Opinion
No. 79-1130
Decided July 23, 1980.
County children's services board — Transfer of permanent custody — Effective, when — Juvenile Court consent required.
1. The meaning of the term "permanent custody" as used in R.C. 5153.16(B) is the same as defined in R.C. 2151.011(B)(12), and thus legal transfer of permanent custody of a child to a board or county department that has assumed the administration of child welfare is contingent upon consent to the transfer by the Juvenile Court.
2. There can be no permanent surrender of a child by a parent to the board or county department within the meaning of R.C. 5153.16(B) until the consent of the Juvenile Court has been journalized as a matter of record in the court's journal.
3. An agreement by a parent with the county board or welfare department for permanent surrender of a child prior to consent of the Juvenile Court is not only revocable by the parent prior to consent of the Juvenile Court, but such revocation operates to dissolve the offer to surrender, and the public agency's continued retention of the child and refusal to return the child to the parent is illegal and gives rise to an action in habeas corpus.
APPEAL from the Court of Appeals for Holmes County.
In September 1978, appellant, Doris Angle, then eight months pregnant, approached the Holmes County Welfare Department, Children's Services Division ("Welfare Department"), indicating a desire to surrender her child at birth. She received counseling and a copy of the Permanent Surrender of Child form for study.
On October 13, 1978, appellant gave birth to a female child. On October 16, 1978, appellant executed a "Permanent Surrender" of the child at her home in Shreve, Ohio. Appellant was 21 years of age when she executed the surrender to two authorized agents of appellee Welfare Department.
Appellant signed an affidavit contemporaneously with the surrender indicating that the effect of the surrender had been explained to her by one of the agents.
On October 23, 1978, appellant, accompanied by her mother, went to the Welfare Department, orally revoked the surrender, and asked for the child's return to her. Appellee Sharon Mullet, as authorized agent for the Welfare Department, refused to return the child to appellant.
On October 24, 1978, the Permanent Surrender of Child form was presented to the judge of the Court of Common Pleas of Holmes County, Juvenile Division, for his consent. The form, appearing to be proper, was signed by him on that date.
On December 29, 1978, appellant filed her application for habeas corpus in the Juvenile Court and concurrently executed and delivered to appellees her formal Withdrawal of Consent and Rescission of Permanent Surrender of Child.
On January 26, 1979, a hearing was held in the Juvenile Court on appellant's application for the issuance of a writ of habeas corpus. The court, after hearing testimony, on February 22, 1979, entered a judgment denying the application for the writ. On appeal, the Court of Appeals affirmed the judgment of the Juvenile Court.
The cause is now before this court pursuant to the allowance of a motion to certify the record.
Mr. Edward Emmett O'Farrell, for appellant.
Mr. Robert P. Beck, prosecuting attorney, for appellees Welfare Dept., Gallion and Mullet.
Messrs. Tone, Maddrell, Eastman Grubbe and Mr. Barry W. Vermeeren, for appellees John and Mary Doe.
The basic issue presented by appellant is whether a parent who has entered into an agreement surrendering her child into the permanent custody of an agency of this state as authorized by R.C. 5103.15, where such agreement is voluntarily made, is bound by such agreement prior to approval thereof by the Juvenile Court as required by R.C. 5153.16(B), so as to make it impossible for the parent to withdraw her consent to the agreement.
Additional facts, as they developed at the hearing on the application for a writ, reveal that the appellant, who had voluntarily entered into an agreement of surrender on October 16, 1978, decided on October 23, 1978 (prior to court approval thereof), that she wanted to keep her child and so informed the agency. Either on that same date, October 23, 1978, or on the following day, the agency left the Permanent Surrender form with the court for its consent.
The trial court, in its opinion denying the writ, stated: "On October 24, 1978, the Permanent Surrender of Child was presented to***[the] Judge of the Juvenile Court of Holmes County, Ohio, for his consent, and the form appearing to be in proper form, the same was signed by him."
Before proceeding, reference to the language of certain statutes, in pertinent part, is necessary.
"(B) `County department of welfare' means a county department of welfare which has assumed the administration of child welfare."
"(B)***provided the permanent custody of a child shall not be transferred by a parent to the board or county department without the consent of the juvenile court."
"(B) As used in sections 2151.01 to 2151.99, inclusive, of the Revised Code:
"***
"(12) `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 welfare board, or certified organization, all parental rights, duties, and obligations, including the right to consent to adoption, and divests the natural parents***of any and all parental rights, privileges, and obligations, including all residual rights and obligations." (Emphasis added.)
Admittedly, the above definition of permanent custody, by the terms of the statute, limits the definition to its usage in R.C. Chapter 2151. Nevertheless, where the functions performed by the county welfare department pursuant to the definition in R.C. 5153.01 are those authorized to be performed in the R.C. 2151.011 definition of permanent custody, we conclude that the term "permanent custody" referred to in R.C. 2151.011 must be given the same definition when used in R.C. 5153.16(B).
The answer to the basic issue raised was rather clearly stated, at page 191, of In re Miller (1980), 61 Ohio St.2d 184, as follows:
"A county children's services board is authorized by R.C. 5153.16(B) to enter into permanent surrender agreements with parents, guardians and legal custodians. The statute clearly makes legal transfer of permanent custody to such a public body contingent upon consent to the transfer by the Juvenile Court. However, a proceeding to procure the court's consent is not in the nature of an adversary proceeding. See In re Surrender Anne K. (1972), 31 Ohio Misc. 218. It is the Juvenile Court's function in consenting to a permanent surrender to insure that the surrender is made by the parent voluntarily, with full knowledge of the legal import of the relinquishment of parental rights accomplished thereby; and to insure that the child welfare agency does not enter into improvident contracts."
In the instant cause, the record contains a judgment entry of surrender referring to the date of October 24, 1978, signed by the judge and numbered "1" in the pagination of the record from the Court of Common Pleas, Juvenile Division. That entry, however, was never date stamped to reveal when journalization occurred. All other original papers, opinion, and final judgment in the habeas corpus proceedings bear the stamp of the Juvenile Court showing when the items were received for filing.
In our opinion, to the extent that there can be no effective agreement relating to the transfer by a parent to the board of the permanent custody of a child without the consent of the Juvenile Court, pursuant to statute, there is, in effect, no agreement, but merely a proposed agreement, until court approval is obtained. (How can it be otherwise where disapproval by the court would be tantamount to nonexistence of the agreement?) Thus, in answer to the basic issue presented, unless and until a proposed agreement meets the approval of the Juvenile Court, no agreement as to permanent custody has been reached consistent with R.C. 5153.16(B), and the proposed agreement is not only revocable by the parent prior to consent of the Juvenile Court, but this revocation operates to dissolve the offer to surrender and the public agency's continued retention of the child and refusal to return it to the natural parent is illegal and gives rise to an action in habeas corpus.
The remaining issues raised by appellant as constitutional questions are made moot by the procedural approach statutorily contemplated under R.C. 5153.16(B) as set forth herein.
For the reasons indicated, the writ of habeas corpus should have been allowed, and the appellant is entitled to custody of her child.
Accordingly, the judgment of the Court of Appeals is reversed, and the cause is remanded to the Juvenile Court for proceedings consistent with this opinion.
Judgment reversed and cause remanded.
CELEBREZZE, C.J., HERBERT, W. BROWN, SWEENEY and HOLMES, JJ., concur.
P. BROWN, J., concurs in paragraphs one and two of the syllabus and in the judgment.
HOFSTETTER, J., of the Eleventh Appellate District, sitting for LOCHER, J.