Opinion
No. 74-542
Decided April 23, 1975.
Habeas corpus — Action by mother to obtain custody of minor — Juvenile Court — R.C. 2151.23(A)(3) — Mother not deprived of custody, when — Necessity of hearing and finding mother unfit parent.
APPEAL from the Court of Appeals for Cuyahoga County.
On June 22, 1968, Shirley White gave birth to a son, Mark. Later, because Mrs. White was working, a Mr. and Mrs. Jones began caring for Mark in their home.
When the Joneses refused to relinquish custody of Mark, and Mrs. White was told that she could no longer see him, she filed a habeas corpus action in the Juvenile Court of Cuyahoga County, seeking custody of Mark.
After hearing opening statements by counsel for Mrs. White and the Joneses, and without permitting Mrs. White to present any evidence, the Juvenile Court denied Mrs. White's petition for habeas corpus and committed Mark to the temporary care and custody of the Cuyahoga County Welfare Department for placement.
According to the entry of the Court of Appeals and the briefs of the parties, the Juvenile Court had before it a letter from a physician who made certain recommendations concerning the placement of Mark. The letter is not, however, a part of the record.
Upon appeal, the Court of Appeals, by split decision, affirmed, holding that under the circumstances "the present welfare of the child in a habeas corpus proceeding takes precedence over the mother's bare legal claim to custody."
The allowance of a motion to certify the record and an appeal as of right bring the cause to this court.
Miss Joyce Neiditz, for appellant, Shirley White.
Mr. Thomas G. Kelley, for appellees Willie Gossette, Fannie Jones and Willie Jones.
R.C. 2151.23(A)(3) states that the Juvenile Court has exclusive original jurisdiction "to hear and determine any application for a writ of habeas corpus involving the custody of a child."
This is not a dispute between parents over the custody of their child. In this case, in order for the Juvenile Court to deprive Mrs. White of the custody of Mark, it is necessary that she be found to be an unfit parent and that such finding result from a hearing at which the parties are accorded due process. The record does not show that the Juvenile Court made any finding that Mrs. White was an unfit parent.
Accordingly, the judgment of the Court of Appeals is reversed, and the cause is remanded to the Juvenile Court for further proceedings not inconsistent with this opinion.
Judgment reversed.
O'NEILL, C.J., HERBERT, CORRIGAN, STERN, CELEBREZZE, W. BROWN and P. BROWN, JJ., concur.