Adoption of Bovett, In re

• Decision Date: 02 December 1987
• Docket Number: No. 86-1995,86-1995
• Citation: 33 Ohio St.3d 102,515 N.E.2d 919
• Parties: In re ADOPTION OF BOVETT.
• Court: Ohio Supreme Court

Page 102

33 Ohio St.3d 102

515 N.E.2d 919

In re ADOPTION OF BOVETT.

No. 86-1995.

Supreme Court of Ohio.

Dec. 2, 1987.

Syllabus by the Court

1. Pursuant to R.C. 3107.07(A), the petitioner for adoption has the burden of proving, by clear and convincing evidence, both (1) that the natural parent has failed to support the child for the requisite one-year period, and (2) that this failure was without justifiable cause. (In re Adoption of Masa [1986], 23 Ohio St.3d 163, 23 OBR 330, 492 N.E.2d 140, paragraph one of the syllabus, followed.)

2. Once the petitioner has established, by clear and convincing evidence, that the natural parent has failed to support the child for at least the requisite one-year period, the burden of going forward with the evidence shifts to the natural parent to show some facially justifiable cause for such failure. The burden of proof, however, remains with the petitioner.

3. Under R.C. 3107.07(A), the probate court shall determine the issue of justifiable cause by weighing the evidence of the natural parent's circumstances for the statutory period for which he or she failed to provide support. The court shall determine whether the parent's failure to support the child for that period as a whole (and not just a portion thereof) was without justifiable cause.

4. The question of whether a natural parent's failure to support his or her child has been proven by the petitioner by clear and convincing evidence to have been without justifiable cause is a determination for the probate court, and will not be disturbed on appeal unless such determination is against the manifest weight of the evidence. (In re Adoption of Masa [1986], 23 Ohio St.3d 163, 23 OBR 330, 492 N.E.2d 140, paragraph two of the syllabus, followed.)

Appellee, William B. Reily, and Melanie A. Bovett are the natural parents of William B. Reily, Jr., a.k.a. William B. Bovett, a minor born in Clearwater, Florida on March 22, 1982. Appellee and Mrs. Bovett were married at the time of William, Jr.'s birth, but the marriage was dissolved on June 30, 1983 by decree of a Florida court. The decree granted joint custody of William, Jr. to his parents, with the proviso that Mrs. Bovett "shall be the primary residential parent" and that appellee "shall pay * * * $200 per month child support until the child attains the age of 2 years, at which time [he] shall pay * * * $220 per month * * *."

On May 12, 1984, Melanie Bovett married the appellant, Steven C. Bovett. The couple now reside in Worthington, Ohio, together with William, Jr. On September 23, 1985, appellant filed a petition for the adoption of William, Jr. Appellee, who still lives in Florida, filed an answer and a hearing was held before a referee. The referee found that appellee had made no child support payments from either late August or early September 1984 through the date the petition was filed. The referee further found that appellee was gainfully employed from September 22, 1984 through May 31, 1985 at an annual salary of $22,000; that he was unemployed from June 1, 1985 through August 31, 1985; but that he became employed again on September 1, 1985 at an annual salary of $15,000. Based upon his findings, the referee recommended that pursuant to R.C. 3107.07(A), appellee's consent was not required for appellant's adoption of William, Jr. because his failure to pay child support was "without justifiable cause."

Without specifically adopting the referee's report, the probate court agreed that under R.C. 3107.07(A), appellee's consent for the adoption was not required. The court of appeals reversed and remanded, however, holding that the probate court erred in making its determination on the issue of justifiable cause by focusing upon the entire year as a whole, during which appellee made no support payments, rather than upon the three months during which he was unemployed. The appellate court thus remanded the cause to the probate court for a determination of whether appellee's failure to pay support during his period of unemployment was without justifiable cause.

The cause is before this court pursuant to the allowance of a motion to certify the record.

Brenda B. Alleman, Columbus, for appellant.

John T. Conroy, Columbus, for appellee.

HERBERT R. BROWN, Justice.

This case calls upon us to again interpret and refine the application of R.C. 3107.07(A). That section provides that the consent of a natural parent for the adoption of his or her minor child is not required "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 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 * * *." (Emphasis added.) For the following reasons, we reverse the judgment of the court of appeals and reinstate the judgment of the probate court.

