“Therefore, the crux of the issue before us is this: if a court has issued a decree relieving a parent of any child-support obligation, is there a separate obligation that arises by law under which that parent still is required to provide maintenance and support to the child? The answer to that question is no.”

Justice Kennedy, Majority Opinion

“I would answer the certified-conflict question in the negative and hold that a judicial decree that relieves a parent of a child-support obligation is not dispositive of all maintenance-and-support obligations relevant to R.C. 3107.07(A).”

Justice Fischer, Dissenting Opinion

“A juvenile court’s order terminating a parent’s judicially ordered child-support obligation does not, as a matter of law, relieve that parent of his duty to provide maintenance and support for his child under R.C. 3103.03(A) and the common law.”

Justice Stewart, Dissenting Opinion

On June 25, 2019, the Supreme Court of Ohio handed down a merit decision in In re Adoption of B.I.,2019-Ohio-2450. In a 4-3 opinion authored by Justice Kennedy, joined by Justices French, DeWine and Donnelly, the court held that a parent with a zero child support order does not give up the right to contest the adoption of his child for failure to provide maintenance and support. Justices Fischer and Stewart dissented.  Chief Justice O’Connor also wrote a brief dissent, mostly joining Justice Stewart’s dissent.  The case was argued January 8, 2019.

Case Background

K.I. (“Mother”) and G.B. (“Father”) are the natural parents of B.I., born in 2007.  Mother and Father never married. In 2016, Mother’s husband G.I. (“Stepfather”) filed a petition in the Hamilton County Probate Court to adopt B.I., arguing that, pursuant to R.C. 3107(A), Father’s consent to the adoption was not required, for failure to provide for the maintenance and support of B.I. for the year preceding the filing of the petition.

Father went to prison in 2009 and remained there for the period relevant here. In 2010, at Mother’s request, the Clermont County Juvenile Court terminated Father’s child support order and reduced his arrearage to zero.  The Child Support Enforcement Agency was instructed to adjust its records accordingly.

During the one-year period before the filing of the adoption petition, Father received $18 per month prison income. In addition, his parents and a friend deposited $5152 into his prison account, almost of all which Father spent in the prison commissary, and none of which went as financial support to B.I.

A magistrate in the Hamilton County Probate court found that even though Father was not subject to a child-support order pursuant to a judicial decree, he still had money available and a parental obligation to support his child within his means.  Because Father had paid nothing during the relevant year, the magistrate found his consent to the adoption was not required.  The probate judge overruled the magistrate, holding that a valid zero-support order provides justifiable cause for failure to prove maintenance and support pursuant to R.C. 3107.07(A).

The First District Court of Appeals upheld the probate court judgment 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.

The Supreme Court of Ohio accepted the case on conflict certification and jurisdictional appeal, and combined the two appeals.

Certified Conflict

“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 (5^th Dist.)( zero support order was not justifiable cause for a failure to support.)

Stepfather’s Propositions of Law Accepted for Review

Proposition One

An adoption consent case under R.C. 3107.07(A) must be decided on a case-by-case basis through the able exercise of the trial court’s discretion. The trial court must give due consideration to all known factors in deciding whether a natural parent’s consent is required under the statute.

Proposition Two

In an adoption consent case under R.C. 3107.07(A), a court order setting the natural parent’s child support obligation to zero does not justify the parent’s failure to provide maintenance and support to his or her child as a matter of law. Instead, a trial court must exercise its discretion and weigh all of the circumstances around which a parent has failed to provide maintenance and support; and a so-called zero support order is just one factor (among many) that the court must consider.

Key Statutes and Precedent

This is the key statute at issue in this case:

R.C. 3107.07(A) (Adoption Consent Statute) (Consent to adoption is not required when a 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.)

Other Relevant Statutes and Precedent

R.C. 3101.03(A)  (spouses have an obligation to support themselves, each other, and their minor children out of their own property and labor.)

R.C. 3109.05 (Domestic Relations and Juvenile courts may issue child support orders to parents.)

R.C. 2929.21(A)(2) (No person shall abandon or fail to provide adequate support to…the person’s child under the age of 18. Failure to do so can result in criminal penalty.)

Rowland v. State, 14 Ohio App. 238 (3rd Dist. 1921) (defendant was not obligated to support his child as long as judicial order relieving him of support of child was in force.)

 In Re Dissolution of Marriage of Lazor, 59 Ohio St.3d 201, 572 N.E.2d 66 (1971) (all children have a right to be supported by their parents, regardless of the parents’ marital status.)

State v. Holl, 25 Ohio App.2d 75, 266 N.E.2d 587 (3d Dist. 1971) (parent’s compliance with judicial no-support order barred any prosecution for failure to support the child.)

In re Smith 77 Ohio App.3d 1, (1977) (Permanent termination of parental rights has been described as “the family law equivalent of the death penalty in a criminal case.”)

Meyer v. Meyer, 17 Ohio St.3d 222, 478 N.E.2d 806 (1985) (parental obligations can be determined by a court order issued in compliance with R.C. 3109.05 and R.C. Chapter 3119.)

