Oral Argument Preview: What Does It Mean to “Willfully Abandon” a Mother During Her Pregnancy? In the Matter of: The Adoption of P.L.H.

By Marianna Brown Bettman
University of Cincinnati College of Law
Jun 15, 2017

On June 21, 2017, the Supreme Court of Ohio will hear oral argument in the case of In the Matter of: The Adoption of P.L.H., 2107-0173. At issue in this case is whether the putative father willfully abandoned the mother of the child so that his consent to the adoption of the child is unnecessary.

Case Background

Biological Mother (“Mother”) became pregnant while visiting Putative Father (“Father”) at his home in Louisiana during the Mardi Gras in 2015. The two had gone to the same university and had become friends. This was the sole sexual encounter between the two. A few weeks after the visit, Mother informed Father of her pregnancy and her intent to place the child, P.L.H., for adoption. Mother says that Father asked her to have an abortion; Father denies this. Discussion between the two was limited over the next few months. However, Father did express a desire to see Mother on two occasions. Father registered with the putative father registry, offered (but never provided) financial support, and expressed his desire for custody. However, for a period of roughly three months, Father and Mother were not in contact. Father refused to sign papers consenting to the adoption. Mother went forward with the adoption anyway.

The Butler County Probate Court held a hearing on all issues on April 13, 2016. The court found that Father had willfully abandoned Mother during her pregnancy, and up to the time of the adoption, and therefore Father’s consent to the adoption was not required pursuant to R.C. 3107.07 (B)(2)(c). The court further found the adoption was in the best interest of P.L.H., and the Adoptive Parents were qualified to adopt P.L.H. The Final Decree of Adoption was issued on September 7, 2016. Father appealed.

In a split decision written by Judge Stephen Powell, and joined by Judge Ringland, the Twelfth District Court of Appeals affirmed. Judge Hendrickson dissented, finding the decision of the probate court to be against the manifest weight of the evidence. To him, the record did not establish by clear and convincing evidence that Father deserted Mother, forsook her, or relinquished all connection with her during her pregnancy.

Votes to Accept the Case

Yes: Chief Justice O’Connor and Justices Kennedy, French, O’Neill, and Fischer

No: Justices O’Donnell and DeWine

Statute at Issue in This Case

R.C. 3107.07 Consent to Adoption Unnecessary, When

(B)(2)((b) The putative father has willfully abandoned or failed to care for and support the minor; or

(B)(2)(c) The putative father 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. This subsection was the basis of the majority opinion from the appeals court

Key Statutes and Precedent

R.C. 3107.01(H) A putative father is a man who might be a child’s biological father but who has no legal relationship with the child through marriage to the mother or the establishment of legal paternity. It is not disputed that Appellant in this case is a putative father.

Fourteenth Amendment of the United States Constitution (“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”)

Lehr v. Robertson, 463 U.S. 248 (1983) (Neither Due Process nor Equal Protection is violated if biological father who has no relationship with the child does not receive notice of adoption proceedings. “If one parent has an established custodial relationship with the child and the other parent has either abandoned or never established a relationship, the Equal Protection Clause does not prevent a State from according the two parents different legal rights.”)

In Re Adoption of Greer, 70 Ohio St.3d 293 (1994)(“[a]ny exception to the requirement of parental consent must be strictly construed so as to protect the right of natural parents to raise and nurture their children.”)

In Re Adoption of Zschach, 75 Ohio St.3d 648 (1996) (The procedures set forth under Ohio law sufficiently protect a biological father’s constitutionally protected right. “A potential parent-child relationship is accorded a degree of constitutional protection under the Due Process Clause; if a biological father comes forward and accepts the full responsibilities of parenthood, he will be extended full protection of that relationship under that clause. If the biological father fails to accept the responsibilities of parenthood, no continuing constitutionally protected interest will be recognized from the mere existence of a biological link.”)

In re K.M., 2012-Ohio-6266(5th Dist.) (trial court’s decision finding father willfully abandoned mother during her pregnancy was not against the manifest weight of the evidence where father did not offer or provide any financial support to mother, nor any other assistance, despite being able to contact mother via cell phone and/or social media during her pregnancy.)

In re Adoption of E.E.R.K., 2014-Ohio-1276 (2nd Dist.) (Sporadic availability by text message and failure to communicate with birth mother for the last three months of pregnancy sufficient to show consent to adoption by putative father not required.)

In re Adoption of H.N.R., 2015-Ohio-5476 ( Mere existence of putative father’s biological link does not merit equivalent to constitutional protection.)

Father’s Argument

Natural parents have a fundamental right to the care and custody of their children. That includes a putative father. Adoption without a father’s consent is a denial of his constitutional interest in the care and upbringing of his child.

Father focuses on the interpretation of R.C. 3107.07, specifically, the meaning of “willfully abandoned”. The trial court and court of appeals majority interpreted the phrase to mean “failed to provide care and support to Mother.” However, Father contests this interpretation, citing Judge Hendrickson’s dissent. RC 3107.07 (B)(2)(c) does not specifically require the finding of “care and support” to the mother during her pregnancy as it does for the child under the (B)(2)(b) subsection, and thus should be defined as “forsake entirely…to relinquish all connection with or concern with…” Under such a definition, Father’s attempts to see the child’s Mother, his registration with the putative father registry, and his establishment of intent to seek custody of the child do not meet the definition of willful abandonment under (B)(2)(c), thus requiring his consent to the adoption.

