[Cite as In re Adoption of K.L.M., 2015-Ohio-3154.]


                             IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT


In the Matter of the Adoption of                      :

K.L.M.,                                               :            No. 15AP-118
                                                                  (Prob. No. 564184)
(C.M.,                                                :
                                                          (ACCELERATED CALENDAR)
                Appellant).                           :



                                           D E C I S I O N

                                     Rendered on August 6, 2015


                Law Office of Susan Garner Eisenman, and Susan Garner
                Eisenman, for appellant.

                  APPEAL from the Franklin County Court of Common Pleas,
                                     Probate Division

TYACK, J.

         {¶ 1} Appellant, C.M., is appealing the decision of the Franklin County Probate
Court which found that appellee, A.B., provided maintenance and support pursuant to
R.C. 3107.07(A) to the child K.L.M. As a result, the probate court concluded that the
consent of appellee had to be obtained before K.L.M. could be adopted. For the following
reasons, we reverse the probate court's decision and remand the case.
         {¶ 2} Appellant brings four assignments of error for our consideration:
                1. THE COURT BELOW ERRED IN ITS INTERPRETATION
                OF R.C. 3107.07(A) AS MATTER OF LAW. THE COURT
                SUBSTITUTED A NON-STATUTORY "ABANDONMENT"
                STANDARD FOR THE CLEAR STATUTORY STANDARD
                OF NON-SUPPORT "FOR ONE YEAR IMMEDIATELY
                PRECEDING THE FILLING OF THE PETITION"
                STANDARD OR R.C. 3107.07(A).
No. 15AP-118                                                                         2


             2. THE COURT BELOW ERRED IN FINDING THAT THE
             BIRTHMOTHER     SUPPORTED    THE   CHILD   "AS
             REQUIRED BY LAW." THE BIRTHMOTHER TESTIFIED
             THAT THE GIFTS TO THE CHILD WERE NOT INTENDED
             AS SUPPORT. THESE GIFTS AND EXPENSES WERE NOT
             REQUIRED BY LAW.

             3. THE COURT BELOW ERRED AS A MATTER OF LAW IN
             REQUIRING THE PETITIONER TO ESTABLISH A
             "DEFINITIVE" AMOUNT OF SPENDING MONEY GIFTS
             TO THE CHILD AS PART OF HER BURDEN OF PROOF OF
             NON-SUPPORT. SPENDING MONEY GIFTS ARE NOT
             SUPPORT. THE DE MINIMUS [sic] NATURE OF THE
             GIFTS WAS ESTABLISHED AS LESS THAN $143.00 PER
             MOTHER'S TESTIMONY.     THE EXACT AMOUNT IS
             IRRELEVANT.

             4. THE COURT BELOW MADE FINDINGS OF FACT
             WHICH IT DEEMED RELEVANT WHICH WERE OUTSIDE
             THE STATUTORY PERIOD, ERRONEOUS FACTUALLY,
             AND INVOLVED GIFTS GIVEN BY FRIENDS AND FAMILY
             MEMBERS. THESE FINDINGS WERE IRRELEVANT
             AND/OR IN ERROR. THE FACTS DO NOT SUPPORT THE
             TRIAL COURT'S DECISION.

      {¶ 3} Appellant petitioned to adopt the minor child K.L.M. on December 3, 2013.
The child was born to appellee A.B. The petition for adoption alleged that both the
birthfather and birthmother's consent to the adoption was not necessary due to the
provisions of R.C. 3107.07, which reads:
             Consent to adoption is not required of any of the following:

             (A) A parent of a minor, when it is alleged in the adoption
             petition and the court, after proper service of notice and
             hearing, 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 either the filing of the adoption petition or the
             placement of the minor in the home of the petitioner.

      {¶ 4} After a hearing, the probate court's magistrate found, pursuant to R.C.
3107.07(A), that the birthfather's consent was not required as he failed to support the
No. 15AP-118                                                                                    3


