# Appendix — Juntunen v. Wagner

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386004_0952%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 2000
- **Citation:** 528 U.S. 1191

## Text

Supremé Court, U.S.
2) FILED

991278 JAN 25 2000

No.

OFFICE OF THE CLE

IN THE
Supreme Court of the United States

—_———

ROGER DALE JUNTUNEN, NATURAL FATHER
Petitioner
vs
MARK VANCE WAGNER, STEP FATHER,
AND THE STATE OF OHIO, ET. AL.

—

On Petition For Writ of Certiorari
To The Eleventh District Court of Appeals of Ohio

——

APPENDIX TO PETITION FOR WRIT OF CERTIORARI

Roger Dale Juntunen
Pro Se

649 Lloyd Street
Hubbard, Ohio 44425
(330) 534-8948

|
\

Neen ee nn

Table of Contents

Appendix to Petition for Writ of Certiorari to the Eleventh District
Court of Appeals of Ohio

I. Opinions and orders entered in conjunction with the judgments
sought to be reviewed (Rule 14.1(i)(i)) ........cccccccccecesseeeeeeeeeeeees l

I[. Other relevant opinions and orders entered in the case by courts

CN Se EEE DR chines ccaptiiieninedticigiaieiapebiaicaiiadadinintiisitiatbaisttis 78
Iff. Material required by Rule 14.1(f) or Rule 14.1(g)(i) (Rule
MAES STN SID | SAT OT | SO TL Ae NOE 147

[V. Other material essential to understand the petition (Rule
BA WARD D vcienictcdcncsnecapheherislonsishcaisish sap adcsatdbiG panicled eediiun Satin 167

APPENDIX

(OPINIONS, ORDERS, FINDINGS OF FACT, AND CONCLU-
SIONS OF LAW ENTERED IN CONJUNCTION WITH THE
JUDGMENTS SOUGHT TO BE REVIEWED:)

(Cite as: 1999 WL 700615 (Ohio App. 11 Dist.)) NOTICE: RULE
2 OF THE OHIO SUPREME COURT RULES FOR THE RE-
PORTING OF OPINIONS IMPOSES RESTRICTIONS AND
LIMITATIONS ON THE USE OF UNPUBLISHED OPINIONS.

In re: The ADOPTION of Emily Anna WAGNER. No. 97-T-0223.

COURT OF APPEALS OF OHIO, ELEVENTH DISTRICT,
TRUMBULL COUNTY Civil Appeal from the Court of Common
Pleas, Probate Division, Case No. 94 ADP 057.

Roger D. Juntunen, Hubbard, OH, for Respondent-Appellant. Atty.
Elise M. Burkey, Warren, OH, for Petitioner-Appellee/Mark V.
Wagner.

JUDGMENT: Reversed and remanded.
FORD, P.J., CHRISTLEY and O’NEILL, JJ.
OPINION

FILED COURT OF APPEALS JUL 1, 1999 TRUMBULL
COUNTY, OHIO MARGARET R. O’BRIEN, Clerk.

ONEILL., J.

The following is an appeal from an ongoing process involving the
adoption of a child, Emily (d.o.b.9/8/89), by her stepfather, appel-
lee, Mark V. Wagner (“appellee”). In the current appeal, appellant,
Roger Juntunen (“appellant”), Emily’s natural father, alleges error
in the trial court’s determination that the best interest of the child
would be served by permitting the adoption and permanently
terminating his parental rights. Based on errors below that pre-

l

ee

vented appellant from fully participating at the hearing held to
determine the best interest of the child, we reverse the judgment of
the trial court and remand for further proceedings consistent with
this opinion.

The facts pertinent to this appeal are as follows. On June 23.
1994, appellee filed a petition in the Probate Division of the
Trumbull County Court of Common Pleas seeking to adopt his two
stepchildren, Benjamin (d.0.b.3/21/87) and Emily. By way of
background, appellee’s wife, Deborah Wagner (f.k.a.Juntunen),
was previously married to appellant and two children, Benjamin
and Emily, were born as issue to this marriage. On Juiy 15, 1991,
the children’s natural parents were granted a decree of dissolution
in the state of Indiana. Ms. Wagner was designated the residential
parent and appellant, with an income potential exceeding $35,000
per year, was ordered to pay $150 per week in child support. On
December 31, 1991, Ms. Wagner married appellee, and since that
date, the children have resided with appeliee and their mother.

In his petition, appellee alleged that appellant’s consent to the
adoption was unnecessary because, pursuant to R.C. 3107.07,
appellant failed without justifiable cause to communicate and/or
provide support for his children for the one-year period immedi-
ately preceding the filing of his petition. At a hearing held on the
issue of whether appellant’s consent was needed for the adoption
to proceed, evidence was presented that appellant rarely visited his
children and failed to satisfy his court ordered support payments.
For the one- year period immediately preceding the filing of
appellee’s adoption petition, June 23, 1993 to June 23, 1994,
appellant saw his children four times for a total of approximately
three hours. During the same twelve-month period, appellant paid
a total of $329.40 in child support.

By judgment entry filed March 22, 1995, the trial court deter-
mined that appellant’s consent to the adoption was not necessary.
The trial court based its decision on appellant’s failure, without
_ justifiable cause, to support his children above the mere $329.40
that was paid. The trial court’s judgment entry did not address
appellee’s contention that appellant failed to communicate with the

2

|

children and this was not a factor in the trial court’s determination
at this phase of the adoption proceedings. This court affirmed the ;
trial court’s decision in In re Adoption of Wagner (1997), 117 Ohio
App.3d 448, 690 N.E.2d 959, and a discretionary appeal to the |
Supreme Court of Ohio was not allowed in (1997), 78 Ohio St.3d

1516, 679 N.E.2d 311. {

Following the proceedings which determined that the adoption
process could occur without appellant’s consent, the trial court i
scheduled a hearing to determine the best interest of the child.
Prior to this hearing, and pursuant to R.C. 3107.12, a caseworker
from the Trumbull County Children Services Board, Annette
Weimer, submitted to the court confidential reports containing her
assessment of appellee and the children. The reports contained no
assessment of the relationship between Emily and her natural :

father, appellant.

On September 30, 1997, the trial court conducted a hearing on
appellee’s adoption petition to determine the best interest of the
children. Annette Weimer testified as to her findings contained i
within the confidential reports she previously filed with the trial :
court. She described appellee as an easygoing, hardworking person
who provided adequate income for his family’s financial needs.
She found the Wagner home to be adequately furnished with
excellent housekeeping standards. Personal references submitted to
the Board were all positive toward appellee and he was described
as a loving father who exhibited genuine concern and affection for

the children.

As for the children, Ms. Weimer described them as “anxious” to
be adopted by appellee and, in fact, were already using the Wagner
name in church and school. The children were described as devel-
oping normally and were involved in activities typical for their age
at both church and school. Ms. Weimer testified that the children
share a close relationship with appellee, who they refer to as
“Dad.” By contrast, Ms. Weimer testified that the children do not
share a close relationship with appellant and that their memories of
him are not positive. Ms. Weimer opined that the adoption of
Emily and Benjamin by appellee was in the best interest of the

3

" seas

child.

On cross-examination, Ms. Weimer acknowledged that she did not
question appellant, despite his availability, before submitting her
assessments to the court regarding appellee’s requested adoptions.
She further acknowledged that she was not aware, and did not
factor into her best interest determination, instances where Ms.
Wagner was found in contempt for interfering with appellant’s
visitation rights in the past.

Appellant also attempted to question Ms. Weimer regarding the
children’s poor opinion of him, and, specifically, the possibility
that they suffered from “Parental Alienation Syndrome” as a result
of brainwashing brought about by appellee and/or Ms. Wagner.
Ms. Weimer testified that she was not familiar with this particular
theory, however, she stated that she interviewed the children alone
and did not believe they had been coached as to what to say during
their interview with her.

Both appellee and Ms. Wagner testified as to appellee’s willing-
ness to raise the children and the lack of involvement that appel-
lant has had in his children’s development. Ms. Wagner described
how, in many respects, appellee is the only father that the children
have known. She testified that the children were eager to have the
adoption become official and described a circumstance when one
of the children, who was selected to receive an award at school,
became upset about being announced to the class as a “Juntunen”
and not a “Wagner.”

Ms. Wagner denied that she told the children what to say about
their natural father when they were interviewed by Ms. Weimer.
She further denied that she prohibited appellant from interacting
with the children. However, on cross-examination appellant
challenged Ms. Wagner’s credibility as to this point by questioning
her with a prior judgment issued from the Domestic Relations
Division of the Trumbull County Court of Common Pleas, which
held that she “willfully denied [appellant] his visitation” on at least
two occasions in the spring of 1995.

4

Ms. Wagner further testified that both students receive straight
“A’s” on their report cards and participate in numerous activities at
church and school. Appellee’s father, C lyde R. Wagner, testified as
to his willingness to accept Benjamin and Emily as his grandchil-
dren and described many of the activities that the children partici-
pate in during their visits with him.

In response to the evidence presented by appellee as to the best
interest of the children, appellant argued that he has tried to be a
part of his children’s lives as much as possible. However, he
accused Ms. Wagner of engaging in a pattern of activity to inhibit
him from fostering a relationship with his children.

Appellant testified that he resides less than ten minutes away from
his children where he lives with his current spouse, Jane Spies, and
their daughter, Sarah (d.o.b. 12/3/95). Despite his family’s close
proximity to Benjamin and Emily, appellant asserts that Ms.
Wagner has thwarted his attempts to visit with his children.
Appellant attempted to present, with varying degrees of success,
evidence of specific instances where Ms. Wagner prevented him
from seeing his children. Ms. Spies confirmed that her husband
attempted to enforce his visitation rights every weekend, but was
usually prevented from exercising those rights based on the actions
of Ms. Wagner.

Ms. Spies also testified that she received a bachelor’s degree in
psychology and a master’s in guidance and counseling. She further
stated that she has taken Ph.D. level course work in counseling and
psychology and expressed some familiarity with “Parental Alien-
ation Syndrome.” Based on her observations of the times appellant
was permitted to exercise his visitation rights, Ms. Spies stated that
the children acted lovingly toward their natural father as well as
their new baby sister. She saw no indication that the children
wanted to end their relationship with appellant. To the extent that
the children may have reported that they now want no contact with
their father, Ms. Spies opined that the children had been pro-
grammed or “brainwashed” into saying these things by Ms.
Wagner and/or appellee.

‘ppt tesla ts sctiakinde er OAs3

At the hearing, appellant admitted that he was behind in his child
support payments and did not deny Ms. Wagner’s estimate that he
was in arrears more than $40,000. He also did not deny that
appellee was adequately providing for the needs of the children.
However, appellant claimed that he now holds a steady job that
would permit him to pay his child support obligation. He also
expressed a desire to do anything for his children and attempted to
elicit evidence as to his ability to care for the children during time
periods when he exercised his visitation rights. Both he and Ms.
Spies believed that the children would face irreparable harm if the
court permanently terminated appellant’s parental rights and failed
to foster the children’s relationship with both sets of parents.

On November 5, 1997, the trial court issued its decision highlight-
ing the testimony as presented by appellee in this matter and
concluded that the adoption of Emily by her stepfather was in her
best interest. From this judgment, appellant filed a timely notice of
appeal and now asserts the following nine assignments of error:

“[1.] The granting of the adoption is contrary to law, against the
manifest weight of the evidence, and an abuse of judicial discre-
tion where the trial court restricts appellant’s relevant ‘best inter-
est’ testimony and evidence to the one year prior to the filing of
the adoption petition, in violation of Ohio Revised Code
3107.161(B), where Ohio Revised Code 3107.07(A) does not

apply.

“(2.] The granting of the adoption is unconstitutional and violates
the separation of church and state and the equal protection clause
of the United States Constitution where the judgment entry is
based on testimony that: ‘both children ... already use the last name
Wagner in church’, ‘Mr. Wagner is active ... in church activities
with them’, ‘the family attends church together regularly’, ‘the
children have had perfect attendance in Sunday school for the last
three years’, and ‘the extended family extends church and gathers
together every Sunday for dinner.’

~ “[3.] The granting of the adoption without ‘notice of filing’ and

‘proof of service’ of the state-initiated ‘Report on Proposed
6

Adoption; or the “ODHS Prefinalization Report’ and without
admission of said reports into evidence at the ‘best interest’
hearing subject to cross-examination by the appellant, is unconsti-
tutional and violates the appellant's civil liberties as a parent and
due process rights under the Fourteenth Amendment.

“{4.] The exclusion of appellant from the state-initiated investiga-
tion and subsequent ‘Report on Proposed Adoption’ and ‘ODHS
Prefinalization Report’ is unconstitutional and violates the
appellant’s liberty interest in the maintenance of the parent-child
relationship and due process rights under the Fourteenth Amend-
ment.

“15.] The de facto termination of the appellant's parent-child
relationship via the granting of an adoption under the “best inter-
est’ standard without the consent of the appellant and without a
prior legal termination of the appellant’s parental rights is uncon-
stitutional and a violation of the appellant’s civil liberties as a
parent and due process rights under the F ourteenth Amendment of
the United States Constitution.

