Adoption of Holcomb, In re, 84-1345

• Decision Date: 07 August 1985
• Docket Number: 84-1755,No. 84-1345,84-1345
• Parties: , 18 O.B.R. 419 In re ADOPTION OF HOLCOMB et al. In re ADOPTION OF BRADFORD et al.
• Court: Ohio Supreme Court

Page 361

18 Ohio St.3d 361

481 N.E.2d 613, 18 O.B.R. 419

In re ADOPTION OF HOLCOMB et al.

In re ADOPTION OF BRADFORD et al.

No. 84-1345, 84-1755.

Supreme Court of Ohio.

Aug. 7, 1985

Syllabus by the Court

1. R.C. 3107.07(A) authorizes the adoption of a minor child without the consent of a parent who has failed without justifiable cause to communicate with that child for a period of at least one year immediately preceding the filing of the adoption petition.

2. Pursuant to the explicit language of R.C. 3107.07(A), failure by a parent to communicate with his or her child is sufficient to authorize adoption without that parent's consent only if there is a complete absence of communication for the statutorily defined one-year period.

3. Significant interference by a custodial parent with communication between the non-custodial parent and the child, or significant discouragement of such communication, is required to establish justifiable cause for the non-custodial parent's failure to communicate with the child. The question of whether justifiable cause exists in a particular case is a factual determination for the probate court and will not be disturbed upon appeal unless such determination is unsupported by clear and convincing evidence.

4. 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. (In re Adoption of McDermitt [1980], 63 Ohio St.2d 301, 408 N.E.2d 680 modified.)

Two cases have been consolidated herein because they raise a common issue.

In case No. 84-1345, Edmund H. Holcomb (hereinafter "Holcomb") and respondent-appellee, Gloria J. Holcomb (hereinafter "respondent"), were married on October 5, 1968. Two children, Edmund Brian and Tara J., were born of the marriage prior to its termination by divorce on January 20, 1978. Respondent was granted custody of the two minor children. Holcomb was given visitation rights and ordered to pay child support. Respondent and her children were residing in California at the time of the divorce, but returned to Butler County, Ohio, during November 1978.

In April 1980, respondent and Holcomb filed an agreed entry providing that Holcomb be granted extended visitation privileges for the ensuing summer. In June 1980, however, respondent, without Holcomb's knowledge or consent, moved back to California with the children. Respondent subsequently informed Holcomb of her actions but refused to furnish her new address and telephone number. Holcomb then hired a private investigator who, upon determining respondent's whereabouts, assisted Holcomb in returning the children to Ohio.

On August 12, 1980, Holcomb filed a motion for change of custody which was granted on October 14 of that same year. Respondent was served by publication, as she had moved from her previous California address.

During the next three years, respondent and Holcomb engaged in a protracted game of avoidance or, as characterized by the court below, "hide-and-seek." Respondent testified that, although she had failed to actually communicate with the children since June 1981, her many attempts at communication were consistently thwarted by Holcomb who allegedly prevented the children from contacting her. Respondent claimed that she did not disclose her address and telephone number in order to avoid harassment by Holcomb. Respondent insisted that Holcomb could have contacted her through her parents, who knew of her whereabouts at all times. Respondent further testified that Holcomb and his new wife petitioner-appellant, Margaret L. Holcomb (hereinafter "petitioner"), moved shortly after receiving custody of the children, obtained an unlisted telephone number, and refused to give their number or address to respondent or her parents. Moreover, respondent testified that she communicated with her children until June 1981, by sending letters to an acquaintance, who then had the letters delivered to the children at school. After June 1981, respondent stated that she had no means of communication with the children because she did not know their address or telephone number. Respondent's mother testified that respondent sent numerous presents and letters for the children to her, hoping that the mother could locate the children and deliver these items. The mother apparently was unsuccessful in her efforts. In June 1982, respondent made a final, futile attempt to locate the children by returning to Ohio and driving around neighborhoods in which they supposedly lived and by trying to follow her former husband home from work.

