COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68882 : IN RE: ADOPTION OF : JUSTIN J. HEDRICK : : JOURNAL ENTRY : : and : : OPINION : DATE OF ANNOUNCEMENT APRIL 18, 1996 OF DECISION: CHARACTER OF PROCEEDING: Civil appeal from Probate Court Case No. 1065440 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Guardian-Appellant For Defendant-Appellee Merle M. Cutright, Jr.: Rickey Allen Hedrick: DENNIS B. POLLARD, ESQ. LEE R. KRAVITZ, ESQ. Legal Aid Society of Cleveland 2424 Broadview Road 5715 Woodland Avenue Cleveland, OH 44109 Cleveland, OH 44104-2795 DAVID B. DAWSON, ESQ. GUSTY A. RINI, ESQ. Legal Aid Society of Cleveland 1223 W. 6th Street Cleveland, OH 44113-1301 -3- PATRICIA ANN BLACKMON, J.: Appellant, Merle Melvin Cutright, Jr., appeals the judgment of the trial court granting the petition of appellee, Ricky Allen Hedrick, for the adoption of Justin James Hedrick and assigns the following error for our review: I. BY FINDING THAT APPELLEE TOOK NO "ACTIVE" STEPS TO PREVENT COMMUNICATION, THE TRIAL COURT ERRED BY APPLYING THE WRONG LEGAL STANDARD TO THE ISSUE OF JUSTIFIABLE CAUSE. II. THE TRIAL COURT ERRED BY SHIFTING THE BURDEN OF PROVING NO JUSTIFIABLE CAUSE FROM APPELLEE TO APPELLANT. III. APPELLEE FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT THERE WAS NO JUSTIFIABLE CAUSE FOR APPELLANT'S FAILURE TO COMMUNICATE WITH HIS SON. IV. THE TRIAL COURT ERRED BY RULING THAT APPELLANT'S ATTEMPT TO COMMUNICATE DID NOT CONSTITUTE A COMMUNICATION WHERE APPELLANT WAS INCARCERATED AND HAD NO OTHER WAY OF COMMUNICATING OTHER THAN THROUGH HIS MOTHER. V. THE TRIAL COURT ERRED BY REFUSING TO DISMISS THE ADOPTION PETITION FOR WANT OF A NECESSARY CONSENT. Having reviewed the record of the proceedings and the legal arguments presented by the parties, we affirm the decision of the trial court. The apposite facts follow. Denise Ann Hedrick, fka Denise Ann Drdek, gave birth to Justin James on November 15, 1989. His natural father is Merle Cutright. In June of 1990, Denise and Merle separated after living together for six months. The separation was because of Merle's bad behavior, which created a bad environment for their son. Denise and Justin moved in with her parents. Merle visited his son once -4- after the separation in February of 1990 and provided a total of $75.00 in support for his son during that year. Denise Hedrick has cared for her son since his birth. Merle Cutright was incarcerated on September 30, 1991. In April of 1991, Denise and Ricky Hedrick were engaged to be married, and Denise, Ricky and Justin began living together. Denise and Ricky Hedrick were married in May of 1992. After Denise moved she did not want Merle Cutright to know where she lived, but permitted his mother, Betty Cutright to visit her grandson, Justin. Ricky Hedrick filed his petition to adopt Justin on October 12, 1993. In May of 1994, Betty Cutright gave Denise Hedrick a letter from Merle to be given to his son. The date of the letter was June 2, 1993. Betty Cutright testified her son, Merle sent Justin two birthday cards while he was in prison and wrote letters to his son, which Merle mailed to her. Betty Cutright did not forward the letters to Denise Hedrick because she was afraid Denise would prohibit her from seeing her grandson. The only letter delivered was the one given to Denise in May of 1994. The trial court conducted a hearing to determine whether Merle Cutright's consent to the adoption was required. After the testimony of Ricky and Denise Hedrick, the trial court stated, "It is my belief that the communication leg of the statute 3107.07 has not been refuted by Mr. Rini. I believe that you have shown by clear and convincing evidence both of those, and the burden then switches to him that is, to him being Mr. Rini and the -5- natural father." At the conclusion of the hearing, the trial court found Merle Cutright, the natural father, did not communicate for one year prior to the filing of the adoption proceeding. Therefore, the trial court held Cutright's consent to the adoption was not required, and the petition for adoption was granted. This appeal followed. In his first and second assignments of error, Cutright argues the trial court erred by applying the wrong legal standards when it determined that his consent to the adoption of his son was not required under R.C. 3107.07(A). R.C. 3107.07(A) 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***." Cutright asserts the trial court applied the wrong legal standard to the issue of justifiable cause by failing to recognize Denise Hedrick engaged in what he called "inactive interference and discouragement." The standard of proof to establish justifiable cause for the non-custodial parent's failure to communicate with the child is "***significant interference by a custodial parent with communication between the non-custodial parent and the child, -6- or significant discouragement of such communication***." In re Adoption of Holcomb (1985), 18 Ohio St.3d 361 at 367-368. In this case, there is no indication in the record the trial court did not apply this standard to the facts of this case. Cutright also asserts the trial court erred in shifting the burden of proof to him as the non-custodial parent. 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 one-year period and that there was no justifiable cause for the failure of communication. Id. at 368. "No burden is placed upon the non-consenting parent to prove that his failure to communicate was justifiable." Id. There can be no dispute the trial judge in this case improperly stated, "***the burden switches to *** the natural father," after the petitioner proved by clear and convincing evidence a lack of communication without justifiable cause. However, the trial judge's comment was not prejudicial; Hedrick was afforded the opportunity to present evidence and argue the proper burden of proof at the close of all evidence. Because Cutright was provided a full and fair hearing, and the trial judge as trier of fact had sufficient evidence to satisfy Ricky Hedrick's burden of proof, the trial judge's comment was harmless error. In his third and fourth assignments of error, Cutright raises the two most critical