Opinion
Nos. 33801 and 33802
Decided June 9, 1954.
Juvenile Court — Jurisdiction to determine custody of child — Section 1639-16, General Code — Not limited to delinquent, neglected, dependent, or handicapped children.
1. Under the provisions of Section 1639-16, General Code (Section 2151.23, Revised Code), the Juvenile Court is invested with original jurisdiction to determine the custody of any child not a ward of another court.
2. In order to determine such right of custody, it is not necessary for the court to find first that such child is delinquent, neglected, dependent, crippled, or otherwise physically handicapped. (The syllabus in the case of Paddock v. Ripley, 149 Ohio St. 539, limited and distinguished.)
APPEALS from the Court of Appeals for Ashtabula county.
This unfortunate and confusing controversy relates to the custody of Patricia, a minor illegitimate daughter of Emma Elizabeth Torok, the petitioner in one of the two cases now before this court for consideration.
The petitioners in the other case are Mr. and Mrs. Chester C. Wood who have had the custody of the child since shortly after her birth on July 3, 1949. The mother placed her daughter with the Woods under an agreement whereby the mother and the baby's father, Frank Cragon, paid the Woods $20 per week as compensation for caring for the child. A total of $2,340 was paid. Later when the mother requested the return of her child, the Woods refused.
This refusal resulted in three actions in the Juvenile Court of Ashtabula County.
The first was a complaint instituted on December 17, 1951, by the Woods when they asked that the child be declared neglected and dependent so they could be awarded formal custody of the child inasmuch as they had become attached to her and desired to adopt her. On March 7, 1952, the court held that the child was neither neglected nor dependent and that the mother was entitled to the immediate custody of it.
The second action was instituted later by the mother on March 22, 1952, when she filed an application to determine the right of custody of her child still held by the Woods. On May 8, 1952, the court again held that the right of custody was in the mother, and the Woods were ordered to deliver the child to the mother within one week.
The third step was taken on May 17, 1952, when the mother filed a charge of contempt of court against the Woods for failure to deliver the child to the mother as ordered by the court on May 8, 1952. On June 27, 1952, the Woods were adjudged guilty of contempt of court and fined $250 each.
From the first order and judgment of March 7, 1952, holding that the child was neither neglected nor dependent, the Woods filed an appeal to the Court of Appeals on questions of law and fact. That court dismissed the appeal as on questions of law and fact and retained the appeal as on questions of law alone. Then the court reversed the judgment of the Juvenile Court on the ground that the latter court was without jurisdiction to award custody after finding that the child was neither neglected nor dependent. One member of the Court of Appeals dissented.
No appeal was perfected from the second order of May 8, 1952, requiring the Woods to deliver the child to the mother within one week. Hence, it is contended that this question is res judicata.
An appeal on questions of law was perfected to the Court of Appeals from the third order and judgment of June 27, 1952, adjudging the Woods guilty of contempt of court for failure to deliver the child to the mother within one week as required by the order of May 8, 1952. The Court of Appeals reversed this judgment, too, with one judge dissenting.
The first and third orders and judgments of the Juvenile Court are now before this court by reason of the allowance of the mother's motions to certify the records.
Messrs. Beach Warner and Mr. James D. McKim, for appellees.
Messrs. Nazor Nazor and Messrs. Payer, Bleiweiss Crow, for appellant.
As observed by counsel for the mother, the confusion engendered by this bitter prolonged controversy is illustrated by the statement in the majority opinion of the Court of Appeals that it was attempting to review the order entered by the Juvenile Court on April 29, 1952, requiring the Woods to deliver the child to the mother within one week. A careful study of the records discloses that the Juvenile Court did approve such a journal entry on that date but subsequently an amended entry was substituted therefor on May 8, 1952, as above indicated. No appeal was attempted from either of those orders, and hence, as observed by the dissenting member, the Court of Appeals was without jurisdiction to review either. But this error becomes unimportant in view of the opinion hereinafter expressed.
Stripped of the procedural confusion, the sole substantive question of law presented to this court for consideration is a simple one. Fortunately this court is not required to concern itself with the factual questions whether the child is neglected or dependent or the mother a fit person to have custody of her child. The question of law is whether the Juvenile Court lacked jurisdiction to determine the right of custody of the child in view of the decision that the child was neither neglected nor dependent. The answer is found in the following provisions of Section 1639-16, General Code (Section 2151.23, Revised Code):
"(a) The [Juvenile] Court shall have exclusive original jurisdiction under this chapter or under other provisions of the General Code:
"1. Concerning any child who is (1) delinquent, (2) neglected, (3) dependent, crippled, or otherwise physically handicapped.
"2. To determine the custody of any child not a ward of another court.
"3. To determine the paternity of any child alleged to have been born out of wedlock and to provide for the support of such child, subject to the concurrent jurisdiction of other courts as provided by law."
Reduced to its lowest terms, the precise question is whether subsection two is dependent on subsection one. Restated in other words, is a Juvenile Court invested with jurisdiction to determine the custody of a child without finding first that the child is delinquent, neglected or dependent? Or, to what extent, if at all, are the three subsections interdependent? If the second is dependent on the first, is the third likewise dependent on it? This would mean that the court would lack jurisdiction to determine the paternity of any child alleged to have been born out of wedlock unless it is held first that the child is delinquent, neglected, crippled, or otherwise physically handicapped. It seems inconceivable that by mere implication the General Assembly should intend to so limit the jurisdiction of the court to determine the important question of paternity. And if the first subsection is not to be regarded as a limitation on the third, is it logical to contrive a distinction between the second and third and thereby hold that the first subsection is a limitation on the second but not on the third? As this court has repeated in numerous cases involving statutory construction, the question is not what did the General Assembly intend to enact but what is the meaning of that which it did enact. Slingluff v. Weaver, 66 Ohio St. 621, 64 N.E. 574.
But it is urged that the instant cases are controlled by the following pronouncement of this court in the syllabus in the case of Paddock v. Ripley, 149 Ohio St. 539, 80 N.E.2d 129:
"The Juvenile Court has jurisdiction of a child only if such child is found to be delinquent, neglected or dependent. The Court of Common Pleas has jurisdiction to issue a writ of habeas corpus to a father who is a fit person for the custody of a child which is neither delinquent, neglected nor dependent."
Unfortunately that syllabus was not narrowed to the particular factual setting of that case. One of the contentions was that a father was not entitled to the remedy of habeas corpus in the Court of Common Pleas to obtain custody of his minor daughter because exclusive jurisdiction to determine that question had been lodged in the Juvenile Court by the provisions of Section 1639-1 et seq., General Code (Section 2151.01 et seq., Revised Code). That question is not involved in the instant cases. The question here is not exclusiveness of jurisdiction but whether the Juvenile Court did have jurisdiction to determine custody after first finding the child was neither dependent nor neglected. In the Paddock case the relationship of the three subsections of Section 1639-16, General Code, supra, was not mentioned.
Hence, this court is of the view that the majority of the Court of Appeals was in error in holding that under the circumstances the Juvenile Court was without jurisdiction to award the custody of the child to the mother and to hold the Woods in contempt of court for failure to deliver the child to the mother in conformity with the court order. The judgments of the Court of Appeals are reversed and those of the Juvenile Court are affirmed.
Judgments reversed.
MIDDLETON, HART, ZIMMERMAN, STEWART and LAMNECK, JJ., concur.