Lead Opinion
{¶ 1} These appeals relate to an adoption proceeding initiated by the stepfather of a minor child in which the probate court determined that the natural father's consent to the adoption was required, and therefore the court dismissed the adoption petition. The question presented to this court is whether the natural father failed without justifiable cause to provide maintenance and support as required by law or judicial decree, where the father had a zero child-support order. Because we determine that, under the plain language of R.C. 3107.07(A), a parent cannot fail without justifiable cause to provide maintenance and support of a minor as required by law or judicial decree when that parent has a zero child-support order, we affirm the judgment of the trial court.
{¶ 2} In February 2016, appellant stepfather filed a petition to adopt his stepson, B.I., with the consent of B.I.'s mother ("mother"). The petition alleged that the consent of B.I.'s birth father ("father") was not required under R.C. 3107.07(A), because father had failed without justifiable cause to provide maintenance and support of B.I. as required by law or judicial decree for a period of at least one year immediately preceding the filing of the adoption petition (the "one-year period").
{¶ 3} Father filed objections to the petition. Prior to a hearing on the issue of whether father's consent to the adoption was required, the parties stipulated to several facts, including that (1) father had been in prison since 2009; (2) in August 2010, the Clermont County Juvenile Court had set father's child-support obligation at zero and had also set his arrearage to zero; (3) during the one-year period, father had received $18 per month as prison income, and friends and family had deposited $5,152 into his prison account; and (4) during the one-year period, father had spent $4,681.62 at the prison commissary.
{¶ 4} At the hearing before the magistrate on the issue of father's consent, mother testified that father, along with father's mother, had requested repeatedly that mother terminate father's child-support order, otherwise, father would be incarcerated again on child-support arrearages upon release from prison. Because of their requests, mother agreed to an order that set father's support obligation at zero and set his arrearage at zero. Mother testified that she had not had any communication with father during the year prior to the filing of the adoption petition, but that she would have accepted money from father for B.I.'s support if father had offered.
{¶ 5} Father participated in the consent hearing by phone. Father testified that he had spent over $4,000 in the prison commissary because he did not like the food served at the prison mess hall. He never attempted to provide maintenance or support for B.I. while in prison and never inquired regarding B.I.'s financial support. However, father testified that mother had never requested any support.
{¶ 6} After the consent hearing, the magistrate determined that even though father did not have a support obligation by judicial decree, as a parent, he still had the obligation to provide maintenance and support. Because the uncontroverted evidence showed that father did not provide any maintenance or support for B.I. during the one-year period, and that father had thousands of dollars available to him in his prison account, father's consent was not required for the adoption petition.
{¶ 7} Father filed objections to the magistrate's decision, arguing mainly that the zero child-support order excused any legal obligation to provide maintenance and support to B.I. The trial court sustained father's objections, overruled the decision of the magistrate, and dismissed stepfather's adoption petition. Stepfather now appeals, raising in one assignment of error that the trial court erred in dismissing his adoption petition.
{¶ 8} In general, an adoption petition may be granted only if written consent to the adoption has been executed by the minor's natural parents. See R.C. 3107.06. However, parental consent to an adoption is not required when the petitioner alleges, and the court finds, by clear and convincing evidence, that the parent "has failed without justifiable cause to provide more than de minimis contact with the minor or 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 * * * the filing of the adoption petition * * *." R.C. 3107.07(A). The probate court determines justifiable cause "by weighing the evidence of the natural parent's circumstances for the statutory period for which he or she failed to provide support."
In re Adoption of Bovett
,
{¶ 9} As it pertains to the natural parent's failure to provide maintenance and support, the petitioner requesting adoption carries the burden to prove by clear and convincing evidence "both (1) that the natural parent has failed to support the child for the requisite one-year period, and (2) that this failure was without justifiable cause."
{¶ 10} R.C. 3107.07(A) does not contain definitions for its terms, thus, courts give those terms their plain and ordinary meanings.
