Wednesday, June 21, 2017
In the Matter of the Review of the Alternative Energy Rider Contained in the Tariffs of Ohio Edison Company, The Cleveland Electric Illuminating Company, and The Toledo Edison Company, Case no. 2013-2026
Public Utilities Commission of Ohio
City of Cleveland Board of Review v. William E. and Susan W. MacDonald, Case no. 2016-0778
Ohio Board of Tax Appeals
State of Ohio v. Juhan Brown, Case no. 2016-1652
Fifth District Court of Appeals (Richland County)
In the Matter of the Adoption of P.L.H., Case no. 2017-0173
Twelfth District Court of Appeals (Butler County)
Was PUCO’s $43.4 Million Adjustment to Alternative Energy Charges Permitted?
In the Matter of the Review of the Alternative Energy Rider Contained in the Tariffs of Ohio Edison Company, The Cleveland Electric Illuminating Company, and The Toledo Edison Company, Case no. 2013-2026
Public Utilities Commission of Ohio
ISSUES:
- Did the order issued by the Public Utilities Commission of Ohio (PUCO) in this case unlawfully require the utility to refund collected monies and mandate impermissible retroactive ratemaking?
- Was the PUCO’s order against the manifest weight of the evidence?
- Did the PUCO’s order unreasonably interpret Ohio law?
BACKGROUND:
State law, in R.C. 4928.64, requires Ohio electric utilities to provide a certain percentage of their electricity through renewable energy sources, such as solar, wind, hydroelectric, and geothermal power. The statute establishes annual benchmarks for electric utilities. To meet the benchmarks, utilities may purchase “renewable energy credits” (RECs), which fall into four categories – in-state solar, in-state all-renewable, all-state solar, and all-state all-renewable. At least half of the RECs must come from Ohio facilities.
Costs that utilities incur when purchasing RECs are passed on to the customer and must be reasonable. A utility recovers its costs for buying RECs through an alternative energy rider, referred to as a “Rider AER,” which is part of the utility’s electric service plan, is submitted to and reviewed by the Public Utilities Commission of Ohio (PUCO), and is updated quarterly by the utility.
Audit of FirstEnergy Alternative Energy Riders
In September 2011, the PUCO decided to audit the Rider AER submitted by the Ohio Edison Company, Cleveland Electric Illuminating Company, and Toledo Edison Company (together known as FirstEnergy) each year for 2009, 2010, and 2011. In its order following the audit, the PUCO determined that more than $43.4 million of the costs FirstEnergy collected from customers through its 2011 Rider AER for in-state all-renewable RECs was “imprudently incurred,” and the customers’ rates had to be adjusted to return that money.
According to the PUCO, the audit, conducted by Exeter Associates Inc., found that FirstEnergy didn’t set a maximum price for buying RECs before it issued requests for proposals from companies, paid “unreasonably high prices” to one bidder, paid amounts higher than any reported price paid nationwide for non-solar RECs between July 2008 and December 2011, ignored other options for purchasing these RECs given their high price, and should have known the purchase price was excessive.
FirstEnergy appealed the commission’s ruling to the Ohio Supreme Court, which must review these types of PUCO cases.
Retroactive Ratemaking?
FirstEnergy notes that it has already collected all but $4.9 million of its costs for purchasing the in-state RECs for 2009, 2010, and 2011. The PUCO’s order requiring the company to adjust its electric rates to refund more than $43.4 million for the 2011 RECs constitutes impermissible retroactive ratemaking by the PUCO, FirstEnergy argues. From the company’s perspective, the PUCO approved the rider rates, and Supreme Court precedent prohibits the refund of money collected through rates that have been approved by the commission.
Because the PUCO reviewed and approved the rider, FirstEnergy contends that the PUCO couldn’t order the return of those collected amounts because the agency instead could have delayed approval or disapproved the rider during the PUCO review. Cases decided by the Court in 2011 and 2014 involving Columbus Southern Power rates support the view that improper costs can’t be refunded when they’ve already been collected, FirstEnergy argues.
