Opinion
No. 34377
Decided December 14, 1955.
Parent and child — Surrendering child to permanent custody of association or institution — Authorizing association or institution to consent to adoption — Agreement irrevocable, when.
Under Section 5103.15, Revised Code, where the parents, guardian, or other persons having the custody of a child make an agreement surrendering such child into the permanent custody of an association or institution of this state, established for the purposes of aiding, caring for, and placing children in homes, which association or institution has been approved and certified by the Division of Social Administration of the Department of Public Welfare, and where such agreement is in writing on a form prescribed and furnished by such division and authorizes the association or institution to appear in any proceeding for the legal adoption of such child and consent to its adoption, as provided in Section 3107.06, Revised Code, and where such agreement is voluntarily made, without fraud or misrepresentation, and is accepted by the association or institution, the agreement is irrevocable except with the consent of the association or institution.
APPEAL from the Court of Appeals for Cuyahoga County.
On May 5, 1954, Steve G. Kozak and Anne Lael Kozak, hereinafter designated petitioners, instituted an action in habeas corpus in the Court of Common Pleas of Cuyahoga County for the custody of their minor children against The Lutheran Children's Aid Society, hereinafter designated respondent, and several officers and employees of respondent.
Petitioners allege that they are the parents of Steve Allen Kozak, age three years, and Sharon Anne Kozak, age two years, and are entitled to the custody of the children; that respondent is a corporation organized and existing under the laws of Ohio for the purpose, among others, of placing children in family homes for adoption, having been certified by the state for this purpose; that petitioners' children are not neglected or dependent minors; that on February 5, 1954, a form designated "Permanent Surrender of Child" was signed by Anne Lael Kozak, and a notarial affidavit on such form was executed by one of the employees of respondent, although Anne Lael Kozak was a minor; that on April 26, 1954, a demand was made upon respondent for the return of custody of such minor children to the petitioners, which demand was refused; that the minors have not been legally adopted by any person; and that petitioners have withdrawn from respondent any consent to adoption which might theretofore have been given, as provided by the statutes of Ohio.
Petitioners pray that such minors be discharged from illegal restraint.
In its return, respondent admits that it is a corporation existing under the laws of Ohio for the purpose, among others, of placing children in family homes for adoption, having been certified by the state for that purpose; that it has in its custody and under its control the minor children of petitioners; that such custody and control are justified; that permanent surrenders of such minors were executed by their parents on a form prescribed by the Ohio Department of Public Welfare, Division of Social Administration, in compliance with Sections 5103.15 and 5103.16, Revised Code; that such surrenders were voluntarily made and were accepted by respondent; that acceptance of such minors was made at the express request of petitioners; that on April 1, 1954, such minors were placed in a prospective adoptive home for the purpose of adoption, the respondent, however, retaining custody and control; that it is to the best interests of such minors that respondent retain control and custody for the purpose of placing and completing the adoption of the minors by persons other than the parents; that the mother of such minors consulted respondent on October 9, 1952, saying she had two children, the minors herein referred to, and was again pregnant, that she planned to live with her husband until the baby was born, that her marriage was a forced one before the minor Steve's birth, that her husband had abused her physically, that she wanted her children to have a better life and a secure home, and that adoption would be better for them if she and her husband decided to get a divorce; that the husband came to the office of respondent on October 16, 1952; that he was critical of his wife and stated that he had no esteem or regard for his family, that his wife was not a good mother or housekeeper, that he was justified in administering physical abuse, and that he was not sure the older child was his; that in December 1952 the mother contacted respondent and advised that her baby was born prematurely and dead, due to physical abuse by her husband when he pushed her down the stairs; that at that time petitioners claimed to be getting along a little better; that on June 29, 1953, the mother came to the office of respondent, saying she and her husband were planning a six months' separation; that she wanted to work and place the children for a long-term plan of adoption for them; that she was advised of the importance of such a step, and that planning for the children should be done by both parents; that a joint appointment was given on July 3, 1953; that there was a disagreement between the parents as the father wanted the mother out of the home and a housekeeper substituted; that an agreement was reached by the parents with respondent for a six-month boarding period for the children; that the children were accepted on a voluntary basis and were placed in various boarding homes, they having to be changed because of disrupting behavior and exaggerated fears of the children; that on October 14, 1953, the petitioners requested the return of the children since they had become reconciled; that the children were returned to them; that some time during the first part of 1954 the mother contacted respondent stating that she and her husband were separating, and that a divorce action was being instituted; that she requested permanent placement of the children, stating that she was unable to take care of them, and requested respondent to find suitable homes for the children for the purpose of adoption; that a lengthy discussion was had as to the effect of a permanent placement; and that both parents requested respondent to take permanent custody of the children and find suitable adoptive homes for them.
