[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as In
re Adoption of A.C.B., Slip Opinion No. 2020-Ohio-629.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2020-OHIO-629
IN RE ADOPTION OF A.C.B.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as In re Adoption of A.C.B., Slip Opinion No. 2020-Ohio-629.]
Adoption—R.C. 3107.07(A)—Whether a noncustodial parent has provided the
financial support necessary to preserve his or her right to withhold consent
to the adoption of his or her child is measured by the terms of the judicial
decree—Appellant-father failed without justifiable cause to comply with the
child-support obligations of the judicial decree for the one-year period
preceding the filing of appellee-stepfather’s adoption petition—Court of
appeals’ judgment affirming probate court’s judgment affirmed.
(No. 2018-1300―Submitted May 7, 2019―Decided February 26, 2020.)
APPEAL from the Court of Appeals for Lucas County,
No. L-18-1043, 2018-Ohio-3081.
_________________
DEWINE, J.
{¶ 1} A statute, R.C. 3107.07(A), provides that a parent’s consent to the
adoption of his child is not required when the parent has failed, without justifiable
SUPREME COURT OF OHIO
cause, to provide for the maintenance and support of the child as required by law
or judicial decree for a period of one year prior to the filing of the adoption petition.
The question before us concerns the import of the phrase “as required by law or
judicial decree.” The appellant is a biological parent who had been ordered by a
court to pay child support of $85 per week for a total of $4,420 a year. He did not
comply with the court order; rather, the only payment he made in the year before
the filing of the adoption petition was a single payment of $200. Both the probate
court and the court of appeals found that this single payment—constituting less than
5 percent of his annual obligation—did not amount to the provision of support as
required by law or judicial decree. We agree, and thus affirm the decision below.
Adoption of A.C.B.
{¶ 2} This case involves the adoption of a child. For ease of reference, and
in keeping with this court’s practice of protecting the identity of juveniles, we will
refer to the child by his initials, A.C.B.; we will refer to the party seeking to adopt
the child as stepfather; and we will refer to A.C.B.’s birth parents as mother and
father.
{¶ 3} A.C.B.’s parents dissolved their marriage in Indiana in 2013. The
decree of dissolution, which incorporated a settlement agreement between the
parents, awarded sole custody of A.C.B. to mother and ordered father to pay $85
per week in child support. Soon thereafter, father returned to Kosovo. After
leaving the United States, he made only sporadic child-support payments, which
diminished over time.
{¶ 4} Mother later moved to Ohio and married stepfather. In 2015, she
asked father if he would consent to stepfather adopting A.C.B. Father refused. In
2017, stepfather petitioned the probate court to adopt A.C.B. He alleged that under
R.C. 3107.07(A), father’s consent was not required because father had, without
justifiable cause, failed to provide maintenance and support as required by law or
judicial decree for the year preceding the filing of the adoption petition.
2
January Term, 2020
{¶ 5} The probate court held a hearing on whether father’s consent to the
adoption was required. The parties stipulated that in the year preceding the
adoption petition, father had made a single child-support payment of $200—a
payment that was made two days before the filing of the petition. At the time of
the hearing, father owed over $17,000 in child support. Father testified that his
income had increased substantially since the child-support order had been entered,
and that in the year prior to the filing of the adoption petition, he made close to
$58,000. He admitted that he could “have afforded without any problem” to pay
more in support than he did, but he chose not to make the payments. He told the
court that he “may have been worried [about] where the money [from his child-
support payments] was going.” Father apologized and described his payment
record as “inexcusable” for the year in question and said that he might have let his
emotions get the better of him.
{¶ 6} The probate court found that during the year preceding stepfather’s
adoption petition, father had failed to provide for the maintenance and support of
A.C.B. as required by the judicial decree and that his failure to do so was not
justifiable. The Sixth District Court of Appeals affirmed the probate court’s
judgment. 2018-Ohio-3081, 106 N.E.3d 1277. We accepted father’s discretionary
appeal. 154 Ohio St.3d 1422, 2018-Ohio-4496, 111 N.E.3d 20. In his lone
proposition of law, he asserts that under R.C. 3107.07(A), “provision of any
maintenance and support during the statutory one-year period is sufficient to
preserve a natural parent’s right to object to the adoption of their child.” (Emphasis
added.)
The plain language of R.C. 3107.07(A)
{¶ 7} R.C. 3107.07(A) provides that a natural parent’s consent to the
adoption of a minor child is not required when the court
3
SUPREME COURT OF OHIO
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.
(Emphasis added.) In construing the support clause of this provision, we have held
that the party seeking to adopt the child must 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. In
re Adoption of Bovett, 33 Ohio St.3d 102, 515 N.E.2d 919 (1987), paragraph one
of the syllabus, following In re Adoption of Masa, 23 Ohio St.3d 163, 492 N.E.2d
140 (1986), paragraph one of the syllabus. Father does not challenge the probate
court’s finding that he lacked justifiable cause for failing to make the required
payments. And he did not assign an error concerning justifiable cause below.
2018-Ohio-3081, 106 N.E.3d 1277, at ¶ 21, fn. 1. Thus, the only issue before us is
whether his lone $200 payment over the relevant one-year period constitutes
maintenance and support “as required by law or judicial decree.”
{¶ 8} The starting point—and because the language is clear, the ending
point—for our analysis is the text of the statute. The plain text of R.C. 3107.07(A)
instructs a trial court to determine whether a natural parent provided maintenance
and support “as required by law or judicial decree” for a period of at least one year
immediately preceding the filing of the adoption petition. Here, the judicial decree
sets forth precisely what father was required to pay: $85 per week, for a total of
$4,420 over the course of a year. Father did not pay what the judicial decree
required. He paid only $200 for the entire year before stepfather filed the adoption
petition. Thus, under the plain language of the statute, father did not “provide for
4
January Term, 2020
the maintenance and support” of A.C.B. “as required by law or judicial decree” for
the requisite one-year period.
{¶ 9} Despite the unambiguous terms of the statute, father asks us to hold
that the payment of any support at all when a child-support order is in place
constitutes the payment of support as required by law or judicial decree. Under this
view (shared by the second dissent), a parent’s consent is required unless there is a
complete absence of support in the year prior to the filing of the adoption petition.
Thus, a single $5 payment over the course of the year would suffice to protect the
parent’s right to consent. To reach this result, father looks to another portion of the
statute—the clause that provides that a parent’s consent is not required when the
court finds that the parent, without justifiable cause, has failed to have more than
de minimis contact with the child. R.C. 3107.07(A). He argues that because the
legislature inserted a “more than de minimis” qualifier in the contact clause, and
did not insert any qualifying language such as “de minimis, meager, or substantial”
in the support clause, the legislature intended for any payment of support, no matter
how meager, to suffice in preserving a parent’s right to withhold consent to the
adoption of a child.