The PUCO notes, though, that the rider it approved allowed FirstEnergy to recover “prudently incurred costs” at an accelerated rate to obtain the renewable energy required by state law. The accelerated rider process allows the utility to recover costs more quickly than a traditional rate plan, but the PUCO has the authority to review these expenses, the commission maintains.
The PUCO relies on the Ohio Supreme Court’s decision in River Gas Co. v. Pub. Util. Comm. (1982) to support its order. River Gas, the PUCO states, permits the recovery of certain variable costs, such as those in the quarterly adjustable Rider AER, and the bar on retroactive ratemaking doesn’t apply to such riders. The commission maintains that River Gas involves different circumstances than the 1957 ruling in Keco Indus. v. Cincinnati & Suburban Bell Tel. Co., in which the Court held that restitution wasn’t available as a remedy because the utility was required to collect PUCO-approved rates. River Gas, like here, involved no restitution, “but rather an offset of supplier-issued refunds against the utility’s existing tariff,” the PUCO asserts. There is no traditional ratemaking in this alternative energy rider, the PUCO states.
Burden of Proof
The PUCO also concludes that FirstEnergy didn’t meet its burden of proof to show that the company’s purchase of 2011 in-state RECs was prudent. Instead, the PUCO argues, the evidence shows that FirstEnergy paid excessive prices for the 2011 in-state RECs, ignored suggestions from its consultant that would have lowered the purchase price, failed to establish a top price it would pay for the RECs, and didn’t consider the safe harbor contained in the statute designed to protect against an adverse market. FirstEnergy imprudently purchased RECs in a tight and expensive market even though it knew that market conditions were expected to soon improve, the commission contends. The agency adds that the utility provided no evidence to demonstrate the wisdom of the allegedly reduced price that was negotiated.
FirstEnergy counters that the PUCO’s rejection of the purchase was “the product of improper 20/20 hindsight,” noting the new and limited alternative energy market in the state at the time, that the company’s independent expert (Navigant) recommended the purchase, and that the PUCO’s conclusion that the utility should have waited for better pricing was second-guessing. FirstEnergy explains that it received two bids for 2011 in-state RECs in its third request for proposal, and contends the lower price negotiated with one of the bidders saved customers $25 million.
Refund Amount
Reviewing how the PUCO arrived at $43.4 million amount, FirstEnergy asserts that it “is against the manifest weight of the evidence.” The utility takes issue with the PUCO using the purchase price for 2011 in-state RECs from a separate bidder to do the calculation, rather than the price the utility negotiated for the in-state RECS disputed in the case. No formulas are set out in the law, the PUCO notes, arguing that it reasonably exercised its discretion in using a logical method to calculate the excessive charge amount.
Public Records or Trade Secrets?
The Office of the Ohio Consumers’ Counsel (OCC) and the Environmental Law and Policy Center (ELPC) are also parties to this case.
The PUCO determined that the identities of the 2009 and 2010 renewable energy suppliers selected by FirstEnergy and the prices bid were trade secrets and should remain confidential. OCC counters that this information is outdated and isn’t economically valuable, and FirstEnergy allowed it to be disclosed publicly many times. The ELPC agrees, arguing FirstEnergy didn’t prove that the information qualified as trade secrets.
“FirstEnergy customers, including ELPC members, ultimately foot the bill for FirstEnergy’s REC purchases, and transparency in these transactions is key to ensuring proper conduct on the part of utilities and a well-functioning REC market,” the ELPC brief states.
The groups argue that the information, as well as the auditor’s recommended amount of charges to be disallowed and OCC witness testimony about how much should be disallowed, should be released to the public. ELPC adds that the PUCO is required to protect the public interest in regulating utilities and the information should be released in support of open government.
State law requires the protection of trade secrets, the PUCO responds, arguing that its determination was proper based on a six-factor test in State ex rel. The Plain Dealer v. Ohio Dept. of Ins. (1997).
