Cox v. Court of Common Pleas of Franklin County , 42 Ohio App. 3d 171 ( 1988 )

Relator, Janet Cox, has filed this original action requesting a writ of prohibition ordering the respondent court to cease the exercise of juvenile court jurisdiction over her in a dependency and neglect action. The case was referred to a referee, pursuant to Civ. R. 53.

The referee rendered a report on November 1, 1988, including findings of fact and conclusions of law. He recommended that a writ of prohibition issue ordering the respondent court to cease its exercise of juvenile court jurisdiction over relator, an adult over the age of eighteen years.

The respondent court appointed the Franklin County Public Defender as guardian ad litem for relator's unborn child. The guardian ad litem has moved to intervene and the referee has recommended the allowance of intervention in this case. The motion is sustained.

The parties have filed briefs in support of, as well as in opposition to, the referee's report.

The issue in this action was previously defined by journal entry, dated October 26, 1988, which stated, in pertinent part, as follows:

"* * * The Court notes various references in the memoranda filed herein by counsel to issues that are not before this Court including whether a fetus is a ``child' or ``person' within the meaning of various statutes and whether the trial court has jurisdiction over a fetus. Those are not issues herein and are not determined, even temporarily, hereby. The sole issue before this Court is whether the respondent court, a juvenile court, has been conferred jurisdiction over the person and body of a pregnant woman so as to control her personal life for the benefit of the unborn child she is carrying, and not whether the state may exercise such control through some appropriately adopted statutes * * *."

The record in this case depicts a deplorable factual situation and presents a very legitimate problem of public concern. The basic task before this court, however, is the application of the current law within the focus established by the above entry.

The referee made the following pertinent findings of fact:

"1. Relator, Janet Cox, is more than eighteen years of age.

"2. Respondent is the Franklin County Court of Common Pleas, Division of Domestic Relations, which has been granted the powers and jurisdiction of a juvenile court as provided by R.C. Chapter 2151.

"3. On September 15, 1988, a complaint was filed in the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch. The complaint was styled ``In the Matter of Unborn Child Cox' and assigned case number 88JU-09-6153. The complaint alleges in pertinent part:

"``2151.03(B)

"``Neglected child

"``Child lacks proper parental care and supervision due to the faults and habits of the parents, to wit: Mother is approximately seven (7) months pregnant with this child. Mother is a known drug user and has used cocaine and opiates throughout her pregnancy. Mother is now on the methadone program for her drug problem. Mother has failed twenty-three (23) drug screenings during her pregnancy. Father also abuses drugs and had been hospitalized this year after injecting a potentially lethal dose of drugs. Mother has refused prenatal care for the child and father has not reinforced the importance of prenatal care. Parents have four other children who are all in relative placement with permanent custody proceedings pending in this court. Fetus is being subjected to a life threatening situation by the parents. Child is in need of protection.

"``SECOND CAUSE OF ACTION

"``Dependent Child

"``2151.04(C)

"``The conditions or environment is such as to warrant the state in the interests of the child to assume legal custody, to wit: the complainant hereby incorporates the allegations of the first cause of action as if repeated verbatim herein.

"``And that the name of the person having custody or control of said minor child(ren) is: Janet Cox * * *.'

"4. On September 16, 1988, a preliminary hearing was held before the juvenile court. See Juv. R. 21. At the hearing, relator's attorney orally moved to dismiss the actions on the grounds that the juvenile court did not have jurisdiction over relator or her unborn child.

"5. On September 23, 1988, the juvenile court filed a journal entry which states in pertinent part:

"``This day this cause came on for hearing and the court being fully advised in the premises, and for good cause shown hereby finds:

"``On September 16, 1988, the court finds there is jurisdiction to proceed with this case. Court finds that the unborn fetus is approximately six months [of age and a "person"]. Court orders that the mother, Janet Cox, not use any illegal drugs that will endanger the unborn child and to submit herself to a medical examination to determine the health of the unborn child.' (Brackets indicate handwritten notation.)

