What’s On Their Minds: Is A Single $200 Payment Enough to Satisfy “Maintenance and Support” Within the Meaning of R.C. 3107.07(A)? In Re Adoption of A.C.B.

“So one dollar would have thwarted the adoption?”

Chief Justice O’Connor, to Father’s Lawyer

“If the legislature changed the statute to add the word ‘de minimis’ to apply to contact…if they wanted the same analysis with child support payments, why wouldn’t they simply put de minimis there?”

Justice Donnelly to Stepfather’s lawyer

On May 7, 2019, the Supreme Court of Ohio heard oral argument in In Re Adoption of A.C.B., 2018-1300. The issue in the case is whether any support payment, no matter the size, is sufficient to preserve a natural parent’s right to object to the adoption of his or her child.

Case Background

J.B. (“Stepfather”) sought to adopt A.C.B., the minor child of his wife, A.C. (“Mother”) and B.D. (“Father”). Father opposed the adoption. The parties stipulated that Father had made a single $200 support payment toward his $4,420 annual support obligation within the statutory one-year period of R.C. 3107.07. The payment was made two days before the adoption petition was filed.

Father left the United States in 2013 when A.C.B. was two years old, and has not returned. He currently owes over $17,000 in unpaid child support. In a hearing, the Lucas County Probate Court found that, under R.C. 3107.07(A), Father had failed without justifiable cause to provide maintenance and support for the child as required by judicial decree, and that his consent to the adoption was not required. Father appealed, but did not challenge the “without justifiable cause” portion of the court’s ruling.

The Appeal

The Sixth District, in a split decision, affirmed the lower court’s decision, noting that Father was gainfully employed and only made the $200 support payment, which reflected less than three weeks of his child support obligation, 2 days before the adoption petition was filed. Stepfather met his burden proof by clear and convincing evidence. The majority overruled its decision in Celestino to the extent that it held that a single payment of child support constitutes maintenance and support as a matter of law.

The dissenting judge would find that R.C. 3107.07(A) must be strictly construed in favor of a non-consenting parent, and that a child support payment, no matter how meager, is still maintenance and support, thus requiring parental consent to the adoption. The dissenter would also not overrule Celestino.

Father’s Proposition of Law Accepted for Review

Pursuant to the explicit language of Ohio Revised Code 3107.07(A), provision of any maintenance and support during the statutory one-year period is sufficient to preserve a natural parent’s right to object to the adoption of their child.

Read the oral argument preview of the case here.

Key Statutes and Precedent

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 Holcomb, 18 Ohio St. 3d 361 (1985) (“[F]ailure by a parent to communicate with his or her child is sufficient to authorize adoption without that parent’s consent only if there is a complete absence of communication for the statutorily defined one-year period.”)

Celestino v. Schneider, 84 Ohio App.3d 192 (6th Dist. 1992) (any contribution of support, no matter how small, satisfies the maintenance and support requirement, distinguishing a de minimis monetary gift which is not maintenance and support from a child support payment.)

In Re Adoption of M.B., 2012-Ohio-236 (De minimis monetary gifts from a biological parent to a minor child do not constitute maintenance and support, because they are not payments as required by law or judicial decree as R.C. 3107.07(A) requires.) (Syllabus paragraph 1.)

At Oral Argument

Arguing Counsel

Robert S. Salem, University of Toledo College of Law Legal Clinic, for Appellant Father B.D.

James L. Rogers, Semro Henry & Barga Ltd., Toledo, for Appellee Stepfather J.B.

Father’s Argument

Lower courts in Ohio are split on the issue of what qualifies as maintenance and support under R.C. 3107.07(A). That is the issue before the Court today. There is no definition in the statute, which is what has contributed to the confusion. Many courts have interpreted that clause in the statute to mean that any child support made during that one-year period, even if it’s meager, is sufficient to preserve parental rights to refuse consent to an adoption. That is Father’s position. There is also case law in Ohio that says that even people with a judicial decree requiring zero child support payments have satisfied their obligation under the judicial decree. And therefore, their parental rights are preserved if their child was ever sought to be adopted.

The first step of the analysis under R.C. 3107.07(A) is to determine whether there was any child support paid pursuant to a judicial decree during the one-year period before the adoption. It is not a discretionary call when the facts are clear that something was paid pursuant to a child support decree. If there was a child support order and there was some payment on it, that is a payment as required by law or judicial decree, and parental rights are preserved.

