Opinion
No. 79-263
Decided February 6, 1980.
Parent and child — Surrender of permanent custody — Juvenile Court consent — Jurisdiction — Motion to vacate consent not barred.
1. Juvenile Court consent to an agreement surrendering permanent custody of a child to a county children services board, pursuant to R.C. 5103.15 and 5153.16(B), is not an adversary proceeding, nor is such judicial consent a "commitment" of the child into the board's custody for purposes of R.C. 2151.38.
2. R.C. 2151.38 is not applicable to, nor does it bar the filing of, a motion to vacate the required judicial consent to an agreement surrendering permanent custody of a child to a county children services board pursuant to R.C. 5103.15 and 5153.16(B).
3. Juvenile Court jurisdiction to consent to an agreement surrendering permanent custody of a minor to a county children services board, pursuant to R.C. 5103.15 and 5153.16(B), is not dependent upon service of process on the child and his parents as provided for in R.C. 2151.28, nor upon appointment of a guardian ad litem as provided for in R.C. 2151.281.
APPEAL from the Court of Appeals for Montgomery County.
Oschal Patrick Miller, Jr., was born June 21, 1972, the son of Oschal Patrick Miller, Sr., and Billie Jean Miller. Oschal's father died in November 1974. In 1977, Billie Jean, his natural mother, entered into an agreement pursuant to R.C. 5103.15 with the Montgomery County Children Services Board, appellee herein, by which she surrendered Oschal into the permanent custody of the board. By order entered September 20, 1977, the Court of Common Pleas of Montgomery County, Juvenile Division, consented to the permanent surrender agreement as required by R.C. 5153.16(B).
R.C. 5103.15 provides as follows:
"The parents, guardian, or other persons having the custody of a child, may enter into an agreement with any association or institution of this state established for the purposes of aiding, caring for, or placing children in homes, which has been approved and certified by the department of public welfare, whereby such child is placed in the temporary custody of such institution or association; or such parent, guardian, or other person may make an agreement surrendering such child into the permanent custody of such association or institution, to be taken and cared for by such association or institution or placed in a family home.
"The agreements provided for in this section shall be in writing, on forms prescribed and furnished by the department, and may contain any proper and legal stipulations for proper care of the child, and may authorize the association or institution when such agreements are for permanent care and custody to appear in any proceeding for the legal adoption of such child, and consent to its adoption, as provided in section 3107.06 of the Revised Code. The adoption order of the probate court judge made upon such consent shall be binding upon the child and its parents, guardian, or other person, as if such persons were personally in court and consented thereto, whether made party to the proceeding or not."
R.C. 5153.16 provides in pertinent part, as follows:
"The county children services board, or county department of welfare that has assumed the administration of child welfare, subject to the rules and standards of the department of public welfare, on behalf of children in the county considered by the board or department to be in need of public care or protective services, shall:
"***
"(B) Enter into agreements with the parent, guardian, or other person having legal custody of any child, or with the department of public welfare, department of mental health and mental retardation, other department, or any certified organization within or outside the county, or any agency or institution outside the state, having legal custody of any child, with respect to the custody, care, or placement of any such child, or with respect to any matter in the interests of such child, provided the permanent custody of a child shall not be transferred by a parent to the board or county department without the consent of the juvenile court;***." (Emphasis added.)
The appellant herein, Ellen F. Miller, is Oschal's paternal grandmother. She seeks to have the court's consent to the permanent surrender vacated.
An affidavit submitted by appellant and uncontested by the children services board asserts that during a considerable portion of his life, Oschal lived with and was cared for by appellant. On August 18, 1975, Oschal's mother and appellant entered into a written agreement by which Billie Jean purportedly surrendered custody of the child to appellant. Appellant agreed to accept custody and provide for Oschal's well being during his minority.
Pursuant to the agreement, Oschal resided with appellant until February 26, 1977. On that date, Billie Jean informed appellant that the written custody agreement was "no good" and took Oschal with her. Oschal remained with his mother for a period of approximately three and one-half months, whereupon Billie Jean returned him to appellant.
On August 10, 1977, being unable to evidence legal custody of Oschal, appellant experienced difficulties enrolling him in the public schools. Appellant informed Oschal's mother of those difficulties, and on August 28, 1977, Oschal's mother once again removed the child from appellant's home. The mother also contacted the Montgomery County Children Services Board.
