In re Adoption of P.L.H. (Slip Opinion) , 2017 Ohio 5824 ( 2017 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as In
re Adoption of P.L.H., Slip Opinion No. 2017-Ohio-5824.]
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. 2017-OHIO-5824IN RE ADOPTION OF P.L.H.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as In re Adoption of P.L.H., Slip Opinion No. 2017-Ohio-5824.]
Adoption—R.C. 3107.07(B)(2)(c)—Putative father’s consent to adoption is not
necessary if he has “willfully abandoned” birth mother—Putative father’s
failure to care for and support birth mother is not relevant basis for
proceeding with adoption without putative father’s consent—Inquiry
regarding willful abandonment focuses on whether clear and convincing
evidence establishes that putative father voluntarily or intentionally
deserted, forsook, or abdicated all responsibility for birth mother.
(No. 2017-0173—Submitted June 21, 2017—Decided July 18, 2017.)
APPEAL from the Court of Appeals for Butler County, No. CA2016-09-185,
2016-Ohio-8453.
_____________________
FRENCH, J.
{¶ 1} Appellant, C.W., the putative father of minor child P.L.H., appeals
the judgment of the Twelfth District Court of Appeals, which concluded that his
consent to the child’s adoption by appellees, K.H. and P.H., was not necessary
under R.C. 3107.07(B)(2)(c) because he “willfully abandoned” the birth mother
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during her pregnancy and up to the time of the child’s placement with the
appellees. For the reasons below, we reverse the judgment of the Twelfth District
and remand the matter to the probate court to vacate its adoption decree and to
dismiss the appellees’ adoption petition.
FACTS AND PROCEDURAL HISTORY
Events leading up to the child’s birth
{¶ 2} C.W. and the birth mother, S.C., met each other and became
friends while both were undergraduates at an Ohio university. C.W. graduated in
December 2013 and moved back to his native Louisiana in the spring of 2014, but
he maintained contact with S.C. In the fall of 2014, while still a student, S.C.
started a year-long internship in Orlando and lived with a family in Florida as its
nanny.
{¶ 3} In February 2015, S.C. visited C.W. in Louisiana during the Mardi
Gras holiday and stayed with him at his grandmother’s house. The child was
conceived sometime during that visit between February 14 and 18, 2015. After
returning to Florida, S.C. discovered that she was pregnant. She called C.W. on
March 5, 2015, to inform him that she was pregnant and that she wanted to place
the child for adoption with the appellees, who live in Tennessee and are
acquaintances of the family S.C. lived with in Florida.
{¶ 4} The parties do not dispute that C.W. and S.C. did not see each
other during her pregnancy. After the March 5, 2015 telephone call, they spoke to
each other one other time by telephone in early September 2015. During the
pregnancy, they exchanged text messages on March 6, March 13, April 3, April 5,
April 7, April 21, April 22, April 27, May 2, June 8, September 1, September 2,
September 3, September 9, October 10, and October 15, 2015.
{¶ 5} Although S.C. testified that she believed that C.W. initially
supported her decision to place the child for adoption, C.W.’s text messages
reflect his ambivalence about her decision. On March 6, the day after the phone
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conversation in which S.C. told him about the pregnancy, C.W. wrote, “I don’t
know [if I’ll] want it to be adopted or not. I won’t for a couple months.” C.W.
told S.C. that he was raised without a father and that he “made a vow” never to let
his own child grow up without a father. C.W. also stated that the decision is
“kinda up to both of us” and that he would find it “hard” to “act like it never
happened.” S.C. insisted that her “mind [was] made up,” even if C.W. wanted to
keep the child, and that she wanted the child to “have two parents and a stable
life.”
{¶ 6} During the early months of the pregnancy, communication
between C.W. and S.C. remained friendly and even affectionate, as reflected in
the following exchange of text messages on April 3, 2015:
C.W.: Is the baby healthy? You know the sex?
S.C.: Yes! And no I won’t find out for a couple more
months! I’ll let you know!
C.W.: Ok cool love you.
S.C.: Love you too! Thanks for checking on me! I’m in
South Carolina this weekend visiting my family for Easter!
***
C.W.: So how are we?
S.C.: We are good!
C.W.: Okay I have to ask cause I don’t see you and the
whole baby thing. And maybe you do or don’t know how I feel
about you but just making sure.
