# Jurisdictional Statement — Howell v. Coshocton County Children's Services Board > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1762%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Jurisdictional Statement - **Published:** January 1, 1981 - **Citation:** 450 U.S. 990 ## Text \ Ss yr @2 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, v. 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 . 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... ii 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 . a 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 (C) Whose condition or environ- 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 ze 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). my 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 - — — New Philadelphia, Ohio 44663 Telephone: (216) 364-7769 Attorney for Appellant William Howell ‘fn FILED Fea 28 Il an Bt Pn Ke cr 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: 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 23 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. 26 Coshocton #79-16 page é II "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 27 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 i ct. affirmed. Rutherford, J. and Putman, P.J. concur. VUDGES. b 31 . 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 32 P IN THE SUPREME COURT OF OHIO In the Matter Of MARY EVELYN HOWELL Case No. 80-429 a 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 33 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— 34 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 - “ OM 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 35 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 es 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. ul The constitutionality of Ohio's I::pendency statute (§2151.04, Ohio Revised Code) has yet to be determined by é 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 i- 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. 40 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 42 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 46 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1762%3A1. Public record. Not legal advice.