Opinion
No. 31682
Decided July 20, 1949.
Juvenile Court — Dependent or delinquent child — Jurisdiction to make temporary commitment permanent — Parent or guardian to be served with notice of time and place of hearing — Section 1639-25, General Code — Service to be sufficiently in advance of hearing — To enable person to obtain counsel and prepare for hearing — Habeas corpus — Writ may issue where court without jurisdiction to make order — Service of notice upon parent within hour of hearing, insufficient — Order for permanent custody of dependent child, void — Attack upon order direct and not collateral — Legal notice not waived by presence of parent at hearing, when.
1. 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 either by delivering a copy to the person to be notified, by leaving a copy at his usual place of residence, by service by registered mail, or by publication, as provided and directed by Section 1639-25, General Code.
2. In order to be valid, such notice must be served sufficiently in advance of the hearing to give the person to be notified a reasonable time to obtain counsel and prepare for participation in such hearing.
3. Although under Section 12165, General Code, a writ of habeas corpus will not be allowed if it appears that the person alleged to be restrained of his liberty is confined by virtue of a judgment or order of a court of record and that the court or magistrate had jurisdiction to make the order, a writ may issue where the court was without jurisdiction to make the order and it is void ab initio.
4. Where the only notice given to the mother of an adjudged dependent child, of a hearing to change such child's temporary commitment to a permanent one, was served on the mother within an hour before such hearing and she had no opportunity between the time of being served with the notice and the time of the hearing, to either prepare for such hearing or to engage counsel to represent her, such notice is insufficient in law and an order for permanent custody made at such hearing is void for want of jurisdiction of the court in making it, and an attack made upon it by an application for a writ of habeas corpus is direct and not collateral and is proper even though the judgment appears to be regular and valid upon its face. (Paragraph four of the syllabus in Lewis v. Reed, 117 Ohio St. 152, approved and followed.)
5. The presence of the mother of a dependent child at a hearing, the purpose of which is to determine whether a temporary commitment of such child should be made permanent, does not waive the necessity of a legal notice of the hearing to such mother when such presence occurs immediately after notice is served upon her and she has had no opportunity for either preparation or the securing of counsel to represent her in such hearing. ( Ex parte Province, 127 Ohio St. 333, distinguished.)
APPEAL from the Court of Appeals for Cuyahoga county.
On January 12, 1948, Elsie Frinzl, hereinafter designated petitioner, as the lawful mother and next friend of Beverly Frinzl, a minor eight years of age, hereinafter designated Beverly, applied to the Common Pleas Court of Cuyahoga County for a writ of habeas corpus, naming James Ewers (hereinafter designated director), director of the Cuyahoga County Child Welfare Board (hereinafter designated the board), and Alfred G. Winters, superintendent of the Children's Aid Society (hereinafter designated society), as respondents.
Petitioner stated in her petition that on September 19, 1947, in the Juvenile Court of Cuyahoga County, over the protest and without the consent of petitioner, an order was issued committing Beverly to the permanent care and custody of the board and removing the lawful mother of Beverly from her care and custody; that since September 19, 1947, and for several months prior thereto, at the direction of the director, Beverly had been living in the society's institution, under the direct control and supervision of the superintendent; and that petitioner, the lawful mother of Beverly, had been denied the privilege of visiting her since May 1947 and was permitted the privilege of seeing Beverly only from a distance outside the institution.
Petitioner stated further that Beverly was restrained by respondents from the opportunity to visit with, speak to, write to, or communicate with petitioner; that respondents denied petitioner, a Roman Catholic, the opportunity to be present when Beverly made her first holy communion; that, while Beverly was in the custody and control of the Juvenile Court of Cuyahoga county and the board, petitioner was willing and able to contribute to the financial support of Beverly but was informed by the agents of the board that it would not be necessary for her to contribute to such support; and that the community chest and red feather agencies would assume the obligation.
Petitioner prayed that a writ of habeas corpus be issued directing the respondents to bring Beverly before the Common Pleas Court, and that she be discharged of any and all illegal restraint.
A writ of habeas corpus was issued and respondents appeared in open court with Beverly, waived the filing of a formal answer to the petition, entered a general denial, and the cause was heard on its merits.
