Jurisdictional Statement — Howell v. Coshocton County Children's Services Board

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80-5302 Srorives

8 27 1980

IN THE SUPREME COURT OF THE UNITE STA

OFFICE OF THE CLERK

SUPREME COURT, U.S.

No.

October Term, 1979

WILLIAM HOWELL,

Appellant,

COSHOCTON COUNTY CHILDREN'S SERVICES BOARD,

Appellee.

Statement in Support of Jurisdiction

Edward Emmett O'Farrell, Esq.

Southeastern Ohio Legal Services

Tuscarawas Valley Area Office

131 Fair Avenue, N.E.

New Philadelphia, Ohio 44663

Telephone: (216) 364-7769

Thomas W. Hardin

Legal Intern

Southeastern Ohio Legal Services

Tuscarawas Valley Area Office

131 Fair Avenue, N.E.

New Philadelphia, Ohio 44663

Telephone: (216) 364-7769

Counsel for Appellant

David Hostetler, Esq.

Assistant Prosecuting Attorney

Coshocton County, Ohio

410 1/2 Main Street

Coshocton, Ohio 43812

Telephone: (614) 622-1066

Attorney for Appellee

Coshocton County Children's

Services Board

Norman S. Davitt, Esq.

528 1/2 Main Street

Coshocton, Ohio 43812

Telephone: (614) 623-0800

Guardian Ad Litem for Mary Evelyn Howell

INDEX

Questions Presented ...-.-eeeeeeeeeecees a wide 6 enere aletaiect Pa re

Opinions

ey eer ree re ae ee ee ee ee

ORO... cco 66 oc 6 010 0 ose Seno 6.6 06a 8s ees a's a cbt a ae ae iee

Constitutional and Statutory

Provisions Involved ...... cee eee cece eee r ewe eeeereecece

Statement of the CaS€ .. cece eee e cece eeecerenreresseeesece

Reasons for Plenary Consideration

Argument I ..ccccccccccccccccccccccsseseccesssessecece

Argument II ...ccec cece rece r ec crccccccncceccceresesece

Argument III 2... ee eee seer ener ccccccecnccccccccesces °

GCOMGLUBION <ccccccccccescccccessesecescesescosecssoceoceses

Certificate Of SEFVICe 2... cece eee eee cere rere ener eeeseces

Appendix

(1)

(2)

(3)

Appendix

(1)

(2)

(3)

Appendix

(1)

(2)

(3)

(4)

(5)

A - Orders of the court

whose decision is sought

to be reviewed

Order Overruling Motion To

Certify RECOrd ... eee ee eee cece rece cere reeerecece

Order Dismissing Appeal .....---seeeeeeeeees easee

Affidavit In Forma PauperiS ....---eseeeeeeeceeees

B - Opinions and Orders of

the Court of Appeals

Notice of Appeal to the

Supreme Court Of OhiO ....--+ee eee eee e ee eerreeces

Judgment Entry affirming

the Trial Court ..........- CTT T ee TT TT CT eT

Opinion of the Court of

Appeals 2... .ceeee cece csc ceecceeeceecececeeccees

C - Notice of Appeal to the

Supreme Court of the

United States ...cccccccccccccerccccccccceses

D - Opinions and Orders of

the Trial Court

Notice of Appeal to Court of Appeals .........--

Judgment Entry terminating parental

rights of the Appellant ....--e-eeeeeeeeeeeececs °

Complaint alleging Mary Eveiyn Howell

to be a dependent child ....---+--eeeeeenes seese

Opinion overruling Motion to Strike .........-- e*

Motion to Strike and Memorandum in Support .....

No.

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1979

WILLIAM HOWELL,

Appellant,

Vv.

COSHOCTON COUNTY CHILDREN'S SERVICES BOARD,

Appellee.

Statement in Support of Jurisdiction

QUESTIONS PRESENTED

1. Does the Fourteenth Amendment require that the

State of Ohio intrude upon the parent-child relationship only

when the intrusion rationally furthers a compelling state

interest?

2. If so, is a statute overly broad which allows

the state to intervene when the environment of the child is

such that state intervention is warranted "in the interests

of the child", in that said statute permits intervention when

the state has no compelling interest in regulating that sit-

uation?

3. Does the Fourteenth Amendment mandate that the

State of Ohio base the termination of the parent-child relation-

ship upon an ascertainable standard?

wis

AUTHORITIES

Page

Cases:

Addington v. Texas, 60 L. Ed

20 323 CASTS) wovcveccscvess TErrrreT ere r ee eT tics By 9

Alsager v. District Court, 406 F.

Supe. 20 (6.0. Toews 1975) .cceesence ererer errs rr: Far eo

In ze B.G., 11 Cal. 3d, 679,

114 Cal. Reportex 444, 523

Pi Oe 244 CASTS) 260s occ hod orb eee tere estesd cos etnescences 8

Carey v. Population Services International

S34 U.8.° O78,. GCG (ASTI) ccecscccccevives avseeses Tre verre

Crooks v. McNeeky, 262 N.W. 2d

TB6 (197TBE) wacccsccvcccccvess chester oseneseseeven posses scoonhe

In Re Cunningham, 59 Ohio St. 2d 100, 391

WB. 2G L036 (CISTS) cevesevvcccccosevscseressectesccescse 8

Davis v. Page, 442 F. Supp. 258

(S.D. Iowa 1975) ...... Rhee ear oedeseesrosenonse eoccsccece 6

Donemus v. Farrekl, 407 F. Supp. 509

(O. Mab. 1975) cccscssccces FOC TPTeTTrriTe Te Tere eT ee

Duchesne v. Sugarman, 556 F. 2d 817

(QnG Cis. 1977) .cacss Pores ere Te Tee eee eT ee ee reerey

In re Gault, 387 U.S. 1 (1967) wccccccccccicsccccccece esvecce ©

Gnaayned v. City of Rockford, 408 U.S. 104 (1972) ........--- -10

In Interest of Hochmuth, 251 N.W.

24 434 (Iowa 1977) cesses (coweneuessusawens iteebeak aan

In re Konneker, 30 Ohio App.

SOS CAPSS) acvcvcccecccersivsicsecrvetecbevecevenees 10, dd, a2

Lessard v. Schmidt, 349 F. Supp. 1078

CRD. WAGs LSTA) sivecescicaeseescseveereeecéevacevscs ere ce

Lynch v. Baxter, 386 F. Supp. 378

(M.D. Ala. 1974) eovcccoece eeesceceees rrrrrn eeocccsece - 9

Meyer v. Nebraska, 262 U.S. 390,

399 (1989) cwvacsces ere TreeTeVeLeTITUL CTT ie errr. sbeenes 4

O'Connor v. Donaldson, 422 U.S. 563 (1975) .......... convene

Orn v. State, 70 Ind. App 242

A23 WB. OIG cccccecs RaSh kbw aka eee TYrTvrrr irre teeenteae

Palmer v. City of Euckid, 420 U.S.

DOS CASTES. 2c crivcsiveesvetes oes wes icomeonaane TTC TTT LT...

Cases: Page

Papachristou v. City of Jacksonville, ;

405 U.S. 156 (1972) wcccececccccccees ceneceounes ececesoces -10

Quilloin v. Walcott, 434 U.S. 246 (1978) ..----eeeeeeees et 9

Roe v. Conn, 417 F. Supp. 709

(M.D. Ala. 1976) wc cccccecccvececsrccrcsccccecessscecs 6,9, 13

Roe v. Wade, 410, U.S. 113, 155 (1973) wee eeee eee ere eeeecees 4, 5

Smith v. Organization of Foster

Familes, 431 U.S. 816, 863, 864 (1977) ~.-- ee eee ee eeeeeens - 8

Stankey v. Ikkinois, 405 U.S. 645,

3 ee © 0 > ee 4, 3, 3

State ex nel. Heller v. Miller, 61 Ohio

St. 2d 6, 399 N.Ej. 2d 66 (1980) wee eeee ee ee rene ccerecececes 6

State v. McMaster, 259 Ore. 291,

486 P. 2d 567 (1971) ...-.--- weer TT eT Tt casnétinsee eee a

Whalen v. Roe, 410 U.S. 113, 155 (1973) woe ee eee eeeeeeecenccecs 4

In ne Wikkiam L., 477 Pa. 332, 383 A.2d 1228 (1978) ...--+--+-- 9

Constitutional Provisions:

United States Constitution, Fourteenth

Amendment ..scccccece Sane Sralsuhew wt Ere ee ee et cere ene

Statutes:

Ohio Revised Code, §2151.04(C) .......-- Ee Ne ee he ears Gees 1

iii

3°90

OPINIONS BELOW

The opinion of Ohio's Fifth District Court of

Appeals was not reported, but a copy of that opinion has been

reproduced, and attached as Appendix B . The Ohio Supreme

Court denied the Appellant's Motion to Certify the Record

without opinion.

