“This appeal charges us with the unenviable task of reaching a result that either overrides the adoption plan of a diligent birth mother and separates P.L.H. from the only home he has ever known or that terminates permanently C.W.’s fundamental right to raise and nurture his child.”

Justice French

On July 18, 2017, the Supreme Court of Ohio handed down a merit decision in In re Adoption of P.L.H., 2017-Ohio-5824. While only four of the justices agreed with Justice French’s majority opinion in full, all of the justices agreed that the probate court decision that the putative father’s consent to the adoption of P.L.H. was not required because he had willfully abandoned the birth mother during her pregnancy and up until the time of the child’s placement was against the manifest weight of the evidence. Justice DeWine concurred in judgment only and wrote a separate opinion joined by Chief Justice O’Connor.  The case was argued June 21, 2017.

Case Background

C.W. is the putative father in this case. He and S.C., who is the birth mother, met as undergraduates in college.  S.C. paid a visit to C.W. at his home in Louisiana during the Mardi Gras in February of 2015. The child was conceived on this visit.  S.C. called C.W. in March to inform him of the pregnancy and of her intent to place the child for adoption with the Adoptive Parents, appellees in this case.  Later text messages from C.W. show that he was ambivalent about this.

Communication between C.W. and S.C. during the pregnancy consisted of two telephone calls and numerous text messages. Justice French goes into great detail about this in her opinion.  The key points from the record are these:

• During the early months of the pregnancy, communications between the two were friendly and affectionate.
• There was a period from the beginning of June to the beginning of September 2015 where there was no communication at all.
• On September 2, S.C. asked C.W. for his address so she could send him a consent to the adoption form. He indicated his unwillingness to sign; she testified that this shocked her, and she asked C.W. to contact her lawyer.
• C.W. sent more texts after the nearly three months of silence. S.C. did not answer them.

The Lawyers Get Involved

On September 28, C.W.’s lawyer sent a letter to S.C.’s lawyer, advising S.C.’s lawyer that C.W. sought sole custody of the child, objected to any adoption proceedings, and offered to assist S.C. with the medical expenses and costs related to the pregnancy and her care. The letter expressly stated that C.W. did not want S.C. to believe she had been abandoned during her pregnancy, and included a copy of C.W.’s registration with the Ohio Putative Father Registry.

The Adoption Proceedings Go Forward

P.L.H. was born on November 3, 2015. The next day S.C. filed an application to place P.L.H. with the Adoptive Parents. On November 6, 2015, the Butler County probate court approved the application, the Adoptive Parents filed their petition for the adoption, and S.C. filed her consent. C.W. had not yet learned of the child’s birth. When he did, on December 3, he filed a complaint in juvenile court to establish paternity and temporary custody. That same day he received a notice from the probate court of the adoption petition, to which he filed a timely objection.

Probate Court Determination

On April 13, 2016, a hearing was held in the probate court to determine if C.W.’s consent to the adoption was required. The court held that it was not required pursuant to R.C. 3107.07(B)(2)(c) because C.W. had willfully abandoned S.C. during her pregnancy, up to the time of placement with the Adoptive Parents.  The court rejected other statutory bases for not requiring paternal consent, and declined to address as unnecessary a constitutional due process argument made by the mother. After determining that C.W.’s consent was not required, the court went on to determine, pursuant to R.C. 3107.161, that adoption by Adoptive Parents would be in P.L.H.’s best interest.  Their petition to adopt was granted.

C.W. appealed, arguing that the probate court’s decision was against the manifest weight of the evidence. It should be noted that although the probate court rejected three other bases for finding C.W.’s consent to be unnecessary, Adoptive Parents did not file a cross-appeal from those findings.

The Appeal

In a split decision written by Judge Stephen Powell, and joined by Judge Ringland, the Twelfth District Court of Appeals affirmed. Judge Hendrickson dissented, finding the decision of the probate court to be against the manifest weight of the evidence. To him, the record did not establish by clear and convincing evidence that C.W. willfully abandoned S.C. during her pregnancy, meaning he did not desert S.C., forsake her, or relinquish all connection with her during her pregnancy. He noted that “care and support” are not components of willful abandonment under R.C. 3107.07(B)(2)(c), as they are in section (B)(2)(b) of the same statute, and therefore has no relevance in determining whether the putative father has willfully abandoned the mother.

Read the oral argument preview of the case here and the analysis here.

Key Statutes and Precedent

R.C. 3107.07(B)(2)(c) (A putative father’s consent is not required for adoption of a minor child when the father has willfully abandoned the mother of the minor during her pregnancy and up to the time of her surrender of the minor, or the minor’s placement in the home of the petitioner, whichever occurs first.)

R.C. 3107.07(B)(2)(b) (A putative father’s consent is not required for adoption of a minor child when the father has willfully abandoned or failed to care for and support the minor.)

Belvedere Condominium Unit Owners’ Assn. v. R.E. Roark Cos. Inc., 67 Ohio St.3d 274 (1993) (When a legal issue that was not raised below is necessary to decide, in order to reach a legal issue that was raised, the court may address the unraised issue.)

Santosky v. Kramer, 455 U.S. 745 (1982) (Parents have a fundamental liberty interest in the care, custody, and management of their children and  this interest does not disappear because they have been less than model parents or have lost temporary custody of the child. The state must, when it seeks to destroy weakened family bonds, provide parents with fundamentally fair procedures.)

In re Adoption of Masa, 23 Ohio St.3d 163 (1986) (The party petitioning for adoption has the burden of proving, by clear and convincing evidence, that the natural parent failed to support the child for the required one-year period and that the failure was without justifiable cause.)

