Summary
In Linger v. Weiss (1979), 57 Ohio St.2d 97, 11 O.O.3d 281, 386 N.E.2d 1354, this court held that a three-year delay following an adjudicatory hearing did not require habeas corpus relief.
Summary of this case from Howard v. Cath. Soc. Serv. of Cuyahoga Cty. Inc.Opinion
No. 78-734
Decided March 28, 1979.
Juvenile Court — Neglected child — Jurisdiction of court — Habeas corpus — Writ not available, when — Remedies not exhausted.
1. The Juvenile Court has exclusive original jurisdiction, pursuant to R.C. 2151.23(A), concerning any child who is alleged in a proper complaint to be neglected, and the court does not lose jurisdiction by failing to adhere to the time limits set forth in Juv. R. 29(A) and 34(A).
2. A parent, alleging that he failed to receive notice of a hearing concerning the shelter care of his child, must move the Juvenile Court for a rehearing, pursuant to Juv. R. 7(G), before seeking a writ of habeas corpus.
APPEAL from the Court of Appeals for Licking County.
This is an appeal by Thomas and Barbara Quickle (appellants herein), the foster parents of three and one-half-year-old Jason Dale Linger (Jason), from a decision of the Court of Appeals which granted a writ of habeas corpus, ordering that Jason be returned to his natural mother, Anita Louise Linger, who is the petitioner below and appellee herein.
On July 9, 1975, two-month-old Jason was taken by his parents to Children's Hospital in Columbus, Ohio, where he was admitted for treatment of a broken leg. Suspecting that Jason may have been abused by his parents, the hospital officials notified the Licking County Welfare Department. On July 11, 1975, a complaint was filed in the Juvenile Division of the Court of Common Pleas, alleging that Jason was a neglected child.
See Note, Child Abuse: Civil Liability of Physicians and Hospitals for Failure to Report, 2 Univ. of Dayton L. Rev. 93 (1977), for a discussion of the nature of the "battered child syndrome," the responsibility of treating physicians and admitting hospitals to report suspected cases of child abuse, and their potential liability for failing to diagnose and report such cases.
On July 15, 1975, a series of hearings were commenced in the Juvenile Court to determine whether the child was, in fact, neglected. As a result of the July 15 hearing, Judge Weiss, by journal entry, ordered that Jason remain in the emergency shelter care of the Licking County Welfare Department, i. e., the foster home of appellants.
On March 10, 1978, almost three years later, the appellee filed a complaint in the Court of Appeals seeking, among other things, a writ of habeas corpus and alleging that, although Jason had been in the emergency shelter care of the Welfare Department since July of 1975, no final adjudication had ever been made in the matter.
Initially, Judge Weiss, a party to the proceeding before the appellate court and an amicus curiae herein, argued that appellee's petition for a writ of habeas corpus should be denied in that the July 15 hearing was a final adjudication of neglect. However, Judge Weiss, in an addendum to her brief in the Court of Appeals, reversed her position and conceded that there had been no final adjudication and that one would be scheduled. Nevertheless, the appellants continued to maintain that the July 15 hearing was a final adjudication of neglect.
Judge Weiss held an adjudicatory hearing, which was concluded on May 10, 1978, and the parties were given the opportunity to file briefs therein. On June 20, 1978, Judge Weiss found that Jason's condition was such that he is a neglected child. That finding has now become the basis for an appeal to the Court of Appeals for Licking County.
On June 2, 1978, the Court of Appeals granted the writ. First, the court found that the failure to conduct an adjudicatory hearing within the time limit set out in Juv. R. 29(A) deprived the court of jurisdiction to decide the issue of neglect. Secondly, the court found that, even if the July 15 hearing were an adjudication of neglect, the outcome would be no different, in that: (1) the record showed no evidence of notice to petitioner (the natural parent) concerning the hearing, resulting in a failure of due process, and (2) the failure of the court to make a proper disposition of the matter (see Juv. R. 34) deprived the court of jurisdiction.
The execution of the writ of habeas corpus has been stayed pending the outcome of the cause before this court on appeal as a matter of right.
Mr. Kenneth B. Schumaker, for appellee.
Messrs. Morrow, Gordon Byrd and Mr. James R. Cooper, for appellants.
The first issue to be decided in this cause is whether a failure by a Juvenile Court to comply with the time schedules set out in Juv. R. 29(A) and 34(A) deprives the court of jurisdiction, and, thereby, opens its authority to collateral attack through a complaint for a writ of habeas corpus. Juv. R. 29(A) requires that, if the child who is the subject of the complaint alleging neglect is in shelter care, an adjudicatory hearing must be held not later than ten days after the filing of the complaint. Juv. R. 34(A) states that the dispositional hearing may be held immediately following the adjudicatory hearing or at a later date fixed by the court.
