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In re Adoption of Morris

December 2, 2008

IN RE: THE ADOPTION OF AUTUMN MARIE MORRIS.


CHARACTER OF PROCEEDINGS: Civil Appeal from Common Pleas Court, Probate Division, Case No. 08AD4.

The opinion of the court was delivered by: Vukovich, J.

OPINION

JUDGMENT: Affirmed.

JUDGES: Hon. Joseph J. Vukovich, Hon. Gene Donofrio, Hon. Mary DeGenaro.

{¶1} Appellant Michael Noel appeals the probate decision of the Belmont County Common Pleas Court which found it unnecessary that he consent to his daughter's adoption by her stepfather, appellee Richard Morris. The issue in this expedited appeal is whether appellant failed without justifiable cause to provide for the maintenance and support of his daughter for a period of at least one year immediately preceding the adoption petition. This is a question regarding the manifest weight of the evidence. For the following reasons, the judgment of the trial court is affirmed.

STATEMENT OF THE CASE

{¶2} On February 22, 2008, appellee filed a petition to adopt his ten-year-old step-daughter, who had been living with him since he married the child's mother in 2002. Appellee alleged that appellant's consent was not required because appellant failed to provide maintenance and support in the past year. A hearing proceeded before the court on May 16, 2008.

{¶3} The child's mother testified that appellant has never paid child support. (Tr. 6, 10). Appellee then specified that his household has not received any support from appellant in the twelve months prior to the filing of the action. (Tr. 14). It was established that the last time appellant spent any money on the child was also the last time he visited her in 2003. (Tr. 14, 16). Appellant admitted this and conceded that he provided no support in the one year before the filing of the petition. (Tr. 20).

{¶4} Appellant testified that he was in prison in Alabama for possession of marijuana from December 15, 2005 until January 8, 2007; although, his mother stated that the offense was a misdemeanor. (Tr. 23, 27). He claimed that he could not find a job and blamed this on perceived prejudice against applicants who need a court's seek-work form to be signed. (Tr. 21-22). Appellant disclosed that he was denied Social Security Disability but claimed that denial was pending on appeal. (Tr. 18). Appellant then testified that he made payments of $5 and $10 to the Child Support Enforcement Agency (CSEA) in the two months prior to the hearing (but after the filing of the petition). He said he had receipts in the car, but he never produced them. (Tr. 20-22).

{¶5} Appellant's mother testified that appellant lives with her and that he has ADHD and some back problems. She stated that she has seen him apply for jobs and that he cuts grass and does odd jobs. (Tr. 25, 32). She disclosed that appellant recently earned $20 cutting her neighbor's grass and thought he sent this to CSEA; although, in comparing this to appellant's testimony, it appears that appellant did not send the entire amount as she believed. (Tr. 25). It was also established that appellant had been found in contempt for failure to pay support in the amount of $71.46 per month; his income had been imputed at $9,000 per year in the underlying action. (Tr. 36).

{¶6} After hearing this testimony, the trial court concluded that appellant failed without justifiable cause to provide for the maintenance and support of the child as required by law or judicial decree for a period of one year immediately preceding the filing of the adoption petition. Thus, the court excused appellant from the courtroom and proceeded to the second phase of the proceeding which ended with the court allowing the adoption. The court memorialized its holding in a June 5, 2008 judgment entry. Appellant filed timely notice of appeal.

GENERAL LAW

{¶7} Pursuant to R.C. 3107.07(A), consent to adoption is not required of a parent of a minor when:

{ΒΆ8} "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 ...


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