GROUNDS FOR JURISDICTION

This is an appeal of an order, dated August 9,

1980, terminating the parental rights of the Appellant William

Howell to his daughter Mary Evelyn Howell.

This is a direct appeal of a judgment of the Ohio

Supreme Court which was entered on May 29, 1980, which dis- '

missed the Appellant's appeal and denied his Motion to Certify

the Record. A timely Notice of Appeal was filed in the Ohio

Supreme Court on August 22, 1980.

This Court has jurisdiction to review the judgment

on appeal pursuant to 28 U.S.C. §1257(2).

CONSTITUTIONAL AND STATUTORY

° PROVISIONS INVOLVED

United States Constitution

Amendment XIV

"No person shall. . .be de-

prived of life, liberty, or

property without due process

Of laws. . .”

Statute

Ohio Revised Code §2151.04(C). Dependent child defined.

As used in sections 2151.01 to 2151.54, inclusive,

of the Revised Code, "dependent child” includes

any child:

one ae eee meee em oe — — —_

Oe ee

*’

x kek

ment is such as to warrant the state,

of the child, in assuming his guard-

ianship.

STATEMENT OF THE CASE

Initially, the Appellee Coshocton County Children's

Services Board filed a Complaint in the Court of Common Pleas,

Juvenile Division, Coshocton County, Ohio on March 5, 1976.

In that Complaint Mary Evelyn Howell, born September 23, 1971,

was alleged to be a. dependent child, and Appellee Children's Services

Board prayed for temporary custody.

In February of 1976, Mary Evelyn's mother had been

shot and killed by Appellant William Howell, and in June of that

same year, Appellant William Howell pleaded guilty to voluntary

manslaughter, and was sentenced to serve seven to twenty five

years in a penal institution in the State of Ohio. Pursuant

to the request of Appellee Children's Services Board, temporary

custody of Mary Evelyn was granted, pending a hearing on the

Complaint.

On May 5, 1978, an adjudicatory hearing was held, re-

sulting in a May 24, 1978 Judgment Entry granting permanent

custody of Mary Evelyn Howell to Appellee Children's Services

Board. An appeal was taken to the Court of Appeals for Cos-

hocton County, Ohio and on March 19, 1979, the Fifth District

Court of Appeals for Coshocton County, Ohio reversed and re-

manded the case to the Juvenile Court of Coshocton County, Ohio.

On April 23, 1979, Appellee Children's Services Board

filed a new Complaint with the Court of Common Pleas, Juvenile

Division, Coshocton County, Ohio, alleging that Mary Evelyn

Howell was a dependent child, and praying for permanent custody.

On June 13, 1979, the Appellant filed a Motion to Strike Count

Two of the Complaint. Count Two of the Complaint had as its basis

§2151.04(C) of the Ohio Revised Code. The Appellant contended

that the statute was overly broad and impermissably vague,

and that accordingly, the statute should be declared unconstitu-

tional. This Motion was overruled on July 5, 1979 by a judgment

entry of the same date. This motion was renewed at the ad-

judicatory hearing on August 2, 1979, and it was again overruled.

At the adjudicatory hearing, the court found Mary Evelyn Howell

to be a dependent child as defined in §2151.04 of the Ohio Re-

vised Code. On August 9, 1979, the Court journalized it's

findings and orders of August 2, 1979, thereby awarding permanent

custody of Mary Evelyn Howell to the Appellee Children's Services

Board.

A timely appeal was taken to the Fifth District Court

of Appeals, assigning several errors. One of the errors thus

assigned was that the Juvenile Court erred in overruling

Appellant's Motion to Strike Count Two. The Fifth District

Court of Appeals affirmed the order of the Juvenile Court, in

a judgment entry dated January 31, 1980.

A Notice of Appeal to the Supreme Court of Ohio was

filed on February 26, 1980 with the Fifth District Court of

Appeals. On May 29, 1980, the Supreme Court of Ohio dismissed

Appellant's appeal to that court, and denied the Appellant's

Motion to Certify the Record. This case is presently before

this Court on the same issues that were raised in the trial court

by Appellant's motion to strike, and which were subsequently

argued in each succeeding court.

REASONS FOR PLENARY CONSIDERATION

This Court has consistently stated that state

interference with family relationships may trench on protected

"liberty" interests of the family members, Meyer v. Nebraska,

262 U.S. 390, 399 (1923). The relevant inquiry is to determine

the relative importance of this "liberty" interest, and to

identify the degree of protection afforded it. Basically, re-

solution of this issue requires a choice between one of two

modes of analysis. This Court must decide whether the family,

as an institution, is to be afforded the more traditional,

less exacting analysis found in Whalen v. Roe, 429 U.S. 589,

596-98 (1977) (which would uphold a state intrusion, if it

is reasonably related to a permissible state purpose); or

whether it is to be afforded greater protection by imposing the

analysis found in Roe v. Wade, 410 U.S. 113, 155 (1973), which

would allow the state to intrude upon the family relationship

only if the intrusion rationally furthers a compelling state

interest. The Appellant respectfully submits that the latter

analysis should be imposed.

This Court has recently stated that:

the right to conceive and to

raise one's children have been

deemed essential...basic civil

rights of man (citation omit-

ted).... [T]he interest of a

parent in the companionship,

care, custody and management

of his or her child comes to

this Court with a momen*um for

respect lacking when appeal

is made to liberties which

derive merely from shifting

economic arrangements (citation

omitted). Stanley v. I[lkinodis,

405 U.S. 645, 651 (1972).

In Stanley v. I1lLinois, Supra, this Court did not reach the

issue presented here. Instead, the Court held that the distinct-

tions made by the State of Illinois were not rationally related

to the stated purpose of the distinction (protection of minor

children). The dicta quoted above, however, would indicate that

the family, as an institution, is to be accorded greater protect-

tion than is normally given a protected interest. Accordingly,

if this language means anything, it must mean that the state must

justify its measures by means of a test more exacting than the

traditional rational means used to promote a permissible purpose.

The best method available for determining the signi-

ficance of the dicta in Stanley v. I[LLinois, Supra is to reason

by analogy, and therefore, the significance of Roe v. Wade, 410

U.S. 113 (1973), and its progeny is undeniable. Specifically,

this Court held in Roe v. Wade that a woman had a fundamental

right to terminate her pregnancy, and that the state could not

validly interfere with that right unless it had a compelling

interest. Id. at 153-155. The analogy is clear. If a person

is perceived to have a fundamental interest in deciding to bear

a child, then that person certainly has a fundamental right to

make the necessary decisions as to its care and upbringing. Ac-

cordingly, the state may interfere with the care and upbringing

of a child only when it furthers a compelling interest by doing

so. Nor is the term “compelling” merely superfluous language

used for literary emphasis, rather "'[c]ompelling' is ... the

key word; where a decision as fundamental as that whether to

bear or beget a child is involved, regulations imposing a burden

on it may be justified only by compelling state interest, and

must be narrowly drawn to express only those interests." Carey

v. Population Services International, 431 U.S. 678, 686 (1977).

Several lower courts have determined that the state

may not intrude upon the parent child relationship if the int-

rusion does not further a compelling state interest. E.g.

Duchesne v. Sugarman, 566 F. 2d. 817 (2nd Cir. 1977); Davis v.

Page, 442 ©. Supp. 258 (S.D. Fla., 1977); Roe v. Conn, 417

F. Supp. 709 (M.D. Ala. 1976); Alsager v. District Court, 406

F. Supp. 10 (S.D. Iowa 1975), agg'd., 545 F. 2d 1137 (8th

Cir. 1976). In fact, the Supreme Court of Ohio (the court whose

order is being appealed) has recently held that the state must

show a compelling interest if it is to validly interfere with

the parent-child relationship. State ex rel. Heller v. Miklenr,

61 Ohio St. 2d 6, 399 N.E. 2d 66 (1980). In that case the

Ohio Supreme Court said:

{[A]s seen in Moone [v. City of East

CLeveland] supra, and Stantey [v.

TLLinois]), Supra, the right to per-

sonal choice in family matters, in-

cluding the right to live as a family

unit, is a fundamental due process

right, Id., at 13, 399 N.E. 2d, 70.

The siqnificance of adopting the “compelling”

interest analysis is great. if this analysis is adopted by

this court, then parents who are faced with termination of their

parental rights, a grievous personal loss, will be afforded many

substantive and procedural safeguards not presently afforded

ordinary civil litigants. These parents then could be given

counsel if indigent, transcripts on appeal if indigent, and

would be given greater protection from erroneous deprivations

by requiring proof by clear and convincing evidence. All this

could be done within an analytical framework which would leave

ordinary civil litigants in the same position as they are now.

This has been done in other areas of the law, e.g. Addington

v. Texas, 60 L. Ed. 2d 323 (1979); In ne Gault, 387 U.S. 1

(1967), where the litigant faces a serious deprivation of per-

sonal liberty.