Only if there was no support paid do we then we turn to the justifiable cause part of the equation, which is not an issue in this case. Here, in the one-year period prior to the adoption, Father made one $200 payment. He complied with the statute, and his consent to the adoption is required. There is no need to go to the second part of the analysis. And the case of In Re M.B. is distinguishable because that case dealt with gifts to the child, not child support pursuant to judicial decree.

Legislative intent must be honored here. When the legislature modified the communications prong of this statute in 2009 to require more than de minimis communication between parent and child, it considered, but did not change, the maintenance and support part of the statute. There was evidence the legislature actually had draft language to modify the maintenance and support prong, and intentionally chose not to. And no court has required 100% compliance with the child support order to preserve parental rights. There must only be some maintenance and support.

The proper remedy for failure to comply with the judicial decree in not paying all child support due is to file a motion to show cause to hold that parent in contempt of court, not to strip him of parental rights. Here we are talking about a fundamental right, not about contempt of court. Termination of parental rights is a fundamental right recognized over and over again by courts throughout the country including this Court.

Stepfather’s Argument

The analysis to determine if the father’s consent to this adoption is required is a two-step process. First, did the father provide maintenance and support as required by law or judicial decree. That is an absolute. There is either compliance or there isn’t. Rather like pass/fail. There is no quantitative aspect to this, no de minimis language. If the answer in step one is yes, the analysis is over. If the answer is no, then we proceed to the next step, which is justifiable cause. In theory, a parent could miss a single payment, which means the parent didn’t do what was required by the judicial decree. To counter the perceived unfairness of this, the next step is required, which is was there justifiable cause for missing the payment. In this process, the first step is reviewed under an abuse of discretion standard. The court has discretion to determine whether a financial contribution was made which comports with the statute. It is determined on a case by case basis, and is factual. If the court decides the financial contribution did not comport with the statute, that does not mean parental rights are terminated. It just means proceed to step 2, which is justifiable cause. The court looks at the totality of the evidence for the entire year, to determine whether or not there is justifiable cause, and that is reviewed under a manifest weight of the evidence standard.

The judicial decree determines how much is to be paid, when, and the method. But if a parent misses a single payment, that parent hasn’t done what was required. Then the probate court weighs the evidence and determines whether there justifiable cause for missing the one payment. That must be proven by clear and convincing evidence. That is where the fairness comes in, where the court does its most important work. If there is no justifiable cause, then the court proceeds to the next step which is the best interest phase.

Contempt is an entirely different issue, and should not be blended with the stepparent adoption statutes. In this case, the child’s mother would have to go to the Indiana court to seek contempt, not the Lucas County Probate Court.

It’s the stepfather’s position that the statute is actually written very well. With the first step the court exercises discretion; with the second step, the court weighs the evidence and determines justifiable cause. A parent could pay zero support with justifiable cause. But there is no quantitative aspect to this part of the statute, nor should there be.

What Was On Their Minds

As Required By Law or Judicial Decree

Doesn’t the statute say exactly what maintenance and support is, asked Justice DeWine? As required by law or judicial decree? So whatever the law or judicial decree requires, that’s maintenance and support, right? Why doesn’t the judicial decree define maintenance and support? Father did not comply with the judicial decree, did he? It’s not that the statute isn’t clear, it’s just that Father doesn’t like it, he added. It’s too harsh so the Court shouldn’t apply it?

In this instance why couldn’t the Court find that because there was an order that the father did not abide by, and did not pay child support as required by that order, then he failed to support, asked Justice Stewart? What satisfies “comports with the statute?”

What does “as required by” mean, asked Justice Fischer?

What if there is no court order asked Justice Stewart? Does that mean there is no duty to support one’s child? If there is a court order for a designated amount, that supersedes common law, but that doesn’t have to be strictly complied with by a parent as long as the parent gives something?

Father’s Payments in This Case

So he paid $200 in 4 years, asked Chief Justice O’Connor?

What obligation did the father have, asked Justice Donnelly? What was the specific amount he was required to pay?

What Satisfies R.C. 3107.07 (A)

So it’s the fathers’ position that he satisfies the statute, at least to require his signature, asked Justice Stewart? He may be in contempt, he might be criminally sanctioned for failure to pay the statutory amount, but for purposes of 3107.07 he has satisfied paying of maintenance and support for a one year period? Is it Father’s position that there was no failure to provide maintenance and support, so the court can’t get to the justifiable cause part of the analysis? (answer: yes, that is Father’s position.) Were the court to get to that part of the analysis, he might lose, she noted. So if there is no failure, we don’t get to the justifiable cause analysis? (correct, said Father’s lawyer). So technically, a parent could make the $200 payment, let another 360 days go by, make another $200 payment, so as to always preclude adoption of the child?

