In re Hobson

HORNBECK, P. J.

concurring:

I concur in the conclusion of the majority opinion that a finding of dependency here is not supported by the finding of the referee and there is insufficient basis in fact for an adjudication of dependency.

The statute contemplates that the referee take testimony touching the charge, make findings thereon and the Court may, either upon the findings alone, or, after taking further testimony enter judgment. We may assume that the referee took considerable testimony and it may be possible that the Judge heard additional evidence. However that may be, there is no substantial dispute in the facts which were developed fully upon the motion to vacate or modify the judgment.

Sec. 1639-21 GC providing for referees, defines their duties and powers and the authority of the Court. The referee by the statute is given “the usual power of a master in chancery cases”. At common law a “master in chancery” was not identical with a referee. It is probable that the section contemplates that referees perform their duties much as referees who are under appointment in courts of equity. Such procedure contemplates a formal finding of the referee setting out the determinative facts and the conclusions of law, as to which objections or exceptions may be noted.

Testing the report of the referee here it is obvious that the fact that the mother was before the Court to place her baby for adoption could in no view of the controlling statute be an element of dependency.

From the facts appearing we have a mother and an illegitmate child. We have held in Smith v Privette, 13 Abs. 291, that the fact that a child is illegitmate does not in itself constitute it a dependent under the statute.

The first requirement of §1639-21 GC is not met in the factual development because the child was not homeless or destitute or without proper care or support through no fault of its parents, * * *. If it was homeless or destitute it was because of the fault of the parents.

Nothing can be claimed for the second or third paragraph of the section under the factual developments.

If a child is to be declared to be dependent because it is burdensome to the parent to care for it and unpleasant to bear the odium that attaches to the parenthood, then the State must assume a heavy burden and such procedure, no doubt, will be resorted to many times.

If a parent is able by reason of property or personal earnings to support his or her child, the law requires them to do so. If a situation arises where the parents are unable for any reason to support their own child, then it may be that the child could be declared to be a dependent.

The status which constitutes dependency relates to the child and not to its parent.

Our decision on the third assignment of error could well determine this appeal, but inasmuch as other errors are assigned I discuss them briefly.

I agree with Judge Miller in bis conclusion as to the duty of the referee in giving notice to the parties of the findings and recommendations of the referee.

Obviously, if it is necessary only, in charging dependency or delinquency, to merely state that a child is dependent or delinquent, there should be, at some stage in the proceedings, a factual finding upon which the trial judge could properly adjudicate, as a matter of law, the dependency or delinquency of the child.

The first and second assignments test the sufficiency in law of the notice to the mother of the child who, at the time of the proceedings and at the time of the order, was a minor.

The basic difficulty with the proceeding under consideration is that the Court was dealing with a minor who in law is presumed not to be qualified to determine for herself her own legal rights. Here was a mother in a dire extremity, and as she was a minor the law, to protect her, places certain safeguards around her.

It is held in Lewis v Reed, 117 Oh St 152, Ex Parte Province, 127 Oh St 333 and quite recently in In re Corey, 145 Oh St 413, that under §1369-24 GC, the parents of a minor child or children are entitled to notice, actual or constructive, in a proceeding instituted in the Juvenile Court upon the complaint of dependency of such child or children, and that unless such notice is given to the parents, the jurisdiction of such court does not attach and a judgment of commitment rendered in such proceedings is void.

In Rarey v Schmidt, 115 Oh St 518, the court is more explicit and holds that service, actual or constructive, must be had upon such parent before a Juvenile Court has jurisdiction to declare such child a dependent child. (Emphasis ours.) Judge Robinson writing the opinion, at page 521 says:

“While the section (§1648 GC) 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.”

There is no compliance with this requisite of the statute in- the instant case. The only written notice which was served upon the mother was a paper writing noted as “Summons” which, however, is nothing more than a subpoena, to appear and testify “at a hearing”.

But, as we understand the claim of appellees, friends of the Court, it is that the mother gave her consent to the proceedings. There is no question that this is the fact if she had the capacity to do so, because she made the affidavit of dependency and testified and was present during the proceedings. The determinative question is, was she capable of consenting to the proceedings and the order. If so, clearly she is bound.

In a note to Herr v Humphrey, (Ky), 121 A. L. R. 957, it is said:

“In every jurisdiction in which the question has been raised it has been held-that an infant can neither acknowledge nor waive the regular service of process upon him.”

If the minor could not waive the service of process or citation, then it was essential that it be made as provided by the statute. It is manifest that the only purpose that a citation on a party can serve is to enable that party to make a defense and to protect his rights. If the parent is a minor, as in the instant case, then, of course, the service must be made as would be proper in an action against the minor.

The question of the effect of the failure of the court to name a guardian ad litem for the mother is raised only inferentially in this proceeding although it was raised directly in the habeas corpus suit.