Accordingly, the Appellant submits that his first

question presents a substantial constitutional question which

requires plenary consideration by this honorable Court. ‘

Il.

If this Court should find that the state may intrude

into the family relationship only if such an intrusion furthers

a compelling interest of the state, then the Appellant respect-

fully submits that the statutory provision in question here is

facially invalid, since it allows the state to intrude upon the

parent-child relationship in instances where the state has no

compelling interest. Specifically, the statute in question,

§2151.04 (c) of the Ohio Revised Code, allows the state to intrude

upon the parent-child relationship when the child's "condition

or environment is such as to warrant the state, in the interests

of the child, in assuming his guardianship." Id. (emphasis added).

The initial step in determining if this statute is

overly broad is to identify the state interest which the statute

is intended to further. Since there is no legislative history in

Ohio, only the apparent interest may be identified. On its face,

this statute seems to have been designed to protect the child

by allowing the state to assume the guardianship of the child.

Essentially, this statute allows the state to intrude upon the

parent-child relationship if the child's condition or environ-

ment is such that it would be in the child's best interest for

the state to assume custody. The defect in the statute is ap-

parent. The statute, by allowing intervention when the child's

present environment is not in its best interest, gives the

juvenile judge the power to remove the child if he finds that

the state, through foster care or adoption, can provide a bet-

ter home for the child than can its parents. Conceivably, a

parent could lose the custody of his child for no better

reason than his poverty, since the State of Ohio can most

certainly provide better opportunities for the child by means

of foster care placement, or adoption, than can a parent living

at poverty levels. Essentially, this statute allows the state

to intrude up the family relationship if it is in the best in-

terests of the child. The validity of any “best interest”

standard should be seriously questioned, as it was by Mr. Justice

Stewart when he said:

[i]f a State were to attempt to force

the breakup of a natural family, over

the objections of the parents and their

children, without some showing of unfit-

ness and for the sole reason that to do

so was thought to be in children's best

interest, I should have little doubt that

the State would have intruded impermis-

sably on "the private realms of family

life which the state cannot enter.”

(Citation omitted).

Smith v. Organization of Foster Families, 431 U.S. 816, 863,

864 (1977) (Stewart, J. concurring). In the instant case, there

was no showing that the Appellant was inherently unfit. In fact,

the trial court refused to order any type of psychological profile

of the Appellant, in order to determine if he was unfit (Tr. 127).

Also, the attorney for Appellee Children's Services Board, in

opposing that motion, argued that the fitness of the Appellant

was immateriai in the context of that proceeding, saying:

I would point out to the Court the case of

In Re Cunningham, [59 Ohio St. 2d 100, 391

N.E. 2d 1034 (1979)], which has been recently

decided by the Ohio State Supreme Court

wherein that Court held that the mere

fact that a natural parent is fit, though

it is certainly one factor that may enter

into judicial consideration, does not

automatically entitle the natural parent

to custody of his child since the best

interest and welfare of that child are

of paramount importance. Parental in-

terest may be subordinated to the

child's interest in determining an ap-

propriate disposition of any petition to

terminate parental rights. (Tr. 128,129).

— ee ee - — —<-+- -< —-- —

The Appellant submits that any intrusion upon the

parent child relationship, which is not based on the probability

of injury to the child, is facially invalid, since the state

only has a compelling interest in protecting the child if failure

to intervene would be likely to immediately result in mental

or physice’ harm to the child. This view has been adopted by

numerous courts in the past, e.g. Roe v. Conn, supra; Alsager

v. District Court, supra; In xe B.G., 11 Cal. 3d, 679, 114 Cal.

Reporter 444, 523 P.2a 244 (1974); State v. McMaster, 259 Ore.

291, 486 P.2a 567 (1971); In re Wikkiam L.’, 477 Pa. 332, 383

A.2d 1228 (1978). C4. O'Connor v. Donaldson, 422 U.S. 563

(1975); Donemus v. Farrell, 407 F. Supp. 509 (O. Neb. 1975),

Lessard v. Schmidt, 349 F. Supp. 1078 (E.D. Wis. 1972); Lynch

v. Baxter, 386 F. Supp. 378 (M.D. Ala. 1974).(Commitment cases

holding that substantive due process will not allow commitment

absent a showing that a personis mentally ill and dangerous to

himself or others). Significantly, imposition of an injury - oriented

standard would not greatly increase the danger to the child, since

temporary custody could be easily obtained merely be showing a

probability of injury to the child. The imposition of this

standard would, however, greatly narrow the scope of permissible

intrusions, by eliminating the possiblity of a "best interests"

type of adjudication. Furthermore, this result would be con-

sistent with the result reached by this Court in Quilloin v.

Walcott, 434 U.S. 246 (1978). In that case, this Court held

that parental rights could be terminated upon a showing that

termination was in the child's best interest, without showing

that the parent was an unfit parent, where the father had never

had actual or legal custody. Id. at 255. Cf. Stanley v. Illinois,

Supra. (emphasis added).

Accordingly, the Appellant respectfully requests

that this Court grant a plenary hearing, for the reason that

§2151.04(C) of the Ohio Revised Code is unconstitutional on its

face because it allows intrusion into the parent-child relation-

ship in situations where the state has no compelling reason

for such an intrusion.

Lake

This Court has consistently held that the state may

not intrude upon a protected interest by means of a vaguely

worded statute, e.g. Grayned v. City of Rockford, 408 U.S. 104

(1972); Papachristou v. City of Jacksonville, 405 U.S. 156

(1972); Palmer v. City of Euckid, 402 U.S. 544 (1971). The

Appellant submits that the State of Ohio has intruded upon the

parent-child relationship in a similar manner in this case.

The Ohio dependency statute, §2151.04(C) of the Ohio

Revised Code, is unconstitutionally vague in that it fails to

sufficiently define what type of environmental conditions “warrant

the state" in assuming custody of a child. This statute has been

in effect since the early portion of the twentieth century, and

has remained unchanged. The last time that the word environment,

as used in the context of §2151.04(C), was construed was In re

Konneker, 30 Ohio App. 502 (1929). In that case, the court

noted the broadness of the term "environment" and held that a

father could not be deprived of his children simply because he

had been convicted of a felony. In discussing the term "envir-

onment", the court, quoting 024 v. State, 70 Ind. App 242, 123

N.E. 470, said:

"Environment" is a word of broad signi-

ficance. Just what the Legislature

intended by this last clause we do not

know. We assume, however, that it did

coerce cere <2 -- oo em 1 ee ge, ae - © eens ene ae EOS -

not intend thereby to confer un-

limited authority on the courts to

determine arbitrarily and generally

what sort of environment will justify

the state in assuming control of in-

fants. It is not the province of

the courts to determine generally what

conditions or exigencies will warrant

the state in seizing the children of

its citizens. To determine and de-

clare the general policy of the state

on this subject is a legislative func-

tion which cannot be delegated to the

courts. In re Konneker, 30 Ohio App.

at 509.

Unfortunately for the parents of Ohio, the dicta in In re

Konneker, Supra, represents the last attempt of any Ohio Court

to narrow the scope of §2151.04(C). Like most dicta, it has

been left along the way, only to be resurrected in an occasional

law review article for the purpose of emphasis.

In Alsager v. District Court, supra, the court, iden-

tified three defects of vague statutes:

1) The statute [Iowa} as interpreted

by a man of average intelligence, must

give notice as to what is prohibited,

so that the parents may conform their

conduct to the law.

2) The statute must not be an improper

delegation of policy making power so as

to allow selective or arbitrary enforce-

ment (emphasis added).

3) The statute's vagueness should not

give rise to uncertainty, which would

have a chilling effect on the parents’

conduct ... Id. at 17.

Of the enumerated defects, the second, in the Ohio context, is

most clearly applicable. The Ohio statute allows the juvenile

court to determine when the environment of a child warrants inter-

vention. Accordingly, the juvenile judge is free to remove any

child who lives in a submarginal home. This, of course, means

that the poor parent and the handicapped parent are more likely

to suffer from the coercive intervention of the state than is the

middle or upper class parent. Furthermore, there is a significant

possibility of erratic adjudications existing within the pre-

viously defined sub-classes. For example, the judge could find

the home to be sub-marginal, and yet choose not to interfere with

the parent-child relationship due to the court's empathy for the

parent. Conversely, the court could find the home to be mar-

ginally adequate, and yet remove the child due to what the court

feels is an undesirable personality trait of the parent. The

point of this argument has been stated thusly:

-.. the fact that some one may

think that the children can be

reared better by some one else

is no justification for judicial

interference, because, if this

were the rule, there are thousands

of children in this community,

and in every other, whose parents

upon this pretense would be de-

prived of their custody. As

was well said by another.

