In re Adoption of M.B.

[Cite as In re Adoption of M.B., 131 Ohio St.3d 186, 2012-Ohio-236.]
IN RE ADOPTION OF M.B.
[Cite as In re Adoption of M.B., 131 Ohio St.3d 186, 2012-Ohio-236.]
De minimis monetary gifts from biological parent to minor child do not constitute
maintenance and support, because they are not payments as required by
law or judicial decree as R.C. 3107.07(A) requires—Probate court’s
determination whether financial contribution constitutes maintenance and
support for purposes of R.C. 3107.07(A) is reviewed for abuse of
discretion—Probate court’s determination whether parent has proved by
clear and convincing evidence justifiable cause for failing to pay child
support will not be disturbed on appeal unless it is against the manifest
weight of the evidence.
(No. 2011-0831—Submitted November 2, 2011—Decided January 25, 2012.)
CERTIFIED by the Court of Appeals for Summit County, No. 25304,
2011-Ohio-1215.
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SYLLABUS OF THE COURT
1. De minimis monetary gifts from a biological parent to a minor child do not
constitute maintenance and support, because they are not payments as
required by law or judicial decree as R.C. 3107.07(A) requires.
2. A probate court determination of whether a financial contribution constitutes
maintenance and support for purposes of R.C. 3107.07(A) is reviewed for
an abuse of discretion; but whether justifiable cause for the failure to pay
child support has been proved by clear and convincing evidence is a
separate question for the probate court and will not be disturbed on appeal
unless it is against the manifest weight of the evidence.
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SUPREME COURT OF OHIO
O’DONNELL, J.
{¶ 1} The Ninth District Court of Appeals certified two questions, which
we agreed to review: one, its decision that monetary gifts from a biological parent
to a minor child constitute maintenance and support for purposes of R.C.
3107.07(A) and thus trigger the requirement that parental consent is needed
before the adoption of the child is approved—which it found conflicts with In re
Adoption of McCarthy, 6th Dist. No. L-91-199, 1992 WL 23175 (Jan. 17, 1992);
and two, its decision that an appellate court should apply a de novo standard of
review to a probate court’s decision regarding whether a biological parent’s
financial gift constitutes maintenance and support of the child—which it found
conflicts with In re Adoption of Kat P., 5th Dist. Nos. 09CA10 and 09CA11,
2009-Ohio-3852.
{¶ 2} When a biological parent has failed to make any of the court-
ordered monthly child-support payments in the year preceding the filing of an
adoption petition, two de minimis gifts given to a minor child for Christmas and
the child’s birthday do not constitute maintenance and support for the purposes of
R.C. 3107.07(A). Accordingly, we answer the first certified question in the
negative.
{¶ 3} Further, we recognize that the petitioner in an adoption proceeding
bears the burden to prove by clear and convincing evidence the biological parent’s
failure to provide maintenance and support for a period of one year preceding the
filing of the adoption petition and to show that the parent’s failure was without
justifiable cause. A probate court determination of whether a financial
contribution constitutes maintenance and support for purposes of R.C. 3107.07(A)
is reviewed for an abuse of discretion; but whether justifiable cause for the failure
to pay child support has been proved by clear and convincing evidence is a
separate question for the probate court and will not be disturbed on appeal unless
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it is against the manifest weight of the evidence. Thus, we clarify the dual
standard of review for this question.
Facts and Procedural History
{¶ 4} M.B. is the biological daughter of Ann R. and Stephen B.,
appellee. They dissolved their marriage in 2000 in Florida, and the court granted
custody of M.B. to Ann and ordered Stephen to pay $1,000 per month through the
Florida Disbursement Unit as support for M.B. He made these payments until
February 2007. However, in December 2007, he sent M.B. a $125 gift card for
Christmas and in April 2008, $60 in cash for her birthday.
{¶ 5} Ann remarried in 2001, and on September 12, 2008, her husband,
Thomas, appellant in this case, filed a petition in the Summit County Probate
Court to adopt M.B. The petition alleged that Stephen had failed without
justifiable cause to provide for the maintenance and support of M.B. during the
year preceding the filing of the adoption petition and therefore his consent to the
adoption was not required by statute. Stephen objected to the adoption, denied
that he had failed to provide maintenance and support for M.B. in the year
preceding the filing, argued that he had given her both a Christmas gift and a
birthday gift, and claimed that he had had justifiable cause for failing to pay his
court-ordered child-support payments.