S.C.: I know you are a good guy! This doesn’t change
anything. We made a mistake, but it’s handled. I’m not worried
about it. I will always [be] here for you!
C.W.: Good. As I am for you.
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S.C.: I know :).
{¶ 7} From June 8 to September 1, 2015, a period of almost three
months, C.W. and S.C. did not communicate with each other. On September 2,
2015, S.C. sent a text message asking for C.W.’s address so that she could send
him a consent form for the adoption. C.W. gave his address, but he stated that he
would not sign anything until he talked to his mother. S.C. then called C.W.,
apparently the next day. She testified that she was “shocked” and caught off
guard that C.W. was “not okay with” the adoption. S.C. told C.W. that he needed
to contact her attorney and gave him the attorney’s telephone number.
{¶ 8} After the early September phone call, C.W. texted S.C. three times:
on September 9 to ask about the baby’s sex, on October 10 to wish her a happy
birthday, and on October 15 asking her to call him. Other than saying “thank
you” to his birthday greeting, S.C. did not respond to these messages.
{¶ 9} By way of a letter dated September 28, 2015, C.W.’s attorney gave
notice to S.C.’s attorney that C.W. sought sole custody of the child at birth and
objected to any adoption proceedings. Enclosed with the letter was a copy of
C.W.’s registration form for the Ohio Putative Father Registry, which had been
completed on September 4, 2015. The letter also stated that C.W. “is able to
assist the birth mother with her medical expenses associated with the pregnancy,
and necessary costs for her care. [C.W.] certainly does not want the birth mother
to believe she has been abandoned during her pregnancy, and we are willing to
ensure all appropriate bills are cared for as needed.”
Birth of child and adoption proceedings in probate court
{¶ 10} P.L.H. was born on November 3, 2015, in Butler County, Ohio.
The next day, S.C. filed an application in Butler County Probate Court to place
P.L.H. with the appellees as prospective adoptive parents. On November 6, 2015,
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the probate court approved S.C.’s application. On that same day, the appellees
filed their petition for adoption and S.C. filed her consent to the adoption.
{¶ 11} C.W. did not know of the child’s birth until he saw a photo of S.C.
on Facebook showing that she was no longer pregnant. After seeing the photo,
C.W. filed a complaint to establish paternity and a motion for temporary custody
on December 3, 2015, in Butler County Juvenile Court.1 On that same day, the
probate court issued a notice to C.W. that it had scheduled a hearing on the
appellees’ adoption petition. C.W. filed a timely objection indicating that he did
not consent to the adoption and that he sought to obtain sole custody of the child.
{¶ 12} On April 13, 2016, the probate court held a hearing, which
included testimony from S.C., C.W., and the appellees, to determine whether
C.W.’s consent was required for the adoption to proceed. The court later
concluded that his consent was not required under R.C. 3107.07(B)(2)(c) because
he “willfully abandoned [S.C.] during her pregnancy and up to the time of the
minor’s placement in the home of the Petitioners.” The court found that C.W. had
provided no financial support to S.C. during her pregnancy, even though he
earned approximately $70,000 during 2015. The court also found that C.W.’s
contact with S.C. during the entire period of her pregnancy and up to the child’s
placement was “sporadic,” as reflected in the nearly three-month gap in
communication from June 8 to September 1, 2015. And the court found that after
September 1, C.W.’s contact with S.C. was de minimis.
{¶ 13} The probate court, however, rejected the remaining grounds upon
which the appellees argued that C.W.’s consent was not required. The court
concluded that the appellees did not prove by clear and convincing evidence that
C.W. willfully abandoned or failed to care for and support the minor under R.C.
1
To date, C.W. has not established paternity in the juvenile court under R.C. Chapter 3111. On
February 23, 2016, C.W. gave notice to the probate court that the juvenile court had dismissed his
paternity complaint for lack of jurisdiction because of the adoption case already pending in
probate court and that he had not appealed that decision.
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3107.07(B)(2)(b). The court pointed to C.W.’s attorney’s letter of September 28
to the birth mother’s attorney, which stated C.W.’s intention to raise the child, and
to C.W’s complaint to establish paternity and motion to obtain custody filed in
juvenile court. The court also noted that C.W. had sent a letter to the appellees on
November 9, 2015, stating that he would reimburse them for all pregnancy
expenses, totaling approximately $8,500. The court additionally noted that
around December 10, 2015, C.W. had sent the appellees a check for $100,
designated as “child support” on the memo line, and that C.W. had purchased
baby furniture, bedding, clothes, and diapers and had prepared his home in
Louisiana for the child.