{¶ 10} The problem with this argument is that it ignores the plain language
of the statute. Father is correct that the legislature did not choose to qualify the
amount of maintenance and support to be provided with any of his suggested terms,
but the legislature did include qualifying language: “as required by law or judicial
decree.” R.C. 3107.07(A). Whether father has provided the necessary support
under the statute is measured by the terms of the judicial decree.
{¶ 11} The first dissent presents a slightly different argument than father.
Though purporting to apply the plain language of the statute, it would essentially
read the phrase “as required by law or judicial decree” out of the statute. This
dissent zeroes in on the phrase “for a period of at least one year immediately
preceding * * * the filing of an adoption petition” and concludes that if there has
5
SUPREME COURT OF OHIO
been one child-support payment made during the year, then parental consent is
required. In other words, if someone is ordered to pay child support weekly, that
person need only make 1 of the 52 required payments for the year. But, of course,
that’s not what the statute says. It says consent is not required if the parent has
failed “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). Certainly, a parent who makes
only one payment during the year—and thus is substantially in arrears on that year’s
child support—has failed to provide support as required by law or judicial decree
for a period of at least one year preceding the filing of the adoption petition.
{¶ 12} To prop up its reading, the first dissent plucks a few phrases from
prior opinions and asserts that we have already decided the issue in front of us;
indeed, that stare decisis compels its preferred reading of the statute. Dissenting
opinion of Kennedy, J., at ¶ 34. That’s simply not true. In none of the cases cited,
did we address the issue presented here. In In re Adoption of M.B. and In re
Adoption of Sunderhaus, we referenced the one-year period as the applicable period
for determining whether the father had failed to support the child. 131 Ohio St.3d
186, 2012-Ohio-236, 963 N.E.2d 142, ¶ 23; 63 Ohio St.3d 127, 585 N.E.2d 418
(1992), paragraph two of the syllabus. But in neither case did we spell out what it
meant to fail to provide support “as required by law or judicial decree.” The other
case cited by the first dissent actually undercuts its argument. In In re Adoption of
Bovett, a father had failed to pay support for a one-year period, during three months
of which he was unemployed. 33 Ohio St.3d at 103, 515 N.E.2d 919. The court of
appeals had held that it was necessary to consider only the period of time in which
the father was unemployed in making the justifiable-cause determination. Id. In
the court of appeals’ view, “[i]f, during any part of the year prior to the filing of
the adoption petition, the nonsupporting parent had justifiable cause for not paying
support, he is not barred from objecting to the adoption.” (Emphasis added.) In re
6
January Term, 2020
Adoption of Bovett, 10th Dist. Franklin No. 86AP-429, 1986 WL 11771, *3 (Oct.
14, 1986). We rejected this construction and held that the entire one-year period
must be considered. In re Adoption of Bovett at paragraph three of the syllabus. In
other words, it wasn’t enough that the father had justifiable cause for failing to pay
support during the period that he was unemployed. He also had to have justifiable
cause for not paying during the rest of the year. Such a result would make no sense
under the first dissent’s reading of the statute. If a parent only needed to make a
single payment during the year to preserve his right to object, then logically, a
showing that there was justifiable cause for any missed payment during the year
would have been sufficient for the Bovett parent to preserve his right to object. (It’s
also worth noting that a concurring justice in Bovett explicitly criticized the
majority for failing to take advantage of the “opportunity” to provide guidance on
the proposition asserted by the first dissent here—“whether the making of one
payment of support during the year” would preserve the natural parent’s right to
consent.) Id. at 107 (Douglas, J., concurring).
{¶ 13} Father, like both dissents, seeks to justify his strained construction
of the statutory language by resorting to policy arguments and through the
invocation of the rights of natural parents. But of course, it is not only the interests
of the biological parent that are at stake but also the interests of the child—interests
that we have deemed “paramount.” See State ex rel. Booth v. Robinson, 120 Ohio
St. 91, 95, 165 N.E. 574 (1929). No question those charged with drafting of
legislation of this sort must undertake a difficult balancing involving the rights of
the child, the biological parents, and the potential adoptive parent. That policy
judgment, though, is one entrusted to the legislature to make—and where, as here,
its statutory command is clear, our role is to defer to the legislative judgment and
apply the language of the statute.
{¶ 14} Our decision today that the plain language of the statute controls is
consistent with this court’s precedent applying R.C. 3107.07(A). In In re Adoption
7
SUPREME COURT OF OHIO
of Holcomb, 18 Ohio St.3d 361, 481 N.E.2d 613 (1985), this court examined the
contact component of an earlier version of R.C. 3107.07(A). The statute referred
to parents who had “failed without justifiable cause to communicate with the
minor.” Id. at 366, quoting former R.C. 3107.07(A), Am.S.B. No. 205, Section 1,
138 Ohio Laws, Part I, 700. The court found that the “explicit language” of the
statute controlled. Id. at paragraph two of the syllabus. Because the legislature had
not qualified the term “communicate” with words like “meaningfully, substantially,
significantly, or regularly,” the court refused to add such terms to the statute.
(Italics sic.) Id. at 366-367. Similarly, here, the explicit language controls—
support is measured by what is required by law or judicial decree.
{¶ 15} Indeed, R.C. 3107.07(A)’s predecessor provided that parental
consent was not required if a parent failed to “properly” support the child. See
former R.C. 3107.06(B)(4), Am.S.B. No. 49, Section 1, 133 Ohio Laws, Part I, 72,
89. The legislature later removed the adjective “properly” and replaced it with the
phrase “as required by law or judicial decree.” See former R.C. 3107.07(A),
Am.Sub.H.B. No. 156, Sections 1 and 2, 136 Ohio Laws, Part I, 1839, 1845, 1859.
With this change, the legislature opted for an objective standard for determining
what amount of maintenance and support was required—the amount set forth by
law or judicial decree. See Charles R. Pinzone Jr., Ohio’s Exception to Consent in
Adoption Proceedings: A Need for Legislative Action, 36 Case W.Res.L.Rev. 348,
355 (1985).
A two-step analysis
{¶ 16} Of course, not every failure to provide maintenance and support as
required by law or judicial decree will mean that a parent’s consent to an adoption
is not required. Assessing whether a parent has failed to provide support as required
by law or judicial decree is just one step in the analysis. In this step, the statute
instructs a probate court to review a biological parent’s child-support payments for
a period of at least one year preceding the filing of the adoption petition.
