ELYRIA — A state appeals court upheld Lorain County Probate Judge James Walther’s order barring Asim Taylor from having any more children until he makes good on child support payments for the children he has already fathered.
The decision, released Monday by the 9th District Court of Appeals, did not provide a legal explanation on whether Walther’s order was appropriate. Instead, two of the three judges on the panel wrote that without a copy of a pre-sentence report on Taylor completed by the county Adult Probation Department, they didn’t have enough information to examine the virtues of Walther’s order.
“Indeed, we have little to go on other than what the trial court said in its journal entries, which is itself limited,” Judge Carla Moore wrote in the majority decision. “We therefore have no choice in this case but to presume the regularity of the community control sanctions and to affirm.”
Walther imposed the order during a January 2013 hearing in which he placed Taylor on probation for failing to pay nearly $100,000 in child support for his four children.
At the time, Walther called the order a “matter of common sense and personal responsibility.”
Walther, who handles all criminal non-support cases in the county, said Monday that the appeals decision gives him the authority to impose similar restrictions on other defendants in similar cases. But he also said he would have liked to have seen a more detailed analysis of the legality of his order.
“I’m happy they upheld me, but I’m disappointed they didn’t decide on the merits,” he said.
Taylor’s attorney, Doug Merrill, who has argued that the order violates Taylor’s right to reproduce, said he was surprised that the lack of a pre-sentence report, which is produced to give judges an idea of a defendant’s background, was the deciding factor in the case.
“This decision didn’t require one,” he said. “It was dealing with his rights, not his record.”
Merrill said he plans to ask the Ohio Supreme Court to review the case.
This wouldn’t be the first time the Ohio Supreme Court has been asked to weigh in on whether a judge can bar someone on probation from having more children. The court struck down a similar order in 2004 after determining that Medina County Common Pleas Judge James Kimbler had failed to include a mechanism for lifting the order.
Walther’s order dealt with that issue by stating that the order would be lifted if Taylor could show he was taking responsibility for supporting his children, said Judge Donna Carr, who delved into the issue more fully than her colleagues in a concurring opinion.
Carr wrote that the record in the case showed Taylor has a history of failing to make child support payments, showed no remorse and had the ability to work and make the payments to support the children he already has.
Given his past failures to financially support his children, Carr wrote that Walther’s order made sense.
“Where, as here, the defendant has demonstrated a long-term refusal to support multiple children by multiple women notwithstanding his ability to work and contribute something for their care, an anti-procreation condition is reasonably related to future criminality,” Carr wrote. “Taylor has here demonstrated that he is not inclined to support any of his children. There is no reason to believe that he would be inclined to support any future children.”
Carr also rejected Merrill’s arguments that it was unconstitutional to infringe on Taylor’s rights to have children. She wrote that other courts, including the Wisconsin Supreme Court, have upheld orders similar to the one Walther imposed on Taylor.