24 Ohio C.C. (n.s.) 151 | Ohio Ct. App. | 1915
Lead Opinion
This is a proceeding in habeas corpus brought in the court of common pleas to recover the custody of a child about eleven years of age. The court of common pleas granted the writ, and error is prosecuted to that judgment. The case raises a very interesting question of jurisdiction as between the probate court and the common pleas court. No disputed matters of fact arise in the case. The important facts to be considered in determining the questions raised are simply that in a divorce action pending between the father and mother of the child, the custody of the child had been awarded to the mother in the court of common pleas of this county on December 26, 1913. In pursuance of this decree of the common pleas court the mother took and retained possession of the •child. In May, 1914, proceedings were instituted in the probate court, acting as a juvenile court, in this county, in which it was charged that the child was a dependent child by reason of the fact that it had not proper parental care and that its home was, by reason of neglect and depravity on the part of its parents, an unfit place for the Child. On the trial in the juvenile court that court found and adjudged that the child was a dependent of about the age of eleven years and that she was a ward of the court, and the court ordered that her custody be committed to the Cleveland Protestant Orphan Asylum and that she be there cared for and educated until the further order of the court.
The authority vested by statute in the court of
A similar question has been' before the supreme court on two recent occasions, the first being In re Crist, 89 Ohio St., 33. In that case the probate court had appointed a guardian of the child after the decree awarding the custody of the child had been entered in the court of common pleas, and it was held that the child had become the ward of the court of common pleas and that the jurisdiction over its custody was a continuing jurisdiction and could not be affected by the subsequent appointment of a guardian in the probate court.
The question was again before the supreme court in The Children’s Home of Marion County et al. v. Fetter, 90 Ohio St., 110. In that case a delinquent child had become a ward of the juvenile court and had been committed to an institution under provisions of the General Code relating to that court. Thereafter proceedings in habeas corpus were brought by a parent of the child and it was held that the order of the juvenile court was effective and controlling and that the court assuming to take subsequent jurisdiction was without authority. This is but another enunciation of a principle of
We see no reason why the order in the court of common pleas granting the custody of the child to the mother could not be modified in that court if conditions had so changed as to render such modification proper.
We call attention of counsel to the language of the supreme court in the closing paragraph of the opinion in Bower v. Bower, 90 Ohio St., 172. In that case the supreme court sustained the appealability of an order of the common pleas court determining the care, custody and maintenance of minor children, and in so doing affirmed the judgment of the circuit court and remanded the case to that court for such further orders from time to
We are entirely in accord with the eloquent tribute to the home as a place for rearing children, announced by Mr. Justice Brewer, found in In re Bullen, 28 Kans., 781. The only question, however, that is in this court is one as to the jurisdiction of the juvenile court under the circumstances disclosed in the record. The court of common pleas found in the present case that the order made in that court in the divorce case was unreversed and not modified and still in force, and that for this reason the juvenile court had no jurisdiction over the child as a dependent child. With that judgment we are in accord and the same will, therefore, be affirmed.
Judgment affirmed.
Concurrence Opinion
concurring. I concur in the judgment of affirmance, but I think it might well be placed on an additional ground than that mentioned in the opinion of Judge Richards, to-wit, that it is manifest in the record that the child in question is no longer a dependent child, if she were such at the time of the entry of the judgment of the juvenile court.