Merit Decision on Small Monetary Gifts to a Child as Maintenance and Support and Ramifications for Consent to an Adoption. In Re Adoption of M.B.

On January 25, the Supreme Court of Ohio handed down a unanimous decision, authored by Justice O’Donnell, in the case In re Adoption of M.B, 2012-Ohio-236.

The first part of the decision answers the question “do small monetary gifts paid directly to a child by an otherwise non-complying parent constitute maintenance and support so that an adoption cannot go forward without that parent’s consent?”  The answer is NO.  The Court also clarified the standard of review of a probate court decision in a contested case of failure to pay maintenance and support.

M.B. is a minor child whose parents divorced years ago.  Her mother Ann remarried T.R. who sought to legally adopt M.B.  However, M.B.’s biological father Stephen contested the petition and tried to prevent the adoption.

O.R.C. 3107.06 requires that both parents consent before any adoption decree is authorized, but O.R.C. 3107.07 (A)  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.

In the year before the adoption petition, Stephen made no child support payments to his ex-wife Ann. But in that year he gave his daughter a $125 clothing store gift card, and $60 cash for her birthday. He argues that those small cash gifts did constitute maintenance and support so that his consent to the adoption should be required.

The terms “maintenance and support “are not defined in R.C. 3107.07(A). So, the Court supplied a definition, in accordance with standard statutory construction principles. While the Court looked at the Black’s Law Dictionary definitions of both terms, ultimately, the Court’s holding on this point was based on the language in 3107.07 (A) linking maintenance and support to “that which is specifically “required by law or judicial decree.”’  Small monetary cash gifts from a biological father directly to the child are not payments required by law or judicial decree.  Accordingly, they are neither maintenance nor support. At the oral argument of this case, it was Justice Cupp who honed in on this point.

The second part of the decision dealt with the standard of review in this kind of case. The Court has previously held (under a different version of the statute) that the question of whether there has been a wilful failure to provide maintenance and support is a question of fact, reviewable for abuse of discretion, The Court has also previously held that the petitioner for adoption has the burden of proof by clear and convincing evidence that the natural parent has failed to provide support without justifiable cause for one year. (Stephen did not contest the probate court’s finding on this point). So there is a two-part standard of review here.  The determination of whether a particular financial contribution constitutes maintenance and support as required by 3107.07(A) is reviewed under an abuse of discretion standard.  The probate court’s determination on whether justifiable cause for the failure to pay support has been proven by clear and convincing evidence will not be reversed on appeal unless that finding is against the manifest weight of the evidence.

Applying this analysis to the facts of this case, the Court held that Stephen had failed to provide maintenance and support without justifiable cause for the year preceding the filing of the adoption petition, and thus his consent to the adoption of MB was not required.

Case syllabus:

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 question for the probate court and will not be disturbed on appeal unless it is against the manifest weight of the evidence.

Concluding Observataions

I predicated a majority was unlikely to find token gifts to a child count as maintenance and support, and would probably find that in this case, the father’s consent to the adoption was not required. Turns out all the justices felt that way.  I’d pegged Justice O’Donnell, who authored the opinion, as one of the justices who felt most strongly about this, which is consistent with positions he has taken about parental obligations.  See, for example, the decision he wrote in In Re Brayden James, 2007-Ohio-2335, 113 Ohio St.3d 420.

The Court completely stayed away from the issue of a parent’s constitutionally protected liberty interest in raising his child.   There was clearly no need to decide any constitutional question here, despite the father’s strong arguments on that point.

I did see a dual standard of review in the case, and was right that the court supplied the definitions of maintainece and support de novo, but missed the discretionary part of the review.

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