In re The: Case
| Decision Date | 09 January 2002 |
| Docket Number | 01CA23,02-LW-0072 |
| Citation | 2002 Ohio 117 |
| Parties | IN THE MATTER OF THE: Case |
| Court | Ohio Court of Appeals |
COUNSEL FOR APPELLANT: Robin A. Bozian, Southeastern Ohio Legal Services, 427 Second Street, Marietta, Ohio 45750
COUNSEL FOR APPELLEE: Nancy E. Brum, Atkinson & Burton, 312 Putnam Street, P.O. Box I, Marietta, Ohio 45750-0680
This is an appeal from a Washington County Common Pleas Court Probate Division, judgment. The court determined that Caitlyn Marie Payne's adoption could proceed without the consent of her mother, Melissa Payne, appellant herein. The following errors are assigned for our review:
Caitlyn Marie Payne was born January 2, 1997, and is the natural daughter of appellant and Mitchell J. Potts. Seven months after her birth, Washington County Children Services (WCCS) removed Caitlyn from the home and placed her with her maternal great aunt, Brenda Way, petitioner below and appellee herein.
On May 27, 1998, appellee filed a petition for custody of her great niece. The trial court granted the petition on October 30 1998, and gave appellant visitation with her daughter one day per week. On July 1, 1999, the court terminated appellant's visitation rights, although it is unclear why that occurred.
On May 16, 2000, appellee filed a petition to adopt Caitlyn. The petition alleged, inter alia, that the natural parents' consent was not required because they had both "failed without justifiable cause" to communicate with their daughter, or to provide for her maintenance and support, for a period of at least one year before the filing of the petition.
Subsequently, Mitchell Potts filed a written consent to his daughter's adoption. The matter then came on for a hearing on September 20, 2000 to determine whether appellant's consent was required. During the proceedings it was uncontroverted that appellant lives on Social Security (SSI) benefits that she receives due to some undisclosed disability. As a result, appellant provides no financial support or other in-kind support for her daughter. Indeed, the Juvenile Court had previously relieved appellant of any support obligation as a result of her lack of income.
The evidence also reveals that appellant had neither seen nor spoken with her daughter since May 15, 1999. Appellant testified, however, that she called her aunt (appellee) frequently and tried to see, or at least to speak with, Caitlyn. Appellant asserts that her efforts were always rebuffed. Appellant's testimony was corroborated by her boyfriend, Donald Grim, who testified that appellant tried unsuccessfully to speak with appellee "about a half dozen or so" times. Appellee denied, however, that she received these calls and further denied that she prevented any visitation between appellant and Caitlyn.
The trial court issued its judgment on September 5, 2001, and determined that appellant's consent to the adoption was not required. The court opined that, although visitation rights had been terminated, appellant could have written a letter or sent a card to Caitlyn, but failed to do so. Further, although appellant was under no court order to pay child support, the court found that appellant had a common-law duty to support her daughter and could have "provide[d] some nonmonetary assistance" but, again, failed to do so. The court thus held that appellant had unjustifiably failed to support or to communicate with Caitlyn, and that the adoption proceeding could go forward without appellant's consent. This appeal followed.[1]
We begin our analysis of this case from the premise that parents have a fundamental liberty interest in the care, custody and management of their children. Troxel v. Granville (2000), 530 U.S. 57, ___, 147 L.Ed.2d 49, 56, 120 S.Ct. 2054, 2060; Santosky v. Kramer (1982), 455 U.S. 745, 753, 71 L.Ed.2d 599, 606, 102 S.Ct. 1388, 1394-1395. The right to raise one's child is an essential and basic civil right in this country. In re Hays (1997), 79 Ohio St.3d 46, 48, 679 N.E.2d 680, 682-683; In re Murray (1990), 52 Ohio St.3d 155, 157, 556 N.E.2d 1169, 1171. An adoption, obviously, terminates that right. In re Adoption of Greer (1994), 70 Ohio St.3d 293, 298, 638 N.E.2d 999, 1003; also see R.C. 3107.15(A) (1). Therefore, unless a specific statutory exemption applies, children cannot be adopted without the consent of their natural parents. See McGinty v. Jewish Children's Bur. (1989), 46 Ohio St.3d 159, 161, 545 N.E.2d 1272, 1274; also see R.C. 3107.06 (A).