8
January Term, 2020
{¶ 17} The next step requires that the adoptive parent prove by clear and
convincing evidence that the parent’s failure to provide maintenance and support
as required by law or judicial decree was without justifiable cause. R.C.
3107.07(A); In re Adoption of Bovett, 33 Ohio St.3d at 104, 515 N.E.2d 919. This
ordinarily will not be an easy showing to make. The clear and convincing standard
is the highest degree of proof available in civil cases. Stark Cty. Milk Producers’
Assn. v. Tabeling, 129 Ohio St. 159, 171, 194 N.E. 16 (1934). It requires evidence
that is sufficient to “produce in the mind of the trier of facts a firm belief or
conviction as to the facts sought to be established.” Cross v. Ledford, 161 Ohio St.
469, 120 N.E.2d 118 (1954), paragraph three of the syllabus. If the adoptive parent
cannot show by clear and convincing evidence that the biological parent’s failure
to provide support as required by law or judicial decree was without justifiable
cause, the parent’s consent to the adoption is still required.
{¶ 18} Not satisfied that the framework created by the legislature
adequately protects the biological parent, the dissenting justices propose that we
tweak the statutory language. They worry that in a hypothetical case, different from
the one in front of us, application of the statute as written might work too harsh a
result. Though they do not come right out and say so, the dissents seem to think
that the statutory modifications they propose are preferable to allowing the probate
court to make the justifiable-cause determination entrusted to it by the legislature.
But that’s a policy judgment—one that our Constitution leaves to the legislature to
make, not the judiciary. For our part, we ought not to adopt a construction that
“turn[s] the statute into a sham.” In re Adoption of Bovett at 106.
Father failed to provide support as required by the judicial decree
{¶ 19} Here, application of the statute is straightforward. The Indiana court
order required father to pay support of $85 per week, for a total of $4,420 over the
course of a year. Father did not even come close to doing what was required by the
judicial decree. He paid only $200 in the relevant one-year period (less than 5
9
SUPREME COURT OF OHIO
percent of his annual obligation) and had an arrearage of over $17,000. Thus, he
did not provide maintenance and support as required by law or judicial decree.
Further, the probate court found that he lacked justifiable cause for not complying
with the decree, and he did not challenge that finding below. Therefore, father’s
consent is not required for the adoption of A.C.B.
Conclusion
{¶ 20} In making a single $200 payment toward a $4,420 annual child-
support obligation, father failed to provide maintenance and support as required by
law or judicial decree. We affirm the judgment of the court of appeals.
Judgment affirmed.
O’CONNOR, C.J., and FRENCH, J., concur.
FISCHER, J., concurs in part and concurs in the judgment, with an opinion.
KENNEDY, J., dissents, with an opinion joined by DONNELLY, J.
STEWART, J., dissents, with an opinion.
_________________
FISCHER, J., concurring in part and concurring in judgment.
{¶ 21} I join in the majority’s decision to affirm the judgment of the Sixth
District Court of Appeals and its holding that appellant, A.C.B.’s father, failed to
provide maintenance and support as required by law or judicial decree. I
respectfully disagree, however, with the portion of the majority opinion’s analysis
concluding that R.C. 3107.07(A) is unambiguous. I accordingly concur in the
court’s judgment and in its holding that “whether [a parent] has provided the
necessary support under the statute is measured by the terms of the judicial decree.”
Majority opinion at ¶ 10.
{¶ 22} “A statute is ambiguous ‘if a reasonable person can find different
meanings in the [statute] and if good arguments can be made for either of two
contrary positions.’ ” (Brackets sic and emphasis deleted.) Turner v. Hooks, 152
Ohio St.3d 559, 2018-Ohio-556, 99 N.E.3d 354, ¶ 12, quoting 4522 Kenny Rd.,
10
January Term, 2020
L.L.C. v. Columbus Bd. of Zoning Adjustment, 152 Ohio App.3d 526, 2003-Ohio-
1891, 789 N.E.2d 246, ¶ 13 (10th Dist.). In this case, the parties have presented
different interpretations of R.C. 3107.07(A), and the viability of those
interpretations is illustrated by the contrary positions taken in the majority and
dissenting opinions. Notably, the justices of this court are not alone in their
differing interpretations of R.C. 3107.07(A). Ohio’s courts of appeals are similarly
divided on what the statute means. See, e.g., In re R.M., 7th Dist. Mahoning No.
07 MA 232, 2009-Ohio-3252, ¶ 75-76 (noting that some appellate districts have
determined that even a meager contribution to the child’s support could satisfy the
maintenance-and-support requirement of R.C. 3107.07(A), while other districts
have found that more than a meager contribution is required). I would accordingly
find R.C. 3107.07(A) ambiguous.
{¶ 23} “[W]here a statute is found to be subject to various interpretations, a
court called upon to interpret its provisions may invoke rules of statutory
construction in order to arrive at legislative intent.” Cline v. Ohio Bur. of Motor
Vehicles, 61 Ohio St.3d 93, 96, 573 N.E.2d 77 (1991). “To discern legislative
intent, we read words and phrases in context and construe them in accordance with
rules of grammar and common usage.” Mahoning Edn. Assn. of Dev. Disabilities
v. State Emp. Relations Bd., 137 Ohio St.3d 257, 2013-Ohio-4654, 998 N.E.2d
1124, ¶ 15. When interpreting a statute, “ ‘significance and effect should, if
possible, be accorded to every word, phrase, sentence and part of an act.’ ” Weaver
v. Edwin Shaw Hosp., 104 Ohio St.3d 390, 2004-Ohio-6549, 819 N.E.2d 1079,
¶ 13, quoting Wachendorf v. Shaver, 149 Ohio St. 231, 78 N.E.2d 370 (1948),
paragraph five of the syllabus. Furthermore, “we determine the intent of the
legislature by considering the object sought to be attained.” Symmes Twp. Bd. of
Trustees v. Smyth, 87 Ohio St.3d 549, 554, 721 N.E.2d 1057 (2000).
{¶ 24} Pursuant to R.C. 3107.07(A), a parent’s consent to adoption is not
required if the parent fails “without justifiable cause * * * to provide for the
11
SUPREME COURT OF OHIO
maintenance and support of the minor as required by * * * judicial decree for a
period of at least one year” prior to the filing of the adoption petition. In order to
give effect to the whole of R.C. 3107.07(A), we interpret the statute to provide that
a parent must comply with the terms of the judicial decree for at least the entire
year immediately preceding the filing of the adoption petition.