“The Juvenile Court Law cer-

tainly does not contemplate the

taking of children from their

parents and breaking up family

ties merely because, in the

estimation of probation of-

ficers and courts, the child-

ren can be better provided

for and more wisely trained

as wards of the state. Pro-

bably from mere considerations

of healthful and hygienic

living and systematic education

and training this would be true

in the cases of thousands of

families of wealth and resp-

ectability. We think it is

only in instances where there

is demonstrated incapacity or

something akin to criminal

neglect that the law is

justified in interfering

with the natural relations of

parent and child." (citation

omitted.) In re Konneker, Supra,

at 510, 5ll.

The Appellant submits that §2151.04(C) is void for vagueness

since its enforcement necessarily entaiis arbitrary and select-

ive application.

The Appellant further contends that §2151.04(C)

is unconstitutionally vague in that it fails to give notice as

to what type of conduct is prohibited by the statute. See

Alsager v. District Court, supra, at 17, 18. Courts addressing

this "notice" requirement have split in their decisions ina

consistent manner. State statutes which do not have a "built

in" period between adjudication and disposition, during which

period parents have the opportunity to modify their conduct

according to specific orders of the trial court have been

held to be unconstitutionally vague. (See Alsager v. District

Court, Supra, and Roe v. Conn, Supra.) Those state statutes

which give the parent an opportunity to modify his or her

conduct to a court-ordered standard prior to disposition, have

been upheld as constitutional.

It is interesting to note that the Iowa statute, struck

down in Alsager, Supra, as being both vague and a denial of

substantive due process was subsequently upheld in both In

Interest of Hochmuth, 251 NiW. 2d 484 (Iowa-1977) and Crooks v. McNelly,

262 N.W. 2d 786 (1978). In the latter two cases, the Iowa

Supreme Court held that since the parents were given an op-

portunity to meet certain court-ordered standards, the statute

was constitutional as applied. The parents in Alsager, Supra

(see note 12, p. 20) were not given this opportunity.

Therefore, the Appellant submits that §2151.04(C)

of the Ohio Revised Code is too vague to be fairly applied,

and accordingly, that this is a substantial constitutional

question which requires plenary consideration by this honor-

able Court.

CONCLUSION

For the foregoing reasons, it is submitted that

this honorable Court should give these questions plenary

consideration, by requiring that the issues be fully briefed,

and that the case be set down for argument.

Respectfully submitted,

e 4 , i ; ve ‘s ; - gett a . f i;

Klcemicck SLI Pea “Tri LE

rell, Esq.

“£bL

Edward Emmett O'Far

Thomas W. Hardin, Legal Intern

Southeastern Ohio Legal Services

Tuscarawas Valley Area Office

131 Fair Avenue, N.E.

New Philadelphia, Ohio 44663

Telephone: (216) 364-7769

Counsel for Appellant

CERTIFICATE OF SERVICE

I hereby certify that the foregoing Statement in

Support of Jurisdiction was served upon the Appellant Coshocton

County Children's Services Board by mailing a copy to Attorney

David Hostetler, Assistant Prosecuting Attorney, 410 1/2 Main

Street, Coshocton, Ohio 43812 and upon the Guardian Ad Litem

Attorney Norman S. Davitt, 528 1/2 Main Street, Coshocton,

Ohio 43812 by United States Regular Mail this 26th day of

August, 1980.

od , M = re

f ” \~ ? il

Steen th Sime BAZbe-

Edward Emmett O'Farrell

Attorney for Appellant

Ook RSn Banaer~ ¢ CTHERS, Pusiiows

Appendix A

| neces tied

THE SUPREME COURT OF OHIO?» 0

THE STATE OF OHIO, 192° reRy

City of Columbus. To wit: “ay 29, 1980

Alleged Dependent Child,

William Howell,

Aepalient. MOTION FOR AN ORDER DIRECTING

THE COURT OF APPEALS

In re Mary Evelyn Howell No.. 80-429

vs.

for COSHOCTON

County

TO CERTIFY ITs RECORD

It is ordered by the Court that this motion is overruled.

COSTS:

let A AD

RO day of pn

Clerk

- Deputy

/ e.

THE _ JPREME COURT OF ¢ Ui

WECEIVEU JUN 2 ~ 1999

THE STATE OF OHIO, 19.89 TERM SLE eo

May 29, 1980

7 City of Columbus. To wit:

In re Mary Evelyn Howell We..20-822

Alleged Dependent Child,

William Howell, APPEAL FROM THE COURT OF

Appellant. APPEALS

vs.

for COSHOCTON County

no motion to dismiss such appeal having been filed, the Cowrt sua sponte dismisses

the appeal for the reason that no substantial constitutional question exists herein.

It is further ordered that a copy of this entry be certified to

the Clerk of the Court of Appeals for COSHOCTON ...County for entry.

I, Thomas L. Startzman, Clerk of the Supreme Court of Ohio, certify that the

foregoing entry was correctly copied from the Journal of this Court.

Witness my hand and the seal of the Court

..Deputy

THE SUPREME COURT OF OHIO

In the Matter Of

: Case No. 80-429

MARY EVELYN HOWELL $

Alleged Dependent Child :

William Howell, Appellant g

(AN APPEAL FROM THE COSHOCTON

COUNTY COURT OF APPEALS

FIFTH APPELLATE DISTRICT)

AFFIDAVIT IN FORMA PAUPERIS

Southeastern Ohio Legal Services

Tuscarawas Valley Area Office

Edward Emmett O'Farrell

Managing Attorney

131 Fair Ave. N.E.

New Philadelphia, Ohio 44663

lelephone: (216) 364-7769

Attorney for Appellant

William Howell

David Hostetler

Assistant Prosecuting Attorney

Coshocton County, Ohio

401 1/2 Main Street

Coshocton, Ohio 43812

Telephone: (614) 622-1066

Attorney for Appellee

Norman S. Davitt

528 1/2 Main Street

Coshocton, Ohio 43812

Telephone: (614) 623-0800

Guardian Ad Litem for Mary Evelyn Howell

I. ‘HE SUPREME COURT OF OHIC

In the Matter Of

MARY EVELYN HOWELL $ Case No. 80-429

AFFIDAVIT IN FORMA PAUPERIS

Alleged Dependent Child

William Howell, Appellant :

My name is Edward Emmett O'Farrell. I am the At-

torney representing William Howell, Appellant. My client,

the Appellant is incarcerated in the Columbus Correctional

Facility, Columbus, Ohio. William Howell has no source of

income other than Social Security Disability in the amount of

$200.00 monthly. He is without means to pay the costs of the

deposit necessary for the filing of the Memorandum in Support

of Jurisidiction in the Supreme Court.

Should he be able to pay the costs of said deposit

in the future he will do so.

ME . -OO% =” e

Phe hid 2g CL IEOULS

Edward Emmett O'Farrell

SWORN to and subscribed before me this i= -

day of |KO): ry , 1980.

’

at he Oe ae bees

Notary Public /}

MARY UIC. Witaty Cole’

Sists oF Gir ys

Wy Commission Expaes Oct. 15, 1$22

“

~ \ tre { Ae ee x,

*- -- : ~ sna seseanenitiadeisetiatsnaiinattanbisanne.

P i atic Appendix Pf

IN THE COURT OF APPEALS

FIFTH APPELLATE DISTRICT

COSHOCTON COUNTY, OHIO

In the Matter Of

MARY EVELYN HOWELL 8 Case No. 79-CA-16

Alleged Dependent Child :

NOTICE OF APPEAL

William Howell, Appellant

Appellant William Howell, by and through his attorney,

respectfully enters his Notice of Appeal from the January 31,

1980 Judgment Entry of the Court of Appeals for Coshocton

County, Ohio, Fifth Appellate District to the Supreme Court

of Ohio. This case involves a substantial constitutional

question.

Respectfully submitted,

/ “a ¢

oO Edu-acMliuneteO Yavrilee

oe Edward Emmett O'Farrell

o SOUTHEASTERN OHIO LEGAL SERVICES

= oS3 131 Fair Ave. N.E.

i> New Philadelphia, Ohio 44663

Telephone: (216) 364-7769

Attorney for Appellant William Howell

‘fn

FILED

Fea 28 Il an Bt Pn

19 -

CERTIFICATE OF SERVICE

I hereby certify that the foregoing Notice of Appeal

was served upon the Coshocton County Children's Services Board

by mailing a copy to their attorney Assistant Prosecuting Attorney,

David Hostetler, Home Savings & Loan Bldg., 401 1/2 Main Street,

Coshocton, Ohio 43812 and mailing a copy to Attorney Norman Davitt,

Guardian Ad Litem for Mary Evelyn Howell at 528 1/2 Main Street,

’

Coshocton, Ohio 43812 this 7<¢*cé& day of ‘Maleate,

1980.

e » € me

Acetic Ertrewete (Uae

Edward Emmett O'Farrell

Attorney for Appellant William Howell

20 -

FILES

Jan Bl Wu PPS

taf si J.0.° ° 58

CLES IF ccurts

COSHOCTON CO.. OHIO

IN THE COURT OF APPEALS FOR COSHOCTON COUNTY, OHIO

FIFTH APPELLATE DISTRICT

IN THE MATTER OF: :

MARY EVELYN HOWELL,

ALLEGED DEPENDENT CHILD, JUDGMENT ENTRY

WILLIAM HOWELL, CASE NO. 79-CA-16

APPELLANT H

For the reasons stated in the Memorandum-

Opinion on file, all four assigned errors are overruled

and the judgment of the Court of Common Pleas, Juvenile

’

Division, of Coshocton County, Ohio, is affirmed.

