Update: On June 25, 2019. The Supreme Court of Ohio handed down a merit decision in this case. Read the analysis here.

“What this judgment entry did is wipe the slate clean as far as a judicial decree establishing an amount to be paid. That didn’t negate the common law duty to have a parent support a dependent child to the best of their ability. And the argument is, he had $5600 at his disposal and not one penny of it went to the child.”

Chief Justice O’Connor, to Father’s lawyer

On January 8, 2019, the Supreme Court of Ohio heard oral argument in the case of In re: Adoption of B.I. 2018-0182. At issue in this case is whether, pursuant to R.C. 3107.07(A), the consent of a parent with a zero child support order is required for an adoption. The case was accepted on discretionary appeal and conflict certification, and consolidated with cases 2018-0181, 2018-0350, and 2018-0351.

Certified Conflict Question

“In an adoption consent case under R.C. 3707.07(A ) in which a court has previously relieved a parent of any child-support obligation, does that previous order supersede any other duty of maintenance and support so as to provide ‘justifiable cause’ for the parent’s failure to provide maintenance and support, therefore requiring the petitioner to obtain the consent of that parent?”

Certified Conflict Case

In Re Adoption of A.S., 2011-Ohio-1505 (5th Dist.)( zero support order was not justifiable cause for a failure to support.)

Case Background

Gary Burbage II (“Father”), the natural father of B.I., was incarcerated in 2009. In 2010, in order to avoid Father’s re-incarceration upon his release from prison, B.I.’s mother Kristen (“Mother”) agreed to an order by the Clermont County Juvenile Court setting Father’s child support obligation and arrearage at zero. Father had prison income of $18 per month. Father also had contributions to his prison account totaling $5,152 of which he has spent $4,681.62 at the prison commissary—largely on food. In the year prior to the adoption petition, Father never provided maintenance or support for B.I., nor was he asked to do so.

Greg Iredale (“Stepfather”) seeks to adopt B.I. Mother has consented to the adoption, but Father has not. In February 2016, Stepfather petitioned the Hamilton County Probate Court, alleging that under R.C. 3107.07(A), Father’s consent to the adoption was not required because Father failed without justifiable cause to provide maintenance and support for B.I, and that Father had a duty to support his son by law, separate from the zero child support order.

The Hamilton County Probate Court found that the zero support obligation excused Father’s obligation to provide maintenance and support. Thus, Father’s consent was required for the adoption to proceed. Stepfather’s case was dismissed. Stepfather appealed.

The First District Court of Appeals upheld the trial court’s ruling in a split decision. The majority found that under R.C. 3107.07(A), a parent cannot fail without justifiable cause to provide maintenance and support with a zero child-support order, and rejected the stepfather’s argument that a parent still has a duty of support separate from a judicial decree of support.  Thus the father’s consent to the adoption was required. The dissenting judge would find that the 2010 order terminating the father’s support was not a zero child-support order, but should be treated as if no order exists, and would remand the case to the probate court to determine if the failure to provide support was justified.

Read the oral argument preview of the case here.

Key Precedent

R.C. 3107.07(A) (Adoption Consent Statute) (Consent to adoption is not required when  parent fails  without justifiable cause to provide maintenance and support for the minor child for at least one year, as required by law or judicial decree.)

In Re Adoption of Schoeppner, 46 Ohio App.2d 21 (1976)  (“although the fact of imprisonment might, when combined with other factors, lend support to a finding of a willful failure to support, it will not constitute such failure as a matter of law.”)

In Re Adoption of Holcomb, 18 Ohio St. 3d 361 (1985) (the determination of whether justifiable cause exists is best left to the discretion of the probate court.)

In Re Adoption of Masa , 23 Ohio St. 3d 163 (1986) (Minimal income from welfare was justifiable cause for failure to provide support; thus, parent’s consent was required for adoption.)

In Re Adoption of Stephens, 2001-Ohio-7027 (2nd Dist.) (A court order absolved parent of both her statutory and judicially decreed duty of support. Thus, failure to support was justifiable.)