In Matter of Adoption of Jarvis, 1996 WL 724748 (9th Dist.) (parent can be subject either to R.C. 3109.05 or R.C. 3103.03, but not to both at the same time.)

In Re Adoption of G.V., 2010-Ohio-3349 (“Any exception to the requirement of parental consent [to adoption] must be strictly construed so as to protect the right of natural parents to raise and nurture their children.”)

In the Matter of the Adoption of K.A.H., 2015-Ohio-1971 (10^th 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 A.N.W., 2016-Ohio-463 (7th Dist.) (“A zero support order or a no support order constitutes justifiable cause for failing to provide support and maintenance.”)

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

Merit Decision

Executive Summary

The majority looks at the whole statutory scheme of child support obligations and determines that non-support pursuant to a judicial decree means parental consent to an adoption is still required. A parent has the right to rely on a court order.

Analysis

Definition of No-support Order

The majority drops this definition in a footnote- “The term ‘no-support order’ encompasses, for purposes of this opinion, orders terminating previously ordered support, zero-support orders, and orders modifying a previously ordered support amount to zero.”

Three-step Process to Determine if Parent Met Requirement of R.C. 3107.07(A)

Step one: what did the law or judicial decree require of the parent during the year before the adoption petition was filed?

Step two: Did the parent comply with his or her obligation?

Step three: if not, was there justifiable cause for the failure?

For the majority, this case is only about step one.

If a parent had no obligation to pay child support, the analysis should end there. But courts have tended to consider a zero support order as part of the step three analysis. The probate court did that in this case. Wrong way to look at it.  The issue is not (even though the briefing was ordered on this) whether an order relieving a parent of a child support obligation provides justifiable cause for failure to provide maintenance and support.  The issue is whether the existence of a no-support order means the parent subject to that order (Father, here) was under no obligation to provide maintenance and support. So the threshold issue in this case is to determine what Father’s obligation was as required by law or judicial decree the year before the petition was filed. And the answer is that if there is a no-support order required by judicial decree for that year, there is no other support obligation required by law.

The Binary Legislative Scheme

The legislature created a binary system here. A parent has a general support obligation when there is no court order and a specific obligation when there is a judicial decree. A parent has one or the other, but not both.

At common law all parents have a duty to support their minor children.  That duty is now codified at R.C. 3103.03. Parents can be ordered to support their children by a domestic relations court as part of the termination of a marriage. Unmarried parents can be ordered to pay support by a juvenile court. These courts can modify child-support orders and reduce them to zero, and maintain jurisdiction to make future modifications.

It is the child-support order that sets the parent’s obligation, and replaces the common law duty of support. They are not side-by-side obligations.  When there is a child support order, that is what sets the parental obligation. That is why the phrase “or” is in R.C. 3017.07(A)—“by law or judicial decree.”

What Was Required of Father Here?

Father’s child support obligation in this case was set by the Clermont County Juvenile Court, which set it at zero at Mother’s request. That was by judicial decree. Father had no other duty to continue to provide maintenance and support to B.I. End of story. The court’s decree supersedes the general support obligation in R.C. 3103.03(A). The juvenile court still has jurisdiction to modify this obligation from zero to something else.

Certified Conflict Case Wrongly Uses Criminal Statute to Impose Support Obligation

The certified conflict case, In Re Adoption of A.S. incorrectly incorporated the criminal non-support statute, R.C. 2919.21(A)(2) to find that a parent had failed to provide for a minor child as required by law. There cannot be a violation of that criminal non-support statute if a court has modified the parent’s support obligation to zero.

Stepfather’s Reading of Statute Unacceptable

A parent has the right to rely on a no-support order issued by a court with authority to do so. To hold otherwise would “undermine the integrity of child-support orders,” wrote Kennedy. “The General Assembly did not create a child-support system in which a domestic-relations or juvenile court determines by court order an adequate level of child support, only to have a probate court sever the parental rights of a parent because the parent abided by that support order.”

Answer to Certified Question

Because it redefined the issue, the majority does not answer the certified question explicitly. The majority opinion holds that a court order relieving a parent of a child support obligation does supersede any other duty of maintenance and support (first part of certified conflict question) but also holds the justifiable cause analysis is not required when a parent abides by and relies on a no-support order (second part of certified question).

Justice Fischer’s Dissent

Justice Fischer would answer the certified question in the negative and believes the majority’s interpretation of R.C. 3107.07(A) ignores the plain language of the statute. He homes in on the word “or” in the statute—“as provided by law or judicial decree.” To him, a parent’s consent to an adoption is not required either if the parent has failed to provide support for the minor as required by law or as provided by judicial decree, and the failure to fulfill either of these two obligations is enough to move on to what the majority calls step 3-was there justifiable cause for the failure? He calls out the majority for what he considers its rewriting of R.C. 3107.07(A).

Justice Fischer’s Four-Step Analysis

Step 1: court must examine any relevant judicial decree.