issues in this case; whether Ricky Hedrick proved by clear and convincing evidence Merle Cutright did not communicate with his child for the requisite one year and whether -7- he lacked justifiable cause for not doing so. "***[I]ssues regarding failure of communication and lack of justifiable cause are questions of fact for the probate court." In re Adoption of Holcomb at 368. "Once the clear and convincing standard has been met to the satisfaction of the probate court, the reviewing court must examine the record and determine if the trier of fact had sufficient evidence before it to satisfy this burden of proof." Id. Clear and convincing evidence requires proof that would "***produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to be established." Id., quoting Cross v. Ledford (1954), 161 Ohio St. 469 at paragraph three of the syllabus. Thus, the probate court's determination should not be reversed unless it is not supported by clear and convincing evidence. Cutright asserts his attempts to communicate with his son by sending letters and birthday cards constituted communications. For purposes of R.C. 3107.07(A), the term communicate must be given its ordinary and accepted meaning. In re Adoption of Jordan (1991), 72 Ohio App.3d 638, 644 (held wave or smile from across a room not a communication). Communicate has been defined as "to make known," "to inform a person of, convey the knowledge or information of *** to send information or messages ***." Id. at 644, quoting Webster's Third New International Dictionary (1986), 460. "The essence of communication is the passing of a thought from the mind of one person to the mind of another." In re Adoption of Jordan at 644. A message not received nor successfully passed to the mind of another is not communicated, nor does an unsuccessful attempt to -8- communicate constitute communication. See In re Adoption of Bradford (1985), 18 Ohio St.3d 361, 369-370 (where father made one unsuccessful attempt to communicate but was turned away having arrived at the mother's house without advance notice or prior arrangements). One father who sent birthday cards to his daughters did not fail to communicate because the birthday cards were actually received and read by the girls. See In re Adoption of Knisley (Aug. 17, 1983), Fayette App. No. 82-CA-23, unreported. However, the letters and cards sent by Merle Cutright were never received and never read. Furthermore, Denise and Ricky Hedrick testified Cutright never had any communication with his son during one year period before Ricky Hedrick filed for adoption. Therefore, Cutright's attempts to communicate with his son were not communications, and there was clear and convincing evidence he never communicated with his son. Cutright also asserts there was justifiable cause for his failure to communicate with his son. As previously stated in this opinion, the petitioner must prove a lack of significant interference by a custodial parent with communication between the non-custodial parent and the child, or a lack of significant discouragement of such communication. "In examining whether the parent's failure was justified, the court is not restricted to focusing only on events occurring during the statutory one-year period. The court must also examine preceding events having any -9- bearing on the parent's failure to communicate with his child." In re Adoption of Lauck (1992), 82 Ohio App.3d 348, 353. In this case, Merle Cutright argues Denise Hedrick significantly discouraged him from communicating with his son. Betty Cutright believed Hedrick created a "hostile environment" by making it clear she did not want Merle Cutright to have her address. She, therefore, claims she did not forward the letters and cards for fear Denise Hedrick would prohibit her from visiting her grandson. Denise Hedrick, however, claims that safety, not discouraging Merle Cutright, was her intention. Thus, this issue raises a question of credibility, which was properly decided by the trial court in favor of Denise Hedrick. Id. at 368, supra p. Moreover, there was no evidence Denise Hedrick did anything to discourage other means of communication that did not involve Merle Cutright knowing where she lived. Merle Cutright also argues Denise Hedrick significantly interfered with his attempts to communicate. Denise Hedrick permitted Merle Cutright's mother, Betty Cutright, to visit Justin. Merle Cutright sent letters and cards to his mother to be forwarded to his son, but his mother did not forward them for fear her contact with her grandchild would be cut off by Denise Hedrick. Although Denise Hedrick was adamant about Merle Cutright not knowing where she lived, that decision did not interfere with Merle Cutright's means of communication. Denise Hedrick could not interfere because she did not know about the letters and was not put in a position to interfere. -10- These facts are unique in as much as the actions of a third party significantly interfered with the non-custodial parent's attempts to communicate. The law, however, only requires clear and convincing evidence the custodial parent did not significantly interfere or discourage such communications. Thus, a third party's interference is not a justifiable cause for the non-custodial parent's failure to communicate with his or her child. This court, therefore, concludes the trial court's judgment was supported by clear and convincing evidence Merle Cutright failed to communicate with his son and lacked justifiable cause for not doing so. Accordingly, Merle Cutright's consent to the adoption was not required under the circumstances as set forth in R.C. 3107.07(A). In his fifth assignment of error, Cutright argues the trial court erred in ordering the adoption without his consent. Because this court concludes his consent was not required, this argument has no merit. Judgment affirmed. -11- It is ordered that Appellee recover of Appellant his costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Probate Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions. DAVID T. MATIA, J., and JOHN T. PATTON, J., CONCUR. PATRICIA ANN BLACKMON PRESIDING JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journaliza- .