Chunll 9. Dheaste _—

Yelond Padafod

Gy RECEIVEDEER 5+:

a FILED 7

4 ath we

IN THE COURT OF APPEALS FOR COSHO@SGN COUNTY, OHIO

FIFTH APPELLATE DISTRICT

IN THE MATTER OF: : JUDGES:

Hon. Norman J.. Putman, P.J.

MARY EVELYN HOWELL, : Hon. Leland Rutherford, J.

ALLEGED DEPENDENT CHILD, : Hon. David D. Dowd, Jr., J.

WILLIAM HOWELL, >: OPINION

APPELLANT : CAse No. 79-CA-16

Decided:

APPEARANCES:

’

EDWARD EMMETT O'FARRELL

Southeastern Ohio Legal Services

Tuscarawas Valley Area Office

131 Fair Avenue N.E.

New Philadelphia, Ohio

ATTORNEY FOR APPELLANT

DAVID HOSTETLER

Assistant Prosecuting Attorney

Home Savings & Loan Bldg.

401 1/2 Main Street

Coshocton, Ohio- 43812

ATTORENY FOR APPELLEE

ao ae we eee wi - =

Coshocton #79-16

page 2

DOWD, J.

This is an appeal from the judgment of the Juvenile

Court of Coshocton County finding Mary Howell to be a

dependent child and awarding permanent custody to the

Coshocton County Children's Service Board.

The appeal is prosecuted by Mary's father who is

presently serving a prison sentence of 7 to 25 years by

virtue of his plea of guilty to the crime of voluntary

manslaughter in the shooting death of Mary's mother in

1976. The initial complaint was filed thereafter. A

previous adjudication and disposition was set aside by

this Court in Case #78-CA-9 because, "the transcript of

proceedings failed to disclose that the parent was advised

that if permanent custody should be granted he would be

divested of all parental rights. .....

Another complaint was filed on April 23, 1979:

alleging Mary Evelyn Howell to be a dependent child. A

proper summons was issued and service had upon the appellant-

father. After the father's motion for a continuance

from a hearing scheduled for July 5, 1979, was sustained

Coshocton #79-16

page 3

and the hearing re-scheduled for August 2, 1979, an

evidentiary pearing proceeded on August 2, 1979, during

which hearing the court first adjudicated the issue of

the child's dependency and therefore resolved the issue of

disposition with the results previously described. The

proof offered in support of the allegation of dependency

was overwhelming. In 1976, after her mother's death,

fary Evelyn Howell was described as an emotionally dis-

turbed child, unable to cope with children of her own age

or to relate to adults. From the testimony, it is

apparent that the child was vividly aware of the fact that

her father had killed her mother.

We now consider the four assignments of error

seriatim.

"That Section 2151.04(C), Ohio Revised

Code is vague and overly broad and as a ~

consequence is violation of Appellant's

rights of substantive due process of law

quaranteed by the constitution of Ohio and

the United States and the trial court's

refusal to grant Appellant's June 13, 1979

Motion to Strike filed in the action below

is reversible error."

~~ —_

- ee —_ e

a =

Coshocten 779-16

page 4

R.C. 2151.04(C) provides:

"As used in sections 2151.01 to

2151.54, inclusive, of the Revised

Code, 'dependent child' includes any --

child: ....(C) Whose condition or

environment is such as to warrant

the state, in the interests of the

child, in assuming his guardianship.”

We hold that R.C. 2151.04(C) must be read in pari

materia with the related sections of Chapter 2151 and, in

particular, with R.C. 2151.27 which provides, in pertinent

part, as follows:

is based."

R.C. 2151.27 is enforced by the Ohio Supreme Court's

decision,.In Re Hunt, 26 Ohio St. 2d 378, where the court

stated in the first paragraph of its syllabus:

"Complaint under Juvenile Rule 10 and

R.C. 2151.27 alleging that a child is

dependent must state the essential facts

which bring the proceeding within the

jurisdiction of the court.”

Coshocton #79-16

page 5

Against ‘such a background, we find the claim

that R.C. 2151.04(C) is unconstitutional and overly

broad is without merit.. Appellant's reliance upon

Alsager v. District: Court of Polk County, 406 F. Supp.

10, is not well taken.

As indicated by appellee's brief, while the

District Court ‘in Alsager found the Iowa statute to be

vague, the Court of Appeals in Alsager v. District Court

of Polk County, 545 F. 2d 1137, chose not to affirm on the

issue of vagueness. Rather, the Court of Appeals gave

the Iowa court's, "an additional opportunity to give the

statutory provisions a plainly desirable limiting instruc-

tion". From the decision it does not appear that Iowa has

a statute similar to Ohio's Revised Code Section 2151.27

which requires a particular state of the facts where the

condition of the pendency is alleged. As indicated by In re

Hockmuth, 251 NW 2d 484 (Iowa 1977), a ssubsequent construction

requiring that parents be specifically advised of the under-

lying facts in the complaint and given an opportunity eo

correct them, was utilized to salvage the constitutionality

of the Iowa statute.

In sum, we conclude the first assignment of error is

not well taken, and it is overruled.

Coshocton #79-16

page é

"The trial court erred in finding

dependency and permanently divest-

ing Appellant of his parental rights

because, at the time, of the adjudi-

catory hearing, there was suitable

family able and willing to care for

the child who.is the subject of the

dependency complaint. The availa-

bility of suitable relatives at the

time of the adjudicatory hearing pre-

cludes the termination of parental

rights and privileges as a matter of

of law. A finding, then, that the

child was ‘homeless or destitute or

without proper care or "support"

as set forth in Section 2151.04(A),

Ohio Revised Code, is unwarranted and

unsupported by any credible evidence,

and is reversible error."

The predicate for the second assignment of error is

the claim that Blanch and Harrison Bache, the child's

paternal grandparents, were, at the time of the hearing,

ready, willing, and able to provide adequate care for Mary

Evelyn, and, consequently, the court could not find properly

that Mary Evelyn, at the time of the adjudicatory hearing,

was "homeless or destitute or without proper care or support”

and its order to the contrary, not based on any credible

evidence or such homelessness or destitution is reversible

‘error. Blanch Bache is the natural mother of Mary Evelyn

Howell's father. Harrison Bache is the step-father of the

appellant, and, thus, not related by blood to Mary Evelyn

Howell. Blanch Bache is 65 years of age and has not cared

Coshocton #79-16

page 7 ;

for children for 22 years. Harrison Bache, her husband,

is 64 years of age. The record is devoid of evidence

suggesting that the Baches, at their advanced age, are

capable of providing adequate care -for Mary Evelyn in

view of the extensive testimony that she was at the time

of the filing of the initial complaint in 1976, a severely

emotionally disturbed child and who, according to the

expert testimony offered, still needs the continuing care

of a stable family life. Against such a background, the

claim asserted in the second assignment of error has no

foundation in fact. The second assignment of error is

overruled.

"The trial court erred in failing to

continue the adjudicatory hearing in

order that the Appellant could be preser.-

at said hearing and/or erred in refusing

to move the adjudicatory hearing to the

correctional facility wherein Appellant

was incarcerated at the time of the

adjudicatory hearing. The State of

Ohio cannot permanently divest Appellant

of the custody, care, control and affection

of his child without his presence at the

ad) udicatory and dispositional hearings when

the reason for his absence is his incar-

ceration by the State in a penal institution."

Coshocton #79-16

page 8

As previously indicated, the original adjudi-

catory hearing scheduled for July 5, 1979, was continued

on the appellant's motion until August 2, 1979. On the

day scheduled for the hearing, counsel for the appellant

appeared and asserted that he had been unsuccessful in his

attempt to secure the presence of the appellant at the

hearing. He asked for a continuance. The continuance

was denied. However, the testimony offered by the appel-

lant at the first adjudicatory hearing was presented and

made a part of the record.

No attempt was made by counsel for the appellant to

secure the assistance of the court with respect to the

appearance of the appellant for the hearing. Rather, counsel

for the appellant moved for a continuance, or, in the alter-

native, requested that the hearing be moved to the correctional

facility whew the appellant was incarcerated. The trial

court overruled both motions. We find he did not error.

It is apparent that the appellant, through counsel,

had ample time to invoke the appropriate procedure to insure

his presence-at the hearing, or, in the alternative, to

request the assistance of the court in providing for such an

appearance. Having failed to do that, the appellant cannot

now be heard to complain about the fact that he was not present

for the hearing.

