[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as In 

re Adoption of A.K., Slip Opinion No. 2022-Ohio-350.]

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. 2022-OHIO-350

IN RE ADOPTION OF A.K. ET AL.

[Until this opinion appears in the Ohio Official Reports advance sheets, it 

may be cited as In re Adoption of A.K., Slip Opinion No. 2022-Ohio-350.]

Adoption—Parent’s right to consent to the adoption of his children not 

extinguished under R.C. 3107.07(A)—Judgment affirmed.

(No. 2020-1163—Submitted June 15, 2021—Decided February 10, 2022.)

APPEAL from the Court of Appeals for Cuyahoga County,

Nos. 108521 and 108522, 2020-Ohio-3279.

_______________________

STEWART, J., announcing the judgment of the court.

{¶ 1} This case is a discretionary appeal involving R.C. 3107.07, the statute 

that provides exceptions to requiring parental consent for the adoption of minors. 

We are asked to decide whether under this court’s holding in In re Adoption of B.I., 

157 Ohio St.3d 29, 2019-Ohio-2450, 131 N.E.3d 28, a parent’s consent to the 

adoption of his children is required when that parent has not had more than de 

minimis contact with his children for at least one year prior to the filing of an 
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adoption petition and the parent was under a court order to have no contact with his 

children. This opinion concludes that it is and that a parent’s right to consent to the

adoption of his or her child is not extinguished under R.C. 3107.07(A) for lack of

sufficient contact with the child when the parent has acted in compliance with a nocontact order prohibiting communication or contact with his or her minor child. 

We affirm the judgment of the Eighth District Court of Appeals.

Facts and Procedural History

{¶ 2} In April 2007, appellee, the natural father of A.K. and C.K., was 

convicted of murdering the minors’ natural mother and was sentenced to a prison 

term of 23 years to life. A.K. and C.K. were placed with appellants, their maternal 

grandparents, and have been in their legal custody since February 2007. When the 

Juvenile Division of the Summit County Court of Common Pleas awarded custody 

of the children to the grandparents, the order specifically stated: “Father shall have 

no contact with the minor children absent an Order from this Court.”

{¶ 3} In 2015, the grandparents filed petitions to adopt the children in the 

Probate Division of the Cuyahoga Court of Common Pleas. The father filed 

objections, and the adoption proceedings were bifurcated to first address whether

the need to obtain the father’s consent was extinguished under R.C. 3107.07(A). If 

the court determined that consent was not necessary, it would then decide whether 

adoption was in the best interest of the children in a subsequent hearing.

{¶ 4} R.C. 3107.07(A) provides that the consent of a natural parent to the 

adoption of his or her child is not required under certain circumstances. Relevant 

to this case, consent is not required if the court finds by clear and convincing

evidence that the parent has failed, with no justifiable cause, to have more than de

minimis contact with the child for at least one year immediately preceding the filing

of the adoption petition or the minor’s placement in the home of the petitioner. R.C.

3107.07(A). The magistrate who presided over the consent hearing determined that 

the grandparents did not establish by clear and convincing evidence that the father’s 
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3

failure to communicate with the children during the one-year period prior to the 

petitions for adoption being filed was not justified, finding that the no-contact order 

from the juvenile court facially established evidence of a justifiable excuse.

{¶ 5} The grandparents filed objections to the decision, which the probate 

court sustained. The court determined that the father’s consent was not required,

because it was his conduct that led to the no-contact order and therefore the order 

could not provide justifiable cause for his lack of contact with the children for the 

year prior to the filing of the petitions.

{¶ 6} The father appealed to the Eighth District Court of Appeals, and in a 

split decision, the court affirmed the probate court’s decision. In re A.K., 8th Dist. 

Cuyahoga No. 105426, 2017-Ohio-9165 (“A.K. I”). In A.K. I, the court of appeals

agreed with the probate court’s conclusion that it would be unjust to allow the father 

to use his imprisonment to justify his failure to contact his children when it was his 

actions that necessitated his prison sentence. The Eighth District remanded the case 

to the probate court to determine whether adoption was in the best interest of the 

children. The magistrate found that the adoption of A.K. and C.K was in their best 

interest and granted the grandparents’ petitions. The father filed objections to the 

magistrate’s decision, but the court adopted the decision granting the petitions for 

adoption.

{¶ 7} The father appealed the probate court’s judgment, asserting that (1) 

the probate court erred in holding that the grandparents met their burden of 

establishing that they could adopt the children without the father’s consent and (2) 

the probate court erred in holding that the grandparents met their burden of 

establishing that adoption was in the children’s best interest. The Eighth District

reversed the judgment of the trial court based on this court’s intervening decision

in B.I., 157 Ohio St.3d 29, 2019-Ohio-2450, 131 N.E.3d 28. In re Adoption of A.K., 

2020-Ohio-3279, 155 N.E.3d 239 (“A.K. II”).
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{¶ 8} The Eighth District noted that the issue whether the father’s consent 

to the adoptions was necessary had been decided in A.K. I and that pursuant to the 

law-of-the-case doctrine, the issue would generally not be revisited. A.K. II at ¶ 13. 

However, the court of appeals held that our decision in B.I. was intervening and 

controlling authority regarding the parental-consent analysis under R.C. 

3107.07(A) and that it was therefore required to reexamine the issue. A.K. II at 

¶ 13, citing Hopkins v. Dyer, 104 Ohio St.3d 461, 2004-Ohio-6769, 820 N.E.2d 329

(when an intervening decision from a superior appellate court is inconsistent with 

the law of the case determined by an intermediate appellate court, the inferior court 

is bound to follow the superior court’s holding). In a split decision, the Eighth 

District held that under B.I., the father’s reliance on the no-contact order constituted

justifiable cause for his having had no contact with his children.

{¶ 9} The grandparents filed an application for reconsideration and a 

motion to certify a conflict. The Eighth District denied both. The grandparents 

subsequently filed this discretionary appeal, which we accepted on a single 

proposition of law:

Whether the holding in In re [Adoption of] B.I. applies 

broadly such that the mere existence of any judicial order precluding 

a natural parent from communication with his minor children is 

sufficient justifiable cause to [not] provide more than * * * de 

minimis contact with the minor for a period of at least one year under 

R.C. 3107.07(A).

See 160 Ohio St.3d 1495, 2020-Ohio-5634, 159 N.E.3d 273.

