Oral Argument Preview: Is the Consent of a Parent Who is Judicially Relieved of a Support Obligation Required for an Adoption? In Re Adoption of B.I.

On January 8, 2019, the Supreme Court of Ohio will hear oral argument in the case of In Re: Adoption of B.I. 2018-0182. At issue in this case is whether, pursuant to R.C. 3107.07(A), the consent of a parent with a zero child support order is required for an adoption. The case was accepted on discretionary appeal and conflict certification, and consolidated with cases 2018-0181, 2018-0350, and 2018-0351.

Certified Conflict Question

“In an adoption consent case under R.C. 3707.07(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?”

Certified Conflict Case

In Re Adoption of A.S., 2011-Ohio-1505 (5th Dist.)( zero support order was not justifiable cause for a failure to support.)

Case Background

Gary Burbage II (“Father”), the natural father of B.I., has been incarcerated since 2009. In 2010, in order to avoid Father’s re-incarceration upon his release from prison, B.I.’s mother Kristen (“Mother”) agreed to an order by Clermont County Juvenile and Probate Court Judge Stephanie Wyler setting Father’s child support obligation and arrearage at zero. Father has prison income of $18 per month. Father has also had contributions to his prison account totaling $5,152 of which he has spent $4,681.62 at the prison commissary—largely on food. In the year prior to the adoption petition, Father never provided maintenance or support for B.I., nor was he asked to do so.

Greg Iredale (“Stepfather”) seeks to adopt B.I. Mother has consented to the adoption, but Father has not.

In February 2016, Stepfather petitioned the Hamilton County Probate Court, alleging that under R.C. 3107.07(A), Father’s consent to the adoption was not required because Father failed without justifiable cause to provide maintenance and support for B.I, and that Father had a duty to support his son by law, separate from the zero child support order.

Hamilton County Probate Court Judge Ted Winkler found that the zero support obligation excused Father’s obligation to provide maintenance and support. Thus, Father’s consent was required for the adoption to proceed. Stepfather’s case was dismissed. Stepfather appealed.

The First District Court of Appeals upheld the trial court’s ruling in a split decision authored by Judge Dennis Deters and joined by Judge Russell Mock. Judge Charles Miller dissented. The majority found that under R.C. 3107.07(A), a parent cannot fail without justifiable cause to provide maintenance and support with a zero child-support order, and rejected the stepfather’s argument that a parent still has a duty of support separate from a judicial decree of support. Thus the father’s consent to the adoption was required. Judge Miller would find that the 2010 order terminating the father’s support was not a zero child-support order, but should be treated as if no order exists, and would remand the case to the probate court to determine if the failure to provide support was justified.

Votes to Accept the Case

Yes: Chief Justice O’Connor and Justices O’Donnell, Kennedy, French, and DeWine

No: Justices Fischer and DeGenaro

Key Precedent

R.C. 2919.21(A) (Criminalizing nonsupport of dependents)

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.)

In Re Adoption of Schoeppner, 46 Ohio App.2d 21 (1976) (“although the fact of imprisonment might, when combined with other factors, lend support to a finding of a willful failure to support, it will not constitute such failure as a matter of law.”)

In Re Adoption of Holcomb, 18 Ohio St. 3d 361 (1985) (the determination of whether justifiable cause exists is best left to the discretion of the probate court.)

In Re Adoption of Stephens, 2001-Ohio-7027 (2nd Dist.) (A court order absolved parent of both her statutory and judicially decreed duty of support. Thus, failure to support was justifiable.)

Frymier v. Crampton, 2002-Ohio-3591 (5th Dist.) (parent cannot use zero support order as a potential shield when own bad acts caused the incarceration and zero support order in the first place.)

In Re D.R., 2011-Ohio-4755 (7th Dist.) (“Appellant presented absolutely no evidence that he was prevented from making support during any part of the period in question. . . . [I]ncarceration alone is not a justifiable excuse . . . .”)

In Re Adoption of C.M.F., 2013-Ohio-4719 (12th Dist.) (“A determination that a parent failed to provide ‘support and maintenance’ must be based on a failure to make payments as required by law or judicial decree. The issue of whether justifiable cause exists when a parent is incarcerated is a factually specific determination based on the circumstances and evidence presented at the hearing.”) (Citations omitted).