child for one year proceding the filing of the petition for adoption. The magistrate found
that the birthmother did support the child and provided more than de minimis contact.
Therefore appellee's consent was required.         Petitioner objected to the magistrate's
decision, arguing that the items and money appellee provided were of de minimis value
and constituted gifts but not support as required by R.C. 3107.07.
       {¶ 5} The probate court conducted a hearing and agreed with the magistrate,
finding that the consent of appellee was required. The probate court's findings of fact also
stated: that petitioner has legal custody of the child through the Franklin County Juvenile
Court, case No. 06JU-3846, and had legal custody for the year preceding the petition;
appellee was employed and earned an hourly income of $9.20 plus bonuses; petitioner
has sought support for the child through the Bureau of Support on three occasions, but
the bureau has failed to issue a support order; appellee visited the child regularly in the
first six months during the one-year period before the filing of the petition; and that
appellee purchased school supplies, bought birthday and Christmas gifts, and provided
meals and some spending money to the child during her visits in the year preceding the
filing of the petition. Petitioner timely filed an objection to the probate court's decision.
       {¶ 6} We note at the onset of our analysis the well-established law that the right to
parent one's children is a fundamental right. Troxel v. Granville, 530 U.S. 57, 66 (2000);
In re C.F., 113 Ohio St.3d 73, 2007-Ohio-1104, ¶ 28. Parents have a "fundamental liberty
interest" in the care, custody, and management of the child. Santosky v. Kramer, 455
U.S. 745, 753 (1982). In recognition of the significance of that fundamental interest, the
Supreme Court of Ohio has described the permanent termination of parental rights as
"the family law equivalent of the death penalty in a criminal case." In re Hayes, 79 Ohio
St.3d 46, 48 (1997).      Therefore, parents "must be afforded every procedural and
substantive protection the law allows." Id. In regard to the permanent termination of
parental rights specific to the context of adoptions, as a general rule, the biological parent
must consent and may withhold consent to adoption. R.C. 3107.06; see also In re
Adoption of G.V., 126 Ohio St.3d 249, 2010-Ohio-3349, ¶ 6 (stating "[b]ecause adoption
terminates fundamental rights of the natural parents, ' "* * * [a]ny exception to the
requirement of parental consent [to adoption] must be strictly construed so as to protect
No. 15AP-118                                                                               4


the right of natural parents to raise and nurture their children" ' "). In re Adoption of
Masa, 23 Ohio St.3d 163, 164 (1986), quoting Santosky.
       {¶ 7} Petitioner argues in the first and second assignments of error that the
probate court did not properly apply R.C. 3107.07(A).          Petitioner submits that the
birthday and Christmas presents, other gifts, spending money, and meals during visits
appellee gave to the child do not constitute maintenance and support.
       {¶ 8} The Supreme Court of Ohio has articulated a two-step analysis for probate
courts to employ when applying R.C. 3107.07(A). In re Adoption of M.B., 131 Ohio St.3d
186, 2012-Ohio-236, ¶ 23. The first step involves the factual question of whether the
petitioner has proved by clear and convincing evidence that the parent willfully failed to
have more than de minimis contact with the minor child or failed to provide maintenance
and support. Id. at ¶ 21; R.C. 3107.07(A). "A trial court has discretion to make these
determinations, and in connection with the first step of the analysis, an appellate court
applies an abuse-of-discretion standard when reviewing a probate court decision." Id. at
¶ 25. "The term 'abuse of discretion' connotes more than an error of law or judgment; it
implies that the court's attitude is unreasonable, arbitrary or unconscionable."
Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).
       {¶ 9} The second step occurs if a probate court finds a failure to have more than
de minimis contact or provide the required maintenance and support. The court then
determines the issue of whether there is justifiable cause for the failure. In re Adoption of
M.B. at ¶ 23. When a non-consenting parent fails to present any evidence of justification
for non-support, then the adopting parents only have the burden of proving failure to
support. In re Adoption of Masa at 167. A probate court's decision on whether justifiable
cause exists will not be disturbed on appeal unless the determination is against the
manifest weight of the evidence. In re Adoption of M.B. at ¶ 24; In re Adoption of Masa
at paragraph two of the syllabus. The consent provisions of R.C. 3107.07(A) are to be
strictly construed to protect the interests of the non-consenting parent. In re Adoption of
Sunderhaus, 63 Ohio St.3d 127 (1992).
       {¶ 10} Examining the nature of the duty of support and maintenance to which R.C.
3107.07 refers, Ohio has long recognized that a biological parent's duty to support his or
her children is a "principle of natural law" that is "fundamental in our society." In re
No. 15AP-118                                                                              5


