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

I regret that I cannot concur with the conclusion of the majority of this court. This dissenting opinion, which is of some length, is written in the belief that a statement as to the other view of the law applicable to the issues presented may be helpful.

The sole question for determination is whether the Juvenile Court had jurisdiction to determine the question of custody of the child. If the Juvenile Court had jurisdiction habeas corpus does not lie.

I cannot agree with the majority that there was no proper basis for the certification of the cause to the Juvenile Court under Section 10512-21, General Code. What was the legal effect of the withdrawal of the petition and the dismissal of the action for adoption? Section 11586, General Code, controls the disposition of an action after it is instituted. This section in part provides:

"An action may be dismissed without prejudice to a future action:

"1. By the plaintiff, before its final submission to the jury, or to the court, when the trial is by the court * * *."

The Code of Civil Procedure makes no provision for voluntary withdrawal of an action by a plaintiff. Under the Code the legal effect of a voluntary withdrawal of an action is a voluntary dismissal of the action. Siegfried v. New York, Lake Erie Western Rd. Co., 50 Ohio St. 294, 297, 34 N.E. 331.

We recognize the general rule that when an action is dismissed the court is without jurisdiction to make any further order. Schaffer v. Schaffer, 114 Ohio St. 309, 151 N.E. 186. However, the general rule is subject to the power of the Legislature to confer jurisdiction on the court to act after dismissal of the action. Certainly the Legislature has the power to grant authority to the court dismissing the action to certify such cause to another court. In the instant case the Probate Court had authority, after the dismissal of the petition for adoption, to certify the cause to the Juvenile Court under Section 10512-21, General Code.

In the majority opinion the point is made that there was no cause pending upon which the certification could be based. Under Section 10512-21, General Code, it is not intended that a pending matter be certified to the Juvenile Court. The certification of the record in the Probate Court, when filed in the Juvenile Court, effectually opens up a custody case in the Juvenile Court. However, the record in the Probate Court does show on its face that the question of the custody of the child was not determined. The situation presented is this: The record, on its face, shows that there was an illegal placement of the child in the home of the petitioners. The record fails to show a compliance with the provisions of Section 1352-13, General Code. The mother had given her consent in writing to the adoption. For some reason the adoption proceeding was dismissed and the child continued to reside in the home of the petitioners who obviously were not the parents of the child. The Probate Court did not have jurisdiction to determine the question of custody of the child; the question of custody had to be determined by a court of competent jurisdiction. In the opinion of the probate and juvenile judges of this state the situation which is presented here occurred so often and was of such seriousness that legislation providing for a procedure certifying the cause to the Juvenile Court and conferring jurisdiction on the Juvenile Court to hear and determine the matter of custody was proposed and enacted. See 1949 Supplement to Addams and Hosford, Ohio Probate Practice and Procedure, page 95.

It is immaterial whether the adoption proceeding is dismissed before or after a hearing on the merits. The provisions of Section 10512-21, General Code, are sufficiently comprehensive to embrace actions dismissed before a hearing as well as after a hearing has been had.

In the majority opinion it is stated that the custody of the child was, at all times prior to certification, in the mother and that there was no reason for the certification under the facts stated. While it is true permanent custody was in the mother, the child resided in the home of the Brendels with whom it was placed by the mother for adoption. Residence of the child in the home of the petitioners is required, otherwise the petitioners cannot proceed with the adoption. See Sections 10512-11, 10512-12 and 10512-18, General Code. It will be observed that under the first order of the Juvenile Court the child was removed from the Brendel home and placed in a licensed boarding home. The record does not show where the mother resided at the time the case was certified to the Juvenile Court. The majority opinion infers that certification may be proper in certain cases and under certain conditions and not proper in other cases. There are no exceptions in Section 10512-21, General Code, and its provisions are mandatory.

