Opinion
No. 34514
Decided February 23, 1956.
Adoption — Decree or order of — Power of Probate Court to make — Written consent of mother required, when — Consent not dispensed with, when — Section 8004-6, General Code — Decree or order made by court without power — Attack by habeas corpus — Appeal — Errors not specified in assignment of errors — Supreme Court may consider.
1. Except in those instances specified in subdivision (B) of Section 8004-6, General Code (now Section 3107.06, Revised Code), a Probate Court had no power to make a final decree or interlocutory order of adoption of a child where it affirmatively appears that there was not filed with the court a written consent to the adoption by the living mother of such child; and the requirement of such a consent was not dispensed with in an instance where a Juvenile Court had previously made a valid determination that such child was "neglected." (Sections 8004-6, 1639-16, and 1639-30, General Code, construed and applied.)
2. A decree or order of adoption made by a court which had no power to make it may be successfully attacked in a habeas corpus proceeding.
3. The Supreme Court may in its discretion either consider and decide or refuse to consider and decide errors not specified in an appellant's assignment of errors. (Section 2505.21, Revised Code, construed and applied.)
APPEAL from the Court of Appeals for Ross County.
On July 2, 1954, petitioner filed her petition in habeas corpus in the Probate Court of Ross County alleging that she was the mother of Cathy Sue Ramsey, herein referred to as Cathy Sue, who was born in 1949; that, in February 1952, the Common Pleas Court of Franklin County granted petitioner a divorce from her husband and awarded permanent custody of Cathy Sue to petitioner; that on October 24, 1952, Evelyn Ramsey filed a sworn complaint in the Juvenile Court of Ross County alleging that petitioner failed and refused to give Cathy Sue proper parental care; that notice by publication of said complaint and of hearing on said complaint was made; that on November 8, 1952, petitioner received at her residence in New York notice of the hearing to be held on that complaint on November 14, 1952; that petitioner did not appear on November 14, 1952, but did appear at a subsequent hearing held on December 8, 1952; that on November 14, 1952, the Juvenile Court found Cathy Sue to be neglected by petitioner and thereupon made an order providing that petitioner be deprived of the custody of Cathy Sue and that permanent custody of Cathy Sue be awarded to Evelyn and Donald Ramsey, herein referred to as the Ramseys; that on January 6, 1953, the Ramseys filed a petition for adoption of Cathy Sue; that petitioner received no notice of that adoption petition and did not consent to that adoption; that on February 17, 1953, an interlocutory decree providing for adoption of Cathy Sue by the Ramseys was granted; that a final decree of adoption was granted on August 18, 1953; and that as a result of those facts Cathy Sue was "illegally restrained in the permanent custody" of the Ramseys at their residence in Chillicothe.
The cause came on for hearing before the Probate Court on the pleadings and the evidence; and, pursuant to request of the respondents, that court stated its conclusions of fact separately from its conclusions of law. Those findings of fact largely correspond with the allegations of the petition as hereinbefore outlined and also include findings that on November 14, 1952, the Juvenile Court found that Cathy Sue was a neglected child and committed her to the permanent custody of the Ramseys; that neither the Ramseys nor petitioner would be improper parties to be entrusted with the care and custody of Cathy Sue; and that later on December 8, 1952, the Juvenile Court apparently again found that Cathy Sue was a neglected child and committed her to the permanent custody of the Ramseys.
The Probate Court held that the orders made by it with respect to the adoption of Cathy Sue were void and that the orders of the Juvenile Court granting permanent custody of Cathy Sue to the Ramseys were likewise void and ordered "that said child * * * be forthwith discharged from her unlawful detention and * * * returned to the Juvenile Court * * * for disposition by said court."
On appeal to the Court of Appeals on questions of law and fact, that court determined in effect that the appellant was not permitted to retry the facts and ordered that the appeal should stand for hearing as an appeal on questions of law. Section 2505.23, Revised Code (Section 12223-22, General Code). Thereafter, it determined "that none of the matters complained of by the appellant can possibly be ascertained without a bill of exceptions which is not before this court," and thereupon it affirmed the judgment of the Probate Court.
The cause is now before this court on appeal from the judgment of the Court of Appeals, pursuant to allowance of a motion by the Ramseys to certify the record.
Messrs. Boulger Boulger, for appellee.
