“Certainly, a parent who makes only one payment during the year—and thus is substantially in arrears on that year’s child support—has failed to provide support as required by law or judicial decree for a period of at least one year preceding the filing of the adoption petition.”

Justice DeWine, lead opinion

“The General Assembly, as the sole arbiter of public policy, did not use a payment threshold as the trigger to remove the right to withhold consent; it used a temporal threshold: one year.”

Justice Kennedy, dissenting opinion

“…I believe it is a mistake to construe a child-support payment, even a partial one, made pursuant to a judicial decree as anything other than providing maintenance and support for purposes of preserving a parent’s right to withhold consent to the adoption of his or her child under R.C. 3107.07(A).”

Justice Stewart, dissenting opinion

On February 26, 2019,the Supreme Court of Ohio handed down a merit decision in In re Adoption of A.C.B., 2020-Ohio-629. In a fractured opinion, the Court held that the biological father’s consent to the adoption in this case was not required because he failed to provide maintenance and support for the child as required by law or judicial decree for one year prior to the filing of the adoption petition. Justice DeWine wrote the lead opinion, joined by Chief Justice O’Connor and Justice French. Justice Fischer concurred in part and concurred in judgment with an opinion. Justice Kennedy dissented, with an opinion joined by Justice Donnelly. Justice Stewart wrote a solo dissent. The case was argued May 7, 2019.

Case Background

The marriage of A.C.B. s parents was dissolved in Indiana in 2013. Mother was awarded custody and Father was required to pay $85 per week in child support. Shortly after the dissolution, Father moved back to Kosovo. After he left, Father made only occasional, sporadic child-support payments, which lessened over time.

Mother moved to Ohio and married Stepfather. In 2015 Mother asked Father if he would consent to Stepfather adopting A.C.B., but Father refused. In 2017, Stepfather petitioned the probate court to adopt A.C.B. Stepfather argued that Father’s consent to the adoption was not required because Father had, without justifiable cause, failed to provide maintenance and support as required by law or judicial decree for the year before the filing of the adoption petition. Two days before the filing of the adoption petition, Father made a single child-support payment of $200. At the time of the hearing, Father owed over $17,000 in back support.

The probate court found that Father had failed to provide for the maintenance and support of A.C.B. as required by the judicial decree, and that his failure was not justifiable. The Sixth District affirmed.

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

Father’s Proposition of Law Accepted for Review

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.

Does the Majority Adopt Father’s Proposition of Law?

No

Key Statute in this Case

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.)

Other Key Precedent

In re Adoption of Holcomb, 18 Ohio St.3d 361 (1985) (The explicit language of an earlier version of R.C. 3107.07(A) controlled in defining a parent’s communication with his or her child. “[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.”)

In re Adoption of Masa, 23 Ohio St.3d 163 (1986) (Natural parents’ rights are fundamental; any exception allowing adoption of the parent’s child without the parent’s consent must be strictly construed.)

In re Adoption of Bovett, 33 Ohio St.3d 102 (1987) (“[T]he petitioner for adoption has the burden of proving, by clear and convincing evidence, that the natural parent has failed to support the child for the requisite one-year period and that this failure was without justifiable cause.”)

In re Adoption of Sunderhaus, 63 Ohio St.3d 127 (1992) (R.C. 3107.07(A) requires one year of “nonsupport.”)

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.)

In re Adoption of P.L.H., 2017-Ohio-5824 (The court “must construe strictly any exception to the requirement of parental consent to adoption in order to protect the right of natural parents to raise and nurture their children.”)

Merit Decision

Analysis

The decision in this case involves four different interpretations of R.C. 3107.07(A).

Lead Opinion

The lead opinion’s view of the case is that because Father did not challenge the probate court’s finding of lack of justifiable cause to make his payments, the only issue before the court is whether the single $200 payment during the relevant one year period constitutes maintenance and support “as required by law or judicial decree.” Lack of justifiable cause is not at play here. It’s good to keep that in mind when sorting out this decision.

The judicial decree is clear. Father was ordered to pay $85 per week, for a total of $4420 per year.  He didn’t pay what the judicial decree required. As Justice DeWine notes, Father didn’t even come close.  He had an arrearage of over $17,000. And he paid only $200 for the entire year before Stepfather filed the adoption petition. Thus, under the plain and unambiguous language of the statute, Father failed to provide maintenance and support for A.C.B. as required by the judicial decree for the requisite one-year period. So, his consent to the adoption is not required.  It’s that simple.

Justice Fischer’s Position: Specifics of this Judicial Decree Not Met

Justice Fischer disagrees with the lead opinion’s finding that R.C. 3107.07(A) is unambiguous, in part evidenced by the differing views of it taken by the parties, lower courts, and the justices in this case. Fischer would resolve the ambiguity by referring to the specifics of the judicial decree in each case. The judicial decree in this case required a payment of $85 each week. On many occasions in the year before the adoption petition was filed, Father failed to pay that required weekly amount.  A single payment of child support over the course of a year does not constitute a full year’s compliance with a judicial decree requiring weekly payments. Thus, the terms of the judicial decree were not met. So, Justice Fischer agrees with the lead opinion that Father’s consent to this adoption was not required.