{¶ 14} After weighing the relative credibility of the witnesses, the probate
court also found insufficient evidence that the child was conceived as a result of
nonconsensual sexual relations instigated by C.W. The probate court concluded
that R.C. 3107.07(F) did not provide a basis for proceeding without C.W.’s
consent.
{¶ 15} The appellees also argued that requiring C.W.’s consent would
violate S.C.’s constitutional right under the Due Process Clause of the Fourteenth
Amendment to the United States Constitution to place her newborn for adoption.
The court found it unnecessary to address this argument given its conclusion that
C.W.’s consent was not required because he willfully abandoned the mother.
Finally, the appellees argued that C.W.’s consent was not necessary because
adoption would be in the best interest of the child. The court concluded that the
best interest of the child is not a valid ground for finding that a putative father’s
consent is not required under R.C. 3107.07.
{¶ 16} After determining that C.W.’s consent was not required, the court
made a separate determination under R.C. 3107.161 that adoption by the appellees
would be in P.L.H.’s best interest. The court issued orders on September 7, 2016,
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finding that C.W.’s consent was not required for the adoption to occur and
granting the appellees’ adoption petition.
The appeal
{¶ 17} C.W. appealed to the Twelfth District Court of Appeals, arguing
that the probate court’s determination that he willfully abandoned the birth mother
was against the manifest weight of the evidence. The appellees did not file a
cross-appeal of the probate court’s findings that they failed to establish other
grounds for the adoption to proceed without C.W.’s consent.
{¶ 18} The Twelfth District in a split decision affirmed the probate court’s
determination that C.W. willfully abandoned S.C. 12th Dist. Butler No. CA2016-
09-185, 2016-Ohio-8453, ¶ 19. The majority concluded that C.W. “never
provided [S.C.] with any support during her pregnancy, financial or otherwise.”
Id. at ¶ 20. The majority noted that C.W. did not call S.C. to inquire about her
pregnancy and instead communicated only though “sporadic” text messages and
then had no contact with S.C. for nearly three months from June to September
2015. Id. at ¶ 20, 21. While acknowledging that C.W. offered to assist with
S.C.’s medical expenses in his September 28, 2015 letter, the majority concluded
that the letter, sent “a mere 36 days” before the child’s birth, was “a far cry from
actually tendering that financial and emotional support.” Id. at ¶ 22. The
majority also noted that C.W. sent a $100 check to the appellees for “child
support” and purchased baby items and furniture. Id. at ¶ 18, 22. These attempts
to provide financial support, however, were directed to the child, not the mother,
and then only after the child’s birth. Id. at ¶ 22.
{¶ 19} The dissenting judge arrived at a different conclusion by pointing
to the differences between R.C. 3107.07(B)(2)(b) and (c). Under R.C.
3107.07(B)(2)(b), a putative father’s consent to adoption is not necessary if he
“willfully abandoned or failed to care for and support the minor.” (Emphasis
added). By contrast, R.C. 3107.07(B)(2)(c), which pertains to willful
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abandonment of the mother, does not contain the words “failed to care for and
support.” The dissenter therefore concluded that care or support for the mother
“has no relevance in determining whether the putative father willfully abandoned”
the mother. 2016-Ohio-8453, at ¶ 32 (Hendrickson, J., dissenting). Relying on
the common meaning of the word “abandon,” the dissenter concluded that the
record does not establish by clear and convincing evidence that C.W. “deserted,”
“forsook” or “relinquished all connection with” S.C. during her pregnancy. Id. at
¶ 33. “[A]lthough sporadic, [C.W.] always kept the door of communication open
and available” to S.C., and it was clear that S.C. had rejected any support from
C.W. Id. at ¶ 34, 35.
QUESTION PRESENTED
{¶ 20} We accepted C.W.’s appeal on the following proposition of law:
Whether a putative father “willfully abandoned” a mother
during her pregnancy, under R.C. 3107.07(B)(2)(c), does not
include a requirement that the putative father failed to provide care
and support to the mother.