In re E.W.H.
, 4th Dist. Meigs No. 16CA8,
{¶ 11} Stepfather first argues that a zero child-support order does not excuse a parent's failure to support because R.C. 3107.07(A) refers to maintenance and support "required by law or judicial decree." (Emphasis added.) Thus, according to stepfather, father had a duty to support his son, separate and apart from the zero child-support order. Stepfather also argues that the probate court failed to consider all of the facts and circumstances in its decision, including the fact of father's incarceration as the underlying basis for the zero child-support order.
{¶ 12} To support the argument that a duty to support a minor child exists separate from a child-support order, stepfather cites two cases from the Fifth Appellate District,
In re Adoption of A.S.
, 5th Dist. Licking No. 10-CA-140,
{¶ 13} Because the father had a separate duty to provide support to his child, the court in In re Adoption of A.S. determined that, despite the zero child-support order, the father had failed without justifiable cause to support his child. In re Adoption of A.S. at ¶ 29. The Fifth Appellate District followed its reasoning in In re Adoption of A.S. in In re Adoption of Z.A. , another case dealing with an incarcerated father where the father did not have a child-support order in place.
{¶ 14} Other appellate courts have taken a different approach to the language of R.C. 3107.07(A). The Ninth Appellate District has applied the phrase "required by law or judicial decree" in R.C. 3107.07(A) to mean that if a judicial decree of support exists, then the decree supersedes any duty of support "required by law."
See
In re Adoption of Jarvis
, 9th Dist. Summit No. 17761,
{¶ 15} The Second Appellate District has followed
Jarvis
in holding that a judicial order relieving a parent of the duty to support supersedes a statutory or common-law duty to support in adoption cases.
See
In re Adoption of Stephens
, 2d Dist. Montgomery No. 18956,
{¶ 16} The Fourth Appellate District has distinguished its holding that a zero child-support order supersedes a statutory or common-law duty to support in adoption cases.
See
In re Adoption of L.C.H. and K.S.C.
, 4th Dist. Scioto Nos. 09CA3318, 09CA3319 and 09CA3324,
{¶ 17} The reasoning of the Fourth Appellate District in
In re Adoption of L.C.H. and K.S.C.
is similar to the reasoning of the Fifth Appellate District in
In re Adoption of A.S.
and
In re Adoption of Z.A.
in that these courts have determined that a parent has a statutory duty to provide child support, despite the fact that the parent has a court order of support in place. The reasoning in these cases is problematic. First, these cases do not discuss
Meyer v. Meyer
, in which the Ohio Supreme Court held that in domestic-relations cases the general duty of support under R.C. 3103.03 is superseded by R.C. 3109.05, the domestic-relations statute governing child support.
Meyer
,
{¶ 18} Adoption proceedings terminate fundamental rights of natural parents, thus the consent requirement in R.C. 3107.07(A) must be strictly construed to protect natural parents.
In re Adoption of G.V.
,
{¶ 19} Therefore, we reject stepfather's argument in this case that the language "required by law or judicial decree" in R.C. 3107.07(A) means that a parent still has a duty to provide child support separate from a judicial decree of support. We follow the approach taken by a majority of appellate courts and hold that in adoption-consent cases under R.C. 3107.07(A), where a court has ordered a parent to pay no child support or zero child support, that court order of support supersedes any other duty of support "required by law," and therefore the parent cannot fail without justifiable cause to provide maintenance and support of a minor child.
{¶ 20} We note that applying R.C. 3107.07(A) to cases where a natural parent has a zero child-support order may produce unjust results, especially where the zero child-support order is the result of the natural parent's criminal misconduct. For example, in
Frymier v. Crampton
, 5th Dist. Licking No. 02 CA 8,
{¶ 21} The result in
Frymier
is not based upon the plain language of R.C. 3107.07(A), but instead upon the court's determination that justice required disposing of the father's consent because of the father's criminal misconduct. Although justice may have been better served by the result reached in
Frymier
, R.C. 3107.07(A) makes no exception to parental consent in an adoption proceeding because of a parent's criminal misconduct. The role of the courts is to apply the law as written, thus, we must adhere to the plain language of R.C. 3107.07(A).