{¶ 6} A probate court magistrate determined that the gifts did not
constitute maintenance and support for purposes of R.C. 3107.07(A), that Stephen
had failed without justifiable cause to provide maintenance and support for the
year preceding the filing of the adoption petition, and that his consent was not
needed for the adoption to proceed. The probate court adopted the
recommendation of the magistrate.
{¶ 7} Stephen appealed, arguing that the gifts he had given to M.B.
constituted maintenance and support. Applying a de novo standard of review, the
appellate court reversed the decision of the probate court, held that gifts did
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constitute support, and concluded that the adoption of M.B. could not proceed
without Stephen’s consent. The court further stated:
Despite the lack of child support payments, Father’s monetary gifts
to M.B. evidenced his intent not to abandon his child. * * *
Although not child support pursuant to a judicial decree, those
monies served to provide additional financial support for the
benefit of the child. Accordingly, there was clear and convincing
evidence that Father provided for the maintenance and support of
M.B. during the adoption period by virtue of his two monetary
gifts to the child. Although Father’s total financial contribution to
the child's welfare was small, the timing of the contributions was
thoughtful and clearly evidenced his intent not to abandon the
child.
9th Dist. No. 25304, 2011-Ohio-1215, ¶ 17.
{¶ 8} The appellate court certified that its ruling conflicted with a
decision of the Sixth District Court of Appeals on the question whether a gift
constitutes maintenance and support and with a decision of the Fifth District
Court of Appeals on the applicable standard of review.
{¶ 9} The Sixth District held in the case In re Adoption of McCarthy, 6th
Dist. No. L-91-199, 1992 WL 23175, that gifts of $10 and $4 given from a
biological parent directly to a minor child on two separate occasions did not
constitute maintenance and support.
{¶ 10} And in the case of In re Adoption of Kat P., 5th Dist. Nos. 09CA10
and 09CA11, 2009-Ohio-3852, the Fifth District stated that an “[a]n appellate
court will not disturb a trial court’s decision on adoption unless it is against the
manifest weight of the evidence.” Id. at ¶ 12.
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January Term, 2012
{¶ 11} We accepted the following certified-conflict questions: (1) “When
a biological parent fails to provide any court ordered child support for one year,
do small monetary gifts paid directly to the child constitute the provision of
‘maintenance and support of the minor as required by law or judicial decree’ for
purposes of R.C. 3107.07(A)?” and (2) “When reviewing a probate court’s
decision regarding whether or not a biological parent’s financial contribution
constitutes ‘maintenance and support of the minor as required by law or judicial
decree’ for purposes of R.C. 3107.07(A), is the standard of review de novo or
whether the decision is contrary to the manifest weight of the evidence?” 128
Ohio St.3d 1555, 2011-Ohio-2905, 949 N.E.2d 42.
{¶ 12} Thomas urges that small monetary gifts paid by a parent directly to
a child do not constitute maintenance and support pursuant to R.C. 3107.07(A)
and further asserts that a probate court’s determination whether a biological
parent’s financial contribution constitutes maintenance and support can be
reversed only if it is contrary to the manifest weight of the evidence.
{¶ 13} Stephen argues that any financial contribution to a child constitutes
maintenance and support for purposes of R.C. 3107.07(A) and only the complete
failure to provide maintenance and support obviates the need for a biological
parent’s consent to adoption. He further contends that the proper standard of
review when interpreting statutory language is de novo.
{¶ 14} Accordingly, we are called upon to decide whether de minimis
monetary gifts from a biological parent to a minor child constitute maintenance
and support, thus requiring parental consent pursuant to R.C. 3107.07(A), and we
are further asked to clarify the standard of appellate review for these questions.
R.C. 3107.07(A)
{¶ 15} R.C. 3107.07(A) provides that consent to adoption is not required
of
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[a] parent of a minor * * * [who] 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 either the filing of the adoption
petition or the placement of the minor in the home of the
petitioner.1
{¶ 16} We are primarily concerned with determining whether the gifts
Stephen gave to M.B. are to be considered maintenance and support and whether,
based on those gifts, his consent to her adoption is required by R.C. 3107.07(A).