Coshocton #79-16

page 9

In finding that the record does not support the

claim that the state denied the appellant the right to be

present at the hearing, we do not further address the

claim prosecuted by the third assignment of error. It is

overruled.

"The trial court erred in refusing to

grant Appellant's motion for a separate

dispositional hearing as well as investi-

gations of Appellant's mother's home and

examinations, physical and mental, and

social history of Appellant which are

provided for by Yules 32 and 34, Ohio

Rules of Juvenile Procedure."

‘The record reflects that a separate dispositional

hearing was held following the adjudicatory hearing (R-114).

Appellant did move the court to postpone the dispositional

hearing in order that a social history of the appellant's

mother and a physical and mental examination of the appellant

pursuant to Rule 32 of the Juvenile Rules, might be obtained.

The provisions in Ohio Juvenile Rule 32(A) (4) authorizing the

ordering of a social history or a physical or mental examination

Coshocton £75

page Le

are discretionary with the court. In the case sub judice,

we find no abuse of discretion. The court had already

heard the testimony of Mrs. Bache concerning her home.

Thereafter, Mr. Davit, Mary Evelyn Howell's guardian ad

litem, was questioned with respect to Mrs. Bache's home.

In addition, the court had the transcript of William Howell's

prior testimony during which he conceded that he had been

imprisoned in the past prior to the killing of Mary's mother,

and had also been institutionalized in Cambridge State

Hospital. heatawe such a background, as well asthe over-

whelming testimony describing the severe emotional dis-

turbance of Mary Evelyn Howell, the court was justified

in concluding that no further inquiries would be beneficial.

However, as indicated in the recent decision of the Ohio

y's

Supreme Court in In re Cunningham, 59 Ohio St. 2d 100, the

primary inquiry at the dispositional shuse it the best in-

terest and welfare of the child, not the rights of the parents

or grandparents. The fourth assignment of error is without

merit and is overruled.

Having overruled the four assignments of error, the

judgment of the Juvenile Court of Coshocton County is

Satpbub yD

ct.

affirmed.

Rutherford, J. and

Putman, P.J. concur.

VUDGES. b

. Appendix C

IN THE SUPREME COURT OF OHIO

In the Matter of :

MARY EVELYN HOWELL

Alleged Dependent Child : Case No. 80-429

WILLIAM HOWELL, :

Appellant. :

(Appeal From The Court Of Appeals

5th Appellate District, Coshocton County, Ohio)

NOTICE OF APPEAL _..

wanet gar *

PP a

i teeseee ee *

Southeastern Ohio Legal i

Services eo PHN be Oe eengee petite

Edward Emmett O'Farrell oi ie

Managing Attorney

Thomas W. Hardin

Legal Intern

131 Fair Ave. N.E.

New Philadelphia, Ohio 44663

Tel. (216) 364-7769

Attorney for Appellant David Hostetler

Assistant Prosecuting Attorney

Coshocton County, Ohio

401 1/2 Main Street

Coshocton, Ohio 43812

Tel. (614) 622-1066

Attorney for Appellee

Norman S. Davitt

528 1/2 Main Street

Coshocton, Ohio 43812

Tel. (614) 623-0800

Guardian Ad Litem for Mary Evelyn Howe

P IN THE SUPREME COURT OF OHIO

In the Matter Of

MARY EVELYN HOWELL

Case No. 80-429

Alleged Dependent Child

WILLIAM HOWELL, : NOTICE OF APPEAL

Appellant.

Now.comes the Appellant William Howell, by and through

his attorney, and respectfully enters his Notice of Appeal from the

May 29, 1980 Judgment Entry of the Ohio Supreme Court, which dismissed

the Appellant's Appeal therein, to the Supreme Court of the United

States, pursuant to 28 U.S.C. §1257(2). The issues herein present

substantial constitutional questions.

Respectfully submitted,

Edwar

Attorney for Appellant

SOUTHEASTERN OHIO LEGAL SERVICES

131 Fair Ave. N.E.

New Philadelphia, Ohio 44663

Tel. (216) 364-7769

ee ee + ee

——-

CE!.. SICATE OF SERVICE

I hereby certify that a copy of the foregoing Notice

of Appeal was served upon David Hostetler, Assistant Prosecuting At-

torney, 401 1/2 Main Street, Coshocton, Ohio 43812, Norman Davitt,

Guardian Ad Litem at 528 1/2 Main Street, Coshocton, Ohio 43812 and

the Clerk, Coshocton County Court of Appeals, Fifth Appellate District,

Courthouse, Coshocton, Ohio 43812 by mailing them copies of the same

by U.S. Regular Mail this Ate day of August, 1980.

Lge btwilt[te CIO tA LE

Edward Emmett O'Farrell

Attorney for Appellant

Thomas W. Hardin

al Intern

fore pod—

SN em COUURL UP VUE Few "pendix D

COSHOCTON COUNTY, OHIO

JUVENILE D1, ISION

In the Matter Of :

MARY EVE. N HOWELL : Case No. 5957

Alleged, Neglected :

and Dependent Child

2 NOTICE OF APPEAL

WILLIAM HOWELL

Respondent-Appellant

Notice is hereby given that William Howell, Re-

spondent, hereby appeals to the Court of Appeals, Coshocton

County, Ohio Fifth Appellate District from the final Judgment

of August 9, 1979 finding that Mary Evelyn Howell is a de- |

pendent child and granting permanent care and custody of

Mary Evelyn Howell to the Coshocton County Children Services

Board.

Respectfully submitted,

f - “

Edward Emmett O'Farrel

Attorney for Respondent-Appellant

SOUTHEASTERN OHIO LEGAL SERVICES

131 Fair Ave. N.E.

New Philadelphia, Ohio 44663

Tel. (216) 364-7769

CERTIFICATE OF SERVICE

I hereby certify that the foregoing Notice of Appeal

and Request for Transcript was served on the State of Ohio by

mailing a copy of the same to David Hostetler, Assistant Pro-

secuting Attorney, Coshocton County, Ohio and Norm Davitt,

Esquire, Guardian Ad Litem for Mary Evelyn Howell this “2F«¢C

- A,

day of ae ake » 1979.

C7,

Edward Emmett O'Farre

Attorney for Respondent-Appellant

ro RECEIVED avs 153970

IN THE COURT OF COMMON PLEAS, JUVENILE DIVISION

APP

COSHOCTON COUNTY, OHIO ENDIX

In the Matter of:

CASE NO. S957

Mary Evelyn Howell,

JUDGMENT ENTRY

a dependent child. :

This cause came on for-adjudicatory hearing on August 2, 1979,

upon the complaint of the Coshocton County Children Services Board

alleging dependency pursuant to Sections 2151.04 (A) and 2151.04 (C),

R. C., and requesting that the permanent care and custody of Mary

Evelyn Howell be granted to the Coshocton County Children Services

Board.

The court finds ,that notice of the hearing has been duly served.

The court having heard the evidence, and being fully advised in

the premises, finds that Mary Evelyn Howell is a dependent child as

alleged in said complaint.

The court, having heard further evidence as to the matter of

disposition and further considering the testimony presented at the

adjudicatory hearing relevant to disposition, hereby finds that an

award of permanent custody to the Coshocton County Children Services

Board is in the best interest of Mary Evelyn Howell. Accordingly,

the Coshocton County Children Services Board is hereby granted

permanent care and custody of Mary Evelyn Howell.

aia d Lil Judge 2 /

APPROVED: , .

Kent et hab?

"LL. alostetler, Attorney tor

cton County Children Services Board

36 *. .

ision._....Cosh. ton __ County, Ohio

In. the Court of Common Pleas, Juvenile Court Div

COMPLAINT

(CHILD OR CHILDREN) Case Vo.___9 729 7

Revised ats See. 2151.27 ites tho penitdd...

In the Matter of

MARY. EVELYN. HOW ED, ....--..-eccesseeeesssssessnsssennes -PERMANENT CUSTODY REQUEST-

c/o. Children. Services Board.

en ew in a

alleged ™ ....dependent..._....... We iicinneness é

The undersigned, after being duly sworn, according to.law, says that

RN a oad a acca aaneipeenlanastatenein she ___..........aas knowledge of.....2.....

ecrtain child............ , to-wit:

seseseseeseeesesee MARY EVELYN HOWEDD ee. age....1......years D.O.B.. September. 239.1971...

who appear.s. to be ™........ a......dependent BE eliceeses , in that..on_or_ about

the 18th day of April, 1979 in the City and County of Coshocton, Ohio,

COUNT ONE: she is homeless, destitute and without any means of support, through

no fault of her parents,

COUNT TWO: her condition,and environment is such as to warrant the state, in the

interests of the child, in assuming her uardianship,

"in that said child did not receive proper medical care; that the

father is unable to properly care for this child due to his

present physical condition and due to his present environment and

circumstances; and generally that Mary Evelyn Howell is a severely

emotionally damaged child who will require special care and

nurturing and a stable environment, which this father is incapable

of providing."