Law and Analysis

{¶ 10} As an initial matter, the grandparents argue, and the dissenting 

opinions agree, that the Eighth District Court of Appeals should not have revisited 
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5

the issue of consent. They assert that because the issue of justifiable cause was 

decided in A.K. I, 2017-Ohio-9165, the court of appeals was barred from further 

consideration of that issue based on the law-of-the-case doctrine. This is an 

incorrect understanding of the doctrine. Although it is true that a reviewing court’s 

prior ruling on a legal question in a case will generally not be disturbed in 

subsequent proceedings in the same case, Nolan v. Nolan, 11 Ohio St.3d 1, 3, 462 

N.E.2d 410 (1984), the law-of-the-case doctrine is not an automatic or an absolute 

bar to subsequent review of such a legal issue. The doctrine must give way in

certain circumstances, one of which is when an intervening decision rendered by a 

superior court is at odds with a legal determination made in the pending matter. 

Jones v. Harmon, 122 Ohio St. 420, 424, 172 N.E. 151 (1930). As the opinion 

concurring in judgment only notes, the doctrine does not serve to limit the authority 

of a court and its application is discretionary. Opinion concurring in judgment only,

¶ 34. We therefore reject the position that the Eighth District was precluded from 

revisiting the issue of consent in this case; the court revisited the issue to determine 

whether our decision in B.I. was intervening authority that required a change to the 

appellate court’s prior judgment.

{¶ 11} Turning now to the issue raised in the proposition of law—whether 

the father’s consent to adoption is necessary under the circumstances of this case—

as is often noted in cases dealing with severing a parent-child relationship, the

“[p]ermanent termination of parental rights has been described as ‘the family law 

equivalent of the death penalty * * *.’ ” In re Hayes, 79 Ohio St.3d 46, 48, 679 

N.E.2d 680 (1997), quoting In re Smith, 77 Ohio App.3d 1, 16, 601 N.E.2d 45 (6th 

Dist.1991). Because adoption terminates the fundamental rights of natural parents, 

written consent is generally required of parents before an adoption may proceed, 

R.C. 3107.06. Exceptions to this rule are set forth in R.C. 3107.07. Relevant to 

this case, R.C. 3107.07(A) provides that consent is not required from
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[a] parent of a minor, when it is alleged in the adoption

petition and the court, after proper service of notice and hearing,

finds 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 or the placement of the minor in the home of the petitioner.

{¶ 12} “The cornerstone of the adoption statutes is the promotion of 

children’s welfare, specifically those children who lack and are in need of the 

security and benefits of a loving home and family.” In re Adoption of Kohorst, 75 

Ohio App.3d 813, 817, 600 N.E.2d 843 (3d Dist.1992). R.C. 3107.07(A) operates 

only to determine whether an adoption may proceed without a parent’s consent. In 

re Adoption of Jorgensen, 33 Ohio App.3d 207, 209, 515 N.E.2d 622 (3d 

Dist.1986). Its operation does not result directly in the adoption to which it relates. 

Id. “[R.C. 3107.07(A)] only permits a court to proceed with the adoption and then 

only when [the court] finds after hearing that the adoption is in the best interest of 

the child, [may it] enter[] a final decree of adoption.” Id.

{¶ 13} In B.I., we accepted a discretionary appeal, determined that a conflict

existed between judgments of the First District Court of Appeals and the Fifth 

District Court of Appeals, and ordered the parties to brief the following question:

“ ‘In an adoption-consent case under R.C. 3107.07(A) in 

which a court has previously relieved a parent of any child-support 

obligation, does that previous order supersede any other duty of 

maintenance and support so as to provide ‘justifiable cause’ for the 
January Term, 2022

7

parent’s failure to provide maintenance and support, therefore 

requiring the petitioner to obtain the consent of that parent?’ ”

See 157 Ohio St.3d 29, 2019-Ohio-2450, 131 N.E.3d 28, ¶ 8-9, quoting 152 Ohio 

St.3d 1441, 2018-Ohio-1600, 96 N.E.3d 297, quoting the court of appeals’ entry. 

In a split decision, a majority of this court concluded that “a parent’s nonsupport of 

his or her minor child pursuant to a zero-support order of a court of competent

jurisdiction does not extinguish the requirement of that parent’s consent.” Id. at 

¶ 43.

{¶ 14} In reaching that conclusion, this court did not directly address the 

question we had ordered the parties to brief. The B.I. majority, instead, used a 

three-part test that asks (1) what the law or judicial decree required of the parent 

during the year immediately preceding either the filing of the adoption petition or 

the placement of the minor in the home of the petitioner, (2) whether during that 

year the parent complied with his or her obligation under the law or judicial decree, 

and (3) if during that year the parent did not comply with his or her obligation under 

the law or judicial decree, whether there was justifiable cause for that failure. Id.

at ¶ 15. In other words, instead of deciding whether a parent who failed to support 

his child for the year prior to the filing of an adoption petition had justifiable cause 

for doing so when a previously imposed court-ordered child-support obligation had 

been terminated, the majority resolved the matter after answering the first question 

of the three-part test. The court stated, “We stand in this case at the first step—

determining what the law or judicial decree required of the parent for the year prior 

to the filing of the petition. If the father had no obligation to provide child support, 

the analysis ends there.” Id. at ¶ 16.

{¶ 15} Applying the B.I. three-part test to the case before us, this opinion

likewise resolves the matter at the first step by determining what the law or judicial 

decree required of the father during the year immediately preceding the filing of the 
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adoption petitions. The opinion concurring in judgment only and the dissenting 

opinions disagree with this opinion’s determination that B.I. applies to this case. 

The opinion concurring in judgment only and the second dissenting opinion would 

limit the application of B.I. to cases involving child support: specifically, child 

support that is addressed in a judicial decree. Although the exception under R.C. 

3107.07 to the consent requirement in the case before us deals with an allegation

that the parent failed to have contact with his children as opposed to an allegation 

that the parent failed to provide maintenance and support, which was the situation

in B.I., there is no logical reason why the analysis should be any different when 

applying the three-part test, despite the insistence of the second dissenting opinion

that “the plain, unambiguous language of the statute” requires a different analysis.

Second dissenting opinion, ¶ 72.

{¶ 16} The opinion concurring in judgment only also makes much ado 

about the fact that under R.C. 3107.07, a parent’s obligation to provide for the 

maintenance and support of his or her child is established by “law or judicial 

decree” whereas the statute does not use the same phrase to measure a parent’s 

contact obligations. Instead, the statute uses the phrase “more than de minimis” to 

assess a parent’s contact obligations. But this court has historically treated the two 

statutory elements the same way when considering whether the consent of a parent 

is required: we have determined whether the parent failed to meet the contact or 

support obligations, and if so, whether there was justifiable cause for that failure. 

