In re Adoption of O.N.C. , 191 Ohio App. 3d 72 ( 2010 )

[Cite as In re Adoption of O.N.C., 191 Ohio App.3d 72, 2010-Ohio-5187.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
CRAWFORD COUNTY
IN RE ADOPTION OF O.N.C. CASE NO. 3-10-10
OPINION
Appeal from Crawford County Common Pleas Court
Probate Division
Trial Court No. 000619
Judgment Affirmed
Date of Decision: October 25, 2010
APPEARANCES:
Geoffrey L. Stoll, for appellant, Brian C.
Joseph M. Strickland, pro se.
PRESTON, Judge.
{¶1} Petitioner-appellant, Brian C., appeals the judgment entry of the
Crawford County Court of Common Pleas, Probate Division, finding that consent
Case No. 3-10-10
from the biological father, appellee, Joseph Michael Strickland (“Strickland”), was
required before the adoption of his minor child could take place. For the reasons
that follow, we affirm.
{¶2} The facts of this case are largely not in dispute. O.N.C. is the
biological child of Anita C. and Strickland. Anita and Strickland were never
married. However, on January 2, 2002, the Crawford County Juvenile Court
designated Anita as the sole residential parent of O.N.C. and ordered Strickland to
pay Anita the sum of $165.76 per month for the support of O.N.C. Subsequently,
sometime at the end of 2006, Strickland became incarcerated.
{¶3} On December 8, 2009, a petition seeking the adoption of O.N.C. was
filed by her stepfather, Brian C., in the Crawford County Court of Common Pleas,
Probate Division. The petition alleged that consent from the child’s biological
father, Strickland, was not required, because Strickland had failed, without
justifiable cause, to provide for the maintenance and support of the child in the
year immediately preceding the filing of the petition. Along with the petition for
adoption, Anita filed a written consent to the adoption.
{¶4} A hearing on the petition was held on March 2, 2010. Only the
testimony of Tina Howell, who was the caseworker for the Crawford County
Department of Job and Family Services, Child Support Unit, was presented at the
hearing. Howell testified that part of her duties at the department was to monitor
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child-support payments, seek work orders from the court if those payments were
not being made, and then monitor the compliance of the work orders if issued. In
this particular case, Howell said that since January 22, 2002, Strickland had been
ordered to pay $165.76 per month for the support and maintenance of O.N.C. As
of February 2010, the total amount of the arrearage payments due from Strickland
was $7,672.02. In particular, with respect to the payments made by Strickland
from December 8, 2008 through December 8, 2009, Howell stated that Strickland
had paid only $86.89.1 As a result, Howell stated that based on her case file, for
the period of December 8, 2008, through December 8, 2009, Strickland was not
substantially current in his child-support obligations.
{¶5} On cross-examination, Howell acknowledged that prior to December
2008, Strickland had been close to being current on his child-support payments
and that as a result of his incarceration at the end of 2006, Strickland’s income had
1
The trial court noted in its judgment entry that the actual total amount paid by Strickland from December
8, 2008, through December 8, 2009, was $32.39 and not $86.89. When adding all of the individual
monthly payments testified to by Howell, we agree that despite Howell’s testimony, the actual total amount
paid by Strickland supported by the record was only $32.39.
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dramatically changed. Moreover, Howell acknowledged that despite Strickland’s
incarceration, he was still paying around 25 percent of what he was receiving as
his state pay. Nevertheless, Howell stated that even though he was incarcerated,
the department considered him to be voluntarily unemployed.
{¶6} At the conclusion of the hearing, the trial court issued an order
bifurcating the issues of parental consent and best interests of the child, and
granted Brian C. one week in which to file a written argument of the facts and
applicable law pertaining to the issue of whether consent from Strickland was
required. Strickland’s counsel had already filed her written argument and brief at
the commencement of the hearing. In Brian C.’s written argument, he argued that
consent from Strickland was not necessary based on the amended language in R.C.
3107.07(A), which had recently become effective on April 7, 2009. Specifically,
he argued that consent from Strickland was not required if he had failed to provide
“more than de minimis” maintenance and support for his child. Since it was clear
that Strickland had contributed only $86.892 for the entire one-year period
preceding the adoption petition, Brian C. argued that Strickland had clearly not
provided “more than de minimis” maintenance and support, and thus his consent
to the adoption was not required.
2
Again, the record indicates that Strickland only paid $32.39 in child-support payments.
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{¶7} On March 12, 2010, the trial court issued its decision finding that
consent from the biological father, Strickland, was required. Moreover, the trial
court found that since Strickland had contributed something, even if it was only
1.6 percent of his total obligation, his contribution was sufficient to require
consent before the adoption petition could be granted.
