[Cite as In re Adoption of B.I., 2017-Ohio-9116.]



                           IN THE COURT OF APPEALS
                 FIRST APPELLATE DISTRICT OF OHIO
                            HAMILTON COUNTY, OHIO



IN RE: ADOPTION OF B.I.                             :   APPEAL NOS. C-170064
                                                                     C-170080
                                                    :   TRIAL NO. 2016000515

                                                    :

                                                    :      O P I N I O N.




Appeals From: Hamilton County Court of Common Pleas, Probate Division

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: December 20, 2017



Lindhorst & Dreidame Co., LPA, and Bradley D. McPeek, for Appellant,

Susan Mineer for Appellee.
                    OHIO FIRST DISTRICT COURT OF APPEALS


DETERS, Judge.

       {¶1}   These appeals relate to an adoption proceeding initiated by the

stepfather of a minor child in which the probate court determined that the natural

father’s consent to the adoption was required, and therefore the court dismissed the

adoption petition. The question presented to this court is whether the natural father

failed without justifiable cause to provide maintenance and support as required by

law or judicial decree, where the father had a zero child-support order. Because we

determine that, under the plain language of R.C. 3107.07(A), a parent cannot fail

without justifiable cause to provide maintenance and support of a minor as required

by law or judicial decree when that parent has a zero child-support order, we affirm

the judgment of the trial court.

       {¶2}   In February 2016, appellant stepfather filed a petition to adopt his

stepson, B.I., with the consent of B.I.’s mother (“mother”). The petition alleged that

the consent of B.I.’s birth father (“father”) was not required under R.C. 3107.07(A),

because father had failed without justifiable cause to provide maintenance and

support of B.I. as required by law or judicial decree for a period of at least one year

immediately preceding the filing of the adoption petition (the “one-year period”).

       {¶3}   Father filed objections to the petition. Prior to a hearing on the issue

of whether father’s consent to the adoption was required, the parties stipulated to

several facts, including that (1) father had been in prison since 2009; (2) in August

2010, the Clermont County Juvenile Court had set father’s child-support obligation

at zero and had also set his arrearage to zero; (3) during the one-year period, father

had received $18 per month as prison income, and friends and family had deposited




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$5,152 into his prison account; and (4) during the one-year period, father had spent

$4,681.62 at the prison commissary.

       {¶4}   At the hearing before the magistrate on the issue of father’s consent,

mother testified that father, along with father’s mother, had requested repeatedly

that mother terminate father’s child-support order, otherwise, father would be

incarcerated again on child-support arrearages upon release from prison. Because of

their requests, mother agreed to an order that set father’s support obligation at zero

and set his arrearage at zero.        Mother testified that she had not had any

communication with father during the year prior to the filing of the adoption

petition, but that she would have accepted money from father for B.I.’s support if

father had offered.

       {¶5}   Father participated in the consent hearing by phone. Father testified

that he had spent over $4,000 in the prison commissary because he did not like the

food served at the prison mess hall. He never attempted to provide maintenance or

support for B.I. while in prison and never inquired regarding B.I.’s financial support.

However, father testified that mother had never requested any support.

       {¶6}   After the consent hearing, the magistrate determined that even though

father did not have a support obligation by judicial decree, as a parent, he still had

the obligation to provide maintenance and support. Because the uncontroverted

evidence showed that father did not provide any maintenance or support for B.I.

during the one-year period, and that father had thousands of dollars available to him

in his prison account, father’s consent was not required for the adoption petition.

       {¶7}   Father filed objections to the magistrate’s decision, arguing mainly

that the zero child-support order excused any legal obligation to provide


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maintenance and support to B.I.       The trial court sustained father’s objections,

overruled the decision of the magistrate, and dismissed stepfather’s adoption

petition. Stepfather now appeals, raising in one assignment of error that the trial

court erred in dismissing his adoption petition.

       {¶8}   In general, an adoption petition may be granted only if written consent

to the adoption has been executed by the minor’s natural parents. See R.C. 3107.06.

However, parental consent to an adoption is not required when the petitioner

alleges, and the court finds, by clear and convincing evidence, that the parent “has

failed without justifiable cause to provide more than de minimis contact with the

minor or to provide for the maintenance and support of the minor as required by law

or judicial decree for a period of at least one year immediately preceding * * * the

filing of the adoption petition * * *.” R.C. 3107.07(A). The probate court determines

justifiable cause “by weighing the evidence of the natural parent’s circumstances for

the statutory period for which he or she failed to provide support.” In re Adoption of

Bovett, 33 Ohio St.3d 102, 515 N.E.2d 919 (1987), paragraph three of the syllabus.

