author: EILEEN T. GALLAGHER, J.: MELODY J. STEWART, J., DISSENTING:

text:
    STATE of Ohio, Plaintiff-Appellee v. William R. LOOBY, Defendant-Appellant
    No. 105354
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASED AND JOURNALIZED: March 8, 2018
    Paul A. Mancino, Jr., Mancino, Mancino & Mancino, 75 Public Square Bldg., Suite 1016, Cleveland, Ohio 44113, ATTORNEY FOR APPELLANT.
    Michael C. O'Malley, Cuyahoga County Prosecutor, BY: Glen Ramdhan, Assistant Prosecuting Attorney, The Justice Center, 9th Floor, 1200 Ontario Street, Cleveland, Ohio 44113, ATTORNEYS FOR APPELLEE.
    BEFORE: E.T. Gallagher, J., Keough, P.J., and Stewart, J.
    JOURNAL ENTRY AND OPINION
   EILEEN T. GALLAGHER, J.:

{¶ 1} Defendant-appellant, William Looby ("Looby") appeals his conviction and sentence. In addition to Looby's five assignments of error, we sua sponte asked the parties to brief a supplemental assignment of error regarding whether the trial court complied with the requirements of Crim.R. 11(C)(2)(c). Based on the record and the parties' supplemental briefs, we find that the trial court failed to comply with Crim.R. 11(C)(2)(c) when it accepted Looby's guilty plea and that the lack of compliance warrants reversal of the trial court's judgment.

I. Facts and Procedural History

{¶ 2} William Looby was charged, along with two codefendants, with three counts of attempted murder, three counts of aggravated arson, three counts of felonious assault, one count of breaking and entering, and one count of illegal manufacturing of drugs. Pursuant to a plea agreement, Looby pleaded guilty to one count of aggravated arson, one count of arson, and one count of felonious assault. However, before accepting Looby's guilty pleas, the trial court informed Looby of his constitutional and nonconstitutional rights, but never explained that Looby was waiving those rights by pleading guilty. The court sentenced Looby to eight years on the aggravated arson charge, 18 months on the arson charge, and six years on the felonious assault charge to be served concurrently for an aggregate eight-year prison term. Looby now appeals his conviction and sentence.

II. Law and Analysis

{¶ 3} As previously stated, we sua sponte asked the parties to consider a supplemental assignment of error regarding whether the trial court complied with the requirements of Crim.R. 11 (C)(2)(a) when it accepted Looby's guilty plea. This issue implicitly includes the ensuing question as to whether the failure to comply with Crim.R. 11(C)(2)(a), if any, necessitates reversal of Looby's convictions.

{¶ 4} "When a defendant enters a plea in a criminal case, the plea must be made knowingly, intelligently, and voluntarily." State v. Engle , 74 Ohio St.3d 525, 527, 660 N.E.2d 450 (1996). The purpose of Crim.R. 11(C) is to convey relevant information to the defendant so that he or she can make a voluntary and intelligent decision regarding whether to plead guilty. State v. Ballard , 66 Ohio St.2d 473, 479-480, 423 N.E.2d 115 (1981).

{¶ 5} We review the trial court's compliance with the requirements of Crim.R. 11(C) de novo. State v. Cardwell , 8th Dist. Cuyahoga No. 92796, 2009-Ohio-6827, 2009 WL 4986105, ¶ 26, citing State v. Stewart , 51 Ohio St.2d 86, 364 N.E.2d 1163 (1977).

{¶ 6} Crim.R. 11(C)(2)(c) provides, in relevant part:

In felony cases the court may refuse to accept a plea of guilty or a plea of no contest, and shall not accept a plea of guilty or no contest without first addressing the defendant personally * * * [i]nforming the defendant and determining that the defendant understands that by the plea[,] the defendant is waiving the rights to jury trial, to confront witnesses against him or her, to have compulsory process for obtaining witnesses in the defendant's favor, and to require the state to prove the defendant's guilt beyond a reasonable doubt at a trial at which the defendant cannot be compelled to testify against himself or herself.

{¶ 7} Strict compliance by the trial court is required for the waiver of the constitutional rights set forth under Crim.R. 11(C)(2)(c). State v. Veney , 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 18. Substantial compliance with the rule is sufficient for the instruction on the nonconstitutional rights set forth in Crim.R. 11(C)(2)(a) and (b). Veney at ¶ 14-17.

{¶ 8} Strict compliance equates to literal compliance with Crim.R. 11(C)(2)(c), though rote recitation of the rule is not required. Veney , 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 18, 27 (exact language is preferred, but rote recitation of the rule is not required for strict compliance).

{¶ 9} Failure to use the exact language contained in Crim.R. 11(C) in informing a criminal defendant of his constitutional rights is not grounds for vacating a plea as long as the record shows that the trial court explained these rights in a manner reasonably intelligible to the defendant. Id. at ¶ 18, citing Ballard , 66 Ohio St.2d 473, 479-480, 423 N.E.2d 115 (1981).

{¶ 10} Although verbatim language is not required, the Ohio Supreme Court encourages a word-for-word recitation of Crim.R. 11(C) when accepting guilty pleas. In Ballard , the court explained that

it is important to emphasize that the interest of finality is to be protected when accepting a guilty plea. With that interest in mind, the best method of informing a defendant of his constitutional rights is to use the language contained in Crim. R. 11(C), stopping after each right and asking the defendant whether he understands the right and knows that he is waiving it by pleading guilty . We strongly recommend such procedure to our trial courts.