Extensive testimony was offered on behalf of both petitioner and respondents and much of it is irrelevant to the question we have to decide, but from the evidence which was undisputed the following facts appear:
On March 17, 1939, petitioner, who was unmarried, gave birth to Beverly. Due to hostility on the part of petitioner's father, petitioner remained for several months with Beverly at Booth Memorial Hospital. This arrangement was made by the Cleveland Humane Society. Subsequently, there was a reconciliation between petitioner and her father and petitioner returned to her father's home with Beverly and kept house for her father and brother. The brother, who worked at night, complained about Beverly crying, and the Humane Society, at petitioner's request, placed Beverly, then about 15 months old, for boarding with a Mr. and Mrs. Muss in Cleveland. Beverly remained with the Muss family for a period of six years, and during that time petitioner paid the humane society for Beverly's board.
Shortly after Beverly went to board with the Muss family she was baptized in the Catholic religion, with the consent of petitioner, which baptism offended a social worker who had charge of the case.
An August 8, 1945, one William P. Walton filed a complaint in the Juvenile Court of Cuyahoga County, representing that Beverly, then about six years old, was a dependent child in that she was without proper care and support through no fault of the mother. Such a complaint was authorized by Section 1639-23, General Code.
On February 6, 1946, the Juvenile Court, by journal entry, found that Beverly was dependent in that she was without proper care and support through no fault of her mother and that it was for the best interests of Beverly that petitioner be temporarily deprived of Beverly's care and custody and that Beverly be committed to the temporary care and custody of the board.
After the commitment to the board, Beverly was examined and thereafter placed in the home of the society which is a hospital school for emotionally disturbed children, where such children are housed, educated and treated.
During Beverly's stay at the society's home, petitioner was employed, earning approximately $30 a week, and living with her father. Both petitioner and her father regularly visited Beverly. It was claimed, and denied, that their visits had a disturbing effect upon Beverly, and eventually those visits were prohibited as was all communication between petitioner and Beverly.
On August 28, 1947, the board filed a motion in the Juvenile Court for an order committing Beverly to the board for permanent care or adoption. On the same date, the Juvenile Court issued a citation to petitioner to appear at the court at 9:30 a.m. on September 19, 1947, in the matter of such motion, which citation was served on petitioner on the morning of September 19, 1947, after she had arrived at the court and approximately one hour before the hearing on such motion was had.
There is a dispute in the testimony as to events leading up to the hearing on September 19, 1947. Petitioner maintains that a social worker telephoned her a couple of days before September 19 to come to the court on that date with reference to Beverly, but that no information was given petitioner as to the nature of the hearing to be had. Two social workers testified that petitioner had been called by telephone several days before the hearing and informed of the nature thereof, and that she promised to attend.
There is no dispute that a probation officer of the Juvenile Court had taken the citation to petitioner's home some days previous to September 19, 1947, but had not found petitioner there, had not left the citation at the home and had never served it in any way upon petitioner prior to just before the hearing.
The Common Pleas Court denied the ultimate relief asked and, after a motion for a new trial had been overruled, petitioner appealed to the Court of Appeals on questions of law and fact.
The Court of Appeals dismissed the appeal on questions of law and fact, retained the case on questions of law, reversed the judgment of the Court of Common Pleas on the ground that "the procedure followed by the court in granting order of exclusive custody to County Child Welfare Board was a violation of relator's constitutional right of due process," proceeded to render the judgment which it said should have been rendered by the trial court, and granted the relief sought.
The case is before this court on the allowance of a motion to certify the record.
Mr. Martin L. Sweeney, for appellee Elsie Frinzl.
Mr. Frank Cullitan, prosecuting attorney, and Mr. Thomas V. Moore, for appellants James Ewers, director, Cuyahoga County Child Welfare Board, and others.
The sole question for our decision is whether the Juvenile Court had jurisdiction to enter its judgment of September 19, 1947, which committed Beverly to the permanent care and custody of the Cuyahoga County Child Welfare Board and permanently removed her from the care and custody of petitioner.