       {¶9}   As it pertains to the natural parent’s failure to provide maintenance

and support, the petitioner requesting adoption carries the burden to prove by clear

and convincing evidence “both (1) that the natural parent has failed to support the

child for the requisite one-year period, and (2) that this failure was without

justifiable cause.” Id. at paragraph one of the syllabus. Once the petitioner has met

his or her initial burden, “the burden of going forward with the evidence shifts to the

natural parent to show some facially justifiable cause for such failure.”       Id. at

paragraph two of the syllabus. Because the burden of proof ultimately remains with

the adoption petitioner, once a natural parent has “presented facially justifiable


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reasons” for his or her failure to support the child, the burden shifts back to the

petitioner to show that the natural parent’s justifications are illusory. In re Adoption

of B.B.S., 2016-Ohio-3515, 70 N.E.3d 1, ¶ 22 (4th Dist.), citing In re Adoption of

Kessler, 87 Ohio App.3d 317, 324, 622 N.E.2d 354 (6th Dist.1993).

       {¶10} R.C. 3107.07(A) does not contain definitions for its terms, thus, courts

give those terms their plain and ordinary meanings. In re E.W.H., 4th Dist. Meigs

No. 16CA8, 2016-Ohio-7849, ¶ 32-33. Maintenance is defined as “[f]inancial support

given by one person to another[,]” and support as “[s]ustenance or maintenance;

esp., articles such as food and clothing that allow one to live in the degree of comfort

to which one is accustomed.” In re Adoption of M.B., 131 Ohio St.3d 186, 2012-Ohio-

236, 963 N.E.2d 142, ¶ 20, citing Black’s Law Dictionary 1039 (9th Ed.2009).

“Justifiable” means “[c]apable of being legally or morally justified; excusable;

defensible.” In re E.W.H. at ¶ 33, citing Black’s Law Dictionary 882 (8th Ed.2004).

       {¶11} Stepfather first argues that a zero child-support order does not excuse

a parent’s failure to support because R.C. 3107.07(A) refers to maintenance and

support “required by law or judicial decree.” (Emphasis added.) Thus, according to

stepfather, father had a duty to support his son, separate and apart from the zero

child-support order. Stepfather also argues that the probate court failed to consider

all of the facts and circumstances in its decision, including the fact of father’s

incarceration as the underlying basis for the zero child-support order.

       {¶12} To support the argument that a duty to support a minor child exists

separate from a child-support order, stepfather cites two cases from the Fifth

Appellate District, In re Adoption of A.S., 5th Dist. Licking No. 10-CA-140, 2011-

Ohio-1505, and In re Adoption of Z.A., 5th Dist. Licking No. 16-CA-05, 2016-Ohio-


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3159. In In re Adoption of A.S., the natural father was incarcerated and had a zero

child-support order, and the trial court granted the stepfather’s adoption petition.

The father appealed. The appellate court determined that the phrase “required by

law or judicial decree” in R.C. 3107.07(A) means that the father has a support

obligation by judicial decree, but also a statutory duty to support his minor child.

According to the appellate court, this statutory duty arises under R.C. 2919.21, a

criminal statute, which criminalizes parents’ nonsupport of children.

       {¶13} Because the father had a separate duty to provide support to his child,

the court in In re Adoption of A.S. determined that, despite the zero child-support

order, the father had failed without justifiable cause to support his child. In re

Adoption of A.S. at ¶ 29. The Fifth Appellate District followed its reasoning in In re

Adoption of A.S. in In re Adoption of Z.A., another case dealing with an incarcerated

father where the father did not have a child-support order in place.

       {¶14} Other appellate courts have taken a different approach to the language

of R.C. 3107.07(A). The Ninth Appellate District has applied the phrase “required by

law or judicial decree” in R.C. 3107.07(A) to mean that if a judicial decree of support

exists, then the decree supersedes any duty of support “required by law.” See In re

Adoption of Jarvis, 9th Dist. Summit No. 17761, 1996 WL 724748 (Dec. 11, 1996). In

Jarvis, the stepfather’s adoption petition had been dismissed after the natural father

refused to consent. The stepfather appealed, and on appeal he argued that the

father’s consent was not required, because the father had failed to provide

maintenance and support without justifiable cause. The stepfather argued that even

though the divorce decree between the father and mother did not contain a child-

support order for the father, the lack of an order in that decree did not abrogate the