So, it’s father’s position that if a parent fails to follow the decree with regard to amount, pays one dollar to the child support enforcement agency, is wealthy, has the ability to pay far in excess of what was required, that will thwart the adoption, asked Chief Justice O’Connor? (answer:yes). What is the intent of the statute if not to provide for the support and maintenance of a child by both parents? Is it primarily to preserve the rights of the parents, or is it to ensure an incentive for parents to support their children and provide a consequence if they don’t? What happens when someone makes 50% , or 75% or 90% of his or her support obligations?

Would Father agree that if no $200 payment was made, consent was not required, asked Justice Fischer? (yes he agrees) And if every payment was made, then the natural father would have the right to deny consent? (yes) So we are talking about something in the middle, and isn’t that why we give the trial court abuse of discretion authority?

I think our duty is to apply the plain language of the statute, noted Justice DeWine. If you asked someone who spoke English and understood the language, if there is an order in place that required someone to pay $10,000 per year, and they had only paid $200, would anyone say that person had done what was required by judicial decree? We should ignore the plain language and do something else? We can’t ignore what the language says, he added. We can’t just grant new words because someone else may not have liked the result, can we?

Does the statute use the word “fully” in it, asked Justice Donnelly? But the legislature could have put that in there, right?

The Parent Who Misses a Single Payment/Justifiable Cause

Justice Stewart got into a lengthy back and forth with Stepfather’s counsel about a parent who misses a single payment. Was he saying, if a single payment is missed, then you have to go to the justifiable cause analysis. (yes, he was). It’s either a failure to support or there’s no failure to support, she noted. Because if there wasn’t a failure to support, you never get to the justifiable cause analysis. It seems like stepfather wants to go there every time there is an instance where someone has not fully complied with a court order or judicial decree. What if a parent paid 95% of his or child support order? What if a father withheld a payment because the child’s mother made him mad? Would that be justifiable cause under the statute? Let’s say the court found there was no justifiable cause for missing that payment. Then father’s signature is not needed? Even though he made 95% of the payments? (when stepfather’s counsel said, that’s correct, Justice Stewart looked incredulous, and asked if he had said, that’s correct. He had). She commented that didn’t seem like the intent of the legislature under R.C. 3107. If a parent fails to pay 100% according to judicial decree, and the court finds there was no justifiable cause for missing a single payment, what are the court’s options at that point? If there was a failure to support and no justifiable cause does the court have any choice but to say the signature is not required? Isn’t the statute clear? It says fails without justifiable cause to support the child. And in my hypothetical where a parent failed to make 100% of the payments and the reason for withholding that final payment was not justified, there is no other choice under the statute but to terminate that person’s parental rights? If the court says no justifiable cause, what’s the court to do then?

There is no quantitative analysis here, asked Chief Justice O’Connor?

Common Law Duty to Support/As Required By Law

Let’s say there is no support order, said Chief Justice O’Connor. Let’s assume an unmarried situation. Couple never married, no dispute about paternity, parents go separate ways. There is no entry into court so at that point we revert to “as required by law” and if that is not quantitative, what is it? In that situation, the judge would only be pinned to how much income the father has? She commented that you can’t have “by law” and “by judicial decree” at the same time.

Standard of Review

Under what standard are we reviewing the trial court’s actions, asked Justice Fischer? If the trial court says, one payment of $200 in that judge’s mind is de minimis, are we supposed to overturn that as unreasonable? Let’s assume there was a meager payment. Do we still leave it up to the trial judge to decide if 3107.07 (A) has been met? Under an abuse of discretion standard?

Is it father’s position that the trial court does not have discretion to determine whether any support has been paid or whether that provision of the statute has been satisfied –that is not a discretionary call, asked Justice Stewart? (yes, that is father’s position when the facts are clear that something was paid pursuant to a child support decree.)

Contempt

Shouldn’t missed payment go into a contempt hearing, asked Justice Donnelly? When you are talking about something as severe as termination of parental rights?

