Johnson v. Varney

• Decision Date: 19 May 1965
• Docket Number: No. 38923,38923
• Parties: , 31 O.O.2d 316 JOHNSON, Appellant, v. VARNEY, Appellee. In re Adoption of Johnson.
• Court: Ohio Supreme Court

Page 161

2 Ohio St.2d 161

207 N.E.2d 558, 31 O.O.2d 316

JOHNSON, Appellant, v. VARNEY, Appellee.

In re Adoption of Johnson.

No. 38923.

Supreme Court of Ohio.

May 19, 1965.

Syllabus by the Court

1. A mother who does not have custody of her child has a duty to give some personal care and attention to that child even though the child is being properly supported and maintained by his father.

2. Where a mother knows of the duty to give some personal care and attention to her child, is able to do so, and completely fails to give any care or attention to such child, such failure may justify a finding that she willfully failed to properly 'maintain the child' within the meaning of those words as used in Section 3107.06(B)(4), Revised Code.

On June 22, 1963 the petitioner filed a petition in the Probate Court of Guernsey County for adoption of her stepson, Paul Allen Johnson, hereinafter referred to as the child. He was born in 1952, the son of Paul Edward Johnson, hereinafter referred to as the father, and Betty McGinley, now Betty Varney, appellee, hereinafter referred to as the natural mother.

In May 1954 the natural mother abandoned the child to the father, and the child was then sent to live with the father's parents in Guernsey County, staying with them until August 31, 1959. The father married the petitioner in December 1958, and on August 31, 1959 he brought the child to live with him and petitioner. The child lived with his father and petitioner in their home until the father's death on December 31, 1962, and the child has continued to live with petitioner in the same home until the present time.

From May 1954 until the hearing in August 1963 the natural mother was not requested to contribute nor did she ever contribute financially to the support of the child.

There is no dispute about any of the foregoing facts as found by the Probate Court.

The natural mother testified that she was first married in 1946, when she was 15 years of age, to one McGinley; that she and McGinley had two children, a son born in 1947 and a daugher born in 1949; that the son has always lived with her, but the daughter is with her sister and has never lived with her; that between 1951 and 1954 (during which time the child was born) she lived with the father of the child sought to be adopted herein; that she was not divorced from McGinley until November 1959, when she married her present husband, one Varney; that at the time of the hearing in August 1963 she had three children by her present husband, Varney, the oldest of whom was six years old, and that she and Varney, their three children, and her oldest son by McGinley were living in California in a three-bedroom, two-bath home.

There is also evidence in the record to sustain the following findings of fact by the Probate Court:

'9. That from May 1954 throught 1960 * * * [the natural mother] visited * * * [the child] once a year, never spending more than a part of a day with him at any time.

'10. That * * * [the natural mother] was a resident of the state of Ohio for at least one year in 1956 and 1957 and a resident of Guernsey County for at least 90 days in 1957; that her whereabouts from May of 1954 until going to California are largely unknown.

'11. That from March of 1960 until August 1963 * * * (the natural mother] was living in the state of California and did not see * * * [the child] and that her only correspondence with him was a birthday card and a Christmas card in 1960.'

So far as pertinent, Section 3107.06, Revised Code, as then applicable read:

'No final decree or interlocutory order of adoption shall be entered by the probate court unless there is filed with the court written consents to the adoption, verified or acknowledged by the following:

'* * * '(B) By each of the living parents * * * except as follows:

'* * *

'(4) If it is alleged in the petition that one or both of the parents have 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 court shall cause notice of the filing of said petition and the allegations of such failure to be given such parents as provided in sections 2101.26 to 2101.28, inclusive, of the Revised Code. After such notice has been given, the court shall determine the issue as to such failure to properly support and maintain the child. The consent of a parent found by the court to have willfully failed to properly support and maintain the child for such period shall not be required.'

Pursuant to those statutory provisions, the Probate Court found that the natural mother of the child sought to be adopted had willfully failed to properly support and maintain the child for a period of more than two years prior to the filing of the petition and rendered a judgment providing for the adoption of the child by petitioner. In reaching his conclusion Judge Moorehead stated:

'* * * The decision of the court was based upon the wilful failure of the natural mother to properly maintain the child on the basis that to maintain a child includes the duty owed by a parent to love,...