FirstEnergy contends that the age of the information isn’t the only factor to consider in a trade secret determination, and the PUCO decided the information had independent economic value and should be kept confidential. Given the PUCO’s role in developing the renewable energy market, the decision to protect the information was correct, the utility maintains.
Additional Brief Filed
Electric utility AEP Ohio submitted an amicus curiae brief not in support of any party to this case, but instead to stress the importance of the rule against retroactive ratemaking to ensure predictable and stable utility rates.
- Kathleen Maloney
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing Ohio Edison Company, Cleveland Electric Illuminating Company, and Toledo Edison Company (FirstEnergy): David Kutik, 216.586.3939
Representing the Public Utilities Commission of Ohio from the Ohio Attorney General’s Office: Thomas Lindgren, 614.466.4395
Representing Office of the Ohio Consumers’ Counsel: Kyle Kern, 614.316.4363
Representing Environmental Law and Policy Center: Madeline Fleisher, 857.636.0371
Can Cleveland Tax Corporate Executive Retirement Plans?
City of Cleveland Board of Review v. William E. and Susan W. MacDonald, Case no. 2016-0778
Ohio Board of Tax Appeals
ISSUES:
- Is a supplemental executive retirement plan a “pension” that is exempt from municipal income tax if a municipality excludes pensions by ordinance?
- Can the definition of a pension in a city’s rules and regulations exclude deferred compensation plans, or does the definition conflict with the common definition of pension?
- Does the Ohio Board of Tax Appeals violate the Ohio Constitution’s concept of municipal home rule if it doesn’t defer to a municipal code and rules to interpret a taxation question?
BACKGROUND:
This is the second time the Ohio Supreme Court will consider the local taxation of $9.1 million in benefits paid to William E. MacDonald, a former National City Corporation vice chairman. In 2006 MacDonald retired from National City and his year-end federal W-2 tax form indicated he received about $14.5 million in compensation of which $9.1 million was from National City’s supplemental executive retirement plan (SERP). Both the cities of Shaker Heights, where William and Susan MacDonald lived, and Cleveland, where National City is located, sought to impose income tax on the SERP. The MacDonalds challenged the collections, arguing among other things that the company’s SERP met the definition of “pension” under Shaker Heights and Cleveland municipal codes.
The city of Shaker Heights, and subsequently its income tax board of review, ruled the SERP didn’t meet the code’s definition of pension and the compensation was taxed as wages. The Ohio Board of Tax Appeals (BTA) reversed the decision. The BTA found evidence provided by National City indicated that MacDonald didn’t need to contribute to the funding of the SERP or make any election to have the money deferred, but rather it was used by the company to supplement the retirement of its top executives and highly paid personnel.
The city appealed to the Tenth District Court of Appeals, which sided with the MacDonalds, and the city appealed that decision to the Ohio Supreme Court. The Court, in 2015, declined to consider Shaker Heights’ substantive arguments about whether its code permitted the SERP to be taxed, but only considered a procedural rule whether the BTA had the right to disregard the local authorities’ reviews and conduct its own independent exam of the matter. The Court ruled the BTA conducted the appropriate review and let its decision stand without commenting on the substance of the Shaker Heights ordinance.
Meanwhile, the couple’s appeal of the Cleveland tax was also unsuccessful at the local board of review level, which ruled against the couple in 2009. Subsequent to the Shaker Heights challenge, the BTA considered Cleveland’s appeal in 2014. The couple argued the two municipalities have almost identical ordinances regarding the taxation of pensions. Cleveland noted that its ordinance, unlike Shaker Heights’, specifically included the additional rules and regulations of the city tax administrator, and those rules excluded the SERP from being a pension.