There is no evidence that Billie Jean regained physical custody of Oschal fraudulently or surreptitiously. On the contrary, it appears that appellant acquiesced in Oschal's return to his mother in order that he could be legally enrolled in the public schools.
On September 2, 1977, the board filed a "Complaint for Consent to Surrender of Permanent Custody" in the Juvenile Court. It alleged that Oschal was a child born June 21, 1972, and was resident in Montgomery County; that Oschal's father was deceased; that Billie Jean Miller was Oschal's mother and an adult, and was under no legal restraint; that she wished to surrender the child to the permanent custody of the board; and that she understood the meaning and effect of such a surrender.
Subsequently, on September 13, 1977, a hearing was held before the Juvenile Court. Apparently, no service of process was issued or served upon the child, his mother, or appellant, nor was a guardian ad litem appointed for the child prior to the hearing. Billie Jean nevertheless was present at the September 13 hearing. As noted previously, the court entered an order on September 20, 1977, by which it consented to the surrender of permanent custody to the board.
On November 9, 1977, appellant filed a motion asking the court to vacate its order of consent; to set a rehearing on the complaint and to appoint a guardian ad litem for the child. The Juvenile Court granted the board's motion to dismiss, holding that, pursuant to R.C. 2151.38, it had no jurisdiction to entertain a motion to vacate the consent. The Court of Appeals affirmed, stating that although the Juvenile Court had jurisdiction to consent to the surrender, it had no jurisdiction to vacate the consent order, by reason of R.C. 2151.38.
The cause is now before this court upon an allowance of a motion to certify the record.
Mr. George W. Ledford, for appellant.
Mr. Lorine M. Reid, for appellee.
We hold that R.C. 2151.38 is inapplicable to a proceeding for approval of a permanent surrender agreement under R.C. 5103.15 and 5153.16(B). Hence, R.C. 2151.38 does not bar the filing of a motion to vacate a R.C. 5153.16(B) consent, and we reverse the Court of Appeals in this regard.
R.C. 2151.38 reads, in pertinent part:
"When a child is committed to* * *the permanent custody of a* * *county children services board,* * *the jurisdiction of the juvenile court in respect to the child so committed shall cease and terminate at the time of commitment, except that if the* * *board* * *having such permanent custody makes application to the court for the termination of such custody, the court upon such application, after notice and hearing and for good cause shown, may terminate such custody at any time prior to the child becoming of age. The court shall make disposition of the matter in whatever manner will serve the best interests of the child. All other commitments made by the court shall be temporary and shall continue for such period as designated by the court in its order, or until terminated or modified by the court, or until a child attains the age of twenty-one years." (Emphasis added.)
Pursuant to R.C. 2151.353(D), 2151.354(A), and 2151.355(A), the Juvenile Court may, upon adjudging a child abused, neglected, dependent, unruly or delinquent, order permanent commitment of such child to a county children services board. However, the Juvenile Court does not, by consenting to a permanent surrender under R.C. 5153.16(B), commit a child into the permanent custody of the board. Rather, the court judicially sanctions a private transfer of custody which cannot be legally consummated without the court's approval. In other words, for purposes of determining the applicability of R.C. 2151.38, a parental surrender pursuant to R.C. 5103.15 is not equivalent to a judicial commitment as authorized by R.C. Chapter 2151.
Other statutory provisions reflect the distinction between a R.C. Chapter 2151 commitment and a R.C. Chapter 5103 transfer of custody. Thus, R.C. 5103.152 provides, in part:
"(A) All children in the permanent custody of a public* * *organization* * *, pursuant to either section 2151.353 or 5103.15 of the Revised Code, shall be listed with the department of public welfare within ninety days after permanent custody is effective,* * *." (Emphasis added.)
Similarly R.C. 5103.151 provides, in part:
"(A) An annual review shall be made of every child placed in the care or custody of a public* * *organization* * *. This review shall be made by the agency having the custody of the child,* * * whether the agency received custody pursuant to court order under Chapter 2151 or pursuant to section 5103.15 of the Revised Code,* * *." (Emphasis added.)
