abandonment presumption in Ohio

2026“Incarceration, however, does not rebut the presumption of abandonment.” In re M.A., 2024-Ohio-3432, ¶ 26 (5th Dist.), citing Matter of M.G., 2023-Ohio-696, ¶ 48 (5th Dist.).

2025“Incarceration, however, does not rebut the presumption of abandonment.” In re M.A., 2024-Ohio-3432, ¶ 26 (5th Dist.), citing Matter of M.G., 2023-Ohio-696, ¶ 48 (5th Dist.). {¶31} We readily conclude that father’s challenges to the other two factors he cites — R.C. 2151.414(E)(11) and (13) — also fall short, though we need not separately address those provisions.

2026“Incarceration, however, does not rebut the presumption of abandonment.” In re M.A., 2024-Ohio-3432, ¶ 26 (5th Dist.), citing Matter of M.G., 2023-Ohio-696, ¶ 48 (5th Dist.).

2025“Incarceration, however, does not rebut the presumption of abandonment.” In re M.A., 2024-Ohio-3432, ¶ 26 (5th Dist.), citing Matter of M.G., 2023-Ohio-696, ¶ 48 (5th Dist.). {¶31} We readily conclude that father’s challenges to the other two factors he cites — R.C. 2151.414(E)(11) and (13) — also fall short, though we need not separately address those provisions.

2020Defiance No. 4- 03-48, 2004-Ohio-2356, ¶ 23 . {¶17} With respect to whether Johnson abandoned L.L., the trial court found: -11- Case No. 5-19-33 [Johnson] has, on two occasions, met the abandonment standard outlined in R.C. §2151.011(C). [Johnson] failed to visit with [L.L.] in April, May, June, July, and August 2018.

2007See, e.g., In re L.D. , Clinton App. No. CA2004-03-007, 2004-Ohio-4000 , at ¶ 21 (that the father stopped by the children services agency once during the period of abandonment and called by telephone three times did not rebut presumption of abandonment); In re Cravens , supra, at ¶ 23 (the father's attempts to schedule visits through children services were not sufficient to rebut presumption of abandonment during period of no contact); In re Katrina T. , Sandusky App. No. S-03-024, 2004-Ohio-3164 , at ¶ 16 (that mother called the caseworker and left messages that she wanted to visit her daught

2011A party precluded under this principle from relitigating an issue with an opposing party likewise is precluded from doing so with another person unless he lacked a full and fair opportunity to litigate that issue in the first action, or unless other circumstances justify according him an opportunity to relitigate that issue.’ Hicks, supra, at 74, 369 N.E.2d 776 (emphasis added). {¶ 33} “In Goodson , the Ohio Supreme Court rejected an argument that Hicks constituted an abandonment of the requirement of mutuality.

2011A party precluded under this principle from relitigating an issue with an opposing party likewise is precluded from doing so with another person unless he lacked a full and fair opportunity to litigate that issue in the first action, or unless other circumstances justify according him an opportunity to relitigate that issue.’ Hicks, supra, at 74 * * * (emphasis added). {¶ 33} “In Goodson, the Ohio Supreme Court rejected an argument that Hicks constituted an abandonment of the requirement of mutuality.

2026The record reflects that “a knowingly, voluntary and intelligent plea [was] made in open court.” State v. Walton- Kirkendoll, 2025-Ohio-1006, ¶ 15 (9th Dist.) (no manifest injustice where the plea form and transcript of the plea established that the trial court complied with Crim.R. 11 and reflected that a “knowing, voluntary and intelligent plea [was] made in open court.”). 9 {¶21} Mr. Cottrell argues that counsel was ineffective for “advis[ing] him that there could not be an affirmative defense of abandonment.” He presents no argument, however, that there was a valid basis for an abandonment

2026He informed the court at this hearing that he was “not going to testify.” Again, Mr. Cottrell was given an opportunity to address the trial court and to explain how he was allegedly coerced into entering no contest pleas, yet he failed to do so. {¶20} Further, the plea form and transcript of the plea hearing support that Mr. Cottrell’s plea was knowing, voluntary, and intelligent, and that there was not “‘a fundamental flaw in the plea proceedings resulting in a miscarriage of justice.’” Moton, 2022-Ohio-780, at ¶ 5 (9th Dist.), quoting Straley, 2019-Ohio-5206 , at ¶ 14.

