A parent under a court order to have no contact with his children did not lose his right to consent to their adoption because he was not in regular contact with them, the Supreme Court of Ohio ruled today.

Ohio law generally requires a parent’s consent for an adoption to move forward. But parents can lose their right to consent if they fail to maintain more than “de minimis” contact for one year prior to the filing of an adoption petition. A divided Supreme Court found that under R.C. 3107.07, abiding by a no-contact order enables a parent to retain the right to consent to the adoption of minor children without meeting the statutory requirement to remain in contact with the children.

In the Court’s lead opinion, Justice Melody Stewart explained that the Supreme Court’s 2019 case, In re Adoption of B.I. applied to the facts of the case. B.I. set up a test to determine how to apply R.C. 3107.07, the law that removes a parent’s right to consent to an adoption if the parent fails to remain in contact with the children or fails to provide required maintenance and support.

Justice Stewart wrote that compliance with a court’s “no contact order” exempts the parent from the contact requirement. The Court granted the father of two girls, identified as A.K. and C.K., the right to object to the girls’ adoption by their maternal grandparents. The decision affirmed the ruling of the Eighth District Court of Appeals.

Justice Jennifer Brunner concurred with Justice Stewart’s opinion.

The justices were split on whether B.I. applied to this case, and the majority of justices granting the father consent varied on how to apply the B.I. decision.

Justice R. Patrick DeWine concurred in judgment only. In a written opinion, he maintained that whether a court order justifies a parent’s lack of contact with the children should be judged on a case-by-case basis. In this case, the order justified the father’s lack of contact, he stated.

Justice Patrick F. Fischer joined Justice DeWine’s opinion.

In separate dissenting opinions, Chief Justice Maureen O’Connor and Justice Sharon L. Kennedy both concluded B.I. is not an intervening decision. An earlier Eighth District decision affirmed the Cuyahoga County Probate Court’s ruling that the father’s consent to the adoption was not required. In her brief dissent, Chief Justice O’Connor wrote the court of appeals erred when it reconsidered its decision that the father’s consent to the adoption was not required, and the case should be remanded to the Eighth District to consider the probate court’s determination that the adoption was in the best interest of the children.

Justice Michael P. Donnelly joined Justice Kennedy’s dissent, which detailed why B.I. should not be applied.

Conviction Leads to No Contact Order
In 2007, the father of A.K. and C.K. was convicted of murdering the girls’ natural mother, and he was sentenced to 23 years to life in prison. The girls were placed in the custody of their mother’s parents and have been in the grandparents’ legal custody since 2007. The custody proceedings took place in Summit County Juvenile Court, which stated, “Father shall have no contact with the minor children absent an Order from this Court.”

Eight years later, the grandparents sought to adopt the girls in Cuyahoga County. The father objected, and the probate court indicated that it first had to consider whether the father had lost his right to consent to the adoption before moving on to consider the best interests of the children. R.C. 3107.07(A) states that those petitioning to adopt must prove 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.”

The magistrate presiding over the proceedings ruled that the grandparents failed to prove that the father’s lack of contact was not justified because the no-contact order provided evidence of a justifiable excuse. The grandparents objected to the decision, and the probate court overruled the magistrate.

The probate court determined that the father’s conduct, killing the children’s mother, led to the no-contact order and that the order provided no justifiable cause, so the father’s consent was not required.

Case Goes to Appellate Court Twice
The father appealed to the Eighth District, and in a 2017 split decision, it affirmed the probate court’s decision. The Eighth District remanded the case to the probate court to move to the best-interest-of-the-children phase.

The probate court granted the grandparents’ adoption petition. The father appealed to the Eighth District again, maintaining that the probate court wrongly ruled that his consent was not required, and that the adoption was not in the best interest of the children. As the case was pending before the Eighth District, the Supreme Court issued its decision in B.I.

The Eight District noted that it typically will not address issues already decided, based upon the “law-of-the-case” doctrine. While the B.I. case dealt with child support, the Eighth District found that the decision controlled how it should analyze parental contact under R.C. 3107.07(A). In another split decision, the Eighth District ruled that the father did not lose his right to consent.

The grandparents appealed to the Supreme Court, which agreed to hear the case.

Supreme Court Applied Consent Test
Justice Stewart noted that the Court has described the permanent termination of parental rights as the “family law equivalent of the death penalty.” Because adoption terminates a natural parent’s fundamental rights, written consent is generally required. R.C. 3107.07(A) provides exceptions to the consent requirement, so a court needs to determine whether the parent’s right to consent is extinguished when the parent has not had sufficient contact with the minor child.

Prior to B.I., courts used a two-part test to determine if the parent lost the right to consent. The court first determined if the parent failed to meet the contact or support obligations under R.C. 3107.07, the lead opinion explained. If not, the court determined if the failure was justified.

B.I. created a new first step. A court must first analyze “what the law or judicial decree required of the parent during the year immediately preceding the filing of the adoption petition or the placement of the minor in the home of the petitioner.”

In B.I.’s case, the father had received a “zero support” judicial decree that relieved him of paying child support. The stepfather, who filed an adoption petition to adopt B.I., argued that the natural father lost his right to consent because he failed to pay child support. The Court stopped its analysis in B.I. after the new first step of the test, the lead opinion explained. The decision created an automatic exemption when the parent can show compliance with a court order that required no maintenance and support.

The lead opinion stated that the father’s appeal should be analyzed the same way, stopping after the examination of the no-contact order that prohibited all contact with his children. The probate court should not dispense with a parent’s consent “when the parent abided by a court order prohibiting the parent from doing the very act that the statute requires,” the opinion stated.

Automatic Exemption Not Justified, Concurrence Maintained
In his concurrence, Justice DeWine wrote that the three-step analysis in B.I. pertains only to challenges on the grounds the parent had failed in “his or her child support obligations.” The concurrence maintained the provision in the law stating “as required by law or judicial decree” only applies to failure to pay child support and not to lack of contact with the child.

Rather than adopt the majority’s per se rule that a parent always had a right to object when there was a no-contact order in place, Justice DeWine said trial courts should look to the specific facts of each case. Under the facts of this case, the concurrence found the father demonstrated he had justifiable cause and did not lose his right to object to the adoptions.

But unlike the lead opinion, in Justice DeWine’s view there could be other situations where a parent might lose his ability to object despite a no contact order.

“Take a situation in which a no-contact order is in place, but the petitioner presents evidence indicating that the parent has sworn off any desire to have contact with the child,” he wrote. “Should the parent be able to object to the adoption simply because he or she is subject to a no-contact order, when the evidence suggests that the order is not the reason for the lack of contact?”

Supreme Court Decision Does Not Apply, Dissent Ruled
Similar to the concurring opinion, Justice Kennedy noted the B.I. decision deals with child support orders and never reached the issue of whether the parent had justifiable cause not to follow their legal obligations. Her concurrence recognized that there is an exception to the law-of-the-case doctrine when an intervening decision changes the controlling law. But because B.I. has different facts, involves a different provision of the consent-to-adoption statute, and does not address justifiable cause, it was not an intervening case that the appellate court could rely upon to reconsider the justifiable cause aspect of its earlier decision.

Under the law of the case, the Eighth District and the probate court had previously ruled the father’s consent was not required. Since that finding was established during the father’s first appeal, it remains the law of the case and should still apply, the dissent concluded.

2020-1163. In re Adoption of A.K., Slip Opinion No. 2022-Ohio-350.

View oral argument video of this case.

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