Frymier v. Crampton, 2002-Ohio-3591 (5th Dist.) (parent cannot use zero support order as a potential shield when own bad acts caused the incarceration and zero support order in the first place.)

In Re D.R., 2011-Ohio-4755 (7th Dist.) (“Appellant presented absolutely no evidence that he was prevented from making support during any part of the period in question. . . . [I]ncarceration alone is not a justifiable excuse . . . .”)

In Re Adoption of C.M.F., 2013-Ohio-4719 (12th Dist.) (“A determination that a parent failed to provide ‘support and maintenance’ must be based on a failure to make payments as required by law or judicial decree. The issue of whether justifiable cause exists when a parent is incarcerated is a factually specific determination based on the circumstances and evidence presented at the hearing.”) (Citations omitted).

In the Matter of the Adoption of K.A.H., 2015-Ohio-1971 (10th Dist.) (Parent living in foreign country, subject to no support order under divorce decree, did not fail to support his children by expending money on phone calls, cards, and gifts.)

In Re Adoption of Z.A., 2016-Ohio-3159 (5th Dist.) (“[A]ppellant was in jail and in prison as a result of his own wrongdoings and this is not justifiable cause for the failure to communicate and/or maintain support. Incarceration alone is not a justifiable excuse, even if it lasts for the entire period considered by the court.”) (Justice Kennedy would have included this as a conflict case).

At Oral Argument

Whenever there is a turnover on the Court, the seats get shuffled, so at this oral argument, familiar faces are in unfamiliar seats. And Sharon Kennedy is now the senior associate justice.  Still not asking questions, though.

Arguing Counsel

Bradley D. McPeek, Lindhorst & Dreidame Co. LPA, Cincinnati, for Appellant Greg Iredale (Stepfather)

Susan Mineer, Batavia, for Appellee Gary Burbage II (Father)

Stepfather’s Argument

Generally speaking, in Ohio, adoption requires the consent of the natural parents, but there are exceptions to that general rule. Pertinent here is the second prong of 3107.07(A)(2), which states that consent to an adoption is not required when the natural parent has failed without justifiable cause to provide for the maintenance and support of the child as provided by law or judicial decree. In this case, Mr. Burbage failed to provide maintenance and support for his son, B.I. The second issue is whether there was justifiable cause for that failure. So the elements which the court must decide are was there a failure and was there justifiable cause.

“By law or judicial decree” is rolled up into the justifiable cause prong of the analysis. We are here to determine what that phrase means. If there is any ambiguity to this statutory language, the intent of the statute is to distinguish between cases where there is an unwilling parent who is financially able to care for a child but doesn’t, and a willing parent who just doesn’t have the means to do it. Even a parent with limited means must make some effort within those means to support his or her child.

The best way to make the necessary determination here is not just to look at a zero support order, but rather to look at all the facts and circumstances and then have the probate court determine what is in the best interest of the child. A zero child support order is only one factor, albeit a significant one, in that analysis. But bad actors like Mr. Burbage shouldn’t be allowed to benefit from their bad acts in these kind of cases, and use them as a shield.

Father’s Argument

We are here on the question of whether a natural parent who follows a valid court order and a valid judicial decree can have his parental rights terminated. Parents have special rights. The right of a parent to raise his child is probably the oldest fundamental right there is. Termination of that right is like a death sentence in a criminal case.

Mr. Burbage was following the order that he received from the Clermont County Juvenile Court that was requested by B.I.’s mother. Mother went into juvenile court and asked for the support order to be terminated, and she waived all arrearage. And Mr. Burbage was following that order, which was a zero support order, so he sent no support. The statute at issue here, R.C. 3107.07(A), sets a support obligation by law “or” judicial decree, not “and”.  A substantial majority of the appellate districts that have considered this issue have held that a zero support order is justifiable cause for requiring consent for adoption.

When Mr. Burbage received a zero support order he was not notified that his rights would be terminated if he didn’t pay some sort of support in addition to that order. Some sort of notification would be required if that were the case. There are also grandparent rights implicated here, as they have court-ordered time with B.I. The statute in this case should be interpreted as written, without adding words to it.

