Step-Parent Adoption: The Issue of Biological Parent Consent
Adopting a child generally requires written consent from the biological parents, pursuant to Ohio Revised Code 3107.06. The Ohio Supreme Court has emphasized that the right of a natural parent to the care and custody of his/her children is one of the most fundamental in law. Since adoption terminates that fundamental right, the Court has held that any exception to the requirement of parental consent to adoption must be strictly construed to protect the right of natural parents to raise their children.
A step-parent adoption petitioner, however, may avoid the consent requirement by demonstrating that: (1) the biological parent failed to provide financial support or provide more than de minimis contact in the year preceding the adoption petition and (2) the biological parent’s failure to support the child or have contact with the child was unjustified.
Ohio Revised Code 3107.07(A) specifically provides the exemption for parental consent as follows: “A parent of a minor, when it is alleged in the adoption petition and the court finds after proper service of notice and hearing, that the parent has failed without justifiable cause to communicate with the minor or to provide for the maintenance and support of the minor as required by law or judicial decree for a period of at least one year immediately preceding either the filing of the adoption petition or the placement of the minor in the home of the petitioner.” Ohio Revised Code 3107.07(A) is written in the disjunctive. Therefore, either a failure to communicate or a failure to provide support for one-year time period is sufficient to obviate the need for a parent’s consent. In re Adoption of McDermitt, 63 Ohio St.2d 301, 304 (1980).
To prevail, the step-parent petitioner must demonstrate both elements (the failure to financially support or communicate and the lack of justifiable cause) by clear and convincing evidence. Clear and convincing evidence is that which will “produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to be established.” In re Adoption of Holcomb, 18 Ohio St.3d 361, 368 (1985). The probate court determines justifiable cause by weighing the evidence of the natural parent’s circumstances for the statutory one-year period.
A possible justification seen in Ohio case law is a parent’s significant interference with the other parent’s communication with a child or significant discouragement of such communication. In the case, In re Adoption of J.D.T, 2012-Ohio-4537, (Ohio Ct. App. 7th Dist. Harrison Cty., 2012), the court held that minimal contact was justified when the residential parent significantly thwarts a non-residential parent’s ability to communicate with their child. This conclusion was based upon factors such as numerous phone calls made to the child without the child being permitted to speak and a letter sent to the child on a holiday. The same appellate court, however, distinguished the above case in a scenario where the parent knew where Mother and child were living for years before the adoption petition was filed, Mother’s phone numbers had not changed, and Mother made no attempt to conceal the child. In re Adoption of A.L.C., 2014-Ohio-4045 (Ohio Ct. App. 7th Dist. Belmont Cty. 2014).
With regard to the failure to provide for the maintenance and support of the child, Ohio courts have looked at the parent’s overall ability to pay in determining whether there was justifiable cause for failure to support a child. Courts will look at the amount of income from all sources and the entire financial situation, including the parent’s employment history. In re M.F., 2014-Ohio-3801 (Ohio Ct. App. 9th Dist. Summit Cty. 2014).
Several appellate districts have held that a non-custodial parent who regularly visits with the child and provides food, shelter and other necessities such as clothing, diapers or shoes for the child has provided sufficient maintenance and support to avoid the forfeiture of his or her right to consent to the adoption. In re Adoption of D.J.S., 2017-Ohio-8567 (Ohio Ct. App. 5th Dist. Tuscarawas Cty. 2017)(citing cases from the Third, Fourth and Sixth Appellate Districts).
The issue of biological parent consent in a step-parent adoption is a challenging one and Ohio courts have been quite strict in their statutory analysis to protect the fundamental rights of a parent.
by Laurel G. Stein