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father’s duty of support under R.C. 3103.03 to “support his or her minor children out

of his or her property or by his or her labor.” Therefore, the stepfather argued that

the father was “required by law” to provide support. The Ninth District disagreed

with the stepfather, reasoning that, in divorce cases, the common-law duty of

support owed by parents to their children, as codified in R.C. 3103.03, is superseded

by the domestic-relations statute governing child support, R.C. 3109.05. Id., citing

Meyer v. Meyer, 17 Ohio St.3d 222, 224, 478 N.E.2d 806 (1985). Therefore, the

Ninth District held that “[t]o additionally compel the application of R.C. 3103.03

when there is already a valid judicial order in existence would be to incorrectly

interpret R.C. 3107.07 to mean: ‘as required by law in addition to a judicial decree

where a domestic relations court has determined that child support should be not

set.’ ”    Id. at *5.    Therefore, the Ninth District affirmed the dismissal of the

stepfather’s adoption petition.

          {¶15} The Second Appellate District has followed Jarvis in holding that a

judicial order relieving a parent of the duty to support supersedes a statutory or

common-law duty to support in adoption cases. See In re Adoption of Stephens, 2d

Dist. Montgomery No. 18956, 2001 WL 1636284, *3 (Dec. 21, 2001); In re Adoption

of W.K.M., 166 Ohio App.3d 684, 2006-Ohio-2326, 852 N.E.2d 1264 (2d Dist.)

(applying the same reasoning in a case involving an incarcerated natural father with

a zero child-support order). As have the Fourth, Seventh, and Tenth Appellate

Districts. See In re Adoption of Way, 4th Dist. Washington No. 01CA23, 2002-Ohio-

117; In re Adoption of A.N.W. and L.D.W., 7th Dist. Belmont No. 15 BE 0071, 2016-

Ohio-463; In re Adoption of K.A.H., 10th Dist. Franklin No. 14AP-831, 2015-Ohio-

1971, ¶ 23. Without discussing Jarvis, the Third Appellate District seemed to reach


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the same result, determining that where a natural mother had a zero child-support

order, the mother’s failure to support her minor child actually “fulfilled her

obligations under the judicial decree,” and therefore the mother’s consent to the

adoption was necessary. See In re Adoption of Thiel, 3d Dist. Hardin No. 6-98-12,

1999 WL 152902, *2 (Feb. 23, 1999); In re Adoption of Collene, 3d Dist. Crawford

No. 3-08-08, 2008-Ohio-5827.

       {¶16} The Fourth Appellate District has distinguished its holding that a zero

child-support order supersedes a statutory or common-law duty to support in

adoption cases. See In re Adoption of L.C.H. and K.S.C., 4th Dist. Scioto Nos.

09CA3318, 09CA3319 and 09CA3324, 2010-Ohio-643. In In re Adoption of L.C.H.

and K.S.C., the mother had been in and out of prison for drug issues. The juvenile

court had ordered the mother to pay zero dollars in child support to her husband.

The month after the court entered the zero child-support order, the mother started

working at an insurance agency. During the adoption proceedings of the mother’s

children, the mother argued that the zero child-support order superseded her

common-law duty to support her children. The Fourth Appellate District disagreed.

First, the appellate court noted that the zero child-support order named the mother’s

husband as the obligee, even though he did not have custody of the mother’s children

at the time. Second, the mother had a change in circumstances less than one month

after the support order had been entered. The appellate court determined that these

facts made the appeal distinguishable from its earlier decision in Way that a zero

child-support order supersedes the common-law duty to support. Therefore, the

appellate court held that the mother had a common-law duty to support her children

despite the zero child-support order. Id. at ¶ 51.


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                    OHIO FIRST DISTRICT COURT OF APPEALS


       {¶17} The reasoning of the Fourth Appellate District in In re Adoption of

L.C.H. and K.S.C. is similar to the reasoning of the Fifth Appellate District in In re

Adoption of A.S. and In re Adoption of Z.A. in that these courts have determined that

a parent has a statutory duty to provide child support, despite the fact that the parent

has a court order of support in place. The reasoning in these cases is problematic.

First, these cases do not discuss Meyer v. Meyer, in which the Ohio Supreme Court

held that in domestic-relations cases the general duty of support under R.C. 3103.03

is superseded by R.C. 3109.05, the domestic-relations statute governing child

support. Meyer, 17 Ohio St.3d at 224, 478 N.E.2d 806. More importantly, by

determining that a parent’s duty to support is not necessarily superseded by a court

order regarding child support, the cases suggest that an obligor parent cannot rely on

a valid court order of child support. If a child-support order should be modified

based upon a change of circumstances, then the parties must be required to return to

the juvenile or domestic-relations court that issued the order, and should not

collaterally attack the child-support order in probate court in an adoption

proceeding. See Cincinnati Bar Assn. v. Hauck, 148 Ohio St.3d 203, 2016-Ohio-

7826, 69 N.E.3d 719, ¶ 28 (“Unless a judgment was issued without jurisdiction or

was procured by fraud, it is considered valid, and even though it may be flawed in its

resolution of the merits, its integrity is generally not subject to collateral attack in a

separate judicial proceeding.”).