(Emphasis added.) Ballard at 480, 423 N.E.2d 115.

{¶ 11} During the Crim.R. 11 colloquy, the trial court explained the constitutional rights enumerated in Crim.R. 11(C)(2)(c) to Looby and his codefendants as follows:

THE COURT: As good as the plea bargains might sound to people, nobody is under an obligation to accept them. You're welcome to stay with not guilty and go to trial instead. Right, * * * Mr. Looby?
DEFENDANT LOOBY: Yes, Your Honor.
* * *
THE COURT: And if you go to trial, you always have your lawyers. Can't afford one, one is appointed no cost to you. Understood, * * * Mr. Looby?
DEFENDANT LOOBY: Yes.
THE COURT: And you know that at trial you're presumed innocent. The burden is on the prosecutor. They have to come in with evidence. They have to prove each of the original charges against you with evidence beyond a reasonable doubt.
If there is one or more charges on the list that they cannot prove beyond a reasonable doubt, you would be acquitted and discharged of that count if they couldn't prove to that degree. Understood, * * * Mr. Looby?
DEFENDANT LOOBY: Yes.
* * *
THE COURT: So at trial you're welcome to take the witness stand in your defense but you have a right to stay off the stand and remain silent. No one can make you talk or even comment on your silence. * * * Understood, Mr. Looby?
* * *
DEFENDANT LOOBY: Yes, Your Honor.
THE COURT: And do you understand that you and your lawyer get to cross-examine all the witnesses that the prosecutor brings in here to try to build a case against you[.] * * * You understand that? * * * Do you, Mr. Looby?
DEFENDANT LOOBY: Yes.
THE COURT: Okay. So the other thing you need to know, your lawyer can issue subpoenas to select your witnesses, get them on the witness stand. The Court will enforce those subpoenas to help you get them here to testify for you. * * * Understood, Mr. Looby?
DEFENDANT LOOBY: Yes, Your Honor.

(Tr. 41-45.) After ensuring that the defendants understood each of these constitutional rights, the court explained the nature of the charges and their potential penalties. However, the trial court never expressly stated, or inquired as to whether Looby understood, that by pleading guilty, he was waiving his constitutional rights.

{¶ 12} In Veney , the court held:

A trial court must strictly comply with Crim.R. 11(C)(2)(c) and orally advise a defendant before accepting a felony plea that the plea waives (1) the right to a jury trial, (2) the right to confront one's accusers, (3) the right to compulsory process to obtain witnesses, (4) the right to require the state to prove guilt beyond a reasonable doubt, and (5) the privilege against compulsory self-incrimination. When a trial court fails to strictly comply with this duty, the defendant's plea is invalid.

(Emphasis added.) Veney , 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, at syllabus. Indeed, the court in Veney reaffirmed its prior decision in Ballard , 66 Ohio St.2d 473, 423 N.E.2d 115, in which the Ohio Supreme Court held:

Prior to accepting a guilty plea from a criminal defendant, the trial court must inform the defendant that he is waiving his privilege against compulsory self-incrimination, his right to jury trial, his right to confront his accusers, and his right of compulsory process of witnesses. ( Boykin v. Alabama , 395 U.S. 238 [89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) ], followed.)

Ballard at paragraph one of the syllabus.

{¶ 13} Common sense dictates that by pleading guilty, the defendant is not going to receive a trial nor require the state to prove the charges beyond a reasonable doubt, and there will be no need to subpoena and cross-examine witnesses. State v. Strebler, 7th Dist. Mahoning No. 08 MA 108, 2009-Ohio-1200, 2009 WL 684652, ¶ 36. There is an implicit understanding that by entering a guilty plea, the defendant is waiving the rights associated with trial. However, in Veney the court held that the court's failure to orally advise the defendant that the plea waives the defendant's constitutional rights renders the plea invalid. Veney at syllabus.

{¶ 14} The trial court ensured that Looby understood all of the constitutional rights relative to his right to trial, but neglected to ensure that Looby understood that his guilty pleas constituted a waiver of those rights. Therefore, because the trial court failed to strictly comply with the requirements of Crim.R. 11(C)(2)(c) with respect to the waiver of Looby's constitutional rights, his guilty pleas are invalid.

{¶ 15} We sustain the supplemental assignment of error. Accordingly, the remaining five assignments of error, which relate to nonconstitutional aspects of the plea colloquy and Looby's sentence, are moot.

{¶ 16} The trial court's judgment is reversed, Looby's pleas are vacated, and we remand the case to the trial court for further proceedings.

KATHLEEN ANN KEOUGH, P.J., CONCURS;

MELODY J. STEWART, J., DISSENTS WITH SEPARATE OPINION

MELODY J. STEWART, J., DISSENTING:

{¶ 17} The court engaged in a plea colloquy in which it advised Looby of the rights he would have if he went to trial, as opposed to the rights he would waive if he pleaded guilty. As stated in my dissenting opinion to State v. Miller , 8th Dist. Cuyahoga No. 105363, a case involving Looby's codefendant Miller who entered his guilty plea in the same plea colloquy as Looby, this was enough to satisfy Crim.R. 11(C)(2)(a). Not only is there no obligation for the court to use "magic" words when explaining the rights that a defendant waives by pleading guilty, we have held that the court does not even have to use the word "waive" when engaging in a Crim.R. 11(C)(2)(a) plea colloquy. State v. Elmore , 8th Dist. Cuyahoga No. 56246, 1990 WL 3168, 1 (Jan. 18, 1990) ; State v. Bryant , 8th Dist. Cuyahoga No. 36778, 1978 WL 217717, 1 (Jan. 12, 1978).

