In re A.C.B.

• Decision Date: 03 August 2018
• Docket Number: No. L-18-1043,L-18-1043
• Parties: IN RE ADOPTION OF A.C.B.
• Court: Ohio Court of Appeals

106 N.E.3d 1277

2018 Ohio 3081

IN RE ADOPTION OF A.C.B.

No. L-18-1043

Court of Appeals of Ohio, Sixth District, Lucas County.

Decided: August 3, 2018

Robert S. Salem, for appellant.

James L. Rogers and Katrin E. McBroom, for appellee.

DECISION AND JUDGMENT

PIETRYKOWSKI, J.

{¶ 1} This is an appeal from the judgment of the Lucas County Court of Common Pleas, Probate Division, finding under R.C. 3107.07 that appellant-father's, B.D., consent is not required in appellee's, J.B., adoption of the minor child, A.C.B. For the reasons that follow, we affirm.

I. Facts and Procedural Background

{¶ 2} The underlying facts in this appeal are not in dispute. In June 2010, appellant married A.C. One year later, on June 21, 2011, A.C. gave birth to their child, A.C.B. Appellant and A.C. separated in 2012, and the divorce was finalized in April 2013. As part of the settlement agreement in the divorce proceedings, full custody of A.C.B. was awarded to A.C., and appellant agreed to pay $85 per week as support for the child.

{¶ 3} Thereafter, in July 2013, appellant, who has permanent residency status in the United States, returned to Kosovo. Appellant has not since been back to the United States, but through an informal agreement with A.C. he has communicated with A.C.B. through Skype.

{¶ 4} In April 2015, A.C. married appellee, and on July 20, 2017, appellee petitioned to adopt A.C.B. In the petition, appellee alleged that appellant's consent was not required pursuant to R.C. 3107.07(A), which provides,

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 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.

{¶ 5} Relevant here, two days before the petition was filed, appellant made one child support payment of $200. Prior to that, the last child support payment made by appellant was on June 27, 2016, in the amount of $100.

{¶ 6} On February 7, 2018, the trial court held a hearing on whether appellant's consent was required for the adoption, at which appellant and A.C. testified. Following the hearing, on February 8, 2018, the trial court entered its order finding that appellant has failed to provide for the maintenance and support of the child as required by judicial decree, and that his failure was not justifiable. Therefore, the trial court ordered that appellant's consent was not required for the adoption.

II. Assignments of Error

{¶ 7} Appellant has timely appealed the February 8, 2018 judgment of the trial court, and now raises two assignments of error for our review:

1. The Court abused its discretion by not recognizing controlling precedent in construing the meaning of maintenance and support for purposes of R.C. 3107.07(A).

2. For the above reason, the trial court erred in finding that Petitioner proved, by clear and convincing evidence, that the father of the child, [appellant], failed to support his child for one year prior to the filing of [the] petition for adoption.

III. Analysis

{¶ 8} Appellant's assignments of error are interrelated, and present the issue of whether a single payment of child support made within the relevant one-year period prior to the filing of the adoption petition constitutes maintenance and support sufficient to preserve his right to object to the adoption under R.C. 3107.07(A). As a backdrop for our analysis of this issue, we note that "we are properly obligated to strictly construe [the language of R.C. 3107.07(A) ] to protect the interests of the non-consenting parent who may be subjected to the forfeiture or abandonment of his or her parental rights." In re Adoption of Holcomb , 18 Ohio St.3d 361, 366, 481 N.E.2d 613 (1985).

{¶ 9} In support of his position that the trial court abused its discretion when it found that appellant failed to provide maintenance and support, appellant cites Celestino v. Schneider , 84 Ohio App.3d 192, 616 N.E.2d 581 (6th Dist.1992). In that case, the trial court found that the father had failed to provide for the maintenanceand support of the child where the father had made only one partial child support payment of $36 in the year preceding the adoption petition. On appeal, we reversed. We reasoned that "[a] court's finding that a parent failed to provide for support and maintenance for the one-year period prior to the filing of the adoption petition is tantamount to a determination that the parent abandoned the child and thus forfeited parental rights. The inquiry is not whether the parent may be held in contempt, but whether the parent's failure to support as ordered is of such magnitude as to be the equivalent of abandonment." Id. at 196, 616 N.E.2d 581. Thus, we held that "any contribution toward child support, no matter how meager, satisfies the maintenance and support requirements of R.C. 3107.07(A)," and therefore the trial court's determination was incorrect "as a matter of law." Id. at 196-197, 616 N.E.2d 581.