One such exception to that rule is set forth in R.C. 3107.07(A) which provides:
"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 either the filing of the adoption petition or the placement of the minor in the home of the petitioner."
The party that seeks to adopt a child without parental consent must prove, by clear and convincing evidence, both (1) that the natural parent failed to support or to communicate with the child for the requisite one-year time period, and (2) that the failure was without justifiable cause. In re Adoption of Bovett (1987), 33 Ohio St.3d 102, 515 N.E.2d 919, at paragraph one of the syllabus; In re Adoption of Masa (1986), 23 Ohio St.3d 163, 492 N.E.2d 140, at paragraph one of the syllabus.
A finding that parental consent is not necessary for an adoption will not be disturbed on appeal unless it is against the manifest weight of the evidence. See Bovett, supra at paragraph four of the syllabus; Masa, supra at paragraph two of the syllabus. In other words, if the trial court's finding is supported by some competent credible evidence, that decision will not be reversed on appeal. See Shemo v. Mayfield Hts. (2000), 88 Ohio St.3d 7, 10, 722 N.E.2d 1018, 1022; Vogel v. Wells (1991), 57 Ohio St.3d 91, 96, 566 N.E.2d 154, 159; C.E. Morris Co. V. Foley Construction Co. (1978), 54 Ohio St.2d 279, 376 N.E.2d 578, at the syllabus.
We further acknowledge that the trial court, as trier of fact, is obviously in a better position than the appellate court to view the witnesses and to observe their demeanor, gestures and voice inflections, and to use those observations in weighing the credibility of the proffered testimony. See Myers v. Garson (1993), 66 Ohio St.3d 610, 615, 614 N.E.2d 742, 745; Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77, 80, 461 N.E.2d 1273, 1276. Accordingly, we defer to the trial court on issues of weight and credibility. Moreover, a trial court is free to believe all, part or none of the testimony of each witness who appears before it. Rogers v. Hill (1998), 124 Ohio App.3d 468, 470, 706 N.E.2d 438, 439; Stewart v. B.F. Goodrich Co. (1993), 89 Ohio App.3d 35, 42, 623 N.E.2d 591, 596. It is with these principles in mind that we turn our attention to the merits of appellant's three assignments of error.
We consider the first and second assignment of error together as they both address the trial court's finding that appellant was "not justified in failing to support" her daughter. Appellant argues that the trial court erred in this regard. We agree.
No question exists in the cause sub judice that appellant failed to provide any monetary support or in-kind support for Caitlyn. The evidence on this point is uncontroverted. The real issue, however, is whether that failure was justifiable.
Once it is established that a natural parent has failed to support her child, the burden of going forward with the evidence shifts to that parent to show some facially justifiable reason for the failure. Bovett, supra at 104, 515 N.E.2d at 922. A parent can meet that burden by showing that they are unemployed and have no income. See e.g. In re Adoption of Kessler (1993), 87 Ohio App.3d 317, 323, 622 N.E.2d 354, 358; In re Adoption of Howell (1991), 77 Ohio App.3d 80, 97, 601 N.E.2d 92 103. In the instant case, appellant's sole source of income is her $512 monthly SSI benefit. She has no job and earns no other income.[2] It is axiomatic that a natural parent's failure to support her child is justified when that parent's financial condition is such that she is unable to support her child. 2 American Jurisprudence 2d (1994) 997, Adoption, § 88. This is a sufficient basis on which to establish a justifiable reason for appellant's failure to support her daughter.[3]
Our conclusion is buttressed by another consideration. The evidence was uncontroverted, and the trial court so found that a December 29, 1997 Juvenile Court order relieved appellant of her child support obligation. The court recognized that appellant had no job and subsisted solely on SSI benefits. We believe that appellant could have reasonably assumed that this order...
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