{¶ 18} The court phrased the colloquy in terms of what rights Looby would have if he elected to go to trial. As the majority acknowledges, the trial judge informed Looby that he did not have to plead guilty. He was told that he had a right to trial by jury, or before a judge; a right to confront and cross-examine witnesses; a right to subpoena witnesses; and a right to testify or remain silent. The trial judge told Looby that the state had the burden of proving guilt beyond a reasonable doubt. Looby expressly stated that he understood that he retained all of these rights if he chose not to plead guilty and elected to have a trial. We have, on virtually identical facts, affirmed guilty pleas where the court did not use the word "waive," but as in this case explained the consequences of a guilty plea in terms of the rights that a defendant would retain by going to trial, rather than the rights the defendant would forego by pleading guilty. See State v. Valentine , 8th Dist. Cuyahoga No. 51929, 1987 WL 11678, 1 (May 28, 1987) ; State v. Boysaw , 8th Dist. Cuyahoga No. 52052, 1987 WL 9864, 2 (Apr. 16, 1987) ; State v. Hinzman , 8th Dist. Cuyahoga No. 59062, 1991 WL 199509, 3 (Oct. 3, 1991).

{¶ 19} Additionally, there is a separate point to be made about Looby's guilty plea: at no point has he claimed that the court erred by failing to ensure that he understood that his guilty plea would waive his trial rights.

{¶ 20} Looby did not raise the waiver issue in his merit brief. Given that Miller had raised the issue and both defendants entered their guilty pleas in the same plea colloquy, we ordered the parties to file supplemental briefs to address whether the court complied with the requirements of Crim.R. 11(C)(2) when accepting Looby's guilty plea. Looby again did not raise the waiver issue. His only assertion was that "[t]he obvious defect was that [the plea colloquy] was done jointly with multiple defendants who were questioned serially by the court." Appellant's supplemental brief at 1.

{¶ 21} That appellate counsel could not identify any defect with the court's plea colloquy with respect to Crim.R. 11(C)(2) is telling on the substantive issue. Equally important is that appellate counsel's failure to raise this error on appeal means that this court can reverse only on a showing of plain error. State v. Rogers , 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 22.

Regardless of the majority's determination to apply State v. Veney , 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, plain error exists for Looby only if there is "a reasonable probability that, but for the error, he would not have entered the plea." United States v. Dominguez Benitez , 542 U.S. 74, 83, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2002).

{¶ 22} Nothing in the record shows that Looby would not have pleaded guilty had he been told that his guilty plea would "waive" his Crim.R. 11(C)(2) trial rights. In fact, the majority, citing State v. Strebler , 7th Dist. Mahoning No. 08 MA 108, 2009-Ohio-1200, 2009 WL 684652, concedes that "common sense dictates that by pleading guilty, a defendant is not going to receive a trial nor require the state to prove the charges beyond a reasonable doubt, and there will be no need to subpoena and cross-examine witnesses." Ante at ¶ 13. I would affirm Looby's conviction.

      Looby did not raise any issues relating to the guilty plea in his merit brief. By acting sua sponte, without any indication from Looby that he actually desires to have his guilty plea vacated, the majority has nullified a favorable plea bargain that Looby may not subsequently receive-Looby is once again facing four counts of attempted murder; five counts of aggravated arson; one count of arson; five counts of felonious assault; breaking and entering; and illegal manufacture of drugs or cultivation of marijuana. The state obviously has no obligation to offer Looby a guilty plea on the same terms, and he is exposed to significantly more prison time should he go to trial and be found guilty. It might be that appellate counsel understood the adverse effects of having the guilty plea vacated and chose not to question its validity. "Appellate lawyers are not obliged to raise issues that could boomerang on their clients; it is no failure of advocacy to leave well enough alone." United States v. Knox , 287 F.3d 667, 671 (7th Cir. 2002).


source: Caselaw Access Project

author: PRESTON, J.

license: Public Domain

text:
    IN RE: the ADOPTION OF: C.N.A.
    [Brent L. Anderson- Appellant]
    NO. 17-17-20
    Court of Appeals of Ohio, Third District, Shelby County.
    Date of Decision: March 12, 2018
    Jay M. Lopez, Troy, for Appellant.
    Jeremy M. Tomb, for Appellee
   PRESTON, J.

{¶ 1} Petitioner-appellant, Brent L. Anderson ("Brent"), appeals the September 18, 2017 decision of the Shelby County Court of Common Pleas, Probate Division, concluding that the consent of respondent-appellee, Nathaniel T. Parker ("Nathaniel"), to Brent's petition to adopt C.N.A. is necessary. For the reasons that follow, we affirm.