{¶ 17} We have previously 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.”
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).
{¶ 18} To determine whether a biological parent has failed to provide for
the maintenance and support of a child, we must first determine the meaning of
“maintenance” and “support” as those terms are used in R.C. 3107.07(A).
{¶ 19} In State ex rel. Steele v. Morrissey, 103 Ohio St.3d 355, 2004-
Ohio-4960, 815 N.E.2d 1107, ¶ 21, this court stated that when determining how to
construe a statute, “our paramount concern is the legislative intent in enacting the
statute.” To determine intent, we look to the language of the statute and the
purpose that is to be accomplished by it. Rice v. CertainTeed Corp., 84 Ohio
1. The legislature amended this statute in 2008, after Thomas filed his adoption petition, to state
that a court must find by clear and convincing evidence that a parent has failed to provide more
than de minimis contact or to provide maintenance and support before an adoption can proceed
without that parent’s consent. This change does not affect the issues presented here.
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January Term, 2012
St.3d 417, 419, 704 N.E.2d 1217 (1999). “When we conclude that a statute’s
language is clear and unambiguous, we apply the statute as written, * * * giving
effect to its plain meaning.” In re Estate of Centorbi, 129 Ohio St.3d 78, 2011-
Ohio-2267, 950 N.E.2d 505, ¶ 14. Further, this court construes a statute “as a
whole and give[s] [it] 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.” State ex rel. Myers v. Spencer Twp. Rural School
Dist. Bd. of Edn., 95 Ohio St. 367, 373, 116 N.E. 516 (1917); see generally R.C.
1.47(B) (in enacting a statute, it is presumed that the General Assembly intended
the entire statute to be effective).
{¶ 20} The General Assembly did not define the terms “maintenance” and
“support” in R.C. 3107.07(A). Black’s Law Dictionary 1039 (9th Ed.2009),
however, defines “maintenance” as “[f]inancial support given by one person to
another” and “support” as “[s]ustenance or maintenance; esp., articles such as
food and clothing that allow one to live in the degree of comfort to which one is
accustomed.” Id. at 1577. And, giving effect to every word in the statute, we
note that the maintenance and support required by R.C. 3107.07(A) is that which
is specifically “required by law or judicial decree.” Further, the statute directs
that the consent of a parent who has failed without justifiable cause to provide for
the maintenance and support required by law or judicial decree of a minor child
for a period of one year preceding the filing of the adoption is not required for the
adoption of the child. De minimis monetary gifts from a biological parent to a
minor child do not constitute maintenance and support, because they are not
payments as required by law or judicial decree as R.C. 3107.07(A) requires. To
decide otherwise would render the phrase “as required by law or judicial decree”
meaningless.
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Standard of review
{¶ 21} This court has held that it is a question of fact whether a parent of a
minor has willfully failed to provide for the maintenance and support of a minor
child. In re Adoption of Biddle, 168 Ohio St. 209, 216, 152 N.E.2d 105 (1958).
A probate judge has discretion to determine whether the biological parent
provided support as contemplated by R.C. 3107.07(A) “and his or her judgment
should not be tampered with absent an abuse of discretion.” See In re Adoption of
Bovett, 33 Ohio St.3d at 107, 515 N.E.2d 919 (Douglas, J., concurring); see also
In re Adoption of Charles B., 50 Ohio St.3d 88, 552 N.E.2d 884 (1990), paragraph
three of the syllabus (“adoption matters must be decided on a case-by-case basis
through the able exercise of discretion by the trial court”).
{¶ 22} We continue to adhere to Bovett, in which 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.” 33 Ohio St.3d 102, 515 N.E.2d 919, paragraph one of the
syllabus. We also remain mindful of the admonition in Santosky v. Kramer, 455
U.S. 745, 747-748, 102 S.Ct. 1388, 71 L.Ed. 2d 599 (1982), that “[b]efore a State
may sever completely and irrevocably the rights of parents in their natural child,
due process requires that the State support its allegations by at least clear and
convincing evidence.”
