Adoption of Masa, In re

• Decision Date: 30 April 1986
• Docket Number: No. 84-1359,84-1359
• Citation: 23 OBR 330,492 N.E.2d 140,23 Ohio St.3d 163
• Parties: , 71 A.L.R.4th 295, 23 O.B.R. 330 In re ADOPTION OF MASA.
• Court: Ohio Supreme Court

Page 163

23 Ohio St.3d 163

492 N.E.2d 140, 71 A.L.R.4th 295, 23 O.B.R. 330

In re ADOPTION OF MASA.

No. 84-1359.

Supreme Court of Ohio.

April 30, 1986.

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, 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 iHolcomb [1985], 18 Ohio St.3d 361, 481N.E.2d 613, paragraph four of the syllabus, extended.)

2. The question of whether justifiable cause for failure to pay child support has been proven by clear and convincing evidence in a particular case 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 McDermitt [1980], 63 Ohio St.2d 301, 306, 408 N.E.2d 680 , followed.)

Brian K. Masa, appellee, and Rhonda R. Miller (now Hake) were married on October 6, 1979. One child, Melissa Sue Masa, was born of that marriage on November 11, 1979.

Brian and Rhonda were divorced on September 18, 1981. The domestic relations court, in its decree, awarded custody of the child to the mother, Rhonda, and ordered appellee to pay child support in the amount of one hundred twenty dollars per month. Although appellee was employed at the time of this divorce, he was fired from his job four days later. Appellee was denied unemployment compensation and from September 1981 through December 1981 had no income.

In January 1982, appellee began receiving welfare benefits of eighty-three dollars per month. Appellee did not make any child support payments, but was ordered by the Trumbull County Bureau of Support Enforcement (an arm of the domestic relations court) to report to them biweekly regarding his employment status. Each time, appellee reported that he sought work, but was not able to find a job.

Meanwhile, in December 1982, appellee's former wife married Paul C. Hake, appellant in the instant case.

On March 30, 1983, appellant Hake filed a petition for adoption of Melissa Sue in the Trumbull County Probate Court. In his petition, appellant alleged that appellee had failed without justifiable cause to support his child for a period of one year immediately preceding the filing of the appellant's petition for adoption. It is undisputed that during the period from March 30, 1982 through March 30, 1983 appellee was receiving as his sole income public assistance payments of eighty-three dollars per month. It is also undisputed that during said time appellee made no child support payments.

The probate court held hearings on the necessity of appellee's consent to the adoption on July 6 and July 25, 1983. On September 6, 1983, that court rendered its findings of fact and conclusions of law, concluding that appellee had failed without justifiable cause to provide child support for at least one year preceding the filing of the petition and ordering the adoption to proceed without appellee's consent.

The probate court then held a hearing for the purpose of establishing best interests of the child and, on October 3, 1983, entered an interlocutory order of adoption, to become final on April 3, 1984.

Appellee appealed and the court of appeals reversed the trial court. The appellate court reasoned that because appellee had no employment and had income of only eighty-three dollars a month in general relief, there was justifiable cause for failing to support his child as required by law or judicial decree. The matter was remanded for vacation of the adoption order.

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

Witten & DeMatteis and Debora K. Witten, Niles, for appellant.

Christine B. Legow, Youngstown, for appellee.

CELEBREZZE, Chief Justice.

The question before us is whether appellee had justifiable cause for his failure to support his daughter in the year prior to the filing of this adoption petition, given the fact that his sole income during this period was a minimal welfare payment of eighty-three dollars per month. We answer that question in the affirmative.