{¶ 2} C.N.A. was born in March 2011 to Nathaniel and Amanda Sue Brooks Anderson ("Amanda"). (Doc. No. 1). After Amanda and Brent were married in 2015, Brent filed a petition to adopt C.N.A. on February 21, 2017. (Id. ). In his petition, Brent asserted that Nathaniel's consent to the adoption is not necessary because: (1) Nathaniel "failed without justifiable cause to provide more than de minimis contact with the minor for a period of at least one year immediately preceding the filing of the adoption petition"; and (2) Nathaniel "failed without justifiable cause 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 the filing of the adoption petition." (Id. ). Also on February 21, 2017, Amanda filed her consent to Brent's adoption of C.N.A. (Doc. No. 3). Brent filed an amended petition to adopt C.N.A. on March 13, 2017. (Doc. No. 5).

{¶ 3} On April 10, 2017, Nathaniel filed a motion "to stay this matter pending a determination from the Juvenile Court regarding [his] Motion to Establish Parental Rights and Responsibilities, Motion for Interim Parenting Time, and Motion for Shared Parenting, or in the alternative, Parenting Time. (Doc. No. 9). Brent filed his memorandum in opposition to Nathaniel's motion to stay the adoption proceeding on April 28, 2017. (Doc. No. 13). After a hearing on May 22, 2017, the trial court the next day denied Nathaniel's motion to stay the adoption proceeding. (Doc. No. 20).

{¶ 4} After hearings on July 27 and August 3, 2017, the trial court filed on September 17, 2017 its judgment entry that is the subject of this appeal. (Doc. No. 32). In it, the trial court concluded that Nathaniel's consent is required because Brent failed to prove that Nathaniel "failed without justifiable cause to provide more than de minimis contact with the child" and "failed 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 [sic] the filing of the adopting petition." (Id. ).

{¶ 5} Brent filed a notice of appeal on October 2, 2017. (Doc. No. 33). He raises one assignment of error for our review.

Assignment of Error

The Trial Court erred and acted contrary to law when it determined that Appellee, Nathaniel Parker's, consent was necessary for the step-parent adoption.

{¶ 6} In his assignment of error, Brent argues that the trial court erred by concluding that Nathaniel's consent to Brent's adoption of C.N.A. is necessary. In particular, Brent argues that the trial court erred by concluding that he failed to prove that Nathaniel failed without justifiable cause to provide more than de minimis contact with C.N.A. Brent also argues that the trial court erred by concluding that he failed to prove that Nathaniel failed to provide for the maintenance and support of C.N.A. as required by law or judicial decree during the year immediately preceding the date on which Brent filed his petition to adopt C.N.A.

{¶ 7} " 'Ordinarily, the written consent of a minor child's natural parents is required prior to adoption, but R.C. 3107.07 provides exceptions to this requirement.' " In re Adoption of H.R. , 3d Dist. Logan No. 8-14-15, 2014-Ohio-5390, 2014 WL 6871352, ¶ 23, quoting In re Adoption of K.C. , 3d Dist. Logan No. 8-14-03, 2014-Ohio-3985, 2014 WL 4555908, ¶ 20. Specifically, R.C. 3107.07 states:

Consent to adoption is not required of any of the following:
(A) A parent of a minor, when it is alleged in the adoption petition and the court, after proper service of notice and hearing, finds by clear and convincing evidence that the parent has failed without justifiable cause to provide more than de minimis contact with the minor or to provide for the maintenance and support of the minor as required by law or judicial decree for a period of at least one year immediately preceding either the filing of the adoption petition or the placement of the minor in the home of the petitioner.

R.C. 3107.07(A). " ' R.C. 3107.07(A) is written in the disjunctive.' " In re Adoption of H.R. at ¶ 23, quoting In re Adoption of K.C. at ¶ 21. " 'Therefore, a failure without justifiable cause to provide either more than de minimis contact with the minor or maintenance and support for the one-year time period is sufficient to obviate the need for a parent's consent.' " (Emphasis sic.) Id. , quoting In re Adoption of K.C. at ¶ 21, citing In re Adoption of A.H. , 9th Dist. Lorain No. 12CA010312, 2013-Ohio-1600, 2013 WL 1707747, ¶ 9.

{¶ 8} "Because cases such as this one may involve the termination of fundamental parental rights, the party petitioning for adoption has the burden of proving, by clear and convincing evidence, that the parent failed to provide more than de minimis contact with the minor or failed to provide for the maintenance and support of the minor during the requisite one-year period and that there was no justifiable cause for the failure." Id. at ¶ 24, citing In re Adoption of K.C. at ¶ 24, citing In re R.L.H. , 2d Dist. Montgomery No. 25734, 2013-Ohio-3462, 2013 WL 4041336, ¶ 9. " ' "Once the petitioner has established this failure, the burden of going forward shifts to the parent to show some facially justifiable cause for the failure. * * * The burden of proof, however, remains with the petitioner." ' " Id. , quoting In re R.L.H. at ¶ 9, quoting In re A.N.B. , 12th Dist. Preble No. CA2012-04-006, 2012-Ohio-3880, 2012 WL 3648014, ¶ 10.

Clear and convincing evidence is that measure or degree of proof which is more than a mere "preponderance of the evidence," but not to the extent of such certainty as is required "beyond a reasonable doubt" in criminal cases, and which will 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 , 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the syllabus, and citing In re Adoption of K.C. at ¶ 24.

