What happens when a step-parent wants to adopt his (in this case) wife’s child? Does the father have to consent to this, or are there circumstances under which parental consent to an adoption is not required? The Supreme Court of Ohio tackled this issue in a split decision, decided in June. The case is In Re Adoption of B.I.
At common law, all parents have a duty to support their children. Ohio has a statute saying the same thing. Ohio also has a statute, R.C. 3107.07(A), which says that consent to an adoption is not required when a parent fails without justifiable cause to provide maintenance and support for the minor child for at least one year, as required by law or judicial decree. All of this came into play in this adoption case.
B.I.’s parents (the Supreme Court of Ohio uses initials, rather than names, in matters involving minors) never married. B.I.’s father went to prison in 2009. In 2010, at B.I.’s mother’s request, the Clermont County Juvenile Court terminated the father’s child support order and reduced any arrearage to zero, where it remained at the times pertinent to this lawsuit.
B.I.’s stepfather filed a petition in the Hamilton County Probate Court to adopt B.I., alleging that the father’s consent to the adoption was not required because he had failed to provide maintenance and support for B.I. for the year preceding the filing of the adoption petition. During that one year period, the father received $18 per month prison income. In addition, his parents and a friend deposited $5,152 into his prison account, almost of all which the father spent in the prison commissary, and none of which went as financial support to B.I. The probate judge held that a valid zero-child-support order provides justifiable cause for failure to prove maintenance and support pursuant to R.C. 3107.07(A), and therefore the father’s consent to the adoption was still required.
The issue that went to the Supreme Court of Ohio was whether that zero-child-support order relieved the father of his obligation to provide maintenance and support of B.I. during the one year period before the adoption petition was filed, thus still requiring father’s consent to the adoption. By a vote of 4-3, in an opinion written by Justice Sharon Kennedy, the Supreme Court held that it did.
While all parents have a common law duty to support their children, a court-decreed child support order supersedes and replaces that common law duty, Kennedy explained. These are not side-by-side obligations. In this case, the father’s child support obligation was set, at the mother’s request, at zero by the Clermont County Juvenile Court. That was by judicial decree. Therefore, the father had no other duty to continue to provide maintenance and support to B.I. He had the right to rely on that court order. Justices Judy French, Pat DeWine and Michael Donnelly joined this decision.
Cincinnati Justice Pat Fischer wrote one of the dissents in the case. He thinks that regardless of the statutory requirements, parents still have a duty to support their children, and the two obligations do exist side by side. In deciding whether parental consent to an adoption is required, a court must determine the level of support required by law other than by judicial decree, then determine whether the non-consenting parent has failed to meet either or both of the legally required levels of support during the pertinent one-year period. Lastly if the parent has failed to meet either or both obligations, the court must then weigh several factors, including, but not limited to what was ordered in the judicial decree, and determine whether there was justifiable cause for that parent’s failure.
Justice Melody Stewart also wrote a dissent in the case. She agrees that a parent has both a common law and a statutory duty of support, and she agrees with the majority that any court order of support supersedes the common law duty of support. But then, in a significant departure from the majority view, Justice Stewart would hold that when a judicial decree relieves a parent of the court-ordered duty of support, the duty of support still exists. “To hold otherwise would effectively eliminate any duty that a parent has to support his or her child,” wrote Stewart. “It would defy logic to think that any court order or statute would mandate that a parent not support his child.”
To Stewart, when the juvenile court terminated the child-support order and arrearage in this case, it did not order zero support or order the father not to support his child. The court did nothing more than relieve the father of his judicially-ordered support obligation so that he could not be pursued for non-support. But his common law duty to provide for the child’s necessaries remained, notwithstanding the termination of his court-ordered obligation. Since there is no dispute that the father failed to pay child support for the year before the adoption petition was filed, the only question remaining was whether that failure was justifiable. That must be determined by considering all relevant factors. To Stewart, the probate judge erred by accepting the juvenile court’s termination of existing support as conclusive evidence of justifiable cause. The probate court must consider and weigh all relevant evidence.
Chief Justice O’Connor also wrote a very short dissent, joining Justice Stewart’s dissent for the most part.
What do I think? I think Justice Stewart got it right.