ANALYSIS
The motion to dismiss
{¶ 21} We first address the appellees’ motion to dismiss this appeal, in
which they argue that C.W. has waived the argument he makes in his proposition
of law. C.W. argued in the Twelfth District that the probate court’s determination
of willful abandonment was against the manifest weight of the evidence. He did
not assert, however, the specific statutory argument addressed for the first time by
the Twelfth District’s dissenting judge—that care and support for the mother is
not relevant in determining whether a putative father willfully abandoned the
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mother under R.C. 3107.07(B)(2)(c). We nevertheless find that C.W. did not
waive the argument he presents in his proposition of law.
{¶ 22} In order to resolve the ultimate question before us, whether C.W.
“willfully abandoned” the birth mother, we must necessarily determine the
meaning of that phrase and address whether R.C. 3107.07(B)(2)(c) permits
consideration of the putative father’s failure to care for and support the mother.
“When an issue of law that was not argued below is implicit in another issue that
was argued and is presented by an appeal, we may consider and resolve that
implicit issue.” Belvedere Condominium Unit Owners’ Assn. v. R.E. Roark Cos.,
Inc., 67 Ohio St.3d 274, 279, 617 N.E.2d 1075 (1993), modified in part on other
grounds, Dombroski v. WellPoint, Inc., 119 Ohio St.3d 506, 2008-Ohio-4827, 895
N.E.2d 538, syllabus. Stated another way, “if we must resolve a legal issue that
was not raised below in order to reach a legal issue that was raised, we will do
so.” Id. We therefore deny the motion to dismiss and address the merits of
C.W.’s appeal.
Meaning of “willfully abandoned” under R.C. 3107.07(B)(2)(c)
{¶ 23} We begin with the premise that “the 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. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599(1982). Because adoption terminates those fundamental rights, we must construe
strictly any 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 Schoeppner, 46 Ohio St.2d 21, 24, 345 N.E.2d 608 (1976). And
because the meaning of “willfully abandoned” involves a question of statutory
construction, we review this issue de novo. See Lang v. Dir., Dept. of Job &
Family Servs., 134 Ohio St.3d 296, 2012-Ohio-5366, 982 N.E.2d 636, ¶ 12.
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{¶ 24} R.C. 3107.07(B) states that the consent of a timely registered
putative father is not necessary if the probate court finds either that the putative
father “has willfully abandoned or failed to care for and support the minor,” R.C.
3107.07(B)(2)(b), or “has willfully abandoned the mother of the minor during her
pregnancy and up to the time of her surrender of the minor, or the minor’s
placement in the home of the petitioner, whichever occurs first,” R.C.
3107.07(B)(2)(c).
{¶ 25} C.W. argues that R.C. 3107.07(B)(2)(c) does not make the putative
father’s failure to “care for and support” the mother during her pregnancy a
relevant basis for proceeding with an adoption without the putative father’s
consent. We agree.
{¶ 26} The statute makes a clear distinction between a putative father’s
actions toward the minor child and his actions toward the birth mother. With
respect to the minor, a putative father’s consent is not necessary if he “willfully
abandoned or failed to care for and support the minor.” (Emphasis added.) R.C.
3107.07(B)(2)(b). By contrast, R.C. 3107.07(B)(2)(c), which pertains to willful
abandonment of the mother, does not contain the words “failed to care for and
support.” A probate court’s determination under R.C. 3107.07(B)(2)(c) must
focus solely on whether the putative father “willfully abandoned” the mother.
{¶ 27} Both the probate court and the court of appeals majority relied on
C.W.’s lack of financial support for S.C. during her pregnancy as evidence that
C.W. willfully abandoned her. And the concurring opinion argues that the
putative father’s lack of financial support should factor as part of the court’s
analysis in determining whether he willfully abandoned the mother. We cannot,
however, add words to the statute. The express language in R.C.
3107.07(B)(2)(c) simply does not contain the words “failed to care for and
support.” A putative father’s failure to care for and support the minor child
provides a relevant basis under R.C. 3107.07(B)(2)(b) for determining that his
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consent to the adoption is not required. R.C. 3107.07(B)(2)(c), however, does not
make the failure to care for and support the mother a basis for proceeding with the
adoption without the putative father’s consent.
{¶ 28} The appellees and their amici curiae argue that a putative father
should be required to demonstrate tangible commitment to the mother by
providing financial, emotional or physical care and support. They raise a policy
concern, however, more properly addressed by the General Assembly. Until and
unless the legislature chooses to impose a greater burden on putative fathers, and
in light of our obligation to strictly construe any exception to the requirement of
parental consent before adoption, we must interpret the statute as written.