{¶ 9} " 'The Supreme Court of Ohio has articulated a two-step analysis for probate courts to employ when applying R.C. 3107.07(A).' " Id. at ¶ 25, quoting In re Adoption of K.C. at ¶ 23, citing In re Adoption of M.B. , 131 Ohio St.3d 186, 2012-Ohio-236, 963 N.E.2d 142, ¶ 23. "The first step involves deciding a factual question-in this case, whether the parent failed to provide more than de minimis contact with the minor or failed to provide for the maintenance and support of the minor for a period of at least one year immediately preceding the filing of the adoption petition." Id. , citing In re Adoption of K.C. at ¶ 23, citing In re R.L.H. at ¶ 12, citing In re Adoption of M.B. at ¶ 23. See also In re Adoption of S.J.M.H. , 1st Dist. Hamilton No. C-130683, 2014-Ohio-3565, 2014 WL 4088086, ¶ 29. " ' "A trial court has discretion to make these determinations, and in connection with the first step of the analysis, an appellate court applies an abuse-of-discretion standard when reviewing a probate court decision * * *." ' " Id. , quoting In re Adoption of K.C. at ¶ 23, quoting In re Adoption of M.B. at ¶ 25. See also In re Adoption of S.J.M.H. at ¶ 29. "In the second step of the analysis, if a probate court finds the parent failed to provide more than de minimis contact or failed to provide for the maintenance and support of the minor, the court then determines 'whether justifiable cause for the failure has been proved by clear and convincing evidence.' " Id. , quoting In re Adoption of M.B. at ¶ 23. See also In re Adoption of K.C. at ¶ 23. " 'A probate court's decision on whether justifiable cause exists will not be disturbed on appeal unless the determination is against the manifest weight of the evidence.' " Id. , quoting In re Adoption of K.C. at ¶ 23, citing In re Adoption of M.B. at ¶ 24 and In re Adoption of Masa , 23 Ohio St.3d 163, 492 N.E.2d 140 (1986), paragraph two of the syllabus.

In determining whether a judgment is against the manifest weight of the evidence, we must review the entire record, weigh the evidence and all reasonable inferences, consider witness credibility and determine whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of justice that there must be a reversal of the judgment and an order for a new trial.

In re Adoption of N.T.R. , 10th Dist. Franklin No. 16AP-589, 2017-Ohio-265,, 2017 WL 361217 ¶ 11, citing In re Adoption of E.E.R.K. , 2d Dist. Miami No. 2013 CA 35, 2014-Ohio-1276, 2014 WL 1338789, ¶ 18.

{¶ 10} As an initial matter, we must address Brent's failure to comply with the Ohio Rules of Appellate Procedure by omitting any argument illustrating the reasons in support of his challenge to the trial court's decision. "[A]n appellate court may disregard an assignment of error pursuant to App.R. 12(A)(2) : 'if the party raising it fails to identify in the record the error on which the assignment of error is based or fails to argue the assignment separately in the brief, as required under App.R. 16(A).' " Rodriguez v. Rodriguez , 8th Dist. Cuyahoga No. 91412, 2009-Ohio-3456, 2009 WL 2054316, ¶ 4, quoting App.R. 12(A) ; Hawley v. Ritley , 35 Ohio St.3d 157, 159, 519 N.E.2d 390 (1988). App.R. 16(A)(7) requires that Brent include in his brief: "An argument containing the contentions of the appellant with respect to each assignment of error presented for review and the reasons in support of the contentions, with citations to the authorities, statutes, and parts of the record on which appellant relies. The argument may be preceded by a summary." " 'It is not the duty of an appellate court to search the record for evidence to support an appellant's argument as to any alleged error.' " Rodriguez at ¶ 7, quoting State v. McGuire , 12th Dist. Preble No. CA95-01-001, 1996 WL 174609, *14 (Apr. 15, 1996). "An appellate court is not a performing bear, required to dance to each and every tune played on an appeal." Id. , citing State v. Watson , 126 Ohio App.3d 316, 321, 710 N.E.2d 340 (12th Dist.1998) and McGuire at *14.

{¶ 11} Brent failed to make any argument as to how the trial court specifically erred in concluding that he failed to prove that Nathaniel failed without justifiable cause to provide more than de minimis contact with C.N.A. and that Nathaniel failed to provide for the maintenance and support of C.N.A. Rather, Brent appears to imply that this court should conduct a de novo review of his statement of facts and decide the case in his favor. That does not comport with Ohio's system of appellate review.

{¶ 12} Applying the appropriate standard of review, we begin by addressing whether the trial court abused its discretion by finding that Brent failed to prove that Nathaniel failed to provide more than de minimis contact with C.N.A. In making that finding, the trial court stated, "The record is replete with instances of [Nathaniel] communicating or attempting to communicate with the child over the last year or more, including making direct contact by attending the child's sporting events." (Doc. No. 32).

{¶ 13} As this court has previously discussed, " '[t]he Legislature amended the statute to require a finding that the parent failed to "provide more than de minimis contact" with the minor child for a period of one year.' " In re Adoption of H.R. , 2014-Ohio-5390, at ¶ 32, quoting In re Adoption of K.C. , 2014-Ohio-3985, at ¶ 22. " 'The prior version of the statute required a finding that the parent failed to "communicate" with the minor child for a period of one year.' " Id. , quoting In re Adoption of K.C. at ¶ 22. " ' "By changing the standard from 'communicate,' which could imply a single contact, to 'more than de minimis contact,' which seems to imply more than a single contact, the Legislature indicated its intent to require more effort from the parent to have contact and communication with the child." ' " Id. , quoting In re Adoption of K.C. at ¶ 22, quoting In re J.D.T. , 7th Dist., 2012-Ohio-4537, 978 N.E.2d 602, ¶ 9.