{¶ 23} R.C. 3107.07(A) does not require parental consent to adoption if
the parent either failed to communicate with or failed to support the child for a
minimum of one year preceding the filing of the adoption petition and if there was
no justifiable cause for the failure. In applying this statute, a probate court
undertakes a two-step analysis. First, to determine if a parent made a financial
contribution that comports with the requirements of R.C. 3107.07(A) to contribute
maintenance and support and second, if it finds a failure of support, then to
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determine whether justifiable cause for the failure has been proved by clear and
convincing evidence.
{¶ 24} And as we held in Masa and affirmed in Bovett, “[t]he question of
whether justifiable cause for failure to pay child support has been proven by clear
and convincing evidence in a particular case is a determination for the probate
court and will not be disturbed on appeal unless such determination is against the
manifest weight of the evidence.” In re Adoption of Masa, 23 Ohio St.3d 163, 492
N.E.2d 140, at paragraph two of the syllabus.
{¶ 25} Today, we answer the question raised by Justice Douglas in his
concurring opinion in Bovett—whether a parent’s making a single payment of
support or sending a Christmas card is sufficient support to frustrate R.C.
3107.07(A), or on the other end of the spectrum, whether a parent’s missing one
or two payments of support in the year preceding the filing of an adoption petition
negates the need for parental consent to adoption. A trial court has discretion to
make these determinations, and in connection with the first step of the analysis, an
appellate court applies an abuse-of-discretion standard when reviewing a probate
court decision regarding whether a financial contribution from a parent constitutes
maintenance and support for purposes of R.C. 3107.07(A).
{¶ 26} In the instant matter, a Florida court ordered Stephen to pay $1,000
per month as support for M.B., and he concedes that he failed to make any of
those payments between September 12, 2007, and September 12, 2008, the year
preceding the filing of the adoption petition. He did not provide for the
maintenance and support of the child as required by law or judicial decree.
Nonetheless, he contends that by providing M.B. with a $125 gift card for
Christmas and a $60 cash gift for her birthday, he provided maintenance and
support during the requisite year. However, these gifts were neither legally nor
judicially required, and they represent only a small portion of one monthly child-
support obligation and an even smaller portion of the annual obligation. A gift is
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a voluntary transfer of property to another made gratuitously by a donor. Bolles v.
Toledo Trust Co., 132 Ohio St. 21, 4 N.E.2d 917 (1936), paragraph one of the
syllabus. The Christmas gift card and birthday cash are de minimis gifts, not
maintenance and support triggering the requirement for Stephen’s consent to the
adoption, and they were not made pursuant to court order as the statute requires.
Thus, Stephen failed to provide maintenance and support to M.B. as required by
law or judicial decree for the year preceding the filing of the adoption petition.
{¶ 27} A biological parent’s consent to adoption would be required if that
parent could show by clear and convincing evidence some justifiable cause for the
failure to provide support. See In re Adoption of Bovett, 33 Ohio St.3d 102, 515
N.E.2d 919, at paragraph two of the syllabus. In this case, however, the probate
court concluded that no justifiable cause existed, and Stephen did not challenge
that determination in the court of appeals and does not dispute it here.
{¶ 28} The record before us demonstrates by clear and convincing
evidence that Stephen failed to provide maintenance and support without
justifiable cause for the year preceding the filing of the adoption petition, and thus
R.C. 3107.07(A) specifies that his consent to the adoption was not required.
Conclusion
{¶ 29} De minimis monetary gifts from a biological parent to a minor
child do not constitute maintenance and support, because they are not payments as
required by law or judicial decree as R.C. 3107.07(A) requires. Accordingly, we
answer the first certified question in the negative.
{¶ 30} A probate court determination of whether a financial contribution
constitutes maintenance and support for purposes of R.C. 3107.07(A) is reviewed
for an abuse of discretion; but whether justifiable cause for the failure to pay child
support has been proved by clear and convincing evidence is a separate question
for the probate court and will not be disturbed on appeal unless it is against the
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January Term, 2012
manifest weight of the evidence. Thus, we clarify the dual nature of the standard
of review on this question.
{¶ 31} Accordingly, the judgment of the appellate court is reversed, and
the judgment of the probate court is reinstated.
So ordered.
O’CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, LANZINGER, CUPP,
and MCGEE BROWN, JJ., concur.
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Carmen V. Roberto, for appellant.
Scot Stevenson, for appellee.
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