{¶ 29} To be clear, a putative father’s care and support for the mother
does not lose all relevance in adoption proceedings implicating R.C.
3107.07(B)(2)(c). If a putative father does provide care and support for the
mother, our holding does not constrain a probate court from considering the
father’s conduct as a factor to refute the allegation that he willfully abandoned the
mother. Financial support is one of many ways that a putative father could
demonstrate involvement in the mother’s life. R.C. 3107.07(B)(2)(c), however,
does not make the father’s failure to care for and support the mother a basis for
determining that his consent is not required. The statute does not equate the
failure to care for and support the mother with willful abandonment of the mother.
{¶ 30} Having determined what R.C. 3107.07(B)(2)(c) does not say, we
now turn to the question of what “willfully abandoned” actually means. In the
absence of a statutory definition, we look to the common usage of “willful” and
“abandon” to determine their intended meanings. See State ex rel. Data Trace
Information Servs., L.L.C. v. Cuyahoga Cty. Fiscal Officer, 131 Ohio St.3d 255,
2012-Ohio-753, 963 N.E.2d 1288, ¶ 49. The word “willful” is defined as
“[v]oluntary and intentional, but not necessarily malicious.” Black’s Law
Dictionary 1834 (10th Ed.2014). To “abandon” means “1. To leave (someone),
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esp. when doing so amounts to an abdication of responsibility. 2. To relinquish or
give up with the intention of never again reclaiming one’s rights or interest in. 3.
To desert or go away from permanently.” Id. at 1; see also Webster’s Third New
International Dictionary 2 (2002) (“abandon” means “to forsake or desert esp. in
spite of an allegiance, duty, or responsibility”).
{¶ 31} Using these common definitions, we conclude that a probate
court’s finding of willful abandonment under R.C. 3107.07(B)(2)(c) should focus
on whether the putative father voluntarily or intentionally deserted, forsook or
abdicated all responsibility for the birth mother during her pregnancy and until the
mother’s surrender of the child or placement of the child in the prospective
adoptive home, whichever occurs first.
Applying definition of “willfully abandoned” to evidence
{¶ 32} We turn next to the question whether the evidence in the record—
irrespective of C.W.’s failure to care for or support the birth mother—provides a
basis for the probate court’s determination that C.W.’s consent to the adoption is
not necessary because he willfully abandoned her. We have stated that due
process requires the party invoking an exception to the parental-consent
requirement to “ ‘establish each of [its] allegations’ ” by clear and convincing
evidence. (Emphasis sic.) Masa, 23 Ohio St.3d at 166, 492 N.E.2d 140, quoting
In re Adoption of Holcomb, 18 Ohio St.3d 361, 368, 481 N.E.2d 613 (1985);
accord Santosky, 455 U.S. at 747-748, 102 S.Ct. 1388, 71 L.Ed.2d 599. The
appellees therefore had the burden of establishing by clear and convincing
evidence that C.W. abandoned the birth mother during her pregnancy and that the
abandonment was willful. Whether willful abandonment has been proven by
clear and convincing evidence is a determination for the probate court and will
not be disturbed on appeal unless that determination is against the manifest weight
of the evidence. Masa at 166.
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{¶ 33} Ordinarily, upon a determination that the courts below applied the
wrong legal standard, we would remand the matter to the probate court or the
court of appeals to consider the evidence under the correct legal standard.
Remand for that purpose is not necessary here, however, because the record
contains no evidence, let alone clear and convincing evidence, to support a
finding that C.W. voluntarily or intentionally deserted, forsook or abdicated all
responsibility for S.C. during her pregnancy.
{¶ 34} In a letter dated September 28, 2015—more than a month before
P.L.H.’s birth—C.W. stated that he did “not want the birth mother to believe she
has been abandoned during her pregnancy” and offered “to assist the birth mother
with her medical expenses associated with the pregnancy, and necessary costs for
her care.” They exchanged text messages from March 6 through June 8, 2015,
and then from September 1 through October 15, 2015. In those messages, they
discussed matters relating to S.C.’s pregnancy and C.W.’s ambivalence about
placing the child for adoption. They also expressed care and affection for each
other and exchanged “I love yous” and assurances that they would support each
other. And as friends often do, C.W. communicated by text message to share with
S.C. important aspects of his life, such as his career plans, as well as mundane
details, such as how he had rearranged the furniture in his home. The record does
not demonstrate that C.W. deserted S.C. Rather, he sought to maintain open
communication with her. Indeed, even after their contentious early September
2015 phone call, C.W. texted S.C. three times. He texted on September 9 to ask
about the baby’s sex, on October 10 to wish her a happy birthday, and on October
15 asking her to call him. S.C. did not respond to these messages, aside from
saying “thank you” to his birthday greeting.