{¶ 14} Based on our review of the record, the trial court did not abuse its discretion in concluding that Brent failed to prove that Nathaniel failed to have more than de minimis contact with C.N.A. Nathaniel testified that he attended C.N.A.'s wrestling meet in January 2017. (July 27, 2017 Tr. at 17-18). Nathaniel "talked to [C.N.A.] throughout the entire meet in between matches" when C.N.A. would "come up, sit with [Nathaniel] in the stands and then after the meet, [Nathaniel] talked to him for about forty minutes." (Id. at 18). Nathaniel also testified that he had four phone conversations with C.N.A. between February 21, 2016 and February 21, 2017. (Id. at 19). In addition, Nathaniel Skyped with C.N.A. when C.N.A. visited Nathaniel's parents. (Id. at 20-21). Further, Nathaniel testified that he consulted an attorney in June 2016 "regarding custody and visitation" with C.N.A. (Id. at 38). Nathaniel then relocated to Ohio from Texas in December 2016 "to be with [C.N.A.]" (Id. at 37-38).

{¶ 15} On appeal, Brent offers no authority contradicting the trial court's conclusion that Nathaniel's conduct constituted more than de minimis contact. Instead, Brent urges this court to reach the conclusion of the trial court in In re Adoption of K.C. that the father failed to provide more than de minimis contact with K.C. because he "failed to seize upon various opportunities to facility [sic] his contact with K.C." (Appellant's Brief at 10). See In re Adoption of K.C. at ¶ 17. In re Adoption of K.C. is entirely distinguishable from the facts of this case. In this case, unlike In re Adoption of K.C. , the trial court concluded that Brent failed to meet his burden of proving that Nathaniel failed to have more than de minimis contact with C.N.A. Accordingly, Brent's argument is erroneous with respect to the appellate review of a trial court's de minimis contact determination under R.C. 3107.07(A). That is, it is the job of an appellate court to review the trial court's de minimis contact determination for an abuse of discretion, not to replace the trial court's decision with its own.

{¶ 16} We conclude Nathaniel made more than de minimis effort to have contact with C.N.A. Stated another way, the record reflects that Nathaniel made more than a minimal effort to contact C.N.A. Therefore, the trial court did not abuse its discretion in concluding that Brent failed to prove that Nathaniel failed to have more than de minimis contact with C.N.A. for the one-year period preceding Brent's petition for adoption.

{¶ 17} Further, the trial court's alternative conclusion that any failure by Nathaniel to provide more than de minimis contact with C.N.A. was also justified is not against the manifest weight of the evidence. " ' "Ohio courts have held that justification of a parent's failure to communicate with his or her child is shown when there has been 'significant interference' with a parent's communication with a child or 'significant discouragement' of such communication." ' " In re J.P.E. , 11th Dist. Trumbull No. 2016-T-0113, 2017-Ohio-1108, 2017 WL 1147780, ¶ 17, quoting In re M.E.M. , 11th Lake No. 2010-L-020, 2010-Ohio-4430, 2010 WL 3666981, ¶ 29, quoting In re Kr.E. , 9th Dist. Lorain No. 06CA008891, 2006-Ohio-4815, 2006 WL 2661053, ¶ 21, citing In re Holcomb , 18 Ohio St.3d 361, 481 N.E.2d 613 (1985), paragraph three of the syllabus. "In determining whether a natural parent's failure to have more than de minimis contact was justified, the central question is whether there was a significant interference with visitation and communication and not whether it was possible for the natural parent to have done more to overcome the interference with visitation and communication." Id. at ¶ 26, citing In re S.B.D. , 2d Dist. Miami No. 2006-CA-25, 2006-Ohio-5133, 2006 WL 2795345, ¶ 37.

{¶ 18} The trial court concluded that Amanda "elected to take a number of actions to limit access to or communication with her or [C.N.A.]"-that is, Amanda's "conduct was admittedly and intentionally designed to make [Nathaniel's] contact with [C.N.A.] more difficult." (Doc. No. 32). Again, Brent makes no argument as to how the trial court's alternative conclusion is against the manifest weight of the evidence. Based on our review of the record, we conclude that the trial court's alternative conclusion is not against the manifest weight of the evidence. Stated differently, we conclude that the weight of the evidence supports the conclusion that Amanda significantly interfered with Nathaniel's visitation and communication with C.N.A. Compare In re J.P.E. at ¶ 32.

{¶ 19} Nathaniel testified that he placed "a hundred and ten phone calls" between February 21, 2016 and February 21, 2017 to contact C.N.A. (July 27, 2017 Tr. at 19). According to Nathaniel, "out of the hundred and then [sic] phone calls during that time period, [Amanda] answered the phone one time and called [Nathaniel] back four other times * * * where [he] would've spoke to [C.N.A.]" (Id. ). He testified that Amanda eventually "blocked [his] number in June" 2016 to prevent him from contacting C.N.A. (Id. ). Nathaniel testified that Amanda informed Nathaniel's parents "that they weren't allowed to have anything other than supervised visits" after Amanda learned that Nathaniel's parents were permitting C.N.A. to Skype with Nathaniel. (Id. at 21). Nathaniel also testified that he purchased a plane ticket "for Easter to come up and see [C.N.A.] for Easter [and to] take him to the zoo" but Amanda "just ignored" Nathaniel and did not permit him to see C.N.A. (Id. at 37).