Messrs. Schlafman Elliott and Mr. William E. Sammons, for appellants.
The first question to be determined is whether the Probate Court had any power to make the orders which it made with respect to the adoption of Cathy Sue.
Section 8004-6, General Code (now Section 3107.06, Revised Code), reads so far as pertinent:
" No final decree or interlocutory order of adoption shall be entered by the court unless there shall be filed with the court written consents to the adoption, verified or acknowledged by the following:
"* * *
"(B) By each of the living parents * * * except as follows:
"(1) The mother of an illegitimate child shall be considered * * * the sole parent and may give consent alone * * *
"(2) The consent of a parent shall not be required if the child is in the permanent custody of the Division of Social Administration, a county welfare department, a county child welfare board, or a certified organization.
"(3) If a parent has been adjudged incompetent by reason of mental disability * * *
"(4) If it is alleged in the petition that one or both of the parents have wilfully failed to properly support and maintain the child for a period of more than two years immediately preceding the filing of the petition, the court shall cause notice of the filing of said petition and the allegations of such failure to be given such parent or parents as provided in Section 10501-21 of the General Court. After such notice has been given, the Probate Court shall determine the issue as to such failure to properly support and maintain the child. The consent of a parent found by the Probate Court to have wilfully failed to properly support and maintain the child for such period shall not be required.
"(5) If the parents are dead or their place of residence is unknown and cannot with reasonable diligence be ascertained or there is no guardian of the person of such child, the consent may be given by the next friend.
"* * *
"(D) By any division, county department, or board, or certified organization, having the permanent custody of the child. * * *
"* * *
"No final decree or interlocutory order of adoption shall be entered with respect to any child in the custody of the Juvenile Court or concerning whose custody or disposition proceedings are pending in such court until such custody or proceedings have been suspended or terminated by such court." (Emphasis added.)
The findings of fact affirmatively establish that no consent to the adoption was given by petitioner, a living parent of Cathy Sue, as required by subdivision (B) of the foregoing statute; and that none of the exceptions to that requirement, which are specified in that subdivision, were applicable. In view of the absence of any bill of exceptions, it is impossible to know exactly what the record of the Probate Court in the adoption proceeding showed or whether that record and any presumption with respect to the regularity thereof would support a conclusion of compliance with such subdivision (B) of the statute. See 1 American Jurisprudence, 675, 676, Section 78; 2 Corpus Juris Secundum, 440 et seq., Sections 50, 51.
This court has held that "a Juvenile Court is without jurisdiction to make permanent a temporary commitment of a dependent or delinquent child unless notice of the time and place of the hearing upon such matter is served on the parent or guardian of such child * * * as provided and directed by" statute. In re Frinzl, a Minor (paragraph one of the syllabus), 152 Ohio St. 164, 87 N.E.2d 583. In that case, it was held that an attack upon such "an order for permanent custody" by a habeas corpus proceeding was "direct and not collateral." See paragraph four of syllabus. See also Lewis v. Reed, 117 Ohio St. 152, 157 N.E. 897; Rarey v. Schmidt, 115 Ohio St. 518, 154 N.E. 914. Perhaps, it would be more accurate to recognize that such an attack is "collateral" but that such an attack can be successful where the order attacked is "void" because made without jurisdiction, and that such an attack is therefore as effective as though it had been "direct."
So far as the rights of a parent with respect to a child are concerned, a decree of adoption of such child by someone else is as serious in every respect and its consequences are much more serious than a court order merely granting permanent custody of such child to someone else. Thus, by a valid final decree of adoption, the parent is "divested of all legal rights and obligations due * * * from" the child and the child is made "free from all legal obligations of obedience or otherwise to" such parent. Section 8004-13, General Code (now Section 3107.13, Revised Code).
Therefore, it would necessarily seem to follow that compliance with the specific requirements of Section 8004-6, General Code, with respect to consents of parents, should be necessary to give a court jurisdiction to render a decree or order of adoption; and that such an order made without compliance therewith could be successfully attacked as void in a habeas corpus proceeding. See 1 American Jurisprudence, 674, 675, Section 77.