The majority opinion states that, assuming the legality and validity of the certification from the Probate Court, the commitment by the Juvenile Court was grounded upon an adjudication that the minor was a dependent child and that the Juvenile Court was without jurisdiction to make the order. The point is made that before a minor can be found to be a dependent child, a complaint of dependency must first be filed. With this abstract principle I agree. However, the proceeding instituted in the Juvenile Court was not a dependency proceeding. The recital in the order of commitment that the child was dependent did not convert the proceeding into a dependency proceeding and the record need not show a compliance with the legal requirements of a dependency proceeding. The child cannot be said to be a dependent child within the meaning of the Juvenile Court Code. The order of the Juvenile Court, in depriving the mother of the custody of her child, is not given validity by reason of the recital in the order that the minor was a dependent child. This statement neither adds to nor detracts from the legal effect of the order which, in my opinion, was a valid order based upon other grounds.

Did the Juvenile Court have jurisdiction to make the order? The jurisdiction to determine the question of custody of a child in a matter certified under Section 10512-21, General Code, is clearly conferred on the Juvenile Court under Section 1639-16, paragraph (d), General Code, which 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," etc.

This provision was proposed by the probate and juvenile judges of the state and enacted by the Legislature for the purpose of conferring jurisdiction on the Juvenile Court to determine the custody of a child after the matter had been certified by a court of competent jurisdiction. It was meant to cover a situation such as is presented in the instant case. Unquestionably the Legislature has the power to confer jurisdiction on the Juvenile Court in a custody case which is instituted by the filing of a certification from the Probate Court when a petition for adoption is dismissed as provided in Section 10512-21, General Code. The moment the certification of the record is filed in the Juvenile Court, that court is immediately aware that it has a custody case before it. Upon a certification duly made by the Probate Court, what further jurisdictional step was required to authorize the Juvenile Court to hear and determine the question of custody? Jurisdiction having already been acquired under paragraph (d) of Section 1639-16, General Code, no further jurisdictional step was required. Furthermore, the Legislature did not provide that any other jurisdictional step should be taken. After service of citation on the mother the court had the authority to proceed and determine the issue.

Paragraph (d) of Section 1639-16, General Code, confers jurisdiction on the Juvenile Court to hear and determine the case of any child certified to it and "to make disposition of said child in accordance with the provisions of this chapter." This last provision does not refer to the jurisdiction of the court, but rather to the procedure to be followed in the exercise of the jurisdiction conferred. We need not look beyond the provisions of Section 1639-16, General Code, to find complete authority to determine the question of custody. The applicable part of that section is as follows:

"(a) The court shall have exclusive original jurisdiction under this chapter or under other provisions of the General Code: * * *

"2. To determine the custody of any child not a ward of another court."

The power to hear and determine the question of custody of a child includes the power to deprive one person of the custody and award it to another. The best interests of the child must always be the guide to be used by the Juvenile Court in determining questions of custody. In the instant case the Juvenile Court made a finding that it was for the best interests of the child that the mother be deprived of its custody, temporarily. In making the order the court used a blank form which required certain inapplicable provisions to be stricken; some inapplicable provisions were not stricken. While the order is not artfully drawn, it is nevertheless a valid order.

In the majority opinion great stress is laid on the fact that the court found the minor to be dependent. However, these words could have been omitted without affecting the validity of the order. When the court found that it was for the best interests of the child that its parent be deprived of its care and custody, temporarily, the court had made an order which was legally sufficient and valid. This was the determinative and controlling finding on the issue presented. The reason assigned by the court for the finding and order is immaterial. 23 Ohio Jurisprudence, 817, Section 512. The court may have assigned any one of a number of reasons for its finding, to wit: That the child was neglected, delinquent, crippled or otherwise physically handicapped, that the mother was incompetent or any other good and valid reason. A "dependent child" is defined in Section 1639-4, General Code, which provides that a dependent child includes any child who is homeless or destitute or without proper care or support, through no fault of its parents; who lacks proper care or support by reason of the mental or physical condition of its parents; or whose condition or environment is such as to warrant the state, in the interest of the child, to assume its guardianship. Let us assume that the evidence presented to the Juvenile Court in the instant case would have justified a finding that the child lacked proper care or support by reason of the mental or physical condition of its parents. Could it then be successfully contended that such recital in the order of the court would vitiate the whole proceeding, oust the jurisdiction of the court, and render null and void an otherwise valid judgment? The only order which the Juvenile Court could make in the instant case was whether the best interests of the child required the court to deprive the mother of its care and custody. The court made this finding and incorporated it in its order. The judgment of the court can be sustained on this ground. A judgment of a court having jurisdiction of the subject matter and the parties is not null and void by reason of the fact that the court which rendered it based it on erroneous grounds, if it can be supported on some valid ground. 23 Ohio Jurisprudence, 814, Section 511, 816, Section 512 (cases cited).

