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In re Adoption of S.N.C.11/19/2003
This cause was heard upon the record in the trial court. Each error assigned has been reviewed and the following disposition is made:
Appellant, Ty B. Granakis, has appealed from the judgment of the Medina County Court of Common Pleas, Probate Division, that dismissed his petition for adoption. This Court reverses and remands for further proceedings.
I.
Jonathan Conley, Appellee, and Kristin Granakis ("Mother") are the biological parents of S.N.C., born March 13, 1999. Appellee and Mother were not married to each other, but lived together with the child until July 2000. At that time, Mother left with the child. On July 6, 2001, she married Appellant, who now seeks to adopt the child.
On February 7, 2003, with Mother's consent, Appellant commenced proceedings to adopt the child. In his petition, Appellant alleged that the consent of Appellee was not required because he had failed without justifiable cause to communicate with the minor for a period of at least one year. R.C. 3107.07(A).
A hearing on the question of whether the consent of Appellee was required was conducted on May 21, 2003. Based on the evidence presented at the hearing, the trial judge found that Appellant failed to prove that Appellee's lack of communication for the one year period immediately preceding the filing of the adoption petition was without justifiable cause. Appellant has timely appealed, asserting three assignments of error for review. Because the first and third assignments of error are related, they will be considered together.
II.
Assignment of Error Number One
"THE TRIAL COURT'S DECISION IN DENYING APPELLANT'S STEP PARENT ADOPTION PROCEEDING WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND WAS NOT SUPPORTED BY RELIABLE, SUBSTANTIVE AND PROBATIVE EVIDENCE."
Assignment of Error Number Three
"THE TRIAL COURT ERRED WHEN IT FAILED TO FIND THAT THE APPELLEE'S FAILURE TO COMMUNICATE WITH HIS MINOR CHILD FOR THE REQUISITE ONE YEAR PERIOD, IMMEDIATELY PRECEDING THE FILING OF THE ADOPTION PETITION AS CONTINUED (sic) IN R.C. 3107.07 WAS WITHOUT JUSTIFIABLE CAUSE."
Appellant's first and third assignments of error challenge the finding of the trial court that Appellee's lack of communication for the year immediately preceding the filing of the adoption petition was without justifiable cause. Appellant has claimed that the finding is erroneous and against the weight of the evidence. We agree.
R.C. 3107.07(A) provides that consent to an adoption is not required by:
"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."
Therefore, as applicable to the instant case, R.C. 3107.07(A) provides that Appellee's consent to the adoption of his child is not required if the court finds that Appellee has failed without justifiable cause to communicate with the child between February 7, 2002 and February 7, 2003.
"The party petitioning for adoption has the burden of proving, by clear and convincing evidence, that the parent failed to communicate with the child during the requisite period and that there was no justifiable cause for the failure of communication." In re Adoption of Holcomb, (1985), 18 Ohio St.3d 361, paragraph four of the sylla
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