What’s On Their Minds: What Does It Mean to “Willfully Abandon” a Mother During Her Pregnancy? In the Matter of: The Adoption of P.L.H.

Update: On July 18, 2017, the Supreme Court of Ohio handed down a merit decision in this case.  Read the analysis here.

“Are you asking this court, therefore, to give the mother’s vote in this family matter more weight?”

Justice O’Neill, to Counsel for the Biological Mother

“Are you saying financial support should never be a consideration under the willful abandonment of the mother?”

Chief Justice O’Connor, to counsel for the Putative Father

On June 21, 2017, the Supreme Court of Ohio heard oral argument in the case of In the Matter of: The Adoption of P.L.H., 2017-0173. At issue in this case is whether the putative father willfully abandoned the mother of the child so that his consent to the adoption of the child is unnecessary.

Case Background

Biological Mother (“Mother”) became pregnant while visiting Putative Father (“Father”) at his home in Louisiana during the Mardi Gras in 2015. The two had gone to the same university and had become friends. This was the sole sexual encounter between the two. A few weeks after the visit, Mother informed Father of her pregnancy and of her intent to place the child, P.L.H., for adoption. Mother says that Father asked her to have an abortion; Father denies this. During the early part of the pregnancy, Father contacted Mother 16 times. After that, contact was sporadic or nonexistent. Father timely registered with the Putative Father Registry, offered (but never provided) financial support, and expressed his desire for custody. Father refused to sign papers consenting to the adoption. Mother went forward with the adoption anyway.

The Butler County Probate Court held a hearing on all issues on April 13, 2016. The court found that Father had willfully abandoned Mother during her pregnancy, and up to the time of the adoption, and therefore Father’s consent to the adoption was not required pursuant to R.C. 3107.07 (B)(2)(c). The court further found the adoption was in the best interest of P.L.H., and the Adoptive Parents were qualified to adopt P.L.H. The Final Decree of Adoption was issued on September 7, 2016. Father appealed.

In a split decision written by Judge Stephen Powell, and joined by Judge Ringland, the Twelfth District Court of Appeals affirmed. Judge Hendrickson dissented, finding the decision of the probate court to be against the manifest weight of the evidence. To him, the record did not establish by clear and convincing evidence that Father willfully abandoned Mother during her pregnancy, meaning he did not desert Mother, forsake her, or relinquish all connection with her during her pregnancy. He noted that “care and support” are not components of willful abandonment under R.C. 3107.07(B)(2)(c), as they are in section (B)(2)(b) of the same statute.

Read the oral argument preview of the case here.

Statute at Issue in This Case

R.C. 3107.07 (B)(2)(c)

Consent to an adoption is not required if the putative father has willfully abandoned the mother of the minor during her pregnancy.  At issue here is the meaning of “willfully abandoned.”

Also pertinent

R.C. 3107.07 (B)(2)((b) Consent to an adoption is not required if the putative father has willfully abandoned or failed to care for and support the minor.

At Oral Argument

Arguing Counsel

Michaela M. Stagnaro, The Farrish Law Firm, Cincinnati, for Appellant Putative Father

Michael R. Voorhees, Voohees & Levy, LLC, Cincinnati, for Appellees, the Adoptive Parents

Barbara Thornell Ginn, Ginn Law Office, LLC, Cincinnati, for Amicus Birth Mother in Support of Adoptive Parents

Father’s Argument

Father is asking this court to determine the meaning of “willfully abandoned a mother during her pregnancy,” as that term in used in R.C. 3107.07(B)(2)(c).

It is undisputed that appellant is the putative father. He did not have the ability to file for paternity before the adoption filing was made because had did not know that the child had been born, or that placement was made or filed within a day of the child’s birth, or that the adoption petition had been filed within 3 days of the child’s birth. He learned of the birth from a Facebook post, and immediately filed for custody and to establish paternity in the Butler County juvenile court.  But the probate court already had jurisdiction in this matter.  And that court incorrectly found Father’s consent to the adoption was not required, pursuant to R.C. 3107.07(B)(2)(c). That finding was against the manifest weight of the evidence.

It is Father’s position that the phrase “willfully abandoned,” as that phrase is used in subsection (c) of the statute, does not include the failure to provide care and support, as it does in subsection (b), with regard to the child. And yet, the finding by the trial court that Father failed to provide financial support, despite his ability to do so, was the erroneous basis for the court’s finding of willful abandonment. Had the legislature intended for financial support to be the determining factor, it would have said so, as it did in subsection (b).

Mother made it quite clear to Father throughout the pregnancy that she wanted him to have no part in raising this child, she wanted the child to be adopted, and she did not want any financial support from him. Her argument was that he offered too little, too late. But whether or not he offered to pay any support shouldn’t be considered in determining whether he willfully abandoned her during pregnancy.