Our analysis must begin with the recognition that the right of a natural parent to the care and custody of his children is one of the most precious and fundamental in law. Santosky v. Kramer (1982), 455 U.S. 745, 753, 102 S.Ct. 1388, 1394, 71 L.Ed.2d 599; In re Baby Girl Baxter (1985), 17 Ohio St.3d 229, 479 N.E.2d 257, Celebrezze, C.J., concurring at 235, 479 N.E.2d 257. Adoption terminates those fundamental rights. R.C. 3107.15(A)(1). For this reason, we have held that " * * * [a]ny exception to the requirement of parental consent [to adoption] must be strictly construed so as to protect the right of natural parents to raise and nurture their children." In re Schoeppner (1976), 46 Ohio St.2d 21, 24, 345 N.E.2d 608 .

R.C. 3107.07(A) ¹ provides that a natural parent's consent to the adoption of his child is not required if the court finds that said parent has failed without justifiable cause either to communicate with the child or to provide for the maintenance and support of the child as required by law or judicial decree for a period of at least one year prior to the filing of the petition for adoption. This court construed R.C. 3107.07(A) recently in In re Adoption of Holcomb (1985), 18 Ohio St.3d 361, 481 N.E.2d 613. There we held, at paragraph four of the syllabus, that "[t]he 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 reaching this conclusion, we stated that the petitioners must carry this burden of proof because "[t]he statute is not framed in terms of avoidance, but is drafted to require the petitioner to establish each of his allegations, including * * * lack of justifiable cause." (Emphasis added.) Id. at 368, 481 N.E.2d 613. Accord Santosky v. Kramer, supra, at 747-748, 102 S.Ct. 1391-92. ² This court approved and followed this holding of Holcomb in In re Adoption of Gibson (1986), 23 Ohio St.3d 170, 171-72, 492 N.E.2d 146, 147, decided today.

We find the reasoning of Holcomb equally applicable to the allegation in the instant case of failure to support without justifiable cause. It would be thoroughly inconsistent for us to alter the burden of proof merely because a failure to support without justifiable cause, rather than a failure to communicate, was alleged in the adoption petition now before this court. We therefore hold that pursuant to R.C. 3107.07(A), the party petitioning 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 also that the failure was without justifiable cause.

In the matter before us, appellant has demonstrated appellee's complete failure to make any child support payments. Hence, we must decide whether the evidence demonstrates that appellee's failure to support was unjustified.

The question of whether justifiable cause has been proven by clear and convincing evidence in a particular case 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 McDermitt (1980), 63 Ohio St.2d 301, 306, 408 N.E.2d 680 . Appellant argues that being on welfare does not of itself establish justifiable cause for failure to support one's child. We cannot accept this blanket contention, for it fails to take into account the factual difference between a parent who is unwilling but able to support and a parent who is willing to support but unable to do so.

This court previously focused on this critical distinction in McDermitt, supra. There the natural father earned twenty-five thousand dollars in the year preceding the filing of a petition for the adoption of his son. The probate court concluded that the father's failure to make child support payments during this period was without justifiable cause pursuant to R.C. 3107.07(A). This court upheld that decision and emphasized that " * * * [t]he record is replete with the fact that appellant was financially able to make support payments, but yet he failed to do so." (Emphasis added.) Id. at 306, 408 N.E.2d 680.

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 or go forward with any evidence of justification, obviously the adopting parent has only the obligation of proving failure of support by the requisite standard.

Thus, in accordance with McDermitt, supra, ability to pay is a key factor in determining whether there is justifiable cause for failure to support a child. In the instant case, there was no evidence before the trial court that appellee was financially capable of meeting his child support obligation. Indeed, the amount of appellee's court-ordered monthly support payment was greater than the entire amount of his monthly welfare check. This was appellee's sole income from March 1982 through March 1983 because his documented attempts to find employment had not been successful. Further, Michael DiVencenzo, an employee of the local bureau of support enforcement, testified that it was the bureau's policy not to demand any support payment from those whose only income was the receipt of welfare benefits. Appellee's testimony indicated that he fully understood that once he found work, he would be responsible for his monthly support obligation and for the arrearages that had built up during his period of nonpayment.

Despite the foregoing evidence, the probate court determined that appellee failed...