{¶ 35} The record also contradicts S.C.’s contention that C.W. never
inquired about the pregnancy. On April 3, 2015, C.W. initiated contact and
asked, “Is the baby healthy? You know the sex?” S.C. responded that she would
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not know for a couple of months but would let him know, to which C.W.
responded, “Ok cool love you.” S.C. then responded, “Love you too! Thanks for
checking on me!” On September 9, 2015, C.W. again asked whether the baby
would be a boy or a girl. S.C. never responded, even though she admits that she
knew the baby’s sex by then and had already told the appellees.
{¶ 36} The probate court and the court of appeals majority pointed to the
nearly three-month gap in communication from June to September 2015 as
evidence that C.W. abandoned S.C. R.C. 3107.07, however, does not mandate
consistent or frequent contact with the mother. The fact that C.W. demonstrated
continued involvement throughout her pregnancy is sufficient to refute the
allegation that he “abandoned” her under the ordinary meaning of the word.
{¶ 37} Moreover, the record contains conflicting evidence as to who
stopped communicating with whom. S.C. testified that C.W. “stopped talking” to
her for several months prior to September 2015. C.W. testified that he and S.C.
“talked day and night” before the pregnancy but that when S.C. realized that C.W.
did not want the adoption to proceed, she “severed” communications and stopped
responding to him. Given that S.C. stated her very clear intention to proceed with
the adoption without C.W.’s input or involvement, the communication gap was
just as likely the result of S.C. distancing herself from C.W. Indeed, it was C.W.
who sent the last text message before that nearly three-month gap, on June 8,
2015: “Thinking of you. Enjoy your day.” And it was C.W. who broke the nearly
three-month silence by sending S.C. a text message on September 1, 2015. The
record does not substantiate the conclusion that C.W. abandoned S.C. nor that any
silence in communication between the two parties was willful and intentional on
C.W.’s part.
{¶ 38} We conclude that the probate court’s determination that C.W.
willfully abandoned S.C. was both contrary to the express language in R.C.
3107.07(B)(2)(c) and against the manifest weight of the evidence. We therefore
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reverse the Twelfth District’s judgment and remand the matter to the probate
court to vacate its adoption decree and, for the further reasons explained below, to
dismiss the appellees’ adoption petition.
No remaining grounds for adoption to proceed
without putative father’s consent
{¶ 39} We also conclude that the appellees cannot assert any additional
grounds for proceeding with their adoption petition without C.W.’s consent. The
appellees argued below that requiring the consent of the putative father would
violate S.C.’s constitutional right as a birth mother to place her newborn for
adoption. The probate court construed this argument as an attack on the
constitutional validity of R.C. 3107.07(B). But it declined to rule on the merits of
the argument because of its finding that C.W.’s consent was not required.
{¶ 40} The appellees have reasserted their constitutional argument here.
We decline, however, to address the merits of that argument because the appellees
do not have standing to assert the constitutional rights of someone else. See N.
Canton v. Canton, 114 Ohio St.3d 253, 2007-Ohio-4005, 871 N.E.2d 586, ¶ 1;
Util. Serv. Partners, Inc. v. Pub. Util. Comm., 124 Ohio St.3d 284, 2009-Ohio-
6764, 921 N.E.2d 1038, ¶ 49 (“ ‘a litigant must assert its own rights, not the
claims of third parties’ ”), quoting N. Canton at ¶ 14.
{¶ 41} The appellees asserted before the probate court three additional
grounds for claiming that C.W.’s consent was not required. The court rejected
those arguments, and the appellees did not file a cross-appeal of those findings.
Because the appellees have not asserted any other bases for the adoption to
proceed without C.W.’s consent, our ruling here conclusively resolves the
appellees’ adoption petition.