See, e.g., In re Adoption of Masa, 23 Ohio St.3d 163, 166, 492 N.E.2d 140 (1986);

In re Adoption of Bovett, 33 Ohio St.3d 102, 105, 515 N.E.2d 919 (1987). It was 

this court’s decision in B.I., 157 Ohio St.3d 29, 2019-Ohio-2450, 131 N.E.3d 28, 

that created a new first step. Instead of a court’s simply determining whether the 

parent had provided maintenance and support pursuant to law or judicial decree and 

if the parent had not, whether the trial court could find by clear and convincing 

evidence that there was justifiable cause for not doing so, under B.I., the court first 
January Term, 2022

9

determines what the law or judicial decree required of the parent for the year prior 

to the filing of the petition. The decision in B.I. created an automatic exemption 

from the trial court’s justifiable-cause analysis when a parent can point to a court 

order that required no maintenance and support as the basis for determining the 

amount of maintenance and support the parent was required to provide to his or her 

child, regardless of any other circumstancesthat might pertain to the parent’s ability 

to support the child or whether there is any other obligation under the law to do so.

{¶ 17} The disjunctive relationship of the contact and support provisions in 

R.C. 3107.07(A) (failure to provide more than de minimis contact or failure to 

provide maintenance and support) shows that the General Assembly intended to 

make the provisions of equal importance because each provision is subject to the 

same evidentiary standard and a parent’s failure to meet either provision is 

sufficient to nullify the need to obtain that parent’s consent. In re Adoption of A.H., 

9th Dist. No. 12CA010312, 2013-Ohio-1600, ¶ 9, citing In re Adoption of 

McDermitt, 63 Ohio St.2d 301, 304, 408 N.E.2d 680 (1980). Thus, the automatic 

exemption from the justifiable-cause inquiry that this court created in B.I. when a 

court order relieves a parent from a previously imposed child-support obligation 

should also apply when a court specifically orders a parent to have no contact with 

his child.

{¶ 18} It is clear that the judicial decree in the instant case (the no-contact 

order) mandated that the father do just what was ordered—have no contact or 

communication with his children. What was legally required of the father here is 

more intelligible than what the majority in B.I. found had been legally required of 

the father in that case. The majority in B.I. interpreted a judicial decree terminating 

a previously imposed court-ordered child-support obligation to actually require—

no, mandate—that the father not support his child, id. at ¶ 16, an interpretation that 

was criticized as defying logic, id. at ¶ 63 (Stewart, J., dissenting). In any event, 

regardless of whether a parent’s alleged failure to provide support for his or her 
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10

child or to have contact with his or her child is being evaluated under the first prong 

of the three-part test, the underlying policy implications are the same: a probate 

court should not dispense with the requirement of a parent’s consent when the 

parent abided by a court order prohibiting the parent from doing the very act that 

the statute requires in order for the parent to maintain his or her right to consent to 

the adoption of his or her minor child.

{¶ 19} Similar to the assertion in the opinion concurring in judgment only 

discussed above, the second dissenting opinion states that because “[t]here is no 

judicial-decree language in the de minimis contact provision,” “whatever contact a 

judicial decree orders between a parent and his or her child is not relevant to the 

probate court’s inquiry regarding whether the parent had more than de minimis 

contact with the child.” Second dissenting opinion at ¶ 71. To conclude that a nocontact order that prohibits all contact between a parent and his or her child is not 

determinative, let alone that it is irrelevant, regarding the amount of contact 

required under R.C. 3107.07(A) would essentially mean that a “zero-support 

order,” under which, according to B.I., 157 Ohio St.3d 29, 2019-Ohio-2450, 131 

N.E.3d 28, a parent does not need to provide any support in order to maintain his 

or her right to consent, demands more compliance than a no-contact order that 

expressly prohibits a parent from having contact with his or her child. That 

conclusion would also ignore our prior case law indicating that we must strictly 

construe R.C. 3107.07(A) in favor of the nonconsenting parent. In re Adoption of 

Sunderhaus, 63 Ohio St.3d 127, 132, 585 N.E.2d 418 (1992).

{¶ 20} In B.I., this court explained that “ ‘[t]he interests of orderly 

government demand that respect and compliance be given to orders issued by courts 

possessed of jurisdiction of persons and subject matter.’ ” Id. at ¶ 41, quoting

United States v. United Mine Workers of Am., 330 U.S. 258, 303, 67 S.Ct. 677, 91 

L.Ed. 884 (1997). Moreover, we asked, “Can a parent who relies on a valid order 

of a court of competent jurisdiction suffer—because he or she relied on that order—
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11

the ‘ “family law equivalent of the death penalty * * *?” ’ ” Id. at ¶ 11, quoting

Hayes, 79 Ohio St.3d at 48, 679 N.E.2d 680, quoting Smith, 77 Ohio App.3d at 16, 

601 N.E.2d 45. When applying R.C. 3107.07(A), we must strictly construe its 

language in favor of the retention of parental rights. B.I. at ¶ 12; see also In re

Adoption of M.G.B.-E., 154 Ohio St.3d 17, 2018-Ohio-1787, 110 N.E.3d 1236,

¶ 31 (explaining that courts must strictly construe any exception to the parentalconsent requirement in favor of the nonconsenting parent).

{¶ 21} Accordingly, this opinion concludes (1) that a parent’s right to

consent to the adoption of his or her child is not extinguished under R.C.

3107.07(A) when the parent did not have more than de minimis contact with the

minor child during the statutory period because the parent was acting in compliance

with a no-contact order prohibiting all communication and contact with the child

and (2) that therefore, in order for the adoption proceedings in this case to go 

forward, the father’s consent is required.

{¶ 22} We affirm the judgment of the Eighth District Court of Appeals and 

remand this case to the trial court for further proceedings.

Judgment affirmed

and cause remanded to the trial court.

BRUNNER, J., concurs.

DEWINE, J., concurs in judgment only, with an opinion joined by FISCHER, 

J.

O’CONNOR, C.J., dissents, with an opinion.

KENNEDY, J., dissents, with an opinion joined by DONNELLY, J.

_________________

DEWINE, J., concurring in judgment only.

{¶ 23} The statute at the center of this case directs courts to make two 

distinct inquiries. To find that a parent’s consent to the adoption of his or her child 

is not required, a court must first find that the parent has failed either “to provide 
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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.” R.C. 3107.07(A). 

Second, the court must find that there was no justifiable cause for the failure. Id.

