Ohio Supreme Court: Failure to Pay Child Support Means Parent’s Consent to Adoption not Required

March 9, 2020 by Robert Franklin, JD, Member, National Board of Directors

The Supreme Court of Ohio has ruled that a father’s consent to the adoption of his child is not necessary if he has missed as much as a single child support payment, or even a partial one. In so doing, the majority of the court ignored the plain wording of the applicable statute, a fact noted by two dissenting justices.

The child’s father and mother divorced in 2013. She received sole custody and he was ordered to pay support for the child who’s identified only as A.C.B. In 2015, the mother married another man who wanted to adopt A.C.B. The stepfather filed a petition to do so, alleging that A.C.B.’s father’s consent to the adoption wasn’t necessary. The salient portion of the applicable Ohio statute requires the father’s consent unless a 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 either the filing of the adoption petition or the placement of the minor in the home of the petitioner.

Apparently, the “de minimus contact” part of the law wasn’t at issue. So the only question was whether the father had provided support for the child within the year preceding the filing of the petition for adoption. And that question was answered in the affirmative. In fact, the father had made a child support payment within the week prior to the petition’s filing.

The plain wording of the statute and its interpretation in previous cases therefore required that no adoption could go forward without the father’s consent, which he refused to give. That should have closed the case, but it didn’t. The majority found a way to ignore the obvious requirements of the law and ruled that the father’s consent wasn’t necessary. How? By ignoring the plain words of the law and the rule of stare decisis that requires a court’s adherence to precedent. As one dissenting justice pointed out,

The majority, however, reads that one-year duration requirement out of the statute when it holds that a parent does not preserve the right to withhold consent to an adoption unless he or she strictly complies with the child-support obligation and makes each and every child-support payment throughout the year.

And, as the other dissenting justice made clear, the law in Ohio now is that, if a non-custodial parent misses a single support payment or even a part of one, his/her child can be placed for adoption and the parent will have no power to object. Child protective caseworkers and adoption agencies are, I assure you, taking note.

Now, it must be admitted that the facts of this case encouraged the justices to rule the way they did. In the first place, it’s a stepparent adoption, not one by a stranger. Therefore, the adoption system isn’t forcing adoption on one child who doesn’t need it while denying adoption to a child who does. More importantly, shortly after their divorce, the father moved back to his home country of Kosovo. He had a good job and could easily have made the support payments, but didn’t, a failure even he called “inexcusable.”

Still, the law is the law, or should be. This is a case in which the justices decided what outcome they wanted to reach and did so, irrespective of everything else. The real problem of course is that, as a state Supreme Court case, it’s binding precedent on all lower courts. Next time, the facts won’t so clearly militate in favor of adoption, but trial courts will be encouraged to do what the Supreme Court did, i.e. ignore the statutory language that clearly requires an entire year with no support before a parent’s consent can be dispensed with.

Meanwhile, a very wise person (whom I just happen to know) points out that, for ages we’ve been hammered by the concept that child support and child access are two separate things, that failure to pay support doesn’t impact one’s right to see one’s child and that the denial of access doesn’t mean the non-custodial parent can suspend support. That’s all fair enough and sensible.

But it’s hard to ignore the fact that the Ohio Legislature and the Supreme did just the opposite when it comes to adoption. When adoption’s at issue, then a non-custodial parent’s rights are entirely bound up in their payment (or lack thereof) of support. The parent’s rights depend entirely, not just on paying child support, but on paying all of it and on time.

Which thimble is the pea under? Who knows? Ohio keeps us guessing.