In a 2-1 decision, the BTA sided with the MacDonalds, finding that while the SERP falls under the “ambit” of deferred compensation plans, some plans can meet the both Cleveland city code definitions of deferred compensation plans and pensions. It found the SERP was a pension and not taxable by Cleveland. The city appealed to the Supreme Court, which must consider appeals of BTA decisions.
Supplemental Plan Is Taxable, Cleveland Argues
Cleveland Codified Ordinance 191.0318 states: “ ‘Taxable income’ means all qualifying wages, net profits and all other income from whatever source derived set forth in Section 191.0501, and the Rules and Regulations as taxable.” The city argues this definition means the city applies both the text of the code and the rules implemented by the city tax administrator when determining taxable income. Under its definition of “qualifying wages,” the city points to the definitions in the federal Internal Revenue Code. From that definition it determined that the SERP is a “nonqualified deferred compensation” program that makes it count as a qualified wage, and is taxable income in Cleveland. Further, the city points to its rules, which provide a list of compensation that is not exempt from the income tax and it includes “deferred compensation of any kind, whether deferred under a retirement plan or under any other type of compensation arrangement or contract....”
The city concedes that its ordinances don’t define “pension,” but its rules do. The city indicates the only type of income that is exempt by ordinance are “[p]roceeds of insurance paid by reason of the death of the insured; pensions, disability benefits, annuities, or gratuities not in the nature of compensation for services rendered from whatever source derived.” Because MacDonald was being paid for his services, the SERP wasn’t a type of pension that was exempt. The city notes the income reported on taxpayers’ Federal Form 1099R is a pension that isn’t taxed by the city, and Cleveland didn’t tax the income reported on MacDonald’s 1099R.
The Cleveland Board of Review sided with the city, and Cleveland argues the BTA must apply municipal law to the matter. It argues the BTA examined the Shaker Heights law, drew its own conclusion that Cleveland’s was similar, and concluded that the SERP was exempt. The city points to the BTA dissent, though, which found that while neither Cleveland nor Shaker Heights defined pension in its ordinance, Cleveland did in its rules and regulations, which made the two city laws different.
Cleveland also argues the BTA gave too much weight to the company’s explanation of its plan and National City’s desire to provide additional compensation to retiring executives. A company officer explained that when federal law limited the amount companies could set aside each year for retirement, many businesses started to enact supplemental retirement plans for its highly compensated executives. National City used the SERP to meets its goal of attempting to provide top executives with retirement incomes equal to 60 percent of their regular pay. The BTA considered the arrangement a pension rather than a deferred compensation program. The city argues that when the municipal law explicitly includes deferred compensation in its taxable income list, the BTA isn’t permitted to fashion its own definition of a pension.
MacDonalds Maintain Income Not Taxable
The MacDonalds note the BTA considered the two city ordinances to be identical and that the Tenth District affirmed the BTA’s ruling that the SERP is a pension that isn’t subject to Cleveland municipal income tax. The couple also asserts that Cleveland enacted the municipal income tax by ordinance in 1966 and it never has amended the code to limit or restrict the pension exemption. The city can’t use the rules developed by the Central Collection Agency — a non-city government organization that collects city income taxes for Cleveland and a multitude of municipalities — to change the definition of pension without changing the municipal code, the couple argues.
The MacDonalds assert the Supreme Court has ruled that the BTA has the authority to conduct a de novo review of the law and facts in dispute, and it already has concluded that the SERP is a pension, and that both city ordinances exempt pension income.
While the city argues that through the principle of municipal home rule, the BTA must defer to the city code to determine if the SERP is taxable, the MacDonalds clarify that the rule doesn’t diminish the BTA’s right to interpret the local law. The couple asserts the rule is being honored because the BTA is interpreting the code as passed by Cleveland City Council, which exempts pensions. The concept of home rule doesn’t allow the city to unilaterally apply the administrative rules and consider the rules as part of the ordinance, they conclude. The MacDonalds argue the rules are invalid restrictions to the definition of pension, and that only the city council can limit the definition of pension in its income tax ordinance.
