Update: The merit decision in this case was handed down January 25, 2012. Read the analysis of the decision here.
On November 2 the Supreme Court of Ohio heard oral argument in In In the Matter of Adoption of M.B.,a case involving the question of whether token monetary gifts given directly to a child count as maintenance or support, and thus preserves a parent’s right to consent to an adoption.
M.B. is a minor child whose parents divorced years ago. Her mother remarried T.R. (stepfather) who sought to legally adopt M.B. However, M.B.’s biological father, S.B. (father) contested the petition and sought to deny the adoption.
O.R.C. 3107.06 requires that both parents consent before any adoption decree is authorized, but O.R.C. 3107.07 provides an exception to consent when the parent, without justifiable cause, has failed to provide for the “maintenance and support” of the child as required by law or judicial decree for at least one year preceding the adoption period. Maintenance and support are not defined in the statute, and appellate courts have disagreed about the definition of these terms. The Court accepted this case on conflict certification
In this case, in the one-year period preceding the filing of the adoption petition, father made no child support payments to M.B.’s mother. Father was $18,000 in arrears in his support payments. But in that year he gave his daughter a $125 clothing store gift card, and $60 cash for her birthday. Was this enough to require his consent to the stepfather’s adoption? The magistrate and probate court held it was not. The Ninth District Court of Appeals reversed in a split decision.
Read the oral argument preview of this case here.
The stepfather’s lawyer argued that giving a child two gifts in a year was not providing maintenance and support, and that the father’s consent to the adoption was not required. He also argued there was no evidence in the record that the two gifts were in fact used for necessaries.
The father’s lawyer argued that the two cash gifts, while admittedly tokens, were evidence that the father was making some effort, and that is enough. His consent to the adoption should be required. He cited several appellate court decisions in addition to the one in this case supporting this view. He also argued for a de novo standard of review (the second issue in the case) because the crux of this appeal is the definition of the terms “maintenance and support.”
What’s On Their Minds?
The Justices seemed reluctant to let a father who was so far in arrears on his court ordered support use token gifts to get around the adoption consent requirement.
How Should We Define Maintenance and Support? That’s the Crux of the Matter, Isn’t It?
Justice Stratton noted she could not find any real analysis of “mainenance and support” by the court of appeals.
Justice Cupp emphasized the “as required by law or judicial decree” language in the statute, noting that gift certificates and birthday cash are not support required by law or judicial decree, and shouldn’t that language mean something?
Justice O’Donnell bluntly asked the father’s lawyer—so if we determine a gift is not maintenance and support, you lose? (answer: yes) He asked whether this is a widely-confused issue among those who practice in this field.
We Absolutely Don’t Want to Encourage or Tolerate Gamesmanship Here
Justice O’Donnell, who was clearly hostile to the father’s position, asked why the Court should write a rule that a token gift unrelated to any court ordered support obligation should be allowed to defeat the statutory adoption waiver language? Why would the Court want to write such a rule of law? If that were the law, why would anyone bother to make child support payments, and instead, just make gifts.
The father’s lawyer gamely held his ground here, arguing that in that circumstance contempt and criminal nonsupport proceedings were options.
Justice O’Donnell asked the stepfather’s lawyer if he thought the court should write any rule beyond “a gift to a child does not constitute maintenance and support”.
Justice McGee Brown commented that although not defined in the statute, “maintenance and support” are terms of art in the domestic relations field (she once sat on that court). She, too, was worried about gamesmanship—a parent could frustrate the statutory intent by making no support payments, but when a caring and responsible step-parent came along, give a token gift to frustrate the adoption. Why should the non-supporting parent have such power and control? Wasn’t the child entitled to be supported? Would a $10 payment in a year be enough to require consent?
The Abandonment issue
Justice Lanzinger asked if failure to support was the equivalent of abandonment? Weren’t the gifts evidence of the father’s intent not to abandon the child?
But Justice Cupp noted that the section at issue here, 3107.07 doesn’t discuss abandonment.
Did the Father Have the Ability to Pay?
Under 3107.07, consent to adoption is unnecessary when a parent fails to provide maintenance and support “without justifiable cause”. Several of the justices, particularly Chief Justice O’Connor, were concerned about this issue. She observed that the father had paid child support for a considerable period of time. Why had he stopped making payments? Was he unable able to pay? Was there detailed testimony as to the father’s financial circumstances? Had he ever sought to modify his support obligation? Had any action been taken against him for collection? (none had been).
Justice Stratton noted that the trial court had looked at all the father’s s assets and liabilities and made the factual determination that he did have the ability to pay.
Justice McGee Brown noted the trial court was in the best position to make this call and found no justification—should the father have tried to argue justification due to a job loss?
Despite the considerable interest on this, the father’s lawyer conceded that his client was not asserting justification on appeal, but strictly arguing the about the meaning of maintenance and support.
How it Looks from the Bleachers
Justices O’Donnell and McGee Brown seemed the most hostile to letting a parent with a substantial child support arrearage who has not proven an inability to pay make a couple of token gifts and be allowed to use that as a club to thwart an adoption. I think Justice O’Donnell said it all when he asked why the Court would want that to be the law.
Justice Cupp was also concerned with the statutory language–since token gifts were not required by law or judicial decree, how could they be considered maintenance and support as those terms are used in the statute.
I think a majority is unlikely to find token gifts to a child count as maintenance and support, and will probably find that in this case, the father’s consent to the adoption is not required. Still, as the father argued forcefully in his brief, a parent does have a constitutionally protected liberty interest in raising his child.
On the standard of review issue, the definition of maintenance and support is clearly a de novo matter, but once those terms are fixed, the probate court’s determination on whether a parent has provided maintenance and support during the required period would be reviewed with a manifiest weight of the evidence standard.