{¶ 24} The lead opinion, however, collapses the two questions and 

improperly concludes that a no-contact order conclusively establishes justifiable 

cause for a parent’s failure to maintain contact with his or her child. In doing so, it 

disregards the plain language of the statute and our caselaw interpreting it. Whether 

a no-contact order amounts to justifiable cause for a parent’s failure to contact his 

or her child necessarily depends on case-specific considerations, such as the 

specific terms of the order and the extent to which the parent’s lack of contact was 

due to the existence of the order.

{¶ 25} But while the lead opinion gets the legal analysis wrong, I ultimately 

agree that under the facts of this case, the parent’s consent to the adoption is 

required. The adoption petitioners failed to establish by clear and convincing 

evidence that the parent’s lack of contact with his children was without justifiable 

cause. I therefore concur in the judgment remanding the case to the trial court for 

further proceedings.

The statute

{¶ 26} Under R.C. 3107.07(A), consent to adoption is not required of

[a] parent of a minor, when it is alleged in the adoption 

petition and the court * * * finds 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 or the placement of the minor in 

the home of the petitioner.
January Term, 2022

13

Thus, a court must undertake a two-step analysis in considering whether a parent

loses his or her right to consent to an adoption under the statute. In re Adoption of 

M.B., 131 Ohio St.3d 186, 2012-Ohio-236, 963 N.E.2d 142, ¶ 23. The court must 

first determine whether the parent has failed either “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.” R.C. 3107.07(A); see also M.B. 

at ¶ 23; In re Adoption of Bovett, 33 Ohio St.3d 102, 105, 515 N.E.2d 919 (1987). 

If he or she has failed in either respect, the court must then consider whether that 

failure was “without justifiable cause.” Id. The burden of proving both that the 

parent failed to contact or support the child and that the failure was without 

justification is on the person seeking to adopt the child. Bovett at paragraph one of 

the syllabus, following In re Adoption of Masa, 23 Ohio St.3d 163, 492 N.E.2d 140 

(1986), paragraph one of the syllabus.

The adoption proceedings

{¶ 27} In this case, minors A.K. and C.K. were placed in the legal custody 

of their maternal grandparents following their father’s incarceration for murdering 

their mother. The juvenile court’s order awarding legal custody to the grandparents 

provided: “Father shall have no contact with the minor children absent an Order 

from this Court.”

{¶ 28} The maternal grandparents later sought to adopt the girls. It is 

undisputed that the girls’ father did not have any contact with them in the year 

leading up to the filing of the adoption petitions. The grandparents asserted that his 

lack of contact was not justifiable and, consequently, his consent to the adoption 

was not legally required. Father countered that the no-contact order had prevented 

him from contacting his children and thus the lack of contact was justified.

{¶ 29} After a hearing, the magistrate found that father was “willing[] but 

unable to contact his children due to the no contact order.” Noting that father had 
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written numerous letters to his daughters and given them to his mother for 

safekeeping, the magistrate found that father genuinely desired to communicate 

with his children. The magistrate further explained that the no-contact order was 

“direct and unqualified” and that “[d]espite the terrible circumstances that gave rise 

to the no contact order,” he would “not find fault in an individual for following a 

Court order completely and to the letter.” The magistrate determined that any 

attempt by father to modify the terms of the no-contact order would have been met 

with vigorous opposition by the maternal grandparents. He also credited father’s 

concerns that if father attempted to modify the order, the maternal grandparents 

would not allow his family to visit the girls. As a result, the magistrate determined 

that the grandparents had failed to establish by clear and convincing evidence that 

father’s failure to contact his children was unjustified and that, therefore, his 

consent to the adoption was required.

{¶ 30} The probate court sustained the grandparents’ objections to the 

magistrate’s decision and ordered that the adoption could proceed without father’s 

consent. The probate court acknowledged that throughout the relevant time period, 

the juvenile court’s order barred all contact between the children and their father. 

But the probate court disagreed with the magistrate’s take on father’s failure to seek 

modification of the no-contact order, explaining that it was “not satisfied with the 

apparent lack of initiative on [father’s] part to make any attempt to restore 

communication with his children, especially where his testimony indicated that he 

strongly wished to have contact with them.”

{¶ 31} The most significant factor for the probate court, however, was the 

circumstances that led to father’s predicament in the first place: “Justice requires 

that this Court should not ignore the reason [father] was put into his current 

position.” And because “[h]e should not now be allowed to reap any legal benefit 

from the consequences of his crime,” the probate court determined father’s consent 

to the adoption was not required.
January Term, 2022

15

{¶ 32} Father appealed to the Eighth District Court of Appeals. In re A.K., 

8th Dist. Cuyahoga No. 105426, 2017-Ohio-9165. Picking up on the probate 

court’s reasoning, the Eighth District opined that father should not be able to obtain 

a legal benefit from murdering the children’s mother. Id. at ¶ 27. The appellate 

court therefore held that father’s failure to have contact with his children was not 

justified and his consent to the adoption was not required. It remanded the case to 

the probate court to determine whether adoption was in the best interests of the 

minors. The probate court concluded that adoption was in the minors’ best 

interests, and father again appealed.

{¶ 33} In the second appeal, father asked the Eighth District to reconsider 

its decision that his consent was not required, in light of this court’s intervening 

decision in In re Adoption of B.I., 157 Ohio St.3d 29, 2019-Ohio-2450, 131 N.E.3d 

28. The Eighth District concluded that B.I. compelled a different result on the 

consent issue. In re Adoption of A.K. (“A.K. II”), 2020-Ohio-3279, 155 N.E.3d 239. 

While the Eighth District noted that B.I. involved a different type of court order—

one eliminating the parent’s child-support obligation—the court of appeals relied 

on our broader discussion in B.I. that “ ‘a parent who relies on a valid order of a 

court of competent jurisdiction’ cannot suffer because he or she relied on that 

order.” A.K. II at ¶ 15, quoting B.I. at ¶ 11. Pointing to our statement in B.I. that a 

contrary result “would essentially render the court order in question invalid,”

A.K. II at ¶ 15, citing B.I. at ¶ 39, the Eighth District opined that the “same 

reasoning applies to an order involving a parent’s contact with their child,” id. 

Thus, it concluded, “Pursuant to the holding of B.I., reliance on a court order 

constitutes justifiable cause.” A.K. II at ¶ 15. The Eighth District therefore held 

that father’s consent to the adoption was required.

