COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60110 IN RE: JENNIFER LYNN LIPUSZ : : : APPELLANT : JOURNAL ENTRY : v. : AND : : OPINION : : APPELLEE : DATE OF ANNOUNCEMENT OF DECISION: MARCH 26, 1992 CHARACTER OF PROCEEDING: CIVIL APPEAL FROM THE PROBATE COURT CASE NO. CP-996691 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: FOR APPELLANT: THOMAS S. HUDSON Hudson and Hudson 1700 Terminal Tower Cleveland, Ohio 44113 FOR APPELLEE: GARY AXNER 2000 East Ninth Street, #629 Cleveland, Ohio 44115 -2- SPELLACY, J.: Petitioners-appellants Vincent Lipusz and Joan Lipusz ("appellants") appeal from the probate court's dismissal of their petition for the adoption of Jennifer Lipusz, born June 2, 1985. On March 5, 1990, appellants petitioned for permission to adopt Jennifer, their granddaughter. Respondent-appellee Katherine Lipusz ("appellee"), Jennifer's mother and appellants' daughter, refuses to consent to the adoption. On May 4, 1990, the probate court held a hearing to determine whether appellee's consent was necessary under R.C. 3107.07(A), which provides that a parent's consent is not necessary if the parent has: *** failed without justifiable cause to communicate with the minor 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. At the hearing appellants testified that appellee had not provided financial support for Jennifer. They also admitted that appellee occasionally visited their home and played with Jennifer during the year preceding placement, January 6, 1987, to January 7, 1988, and the year preceding the filing of the adoption petition, March 4, 1989, to March 5, 1990. Appellee testified that during the statutorily defined time periods she lived on a combination of government assistance, borrowed money, and a part-time job delivering pizza. Appellee also testified that the reason she had not provided Jennifer with financial support was she lacked the money to do so, not because she did not care for Jennifer. Appellee further testified that -3- when she had offered to contribute financial support, her mother, appellant Joan Lipusz, told her not to bother because Jennifer already had everything she needed. At the close of appellants' case-in-chief, the probate court found that appellants had failed to prove appellee did not communicate with Jennifer during the statutorily defined time periods. At the conclusion of the hearing, the probate court found that although appellants had proven that appellee failed to provide financial support, they had not proven that appellee's failure was without justifiable cause. The probate court then dismissed appellants' adoption petition. Appellants appeal and raise the following errors: I. THE TRIAL COURT'S FINDING THAT APPELLANTS FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT APPELLEE'S FAILURE TO SUPPORT HER CHILD DURING THE REQUISITE ONE YEAR PERIOD WAS WITHOUT JUSTIFIABLE CAUSE IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. II. THE TRIAL COURT ERRED IN GRANTING APPELLEE'S MOTION TO DISMISS AS TO THE ISSUE OF COMMUN- ICATION BECAUSE APPELLANTS SHOWED BY CLEAR AND CONVINCING EVIDENCE THAT APPELLEE FAILED TO COMMUNICATE WITH HER CHILD FOR THE REQUISITE ONE YEAR PERIOD WITHOUT JUSTIFIABLE CAUSE. We address appellants' assignments of error in reverse order. I. In their second assignment of error, appellants contend the probate court erred when it found that they did not prove appellee had failed to communicate with Jennifer during the statutorily defined time periods. Appellants' assignment of error lacks merit. -4- In the case of In re Adoption of Holcomb (1985), 18 Ohio St. 3d 361, paragraph two of the syllabus, the court held: Pursuant to the explicit language of R.C. 3107.07(A), failure by a parent to communicate with his or her child is sufficient to authorize adoption without that parent's consent only if there is a complete absence of communication for the statutorily defined one-year period. (Emphasis added). Appellants' own testimony demonstrates that there was not a complete absence of communication during the statutorily defined time periods. Accordingly, appellants' second assignment of error is not well taken. II. In their first assignment of error, appellants' contend the probate court's finding that they did not prove appellee's failure to provide financial support was without justifiable cause was against the manifest weight of the evidence. Appellants' assignment of error lacks merit. The weight to be given the evidence and the credibility of the witnesses are primarily for the trier of fact. State v. DeHass (1967), 10 Ohio St. 2d 230, paragraph one of the syllabus. In C.E. Morris Co. v. Foley Construction Co. (1978), 54 Ohio St. 2d 279, syllabus, the court held: Judgments 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. -5- See also Seasons Coal Co. v. Cleveland (1984), 10 Ohio St. 3d 77, 80. After a review of the record, we find the probate court's finding that appellants did not prove that appellee's failure to provide support was without justifiable cause is supported by competent, credible evidence going to all the essential elements of the case. As a result, we find that the probate court's findings was not against the manifest weight of the evidence. Accordingly, appellants' first assignment of error is not well taken. Judgment affirmed. -6- It is ordered that appellee recover of appellants her costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Probate Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. DAVID T. MATIA, C.J. and KRUPANSKY, J., CONCUR LEO M. SPELLACY JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .