Lynch v. Armbruster

• Decision Date: 22 June 1966
• Citation: 218 N.E.2d 624,7 Ohio App.2d 1
• Parties: , 36 O.O.2d 26 LYNCH et al., Appellants, v. ARMBRUSTER, Appellee. In re ADOPTION OF LYNCH.
• Court: Ohio Court of Appeals

Page 1

7 Ohio App.2d 1

218 N.E.2d 624, 36 O.O.2d 26

LYNCH et al., Appellants, v. ARMBRUSTER, Appellee In re ADOPTION OF LYNCH.

Court of Appeals of Ohio, Ninth District, Medina County.

June 22, 1966.

Palmquist & Courtney, Medina, for appellants.

Jack M. Kinney, Medina, for appellee.

BRENNEMAN, Judge.

Clarence G. Lynch and Irene D. Lynch (hereinafter designated appellants), maternal grandparents of Dale Allen Nyomo (born December 10, 1957), filed in the Probate Court of Medina County a petition for the adoption of their grandson. In the petition they alleged that Mary Lee Armbruster (hereinafter designated appellee), the blood mother, and Richard Jack Nyomo, the adoptive father, of such child, have 'wilfully failed to properly support and maintain said child for a period of more than two years immediately preceding the filing of this petition.'

The appellee mother was properly served with a notice of hearing. She opposed the adoption and appeared in court with counsel on the date of hearing. The adoptive father filed an answer and consent to the adoption and waived notice of hearing.

At the time of hearing, and before any evidence was presented to the trial court, counsel for the appellee mother moved the court for a dismissal of the petition on the ground that the trial court, in another case involving this same child, had, on June 29, 1962, made the child a temporary ward of the Juvenile Court and awarded temporary custody to the appellants. It was claimed that, inasmuch as the child was a temporary ward of the Juvenile Court, the appellee mother could not be guilty of willful failure to support him for more than two years immediately preceding the filing of the petition for adoption. The trial court took judicial notice of its prior order making such child a temporary ward of the Juvenile Court and, without benefit of other evidence, sustained the motion for dismissal on the ground that the appellee mother had no duty to support the child during the time he was a ward of the court or, at least, she could not be guilty of willful failure to support the child during such period.

Upon this meager record, an appeal has been lodged in this court.

Three errors are assigned, and decisive of all three is the determination of a single question: Can there be a willful failure on the part of a parent to support her child while such child is a temporary ward of the Juvenile Court? The duty of a parent to support her child is established by statute, and, further, such duty is recognized in Ohio as a common-law duty.

Section 3113.01, Revised Code, provides:

'No parent or other person charged with the maintenance of a legitimate * * * child under...