State, Ex Rel. Clark v. Allaman , 87 Ohio App. 101 ( 1950 )

This is a proceeding in habeas corpus instituted originally in this court by Betty Clark to have restored to her the custody of her child which is now in the custody of the respondent Allaman, superintendent of the Montgomery County Detention Home, under order of the Juvenile Court of Montgomery County.

The matter is submitted to this court on an agreed and a supplemental statement of facts which show that the child in question was born out of wedlock on the 27th day of March, 1949; that the father of the child is unknown; that after the birth of the child the mother, Betty Clark, the petitioner herein, and the child resided in the home of Mr. and Mrs. Arthur Brendel, Dayton, Ohio; that on April 21, 1949, the Brendels filed a petition in the Probate Court of Montgomery County, for adoption of the child; that the mother gave her consent in writing to such adoption; and that on August 12, 1949, a hearing was held in the Probate Court on the petition for adoption and at that time the Brendels, through their counsel, withdrew their petition for adoption and thereupon the court made the following order, which was journalized:

"The court finds that the petitioners herein desire to withdraw their petition for this adoption.

"Therefore, it is hereby ordered that said petition be withdrawn and that this cause be dismissed. It is further ordered that this cause be certified to the Montgomery County Juvenile Court for appropriate action and disposition as provided by Section 10512-21 of the General Code of Ohio."

The facts further show that certification was made to the Juvenile Court of Montgomery County.

On August 18, 1949, a preliminary hearing was held in the Juvenile Court and on that date the court ordered the child removed from the home of the Brendels and placed in a licensed foster home. On September 12, 1949, a second hearing was held in the Juvenile Court, at which time the court found that the child was a dependent child and that it would be for the best interests of the child that the mother be deprived of its custody temporarily; "that by journal entry, the temporary care and custody of said child was given to the Catholic Charities of Dayton, Ohio, and said child at the request of the Catholic Charities is now in the control of Richard Allaman, superintendent of the Montgomery County Detention Home," a respondent herein; "that all of said proceedings in the Juvenile Court was taken over the protest and without the consent of the relatrix." "No charge as against the relatrix concerning the dependency of said child has been made in the Juvenile Court and that the Juvenile Court assumed jurisdiction over said child solely by virtue of the order of the Probate Court * * * certifying said cause under the provisions of Section 10512-21, General Code."

There are certain salient facts that should be noted at the outset of this case.

The respondents rely entirely upon the proposition that the Juvenile Court had jurisdiction to commit the child for dependency on the certification of the Probate Court.

The probate judge made no interlocutory order of adoption, or otherwise, affecting the custody of the child.

The custody and right of custody was, at all times prior to certification, in the mother, the petitioner.

There were two hearings respecting the child. The first on August 18, 1949, the second on September 12, 1949. The commitment complained of was made at the second hearing. At no time was there any complaint filed charging the child to be a dependent child or any other form of complaint originating in the Juvenile Court.

The respondent holds the child upon a commitment predicated on an adjudication "that said child is a dependent child" and for that reason it is for the best interests of the child that its parent be deprived of its custody temporarily. The temporary aspect of the order does not affect the question presented because the adjudication of dependency has been made, which, if proper, will support permanent as well as temporary commitment.

The court will modify its temporary order only upon change of circumstances as to which, if the application be made by the mother, the burden will be upon her. Upon a charge of dependency, the burden is upon the state.

Did the Juvenile Court have jurisdiction to make the order upon which the commitment to respondents rests? We think it did not, for two reasons.

The first is that there was no proper basis for the certification from the Probate Court to the Juvenile Court under Section 10512-21, General Code, which, so far as applicable, provides:

"If for any reason whatsoever the petition shall be dismissed * * *, the following disposition shall be made of the child: (a) * * *. (b) Otherwise the cause shall be certified to the juvenile court * * *." (Emphasis ours.)

The entry reads:

"The court finds that the petitioners herein desire to withdraw their petition for this adoption.

"Therefore, it is hereby ordered that said petition be withdrawn and that this cause be dismissed. * * *"

The petition was not dismissed but was withdrawn by the petitioners. The court did not act on the petition and at the time of the certification there was nothing pending and no "cause" upon which the certification could be based.

In the position we take, we are not relying on the technical difference between "withdrawal" and "dismissal" and realize that those terms may be used synonymously, and under certain situations a party has the right to dismiss a cause of action.

