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In re Adoption of B.I.

Supreme Court of Ohio

June 25, 2019

In re Adoption of B.I.

          Submitted January 8, 2019

          Appeal from and Certified by the Court of Appeals for Hamilton County, Nos. C-170064, C-170080, 2017-Ohio-9116.

          Lindhorst & Dreidame Co., LP.A., and Bradley D. McPeek, for appellant.

          Susan Mineer, for appellee.

          Mary Catherine Barrett, urging affirmance for amicus curiae, A.G.

          Kennedy, J.

         {¶ 1} This is a discretionary appeal and certified-conflict case from the First District Court of Appeals involving R.C. 3107.07(A), the statute that sets forth when the adoption of a minor may proceed without a parent's consent. Pursuant to that statute, a parent's consent is not required when the court "finds by clear and convincing evidence that the parent has failed without justifiable cause 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." In this case, we consider the effect on the operation of that statute of a judicial decree relieving a parent of an obligation to provide child support-is a parent susceptible to the severance of his or her parental rights for failing to provide maintenance and support for at least one year when a court has issued a decree relieving the parent of any obligation to pay child support? We hold that pursuant to the plain and unambiguous language of R.C. 3107.07(A), when read in conjunction with the statutory scheme instructing how a court of competent jurisdiction calculates a child-support obligation, a parent's nonsupport of his or her minor child pursuant to a judicial decree does not extinguish the requirement of that parent's consent to the adoption of the child.

         FACTS AND PROCEDURAL HISTORY

         {¶ 2} K.I. ("the mother") and appellee, G.B. ("the father"), are the natural parents of B.I., who was born in 2007. The mother and father were never married. In 2016, the mother's husband, appellant, G.I. ("the stepfather"), filed in the Hamilton County Probate Court a petition seeking to adopt B.I. and arguing that under R.C. 3107.07(A), the father's consent was not required. That statute provides that a natural parent's consent to adoption is not necessary if the probate court determines

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).

         {¶ 3} The stepfather argues that the father had failed to provide support for B.I. during the year preceding the filing of the petition; he abandoned his claim that the father had failed to provide more than de minimis contact in that period (failure to maintain contact had been the basis for a failed attempt by the stepfather to adopt B.I. in the Clermont County Probate Court in 2014).

         {¶ 4} The father entered prison in 2009 and remained there for the relevant time period. In 2010, the mother requested the Clermont County Juvenile Court to terminate the father's child-support obligation and to reduce his arrearages to zero. The court issued an order stating as follows: "It is hereby ordered * * * that the Defendant's current support obligation is terminated at the request of Plaintiff. At Plaintiffs request, the outstanding support arrearage is reduced to $0.00. CSEA [Child Support Enforcement Agency] is hereby directed to adjust its records accordingly."

         {¶ 5} During the one-year period prior to the filing of the petition for adoption, the father had received $18 a month as prison income and his parents and a friend had deposited $5, 152 into his prison account; that year, the father spent $4, 681.62 in the prison commissary. There is no dispute that the father provided no financial support to B.I. during that period.

         {¶ 6} The probate-court magistrate determined that even though the father was not subject to a child-support order under a judicial decree, he still had money available and an obligation as a parent to provide child support within his means. Finding that the father had provided no child support during the applicable year, the magistrate concluded that the father's consent to the adoption was not required. The probate court overruled the magistrate, finding that a valid, zero-support order provides justifiable cause for a failure to provide maintenance and support under R.C. 3107.07(A).

         {¶ 7} The stepfather filed two appeals in the First District Court of Appeals, one upon the probate court's filing of its opinion granting the father's objections and overruling the magistrate's decision and the second upon the probate court's dismissal of the adoption petition. The appellate court consolidated the cases and affirmed the probate court's judgment, holding that "under R.C. 3107.07(A), where a court has ordered a parent to pay no child support or zero child support, that court order of support supersedes any other duty of support 'required by law,' and therefore the parent cannot fail without justifiable cause to provide maintenance and support of a minor child." 2017-Ohio-9116, 101 N.E.3d 1171, ¶ 19.

         {¶ 8} The First District certified a conflict between its judgments and the judgments of the Fifth District Court of Appeals in In re Adoption of AS., 5th Dist. Licking No. 10-CA-140, 2011-Ohio-1505, and In re Adoption of Z.A., 5th Dist. Licking No. 16-CA-05, 2016-Ohio-3159. This court determined that a conflict exists between the judgments below and the Fifth District's judgment in A.S. and ordered the parties to brief the following question:

"In an adoption-consent case under R.C. 3107.07(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?"

152 Ohio St.3d 1441, 2018-Ohio-1600, 96 N.E.3d 297, quoting the court of appeals' February 27, 2018 entry.

         {¶ 9} Additionally, the stepfather filed jurisdictional appeals that we accepted. The stepfather asserted the following two propositions of law in those cases:

Proposition of Law No. I: 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 of Law No. II: In an adoption consent case under R.C. 3107.07(A), a court order setting the natural parent's child support obligation at 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.