       {¶18} Adoption proceedings terminate fundamental rights of natural

parents, thus the consent requirement in R.C. 3107.07(A) must be strictly construed

to protect natural parents. In re Adoption of G.V., 126 Ohio St.3d 249, 2010-Ohio-

3349, 933 N.E.2d 245, ¶ 6.         Under the plain language of R.C. 3107.07(A), the


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justifiable-cause determination is not made until after the probate court finds that

the parent failed to provide maintenance and support for the one-year period. See In

re Adoption of M.B., 131 Ohio St.3d 186, 2012-Ohio-236, 963 N.E.2d 142, at ¶ 23 (“In

applying [R.C. 3107.07(A)], 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 proved by clear and convincing evidence.”). A parent does not fail to

provide maintenance and support as required by law or judicial decree where the

parent has a zero child-support order, and, in fact, the parent complies with his or

her court-ordered child-support obligation in not providing for his or her child. At

that point, the analysis under R.C. 3107.07(A) ends.

       {¶19} Therefore, we reject stepfather’s argument in this case that the

language “required by law or judicial decree” in R.C. 3107.07(A) means that a parent

still has a duty to provide child support separate from a judicial decree of support.

We follow the approach taken by a majority of appellate courts and hold that in

adoption-consent cases under R.C. 3107.07(A), where a court has ordered a parent to

pay no child support or zero child support, that court order of support supersedes

any other duty of support “required by law,” and therefore the parent cannot fail

without justifiable cause to provide maintenance and support of a minor child.

       {¶20} We note that applying R.C. 3107.07(A) to cases where a natural parent

has a zero child-support order may produce unjust results, especially where the zero

child-support order is the result of the natural parent’s criminal misconduct. For

example, in Frymier v. Crampton, 5th Dist. Licking No. 02 CA 8, 2002-Ohio-3591,


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the natural father had committed attempted aggravated murder by shooting his

father-in-law with a firearm, and the incident took place in the presence of the

father’s wife and their four-year-old son. The mother obtained a divorce and the

final decree prohibited contact between the father and his son. The decree also

relieved the father from his child-support obligation while in prison, but the

obligation accumulated as an arrearage. The mother remarried and the stepfather

filed an adoption petition, alleging that the father’s consent was not required. The

trial court granted the adoption petition, and the father appealed. On appeal, the

father argued that the court’s order relieving his support obligation superseded his

general duty to support his son.      The appellate court recognized the important

interest of a nonconsenting parent in an adoption proceeding terminating parental

rights, nevertheless, the court reasoned that “justice requires that we not ignore the

reason [father] was put into his current position.” Id. at *2. The appellate court

determined that the father’s violent acts caused the subsequent lack of support, and

that the father had an income-producing job in prison. Therefore, under the facts

and circumstances of that case, the appellate court affirmed the trial court’s holding.

       {¶21} The result in Frymier is not based upon the plain language of R.C.

3107.07(A), but instead upon the court’s determination that justice required

disposing of the father’s consent because of the father’s criminal misconduct.

Although justice may have been better served by the result reached in Frymier, R.C.

3107.07(A) makes no exception to parental consent in an adoption proceeding

because of a parent’s criminal misconduct. The role of the courts is to apply the law

as written, thus, we must adhere to the plain language of R.C. 3107.07(A). See

Arbino v. Johnson & Johnson, 116 Ohio St.3d 468, 2007-Ohio-6948, 880 N.E.2d


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420, ¶ 21 (“A fundamental principle of the constitutional separation of powers

among the three branches of government is that the legislative branch is “the

ultimate arbiter of public policy.”) (Internal quotes omitted.)