In the Matter of the Adoption of K.A.H., 2015-Ohio-1971 (10th Dist.) (Parent living in foreign country, subject to no support order under divorce decree, did not fail to support his children by expending money on phone calls, cards, and gifts.)

In Re Adoption of Z.A., 2016-Ohio-3159 (5th Dist.) (“[A]ppellant was in jail and in prison as a result of his own wrongdoings and this is not justifiable cause for the failure to communicate and/or maintain support. Incarceration alone is not a justifiable excuse, even if it lasts for the entire period considered by the court.”) (Justice Kennedy would have included this as a conflict case).

Stepfather’s Argument

N.B. Due to Stepfather’s brief being sealed, Stepfather’s argument is summarized from his jurisdictional memorandum and reply brief.

Father’s consent to this adoption is not required. R.C. 3107.07(A) plainly exempts any need for consent when the non-consenting parent is determined to have failed to provide for the maintenance or support of the child by law or judicial decree. Because the statute is written in the disjunctive, the statute creates separate statutory and common law duties for parents to support their children. Courts have recognized this two-fold obligation in like circumstances, recognizing a statutory duty separate from judicial decree.

The question of parental consent in any given case is fact-intensive. A zero support order because of incarceration is not an excuse in and of itself. Instead, it is just one factor for the probate court to consider in deciding whether parental consent to adoption is required. Thus, courts should be free to recognize a parent’s obligation to maintain and support his or her child despite a decree when the court recognizes a parent’s means to do so.

Such discretion is appropriate in this case where Father had almost $5,400 in income, spent largely on junk food, while providing zero in support for B.I. In this case the probate court and the court of appeals majority erroneously based their decisions solely on the zero support order instead of weighing all the facts.

Even when a parent is incarcerated and has no support obligation, the parent must make some attempt, within his means, to provide support. Where, as here, no such attempt was made, parental consent to the adoption is not required.

Despite providing a lengthy string of quotations from previous decisions, Father fails to address the Supreme Court of Ohio’s previous decisions. Nor does Father attempt to address the plain language of the statute, which favor’s Stepfather’s proposition of law.

Finally, Amicus in support of Father does nothing to educate this Court. Rather, Amicus reveals her true motivation as a desire to relitigate her losing position on a petition for reconsideration in a different case. If the Court considers her arguments at all, it should do so with due skepticism.

Father’s Argument

While Father admits he did not pay support for his son for one year before the filing of the adoption petition, he had justifiable cause due to a valid judicial decree. The probate court was correct in determining his consent to the adoption was required.

The probate court’s ruling was founded upon appropriate caselaw from throughout the state. While Father acknowledges that there is a conflict on the issue, the majority of appellate courts in Ohio have held that a court order terminating or suspending a court-imposed support obligation supersedes any other statutory or common law obligation of support. The certified conflict case from the Fifth District is an outlier in this regard.

Further, public policy supports Father’s position. Holding otherwise could put parents who are subject to a zero dollar support order at risk of losing their parental rights without justification. And the right of a parent to raise his or her child is a fundamental right.

Amicus Curiae A.G. in support of Father

A.G. is the paternal grandmother of two children whose maternal grandparents have been granted the right to adopt them without the father’s consent. Permitting adoption over the objection of a natural parent will sever the grandparent/child relationship.

Access to one’s children is a fundamental right, the loss of which is nearly beyond comparison. The First District was correct in finding that a zero order of support constitutes justifiable cause, and in preserving Father’s right in this case. And, to the extent this Court can interpret R.C. 3107.07(A) to preserve the grandparent/grandchild relationship, this Court should do so.

Stepfather’s Proposed Proposition of Law 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.

Stepfather’s Proposed Proposition of Law II

In an adoption consent case under R.C. 3107.07(A), a court order setting the natural parent’s child support obligation to 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.

Father’s Proposed Counter Proposition of Law

When a non-parent files an adoption petition, and an imprisoned natural parent is subject to a $0.00 support order, this constitutes justifiable cause to not pay support and the natural parent’s consent is then required for the adoption, notwithstanding that the parent has contributed no support for, or maintenance of the minor child.

Amicus Curiae A.G.’s Proposed Proposition of Law

When a natural parent’s conduct in relation to a minor child complies with a court order, he has ‘justifiable cause’ for that conduct for purposes of R.C. 3107.07(A).

Student Contributor: Mark Tassone