It is probable upon consideration of the adoption code that the dismissal of the petition mentioned in Section 10512-21 (b), General Code, is intended to be made by the court after some adjudication on the adoption proceeding. Section 10512-18 and Section 10512-20, General Code, each provides for a full hearing and defines the orders that may be made at its conclusion. Section 10512-21, General Code, which follows immediately, should be read in the light of the preceding sections.

The petition for adoption, which is brought into the record by a supplemental stipulation of facts, recites that "said child is living in the home of the petitioners" (which was also the home of the mother) "and is in the permanent custody of Betty Marie Clark, natural mother and sole parent of the child sought to be adopted," etc.

The withdrawal of the petition was in effect the same as if done the day after it was filed. What reason was there for a certification to the Juvenile Court? Two of the best citizens of Dayton decide to begin an adoption proceeding involving a child of one of them and the parent files consent, but before any order is made respecting the adoption these parties for reasons satisfactory to themselves decide to withdraw all proceedings, to which the court consents. Is it contemplated by the adoption statutes that in such a situation the child must first be certified to Juvenile Court, a hearing had affecting its custody and an adjudication made thereon before the parent may have the custody of his own child? We do not believe that certification is contemplated or proper in such situation.

Our second reason, and of more consequence than the first, assumes the regularity and validity of the certification from the Probate Court to the Juvenile Court.

The commitment is grounded upon an adjudication that the minor is a dependent child. If that is made without jurisdiction the commitment is void. The finding as to the best interest of the child is not an independent but a dependent conclusion based upon the primary and essential adjudication of the dependency. The Juvenile Court did not have jurisdiction to determine that the minor was a dependent child because its jurisdiction was not properly invoked to make such an adjudication.

The statute under which the certification was made provides that if the petition be dismissed "(b) * * * the cause shall be certified to the Juvenile Court * * * for appropriate action and disposition by such court."

What then was appropriate action of the Juvenile Court as to what disposition should be made?

The jurisdiction of the Juvenile Court is not fixed, defined, or enlarged by this certification statute but is conferred by the Juvenile Court Act. Section 1639-16 (d), General Code, provides:

"The court shall have jurisdiction to hear and determine the case of any child duly certified to the court according to law by any court of competent jurisdiction, and to makedisposition of said child in accordance with the provisions ofthis chapter." (Emphasis ours.)

The chapter referred to is the Juvenile Court Act. In the act are defined delinquent child, neglected child, dependent child and crippled or otherwise physically handicapped child, and the court is given exclusive jurisdiction concerning such children.

It is stipulated that the court assumed jurisdiction over the child solely by virtue of the certification from the Probate Court and without any complaint charging that it was a dependent child.

Section 1639-23, General Code, provides that jurisdiction of the court shall be invoked by the filing of a sworn complaint that the child is dependent, etc. Section 1639-24, General Code, requires that a citation shall be given to parents, reciting the substance of the complaint, etc. The citation which was issued must have been based on the certification. No citation in compliance with this section could have been made upon the petitioner for the obvious reason that no complaint had been filed. Section 1639-24 further provides that after suchcitation if it appears "that the child is in such conditions or surroundings that his welfare requires that his custody be immediately assumed by the court * * *," the court may order that the child be taken into custody at once. Apparently the custody was assumed by the court on the first hearing but no complaint had then, or later, been filed.

It should be noted that the record shows no order of the Probate Court in the adoption proceeding (Section 10512-18, General Code) affecting the custody of the child, and though it had been living with those who sought to adopt it, as was its mother, this did not affect the right of the mother to its custody until some such order had been made or until the state, by some appropriate proceeding, had intervened. Rarey v.Schmidt, 115 Ohio St. 518, 154 N.E. 914. No such proceeding was followed, but the court, without complaint filed and over the protestations of the mother, conducted a hearing, adjudicated the infant to be a dependent child and awarded custody to another than the parent. This procedure is not contemplated in any situation wherein the dependency of a child is to be adjudicated.

We recognize that the acts of minors, or their parents, defined in the Juvenile Court Act and of which the judges of that court are given jurisdiction, are not to be classified as criminal but are so related that there is analogy between the procedure in both classes of cases.

"The juvenile court has just such jurisdiction as is conferred upon it by statute." 24 Ohio Jurisprudence, 561, Section 17.

They are "courts of special jurisdiction over delinquent and neglected children, their jurisdiction being limited by the terms of the constitutional or statutory provisions under which they are created." 43 Corpus Juris Secundum, 53, Section 6. "And" (their) "jurisdiction must be strictly construed, and cannot be enlarged by a provision in the statute requiring the statute to be liberally construed, so that its purposes may be carried out." 43 Corpus Juris Secundum, 54, Section 6.