{¶8} Brian C. now appeals and raises one assignment of error for our
review.
Assignment of Error
The trial court’s finding that the consent of the biological
father was required is contrary to the April 7, 2009 amendment to
O.R.C. §3107.07.
{¶9} In his only assignment of error, Brian C. argues that the trial court
erred in finding that Strickland’s consent was required despite the new language in
R.C. 3107.07(A).
{¶10} At issue here is the interpretation of the most recent amendment to
R.C. 3107.07(A), which sets forth when consent from a child’s biological parent is
not required before adoption petition may be granted. In particular, the question is
whether the phrase “provide more than de minimis” pertains to both a biological
parent’s contact with the child and the maintenance and support of the child, or
only pertains to the biological parent’s contact with the child.
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{¶11} Statutory interpretation involves a question of law, and thus, our
review is conducted under a de novo standard of review. Dawson v. Dawson, 3d
Dist. Nos. 14-09-08, 14-09-10, 14-09-11, and 14-09-12, 2009-Ohio-6029, ¶45,
citing State v. Wemer (1996), 112 Ohio App.3d 100, 103, 677 N.E.2d 1258.
Consequently, we review the decision without deference to the trial court’s
interpretation. Id.{¶12} Parental consent is generally required before an adoption petition
can be granted. However, R.C. 3107.07 sets forth those circumstances under
which parental consent is not required. Prior to the newest amendment, R.C.
3107.07(A) provided:
A parent of a minor, when it is alleged in the adoption
petition and the court finds after proper service of notice and
hearing, that the parent has failed without justifiable cause to
communicate 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.
However, effective April 7, 2009, the language in R.C. 3107.07(A) was modified
by the legislature and now reads:
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
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one year immediately preceding either the filing of the adoption
petition or the placement of the minor in the home of the petitioner.
(Emphasis added.) As illustrated above, with respect to the amended statutory
provision, the legislature clarified that the evidentiary standard was clear and
convincing evidence, substituted the word “contact” for “communicate,” and
added the qualifying phrase “to provide more than de minimis.” It is this
particular qualifying phrase that is the subject of this appeal.
{¶13} Here, Brian C. alleged in his adoption petition that Strickland had
failed to provide maintenance and support as required by judicial decree for
O.N.C. At trial, Brian C. argued that consent from Strickland was not necessary
based on the new statutory language in R.C. 3107.07(A). Specifically, he argued
that under the new statutory language, as long as he showed by clear and
convincing evidence that Strickland had failed to provide “more than de minimis”
maintenance and support for his child, then Strickland’s consent was not required
for the adoption. Since Strickland had contributed only $86.893 for the entire one-
year period preceding the adoption petition, he had clearly failed to provide “more
than de minimis” maintenance and support, and thus, his consent to the adoption
was not required.
{¶14} The trial court disagreed with Brian C’s interpretation of the
statutory language, and found that “the qualifying adjective of ‘de minimis’ must
3
Again, the record indicates that Strickland paid only $32.39 in child-support payments.
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be applied to only the communication/contact side and could not be interpreted as
also applying to the support side.” The trial court also acknowledged that while
Strickland had paid only 1.6 percent of his total yearly obligation, under this
precedent, because Strickland had provided some support, it was sufficient to
require consent for the adoption.
{¶15} Brian C. claims that the trial court erred in interpreting the new
statutory language. In particular, he claims that the phrase “to provide more than
de minimis” pertains to both a parent’s contact and a parent’s maintenance and
support of their child, and thus, he only had to show that Strickland had failed to
provide more than a de minimis amount of maintenance and support. Again,
because Strickland had only paid $32.39 in child support, or 1.6 percent of his
total yearly obligation, it is clear that he had failed to provide more than a de
minimis amount of support, and thus, Brian C. claims that he was not required to
obtain Strickland’s consent for the adoption. We disagree.
{¶16} The primary goal of statutory interpretation is to arrive at the
legislative intent. Bailey v. Republic Engineered Steels, Inc. (2001), 91 Ohio St.3d
38, 39, 741 N.E.2d 121. The starting point is the statute’s language; if the
language is plain and unambiguous, the inquiry is over, the language must be
applied as written, and there is no need for the court to apply further rules of
statutory interpretation. Id., citing Provident Bank v. Wood (1973), 36 Ohio St.2d
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101, 105, 304 N.E.2d 378; State ex rel. Savarese v. Buckeye Local School Dist.
