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Court News Ohio

Minimal Payment of Child Support Does Not Retain Right to Stop Adoption

A parent may lose the right to object to the adoption of a child by failing, without justifiable cause, to make child-support payments “as required by law or judicial decree,” the Ohio Supreme Court ruled today.

A divided Supreme Court rejected a child’s natural father’s argument that any payment of support, no matter how meager, made during the year immediately before a stepfather filed an adoption petition preserved the father’s right to consent to the adoption. In the Court’s lead opinion, Justice R. Patrick DeWine wrote the father’s argument ignores the plain language of the statute, R.C. 3107.07(A), which provides that a parent’s consent to a child’s adoption is not required when the parent failed, without justifiable cause, to provide maintenance and support as required by law or judicial decree for at least one year prior to the filing of the adoption petition. 

Chief Justice Maureen O’Connor and Justice Judith L.  French joined Justice DeWine’s opinion. In a separate opinion, Justice Patrick F. Fischer concurred in part and concurred in judgment .

In separate dissenting opinions, Justices Sharon L. Kennedy and Melody J. Stewart wrote the Court’s holding jeopardizes a biological parent’s fundamental right to raise and care for his or her child. Justice Michael P. Donnelly joined Justice Kennedy’s dissent.

Ohio Man Seeks to Adopt New Wife’s Child
Court records identify the minor child in this case by the initials A.C.B. The biological parents and the stepfather of A.C.B. are not identified by name. A.C.B.’s parents were married in Indiana and dissolved their marriage in 2013. Their divorce decree, which incorporates their settlement agreement, requires A.C.B.’s father pay $85 per week in child support.

Soon after the end of the marriage, the father returned to Kosovo, and only made sporadic child-support payments, which diminished over time. A.C.B.’s mother moved to Ohio and married a man, who became A.C.B.’s stepfather. In 2015, the child’s mother asked the father if he would consent to the stepfather’s adoption of A.C.B. The father refused.

In 2017, the stepfather petitioned the Lucas County Probate Court to adopt A.C.B. He alleged that under R.C. 3107.07(A), the father’s consent to the adoption was not required because the father failed to provide maintenance and support for the child as required by law or judicial decree without justifiable cause for the year preceding the filing of the adoption petition.

At a probate court hearing to determine if the father’s consent was required, the parties agreed that the father had made a single, $200 child-support payment in the year preceding the adoption request, and that payment was made two days before the stepfather filed the petition. At the time of the hearing, the father owed more than $17,000 in unpaid child support.

The father explained his income had increased significantly since the divorce decree had been entered and he could have made the $85-per-week payments without any problem, but was worried about where the money was going. He apologized for his lack of payment and said he might have let his emotions get the better of him.

The probate court found the father’s consent was not necessary because under R.C. 3107.07(A), he did not pay the amount as required by law or judicial decree and his failure was not justified. The father appealed the decision, and the Sixth District Court of Appeals affirmed the probate court’s decision.

The father appealed the Sixth District ruling to the Supreme Court, which agreed to consider his argument that “any” payment of maintenance and support during the year before the adoption request is sufficient to preserve his right to object to the adoption.

Court Examines Language of Consent Law
R.C. 3107.07(A) states that a parent’s consent to adoption is not required when a 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 either the filing of the adoption petition or the placement of the minor in the home of the petitioner.”

Justice DeWine noted that A.C.B.’s father does not challenge the probate court’s conclusion that he lacked justifiable cause for not making the payments, and the only issue before the Court is whether the $200 payment within in the required one-year period constitutes maintenance and support “as required by law or judicial decree.”

The judicial decree determined precisely what the father was required to pay, which was $85 per week for a total of $4,420 for a year, the lead opinion stated. Despite the amount stated in the court order, the father argued the law is to be interpreted that only the complete absence of paying support over the course of the year would cost him the right to consent. Because the law does not define how much money qualifies as “maintenance and support,” the law does not bar a parent from objecting to an adoption when the parent does not fully pay what the law requires or a court orders, he maintained.

The lead opinion stated the father is correct that the legislature did not choose to add a term such as “substantial” to qualify “maintenance and support,” but lawmakers did include the qualifying language “as required by law or decree.” The statute is unambiguous, and the amount of necessary support in this case is measured by the terms of the judicial decree, the opinion stated.