The Court of Appeals held that: (1) if the July 15 hearing was not an adjudicatory hearing, then the court's failure to hold such a hearing for nearly three years deprived it of jurisdiction; or, (2) in the alternative, if the July 15 hearing was an adjudication of neglect, the court still lost jurisdiction by failing to make a proper disposition of the matter (see Juv. R. 34[A]).
This court disagrees with the appellate court's conclusion that the Juvenile Court lost jurisdiction by failing to comply with the Juvenile Rules. The jurisdiction of the juvenile courts of this state is a creation of statutory law. R.C. 2151.23(A) states, in part:
"The juvenile court has exclusive original jurisdiction under the Revised Code:
"(1) Concerning any child who on or about the date specified in the complaint is alleged to be * * * neglected * * *."
On the other hand, the Juvenile Rules were enacted pursuant to Section 5 of Article IV of the Ohio Constitution. They were intended to establish a uniform procedure for juvenile courts in Ohio. As such, they can in no way be construed to affect the jurisdiction of the juvenile courts as established by statute. Juv. R. 44 specifically provides that "[t]hese rules shall not be construed to extend or limit the jurisdiction of the juvenile court." The inquiry on a writ of habeas corpus is not to address procedural errors committed by the court within its jurisdiction. Any challenge, therefore, to the jurisdiction of the Juvenile Court cannot be made by alleging a failure to comply with the time limits of Juv. R. 29(A) or 34(A).
Section 5, Article IV, Ohio Constitution, states, in part:
"(B) The supreme court shall prescribe rules governing practice and procedure in all courts of the state * * *."
Juv. R. 1(A) states, in part:
"These rules prescribe the procedure to be followed in all juvenile courts of this state in all proceedings coming within the jurisdiction of such courts * * *."
This is not to say that a party is left without a remedy in a case where the judge fails to set the matter for hearing within the time schedule of the Juvenile Rules. The proper remedy in such a case is a complaint for a writ of procedendo.
The appellate court also held that, assuming the July 15 hearing was an adjudicatory hearing, a writ of habeas corpus should still lie because the record revealed no evidence that the appellee received a summons to the hearing, or waived her right to one. The court found the failure of such evidence in the record revealed a lack of due process.
This court disagrees that habeas corpus lies in such a situation. A writ of habeas corpus is an extraordinary remedy and will not ordinarily be granted when there is another adequate remedy at law. In re Piazza (1966), 7 Ohio St.2d 102; In re Hunt (1976), 46 Ohio St.2d 378. The appellee had an adequate remedy, pursuant to Juv. R. 7(G), which states:
"Any decision relating to * * * shelter care may be reviewed at any time upon motion of any party. If a parent * * * did not receive notice of the initial hearing and did not appear or waive appearance at the hearing, the court shall rehear the matter promptly." (Emphasis added.)
A parent, who did not receive notice of a hearing relating to shelter care, must first file a motion in the Juvenile Court as provided in that rule before seeking a writ of habeas corpus from the Court of Appeals. Once a parent files such a motion, Juv. R. 7(G) makes a rehearing mandatory.
Requiring a parent to exhaust all other adequate remedies, in this case filing a motion under Juv. R. 7(G), is especially appropriate herein, where the July 15 journal entry stated that "all writs heretofore issued herein have been duly served according to law and that all persons interested are now before the Court." Such recitals in a judicial order attacked on habeas corpus should be taken as true. In other words, recitals in a Juvenile Court decision that due notice was given to a mother of a hearing in which the child was declared to be neglected should not be attacked in a habeas corpus proceeding, particularly where the mother had a right to attack the decision by a direct proceeding, Juv. R. 7(G), in the Juvenile Court to set aside the decision for lack of notice. See In re Orosco (1949), 92 Cal.App.2d 352, 207 P.2d 656.
Even if this court were to agree that the failure of the record to show that appellee received proper notice of the July 15 hearing deprived the Juvenile Court of jurisdiction and that a writ of habeas corpus was appropriate, the parent would not automatically be entitled to immediate custody of the child. Prior to removing a child from a nonparent custodian under a writ of habeas corpus, Ohio law requires a court to make a full inquiry into the best interests of the child and the natural parents' fitness. Cincinnati House of Refuge v. Ryan (1881), 37 Ohio St. 197; In re Tilton (1954), 161 Ohio St. 571. Cf. In re Perales (1977), 52 Ohio St.2d 89. Any such consideration would be unnecessary at this time in that, subsequent to the filing of the complaint in this cause, the Juvenile Court conducted such a hearing and found the child to be neglected.
Accordingly, the judgment of the Court of Appeals is reversed.
Judgment reversed.
CELEBREZZE, C.J., HERBERT, W. BROWN, P. BROWN, SWEENEY and HOLMES, JJ., cooncur.