Petitioner and Holcomb, conversely, denied any allegations that they prevented respondent from communicating with her children. Petitioner and Holcomb admitted that they did not inform respondent or her parents of their new residential address or unlisted phone number, but stated that respondent knew where they worked and could have contacted them at any time to ascertain where the children were living. Petitioner and Holcomb depicted respondent as a person loathe to either communicate with her children or disclose her whereabouts due to a suit pending against her for $5,000 relating to their custody problems.

On August 16, 1982, petitioner and Holcomb filed in the Probate Division of the Court of Common Pleas of Butler County a petition for adoption of the two children. Respondent was again served by publication because, as sworn by petitioner, respondent's address could not be ascertained with reasonable diligence. After a hearing on September 27, 1982, which respondent did not attend, the petition was granted.

On July 18, 1983, respondent filed a motion in the probate court to set aside the final order of adoption on the grounds that she was entitled to receive actual notice of the adoption proceedings, that she failed to receive such notice, and that her phone number and address could easily have been ascertained by contacting her parents. A hearing on the motion was held and, in an entry filed on August 31, 1983, the court concluded that although service had been improper, respondent's consent to the adoption was not required because she had failed to communicate with the children for at least one year prior to the filing of the petition for adoption. The court held that the failure to communicate was without justifiable cause and entered a second final order of adoption in favor of the petitioner.

On appeal, the Court of Appeals for Butler County held that respondent had justifiable cause for her failure to communicate, thereby necessitating her consent to the adoption. The court of appeals reversed and remanded the cause to the probate court for further proceedings.

In case No. 84-1755, respondent-appellant, Jonathan D. Bradford (hereinafter "respondent"), and Debra E. Bragg, the present wife of petitioner-appellee, Gary D. Bragg (hereinafter "petitioner"), were married in 1974. They were divorced and remarried two times thereafter. Two children, John Charles and Angela Dawn, were born of these marriages prior to the final divorce on March 5, 1980. After the final divorce, Debra was awarded custody of the children. Respondent was granted visitation rights.

Debra then entered the Ohio State Highway Patrol Academy. During part of this time period, the children apparently lived separately with other relatives, including respondent's mother. After graduating from the academy, Debra was stationed in Jackson, Ohio. She lived there with her children from February 1981 until January 1982, when she married petitioner. The Braggs continued to live in Jackson with Debra's two children.

On May 3, 1983, petitioner filed in the Probate Division of the Court of Common Pleas of Jackson County a petition to adopt the two children. An evidentiary hearing was held on July 19, 1983. Respondent appeared with counsel and litigated the issue of whether his consent to the adoption, which thus far had been withheld, was required.

A careful review of the transcript of this hearing indicates indisputably that respondent had no communication with his children for the one-year period preceding May 3, 1983. Both sides readily admit that respondent's last visit with his children, prior to the filing of the adoption petition, occurred on April 1, 1981. The record also reveals that between April 1, 1981 and the filing of the petition, respondent made only one clear attempt to contact his children. In December 1982, Debra and the children were visiting an aunt in respondent's home town of Manchester, Ohio. Respondent became aware of the visit and inquired by telephone whether he could see the children. Debra informed him that they were ready to return to Jackson and therefore would be unable to see him. It is uncontradicted that except for this single telephone call, respondent never thereafter attempted to communicate with his children or to exercise his visitation rights prior to the filing for adoption. ¹

Respondent, while admitting his failure to communicate with the children, testified that he had justifiable cause for the non-communication. Respondent stated that Debra had engaged in conduct designed to deny visitation and prevent communication with the children. Specifically, respondent testified that Debra threatened to use her position as a highway patrol officer to have him arrested if he attempted to exercise his visitation privileges.

Debra denied threatening respondent with arrest for attempted visitation and testified that she considered that alternative only as a possible response to respondent's failure to pay child support. She also testified that respondent had made no attempt to communicate with the children except for the unannounced and unexpected telephone call in December 1982. Furthermore, she disavowed ever denying respondent visitation with his children, except for the...