CONCLUSION
{¶ 42} As a final matter, we acknowledge that all parties have the child’s
best interest at heart and that our decision is the end result of a process in which
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we must choose between two imperfect and unsatisfying options. This appeal
charges us with the unenviable task of reaching a result that either overrides the
adoption plan of a diligent birth mother and separates P.L.H. from the only home
he has ever known or that terminates permanently C.W.’s fundamental right to
raise and nurture his child. In light of our responsibility to strictly construe any
exception to the requirement of parental consent to adoption and based on the
specific facts of this case, we reverse the judgment of the Twelfth District Court
of Appeals and remand the matter to the probate court to vacate the adoption
decree and to dismiss the appellees’ adoption petition.
Judgment reversed
and cause remanded.
O’DONNELL, KENNEDY, O’NEILL, and FISCHER, JJ., concur.
DEWINE, J., concurs in judgment only, with an opinion joined by
O’CONNOR, C.J.
_____________________
DEWINE, J., concurring in judgment only.
{¶ 43} I concur with the majority’s conclusion that the evidence does not
support a finding that C.W. willfully abandoned P.L.H.’s birth mother, S.C.,
during her pregnancy. But I am compelled to write separately because I believe
that the majority’s analysis strays from the plain meaning of the phrase “willfully
abandoned” and unnecessarily limits the evidence that a lower court may consider
in determining whether a putative father has willfully abandoned an expectant
mother.
{¶ 44} The statute at issue provides that a putative father’s consent to
adoption is not required if he “willfully abandoned the mother of the minor during
her pregnancy and up to the time of her surrender of the minor, or the minor’s
placement in the home of the petitioner, whichever occurs first.” R.C.
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3107.07(B)(2)(c). The majority notes the dictionary definitions of the words that
make up the phrase “willfully abandoned”:
The word “willful” is defined as “[v]oluntary and intentional, but
not necessarily malicious.” Black’s Law Dictionary 1834 (10th
Ed.2014). To “abandon” means “1. To leave (someone), esp.
when doing so amounts to an abdication of responsibility. 2. To
relinquish or give up with the intention of never again reclaiming
one’s rights or interest in. 3. To desert or go away from
permanently.” Id. at 1; see also Webster’s Third New International
Dictionary 2 (2002) (“abandon” means “to forsake or desert esp. in
spite of an allegiance, duty, or responsibility”).
Majority opinion at ¶ 30. The majority should have begun and stopped there.
The record demonstrates that under these common definitions of the words, C.W.
did not willfully abandon S.C. He did not abdicate all responsibility toward her.
That is all that is needed to decide the case.
{¶ 45} The majority, however, goes beyond the ordinary meaning of
“abandon” and provides additional guidance about what the phrase “willfully
abandoned” means. In doing so, the majority unnecessarily limits a lower court’s
consideration of financial support. This limitation has little relation to the plain
language of the statute.
{¶ 46} Rather than starting with the plain language of the statutory
provision at issue, R.C. 3107.07(B)(2)(c), the majority chooses to begin its
analysis by looking at another statutory provision, R.C. 3107.07(B)(2)(b). That
statute provides another avenue for finding that a putative father’s consent to
adoption is not required—if he “willfully abandoned or failed to care for and
support the minor.” The majority postulates that because this statute includes the
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words “failed to care for and support” in addition to “willfully abandoned” and
R.C. 3107.07(B)(2)(c) does not, the probate court and the court of appeals erred
when they considered C.W.’s lack of financial support in determining whether he
had willfully abandoned S.C. In the majority’s view, lack of financial support can
never be relevant to the question whether a putative father willfully abandoned a
pregnant mother.
{¶ 47} But that makes little sense. Under a plain reading of the term
“willfully abandoned,” the failure to provide financial support is something that
may have relevance to the determination. Turn back to the definitions of
abandon. The first definition emphasizes “abdication of responsibility”—no
question failing to provide financial support could be relevant here. Next, “to
relinquish or give up with the intention of never again reclaiming one’s rights or
interest in”—again, it is hard to see how the failure to provide financial support to
the mother couldn’t be relevant to a determination whether the father has
voluntarily relinquished his rights. Third, “to desert or go away from
permanently”—once again, it is pretty clear that lack of financial support is
conceivably relevant to a determination whether the father has voluntarily
deserted the mother. To acknowledge that the lack of financial support could be
evidence of abandonment does not add words to the statute; to the contrary, it
gives effect to the plain meaning of the statute’s words.
