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Natural Parent's Small Monetary Gifts to Child Are Not 'Provision of Support and Maintenance' Under Adoption Law

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2011-0831.  In re Adoption of M.B., Slip Opinion No. 2012-Ohio-236.
Summit App. No. 25304, 2011-Ohio-1215. Judgment of court of appeals reversed, and judgment of probate court reinstated.
O'Connor, C.J., and Pfeifer, Lundberg Stratton, O'Donnell, Lanzinger, Cupp, and McGee Brown, JJ., concur.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2012/2012-Ohio-236.pdf

Video clip View oral argument video of this case.

(Jan. 25, 2012) The Supreme Court of Ohio ruled today that when a biological parent of a child has failed, without justifiable cause, to make any court-ordered monthly child support payments for at least one year prior to the filing of another person’s petition to adopt that child, small monetary gifts made by the parent directly to the child during that year do not constitute payment of “support and maintenance as required by law or judicial decree,” and therefore, pursuant to state adoption laws, a probate court may approve the child’s adoption without the consent of the biological parent.

The Court’s 7-0 decision, authored by Justice Terrence O’Donnell, reversed a decision of the 9th District Court of Appeals and reinstated a judgment of the Summit County Probate Court.

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 least one year immediately preceding either the filing for the maintenance and support of the minor as required by law or judicial decree for a period of at of the adoption petition or the placement of the minor in the home of the petitioner.”

Today’s decision involved a minor child, identified by the initials M.B., who is the biological daughter of Ann R. and Stephen B.  When Ann and Stephen dissolved their marriage in 2000 in Florida, the court granted custody of M.B. to Ann and ordered Stephen to pay $1,000 per month in child support. Stephen made the required payments from 2000 through February 2007. From September 2007 through September 2008, Stephen’s only financial contributions to his daughter were a $125 gift card that he gave M.B. for Christmas in December 2007, and $60 in cash he gave her for her birthday in April 2008.

Ann remarried in 2001. In September 2008 her husband, Thomas R., filed a petition in the Summit County Probate Court seeking to adopt M.B. The petition alleged that Stephen B. 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 Stephen’s consent to the adoption was not required by statute. Stephen objected to the adoption and denied that he had failed to provide maintenance and support. He argued that the Christmas and birthday gifts he had given M.B. were sufficient to meet the statutory requirement, and also claimed that he had justifiable cause for failing to make his court-ordered child-support payments.

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 Thomas’ adoption petition, and therefore Stephen’s consent was not needed for the adoption to proceed. The probate court adopted the recommendation of the magistrate.

Stephen appealed. After conducting an independent “de novo” review of the evidence considered by the probate court, the  9th District Court of Appeals reversed, holding that Stephen’s gifts did constitute support of his daughter within the year prior to the filing of the adoption petition, and therefore the adoption could not go forward without Stephen’s consent. In rendering its decision, the 9th District certified to the Supreme Court that both its use of a de novo standard of review in the case and its holding that Stephen’s gifts constituted support of his daughter were in conflict with decisions of other court of appeals districts  in similar cases. 

The Supreme Court agreed to review the case in order to resolve the conflict among appellate districts.

Writing for a unanimous Court in today’s decision, Justice O’Donnell observed that in order to secure approval of his adoption petition without the consent of Stephen,  R.C. 3107.07 required Thomas to show that Stephen had failed to “provide maintenance and support as required by law or judicial decree.”  

He wrote: “In the instant matter, a Florida court ordered Stephen to pay $1000 per month as support for M.B., and he concedes that he failed to make any of those payments between September 12, 2007, and September 12, 2008, the year preceding the filing of the adoption petition.  He did not provide for the maintenance and support of the child as required by law or judicial decree. Nonetheless, he contends that by providing M.B. with a $125 gift card for Christmas and a $60 cash gift for her birthday, he provided maintenance and support during the requisite year. However, these gifts were neither legally nor judicially required, and they represent only a small portion of one monthly child-support obligation and an even smaller portion of the annual obligation. A gift is a voluntary transfer of property to another made gratuitously by a donor. ... The Christmas gift card and birthday cash are de minimis gifts, not maintenance and support triggering the requirement for Stephen’s consent to the adoption, and they were not made pursuant to court order as the statute requires.  Thus, Stephen failed to provide maintenance and support to M.B. as required by law or judicial decree for the year preceding the filing of the adoption petition.”

“A biological parent’s consent to adoption would be required if that parent could show by clear and convincing evidence some justifiable cause for the failure to provide support. ... In this case, however, the probate court concluded that no justifiable cause existed, and Stephen did not challenge that determination in the court of appeals and does not dispute it here. The record before us demonstrates by clear and convincing evidence that Stephen failed to provide maintenance and support without justifiable cause for the year preceding the filing of the adoption petition, and thus R.C. 3107.07(A) specifies that his consent to the adoption was not required.”

With regard to the proper standard of appellate review in this and similar cases, Justice O’Donnell wrote:  “In applying this statute, a probate court undertakes a two-step analysis.  First, to determine if a parent made a financial contribution that comports with the requirements of R.C. 3107.07(A) to contribute maintenance and support and second, if it finds a failure of support, then to determine whether justifiable cause for the failure has been proven by clear and convincing evidence.”

Quoting from the Supreme Court’s 1956 decision in In re Adoption of Bovett, Justice O’Donnell wrote: “A probate court has discretion to determine whether the biological parent provided support as contemplated by R.C. 3107.07(A) ‘and his or her judgment should not be tampered with absent an abuse of discretion.’ ... 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 proven 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 nature of the standard of review on this question.”

Contacts
Scot A. Stevenson, 330.762.0765, for S.B., biological father of M.B.

Carmen V. Roberto, 330.434.1000, for T.R., stepfather and petitioner to adopt M.B.