In re Adoption of Bovett

515 N.E.2d 919, 33 Ohio St. 3d 102, 1987 Ohio LEXIS 423
CourtOhio Supreme Court
DecidedDecember 2, 1987
DocketNo. 86-1995
StatusPublished
Cited by221 cases

This text of 515 N.E.2d 919 (In re Adoption of Bovett) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Adoption of Bovett, 515 N.E.2d 919, 33 Ohio St. 3d 102, 1987 Ohio LEXIS 423 (Ohio 1987).

Opinions

Herbert R. Brown, J.

This case calls upon us to again interpret and refine the application of R.C. 3107.07 (A). That section provides that the consent of a natural parent for the adoption of his or her minor child is not required “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 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 * * * the filing of the adoption petition * * (Emphasis added.) For the following reasons, we reverse the judgment of the court of appeals and reinstate the judgment of the probate court.

I

In In re Adoption of Masa (1986), 23 Ohio St. 3d 163, 23 OBR 330, 492 N.E. 2d 140, paragraph one of the syllabus, we held:

“Pursuant to R.C. 3107.07(A), the petitioner for adoption has the burden of proving, by clear and convincing evidence, that the natural parent has failed to support the child for the requisite one-year period and that this failure was without justifiable cause. (In re Adoption of Holcomb [1985], 18 Ohio. St. 3d 361, paragraph four of the syllabus, extended.)”

Appellant urges us to reconsider the wisdom of Masa, contending that it is unfair for a petitioner for adoption to bear the burden of proving that the natural parent’s failure to support the [104]*104child was without justifiable cause. Appellant argues that because the natural parent is in a better position than the petitioner to know of his or her financial circumstances, the natural parent should bear the burden of proving that such failure was justifiable.

In Masa, supra, we stated:

“In Santosky v. Kramer (1982), 455 U.S. 745, 747-748, the court held that ‘[bjefore a State may sever completely and irrevocably the rights of parents in their natural child, due process requires that the State support its allegations by at least clear and convincing evidence.’ (Emphasis added.) The burden of proof was clearly placed on the state in Santosky. Likewise, R.C. 3107.07(A) places on the petitioner for adoption the burden of proving his allegations of failure to support and lack of justifiable cause. Any change in this burden of proof could offend the Due Process Clause, for whether it is the state or a petitioner, the party bringing the action seeks to terminate fundamental parental rights and such party must support his allegations. For this reason we stated in In re Adoption of Holcomb (1985), 18 Ohio St. 3d 361, 368, that ‘[n]o burden is to be placed upon the non-consenting parent to prove that his failure to communicate was justifiable.’ ” (Emphasis added.) Id. at 166, 23 OBR at 332, 492 N.E. 2d at 142, fn. 2.

We find this reasoning to be as persuasive today as when it was first written. Therefore, we decline appellant’s invitation to overrule Masa. Accordingly, we reemphasize that pursuant to R.C. 3107.07(A), the petitioner for adoption has the burden of proving, by clear and convincing evidence, both (1) that the natural parent has failed to support the child for the requisite one-year period, and (2) that this failure was without justifiable cause.1

II

Appellant’s concern with the placement of the burden of proof in Masa indicates to us that there may be some misunderstanding of the law of that case among the Ohio bench and bar. As we explained in Masa:

“Lest one may think we are placing an unfair burden on the adopting parent, it should be pointed out that the adopting parent has no legal duty to prove a negative. If the natural parent does not appear to go forward with any evidence of justification, obviously the adopting parent has only the obligation of proving failure of support by the requisite standard.” (Emphasis added.) Id. at 167, 23 OBR at 333, 492 N.E. 2d at 143.

Therefore, a natural parent may not simply remain mute while the petitioner is forced to demonstrate why the parent’s failure to provide support is unjustifiable. Rather, once the petitioner has established, by clear and convincing evidence, that the natural parent has failed to support the child for at least the requisite one-year period, the burden of going forward with the evidence is on the natural parent to show some facially justifiable cause for such failure. The burden of proof, however, remains with the petitioner.

III

In making its determination of justifiable cause, the probate court in the case subjudice focused upon appellee’s [105]*105circumstances during the entire year during which he failed to make support payments. After finding that appellee was employed for nine of the twelve months during that year, and that his salary for eight of those months was $22,000 per year, the court concluded that appellee had “willfully failed to support the child and that he displayed his willful intent by failing to send any support during the one year period prior to the filing of this action although he was gainfully employed during that time.”2

The court of appeals below maintains that once appellee had come forward with evidence showing that he was unemployed for three of the twelve months, the probate court should have looked only at the evidence of his financial circumstances during that period of unemployment, in order to determine whether his failure to provide support during that period was justifiable. As the court of appeals held:

“If, during any part of the year prior to the filing of the adoption petition, the nonsupporting parent had justifiable cause for not paying support, he is not barred from objecting to the adoption.” (Emphasis added.)

We disagree with the court of appeals’ interpretation of R.C. 3107.07 (A). That statute states that a natural parent’s consent is not required if both (1) the parent either (a) failed to communicate with the child for at least one year or (b) failed to provide for the maintenance and support of the child for at least one year, and (2) such failure was without justifiable cause. See In re Adoption of Lay (1986), 25 Ohio St. 3d 41, 42, 25 OBR 66, 67, 495 N.E. 2d 9, 10; Masa, supra, at 165, 23 OBR at 331, 492 N.E. 2d at 142; In re Adoption of Holcomb (1985), 18 Ohio St. 3d 361, 366-367, 18 OBR 419, 423-424, 481 N.E. 2d 613, 619; In re Adoption of McDermitt (1980), 63 Ohio St. 2d 301, 303-304, 17 O.O. 3d 195, 196-197, 408 N.E. 2d 680, 682; see, also, In re Adoption of Anthony (1982), 5 Ohio App. 3d 60, 62, 5 OBR 156, 159, 449 N.E. 2d 511, 515.

The statute and the cases make clear that a failure either to communicate with the child or to provide for the maintenance and support of the child must be shown to have continued for an entire year before the issue of justifiable cause is reached. See, e.g., Lay, supra; Masa, supra; Holcomb, supra, paragraph two of the syllabus. Once such a failure has been proven, the probate court must then decide whether that failure was without justifiable cause. See Lay, supra; Masa, supra; Holcomb, supra.

Therefore, in making its determin

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Bluebook (online)
515 N.E.2d 919, 33 Ohio St. 3d 102, 1987 Ohio LEXIS 423, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-adoption-of-bovett-ohio-1987.