I

In In re Adoption of Masa (1986), 23 Ohio St.3d 163, 23 OBR 330, 492 N.E.2d 140, paragraph one of the syllabus, we held:

"Pursuant to R.C. 3107.07(A), the petitioner for adoption has the burden of proving, by clear and convincing evidence, that the natural parent has failed to support the child for the requisite one-year period and that this failure was without justifiable cause. (In re Adoption of Holcomb [1985], 18 Ohio St.3d 361 , paragraph four of the syllabus, extended.)"

Appellant urges us to reconsider the wisdom of Masa, contending that it is unfair for a petitioner for adoption to bear the burden of proving that the natural parent's failure to support the child was without justifiable cause. Appellant argues that because the natural parent is in a better position than the petitioner to know of his or her financial circumstances, the natural parent should bear the burden of proving that such failure was justifiable.

In Masa, supra, we stated:

"In Santosky v. Kramer (1982), 455 U.S. 745, 747-748 [102 S.Ct. 1388, 1391-92, 71 L.Ed.2d 599], the court held that '[b]efore a State may sever completely and irrevocably the rights of parents in their natural child, due process requires that the State support its allegations by at least clear and convincing evidence.' (Emphasis added.) The burden of proof was clearly placed on the state in Santosky. Likewise, R.C. 3107.07(A) places on the petitioner for adoption the burden of proving his allegations of failure to support and lack of justifiable cause. Any change in this burden of proof could offend the Due Process Clause, for whether it is the state or a petitioner, the party bringing the action seeks to terminate fundamental parental rights and such party must support his allegations. For this reason we stated in In re Adoption of Holcomb (1985), 18 Ohio St.3d 361, 368 , that '[n]o burden is to be placed upon the non-consenting parent to prove that his failure to communicate was justifiable.' " (Emphasis added.) Id. at 166, 23 OBR at 332, 492 N.E.2d at 142, fn. 2.

We find this reasoning to be as persuasive today as when it was first written. Therefore, we decline appellant's invitation to overrule Masa. Accordingly, we reemphasize that pursuant to R.C. 3107.07(A), the petitioner for adoption has the burden of proving, by clear and convincing evidence, both (1) that the natural parent has failed to support the child for the requisite one-year period, and (2) that this failure was without justifiable cause. ¹

II

Appellant's concern with the placement of the burden of proof in Masa indicates to us that there may be some misunderstanding of the law of that case among the Ohio bench and bar. As we explained in Masa:

"Lest one may think we are placing an unfair burden on the adopting parent, it should be pointed out that the adopting parent has no legal duty to prove a negative. If the natural parent does not appear to go forward with any evidence of justification, obviously the adopting parent has only the obligation of proving failure of support by the requisite standard." (Emphasis added.) Id. at 167, 23 OBR at 333, 492 N.E.2d at 143.

Therefore, a natural parent may not simply remain mute while the petitioner is forced to demonstrate why the parent's failure to provide support is unjustifiable. Rather, once the petitioner has established, by clear and convincing evidence, that the natural parent has failed to support the child for at least the requisite one-year period, the burden of going forward with the evidence is on the natural parent to show some facially justifiable cause for such failure. The burden of proof, however, remains with the petitioner.

III

In making its determination of justifiable cause, the probate court in the case sub judice focused upon appellee's circumstances during the entire year during which he failed to make support payments. After finding that appellee was employed for nine of the twelve months during that year, and that his salary for eight of those months was $22,000 per year, the court concluded that appellee had "willfully failed to support the child and that he displayed his willful intent by failing to send any support during the one year period prior to the filing of this action although he was gainfully employed during that time." ²

The court of appeals below maintains that once appellee had come forward with evidence showing that he was unemployed for three of the twelve months, the probate court should have looked only at the evidence of his financial circumstances during that period of unemployment, in order to determine whether his failure to provide support during that period was justifiable. As the court of appeals held:

"If, during any part of the year prior to the filing of the adoption petition, the nonsupporting parent had justifiable cause for not paying support, he is not barred from objecting to the adoption." (Emphasis added.)

We disagree with the court of appeals' interpretation...