Summary
In Johnson v. Varney (1965), 2 Ohio St.2d 161 [31 O.O.2d 316], the Supreme Court of Ohio reversed an appellate decision which had found no failure on the part of a mother to support her children based on the fact that the father was the primary source of support and he had been doing adequately.
Summary of this case from Hacker v. HackerOpinion
No. 38923
Decided May 19, 1965.
Adoption — Mother's duty to child supported and maintained by father — Finding that mother failed to properly maintain child justified, when — Section 3107.06, Revised Code.
1. A mother who does not have custody of her child has a duty to give some personal care and attention to that child even though the child is being properly supported and maintained by his father.
2. Where a mother knows of her duty to give some personal care and attention to her child, is able to do so, and completely fails to give any care or attention to such child, such failure may justify a finding that she willfully failed to properly "maintain the child" within the meaning of those words as used in Section 3107.06 (B) (4), Revised Code.
APPEAL from the Court of Appeals for Guernsey County.
On June 22, 1963 the petitioner filed a petition in the Probate Court of Guernsey County for adoption of her stepson, Paul Allen Johnson, hereinafter referred to as the child. He was born in 1952, the son of Paul Edward Johnson, hereinafter referred to as the father, and Betty McGinley, now Betty Varney, appellee, hereinafter referred to as the natural mother.
In May 1954 the natural mother abandoned the child to the father, and the child was the sent to live with the father's parents in Guernsey County, staying with them until August 31, 1959. The father married the petitoner in December 1958, and on August 31, 1959 he brought the child to live with him and petitioner. The child lived with his father and petitioner in their home until the father's death on December 31, 1962, and the child has continued to live with petitioner in the same home until the present time.
From May 1954 until the hearing in August 1963 the natural mother was not requested to contribute nor did she ever contribute financially to the support of the child.
There is no dispute about any of the foregoing facts as found by the Probate Court.
The natural mother testified that she was first married in 1946, when she was 15 years of age, to one McGinley; that she and McGinley had two children, a son born in 1947 and a daughter born in 1949; that the son has always lived with her, but the daughter is with her sister and has never lived with her; that between 1951 and 1954 (during which time the child was born) she lived with the father of the child sought to be adopted herein; that she was not divorced from McGinley until November 1959, when she married her present husband, one Varney; that at the time of the hearing in August 1963 she had three children by her present husband, Varney, the oldest of whom was six years old; and that she and Varney, their three children, and her oldest son by McGinley were living in California in a three-bedroom, two-bath home.
There is also evidence in the record to sustain the following findings of fact by the Probate Court:
"9. That from May 1954 through 1960 * * * [the natural mother] visited * * * [the child] once a year, never spending more than a part of a day with him at any time.
"10. That * * * [the natural mother] was a resident of the state of Ohio for at least one year in 1956 and 1957 and a resident of Guernsey County for at least 90 days in 1957; that her whereabouts from May of 1954 until going to California are largely unknown.
"11. That from March of 1960 until August 1963 * * * [the natural mother] was living in the state of California and did not see * * * [the child] and that her only correspondence with him was a birthday card and a Christmas card in 1960."
So far as pertinent, Section 3107.06, Revised Code, as then applicable read:
"No final decree or interlocutory order of adoption shall be entered by the Probate Court unless there is filed with the court written consents to the adoption, verified or acknowledged by the following:
"* * *
"(B) By each of the living parents * * * except as follows:
"* * *
"(4) If it is alleged in the petition that one or both of the parents have willfully failed to properly support and maintain the child for a period of more than two years immediately preceding the filing of the petition, the court shall cause notice of the filing of said petition and the allegations of such failure to be given such parents as provided in Sections 2101.26 to 2101.28, inclusive, of the Revised Code. After such notice has been given, the court shall determine the issue as to such failure to properly support and maintain the child. The consent of a parent found by the court to have willfully failed to properly support and maintain the child for such period shall not be required."
Pursuant to those statutory provisions, the Probate Court found that the natural mother of the child sought to be adopted had willfully failed to properly support and maintain the child for a period of more than two years prior to the filing of the petition and rendered a judgment providing for the adoption of the child by petitioner. In reaching his conclusion Judge Moorehead stated:
"* * * The decision of the court was based upon the wilful failure of the natural mother to properly maintain the child on the basis that to maintain a child includes the duty owed by a parent to love, cherish, nurture and to provide for the everday wants and needs of a child. In this respect the court felt that the wilful actions of the natural mother in the initial abandonment of the child in Chicago and of her continued neglect of the needs of the child over the years when she only saw the child on those occasions when she came to `visit mother,' and the limiting of her attentions from 1960 until just prior to the hearing, covering a period of over three years, to the sending of one birthday and one Christmas card were of primary importance."
On appeal to the Court of Appeals the judgment of the Probate Court was reversed and final judgment was rendered dismissing the petition.
The cause is now before this court on appeal from the judgment of the Court of Appeals, pursuant to allowance of a motion to certify the record.
Messrs. DeSelm Moore and Mr. Charles L. Moore, for appellant.
Messrs. Sheppard Agnew, Messrs. Graham Graham and Mr. John C. Graham, for appellee.
The Court of Appeals held and appellee, the natural mother, contends that, since a father has the primary duty to support the child involved in the instant case, there was no duty on the natural mother to support that child prior to the father's death only six months before the filing of the petition to adopt; and that, since she was under no duty to support until then, she cannot be found to have willfully failed to properly support and maintain the child for the two years before the filing of that petition.
However, in In re Adoption of Biddle (1958), 168 Ohio St. 209, 152 N.E.2d 105, paragraph five of the syllabus reads:
"The phrase in Section 3107.06, Revised Code, `properly support and maintain,' implies personal care and attention by the parent having custody as well as mere financial support."
The natural mother contends that the statement of law in that syllabus is only applicable, as stated therein, to a "parent having custody." That was the situation in the Biddle case, and the syllabus was therefore properly limited by those words to the case before the court. However, we are of the opinion that a mother who does not have custody of her child may have a duty to give some personal care and attention to that child even though the child is being properly supported and maintained by his father. As pointed out in the opinion in In re Adoption of Shaw, 91 Ohio App. 347, 355, 108 N.E.2d 236, the phrase in Section 3107.06, Revised Code, "properly support and maintain" imposes upon a mother a duty to furnish maternal affection to and motherly contact with her child.
As indicated by finding of fact No. 11, the natural mother did not see the child or even send him a postal card for more than two years immediately preceding the filing of the petition in the instant case. This represents a complete absence of any personal care and attention to the child.
The natural mother knew of her duty to give some personal care and attention to her child. Through 1960, she had at least given some attention to him as indicated by finding of fact No. 9 of the Probate Court.
We are of the opinion that the natural mother's complete failure to give the child any care and attention for more than two years before the filing of the petition for his adoption would justify a finding that she willfully failed to properly maintain the child and would thus do away with the necessity of securing her consent to his adoption.
For the foregoing reasons, the judgment of the Court of Appeals is reversed and the cause remanded to that court for further proceedings in accordance with this opinion.
Judgment reversed.
ZIMMERMAN, O'NEILL, HERBERT and SCHNEIDER, JJ., concur.
MATTHIAS and BROWN, JJ., dissent.