“The BTA properly concluded that some, but not all, deferred compensation plans are pensions for Cleveland purposes and that the National City SERP was both a nonqualified deferred compensation plan and a pension. The BTA focused on the criteria that distinguish those deferred compensation plans that are taxable and those that are not. The BTA decision on the pivotal point that the SERP is a non-taxable pension while also being nonqualified deferred compensation should be upheld,” the MacDonalds brief states.
- Dan Trevas
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing City of Cleveland Board of Review: Linda Bickerstaff, 216.664.4406
Representing William E. and Susan W. MacDonald: Christopher Swift, 216.621.0200
Is Notification of Additional Prison Time for Committing Felony While on Postrelease Control Required?
State of Ohio v. Juhan Brown, Case no. 2016-1652
Fifth District Court of Appeals (Richland County)
ISSUE: Does Ohio law require a trial court to inform an offender that the commission of a felony while on postrelease control permits a trial court to impose two new prison terms – a prison term for the felony and a prison term for violation of postrelease control conditions that must be served consecutively?
BACKGROUND:
The Supreme Court is considering a certified conflict brought by the Fifth District Court of Appeals, which concluded its decision is at odds with another appellate court. In 2011 Juhan Brown was convicted on three felony counts of trafficking cocaine near a child or school and one felony count of cocaine possession. He was sentenced to 11 years in prison. At a sentencing hearing, a Richland County Common Pleas Court judge also fined Brown, ordered restitution, and placed him on three years of postrelease control. The judge stated: “A violation of postrelease control rules will put you in a position to be sent back to prison for up to one half the time you’ve done already.”
A written judgment entry of the sentence stated that a postrelease control violation could led to nine months in prison for each violation, up to a maximum of half of Brown’s 11-year prison term. The entry also noted the possibility that if Brown committed a felony while on postrelease control, he could receive a new prison term that would be the greater of one year or the remaining time of his three-year postrelease control period. The entry didn’t indicate that the imposition of the prison time would be served consecutively with any prison term imposed for the felony that was committed while on postrelease control.
Brown appealed his conviction, but didn’t challenge his postrelease control sanction. The Fifth District affirmed his conviction in 2012.
Beginning in 2013, Brown began filing postconviction challenges, including a 2016 motion that argued his sentence is invalid because the trial judge failed to notify him at sentencing that a judge could convert his postrelease control time to prison time and have it run consecutively to any prison time received for a felony while on postrelease control.
The trial court rejected the argument as did the Fifth District. However, the Fifth District noted its decision was in conflict with the Fourth District Court of Appeals, which ruled the information about the additional “judicial sanction” was required to be presented to an offender at sentencing.
The Supreme Court accepted the certified conflict. However, after the Court agreed to hear the case, the Fourth District issued an opinion overruling its earlier position, and the Fifth District overruled its earlier decision, now finding the information must be provided. While the two lower courts have different positions than when the case was presented to the Supreme Court, they are still in conflict and the Court recommitted to resolving the conflict.
Offender Must Be Notified of Consecutive Sentence Potential, Brown Argues
Brown notes that the Supreme Court has made it clear that for postrelease control to be imposed, the sentencing judge must provide notice to the offender both orally at the sentencing and in its written judgment entry. The “notice provision” of R.C. 2929.19(B)(2) specifies what a sentencing court must provide to the offender. Brown contends the statute requires the court to notify the offender of the details of the postrelease control and the consequences of violating it.
He notes that the General Assembly added another consequence for the violation of postrelease control when it adopted R.C. 2929.141, known as the “judicial sanction.” If an offender on postrelease control commits a felony that is a violation of postrelease control, a trial court judge can impose both a prison sentence for committing the felony and a “judicial sanction” by converting the remaining postrelease control time to prison time. If the remaining postrelease control time is less than a year, the trial judge could increase the time to up to one year. This new prison time is required to be served consecutively to any prison time imposed for the felony.
