IN RE ADOPTION OF B.I.
Nos. 2018-0181, 2018-0182, 2018-0350, and 2018-0351
Supreme Court of Ohio
June 25, 2019
2019-Ohio-2450
Submitted January 8, 2019. APPEAL from and CERTIFIED by the Court of Appeals for Hamilton County, Nos. C-170064 and C-170080, 2017-Ohio-9116.
NOTICE
This slip opinion is subject to formal revision before it is published in an advance sheet of the Ohio Official Reports. Readers are requested to promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 South Front Street, Columbus, Ohio 43215, of any typographical or other formal errors in the opinion, in order that corrections may be made before the opinion is published.
SLIP OPINION NO. 2019-OHIO-2450
IN RE ADOPTION OF B.I.
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as In re Adoption of B.I., Slip Opinion No. 2019-Ohio-2450.]
Adoption—
{¶ 1} This is a discretionary appeal and certified-conflict case from the First District Court of Appeals involving
FACTS AND PROCEDURAL HISTORY
{¶ 2} K.I. (“the mother”) and appellee, G.B. (“the father”), are the natural parents of B.I., who was born in 2007. The mother and father were never married. In 2016, the mother’s husband, appellant, G.I. (“the stepfather”), filed in the Hamilton County Probate Court a petition seeking to adopt B.I. and arguing that under
{¶ 3} The stepfather argues that the father had failed to provide support for B.I. during the year preceding the filing of the petition; he abandoned his claim that the father had failed to provide more than de minimis contact in that period (failure to maintain contact had been the basis for a failed attempt by the stepfather to adopt B.I. in the Clermont County Probate Court in 2014).
{¶ 4} The father entered prison in 2009 and remained there for the relevant time period. In 2010, the mother requested the Clermont County Juvenile Court to tеrminate the father’s child-support obligation and to reduce his arrearages to zero. The court issued an order stating as follows: “It is hereby ordered * * * that the Defendant’s current support obligation is terminated at the request of Plaintiff. At Plaintiff’s request, the outstanding support arrearage is reduced to $0.00. CSEA [Child Support Enforcement Agency] is hereby directed to adjust its records accordingly.”
{¶ 5} During the one-year period prior to the filing of the petition for adoption, the father had received $18 a month as prison income and his parents and a friend had deposited $5,152 into his prison account; that year, the father spent $4,681.62 in the prison commissary. There is no dispute
{¶ 6} The probate-court magistrate determined that even though the father was not subject to a child-support order under a judicial decree, he still had money available and an obligation as a parent to provide child support within his means. Finding that the father had provided no child support during the applicable year, the magistrate concluded that the father’s consent to the adoption was not required. The probate court overruled the magistrate, finding that a valid, zero-support order provides justifiable cause for a failure to provide maintenance and support under
{¶ 7} The stepfather filed two appeals in the First District Court of Appeals, one upon the probate court’s filing of its opinion granting the father’s objections and overruling the magistrate’s decision and the second upon the probate court’s dismissal of the adoption petition. The appellate court consolidated the cases and affirmed the probate court’s judgment, holding that “under
{¶ 8} The First District certified a conflict between its judgments and the judgments of the Fifth District Court of Appeals in In re Adoption of A.S., 5th Dist. Licking No. 10-CA-140, 2011-Ohio-1505, and In re Adoption of Z.A., 5th Dist. Licking No. 16-CA-05, 2016-Ohio-3159. This court determined that a conflict exists between the judgments below and the Fifth District’s judgment in A.S. and ordered the parties to brief the following question:
“In an adoption-consent case under
R.C. 3107.07(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?”
152 Ohio St.3d 1441, 2018-Ohio-1600, 96 N.E.3d 297, quoting the court of appeals’ February 27, 2018 entry.
{¶ 9} Additionally, the stepfather filed jurisdictional appeals that we accepted. The stepfather asserted the following two propositions of law in those cases:
Proposition of Law No. I: An adoption consent case under
R.C. 3107.07(A) must be dеcided 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.Proposition of Law No. II: In an adoption consent case under
R.C. 3107.07(A) , a court order setting the natural parent’s child support obligation at 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 onefactor (among many) that the court must consider.