Until this court defines “willfully abandoned,” trial courts will continue to wing it, as they have been doing. Some say it is lack of financial support, some say lack of emotional support, but clarification is needed from this court to determine what that phrase means so that trial courts can apply the correct standard. Father believes the phrase means totally walking away from the Mother—basically forsaking her during the pregnancy. That is not what happened here. Where, as here, the biological mother says that she has made the decision, that it is her right to do so, and that she is placing the child for adoption, what is the putative father to do?

Appellees’ Argument

The Adoptive Parents shared argument time with amicus, the Biological Mother.

Mother’s Argument

Father had every chance to bring a parentage action for the nine months preceding the birth of this child. Ohio law allows that and if that is contested, the matter is stayed.

In this case, the decision of the probate court was not based on financial support alone. That court properly took a totality of the circumstances approach. The probate court found that the putative father failed to emotionally, physically and financially support the mother. That finding is not against the manifest weight of the evidence.  So regardless of whether financial support is considered, it will not change the result in this case.  And in regard to that financial support, what was offered was conditional support.  Mother sent Father a list of expenses, and while financial support was offered, none was forthcoming. Mother never told Father she would not accept his financial support.

Over this nine month period, over 224 days the court found there was only correspondence during 16 of those days. There was a three month period of no contact at all, and virtually none the last six months.  And contact at the beginning was sporadic. So, under the totality of the circumstances presented, the trial court found willful abandonment.

The U.S. Supreme Court has found that inherent in reproductive matters and parenting decisions, sometimes there is conflict, and when there is conflict, the mother is the decisive voice.

In this case, this putative father had every ability to develop a relationship for 9 months. He could have filed a parentage action.  Had he done so the case would be decidedly different. He chose not to do that.

Adoptive Parents’ Argument

Willful abandonment was argued for the first time in this court, and should not now be considered. The appeal should be dismissed. If it is not, the decision of the probate court should be upheld.  It was not manifestly against the weight of the evidence, which is the proper standard of review here.  Courts are not limited to any one dictionary definition, in interpreting statutory language, which is what Father is asking the court to do. Strict construction does not require that the interpretation of adoption statutes must be done in a way that would mandate an unjust or unreasonable result.  The probate judge correctly used a totality of the circumstances approach.  Financial and emotional support are properly part of that calculus. But each case must be determined on its specific facts.  Abandonment can mean different things in different cases. Father is trying to take all discretion away from the trial judge.

What Was On Their Minds

Standard of Review

What is the standard of review on the factual question of the father’s consent at this court today, asked Justice O’Neill? Are the facts irrelevant if the trial judge misapplied the law? What is this court to do with the fact that the trial court found that the child was willfully abandoned and the appeals court did not disturb that finding?

Was the manifest weight issue raised below, asked Justice DeWine?

What is the standard of review of the appeals court decision, asked Justice O’Donnell? If the statute has certain factors in it, and it doesn’t have other factors in it, and the court considers extraneous matters, isn’t that subject to appellate review?

Interpreting Willful Abandonment

Isn’t failure to support something the judge could look at in a broad context with all kinds of other things, asked Justice DeWine? Didn’t the probate judge focus on many things, with financial support being just one of them?

Has that term been defined by courts in other jurisdictions, asked Justice O’Donnell, as he usually does. What should the definition include? Should willful abandonment have a broader definition than just lack of financial support? By what standard is a determination of willful abandonment made?

Is there a distinction between the abandonment of the mother and abandonment of the child once the child is born, asked Chief Justice O’Connor? Was the father told by the mother that she’d had the child? (answer: no) Is it fact specific whether abandonment takes place? In a key question of the day, she asked, since there is no universal definition of support or abandonment is it dependent on the circumstances? Case by case, fact by fact? Did Father argue to the appeals court that financial support should not be a factor in abandonment?

Father’s Involvement

What court filings did Father make, asked Justice French?

Did Father make the offer to financially support Mother during the pregnancy, but was told that the adoptive parents were taking care of that, asked Chief Justice O’Connor? Is Mother saying any offer was too late? But the statute doesn’t specify when financial support must begin, she noted.  Would minimal contact be sufficient? What happens when the putative father makes offers but they are rejected? Should that fact not be used against him? Didn’t Father file the parentage action to be declared the father before he received the petition for the adoption?

Is there any dispute that Father did not support Mother, either with medical expenses or with any financial support, asked Justice O’Donnell? (that is not disputed.)

Didn’t Father offer, through counsel, to pay the medical expenses of the birth, asked Justice O’Neill? Are we to ignore the fact that the father was consistent, from the very beginning about wanting to raise this child? How does that fit into the term “abandoned the mother?”  If somebody is texting from 1000 miles away saying that’s my child, if you say it is my child, I want to raise that child, I want to be at the hospital and I want to pay the medical bills. How does that fit into the term “abandonment?” Is sixteen days of contact “abandonment?” Isn’t there a constitutionally inherent right of a parent to raise a child above all others?

