In Re Adoptions of Bruce ( 1989 )

The petitioner-appellant, David L. Bruce, and Linda L. Jones were married in 1984. On July 6, 1987, Mr. Bruce filed petitions to adopt his wife's two children from a former marriage. The marriage of Linda Jones and the appellee, Richard A. Jones, Jr., had been dissolved in October 1983. The decree awarded custody of the two children to the mother, and the father was ordered to pay support in the amount of $55 per week.

In his petitions the appellant alleged that the appellee's consent to adopt is not required because Richard A. Jones, Jr. had failed without justifiable cause to communicate with the children and had failed to provide for the maintenance and support of the children as required by law or judicial decree for a period of at least one year preceding the filing of the petitions.

After objections to the petitions were filed, the consent issue was heard on January 6, 1988. At the conclusion of the hearing the trial judge announced that the adoption would require the appellee's consent.

Mr. Bruce has appealed from the order requiring the appellee's consent for the adoption to proceed. There are three assignments of error:

"The trial court erred as a matter of law in finding that Richard Jones' refusal to pay child support was justified.

"The trial court's finding that the appellant interfered with the natural father's right to communicate and visit with his children is not sustained by the manifest weight of the evidence.

"The trial court erred in the admission of evidence from the children's paternal grandmother."

We fail to see any prejudice in the admission of the paternal grandmother's testimony. The third assignment of error is overruled.

R.C. 3107.07(A) provides in part:

"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 preceding either the filing of the adoption petition or the placement of the minor in the home of the petitioner[.]"

The trial court made findings of fact which in pertinent part provide:

"The father continued to pay support in a timely fashion until August of 1984, when the mother moved the children to California. On September 28, 1984, despite the urging of the Domestic Relations Judge in Indiana to the contrary, Mrs. Bruce refused to give her telephone number to Richard A. Jones, Jr. and refused to give her address to Mr. Jones. Shortly thereafter, Mr. Jones stopped making child support payments. Mr. Jones and his mother tried on numerous occasions through the efforts of the post office and telephone companies to locate Mrs. Bruce and the children. All attempts were unsuccessful. On at least two occasions packages were sent to the last known address for the children, but were returned. The Court finds that Richard A. Jones, Jr., after losing contact with his children, stopped paying child support, and further, that Mrs. Bruce after losing contact with Mr. Jones, had foregone any attempt to enforce the child support obligation."

In its conclusion of law the trial court found that "Linda Laura Bruce sufficiently interfered with Richard A. Jones' ability to communicate or visit with his children to such an extent that said failure is found to be a justifiable cause."

The findings by the court on this issue are supported by the evidence. We may not disturb the findings and order unless such determination is against the manifest weight of the evidence. Inre Adoption of Holcomb (1985), 18 Ohio St.3d 361, 18 OBR 419,481 N.E.2d 613; In re Adoption of Bovett (1987), 33 Ohio St.3d 102, 515 N.E.2d 919. The second assignment of error is overruled.

It was undisputed that the appellee paid no support for at least a year immediately preceding the filing of the petitions. The appellee testified that his earnings for that year were approximately $18,000.

The trial court made no specific finding that the appellee had justifiable cause for his failure to pay support. However, by finding that appellee's consent was required the court by implication found that the appellee had justifiable cause for his failure to support.

"The question of whether a natural parent's failure to support his or her child has been proven * * * by clear and convincing evidence to have been without justifiable cause 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 Masa [1986], 23 Ohio St.3d 163, 23 OBR 330, 492 N.E.2d 140, paragraph two of the syllabus, followed.)" In re Adoption of Bovett, supra, at paragraph four of the syllabus.

Masa held that the natural father's inability to pay was justifiable cause. Masa also pointed out "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." Id. at 166, 23 OBR at 332, 492 N.E.2d at 143.

We have held that interference with visitation rights is not an excuse for the unilateral refusal to pay support. In re Adoptionof Webb (Jan. 21, 1987), Montgomery App. No. 9960, unreported.

The first assignment of error is sustained.

We reverse and remand.

Judgment accordingly.

BROGAN, J., concurs.

FAIN, J., concurs separately.