Canton v. Canton, 2007-Ohio-4005 (A third party will not have standing to sue on behalf of another unless the claimant (1) suffers a real injury in fact; (2) possesses a sufficiently close relationship with the person who possesses the right; and (3) shows some hindrance in the way of the claimant seeking relief.)

Merit Decision

Analysis

The Waiver Argument

Adoptive Parents had moved to dismiss the appeal on the ground that C.W. had never argued to the appeals court what he asserted in his proposed proposition of law, namely that R.C. 3107.07(B)(2)(c) does not include a requirement that a putative father failed to provide care and support to the mother. While the court found that C.W. did not expressly argue that, he didn’t waive this argument either, because that issue had to be resolved in order to resolve a legal issue that was raised, namely whether C.W. “willfully abandoned” the birth mother.

Meaning of Willfully Abandoned

Key here is the difference in the statutory requirements of R.C. 3107.07 (B)(2)(b) and (B)(2)(c). Under R.C. 3107.07(B), the consent of the putative father is not required if the probate court finds either that the father has willfully abandoned or failed to care for and support the minor (subsection (b), not the basis of the decision here) or has willfully abandoned the mother during her pregnancy and up until the time of placement (subsection (c) which is at issue here.) Unlike subsection (b), subsection (c) has no requirement for “failure to care for and support.”

The majority rejects the reliance on lack of financial support as the basis for finding willful abandonment under subsection (c), expressly noting that the words “care for and support” are not in that part of the statute, and courts can’t add words to statutes.  Justice French, always the stickler in statutory construction matters, urges the appellees and their amici to take this disparity up with the General Assembly.

While the court holds that if a father does provide care and support to the mother, the probate court can consider that as a factor to refute the allegation of willful abandonment, but the failure to do so cannot be the basis for a finding of willful abandonment.

So, what does willful abandonment actually mean?  The court turns to dictionary definitions.  Willful means “voluntary, and intentional, but not necessarily malicious.” Abandoned means relinquishing, giving up, permanently deserting. In interpreting this statute, then, a probate judge is to look at whether the putative father voluntarily or intentionally deserted, forsook or abdicated all responsibility for the birth mother.

Applying this definition to the evidence in this case

So, now the question becomes, leaving aside the question of failure to care for and support, did the evidence in this record demonstrate willful abandonment, thus making C.W.’s consent to the adoption unnecessary? The burden of proving this is on the Adoptive Parents, by clear and convincing evidence. The record shows repeated attempts by C.W. to keep lines of communication—even if sporadic and erratic– open, and that any gaps in communication could just as well be laid at the feet of the mother as the father.

Bottom Line

The court finds that the finding of willful abandonment by the probate court is both contrary to the express language in subsection (c) and against the manifest weight of the evidence.

So What Does This Mean?

As Justice French notes, normally a determination that the court below used the wrong legal standard merits a remand. But that isn’t necessary here because the record contains no evidence to support a finding of willful abandonment. (Professors’ note: Justice French did the same thing in upholding a summary judgment despite using the wrong standard in Argabrite v. Neer, 2016-Ohio-8374. ) So, the matter is sent back to the probate court with the express mandate to vacate the decree of adoption and dismiss the adoption petition.  Because there was no cross appeal on the denial of other bases for finding paternal consent unnecessary, the court’s ruling resolves the adoption petition issue.  And the court rejected the Adoptive Parents’ attempt to argue a violation of the birth mother’s constitutional rights, because of a lack of standing on that issue. So, the door on this adoption has been slammed shut.

Justice DeWine’s Separate Concurrence

Justice DeWine agrees that the evidence does not support a finding of willful abandonment here. But he takes issue with the majority’s analysis of that term. He accepts the majority’s dictionary definition of willful abandonment, agreeing that C.W. did not abdicate all responsibility toward S.C.  And he would quit there, believing that is all that is necessary to decide the case.

DeWine’s main criticism of the majority opinion is its finding that lack of financial support can never be relevant to the question of whether a putative father willfully abandoned a pregnant mother because of the difference in the language between subsections (b) and (c) of the statute at issue here. While he agrees that failure to provide financial support cannot be dispositive of the issue of willful abandonment, he sees it as a relevant factor in the analysis.  It is one factor among others. He also is particularly puzzled by and critical of the majority position that while the failure to provide financial support may not be considered against a putative father,  the providing of that support may be considered in his favor. He calls that “a headscratcher.”

DeWine’s position, in short:

“I would keep it simple: the failure to provide financial support is not dispositive but may properly be considered part of the determination whether the father has “willfully abandoned” the mother under R.C. 3107.07(B)(2)(c).” He thinks phone conversations, letters, and text messages may also be proper considerations.

DeWine agrees that the probate court’s decision was against the manifest weight of the evidence, and thus agrees with the majority’s judgment.

Chief Justice O’Connor joined this separate concurrence.

Case Syllabus

None

Concluding Observations

Kudos to my student contributor Mark Tassone for calling this correctly on his first case as a blogger. While he and I both agreed this didn’t in any way turn out to be the no brainer for the Adoptive Parents it looked like from the briefs, I missed this one. I did, however, think the court would adopt a definition of willful abandonment that includes a totality of the circumstances, to be determined on a case by case basis, of which failure to provide support can be considered a factor—essentially the position of Justice De Wine and the Chief, which I thought more persuasive than the majority position on the question of financial support.

All I can say is this is certainly a cautionary tale for adoptive parents who proceed without the issue of the father’s consent being totally and finally settled. How sad for everyone. What happens to P.L.H. now? That’s unknown, and is beyond the scope of this opinion. The blog will check on this in about six months.