{¶ 25} Thus, the ambiguity inherent in the statute can be resolved by
referring to the specific terms of the judicial decree involved in each case. Here,
the judicial decree in this case required a payment of $85 per week, and therefore,
A.C.B.’s father was required to pay that amount each week in order to “provide for
the maintenance and support of the minor as required by * * * [the] judicial decree.”
Yet, on numerous occasions in the year prior to the filing of the adoption petition,
he failed to pay the weekly $85 amount. Thus, the terms of the judicial decree were
not met.
{¶ 26} This interpretation of R.C. 3107.07(A) is not unreasonable. I
acknowledge that we must strictly construe exceptions to the requirement of
parental consent to adoption in order to protect the rights of natural parents. In re
Adoption of P.L.H., 151 Ohio St.3d 554, 2017-Ohio-5824, 91 N.E.3d 698, ¶ 23. In
doing so in this case, however, we should not countenance the clear failure to abide
by the terms of the judicial decree as required by R.C. 3107.07(A). Because a single
payment of child support over the course of the applicable one-year period does not
constitute a full year’s compliance with a judicial decree that requires the parent to
make weekly payments, I agree with the conclusion reached in the majority
opinion.
{¶ 27} This interpretation squares with the requirements of R.C.
3107.07(A) as a whole. The statue provides that parents who fail without justifiable
cause to provide more than de minimis contact with a child for the year preceding
the adoption petition will lose the right to withhold consent to the adoption of that
child. It is more specific when addressing the provision of maintenance and
12
January Term, 2020
support. Instead of requiring the parent to have provided “more than de minimis”
maintenance and support, R.C. 3107.07(A) requires the parent to have “provide[d]
for the maintenance and support of the minor as required by law or judicial decree.”
These requirements are logical, as contact with a child is inherently difficult to
measure objectively, while compliance with a judicial decree can easily be
measured. Moreover, while one might argue that the provisions of R.C. 3107.07(A)
are incongruous with criminal statutory provisions addressing the failure to provide
child support, our task is to interpret the Revised Code, not to question the policy
choices of the General Assembly. Finally, this interpretation of R.C. 3107.07(A)
is not unconstitutionally vague, as R.C. 3107.07(A) puts parents on sufficient notice
that if they fail without justifiable cause to comply with the terms of a judicial
decree, they risk losing the right to withhold consent to an adoption.
{¶ 28} For these reasons, I respectfully concur in the court’s judgment and
in its holding that “whether [a parent] has provided the necessary support under the
statute is measured by the terms of the judicial decree.” Majority opinion at ¶ 10.
_________________
KENNEDY, J., dissenting.
{¶ 29} The statutory trigger to strip parents of their right to withhold
consent to their child’s adoption is based on time, not the amount of support paid
or unpaid. R.C. 3107.07(A) protects a parent’s right to withhold consent to the
adoption of his or her child unless the parent has failed without justifiable cause to
provide the maintenance and support required by a child-support order over a
period of at least one year prior to the filing of an adoption petition. Therefore, the
statute contains an express duration requirement—a period of one year—that must
be satisfied before the parent will be presumed to have abandoned his or her
parental rights and responsibilities and before the probate court may find an absence
of justifiable cause for the failure to provide support, thereby destroying the
13
SUPREME COURT OF OHIO
parent’s relationship with the child through adoption. Because the majority reads
the duration condition out of the statute, I dissent.
{¶ 30} In this case, looking back for a period of a year from the filing of the
adoption petition, A.C.B.’s father did not fail to make every child-support payment
for one full year. Rather, in the year preceding the filing of the adoption petition,
he paid some child support, a $200 payment shortly before the petition was filed,
in accordance with the parents’ Indiana decree of dissolution. Therefore, the court
of appeals erred in holding that A.C.B.’s father’s consent was not required before
the adoption could proceed. Accordingly, I would reverse the judgment of the court
of appeals.
{¶ 31} This case places us in familiar territory: statutory construction. Our
duty in construing a statute is to determine and give effect to the intent of the
General Assembly as expressed in the language it enacted. Griffith v. Aultman
Hosp., 146 Ohio St.3d 196, 2016-Ohio-1138, 54 N.E.3d 1196, ¶ 18; Fisher v.
Hasenjager, 116 Ohio St.3d 53, 2007-Ohio-5589, 876 N.E.2d 546, ¶ 20. R.C. 1.42
guides our analysis, providing that “[w]ords and phrases shall be read in context
and construed according to the rules of grammar and common usage.” Further, as
we explained in Symmes Twp. Bd. of Trustees v. Smyth, “[w]hen the language of a
statute is plain and unambiguous and conveys a clear and definite meaning, there
is no need for this court to apply the rules of statutory interpretation.” 87 Ohio
St.3d 549, 553, 721 N.E.2d 1057 (2000). Rather, “[a]n unambiguous statute is to
be applied, not interpreted.” Sears v. Weimer, 143 Ohio St. 312, 55 N.E.2d 413
(1944), paragraph five of the syllabus.
{¶ 32} R.C. 3107.07(A) provides that a parent retains his or her right to
withhold consent to the adoption of his or her minor child unless the court
finds by clear and convincing evidence that the parent has failed
without justifiable cause to provide more than de minimis contact
14
January Term, 2020
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.
(Emphasis added.)
{¶ 33} R.C. 3107.07(A) is unambiguous. Before a parent loses the right to
withhold consent to the adoption of his or her child, he or she must (1) without
justifiable cause (2) for a period of at least one year immediately preceding the
filing of the adoption petition either (3) fail to provide more than de minimis contact
with the child or (4) fail to provide for the maintenance and support of the child as
required by law or judicial decree.
{¶ 34} We have previously held that a parent does not lose the right to
withhold consent to an adoption unless he or she has “failed to support the child for
a minimum of one year preceding the filing of the adoption petition,” In re Adoption
of M.B., 131 Ohio St.3d 186, 2012-Ohio-236, 963 N.E.2d 142, ¶ 23, and we have
described R.C. 3107.07(A) as requiring a “one-year period of nonsupport,” In re
Adoption of Sunderhaus, 63 Ohio St.3d 127, 585 N.E.2d 418 (1992), paragraph two
of the syllabus. That is, “[t]he statute and the cases make clear that a failure either
to communicate with the child or to provide for the maintenance and support of the
child must be shown to have continued for an entire year before the issue of
justifiable cause is reached.” (Emphasis added.) In re Adoption of Bovett, 33 Ohio
St.3d 102, 105, 515 N.E.2d 919 (1987). The statute, we have stated, requires a
“complete failure to make any child support payments” during the one-year period.