{¶ 48} True, the failure to provide financial support by itself cannot be
determinative in the analysis. None of the definitions regarding willful
abandonment deals solely with the failure to provide financial support. That
financial support cannot by itself be determinative is reinforced by the
legislature’s decision to make care and support a separate factor under R.C.
3107.07(B)(2)(b) but not under R.C. 3107.07(B)(2)(c). Thus, the lack of financial
support is relevant under the statutory scheme only to the extent that it sheds light
on the issue whether the father willfully abandoned the mother.
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{¶ 49} This case is a good illustration of why the lack of financial support
is not dispositive. C.W. may not have sent S.C. money during her pregnancy, but
his other actions—his telephone calls and text messages—evince his intent not to
abdicate his responsibility. Yet, in another set of circumstances, a putative
father’s failure to financially support a pregnant mother could be relevant. What
of a millionaire putative father who ignores the pleas for help of an expectant
mother who has no resources? Are the courts to ignore his failure to provide
financial support? No doubt such a lack of support is probative of the
millionaire’s abdication of responsibility. The lack of support should not be the
only factor considered in deciding whether the father willfully abandoned the
mother, but it should be a part of the court’s analysis.
{¶ 50} The majority opinion gets even more curious when it says that
even though the failure to provide financial support may not be considered, the
provision of financial support may be considered. That’s certainly a
headscratcher.
{¶ 51} On the one hand, the majority argues that lack of financial support
cannot be considered as evidence of willful abandonment because the words “care
for and support” don’t appear in R.C. 3107.07(B)(2)(c). Yet, somehow, the
absence of the words in the statute doesn’t prevent the courts from considering the
converse—a putative father’s provision of financial support.
{¶ 52} What the majority apparently means is that while the father’s
failure to provide financial support can’t be held against him, it can be used as a
factor in his favor. But this makes little sense. After all, the question is about the
construction of “willfully abandoned.” Financial support either may have some
relevance to the determination or it may not have relevance to the determination.
If what we are doing is simply applying the plain meaning of “willfully
abandoned,” it is hard to see how financial support counts in the analysis but the
lack of support doesn’t count at all.
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{¶ 53} Far from providing lower courts guidance to aid their
determination whether willful abandonment has occurred, the majority opinion
confuses matters more. I would keep it simple: the failure to provide financial
support is not dispositive but may properly be considered part of the
determination whether the father has “willfully abandoned” the mother under R.C.
3107.07(B)(2)(c).
{¶ 54} In determining whether willful abandonment has occurred, a
probate court should look to the plain meaning of the phrase. Its focus should be
on whether the father has voluntarily abdicated all responsibility toward the
mother, whether he has voluntarily given up his rights, and whether he has
voluntarily deserted the mother during her pregnancy. We should not
unnecessarily limit the evidence that a probate court may consider in its inquiry.
Financial support as well as phone conversations, letters, and text messages
may—in an appropriate case—be proper considerations. But they are relevant
only to the extent that they inform the question whether the father willfully
abandoned the mother.
{¶ 55} I did not vote to accept the discretionary appeal in this case,
because it seemed to be simply about the weight of the evidence rather than about
an error of law. After reviewing the record and the parties’ arguments, my
opinion in that regard has not changed. The full court having chosen to accept the
appeal—and having conducted my own independent review of the evidence—I
am convinced that the probate court’s decision was against the manifest weight of
the evidence. Thus, I concur in the majority’s judgment.
{¶ 56} But I concur only in its judgment, because in applying R.C.
3107.07(B)(2)(c), I feel constrained to stick to the plain and ordinary meaning of
the phrase “willfully abandoned.”
O’CONNOR, C.J., concurs in the foregoing opinion.
_____________________
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January Term, 2017
Voorhees & Levy, L.L.C., and Michael R. Voorhees, for appellees.
The Farrish Law Firm and Michaela M. Stagnaro, for appellant.
Faruki, Ireland, Cox, Rhinehart & Dusing, P.L.L., and Ruth T. Kelly,
urging affirmance for amicus curiae Ohio Adoption Law Roundtable.
Barbara T. Ginn, urging affirmance for amicus curiae S.C., birth mother.
Landis Terhune-Olaker, urging affirmance for amicus curiae Adoption
Circle.
Mary Beck; and Susan Garner Eisenman, urging affirmance for amicus
curiae American Academy of Adoption Attorneys.
___________________________
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