“{6.] The granting of an adoption based on the prior fraudulent and

illegal use of the ‘Wagner’ last name Is fraudulent, contrary to law,
unconscionable, and abuse of judicial discretion.

“{7.] Ohio Revised C ode 3107.07(A) is unconstitutional because it
is too vague and forces judges to use personal subjective values
resulting in arbitrary legislation of the judiciary which violates the
appellant’s due process and equal protection rights under the
Fourteenth Amendment.

“(8.] The granting of the adoption is fraudulent, contrary to law,
and against the manifest weight of the evidence where the natural
mother committed the crime of perjury under oath at the ‘best
interest’ hearing and said perjury is material to the ‘best interest’
determination regarding contempt findings against her for failure
to provide lawful visitation and regarding her compliance with a
court ordered psychological evaluation to determine ‘best interest’
of the child and attend family counseling with Dr. Douglas
Darnall, Ph.D.

7

ew

oe cs RARE It Lt

“[{9.] The granting of the adoption is against the manifest weight of
the evidence and contrary to law where the judgment entry does
not independently consider all relevant factors related to the ‘best
interest’ of the child in a contested adoption required by Ohio
Revised Code 3107.161(B).”

For ease of disposition of this appeal, we will address the above
assignments of error in an order different from that presented by
appellant. Generally speaking, we will attempt to address
appellant’s assignments of error in the following order: arguments
appellant raises regarding the necessity of his consent to the
adoption; alleged errors in the trial court’s reliance on evidence
submitted by appellee in support of his petition for adoption; and
alleged restrictions placed on appellant’s attempt to present
evidence concerning the best interest of the child determination.

In the fifth assignment of error, appellant claims that the trial court
erred in terminating his parental relationship with his children
based solely on the best interest determination without a “judicial
finding of mental unfitness, neglect, abuse, or other legal reason to
terminate [his] rights.” However, appellant’s argument is a
mischaracterization of the history surrounding appellee’s adoption
petition.

An adoption proceeding involves a two-step process consisting of
a “consent” phase and a “best interest” phase. See, e.g., In re
Adoption of Jordan (1991), 72 Ohio App.3d 638, 645, 595 N.E.2d
963; In re Janoske (Nov. 22, 1991), Geauga App. No. 90-G-1589,
unreported, at 3. Previously, the trial court determined by clear and
convincing evidence that appellant, without justifiable cause,
failed to adequately support his children for the one-year period
immediately preceding the filing of appellee’s adoption petition.
This determination, equating to a finding of legal abandonment of
the children by appellee, was upheld on appeal. Following the
appellate process, the trial court turned to the second phase of the
adoption process, the “best interest” phase.

As a result of the trial court’s adherence to the two-step adoption

process, the constitutional arguments appellant raises as to the
8

termination of his parental rights “via a best interest hearing only”
are patently false. Appellant's fifth assignment of error is devoid of
merit.

Turning to appellant’s seventh assignment of error, appellant
attempts to argue that the consent phase of the adoption process,
conducted pursuant to R.C. 3 107.07(A), is unconstitutional.
Specifically, appellant argues that R.C. 3107.07(A) fails to set
forth a statewide minimum that a natural parent must pay toward
their child support obligation in order to preserve their parental
rights.

As discussed in appellant's fifth assignment of error, the consent
phase of the adoption process in this matter has been concluded,
and appellant’s arguments as to the unfairness of the trial court’s
determination as to that issue has survived the appellate process.
We will not discuss those arguments again in the current appeal.
Pursuant to the doctrines of res judicata and/or the “law of the
case,” appellant is prohibited from raising errors in a subsequent
action that should have been raised or were already decided in the
prior action. See, €.g., National Amusements, Inc. v. Springdale
(1990), 53 Ohio St.3d 60, 62, 558 N.E.2d 1178; Nolan v. Nolan
(1984), 11 Ohio St.3d 1, 3, 462 N.E.2d 410. Appellant’s seventh
assignment of error is without merit.

In the next set of arguments, appellant raises several assignments
of error with respect to the trial court’s reliance on evidence
presented by appellee in support of his petition for adoption. In the
second assignment of error, appellant asserts that the “theme” of
the trial court’s decision to grant the adoption petition centered
upon appellee’s participation in church related activities with the
children. Appellant argues that the court’s repeated reference to
these activities in its judgment entry amounts to a violation of his
First Amendment Rights and the separation between church and
state.

Appellant also alleges that the trial court’s “best interest” determi-
nation is contrary to law because the decision relied on fraudulent
evidence attributed to Ms.Wagner as part of her continued attempt

9

3 RM BAS 2

to alienate the children from him. Specifically, appellant claims in
the sixth assignment of error that appellee has illegally used the

: name “Wagner” as the children’s surname, and, in the eighth
assignment of error, argues that he established that Ms. Wagner
lied at the hearing regarding her repeated interference with his
visitation rights.

protein hese

Adoption matters are decided on a case-by-case basis through the
exercise of the discretion granted a trial court to determine matters
such as the best interest of the child. In re Adoption of Charles B
(1990), 50 Ohio St.3d 88, 90, 552 N.E.2d 884. Moreover, it is
primarily the responsibility of the trial court to weigh the testi-
mony presented before it and determine the credibility of the
witnesses. See, e.g., Bechtol v. Bechtol (1990), 49 Ohio St.3d 21,
23, 550 N.E.2d 178.

In reviewing the trial court’s judgment entry, however, it is evident
that the only “theme” underlying the court’s decision is the uncon-
troverted fact that appellee has shouldered, for whatever reason,
the responsibility of caring for appellant’s children since 1991. As
the court noted in its entry, it is appellee that the children refer to
as their father, it is appellee that participated in their important
events, such as church and school related activities, and it is
appellee who has provided for the children’s financial and emo-
tional needs.

The fact that the trial court mentioned the word “church” in its
judgment entry to help describe some of the activities appellee
engaged in with the children does not amount to a violation of
appellant’s First Amendment Rights. The trial court’s reference to
church activities is not an endorsement of religious activity.
Rather, it is used as an example of a type of activity which appar-
ently is important to the children and the Wagners. The trial court
judgment did not rely, as argued by appellant, on any “illegal” or
“unconstitutional” basis. Moreover, this court refuses to interfere
with the lower court’s determinations regarding the credibility of
the witnesses and its resolutions of factual disputes as argued in
these assignments of error. Appellant’s second, sixth, and eighth
assignments of error are without merit. We recognize that
appellant is understandably upset at the fact that appellee has

10

become the children’s central father figure. We further recognize
the pain appellant must feel to hear the characterization that his
children want nothing to do with him and fear ridicule from their
classmates when referred to as a “Juntunen” and not a “Wagner.”
However, appellee’s willingness to care for appellant’s children,
both financially and emotionally, as well as the children’s accep-
tance of their stepfather are facts that appellant did not dispute at
trial. Based on the evidence submitted to the court, at this point, a
very strong case has been made for why the best interest of the
child would be served by the court’s granting of appellee’s adop-
tion petition.

Appellant did not attack appellee’s adoption petition by question-
ing appellee’s ability to care for his children. Instead, appellant
focused his arguments on why he has not played a part in his
children’s lives and the reasons for his children’s poor opinion of
him. Appellant alleged that he has always expressed a willingness
to play a role in the children’s development, but has been denied
that chance based on his former wife’s continued attempts to
alienate the children from him. While appellee no doubt disputes
appellant’s claimed willingness to be a consistent means of support
to the children, both financially and emotionally, we do share some
of appellant’s concerns, as expressed in his remaining assignments
of error, regarding his ability to have his arguments heard by the
trial court.

In the third and fourth assignments of error, appellant alleges error
with respect to assessments filed by Ms. Weimer to the trial court
concerning appellee’s petition for adoption. Appellant asserts that
he was never notified that the assessments of appellee and the
children were being performed and was never given an opportunity
to participate in the investigations. He further asserts that he was
never given a copy of the reports filed in the court and had no way
to question the information provided by Ms. Weimer.

R.C. 3107.031 states, in pertinent part that:
“An assessor shall conduct a home study for the purpose of

ascertaining whether a person seeking to adopt a minor is suitable
11

oO PR NASH lash

ome as SANei

& Pea OS Oe

to adopt. A written report of the home study shall be filed with the
court at least ten days before the petition for adoption is heard.

“The report shall contain the opinion of the assessor as to whether
the person who is the subject of the report is suitable to adopt a
minor and other information and documents specified in rules
adopted by the department of human services * * *.

“On request, the assessor shall provide the person seeking to adopt
a copy of the report of the home study. The assessor shall delete
from that copy any provisions concerning the opinion of other
persons, excluding the assessor, of the person’s suitability to adopt
a minor.”

In addition to the home study report, R.C. 3107.12 required that
an assessment also be made of the petitioner and the child. [FN1]
R.C. 3107.12 provided, in pertinent part, as follows:

FN 1. Since the trial court’s hearing on the best interest of the child
has been revised, effective August 5, 1998, no longer requiring a
prefinalization assessment to be conducted if the petitioner is the
child’s stepparent. Under the new statute, the trial court may order
that an assessor conduct a prefinalization assessment if the report
is deemed in the child’s best interests. See revised R.C.
3107.12(B).

“An assessor shall conduct a prefinalization assessment of a minor
and petitioner before a court issues a final decree of adoption or
finalizes an interlocutory order of adoption for the minor. On
completion of the assessment, the assessor shall prepare a written
report of the assessment and provide a copy of the report to the
court before which the adoption petition is pending.

“The report of a prefinalization assessment shall include all of the
following:

“(A) The adjustment of the minor and the petitioner to the adoptive
placement; 12

“(B) The present and anticipated needs of the minor and the
petitioner, * * *;

“(C) The physical, mental, and developmental condition of the
minor;

“(D) If known, the minor’s biological family background, includ-
ing identifying information about the biological or other legal
parents,

“(E) The reasons for the minor's placement with the petitioner, the
petitioner’s attitude toward the proposed adoption, and the circum-
stances under which the minor was placed in the home of the
petitioner,

“(F) The attitude of the minor toward the proposed adoption, if the
minor’s age makes this feasible;

“see”

While R.C. 3107.031 and former R.C. 3107.12 mandate that
assessments be made of the petitioner, the petitioner’s home, and
the child, there are no requirements as to how these investigations
should be conducted. As the Fourth District Court of Appeals
stated in In re Adoption of Howell (1991), 77 Ohio App.3d 80, 93,
601 N.E.2d 92:

“The statute does not differentiate the type of investigation that
should be conducted for different types of adoptions. Logically
parents have surrendered a child for adoption and both parents
have sought to have their child adopted, there may not be a need to
contact the natural parents of the child. However, in a contested
adoption proceeding, it is difficult to see how the child’s best
interest may properly be determined if the investigator has only
inquired as to the condition of the petitioners and the child.”

In the case sub judice, we agree with appellant’s assertion that he

was not permitted to participate in the creation of Ms. Weimer’s

13

ag gine the eektbalaalns.

Pe SN ee

reports to the trial court. R.C. 3107.12(B) provided that the asses-
sor shall, if known, include information in the assessment regard-
ing the child’s biological family background. Despite appellant’s
availability to participate in the assessment, Ms. Weimer wrote “N/
A” when she came to this section of her report regarding the
biological family.

We are deeply concerned at the way the prefinalization report was
prepared in this matter. Aside from the mandatory language
utilized by the legislature, the information provided under former
R.C. 3107.12(D) can be vital, particularly in a circumstance where
an adoptive child may begin experiencing unexplained physiologi-
cal or psychological problems. See factual situation in Burr v.
Stark Cty. Bd. of Commrs. (1986), 23 Ohio St.3d 69, 491 N.E.2d
1101. Relevant to this matter, Ms. Weimer’s failure to contact
appellant also gives the impression that his thoughts as to the
adoption do not matter and ends up providing the court with a
rather one-sided account as to why appellee’s petition for adoption
should be granted.

As to appellant’s ability to receive a copy of Ms. Weimer’s
reports, we would note that he failed to afford himself of the
protections provided in R.C. 3107.17(B) that permit the disclosure
of the information he seeks upon the consent of the court. See In re
Adoption of Dervenis (Dec. 28, 1995), Franklin App. No.

95 APF07-869, unreported. We further note that Ms. Weimer was
called to testify at the best interest hearing where she conveyed the
results of her assessments and faced cross-examination from
appellant regarding any shortcomings in the process she utilized in
compiling her assessments for the court. As indicated by appellant,
this cross-examination revealed that Ms. Weimer never contacted
appellant as she was compiling her evaluations, and, thus, her
recommendations concerning the best interest of the children did
not consider appellant’s views on the adoption.