Bd. of Edn. (1996), 74 Ohio St.3d 543, 545, 660 N.E.2d 463. However, when the
statute’s language is ambiguous, the court may consider several factors, “including
the object sought to be obtained, circumstances under which the statute was
enacted, the legislative history, and the consequences of a particular construction.”
Id. at 40, citing R.C. 1.49; State v. Jordan (2000), 89 St.3d 488, 492, 733 N.E.2d
601.
{¶17} We recognize that there is a split among the appellate districts as far
as what level of support is necessary to satisfy R.C. 3107.07(A)’s “maintenance
and support” provision for requiring a biological parent’s consent before an
adoption of their child. Some districts, including this one, have held that any
meager contribution constitutes sufficient maintenance and support for requiring a
biological parent’s consent. In re Adoption of Allonas, 3d Dist. No. 3-01-27,
2002-Ohio-2723; Celestino v. Schneider (1992), 84 Ohio App.3d 192, 616 N.E.2d
581 (6th Dist.) (minimal support payment provided by natural father was sufficient
to preserve his consent as jurisdictional prerequisite to child’s adoption); Vecchi v.
Thomas (1990), 67 Ohio App.3d 688, 588 N.E.2d 186 (2d Dist.) (child could not
be adopted without biological father’s consent since biological father had made
support payments totaling $130 during one year preceding filing of adoption
petition, which prevented finding that he had failed to provide for maintenance
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and support of minor child). However, other districts have adopted a more
objective test, in which trial courts consider the totality of the circumstances
outside just whether the biological parent gave some amount of money. In re
Crandall, 1st Dist. No. C-060770, 2007-Ohio-855, ¶ 19-20 (finding that even
though parent had made some payments, the biological parent had voluntarily quit
her job and so the trial court’s finding that she had failed without justifiable cause
to provide adequate support and maintenance was supported by competent,
credible evidence); In re Adoption of Kilbane (1998), 130 Ohio App.3d 203, 719
N.E.2d 1012 (8th Dist.) (finding that biological parent had failed to support child
without justifiable cause since biological parent did not make any support
payments until just prior to filing of adoption petition and biological parent’s
claims that he was unemployed throughout most of the year were contradicted by
other evidence); In re Adoption of Wagner (1997), 117 Ohio App.3d 448, 690
N.E.2d 959 (11th Dist.) (finding that biological father had failed, without
justifiable cause, to provide maintenance and support for his minor child since
biological father paid less than 3 percent of his income in support even though he
had sufficient income, and biological father failed to obtain employment
commensurate with his level of education). Compare Gorski v. Myer, 5th Dist.
No. 2005CA00033, 2005-Ohio-2604, ¶17 (finding that biological father had
provided sufficient maintenance and support, and consent was required when
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biological father saw the child every other weekend and provided the child with
food, clothing, and toys) with Garner v. Greenwalt, 5th Dist. No. 2007 CA 00296,
2008-Ohio-5963, ¶ 32-33 (finding Gorski distinguishable and finding that in this
case evidence failed to establish that appellant provided support and maintenance
for children, and thus, consent was not required when even though biological
mother had some income and provided occasional necessities, adoptive parents
provided children with food, clothing, educational necessities, and medical
attention a majority of the time).
{¶18} Unfortunately, despite Brian C.’s arguments to the contrary, the
recent amendment to R.C. 3107.07(A) fails to clarify what level of support is
necessary to require a biological parent’s consent to an adoption. In fact, when
looking at the plain language of the statute, we believe that it is still not clear what
amount of support is necessary to require a biological parent’s consent. We note
that the repeated use of the word “provide” leads us to believe that “de minimis”
applies only to a parent’s contact. The statutory language prescribes that consent
is not necessary when “the parent has failed without justifiable cause to provide
more than de minimis contact with the minor child or to provide for the
maintenance and support of the minor.” (Emphasis added.) R.C. 3107.07(A).
Because the statute repeats the word “provide,” we believe that contact and
maintenance/support are to be treated separately; and because “de minimis”
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follows only the failure to provide contact to one’s child, we believe that contact
and maintenance/support are to be treated differently so that “de minimis” pertains
only to a parent’s contact. This interpretation is consistent with courts’ treatment
of R.C. 3107.07(A). Courts have made it clear that because R.C. 3107.07(A) is
written in the disjunctive, then either failure to communicate/contact or failure to
support during the one-year time period is sufficient to negate the need for a
biological parent’s consent. In re Adoption of McDermitt (1980), 63 Ohio St.2d
301, 304, 408 N.E.2d 680. As a result, an adoption petitioner need only establish
the biological parent’s failure to contact or failure to support, not both. In re
Adoption of Rodabaugh, 3d Dist. No. 5-05-33, 2006-Ohio-1419, ¶ 9, fn. 1, citing
In re Adoption of Miller, 3d Dist. Nos. 8-02-22, 8-02-23, 2003-Ohio-718, ¶ 16.