{¶ 20} Amanda testified that, other than the wrestling meet, Nathaniel did "not ha[ve] any other contact" with C.N.A. (Id. at 49). However, she testified that "[t]here would have been one phone conversation in March of 2016. It was right before [C.N.A.'s] birthday" but that "it was not the best conversation that he had with [C.N.A.] because he would try to cut jabs." (Id. at 50).

{¶ 21} Amanda testified that she blocked Nathaniel in June 2016 from being able to call her because Nathaniel was being "derogatory through phone conversations" and because Nathaniel "had [ ] an argument * * * with Brent." (Id. at 56). In particular, she testified that Nathaniel threatened her in December 2015 when he stated to her "[t]hat he [did] not want[ ] to move to Ohio in fear that he would want to slit [her] throat." (Id. at 52). According to Amanda, she sought "legal advice through an attorney" but was advised "not to [ ] file anything" since Nathaniel lived in Texas at the time. (Id. at 53-54). However, Amanda admitted that she continued to communicate with Nathaniel after that incident. (Id. at 54). After Amanda blocked Nathaniel from being able to call her, she communicated with Nathaniel through Facebook Messenger. (Id. at 56-57). Amanda testified that she did not permit C.N.A. to communicate with Nathaniel over the phone or through Facebook Messenger because of Nathaniel's December 2015 threats and "the * * * comments that he had made in June." (Id. at 57, 62).

{¶ 22} On cross-examination, Amanda testified that she did not permit C.N.A. to Skype with Nathaniel despite Nathaniel's request to Skype with C.N.A. (Id. at 66-69). She admitted that she did not respond to Nathaniel's request to see C.N.A. when Nathaniel was in Ohio. (Id. at 92-93). Amanda also testified that Nathaniel came to her residence in January 2017 to see C.N.A. but she instructed him "[t]o stay off [her] property." (Id. at 100-102). (See also Aug. 3, 2017 Tr. at 61-62). Amanda admitted that she did not respond to Nathaniel's inquiry about the date and location of C.N.A.'s wrestling meet; however, Nathaniel "on his own went and found that schedule" and showed up to C.N.A.'s wresting meet. (July 27, 2017 Tr. at 105). After Nathaniel showed up at C.N.A.'s wrestling meet, Amanda did not take C.N.A. to his three remaining wrestling meets that season. (Id. ).

{¶ 23} Nathaniel denied that he threatened Amanda. (Id. at 45); (Aug. 3, 2017 Tr. at 59). According to Nathaniel, after Amanda alleged that he threatened her, they had "a ton of conversations after that. She, she called [him] and texted [him], [they] have texts about her * * * miscarriages, her problems with Brent, this and that, * * * so [he doesn't] understand how she * * * didn't cut contact off after [the alleged threat]." (July 27, 2017 Tr. at 45). Rather, Amanda "didn't cut contact off until after [C.N.A.'s] last birthday conversation." (Id. ).

{¶ 24} The trial court found Amanda's explanation for blocking Nathaniel's communication to be disingenuous. Indeed, Amanda's explanation is ultimately a credibility determination, which is left to the sound discretion of the trial court. " 'A trial court is "free to believe all, part, or none of the testimony of any witness who appears before it." ' " In re Adoption of K.C. , 2014-Ohio-3985, at ¶ 26, quoting In re Adoption of M.C. , 4th Dist. Jackson No. 11CA5, 2011-Ohio-6527, 2011 WL 6372834, ¶ 19, quoting Rogers v. Hill , 124 Ohio App.3d 468, 470, 706 N.E.2d 438 (4th Dist.1998). See also In re J.P.E. , 2017-Ohio-1108, at ¶ 39 ("The trial judge was in the best position to determine the credibility of the witnesses and was entitled to believe the testimony of appellee and Mr. Grifa over Brent Erb."). Accordingly, we conclude that the evidence supporting that Amanda significantly interfered with Nathaniel's communication and visitation with C.N.A. is weightier than the evidence that she did not. As such, the trial court's alternative conclusion that any failure by Nathaniel to provide more than de minimis contact with C.N.A. was justified is not against the manifest weight of the evidence.

{¶ 25} Finally, Brent challenges the trial court's conclusion that he failed to prove that Nathaniel failed to provide for the maintenance and support of C.N.A. for the one-year period preceding Brent's petition for adoption. Again, Brent makes no argument as to how the trial court abused its discretion in making that conclusion.

