Natural Parent’s Small Monetary Gifts to Child Are Not ‘Provision of Support and Maintenance’ Under Adoption Law
Today in, In re Adoption of M.B., Slip Opinion No. 2012-Ohio-236, the Supreme Court of Ohio ruled 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.
At issue in the case was an interpretation of R.C. 3107.07. 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.”
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.”
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