Therefore, along with our interpretation of the statutory language based on the
repeated use of the word “provide,” applying the qualifying phrase only to the
word “contact” would also be appropriate given prior courts’ treatment of R.C.
3107.07(A).
{¶19} Additionally, the legislative history of R.C. 3107.07(A) further
supports our conclusion that the legislature intended the qualifying phrase “more
than de minimis” to pertain only to a biological parent’s contact. In 2008, the
General Assembly enacted Sub.H.B. No. 7 (effective April 7, 2009), which
amended the requirements for bypassing consent from a biological parent when
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granting an adoption petition. Prior to the final version discussed above, the bill
originally provided for when the biological parent had to fail to “regularly
communicate” or “significantly provide for the maintenance and support” to their
child. (127th General Assembly Sub. H.B. No. 7, as introduced.) This was the
version that was passed in the House; however, it was ultimately amended by the
Senate Health, Human Services, and Aging Committee. In particular, the
committee replaced the House amendment’s language that the biological parent
failed to “regularly communicate” with the language that the biological parent
failed to “provide more than de minimis contact” with the minor child. (See
Synopsis of Senate Heath, Human Services, and Aging Committee Report to Sub.
H.B. No. 7, Legislative Service Commission, 127th General Assembly, Dec. 15,
2008). Furthermore, the committee also eliminated the qualifying term
“significantly,” which had qualified the biological parent’s failure to provide for
the maintenance and support, thereby leaving it the same as it had been before the
amendment. Id. It was this particular version, without a qualifying phrase
pertaining to “maintenance and support,” that was ultimately enacted and became
effective April 7, 2009.
{¶20} In light of the version of the bill passed by the House, it is clear that
the legislature’s original intent was to have qualifying phrases for both a parent’s
contact and a parent’s maintenance and support. However, the Senate committee
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amended the House’s version by changing the qualifying phrase with respect to a
parent’s contact (“more than de minimis”) and totally eliminated the qualifying
phrase with respect to a parent’s maintenance and support. Had the legislature
intended the qualifying phrase to apply to both a parent’s contact and to
maintenance and support, it would have included the qualifying phrase in the
statute. Instead, the committee amended the bill so that the qualifying phrase
pertained only to a parent’s contact, and it eliminated any other reference to a
parent’s maintenance and support. And it was ultimately this version (without a
qualifying phrase for a parent’s maintenance and support) that was enacted and
effective at the time Brian C. filed his adoption petition. 4
{¶21} Overall, based on the above, we find that R.C. 3107.07(A)’s
qualifying phrase “more than de minimis” pertains only to a biological parent’s
contact with the minor child and does not modify a biological parent’s
4
Furthermore, we note that there is proposed legislation pending before the 128th General Assembly,
which seeks to further amend the language in R.C. 3107.07(A). In particular, submitted S.B. No. 189 in its
current version adds a provision specifically defining the phrase “de minimis” and indicates that “de
minimis” was intended to apply only to a parent’s contact: “A parent has provided more than de minimis
contact with the minor if the parent has contacted the minor an average of one time per month during the
year immediately preceding the filing of the adoption petition or the placement of the minor in the home of
the petitioner.” (128th General Assembly Sub.S.B. No. 189.) Moreover, the proposed bill attempts to
clarify what it means to have failed to provide “maintenance and support” to a child: “a parent has failed to
provide for the maintenance and support of the minor as required by law or judicial decree if the parent
paid less than twenty-five per cent of the amount owed under a court child support order for the minor
during the preceding time period without justifiable cause.” Id. This proposed bill, while not binding
authority, further clarifies the legislature’s intent that the phrase “de minimis” in the amendment at issue
applied only to a parent’s contact with their child.
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maintenance and support of their minor child. Therefore, the trial court’s
interpretation was not in error.5
{¶22} Brian C.’s assignment of error is, therefore, overruled.
{¶23} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
Judgment affirmed.
WILLAMOWSKI, P.J., and SHAW, J., concur.
5
We note that Brian C. does not specifically challenge the trial court’s finding that Strickland had provided
some support, which was enough to require his consent, based on this court’s prior decision in In re
Adoption of Allonas, 3d Dist. No. 3-01-27, 2002-Ohio-2723. Therefore, we decline to discuss the
precedential value of our prior decision at this time.
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