{¶ 34} There are certainly parallels between the issues presented in this case 

and those in B.I., and I agree that the Eighth District was warranted in revisiting the 

consent issue based on the B.I. court’s broader discussion of the effect of court 
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orders on a parent’s consent to adoption. The law-of-the-case doctrine “is a matter 

of practice and discretion, not a limit on power.” Wright & Miller, Federal Practice 

and Procedure, Section 4478 (2d Ed.2021). Thus, an intervening decision “ ‘need 

not discuss the precise issue’ ” previously addressed by an appellate court for the 

decision to cast doubt on that court’s prior ruling. United States v. Plugh, 648 F.3d 

118, 124 (2d Cir.2011), quoting In re Zarnel, 619 F.3d 156, 168 (2d Cir.2010); see 

also United States v. Holloway, 630 F.3d 252, 258 (1st Cir.2011) (controlling 

authority “need not be directly on point to undermine” a prior decision of an 

appellate court for purposes of the law-of-the-case doctrine).

{¶ 35} Although the law-of-the-case doctrine did not preclude the Eighth 

District from taking a second look at the consent issue, B.I. does not control the 

result in this case. In holding that B.I. “established that reliance on a valid court 

order constitutes justifiable cause,” A.K. II at ¶ 20, the Eighth District overlooked 

important aspects of that decision, and the lead opinion makes that same error now.

B.I. involved a different question

{¶ 36} This court’s decision in B.I., 157 Ohio St.3d 29, 2019-Ohio-2450, 

131 N.E.3d 28, involved the first inquiry under R.C. 3107.07(A): whether the 

parent failed to have more than de minimis contact with the child or to provide for 

the maintenance and support of the child as required by law or judicial decree. In 

B.I., a child’s stepfather sought to adopt the child without the consent of the child’s 

biological father. The stepfather alleged that the father had failed to financially 

support the child in the manner required by law or judicial decree and that as a 

result, the adoption could go forward without the father’s consent. Id. at ¶ 2-3. The 

father objected on the grounds that he had been subject to a court order eliminating 

his child-support obligations and therefore had not failed to provide the financial 

support required by judicial decree. See id. at ¶ 4.

{¶ 37} This court agreed with the father. We held that “a parent’s 

nonsupport of his or her minor child pursuant to a judicial decree does not 
January Term, 2022

17

extinguish the requirement of that parent’s consent to the adoption of the child.” 

Id. at ¶ 1. We outlined the three statutory considerations necessary to decide 

whether the parent’s consent to adoption was required when it was alleged that the 

parent had failed to provide child support in the amount required by law or judicial 

decree. Id. at ¶ 15. To determine whether a parent has failed to provide child 

support “as required by law or judicial decree,” R.C. 3107.07(A), the court must 

first ascertain “what the law or judicial decree required of the parent,” B.I. at ¶ 16. 

We explained, “If the father had no obligation to provide child support, the analysis 

ends there.” Id. If there is an obligation to pay support, the court then must 

determine whether the parent complied with that requirement. Id. at ¶ 15. And 

finally, if the parent failed to pay support as required by law or judicial decree, the 

court must determine whether that failure was justified. Id.

{¶ 38} The result in B.I. was compelled by the plain language of the statute. 

For the court to conclude that the father’s consent to adoption was not required, the 

stepfather needed to establish that the father had failed “to provide for the 

maintenance and support of the minor as required by law or judicial decree.” 

(Emphasis added.) R.C. 3107.07(A). We held that because the juvenile court had 

issued an order reducing the father’s support obligation to zero, the father had not 

failed to provide the support required by judicial decree. B.I. at ¶ 29; see also In re 

Adoption of A.C.B., 159 Ohio St.3d 256, 2020-Ohio-629, 150 N.E.3d 82, ¶ 10 

(“Whether father has provided the necessary support under the statute is measured 

by the terms of the judicial decree”).

{¶ 39} The court in B.I. never reached the question whether the parent’s 

failure to provide support or contact was justifiable. Indeed, we explained that the 

statute distinguishes the justifiable-cause inquiry from the question of what was 

required by the judicial decree, saying:
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[T]he issue is not whether a decree ordering zero support—or one 

that terminates a previously ordered support obligation or modifies 

a previously ordered support amount to zero—justifies a failure to 

provide maintenance and support; instead, the issue is whether the 

existence of a no-support order means that the parent subject to it 

was under no obligation to provide maintenance and support.

(Footnote omitted.) B.I., 157 Ohio St.3d 29, 2019-Ohio-2450, 131 N.E.3d 28, ¶ 16.

{¶ 40} The lead opinion relies on the three-part test outlined in B.I., saying 

that it, too, decides this case “at the first step by determining what the law or judicial 

decree required,” lead opinion at ¶ 15. But that analysis has no application here. 

The three steps outlined in B.I. pertained only to a challenge to a parent’s right to 

consent to adoption on the grounds that the parent had failed in his or her childsupport obligations. That is because the language “as required by law or judicial 

decree” in the statute applies only to the determination of the amount of child 

support owed. R.C. 3107.07(A); B.I. at ¶ 14-16. The amount of contact a parent 

must have with his or her children to preserve the right to consent to adoption is not 

set by law or judicial decree; it is instead dictated by R.C. 3107.07(A) itself, which 

requires that the contact be “more than de minimis.” Thus, to resolve a challenge 

involving a parent’s lack of contact with his or her children, the statute directs us 

to consider only two things: whether the parent failed to have more than de minimus 

contact with them and whether that failure was justified.

{¶ 41} It is undisputed that A.K. and C.K.’s father had no contact with them 

during the year preceding the filing of the adoption petitions. There is therefore no 

question that the first requirement necessary to extinguish the need to obtain 

father’s consent to adoption has been met: father failed “to provide more than de 

minimis contact” with his children. See R.C. 3107.07(A). The question we must 
January Term, 2022

19

answer here exists at the second step; we must decide whether that failure was 

“without justifiable cause.” See id.

{¶ 42} It is true that, like the father in B.I., A.K. and C.K.’s father asserts 

that he relied on a valid court order—here, a court order prohibiting him from 

contacting his children. But the lead opinion is wrong to conclude that there should 

be no difference in how courts approach the support and contact inquiries because, 

in its estimation, “the underlying policy implications are the same,” lead opinion at 

¶ 18. By thumbing its nose at the statute and relying almost exclusively on policy 

considerations, the lead opinion writes off the critical distinction between the legal 

question presented in B.I. and the one at issue here. In B.I., the father’s legal childsupport obligation was set by the terms of the court order; in other words, the childsupport order directly informed the issue whether the father had failed to provide 

his child with the financial support “required by * * * judicial decree,” as mandated 

by R.C. 3107.07(A). The same is not true in this case. The no-contact order has 

no bearing on the first part of the test, whether A.K. and C.K.’s father failed to have 

“more than de minimus contact” with them; it is relevant only to the second 

question, whether their father’s lack of contact was justified.