What Was On Their Minds

Pretty much one thing only:

Significance and Meaning of A Zero Support Order

So, it’s the stepfather’s position that a zero child support order can’t be the sole determining factor for the court saying the signature of the father is still required, asked Justice Stewart? It’s a factor, but not the only factor? What if the probate court had done that, weighed the zero support order among other factors, and come to the same conclusion?  If Father had sent $25 in support, or as a birthday gift, would he have been violating the court order? Would he have been violating the order if he had just voluntarily sent money?

A zero support order doesn’t do away with a parent’s duty to support as set out by law, to the best of the parent’s ability, does it, asked Chief Justice O’Connor? She commented that Father had $5600 come into his prison account and used it for food but didn’t even send $10 to the child or the mother. She got into a back-and-forth with Father’s lawyer about the meaning of the Clermont County Order, drawing a distinction between terminating a child support order and setting a zero support order.

Prior to the agreement between the parties, wasn’t Father paying 25% of his prison income until the parties agreed he didn’t have to pay anything, asked Justice French? Aren’t there some circumstances under which it would be fair to say this parent could have provided, but didn’t? In the case of fraud, for example, would it not be fair to expect a parent to have provided support even if there is a zero support order?  Are there not some circumstances that would call for a possible exception, that even if there is a zero support order, the court should have the ability to look beyond that zero support order and say, in this case, the parent should have been providing something?

Don’t people in our state have the right to rely on court orders, asked Justice Donnelly? Has there been any other circumstance where this court has allowed a trial court to get around a court order?

How It Looks From The Bleachers

To Professor Emerita Bettman

I think a majority is going to mandate a totality of the circumstances approach to determine if the failure to provide support was justified, and thus consent to an adoption required by a natural parent, and that a zero child support order is just one factor, albeit a significant one, in the equation. The women justices (except Justice Kennedy, who was silent) were more actively engaged in this oral argument than the men. The Chief in particular seemed to agree with the position of dissenting Judge Charles Miller in the First District decision, that a zero support order is not an order affirmatively stating the father had to pay zero dollars, but rather a termination of the existing support obligation, and is not a pass on a parent’s duty to support his or her child. And Justice Stewart, in her first day on the bench, was a very active questioner.

But as Father’s lawyer pointed out, in fairness to Father here, when Father received a zero support order, he was not notified that his rights would be terminated if he didn’t pay some sort of support, and he was certainly entitled to notice on something that important. So I think the case is going to be sent back to the Hamilton County Probate Court to determine if the failure to provide support was justified, using a totality of the circumstances test, of which the zero support order, however it is characterized, is one factor.

To Student Contributor Mark Tassone

In general, Stepfather’s argument seemed to lack momentum. Stepfather stumbled at the gates with a fumbled attempt to respond to Justice DeWine’s question whether Father was required by law or judicial decree to provide support. Stepfather never answered. Stepfather instead contends that, rather than using the specific language of the statute, the court should look to the “intent” of the statute. I don’t buy it. And I don’t think Justice DeWine did either.

Stepfather’s public policy argument did, in my mind, carry more weight. Malefactors should not be able to hide behind statutes such as these as a shield from the fruits of their actions. However, as Justice Donnelly pointed out, citizens should be able to rely on a court order with the confidence that it will be enforced.

Father, in my opinion, got off to a better start by supplementing Stepfather’s recitation of the facts. However, Chief Justice O’Connor quickly attacked the existence of a “zero-support order” in the record. The Chief Justice identified the order as terminating the support order rather than setting the support amount to zero. Father conceded that without a zero-support order, the common law duty to support a child would remain in place.

On the whole, I got the impression that neither Stepfather nor Father was entirely prepared for this oral argument. I was genuinely intrigued by the Chief Justice’s comments on the record. I have a suspicion that this case could end up being punted as improvidently granted. Assuming that the court does rule on it, I think Stepfather is likely to prevail.