See 152 Ohio St.3d 1441, 2018-Ohio-1600, 96 N.E.3d 297.
{¶ 10} We sua sponte consolidated the certified-conflict cases and the jurisdictional appeals. Id.
LAW AND ANALYSIS
{¶ 11} This case—and the statute at the center of this case—is not about child-support enforсement; it is about the severance of parental rights. At its core, this case raises a critical question: Can child-support obligors rely on the authority of court orders that affect the most important aspects of their lives? Can a parent who relies on a valid order of a court of competent jurisdiction suffer—because he or she relied on that order—the “ ‘family law equivalent of the death penalty,’ ” In re Hayes, 79 Ohio St.3d 46, 48, 679 N.E.2d 680 (1997), quoting In re Smith, 77 Ohio App.3d 1, 16, 601 N.E.2d 45 (6th Dist.1991), the severing of parental rights through the adoption of the parent’s child by another person without the parent’s consent?
The application of R.C. 3107.07(A)
{¶ 12} This case turns on a phrase in
{¶ 13}
Consent to adoption is not required of any of the following:
(A) A parent of a minor, when it is alleged in the adoption petition and the court, after proper service of notice and hearing, 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 either the filing of the adoption petition or the placement of the minor in the home of the petitioner.
{¶ 14} In this case, we do not face the question whether the father had de minimis contact with his child, B.I.; the stepfather’s 2014 attempt to adopt on that basis in Clermont County failed, and the stepfather has abandoned that claim in this case. Here, we consider only whether the father “has failed without justifiable cause * * * to provide for the maintenance and support of the minor as required by law or judicial decree,”
{¶ 15} To determine whether a parent has failed to provide child support as required
{¶ 16} We stand in this case at the first step—determining what the law or judicial decree required of the parent for the year prior to the filing of the petition. If the father had no obligation to provide child support, the analysis ends there. But appellate courts, as did the probate court in this case, have tended to consider the existence of a court order establishing no obligation of support as part of the justifiable-cause determination, e.g., In re Adoption of A.N.W., 7th Dist. Belmont No. 15 BE 0071, 2016-Ohio-463, ¶ 31 (“a zero support order or a no support order constitutes justifiable cause for failing to provide support and maintenance”); In re Adoption of K.A.H., 10th Dist. Franklin No. 14AP-831, 2015-Ohio-1971, ¶ 23 (“The zero support order is a justifiable excuse for [the father’s] failing to pay support for his children”). Indeed, this court, in determining that a conflict exists among appellate districts, ordered briefing in this case on the issue whethеr a court order relieving a parent of a child-support obligation provides justifiable cause for the parent’s failure to provide maintenance and support. But the issue is not whether a decree ordering zero support—or one that terminates a previously ordered support obligation or modifies a previously ordered support amount to zero—justifies a failure to provide maintenance and support; instead, the issue is whether the existence of a no-support order1 means that the parent subject to it was under no obligation to provide maintenance and support. Determining the parent’s obligation—that which was required by law or judicial decree for the year prior to the filing of the petition—is the threshold issue.
{¶ 17} Therefore, the crux of the issue before us is this: if a court has issued a decree relieving a parent of any child-support obligation, is there a separate obligation that arises by law under which that parent still is required to provide maintenance and support to the child? The answer to that question is no. The General Assembly created a binary system in which a parent has a general obligation of support toward a child when the parent’s responsibilities are not the subject of a court order and a specific obligation of support when a court has determined the parent’s obligation by decree.
R.C. 3107.07 is connected to Ohio’s statutory child-support scheme
{¶ 18}
complex statutory scheme involving laws that regulate and control the most intimate aspect of our personal lives—our family relationships.