       {¶22} In this case, the undisputed evidence shows that father had a zero

child-support order for the one-year period. Both mother and father have referred to

the 2010 child-support order as a zero child-support order. See appellant’s brief at 4;

appellee’s brief at 2-3, 14. Even though both parties and the trial court agree as to

the characteristics of the 2010 support order, the dissent sees it differently. The

dissent makes an argument that neither party made to the trial court, or in either

their briefs or at oral argument to this court. The dissent argues that the 2010 order

terminating father’s support obligation is not a zero child-support order, but instead

the order should be treated as if “no order exists.” The dissent cites no law for this

argument. To be clear, the absence of a child-support order is treated differently

under R.C. 3107.07(A). See, e.g., In re Adoption of Kuhlmann, 99 Ohio App.3d 44,

649 N.E.2d 1279 (1st Dist.1994) (analyzing R.C. 3017.07(A) in the absence of a court

order addressing child support). As stated succinctly by another appellate court: “[A]

zero support or no support order differs from the absence of a support order. When

a court is silent on support or has not entered an order regarding support, that fact

alone does not constitute justifiable cause for failing to provide support and

maintenance.” In re Adoption of A.N.W. and L.D.W., 7th Dist. Belmont No. 15 BE

0071, 2016-Ohio-463, ¶ 30 (citing a line of cases under R.C. 3107.07(A) where child

support had not been adjudicated). Because this is not a case where a court is silent

on support or where support has not yet been adjudicated, this line of case law was

not cited by the parties and does not apply.


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       {¶23} Moreover, based upon the language in this opinion, the dissent creates

a hypothetical situation where a father who commits crimes against his child, and

goes to prison for those crimes, must later consent to that child’s adoption. It is

worth noting that this hypothetical situation is factually distinguishable and would

likely turn out differently than predicted by the dissent, albeit under the de-minimis

contact provision of R.C. 3107.07(A).        See In re Adoption of N.T.R., 10th Dist.

Franklin No. 16AP-589, 2017-Ohio-265 (where the father had raped his stepdaughter

and the Ohio Department of Rehabilitation and Correction had ordered that the

father not contact his daughter because his daughter lived with his stepdaughter, the

victim, and the appellate court determined that the father had failed to have more

than de minimis contact with his daughter, and that this failure was without

justifiable cause).

       {¶24} Therefore, stepfather did not meet his burden to show by clear and

convincing evidence that father failed without justifiable cause to provide

maintenance and support to B.I. as required by law or judicial decree. We overrule

stepfather’s assignment of error, and we affirm the judgment of the probate court

dismissing stepfather’s adoption petition.


                                                                   Judgment affirmed.


MOCK, P.J., concurs.
MILLER, J., dissents.


MILLER, J., dissenting.

       {¶25} Let’s say an ex-husband who had long been derelict in making child-

support payments commits crimes against his ex-wife and child. He is sent to prison.


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The mother decides she wants the father released from prior obligations under a child-

support order because she and her child want to sever all ties. The juvenile court

accommodates this request and rescinds the order. She later seeks to have the child

adopted by her new spouse. According to the majority, the probate court has no

discretion in this instance. The child may not be adopted under R.C. 3107.07(A) without

the consent of the ex-husband. Same goes for any other louse who a custodial parent

has decided not to be financially tied to and thus consented to there not being a support

order. Could this be the intent of the consent provisions in R.C. 3107.07(A)? Is such a

result mandated by the text? I conclude it is not, and thus respectfully dissent.

       {¶26} The majority refers to a “zero child-support order.” In the mind’s eye,

that would be a court order affirmatively stating the father is required to pay zero

dollars. That is not what exists here. Here, there had been a support order in place, on

which father was not paying. Father’s relatives convinced mother to release him from

the order so that the accumulating arrearage would not be problematic for father upon

his release. The juvenile court terminated the order, but did not put on a “zero child-

support order.” Instead, no order exists.

       {¶27} Thus, I find troubling the majority’s conclusion that the absence of a

child-support order is dispositive. Providing no support where there is no support order

in place isn’t an automatic pass on the “maintenance and support” portion of R.C.

3107.07(A). Instead, it factors into whether the failure to provide maintenance and

support was “without justifiable cause.”

       {¶28} The statute affords the probate court discretion to weigh the

circumstances around which a parent has failed to provide support. Perhaps a parent

was not ordered to provide support because the custodial parent was wealthy, or the


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noncustodial parent is justifiably incomeless and unable to provide support, or maybe

one parent is a person the custodial parent is trying to avoid for a host of reasons and

therefore wants no order in place. The probate court should be able to consider such

matters before making a determination under R.C. 3107.07(A).

       {¶29} Accordingly, I would vacate the judgment and remand for the probate

court to decide whether the failure to provide support was justified. When it does so, the

probate court would be free to consider the redirection of the support obligations and

the reasons therefor when making its determination.



Please note:

          The court has recorded its own entry on the date of the release of this opinion.




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