Despite the shortcomings in Ms. Weimer’s report, we cannot agree
with appellant’s assertion that he was prejudiced by the report,
particularly in a circumstance, such as this one, where the assessor
was subject to cross-examination, and, as will be discussed in the

14

next assignment of error, appellant has or will be given an opportu-
nity to present evidence to counter the findings submitted in the
assessor’s report. See Howell, 77 Ohio App.3d at 91, 601 N.E.2d |
92: In re Adoption of Aiken (Mar. 30, 1992), Montgomery App.
No. 12522, unreported. Appellant’s third and fourth assignments of
error are without merit.

This leads us to appellant’s first assignment of error, and the
allegations t’sat the trial court improperly limited the evidence he
wished to present in opposition to appellee’s petition for adoption.
Specifically, appellant cites to a number of instances in the record
where the trial court limited his presentation of evidence to the
one-year period immediately preceding the filing of appellee’s
adoption petition.

In dealing with a pro se litigant, it is evident that the trial court
attempted to grant appellant as much latitude as possible in his
presentation of his case. However, a review of the record confirms
appellant’s claims that the trial court limited his presentation to
those facts that occurred within the one-year-time period immedi-
ately preceding the filing of appellee’s petition. The restrictions to
appellant’s presentation typically occurred when appellant sought
to question Ms. Wagner regarding her willingness to grant him
visitation rights as well as evidence concerning the suitability of
his home when the children are permitted to come and visit with
him. Specifically, the trial court’s comments included the follow-

ing:

“Q: (By Mr. Juntunen to Ms. Wagner) In 1995, for instance on
September 29th, 1995, did you allow me my lawful visitation with
Benjamin and Emily?

“(By appellee’s counsel): I’m going to note a continuing objection
as to the relevancy.

“BY THE COURT: I’m going to sustain the objection. The issue

here, as I’ve indicated, is the best interest of the children. The time

frame that we’re concerned about is the year immediately preced-

ing the filing of the petition for—or in close proximity to that time
15

frame. The petition, as I have indicated, was filed on June 23,

1994. So, we’re concerned with the period of time from June of
*93 to June of °94. If there are any relevant factors around that time
period, the Court may consider that as well.”

While R.C. 3107.07(A) limited the “consent” phase of this
adoption proceeding to the time period consisting of the year
immediately preceding the filing of appellee’s adoption petition,
there is no such restriction in the determination of the best interest
of the child. The very fact that the trial court had to consider a
prefinalization report prior to issuing a final decree of adoption
establishes that the court must consider evidence outside of the
one-year time period referenced in R.C. 3107.07(A).

In determining the best interest of the child, R.C. 3107.16]
provides:

“(A) As used in this section, ‘the least detrimental available
alternative’ means the alternative that would have the least long-
term negative impact on the child.

“(B) When a court makes a determination in a contested adoption
concerning the best interest of a child, the court shall consider all
relevant factors including, but not limited to, all of the following:

“(1) The least detrimental available alternative for safeguarding
the child’s growth and development;

“(2) The age and health of the child at the time the best interest
determination is made and, if applicable, at the time the child was
removed from the home;

“(3) The wishes of the child in any case in which the child’s age
and maturity makes this feasible;

“(4) The duration of the separation of the child from a parent;
“(5) Whether the child will be able to enter into a more stable and
permanent family relationship, taking into account the conditions

16

of the child’s current placement, the likelihood of future place-
ments, and the results of prior placements;

“(6) The likelihood of safe reunification with a parent within a
reasonable period of time;

“(7) The importance of providing permanency, stability, and
continuity of relationships for the child;

“(8) The child’s interaction and interrelationship with the child’s
parents, siblings, and any other person who may significantly
affect the child’s best interest;

“(9) The child’s adjustment to the child’s current home, school,
and community;

“(10) The mental and physical health of all persons involved in the
situation;

“(11) Whether any person involved in the situation has been
convicted of, pleaded guilty to, or accused of any [relevant]
criminal offense * * *.

“(C) A person who contests an adoption has the burden of provid-
ing the court material evidence needed to determine what is in the
best interest of the child and must establish that the child’s current
placement is not the least detrimental available alternative.”
(Emphasis added.)

Unlike R.C. 3107.07(A), R.C. 3107.161 does not contain a one-
year restriction from which to consider evidence. Thus, it was
improper for the trial court to restrict appellant’s evidence at the
“best interest” phase to this time period. Appellant’s first assign-
ment of error has merit.

Throughout these proceedings, appellant has expressed his desire
to do everything in his power to prevent the permanent termination
of his parental rights. He has done this for the stated purpose of
letting his children know that he did not permit the adoptions to

17

ee ee ae eee ae

occur without a fight. While appellant’s statements are admirable,
they are clearly in conflict with his continued practice of failing to
provide financial and emotional support for his children. However,
appellant submits that he can prove that any shortcomings he has
had as a father are not his fault and that the children’s best interest
would be served by the court fostering a relationship between the
children and both sets of families. The law requires the court to
come up with the “least detrimental alternative.”

Based on the restrictions that were placed on appellant’s presenta-
tion of his case, on remand appellant shall have an opportunity to
present to the trial court any additional evidence relevant to the
best interest determination. This determination may include
appellant’s development of his theory that the children suffer from
“Parental Alienation Syndrome” as a result of Ms. Wagner’s past
actions. We will warn appellant, however, that he is treading on
very thin ice and we strongly recommend that he retain counsel. If
he has actual evidence that the children suffer from “Parental
Alienation Syndrome” and could develop a meaningful relation-
ship with the Juntunen family, appellant needs to now present that
evidence to the trial court in a way that conforms to the Ohio Rules
of Evidence and Procedure. On remand, appellee should also be
given an opportunity to respond to any evidence submitted by
appellant if he so desires.

We remind appellant that the trial court’s determination will be
made on the evidence that was admitted at the prior hearing and
the relevant evidence that will properly be admitted as a result of
our remand. The subjective desires of appellant will not suffice to
meet his burden to present evidence that the adoption of the
children by their stepfather is not the least detrimental alternative
available.

As a result of our determination regarding appellant’s first assign-
ment of error, appellant’s arguments concerning the trial court’s
consideration of all relevant factors in its judgment entry are moot.
Based on the foregoing, the judgment of the trial court is reversed
and this matter is remanded for further proceedings consistent with
this opinion. All pending motions currently before this court are
18

hereby overruled as moot. It is the further order of this court that
the parties equally share the costs of this proceeding.

/s/ JUDGE WILLIAM M. O’NEILL

FORD, P.J., concurs with the first, second, fifth, sixth, eighth, and
ninth assignments of error; concurs in judgment only as to the
seventh assignment of error, dissents on the third and fourth
assignments of error with Concurring/Dissenting Opinion,

CHRISTLEY, J., concurs with the second, fourth, fifth, sixth,
seventh, eighth, and ninth assignments of error; concurs in judg-
ment only as to the first and third assignments of error with
Concurring Opinion.

COURT OF APPEALS, ELEVENTH DISTRICT, LAKE
COUNTY, OHIO IN RE: THE ADOPTION OF EMILY ANNA
WAGNER CASE NO. 97-T-0223, Filed July 1, 1999

CONCURRING/DISSENTING OPINION

FILED COURT OF APPEALS JUL 01 1999 TRUMBULL
COUNTY, OHIO MARGARET R. O’BRIEN, Clerk

FORD, P.J.:

| respectfully concur with most of the majority’s treatment of this
matter.

This writer concurs in judgment only with the majority on the
seventh assignment of error. The majority discusses the constitu-
tionality of applying R.C. 3107.07(A) to the consent phase of the
adoption. R.C. 3107.07(A) states that consent to an adoption is n¢
required of a natural parent when it is alleged that the parent has
failed without justifiable cause to communicate with or provide
maintenance and support for the minor for a period of at least one
year immediately preceding the filing of the adoption petition. TI
writer notes that the requirements of the statute concerning the
issue of the amount of support needed from a parent’s total oblig:
19

tion to determine whether his or her consent is required to allow an
adoption matter to proceed is case specific and is a legislative
problem that the Supreme Court of Ohio has not yet solved.

However, a potential adoptive parent has the burden of proving,
by clear and convincing evidence that the natural parent failed to
support his or her child during the one-year period preceding the
adoption petition, and that there was no justifiable cause for failing
to provide for the support of the child. In re Adoption of Hale (July
22, 1988), Lake App. No. 12-238, unreported, at 6. See, also, In re
Adoption of Cline (1993), 89 Ohio App.3d 450, 456; Quinn v.
Helman (Sept. 13, 1985), Trumbull App. No. 3509, unreported, at
3. It is evident from this district’s cases on this subject that an
insubstantial amount of support alone will not necessarily provide
a trial court with the basis to negate consent by a natural parent
when the plaintiff has failed to meet the burden of establishing the
negative concept of no justifiable cause by clear and convincing
evidence. Members of this court still hold to that rule in these
proceedings. It is this writer’s position that the statute must be
strictly construed to protect the rights of the natural parents, and,
therefore, trial courts in our district should be alert to this common
thread in our opinion on this issue.

While not expressly addressing the arguments by the parties in the
seventh assignment of error again, it is this writer’s position that
the majority erred in concluding that the doctrine of res judicata
applies. | am of the opinion that the majority has misstated the
doctrine of the “law of the case,” as stated in Nolan v. Nolan
(1984), 11 Ohio St.3d 1. According to Nolan, the doctrine of the
“law of the case” provides that a reviewing court’s decision “in a
case remains that law of the case on the legal questions involved
for all subsequent proceedings in the case at both the trial and
reviewing levels.” Id. at 3. Thus, this rule ensures the consistency
of results in a case. Accordingly, pursuant to Nolan, I conclude that
in disposing of this issue, we are solely bound by the doctrine of
the law of the case, and not res judicata.

However, I dissent from the majority for its failure to discuss
issues presented in the third and fourth assignments of error. In the
20

third assignment of error, appellant raised the issue of the constitu-
tionality of the granting of the adoption without notice of a filing,
and without admitting reports into evidence at the “best interest”
hearing. In his fourth assignment of error, appellant mentioned the
constitutionality of his exclusion from the state- initiated investiga-
tion. These issues were presented to us, but were not addressed in
the majority opinion. I, therefore, again dissent from the majority
because of its failure to address these issues.

Hence, I concur with the majority regarding its analysis and
conclusions as to the first, second, fifth, sixth, eighth and ninth
assignments of error; | concur in judgment only as to the seventh
assignment of error; and I dissent with respect to the third and
fourth assignments of error.

/s/ PRESIDING JUDGE DONALD R.FORD

COURT OF APPEALS, ELEVENTH DISTRICT, LAKE
COUNTY, OHIO IN RE: THE ADOPTION OF EMILY ANNA
WAGNER CASE NO. 97-T-0223, Filed July 1, 1999

CONCURRING OPINION

FILED COURT OF APPEALS JUL 01 1999 TRUMBULL
COUNTY, OHIO MARGARET R. O'BRIEN, Clerk

CHRISTLEY, J.

I respectfully concur in judgment only as to the first and third
assignments of error. I agree with the conclusion of the majority
regarding the first assignment of error as it relates to the time
frame of admissible relevant evidence with respect to the “best
interest” element.

My concern is that the legislative intent of this bifurcated process
of consent and best interest appears to be contradictory. Specifi-
cally, I have difficulty with the concept that, under the statute as
written, a biological parent whose consent has been determined to
be unnecessary can, nevertheless, challenge the adoption proceed-

21

ae raN oid ar

ing in the best interest phase. Not only is it apparent that the
disenfranchised parent can challenge the suitability of the pro-
posed adoptive parent, but the parent can again litigate his or her
own role in the child’s life by challenging the ability of the child to
be adopted by anyone.

I find this to be both confusing and contradictory. Neveriheless,
u.der R.C. 3107.161 and its companion statutes, it appears the
nonconsenting parent can, again, in the best interest phase, litigate
his or her own right to continue as a parent to the child.

If the legislature truly intended that the consent of a parent was
not necessary, it would make more sense if the evidence in the
“best interest” hearing did not address whether the nonconsenting
parent was improperly denied either his or her right to consent or
his or her right to continue as a parent. Certainly appellant should
be entitled to a voice regarding “best interest,” but that voice
should only be able to challenge the suitability of the petitioner as
the proposed adoptive parent, not the issue of adoption per se.

If that had been the law, then appellant’s attempts to submit
evidence would have been rebuffed as being irrelevant on that
basis. Specifically, the issues regarding Ms. Wagner’s alleged
denial of visitation rights to him; the suitability of appellant’s own
home when the children were permitted to come and visit with
him; and, the parental alienation syndrome would no longer be
issues available to be litigated. [FN1]

FN 1. I, nevertheless, believe that the “denial of visitation” and
“alienation syndrome” are irrelevant to any adoption issue, even
under the current statute.

Unfortunately the law as now written seems to permit a second
Opportunity to litigate the rights of a non-consenting parent and to
provide a forum for that parent to demonstrate that his shortcom-
ings as a parent were not his fault.

In conclusion, I agree with the majority that the one year restric-
tion on the evidence related to the best interest hearing was too
22

limiting, and I reluctantly agree that evidence as to appellant’s
right to block any adoption process is admissible.