R.C. 3107.07 provides that parental consent to an adoption is not required, although otherwise necessary pursuant to R.C. 3107.06, of the following:
"(C) a parent who has relinquished his right to consent under section 5103.15 of the Revised Code; [or]
"(D) A parent whose parental rights have been terminated by order of a juvenile court under Chapter 2151 of the Revised Code; * * *" (Emphasis added.)
R.C. 5153.16(B) empowers county children services boards to enter into agreements by which permanent custody of children is transferred to boards, provided juvenile court consent is obtained. County children services boards are separately required by R.C. 5153.16(C) to "[a]ccept custody of children committed to the board* * *by a court exercising juvenile jurisdiction." (Emphasis added.)
An agreement by a child's parents or legal guardian to surrender a child to the permanent custody of a certified association or institution described in R.C. 5103.15 constitutes a contract where accepted by such association or institution and when voluntarily make without fraud or misrepresentation. Such a contract cannot be revoked by the parents or legal guardian absent the consent of the association or institution. Kozak v. Lutheran Children's Aid Society (1955), 164 Ohio St. 335. This court noted in the Kozak case, at page 340, that:
Appellant, not being a party to the surrender agreement, has no standing to assert fraud or misrepresentation in its inducement.
"* * *[R.C. 5103.15] has no connection with the law with reference to Juvenile Courts, the statutes concerning which are Sections 2151.01 to 2151.54, inclusive, together with Sections 2151.55, 2151.99 and 2153.01 to 2153.17, inclusive, Revised Code."
Our holding that the provisions of R.C. 2151.38 did not divest the Juvenile Court of jurisdiction to entertain appellant's motion to vacate the court's consent to the permanent surrender agreement is not, however, dispositive of this cause. Appellant argues that the Juvenile Court had no jurisdiction in the first instance to consent to the surrender agreement in that there was no service of summons on the child or its parent, and that the consent was therefore void and should be vacated.
Notably, failure of the court to issue summons on the appellant herself is not asserted as error herein, nor does appellant argue that she was entitled to service of process.
In support of this contention appellant cites a line of cases beginning with Lewis v. Reed (1927), 117 Ohio St. 152. That case held that until statutorily required notice of dependency proceedings is given to the mother of an allegedly dependent child, the jurisdiction of the Juvenile Court does not attach and a judgment of permanent commitment rendered in such dependency proceeding is void; subject to attack through habeas corpus. Similarly, in In re Frinzl (1949), 152 Ohio St. 164, this court held that until a parent or guardian is served with notice as required by statute, a Juvenile Court is without jurisdiction to make permanent a temporary commitment of a dependent or delinquent child.
These cases are distinguishable from the instant cause. No service of process is required by R.C. 5103.15 or 5153.16(B) prior to judicial consent being given to a voluntary agreement to surrender parental rights. Hence, failure to issue process upon Oschal's mother cannot be a jurisdictional defect such as would make any subsequently issued consent void ab initio.
R.C. 2151.28 provides that after "the complaint" has been filed, the Juvenile Court shall fix a time for hearing and direct issuance of summons. The Juvenile Court below held that the statute is not applicable to a R.C. 5153.16 consent proceeding. We agree. The "complaint" referred to in R.C. 2151.28 is described in the preceding section, R.C. 2151.27, and contains allegations that a child is a juvenile traffic offender, delinquent, unruly, abused, neglected or dependent. No such adversarial allegations are before a Juvenile Court in a permanent surrender consent proceeding. Similarly, appointment of a guardian ad litem is not required in such a proceeding by R.C. 2151.281. By its express terms that statute deals with proceedings concerning an alleged or adjudicated delinquent, unruly, dependent, abused or neglected child.
R.C. 2151.281 reads, in pertinent part:
"The court shall appoint a guardian ad litem to protect the interest of a child in any proceeding concerning an alleged or adjudicated delinquent, unruly, or dependent child when:
"(A) The child has no parent, guardian, or legal custodian;
"(B) The court finds that there is a conflict of interest between the child and his parent, guardian, or legal custodian.
"The court shall appoint a guardian ad litem to protect the interest of a child in any proceeding concerning an alleged abused or neglected child." (Emphasis added.)
