577 N.E.2d 77 | Ohio Ct. App. | 1989
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *546
This cause is before the court on appeal from a judgment of the Lucas County Court of Common Pleas, Probate Division, following a "willful failure" hearing held pursuant to R.C.
The appellant-putative father, John W. Collins, sets forth two assignments of error:
"I. The lower court erred in allowing Appellees to amend their petition, and in failing to grant Appellant's motion to dismiss on the grounds of fraud.
"II. The lower court erred in finding that Appellant had willfully abandoned Sandy and Patrick and willfully failed to care for and support Patrick, and ordering that he had, therefore, waived his consent."
The facts giving rise to this appeal are as follows: In June 1985, Sandra Lee Carmichael moved from Toledo, where she had been living with her parents, to Panama City, Florida, to live with her aunt. Sometime in September 1985, while she was living in Panama City, she met appellant, John W. Collins, and in March 1986, she became pregnant by him. In July 1986, Sandra wanted to *547 return to her parents in Toledo and John and his mother drove her as far as Kentucky from where she was to take a bus on to Toledo. It was during this trip to Kentucky that Sandra first told John of her pregnancy. Sandra then went on to Toledo to live with her parents, and John returned to Panama City, Florida, to live with his parents. During the remainder of the pregnancy, the most that John actually recalls providing to Sandra in the way of money was an unknown amount for the payment of one prenatal blood test, with the rest of Sandra's bills and expenses being provided for by welfare. While John did call or visit Sandra on a number of occasions during the pregnancy, he was not present at the time of the birth although Sandra specifically asked him to be there. On December 27, 1986, Sandra gave birth to a son, Patrick; both Sandra and John were nineteen years old. Because John was not present at the birth, the father was designated on the birth certificate as "unknown."
Sandra and Patrick remained in Toledo until February 1987, during which time John neither visited nor provided support to Sandra or the child. At that time, Sandra, accepting John's parents' invitation, left Toledo and went to live with them in Youngstown, Florida. During the four months that she and Patrick lived with John's parents, John was also staying there, but was openly dating someone else. From February 1987 to June 1987, although John did have regular personal contact with the child, he provided no support to either Sandra or Patrick; they were all provided for during that period by John's parents. In June 1987, Sandra wanted to leave Florida and return to Toledo because, as she testified, John's relationship with his new girlfriend, Sharon, was upsetting her. In July 1987, John, with Sharon, drove Sandra and Patrick back to Toledo. John dropped Sandra off in Toledo and then spent the rest of the summer traveling around Kentucky and Georgia with Sharon during which time he neither visited nor provided any support to Sandra or Patrick.
By August 1987, Sandra had decided to place Patrick for adoption and on August 24, 1987, Sandra took Patrick to the home of the appellees, William and Ramona Hart, to discuss doing so. The testimony indicates that during these discussions the only mention that was made of Patrick's father was a statement by Sandra that the birth certificate shows the father as "unknown," with no further inquiry made by the Harts and no further information provided by Sandra. On August 29, 1987, Sandra placed Patrick with the Harts for adoption. By this time, John was back living with his parents who had moved from Florida to Cincinnati, Ohio. On September 3, 1987, Sandra called the Collins home and spoke with John's mother, telling her that she was thinking about putting Patrick up for adoption. On September 4, 1987, the necessary consent having previously been executed by Sandra, the Harts filed their petition to adopt Patrick in the Lucas County Probate Court indicating therein that Patrick's father was "unknown." On September 5, 1987, John *548 called the Harts' home and told them that he was Patrick's father and that he wanted the child back. The Harts told John that he should get an attorney. On December 8, 1987, John filed a parentage action in the Lucas County Court of Common Pleas, Juvenile Division. Later on in December, Sandra gave the Harts the documents for John's parentage action and on January 22, 1988, the Harts amended their petition for adoption to show John W. Collins as the father of Patrick.
On January 25, 1988, John's motion to intervene in the adoption proceedings was granted, and John filed an objection to the adoption and a request for dismissal of the petition on the grounds of fraud. John's request for dismissal was denied, but a willful failure hearing was set on his objection to the adoption, pursuant to R.C.
Beginning with the first part of the first assignment of error, while appellant claims that the lower court erred in allowing the amendment to the petition for adoption, he does not elaborate further in his brief as to the basis for that assertion. The record shows that on January 22, 1988, appellees filed their motion to amend the petition to add the name and address of appellant on the grounds that new evidence was discovered tending to establish him as Patrick's putative father. Here, as in all civil proceedings, the granting of leave to amend pleadings lies within the discretion of the trial court. Civ.R. 15(A); Hoover v. Sumlin (1984),
In the second part of the first assignment of error, appellant asserts that the lower court erred in denying his motion to dismiss the adoption petition on the grounds of fraud.
Before discussing this part of appellant's first assignment of error, it must be noted that the motion to dismiss that is the subject of this assignment of error was filed in the probate court and denied on January 25, 1988. In his brief in this court, appellant includes arguments that (a) are based on testimony that was received at the May 31, 1988 willful failure hearing and (b) go significantly beyond the scope of the issues that were raised in the motion itself. This court's consideration of this part of appellant's first assignment of error will, therefore, be limited to those issues and facts that were before the probate court on the January 25, 1988 motion to dismiss.
The issues that appellant raised in that motion and that are now before this court in this assignment of error arise out of the undisputed fact that appellees originally filed their petition for adoption stating that the father of Patrick was "unknown." Appellant argued in that motion that since Sandra acknowledged that John was Patrick's father on January 22, 1988, at a pretrial on his parentage action, there is no question that appellees knew or should have known that appellant was the father and, therefore, the petition for adoption was fraudulent and should be dismissed pursuant to R.C.