As to the third assignment regarding the need for inclusion of the
appellant in the psychological evaluations, I agree that such
evaluations were mandatory under the applicable former statute.
However, that issue is waived as the appellant did not object at the
trial court level. He did cross-examine the social worker vigor-
ously as to his exclusion from the report, but he never objected to
its admission on that basis. Neither did he request a continuance so
that he could be included in such a report. Instead, he raises this
issue for the first time on appeal. Further, I find it significant that
the mandatory nature of this part of the statute has since been
eliminated by the legislature.

I, therefore, would find no error on the part of the trial court in
this regard.

Thus, I concur in judgment only as to the first and third assign-
ments of error. In all other respects, I concur in the judgment and
analysis of the majority.

/s/ JUDGE JUDITH A. CHRISTLEY

STATE OF OHIO }

} SS.
COUNTY OF TRUMBULL }

IN THE COURT OF APPEALS, ELEVENTH DISTRICT Filed
July 1, 1999

JUDGMENT ENTRY
CASE NO. 97-T-0223

FILED COURT OF APPEALS JUL 01 1999 TRUMBULL
COUNTY, OHIO MARGARET R. O’BRIEN, Clerk

For the reasons states in the Opinion of this court, it is judgment
23

and order of this court that the judgment of the trial court is
reversed and this matter is remanded for further proceedings
consistent with this Opinion. All pending motions currently before
this court are hereby overruled as moot. It is the further orderof
this court that the parties equally share the costs of this proceeding.

/s/ JUDGE WILLIAM M. O’NEILL, FOR THE COURT

FORD, P.J., concurs with the first, second, fifth, sixth, eighth, and
ninth assignments of error; concurs in judgment only as to the
seventh assignment of error; dissents on the third and fourth
assignments of error with Concurring/Dissenting Opinion,

CHRISTLEY, J., concurs with the second, fourth, fifth, sixth,
seventh, eighth, and ninth assignments of error; concurs in judg-
ment only as to the first and third assignments of error with
Concurring Opinion.

(Cite as: 1999 WL 689971 (Ohio App. 11 Dist.)) NOTICE: RULE
2 OF THE OHIO SUPREME COURT RULES FOR THE RE-
PORTING OF OPINIONS IMPOSES RESTRICTIONS AND
LIMITATIONS ON THE USE OF UNPUBLISHED OPINIONS.

In re the Adoption of Benjamin Matthew WAGNER. No. 97-T-
0224.

Court of Appeals of Ohio, Eleventh District, Trumbull County.
Filed July 1, 1999.

Civil Appeal from the Court of Common Pleas, Probate Division,
Case No. 94 ADP 058.

Roger D. Juntunen, Hubbard, OH, for Respondent-Appellant. Elise
M. Burkey, Warren, OH, for Petitioner-Appellee, Mark V. Wagner.

JUDGMENT: Reversed and remanded.
24

FORD, CHRISTLEY and O’NEILL, JJ.
OPINION

FILED COURT OF APPEALS JUL 01 1999 TRUMBULL
COUNTY, OHIO MARGARET R. O’BRIEN, Clerk

O’NEILL., J.

The following is an appeal from an ongoing process involving the
adoption of a child, Benjamin (d.0.b.3/21/87), by her stepfather,
appellee, Mark V. Wagner (“appellee”). In the current appeal,
appellant, Roger Juntunen (“appellant”), Benjamin’s natural father,
alleges error in the trial court’s determination that the best interest
of the child would be served by permitting the adoption and
permanently terminating his parental rights. Based on errors below
that prevented appellant from fully narticipating at the hearing held
to determine the best interest of the child, we reverse the judgment
of the trial court and remand for further proceedings consistent
with this opinion.

The facts pertinent to this appeal are as follows. On June 23,
1994, appellee filed a petition in the Probate Division of the
Trumbull County Court of Common Pleas seeking to adopt his two
stepchildren, Benjamin and Emily (d.o.b. 9/8/89). By way of
background, appellee’s wife, Deborah Wagner (f.k.a. Juntunen),
was previously married to appellant and two children, Benjamin
and Emily, were born as issue to this marriage. On July 15, 1991,
the children’s natural parents were granted a decree of dissolution
in the state of Indiana. Ms. Wagner was designated the residential
parent and appellant, with an income potential exceeding $35,000
per year, was ordered to pay $150 per week in child support. On
December 31, 1991, Ms. Wagner married appellee, and since that
date, the children have resided with appellee and their mother.

In his petition, appellee alleged that appellant’s consent to the
adoption was unnecessary because, pursuant to R.C. 3107.07,
appellant failed without justifiable cause to communicate and/or

25

is ere eT

provide support for his children for the one-year period immedi-
ately preceding the filing of his petition. At a hearing held on the
issue of whether appellant’s consent was needed for the adoption
to proceed, evidence was presented that appellant rarely visited his
children and failed to satisfy his court ordered support payments.
For the one- year period immediately preceding the filing of
appellee’s adoption petition, June 23, 1993 to June 23, 1994,
appellant saw his children four times for a total of approximately
three hours. During the same twelve-month period, appellant paid
a total of $329.40 in child support.

By judgment entry filed March 22, 1995, the trial court deter-
mined that appellant’s consent to the adoption was not necessary.
The trial court based its decision on appellant’s failure, without
justifiable cause, to support his children above the mere $329.40
that was paid. The trial court’s judgment entry did not address
appellee’s contention that appellant failed to communicate with the
children and this was not a factor in the trial court’s determination
at this phase of the adoption proceedings. This court affirmed the
trial court’s decision in In re Adoption of Wagner (1997), 117 Ohio
App.3d 448, 690 N.E.2d 959, and a discretionary appeal to the
Supreme Court of Ohio was not allowed in (1997), 78 Ohio St.3d
1516, 679 N.E.2d 311.

Following the proceedings which determined that the adoption
process could occur without appellant’s consent, the trial court
scheduled a hearing to determine the best interest of the child.
Prior to this hearing, and pursuant to R.C. 3107.12, a caseworker
from the Trumbull County Children Services Board, Annette
Weimer, submitted to the court confidential reports containing her
assessment of appellee and the children. The reports contained no
assessment of the relationship between Benjamin and her natural
father, appellant.

On September 30, 1997, the trial court conducted a hearing on
appellee’s adoption petition to determine the best interest of the
children. Annette Weimer testified as to her findings contained
within the confidential reports she previously filed with the trial
court. She described appellee as an easygoing, hardworking person

26

who provided adequate income for his family’s financial needs.
She found the Wagner home to be adequately furnished with
excellent housekeeping standards. Personal references submitted to
the Board were all positive toward appellee and he was described
as a loving father who exhibited genuine concern and affection for
the children.

As for the children, Ms. Weimer described them as “anxious” to
be adopted by appellee and, in fact, were already using the Wagner
name in church and school. The children were described as devel-
oping normally and were involved in activities typical for their age
at both church and school. Ms. Weimer testified that the children
share a close relationship with appellee, who they refer to as
“Dad.” By contrast, Ms. Weimer testified that the children do not
share a close relationship with appellant and that their memories of
him are not positive. Ms. Weimer opined that the adoption of
Benjamin and Emily by appellee was in the best interest of the
child.

On cross-examination, Ms. Weimer acknowledged that she did not
question appellant, despite his availability, before submitting her
assessments to the court regarding appellee’s requested adoptions.
She further acknowledged that she was not aware, and did not
factor into her best interest determination, instances where Ms.
Wagner was found in contempt for interfering with appellant’s
visitation rights in the past.

Appellant also attempted to question Ms. Weimer regarding the
children’s poor opinion of him, and, specifically, the possibility
that they suffered from “Parental Alienation Syndrome” as a result
of brainwashing brought about by appellee and/or Ms. Wagner.
Ms. Weimer testified that she was not familiar with this particular
theory, however, she stated that she interviewed the children alone
and did not believe they had been coached as to what to say during
their interview with her.

|

Both appellee and Ms. Wagner testified as to appellee’s willing-
ness to raise the children and the lack of involvement that appel-
lant has had in his children’s development. Ms. Wagner described

27

Ol

i

how, in many respects, appellee is the only father that the children
have known. She testified that the children were eager to have the
adoption become official and described a circumstance when one
of the children, who was selected to receive an award at school,
became upset about being announced to the class as a “Juntunen”
and not a “Wagner.”

Ms. Wagner denied that she told the children what to say about
their natural father when they were interviewed by Ms. Weimer.
She further denied that she prohibited appellant from interacting
with the children. However, on cross-examination appellant
challenged Ms. Wagner’s credibility as to this point by questioning
her with a prior judgment issued from the Domestic Relations
Division of the Trumbull County Court of Common Pleas, which
held that she “willfully denied [appellant] his visitation” on at least
two occasions in the spring of 1995,

Ms. Wagner further testified that both students receive straight
“A’s” on their report cards and participate in numerous activities at
church and school. Appellee’s father, Clyde R. Wagner, testified as
to his willingness to accept Benjamin and Emily as his grandchil-
dren and described many of the activities that the children partici-
pate in during their visits with him.

In response to the evidence presented by appellee as to the best
interest of the children, appellant argued that he has tried to be a
part of his children’s lives as much as possible. However, he
accused Ms. Wagner of engaging in a pattern of activity to inhibit
him from fostering a relationship with his children.

Appellant testified that he resides less than ten minutes away from
his children where he lives with his current spouse, Jane Spies, and
their daughter, Sarah (d.o.b. 12/3/95). Despite his family’s close
proximity to Benjamin and Emily, appellant asserts that Ms.
Wagner has thwarted his attempts to visit with his children.
Appellant attempted to present, with varying degrees of success,
evidence of specific instances where Ms. Wagner prevented him
from seeing his children. Ms. Spies confirmed that her husband
attempted to enforce his visitation rights every weekend, but was

28

usually prevented from exercising those rights based on the actions
of Ms. Wagner.

Ms. Spies also testified that she received a bachelor’s degree in
psychology and a master’s in guidance and counseling. She further
stated that she has taken Ph.D. level course work in counseling and
psychology and expressed some familiarity with “Parental Alien-
ation Syndrome.” Based on her observations of the times appellant
was permitted to exercise his visitation rights, Ms. Spies stated that
the children acted lovingly toward their natural father as well as
their new baby sister. She saw no indication that the children
wanted to end their relationship with appellant. To the extent that
the children may have reported that they now want no contact with
their father, Ms. Spies opined that the children had been pro-
grammed or “brainwashed” into saying these things by Ms.
Wagner and/or appellee.

At the hearing, appellant admitted that he was behind in his child
support payments and did not deny Ms. Wagner’s estimate that he
was in arrears more than $40,000. He also did not deny that
appellee was adequately providing for the needs of the children.
However, appellant claimed that he now holds a steady job that
would permit him to pay his child support obligation. He also
expressed a desire to do anything for his children and attempted to
elicit evidence as to his ability to care for the children during time
periods when he exercised his visitation rights. Both he and Ms.
Spies believed that the children would face irreparable harm if the
court permanently terminated appellant’s parental rights and failed
to foster the children’s relationship with both sets of parents.

On November 5, 1997, the trial court issued its decision highlight-
ing the testimony as presented by appellee in this matter and
concluded that the adoption of Benjamin by her stepfather was in
her best interest. From this judgment, appellant filed a timely
notice of appeal and now asserts the following nine assignments of
error:

“(1.] The granting of the adoption is contrary to law, against the

manifest weight of the evidence, and an abuse of judicial discre-
29

Le

tion where the trial court restricts appellant’s relevant ‘best inter-
est’ testimony and evidence to the one year prior to the filing of
the adoption petition, in violation of Ohio Revised Code
3107.161(B), where Ohio Revised Code 3107.07(A) does not

apply.

“(2.] The granting of the adoption is unconstitutional and violates
the separation of church and state and the equal protection clause
of the United States Constitution where the judgment entry is
based on testimony that: ‘both children ... already use the last name
Wagner in church’, ‘Mr. Wagner is active ... in church activities
with them’, ‘the family attends church together regularly’, ‘the
children have had perfect attendance in Sunday school for the last
three years’, and ‘the extended family extends church and gathers
together every Sunday for dinner.’

“[3.] The granting of the adoption without ‘notice of filing’ and
‘proof of service’ of the state-initiated ‘Report on Proposed
Adoption; or the “ODHS Prefinalization Report’ and without
admission of said reports into evidence at the ‘best interest’
hearing subject to cross-examination by the appellant, is unconsti-
tutional and violates the appellant’s civil liberties as a parent and
due process rights under the Fourteenth Amendment.

“[4.] The exclusion of appellant from the state-initiated investiga-
tion and subsequent ‘Report on Proposed Adoption’ and ‘ODHS
Prefinalization Report’ is unconstitutional and violates the
appellant’s liberty interest in the maintenance of the parent-child
relationship and due process rights under the Fourteenth Amend-
ment.

