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Court News Ohio
Court News Ohio

Presumed Father Not Required to Support Birth Mother to Maintain Right to Contest Adoption

The presumed father of a child born out of wedlock did not give up his right to contest the mother’s decision to place the child for adoption when he failed to provide the pregnant mother financial support, the Ohio Supreme Court ruled today.

The Supreme Court vacated the 2015 adoption of a Butler County child by a Tennessee couple that was consented to and arranged by the mother.

The “putative father” contested the adoption, but the Butler County Probate Court found that, under Ohio law, the father “willfully abandoned” the mother because he did not provide her any financial support and communicated sporadically with the mother during the pregnancy.

Writing for a five-member Court majority, Justice Judith L. French stated the law does not make the putative father’s failure to care for and support the mother during her pregnancy a basis for approving an adoption without his consent. The adoption statute does not equate the failure to financially support the mother with willful abandonment. The majority concluded that the father’s actions did not meet the Court’s interpretation of “willfully abandon” because he did not “desert, forsake, or abdicate all responsibility” for the mother during her pregnancy.

The decision vacated the adoption decree and dismissed the adoptive parents’ application. It does not indicate who should have legal custody of the child, identified in court documents as P.L.H.

Justice R. Patrick DeWine, in a concurring opinion joined by Chief Justice Maureen O’Connor, maintains the majority unnecessarily limits evidence that can be used by lower courts when considering future claims that a father willfully abandoned a mother. Justice DeWine argued that while not a key factor in P.L.H.’s case, a father’s lack of financial support could be a factor in other cases.

Parents Have Post-College Distance Relationship
P.L.H.’s father, identified as C.W., and mother, S.C., became friends in college. When C.W. graduated in 2013, he returned to his native Louisiana. While still a student, S.C. in 2014 took a year-long internship in Florida and lived with a family there as its nanny. In February 2015, S.C. visited C.W. in Louisiana, and the child was conceived during the visit. In early March, S.C. called C.W. from Florida to inform him she was pregnant and that she wanted to place the child for adoption with a Tennessee couple who was friends with the family she lived with in Florida.

After the initial phone call, C.W. and S.C. did not see each other during the pregnancy and spoke by phone one other time in September 2015. During the pregnancy they exchanged text messages at least 16 times, with the last message occurring in mid-October.

S.C. testified she believed C.W. initially supported the adoption, although in a message he sent the day after he was told about the pregnancy he wrote: “I don’t know [if I’ll] want it to be adopted or not. I won’t for a couple months.” C.W. told her that he was raised without a father and “made a vow” that we would never let his own child grow up without a father. S.C. indicated her mind was made up, and she wanted the child to “have two parents and a stable life.”

While the two initially exchanged friendly text messages, they stopped communicating between June and September. When S.C. asked in September for his address so that she could send adoption consent forms, C.W. provided it but added that he would not sign until he spoke with his mother. S.C. then called C.W. and testified she was shocked to learn that C.W. did not agree with the adoption, and she urged him to contact her attorney.

C.W. sent S.C. at least three more text messages. She only responded to one message by thanking him for wishing her a happy birthday. In a September letter, C.W.’s attorney gave notice to S.C.’s attorney that C.W. was seeking sole custody and objected to any adoption proceedings. The attorney enclosed a copy of C.W.’s Ohio Putative Father Registry form indicating he completed the registration in early September. The letter also stated that C.W. would assist the birth mother with pregnancy-associated medical expenses and necessary care costs, and indicated that C.W. “certainly does not want the birth mother to believe she has been abandoned during her pregnancy.”

Adoption Proceedings Begin
P.L.H. was born Nov. 3, 2015, in Butler County, and S.C. filed to place P.L.H. with the Tennessee couple. Three days later the court approved the application. The same day, the couple filed their petition for adoption, and S.C. filed her consent to the adoption.

C.W. was not notified of P.L.H.’s birth. But after seeing a photo of S.C. on Facebook showing she was no longer pregnant, C.W. on Dec. 3 filed an action in Butler County Juvenile Court to establish paternity and gain temporary custody of P.L.H. The probate court informed C.W. that it scheduled a hearing on the couple’s adoption petition, and C.W. objected to the adoption.

At an April 2016 hearing, the court heard testimony from S.C., C.W., and the adopting parents, who argued that C.W.’s consent was not required for a number of reasons. The probate court concluded that his consent was not required because under R.C. 3107.07(B)(2)(c), C.W. willfully abandoned S.C. during her pregnancy and up until the time the child was placed with the adoptive parents. The court found C.W. had provided no financial support during the pregnancy even though he earned about $70,000 in 2015. The court characterized C.W.’s contact with S.C. as “sporadic” and noted the three-month communication gap.

The probate court rejected the other arguments by the adoptive parents including that C.W. violated R.C. 3107.07(B)(2)(b) by willfully abandoning or failing to provide “care and support” for the minor. The court noted that C.W. stated his intention in the September letter to raise the child, and also pointed to another letter to the adoptive parents in November 2015 that he would reimburse them for the pregnancy expenses totaling $8,500. The court pointed out that in December he had sent the adoptive parents a $100 check with the memo “child support,” and purchased furniture and other items to prepare his Louisiana home for the child.