{¶ 43} Given that the lead opinion acknowledges this variation in the 

statutory language, its contention that “there is no logical reason why the analysis 

should be any different,” lead opinion at ¶ 15, is puzzling. The B.I. court’s analysis 

of the child-support order dealt not with justifiable cause but with the threshold 

question under the statute: the amount of child support that was required by the 

judicial decree. In contrast to the child-support order in B.I., a no-contact order has 

no effect on the threshold legal requirement that a parent have more than de minimis 

contact with his or her children.

{¶ 44} The lead opinion scoffs at this distinction, assuring us that the 

difference in the way the statute treats the support and contact inquiries doesn’t 

matter, because it won’t change the result in this case. But our goal isn’t just to end 
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20

up in the right place, it is also to correctly set forth the law for the benefit of future 

litigants. And if we are sloppy in our analysis in this case, there may well be 

untoward results in other cases.

{¶ 45} Consider, for instance, an order forbidding a parent from having 

contact with his or her child until the parent satisfies a specified set of conditions—

say, completion of a drug-treatment program or anger-management classes. Or a 

no-contact order that explicitly states that the court will consider requests for 

modification after a period of one year. Surely, if a parent’s lack of contact with 

his or her child is a result of the parent’s failure to take the steps necessary to have 

contact, a trial court may consider those facts in evaluating whether the lack of 

contact was justified—notwithstanding the fact that the parent is still complying 

with a valid no-contact order.

{¶ 46} Or 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. 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?

{¶ 47} These are just examples. But they illustrate the real problem with 

the lead opinion’s proposed holding. The lead opinion, in effect, would turn a nocontact order into a conclusive presumption that a natural parent was justified in 

not having contact with a child. In doing so, it would deprive a potential adoptive 

parent of any opportunity to show that the natural parent’s lack of conduct was 

unjustified notwithstanding the existence of the order. Although establishing a lack 

of justifiable cause “ordinarily will not be an easy showing to make,” A.C.B., 159 

Ohio St.3d 256, 2020-Ohio-629, 150 N.E.3d 82, ¶ 17, it is one that the statute 

entitles an adoption petitioner a fair chance to make.

{¶ 48} To be sure, a person seeking to adopt will often be unable to meet 

his or her burden of establishing a lack of justifiable cause when faced with 
January Term, 2022

21

evidence that a parent’s failure to contact his or her child was due to compliance 

with a valid no-contact order. I am not suggesting that the trial court should 

examine the underlying reasons that the no-contact order was issued in the first 

place. But in determining whether a parent’s lack of contact was justified, a trial 

court must be permitted to consider evidence relevant to that lack of contact. The 

lead opinion’s proposed holding that, as a matter of law, “a parent’s right to consent 

to the adoption of his or her child is not extinguished under R.C. 3107.07(A) for 

lack of sufficient contact with the child when the parent has acted in compliance 

with a no-contact order prohibiting communication or contact with his or her minor 

child,” lead opinion at ¶ 1, would remove from consideration the scope and terms 

of the no-contact order at issue or whether the order affected the parent’s contact 

with his or her children in a given case. Rather than hold that the existence of a nocontact order irrefutably establishes justifiable cause, I would permit courts to 

consider the scope of the order and to determine based on the evidence presented 

whether the parent’s lack of contact with his or her child was truly a result of the 

order.

The adoption petitioners did not establish a lack of justifiable cause

{¶ 49} Although I disagree with the lead opinion’s reasoning, I ultimately 

concur in the judgment it announces. On the facts of this case, the grandparents 

have not met their burden of establishing that despite the existence of the no-contact 

order, father lacked justification for failing to have contact with his children.

{¶ 50} The record in this case more than established that father’s lack of 

contact with his daughters was due to his compliance with the juvenile court’s nocontact order. And the probate court improperly relied on father’s crime as the 

central basis for finding that his lack of contact was unjustifiable. Moreover, while 

the order stated that father was prohibited from contacting his children “absent an 

Order from [the juvenile] Court,” such general language does little to establish that 
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22

under the circumstances here, father would have had any meaningful opportunity 

to obtain modification of the order.

{¶ 51} In short, father presented substantial evidence establishing that he 

was actively abiding by the terms of the no-contact order, and the grandparents did 

not meet their burden of overcoming that showing and establishing by clear and 

convincing evidence that father’s lack of contact with the children was nevertheless 

unjustified. I therefore agree that father’s consent to adoption is required and join 

in the judgment remanding the case to the trial court for further proceedings.

FISCHER, J., concurs in the foregoing opinion.

_________________

O’CONNOR, C.J., dissenting.

{¶ 52} Because I do not believe that this court’s decision in In re Adoption 

of B.I., 157 Ohio St.3d 29, 2019-Ohio-2450, 131 N.E.3d 28, is an intervening 

decision, I would conclude that the court of appeals erred when it reconsidered its 

decision that the father’s consent to the adoption of the children was not required, 

and I would accordingly reverse the judgment of the court of appeals and remand 

this matter to that court for it to review the probate court’s determination that the 

adoption was in the best interest of the children.

_________________

KENNEDY, J., dissenting.

{¶ 53} The common thread between this case and In re Adoption of B.I.,

157 Ohio St.3d 29, 2019-Ohio-2450, 131 N.E.3d 28, is that both cases concern 

subdivision (A) of the consent-to-adoption statute—R.C. 3107.07. But that is all 

that these two cases have in common.

{¶ 54} This case is about what constitutes “justifiable cause” when a natural 

parent has failed to have more than de minimis contact with his children in the year 

preceding the filing of a petition for adoption. B.I. was not about the de minimis 
January Term, 2022

23

contact provision of R.C. 3107.07(A), and this court never reached the question of 

what constituted “justifiable cause” in that case.

{¶ 55} The law-of-the-case doctrine provides that a court decision resolving 

a question of law should control the same legal issue in subsequent proceedings in 

the same case. Pepper v. United States, 562 U.S. 476, 506, 131 S.Ct. 1229, 179 

L.Ed.2d 196 (2011), citing Arizona v. California, 460 U.S. 605, 618, 103 S.Ct. 

