2019 Ohio 1173
Ohio Ct. App.2019Background
- Child B.V.K.M. born 2006; parents never married. Mother had residential custody; juvenile court ordered $0 monthly child support from father and responsibility for extraordinary medical expenses while father was incarcerated.
- Father (appellant D.L.) saw child until an incident during a visit on November 28, 2015; visits stopped after a dispute between parents.
- Juvenile court suspended father’s contact with the child effective May 26, 2016, until further order, based on untreated mental health and substance-abuse concerns.
- Stepfather (appellee C.W.M.) filed to adopt the child on October 6, 2017; he alleged mother’s consent was required but father’s consent was not because father (a) had no more-than-de minimis contact with the child for one year before the petition, and (b) failed to provide maintenance/support for one year before the petition.
- Probate court found father had no contact since November 28, 2015 and therefore failed to have more-than-de minimis contact, so his consent was not required; the court also found father’s failure to pay support was justified because of the juvenile court’s $0 support order.
- On appeal, this court reversed the probate court’s finding about contact (finding the juvenile court’s suspension justified the non-contact) but affirmed the probate court’s ruling that the $0 support order justified nonpayment, so father’s consent was required as to support but not excused as to contact.
Issues
| Issue | Plaintiff's Argument (appellee) | Defendant's Argument (appellant) | Held |
|---|---|---|---|
| Whether father’s consent to adoption was excused for failing to have more-than-de minimis contact for one year before the petition | Father failed to contact child for over a year and did not pursue juvenile-court relief for that child, so consent not required | Juvenile-court no-contact order justified the lack of contact; father attempted to seek visits but pursued one child at a time per treatment advice | Reversed: the juvenile-court suspension ("until further order") justified the lack of contact; probate finding against father was against manifest weight of the evidence |
| Whether father’s consent to adoption was excused for failing to provide maintenance/support for one year before the petition | Father voluntarily paid $100/mo until late 2015 but provided nothing thereafter; ability to pay shows failure was not justified | Father was subject to a judicial $0 support order from the juvenile court, which relieves him of an obligation to pay and justifies nonpayment | Affirmed: $0 judicial support order supersedes statutory duty to support; nonpayment was justified and father’s consent as to support was required |
Key Cases Cited
- In re Adoption of M.B., 131 Ohio St.3d 186, 963 N.E.2d 142 (Ohio 2012) (two-step analysis under R.C. 3107.07(A): first whether parent failed to support/contact, second whether failure was justifiable)
- In re Sunderhaus, 63 Ohio St.3d 127, 585 N.E.2d 418 (Ohio 1992) (consent provisions construed strictly to protect non-consenting parent)
- Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (Ohio) (definition of clear and convincing evidence)
- Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (Ohio 1983) (abuse-of-discretion standard explained)
- C.E. Morris Co. v. Foley Constr. Co., 54 Ohio St.2d 279, 376 N.E.2d 578 (Ohio) (weight of the evidence standard; credible, competent evidence needed)