153 F.2d 1011 | 6th Cir. | 1946
The appellant, Velma Carqueville, is the mother of a boy James born on July 21, 1934. On February 1, 1941 she married the coappellant Jeffery A. Carqueville. On October 31, 1942 the appellants joined in an
The appellants, having failed to exhaust the state remedies available to them by not seeking a review of the rulings of the Ohio State Courts by its court of last resort, have no standing in their proceeding in the Federal District Court. Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791, 98 A.L.R. 406; Stonefield v. Buchanan, 6 Cir., 124 F.2d 23; Rowan v. People, 6 Cir., 147 F.2d 138; McCrae v. Jackson, 6 Cir., 148 F.2d 193. The incompetency or negligence of the attorney employed by the appellants does not constitute grounds for the application of the Fourteenth Amendment. Tompsett v. State of Ohio, 6 Cir., 146 F.2d 95. See also Norman v. United States, 6 Cir., 100 F.2d 905.
Nevertheless, considering the question on its merits, as was done by the District Judge, it is clear that the District Judge was correct in his ruling. In the absence of a federal question the whole subject of domestic relations of husband and wife and parent and child belongs to the jurisdiction of the State Courts. In re Burrus, 136 U.S. 586, 10 S.Ct. 850, 34 L.Ed. 500; Clifford v. Williams, C.C.Wash., 131 F. 100; Ex parte Bell, D.C., 240 F. 758; Popovici v. Popovici, D.C., 30 F.2d 185. The present application presents no federal question. The record contradicts appellants’ contention that the two Ohio courts failed and refused to give full faith and credit to the decree of adoption. The order of the Probate Court of Washington County, Ohio, which denied the writ in the State court recites that the cause was submitted upon the pleadings and the testimony and that from it the court found that the petitioner, Velma Carqueville, by conduct and agreement, later ratified in writing, relinquished, to Marguerite Woodruff and her husband her rights to the child, and that the best interests and welfare of the child would be promoted by his remaining in the home of the defendants, found by the court to be a proper home for said child. The application admits that the order of the Probate Court of Washington County, Ohio, was entered “after the hearing of evidence for both sides and the argument of counsel.” The record thus discloses that the court considered both the decree of adoption and other evidence offered and found sufficient evidence to justify the transfer of custody of the child from the parents to the appellees herein. The right of a parent to the custody and control of his child is not absolute, but may be lost by agreement, misconduct or unfitness. Bassett v. American Baptist Publication Soc., 215 Mich. 126, 183 N.
The order of the District Judge denying the application for the writ is affirmed.