13 Ohio App. 69 | Ohio Ct. App. | 1920
This is a proceeding in error to review the judgment of the court of common pleas in dismissing a petition in habeas corpus.
The action was brought by Charles Bleier, who alleges that he is the father of three minor children, under the age of sixteen years, seeking to regain their custody from The Children’s Home of Cincinnati, to which they were committed by the juvenile court. The petition alleges that the children are illegally restrained and deprived of their liberty, without any legal authority, by Meigs V. Crouse, superintendent of the Children’s Home; that they were not detained for any criminal or supposed criminal matter; and that neither they nor the petitioner have consented to their restraint and detention, and petitioner has frequently demanded of the defendant that he surrender the children, but that he has refused to comply with such demand. Plaintiff alleges that he is able, anxious and willing to care for them.
Meigs V. Crouse, as superintendent of the Children’s Home, filed an elaborate answer or return, in which he challenged the sufficiency of the petition and the jurisdiction of the court. He then denied all of the allegations of the petition (fourth defense), and by way of fifth defense set forth in detail the facts pertaining to the commitment and detention of the thfee children, which in brief were that for some time prior to and on the 21st day of January, 1914, the petitioner herein, and one Mary Bleier, who was the mother and had the custody of the minors, were living together as husband and wife, in Hamilton county, Ohio; that the petitioner and said Mary .Bleier refused to earn an honest
The answer further alleges that after the children had been in the home for over a year they were permanently committed to the home by the juvenile court on the 26th day of May, 1915, and permanent orders of commitment were issued by the court marked Exhibits “B,” “C” and “D”; that under the authority vested in the Children’s Home it procured homes for each of said children and they are now in the care and custody of good parents and are receiving proper care and education; that two of the children, Henry and Charles, have been duly and regularly adopted by foster parents, through proper proceedings, as provided by the statutes, with the consent of the Children’s Home and the juvenile court, and that the other child, William Bleier, is likewise in a good and proper home and his foster parents are ready and desire to adopt him through proper proceedings; that the petitioner is not ready and able to properly care for the children and that he seeks only to find out their
The petitioner thereupon filed what he entitled a motion to quash the return and to require the defendants to set forth where the children were. The court based the judgment of dismissal solely upon the petition and the commitments attached to the answer. The intention of both parties apparently was, however, that the motion be regarded substantially as a motion for judgment on an agreed state of facts. See In re Clayton, 13 O. D., 546. No technical question is raised here, and the court will consider the case on the merits.
The case raises important questions as to the construction and effect of the juvenile court statutes. Section 1648, General Code, provides that upon the filing of a complaint a citation shall issue requiring such minor to appear, and the parents or guardian, or other person, if any, having custody or control of the child, or with-whom it may be, to appear with the minor, at a time and place to be stated in the citation.
It is a well-settled principle of law that no one is bound by a personal judgment or order of a court, who is not made a party thereto, and has not had a day in court, except parties privy in interest. (In re Sharp, 15 Idaho, 120; 18 L. R. A., N. S., 886.) The petitioner is entitled to a day in court to have a determination of his rights regarding the custody of his children. House of Refuge v. Ryan, 37 Ohio St., 197; Farnham v. Pierce, 141 Mass., 203, and Milwaukee Industrial School v. Supervisors, 40 Wis., 328.
How then is he affected by the commitment of his children by the juvenile court?
Proceedings under the juvenile laws are modern and do not coincide with any proceeding known to the old law. See State, ex rel. Fortini, v. Hoffman, Judge, 12 Ohio App., 341. The fundamental principle of the juvenile acts is conservation of the child. In the exercise of the power of parens patriae the legislature has established the juvenile court and delegated to it certain of its powers. There is no authority to support the contention that notice to the parent is a condition prerequisite to
The proper forum for a parent who is not satisfied with the order of the juvenile court is the juvenile court itself, and such court will hear his application. State, ex rel. Tailford, v. Bristline, 96 Ohio St., 581. See also Cleveland Protestant Orphan Asylum v. Soule, 5 Ohio App., 67.
Procedure in habeas corpus was specifically authorized under the statutes of Ohio existing at the time of the case of House of Refuge v. Ryan, supra. There was no other judicial remedy provided in Massachusetts and Wisconsin, as shown by the cases above referred to. The remedy now provided by the Ohio law is by an application to the juvenile court to modify its findings.
If the adoption proceedings have now rendered it impossible for the court to restore the children to petitioner, the responsibility rests not with the juvenile court, but with the parent who has delayed for so many years in asking for their restoration. If the laws which provide for the welfare of children generally and society as a whole operate to cause possible hardship in an individual case, that circumstance alone will not undo the laws which society has established for its own protection and betterment.
The authority to commit the children to the Children’s Home is granted by Section 1653, General Code.
The determination by the court of common pleas that it was without jurisdiction to determine the
Judgment affirmed.