"6. The state of Ohio filed a motion for contempt in the juvenile court in case number 88JU-09-6153. The motion is stated in three paragraphs as follows:

"``The State of Ohio, by and through the Franklin County Prosecuting Attorney, requests the Court to find Janet Cox in Contempt of Court for failure to obey and comply with former Orders of the Court to get prenatal care and a physical examination by a physician and to "abstain from the use of illegal drugs."

"``The State further requests the Court to Order Janet Cox before the Court to explain to the Court what prenatal care and physical examinations have occurred and by whom they were completed. The State requests that following said information being provided, the Court Order said medical records for verification.

"``The State further requests that the Court place Janet Cox in a secure drug treatment facility where she can be kept from continuing to violate the Court's Order and therefore injuring the "unborn child."'

"7. On October 20, 1988, the state of Ohio filed an amended motion for contempt in the juvenile court in case number 88JU-09-6153. The amended motion deleted the language of the third paragraph of the original motion.

"8. The juvenile court scheduled the motion for hearing."

The issue is now before this court for determination. Three standards must be met before a writ of prohibition will issue: (1) the court or officers against whom relief is sought must be about to exercise judicial or quasi-judicial power; (2) the exercise of such power must be unauthorized by law; and (3) it must appear that the refusal of the writ would result in injury for which there is no other adequate remedy at law. State, exrel. Racing Guild of Ohio, v. Morgan (1985), 17 Ohio St.3d 54, 17 OBR 45, 476 N.E.2d 1060. The first prerequisite is, of course, fulfilled. The other two involve the basis of this case.

The juvenile court is exclusively statutory. The General Assembly has granted it particular jurisdiction, which may not be transcended. It is a court of record within the division of domestic relations of the common pleas court, pursuant to R.C.2151.07, which provides that the juvenile court shall have the jurisdiction granted by R.C. 2151.01 to 2151.99.

The juvenile court's jurisdiction is set forth in R.C. 2151.23, which reads in pertinent part:

"(A) The juvenile court has exclusive original jurisdiction under the Revised Code:

"(1) Concerning any child who on or about the date specified in the complaint is alleged to be a juvenile traffic offender, or a delinquent, unruly, abused, neglected, or dependent child[.]"

The Juvenile Code defines a "child" in R.C. 2151.011(B)(1): "``Child' means a person who is under the age of eighteen years * * *."

Further, the code defines "adult" in R.C. 2151.011(B)(2): "``Adult' means an individual eighteen years of age or older."

The single mention in R.C. Chapter 2151 of pregnancy is in R.C.2151.85, which concerns the filing of a complaint in the juvenile court on behalf of a pregnant unmarried woman under eighteen years of age who is unemancipated and who chooses to have an abortion without notification of her parents, guardian or custodian. Manifestly, that section has no relation to this case.

It is emphasized that, as specifically stated in the above-quoted journal entry, the questions as to whether the juvenile court can exercise jurisdiction over an unborn child and whether the statutory definition of "child" includes "an unborn child" need not be determined by this court. The issue is whether the juvenile court can assume jurisdiction over relator, an adult, for the purpose of regulating her life for the benefit of the unborn child.

The respondent court and the guardian ad litem maintain that R.C. 2151.359 authorizes the juvenile court to issue and enforce its order against relator. The statute provides the following:

"In any proceeding wherein a child has been adjudged delinquent, unruly, abused, neglected, or dependent, on the application of a party, or the court's own motion, the court may make an order restraining or otherwise controlling the conduct of any parent, guardian, or other custodian in the relationship of such individual to the child if the court finds that such an order is necessary to:

"(A) Control any conduct or relationship that will be detrimental or harmful to the child;

"(B) Where such conduct or relationship will tend to defeat the execution of the order of disposition made or to be made.

