In re Adoption of Lay

Per Curiam. The sole question for review is whether the probate [42] court’s determination that appellant failed without justifiable cause to support her daughter was against the manifest weight of the evidence. For the reasons which follow, we hold that it was not. R.C. 3107.07 provides, in pertinent part: “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 * * * 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.” This court has held that a parent’s complete absence of communication with a child for the statutorily defined one-year period is sufficient to authorize an adoption without the consent of the parent. In re Adoption of Holcomb (1985), 18 Ohio St. 3d 361, paragraph two of the syllabus. We have also found that the reasoning of Holcomb equally applies to the allegation of failure to support without justifiable cause. In re Adoption of Masa (1986), 23 Ohio St. 3d 163, 166. Thus, a total absence of court-ordered support payments for the statutorily mandated one-year period, which we undisputedly have in the case sub judice, certainly satisfies the requirements set forth in R.C. 3107.07 for adoption without consent if such nonpayment occurred without justifiable cause. It is the party petitioning for adoption who has the burden of proving, by clear and convincing evidence, that the natural parent has failed to support the child for the requisite period and also that the failure was without justifiable cause. Masa, supra, at 166; Holcomb, supra, at paragraph four of the syllabus. Although “* * * [n]o burden is to be placed upon the non-consenting parent to prove that his failure to communicate [or pay support] was justifiable,” Holcomb, supra, at 368, this does not mean that the non-consenting parent cannot be called to testify at a hearing on the necessity of his or her consent. The testimony elicited from such parent and the other testimony and evidence adduced from each side of the issue may be reviewed by the probate court, and it is for such court, which is in the best position to observe the demeanor of the parties, to assess their credibility and to determine the accuracy of their testimony. Id. at 367. The probate court must determine the question of whether justifiable cause has been proven by clear and convincing evidence in a particular case, and such a determination “* * * will not be disturbed on appeal unless such determination is against the manifest weight of the evidence.” Masa, supra, at 166, citing In re Adoption of McDermitt (1980), 63 Ohio St. 2d 301, 306 [17 O.O.3d 195]. While the burden of proof before the probate court is that of clear and convincing proof, “* * * [o]nce the clear and convincing standard has been met to the satisfaction of the probate court, the reviewing court must examine the record and determine if the trier of fact had sufficient evidence before it to satisfy this burden of proof.” [43] Holcomb, supra, at 368, citing Cross v. Ledford (1954), 161 Ohio St. 469 [53 O.O. 361], paragraph three of the syllabus. In Masa, supra, the appellant argued that “* * * being on welfare does not of itself establish justifiable cause for failure to support one’s child.” (Emphasis added.) Id. at 166. There, we rejected such a blanket contention because it failed to take into account the specific facts of each case. A parent’s ability to pay, but failure to do so, is one factor for the probate court to consider. McDermitt, supra. In Masa, supra, where the father’s monthly court-ordered child support payments totaled thirty-seven more dollars than his monthly welfare check, the fact that “there was no evidence before the trial court that appellee was financially capable of meeting his child support obligation,” (emphasis added) id. at 167, was thought to be determinative of the “justifiable cause” issue. However, even there, the father’s testimony indicated that he fully understood he was responsible for his monthly support obligation and for the arrearages that had built up during his period of nonpayment. Id. Thus, one of the factors which the probate court may consider in addition to ability but failure to pay court-ordered support is the voluntariness or intent of the parent’s failure to make such payments. Cf. In re Adoption of Hupp (1982), 9 Ohio App. 3d 128. The probate court must balance the evidence taken as to all the relevant factors in order to determine whether there is clear and convincing evidence before it that the parent failed to support the child without justifiable cause. The record before us demonstrates that the natural mother was able to afford to pay an attorney in the divorce action between herself and the natural father of their child; that she was able to afford to pay an attorney in the adoption action; that she was able to make a one-hundred-dollar child support payment eight days after the adoption petition was filed; that she never sought to have her support order eliminated; and that, when asked if she felt any need to support Timyka, she answered, “* * * She is my daughter, but like I said, why should I have to pay them to keep her.” Upon a review of the record here, we find that the probate court’s determination that there was clear and convincing proof before it that Nawatha Robyn Kay Lay failed to pay her court-ordered support without justifiable cause was not against the manifest weight of the evidence. Accordingly, the judgment of the court of appeals is affirmed. Judgment affirmed. Celebrezze, C.J., Sweeney, Holmes and Wright, JJ., concur. Locher, Grey and Douglas, JJ., dissent. Grey, J., of the Fourth Appellate District, sitting for C. Brown, J.