{¶ 19}
Each married person must support the person’s self аnd spouse out of the person’s property or by the person’s labor. If a married person is unable to do so, the spouse of the married person must assist in the support so far as the spouse is able. The biological or adoptive parent of a minor child must support the parent’s minor children out of the parent’s property or by the parent’s labor.
{¶ 20} The statute subsumes the common-law obligation: “The common-law duty to support one’s minor children has been replaced by
{¶ 21}
{¶ 22} Another statute comes to the forefront when marriages end. “
{¶ 23} Child support is established in a similar manner in cases in which the parents of the child were never married and paternity has been established in a paternity action or by an acknowledgment of paternity in the juvenile court. See
{¶ 24} The trial court also has the ability to modify the child-support order:
It has long been recognized in Ohio that a court retains continuing jurisdiction over its orders concerning the custody, care, and support of children * * *. A child affected by such an order is considered a ward of the court, which may always reconsider and modify its rulings when changed circumstances require it during the child’s minority.
Singer v. Dickinson, 63 Ohio St.3d 408, 413-414, 588 N.E.2d 806 (1992). In the
{¶ 25} When modifying a child-support order, the trial court has the authority to reduce a child-support order to zero in two ways. Pursuant to its authority under
The child-support order establishes the parent’s obligation
{¶ 26} Once issued, the child-support order determines what the parent’s obligation is. As noted above,
{¶ 27} Ohio’s statutory scheme regarding families and children makes clear that there are two statuses of parental obligation: first, a general obligation of parents to support their children imposed by law in
The father’s obligation under R.C. 3107.07(A) is defined by the Clermont County support order
{¶ 28} Here, the father’s child-support obligation was determined by the Clermont County Juvenile Court. A juvenile court has continuing jurisdiction to modify a child-support obligation. In this case, the mother requested that the father’s existing obligation of child support be terminated and that any child-support arrearages he owed be vacated. It is undisputed that the trial court had the authority to reduce the existing child-support obligation to zero. The trial court could have used one of two vehicles: its authority under
{¶ 29} The court’s order means that for the time period at issue in this case, the father’s duty “to provide for the maintenance and support of the minor as required by * * * judicial decree,”
{¶ 30} As set forth above,
{¶ 31} The juvenile court had jurisdiction to relieve the father of his prior child-support obligation at the mother’s request and has continuing jurisdiction to modify the father’s current support obligation from zero to an amount calculated by the court. This is not an instance of there being no support order in place; it is an instance of a no-support order that is subject to modification.
{¶ 32} The General Assembly has enacted a specific statutory scheme instructing courts how to calculate child-support amounts and has given thosе courts discretion to deviate from the child-support guidelines, including the authority to modify a parent’s child-support obligation to zero. This policy decision to allow a court with jurisdiction to deviate from the child-support guidelines and relieve a parent of an obligation of support is not for us to question. As members of the judiciary, ours is not the realm of creating policy; the General Assembly is “the arbiter of public policy in Ohio.” Pelletier v. Campbell, 153 Ohio St.3d 611, 2018-Ohio-2121, 109 N.E.3d 1210, ¶ 31.
The Fifth District erred in In re Adoption of A.S. in creating a support obligation for purposes of R.C. 3107.07(A) based on a criminal statute
{¶ 33} In the conflict case In re Adoption of A.S., 2011-Ohio-1505, the father had been ordered to pay $0.00 in child support pursuant to a paternity action in Franklin County. But the Fifth District incorporated a criminal statute,
{¶ 34}
{¶ 35} If we concluded that
{¶ 36} In Rowland v. State, 14 Ohio App. 238, 239 (3d Dist.1921), the defendant had been convicted of a criminal offense under G.C. 1655 for failing to contribute to the support of his minor child. The statute provided that “[w]hoever is charged by law with the care, support, maintenance or education of a minor * * * and is able to support or contribute toward the support or education of such minor, fails, neglects, or refuses so to do” is guilty of a criminal offense. But the child’s parents’ divorce decree had stated that “the custody, care, education, control, support and maintenance of the child are awarded to the wife” and that the defendant was “released from any further responsibility regarding the child.” Id. at 238. The court reversed the conviction, holding that the defendant was no longer obligated to support the child and that as long as the order remained in force, it was a defense against a prosecution for a failure to support the child. Id. at 239-240.