See 152 Ohio St.3d 1441, 2018-Ohio-1600, 96 N.E.3d 297.

         {¶ 10} We sua sponte consolidated the certified-conflict cases and the jurisdictional appeals. Id.

         LAW AND ANALYSIS

         {¶ 11} This case-and the statute at the center of this case-is not about child-support enforcement; it is about the severance of parental rights. At its core, this case raises a critical question: Can child-support obligors rely on the authority of court orders that affect the most important aspects of their lives? Can a parent who relies on a valid order of a court of competent jurisdiction suffer-because he or she relied on that order-the" 'family law equivalent of the death penalty, '" In re Hayes, 79 Ohio St.3d 46, 48, 679 N.E.2d 680 (1997), quoting In re Smith, 77 Ohio App.3d 1, 16, 601 N.E.2d 45 (6th Dist.1991), the severing of parental rights through the adoption of the parent's child by another person without the parent's consent?

         The application of R.C. 3107.07(A)

         {¶ 12} This case turns on a phrase in R.C. 3107.07, and we must strictly construe the statute in favor the retention of parental rights. "Because adoption terminates fundamental rights of the natural parents, 'we have held that "* * * [a]ny 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." '" (Ellipsis and brackets sic.) In re Adoption of G.V., 126 Ohio St.3d 249, 2010-Ohio-3349, 933 N.E.2d 245, ¶ 6, quoting In re Adoption of Masa, 23 Ohio St.3d 163, 165, 492 N.E.2d 140 (1986), quoting In re Schoeppner, 46 Ohio St.2d 21, 24, 345 N.E.2d 608 (1976). "[I]n construing R.C. 3107.07(A), this court is 'properly obliged to strictly construe * * * [its] language to protect the interests of the non-consenting parent who may be subjected to the forfeiture or abandonment of his or her parental rights.'" (Ellipsis and brackets sic.) In re Adoption of Sunderhaus, 63 Ohio St.3d 127, 132, 585 N.E.2d 418 (1992), quoting In re Adoption of Holcomb, 18 Ohio St.3d 361, 366, 481 N.E.2d 613 (1985).

         {¶ 13} R.C. 3107.07 provides: Consent to adoption is not required of any of the following: (A) A parent of a minor, when it is alleged in the adoption petition and the court, after proper service of notice and hearing, 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 either the filing of the adoption petition or the placement of the minor in the home of the petitioner.

         {¶ 14} In this case, we do not face the question whether the father had de minimis contact with his child, B.I.; the stepfather's 2014 attempt to adopt on that basis in Clermont County failed, and the stepfather has abandoned that claim in this case. Here, we consider only whether the father "has failed without justifiable cause * * * to provide for the maintenance and support of the minor as required by law or judicial decree," R.C. 3107.07(A).

         {¶ 15} To determine whether a parent has failed to provide child support as required by law or judicial decree involves a three-step analysis. The court must first determine what the law or judicial decree required of the parent during the year immediately preceding either the filing of the adoption petition or the placement of the minor in the home of the petitioner. Second, the court determines whether during that year the parent complied with his or her obligation under the law or judicial decree. Third, if during that year the parent did not comply with his or her obligation under the law or judicial decree, the court determines whether there was justifiable cause for that failure.

         {¶ 16} We stand in this case at the first step-determining what the law or judicial decree required of the parent for the year prior to the filing of the petition. If the father had no obligation to provide child support, the analysis ends there. But appellate courts, as did the probate court in this case, have tended to consider the existence of a court order establishing no obligation of support as part of the justifiable-cause determination, e.g., In re Adoption of A.N.W., 7th Dist. Belmont No. 15 BE 0071, 2016-Ohio-463, ¶ 31 ("a zero support order or a no support order constitutes justifiable cause for failing to provide support and maintenance"); In re Adoption of K.A.H., 10th Dist. Franklin No. 14AP-831, 2015-Ohio-1971, ¶ 23 ("The zero support order is a justifiable excuse for [the father's] failing to pay support for his children"). Indeed, this court, in determining that a conflict exists among appellate districts, ordered briefing in this case on the issue whether a court order relieving a parent of a child-support obligation provides justifiable cause for the parent's failure to provide maintenance and support. But the issue is not whether a decree ordering zero support-or one that terminates a previously ordered support obligation or modifies a previously ordered support amount to zero-justifies a failure to provide maintenance and support; instead, the issue is whether the existence of a no-support order[1] means that the parent subject to it was under no obligation to provide maintenance and support. Determining the parent's obligation-that which was required by law or judicial decree for the year prior to the filing of the petition-is the threshold issue.

         {¶ 17} 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. The General Assembly created a binary system in which a parent has a general obligation of support toward a child when the parent's responsibilities are not ...


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