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In re Adoption of B.I.

Court of Appeals of Ohio, First District, Hamilton

December 20, 2017

IN RE: ADOPTION OF B.I.

         Appeals From: Hamilton County Court of Common Pleas No. 2016000515, Probate Division

          Lindhorst & Dreidame Co., LPA, and Bradley D. McPeek, for Appellant.

          Susan Mineer for Appellee.

          OPINION

          Deters, Judge.

         {¶1} These appeals relate to an adoption proceeding initiated by the stepfather of a minor child in which the probate court determined that the natural father's consent to the adoption was required, and therefore the court dismissed the adoption petition. The question presented to this court is whether the natural father failed without justifiable cause to provide maintenance and support as required by law or judicial decree, where the father had a zero child-support order. Because we determine that, under the plain language of R.C. 3107.07(A), a parent cannot fail without justifiable cause to provide maintenance and support of a minor as required by law or judicial decree when that parent has a zero child-support order, we affirm the judgment of the trial court.

         {¶2} In February 2016, appellant stepfather filed a petition to adopt his stepson, B.I., with the consent of B.I.'s mother ("mother"). The petition alleged that the consent of B.I.'s birth father ("father") was not required under R.C. 3107.07(A), because father had failed without justifiable cause to provide maintenance and support of B.I. as required by law or judicial decree for a period of at least one year immediately preceding the filing of the adoption petition (the "one-year period").

         {¶3} Father filed objections to the petition. Prior to a hearing on the issue of whether father's consent to the adoption was required, the parties stipulated to several facts, including that (1) father had been in prison since 2009; (2) in August 2010, the Clermont County Juvenile Court had set father's child-support obligation at zero and had also set his arrearage to zero; (3) during the one-year period, father had received $18 per month as prison income, and friends and family had deposited $5, 152 into his prison account; and (4) during the one-year period, father had spent $4, 681.62 at the prison commissary.

         {¶4} At the hearing before the magistrate on the issue of father's consent, mother testified that father, along with father's mother, had requested repeatedly that mother terminate father's child-support order, otherwise, father would be incarcerated again on child-support arrearages upon release from prison. Because of their requests, mother agreed to an order that set father's support obligation at zero and set his arrearage at zero. Mother testified that she had not had any communication with father during the year prior to the filing of the adoption petition, but that she would have accepted money from father for B.I.'s support if father had offered.

         {¶5} Father participated in the consent hearing by phone. Father testified that he had spent over $4, 000 in the prison commissary because he did not like the food served at the prison mess hall. He never attempted to provide maintenance or support for B.I. while in prison and never inquired regarding B.I.'s financial support. However, father testified that mother had never requested any support.

         {¶6} After the consent hearing, the magistrate determined that even though father did not have a support obligation by judicial decree, as a parent, he still had the obligation to provide maintenance and support. Because the uncontroverted evidence showed that father did not provide any maintenance or support for B.I. during the one-year period, and that father had thousands of dollars available to him in his prison account, father's consent was not required for the adoption petition.

         {¶7} Father filed objections to the magistrate's decision, arguing mainly that the zero child-support order excused any legal obligation to provide maintenance and support to B.I. The trial court sustained father's objections, overruled the decision of the magistrate, and dismissed stepfather's adoption petition. Stepfather now appeals, raising in one assignment of error that the trial court erred in dismissing his adoption petition.

         {¶8} In general, an adoption petition may be granted only if written consent to the adoption has been executed by the minor's natural parents. See R.C. 3107.06. However, parental consent to an adoption is not required when the petitioner alleges, and the court finds, by clear and convincing evidence, that the parent "has failed without justifiable cause to provide more than de minimis contact with the minor or to provide for the maintenance and support of the minor as required by law or judicial decree for a period of at least one year immediately preceding * * * the filing of the adoption petition * * *." R.C. 3107.07(A). The probate court determines justifiable cause "by weighing the evidence of the natural parent's circumstances for the statutory period for which he or she failed to provide support." In re Adoption of Bovett, 33 Ohio St.3d 102, 515 N.E.2d 919 (1987), paragraph three of the syllabus.

         {¶9} As it pertains to the natural parent's failure to provide maintenance and support, the petitioner requesting adoption carries the burden to prove by clear and convincing evidence "both (1) that the natural parent has failed to support the child for the requisite one-year period, and (2) that this failure was without justifiable cause." Id. at paragraph one of the syllabus. Once the petitioner has met his or her initial burden, "the burden of going forward with the evidence shifts to the natural parent to show some facially justifiable cause for such failure." Id. at paragraph two of the syllabus. Because the burden of proof ultimately remains with the adoption petitioner, once a natural parent has "presented facially justifiable reasons" for his or her failure to support the child, the burden shifts back to the petitioner to show that the natural parent's justifications are illusory. In re Adoption of B.B.S., 2016-Ohio-3515, 70 N.E.3d 1, ¶ 22 (4th Dist.), citing In re Adoption of Kessler, 87 Ohio App.3d 317, 324, 622 N.E.2d 354 (6th Dist.1993).

         {¶10} R.C. 3107.07(A) does not contain definitions for its terms, thus, courts give those terms their plain and ordinary meanings. In re E.W.H., 4th Dist. Meigs No. 16CA8, 2016-Ohio-7849, ¶ 32-33. Maintenance is defined as "[f]inancial support given by one person to another[, ]" and support as "[s]ustenance or maintenance; esp., articles such as food and clothing that allow one to live in the degree of comfort to which one is accustomed." In re Adoption of M.B., 131 Ohio St.3d 186, 2012-Ohio-236, 963 N.E.2d 142, ¶ 20, citing Black's Law Dictionary 1039 (9th Ed.2009). "Justifiable" means "[c]apable of being ...


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