As has been narrated in the statement of facts, on August 8, 1945, a complaint was filed in the Juvenile Court for inquiry into the alleged dependency of Beverly. That complaint was filed in accordance with Section 1639-23, General Code.
Section 1639-4, General Code, defines "dependent child" and reads in part as follows:
"For the purpose of this chapter, the words `dependent child' includes any child:
"1. Who is homeless or destitute or without proper care or support, through no fault of its parents, guardian or custodian."
On February 6, 1946, the Juvenile Court made an order finding Beverly dependent in that she was without proper care or support through no fault of the mother; that she, Beverly, came within the jurisdiction of the court, being in all respects within the provisions of the law concerning delinquent, neglected and dependent children, and that it was for the best interests of Beverly that petitioner be deprived of Beverly's care and custody temporarily, and, therefore, ordered that Beverly be committed to the temporary care and custody of the board.
At the hearing of the present case in the Common Pleas Court it was conceded that the order for temporary custody was not involved, and that petitioner had been served with a citation for such hearing in accordance with Section 1639-24, General Code, which reads in part:
"After a complaint or an application for care shall have been filed and after such further investigation as the court may direct, unless the parties voluntarily appear, the court shall issue a citation * * * requiring the parents, guardian, or the person or persons who have the custody or control of the child * * * to appear personally and bring the child before the court at the time and place stated. If the person so cited shall be other than the parent or guardian of the child, then the parent or guardian, or both, shall also be notified of the pendency of the case and of the time and place of hearing."
It was further conceded that petitioner participated in the hearing concerning the temporary custody, and the record discloses that several times in the trial of the present case petitioner's counsel stated that the only question was with reference to the hearing as to permanent custody. In one instance, Mr. Sweeney, representing petitioner in the present case, said:
"We are not concerned with '45 or any dates preceding September 19, 1947."
At another time the court asked a question, "There is no issue that they had temporary custody?" To which Mr. Sweeney replied, "No issue. It was conceded they had temporary custody. Our issue is directed to this permanent custody."
It is clear that no attack was ever made on the order of the Juvenile Court of February 6, 1946, concerning the temporary care and custody of Beverly.
That brings us to a consideration of the hearing in the Juvenile Court of September 19, 1947, and the order made on that date committing Beverly to the permanent care and custody of the board and removing her permanently from the care and custody of petitioner.
Did the Juvenile Court have jurisdiction to make that order?
Section 1639-24, General Code, in addition to what has been recited supra, provides in part:
"Before any temporary commitment shall be made permanent the court shall fix a time and place for hearing and shall cause notice thereof to be served upon the parent or guardian of the child, or published, as provided in the next succeeding section."
Section 1639-25, General Code, reads in part:
"Service of citations, notices and subpoenaes shall be made by delivering a copy to the person cited, notified or subpoenaed; or by leaving a copy at his usual place of residence; provided, that if the judge is satisfied that such service is impracticable, he may order service by registered mail."
The section proceeds with a provision for service by publication when it appears that a parent, guardian or other person having custody of the child resides or has gone out of the state or that his or her place of residence is unknown.
It is clear that in order to change a temporary commitment to a permanent one the parent of the child to be committed must be notified of the time and place of the hearing and that such notice must be served as provided in Section 1639-25, supra. Notice by telephone or conversation is not sufficient and unless the statutory provisions for notice are complied with or waived, the Juvenile Court cannot obtain jurisdiction to make a permanent commitment.
It seems to us that the reason for the particularity which the statute requires as to notice to the parent or guardian is based on the drastic consequences of a permanent commitment. Under a temporary commitment a parent has the right to make an application for a change in such commitment as circumstances might justify, but when the commitment is made permanent the child is permanently removed from the care and custody of the parent.
It is a mere truism to remark that ordinarily there is no more sacred relationship than that between a mother and her child; and that even though a mother may have been grievously at fault at one time in her life, she has the right to have her character and fitness judged as of the time of any hearing concerning her and her child. In the instant case the evidence shows that of late years petitioner has been working constantly and hard in industry, has kept house competently and well for her father, and has been living a decent and upright life.
