Respectfully, I dissent.
The majority has chosen to equate the rights and duties of a parent under the newly worded statute to that of the former statute. The statute, in my opinion, clearly does not require "abandonment" by a parent to permit the court to waive his consent.
The use of the term "failed without justifiable cause" is new to the statute as passed in 1977. Although the language was changed from "willfully failed" in former R.C. 3107.06(B)(4), the purpose behind both provisions is the same. In re Adoption ofMcDermitt (1980), 63 Ohio St. 2d 301 [17 O.O.3d 195]. The change in the language was apparently made to clarify when failure to support or communicate with the children by the parent is excusable.
The phrase "failed * * * to communicate" as used in R.C.3107.07(A) has not been defined by statute or case law since the statute's enactment in 1977. The statute requires a "period of at least one *Page 133 year immediately preceding the filing of the adoption petition * * *" without communication with the child in order to satisfy the waiver of parental consent to the adoption. This same provision speaks to lack of maintenance and support being grounds for waiving parental consent.
The Commissioners' Note to the consent section of the Uniform Adoption Act states that aside from the termination of parental rights where the child had been abandoned or where the parent has deserted the child, the subsection (stateing a failure to communicate without justifiable cause) is designed to permit the court to find that consent to adoption is unnecessary without finding that the parent has "abandoned" the child if the court finds the existence of certain facts of a prescribed duration (Uniform Adoption Act, Section 6, 9 U.L.A. 19 [1979]). Our legislature has chosen failure to communicate without justifiable cause for one year. This standard cannot be equated to abandonment.
In the cases cited by the majority, the applicable statutes differ from Ohio's by qualifying the type of communication,i.e., significant. Hawaii has used the term "communication" without qualification in its statute. The Supreme Court of Hawaii defined the phrase "has failed to communicate" to mean:
"* * * the failure on the part of a parent who is able to do so, either through neglect or refusal, to maintain any contact which would provide the opportunity to express or to show parental presence, concern, love, care and filial affection to his child." In re Adoption of Male Child (1975), 56 Haw.,539 P.2d 467, paragraph four of the syllabus.
The Ohio Supreme Court has construed willful failure to exist when a parent knows of the duty and, being able to provide it, voluntarily and intentionally fails to do so. In re Adoption ofBiddle (1958), 168 Ohio St. 209 [6 O.O.2d 4]; In re Adoption ofLewis (1966), 8 Ohio St. 2d 205 [37 O.O.2d 376]. Here, appellant made no efforts to see his children during the years 1979, 1980 and 1981. His only contact consisted of three birthday cards and Christmas cards. The appellant and his ex-wife gave conflicting testimony as to the consistency of this contact. He testified that he was denied visitation once in 1979 and received threats from petitioner and his wife. However, he took no steps to contact his children directly and took no legal steps to enforce his visitation rights. It is clear that the children were in the same area as the appellant and he knew their whereabouts.
Relatively small sporadic support payments by one under a duty to support constitute sufficient willful failure to waive consent. In re Adoptions of Zinsmeister (P.C. 1961), 87 Ohio Law. Abs. 129; In re Adoption of Corey (P.C. 1959), 88 Ohio Law. Abs. 186.
A parent who for seven years prior to filing the adoption petition refused to support the child, except for occasional Christmas gifts, has willfully failed to support. In re Adoptionof Krisher (1958), 107 Ohio App. 109 [7 O.O.2d 465].
Syversten v. Carrelli (1979), 67 Ohio App. 2d 105 [21 O.O.3d 418], deals with a failure to communicate. The father did not communicate with his son from October 1974 (the date of his divorce) until August 1978 (the date of the adoption petition) — seeing him only once, immediately prior to the filing of the petition. The court held that the finder of fact was justified in determining, pursuant to R.C. 3107.07(A), that appellant's consent was unnecessary. The trial court also considered that appellant had failed to support the child.
In re Adoption of Baker (1955), 100 Ohio App. 146 [60 Ohio Op. 137], held that mere failure to make payments for support is not sufficient to constitute "willful failure."
Biddle, supra, held that willful failure to support exists when a parent knows of the duty to provide support and, having *Page 134 the ability to support, intentionally fails to do so.
In In re Adoption of Kisel (May 24, 1979), Cuyahoga App. No. 38742, unreported, the mother's consent was not waived due to her having justifiable cause to be away from her children. In Kisel, the mother, a long-haul truck driver, became unable to care for her children and placed her children in the homes of close relatives. The relationship with one of the guardians deteriorated and her efforts to see the children were actively thwarted. She was limited to phone contacts. The court held telephone communication was sufficient to require a mother's consent when her efforts to see her children were thwarted by persons petitioning to adopt. In the case at bar, there was sufficient evidence to show the appellant took no active interest in communicating with his children; he admitted to seeing his children in 1978 but did not remember any details. He admitted to not seeing them since. He admitted he made no effort to contact his children after 1978 by phone or in person; he took no steps, personally or legally, to maintain a regular relationship with his childern. There is testimony by the mother the cards were received sporadically. He testified he sent them every year. He admitted that he knew he had recourse in the courts to deal with a refusal by the mother to see the children, but he failed to take advantage of it. The only evidence of communication is the money orders of December 21, 1980. It appears from the record that there are many instances where appellant admitted he failed to communicate and, whatever his fears, chose not to seek legal remedies.
The adoption hearing presented an opportunity for any testimony relevant to justifiable reasons why appellant could not and did not see his children. He made several statements that he did not see them. Further, he presented no testimony that he was prevented from making contact or was unable to make contact. There is only the single instance, December 1979, of his being refused permission — this was due to previous plans of the mother. He made no further effort.
The same standard should be used whether we are determining a lack of support or a lack of communication. The former statute, R.C. 3107.06(B)(4), which admittedly dealt with only support and maintenance, has been interpreted in several cases by Ohio courts allowing for varying degrees of care.
It becomes clear that the courts have broad discretion when determining "proper maintenance and support" as well as "failure to communicate."
In State v. DeHass (1967), 10 Ohio St. 2d 230 [39 O.O.2d 366], the court held that on the trial of a case, either civil or criminal, the weight to be given to the evidence and the credibility of the witnesses are primarily for the trier of fact. In adoption cases, the determination of willful failure (now "failed without justifiable cause") raises a question of fact for the determination of the probate court. Biddle, supra; Lewis,supra. As long as the evidence is sufficient to support a verdict, absent prejudicial error, an appellate court may not reverse.
In this case, the trial judge had sufficient evidence which tended to prove that the father had failed to communicate without justifiable cause with his children.
I would affirm the decision of the trial court. *Page 135