In re M.B.
| Citation | 2012 -Ohio- 236,131 Ohio St.3d 186,963 N.E.2d 142 |
| Decision Date | 25 January 2012 |
| Docket Number | No. 2011–0831.,2011–0831. |
| Parties | In re ADOPTION OF M.B. |
| Court | Ohio Supreme Court |
OPINION TEXT STARTS HERE
[Ohio St.3d 186] Syllabus of the Court
1. De minimis monetary gifts from a biological parent to a minor child do not constitute maintenance and support, because they are not payments as required by law or judicial decree as R.C. 3107.07(A) requires.
2. A probate court determination of whether a financial contribution constitutes maintenance and support for purposes of R.C. 3107.07(A) is reviewed for an abuse of discretion; but whether justifiable cause for the failure to pay child support has been proved by clear and convincing evidence is a separate [Ohio St.3d 187] question for the probate court and will not be disturbed on appeal unless it is against the manifest weight of the evidence.
Carmen V. Roberto, Akron, for appellant.
Scot Stevenson, Akron, for appellee.
{¶ 1} The Ninth District Court of Appeals certified two questions, which we agreed to review: one, its decision that monetary gifts from a biological parent to a minor child constitute maintenance and support for purposes of R.C. 3107.07(A) and thus trigger the requirement that parental consent is needed before the adoption of the child is approved—which it found conflicts with In re Adoption of McCarthy, 6th Dist. No. L–91–199, 1992 WL 23175 (Jan. 17, 1992); and two, its decision that an appellate court should apply a de novo standard of review to a probate court's decision regarding whether a biological parent's financial gift constitutes maintenance and support of the child—which it found conflicts with In re Adoption of Kat P., 5th Dist. Nos. 09CA10 and 09CA11, 2009-Ohio-3852, 2009 WL 2372108.
{¶ 2} When a biological parent has failed to make any of the court-ordered monthly child-support payments in the year preceding the filing of an adoption petition, two de minimis gifts given to a minor child for Christmas and the child's birthday do not constitute maintenance and support for the purposes of R.C. 3107.07(A). Accordingly, we answer the first certified question in the negative.
{¶ 3} Further, we recognize that the petitioner in an adoption proceeding bears the burden to prove by clear and convincing evidence the biological parent's failure to provide maintenance and support for a period of one year preceding the filing of the adoption petition and to show that the parent's failure was without justifiable cause. A probate court determination of whether a financial contribution constitutes maintenance and support for purposes of R.C. 3107.07(A) is reviewed for an abuse of discretion; but whether justifiable cause for the failure to pay child support has been proved by clear and convincing evidence is a separate question for the probate court and will not be disturbed on appeal unless it is against the manifest weight of the evidence. Thus, we clarify the dual standard of review for this question.
{¶ 4} M.B. is the biological daughter of Ann R. and Stephen B., appellee. They dissolved their marriage in 2000 in Florida, and the court granted custody of M.B. to Ann and ordered Stephen to pay $1,000 per month through the Florida Disbursement Unit as support for M.B. He made these payments until February 2007. However, in December 2007, he sent M.B. a $125 gift card for Christmas and in April 2008, $60 in cash for her birthday.
[Ohio St.3d 188] {¶ 5} Ann remarried in 2001, and on September 12, 2008, her husband, Thomas, appellant in this case, filed a petition in the Summit County Probate Court to adopt M.B. The petition alleged that Stephen had failed without justifiable cause to provide for the maintenance and support of M.B. during the year preceding the filing of the adoption petition and therefore his consent to the adoption was not required by statute. Stephen objected to the adoption, denied that he had failed to provide maintenance and support for M.B. in the year preceding the filing, argued that he had given her both a Christmas gift and a birthday gift, and claimed that he had had justifiable cause for failing to pay his court-ordered child-support payments.
{¶ 6} A probate court magistrate determined that the gifts did not constitute maintenance and support for purposes of R.C. 3107.07(A), that Stephen had failed without justifiable cause to provide maintenance and support for the year preceding the filing of the adoption petition, and that his consent was not needed for the adoption to proceed. The probate court adopted the recommendation of the magistrate.