2025In re S.H. and Y.H., 2025-Ohio-2338, at ¶ 68 (1st Dist.); see In re L.L., 2020-Ohio-1565, ¶ 16 (3d Dist.) (“Numerous courts, including this one, have determined that R.C. 2151.011(C) creates a presumption of abandonment, which may be rebutted by the parents.”); see also In re Custody of C.E., 2005-Ohio-5913, ¶ 17 (2d Dist.) (“Because the presumption set forth in R.C. 2151.011(C) is in derogation of the natural rights of parents, we construe it narrowly as a rebuttable presumption, rather than expansively, as an irrebuttable presumption.”). {¶80} Ohio courts have offered varying explanations ab

2025In re S.H. and Y.H., 2025-Ohio-2338, at ¶ 68 (1st Dist.); see In re L.L., 2020-Ohio-1565, ¶ 16 (3d Dist.) (“Numerous courts, including this one, have determined that R.C. 2151.011(C) creates a presumption of abandonment, which may be rebutted by the parents.”); see also In re Custody of C.E., 2005-Ohio-5913, ¶ 17 (2d Dist.) (“Because the presumption set forth in R.C. 2151.011(C) is in derogation of the natural rights of parents, we construe it narrowly as a rebuttable presumption, rather than expansively, as an irrebuttable presumption.”). {¶80} Ohio courts have offered varying explanations ab

2025Notably, however, the Tenth District recently held that a father successfully rebutted the abandonment presumption where “he took steps to resume visits but was precluded from seeing [the child] due to reasons that were not his fault.” In re A.M., 2025-Ohio-4435, ¶ 62 (10th Dist.). {¶81} The Tenth District’s holding in In re B.B.H. is incompatible with a long line of cases—including cases from this court—holding that the presumption of abandonment is rebuttable.

2025Notably, however, the Tenth District recently held that a father successfully rebutted the abandonment presumption where “he took steps to resume visits but was precluded from seeing [the child] due to reasons that were not his fault.” In re A.M., 2025-Ohio-4435, ¶ 62 (10th Dist.). {¶81} The Tenth District’s holding in In re B.B.H. is incompatible with a long line of cases—including cases from this court—holding that the presumption of abandonment is rebuttable.

2025In re S.H. and Y.H., 2025-Ohio-2338, at ¶ 68 (1st Dist.); see In re L.L., 2020-Ohio-1565, ¶ 16 (3d Dist.) (“Numerous courts, including this one, have determined that R.C. 2151.011(C) creates a presumption of abandonment, which may be rebutted by the parents.”); see also In re Custody of C.E., 2005-Ohio-5913, ¶ 17 (2d Dist.) (“Because the presumption set forth in R.C. 2151.011(C) is in derogation of the natural rights of parents, we construe it narrowly as a rebuttable presumption, rather than expansively, as an irrebuttable presumption.”). {¶80} Ohio courts have offered varying explanations ab

2025In re S.H. and Y.H., 2025-Ohio-2338, at ¶ 68 (1st Dist.); see In re L.L., 2020-Ohio-1565, ¶ 16 (3d Dist.) (“Numerous courts, including this one, have determined that R.C. 2151.011(C) creates a presumption of abandonment, which may be rebutted by the parents.”); see also In re Custody of C.E., 2005-Ohio-5913, ¶ 17 (2d Dist.) (“Because the presumption set forth in R.C. 2151.011(C) is in derogation of the natural rights of parents, we construe it narrowly as a rebuttable presumption, rather than expansively, as an irrebuttable presumption.”). {¶80} Ohio courts have offered varying explanations ab

2025In support of a new test, Hawthorne cites the following sentence from our decision in Queen: “[T]he use [of the property] must be ‘continuous’ enough to fairly indicate uninterrupted use.” 2012-Ohio-6291, ¶ 38 (4th Dist.).