Adoption of B.M.S., 10th Dist. No. 07AP-236, 2007-Ohio-5966; Aharoni v. Michael, 74
Ohio App.3d 260, 263 (10th Dist.1991). Moreover, this duty is not impaired by the
termination of the marriage. Pretzinger v. Pretzinger, 45 Ohio St. 452, 458 (1887),
paragraph one of the syllabus.
       {¶ 11} "The biological or adoptive parent of a minor child must support the
parent's minor children out of the parent's property or by the parent's labor." R.C.
3103.03(A).
       {¶ 12} "Such duty of support is not dependent upon the presence or absence of
court orders for support." B.M.S. at ¶ 23; Nokes v. Nokes, 47 Ohio St.2d 1 (1976). "[A]
parent of a minor, has the common-law duty of support as well as a duty of support
decreed by court. The judicial decree of support simply incorporates the common-law
duty of support." In re Adoption of McDermitt, 63 Ohio St.2d 301, 305 (1980). Such duty
of support is not dependent upon the presence or absence of court orders for support.
Nokes at 5; B.M.S. at ¶ 23 (Consent was not found to be necessary after the biological
father was found to not have paid court ordered child support and showed no financial
reason for failing to do so).
       {¶ 13} Voluntary payments made by a noncustodial parent to a child should not be
considered payments in lieu of support. See Evans v. Brown, 23 Ohio App.3d 97, 99
(10th Dist.1985). The reasons for such a rule are persuasive. "Particularly where the child
is not near the age of majority, a parent must be in control of the purchasing of food,
clothing and the providing of other necessities to the child. Direct payments to the child
thwart that basic and necessary relationship between a minor child and a custodial
parent." Id. The "common law duty of support is owed to a person who has the physical
custody of the child or children as long as that physical custody is not in contravention of
the rights of anyone who may have legal custody of the child."           Burrowbridge v.
Burrowbridge, 5th Dist. No. 2005CA00049, 2005-Ohio-6303, ¶ 39, concurring opinion.
       {¶ 14} Parents of a minor child may not unilaterally or bilaterally decide to ignore
the obligation of support. In re England, 10th Dist. No. 92AP-1749 (May 18, 1993). "[A]
written agreement between the parents cannot abrogate a parent's independent statutory
duty to provide support for the child." Hoelscher v. Hoelscher, 91 Ohio St.3d 500, 502
(2001), citing In re Dissolution of Marriage of Lazor, 59 Ohio St.3d 201 (1991).
No. 15AP-118                                                                              6


       {¶ 15} We now examine if the actions, which occurred or the gifts and money given
by appellee constitute maintenance and support.        Black's Law Dictionary 1039 (9th
Ed.2009), defines "maintenance" 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, ¶ 20. Maintenance and support, in
the adoption context, do not simply refer to child support payments or other monetary
contributions. In re Adoption of McNutt, 134 Ohio App.3d 822, 829 (4th Dist.1999).
Maintenance and support, "may mean any type of aid to feed, clothe, shelter, or educate
the child; provide for health, recreation, travel expenses; or provide for any other need of
the child. * * * Supplying shoes, diapers, or any other clothing can constitute support and
maintenance." In re Adoptions of Groh, 153 Ohio App.3d 414, 424 (7th Dist.2003), citing
McNutt.
       {¶ 16} De minimis monetary gifts from a 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. To decide otherwise would render the phrase "as
required by law or judicial decree" meaningless.        In re Adoption of M.B. at ¶ 20
(Christmas and birthday gift totaling $185 are de minimis gifts and not maintenance and
support as required by law or judicial decree). We have continually held that "supplying
gifts and other nonessential items is not considered support or maintenance for purposes
of R.C. 3107.07(A)." In re Adoption of K.A.H., 10th Dist. No. 14AP-831, 2015-Ohio-1971,
¶ 22 (non-consenting parent had sent an undetermined number of cards and gifts); In re
Adoption of B.M.S. at ¶ 30 (non-consenting parent provided only toys and food during
visitations when the children were already being afforded these, and were being
sufficiently supported).
              In an action for adoption where it is alleged that the natural
              father willfully abandoned or failed to care for and support
              his daughter, his purchase of toys and clothes for her in the
              value of about $133 is insufficient to fulfill his duty of
              support where the gifts to the child are not requested and
              they provide her no real value of support because she already
              has sufficient clothes and toys.
No. 15AP-118                                                                                 7


