Adoption of Hupp, Matter of

• Decision Date: 30 December 1982
• Citation: 9 Ohio App.3d 128,458 N.E.2d 878,9 OBR 192
• Parties: , 9 O.B.R. 192 In re ADOPTION OF HUPP et al.
• Court: Ohio Court of Appeals

Page 128

9 Ohio App.3d 128

458 N.E.2d 878, 9 O.B.R. 192

In re ADOPTION OF HUPP et al.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

Dec. 30, 1982.

Syllabus by the Court

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

2. Failure by a parent to communicate with his or her child is sufficient to authorize adoption without that parent's consent, only if it is a complete failure to communicate, in the nature of a complete abandonment of current interest in that child.

3. Significant interference by a custodial parent with communication between the non-custodial parent and their child, or significant discouragement by the custodial parent of such communication, constitutes justifiable cause for the non-custodial parent's failure to communicate with that child, if it demonstrates that the failure to communicate was not voluntary and intentional.

4. Absent statutorily prescribed parental consent for adoption of a minor child, the probate court lacks jurisdiction to consider the best interests of the child for a proposed adoption or to grant such an adoption petition.

Charles S. Tricarichi, Cleveland, for appellant Dale Hupp.

James J. Schneider, Cleveland, for appellee Bruce Grubaugh.

MARKUS, Judge.

Defendant-father appeals from the probate court decision that his children's stepfather could adopt his two minor children without his consent. ¹ The father challenges the probate court's ruling that he had failed to communicate with his children without justifiable cause, so that his consent was no longer required for the adoptions pursuant to R.C. 3107.07(A). We agree with the father's contentions, and we conclude that the stepfather's adoption petition should have been dismissed for lack of jurisdiction absent the father's consent. Therefore, we reverse.

I

Defendant and his former wife married in 1965; their son and daughter were born during that marriage. The marriage was dissolved in 1976. With the agreement of the parties, the wife was awarded custody of their two children, the father had undefined visitation rights, and he was required to pay $50 per month child support. After the dissolution, defendant spent substantial time with his ex-wife and their children, until his ex-wife met and married the petitioner in this case in 1977. Defendant paid the prescribed child support during part of that time, and that amount was later increased by $10 per month to cover arrearages for payments he had missed. During the year preceding this action, all support and arrearage payments were deducted from his salary on a regular basis.

After petitioner married defendant's ex-wife, defendant rarely saw his children. Defendant's ex-wife and her new husband admitted that defendant sent one child a card in 1978, attempted unsuccessfully to see his children in December 1979, and sent both children small money order gifts in 1980. Defendant testified that he continued to send birthday cards and money to the children, but that he had not seen them because his ex-wife and petitioner had turned the children against him. Defendant's ex-wife acknowledged that she did not want the defendant to see their children and that she threatened to seek an order increasing this child support payments if he attempted to see them.

Petitioner filed this adoption proceeding on December 24, 1980, and claimed that defendant had lost his right to object because he failed to communicate with his children without justifiable cause during the preceding year. R.C. 3107.06 provides in pertinent part:

"Unless consent is not required under section 3107.07 of the Revised Code, a petition to adopt a minor may be granted only if written consent to the adoption has been executed by all of the following:

"(A) The mother of the minor;

"(B) The father of the minor, if the minor was conceived or born while the father was married to the mother, if the minor is his child by adoption, or if the minor has been established to be his child by a court proceeding;"

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 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 the filing of the adoption petition * * *."

The probate court apparently determined that defendant had not failed "to provide for the maintenance and support of" his two children. But the court ruled that defendant had failed "to communicate" with his children "without justifiable cause" for the statutory period, so his consent to petitioner's adoption of the children was not required.

II

Defendant-father assigns three errors, which are interrelated, so we shall consider them together:

"I. The trial court erred in its determination as to what constitutes a 'justifiable cause' for failure to communicate with minor children under Ohio Revised Code Section 3107.07(A).

"II. The trial court erred in its determination as to what constitutes 'a failure to communicate' under Ohio Revised Code Section 3107.07(A).

"III. The trial court erred in refusing to dismiss the adoption petition for want of a necessary consent."

In general, the provisions of R.C. 3107.07 "must be strictly construed so as to protect the rights of natural parents to raise and nurture their children," since adoption severs completely the relationship between the children and their natural non-custodial parent. In re Lindley (March 20, 1980), Cuyahoga App. No. 40333, unreported; In re Harshey (1974), 40 Ohio App.2d 157, 318 N.E.2d 544 ; In re Schoeppner (1976), 46 Ohio St.2d 21, 345 N.E.2d 608 (construing former R.C. 3107.06[B], the predecessor of R.C. 3107.07[A] ). The fundamental interest of natural parents in the care, custody, and management of their children is constitutionally protected. Santosky v. Kramer (1982), 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599.

The provisions of R.C. 3107.07(A), which permit adoption without parental consent in specified circumstances, replaced related provisions in former R.C. 3107.06(B)(4) in 1977. The previous statute authorized adoption without consent by a parent who "willfully failed to properly support and maintain the child for a period of more than two years immediately preceding the filing of the petition." The previous statute did not provide that a parent could lose the right to object to an adoption if that parent failed to communicate with the child. The newer provisions of R.C. 3107.07(A) added that second basis for the forfeiture of a parent's right to object, while reducing the time when the forfeiture would result for either reason from two years to one year. ²

Counsel have cited no Ohio cases and we have found none which define "failure to communicate" for the purposes of this statute. Defendant-father cites an Alaska Supreme Court decision that "sending presents, cards, and letters" constituted acts which "communicate meaningfully," so a non-custodial parent retained his right to object to adoption under the Alaskan adoption statute. In re Adoption of K.M.M. (Alaska 1980), 611 P.2d 84. ³ The Ohio statute refers to a parent's failure "to communicate," with no modifying word or phrase to describe the nature of that communication.

We construe the Ohio statute to allow adoption without parental consent because the parent has failed to communicate, only if there has been a complete failure to communicate, in the nature of a complete abandonment of current interest in the child. Physical visitation is not necessary to preserve a parent's interest and a parent's right to retain parental status. The legislature did not describe that abandonment of parental status as a failure "to communicate" meaningfully, significantly, or regularly. We should not add descriptive adverbs which are absent from the legislative language. We should not interpret the plain legislative language to limit acceptable forms of communication, particularly when we are obliged to construe that legislative language strictly against any claim that parental rights have been abandoned or forfeited.

In this case, it is undisputed that defendant-father was providing the full child support agreed upon and ordered, that he sent his children gifts a few days before the adoption petition was filed, and that he tried to visit them precisely one year before the petition was filed. The father testified that he sent each of the children birthday cards during the year preceding the adoption petition. The children's mother denied recollection of those cards without denying that they were received. In view of our interpretation of R.C. 3107.07(A), a finding that this father "failed * * * to communicate" with his two children for the year preceding the adoption petition is contrary to the manifest weight of the evidence. Pursuant to our authority under App.R. 12(C), we conclude that petitioner did not show this father had failed to communicate, so as to lose his parental rights regarding his children's adoption.

Further, we find that petitioner failed to demonstrate that the father's allegedly inadequate communication was "without justifiable cause." The requirement in R.C. 3107.07(A) that a failure "to communicate" must be "without justifiable cause" is equivalent in meaning and effect to the requirement in former R.C. 3107.06(B)(4), that the parent "willfully failed" to act in a manner which avoids forfeiture of parental rights over adoption. In re Adoption of Kisel (May 24, 1979), Cuyahoga App. No. 38742, unreported, at fn. 2. A non-custodial parent "willfully failed" to provide maintenance...