In his brief in this court appellant attempts to bolster his allegations of fraud by appellees, by arguing that In reAdoption of Knipper (1986),
The effect of R.C.
Clearly, neither R.C.
The only basis for a finding of fraud on the part of appellees in this case would be if there was proof that they had actual knowledge of the fact that appellant was Patrick's father and knowingly failed to disclose that fact.
Upon consideration of all of the evidence that is applicable to the issues raised in this assignment of error, this court finds that the knowledge possessed by Sandra cannot be imputed to the appellees, William and Ramona Hart, and that there was not evidence before the probate court to support a conclusion that appellees themselves had actual knowledge that appellant was Patrick's father when they filed their petition.
Accordingly, as to both parts, this court finds appellant's first assignment of error not well taken.
The parties agree that during all times at issue in this case appellant is to be considered, for purposes of these proceedings, as the putative father of Patrick. The rights of putative fathers in adoption proceedings are governed by R.C.
R.C.
"Unless consent is not required under section
"* * *
"(F) Subject to division (B) of section
"(1) Is alleged to be the father of the minor in proceedings brought under sections
"(2) Has acknowledged the child in a writing sworn to before a notary public at any time before the placement of the minor in the home of the petitioner;
"(3) Has signed the birth certificate of the child as an informant as provided in section
"(4) Has filed an objection to the adoption with the agency having custody of the minor or the department of human services at any time before the placement of the minor in the home of the petitioner, or with the probate court or the department of human services within thirty days of the filing of a petition to adoptthe minor or its placement in the home of the petitioner,whichever occurs first." (Emphasis added.)
R.C.
"Consent to adoption is not required of any of thefollowing:
"* * *
"(B) The putative father of a minor if the putative fatherfails to file an objection with the court, the department of human services, or the agency having custody of the minor asprovided in division (F)(4) of section
R.C.
Appellant's arguments in support of his second assignment of error are in two parts: first, the lower court's finding that he willfully abandoned Sandra and Patrick and willfully failed to care for and support Patrick, and that his consent to the adoption is not necessary, is against the manifest weight of the evidence and contrary to the provisions of R.C.
As to appellant's first argument in support of the second assignment of error, in In re Adoption of Peters (1961),
This court has thoroughly reviewed the testimony adduced at the willful failure hearing held on May 31, 1988. The record shows that for the *553 last five months of her pregnancy, Sandra returned to Toledo to live with her parents and was supported by welfare. John remained in Florida with his parents during this time and, although he did occasionally visit or telephone Sandra, he provided no support to her, despite her requests, other than paying for one prenatal blood test. Although Sandra had asked John to be present at Patrick's birth, he did not come. About two months after Patrick was born, John's parents came to visit Sandra and Patrick and invited them to live in Florida at their home. Sandra and Patrick returned to Florida and lived with John's parents where John also resided, for approximately four months. During this time, John had two different jobs but voluntarily quit both after a few weeks leaving Sandra and Patrick to be supported by his parents. During this period, John, himself, provided no support to either Sandra or Patrick. John continued to date his girlfriend, Sharon, throughout the months Sandra and Patrick lived in the same home with John. After four months Sandra expressed her desire to return to Toledo and in July 1987, John and Sharon drove Sandra and Patrick to Toledo, leaving them with Sandra's parents. John and Sharon then continued on to Kentucky to live for a month and then to Georgia to vacation. From the time appellant dropped Sandra and Patrick in Toledo, until Sandra put Patrick up for adoption in September 1987, Sandra did not know where appellant was. He did not contact her or Patrick, and they received no support from him.
From our analysis of the record we find that there was competent, credible evidence to support the probate court's findings that John had willfully abandoned and willfully failed to care for and support Patrick and that John had abandoned Sandra during her pregnancy and up until she placed Patrick for adoption. We therefore find that the probate court's findings were not against the manifest weight of the evidence and that the first part of appellant's second assignment of error is not well taken.
In his second argument in support of his second assignment of error appellant argues that the one year time period provided for in R.C.
Upon consideration of the above, this court finds that the one year time requirement of R.C.
Accordingly, this court finds the second part of appellant's second assignment of error not well taken.
Upon consideration whereof, this court finds that appellant's first and second assignments of error are not well taken and that substantial justice has been done the party complaining. It is therefore ordered that the judgment of the Lucas County Court of Common Pleas, Probate Division, is affirmed. This case is remanded to the probate court for further proceedings not inconsistent with this opinion. Appellant is ordered to pay the court costs of this appeal.
Judgment affirmed.
"(A) Appeals from the probate court are subject to the Rules of Appellate Procedure and, to the extent not in conflict with those rules, Chapter 2505. of the Revised Code.
"(B) Subject to the disposition of an appeal, upon the expiration of one year after an adoption decree is issued, the decree cannot be questioned by any person, including the petitioner, in any manner or upon any ground, including fraud, misrepresentation, failure to give any required notice, or lack of jurisdiction of the parties or of the subject matter, unless, in the case of the adoption of a minor, the petitioner has not taken custody of the minor, or, in the case of the adoption of a minor by a stepparent, the adoption would not have been granted but for fraud perpetrated by the petitioner or the petitioner's spouse, or, in the case of the adoption of the an adult, the adult had no knowledge of the decree within the one-year period."
"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."