(Emphasis added.) In re Adoption of Masa, 23 Ohio St.3d 163, 166, 492 N.E.2d
140 (1986). Stare decisis is most compelling when precedent involves statutory
construction, Rocky River v. State Emp. Relations Bd., 43 Ohio St.3d 1, 6, 539
15
SUPREME COURT OF OHIO
N.E.2d 103 (1989), and the majority fails to justify departing from stare decisis
today.
{¶ 35} In In re Adoption of Bovett, we rejected the invitation to overrule our
prior holding in In re Adoption of Masa that the petitioner for adoption had the
burden to prove, by clear and convincing evidence, that the natural parent of the
child had lost the right to withhold consent to the adoption. Rather, we held that
“[p]ursuant to R.C. 3107.07(A), the petitioner for adoption has the burden of
proving, 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.” (Emphasis added.) In re Adoption of Bovett at
paragraph one of the syllabus. The court recognized that only after the natural
parent has failed to provide any support for the child for the whole one-year period
does the probate court address the second step of the analysis regarding whether
that failure to provide support was justified. Id. at 105 (“The statute and the cases
make clear that a failure * * * to provide for the maintenance and support of the
child must be shown to have continued for an entire year before the issue of
justifiable cause is reached. Once such a failure has been proven, the probate court
must then decide whether that failure was without justifiable cause” [emphasis
added and citations omitted]). Put another way, the parent’s right to withhold
consent is in jeopardy only when the failure to provide support has continued for
the entire one-year period.
{¶ 36} At that point, the separate justifiable-cause analysis is triggered,
which, according to Bovett, permits the right to withhold consent to be terminated
if the petitioner proves that “the parent’s failure to support the child for that period
as a whole (and not just a portion thereof) was without justifiable cause.” (Emphasis
sic.) Id. at paragraph three of the syllabus. Because the focus is on the one-year
period as a whole, i.e., the entire duration—just as it is with the payment of
support—the existence of justifiable cause for a single missed payment during the
16
January Term, 2020
year is not by itself sufficient to preserve the right to withhold consent. Bovett
instructs the probate court to look at the year as a whole and decide whether the
petitioner proved that the complete failure to provide support was unjustified. In
Bovett, the father had failed to pay child support for one year, triggering the
justifiable-cause analysis. And looking at the whole year (not just a portion of it),
his unemployment for three months did not, standing alone, justify the failure to
provide any support for the entire year when he was gainfully employed for the
other nine months. As with the failure to provide support, the justifiable-cause
analysis looks at the totality of the one-year period, not the number of missed
payments, to decide whether the complete lack of support was without justifiable
cause. That focus is the same whether there appears to be justification for only 1
missed weekly payment or for 51 missed payments.
{¶ 37} But in any case, we have no occasion to consider the application of
a justifiable-cause analysis in this case. According to our precedent in Bovett, the
probate court never reaches the justifiable-cause analysis because the one-year
period of non-support did not occur. Because A.C.B.’s father did not completely
fail to provide child support for the full year preceding the adoption petition, Bovett
is distinguishable on that ground and the justifiable-cause analysis is not at issue.
{¶ 38} The General Assembly established this duration requirement for a
reason: the failure to contact or support the child for a period of one year raises a
presumption that the parent has abandoned his or her parental rights and
responsibilities. It has long been recognized that although parents have a
paramount right to the care and custody of their children, that right can be
voluntarily relinquished, or it can be lost by abandonment of the child or by
becoming totally unable to provide for the child’s support or care. See Reynolds v.
Goll, 75 Ohio St.3d 121, 123-124, 661 N.E.2d 1008 (1996); In re Perales, 52 Ohio
St.2d 89, 97, 369 N.E.2d 1047 (1977); Clark v. Bayer, 32 Ohio St. 299, 310 (1877).
In codifying these bases for the loss of parental rights, the statute made them more
17
SUPREME COURT OF OHIO
objective. Before the presumption arises, there must be a lack of contact or support
for the full 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 re Adoption of Sunderhaus, 63 Ohio St.3d
127, 585 N.E.2d 418, at paragraph two of the syllabus; In re Adoption of Bovett, 33
Ohio St.3d at 105, 515 N.E.2d 919. If so, that presumption may be rebutted by a
showing of justifiable cause. R.C. 3107.07(A).
{¶ 39} The General Assembly, as the sole arbiter of public policy, did not
use a payment threshold as the trigger to remove the right to withhold consent; it
used a temporal threshold: one year. 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. As Justice Stewart’s dissenting opinion points out, the
majority’s reasoning permits the filing of an adoption petition seeking to terminate
a noncustodial parent’s parental rights immediately upon a missed or partial child-
support payment. Dissenting opinion of Stewart, J., at ¶ 54. It is therefore
unnecessary under the majority’s interpretation of the statute for a probate court to
review the full one-year period, because it does not need to look any further back
than the last missed payment—and tellingly, the majority here looks no farther back
than two weeks.
{¶ 40} But if the General Assembly had intended to deprive a parent of his
or her right to withhold consent to an adoption when there was any failure to
provide maintenance and support within the preceding year, it could have easily
done so using that language. But it did not and instead required a failure to provide
maintenance and support for a period of at least one year. By separating the
duration requirement out from the rest of the statute, the majority takes a provision
protecting the right to withhold consent unless there is an ongoing, continuous
failure to provide support for a period of at least a year and replaces it with one that
18
January Term, 2020
makes any failure to comply with the child-support order within the year preceding
the petition a basis for eliminating the right to withhold consent. “[A] court may
not rewrite the plain and unambiguous language of a statute under the guise of
statutory interpretation,” Pelletier v. Campbell, 153 Ohio St.3d 611, 2018-Ohio-
2121, 109 N.E.3d 1210, ¶ 20, and we should not do so today.
{¶ 41} Moreover, when considered with other provisions in Ohio’s
statutory scheme, the majority’s analysis, taken to its logical conclusion, would
suggest that the General Assembly has provided more protections to a putative
father than to an established parent subject to a child-support order. Among other
grounds, a putative father’s consent is not required for adoption if he “has willfully
abandoned or failed to care for and support the minor.” R.C. 3107.07(B)(2)(b).
But under the majority’s holding today, a natural parent’s consent is not necessary
when he or she, without justifiable cause, has failed to make one child-support
payment. However, we have held that a putative father’s interest in a potential
relationship with a child is afforded “far less constitutional protection” than that
given to an established parent-child relationship. In re Adoption of H.N.R., 145
Ohio St.3d 144, 2015-Ohio-5476, 47 N.E.3d 803, ¶ 26. Nothing in the plain
language of R.C. 3107.07 indicates that the General Assembly intended to upend
that order.
