In re A.C.B.
| Decision Date | 26 February 2020 |
| Docket Number | No. 2018-1300,2018-1300 |
| Citation | 2020 Ohio 629,159 Ohio St.3d 256,150 N.E.3d 82 |
| Parties | IN RE ADOPTION OF A.C.B. |
| Court | Ohio Supreme Court |
The University of Toledo College of Law Legal Clinic, Robert S. Salem, and April Johnson and Brianna Stephan, Certified Legal Interns, for appellant.
Semro Henry & Barga, Ltd., James L. Rogers, and Katrin E. McBroom, Toledo, for appellee.
DeWine, J. {¶ 1} A statute, R.C. 3107.07(A), provides that a parent's consent to the adoption of his child is not required when the parent has failed, without justifiable cause, to provide for the maintenance and support of the child as required by law or judicial decree for a period of one year prior to the filing of the adoption petition. The question before us concerns the import of the phrase "as required by law or judicial decree." The appellant is a biological parent who had been ordered by a court to pay child support of $85 per week for a total of $4,420 a year. He did not comply with the court order; rather, the only payment he made in the year before the filing of the adoption petition was a single payment of $200. Both the probate court and the court of appeals found that this single payment—constituting less than 5 percent of his annual obligation—did not amount to the provision of support as required by law or judicial decree. We agree, and thus affirm the decision below.
Adoption of A.C.B.
{¶ 2} This case involves the adoption of a child. For ease of reference, and in keeping with this court's practice of protecting the identity of juveniles, we will refer to the child by his initials, A.C.B.; we will refer to the party seeking to adopt the child as stepfather; and we will refer to A.C.B.'s birth parents as mother and father.
{¶ 3} A.C.B.'s parents dissolved their marriage in Indiana in 2013. The decree of dissolution, which incorporated a settlement agreement between the parents, awarded sole custody of A.C.B. to mother and ordered father to pay $85 per week in child support. Soon thereafter, father returned to Kosovo. After leaving the United States, he made only sporadic child-support payments, which diminished over time.
{¶ 4} Mother later moved to Ohio and married stepfather. In 2015, she asked father if he would consent to stepfather adopting A.C.B. Father refused. In 2017, stepfather petitioned the probate court to adopt A.C.B. He alleged that under R.C. 3107.07(A), father's consent was not required because father had, without justifiable cause, failed to provide maintenance and support as required by law or judicial decree for the year preceding the filing of the adoption petition.
{¶ 5} The probate court held a hearing on whether father's consent to the adoption was required. The parties stipulated that in the year preceding the adoption petition, father had made a single child-support payment of $200—a payment that was made two days before the filing of the petition. At the time of the hearing, father owed over $17,000 in child support. Father testified that his income had increased substantially since the child-support order had been entered, and that in the year prior to the filing of the adoption petition, he made close to $58,000. He admitted that he could "have afforded without any problem" to pay more in support than he did, but he chose not to make the payments. He told the court that he "may have been worried [about] where the money [from his child-support payments] was going." Father apologized and described his payment record as "inexcusable" for the year in question and said that he might have let his emotions get the better of him.
{¶ 6} The probate court found that during the year preceding stepfather's adoption petition, father had failed to provide for the maintenance and support of A.C.B. as required by the judicial decree and that his failure to do so was not justifiable. The Sixth District Court of Appeals affirmed the probate court's judgment. 2018-Ohio-3081, 106 N.E.3d 1277. We accepted father's discretionary appeal. 154 Ohio St.3d 1422, 2018-Ohio-4496, 111 N.E.3d 20. In his lone proposition of law, he asserts that under R.C. 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." (Emphasis added.)
The plain language of R.C. 3107.07(A)
(Emphasis added.) In construing the support clause of this provision, we have held that the party seeking to adopt the child must 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. In re Adoption of Bovett , 33 Ohio St.3d 102, 515 N.E.2d 919 (1987), paragraph one of the syllabus, following In re Adoption of Masa , 23 Ohio St.3d 163, 492 N.E.2d 140 (1986), paragraph one of the syllabus. Father does not challenge the probate court's finding that he lacked justifiable cause for failing to make the required payments. And he did not assign an error concerning justifiable cause below. 2018-Ohio-3081, 106 N.E.3d 1277, at ¶ 21, fn. 1. Thus, the only issue before us is whether his lone $200 payment over the relevant one-year period constitutes maintenance and support "as required by law or judicial decree."
{¶ 8} The starting point—and because the language is clear, the ending point—for our analysis is the text of the statute. The plain text of R.C. 3107.07(A) instructs a trial court to determine whether a natural parent provided maintenance and support "as required by law or judicial decree" for a period of at least one year immediately preceding the filing of the adoption petition. Here, the judicial decree sets forth precisely what father was required to pay: $85 per week, for a total of $4,420 over the course of a year. Father did not pay what the judicial decree required. He paid only $200 for the entire year before stepfather filed the adoption petition. Thus, under the plain language of the statute, father did not "provide for the maintenance and support" of A.C.B. "as required by law or judicial decree" for the requisite one-year period.
{¶ 9} Despite the unambiguous terms of the statute, father asks us to hold that the payment of any support at all when a child-support order is in place constitutes the payment of support as required by law or judicial decree. Under this view (shared by the second dissent), a parent's consent is required unless there is a complete absence of support in the year prior to the filing of the adoption petition. Thus, a single $5 payment over the course of the year would suffice to protect the parent's right to consent. To reach this result, father looks to another portion of the statute—the clause that provides that a parent's consent is not required when the court finds that the parent, without justifiable cause, has failed to have more than de minimis contact with the child. R.C. 3107.07(A). He argues that because the legislature inserted a "more than de minimis" qualifier in the contact clause, and did not insert any qualifying language such as "de minimis, meager, or substantial" in the support clause, the legislature intended for any payment of support, no matter how meager, to suffice in preserving a parent's right to withhold consent to the adoption of a child.
{¶ 10} The problem with this argument is that it ignores the plain language of the statute. Father is correct that the legislature did not choose to qualify the amount of maintenance and support to be provided with any of his suggested terms, but the legislature did include qualifying language: "as required by law or judicial decree." R.C. 3107.07(A). Whether father has provided the necessary support under the statute is measured by the terms of the judicial decree.
{¶ 11} The first dissent presents a slightly different argument than father. Though purporting to apply the plain language of the statute, it would essentially read the phrase "as required by law or judicial decree" out of the statute. This dissent zeroes in on the phrase "for a period of at least one year immediately preceding * * * the filing of an adoption petition" and concludes that if there has been one child-support payment made during the year, then parental consent is required. In other words, if someone is ordered to pay child support weekly, that person need only make 1 of the 52 required payments for the year. But, of course, that's not what the statute says. It says consent is not required if the parent has failed "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). Certainly, a parent who makes only one payment during the year—and thus is substantially in arrears on that year's child support—has failed to provide support as required by law or judicial decree for a period of at least one year preceding the filing of the adoption petition.
{¶ 12} To prop up its reading, the first dissent plucks a few phrases from prior opinions and asserts that we have already decided the issue in front of us; indeed, that stare decisis compels its preferred reading of the statute. Dissenting opinion of Kennedy, J., at ¶ 34. That's simply not true. In none of the cases cited did we address the issue presented here. In In re Adoption of M.B. and In re Adoption of...
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