The lead opinion cautioned that not every failure to provide the amount of support directed by the court will mean a parent’s right to an adoption is not required. Assessing whether the parent has failed to pay support as required by law or judicial decree is “just step one in the analysis,” the Court stated. The next step requires the adopting parent to prove by clear and convincing evidence that the biological parent had no justified reason to pay less than the required amount.

In this case, the Court found the father “did not even come close to doing what was required by the judicial decree.” He paid less than 5 percent of what the court order required for the year preceding the adoption petition, and owed more than $17,000 in total unpaid support. The father did not challenge the probate court’s finding that he lacked a justifiable cause to not make the payments. The Court affirmed the probate court’s decision that the father’s consent was not required.

Concurrence Finds Terms of Decree Must be Met
In his concurring opinion, Justice Fischer maintained that, contrary to the lead opinion, he found R.C. 3107.07(A) is ambiguous. He noted not only are the Supreme Court justices divided in their interpretation of the law, but so are lower courts, with some ruling that even a meager contribution of support satisfies the requirement while others have ruled that more than minimal payment is required.

When a statute is ambiguous the Court can determine the intent of the legislature, and he concluded the ambiguity can be resolved by referring to the specific terms of the judicial decree in each case. He found A.C.B.’s father did not meet the terms of the judicial decree, and without justifiable cause for not paying, he lost his right to consent to the adoption by the stepfather.

One Missed Payment Sufficient to Terminate Fundamental Parental Rights, Dissent Warned
The law’s trigger to strip parents of their right to consent to an adoption is measured by time, not the amount of support paid, Justice Kennedy stated in her dissent. She also wrote that the majority failed to understand the practical realties of domestic relations law: “Although 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.”
The law contains an express duration requirement of one year, she wrote.

“The General Assembly established this duration requirement for a reason: the failure to contact or support the child for a period of one year raises a presumption that the parent has abandoned his or her parental rights and responsibilities,” the opinion noted. “It has long been recognized that although parents have a paramount right to the care and custody of their children, that right can be voluntarily relinquished, or it can be lost by abandonment of the child or by becoming totally unable to provide for the child’s support or care.”

The dissenting opinion pointed to the Court’s prior decisions holding that R.C. 3107.07(A) requires a “one-year period of nonsupport” and that the failure to provide for the maintenance and support must have continued throughout an entire year.  For this reason, only if a parent fails to make any court-ordered payment of support during a year does the probate court consider whether the failure to pay child support is justified, the dissent stated. A.C.B.’s father did make a payment during the year and therefore retained his right to withhold consent.

The dissenting opinion maintained that the Court’s decision has made terminating a parent’s right to withhold consent much easier, and potentially allows the “fundamental liberty interest of natural parents in care, custody, and management of their child” to be severed based only on a “single, unjustified failure to make a court-ordered child-support payment on time and in full.”

“The majority’s holding is untenable in light of the plain language of R.C. 3107.07(A), our case precedent construing it, and the constitutional protections in favor of parental rights,” the dissent stated. 

 Non-Payment Punishable, But Not Through Terminating Rights, Dissent Asserted
Terminating a parent’s right to consent to an adoption is a remedy for children abandoned by their parent, not a means to enforce child-support obligations, Justice Stewart wrote in her dissent.

R.C. 3107.07(A) was not enacted to punish a parent for not fully complying with support orders, and other state laws provide criminal penalties for parents who fail to pay support, the dissent stated.

The opinion also noted that, in isolation, measuring compliance by payment “as required by law or judicial decree” is not unreasonable. However, those are two different concepts, and the majority opinion only focuses on measurement by judicial decree. Justice Stewart wrote the majority found support required by judicial decree “is easily and objectively measured.” But support “as required by law” is an entirely subjective measure, and the legislature did not intend to have payment requirement for parents measured differently, the opinion stated.

“This distinction further underscores why the majority’s position, in context, is not in keeping with recognizing a parent’s fundamental right to raise and care his or her child. Any exception to the consent requirement for adoption must be strictly construed to protect that right. The majority’s position wholly fails to do so,” the dissent concluded.

2018-1300. In re Adoption A.C.B., Slip Opinion No. 2020-Ohio-629.

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