"Due notice of the application or motion and the grounds therefor, and an opportunity to be heard shall be given to the person against whom such order is directed."

R.C. 2151.359 does not expand the jurisdictional limitations of R.C. 2151.23, which establishes the exclusive original jurisdiction of the juvenile court. The juvenile court's authority, included in R.C. 2151.359, refers only to the court's restraining authority required to enforce its dispositions within its jurisdiction.

The respondent court also contends that the jurisdiction issue is one of fact, which this court should not disrupt, unless raised on appeal. The pertinent facts necessary to determine jurisdiction, however, are not in dispute. The question of relator's remedy is irrelevant when respondent clearly acted without jurisdiction. Further, since respondent is without jurisdiction to act, the adequacy of a remedy at law is not determinative, even assuming an immediate remedy of appeal be available. Thus, the requirements of State, ex rel. Racing Guildof Ohio, supra, have been met.

Respondent cites this court's unreported opinion in In re Pead (June 10, 1980), Franklin App. No. 79AP-906, unreported, to advance its contention that it can regulate outside parties. In that case, the children had been adjudged dependent and temporary custody was granted to the Franklin County Children's Services. That case is distinguishable because it is based upon R.C.2151.353 and 2151.359, both of which apply after adjudication.

The narrow issue in this action, simply stated, is whether the juvenile court can compel a pregnant woman to take action for the alleged benefit of her unborn child. Relator is not raising the issue of jurisdiction over the unborn child. The question raised involves jurisdiction over the mother. "Jurisdiction" is defined in Webster's Third New International Dictionary (1966) 1227, as "* * * the legal power, right, or authority to hear and determine a cause considered either in general or with reference to a particular matter * * *." Jurisdiction for the juvenile court, as stated above, is entirely controlled by statute. Hence, it plainly follows that the court did not have the jurisdiction it assumed.

This is not a case involving the discretion of the juvenile court, but is strictly a question of statutory jurisdiction. The court's obvious concern for the welfare of relator's unborn child cannot provide that court with jurisdiction to act in this matter. We sympathize with many of the sentiments raised by the dissent. However, as repeated above, the issue in this case is jurisdiction. Thus, those merit matters are not ripe for consideration and cannot be considered or determined in this case. We also do not determine herein whether any act of relator during her pregnancy may be the subject of further litigation after the birth of the child, if born alive.

No matter how "just" the cause, a court cannot confer jurisdiction upon itself to correct a perceived wrong. One fundamental concept of the separation of powers doctrine is that a court has only such jurisdiction as may be conferred upon it by law. A court cannot create its own jurisdiction.

The legislature has conferred upon the respondent court certain jurisdiction. However, that court has not been given jurisdiction over the body of a woman who is carrying an unborn child, except to permit an unmarried juvenile mother of an unborn child to abort that child without notification to her parents, based solely upon either the maturity or best interest of the juvenile mother, without express limitations as to the stage of the pregnancy. See R.C. 2151.85 and R.C. 2919.11 et seq.

The General Assembly may choose to address this type of situation and design effective statutory authority, but until such time as it confers such jurisdiction upon the respondent court, it has no power, right, or jurisdiction to act in this matter. Moreover, private sector agencies and institutions might be very cooperative in lending their talents and resources to help find solutions to such problems as exist in this case.

In sum, however, as to the law in this case, the issue before this court is governed by statutory law as it now exists. The General Assembly, by statute, has determined the jurisdictional question for the time being. This court cannot properly assume the legislative function and create jurisdiction which has not been conferred by law. Such an approach would constitute judicial legislation and violate the fundamental constitutional principle of checks and balances which has been in effect in the United States for over two hundred years.

Therefore, the referee's report is approved and adopted. The writ of prohibition is issued.

Motion to intervene sustained and writ of prohibition granted.

WHITESIDE, P.J., concurs.

LYNCH, J., dissents.

JOHN J. LYNCH, J., retired, of the Seventh Appellate District, sitting by assignment.