State, Ex Rel. Sparto v. Williams, Judge , 86 Ohio App. 377 ( 1949 )

This cause is submitted on demurrer to the petition for a writ of prohibition enjoining Edward Williams, judge of the Juvenile Court of Darke County, from proceeding in a cause involving the custody of Rita Mae Sparto, a child twelve years of age, the daughter of the relators, who is now in the custody of an uncle and aunt, residents of Darke county, Ohio.

In the petition the following pertinent facts are alleged:

The uncle and aunt petitioned the Probate Court of Darke County for leave to adopt the child, which was denied. The judge of the Probate Court in the capacity of judge of the Juvenile Court, without certification as provided in Section 10512-21, General Code, and without a separate hearing, made an order respecting the custody of the child. From that order an appeal was taken to the Court of Appeals which affirmed the judgment of the Probate Court as to the denial of the adoption but reversed as to the custody of the child and remanded the cause to the Probate Court for a proper certification to the Juvenile Court for further proceedings in conformity to the provisions of Section 10512-21. See In re Adoption of Sparto, 52 Ohio Law Abs., 189. Subsequently the proper certification was made and, on hearing, the judge of the Juvenile Court dismissed the cause on the ground that it had no jurisdiction. A motion for new trial was duly filed, supported by an affidavit of the aunt that the minor was a neglected child within the meaning of the provisions of Section 1639-23, General Code. A new trial was granted. At a subsequent hearing the court found that it had jurisdiction to determine the custody of the minor; that the relators had not abandoned the child or lost their right through unfitness or inability to provide a suitable home for the child; that the minor was not a dependent, neglected or delinquent child; and that the relators should have the custody and control of the child. The court found further that, inasmuch as the child had not resided in the home of relators for a considerable length of time, the Juvenile Court should retain continuing jurisdiction until the child had made the proper adjustment; and that the complaint be dismissed and custody of the child be awarded to relators subject to the order of the Juvenile Court. The court ordered further that execution of such judgment be stayed pending appeal, and that the minor remain in the custody of the uncle and aunt until the determination of the appeal. It is not alleged that an appeal was perfected.

A motion for new trial was duly filed which came on for hearing before a successor judge, the respondent herein. The court rendered a written opinion in which it held that the motion for new trial should be sustianed on the ground that there was evidence that the relator had abandoned the child. This opinion has not been journalized due to the bringing of this action.

Do the facts alleged show that relators are entitled to the relief sought? The relators contend that the court found it had no jurisdiction and that in fact it has no jurisdiction to make an order or to proceed further in the matter. The respondent contends that the court had jurisdiction to determine custody and to make an order in respect thereto.

Under the provisions of Section 10512-21, General Code, which is a part of the Probate Code, upon a proper certification of the case to the Juvenile Court jurisdiction is conferred upon such court to determine custody of the child. Section 1639-16, General Code, confers exclusive original jurisdiction on the Juvenile Court. Subdivision (a) 2 provides that the Juvenile Court shall have jurisdiction to "determine the custody of any child not a ward of another court." And subdivision (d) of such section provides that "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 make disposition of said child in accordance with the provisions of this chapter."

In our opinion the provisions of the aforementioned sections are sufficient to confer jurisdiction on the Juvenile Court to determine the right of custody of such child. The court had the authority to retain and exercise continuing jurisdiction. See Section 1639-35, General Code.

Relators rely on the case of Paddock v. Ripley, 149 Ohio St. 539,541, 80 N.E.2d 129, in which the court held:

"Under the Juvenile Court Code, such courts have jurisdiction only of delinquent, neglected or dependent children."

The issue herein raised does not require an analysis or application of the principle of law announced in the Paddockcase, since it is quite clear that if the court in the instant case did not have jurisdiction on any other ground, it acquired jurisdiction when the affidavit was filed by the aunt that the minor was a neglected child within the meaning of the provisions of Section 1639-23, General Code. A full hearing was had on the issue raised by the filing of the affidavit. After judgment on that issue a motion for new trial was filed in which the court has announced its opinion. This is the first motion for new trial on the issue raised by the filing of the affidavit.

No facts are alleged showing that the court has lost jurisdiction. The finding of the trial court that it had lost jurisdiction is immaterial and must be disregarded, where the petition is tested on demurrer and facts are alleged which show that the court at all times had and still has jurisdiction.

The court had jurisdiction of the subject matter involved in the controversy and it may proceed to enter an order in regard thereto. John Weenink Sons Co. v. Court of Common Pleas,150 Ohio St. 349, 355, 82 N.E.2d 730; 32 Ohio Jurisprudence, 580, Section 20; 14 American Jurisprudence, 435, Section 243.

Relators contend that the court will commit error if it is allowed to journalize an order in conformity with its opinion. A writ of prohibition does not lie to prevent erroneous decisions. 32 Ohio Jurisprudence, 586, Section 24.

The relators are afforded an adequate remedy at law by an appeal at the proper time. See State, ex rel. Meyer, v. Conn etal., Judges, 151 Ohio St. 8, 84 N.E.2d 213; 32 Ohio Jurisprudence, 572, Section 10.

The demurrer to the petition is sustained.

Demurrer sustained.

MILLER, P.J., and HORNBECK, J., concur.