{¶ 10} This view was shared by several other Ohio appellate districts. See, e.g., In re Adoption of R.M. , 7th Dist. Mahoning No. 07 MA 232, 2009-Ohio-3252, 2009 WL 1914376, ¶ 81 (trial court abused its discretion where it found that father's child support payments totaling $185 did not constitute maintenance and support); In re Adoption of Allonas , 3d Dist. Crawford No. 3-01-27, 2002-Ohio-2723, 2002 WL 1299766, ¶ 14 (child support payment of $117.70 constitutes maintenance and support, and trial court's contrary finding was against the manifest weight of the evidence); In re Adoption of Myers , 4th Dist. Pickaway No. 94 CA 28, 1995 WL 592059, *4 (Sept. 28, 1995) (one child support payment of $45.70 is sufficient to require father's consent to adoption).

{¶ 11} However, other districts reached the opposite conclusion. See In re R.N.L.O. , 12th Dist. Warren No. CA2007-04-049, 2007-Ohio-4215, 2007 WL 2350987, ¶ 15 (three child support payments totaling $300 was negligible and thus insufficient to constitute maintenance and support); In re Adoption of Tyler K. Kilbane & Ashley Kilbane , 130 Ohio App.3d 203, 207-208, 719 N.E.2d 1012 (8th Dist.1998) (four child support payments of $220 made shortly before the petition for adoption was filed do not constitute maintenance and support under R.C. 3107.07(A) ); In re Adoption of Wagner , 117 Ohio App.3d 448, 454, 690 N.E.2d 959 (11th Dist.1997) (child support payments totaling $329.40 where the father could have earned and paid more money did not constitute maintenance and support); In re Adoption of Knight , 97 Ohio App.3d 670, 672, 647 N.E.2d 251 (10th Dist.1994) (single payment of $20 in child support was de minimis and did not constitute maintenance and support of the child); In re Adoption of Thomas , 5th Dist. Licking No. CA-3311, 1987 WL 33014, *1 (Dec. 22, 1987) (one child support payment of $35 or $50 is not sufficient to constitute maintenance and support).

{¶ 12} Notably, this split amongst the districts was anticipated by Justice Douglas in his concurrence in In re Adoption of Bovett , 33 Ohio St.3d 102, 107, 515 N.E.2d 919 (1987) :

[T]his case presents us with an opportunity to decide what the language of [ R.C. 3107.07(A) ] means concerning support and/or communication during the critical one-year period. I agree that this initial determination should be made by the probate judge and his or her judgment should not be tampered with absent an abuse of discretion. What specific guidance needs to be given, however, is whether the making of one payment of support during the year or the sending of a Christmas card is enough to frustrate the operation of the statute. Certainly the legislature could not have meant such a result. In fact, it is pertinent to note that the statute, R.C. 3107.07(A), contains other verbiage that has not been considered or discussed. That section requires "* * * 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 * * *." (Emphasis added.) Literally interpreted, this could mean that the missing of one or two payments of support, as required by the court order then in effect, would be enough to trigger the operation of R.C. 3107.07(A), thereby negating the need for consent to adoption. This would likewise not be fair or equitable even if such limited non-payment was "without justifiable cause." Thus, the determination must be left to the trial judge who can view the entire spectrum of events and the rights, duties and responsibilities of all the parties appearing in the case.

In short, I think we need to set forth that the probate court is not bound to negate the effect of the statute simply because a natural parent has made a payment or two during the year or has communicated once or twice during the year. Until this court meets and decides that issue, inconsistent judgments of trial courts and courts of appeals on the question will continue to prevail.

{¶ 13} Subsequently, in In re Adoption of M.B. , 131 Ohio St.3d 186, 2012-Ohio-236, 963 N.E.2d 142, ¶ 25, the Ohio Supreme Court endeavored to answer Justice Douglas's question of "whether a parent's making a single payment of support or sending a Christmas card is sufficient support to frustrate R.C. 3107.07(A), or on the other end of the spectrum, whether a parent's missing one or two payments of support in the year preceding the filing of an adoption petition negates the need for parental consent to adoption." In answering the question, the court held that "[a] trial court has discretion to make these determinations, and * * * an appellate court applies an abuse-of-discretion standard when...