had a job as a security guard for six months prior to the hearing. Id.
{¶39} The Sixth District in In re Adoption of Zachary Steven S., held:
"In the present case, unlike Dallas and Lassiter, the trial court had multiple factors to consider in determining whether appellee's failure to pay was justified. Appellee was incarcerated for over six months of the statutory period. Appellee did not have any meaningful employment during the period; any money she received was from the natural father. Finally, during the periods when appellee was not incarcerated she was continuously using drugs. Based upon these particular facts, and mindful of the serious nature of the termination of parental rights, this court cannot find that the trial court's determination was contrary to the manifest weight of the evidence." Id. at ¶ 20.
{¶40} In the case sub judice, Appellant directs us to In re J.S., 4th Dist. Hocking No. 08CA2, 2008-Ohio-2834, in support of her argument that Appellee's jail and rehab are not justification for failure to support and maintain children. In J.S., Children Services had placed J.S. with the child's maternal grandmother and step-grandfather, Donna Jean Sanders and Harold Blake Sanders, appellees. Appellees filed a petition to adopt the child. The petition alleged that the mother-appellant's consent was not required because she failed to provide maintenance and support for the previous year without justifiable cause. When the petition came on for hearing, Donna Jean Sanders testified that J.S. had lived with her continuously since February of 2004, except for a short period when she was returned to her mother's care. During a ten-to-eleven month period, the mother did not see the child. At the end of May of 2006, J.S.'s mother entered Rural Women's Recovery in Athens. Donna Jean Sanders stated that this was the mother's third attempt at drug rehabilitation. Sanders further stated that appellant abused drugs and that when appellant was not in a drug rehabilitation program, she "relapses [and] she always seems to find jobs and make money, but it all goes to drugs."
{¶41} Harold Blake Sanders testified similarly to his wife. Furthermore, he stated J.S.'s mother had not provided J.S. with any support during the relevant time period, and had not provided the J.S. with any gifts within the relevant time period.
{¶42} The Appellant testified she entered Rural Women's at the end of May 2006. After that, she entered a different drug treatment program. The second program prohibited her from working, but provided housing. She received $381 per month. Appellant stated that before entering the drug rehabilitation program, she did not have any means to support herself. Appellant additionally testified that she gave J.S. gifts during visitations. The trial court subsequently determined that Appellant's consent to the adoption was not required. The court found that Appellant did not show justifiable cause for her failure to provide support for J.S. Specifically, the trial court noted that before Appellant entered drug treatment in May of 2006, she had periods of employment but failed to provide support for J.S. However, appellant was able to support her drug habit.
{¶43} On appeal, Appellant contended that the court improperly determined that she failed to support her child without justifiable cause. She argued that her failure was justified because: (1) her parents, who had legal custody of the child, had adequate means to support the child; (2) her parents did not request that she provide support for the child, and no court had ordered her to provide support; and (3) she was unemployed and unable to work due to her participation in a drug rehabilitation program.
{¶44} In consideration of the issue in the case sub judice, additionally, this court reviewed In re S.A.H., 4th Dist. Ross No. 07CA2947, 2007-Ohio-3710, wherein the mother asserted that her failure to provide maintenance and support for her child was facially justified due to: (1) her below-poverty income, (2) the lack of any support order being issued or requested after the petitioners obtained custody, (3) the petitioners' ability to provide for the child financially, (4) the lack of any evidence that the petitioners ever requested, needed, or desired financial help from the mother, and (5) the petitioners did not expect nor want financial help from the mother. We determined that these facts established that the mother reasonably believed that her financial assistance was unnecessary and that her failure to provide support for her child was justified.
{¶45} In S.A.H., we reasoned:
"[T]he evidence indicates [the petitioners] never requested any financial assistance from [the mother]. Additionally, the court never ordered [the mother] to pay support. [The mother] indicated that she believed her daughter was being well provided for by [the petitioners], in light of their combined income of $72,000, and she had no reason to believe that her financial assistance was necessary. Furthermore, evidence shows that [the mother] is unemployed and subsists with her fiancee and four other children on income of less than $25,000 per year." Id. at ¶ 23. We therefore concluded that the trial court's finding that the mother's failure to support her child was without justifiable cause was against the manifest weight and reversed and remanded the trial court's judgment." J.S. at ¶ 14.