Adoptive Parents’ Argument

The question of whether willful abandonment under R.C. 3107.07(B)(2)(c) includes failure to provide support and care for the mother was not raised below and should be deemed waived.

The Probate Court assessed the case based on the totality of the circumstances. Regardless of the interpretation of “willfully abandoned”, the Probate Court’s decision should stand. The Probate Court found that during the pregnancy and up until the placement, any contact between Father and Mother was either sporadic, minimal, or non-existent. Further, the question of whether the Putative Father met his obligations under the statute is a question of fact for the Probate Court, not a question of law for the Supreme Court of Ohio. The Supreme Court, in this instance, should not question the decision of the Probate Court beyond assessing for an abuse of discretion. Adoptive Parents assert there was none, nor was the decision against the manifest weight of the evidence.

Adoptive Parents urge the court to adopt an interpretation that requires a putative father to provide both financial and emotional support in order to withstand willful abandonment. Father provided neither here. Adoptive Parents also urge the court to reject Father’s constitutional claim, arguing that such protection is only gained when an unwed father accepts the responsibilities of parenthood.

Under existing law in Ohio, there are more burdens on the mother and the adoptive parents than on a putative father. All the putative father must do is fulfill his obligations under R.C. 3707.01(B)(2). Or, a putative father can file a parentage action, in which case his consent to any adoption would be required.

Finally, the Adoptive Parents present a magnum opus discussion of parent-child relations under the Due Process Clause of the Fourteenth Amendment. A putative father must have a developed relationship with his biological child to be entitled to due process protection. Adoptive Parents contend that a mother’s right to give up a child for adoption is analogous to a woman’s right to an abortion; further, such a relationship has been recognized to supersede the interests of a father, whether putative or not.

Putative Father’s Proposed Proposition of Law

The phrase “willfully abandoned”, under R.C. 3107.07(B)(2)(c), should inquire whether the putative father willfully or intentionally “deserted, forsook or relinquished all connection” with mother during pregnancy.

Adoptive Parents’ Proposed Counter Proposition of Law

The term “willfully abandoned” under R.C. 3107.07(B)(2)(c), should be interpreted as failure to provide financial and emotional support for a mother.

Amicus Briefs in Support of Adoptive Parents

The American Academy of Adoption Attorneys

The American Academy of Adoption Attorneys is a national association of attorneys, judges, and law professors who practice and otherwise have distinguished themselves in the field of adoption law. The Academy promotes the reform of adoption laws and provides information for ethical adoption practices.

The Academy argues that Ohio’s statutory scheme for the rights of a putative father serves a compelling government interest by balancing the interests of the putative father, the state, the mother, and the child. Ohio’s Putative Father Registry contains both a registration and a non-abandonment provision. Allowing exceptions to these requirements defeats its purpose. Requiring a putative father to supply support serves the important role of sharing the burdens of pregnancy with the mother. Finally, Ohio’s putative father registry is constitutional, and addresses the realities of modern relationships.

Adoptive Circle

Adoption Circle is a private child placing agency, whose goal is to provide all parties in an adoption with the support necessary to best provide for the child.

Adoptive Circle argues that Biological Father’s status as a putative father puts him on notice that his rights can be waived if any of the requirements of R.C. 3107.07(B)(2) are not met. Biological Father’s lack of effort to provide any financial support waived his rights of paternity. Further, “[a]doption statutes need clarity so that lives are not shattered as children are placed into adoptive homes not to be pulled again thus disrupting bonding.” Finally, pregnant mothers must spend nine months planning and assessing a proper adoptive future for a child; a father should not be able to disrupt this plan by simply registering online.

Biological Mother

Mother received no support at all—emotional or financial—from Father before the adoptive placement of P.L.H. Only weeks before the child’s birth did he register with the Ohio Putative Father Registry, yet still failed to provide any kind of support to Mother, and never demonstrated any kind of “full commitment” to the child. He willfully abandoned Mother throughout her pregnancy through the time of placement with Adoptive Parents.

Biological Mother argues that simply registering with the Ohio Putative Father Registry is not enough to require paternal consent to an adoption. Action must be taken on behalf of the putative father to develop a relationship with the child. Biological Father also seeks protections greater than those afforded to legal parents. Biological Father’s lack of contact equates to a lack of support. Mother had a constitutional right to place P.L.H. for adoption. And it is in the best interest of P.L.H. to remain with his Adoptive Parents. Furthermore, “[r]emoval of P.L.H. from the only home he has ever known, to live in legal limbo while Mother and Appellant litigate over custody for years to come, would force this child to undergo the loss of everyone he knows in clear violation of his constitutional rights.” Finally, reversing the trial court will increase abortions, the number of children in the care of social services, and the number of fraudulent paternity claims.

Ohio Adoption Law Roundtable

The Ohio Adoption Law Roundtable is an association of adoption law attorneys whose goal is the promotion of the best interests of children and families.

The Roundtable argues that in order to be entitled to parental rights, a putative father must not only register with the Ohio Putative Father Registry, but must also must fully commit to parenthood during the pregnancy. In this case, the putative father woefully failed the second requirement. He expressed a general willingness to consent to the adoption when he learned of the pregnancy, limited communication to sporadic text messages, never visited Mother during the pregnancy, provided no emotional or financial support, and never filed a parentage action. Father wants the court to look at his intentions, not his actions. Eliminating financial support would eviscerate the Ohio Putative Father Registry. The court should reject Father’s argument that willful abandonment does not include care and support.

Student Contributor: Mark Tassone