Respondent prays that custody and control of the minors remain permanently with it, upon the grounds (1) that the permanent surrenders offered by the parents and accepted by respondent are irrevocable, and (2) that the welfare of the children requires that respondent retain permanent custody and control of them for the reason that the children have been placed in the home of a married couple of excellent character, who are giving the children a good home and have been able to restore them to a normal condition, both mentally and physically.
The cause came on for hearing in the Court of Common Pleas, in which there was considerable testimony supporting the averments in respondent's return, together with denials of some of the averments by petitioners. It is undisputed, however, that the various contacts between petitioners and respondent were had at the times stated in respondent's return; that the children were voluntarily placed with respondent on a temporary basis and later returned to petitioners as averred by respondent; that subsequently both parents executed permanent surrenders of the children upon a form furnished by the Ohio Department of Public Welfare, which permanent surrenders were accepted by respondent; that such children were placed for adoption as averred in respondent's return; that a divorce action was instituted by the mother of the children against the father, which was subsequently dismissed, the parents having become reconciled; and that the parents are now living together with a new baby.
The Court of Common Pleas refused to discharge the minors from the custody of respondent upon the ground that the best welfare of the children required them to remain temporarily where they are, and did not pass upon the validity of the permanent-surrender instruments.
Upon appeal to the Court of Appeals, that court found error prejudicial to petitioners, reversed the judgment of the Court of Common Pleas, and entered final judgment for petitioners.
In its opinion the Court of Appeals said that the principal issue involves the right of natural parents to withdraw permanent-surrender agreements before adoption; that they have a right to revoke such permanent-surrender agreements at any time prior to actual award of adoption to other people; and that any question concerning the welfare of a child, as against the right of natural parents to custody, must be raised in a proper proceeding in the Juvenile Court, which is vested with jurisdiction, on complaint, to determine whether a minor child is neglected or dependent.
The cause is before this court upon the allowance of a motion to certify the record.
Mr. Clifford E. Bruce, for appellees.
Messrs. Good Good and Mr. John H. Woehrmann, for appellant.
Many issues have been injected into the present case, which, in view of the conclusion to which we have come, need not be discussed. For example, respondent contends that the Common Pleas Court had no jurisdiction to determine the custody of the minor children of petitioners, for the reason that under Section 2151.23, Revised Code, the Juvenile Court has exclusive original jurisdiction to determine the custody of a child not a ward of another court; that, therefore, the Court of Appeals had no jurisdiction except to affirm the judgment of the trial court; that the Court of Appeals had no authority to substitute its judgment for that of the trial court as to the welfare and best interests of the minor children, where there is substantial evidence to support the finding of the trial court; and that, in a habeas corpus action brought by parents against an institution such as respondent to regain custody of minor children, the institution may defend upon the ground that the welfare and best interests of the children require that the custody and control of the children remain with the institution.
In our view, we have but one question before us, and that is the construction of Section 5103.15, Revised Code, which reads 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 Division of Social Administration, 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.
"Such agreements, provided for in this section, shall be in writing, on forms prescribed and furnished by the division, 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 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."
It will be noted that the foregoing section 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.
The statute under consideration is in the chapter, "Division of Social Administration," which division is under the Department of Public Welfare.
The minor children in the present case have never been under the control of the Juvenile Court. No complaint has ever been made against them in such court, nor have they ever been found to be neglected or dependent. Their and their parents' status is determined by statute, without reference to any jurisdiction of the Juvenile Court.
There is no dispute in the present case that the parents of the minor children did place their temporary custody with respondent, which it is conceded is an institution of this state, established for the purpose of aiding, caring for and placing children in homes and has been approved and certified by the Division of Social Administration; and that after such placement the petitioners withdrew the children from such custody and thereafter made agreements surrendering the children into the permanent custody of respondent, which surrenders were accepted by respondent and the children placed in a family home for the purpose of adoption.