“[5.] The de facto termination of the appellant’s parent-child
relationship via the granting of an adoption under the ‘best inter-
est’ standard without the consent of the appellant and without a
prior legal termination of the appellant’s parental rights is uncon-
stitutional and a violation of the appellant’s civil liberties as a
parent and due process rights under the Fourteenth Amendment of
the United States Constitution.
“[6.] The granting of an adoption based on the prior fraudulent and
x 30

illegal use of the ‘Wagner’ last name is fraudulent, contrary to law,
unconscionable, and abuse of judicial discretion.

“(7.] Ohio Revised Code 3107.07(A) is unconstitutional because it
is too vague and forces judges to use personal subjective values
resulting in arbitrary legislation of the judiciary which violates the
appellant’s due process and equal protection rights under the
Fourteenth Amendment.

“[8.] The granting of the adoption is fraudulent, contrary to law,
and against the manifest weight of the evidence where the natural
mother committed the crime of perjury under oath at the “best
interest’ hearing and said perjury is material to the ‘best interest’
determination regarding contempt findings against her for failure
to provide lawful visitation and regarding her compliance with a
court ordered psychological evaluation to determine ‘best interest’
of the child and attend family counseling with Dr. Douglas
Darnall, Ph.D.

“(9.] The granting of the adoption is against the manifest weight of
the evidence and contrary to law where the judgment entry does
not independently consider all relevant factors related to the ‘best
interest’ of the child in a contested adoption required by Ohio
Revised Code 3107.161(B).”

For ease of disposition of this appeal, we will address the above
assignments of error in an order different from that presented by
appellant. Generally speaking, we will attempt to address
appellant’s assignments of error in the following order: arguments
appellant raises regarding the necessity of his consent to the
adoption; alleged errors in the trial court’s reliance on evidence
submitted by appellee in support of his petition for adoption, and
alleged restrictions placed on appellant’s attempt to present
evidence concerning the best interest of the child determination.

In the fifth assignment of error, appellant claims that the trial court
erred in terminating his parental relationship with his children
based solely on the best interest determination without a “judicial
finding of mental unfitness, neglect, abuse, or other legal reason to

31

§

terminate [his] rights.” However, appellant’s argument is a
mischaracterization of the history surrounding appellee’s adoption
petition.

An adoption proceeding involves a two-step process consisting of
a “consent” phase and a “best interest” phase. See, e.g., In re
Adoption of Jordan (1991), 72 Ohio App.3d 638, 645, 595 N.E.2d
963; In re Janoske (Nov. 22, 1991), Geauga App. No. 90-G-1589,
unreported, at 3. Previously, the trial court determined by clear and
convincing evidence that appellant, without justifiable cause,
failed to adequately support his children for the one-year period
immediately preceding the filing of appellee’s adoption petition.
This determination, equating to a finding of legal abandonment of
the children by appellee, was upheld on appeal. Following the
appellate process, the trial court turned to the second phase of the
adoption process, the “best interest” phase.

As a result of the trial court’s adherence to the two-step adoption
process, the constitutional arguments appellant raises as to the
termination of his parental rights “via a best interest hearing only”
are patently false. Appellant’s fifth assignment of error is devoid of
merit.

Turning to appellant’s seventh assignment of error, appellant
attempts to argue that the consent phase of the adoption process,
conducted pursuant to R.C. 3107.07(A), is unconstitutional.
Specifically, appellant argues that R.C. 3107.07(A) fails to set
forth a statewide minimum that a natural parent must pay toward
their child support obligation in order to preserve their parental

rights.

As discussed in appellant’s fifth assignment of error, the consent
phase of the adoption process in this matter has been concluded,
and appellant’s arguments as to the unfairness of the trial court’s
determination as to that issue has survived the appellate process.
We will not discuss those arguments again in the current appeal.
Pursuant to the doctrines of res judicata and/or the “law of the
case,” appellant is prohibited from raising errors in a subsequent
action that should have been raised or were already decided in the

32

prior action. See, e.g., National Amusements, Inc. v. Springdale

(1990), 53 Ohio St.3d 60, 62, 558 N.E.2d 1178; Nolan v. Nolan

(1984), 11 Ohio St.3d 1, 3, 462 N.E.2d 410. Appellant’s seventh
assignment of error is without merit.

In the next set of arguments, appellant raises several assignments
of error with respect to the trial court’s reliance on evidence
presented by appellee in support of his petition for adoption. In the
second assignment of error, appellant asserts that the “theme” of
the trial court’s decision to grant the adoption petition centered
upon appellee’s participation in church related activities with the
children. Appellant argues that the court’s repeated reference to
these activities in its judgment entry amounts to a violation of his
First Amendment Rights and the separation between church and
state.

Appellant also alleges that the trial court’s “best interest” determi-
natiorris contrary to law because the decision relied on fraudulent
evidence attributed to Ms. Wagner as part of her continued attempt
to alienate the children from him. Specifically, appellant claims in
the sixth assignment of error that appellee has illegally used the
name “Wagner” as the children’s surname, and, in the eighth
assignment of error, argues that he established that Ms. Wagner
lied at the hearing regarding her repeated interference with his
visitation rights.

Adoption matters are decided on a case-by-case basis through the
exercise of the discretion granted a trial court to determine matters
such as the best interest of the child. In re Adoption of Charles B
(1990), 50 Ohio St.3d 88, 90, 552 N.E.2d 884. Moreover, it is
primarily the responsibility of the trial court to weigh the testi-
mony presented before it and determine the credibility of the
witnesses. See, e.g., Bechtol v. Bechtol (1990), 49 Ohio St.3d 21,
23, 550 N.E.2d 178.

In reviewing the trial court’s judgment entry, however, it is evident
that the only “theme” underlying the court’s decision is the uncon-
troverted fact that appellee has shouldered, for whatever reason,
the responsibility of caring for appellant’s children since 1991. As

33

;
:

5

the court noted in its entry, it is appellee that the children refer to
as their father, it is appellee that participated in their important
events, such as church and school related activities, and it is
appellee who has provided for the children’s financial and emo-
tional needs.

The fact that the trial court mentioned the word “church” in its
judgment entry to help describe some of the activities appellee
engaged in with the children does not amount to a violation of
appellant’s First Amendment Rights. The trial court’s reference to
church activities is not an endorsement of religious activity.
Rather, it is used as an example of a type of activity which appar-
ently is important to the children and the Wagners. The trial court
judgment did not rely, as argued by appellant, on any “illegal” or
“unconstitutional” basis. Moreover, this court refuses to interfere
with the lower court’s determinations regarding the credibility of
the witnesses and its resolutions of factual disputes as argued in
these assignments of error. Appellant’s second, sixth, and eighth
assignments of error are without merit.

We recognize that appellant is understandably upset at the fact
that appellee has become the children’s central father figure. We
further recognize the pain appellant must feel to hear the character-
ization that his children want nothing to do with him and fear
ridicule from their classmates when referred to as a “Juntunen”
and not a “Wagner.” However, appellee’s willingness to care for
appellant’s children, both financially and emotionally, as well as
the children’s acceptance of their stepfather are facts that appellant
did not dispute at trial. Based on the evidence submitted to the
court, at this point, a very strong case has been made for why the
best interest of the child would be served by the court’s granting of
appellee’s adoption petition.

Appellant did not attack appellee’s adoption petition by question-

ing appellee’s ability to care for his children. Instead, appellant

focused his arguments on why he has not played a part in his

children’s lives and the reasons for his children’s poor opinion of

him. Appellant alleged that he has always expressed a willingness

to play a role in the children’s development, but has been denied
34

that chance based on his former wife’s continued attempts to
alienate the children from him. While appellee no doubt disputes
appellant’s claimed willingness to be a consistent means of support
to the children, both financially and emotionally, we do share some
of appellant’s concerns, as expressed in his remaining assignments
of error, regarding his ability to have his arguments heard by the
trial court.

In the third and fourth assignments of error, appellant alleges error
with respect to assessments filed by Ms. Weimer to the trial court
concerning appellee’s petition for adoption. Appellant asserts that
he was never notified that the assessments of appellee and the
children were being performed and was never given an opportunity
to participate in the investigations. He further asserts that he was
never given a copy of the reports filed in the court and had no way
to question the information provided by Ms. Weimer.

R.C, 3107.031 states, in pertinent part that:

“An assessor shall conduct a home study for the purpose of
ascertaining whether a person seeking to adopt a minor is suitable
to adopt. A written report of the home study shall be filed with the
court at least ten days before the petition for adoption is heard.

“The report shall contain the opinion of the assessor as to whether
the person who is the subject of the report is suitable to adopt a
minor and other information and documents specified in rules
adopted by the department of human services * * *.

“On request, the assessor shall provide the person seeking to adopt
a copy of the report of the home’study. The assessor shall delete
from that copy any provisions concerning the opinion of other
persons, excluding the assessor, of the person’s suitability to adopt
a minor.”

In addition to the home study report, R.C. 3107.12 required that
an assessment also be made of the petitioner and the child. [FN1]
R.C, 3107.12 provided, in pertinent part, as follows:

35

FN1. Since the trial court’s hearing on the best interest of the child,
R.C. 3107.12 has been revised, effective August 5, 1998, no longer
requiring a prefinalization assessment to be conducted if the
petitioner is the child’s stepparent. Under the new statute, the trial
court may order that an assessor conduct a prefinalization assess-
ment if the report is deemed in the child’s best interests. See
revised R.C. 3107.12(B).

“An assessor shall conduct a prefinalization assessment of a minor
and petitioner before a court issues a final decree of adoption or
finalizes an interlocutory order of adoption for the minor. On
completion of the assessment, the assessor shall prepare a written
report of the assessment and provide a copy of the report to the
court before which the adoption petition is pending.

“The report of a prefinalization assessment shall include all of the
following:

“(A) The adjustment of the minor and the petitioner to the adoptive
placement;

“(B) The present and anticipated needs of the minor and the
petitioner, * * *;

“(C) The physical, mental, and developmental condition of the
minor;

“(D) If known, the minor’s biological family background, inciud-
ing identifying information about the biological or other legal
parents;

“(E) The reasons for the minor’s placement with the petitioner, the
petitioner’s attitude toward the proposed adoption, and the circum-
stances under which the minor was placed in the home of the
petitioner;

“(F) The attitude of the minor toward the proposed adoption, if the
minor’s age makes this feasible;

36

‘ok ke

While R.C. 3107.031 and former R.C. 3107.12 mandate that
assessments be made of the petitioner, the petitioner’s home, and
the child, there are no requirements as to how these investigations
should be conducted. As the Fourth District Court of Appeals
stated in In re Adoption of Howell (1991), 77 Ohio App.3d 80, 93,
601 N.E.2d 92:

“The statute does not differentiate the type of investigation that
should be conducted for different types of adoptions. Logically, if
parents have surrendered a child for adoption and both parents
have sought to have their child adopted, there may not be a need to
contact the natural parents of the child. However, in a contested
adoption proceeding, it is difficult to see how the child’s best
interest may properly be determined if the investigator has only
inquired as to the condition of the petitioners and the child.”

In the case sub judice, we agree with appellant’s assertion that he
was not permitted to participate in the creation of Ms. Weimer’s
reports to the trial court. R.C. 3107.12(B) provided that the asses-
sor shall, if known, include information in the assessment regard-
ing the child’s biological family background. Despite appellant’s
availability to participate inthe assessment, Ms. Weimer wrote “N/
A” when she came to this section of her report regarding the
biological family.

We-are deeply concerned at the way the prefinalization report was
prepared in this matter. Aside from the mandatory language
utilized by the legislature, the information provided under former
R.C. 3107.12(D) can be vital, particularly in a circumstance where
an adoptive child may begin experiencing unexplained physiologi-
cal or psychological problems. See factual situation in Burr v.
Stark Cty. Bd. of Commrs. (1986), 23 Ohio St.3d 69, 491 N.E.2d
1101. Relevant to this matter, Ms. Weimer’s failure to contact
appellant also gives the impression that his thoughts as to the
adoption do not matter and ends up providing the court with a
rather one-sided account as to why appellee’s petition for adoption

should be granted.
37

As to appellant’s ability to receive a copy of Ms. Weimer’s
reports, we would note that he failed to afford himself of the
protections provided in R.C. 3107.17(B) that permit the disclosure
of the information he seeks upon the consent of the court. See In re
Adoption of Dervenis (Dec. 28, 1995), Franklin App. No.

95 APF07-869, unreported. We further note that Ms. Weimer was
called to testify at the best interest hearing where she conveyed the
results of her assessments and faced cross-examination from
appellant regarding any shortcomings in the process she utilized in
compiling her assessments for the court. As indicated by appellant,
this cross-examination revealed that Ms. Weimer never contacted
appellant as she was compiling her evaluations, and, thus, her
recommendations concerning the best interest of the children did
not consider appellant’s views on the adoption.

Despite the shortcomings in Ms. Weimer’s report, we cannot agree
with appellant’s assertion that he was prejudiced by the report,
particularly in a circumstance, such as this one, where the assessor
was subject to cross-examination, and, as will be discussed in the
next assignment of error, appellant has or will be given an opportu-
nity to present evidence to counter the findings submitted in the
assessor’s report. See Howell, 77 Ohio App.3d at 91, 601 N.E.2d
92; In re Adoption of Aiken (Mar. 30, 1992), Montgomery App.
No. 12522, unreported. Appellant’s third and fourth assignments of
error are without merit.