{¶ 42} The majority also appears blind to the practical realities of domestic-
relations law. Although many people use a stepparent adoption to bring a blended
family together, it may also be misused as a tool for removing a natural parent from
a remarried parent’s life. “When families break apart, it is not uncommon for
parents to harbor feelings of pain, bitterness, and anger toward their former
partners. * * * For some parents, the opportunity to terminate the parental rights of
their ex-spouse provides the ultimate weapon in the arsenal of matrimonial
warfare.” Blair, Parent-Initiated Termination of Parental Rights: The Ultimate
Weapon in Matrimonial Warfare, 24 Tulsa L.J. 299, 300-301 (1989). Adoption not
19
SUPREME COURT OF OHIO
only eliminates the noncustodial parent’s parental rights and responsibilities—
including the right to visitation and to have a say in the child’s education and
religious affiliation—but also severs the child’s legal relationships with the parent,
grandparents, and other blood relatives. See generally R.C. 3107.15; State ex rel.
Allen Cty. Children Servs. Bd. v. Mercer Cty. Court of Common Pleas, Probate
Div., 150 Ohio St.3d 230, 2016-Ohio-7382, 81 N.E.3d 380, ¶ 31. Stepparent
adoption destroys those family ties by creating new ones. And because withholding
consent may be a noncustodial parent’s only defense in a stepparent-adoption
proceeding, loss of that right should not be premised on something so relatively
minor as a missed or untimely child-support payment. See 2 Haralambie, Handling
Child Custody, Abuse and Adoption Cases, Section 14:8, at 799 (3d Ed.2009) (a
stepparent adoption “is not easy, especially if the other birth parent is still living”).
{¶ 43} Yet today’s holding makes terminating a parent’s right to withhold
consent to adoption much easier, potentially allowing “[t]he fundamental liberty
interest of natural parents in the care, custody, and management of their child,”
Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982), to
be severed based only on a single, unjustified failure to make a court-ordered child-
support payment on time and in full. The majority’s holding is untenable in light
of the plain language of R.C. 3107.07(A), our case precedent construing it, and the
constitutional protections in favor of parental rights.
{¶ 44} The analysis of the concurring opinion fares no better. It concludes
that R.C. 3107.07(A) is ambiguous, and purporting to apply principles of statutory
construction, it states that “we interpret the statute to provide that a parent must
comply with the terms of the judicial decree for at least the entire year immediately
preceding the filing of the adoption petition.” Concurring opinion of Fischer, J., at
¶ 24. However, construing the statute to permit the termination of parental rights
upon a single, unjustified failure to make a court-ordered child-support payment
over a year-long period is manifestly unreasonable.
20
January Term, 2020
{¶ 45} Even if the concurring opinion were correct that the statute is
ambiguous, the interpretation it selects is fundamentally wrong for three reasons.
{¶ 46} First, deciding that R.C. 3107.07(A) is susceptible to multiple
reasonable constructions means that this court “must construe strictly [this]
exception to the requirement of parental consent to adoption in order to protect the
right of natural parents to raise and nurture their children.” In re Adoption of P.L.H.,
151 Ohio St.3d 554, 2017-Ohio-5824, 91 N.E.3d 698, ¶ 23. And between a
construction that protects the right to withhold consent unless the parent
unjustifiably fails to make all court-ordered child-support payments throughout the
year and one that revokes that right when the parent unjustifiably fails to make only
one of those payments, the strictest construction is the one prescribing that a single
payment of child support required by a judicial decree is sufficient to preserve the
right to withhold consent. The interpretation of the concurring opinion therefore
fails to acknowledge, much less safeguard, the fundamental right of a natural parent
to the care and custody of his or her child.
{¶ 47} Second, the view of the concurring opinion fails to read R.C.
3107.07(A) as a whole and to construe its provisions together with other related
statutes. See Hulsmeyer v. Hospice of Southwest Ohio, Inc., 142 Ohio St.3d 236,
2014-Ohio-5511, 29 N.E.3d 903, ¶ 22 (the in pari materia canon of construction
may be used to interpret ambiguous statutes). R.C. 3107.07(A) provides a second
ground for denying a parent the right to withhold consent to adoption: when the
parent “fail[s] without justifiable cause to provide more than de minimis contact
with the minor * * * for a period of at least one year.” This statute protects the right
to withhold consent if the parent has more than de minimis contact while not
requiring more than a de minimis payment of child support to preserve that right.
But more importantly, R.C. 3107.07(A) was not enacted to enforce child-support
obligations. As Justice Stewart’s dissenting opinion points out, R.C. 2919.21(B)
makes the failure to pay court-ordered child support a crime, and R.C. 2705.031
21
SUPREME COURT OF OHIO
subjects that failure to a court’s power of contempt. Dissenting opinion of Stewart,
J., at ¶ 53. The court’s decision to permit the termination of parental rights for
unjustifiably missing a single child-support payment is plainly incongruous with
the penalties imposed by these other statutes—the maximum criminal penalty for
missing a single child-support payment is a 180-day jail term and fine of $1,000,
R.C. 2919.21(G)(1); R.C. 2929.24(A)(1); R.C. 2929.28(A)(2)(a)(i), and the
contempt statute permits a maximum penalty of $250 and 30 days in jail for the
first offense, R.C. 2705.05(A)(1).
{¶ 48} Third, holding that R.C. 3107.07(A) is ambiguous means that this
statute, which affects the fundamental rights of parents, is unconstitutionally vague
and does not put a parent on fair notice that a single, unjustified failure to make a
court-ordered child-support payment could result in the termination of parental
rights. Although the vagueness doctrine is more commonly applied in reviewing
criminal laws and First Amendment claims, we have recognized that the prohibition
against vague laws also applies “in any case in which the statute challenged
substantially affects other fundamental constitutional rights.” Norwood v. Horney,
110 Ohio St.3d 353, 2006-Ohio-3799, 853 N.E.2d 1115, ¶ 87; see also United
States v. Davis, __ U.S. __, 139 S.Ct. 2319, 2323, 204 L.Ed.2d 757 (2019) (“In our
constitutional order, a vague law is no law at all”); Ashton v. Kentucky, 384 U.S.
195, 200, 86 S.Ct. 1407, 16 L.Ed.2d 469 (1966) (“Vague laws in any area suffer a
constitutional infirmity”).