Apparently, the Ramseys contend that the consents of parents required by Section 8004-6, General Code, were not necessary in the instant case because the Juvenile Court had previously determined that Cathy Sue was a "neglected child" and such court had therefore obtained "exclusive original jurisdiction" over her. In support of this contention, the Ramseys rely upon that portion of Section 1639-16, General Code (now Section 2151.23, Revised Code), which reads:
"(a) The [juvenile] court shall have exclusive original jurisdiction under this chapter or under other provisions of the General Code:
"1. Concerning any child who is (1) delinquent, (2) neglected, (3) dependent, crippled, or otherwise physically handicapped."
However, it is provided in Section 1639-30, General Code (now Section 2151.35, Revised Code), that, if the Juvenile Court finds that a child "is delinquent, neglected, or dependent, it may by order * * * commit the child temporarily or permanently to the Division of Social Administration of the State Department of Public Welfare, or to a county department, board or certified organization." Where a permanent commitment to such division, department, board or organization has been made and is in effect, paragraph (2) of subdivision (B) of Section 8004-6 does away with the necessity of getting the consent of a parent, and subdivision (D) of that statute requires the written consent of such division, department, board or organization.
It is apparent therefore that the General Assembly contemplated that a Juvenile Court might have previously determined that a child being adopted was "delinquent, neglected, or dependent" and still not have awarded permanent custody as contemplated by subdivision B (2) of Section 8004-6. Notwithstanding that it is apparent that the General Assembly contemplated such a possibility, it made no provision for dispensing in such an instance with the consents of parents required by Section 8004-6, General Code. It is apparent therefore that, by what it has said, the General Assembly has negatived any intention to dispense with the requirements of Section 8004-6, General Code, with respect to filing consents of parents merely because the child being adopted has been determined by the Juvenile Court to be "delinquent, neglected, or dependent."
The only error assigned by the Ramseys in this court is that the Probate Court erred "in vacating and setting aside its former order * * * whereby Cathy Sue * * * was adopted by" the Ramseys. However, this "court, in its discretion, may consider and decide errors which are not assigned or specified." Section 2505.21, Revised Code (formerly Section 12223-21, General Code).
It may be effectively contended that, even if the decree providing for adoption of Cathy Sue is void, the Ramseys had the right to her custody by reason of the November 14, 1952, and December 8, 1952, orders of the Juvenile Court finding that she was a neglected child and committing her to the permanent custody of the Ramseys. See In re Frinzl, supra ( 152 Ohio St. 164), 178.
However, Section 1639-35, General Code (now Section 2151.38, Revised Code), provides that a commitment of a child by the Juvenile Court other than one to "the Boy's or Girl's Industrial School, or to the Ohio State Reformatory, or to the permanent custody of the State Department of Public Welfare, the Division of Social Administration in said department, a county department, board or a certified organization * * * 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." At most therefore, notwithstanding its terms, the order of commitment to the Ramseys made by the Juvenile Court can only be effective "until terminated or modified by the court, or until" Cathy Sue attains the age of twenty-one years. What the Juvenile Court would probably do, if it should be asked to disregard the void adoption order of the Probate Court and terminate the order of commitment of Cathy Sue to the Ramseys, is apparent from the order which the Probate Court of Ross County has made in the habeas corpus proceeding. The Juvenile Court in Ross County is a part of the Probate Court of that county and presided over by the judge of the Probate Court. Section 2151.07, Revised Code (Section 1639-7, General Code). If therefore this court should consider the orders of commitment made by the Juvenile Court as a reason for denying the relief sought, it would merely be denying, on technical grounds and for an error not assigned, relief which petitioner could probably readily secure by applying to the Juvenile Court. In other words, petitioner could probably readily secure from the same judge, acting as juvenile judge, the identical relief which was granted by him as probate judge in the instant habeas corpus proceeding. We believe therefore that this court should in its discretion decline to consider and decide whether the Probate Court erred in determining that the orders of the Juvenile Court committing Cathy Sue to the Ramseys are void. The Ramseys probably decided not to assign that determination of the Probate Court as error because they realized that a decision in their favor based only upon such assigned error would merely postpone the consequences which they seek to avoid, and also because, by reason of the provisions of the last paragraph of Section 8004-6, General Code, reliance upon those orders of the Juvenile Court would have been inconsistent with reliance upon the adoption proceeding of the Probate Court.
It follows that the judgment of the Court of Appeals must be affirmed.
Judgment affirmed.
WEYGANDT, C.J., MATTHIAS, HART, ZIMMERMAN and STEWART, JJ., concur.