Sec. 11252 GC makes it mandatory that the defense of a minor be made by a guardian ad litem, and there are a number of cases in Ohio holding, and our statute provides, that a guardian shall not be named until after proper service is had upon the minor.

In 21 O Jur 910, it is said:

“There is in contemplation of law a complete parallel between a lunatic and an infant defendant.”

As early as Sturges v Longworth, 1 Oh St 544, it is held in the third syllabus:

“It is error for the court to decree against a lunatic, without an answer from his guardian ad litem.”

Judge Caldwell in the opinion at page 550 says:

“So far as the lunatic is concerned, he is not capable of looking after his own interests,' no matter how he may be brought into court. He can do nothing toward his defense, nor can he, by any act, conclude his rights; his defense must be entrusted to others.”

And at page 552:

“The duty imposed on the court, the lunatic being unable to defend himself, is, that they must see, before they proceed to dispose of his rights, that he is represented in court by some competent person, who is bound to make such defense as the nature of the case will permit, and to see that such representative performs his duty in the premises.”

In the cited case the Court held that the incompetent’s interest was prejudiced because his guardian ad litem, duly appointed and qualified, did not formally answer.

In Durst v Griffith, 43 Oh Ap 44, the Court held, Judge Mauck writing the opinion:

“A minor complainant in a bastardy proceeding may institute the proceeding without the intervention of a next friend and no guardian ad litem is required for a minor defendant.”

There is analogy between a bastardy proceeding and a dependency proceeding and we recognize the high quality of a decision by Judge Mauck. However, there is apparent conflict between this adjudication and the Supreme Court cases which we have heretofore cited.

Likewise, Bleier v Superintendent, 13 Oh Ap 69, seems to be in partial conflict with the Supreme Court cases. The Hamilton County Court of Appeals held that service of citation upon the parent of a child in a proceeding under §§1647 and 1648 GC is not a condition precedent to jurisdiction over the child. However, Judge Shohl at page 74 of the opinion calls attention to another pertinent question which is presented in the instant case, in this language:

“The petitioner is entitled to a day in court to have a determination of his rights regarding the custody of his children.”

Citing House of Refuge v Ryan, 37 Oh St 197.

The Court makes distinction between the jurisdiction of the Juvenile Court to make determination as to the dependency or delinquency of a minor child and the further power to take custody from a parent, without granting to that parent his day in court. So here, even though it be conceded that the matter of the dependency of the child was one of primary concern between the state and the child, even so, when the Court made an order affecting its custody, the mother was entitled to her day in court. Especially is this true inasmuch as she is a minor. She had not the capacity in law to waive her rights or consent to a custodial order against her. The right of a parent to the custody of her own child is definite and certainly as valuable as a property right. It would not be questioned that an order affecting the property of a minor could not effectively be made without representation of the minor by a guardian or guardian ad litem.

If the controlling section be construed to require legal service upon a minor parent as a prerequisite to any order of dependency against her child then such minor is accorded due process of law and such construction should be given to the statute, if possible. If service is not provided, then it is indeed doubtful if the minor would be accorded due process which would require the holding that the controlling section of the Code was unconstitutional, and service alone upon a party who is not sui juris would be a futile act.

39 Am. Jur., 603:

“A parent clearly cannot be deprived of his parental rights without due process of law.”

And that,

“While a child is not the property of his parents, yet the interest which a parent has in the nurture of his own offspring transcends property rights. This is particularly true of the mother, who brings the child into the world.”

It is our best judgment that the Court was without authority to make the custodial order here without serving the mother,, as a minor, and making it possible that she be represented by some one qualified and authorized to represent her. Inasmuch as neither was done, in probability, che Court was without any jurisdiction but certainly without jurisdiction to make the order taking the custody of the minor from his mother.

Determination of the essentials of dependency in this case is made upon an interpretation of the controlling legal principles as related to the Juvenile Code as written. The Code represents the legislative judgment of public policy on the subject. If public policy is to be changed it is for the .Legislature and not the courts, because we take the law as we find it.

This case is unusual in that it must be conceded that at the time the original order was made, everybody involved acted in the best of good faith. The mother greatly desired that her child be placed for adoption. In this attitude she was prompted by a desire to save herself and her husband disgrace. The Judge and the Referee made every effort to work out a solution which seemed to be practical and for the best interests of all concerned. The Thorpes likewise acted in a commendatory manner in offering to adopt the child, (although they were put on notice that the mother was asserting her rights) and no doubt have become greatly attached to him.

It the Court had power independent of statute much could be said in favor of supporting that which was accomplished by the dependency order. The outstanding fact in this case is that the proceedings involved a minor parent whose rights, we believe, were as we have heretofore stated them to be.

The judgment must be reversed.