3. In case of arrest of a minor, upon a warrant issued by a juvenile court, arising out of a complaint charging such minor with delinquency, the juvenile court has jurisdiction of the proceedings even though a citation has not been issued to the parents, guardian or other person having custody and control of such child, or with whom it may be. ( Rarey v. Schmidt, 115 Ohio St. 518, and Lewis v. Reed, 117 Ohio St. 152, distinguished.) 4. Under Section 1643, General Code, when a child under the age of eighteen years comes into the custody of the juvenile court by virtue of a warrant and arrest, such child continues for all necessary purposes of discipline and protection a ward of the court until he or she attains the age of twenty-one years, and this is true even though such court has not adjudicated such complaint prior to the time that the minor becomes eighteen years of age.
To bolster this argument, the State filed a supplemental exhibit after oral arguments in which Turner stipulated he resided at 816 Greenfield Drive. The Supreme Court of Ohio has long ago rejected the “physical possession” concept of custody for children and held that custody “mean[s] a custody created by operation of law or awarded by judicial order, judgment, or decree.” Rarey v. Schmidt, 115 Ohio St. 518, 522–523, 154 N.E. 914 (1926). “Any other interpretation would create an intolerable situation, where any person who might have the physical possession and control of a minor child could appear in court in the place and stead of a parent, guardian, or legal custodian * * *.”
"Although the record speaks to the presence of an adult sister in juvenile court in all proceedings therein, the sister was not a custodian within the meaning of that term. Rarey v. Schmidt (1926), 115 Ohio St. 518; R.C. 2151.011(B)(10)."
See paragraph four of syllabus. See also Lewis v. Reed, 117 Ohio St. 152, 157 N.E. 897; Rarey v. Schmidt, 115 Ohio St. 518, 154 N.E. 914. Perhaps, it would be more accurate to recognize that such an attack is "collateral" but that such an attack can be successful where the order attacked is "void" because made without jurisdiction, and that such an attack is therefore as effective as though it had been "direct." So far as the rights of a parent with respect to a child are concerned, a decree of adoption of such child by someone else is as serious in every respect and its consequences are much more serious than a court order merely granting permanent custody of such child to someone else.
Unless such notice is given to the parents, the jurisdiction of the court does not attach and a judgment of commitment rendered in such proceeding is void." See, also, Rarey v. Schmidt, 115 Ohio St. 518, 154 N.E. 914; and In Re Frinzl, a Minor, 152 Ohio St. 164, 87 N.E.2d 583. It is stipulated by the parties that no charge against the petitioner concerning dependency of the child was made in the Juvenile Court.
We are forced to the conclusion that the finding and order of the Juvenile Court, dated September 2, 1938, and all subsequent proceedings in that action were null and void. In the case of Rarey v. Schmidt, 115 Ohio St. 518, 154 N.E. 914, paragraph two of the syllabus reads as follows: "Where a minor child has neither legal guardian nor a custodian created by operation of law or by judicial order, judgment, or decree, other than a parent, and the residence of such parent is known, service, actual or constructive, must be had upon such parent before a Juvenile Court has jurisdiction to declare such child a dependent child."
It has been held in this state ( Kingsborough v. Tousley, 56 Ohio St. 450, 47 N.E. 541) that an attack upon a personal judgment, upon the ground that the defendant was not served with process, nor jurisdiction of his person otherwise obtained, is not a collateral impeachment of the judgment, but is in the nature of a direct attack upon the judgment. Rarey v. Schmidt, 115 Ohio St. 518, 154 N.E. 914, holds that where a minor child has neither legal guardian nor a custodian created by operation of law or by judicial order, judgment, or decree, other than a parent, and the residence of such parent is known, service, actual or constructive, must be had upon such parent before a juvenile court has jurisdiction to declare such child a dependent child. In the case at bar, a constructive notice was given, but it was grounded in fraud; notice was made by publication, and a judgment of commitment procured; fraud was perpetrated upon the court, and the judgment was therefore a nullity.
This implies that an offender has been "taken into custody" under R.C. 2151.23(I) when the offender has been physically detained "by virtue of lawful authority" for "judicial or penal safe-keeping." Lidstrom at ¶ 20, citing Rarey v. Schmidt, 115 Ohio St. 518, 522 (1926). Both R.C. 2151.31(A) and Juv.R. 6(A) list several other ways in which a child may be "taken into custody" none of which are applicable here.
"The word 'custody' in law signifies 'the detainer of a person by virtue of a lawful authority'; 'judicial or penal safe-keeping.'" Rarey v. Schmidt (1926), 115 Ohio St. 518, 522, 154 N.E. 914. {¶ 21} In U.S. v. Wendy G. (C.A.9, 2001), 255 F.3d 761, 765, the court determined that a juvenile was "in custody" at the point she was placed in a holding cell.
Although the record speaks to the presence of an adult sister in juvenile court in all proceedings therein, the sister was not a custodian within the meaning of that term. Rarey v. Schmidt (1926), 115 Ohio St. 518; R.C. 2151.011(B)(10). Therefore, for failure to follow the due process requirements of the statute to effect a proper bind-over to the common pleas court, the minor could not become an "adult" for the purpose of being subject to the jurisdiction of the latter court.