Update: On February 26, 2020, the Supreme Court of Ohio handed down a merit decision in this case.  Read the analysis here.

Read the analysis of the oral argument here. 

On May 7, 2019, the Supreme Court of Ohio will hear oral argument in In Re Adoption of A.C.B., 2018-1300. The issue in the case is whether any support payment, no matter the size, is sufficient to preserve a natural parent’s right to object to the adoption of his or her child.

Case Background

J.B. (“Stepfather”) sought to adopt A.C.B., the minor child of his wife, A.C. (“Mother”) and B.D. (“Father”). Father opposed the adoption. The parties stipulated that Father had made a single $200 support payment toward his $4,420 annual support obligation within the statutory one-year period of R.C. 3107.07. The payment was made two days before the adoption petition was filed.

Father left the United States in 2013 when A.C.B. was two years old, and has not returned. He currently owes over $17,000 in unpaid child support. In a hearing, the Lucas County Probate Court found that, under R.C. 3107.07(A), Father had failed without justifiable cause to provide maintenance and support for the child as required by judicial decree, and that his consent to the adoption was not required. Father appealed, but did not challenge the “without justifiable cause” portion of the court’s ruling.

The Appeal

On appeal to the Sixth District Court of Appeals, Father argued that the probate court had abused its discretion by applying a more stringent standard of maintenance and support than required by the statute and precedent. Additionally, Father contended that Stepfather failed to prove Father’s failure to support by clear and convincing evidence.

The Sixth District, in a split decision by Judge Mark Pietrykowski and joined by Judge Thomas Osowik, affirmed the lower court’s decision, noting that Father was gainfully employed and only made the $200 support payment, which reflected less than three weeks of his child support obligation, 2 days before the adoption petition was filed. Stepfather met his burden proof by clear and convincing evidence. The majority overruled its decision in Celestino to the extent that it held that a single payment of child support constitutes maintenance and support as a matter of law.

Judge Christine Mayle dissented. She would find that R.C. 3107.07(A) must be strictly construed in favor of a non-consenting parent, and that a child support payment, no matter how meager, is still maintenance and support, thus requiring parental consent to the adoption. She also would not overrule Celestino.

Votes to Accept the Case

Yes: Justices DeWine, French, and former Justices O’Donnell and DeGenero

Justice Fischer would hold the cause for In Re Adoption of B.I., 2018-0182

No: Chief Justice O’Connor and Justice Kennedy

Key Statutes and 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 Holcomb, 18 Ohio St. 3d 361 (1985) (“[F]ailure 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.”)

Celestino v. Schneider, 84 Ohio App.3d 192 (6th Dist. 1992) (any contribution of support, no matter how small, satisfies the maintenance and support requirement, distinguishing a de minimis monetary gift which is not maintenance and support from a child support payment.)

In Re Adoption of M.B., 2012-Ohio-236 (De minimis monetary gifts from a biological parent to a minor child do not constitute maintenance and support, because they are not payments as required by law or judicial decree as R.C. 3107.07(A) requires. Syllabus paragraph 1.)

Father’s Argument

The express language of R.C. 3107.07(A) provides that any support during the statutory one-year period is sufficient to preserve a natural parent’s right to object to the adoption of his or her child. There must be a complete absence of support during the one-year period for consent to an adoption to be unnecessary.

The Sixth District’s prior precedent requires this strict reading of the statute. In Celestino, a single contribution, no matter the size, was enough to satisfy the support and maintenance requirement. Other appellate districts have also followed this strict interpretation.

This case differs from In Re Adoption of M.B. In that case the Court found that the small monetary gift that was made was not a payment of support required by law or judicial decree, whereas the $200 payment made in this case was. The requirement of more than a de minimus payment does not reach support payments made pursuant to judicial decree. Father’s $200 payment, no matter how meager, constituted maintenance and support as required by the statute.

Appellate districts are split on whether a strict interpretation of maintenance and support is necessary. Some follow the Sixth District’s prior precedent, Celestino, while others require more than de minimis support. A parent’s right to object to the adoption of his or her child should not depend on which appellate district is the venue of the adoption.  A parent’s constitutional right to raise his child is far too important.

Stepfather’s Argument

This Court’s decision in In re Adoption of M.B. provides the proper guidance for the present situation. The Court there held  that the determination of whether maintenance or support had been provided was soundly within the discretion of the trial court. The Sixth District used the ruling in In re Adoption of M.B. to reassess its Celestino decision, noting that Celestino had been implicitly overruled by In re Adoption of M.B.

The changes between R.C. 3107.07(A) and its predecessor, R.C. 3107.06(B)(4), demonstrate the General Assembly’s intent. The term “willfully” was replaced by “without justifiable cause,” lowering the burden of proof for failure to support. Further, the concept of “properly” providing maintenance and support was replaced with “failed . . . to provide for the maintenance and support . . . as required by law or judicial decree . . . .” This change in terminology indicates to parents that their rights will be protected so long as they comply with their support obligation. Natural parents can protect their right to object to an adoption by complying with child-support orders. Finally, the time-frame was reduced from two years to one year.

There was no need to add de minimis language to the support portion of the statute because the addition of the “judicial decree” language created a flexible system, unique to the circumstances of each parent. Father’s contention that a parent could make a single support payment per year in order to preserve his or her parental rights flies in the face of the General Assembly’s intent in revising the statute.

Father is also wrong to rely on the Celestino decision. That court compared failure to provide support to abandonment. However, abandonment is not mentioned in the statute. Further, the decision is contradictory. On the one hand, it requires failure to support to rise to the “magnitude” of abandonment; then, on the other hand, it allows “any” support to be satisfactory. Thus, it seeks no magnitude at all.

Father has failed to acknowledge the “without justifiable cause” language within the statute. It is a part of the evidentiary analysis for the trial court. Father failed to satisfy it. Current Ohio law adequately protects the needs of non-consenting parents. Parents can pay support obligations. Or parents can fail to pay support obligations with justifiable cause. Further, non-consenting parents can still argue that adoption is not in the best interest of the child. And, finally, if the prior methods are unsuccessful, parents may appeal the decision.

Father’s Proposed Proposition of Law

Pursuant to the explicit language of Ohio Revised Code 3107.07(A), provision of any maintenance and support during the statutory one-year period is sufficient to preserve a natural parent’s right to object to the adoption of their child.

 Stepfather’s Proposed Counter Propositions of Law

No. 1: Under R.C. 3107.07(A), whether a non-consenting parent has failed to “provide for the maintenance and support of the minor as required by law or judicial decree” for the requisite one-year period is a question of fact to be determined by the trial court.

No. 2: If the trial court determines that a non-consenting parent under R.C. 3107.07(A) failed to provide for the maintenance and support of the minor as required by law or judicial decree during the one-year period, then the trial court must determine whether such failure was without justifiable cause, which is also a factual issue to be determined by the trial court on a  case by case basis.

Student Contributor: Mark Tassone