507 N.E.2d 453 | Ohio Ct. App. | 1986
This cause came to be heard upon the appeal from the Hamilton County Court of Common Pleas, Probate Division.
The appellant, Patrick Lynn Taylor, ("Taylor"), is the natural father of Patrick Lynn Mays and Jonathon Andrew Mays. Taylor appeals herein from the judgment of the Hamilton County Court of Common Pleas, Probate Division ("probate court") awarding permanent custody of his two minor children to their maternal grandmother, petitioner-appellee Barbara Sue Mays ("Mays").
In November 1984, Mays filed a petition in probate court for the adoption of Patrick Lynn Mays and Jonathon Andrew Mays. Mays alleged in her petition that the children's natural mother, Linda Mays Taylor, had consented to the adoption and that the consent of the children's natural father, Taylor, was not required because he had failed without justifiable cause to provide for the maintenance and support of the children for a period of more than one year prior to the filing of the petition. Taylor was notified of the petition, and he responded with an answer and objections to the adoption.
In October 1985, following a hearing on the petition, the probate court issued its opinion. The court found that the children were originally placed in Mays' home in January 1982. In August of the same year, the juvenile court awarded Mays temporary custody of the children. In January 1983, Taylor was incarcerated in the Lebanon Correctional Institution where he remained until his parole in August 1985. In July 1983, while Taylor was incarcerated, his wife, Linda Taylor, obtained a divorce. The probate court determined that Taylor had failed, as alleged, to provide for the maintenance and support of his children for more than one year preceding Mays' initiation of adoption proceedings, but that his incarceration justified his failure. The court thus concluded that Taylor's consent to the adoption was required and, accordingly, entered judgment dismissing Mays' petition. The court further determined that the children's best interests would be served by remaining with Mays and, therefore, pursuant to R.C.
From that judgment, Taylor has taken the instant appeal in which he sets forth two assignments of error. In his first assignment of error, Taylor assails the probate court's award of permanent *197 custody of the children to Mays. We find this remonstration to be meritorious.
As a preliminary matter, we note that the probate court had jurisdiction to rule upon Mays' adoption petition despite the contemporaneous jurisdiction of the juvenile court which arose by virtue of its prior award of temporary custody. The juvenile court awarded Mays temporary custody of the children in August 1982. Subsequent to an award of temporary custody, the juvenile court retains continuing jurisdiction which may be invoked by motion. Juv. R. 35 (A). However, the probate court has exclusive jurisdiction to hear and determine an adoption petition notwithstanding the continuing jurisdiction of another court. Inre Adoption of Stone (Mar. 19, 1973), Butler App. No. B72-06-0046, unreported. Thus, the probate court had jurisdiction to entertain Mays' adoption petition.
We further find statutory authority for the probate court's award of permanent custody to Mays following its dismissal of the petition for adoption. R.C.
"(C) If, at the conclusion of the hearing, the court finds that the required consents have been obtained or excused and that the adoption is in the best interest of the person sought to be adopted, it may issue * * * a final decree of adoption * * *.
"(D) If the requirements for a decree under division (C) of this section have not been satisfied * * * the court shall dismiss the petition and may determine the agency or person to have temporary or permanent custody of the person, which may include the agency or person that had custody prior to the filing of the petition or the petitioner, if the court finds it is in the best interest of the person, or if the person is a minor, the court may certify the case to the juvenile court of the county where the minor is then residing for appropriate action and disposition."
Thus, R.C.
The court below determined pursuant to R.C.
We note, however, that R.C. Chapter 3107, which governs adoption proceedings, neither defines the phrase "permanent custody" nor prescribes the effect of a permanent custody award pursuant to R.C.
"`Permanent custody' means a legal status created by the court which vests in the county department of welfare which has assumed the administration of child welfare, county children services board, or certified organization, all parental rights, duties, and obligations, including the right to consent to adoption, and divests the natural parents or adoptive parents of any and all parental rights, privileges, and obligations, including all residual rights and obligations."
Thus, an award of permanent custody in juvenile court proceedings under R.C. Chapter 2151 divests natural parents of all parental rights, privileges and obligations. R.C.
"Words and phrases shall be read in context and construed according to the rules of grammar and common usage. Words and phrases that have acquired a technical or particular meaning, whether by legislative definition or otherwise, shall be construed accordingly."
We find that the phrase "permanent custody" has acquired a technical meaning by legislative definition and that, in the absence of a contrary definition for purposes of proceedings under R.C. Chapter 3107, the phrase must be construed consistently with R.C.
Natural parents have a fundamental liberty interest in the care, custody and management of their children. Santosky v.Kramer (1982),
The primary consideration in a custody determination, however, is the best interest of the child. In re Perales (1977),
In a custody dispute between natural parents, the parents have an equal interest in the custody of their child and, therefore, the welfare of the child is the sole consideration. In rePerales, supra. However, a parent has a paramount right to the custody of his child over a nonparent. Thus, in a custody dispute between a parent and a nonparent, the fundamental right of a parent to raise *199
his own child is brought into play. Id. Resultantly, in a custody dispute between a parent and a nonparent, the parent may be denied custody only if clear and convincing evidence indicates "abandonment, contractual relinquishment of custody, total inability to provide care or support, or that the parent is otherwise unsuitable — that is, that an award of custody would be detrimental to the child." Id. at 98, 6 Ohio Op. 3d at 297,
The Revised Code authorizes permanent divestiture of parental rights in three separate proceedings, viz., permanent commitment pursuant to R.C. Chapter 2151, adoption pursuant to R.C.
Under R.C. Chapter 2151, the juvenile court may order a child committed to the permanent custody of a designated agency either directly pursuant to R.C.
When parental rights are terminated by adoption under R.C.
The protections afforded parents in *200
R.C. Chapter 2151 permanent commitment proceedings and R.C.
Taylor, in his second assignment of error, contends that the court below abused its discretion by excluding from evidence at the hearing on Mays' adoption petition testimony establishing his efforts and abilities since the filing of the petition to provide for the care, support and maintenance of his children and by refusing his requests for a current supplemental investigation into those efforts and abilities. We find no merit to this contention.
R.C.
As we noted supra, the focus in the dispositional phase of adoption proceedings is on: (1) whether parental consents were obtained or excused by contractual relinquishment or by the parents' failure without justifiable cause to communicate with or to maintain or support their child for more than one year prior to the filing of the petition; and (2) whether adoption is in the best interest of the child. R.C.
Taylor's efforts and abilities to maintain and support his children in the year prior to Mays' institution of adoption proceedings are thus relevant to the probate court's R.C.
Taylor on appeal does not, for obvious reasons, challenge the probate court's dismissal of Mays' petition for adoption. Accordingly, our determination herein does not affect that portion of the judgment of the court below pertaining to the dismissal of Mays' adoption petition.
We determined, however, in upholding Taylor's first assignment of error, that R.C.
Judgment accordingly.
KEEFE, P.J., KLUSMEIER and HILDEBRANDT, JJ., concur.