In re Adoption of Strawser, 36 Ohio App.3d 232 (10th Dist.1987), paragraph one of the
syllabus. Contributions which are of no value to the child generally do not qualify as
maintenance and support. In re B.M.S. at ¶ 33. For example, where a parent places the
child on his health insurance plan, but does not inform the custodial parents of the
coverage, the contribution does not constitute maintenance and support. In re Adoption
of Knight, 97 Ohio App.3d 670, 672 (10th Dist. 1994). The " 'duty of support of his minor
children extends only to "necessaries." ' " In re B.M.S. at ¶ 33, quoting In re Manley, 2d
Dist. No. 18946 (Dec. 14, 2001).
       {¶ 17} The probate court in this case incorrectly applied R.C. 3107.07(A) finding
that gifts, meals, and money provided to the child constituted maintenance and support.
The court incorrectly stated the law that, "a parent has a duty to support their children
and * * * the correct inquiry is not whether the parent supported as that is expected, but
rather, whether a parent's failure to support is without justifiable cause so as to effectively
rise to abandonment. This is the correct spirit and application of R.C. 3107.07(A)." (R.
49, Judgment Entry page 8.) The law is very clear and reiterated above, that it must be
proved by clear and convincing evidence that "[a] parent of a minor * * * 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." R.C.
3107.07(A). There is common law duty to support that either must be met, incorporated
in judicial decree, or have justifiable cause why it cannot be met in order to defeat an R.C.
3107.07(A) allegation that consent is not required to adopt. See In re M.B.; see generally
In re B.M.S.
       {¶ 18} The lower court also incorrectly applies the law stating, "[w]hile the gifts
may not constitute support in and of themselves, they along with [appellee]'s visitation
with her [child] and provision of some monetary support do provide evidence that the
petitioner has not met her burden of proof." (R. 49, Judgment Entry, 8-9.) This probate
court decision is unreasonable as it clearly merges separate questions of contact and
support into one issue. The question of whether a parent has met her burden of providing
de minimis contact or maintenance and support must be able to stand on its own. An
abundance of one cannot cure a deficiency in the other.
No. 15AP-118                                                                                8


       {¶ 19} Further, gifts by other members of appellee's family are gratuitously made
by the donor and cannot fulfill appellee's obligation of support. In re M.B. at ¶ 27. It was
improper for the probate court to consider such gifts in its decision. "[A.B.'s] family
members also provided Christmas and birthday gifts to [the child] during the one year
period immediately preceding the filing of the adoption petition." (R. 49, Judgment
Entry, 4.) These gifts can not be considered as support under R.C. 3107.07.
       {¶ 20} The probate court found that appellee purchased school supplies, birthday
and Christmas gifts, provided meals and spending during visitation periods and gave
money for the child to participate in activities during the visitation. (R. 49, Judgment
Entry, 3.) Taking this fact and examining the record and transcript, we find that appellee
only gave de minimis monetary gifts, or non-essential items. Appellee paid for some
school supplies, bought a pair of shoes and some clothes that the child received at
Christmas. Appellee also gave Christmas and birthday cards with money. Petitioner
stated that the child already had shoes and did not really wear the ones appellee
purchased. Petitioner also had requested help in purchasing a musical instrument for the
child but ended up buying the instrument without assistance. We note that in the first
half of the one-year period, appellee had regular visits in which appellee would provide a
meal. There were about seven or eight visits during the one-year period at which the child
received small amounts of spending money. Appellee stated that his money was intended
to be spending money for the child. The highest estimates would put the monetary value
of these gifts below $300 for both the items the child took with them from appellee's
home and the total of the spending money.
       {¶ 21} Reviewing the record, appellee has not presented any evidence of
justification for non-support. When a non-consenting parent fails to present any evidence
of justification for non-support, then the adopting parents only have the burden of
proving failure to support. In re Adoption of Masa. Thus, we do only examine whether
appellee failed to support the child.
       {¶ 22} It is clear that the majority of the gifts were meant as gifts for the child for
the child's enjoyment and not as support. The remaining items of some clothes and
possibly school supplies are de minimis and of such small value that they cannot be seen
as providing for the maintenance and support of the child, especially when it is clear the
No. 15AP-118                                                                           9


child already had sufficient clothes and toys. The probate court abused its direction in
coming to its decision. We find that petitioner, C.M., has proved by clear and convincing
evidence that appellee, A.B., has failed without justifiable cause to provide for the
maintenance and support of the child, K.L.M., as required by law.
      {¶ 23} The first and second assignments of error are sustained, and the third and
fourth assignments of error are rendered moot by our findings above.
      {¶ 24} We therefore reverse the probate court's decision and remand this case for
further proceedings.
                                                      Judgment reversed and remanded
                                                               for further proceedings.

                       KLATT and LUPER SCHUSTER, JJ., concur.