Because of the relationship between parents and children, and because of the social consequences involved, even though juvenile agencies have undoubtedly made a great contribution to social and community welfare, a Juvenile Court cannot make a valid order changing temporary commitment of a dependent child to a permanent one without a service of notice upon the parent of the child, strictly in accordance with the law.
A requirement that notice be served of the time and place of hearing in reference to a permanent commitment means a notice reasonably in advance of such time so that the parent notified may have ample opportunity to secure counsel and prepare to resist the application to make the temporary commitment permanent.
In the present case it is undisputed that no service of a copy of a notice of the time and place of the hearing for the permanent commitment of Beverly was made upon petitioner prior to about one hour before such hearing; that no copy of such notice was left at her usual place of residence, and that no service was made upon her by registered mail.
It is claimed by respondents that petitioner appeared at the hearing concerning permanent custody, with full knowledge of the nature of it, but that knowledge is strenuously denied by petitioner. After she was served with notice, about one hour previously, she did attend the hearing, unrepresented by counsel, with a feeling that those concerned in the hearing were hostile to her, and when she was asked by the Juvenile Court at the hearing what she had to say for herself, she merely told the court that she wanted her little girl.
We are of the opinion that petitioner was not legally notified of the hearing at which the order for the permanent custody of Beverly was made, and that, therefore, the Juvenile Court was without jurisdiction to make it.
It is contended by respondents that the order of permanent commitment, having been made by a court of competent jurisdiction and being a valid and subsisting order, cannot be attacked collaterally by habeas corpus. That contention would undoubtedly be sound if the order was valid and subsisting; in other words, if the Juvenile Court had had jurisdiction under the circumstances to make it.
Section 12165, General Code, provides:
"If it appears that the person alleged to be restrained of his liberty is in custody of an officer under process issued by a court or magistrate, or by virtue of the judgment or order of a court of record, and that the court or magistrate had jurisdiction to issue the process, render the judgment, or make the order, the writ shall not be allowed * * *."
The weakness of the contention of respondents rests upon the fact that the Juvenile Court did not have jurisdiction to make the order for permanent commitment for the reason that there had not been a legal notice of the time and place of the hearing served upon petitioner as required by law. This court has held that in such a case the order of the court is void ab initio and may be attacked in a habeas corpus proceeding. Under such circumstances the attack is not collateral but direct.
In the case of Lewis v. Reed, 117 Ohio St. 152, 157 N.E. 897, which is a decision under a former statute (Section 1648, General Code), analogous to present Section 1639-24, General Code, this court stated in the first paragraph of the syllabus:
"Under Section 1648 of the General Code, the mother of an illegitimate child is entitled to notice, actual or constructive, of proceedings upon a complaint of dependency instituted in the Juvenile Court in reference to such child. Until notice of such proceedings has been given to the mother, the jurisdiction of the Juvenile Court does not attach and a judgment of permanent commitment rendered in such dependency proceeding is void."
In that case it appeared that the court had been deceived in that a relative of the mother had falsely told the court that the mother's residence was unknown and that, as a result, notice of the hearing in reference to the custody of the child was served by publication.
This court said in paragraph three of the syllabus:
"In a habeas corpus proceeding brought by the mother of an illegitimate child whose custody has been given to a children's home under such judgment of permanent commitment, held, as only constructive notice was given, that a judgment of permanent commitment of such child to a children's home by a Juvenile Court is not conclusive but is open to attack for want of jurisdiction of such Juvenile Court on account of fraud committed in procuring constructive notice to the mother by false and fraudulent statements to the effect that the mother's whereabouts were unknown."
Paragraph four of the syllabus reads:
"In such case an attack upon a judgment for fraud in its procurement is direct, and is permitted notwithstanding that the judgment questioned may appear on its face regular and valid."
Although it is true that ordinarily a valid and subsisting order of a court of competent jurisdiction cannot be attacked by habeas corpus, an order is not valid and subsisting where the court does not have jurisdiction to make it.
In the present case petitioner was entitled to notice long enough in advance of the hearing with reference to the permanent commitment of her daughter Beverly so that petitioner could adequately prepare for it and secure counsel to represent her if she so desired, and that notice must be such as is provided by statute unless it is waived.