Probate Court v. Juvenile Court

Can the probate court establish paternity, asked Chief Justice O’Connor? Must that be done in juvenile court? Could that and the adoption petition have been taking place simultaneously?

What Happens Next?

If the court were to agree with Father, where does this case go from here, asked Justice O’Donnell? Has the child been with the adoptive parents since birth? (answer: yes)

How it Looks from the Bleachers

To Professor Emerita Bettman

I agree with my student contributor Mark Tassone that when we previewed this case, it looked like a no-brainer for the Adoptive Parents. After listening, we both agree that it wasn’t. But I am parting company with Mark, because I still think this is going to be a win for the Adoptive Parents, on the ground that the probate court decision is not against the manifest weight of the evidence. (By the end of the argument, pretty much everyone agreed that is the proper standard of review here.) To get there, I think the court is going to adopt a definition of willful abandonment that includes a totality of the circumstances, to be determined on a case by case basis, of which failure to provide support can be considered a factor. Justice DeWine clearly sees the case this way, and I think the Chief and Justice O’Donnell do, too. But as Chief Justice O’Connor pointed out in one of her questions, an offer by the putative father that is refused cannot be held against him as failure to provide support.  The Chief threw counsel for the Adoptive Parents a soft curve right over the plate when she asked him if the question of whether abandonment took place was fact specific. He whiffed it the first time, but picked it up when she asked again, and agreed it was case by case, fact by fact, with no universal definition of support or abandonment.

Justice O’Neill was clearly and adamantly in favor of the father here. And so was Chief Justice O’Connor at times, although ultimately I think she will go with the probate court decision.  Justices French and Fischer said little or nothing, and, as is her wont, neither did Justice Kennedy.  So that’s a lot of silence to try and read.

What is a sticking point here is that word “willfully.” There we are in the territory of “voluntary or intentional violation or disregard of a known legal duty.” And the definition of abandonment offered up by Father, and the dissenting appellate judge, was “basically forsaking the mother during her pregnancy—completely walking away.” If the court adopts these definitions, that clearly favors the putative father.  But in the end I think the court will go for a more flexible, broader definition allowing for consideration of the totality of the circumstances and defer to the probate court on this one. These cases are always so sad. The fact that the child has been with the adoptive parents since birth, while not really relevant, can’t help but be lurking in the background.

To Student Contributor Mark Tassone

Father’s counsel followed a clearly constructed strategy. Namely, she reiterated the need for clarity on the definition of “willfully abandoned” as referenced under R.C. 3107.07 (B)(2)(c): “We are seeking clarification of what that statute really means. Does that phrase include the failure to provide care and support? And our argument is it does not, because the legislature specifically left that particular phrase out . . . .” The bench seemed to clear a path for Father’s argument through a series of leading questions. At one point, Chief Justice O’Connor stated: “There’s no time during the nine months of pregnancy where there has to be financial support from day one.” Father’s counsel simply replied, “that is my argument.” However, the justices seemed concerned about the question of the appropriate level of appellate review. Father’s counsel contended that the case must be reviewed under a “manifest weight of the evidence” standard. She also limited the clarifying definition to abandonment during the pregnancy.

Justice O’Neill, joined closely by Chief Justice O’Connor, led the bench in a volley of questioning for Amicus Counsel and the Adoptive Parents’ Counsel. At one point Justice O’Neill asked: “I’m trying to figure out how if someone is texting from a thousand miles away [an offer of support], how do I put that in the English language together with the term ‘abandoned’?” Amicus Counsel argued that the totality of the circumstances demonstrated “willful abandonment”. Yet, Justice O’Neill did not seem satisfied, and his questions continued. The tense line of questions was concluded by Chief Justice O’Connor: “Did [birth-mother] tell [putative father] that she had the child?” Amicus Counsel replied, “no, your Honor, she did not.”

Counsel for the Adoptive Parents questioned the court’s ability to even hear the father’s argument due to the failure of his lawyer to raise the interpretative argument to the appellate court. Adoptive Parents’ counsel then reiterated the Amicus argument that the trial court ruled on the totality of the circumstances. He expressed concern that the court might shift the burden from a putative father to a mother in a parentage action. Finally, he argued that the father is attempting to take discretion away from the trial judge.

This is a tough case to call. The briefs seemed to present a very strong case for the Adoptive Parents. Yet, Justice O’Neill and Chief Justice O’Connor seemed to be seeking an avenue through which to support the putative father. The other questions from the bench did not seem to undermine Father’s position. The dominance of Justice O’Neill and Chief Justice O’Connor makes it very difficult to read the thoughts of the remaining justices, several of whom did not speak more than once or at all. Nevertheless, in this instance, I choose to interpret their silence as approval. Therefore, it is my opinion that the court will rule, much to my surprise, on behalf of the putative father.

 

 

 

 

 

 

 

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