{¶ 37} In State v. Holl, 25 Ohio App.2d 75, 266 N.E.2d 587 (3d Dist.1971), the Auglaize County Juvenile Court had found the defendant guilty of nonsupport of his daughter, fining him and ordering him imprisoned for 30 days. The imprisonment was suspended on the condition that he pay $10 a week to the child’s mother until the child reached the age of 18. However, the defendant had been paying $10 a month for support of the child pursuant to a decree issued by the Auglaize County Court of Common Pleas when it awarded custody of the child to her mother. On appeal, the Third District reversed the conviction, holding, “It is anomalous that, while complying with one court order for support, a person could be found guilty of nonsupport in another court. Compliance with the Common Pleas Court order is a bar to prosecution for nonsupport in the Juvenile Court.” Id. at 77.
{¶ 38} Because compliance with a juvenile court’s no-support order would likewise be a bar to a parent’s prosecution for a failure to supрort a child, a probate court could not find that the parent violated
The effects of a contrary holding are unacceptable
{¶ 39} The most important consequence of the contrary holding advocated by the
{¶ 40} And this would be the case for any child-support order, not just a no-support order. A parent could no longer simply comply with a judicial decree setting a low, moderate, or even high level of support—whether the parent’s consent is necessary for the adoption of his or her child would depend on what constitutes “adequate support” under
{¶ 41} Further, adoption of the stepfather’s reading of
{¶ 42} Every day, families rely on court orders to define parents’ lawful obligations. They structure their lives around what the court has ordered. Our decision today ensures that the judgment of the court with the jurisdiction to set child-support levels can be relied upon.
CONCLUSION
{¶ 43} The General Assembly did not create a child-support system in which a domestic-relations or juvenile court determines by court order an adequate level of child support, only to have a probate court sever the parental rights of a parent because the parent abided by that support order. Thеrefore, pursuant to
{¶ 44} Accordingly, we affirm the judgment of the court of appeals.
Judgment affirmed.
FRENCH, DEWINE, and DONNELLY, JJ., concur.
O’CONNOR, C.J., dissents, with an opinion.
FISCHER, J., dissents, with an opinion.
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O’CONNOR, C.J., dissenting.
{¶ 45} With one limitation, I join Justice Stewart’s dissenting opinion in concluding that this is not a case in which there is a judicial order establishing child support. The majority creates a legal fiction with the term “no-support order” and incorrectly uses that term to describe three factually distinct scenarios: “orders terminating previously ordered support, zero-support orders, and orders modifying a previously ordered support amount to zero.” Majority opinion at ¶ 16, fn. 1. Thus, I would also conclude that the proper course is to reverse the court of appeals’ judgment and remand the case to the probate court to determine whether the father had justifiable cause for failing to provide maintenance and support for his child. I do not, however, join Justice Stewart’s dissenting opinion to the extent that it discusses the burden of proof and the clear-and-convincing-evidence standard or suggests a need to overrule case law that is not at issue in this case. See dissenting opinion, Stewart, J., at ¶ 66-68.
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FISCHER, J., dissenting.