" in violation of Section 2151.04 (A & C) of the Ohio Revised Code,

Yomplainant further says:

That said child... now resides., atc/o, Children Services Board, Coshe Ohio...

That the names and addresses of the parents of satd CHIU 0... AVC spipeeeneegenngerey vy

ITOK ay Columbus Correctional Facility

seveeeeeeMALLiam Howell = # U5 -959 ee residing at..254.We..QPFing Sts..Cohumbuas.0

oes Mary. Evelyn Howell. (mother)... residing at..deceased 2/16/76 oe.

That said child.......... eS eee currently in the care and custody of ..herfather..and

(is — are)

Coshocton..County..Children.Services.Board. by..caurt..order..granting temporary..cane..... .

i eels i INL RI. CIT... cansnseu shecn'cuconsounesonsannansevecestenunbesusheesubenebconessnnsunebentinissen

cing thel. the futlowing are facts concerning the present circumstances of the said

a which the Court should hare available for consideration.

Children Services Board are seeking PERMANENT care and custody of Mary Evelyn Howell.

If the Coshocton County Children Services is granted the PERMANENT care and custody of

the child the father will be permanently divested of all pMrental rights, privileges,

and responsibilities with regard to the child.

sathaanisimeesiaithiiannhienl a ia ae , hed

Coshocton Couht Chiterarmeservi s Boar

318 Chestnut Street, Coshocton, Ohio

er errrer

: ! ny 7 (Complainant's Address)

: = vi Swarn to before me and signed in my presence,

| eee 23xd...day of......... ) s & 19.22.

Pry) ’

eS A ta 1. TNR ac cieencncenmsncosnsennein

Judge

RICKARD 2 7 «FS, JUDGE By Drakes. 0) bo Lactane Torn

COosHSc:" + ALO 37. Matilda J. Pofteus, Deputy Clerk

b. “Dehaquent,” “Neglected,” “Dependent,” “Crippled,” “Unruly”

@ WM chikd ix in care of custly of une of buth parents, the complaint should so state, Otberw'se, the name or names and ad-

deeswes ef the person of penons having custody should be given. The caistena or noa-caistence of a Icgal guardian also

slawikd be stated bere slung with any oceded names and addresses.

(3) Wherefore, complainant prays for the permancnt care and custody of said child(ren).

— as , ‘tex | ome

a IN i COURT OF COMMON PLEAS

JUVENILE DIVISION

COSHOCTON COUNTY, OHIO

IN THE MATTER OF: )

)

MARY EVELYN HOWELL. ) CASE NO. 5957

MEMORANDUM OPINION

The case of In re Hunt, 46 0. S.. (2) 378, considered the effect

of Section 2151.04 (c), and the provisions of Section 2151.27 and Juvenile

Rule 10 (B) (1). The court found that each of these require that the

complaint shall:

"State in ordinary and concise lanquage the essential

facts which bring the proceeding within the jurisdiction

of the court...."

The Supreme Court found no constitutional infirmity in either of

these sections, and this court likewise does not find Section 2151.04 (c)

unconstitutional.

Tne complaint in the instant case does contain a statement which

meets the standard set by the Supreme Court in Hunt, and the motion to strike

ot le

Ty , Ceie7 een

HOLLAND 4, GARY, Ree é

is overrulec.

LN she GQGwees VE VUE saan

JUVENILE DIVISION

COSHOCTON COUNTY, OHIO °

Case No. 5957

In the Matter Of

MARY EVELYN HOWELL : MOTION TO STRIKE

Respondent William Howell, by and through his

attorney, respectfully moves this Court for an order striking

from the Complaint, filed in this matter on April 23, 1979,

Count Two in its entirety for the reason that the language

of §2151.04 (c) is vague and overly broad and as a consequence

is violative of Respondent's rights of substantive due process

of law under the Ohio and United States Constitution as more

fully set forth in Respondent's Memorandum in Support which

follows.

Respectfully submitted,

tell

Edward Emmett O'Farrell

Attorney for Respondent

SOUTHEASTERN OHIO LEGAL SERVICES

131 Fair Ave. N.E.

New Philadelphia, Ohio 44663

Telephone (216) 364-7769

MEMORANDUM IN SUPPORT

Respondent urges this Court to strike Count Two

of the Complaint in its entirety for the reason that the

language of §2151.04 (c) of the Ohio Revised Code is so

overly broad, vague and nebulous that to deprive Respondent

of the permanent custody, care and control of his child

based on this portion of Ohio's dependency statute would

be a gross violation of Respondent's property interest in

his child and a denial of his rights of due process under the

constitutions of the United States and the State of Ohio.

The constitutionality of Ohio's I::pendency statute

(§2151.04, Ohio Revised Code) has yet to be determined by

Ohio's highest court. This is a case of first impression in¢

Ohio.

Any analysis of Section 2151.04 (c), Ohio Revised

Code (hereinafter the statute) must necessarily begin with

an analysis of the parental rights involved. Respondent

believes the crucial consideration must be framed as follows:

Is a parent's right to raise his child(ren), and not to be

separated from that child(ren) a fundamental, constitutionally

protected right? This question has been considered by the

United States Supreme Court on several occasions.

In Meyer v. Nebraska, 262 U.S. 390 (1923), the

Court held that the right to raise one's family is an es-

sential right of a parent (262 U.S. at p.399), terming this

right a "liberty" interest in a 14th amendment context. The

Supreme Court's ruling in Meyer, supra, has been reaffirmed

subsequently in Pierce v. Society of Sisters, 268 U.S. 510

(1925) and in Prince v. Massachussetts, 321 U.S. 158 (1944).

Perhaps the most persuasive, and recent, treatment

of this “liberty” interest of parents by the U.S. Supreme

Court has come in the case of Stanley v. Illinois, 405 U.S.

645 (1972). In Stanley the Court (in granting the father of

an illegitimate child the right to custody) said:

(T)he rights to conceive and to raise one's

children have been deemed essential... basic

civil rights of man. (405 U.S. at p. 351)

(T)he interest of a parent in the companion-

ship, care, custody and management of his

or her child comes to this Court with a mom-

entum for respect lacking when appeal is

made to liberties which derive merely from

shifting economic arrangements (405 U.S. at

p. 351).

Thus, it is unarguable that the U.S. Supreme Court has

determined that parental rights of custody, care, love and af-

fection of their children to be fundamental, liberty interests

protected by the safeguards of the United States Constitution.

Since the Ohio Supreme Court has never ruled on

the constitutionality of Ohio's dependency statute, it is {

necessary to discuss other jurisdictions’ treatment of similarly

worded statutes and argue analogously to §2151.04 (c), Ohio

Revised Code. Most of the Courts which have considered the

constitutionality, or lack thereof, of the dependency statutes

of other jurisctions, have considered the parent's right to

raise his child to be a "fundamental right" and have applied

the "strict scrutiny" analysis, the highest constitutional

standard. See Alsager v. Dist. Ct. of Polk Cty.,406 F. Supp.

10 (S.D. Iowa, 1975) aff'd on procedural grounds 545 F.2d 1137

(8th Cir., 1976); Roe v. Conn., 417 F. Supp. 709 (M.D. Ala.,

1976). Duchesne v. Sugarman, 566 F.2d 817 (2nd C2F55-237 13

Davis v. Page, 442 F. Supp. 258 {S.D. Florida, 1977); In re

Carmaletta B., 579 P-2d 514 (California, 1978); In re B.G.,

11 Cal. 3d 679, 114 Cal. Rptr. 444, 523 P.2d 244 (1974);

Bowers v. State, 283.Md 115, 389 A 2d 341 (Supreme Court of

Maryland, 1978); State v. McMaster, 259 Ore. 291, 486 P.2d

567 (1971). It would seem apparent, then, in light of

this overwhelming authority, that the strict scrutiny test

and standard must be applied by this Court in considering

whether or not Section 2151.04 (c), Ohio Revised Code passes

constitutional muster.

Respondents argument relative to the constitutionality

of Ohio's dependency statute is basically a treatment of the

concepts of "vagueness" as a denial of "due process” and

"substantive due process rights" as provided for in the U.S.

and Ohio Constitutions.

I. “VAGUENESS” AS A DENIAL OF

REPSONDENT'S DUE PROCESS RIGHTS

The parental rights involved in a dependency pro-

ceeding have been determined to be "fundamental", thus re-

quiring that the state's infringement upon these rights be ac-

corded a “strict scrutiny” analysis (See Alsager, and other cases

cited supra.) In the context of "void for vagueness”, this

means that fhe standards announced by t:he U.S. Supreme Court in

41 oie

—_ 4

with the vagueness of neglect and dependency statutes of othet ¢

states. See Alsager, supra; Roe, supra; In re D-L-H., 198

Neb. 444, 253 N W.2d 283 (1977); Matter of Keyes, 574 P.2d 1026

(Okla., 1978); Bowers v. State, supra; In ‘re William L., 477

Pa. 322, 383 A. 2d 1228 (1978), cert. denied 58 L.E. 2d 693;

In Interest of Hockmuth, 25 N.W. 2d 484 (Iowa, 1977); People v.