Step 2: regardless of whether there is a judicial decree, or what it requires, the court must determine the level of support required by law other than by judicial decree.

Step 3: the court must then determine whether the non-consenting parent has failed to meet either or both of the legally required levels of support during the pertinent one-year period.

Step 4: if the parent has failed to meet either or both, the court must then weigh several factors, including, but not limited to what was ordered in the judicial decree, and determine whether there was justifiable cause for that parent’s failure.

Where Does Zero Support Order Fit Into The Multi-step Analysis?

Such an order does play an important role. A zero-support order may have been entered because the court found a parent lacked the ability or resources to provide support.  While such an order is not dispositive in adoption-consent cases, the facts underpinning the order may result in the dismissal of the adoption petition.

Justice Stewart’s Dissent

Short Version

Justice Stewart would answer the certified conflict question in the affirmative, adopt both of Stepfather’s proposed propositions of law, and remand the case to the probate court to determine the issue of justifiable cause.

Distinction Between Order Terminating Child Support and Order Establishing Child Support

Justice Stewart draws a distinction between a court order terminating child support and a court order establishing support. She doesn’t believe that a court order relieving a parent of a previously-imposed child support obligation should function the same way as a judicial order establishing a support obligation.

In this case, there is no dispute that the juvenile court ordered Father’s child support obligation terminated, and there is no dispute that Father failed to support his child in the year before the adoption petition was filed.  So, to Stewart, R.C. 3107.07(A) requires the probate court to determine by clear and convincing evidence whether Father’s failure to provide support was without justifiable cause. She accepts the majority’s three step analysis, but unlike the majority, which stops at step one, she believes all three steps are in play here.

Interplay Between Statutory and Common Law Duties of Support

There are separate common-law and statutory duties to support a child. R.C. 3103.03(A) establishes the statutory duty of support. But this duty is separate from a court-ordered child support obligation. Justice Stewart agrees that when a court enters a child-support order, that order supersedes the duty of support under R.C. 3103.03(A) and the common law duty. That’s the first part of the certified question. But then, in a significant departure from the majority view, Justice Stewart would hold that when a judicial decree relieves a parent of the court-ordered duty of support, the duty of support still exists. “To hold otherwise would effectively eliminate any duty that a parent has to support his or her child,” wrote Stewart. “It would defy logic to think that any court order or statute would mandate that a parent not support his child.”

Effect of Juvenile Court Order in this Case

To Stewart, when the juvenile court terminated the child-support order and arrearage in this case, it did not order zero support or order Father not to support his child. The court did nothing more than relieve Father of his judicially-ordered support obligation so that he could not be pursued for non-support. But his common law duty to provide for the child’s necessaries remained, notwithstanding the termination of his court-ordered obligation. Since there is no dispute that Father failed to pay child support for the year before the adoption petition was filed, the only question remaining was whether that failure was justifiable. That must be determined by considering all relevant factors.

Where the Probate Court Erred

To determine whether Father’s failure to provide child support was justifiable, instead of considering all relevant factors, the probate court erred by accepting the juvenile court’s termination of existing support as conclusive evidence of justifiable cause. The probate court must consider and weigh all relevant evidence. She criticizes the majority for going beyond the question presented in the case and making a decision that should be made by the probate court, and for wrongly equating an order terminating a child-support obligation with an order establishing such an obligation.

Burden of Proof

Stewart would also overrule past precedent placing the burden of proving “without justifiable cause” on the adoption petitioner, because the statute places no such burden on the petitioner. Instead, she would place the burden on the trial court to find, not the petitioner to prove, by clear and convincing evidence that the parent has failed without justifiable cause to support the child. The petitioner of course would be wise to present such evidence.

Bottom Line

In an adoption consent case under R.C. 3107.07(A), where a court has terminated a parent’s court ordered child-support obligation, and the parent hasn’t provide maintenance and support for the year before the adoption petition was filed, the probate court must determine, based on all relevant factors, whether the failure to support was without justifiable cause.

Chief Justice O’Connor’s Dissent

The Chief wrote a single paragraph dissent, joining Justice Stewart’s dissent except for the burden of proof part.

“The majority creates a legal fiction with the term ‘no-support order’ and incorrectly uses that term to describe three factually distinct scenarios: ‘orders terminating previously ordered support, zero-support orders, and orders modifying a previously ordered support amount to zero,’” O’Connor wrote. The Chief would also send the case back to the probate court to determine whether Father had justifiable cause for failing to support his child.

Concluding Observations

After argument, I thought that “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.” I thought the case would be sent back to the Probate Court to make that determination. That position did not get a majority, but I still think it is the better view here. As student contributor Mark Tassone noted, Justice Donnelly clearly felt that citizens should be able to rely on a court order with the confidence that it will be enforced. That position did command a majority. I think it will be interesting to see the effect this decision has on the case of In Re Adoption of A.C.B., 2018-1300, which was argued May 7, 2019.  You can read about that case here.