{¶ 7} Stephen appealed, arguing that the gifts he had given to M.B. constituted maintenance and support. Applying a de novo standard of review, the appellate court reversed the decision of the probate court, held that gifts did constitute support, and concluded that the adoption of M.B. could not proceed without Stephen's consent. The court further stated:
Despite the lack of child support payments, Father's monetary gifts to M.B. evidenced his intent not to abandon his child. * * * Although not child support pursuant to a judicial decree, those monies served to provide additional financial support for the benefit of the child. Accordingly, there was clear and convincing evidence that Father provided for the maintenance and support of M.B. during the adoption period by virtue of his two monetary gifts to the child. Although Father's total financial contribution to the child's welfare was small, the timing of the contributions was thoughtful and clearly evidenced his intent not to abandon the child.
9th Dist. No. 25304, 2011-Ohio-1215, 2011 WL 899638, ¶ 17.
{¶ 8} The appellate court certified that its ruling conflicted with a decision of the Sixth District Court of Appeals on the question whether a gift constitutes maintenance and support and with a decision of the Fifth District Court of Appeals on the applicable standard of review.
{¶ 9} The Sixth District held in the case In re Adoption of McCarthy, 6th Dist. No. L–91–199, 1992 WL 23175, that gifts of $10 and $4 given from a biological [Ohio St.3d 189] parent directly to a minor child on two separate occasions did not constitute maintenance and support.
{¶ 10} And in the case of In re Adoption of Kat P., 5th Dist. Nos. 09CA10 and 09CA11, 2009-Ohio-3852, 2009 WL 2372108, the Fifth District stated that an “[a]n appellate court will not disturb a trial court's decision on adoption unless it is against the manifest weight of the evidence.” Id. at ¶ 12.
{¶ 11} We accepted the following certified-conflict questions: (1) “When a biological parent fails to provide any court ordered child support for one year, do small monetary gifts paid directly to the child constitute the provision of ‘maintenance and support of the minor as required by law or judicial decree’ for purposes of R.C. 3107.07(A)?” and (2) “When reviewing a probate court's decision regarding whether or not a biological parent's financial contribution constitutes ‘maintenance and support of the minor as required by law or judicial decree’ for purposes of R.C. 3107.07(A), is the standard of review de novo or whether the decision is contrary to the manifest weight of the evidence?” 128 Ohio St.3d 1555, 2011-Ohio-2905, 949 N.E.2d 42.
{¶ 12} Thomas urges that small monetary gifts paid by a parent directly to a child do not constitute maintenance and support pursuant to R.C. 3107.07(A) and further asserts that a probate court's determination whether a biological parent's financial contribution constitutes maintenance and support can be reversed only if it is contrary to the manifest weight of the evidence.
{¶ 13} Stephen argues that any financial contribution to a child constitutes maintenance and support for purposes of R.C. 3107.07(A) and only the complete failure to provide maintenance and support obviates the need for a biological parent's consent to adoption. He further contends that the proper standard of review when interpreting statutory language is de novo.
{¶ 14} Accordingly, we are called upon to decide whether de minimis monetary gifts from a biological parent to a minor child constitute maintenance and support, thus requiring parental consent pursuant to R.C. 3107.07(A), and we are further asked to clarify the standard of appellate review for these questions.
{¶ 15} R.C. 3107.07(A) provides that consent to adoption is not required of [a] parent of a minor * * * [who] 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 [Ohio St.3d 190] preceding either the filing of the adoption petition or the placement of the minor in the home of the petitioner.1
{¶ 16} We are primarily concerned with determining whether the gifts Stephen gave to M.B. are to be considered maintenance and support and whether, based on those gifts, his consent to her adoption is required by R.C. 3107.07(A).
{¶ 17} We have previously held that “[p]ursuant to R.C. 3107.07(A), the petitioner for adoption has the burden of proving, 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).
{¶ 18} To determine whether a biological parent has failed to provide for the maintenance and support of a child, we must first determine the meaning of “maintenance” and “support” as those terms are used in R.C. 3107.07(A).
{¶ 19} In State ex rel. Steele v. Morrissey, 103 Ohio St.3d 355, 2004-Ohio-4960, 815 N.E.2d 1107, ¶ 21, this court stated that when determining how to construe a statute, “our paramount concern is the legislative intent in enacting ...
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