We reject appellant's contention that the Juvenile Court's consent was void in that it was procured by fraud on the part of the mother. A county children's services board is authorized by R.C. 5153.16(B) to enter into permanent surrender agreements with parents, guardians and legal custodians. The statute clearly makes legal transfer of permanent custody to such a public body contingent upon consent to the transfer by the Juvenile Court. However, a proceeding to procure the court's consent is not in the nature of an adversary proceeding. See In re Surrender Anne K. (1972), 31 Ohio Misc. 218. It is the Juvenile Court's function in consenting to a permanent surrender to insure that the surrender is made by the parent voluntarily, with full knowledge of the legal import of the relinquishment of parental rights accomplished thereby; and to insure that the child welfare agency does not enter into improvident contracts. See In re Surrender Anne K., supra. In view of the scope of the Juvenile Court's inquiry, Billie Jean was under no duty, absent questioning by the court, to volunteer the facts of her child's past history.
The Juvenile Court correctly noted that appellant was not Oschal's legal custodian. See, by way of analogy, Juv. R. 2:
"As used in these rules:
"* * *
"(5) `Custodian' means a person who has been granted custody of a child by a court." (Emphasis added.)
See, also, R.C. 2151.011(B):
"As used in sections 2151.01 to 2151.99, inclusive, of the Revised Code:
"* * *
"(10) `Legal custody' means a legal status created by court order which vests in the custodian the right to have physical care and control of the child and to determine where and with whom he shall live, and the right and duty to protect, train and discipline him and to provide him with food, shelter, education, and medical care, all subject to any residual parental rights, privileges, and responsibilities. An individual granted legal custody shall exercise the rights and responsibilities personally unless otherwise authorized by any section of the Revised Code or by the court." (Emphasis added.)
The written agreement executed by appellant and Oschal's mother on August 18, 1975, purportedly vesting custodial rights in appellant was of no legal effect. See R.C. 5103.16; In re Perales (1977), 52 Ohio St.2d 89, 91 (fn. 2).
As an additional safeguard to the rights of parents who are themselves minors, R.C. 5103.16 requires that where parental consent to surrender is given before an employee of the child welfare agency, that employee execute an affidavit to the effect that the legal rights of the parents have been fully explained to the parents, prior to the execution of the consent, and that the action was done after the birth of the child. One writer cites the following as an example of a form which has been used by the Cuyahoga County Welfare Department:
"You are advised that by signing such surrender you are permanently surrendering, releasing and giving up all present and future legal rights that you have or may possess in your above-named child and which you as a parent naturally have or would have in respect to your child; and that thereafter you will be in the same legal position as would be a person totally unrelated to your child.
"Among these legal rights in and to your child being permanently surrendered, released and given up by you now and irrevocably upon your signing the above referred to Permanent Surrender Of Child, but not necessarily limited to these, are the following rights:
"(1) The right of custody of your child including all present and future rights to have, control or possess your child, to see or visit your child, to determine or decide on the care, education, living surrounding, location and upbringing of your child;
"(2) The right of any possible future support of financial aid to you from your child, and of receiving the future earnings and any other property of your child;
"(3) The right of inheritance from your child, or through your child, which might otherwise legally be yours by reason of your being the mother of the child; and
"(4) The rights and privileges that now or in the future might be given by law to any parent in respect to the child of such parent." Sylvester, The Law of Adoption in Ohio, 2 Cap. U.L.R. 23, 29 (fn. 47).
Juv. R. 45 provides that:
"If no procedure is specifically prescribed by these rules, the court shall proceed in any lawful manner not inconsistent therewith."
The Juvenile Rules do not specifically prescribe a procedure to be followed by a Juvenile Court in determining whether to consent to a permanent surrender agreement. We find that the procedure followed by the Juvenile Court in the case at bar was neither unlawful nor inconsistent with the Juvenile Rules. Thus, the Court of Appeals properly determined herein that the Juvenile Court had jurisdiction to consent to the surrender, and we affirm the appellate court in this regard. The appellant has advocated no justification for vacating the judicial consent to the permanent surrender, other than lack of jurisdiction. Thus, the court did not err in affirming the dismissal of appellant's action.
For reason of the foregoing, the judgment of the Court of Appeals is reversed in part and affirmed in part.
Judgment reversed in part and affirmed in part.
CELEBREZZE, C.J., HERBERT, W. BROWN, LOCHER and HOLMES, JJ., concur.
I agree with the discussion of the issue herein, but conclude that the issue is raised by a party who has no standing.