It is undisputed further that the agreements for permanent surrender were in writing, on a form prescribed and furnished by the Division of Social Administration, and that such agreements authorized the respondent to appear in any proceeding for the adoption of the children and consent to the adoption, as provided in Section 3107.06, Revised Code.
Petitioners contend that, even though they surrendered their children into the permanent custody of respondent, nevertheless they have a right to revoke such surrenders at any time before an interlocutory or permanent order of adoption is entered by the Probate Court, since Section 3107.06, Revised Code, provides that consents to adoption may not be withdrawn after the entry of such interlocutory order or final decree.
Petitioners' argument seems to be that, since they, as parents, could withdraw their consents to adoption, if they had given them in a proceeding for adoption in the Probate Court, at any time before the interlocutory order or final decree of adoption, they have the right to revoke the permanent surrenders of custody to respondent and to revoke the authority of respondent to consent to the adoption of the minor children. The Court of Appeals supported petitioners' contention upon the authority of two cases, to wit, In re Adoption of Kane, 91 Ohio App. 327, 108 N.E.2d 176, and French v. Catholic Community League, 69 Ohio App. 442, 44 N.E.2d 113.
The Kane case undoubtedly supports petitioners' contention and the judgment of the Court of Appeals, although the French case does not, for the reason that in the latter case the offer of the parents of minor children to make a permanent surrender of their custody was withdrawn before the association to which the surrender was proposed had accepted it.
Respondent, on the other hand, contends that the permanent surrenders of petitioners' minor children, executed by petitioners to respondent which accepted such surrenders, constitute irrevocable contracts under Section 5103.15, and we are of the opinion that such contention is legally sound. If an agreement for such permanent surrender can be withdrawn, it would seem silly to provide in the section for both a temporary surrender and a permanent surrender. There would be no difference between them.
In the permanent surrenders, respondent is authorized to appear in any adoption proceeding in the Probate Court, and the statute provides that an adoption order made by the probate judge, upon the consent of the respondent, shall be binding upon the children and their parents as if they were personally in court and consented thereto, whether parties to the proceeding or not.
Petitioners contend that, because a consent to adoption may be withdrawn before an order by the Probate Court, a consent to permanent custody may likewise be withdrawn before such an order.
The succinct and complete answer to that contention is that Section 3107.06, Revised Code, recognizes the right of withdrawal of consent, whereas Section 5103.15, Revised Code, does not. Where a permanent surrender has been made in compliance with the latter section, the institution to which the surrender is made is permanently in loco parentis so far as the minor children and their parents are concerned. It is the institution thereafter which may appear in any proceeding for adoption and which may give its consent or withdraw the same before the order of adoption is made, and the parents, having permanently surrendered their children to the institution, are no longer even necessary parties to any adoption proceeding. A temporary surrender may, of course, be revoked, but a permanent surrender is exactly what its name signifies — one made forever.
It is arguable that such a permanent surrender can be rescinded by the agreement of both parties thereto or may be set aside like any other agreement, if induced by fraud or misrepresentation, but the present case is not an action to set aside the agreements for permanent surrender, with which we are concerned, but is a habeas corpus action to accomplish a revocation of the surrenders and regain custody of the children. Under the plain unambiguous wording of Section 5103.15, Revised Code, this can not be accomplished in such an action.
The contention of petitioners, that the permanent surrenders of their minor children, made by them, are voidable, for the reason that the mother at the time of executing the permanent surrenders was under 21 years of age, and that the surrender contracts are not binding as to her, is without merit.
Section 5103.15, Revised Code, requires that the party signing a permanent surrender contract must be "a parent or guardian or other party having custody of a minor child." The statute does not limit the signing to adult parents, and a contract authorized by law is not voidable upon the ground of infancy unless the law so provides. Burlovic v. Farmer, Admr., 162 Ohio St. 46, 120 N.E.2d 705. Cf. Mestetzko v. Elf Motor Co., 119 Ohio St. 575, 165 N.E. 93.
The judgment of the Court of Appeals is reversed and that of the Court of Common Pleas, remanding custody to respondent, is affirmed.
Judgment reversed.
WEYGANDT, C.J., MATTHIAS, HART, ZIMMERMAN, BELL and TAFT, JJ., concur.