This leads us to appellant’s first assignment of error, and the
allegations that the trial court improperly limited the evidence he
wished to present in opposition to appellee’s petition for adoption.
Specifically, appellant cites to a number of instances in the record
where the trial court limited his presentation of evidence to the
one-year period immediately preceding the filing of appellee’s
adoption petition.

In dealing with a pro se litigant, it is evident that the trial court
attempted to grant appellant as much latitude as possible in his
presentation of his case. However, a review of the record confirms
appellant’s claims that the trial court limited his presentation to

38

those facts that occurred within the one-year-time period immedi-
ately preceding the filing of appellee’s petition. The restrictions to
appellant’s presentation typically occurred when appellant sought
to question Ms. Wagner regarding her willingness to grant him
visitation rights as well as evidence concerning the suitability of
his home when the children are permitted to come and visit with
him. Specifically, the trial court’s comments included the follow-

ing:

“Q: (By Mr. Juntunen to Ms. Wagner) In 1995, for instance on
September 29th, 1995, did you allow me my lawful visitation with
Benjamin and Emily?

“(By appellee’s counsel): I’m going to note a continuing objection
as to the relevancy.

“BY THE COURT: I’m going to sustain the objection. The issue
here, as I’ve indicated, is the best interest of the children. The time
frame that we’re concerned about is the year immediately preced-
ing the filing of the petition for—or in close proximity to that time
frame. The petition, as I have indicated, was filed on June 23,
1994. So, we’re concerned with the period of time from June of

’93 to June of ’94. If there are any relevant factors around that time —

period, the Court may consider that as well.”

While R.C. 3107.07(A) limited the “consent” phase of this
adoption proceeding to the time period consisting of the year
immediately preceding the filing of appellee’s adoption petition,
there is no such restriction in the determination of the best interest
of the child. The very fact that the trial court had to consider a
prefinalization report prior to issuing a final decree of adoption
establishes that the court must consider evidence outside of the
one-year time period referenced in R.C. 3107.07(A). In determin-
ing the best interest of the child, R.C. 3107.161 provides:

“(A) As used in this section, ‘the least detrimental available
alternative’ means the alternative that would have the least long-
term negative impact on the child.

39

neem:

“(B) When a court makes a determination in a contested adoption
concerning the best interest of a child, the court shall consider all
relevant factors including, but not limited to, all of the following:

“(1) The least detrimental available alternative for safeguarding
the child’s growth and development;

“(2) The age and health of the child at the time the best interest
determination is made and, if applicable, at the time the child was
removed from the home;

“(3) The wishes of the child in any case in which the child’s age
and maturity makes this feasible;

“(4) The duration of the separation of the child from a parent;

“(5) Whether the child will be able to enter into - more stable and
permanent family relationship, taking into account the conditions
of the child’s cutrent placement, the likelihood of future place-
ments, and the results of prior placements;

“(6) The likelihood of safe reunification with a parent within a
reasonable period of time;

“(7) The importance of providing permanency, stability, and
continuity of relationships for the child;

“(8) The child’s interaction and interrelationship with the child’s
parents, siblings, and any other person who may significantly
affect the child’s best interest;

“(9) The child’s adjustment to the child’s current home, school,
and community;

“(10) The mental and physical health of all persons involved in the
situation;

“(11) Whether any person involved in the situation has been
convicted of, pleaded guilty to, or accused of any [relevant]
40

nadia. | wee SM ibis he a a I A a A aa At aR kt Sa RE ae

criminal offense * * *.

“(C) A person who contests an adoption has the burden of provid-
ing the court material evidence needed to determine what is in the
best interest of the child and must establish that the child’s current
placement is not the least detrimental available alternative.”
(Emphasis added.)

Unlike R.C. 3107.07(A), R.C. 3107.161 does not contain a one-
year restriction from which to consider evidence. Thus, it was
improper for the trial court to restrict appellant’s evidence at the
“best interest” phase to this time period. Appellant’s first assign-
ment of error has merit.

Throughout these proceedings, appellant has expressed his desire
to do everything in his power to prevent the permanent termination
of his parental rights. He has done this for the stated purpose of
letting his children know that he did not permit the adoptions to
occur without a fight. While appellant’s statements are admirable,
they are clearly in conflict with his continued practice of failing to
provide financial and emotional support for his children. However,
appellant submits that he can prove that any shortcomings he has
had as a father are not his fault and that the children’s best interest _
would be served by the court fostering a relationship between the _
children and both sets of families. The law requires the court to
come up with the “least detrimental alternative.”

Based on the restrictions that were placed on appellant’s presenta- _
tion of his case, on remand appellant shall have an opportunity to —
present to the trial court any additional evidence relevant to the
best interest determination. This determination may include
appellant’s development of his theory that the children suffer from _
“Parental Alienation Syndrome” as a result of Ms. Wagner’s past __
actions. We will warn appellant, however, that he istreadingon
very thin ice and we strongly recommend that he retain counsel. If —
he has actual evidence that the children suffer from “Parental
Alienation Syndrome” and could develop a meaningful relation-
ship with the Juntunen family, appellant needs to now present that _
evidence to the trial court in a way that conforms to the Ohio Rules —

41

of Evidence and Procedure. On remand, appellee should also be
given an opportunity to respond to any evidence submitted by
appellant if he so desires.

We remind appellant that the trial court’s determination will be
made on the evidence that was admitted at the prior hearing and
the relevant evidence that will properly be admitted as a result of
our remand. The subjective desires of appellant will not suffice to
meet his burden to present evidence that the adoption of the
children by their stepfather is not the least detrimental alternative
available.

As a result of our determination regarding appellant’s first assign-
ment of error, appellant’s arguments concerning the trial court’s
consideration of all relevant factors in its judgment entry are moot.
Based on the foregoing, the judgment of the trial court is reversed
and this matter is remanded for further proceedings consistent with
this opinion. All pending motions currently before this court are
hereby overruled as moot. It is the further order of this court that
the parties equally share the costs of this proceeding.

/s/ JUDGE WILLIAM M. O’NEILL

FORD, P.J., concurs with the first, second, fifth, sixth, eighth, and
ninth assignments of error; concurs in judgment only as to the
seventh assignment of error; dissents on the third and fourth
assignments of error with Concurring/Dissenting Opinion,

CHRISTLEY, J., concurs with the second, fourth, fifth, sixth,
seventh, eighth, and ninth assignments of error; concurs in judg-
ment only as to the first and third assignments of error with
Concurring Opinion.

COURT OF APPEALS, ELEVENTH DISTRICT, LAKE
COUNTY, OHIO IN RE: THE ADOPTION OF BENJAMIN
MATTHEW WAGNER CASE NO. 97-T-0224 Filed July 1, 1999
CONCURRING/DISSENTING OPINION

42

FILED COURT OF APPEALS JUL 01 1999 TRUMBULL
COUNTY, OHIO MARGARET R. O’BRIEN, Clerk

FORD, PJ.

I respectfully concur with most of the majority’s treatment of this
matter.

This writer concurs in judgment only with the majority on the
seventh assignment of error. The majority discusses the constitu-
tionality of applying R.C. 3107.07(A) to the consent phase of the
adoption. R.C. 3107.07(A) states that consent to an adoption is not
required of a natural parent when it is alleged that the parent has
failed without justifiable cause to communicate with or provide
maintenance and support for the minor for a period of at least one
year immediately preceding the filing of the adoption petition. This
writer notes that the requirements of the statute concerning the
issue of the amount of support needed from a parent’s total obliga-
tion to determine whether his or her consent is required to allow an
adoption matter to proceed is case specific and is a legislative
problem that the Supreme Court of Ohio has not yet solved.

However, a potential adoptive parent has the burden of proving,
by clear and convincing evidence that the natural parent failed to
support his or her child during the one-year period preceding the
adoption petition, and that there was no justifiable cause for failing
to provide for the support of the child. In re Adoption of Hale (July
22, 1988), Lake App. No. 12-238, unreported, at 6. See, also, In re
Adoption of Cline (1993), 89 Ohio App.3d 450, 456; Quinn v.
Helman (Sept. 13, 1985), Trumbull App. No. 3509, unreported, at
3. It is evident from this district’s cases on this subject that an
insubstantial amount of support alone will not necessarily provide
a trial court with the basis to negate consent by a natural parent
when the plaintiff has failed to meet the burden of establishing the
negative concept of no justifiable cause by clear and convincing
evidence. Members of this court still hold to that rule in these
proceedings. It is this writer’s position that the statute must be
strictly construed to protect the rights of the natural parents, and,
therefore, trial courts in our district should be alert to this common

43

thread in our opinion on this issue.

While not expressly addressing the arguments by the parties in the
seventh assignment of error again, it is this writer’s position that
the majority erred in concluding that the doctrine of res judicata
applies. I am of the opinion that the majority has misstated the
doctrine of the “law of the case,” as stated in Nolan v.Nolan
(1984), 11 Ohio St.3d 1. According to Nolan, the doctrine of the
“law of the case” provides that a reviewing court’s decision “in a
case remains that law of the case on the legal questions involved
for all subsequent proceedings in the case at both the trial and
reviewing levels.” Id. at 3. Thus, this rule ensures the consistency
of results in a case. Accordingly, pursuant to Nolan, I conclude that
in disposing of this issue, we are solely bound by the doctrine of
the law of the case, and not res judicata.

However, i dissent from the majority for its failure to discuss
issues presented in the third and fourth assignments of error. In the
third assignment of error, appellant raised the issue of the constitu-
tionality of the granting of the adoption without notice of a filing,
and without admitting reports into evidence at the “best interest”
hearing. In his fourth assignment of error, appellant mentioned the
constitutionality of his exclusion from the state- initiated investiga-
tion. These issues were presented to us, but were not addressed in
the majority opinion. I, therefore, again dissent from the majority
because of its failure to address these issues.

Hence, I concur with the majority regarding its analysis and
conclusions as to the first, second, fifth, sixth, eighth and ninth
assignments of error; | concur in judgment only as to the seventh
assignment of error; and I dissent with respect to the third and
fourth assignments of error.

/s/ PRESIDING JUDGE DONALD R. FORD

COURT OF APPEALS, ELEVENTH DISTRICT, LAKE
COUNTY, OHIO IN RE: THE ADOPTION OF BENJAMIN
MATTHEW WAGNER CASE NO. 97-T-0224 Filed July 1, 1999

44

CONCURRING OPINION

FILED COURT OF APPEALS JUL 01 1999 TRUMBULL
COUNTY, OHIO MARGARET R. O’BRIEN, Clerk

CHRISTLEY, J.

I respectfully concur in judgment only as to the first and third
assignments of error. | agree with the conclusion of the majority
regarding the first assignment of error as it relates to the time
frame of admissible relevant evidence with respect to the “best
interest” element.

My concern is that the legislative intent of this bifurcated process
of consent and best interest appears to be contradictory. Specifi-
cally, I have difficulty with the concept that, under the statute as
written, a biological parent whose consent has been determined to
be unnecessary can, nevertheless, challenge the adoption proceed-
ing in the best interest phase. Not only is it apparent that the
disenfranchised parent can challenge the suitability of the pro-
posed adoptive parent, but the parent can again litigate his or her
own role in the child’s life by challenging the ability of the child tc
be adopted by anyone.

I find this to be both confusing and contradictory. Nevertheless,
under R.C. 3107.161 and its companion statutes, it appears the
nonconsenting parent can, again, in the best interest phase, litigate
his or her own right to continue as a parent to the child.

If the legislature truly intended that the consent of a parent was
not necessary, it would make more sense if the evidence in the
“best interest” hearing did not address whether the nonconsenting
parent was improperly denied either his or her right to consent or
his or her right to continue as a parent. Certainly appellant should
be entitled to a voice regarding “best interest,” but that voice
should only be able to challenge the suitability of the petitioner as
the proposed adoptive parent, not the issue of adoption per se.

If that had been the law, then appellant’s attempts to submit
45

evidence would have been rebuffed as being irrelevant on that
basis. Specifically, the issues regarding Ms. Wagner’s alleged
denial of visitation rights to him; the suitability of appellant’s own
home when the children were permitted to come and visit with
him; and, the parental alienation syndrome would no longer be
issues available to be litigated. [FN1]

FN 1. I, nevertheless, believe that the “denial of visitation” and
“alienation syndrome” are irrelevant to any adoption issue, even
under the current statute.

Unfortunately the law as now written seems to permit a second
opportunity to litigate the rights of a non-consenting parent and to
provide a forum for that parent to demonstrate that his shortcom-
ings as a parent were not his fault.

In conclusion, I agree with the majority that the one year restric-
tion on the evidence related to the best interest hearing was too
limiting, and I reluctantly agree that evidence as to appellant’s
right to block any adoption process is admissible.