Brown argues the trial judge didn’t mention the consequence of violating R.C. 2929.141 in his oral sentencing, and that the written sentencing entry discusses the sanction but didn’t expressly state that the two prison terms had to be served consecutively. Brown maintains this notification is critical because it could unwittingly send an offender back for a far greater amount of prison time than expected. He notes, for example, that trial courts when accepting a guilty plea don’t ask if the offender is on postrelease control. It isn’t until the sentencing portion of the conviction that the judge and the offender would first discover the judge is required to add the additional time and make it run consecutively.
Brown, who is still serving his prison term, argues he is entitled to a resentencing hearing where postrelease control must be properly imposed.
Notification of Judicial Sanction Unnecessary, State Argues
The state maintains that the notice provision in R.C. 2929.19(B)(2) requires the sentencing court to inform the offender that the Ohio Parole Board can impose a prison term for a postrelease control violation, and it doesn’t require notice of the judicial sanction. Further, the state notes the judicial sanction itself, R.C. 2929.141, doesn’t have a notice requirement.
The state argues the arrangement makes logical sense because a prison term is generally imposed by a court, and not by an executive branch agency such as the parole board. Additionally, postrelease conditions can take many forms, many where a violation wouldn’t typically lead to a prison sentence. The state gives examples of conditions such as a requirement not to leave the state or to refrain from drug and alcohol use. Leaving the state or consuming alcohol aren’t illegal for an adult. However, doing so in violation of postrelease control conditions can lead to additional prison time. This is why it would be important to notify an offender. In contrast, an offender knows that a judge can impose a prison term for a felony, and the offender can reasonably expect, without notification, that a greater penalty might be imposed for committing a felony while on postrelease control.
The state notes that a majority of the appellate courts that have addressed the judicial sanction issue have ruled that notification isn’t required. It maintains that only the Fifth District, relying on the Fourth District’s 2015 State v. Adkins decision, is requiring notice of the judicial sanction, and that followed the Fourth District overturning the Adkins decision. The state also asserts that Brown isn’t entitled to a new hearing because even though the judicial sanction notice isn’t required, the sentencing court provided it to him in its sentencing entry. The only information that wasn’t provided was the potential that the sentences must be served consecutively, the state concludes.
In a second line of objection to Brown’s appeal, the state argues that his request is barred by res judicata because Brown didn’t challenge his postrelease control when he originally appealed his 2011 sentence. The state maintains it’s too late raise the issue now.
- Dan Trevas
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing Juhan Brown from the Ohio Public Defender’s Office: Stephen Hardwick, 614.466.5394
Representing the State of Ohio from the Ohio Attorney General’s Office: Eric Murphy, 614.466.8980
Did Father “Willfully Abandon” Mother During Pregnancy, Giving Up His Right to Contest Adoption?
In the Matter of the Adoption of P.L.H., Case no. 2017-0173
Twelfth District Court of Appeals (Butler County)
ISSUE: Does the meaning of “willfully abandoned” in R.C. 3107.07(B)(2)(c) include a requirement that the putative father failed to provide care and support to the mother during her pregnancy?
BACKGROUND:
In November 2015, a student at Miami University gave birth in Ohio to a child, identified as P.L.H., and filed an application to have the child adopted. The mother had become pregnant by a college friend whom she had visited in February in Slidell, Louisiana.
The mother told her friend in March 2015 that she was pregnant and planned to pursue adoption. She testified at a court hearing the following year that their sexual encounter was nonconsensual and the father wanted her to get an abortion. The father testified that the sex was consensual and that he asked only whether she had considered abortion.
Early in her pregnancy, the mother was matched with a couple and they discussed possible adoption. She asked the biological father if he would support the adoption, and he said he would. He also said he wanted to have contact with the child, and she indicated she was pursuing an open adoption that would permit that.