Jurisdiction must be determined from the charge against a defendant and until it is lodged with the court it has no jurisdiction of the person or the subject matter. 14 American Jurisprudence, 918, Section 215; 22 Corpus Juris Secundum, 235, Section 143. Jurisdiction of parties may be determined by consent but jurisdiction of the subject matter is always fixed by law. 12 Ohio Jurisprudence, 103, Section 59. Jurisdiction of one charged with an offense before courts of limited jurisdiction can be acquired only by filing an affidavit or requisite complaint. 12 Ohio Jurisprudence, 102, Section 59. In an annotation to Sinquefield v. Valentine (159 Miss. 144,132 So. 81), 76 A. L. R., 247, it is concluded:

"It has been uniformly held in cases based on statute and principle, that a parent cannot be deprived of the custody of a child in commitment proceedings, without notice and an opportunity to be heard." Authorities from fifteen states, including Ohio, are cited.

That a complaint is a prerequisite to the jurisdiction of the Juvenile Court to adjudge a minor to be a dependent child is decided, inferentially, at least, in Rarey v.Schmidt, supra, paragraph two of the syllabus. It holds that, with certain exceptions, not applicable here, a parent whose residence is known must be served with a citation of the pendency of the complaint before the Juvenile Court has jurisdiction to declare a child of the parent to be dependent. In the opinion, at page 521, Judge Robinson says:

"While the section [Section 1648, General Code] as a whole is inartfully drawn, it quite definitely appears that before the jurisdiction of the court to deal with the child attaches one of three classes of persons — the parent, the guardian, or the person having custody of the child — shall have legal notice of the pendency of the complaint."

See, also, Ex parte Province, 127 Ohio St. 333,188 N.E. 550; Lewis v. Reed, 117 Ohio St. 152, 157 N.E. 897; In reCorey, 145 Ohio St. 413, 61 N.E.2d 889; In re Hobson, 44 Ohio Law Abs., 86, 62 N.E.2d 510.

The filing of a complaint charging the dependency of the child was the sine qua non to the jurisdiction of the Juvenile Court to adjudicate as to such dependency. Without such complaint and notice to the mother of the charge therein set forth she was denied her basic right to defend against the claim.

There is at least one other section of the Code, Section 1639-29, providing for certification of certain criminal cases to the Juvenile Court. That section provides analogy to and requires differentiation from Section 10512-21 (b). But where certification is made in criminal cases there has been already filed a complaint setting out in due form a charge of an offense and the statute provides that after certification the Juvenile Court shall thenceforth have exclusive jurisdiction which "shall be deemed to be upon a complaint filed in such court as fully as if the appearance of such child had been upon a complaint filed in and a citation or warrant of arrest originally issued out of and by such court."

When citation is made under this section all jurisdictional steps have been taken in the originating court. This is also true as to cases certified under Section 8034-1, General Code, and the paragraph (c) of Section 1639-16, General Code. In the instant case no claim was, or could have been, made in the adoption proceeding that the child was a dependent child.

It is true that in State, ex rel. Sparto, v. Williams, ante, —, 86 N.E.2d 501, we said that certain jurisdiction was conferred upon the Juvenile Court to determine custody of a child by the certification made by the Probate Court in an adoption proceeding. We said too much and a close reading of the section authorizing the certification is convincing that it does not ex vi termini confer the jurisdiction exercised here. Nor was the language just adverted to necessary to the adjudication because admittedly, when the court acted it had before it an affidavit in which it was charged that the minor was a neglected child.

We do not discuss Paddock v. Ripley, 149 Ohio St. 539,80 N.E.2d 129, because, if the syllabus is given full effect, it does not reach our question. Here there is a purported finding that the infant is a dependent child, which was not found in the cited case. The invalidity of the judgment, we consider, is further back in the proceeding in that there is no foundation upon which the adjudication can rest. We do not agree that the syllabus of Paddock v. Ripley is but a reiteration of obiter dictum in the opinion. It responds to a vital issue urged and litigated in the Supreme Court.

The Juvenile Court being without jurisdiction to make the finding and adjudication that the minor was a dependent child, the custodial order predicated on such judgment by which the child is now held is ineffective. The custody of the child is ordered restored to petitioner.

Custody restored.

MILLER, P. J., concurs in the judgment.