{¶ 26} The Supreme Court of Ohio defined "the maintenance and support required by R.C. 3107.07(A) [as] that which is specifically 'required by law or judicial decree.' " In re Adoption of M.B. , 131 Ohio St.3d 186, 2012-Ohio-236, 963 N.E.2d 142, at ¶ 20. Under Ohio law, "[t]he biological or adoptive parent of a minor child must support the parent's minor children out of the parent's property or by the parent's labor." R.C. 3103.03(A). " 'Such duty of support is not dependent upon the presence or absence of court orders for support.' " In re Adoption of K.L.M. , 10th Dist. Franklin No. 15AP-118, 2015-Ohio-3154, 2015 WL 4656633, ¶ 12, quoting In re Adoption of B.M.S. , 10th Dist. Franklin No. 07AP-236, 2007-Ohio-5966, 2007 WL 3293369, ¶ 23, citing Nokes v. Nokes , 47 Ohio St.2d 1, 5, 351 N.E.2d 174 (1976). " '[A] parent of a minor, has the common-law duty of support as well as a duty of support decreed by court. The judicial decree of support simply incorporates the common-law duty of support.' " Id. , quoting In re Adoption of McDermitt , 63 Ohio St.2d 301, 305, 408 N.E.2d 680 (1980).

{¶ 27} "Maintenance and support, in the adoption context, do not simply refer to child support payments or other monetary contributions." Id. at ¶ 15, citing In re Adoption of McNutt , 134 Ohio App.3d 822, 829, 732 N.E.2d 470 (4th Dist.1999). "Maintenance and support, 'may mean any type of aid to feed, clothe, shelter, or educate the child; provide for health, recreation, travel expenses; or provide for any other need of the child. * * * Supplying shoes, diapers, or any other clothing can constitute support and maintenance.' " Id. , quoting In re Adoptions of Groh , 153 Ohio App.3d 414, 2003-Ohio-3087, 794 N.E.2d 695, ¶ 20 (7th Dist.2003), citing In re Adoption of McNutt at 830, 732 N.E.2d 470. "De minimis monetary gifts from a biological parent to a minor child do not constitute maintenance and support, because they are not payments as required by law or judicial decree as R.C. 3107.07(A) requires." In re Adoption of M.B. at ¶ 20.

{¶ 28} The trial court concluded that (1) "[t]here is no judicial order for support" because Amanda "elected to make no application for support" and (2) Amanda and Nathaniel "are co-owners of a certain piece of rental real estate and that, during the applicable period in question, she has been receiving the full rental payment for the property" as "support for [C.N.A.]" (Doc. No. 32). The record supports the trial court's findings.

{¶ 29} Indeed, the parties testified that Nathaniel provided money to Amanda to purchase homes in Springfield, Ohio for use as rental properties to generate income for Amanda while Nathaniel was in prison. (July 27, 2017 Tr. at 31, 77-79); (Aug. 3, 2017 Tr. at 45-51). The parties testified that the rental income was used as support for C.N.A. (July 27, 2017 Tr. at 31-32); (Aug. 3, 2017 Tr. at 51, 54, 62-63). (See also July 27, 2017 Tr. at 81). That evidence alone demonstrates that Nathaniel provided for the maintenance and support of C.N.A. as required by law. See In re Adoption of McNutt at 829-830, 732 N.E.2d 470 ("Moreover, a 'meager' amount of support is sufficient to avoid a finding that the parent's consent is not required."), citing In re Bryant , 4th Dist. Washington No. 97CA635, 1997 WL 766460, *6 (Dec. 9, 1997), Celestino v. Schneider , 84 Ohio App.3d 192, 197, 616 N.E.2d 581 (6th Dist.1992) ("father's payment of $36 to CSEA precluded a finding of failure to provide maintenance and support"), Vecchi v. Thomas , 67 Ohio App.3d 688, 691, 588 N.E.2d 186 (2d Dist.1990) ("father's payment of $130 to CSEA precluded a finding of failure to provide maintenance and support"), In re Adoption of Salisbury , 5 Ohio App.3d 65, 67, 449 N.E.2d 519 (10th Dist.1982) ; In re Adoption of Dea , 11th Dist. Lake No. 92-L-120, 1994 WL 102390, *2 (Mar. 25, 1994), and In re Adoption of Mills , 12th Dist. Warren No. CA93-04-036, 1993 WL 430473, *2 (Oct. 25, 1993). See also In re Adoption of M.B. at ¶ 26.

{¶ 30} Moreover, Nathaniel testified that he

offered to give [Amanda] money, * * * and every time [he made] any kind of offer, * * * it was met with we don't need it. But there was multiple offers made for soccer cletes [sic], for Halloween costumes, * * * there was multiple offers.

(July 27, 2017 Tr. at 36). (See also Aug. 3, 2017 Tr. at 55-56, 60). Amanda admitted that Nathaniel offered to buy shoes and offered to pay for school for C.N.A. (July 27, 2017 Tr. at 57, 71, 97). (See also July 27, 2017 Tr. at 91-92).

{¶ 31} The above evidence demonstrates that Nathaniel "made a financial contribution that comports with the requirements of R.C. 3107.07(A) to contribute maintenance and support" for C.N.A. In re Adoption of M.B. at ¶ 23. Therefore, the trial court did not abuse its discretion by concluding that Brent failed to prove that Nathaniel failed to provide for the maintenance and support of C.N.A. for the one-year period preceding Brent's petition for adoption.

{¶ 32} For the foregoing reasons, we hold that the trial court did not err in concluding that Nathaniel's consent to Brent's adoption of C.N.A. is required under R.C. 3107.07(A).

{¶ 33} Brent's assignment of error is overruled.

{¶ 34} Having found no error prejudicial to the appellant herein in the particulars assigned and argued, we affirm the judgment of the trial court.

Judgment Affirmed

WILLAMOWSKI, P.J. and ZIMMERMAN, J., concur.