Justice Kennedy’s Dissent

Justice Kennedy agrees with the lead opinion that R.C. 3107.04(A) is unambiguous. But Kennedy would find that the statutory trigger to eliminate a parent’s right to withhold consent to an adoption is based on time—one full year–not on the amount of support paid. She criticizes the majority for reading the durational condition out of the statute. Only after a natural parent has failed to provide any support for the entire one-year period as a whole does the probate court move to the second phase of the analysis, namely, whether the failure to provide the support was justified.

In this case Father did not fail to make every child-support payment for one full year. So, to Kennedy, the appeals court erred in finding his consent to this adoption was not required. And because the one-year period of non-support did not occur, the probate court had no reason to reach the justifiable cause analysis. 

Kennedy also accuses the majority of being “blind to the practical realities of domestic-relations law.” She notes that “[a]lthough many people use a stepparent adoption to bring a blended family together, it may also be misused as a tool for removing a natural parent from a remarried parent’s life.” She cautions her fellow justices against allowing something as constitutionally significant as losing the right to parent one’s child on something as relatively minor as a missed or untimely child-support payment.

Justice Kennedy also disagrees with Justice Fischer’s concurring opinion because to Kennedy, Fischer’s interpretation of the statute fails to safeguard the fundamental right of a natural parent to raise his or her child, fails to read the statute as a whole and construe its provisions together with other related statutes, and because finding the statute is ambiguous means the statute is unconstitutionally vague, fails to give the father in this case fair notice that missing a single child-support payment without justifiable cause could result in termination of his parental rights.

Justice Donnelly joined this dissent.

Justice Stewart’s Dissent

Simply put, Justice Stewart’s position is that a natural parent’s consent to an adoption is required unless there has been a total absence of support in the year before the filing of the adoption petition. As does Justice Kennedy, Justice Stewart disagrees with the majority holding that anything other than making all the required child-support payments is a failure to provide that support, pointing out that a parent who has paid 95% of his court-ordered payments without justifiable cause for falling short would flunk the majority’s test. And she criticizes the majority for ignoring the “as required by law” part of the statute.

Stewart’s dissent focuses on the fact that the right of a natural parent to the care and custody of his child is a fundamental right, and one of the most precious rights, at that. Any exception to that right must be strictly construed. She would find that R.C. 3107.07(A) should be seen as a remedy for abandonment of the child by a parent, not as a way to enforce child-support obligations or as punishment for non-compliance with court-ordered child support payments. There are other remedies for that, like contempt actions and criminal prosecution for non-support.

Stewart finds it significant that the legislature has amended R.C. 3107.07(A) many times but has never adopted anything other than an objective standard for probate courts to use in analyzing a nonconsenting parent’s provision of maintenance and support. She would hold that in a case with court-ordered child support, a parent who makes a payment or partial payment pursuant to a judicial decree during the requisite one-year period has not failed to provide maintenance and support, and has not forfeited the right to consent to the adoption of his or her child.

Majority’s Response to the Dissents

Lead opinion author DeWine criticizes Justice Stewart’s dissent as ignoring the plain language of R.C. 3107.07(A) and Justice Kennedy’s dissent for reading the phrase “as required by law or judicial decree” out of the statute.

Concluding Observations

Both student contributors and I predicted the stepfather would prevail here, but all of us thought the court would come out more in the middle, granting more discretion to the probate court on both prongs of the test set out in R.C. 3107.07(A). But what may seem like an extreme ruling from the majority here may only seem that way  because that second prong, “without justifiable cause” was not at issue here, but usually would be.

What was absolutely clear during oral argument was that Justice DeWine was buying none of Father’s arguments. His questions made that clear. Justice Stewart was actually the most active questioner, and she ended up almost entirely buying Father’s argument, especially the part where he argued that while he might be in contempt or face criminal sanctions, he should not lose his right to object to the adoption of his child.

This case was also a rare example of Justice DeWine criticizing Justice Kennedy’s position.  They usually are on the same side. She, in turn, criticized her colleagues for “appearing blind to the practical realities of domestic-relations law.” Maybe, but in that case might it not be helpful if she asked questions during oral argument, especially in this field?  Her insights would have been particularly helpful in Friedenberg v.. Friedenberg et al., recently argued on February 11, 2020.

It is also interesting to take another look at the position of the various justices in the court’s decision in  In re Adoption of B.I.,2019-Ohio-2450, another recent case is which the issue was whether  a parent gave up the right to contest an adoption,. In a 4-3 decision with a different alignment of justices, 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. Read the blog’s analysis of that case here.