Opinion
No. 83-1436
Decided July 3, 1984.
Custody — Juvenile law — Neglect proceedings — No constitutional entitlement to counsel at temporary custody proceedings.
APPEAL from the Court of Appeals for Williams County.
Appellant, Jennifer L. Beard, is the natural mother of Cassie Miller (born October 12, 1969), Jamie Miller (born March 30, 1972), Christopher Miller (born March 11, 1975), and Nicky Miller (born August 11, 1976).
On March 22, 1976, a complaint was filed in the Williams County Juvenile Court by John W. Hahn, then Director of the Williams County Welfare Department, now Williams County Department of Social Services, appellees herein, alleging that Cassie, Jamie and Christopher were neglected children, and seeking temporary custody on behalf of the appellees. At the time appellant was married to and living with the children's father, Donald J. Miller.
Appellant and Donald Miller received notice of the pendency of the complaint and appeared at a hearing held on March 30, 1976. As a result of that hearing, the court awarded temporary custody of Cassie, Jamie and Christopher to the appellees, but physical possession of the children remained with appellant and her husband. The court's entry stated that the parents had waived their right to counsel; however, no waiver of counsel forms were in the file and appellant denies having waived her right to counsel.
On December 17, 1976, the appellees filed a motion seeking temporary custody and possession of appellant's minor children. The motion alleged that the children were neglected and that the parents were not cooperating with the appellees in providing necessary services. The motion also specified that since the last hearing, Nicky was born and alleged that he was also neglected.
A hearing on the motion was held on December 22, 1976 and appellant was present, but not represented by counsel. As a result of the hearing, temporary custody with possession was awarded to the appellees.
On November 29, 1978, a complaint in neglect was filed by the appellees seeking permanent custody of all four children. The complaint alleged that the children had been in the temporary custody of the appellees for eighteen months and that "* * * neither parent had stabilized to the point where the return of the children is possible." On July 2, 1979, a hearing was held on the complaint. Appellant appeared and was represented by counsel. A guardian ad litem represented the children. By entry of August 13, 1979, the children were found to be neglected and permanent custody was awarded to the appellees.
No appeal was taken by appellant from that order and ultimately, all four children were adopted. On February 23, 1983, appellant filed this habeas corpus action in the court of appeals alleging that the award of custody to the appellees and subsequent adoptions were void and seeking the return of her four children. The court of appeals denied the writ and the cause is now before this court upon an appeal as of right.
Messrs. Anderson, Holder, Barkenquast King and Ms. Susan M. Pioch, for appellant.
Mr. Craig L. Roth, for appellees.
A writ of habeas corpus will lie in child custody matters if the custody order in dispute was entered by a court without jurisdiction, thus being void ab initio. See In re Frinzl (1949), 152 Ohio St. 164 [39 O.O. 456]; Reynolds v. Ross Cty. Children's Services Agency (1983), 5 Ohio St.3d 27.
Appellant argues that she was entitled to counsel at all meaningful stages of the neglect proceedings and, therefore, the failure to provide her with counsel during the proceedings to obtain temporary custody renders those orders void. There is no constitutional requirement that appellant be afforded counsel at temporary custody proceedings. In State, ex rel. Heller, v. Miller (1980), 61 Ohio St.2d 6 [15 O.O.3d 3], we held at paragraph two of the syllabus:
"In actions instituted by the state to force the permanent, involuntary termination of parental rights, the United States and Ohio Constitutions' guarantees of due process and equal protection of the law require that indigent parents be provided with counsel and a transcript at public expense for appeals as of right." (Emphasis added.)
Subsequently, in Lassiter v. Dept. of Social Services (1981), 452 U.S. 18, the United States Supreme Court held that the Due Process Clause of the Fourteenth Amendment to the United States Constitution does not require the appointment of counsel for indigent parents in every parental status termination proceeding, although recognizing that such appointment was required in certain states, including Ohio.
Appellant was represented by counsel at the permanent termination hearing, as required by Heller, supra. Having been represented by counsel, there is no reason why she should not have been aware of her right to an appeal.
The errors raised by appellant which do not amount to constitutional claims, namely, that the complaint failed to properly name her youngest son and that she was entitled to counsel at the temporary custody hearings under R.C. 2151.352 could have been raised on appeal, had appellant availed herself of that remedy.
"* * * 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 [36 O.O.2d 84]; In re Hunt (1976), 46 Ohio St.2d 378 [75 O.O.2d 450]." Linger v. Weiss (1979), 57 Ohio St.2d 97, 100-101 [11 O.O.3d 281].
Accordingly, the judgment of the court of appeals is affirmed.
Judgment affirmed.
CELEBREZZE, C.J., W. BROWN, SWEENEY, LOCHER, HOLMES, C. BROWN and HOFFMAN, JJ., concur.
HOFFMAN, J., of the Fifth Appellate District, sitting for J.P. CELEBREZZE, J.