Assuming the Juvenile Court had jurisdiction and conceding that in the exercise of such jurisdiction the Juvenile Court made an unwarranted or erroneous order, which I do not concede, the jurisdiction of the court would not be ousted and such error could be taken advantage of only on appeal. Habeas corpus would not lie. In re Burson, 152 Ohio St. 375, 383,89 N.E.2d 651.

The petitioner cites the case of Paddock v. Ripley, 149 Ohio St. 539, 80 N.E.2d 129, in support of the contention that the Juvenile Court lacks jurisdiction to proceed to determine the custody of the child or make any order, temporary or permanent, until and unless an affidavit is filed charging the child to be a delinquent, neglected or dependent child. The statement in the Paddock case, supra, which appears in the opinion of the Court on page 541, that "Under the Juvenile Court Code, such courts have jurisdiction only of delinquent, neglected or dependent children," is purely obiter dictum. In so holding did the Supreme Court intend to exclude from the jurisdiction of the Juvenile Court hearings in all matters involving children other than delinquent, neglected or dependent children? We do not think so. While it is true the Supreme Court, in its opinion did refer to Section 1639-16, General Code, which is the general section conferring jurisdiction on the Juvenile Court, it mentioned only delinquent, neglected or dependent children. It failed to take into consideration that under Section 1639-16, General Code, jurisdiction is also conferred respecting crippled or otherwise physically handicapped children; also, "to determine the custody of any child not a ward of another court," and "to determine the paternity of any child alleged to have been born out of wedlock." If the Juvenile Court has jurisdiction only over delinquent, neglected or dependent children, then the Juvenile Court may not exercise jurisdiction over children in matters in which jurisdiction is conferred specifically by other sections of the Code. Reference is made to Sections 1352-8, 1639-29, 8034-1, 11181-1 and 10512-16, General Code.

The factual situation presented in the case at bar was not presented to the Supreme Court in the Paddock case, supra. In that case the Juvenile Court had not intervened by making an order respecting the custody of the child; the jurisdiction of the Juvenile Court was not directly involved. Since the announcement of the opinion in the Paddock case, the Juvenile Courts of this state have continued to exercise jurisdiction, and rightly so, in many matters involving children who are neither delinquent, neglected or dependent. If a complaint charging a child to be delinquent, neglected or dependent is a prerequisite to the exercise of jurisdiction by the Juvenile Court in such cases, then the provisions for certification under Section 10512-21, General Code, and paragraph (d) of Section 1639-16, General Code, are meaningless for the reason that such complaint in the proper case could have been filed before the enactment of these provisions. It was to avoid the necessity of filing such complaints in the proper cases, and the impropriety of doing so in others, in case the adoption was not granted, that these provisions were enacted. It is a source of satisfaction to know that not all children sought to be adopted are delinquent, neglected or dependent. Such complaints could not be properly filed in all cases where adoption petitions are dismissed. The Legislature recognized this situation in the enactment of Section 10512-21 and paragraph (d) of Section 1639-16, General Code.

In my opinion, jurisdiction is clearly conferred on the Juvenile Court to determine the custody of the child in question and the filing of a complaint charging the child to be a delinquent, neglected or dependent child was not a necessary prerequisite to the exercise of such jurisdiction.