In Re Adoption of Lauck
This сause was heard upon the appeal of William Nickison III (“respondent”) from the judgment of the Summit County Court of Common Pleas, Probate Division, holding that respondent’s consent is not required in the adoption of his minor children by the appellee, Paul Lauck (“petitioner”).
Respondent and Patricia Lauck (f.k.a. Patricia Nickison) were married in March 1982. They have two children, Jennifer M. and Kenneth Lloyd Nickison, born August 8, 1982, аnd July 10, 1984, respectively. The marriage was dissolved May 9, 1985, with Patricia receiving custody of the children pursuant to the dissolution decree.
Patricia married petitioner on February 14, 1987. Fourteen days later, on Fеbruary 28, 1987, respondent began serving a term of incarceration as a result of a criminal conviction. He is currently confined to the London Correctional Facility, becoming eligible for parole in 1995.
As the children’s stepfather, petitioner filed for their adoption on October 10, 1990. Petitioner alleged, pursuant to
A hearing on respondent’s objections was held before a referee on June 11, 1991. At the commencement of the proceedings, the parties stipulated that respondent’s failure to provide support for the children was justified due to his incarceration. The hearing proceeded solely on this issue of respondent’s communication with his children. On August 5, 1991, the referee’s report was filеd with the court. The referee found that respondent failed, without justification, to communicate with his children for the requisite statutory period. Therefore, pursuant to
On November 25, 1991, the court, over respondent’s timely objections, adopted the findings and recommendations of the referee. It is from this judgment that the respondent appeals raising two assignments of error.
“The probate court erred as a matter of law by placing the burden of proof on respondent-appellant to show that any failure to communicate with his children was due to justifiable cause.”
Under
In application,
“In the case at bar, the petitioner has met his burden by credibly demonstrating to the court that there was an absence of communication between the natural fathеr and the minors from October 9, 1989 to October 10, 1990. The father has failed to show justification as the petitioner was able to prove by clear and convincing evidence that said failure was without justificatiоn.” (Emphasis added.)
In construing
“The party petitioning for adoption has the burden of proving, by clear and convincing evidence, that the parent failed to communicate with the child during the requisite one-year period and that there was no justifiable cause for the failure of communication.” In re Adoption of Holcomb (1985),18 Ohio St.3d 361 , 18 OBR 419,481 N.E.2d 613 , paragraph four of the syllabus. See, also, In re Adoption of Masa (1986),23 Ohio St.3d 163 , 23 OBR 330,492 N.E.2d 140 , paragraph one of the syllabus (extending the holding in Holcomb).
Holcomb
and its progeny have been criticized for placing upon the petitioner in an adoption proceeding the burden to рrove that the parent was not justified in failing to support or communicate with his child. The requirement that the petitioner prove a negative has been called an “oppressive and
In
Bovett
the court was urged to reconsider its holding in
Holcomb
and
Masa,
requiring the nаtural parent to prove the “without justifiable cause” portion of
“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 shifts to the natural parent to show sоme facially justifiable cause for such failure. The burden of proof, however, remains with the petitioner.” Bovett, supra, at paragraph two of the syllabus.
Thus, while the petitioner in an adoption proceeding has the burden to prove both steps under
In the present case, we find no error in the referee’s statement of the law as it pertains to respondent’s burden to go forward with the evidence of justification. Accordingly, respondent’s first assignment of error is overruled.
Assignment of Error II
“The probate court’s determinаtion that respondent-appellant’s failure to communicate with his children was without justifiable cause was against the manifest weight of the evidence.”
In addressing respondent’s second assignment of error, we are mindful that in civil cases “[j]udgments supported by some competent, credible evidence going to all the essential elements of the case will not be reversed by a reviewing court as being against the manifest weight of the evidence.”
C.E. Morris Co. v. Foley Constr. Co.
(1978),
At trial, Patricia testified that she received a letter from respondent early in 1988. In response, she wrote a letter to respondent, dated March 18, 1988, in which she “tried to explain to [respondеnt] why [she and petitioner] wanted to adopt the kids.” Patricia went on to state that “[petitioner] and I made a decision that it was time that we tried to get a good relationship with [respondent] so he wouldn’t put us through a court hearing, and he would sign the [adoption] papers.”
After this initial correspondence, Patricia admitted to throwing away three of respondent’s letters received over the fоllowing two to three months. Future letters from respondent were refused and returned unopened. Three envelopes and one postcard, postmarked from February 1 through July 14, 1989, were introduced by the respondent. Two of the envelopes were addressed directly to respondent’s children. On cross-examination, Patricia admitted that on each of these she wrote “return to sender.”
Patricia also testified that respondent made telephone calls to her home. The following was elicited on direct examination:
“[By Attorney for Petitioner]
“Q. Did he [respondent] ever make telephone calls to you from the institutiоn?
“[By Patricia Lauck]
“A. I began receiving harassing phone calls after we filed the petition. I know that there was one or two prior to that, but I’m not positive of when I received those. Those were collect cаlls. He didn’t ask for anybody. It just said, ‘M.C.I. Operator. Will you accept a collect call from Bill from a correctional institution?’ and I said, ‘No.’ ”
In explaining why she prohibited respondent’s attempts to communicate with his children, Patricia testified that:
“We [Patricia and petitioner] had made our decision to adopt the children. They [Jennifer and Kenneth] didn’t know who [respondent] was. And I felt that there was no need. And I sent them back to let him know that we just didn’t want the communication.”
In the case
sub judice,
the evidence demonstrates that petitioner and his wife made a concerted effort to thwart respondent’s efforts at communicating with his children. While they may believe their actions were in the children’s best interest, they cannot undertake to prohibit communication and then claim the benefits of their efforts under
As a reviewing court, we must be cautious not to substitute our judgment for that of the trial court when there is sufficient competent and credible evidence supporting its findings of fact.
State v. Schiebel
(1990),
Accordingly, respondent’s second assignment of error is sustained. This case is remanded to the Summit County Court of Common Pleas, Probate Division, to enter judgment in accordance with this decision.
Judgment accordingly.