Parents’ Interaction During Pregnancy and Soon After Birth
The mother and father texted each other in March, April, and May of 2015, but had no contact in June, July, or August. The mother texted the father for his address in early September so the adopting parents could send paperwork regarding his consent to the adoption. The text led to a phone conversation between the biological parents, in which the father said he was opposed to the adoption.
At the end of September, the father’s attorney sent a letter to the mother’s counsel stating that the father had registered as a “putative father” on Sept. 4, objected to the adoption, and wanted sole custody of the child at birth. The letter also stated the father would assist the mother with medical costs associated with the pregnancy and birth, and with other costs for her care. The mother’s attorney responded at the end of October, stating that the mother wasn’t willing to place the child with the father and was moving forward with the adoption.
The mother said the father contacted her a few weeks after she had given birth, asking her to update him leading up to delivery so he could travel to the hospital to pick up their child. He was unaware that she already had the baby. She stated at the hearing that she didn’t respond to the father because the child had been placed with the adopting parents. He testified that he figured out the baby had been born by one of her Facebook posts.
Father Tries to Block Adoption
In December 2015, the father objected to the adoption in the Butler County Probate Court. The mother testified she never received any financial support from the father during her pregnancy, and she said she didn’t want his support because the adopting couple had been paying her bills. The father testified he emotionally supported her, and he sent a $100 check noting “child support” to the prospective adopting couple about a month after P.L.H. was born. He also bought baby items and furniture for his home.
The probate court ruled that the putative father’s consent wasn’t necessary to proceed with the adoption because he willfully abandoned her during her pregnancy and up to the time of the child’s placement with the adopting couple.
The father appealed to the Twelfth District Court of Appeals, which in December 2016 affirmed the probate court’s decision, stating that the father never gave the mother any financial or other support during the pregnancy. He appealed to the Ohio Supreme Court, which agreed to review the case.
“Putative Father”
The term “putative father” is defined in statute as “a man, including one under age eighteen, who may be a child’s father and to whom all of the following apply:
(1) He is not married to the child’s mother at the time of the child’s conception or birth;
(2) He has not adopted the child;
(3) He has not been determined, prior to the date a petition to adopt the child is filed, to have a parent and child relationship with the child by a court proceeding … or an administrative agency proceeding …;
(4) He has not acknowledged paternity of the child pursuant to sections 3111.21 to 3111.35 of the Revised Code.”
Father Argues He Tried to Keep in Contact, Didn’t “Willfully Abandon”
The father notes that the resolution of this case depends on the meaning of “willfully abandoned.” Citing the dissent in the Twelfth District, he points out that R.C. 3107.07(B)(2)(c), regarding a putative father’s willful abandonment of the mother, doesn’t include subsection (b)’s phrase “or failed to care for and support.” Because the legislature chose not to include “or failed to care for and support” in the provision about the putative father’s responsibilities to the mother, the father contends that care and support must not be components of “willful abandonment.”
Instead, the Supreme Court must look to the plain meaning of “willful abandonment” in determining whether he had to give consent to the child’s adoption or he disqualified himself from that opportunity because of his actions during the mother’s pregnancy.
“[T]he court’s inquiry must be whether a putative father ‘deserted, forsook or relinquished all connection’ with the mother during the pregnancy,” the father’s brief states. “Regarding whether there was willful abandonment, the inquiry need to include whether, through no fault of his own, the putative father tries to maintain contact, but the mother makes it clear his contact or any type of involvement or support in her pregnancy is unwanted.”
The father maintains that he didn’t avoid the mother, didn’t try to cut off contact with her, and never indicated that he wanted nothing to do with her or the child. Instead, he insists he told the mother that he wanted to support her, and he responded to her messages and phone calls. He contends that after he said he wanted to raise the child, the mother curtailed communication, didn’t tell him the baby had been born, and immediately surrendered the child to the adopting couple.
Even though the Twelfth District and other state appeals courts have found that R.C. 3107.07(B)(2)(c) requires a putative father to provide care and support to the mother during her pregnancy, the father maintains that requirement isn’t part of the law. Because he accepted some measure of responsibility for his child’s future and stepped forward to raise the child, he asks the Court to protect his interest in a relationship with his child and rule that his consent was necessary to allow the adoption.