For the proposition that petitioner is bound by the order of the Juvenile Court for the permanent commitment of Beverly because of petitioner's voluntary appearance on the morning of the hearing and her being present at the proceedings, respondents rely on the case of Ex parte Province, 127 Ohio St. 333, 188 N.E. 550, which was decided under former Section 1648, General Code. In that case the syllabus reads:
"Under Section 1648, General Code, the mother of a child is entitled to notice, actual or constructive, of proceedings upon a complaint of dependency instituted in the Juvenile Court with reference to such child. A voluntary appearance in such a proceeding is a waiver of all prior service of process, and when a mother appears at and participates in a hearing in which the dependency of the child is considered, she waives all prior notice of proceedings upon such complaint of dependency to which she was entitled under the statute."
However, the Province case is readily distinguishable from the present one in that in that case, though there was no service of citation upon the mother, she voluntarily appeared and was represented by counsel who participated in the hearing.
In the present case the petitioner was not represented at the hearing and her only participation was her plaintive request that she be given back her little girl.
As has been said, a temporary commitment may be changed or terminated for good cause shown, but in case of a permanent commitment, as far as the parent is concerned, the jurisdiction of the Juvenile Court ceases.
Section 1639-35, General Code, provides in part:
"When a child is committed * * * * to the permanent custody of the state Department of Public Welfare, * * * a county department, board or a certified organization, the order shall state that such commitment is permanent and the jurisdiction of the court in respect to the child so committed shall cease and terminate at the time of commitment; except that if the * * * certified organization having such permanent custody make application to the court for the termination of such custody, the court upon such application * * * may terminate such custody * * *. All other commitments made by the court 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 21 years."
Because of the failure to legally notify petitioner of the time and place of the hearing to make the temporary commitment of Beverly permanent, the order of the Juvenile Court of September 19, 1947, is null and void for want of jurisdiction, and the judgment of the Court of Appeals, while not as clear as might be desired, is affirmed so far as it holds that such order was a violation of petitioner's constitutional right of due process, and is affirmed so far as it orders Beverly to be discharged from the permanent care and custody of the Cuyahoga County Child Welfare Board.
The judgment of the Court of Appeals is affirmed in accordance with this opinion.
Judgment accordingly.
WEYGANDT, C.J., MATTHIAS, HART, ZIMMERMAN and TURNER, JJ., concur.
The majority opinion recognizes that all parties concede the validity of the order of the Juvenile Court of February 6, 1946, temporarily depriving petitioner of the care and custody of her daughter and committing the daughter to the care and custody of the respondent board.
If, as the majority opinion holds, the Juvenile Court had no jurisdiction to make the subsequent order of September 19, 1947, committing the petitioner's daughter to the permanent care and custody of the respondent board, it does not follow that the board did not lawfully have care and custody of petitioner's daughter.
On the contrary, the admittedly valid order of 1946 would remain in effect until modified by some other valid order of the Juvenile Court. If there was none, then the respondent board certainly still had temporary care and custody under that 1946 order.
Petitioner has mistaken her remedy. If the respondent board has the right to temporary care and custody of petitioner's daughter, then the Common Pleas Court judgment should not, as the majority says it should, order "Beverly to be discharged from the permanent care and custody of" the board. If the 1947 order was void, as the majority opinion holds, petitioner should have applied to the Juvenile Court for modification of the 1946 order so as to get custody of her daughter. In doing so, she could then contend that the 1947 order was void.
The result of the holding in this case is to permit petitioner to ignore and avoid attacking the admittedly valid 1946 order.
Lewis v. Reed, 117 Ohio St. 152, 157 N.E. 897, cited by the majority, is clearly distinguishable from this case. In the Lewis case there had been no order for temporary custody. There was simply an order granting permanent custody to the respondent. That order, being void, the respondent had no right to the care and custody of the child involved in that case. On the other hand, even if the order granting permanent custody in the instant case is void, the same board which was granted permanent custody under that void order has a right to temporary custody under an admittedly valid order. Such order has not been attacked and if the order granting permanent custody is void, there is nothing in the record of the Juvenile Court which in any way could be construed as a modification of the admittedly valid order granting the respondent board temporary custody.