{¶ 46} I respectfully dissent because the majority sets forth an interpretation of
I. Plain Language of R.C. 3107.07(A)
{¶ 47} In answering the certified question, we must determine the meaning of the language used by the legislature in
{¶ 48}
{¶ 49} Thus, under the plain language of
{¶ 50} To conclude, as the majority does, that the existence of a judicial decree that relieves a parent of an obligation to pay child support is dispositive of all maintenance-and-support obligations relevant
II. How R.C. 3107.07(A) Should be Applied
{¶ 51}
III. A Judicial Decree Impacts Multiple Steps in the R.C. 3107.07(A) Analysis
{¶ 52} It is important to explain that a judicial decree ordering zero child support plays an important role in the various steps in the analysis required under
{¶ 53} First, in many cases, the facts found by the court that issued a decree relieving a parent of a child-support obligation may support a court’s conclusion, after weighing all the relevant factors, that the parent has no other legal obligation to provide for the maintenance and support of the child. For example, it is reasonable to assume that a substantial percentage of judicial decrees relieving a parent of a child-support obligation are issued because the parent lacks the ability and resources to provide support. Thus, while a judicial decree relieving a nonconsenting parent of a child-support obligation is not dispositive in adoption-consent cases, the facts found by the court that issued that decree may often result in dismissal of the adoption petition.
{¶ 54} Second, even when a judicial decree does not require the noncustodial parent to provide support but that parent has the resources to do so, there will be situations in which the parent will have “justifiable cause” for failing to provide maintenance and support as required by law. For example, the court should include in its weighing process whether offers of assistance from the noncustodial parent were rebuffed by the custodial parent and
IV. Conclusion
{¶ 55} I would answer the certified-conflict question in the negative and hold that a judicial decree that relieves a parent of a child-support obligation is not dispositive of all maintenance-and-support obligations relevant to
{¶ 56} For these reasons, I respectfully dissent.
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STEWART, J., dissenting.
{¶ 57} A judicial order that relieves a parent of a child-support obligation previously imposed by a court does not, and should not, function as a matter of law the same way as a judicial order establishing a child-support obligation. The majority opinion goes to great lengths to lay out the statutory scheme of court-ordered child support, but this is not a case in which there is a judicial order establishing support. In this case, the juvenile-court order at issue terminated the father’s child-support obligation that had been previously ordered by the court and there is no dispute that the father had failed to support his child during the year prior to the filing of the adoption petition. Under these circumstances,
{¶ 58} When the Revised Code speaks of child support “required by law or judicial decree,” id., it refers to what this court has long acknowledged: there are separate common-law and statutory duties to support a child. See, e.g., Smith v. Smith, 109 Ohio St.3d 285, 2006-Ohio-2419, 847 N.E.2d 414, ¶ 11 (stating that a parent’s “duty to support his child is manifest at common law and in statutory law”); Haskins v. Bronzetti, 64 Ohio St.3d 202, 205, 594 N.E.2d 582 (1992) (plurality opinion) (“Both common and statutory law in Ohio mandate that a parent provide sufficient support for his or her child”).
{¶ 59} The duty of support imposed by the common law was “to provide reasonably” for the maintenance of a parent’s minor children. Pretzinger v. Pretzinger, 45 Ohio St. 452, 458, 15 N.E. 471 (1887), overruled on other grounds, Meyer v. Meyer, 17 Ohio St.3d 222, 478 N.E.2d 806 (1985), syllabus. This obligation has been construed as one to provide for the child’s “necessaries,” which we have defined in a related context as “food, shelter, clothing, and medical services.” Embassy Healthcare v. Bell, 155 Ohio St.3d 430, 2018-Ohio-4912, 122 N.E.3d 117, ¶ 4 (construing doctrine according to which a husband was liable to third parties for necessaries they had provided to his wife).
{¶ 60} The statutory duty of child support requires a “biological or adoptive parent of a minor child” to “support the parent’s minor children out of the parent’s property or by the parent’s labor.”
{¶ 61} When a court enters a child-support order, that order supersedes any duty of support under
{¶ 62} To illustrate why this is the casе, suppose that an obligor parent had a court-ordered child-support obligation terminated on the grounds that the parent, perhaps being incarcerated or disabled, no longer had either the financial means to provide support or any reasonable prospect of being able to provide support. Now suppose that this obligor parent later obtained a financial windfall. The obligor parent would once again have the means to provide child support. The support duty would apply even if the custodial parent had not yet obtained a new child-support order. Hoelscher at 501-502.