1382, 75 L.Ed.2d 318 (1983). One exception to the law-of-the-case doctrine is 

when an intervening decision changes the controlling law. See Nolan v. Nolan, 11 

Ohio St.3d 1, 462 N.E.2d 410 (1984); Hopkins v. Dyer, 104 Ohio St.3d 461, 2004-

Ohio-6769, 820 N.E.2d 329, ¶ 3. An appellate court is required to apply an 

“intervening decision by a superior court that [is] inconsistent with the law of the 

case.” Id. at ¶ 19. Because B.I. has different facts, involves a different provision 

of the consent-to-adoption statute, and does not address “justifiable cause,” B.I. is 

not an intervening decision and the law-of-the-case doctrine applies to this case. 

Therefore, I dissent and would reverse the judgment of the court of appeals and 

remand this matter to that court to review the probate court’s determination that the 

adoption was in the best interest of the children.

Appellate court’s determination that father’s de minimis contact with his 

children was without justifiable cause is the law of the case

{¶ 56} The law-of-the-case doctrine provides that “ ‘when a court decides 

upon a rule of law, that decision should continue to govern the same issues in 

subsequent stages in the same case.’ ” Pepper at 506, quoting Arizona at 618. The 

doctrine “expresses the practice of courts generally to refuse to reopen what has 

been decided,” but it does not limit their power. Messenger v. Anderson, 225 U.S. 

436, 444, 32 S.Ct. 739, 56 L.Ed. 1152 (1912). The law-of-the-case doctrine applies 

to “legal questions involved for all subsequent proceedings in the case at both the 

trial and reviewing levels.” Nolan at 3. The rule is necessary “to ensure consistency 

of results in a case, to avoid endless litigation by settling the issues, and to preserve 
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24

the structure of superior and inferior courts as designed by the Ohio Constitution.” 

Id. “Absent extraordinary circumstances, such as an intervening decision by the 

Supreme Court, an inferior court has no discretion to disregard the mandate of a 

superior court in a prior appeal in the same case.” Id. at syllabus. An intervening 

decision is one that has “created a change in the law that [is] inconsistent with the 

legal conclusion reached by the appellate court.” Hopkins at ¶ 2-3. A lower court 

is required to apply an intervening decision by this court that is inconsistent with 

the law of the case. Id. at ¶ 19.

{¶ 57} “Under the law-of-the-case doctrine, the denial of jurisdiction over 

a discretionary appeal by this court settles the issue of law appealed.” Sheaffer v. 

Westfield Ins. Co., 110 Ohio St.3d 265, 2006-Ohio-4476, 853 N.E.2d 275, syllabus. 

After the appellate court affirmed the trial court’s determination that the father in 

this case had failed to have contact with his daughters without justifiable cause, In 

re A.K., 8th Dist. Cuyahoga No. 105426, 2017-Ohio-9165, the father filed a 

discretionary appeal in this court. He raised the following proposition of law:

When a natural parent refrains from contacting his children 

in compliance with a court order, he has “justifiable cause” for the 

lack of contact, regardless of the circumstances leading to the order, 

and he may therefore withhold his consent to a third party’s adoption 

petition under R.C. 3107.07(A).

This court declined jurisdiction. In re A.K., 152 Ohio St.3d 1468, 2018-Ohio-1795, 

97 N.E.3d 502. Therefore, under Shaeffer, our denial of jurisdiction settled the 

issue of law appealed and the appellate court’s holding—that the father lacked 

justifiable cause in failing to have more than de minimis contact with his children—

became the law of the case.
January Term, 2022

25

{¶ 58} The father argues that the court of appeals was correct in holding 

that the intervening-decision exception to the law-of-the-case doctrine applies here. 

He asserts, and the court of appeals determined, that this court’s decision in B.I.,

157 Ohio St.3d 29, 2019-Ohio-2450, 131 N.E.3d 28, is an intervening decision. It 

is not. This case addresses only whether the father had “justifiable cause” for his 

lack of contact with his children in the year immediately preceding the filing of the 

petitions for adoption. The facts in this case and the legal question raised here are 

different from the facts and the legal question raised in B.I.

{¶ 59} B.I. was a discretionary appeal and certified-conflict case from the 

First District Court of Appeals. While the certified question and the second 

proposition of law we accepted posed a “justifiable cause” question, see id. at 

¶ 8-9, we never reached that question. In fact, we explicitly stated: “[T]he issue is 

not whether a decree ordering zero support * * * justifies a failure to provide 

maintenance and support; instead, the issue is whether the existence of a no-support 

order means that the parent subject to it was under no obligation to provide 

maintenance and support.” (Footnote explaining the term “no-support order” 

omitted.) Id. at ¶ 16. B.I. was about whether a natural parent’s reliance on and 

compliance with a zero-child-support order meant that he had met his court-ordered 

obligation of support. Id.

{¶ 60} Our decision in B.I. does not announce a rule of law that is 

inconsistent with the court of appeals’ prior decision in this case. It is not an 

intervening decision that provides an exception to the law-of-the-case doctrine and 

permits the lower courts to disregard the mandate from this court leaving in place 

the court of appeals’ holding that the father’s consent was not required for the 

adoptions. Our decision in B.I. is not based on the same facts or law at issue in this 

case.

{¶ 61} Therefore, our denial of the father’s discretionary appeal resulted in 

the appellate court’s original judgment—that there was no justifiable cause for his 
SUPREME COURT OF OHIO

26

failure to have contact with his children in the year preceding the filing of the 

petitions for adoption—becoming the law of the case. The question whether he had 

justifiable cause for his failure to have contact is not properly before us.

{¶ 62} Once this court determines that the law-of-the-case doctrine applies, 

our analysis should end. But the lead opinion attempts to fix this fatal flaw by 

ignoring the factual and legal differences in the two cases and by conflating the 

provisions of R.C. 3107.07(A). As a result, the lead opinion’s conclusion is 

contrary to the plain and unambiguous language of the statute.

Plain and unambiguous language of R.C. 3107.07(A)

{¶ 63} “ ‘Decisions are the hardest moves to make, especially when it’s a 

choice between what you want and what is right.’ ” Unknown.

{¶ 64} This court must respect the fact that the constitutional authority to 

legislate was conferred solely on the General Assembly, Article II, Section 1, Ohio 

Constitution, and that it is the province of the General Assembly to make policy 

decisions, Groch v. Gen. Motors Corp., 117 Ohio St.3d 192, 2008-Ohio-546, 883 

N.E.2d 377, ¶ 212. It is undisputed that “[j]udicial policy preferences may not be 

used to override valid legislative enactments.” State v. Smorgala, 50 Ohio St.3d 

222, 223, 553 N.E.2d 672 (1990), superseded by statute on other grounds as stated 

in State v. Mayl, 106 Ohio St.3d 207, 2005-Ohio-4629, 833 N.E.2d 1216, ¶ 54.