As to the third assignment regarding the need for inclusion of the
appellant in the psychological evaluations, I agree that such
evaluations were mandatory under the applicable former statute.
However, that issue is waived as the appellant did not object at the
trial court level. He did cross-examine the social worker vigor-
ously as to his exclusion from the report, but he never objected to
its admission on that basis. Neither did he request a continuance so
that he could be included in such a report. Instead, he raises this
issue for the first time on appeal. Further, I find it significant that
the mandatory nature of this part of the statute has since been
eliminated by the legislature.

[, therefore, would find no error on the part of the trial court in
this regard.

Thus, I concur in judgment only as to the first and third assign-
ments of error. In all other respects, | concur in the judgment and

46

analysis of the majority.
/s/ JUDGE JUDITH A. CHRISTLEY

STATE OF OHIO }
1 SS.
COUNTY OF TRUMBULL }

IN THE COURT OF APPEALS, ELEVENTH DISTRICT IN RE:
THE ADOPTION OF BENJAMIN MATTHEW WAGNER

FILED COURT OF APPEALS JUL 01 1999 TRUMBULL
COUNTY, OHIO MARGARET R. O’BRIEN, Clerk

JUDGMENT ENTRY
CASE NO. 97-T-0224

For the reasons states in the Opinion of this court,it is judgment
and order of this court that the judgment of the trial court is
reversed and this matter is remanded for further proceedings
consistent with this Opinion. All pending motions currently before
this court are hereby overruled as moot. It is the further orderof
this court that the parties equally share the costs of this proceeding.

/s/ JUDGE WILLIAM M. O’ NEILL, FOR THE COURT

FORD, P.J., concurs with the first, second, fifth, sixth, eighth, and
ninth assignments of error; concurs in judgment only as to the
seventh assignment of error; dissents on the third and fourth
assignments of error with Concurring/Dissenting Opinion,

CHRISTLEY, J., concurs with the second, fourth, fifth, sixth,

seventh, eighth, and ninth assignments of error, concurs in judg-
ment only as to the first and third assignments of error with
Concurring Opinion.

_

47

THE SUPREME COURT OF OHIO

FILED DEC 22 1999 MARCIA J. MENGEL, CLERK SUPREME
COURT OF OHIO

1999 TERM
In re: The Adoption of Emily Anna Wagner. Case No. 99-1427
_ENTRY

Upon consideration of the jurisdictional memoranda filed in this
case, the Court declines jurisdiction to hear the case and dismisses
the appeal as not involving any substantial constitutional question.

COSTS: Docket Fee, $40.00, paid by Roger Juntunen. (Trumbull
County Court of Appeals; No. 97T0223)

/s/ THOMAS J. MOYER Chief Justice 00271122299

(Cite as: 87 Ohio St.3d 1474, 721 N.E.2d 120) In re Adoption of
Wagner NO. 99-1427

-

Supreme Court of Ohio

December 22, 1999

DISMISSALS, SUA SPONTE, NO SUBSTANTIAL CONSTITU-
TIONAL QUESTION AND DISCRETIONARY APPEALS, IF
APPLICABLE, NOT ALLOWED

(The decision of the Court is referenced in the North Eastern
Reporter in a table captioned ‘Supreme Court of Ohio Motion
Tables’.)

Trumbull App. No. 97-T-0223. Ohio 1999.

THE SUPREME COURT OF OHIO

48

FILED OCT 27 1999 MARCIA J. MENGEL, CLERK SUPREME
COURT OF OHIO

1999 TERM

In re: The Adoption of Benjamin Matthew Wagner. Case No. 99-
1425

ENTRY
Upon consideration of the jurisdictional memoranda filed in this
case, the Court declines jurisdiction to hear the case and dismisses

_ the appeal as not involving any substantial constitutional question.

COSTS: Docket Fee, $40.00, paid by Roger Juntunen. (Trumbuil
County Court of Appeals; No. 97T0224)

/s/ THOMAS J. MOYER Chief Justice 0002r102799

(Cite as: 87 Ohio St.3d 1429, 718 N.E.2d 446) In re Adoption of
Wagner NO. 99-1425

Supreme Court of Ohio

October 27, 1999

DISMISSALS, SUA SPONTE, NO SUBSTANTIAL CONSTITU- |
TIONAL QUESTION AND DISCRETIONARY APPEALS, IF
APPLICABLE, NOT ALLOWED

(The decision of the Court is referenced in the North Eastern
Reporter in a table captioned ‘Supreme Court of Ohio Motion
Tables’.)

Trumbull App. No. 97-T-0224. Ohio 1999. In re Adoption of
Wagner

STATE OF OHIO }
1 SS.

COUNTY OF TRUMBULL }

IN THE COURT OF APPEALS, ELEVENTH DISTRICT IN RE:
THE ADOPTION OF EMILY ANNA WAGNER

JUDGMENT ENTRY ‘
CASE NO. 97-T-0223

FILED COURT OF APPEALS MAR 12 1998 TRUMBULL
COUNTY, OHIO MARGARET R. O’BRIEN, Clerk

Appellant, Roger Dale Juntunen, has moved this Court for various
types of relief during the pendency of the instant appeal. First, he
requests that the appealed judgment be stayed under App.R.7(A).
Second, he requests that Appellee, Mark V. Wagner, be enjoined
from taking any action which will stop appellant from exercising
his visitation rights with the child, Emily Anna Wagner. Third, he
requests that Appellee be enjoined from allowing the child from
using the last name of “Wagner” at school.

A review of the appealed judgment indicates that Appellant is the
natural father of the child. As part of the judgment, the trial court
granted Appellee’s petition to adopt the child. In support of this
holding, the trial court expressly found that Appellant had failed to
present any evidence indicating that the adoption would not be in
the best interest of the child. The court also granted Appellee’s
request that the child’s last name be changed from “Juntunen” to
“Wagner”.

In relation to the stay request, this Court would note that Appel-
lant has stated that, prior to making the instant request, his stay
motion before the trial court was denied; as a result, Appellant has
complied with the procedural requirement for a stay under App.R.
7(A). Moreover, our review of the allegations in the motion and
Appellee’s response indicates that Appellant has made a prima
facie showing that his substantive rights would be irreparably
harmed if the stay was not granted; i.e., Appellant’s parental rights
would be damaged if he could not exercise them during the

50

pendency of this appeal. Thus, his request for a stay is granted.

As to Appellant’s visitation request, this Court would indicate that
our granting of the stay merely means that Appellant will merely
be able to exercise any visitation rights which he was exercising
pursuant to a valid court order prior to the issuance of the appealed
judgment. This Court will not grant any additional visitation
because the authority to grant such rights lies within the jurisdic-
tion of a domestic relations court. Stated differently, the issuance
of the stay will only allow Appellant to exercise those rights which
he already has.

In relation to the “name change” request, we would note that the
issuance of an injunction under App.R. 7(A) is not necessary :
because, as a result of the issuance of the stay, Appellee will not be —
allowed to take the legal steps necessary to change the child’s last @
name. Accordingly, the child must continue to use the last name of
“Juntunen” for all legal purposes during the pendency of this

appeal.

Pursuant to the foregoing analysis, Appellant’s motion to stay the @
appealed judgment is granted. Under this stay, Appellant shall have
the right to visit the child in accordance with any valid visitation
order which is presently pending. Furthermore, the child’s legal
name shall continue to be “Emily Anna Juntunen” during the
pendency of this appeal.

Appellant’s request for injunctive relief is denied.
/s/ PRESIDING JUDGE DONALD R. FORD, FOR THE COURT
CHRISTLEY, J., concurs.

STATE OF OHIO }
\ SS.
COUNTY OF TRUMBULL }

IN THE COURT OF APPEALS, ELEVENTH DISTRICT IN RE: 4
THE ADOPTION OF BENJAMIN MATTHEW WAGNER
51

.
a
=
ba
a
*
==
4
3
®
or
=
|
'S
a
ei

JUDGMENT ENTRY
CASE NO. 97-T-0224

FILED COURT OF APPEALS MAR 12 1998 TRUMBULL
COUNTY, OHIO MARGARET R. O’BRIEN, Clerk

Appellant, Roger Dale Juntunen, has moved this Court for various
types of relief during the pendency of the instant appeal. First, he
requests that the appealed judgment be stayed under App.R.7(A).
Second, he requests that Appellee, Mark V. Wagner, be enjoined
from taking any action which will stop appellant from exercising
his visitation rights with the child, Benjamin Matthew Wagner.
Third, he requests that Appellee be enjoined from allowing the
child from using the last name of “Wagner” at school.

A review of the appealed judgment indicates that Appellant is the
natural father of the child. As part of the judgment, the trial court
granted Appellee’s petition to adopt the child. In support of this
holding, the trial court expressly found that Appellant had failed to
present any evidence indicating that the adoption would not be in
the best interest of the child. The court also granted Appellee’s
request that the child’s last name be changed from “Juntunen” to
“Wagner”.

In relation to the stay request, this Court would note that Appel-
lant has stated that, prior to making the instant request, his stay
motion before the trial court was denied; as a result, Appellant has
complied with the procedural requirement for a stay under App.R.
7(A). Moreover, our review of the allegations in the motion and
Appellee’s response indicates that Appellant has made a prima
facie showing that his substantive rights would be irreparably
harmed if the stay was not granted; i.e., Appellant’s parental rights
would be damaged if he could not exercise them during the
pendency of this appeal. Thus, his request for a stay is granted.

As to Appellant’s visitation request, this Court would indicate that
our granting of the stay merely means that Appellant will merely
52

be able to exercise any visitation rights which he was exercising
pursuant to a valid court order prior to the issuance of the appealed
judgment. This Court will not grant any additional visitation

because the authority to grant such rights lies within the jurisdic-
tion of a domestic relations court. Stated differentiy, the issuance
of the stay will only allow Appellant to exercise those rights which
he already has.

In relation to the “name change” request, we would note that the
issuance of an injunction under App.R. 7(A) is not mecessary
because, as a result of the issuance of the stay, Appellee will not be
allowed to take the legal steps necessary to change the child’s last
name. Accordingly, the child must continue to use the last name of
“Juntunen” for all legal purposes during the pendency of this
appeal.

Pursuant to the foregoing analysis, Appellant’s motion to stay the @
appealed judgment is granted. Under this stay, Appellant shall have 5
the right to visit the child in accordance with any valid visitation E
order which is presently pending. Furthermore, the child’s legal
name shall continue to be “Benjamin Matthew Juntunen” during
the pendency of this appeal.

Appellant’s request for injunctive relief is denied.

/s/ PRESIDING JUDGE DONALD R. FORD, FOR THE COURT
CHRISTLEY, J., concurs.
THE SUPREME COURT OF OHIO

FILED MAY 28 1997 MARCIA J. MENGEL, CLERK SUPREME ;
COURT OF OHIO 3

In Re: Adoption of Emily Anna Wagner (Roger Juntunen, Appel-
lant.)

1997 TERM

53

ay
2
A
;
$
¢
‘1

Ppa aah Seated cas, irene Ne AT NAAN Rin ale SACRA ES leaks

Biya acs,

Case No. 97-502

ENTRY

Upon consideration of the jurisdictional memoranda filed in this
case, the Court declines to hear the case.

COSTS: Docket Fee, $40.00, paid by Michael A. Scala, Esq.
(Trumbull County Court of Appeals; No. 95T5228)

/s/ THOMAS J. MOYER, Chief Justice 0070r052897

(Cite as: 78 Ohio St.3d 1516, 679 N.E.2d 311) In re Adoption of
Wagner

NO. 97-502

Supreme Court of Ohio

May 28, 1997

DISCRETIONARY APPEALS NOT ALLOWED

(The decision of the Court is referenced in the North Eastern
Reporter in a table captioned ‘Supreme Court of Ohio Motion
Tables’.)

MOYER, C.J., PFEIFER and LUNDBERG STRATTON, JJ.,
dissent.

Ohio 1997. In re Adoption of Wagner
THE SUPREME COURT OF OHIO

FILED MAY 28 1997 MARCIA J. MENGEL, Clerk SUPREME
COURT OF OHIO

In Re: Adoption of Emily Anna Wagner (Roger Juntunen, Appel-
lant.)
54

1997 TERM
Case No. 97-504
ENTRY

Upon consideration of the jurisdictional memoranda filed in this
case, the Court declines to hear the case.

COSTS: Docket Fee, $40.00, paid by Michael A. Scala, Esq.
(Trumbull County Court of Appeals; No. 95T5229)

/s) THOMAS J. MOYER, Chief Justice 00701052897

(Cite as: 78 Ohio St.3d 1516, 679 N.E.2d 311) In re Adoption of
Wagner

NO. 97-504

Supreme Court of Ohio

May 28, 1997

DISCRETIONARY APPEALS NOT ALLOWED

(The decision of the Court is referenced in the North Eastern
Reporter in a table captioned ‘Supreme Court of Ohio Motion

Tables’.)

MOYER, C.J., PFEIFER and LUNDBERG STRATTON, JJ.,
dissent.