See
Arbino v. Johnson & Johnson
,
{¶ 22} In this case, the undisputed evidence shows that father had a zero child-support order for the one-year period. Both mother and father have referred to the 2010 child-support order as a zero child-support order.
See
appellant's
brief at 4; appellee's brief at 2-3, 14. Even though both parties and the trial court agree as to the characteristics of the 2010 support order, the dissent sees it differently. The dissent makes an argument that neither party made to the trial court, or in either their briefs or at oral argument to this court. The dissent argues that the 2010 order terminating father's support obligation is not a zero child-support order, but instead the order should be treated as if "no order exists." The dissent cites no law for this argument. To be clear, the absence of a child-support order is treated differently under R.C. 3107.07(A).
See, e.g.,
In re Adoption of Kuhlmann
,
{¶ 23} Moreover, based upon the language in this opinion, the dissent creates a hypothetical situation where a father who commits crimes against his child, and goes to prison for those crimes, must later consent to that child's adoption. It is worth noting that this hypothetical situation is factually distinguishable and would likely turn out differently than predicted by the dissent, albeit under the de-minimis contact provision of R.C. 3107.07(A).
See
In re Adoption of N.T.R.
, 10th Dist. Franklin No. 16AP-589,
{¶ 24} Therefore, stepfather did not meet his burden to show by clear and convincing evidence that father failed without justifiable cause to provide maintenance and support to B.I. as required by law or judicial decree. We overrule stepfather's assignment of error, and we affirm the judgment of the probate court dismissing stepfather's adoption petition.
Judgment affirmed.
Mock, P.J., concurs.
Miller, J., dissents.
Dissenting Opinion
{¶ 25} Let's say an ex-husband who had long been derelict in making child-support payments commits crimes against his ex-wife and child. He is sent to prison. The mother decides she wants the father released from prior obligations under a child-support order because she and her child want to sever all ties. The juvenile court accommodates this request and rescinds the order. She later seeks to have the child adopted by her new spouse. According to the majority, the probate court has no discretion in this instance. The child may not be adopted under R.C. 3107.07(A) without the consent of the ex-husband. Same goes for any other louse who a custodial parent has decided not to be financially tied to and thus consented to there not being a support order. Could this be the intent of the consent provisions in R.C. 3107.07(A) ? Is such a result mandated by the text? I conclude it is not, and thus respectfully dissent.
{¶ 26} The majority refers to a "zero child-support order." In the mind's eye, that would be a court order affirmatively stating the father is required to pay zero dollars. That is not what exists here. Here, there had been a support order in place, on which father was not paying. Father's relatives convinced mother to release him from the order so that the accumulating arrearage would not be problematic for father upon his release. The juvenile court terminated the order, but did not put on a "zero child-support order." Instead, no order exists.
{¶ 27} Thus, I find troubling the majority's conclusion that the absence of a child-support order is dispositive. Providing no support where there is no support order in place isn't an automatic pass on the "maintenance and support" portion of R.C. 3107.07(A). Instead, it factors into whether the failure to provide maintenance and support was "without justifiable cause."
{¶ 28} The statute affords the probate court discretion to weigh the circumstances around which a parent has failed to provide support. Perhaps a parent was not ordered to provide support because the custodial parent was wealthy, or the noncustodial parent is justifiably incomeless and unable to provide support, or maybe one parent is a person the custodial parent is trying to avoid for a host of reasons and therefore wants no order in place. The probate court should be able to consider such matters before making a determination under R.C. 3107.07(A).
{¶ 29} Accordingly, I would vacate the judgment and remand for the probate court to decide whether the failure to provide support was justified. When it does so, the probate court would be free to consider the redirection of the support obligations and the reasons therefor when making its determination.