{¶ 49} “The void-for-vagueness doctrine reflects the principle that ‘a statute
which either forbids or requires the doing of an act in terms so vague that [persons]
of common intelligence must necessarily guess at its meaning and differ as to its
application, violates the first essential of due process of law.’ ” Roberts v. United
States Jaycees, 468 U.S. 609, 629, 104 S.Ct. 3244, 82 L.Ed.2d 462 (1984), quoting
Connally v. Gen. Constr. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 70 L.Ed. 322 (1926).
It not only protects the public’s right to “fair notice of what the law demands of
22
January Term, 2020
them,” but also it maintains the separation of powers by ensuring that it is the
legislative branch of government itself that writes the law. Davis, ___ U.S. at ___,
139 S.Ct. at 2325. When the legislature passes a vague law, it is not the role of this
court “to fashion a new, clearer law to take its place.” Id. at 2323.
{¶ 50} Therefore, if the concurring opinion were correct that R.C.
3107.07(A) is ambiguous, such that reasonable people could differ as to its meaning
and application, then this statute has not given A.C.B.’s father fair notice that
missing even a single child-support payment without justifiable cause would result
in the termination of his parental rights. And it is not the role of this court to rewrite
the statute to make it clear.
{¶ 51} In any case, the General Assembly unambiguously required a one-
year period of nonpayment of child support in order to avoid the result reached by
the court today. Here, A.C.B.’s father stayed in contact with the child but missed
most, though not all, child-support payments required under the Indiana decree of
dissolution during the one-year period preceding the filing of the adoption petition.
But those facts alone do not trigger the presumption that he has abandoned his
parental rights and responsibilities. It is only if he failed to make any child-support
payments throughout that entire one-year period that the presumption would arise
and authorize the probate judge to determine whether there was “justifiable cause”
for the total nonpayment of child support. Therefore, A.C.B.’s father has retained
his right to withhold consent to A.C.B.’s adoption. For these reasons, I dissent and
would reverse the judgment of the court of appeals.
DONNELLY, J., concurs in the foregoing opinion.
_________________
STEWART, J., dissenting.
{¶ 52} “[T]he right of a natural parent to the care and custody of his children
is one of the most precious and fundamental in law.” In re Adoption of Masa, 23
Ohio St.3d 163, 165, 492 N.E.2d 140 (1986), citing Santosky v. Kramer, 455 U.S.
23
SUPREME COURT OF OHIO
745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). It is a constitutionally protected
right. In re Mullen, 129 Ohio St.3d 417, 2011-Ohio-3361, 953 N.E.2d 302, ¶ 11.
Because adoption terminates this fundamental right, any exception to the
requirement of a parent’s consent to the adoption of his or her child must be “strictly
construe[d]” to protect that right. In re Adoption of Holcomb, 18 Ohio St.3d 361,
366, 481 N.E.2d 613 (1985); see also In re Adoption of Masa at 165; In re Adoption
of Schoeppner, 46 Ohio St.2d 21, 24, 345 N.E.2d 608 (1976) (holding that
incarceration does not, as a matter of law, constitute a “willful failure” to support a
child for purposes of the statutory-consent requirement).
{¶ 53} R.C. 3107.07(A) sets forth Ohio’s statutory exceptions to a parent’s
right to withhold consent to the adoption of his or her child. It is a remedy for
children abandoned by a parent. R.C. 3107.07(A) was not enacted as a means to
enforce child-support obligations. In re Adoption of B.I., 157 Ohio St.3d 29, 2019-
Ohio-2450, 131 N.E.3d 28, ¶ 11. Nor was it enacted to punish a parent for not fully
complying with court-ordered child-support obligations. There are other statutes
that do this. R.C. 2919.21(B) criminalizes a parent’s failure to provide child
support as established by a court order. See State v. Pittman, 150 Ohio St.3d 113,
2016-Ohio-8314, 79 N.E.3d 531, ¶ 18. And R.C. 2705.031 authorizes contempt
actions for failure to pay child support. See Liming v. Damos, 133 Ohio St.3d 509,
2012-Ohio-4783, 979 N.E.2d 297, ¶ 16.
{¶ 54} Against this backdrop, we are asked to determine—in the context of
a situation involving court-ordered child-support payments—what R.C.
3107.07(A) means in setting forth that a parent’s consent to the adoption of a minor
child is not required when the court “finds by clear and convincing evidence that
the parent has failed without justifiable cause 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.” In
other words, what constitutes failure and thereby necessitates the justifiable-cause
24
January Term, 2020
analysis? Although the majority makes a point of noting that A.C.B.’s father, B.D.,
did not “come close” to paying the full amount of child support he owed, majority
opinion at ¶ 19, while also calling attention to the fact that B.D’s lone payment was
made only two days before the adoption petition was filed, the majority ultimately
holds that anything short of making all child-support payments is a failure to
provide support, necessitating a justifiable-cause analysis. I disagree.
{¶ 55} In In re Adoption of Holcomb, we held that the applicable version of
R.C. 3107.07(A) authorized adoption without a natural parent’s consent only in
cases in which there was a “complete absence of communication.” 18 Ohio St.3d
at 366-367, 481 N.E.2d 613. The version of R.C. 3107.07(A) in effect at the time
provided that a parent’s consent to the adoption of his or her child was not required
“ ‘when it is alleged in the adoption petition and the court finds * * * 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 * * * the filing of the
adoption petition.’ ” Id. at 366, quoting former R.C. 3107.07, Am.S.B. No. 205,
Section 1, 138 Ohio Laws, Part I, 700.
{¶ 56} We found that the General Assembly adopted an objective standard
for probate courts to use when analyzing a nonconsenting parent’s communication
with a child. Id. By not including qualifying language before “communicate,” the
legislature “opted for certainty” and “purposely avoided the confusion which would
necessarily arise from the subjective analysis and application of terms such as
failure to communicate meaningfully, substantially, significantly, or regularly.”
(Emphasis sic.) Id. We observed that it is not the role of the courts to add language
to the statute, id., and for this reason, we held that pursuant to the explicit language
of that version of R.C. 3107.07(A), only a “complete absence of communication
for the statutorily defined one-year period” was sufficient to allow for an adoption
without a parent’s consent, id. at 366-367.
25
SUPREME COURT OF OHIO
{¶ 57} The same analysis is relevant to a parent’s provision of maintenance
and support. By not including terms such as “completely,” “significantly,”
“meaningfully,” or “more than de minimis,” the legislature adopted an objective
standard for courts to use when determining whether a parent has failed to provide
maintenance and support as required by law or judicial decree under R.C.