{¶ 63} When the juvenile court terminated the father’s court-ordered child-support obligation and arrears in this case, it did not order “zero” support or order the father not to support his child. It would defy logic to think that any court order or statute would mandate that a parent not support his child. The juvenile court’s August 19, 2010 order states that “Defendant’s current support obligation is terminated at the request of Plaintiff. At Plaintiff’s request, the outstanding support arrearage is reduced to $0.00. CSEA is hereby directed to adjust its records accordingly.” Nothing in the juvenile court’s order could possibly be construed as ordering the father to not support his child. By terminating the existing child-support obligation, the court did nothing more than relieve the father of his judicially ordered obligation to pay child support such that neither the mother nor the child-support enforcement agency could hold him accountable for not complying with that support order.
{¶ 64} Additionally, the fact that the order terminating the father’s child-support obligation is subject to modification is irrelevant in this case. Any notion that it would be incumbent on the custodial parent (the mother in this case) to institute subsequent proceedings against the father to reimpose a duty to support his child is equally troubling. The Father’s сommon-law duty to provide for the child’s necessaries—food, shelter, clothing, and medical services—remained. See State ex rel. Wright v. Indus. Comm., 141 Ohio St. 187, 189-190, 47 N.E.2d 209 (1943) (dependency is based on the child’s right to support, and parents are charged by statutory and common law with the duty of supporting their child; the obligation of a parent to support his minor children is not excused when no order was made for support of the children).
{¶ 65} The father had a duty of support notwithstanding the termination of his existing court-ordered support obligation. There is no dispute that the father had failed to pay child support for the year prior to the adoption petition’s filing, so the only remaining question for purposes of the
{¶ 66} I would also overrule previous decisions of this court that place the burden on the adoption petitioner to prove by clear and convincing evidence that a parent has failed, without justifiable cause, to support his child. See In re Adoption of Masa, 23 Ohio St.3d 163, 492 N.E.2d 140 (1986), paragraph one of the syllabus; In re Adoption of Bovett, 33 Ohio St.3d 102, 515 N.E.2d 919 (1987), paragraph one of the syllabus; In re Adoption of M.B., 131 Ohio St.3d 186, 2012-Ohio-236, 963 N.E.2d 142, ¶ 22. The statute places no such burden on the petitioner.
{¶ 67}
{¶ 68} To be sure, any claimant or petitioner who moves a court for any kind of judicial action risks the probability that he will not be granted the relief he seeks absent evidence in support of what he claims or alleges. But this statute places no burden of proof on the petitioner, and the General Assembly clearly knows how to do so. See, e.g.,
{¶ 69} In this case, the probate court had before it evidence that the father had failed to support his child for the relevant one-year period, that he had been relieved of his court-ordered child-support obligation, that he was incarcerated, and that he had had access to nominal funds in his prison commissary account. The probate court understands its obligation to strictly construe any exception to the requirement of parental consent to adoption in favor of protecting the parental rights of natural parents. See In re Adoption of G.V., 126 Ohio St.3d 249, 2010-Ohio-3349, 933 N.E.2d 245, ¶ 6. But it is the probate court that is tasked with weighing all relevant evidence and making a determination based on evidence that is clear and convincing.
{¶ 70} The majority opinion reaches beyond the question presented in this case to make a decision that should be made by the probate court. A juvenile court’s order
{¶ 71} I therefore would reverse the court of appeals’ judgment and remand this case for the probate court to consider all relevant evidence presented to determine whether the father had justifiable cause for failing to provide maintenance and support for his child.
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Lindhorst & Dreidame Co., L.P.A., and Bradley D. McPeek, for appellant.
Susan Mineer, for appellee.
Mary Catherine Barrett, urging affirmance for amicus curiae, A.G.
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