How It Looks From the Bleachers

To Professor Emerita Bettman

The bench was very hot, and this argument was very long. It was clear the justices didn’t care for either argument, seeming to find both too extreme. They seemed put off by the father hiding behind the statute, but making only a single child support payment the entire year. Justice DeWine really got into it with Mr. Salem about the plain and ordinary meaning of “as required by judicial decree.” Mr. Salem said more than once that he wasn’t defending his client’s actions, but merely insisting on the overarching importance of parental rights, and that the failure to pay the support owed should be handled with a contempt action. Justice DeWine seems to lean toward the view that if child support wasn’t fully paid, that would eliminate the need for consent; end of story. He got pretty hot about this at one point. Only Justice Donnelly seemed at all sympathetic to the father’s interpretation of the statute.

The justices also seemed put off by Mr. Rogers’ insistence that there is absolutely no discretion in the first part of the statutory test, and that any fairness comes with the second part, whether there was justifiable cause for not fully complying with a support order required by judicial decree. Justice Stewart was particularly skeptical about this position, really playing out a hypothetical of a parent who makes all but a single payment. And to me, curiously, Mr. Rogers also argued that the first part of the test-whether or not a parent complied with the judicial decree—is to be determined by an abuse of discretion standard. That position seems inconsistent with his basic argument that step one is like pass fail—you either complied or you didn’t.

So, I think the Court is not going to accept the argument of either side, and come out somewhere in the middle—likely by finding that the probate court has discretion with both prongs of the test. Ultimately, I think Stepfather would prevail under such a holding. In fact, the decision of the probate court made complete sense to me.

To Student Contributor Mark Tassone

Father’s argument is fairly simple. He may be in contempt. He may face criminal sanctions. But he should not lose his right to object to the adoption of his child.

The bench seemed skeptical of the ramifications of Father’s argument. Justice DeWine looked to the text: the statute specifically addresses judicial decrees. Father failed to abide by the judicial decree of child support. Justice Stewart tested the limits of Father’s contention. If someone in Father’s position made a $200 payment every year, would that preclude his child’s adoption indefinitely? According to Father, yes.

The beat(ing) goes on.

Stepfather contends that the first component of the statute has no quantitative aspect. It is a “yes” or “no” answer. The analysis then goes to whether justifiable cause exists. The Court seemed less skeptical. However, Justice Stewart again probed the potential extremes of such a reading. Stepfather contends that such a decision is appropriately within the discretion of the probate court.

I chalk this case up as a win for Stepfather. While Justice Stewart made an excellent example of the potential danger that could come from Stepfather’s reading, I think Stepfather made the right call in stating that such determinations are within the discretion of the probate courts.

I also would not be surprised by the Court releasing an opinion that contained more of a middle-ground approach. Justice Fischer repeatedly asked about the abuse of discretion standard. Justice DeWine repeatedly asked about Father’s failure to abide by a judicial decree. Will the Court punt? Stay tuned.

This will be my last case for Legally Speaking Ohio. I’ve been honored with the privilege of serving as a student contributor under Professor Bettman. The knowledge I have gained is invaluable. And I can only offer my humble thanks to Professor Bettman and our readers for providing me with this great experience.

To Student Contributor Maggie Pollitt

I did not like either argument. Both parties offered extreme interpretations of the statute that the justices seemed reluctant to accept. First, the justices were skeptical of the Father’s argument that any child support payment at all, even as little as a dollar per year, could preserve a biological parent’s right to refuse adoption. The justices appeared dissuaded by the likely result of the Father’s interpretation: a hostile, yet unsupportive, biological parent could make any adoption proceeding virtually impossible by a meager dollar. I don’t think the justices favor this argument, and neither do I.

Furthermore, the justices were critical of the Stepfather’s argument. The justices seemed dissuaded by the worst-case scenario that would be legally possible under this statutory interpretation: a parent who is almost completely financially compliant, yet misses a single payment without justifiable cause, would lose his right to object to the adoption of his child. This interpretation, while making the analysis much easier, bleeds the statute dry of wiggle room for fairness and does not offer sufficient protection for the constitutional rights of parents.

Because the Court appeared reluctant to adopt either interpretation presented by the Father and Stepfather, I think the Court will take a middle ground and permit the trial court discretion in both steps of the statute’s analysis. I think the Court will ultimately rule that the statute permits trial courts discretion in determining whether a parent has adequately complied with his child support obligations, even if the parent did not fully comply with the statute. This interpretation would both protect the constitutional rights of parents who have made child support payments and prevent financially unsupportive biological parents from thwarting every attempt at adoption.