Having concluded that C.W. willfully abandoned the mother during pregnancy, and that C.W.’s consent was not required, the court approved the Tennessee couple’s adoption, indicating it was in P.L.H.’s best interest.

C.W. appealed to the Twelfth District Court of Appeals, which, in a split decision, affirmed the probate court’s determination that C.W. willfully abandoned S.C. The Twelfth District majority concluded that C.W. never provided S.C. with any support “financial or otherwise” during the pregnancy. The appellate court concluded that C.W.’s offer to assist with medical expenses was made 36 days before the birth and was “a far cry from actually tendering that financial and emotional support.” C.W. appealed to the Supreme Court, which agreed to hear the case.

Court Examines “Willfully Abandoned” Provision
Justice French explained the Court must consider what constitutes “willful abandonment” under R.C. 3107.07(B)(2)(c), and whether failure to provide care and support for the mother was grounds to find willful abandonment. She noted the right of a natural parent to care for and have custody of one’s child to be one of the most “precious and fundamental” rights. Because adoption terminates those parental rights, any law to exclude a parent’s right to consent must be strictly construed, the Court stated.

The opinion noted there are two separate provisions, R.C. 3107.07(B)(2)(b) and R.C. 3107.07(B)(2)(c), that take away a putative father’s right to consent to an adoption on the grounds of willful abandonment.

In the first provision, R.C. 3107.07(B)(2)(b), the father loses the right to consent if he “has willfully abandoned or failed to care for and support the minor.” However, R.C. 3107.07(B)(2)(c) states the father loses the right to consent if he “has willfully abandoned the mother of the minor during her pregnancy and up to the time of her surrender of the minor, or the minor’s placement in the home of the petitioner, whichever occurs first.”

C.W. argued the second provision, which the lower courts used to conclude he willfully abandoned S.C., does not have the “care and support” requirement, so he did not lose his right to consent to the adoption.

The Court agreed, noting the language in R.C. 3107.07(B)(2)(c) does not contain the words “failed to care for and support.”

“A putative father’s failure to care for and support the minor child provides a relevant basis under R.C. 3107.07(B)(2)(b) for determining that his consent to the adoption is not required. R.C. 3107.07(B)(2)(c), however, does not make the failure to care for and support the mother a basis for proceeding with the adoption without the putative father’s consent,” the opinion stated.

The Court acknowledged that while the adoptive parents argued the father should have to show some commitment to the mother by providing financial, emotional, or physical care and support, the law does not place that requirement on a putative father. The Court suggested that is a policy question for the state legislature. But until the law is changed, the Court has to strictly construe any provision that takes away a parent’s right to consent to an adoption.

Because the law does not define “willfully abandoned,” the majority turned to common dictionary meanings of the words and concluded that a court must determine “whether the putative father voluntarily or intentionally deserted, forsook or abdicated all responsibility for the birth mother during her pregnancy” up until the time the mother surrenders the child or the child is placed with the adoptive parents.

No Finding of Abandonment
The opinion stated the probate court had to establish by clear and convincing evidence that C.W. willfully abandoned S.C., and the Supreme Court concluded the record contains “no evidence, let alone clear and convincing evidence, to support a finding that C.W. voluntarily or intentionally deserted, forsook or abdicated all responsibility for S.C. during her pregnancy.” The Court noted C.W.’s letter specifically indicated he did not want S.C. to believe she was abandoned and he offered to pay her medical expenses. The Court found that while relations between the couple became contentious and strained, C.W. continued to inquire about the pregnancy and attempted to maintain open communications with S.C.

In vacating the probate court’s decision, the Court stated it acknowledges “that all parties have the child’s best interest at heart and that our decision is the end result of a process in which we must choose between two imperfect and unsatisfying options”: to separate P.L.H. from the only home the child has ever known or to permanently terminate C.W.’s fundamental right to raise and nurture his child. The Court remanded the case and directed the probate court to dismiss the adoptive couple’s application.

Justices Terrence O’Donnell, Sharon L. Kennedy, William M. O’Neill, and Patrick F. Fischer joined Justice French’s opinion.

Concurrence Cautions Against Restrictions
In his concurrence, Justice DeWine maintained the majority strays too far from the plain meaning of R.C. 3107.07(B)(2)(c) to limit what a lower court may consider for a finding of willful abandonment. He noted that in the majority’s view, the provision of financial support could be used to prove the father hadn’t abandoned the mother but a lack of support could not be used against the father.

Justice DeWine wrote that while failure to provide financial support by itself cannot be used to find willful abandonment, it could be relevant in some cases.

“What of a millionaire putative father who ignores the pleas for help of an expectant mother who has no resources? Are the courts to ignore his failure to provide financial support?” he wrote. “The lack of support should not be the only factor considered in deciding whether the father willfully abandoned the mother, but it should be a part of the court’s analysis.”

2017-0173. In re Adoption of P.L.H., Slip Opinion No. 2017-Ohio-5824.

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