Ohio 1997. In re Adoption of Wagner

(Cite as: 117 Ohio App.3d 448, 690 N.E.2d 959) In re ADOPTION
OF WAGNER. [FN*]

FN* Reporter’s Note: A discretionary appeal to the Supreme Court
of Ohio was not allowed in (1997), 78 Ohio St.3d 1516, 679
N.E.2d 311.

Civil Appeal from Common Pleas Court Probate Division Case
No. 94 ADP 057

JUDGMENT: Affirmed.

William R. Biviano, Warren, for appellant, Roger D. Juntunen.
Elise M. Burkey, Warren, for appellee, Mark Wagner.

COURT OF APPEALS, ELEVENTH DISTRICT, TRUMBULL
COUNTY, OHIO IN RE: ADOPTION OF EMILY ANNA
WAGNER CASE NO. 95-T-5228

FILED JAN 22 1997 TRUMBULL COUNTY PROBATE COURT
WARREN, OHIO

OPINION JAN 17 1997

FILED COURT OF APPEALS JAN 21 1997 TRUMBULL
COUNTY, OHIO MARGARET R. O’BRIEN, Clerk

MAHONEY, J.

Respondent-appellant, Roger D. Juntunen (“appellant”), appeals
from a judgment entry of the Probate Division of the Court of
Common Pleas of Trumbull County, which held that his consent
was not necessary for the adoption of his minor child, Emily
(d.o.b. September 8, 1989), by her stepfather. Emily’s mother,
Deborah Wagner (f.k.a. Juntunen) appellant’s former wife and now
the wife of petitioner-appellee, Mark Wagner (“appellee”), had
consented to the adoption.

On June 23, 1994, appellee filed a petition seeking to adopt Emily.
56

Appellee alleged that appellant’s consent was not necessary, 4
pursuant to R.C. 3107.07(A), because appellant had failed, without ~
justifiable cause, to communicate with his daughter or to provide q
for her support for a period of at least one year immediately
preceding the filing of the adoption petition. Because appellant
contested the adoption, a hearing was conducted on December 15,
1994 to determine whether appellant’s consent was required.

The testimony at that hearing established the following facts.
Appellant and Deborah Wagner were married on June 21, 1986.
Two children were born of that marriage, Benjamin (d.o.b. March
21, 1987) [FN1] and Emily.

FN1. The appeal of the matter of Benjamin’s adoption is addressed —
in case No. 95-T-5229.

On July 15, 1991, the children’s natural parents were granted a
decree of dissolution in Howard County, Indiana. The dissolution
decree provided for joint custody, designated Ms. Wagner as the
residential parent, and ordered appellant to pay child support and
to obtain health insurance coverage for his children. The Howard
County court made its child-support award with the knowledge
that appellant had recently become unemployed, having voluntarily =
resigned his commission as a captain with the United States Air @
Force in June 1991. He had been earning approximately $35,000 a ¥
year excluding his housing allowance. Finding that appellant, who
holds a B.S. degree in mathematics and a master’s degree in
business administration, made insufficient plans to support his
children when he quit his job with the Air Force, the decree
ordered appellant to pay $150 per week in child support until
further court order.

Subsequent to the divorce decree, Ms. Wagner moved to Ohio |
with the children and began to attend classes at Youngstown State —
University. On December 31, 1991, Ms. Wagner married appellee. P
Appellant remained unemployed until October 1991, when he q
began working for Electrolux as an independent contractor selling q
vacuum cleaners. 3

57

On October 28, 1991, appellant submitted a worksheet to the
Indiana court seeking to reduce his child support payments to $84
per week. Ms. Wagner testified that appellant falsified that
worksheet by asserting that she was working full-time and had
income, when he knew that she was a full-time student with no
income. Notwithstanding appellant’s attempt to reduce his child-
support obligation, the worksheet was never reduced to a court
order lowering appellant’s support obligation.

The evidence at the adoption trial revealed that, for the year prior
to the filing of appellee’s adoption petition, appellant’s visitation
and support of his children were sporadic. From June 23, 1993 to
June 23, 1994, appellant saw his children a total of four times.
Appellee and Ms. Wagner testified that the total time appellant
spent with the children for that period was approximately three
hours. During the same time period appellant paid $329.40 of the
$7,800 that was due in child support. Appellant’s total income for
1993, as reported in the most recent tax return available to the trial
court, equaled $13,443.81.

Appellant testified that in addition to the support payments he did
make, he also paid $53 per week for the children’s health insurance
coverage. However, Ms. Wagner testified that she was never
notified about this coverage and that an earlier health insurance
card she did receive from appellant was rejected when she at-
tempted to use it.

On March 22, 1995, the trial court filed its judgment entry. The
court found that “the mere payment of $329.49 in child support in
the year immediately preceding the filing of the adoption proceed-
ing does not constitute support where the natural father has been
ordered to pay $600.00 per month in support.” The trial court also
stated that appellant’s payments for health insurance did not
constitute support when Ms. Wagner was not made aware of, and
the children derived no benefit from, the coverage. The trial court
further found, by clear and convincing evidence, that appellant’s
failure to pay support was not justified because appellant did not
make an effort to find employment commensurate with his level of
education. The trial court’s judgment entry did not address

58

appellee’s contention that appellant failed to communicate with the
children. Based on its finding that appellant failed to support his
children, the trial court concluded that appellant’s consent was not
necessary for the adoption to proceed [FN2] and ordered that a
hearing as to the best interests of the children be scheduled.

FN2. A finding that a party’s consent to an adoption is not required

is a final appealable order. In re Adoption of Greer (1994), 70 Ohio —

St.3d 293, 638 N.E.2d 999, paragraph one of the syllabus.

Appellant filed a timely appeal and now asserts the following two
assignments of error:

“1. The trial court’s finding that appellant failed to provide for the
maintenance and support of his minor child for a period of one-
year preceding the filing of the adoption petition was against the
manifest weight of the evidence.

“9. The trial court’s finding that appellee proved by clear and
convincing evidence that appellant failed to support his child
without justifiable cause is against the manifest weight of the
evidence and contrary to law.”

Initially, we note that in determining whether a parent’s consent is
necessary for an adoption, R.C. 3107.07 provides:

“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 finds after proper service of notice and
hearing,that the parent has failed without justifiable cause to

communicate 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.”

Thus, appellant’s consent to the adoption would be required if he

provided maintenance and support for, and communicated with,
59

i

i

the child within one year prior to the filing of the adoption petition.
Failure to either support or communicate with the child would
abrogate the need for appellant’s consent if the trial court also
decides that such failure was without justifiable cause. See In re
Adoption of Bovett (1987), 33 Ohio St.3d 102, 105,515 N.E.2d
919, 923.

Because appellant faces the termination of his parental rights, the
burden of proof is on the petitioner to establish by clear and
convincing evidence that the natural parent failed to communicate
with or support, without justifiable cause, his minor child during
the one-year period prior to the adoption petition. In re Adoption
of Masa (1986), 23 Ohio St.3d 163, 23 OBR 330, 492 N.E.2d 140.
Once the petitioner has established a failure to either provide
support for, or communicate with, the child, the burden of going
forward with evidence shifts to the respondent to show some
facially justifiable cause for such failure. Bovett, supra, at para-
graph two of the syllabus.

As the trial court did not address appellant’s alleged failure to
communicate with the child, the only issue before this court is
whether the trial court erred in finding that appellant failed,
without justifiable cause, to provide maintenance and support for
his child. The trial court’s determination of this issue will not be
disturbed on appeal unless this determination is against the mani-
fest weight of the evidence. Id. at paragraph four of the syllabus.
Consequently, the trial court’s judgment will not be reversed if it is
supported by some competent and credible evidence. Frankenmuth
Mut. Ins. Co. v. Selz (1983), 6 Ohio St.3d 169, 6 OBR 227, 451
N.E.2d 1203.

In his first assignment of error, appellant argues that the trial
court’s determination that he failed to provide for the maintenance
and support of his child was against the manifest weight of the
evidence. Appellant asserts that the evidence showed that he made
$329.40 in support payments during the year preceding the adop-
tion petition in addition to $53 per week he paid to provide health
care coverage for his children.

60

This case presents us with an opportunity to once again reexamine
R.C. 3107.07(A). The recurring question that has continually
presented itself to the appellate courts is: What percentage of
support, from a parent’s total support obligation, will the judicial
system allow before a determination is made that a parent’s
consent is not necessary to allow an adoption to proceed. The lack
of guidance from the Supreme Court of Ohio on this issue is
glaring, as noted by Justice Douglas in his concurring opinion in
Bovett, supra:

“(This case presents us with an opportunity to decide what the
language of the statute means concerning support and/or communi- —
cation during the critical one-year period. I agree that this initial :
determination should be made by the probate judge and his or her
judgment should not be tampered with absent an abuse of discre-
tion. What specific guidance needs to be given, however, is

whether the making of one payment of support during the year or =~
the sending of a Christmas card is enough to frustrate the operation 4
of the statute. * * *

“ * * * Until this court meets and decides that issue, inconsistent |
judgments of trial courts and courts of appeals on the question will 7
continue to prevail.” Id. at 107. 4

Thus far, the Supreme Court of Ohio has not set forth, as to the
“maintenance and support” prong of R.C. 3107.07(A), any specific —
guidelines to resolve this issue. As a result of this lack of guidance, ~
the reported appellate decisions on this issue show a lack of q
consistency. See, e.g., Celestino v. Schneider (1992), 84 Ohio
App.3d 192, 616 N.E.2d 581 (holding that a single, partial pay-
ment of $36 within the one-year period prior to the filing of the
adoption petition qualified as support and maintenance, requiring
natural parent’s consent as prerequisite to adoption); In re Adop-
tion of Anthony (1982), 5 Ohio App.3d 60, 5 OBR 156, 449
N.E.2d 511 (holding that natural parent’s consent for an adoption —
is required so long as the parent complies with the duty to support —
for any period during the one-year preceding the filing of the
adoption petition); In re Adoption of Knight (1994), 97 Ohio :
App.3d 670, 647 N.E.2d 251 (holding that single, partial payment —
61

of $20 within the one-year period prior to the filing of the adoption
petition was de minimis and did not make natural parent’s consent
necessary for the adoption); In re Adoption of Carletti (1992), 78
Ohio App.3d 244, 604 N.E.2d 243 holding that single payment of
$15, upon learning of stepparent’s intention to adopt the child, did
not constitute maintenance and support). However, this court has
expressly held that the payment of “some” support is insufficient
to satisfy this requirement when the natural parent had discretion-
ary income which could have been used to pay additional support.
In re Adoption of Cline (1993), 89 Ohio App.3d 450, 624 N.E.2d
1083. See, also, In re Adoption of Freel (June 14, 1996), Trumbull
App. No. 95-T-5303, unreported, 1996 WL 648977.

In the case sub judice, appellant was obligated to pay $150 per
week, or $7,800 a year, in child support. Appellant’s total income
for 1993, as reported in his tax return, equaled $13,443.81. How-
ever, during the same time period, appellant paid a total of
$329.40, or less than three percent of his income, in support for his
two children. While appellant’s income may have not been enough
to permit him to make full support payments, appellant earned
enough money to make a greater contribution toward the support
of his children. Furthermore, evidence existed that appellant, who
has a B.S. degree in mathematics and a master’s degree in business
administration, failed to obtain employment commensurate with
his level of education, a point appellant acknowledged when he
admitted that selling vacuum cleaners, at approximately $13,000 a
year, was not the best he could do. A parent is “not justified in
electing a lifestyle that would assure his inability to pay support as
ordered.” In re Adoption of Deems (1993), 91 Ohio App.3d 552,
557, 632 N.E.2d 1347, 1350.

As to appellant’s claim that he provided health insurance coverage
for his child in addition to the $329.40 in “support” he paid,
evidence was presented that he failed to reveal to Ms. Wagner the
existence of such coverage. Additionally, an earlier health insur-
ance card Ms. Wagner did receive from appellant was rejected
when she attempted to use it. Because appellant’s children derived
no benefit as a result of appellant’s concealment, these payments
do not constitute maintenance and support. Knight, 97 Ohio

62

App.3d at 673, 647 N.E.2d at 253-254.

Based on the evidence presented before the trial court, sufficient
evidence exists to support the trial court’s decision that appellant
failed, without justifiable cause, to provide maintenance and
support for his child. Appellant’s first assignment of error is
without merit.

In the second assignment of error, appellant asserts that the trial
court’s judgment is contrary to the manifest weight of the evi-
dence, as appellee failed to establish, by clear and convincing
evidence, that he failed to support his child without justifiable
cause. As previously discussed in appellant’s first assignment of
error, a review of the evidence presented reveals that appellee |
submitted sufficient facts from which the trial court could properly —
conclude that there was no justifiable reason for appellant’s failure j
to provide support for his minor child. Accordingly, appellant's
second assignment of error is without merit.

Based on the foregoing, the judgment of the trial court is affirmed.
/s/ JUDGE JOSEPH E. MAHONEY
CHRISTLEY, P.J., dissents with Diss

[Text truncated at 120,000 characters. The full text is on the page linked above.]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386004_0952%3A2. Public record. Not legal advice.