{¶46} Furthermore, when a child's needs are adequately provided for by a custodian who is in a better financial position than the natural parent, and the custodian expresses no interest in receiving any financial assistance from the natural parent, the natural parent's failure to support the child may be deemed justifiable." Id. at ¶ 21, citing In re Adoption of Way, 4th Dist. Washington No. 01 CA23, 2002-Ohio-117, at fn. 3; In re Adoption of LaValley (Jul. 9, 1999), Montgomery App. No. 17710. As the court explained in LaValley: " 'If a parent has any reason to believe that his or her financial assistance may be reasonably necessary for the support of the child, then the failure to provide any financial assistance for a full year evinces such a complete abdication of parental responsibility as to justify the termination of the parental relationship in favor of adoption, so long as the adoption is found to be in the best interests of the child. However, where, as here, the parent has no reason to believe that his or her financial assistance is necessary for the support of the child, and the persons caring for the child have expressed no interest in receiving any financial assistance or contribution from the parent, no such abdication of parental responsibility is suggested by the natural parent's failure to provide financial assistance that is neither needed nor requested.' " LaValley, Montgomery App. No. 17710, at 4, quoted in S.A.H., at ¶ 22. In Way, supra, we determined that the mother's failure to support her child was justified when her sole source of income was $512 in monthly social security benefits.
{¶47} In In re J.S., we observed:
"The above cases shared similarities to the case at bar: (1) appellant is unemployed and is currently unable to work due to
her participation in a drug rehabilitation program; (2) she reasonably believed that her financial assistance was unnecessary because appellees' combined income is approximately $100,000; and (3) no court had ordered her to provide support and appellees never requested financial assistance. One important distinction exists however: throughout at least some of the time during the year preceding the adoption petition and during the two to three years preceding the adoption petition, appellant found sufficient funds to purchase and abuse drugs. Thus, while she claims that she was unable to support her child, she was able to support her purchase of illegal drugs. Apparently, appellant elevated her drug use over the well-being of her child, and, in this sense, she abdicated her parental duties, even if appellees possessed sufficient means to provide for the child's basic needs."
{¶48} In the case at bar, the evidence included, although not referenced in the trial court's entry, that Appellee had not worked outside the home since 2011 and that she did not have a driver's license. Additionally, although Appellee's jail time and rehab time were spent as a culmination of drug addiction and many of the expected bad choices which follow addiction, the trial court noted other facts.
{¶49} Appellee and Herald were living together at the Duffy home from at least June 2014 until October 2014. Herald continued to live there after Appellee turned herself in to authorities. The Duffys provided support and maintenance for the children, as apparently did Herald who worked as well. The Duffys did not request payment for food and lodging from Herald. There is no evidence the children's maintenance and support needs were not being met. From these facts, it may be inferred that the children's needs were adequately provided for, whether by the Duffys, Herald, or all three.
{¶50} While Mr. and Mrs. Duffy's testimony differed on whether Appellee and Herald stayed in separate rooms, they acknowledged they stayed together. Herald's testimony contradicts this. However, it was the province of the trial court to resolve these factual differences and determine credibility. Appellee testified that during that time, she and Herald lived together as husband and wife and parented together. Again it was the province of the trial court to weigh credibility and the trial court found Appellee and the Duffys' recollection of this time period to be believable.
{¶51} Furthermore, Appellee testified Herald told her, during the time they cohabitated at her parents' home, "not to worry" about child support. Since Herald and Appellee were living together as cohabiting partners, and the children's needs were being met, it was reasonable for Appellee to rely on Herald's statement and conclude that child support was not requested or needed. And, as in C.S. and J.S., there is no testimony in the record that Appellant was receiving social security or any governmental benefit or had any source of income.
{¶52} Again, we would again emphasize that the Meigs County Probate Court was in the better position to observe the witnesses and their demeanor as they testified, and evaluate credibility. We are required to give great deference to the trial court's determinations. Stephanie Layne testified Appellee was doing well and interacted well with her children. She also advised Appellee was avoiding negative influences.
{¶53} Appellee testified she loves her children and it was not that she "didn't want to pay child support." We further observe that although Appellee had relapsed after a prior incarceration, she testified she did not have any drug rehabilitation in the past. She testified her time at River City "opened her eyes," and she hopes to continue her education and "make something of herself."
{¶54} We further observe that, unlike the Appellant in J.S. who had three failed attempts at rehabilitation, this is Appellee's first drug rehabilitation. Appellee has apparently remained drug free and free from incarceration from the time of her release in September 2015 and during the April 2016 hearing on the adoption petitions. At the time of the hearing, the children's ages were 6 and 4. E.W.H. and P.R.H. are still young children. As noted in In re Adoption of Rodgers, 11th Dist. Trumbull No. 202-T-0171, 2003-Ohio-1424, ¶ 3, the potential for meaningful parent-child relationships between Appellee and both children still exists.
{¶55} Based on the foregoing analysis, we hold that the trial court's decision that Appellee demonstrated justifiable cause for failing to provide maintenance and support during the one year immediately prior to the filing of the adoption petitions is supported by competent and credible evidence and is not against the weight of the evidence. Appellee's consent is required pursuant to R.C. 3707.07. As such, we overrule the sole assignment of error and affirm the judgment of the trial court.
JUDGMENT AFFIRMED.
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED and costs be assessed to Appellant.
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. Hoover, J.: Concurs in Judgment Only.
Harsha, J.: Dissents.
For the Court,
BY: /s/_________
Matthew W. McFarland, 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.