Opinion
No. 72-877
Decided June 27, 1973.
Juvenile Court — Child found neglected, committed to Children's Services Board — Procedure — Hearing — Habeas corpus in Court of Appeals — Denial of due process claimed — Petitioner entitled to full hearing on merits, when — Civ. R. 12B(6) — R.C. 2151.28 and 2151.29.
APPEAL from the Court of Appeals for Gallia County.
On February 20, 1966, Virginia Fay Wheeler was born to Charlotte Marie Wheeler. On April 23, 1968, Charlotte Marie Wheeler, now married to Milon Jack Brown, gave birth to Robert Paul Brown. On September 19, 1969, Charlotte and Milon Jack Brown were divorced in Council Bluffs, Iowa. From time to time the two children, Virginia Fay Wheeler and Robert Paul Brown, were left to the care and control of their maternal grandmother, Isabelle Wheeler. On November 15, 1971, the children were temporarily placed with the Gallia County Children's Services Board when their mother was incarcerated and their grandmother, Isabelle Wheeler, was physically unable to care for them, there being no other responsible person to do so. When Charlotte Brown Shope was released from jail she relocated herself to Hialeah, Florida, leaving her children in the custody of the Children's Services Board. On February 23, 1972, an amended complaint praying for the permanent care and custody of the aforesaid children was filed in the Court of Common Pleas, Juvenile Court Division, by Jerry E. Miller, executive secretary of the Gallia County Children's Services Board. Summons was issued for Charlotte Brown Shope and Milon Jack Brown notifying them of the complaint and the hearing set for March 8, 1972. The return indicates that Charlotte Brown Shope was personally served at Rio Grande, Ohio, but that the letter containing the summons for Milon Jack Brown, 4027 North 58th Avenue, Phoenix, Arizona, was returned "Unclaimed." On March 8, 1972, the court found that service had not been made upon Milon Jack Brown and a precipe for service by publication was issued setting the new hearing date for March 22, 1972. Hearing was held March 22, 1972, the said Charlotte Brown Shope being present, though unrepresented by counsel, and the court found that the children were "neglected," and "ordered that said children be committed to the permanent care and custody of the Gallia County Children's Services Board at Gallipolis, Ohio." Petitioner claims that at that hearing her request for counsel was denied.
The record in the Probate Division of the Common Pleas Court of Gallia County, Ohio, reveals that a final decree of adoption dated July 26, 1972, was entered in the matter of Robert Paul Brown and that Virginia Fay Wheeler is living in a registered foster home.
On August 8, 1972, Charlotte Brown Shope, now known as Charlotte Marie Shope living in Lima, Ohio, filed a petition for a writ of habeas corpus for Robert Paul Brown and Virginia Fay Wheeler, minors, in the Court of Appeals for Gallia County, representing that she had been unlawfully deprived of the custody of said minors because she had not been represented by counsel at the custody hearing. Summons was issued for Jerry Miller, executive secretary of the Gallia County Children's Services Board, and she filed a motion to dismiss the petition on the grounds that the Juvenile Court has exclusive jurisdiction in such action, and, secondly, that the petitioner has an adequate remedy by way of appeal.
Hearing was scheduled for September 14, 1972, on the respondent's motion to dismiss and continued upon agreement of counsel for submission to the court without oral argument to October 31, 1972.
On October 13, 1972, the Court of Appeals, treating the second stated ground as a motion to dismiss, sustained the motion and dismissed the petition.
The cause is now before this court upon an appeal as of right.
Mr. Franklin A. Martens and Mr. David A. Little, for appellant.
Mr. Gene Wetherholt, prosecuting attorney, for appellee.
Although the question of the jurisdiction of the Court of Appeals was raised by the respondent there can be little doubt that that court is constitutionally entitled to hear any and all writs of this nature. Section 3 (B) ( 1) (c), Article IV of the Ohio Constitution, provides that the Courts of Appeals shall have original jurisdiction in habeas corpus.
The focal point of the writ centered on whether petitioner had been afforded due process on March 22, 1972, when her children were adjudged "neglected" by the Court of Common Pleas, Juvenile Division, Gallia County, Ohio, and committed to the permanent care and custody of the Children's Services Board. R.C. 2151.29 states: "Service of summons, notices, and subpoenas, prescribed by Section 2151.28 of the Revised Code, shall be made by delivering a copy to the person summoned, notified, or subpoenaed, or by leaving a copy at his usual place of residence." R.C. 2151.28(C) provides: "The summons shall contain a statement advising that any party is entitled to counsel in the proceedings and that the court will appoint counsel if the party is indigent." The papers and documents in the file indicate that Charlotte Brown Shope, a. k. a. Charlotte Marie Shope, was personally served in Rio Grande, Ohio, on February 23, 1972. An examination of the summons clearly indicates that R.C. 2151.28(C) was precisely complied with. However, the summons provided that the hearing would be held "before the court at Gallipolis, Ohio on the 8th day of March 1972, at 9:30 o'clock a. m." On March 7, 1972, the court filed a judgment entry resetting the hearing for the 22nd day of March 1972, at 9:00 o'clock a. m., and ordering service by publication on Milon Jack Brown. The record discloses no notice to Charlotte Marie Shope. However, it is unquestionably apparent that she did appear in person on March 22, 1972, at which time the court found that the children were "neglected" and committed them to the permanent care and custody of the Gallia County Children's Services Board. There is no record of these proceedings.
The petitioner did not raise the question of notice in the trial court, presumably because she was personally served initially and was present at the continued hearing. These facts do not square with the facts in the case of In re Frinzl (1949), 152 Ohio St. 164, wherein the petitioner was served notice of the hearing for permanent commitment within one hour of the hearing.
The Court of Appeals granted a "motion to dismiss" the writ "upon the ground of a failure to state a claim upon which relief can be granted." Civ. R. 12 (B) (6). A reading of the first page of the petition indicates to this court that there is clearly therein a "claim." This court will not indulge in speculation concerning what testimony there may be to support the alleged "claim." Suffice to say, that the Court of Appeals should have allowed petitioner to proceed by affording her a full hearing on the merits of her "claim."
The judgment of the Court of Appeals is reversed and the cause is remanded to that court for further proceedings.
Judgment reversed.
O'NEILL, C.J., HERBERT, CORRIGAN, STERN, CELEBREZZE and W. BROWN, JJ., concur.
In order to allow a writ of habeas corpus to issue, this court must hold that the refusal of counsel in the hearing in the Juvenile Court had the effect of withdrawing jurisdiction and rendering that court's judgment void. I have discovered no case that holds an improper denial of such a right in a child neglect or similar case has such an effect. Nor has appellant called our attention to such authority. To so hold might well re-open cases involving adoptions based upon consents given by social agencies to which permanent custody had been awarded in similar proceedings, thus affecting rights of persons not parties.
It seems clear to me that the Court of Appeals' order dismissing the petition for a writ rests upon sound ground and protects the finality of Juvenile Court orders in cases of this nature.
The denial of counsel upon a claim of indigency is error reviewable upon appeal, and such denial did not divest the Juvenile Court of jurisdiction and render the judgment subject to collateral attack in habeas corpus proceedings.