3107.07(A). It is also worth noting that since our decision in In re Adoption of
Holcomb, the General Assembly has amended R.C. 3107.07(A) on multiple
occasions, and while the current version now requires a parent to have “more than
de minimis contact” with his or her child, the legislature has not made a
corresponding change to the “maintenance and support” requirement.1 The majority
opinion concludes that qualifying language such as meaningfully, substantially,
significantly, or regularly is unnecessary because support “is measured by what is
required by law or judicial decree.” Majority opinion at ¶ 14. I do not agree that
this phrase constitutes a measurement. “As required by law or judicial decree”
denotes the mechanisms by which support is required and rendered. To construe
the phrase as the measure of support required necessarily elevates one form,
“judicial decree,” over the other, “as required by law.” Nothing in the statute
indicates that this is what the legislature intended.
{¶ 58} Under the majority’s view, failure to support as required by judicial
decree is a simple and fixed measure: pay anything less than 100 percent of your
court-ordered child support and you have failed to provide support as required by
judicial decree. But how would a failure to support “as required by law” be
1. Effective April 7, 2009, the relevant language in R.C. 3107.07(A) was amended to its current
version. 2008 Sub.H.B. No. 7. The General Assembly changed the law to require that courts find
that a parent has failed without justifiable cause to maintain contact with a minor child or to provide
for the maintenance and support of a minor child by “clear and convincing evidence.” Additionally,
the General Assembly changed “communicate” to “provide more than de minimis contact.” In so
doing, it shifted from an objective to a subjective test regarding a parent’s communication or contact
with a child. Yet the legislature made no such change to a parent’s maintenance-and-support
requirement.
26
January Term, 2020
measured by anything other than a complete absence of support? Did the General
Assembly intend to impose a more exacting standard on parents who support their
children pursuant to a judicial decree than on parents who support their children
based on the duty to support as required by law? Because the legislature did not
differentiate between the two means by which a parent can provide support, there
is no meaningful distinction indicating that it intended for compliance with one
form of support to be analyzed or scrutinized more strictly than the other. For this
reason, I believe it is a mistake to construe a child-support payment, even a partial
one, made pursuant to a judicial decree as anything other than providing
maintenance and support for purposes of preserving a parent’s right to withhold
consent to the adoption of his or her child under R.C. 3107.07(A).
{¶ 59} Admittedly, the facts of this case engender little sympathy for B.D.
as a parent. But neither sympathy for B.D. nor the derision the majority exhibits
for B.D.’s payment history is a factor to be considered in this analysis. B.D. readily
acknowledged his lack of full compliance with the child-support order. But
suppose B.D. had come close to 100 percent compliance with the judicial decree,
missing only 5 percent of his court-ordered support payments? Under the
majority’s view, B.D. would still have failed to provide support for his child under
the statute, necessitating a determination by the probate court whether B.D.’s
failure to pay the 5 percent was justifiable. And suppose, as found by the probate
court in this case, B.D. had no justifiable cause for falling 5 percent short of his
obligations? Under the majority’s view, despite the fact that B.D. paid 95 percent
of his court-ordered support payments, he would have failed to provide
maintenance and support as required by judicial decree and would have no
justifiable cause for his failure. Could the probate court find justifiable cause when
there is none?
{¶ 60} I recognize the value of a probate court making justifiable-cause
determinations on a case-by-case basis. But under this statute, has a parent who
27
SUPREME COURT OF OHIO
has made less than 100 percent of his court-ordered child-support payments, with
no justifiable cause for falling short, forfeited his right to withhold consent to the
adoption of his child? Or has he just not fully complied with the court’s child-
support order? The majority finds the former.
{¶ 61} I acknowledge a court’s trepidation in appearing to countenance or
permit de minimis or sporadic payments of child support, particularly in instances
when a parent has the financial ability to comply fully with a child-support order.
But as previously mentioned, there are statutes in place to remedy the failure to
fully comply with court-ordered support. Potentially having one’s parental rights
terminated is not one of those remedies. I also acknowledge that, in isolation, the
majority’s view of the meaning of the phrase “as required by * * * judicial decree”
is not unreasonable. By the majority’s analysis, support required by judicial decree
is easily and objectively measured. Yet, support “as required by law” remains an
entirely subjective measure. This distinction further underscores why the
majority’s position, in context, is not in keeping with recognizing a parent’s
fundamental right to raise and care for his or her child. Any exception to the
consent requirement for adoption must be strictly construed to protect that right.
The majority’s position wholly fails to do so.
{¶ 62} Furthermore, the majority’s interpretation of the statute renders the
phrase “for a period of at least one year immediately preceding * * * the filing of
the petition” meaningless. Under the majority’s view, once a payment—or even
part of a payment—required pursuant to a support order is missed, the parent has
failed to provide maintenance and support as required by judicial decree. Knowing
the parent has missed a payment or any portion of a payment, a petitioner can, and
probably should, immediately file the adoption petition referencing that missed or
partial payment, which would inherently be within the one-year period preceding
the petition. This would of course render the one-year period illusory. See Boley
v. Goodyear Tire & Rubber Co., 125 Ohio St.3d 510, 2010-Ohio-2550, 929 N.E.2d
28
January Term, 2020
448, ¶ 21, quoting State ex rel. Myers v. Spencer Twp. Rural School Dist. Bd. of
Edn., 95 Ohio St. 367, 373, 116 N.E. 516 (1917) (we must “evaluate a statute ‘as a
whole and giv[e] such interpretation as will give effect to every word and clause in
it. No part should be treated as superfluous unless that is manifestly required, and
the court should avoid that construction which renders a provision meaningless or
inoperative’ ”).
{¶ 63} R.C. 3107.07(A) establishes the criteria courts must use to determine
whether a parent has forfeited his or her parental rights. The right to parent is a
fundamental one, and this court must strictly construe any exception to a parent’s
right to object to the adoption of his or her child. In re Adoption of Holcomb, 18
Ohio St.3d at 366, 481 N.E.2d 613. I would hold that under R.C. 3107.07(A), in
the context of a case with court-ordered child support, a parent who makes a child-
support payment or a portion of a child-support payment pursuant to a judicial
decree during the one-year period at issue has not failed to provide maintenance
and support and thus maintains the right to withhold consent to the adoption of his
or her child. Because the majority holds otherwise, I dissent.
_________________
The University of Toledo College of Law Legal Clinic, Robert S. Salem,
and April Johnson and Brianna Stephan, Certified Legal Interns, for appellant.
Semro Henry & Barga, Ltd., James L. Rogers, and Katrin E. McBroom for
appellee.
_________________
29