{¶ 65} A court’s main objective in statutory construction is to determine 

and give effect to the legislative intent, and to determine intent, we must first look 

to the words of the statute itself. Provident Bank v. Wood, 36 Ohio St.2d 101, 105, 

304 N.E.2d 378 (1973). “When the statutory language is plain and unambiguous, 

and conveys a clear and definite meaning, we must rely on what the General 

Assembly has said.” Jones v. Action Coupling & Equip., Inc., 98 Ohio St.3d 330, 

2003-Ohio-1099, 784 N.E.2d 1172, ¶ 12, citing Symmes Twp. Bd. of Trustees v. 

Smyth, 87 Ohio St.3d 549, 553, 721 N.E.2d 1057 (2000). “Words and phrases shall 
January Term, 2022

27

be read in context and construed according to the rules of grammar and common 

usage.” R.C. 1.42.

{¶ 66} When there is no ambiguity, we must abide by the words employed 

by the General Assembly, see State v. Waddell, 71 Ohio St.3d 630, 631, 646 N.E.2d 

821 (1995), and have no cause to apply the rules of statutory construction, see

Hulsmeyer v. Hospice of Southwest Ohio, Inc., 142 Ohio St.3d 236, 2014-Ohio5511, 29 N.E.3d 903, ¶ 22-23. “We ‘do not have the authority’ to dig deeper than 

the plain meaning of an unambiguous statute ‘under the guise of either statutory 

interpretation or liberal construction.’ ” Jacobson v. Kaforey, 149 Ohio St.3d 398, 

2016-Ohio-8434, 75 N.E.3d 203, ¶ 8, quoting Morgan v. Adult Parole Auth., 68 

Ohio St.3d 344, 347, 626 N.E.2d 939 (1994).

{¶ 67} Generally, in Ohio parental consent is a prerequisite to adoption. 

McGinty v. Jewish Children’s Bur., 46 Ohio St.3d 159, 161, 545 N.E.2d 1272 

(1989). R.C. 3107.07(A) creates exceptions to the parental-consent requirement. 

A natural parent’s consent to an adoption is unnecessary if a probate court 

determines 

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 * * * the filing of the adoption petition.

R.C. 3107.07(A).

{¶ 68} A plain reading of the statute demonstrates that there are two 

circumstances under (A) when a natural parent’s consent to adopt is not necessary. 

The first circumstance is when the natural parent fails to have more than de minimis 

contact with the child or children in the year preceding the filing of the adoption 
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28

petition without justifiable cause. The second circumstance is when the natural 

parent has failed to provide maintenance and support as required by law or judicial 

decree in the year preceding the filing of the petition for adoption without justifiable 

cause.

{¶ 69} A plain reading of the de minimis contact provision provides that 

there are only two elements for the court to consider. The court begins with the 

inquiry whether there was more than de minimis contact in the year preceding the 

filing of the petition for adoption. If there was more than de minimis contact during 

that time, the court’s inquiry ends. But if there was not more than de minimis 

contact during that time, the court must consider the second element—whether the 

lack of contact was justified.

{¶ 70} A plain reading of the maintenance-and-support provision provides 

that there are three elements for the court to consider. The first consideration, as 

we said in B.I., is what the applicable judicial decree required for maintenance and 

support. 157 Ohio St.3d 29, 2019-Ohio-2450, 131 N.E.3d 28, at ¶ 15. The second 

consideration is whether the parent met his or her obligation under the judicial 

decree. Id. If the parent has met that obligation, then the court’s inquiry ends. But 

if the parent has not met that obligation, then the court must determine whether 

there was justifiable cause for that failure.

{¶ 71} The judicial-decree element of the three-part test for determining 

whether the maintenance-and-support provision is satisfied comes directly from the 

statutory language of R.C. 3107.07(A). There is no judicial-decree language in the 

de minimis contact provision. Therefore, whatever contact a judicial decree orders 

between a parent and his or her child is not relevant to the probate court’s inquiry 

regarding whether the parent had more than de minimis contact with the child. The 

question is simply whether there was more than de minimis contact.

{¶ 72} In this case, the lead opinion applies our three-part maintenance-andsupport test established in B.I. to a two-part de minimis contact case. The lead 
January Term, 2022

29

opinion claims that “there is no logical reason why the analysis should be any 

different” when considering a contact case as opposed to a maintenance-andsupport case. Lead opinion, ¶ 15. But that conclusion is erroneous. There is a 

logical reason to analyze the two provisions differently: the plain, unambiguous 

language of the statute.

{¶ 73} The evaluation of a de minimis contact case does not start with the 

question “What does the judicial decree say?” It starts with the question “Was there 

more than de minimis contact?” The lead opinion applies the wrong test to this 

case and has to pretend that this case and B.I., 157 Ohio St.3d 29, 2019-Ohio-2450, 

131 N.E.3d 28, are the same type of case to avoid the law-of-the-case doctrine. And 

in avoiding the law-of-the-case doctrine, the lead opinion creates an unacceptable 

consequence for the children in this case: an inability to enjoy their right to an intact 

childhood and a loving adoptive family.

Conclusion

{¶ 74} In this case, the father has not had contact with his children, A.K. 

and C.K., for at least 14 years. The probate court determined that the father lacked 

justifiable cause for not contacting his children, the court of appeals affirmed that 

judgment, A.K., 2017-Ohio-9165, and we declined to accept the father’s 

discretionary appeal, 152 Ohio St.3d 1468, 2018-Ohio-1795, 97 N.E.3d 502. 

Because the law at issue in this case is not the same as the law at issue in B.I., the 

intervening-decision exception to the law-of-the-case doctrine does not apply. 

Moreover, since the issue of justifiable cause was determined by the probate court 

and affirmed by the appellate court and this court declined to accept jurisdiction 

over an appeal from the appellate court’s judgment, under the law-of-the-case 

doctrine, that decision—that the father did not have justifiable cause—is the law of 

this case. I therefore dissent and would reverse the judgment of the appellate court 

and remand this matter to that court for it to review the probate court’s best-interest 

determination.
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DONNELLY, J., concurs in the foregoing opinion.

_________________

Law Offices of James B. Palmquist III and Rebecca Clark; and Michelle K. 

McGuire, for appellants.

Mary Catherine Barrett Co., L.P.A., and Mary Catherine Barrett, for 

appellee.

_________________