2025In re S.H. and Y.H., 2025-Ohio-2338, at ¶ 68 (1st Dist.); see In re L.L., 2020-Ohio-1565, ¶ 16 (3d Dist.) (“Numerous courts, including this one, have determined that R.C. 2151.011(C) creates a presumption of abandonment, which may be rebutted by the parents.”); see also In re Custody of C.E., 2005-Ohio-5913, ¶ 17 (2d Dist.) (“Because the presumption set forth in R.C. 2151.011(C) is in derogation of the natural rights of parents, we construe it narrowly as a rebuttable presumption, rather than expansively, as an irrebuttable presumption.”). {¶80} Ohio courts have offered varying explanations ab

2025In re S.H. and Y.H., 2025-Ohio-2338, at ¶ 68 (1st Dist.); see In re L.L., 2020-Ohio-1565, ¶ 16 (3d Dist.) (“Numerous courts, including this one, have determined that R.C. 2151.011(C) creates a presumption of abandonment, which may be rebutted by the parents.”); see also In re Custody of C.E., 2005-Ohio-5913, ¶ 17 (2d Dist.) (“Because the presumption set forth in R.C. 2151.011(C) is in derogation of the natural rights of parents, we construe it narrowly as a rebuttable presumption, rather than expansively, as an irrebuttable presumption.”). {¶80} Ohio courts have offered varying explanations ab

2024See Fulmer, 117 Ohio St.3d 319 , 2008-Ohio-936 , at ¶ 72 (“[T]he trial judge is in the best position to gauge the evidence before the jury and is provided the discretion to determine whether the evidence adduced at trial was sufficient to require an instruction.”). {¶20} Furthermore, Gochenouer has not shown that an abandonment instruction was required in light of the evidence presented at trial.

2007See, e.g., In re L.D. , Clinton App. No. CA2004-03-007, 2004-Ohio-4000 , at ¶ 21 (that the father stopped by the children services agency once during the period of abandonment and called by telephone three times did not rebut presumption of abandonment); In re Cravens , supra, at ¶ 23 (the father's attempts to schedule visits through children services were not sufficient to rebut presumption of abandonment during period of no contact); In re Katrina T. , Sandusky App. No. S-03-024, 2004-Ohio-3164 , at ¶ 16 (that mother called the caseworker and left messages that she wanted to visit her daught

2003See State v. Thompkins , 78 Ohio St.3d 380 , 1997-Ohio-52 , 678 N.E.2d 541 ; State v. Martin (1983), 20 Ohio App.3d 172 , 485 N.E.2d 717 . {¶ 9} Diederich's seventh and eight assignments of error allege that it was plain error for the trial court to fail to instruct the jury on the defense of abandonment and that trial counsel was ineffective for failing to request an abandonment instruction. {¶ 10} Once the defendant has exhibited the required intent and has performed an overt act toward the commission of the offense, abandonment is no longer a defense.

2003See State v. Thompkins , 78 Ohio St.3d 380 , 1997-Ohio-52 , 678 N.E.2d 541 ; State v. Martin (1983), 20 Ohio App.3d 172 , 485 N.E.2d 717 . {¶ 9} Diederich's seventh and eight assignments of error allege that it was plain error for the trial court to fail to instruct the jury on the defense of abandonment and that trial counsel was ineffective for failing to request an abandonment instruction. {¶ 10} Once the defendant has exhibited the required intent and has performed an overt act toward the commission of the offense, abandonment is no longer a defense.

2003See State v. Thompkins , 78 Ohio St.3d 380 , 1997-Ohio-52 , 678 N.E.2d 541 ; State v. Martin (1983), 20 Ohio App.3d 172 , 485 N.E.2d 717 . {¶ 9} Diederich's seventh and eight assignments of error allege that it was plain error for the trial court to fail to instruct the jury on the defense of abandonment and that trial counsel was ineffective for failing to request an abandonment instruction. {¶ 10} Once the defendant has exhibited the required intent and has performed an overt act toward the commission of the offense, abandonment is no longer a defense.