Schoas, 15 Ill. App. 3d 964, 305 N.E. 2d 560 (1973), app. denied,| |

S.Ct. of Ill. (unreported), app. dismissed, 417 U.S. 963.

The Alsager, Court, Supra, in applying the standards

set forth in Grayned, supra, said at page L7s

1) The statute (Iowa) as interpreted by

a man of average intelligence, must give notice

as to what is prohibited, so that the parents

may conform their conduct to the law.

2) The statute must not be an improper

delegation of policy making power so as to

allow selective or arbitrary enforcement

(Emphasis added).

3) The statutes' vagueness should not give

rise to uncertainty, which would have a chilling

effect on the parents conduct...

Courts addressing this "notice" requirement have split

in their decisions in a rather consistent manner. State statutes

which do not have a "built in" period between adjudication and

disposition, during which period parents have the opportunity

to modify their conduct according to specific orders of the

trial court have been held to be unconstitutionally vague.

(See Alsager, supra, Roe, supra). Those state statutes which

give the parent an opportunity to modify his or her conduct

to a court - ordered standard prior to disposition, have been

upheld as constitutional.

It is interesting to note that the Iowa statute,

struck down in Alsager, supra, as being both vague and a denial

of substantive due process was subsequently upheld in both

In Interest of Hockmuth, supra and Crooks v. McNeely, 262 N.W.

2d, 786 (1978). In the latter two cases, the Iowa Supreme Court

held that since the parents were given an opportunity to meet

certain court ordered standards, the statute was constitutional

as applied. The parents in Alsager, supra (see note 12, p.-20)

—— ee ee oa eee eS Cee

were not given this opportunity.

Secondarily, in arguing that Ohio's statute is vg

unconstitutionally vague and overly-broad, Respondent sub-

mits that the statute in Ohio, is arbitrarily enforced. The

vagueness of Ohio's statute breeds inconsistent, and, thus,

unconstitutional application. This statute, in effect, allows

arbitrary and selective enforcement of Ohio's dependency statute

by low level county standards of what "conditions warrant the

state in assuming guardinanship"”.

A classic example of a vague dependency statute

capable of selective enforcement is found in Roe v. Conn, supra,

in which the trial judge made a finding dependency when the only

facts made known to him were that the child and mother (white)

were both living with a black man.

That the lack of any ascertainable standards (vis a

vis dependency) could lead to arbitrary enforcement of Ohio's

dependency statute becomes even more apparent, especially when

the statute does not require injury to the child (i.e. termin-

ation need only be in the “best interest" of the child.) The

lack of any ascertainable standards necessarily makes any de-

cision by a judge (at either the trial or appellate level) both

subjective and discretionary. Furthermore, appellate review

would seem unlikely to narrow the discretion granted to the tria

court since the appellate judges are unlikely and unwilling to

substitute their subjective judgment for that of the trial

court's since the trial court had face to face contact with

all parties involved, etc.

The institution in Ohio, then, of a procedure, in the

dependency context, in which the trial court must set specific

standards which the parents of children could attempt to meet

and fulfill would serve two purposes. First of all, it would

give parents notice as to what sort of conduct the law expects

of them as it relates to their children. Secondly, the standard

set by the trial court would give an appellate, or review, body

objectively ascertainable standards upon which the higher

court could evaluate the decision of the trial court to sever

the parent - child relationship.

SS TE rE ae

II. SECTION 2151.04 (c), OHIO REVISED

Code DENIES SUBSTANTIVE DUE PROCESS TO ae

PARENTS OF ALLEGED DEPENDENT CHILDREN .

Respondent in his argument, Supra, has submitted that

a fundamental right is at issue ina dependency proceeding when

the possibility of permanent divestiture of parental rights is

a possible consequence of the proceedings. Thus, a "strict

scrutiny” analysis is appropriate. The primary concern, then,

of the court, must be to determine what is the appropriate

test under these circumstances.

The appropriate standard or test is, according to

the overwhelming weight of authority (See Alsager, Supra, at

p. 21; Roe, supra; In Re Carmaletta B., supra; State v. McMaster,

supra.) that where certain fundamental rights are involved,

the courts have held that regulation limiting these rights may be

justified only by a "compelling state interest," and that

legislative enactments must be narrowly drawn to express only

the legitimate state interest at stake. See Roe v. Wade,

410 U.S. 113, at p. 155 (1973).

The key to this Court's consideration then is whether

or not Section 2151.04 (c) is drawn narrowly enough so that the

state's infringement occurs only when it has a compelling in-

terest at stake.

The obvious question, then, is what constitutes a

"compelling state interest" in Ohio's dependency context. It

is agreed that a finding of a submarginal home or that a child

is culturally deprived is not sufficient to give rise to a

compelling state interest in divestiture from parents of their

children. (See In Re William L., 383 A. 2d at p. 1233 (S.Ct

of Pa., 1978), Cert. denied 58 L.E. 2a 693. It appears that

the state's interest, in dependency proceedings, is only com-

pelling upon a showing of injury to the child or a high pro-

bability of future injury. (See Alsager, supra; Roe, supra;

In Re William L., supra; State v. McMaster, Supra; In Re B.G.,

supra; see also In Re Terry D., 148 Cal. Rptr. 221, 83 Cal.

App 3d 890. 44

It seems logical, then, in light of this standard

that the harm suffered by the child must be irremedial in * ‘

’ ¢

nature in order to justify termination as opposed to temporary

custody and ultimate return to the parents.

The final consideration in terms of analyzing a

ra eye

"compelling state interest" in this context is to address the

nature of the injury to the child. This is generally a matter

of degree. The highest standard required was formulated in

Alsager, supra at p. 21. This standard was verbalized as

"a high and substantial degree of harm". This standard is part-

icularly applicable where the child, as in this case, has been

placed in the temporary custody of the state and thus removed

from the threat of immediate danger.

California would aliow removal of the child from his

parents only if its return to the parents would be "detrimental"

to the child. (This interpretation was upheld in In Re B.G., ——

Pennsylvania requires that removal occur only to avoid

irreparable. injury to the child (See In Re William L., supra ).

Oregon requires a clear showing of injury prior to

termination of the parent child relationship (See State v.

McMasters, supra). It should be noted that all of these state

standards have passed constitutional muster in treatment by the

particular State's highest judicial body. In Alsager, supra,

the minimal standard was announced and applied: the harm to

the child that would be caused by returning him to his parents

must be greater than the harm caused to him (child) by termin-

ation in order for their to be a compelling state interest.

Consequently, Ohio cannot terminate a parent child

relationship unless it manifests and clearly demonstrates a

compelling state interest in said termination. Ohio cannot, and

has not in the case of this statute, possess a compelling in-

terest unless there ig evidence of present or future injury to

the child and the wording of the statute states such. Ohio's

statute, more particularly Section 2151.04 (c), Ohio Revised,

Code sweeps too broadly and is vague as it relates to a present

e' de .

or future injury to the child and i-.ows termination of the

parent-child relationship absent the showing of a compelling a

state interest. This denies substantive due process to Re-

spondent William Howell and is unconstitutional.

In conclusion, Respondent urges this court to hold

the Ohio dependency statute unconstitutional for vagueness and

for denying, in its application to parents of children alleged

to be dependent thereunder, substantive due process under the

U.S. and Ohio Constitutions. Section 2151.04 (c) allows trial

courts, in Ohio, to terminate parental rights if it is found

that the child's environment is not in his or her "best interest

(See, In Re Douglas, 1100 2d 340, 164 NE 2d 475 (1959)).

This analysis is necessarily subjective, providing no standards

in terms of appellate review and thus, sowing the seeds of in-

consistent adjudication in similiar fact situations.

/ Respondent argues thet it is nearly impossible to

find a statute drawn in any broader terms than Section 2151.04

(c), Ohio Revised Code. This subsection requires no finding

of any sort of injury as a pre-condition to permanent divestiture

of a child from his parent. This fatal deficiency in Ohio;s |

dependency statute suggest that there are many instances in

Ohio in which no compelling state interest has been shown,

yet termination of the parent child relationship has been ortavel

and will continue to be ordered absent a substantive change in ~

the statute. This is a clear violation of parents" due process

rights.

Respondent urges the Court to strike down Section

2151.04 (c), Ohio Revised Code as unconstitutional and to dis-

allow it to be used by the State in prosecuting this action.

Respectfully submitted,

i SOG. pe

Edward Emmett arrell

Attorney for Respondent Jasna

SOUTHEASTERN OHIO LEGAL SERVICES

131.Fair Ave. N.E.

New Philadelphia, Ohio 44663

Telephone (216) 364-7769

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.