In re the Adoption of Jonathan Thomas Rouleau Case

• Decision Date: 31 August 1984
• Docket Number: 84-LW-4318,1058
• Parties: In the Matter of the Adoption of Jonathan Thomas Rouleau Case
• Court: Ohio Court of Appeals

In the Matter of the Adoption of Jonathan Thomas Rouleau

No. 1058.

84-LW-4318 (4th)

Court of Appeals of Ohio, Fourth District Ross

August 31, 1984

Ms Jane Spring Martin, Chillicothe, Ohio, for Appellant.

Ms Rita S. Fuchsman, Chillicothe, Ohio, for Appellee.

OPINION

Stephenson J.

This is an appeal from a judgment entered by the Ross County Court of Common Pleas, Probate Division, granting Joseph E Rouleau, stepfather of Jonathan Thomas Rouleau and appellee herein, the right to adopt Jonathan without the consent of Thomas V. Fath, the natural father of Jonathan and appellant herein.

Appellant designates the following assignments of error:

"First Assignment of Error

The Court erred prejudicially by finding that Appellant had failed to provide for the maintenance and support of Jonathan Thomas Fath as required by law for a period of at least one (1) year immediately preceding the filing of the petition for adoption, and that his consent was therefore not required, when such finding was against the manifest weight of the evidence.

Second Assignment of Error

The Court erred prejudicially by finding that the Appellant being the putative father of Johathan Thomas Fath pursuant to his signing the birth certificate as an informant, had failed to care for and support the minor child and that his consent to the adoption was not required pursuant to Ohio Revised Code Section 3107.07 (B), when such finding was against the manifest weight of the evidence."

Appellant and Delma Ann Riley Rouleau were married on June 6, 1972. Two children were born as issue of the marriage: Jason, born December 31, 1972 and Zachary, born September 25, 1975. The parties were divorced on April 28, 1978. The court ordered appellant to pay child support in the amount of $60.00 per week. Jonathan was born on June 19, 1979, approximately 14 months after appellant and Delma Rouleau were divorced. Appellant signed the birth certificate as an informant, naming himself as the child's father. Appellant never initiated legitimation procedures pursuant to R.C. 2105.18, nor was he ordered to make payments for the support of Jonathan pursuant to a R.C. Chapter 3111 paternity proceeding.

At the time of Jonathan's birth, appellant was residing in Cincinnati and Delma was living in Chillicothe. Appellant continued to make payments for the support of Jason and Zachary, but made no payments for Jonathan's support. Appellant exercised visitation rights periodically with all three children and in the first few years of Jonathan's life, appellant spent holidays with the children and Delma. Delma Rouleau never requested that appellant pay any support for Jonathan nor did she present appellant with any medical bills. Appellant sends gifts to all three children at Christmas and Easter and makes occasional phone calls to the children. While exercising visitation, appellant often takes the children to visit appellant's relatives.

Delma married appellee on October 15, 1982. Appellee testified that he gave Delma money to support her family even prior to marrying her and that since the marriage he regularly supported Jonathan. The record further reflects that Delma had a conversation with appellant early in February, 1983. During the conversation, Delma mentioned either that appellee was attempting to adopt Jonathan (Delma's testimony), or that attempts were being made to change Jonathan's name. (appellant's testimony) Appellant asked Delma whether she wanted support for Jonathan and she responded that she did not.

Nevertheless, appellant sent two checks, each in the amount of $15.00 dollars. The checks were dated February 6 and February 12 and were designated "Jonathan Support" in the space marked "Memo". Delma received the checks but did not cash them. Instead, she returned them to appellant.

On February 22, 1983, appellee filed the Petition For Adoption. On the form denominated "Person(s) Whose Consent Is Required But Have Not Consented", appellant's name was listed. On this form appellee alleged that appellant's consent was not required pursuant to R.C. 3107.07(A) as he has failed without justifiable cause to provide for the maintenance and support of the minor for a period of at least one year immediately preceeding the filing of the adoption petition.

On March 25, 1983, appellant filed an objection to the proposed adoption and, denying that his consent was not required, requested a hearing. A hearing was held on April 14, 1983. The court held that appellant's consent was not required under R.C. 3107.07(A), and alternatively under R.C. 3107.07(B). The final order of adoption was journalized on April 14, 1983, apparently after the secondary hearing on the merits of the adoption.

The following statutes, in the parts here pertinent, are relevant to this appeal:

"3107.06 Consents required

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;

* * *

(F) Subject to division (B) of section 3107.07 of the Revised Code, the putative father, if he:

(1) Is alleged to be the father of the minor in proceedings brought under Chapter 3111. of the Revised Code at any time before the placement of the minor in the home of the petitioner;

(2) Has acknowledged the child in a writing sworn to before a notary public at any time before the placement of the minor in the home of the petitioner;

(3) Has signed the birth certificate of the child as informant as provided in section 3705.14 of the Revised Code;

* * *

3107.07 Consents not required

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 preceeding either the filing of the adoption petition or the placement of the minor in the home of the petitioner.

(B) The putative father of a minor if the putative father fails to file an objection with the court, the department of public welfare, or the agency having custody of the minor as provided in division (F) (4) of section 3107.07 of the Revised Code, or files an objection with the court, department, or agency and the court finds, after proper service of notice and hearing, that he is not the father of the minor, or that he has willfully abandoned or failed to care for and support the minor, or abandoned the mother of the minor during her pregnancy and up to the time of her surrender of the minor, or its placement in the home of the petitioner, whichever occurs first;

* * * "

Prior to the amendment of the adoption statutes in 1976 in Am. Sub. House Bill 456 to their substantially present form, former R.C. 3107.06 provided, as to a child born out of wedlock, that the mother was considered the sole parent and could alone give consent to an adoption. See Am. Sub. Senate Bill 145 (1975). The evident purpose of the 1976 legislation was to give statutory recognition to rights of putative fathers in certain circumstances by the enactment of R.C. 3107.06(F) to comply with emerging recognition of constitutional rights of such putative fathers by requiring consent of such persons under the circumstances therein enumerated. See Stanley v. Illionis (1972), 405 US 645.

Inasmuch as R.C. 3107.06 and 3107.07 were enacted at the same time they are in para materia, and that R.C. 3107.06(F) and R.C. 3107.07(B), both relating to same subject matter, was intended to apply and control with respect to rights of putative fathers. Accordingly, it logically follows that the more strict provisions in R.C. 3107.07(A) are intended to apply only to those persons enumerated in R.C. 3107.06(B). This interpretation of the statute appears consistent with the court below, although that court found, by its journal entries, that consent was not necessary under both R.C. 3107.07(A) and 3107.07(B).

In light of the above we consider the assignments of error. Although we have concluded R.C. 3107.07(B) is controlling, the parties have briefed and considered the applicability of R.C. 3107.07(A) under the first assignment of error. Since such section was an alternative ground adopted by the court, we assume arguendo such section applicable, and review such claimed error on its merits.

In the first assignment of error appellant argues that the court...