Adoptive Parents Contend Father Didn’t Meet Legal Obligations
The adopting parents argue that the probate court reviewed all the circumstances and found the father had no contact with the mother at all for three months and his other contact with her was sporadic and minimal, including only 16 days of text communication during her entire pregnancy. The court’s decision was supported by competent, credible evidence, the adopting couple maintains.
Decisions from the appellate courts support the view that support to the birth mother is relevant to determining whether a putative father has willfully abandoned the mother, the adopting parents argue. They contend that state law presents an “already low bar” for a putative father to meet to assert his interests, especially when compared with the burden on the birth mother during pregnancy and the demands on adopting parents, and they don’t believe the Court should alter or diminish the current standard further. The rights of the birth mother must prevail, their brief states.
They add that the mother decided on adoption early in her pregnancy and never changed her mind. The adopting parents note that they provided actual financial support throughout her pregnancy, while the father gave her no money. They describe his offer late in the pregnancy to pay for expenses as “insincere.”
Citing the U.S. Supreme Court’s decision in Lehr v. Robertson (1983) and the Ohio Supreme Court’s 2015 In re Adoption of H.N.R. ruling, the adopting parents state that the U.S. Supreme Court distinguished between a developed parent-child relationship and the possible relationship a putative father might have and explained that “the mere existence of a biological link does not merit equivalent constitutional protection.”
“A putative father only has a protected interest in the opportunity to develop a parent-child relationship, provided he preserves that opportunity interest by meeting his legal obligations,” they wrote. “In this case, [the father] failed to meet his legal obligations under R.C. 3107.07(B)(2)(c) when he willfully abandoned the birth-mother, as determined by the Probate Court.”
Mother Describes Father’s Lack of Support, Continues to Favor Adoptive Parents
The biological mother of P.L.H. filed an amicus curiae brief in the case supporting the adopting parents. She maintains that the father’s absolute lack of financial support and his minimal emotional support during her pregnancy equated to willful abandonment, which prohibited him from having any right to block the adoption. He was employed, making more than $70,000 a year, and he knew that the adopting parents were supporting her, she asserts, but he never sent any money except the $100 check a month after the child was born. He never visited her or offered to go to any doctor appointments, and rarely asked about how she was doing in their exchanges during the pregnancy, she adds.
He had to do more than simply register as a putative father, she contends, adding that H.N.R. requires him to demonstrate a “full commitment” to the responsibilities of parenthood. She argues she was the sole legal parent of P.L.H. and prioritized his best interests when setting up the adoption, while he failed to seize his opportunity interest as the father.
“He exerted too little effort too late,” her brief states.
She also contends that the child’s constitutional rights would be violated if removed from the only home the child has known for more than 18 months since birth.
She asked the Court to allow her to participate in oral argument, and the Court granted the request, permitting her to share the 15 minutes of time allotted to the adopting parents.
Additional Friend-of-the-Court Briefs Submitted
Also filing amicus briefs on the side of the adopting parents were the American Academy of Adoption Attorneys, Adoption Circle (a private adoption agency), and Ohio Adoption Law Roundtable.
- Kathleen Maloney
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing the father: Michaela Stagnaro, 513.338.1925
Representing Kelly and Pamela Helminger: Michael Voorhees, 513.489.2555
Representing the mother: Barbara Ginn, 513.277.1478
These informal previews are prepared by the Supreme Court's Office of Public Information to provide the news media and other interested persons with a brief overview of the legal issues and arguments advanced by the parties in upcoming cases scheduled for oral argument. The previews are not part of the case record, and are not considered by the Court during its deliberations.
Parties interested in receiving additional information are encouraged to review the case file available in the Supreme Court Clerk's Office (614.387.9530), or to contact counsel of record.