Motion to Dismiss — Howell v. Coshocton County Children's Services Board

CASE NO. 80-5302

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IN THE SUPREME COURT

OF THE UNITED STATES

.

oo Court, U. .

¢ FILED

October Term, 1979

WILLIAM HOWELL,

oct 8 1980

aT RODAK, JR., CLERK

COSHOCTON COUNTY

CHILDRENS SERVICES BOARD,

Appellee.

APPEAL FROM SUPREME COURT OF OHIO

MOTION TO DISMISS

Edward Emmett O’Farrell, Esquire

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 L. Hostetler, Esquire

Assistant Prosecuting Attorney

Coshocton County, Ohio

401'% Main Street

Coshocton, Ohio 43812

Telephone: (614) 622-3566

Attorney for Appellee

Coshocton County Childrens

Services Board

Norman S. Davitt, Esquire

528'2 Main Street

Coshocton, Ohio 43812

Telephone: (614) 623-0800

Guardian Ad Litem for

Mary Evelyn Howell

DE ocd aee kes

Statement of the Case

eee

Conclusion ........

Certificate of Service

AUTHORITIES

Cases: Page

Bauman v. Ross, 167 U.S. 548 (1896) ..............4.- 8

Broadrick v. Oklahoma, 414 U.S. 601 (1973) .......... 9

Davies Warehouse Company v. Bowles,

ee EN Scie ahdebnedss cocccccctccees 8

In Re Hunt, 26 Ohio St. 2d 378,

EL ch ovirbcerccvicvccccensece 6

In Re Justice, 59 Ohio App. 2d 78 (1978) ............ 7,8

In Re Konniker, 30 Ohio App. 502 (1929) ............. 7

In Re Perales, 52 Ohio St. 2d 89 (1977) ...........-.5. 8

State ex rel. Heller v. Miller,

61 Ohio St. 2d 6, 399 N.E. 2d 66 (1980) ........... 5,6

Statutes:

Ohio Revised Code, Section 2151.04(A) .......... 3,4,9

Ohio Revised Code, Section 2151.04(C) ...... 3,4, 5,6, 8

Ohio Revised Code, Section 2151.27 ............... 6,7

Ohio Rules of Juvenile Procedure, Rule4 ............. 6

Ohio Rules of Juvenile Procedure, Rule 10 ............ 7

Ohio Rules of Juvenile Procedure, Rule 15 ............ 3

Ohio Rules of Juvenile Procedure, Rule 29 ............ 6

IN THE SUPREME COURT OF THE UNITED STATES

October Term 1979

No. 80-5302

WILLIAM HOWELL, Appellant

vs. ©

COSHOCTON COUNTY

CHILDREN SERVICES BOARD, Appellee

APPEAL FROM SUPREME COURT OF OHIO

MOTION TO DISMISS

Appellee, pursuant to Rule 16 (1) (b) of the Rules of the

Supreme Court of the United States, moves the Court to

dismiss the appeal herein for the reasons that the judgment

rests on an adequate non-federal basis and that the appeal

does not present a substantial federal question.

STATEMENT

This is an appeal from an order dated August 9, 1979, of

the Coshocton County, Ohio, Juvenile Court which

granted the appellee permanent custody of the appellant’s

daughter, Mary Evelyn Howell. This is a direct appeal of a

judgment of the Ohio Supreme Court entered May 29,

1980, denying the appellant’s motion to certify the record

to review the Fifth District Court of Appeals’ affirmance of

the Juvenile Court’s order. The facts underlying the appeal

are as follows:

On September 23, 1971, Mary Evelyn Howell was born to

William and Mary Howell. Until February of 1976, Mary

Evelyn Howell lived a sparse and nomadic life with her

parents; however, no social agencies were contacted or

requested to intervene. In February of 1976, Mary Evelyn

Howell’s father, William Howell, shot and killed her

mother. Criminal prosecution was commenced and William

Howell was incarcerated in the Coshocton County Justice

Center.

Mary Evelyn Howell resided with her maternal

grandparents, Leona Almack and James Almack, for a

short time following her mother’s death and her father’s

incarceration. Coshocton County Children Services were

brought into the case and Juvenile Court proceedings were

initiated. On April 12, 1976, the Coshocton County

Juvenile Court granted temporary custody of Mary Evelyn

Howell to the Coshocton County Children Services Bureau.

‘ In June of 1976, William Howell plead guilty to

voluntary manslaughter and was sentenced to serve 7 to 25

years in the Ohio State Reformatory.

It soon became apparent that Mary Evelyn Howell had

some severe emotional problems which created difficulties

in her foster placements and in her schooling. A course of

psychological counseling was undertaken for Mary Evelyn

Howell by Dr. Susan Taub, child psychologist. It was

apparent that Mary Evelyn Howell was suffering severe

emotional stress as a result of the circumstances

surrounding her mother’s death. It was further concluded

that inadequate parenting during the child’s early years was

also a contributing or primary factor causing Mary Evelyn

Howell to function at emotional, social and educational

levels considerably below her chronological age and

intellectual potential. It was concluded that Mary Evelyn

Howell was in dire need of a stable family environment.

STATEMENT OF THE CASE

On May 2, 1977, Coshocton County Children Services

filed a motion to change their temporary custody of Mary

Evelyn Howell to permanent custody so that she could be

placed for adoption. Mary Evelyn Howell’s father, William

Howell, though still incarcerated, opposed said motion. An

adjudicatory hearing before His Honor Judge Richard

Evans and a dispositional hearing, each of which was

attended by William Howell, were held on May 24, 1978.

Mary Evelyn Howell was found to be a dependent child and

permanent custody was awarded to the Coshocton County

Children Services Bureau. After a motion for findings of

fact and conclusions of law, William Howell appealed this

decision of the Court. The Fifth District Court of Appeals

on March 19, 1979, reversed the Coshocton County

Juvenile Court, finding sua sponte that the Court had not

given William Howell proper notice pursuant to Rule 15 of

the Ohio Rules of Juvenile Procedure.

On April 23, 1979, a new complaint was filed by the

Coshocton County Children Services Bureau again alleging

dependency under Section 2151. 04(A) and (C) R..C. Judge

Holland Gary from Muskingum County was appointed to

hear the case and the adjudicatory hearing was scheduled

for July 5, 1979. Appellant, William Howell, filed motions

in the Court to strike Count 2 of the complaint and for the

appointment of a psychiatrist at State expense to examine

William Howell and Mary Evelyn Howell. Said motions

were denied by Judgement Entry filed for record on July 5,

1979, however, appellant William Howell’s oral motion for

a continuance to obtain psychiatric testing of himself and

Mary Evelyn Howell at his expense was granted. The

adjudicatory hearing was rescheduled for August 2, 1979.

On August 2, 1979, an adjudicatory hearing was held in

which testimony was offered by both parties. At the

conclusion of the adjudicatory hearing the Court found

Mary Evelyn Howell, by clear and convincing evidence, to

be a dependent child pursuant to both Section 2151.04(A)

R.C. and Section 2151.04(C) R.C. A dispositional hearing

was then held and additional testimony was presented by

appellant, William Howell. At the conclusion of the

dispositional hearing, the Court found that an award of

permanent custody to the Coshocton County Children

Services Bureau was in the best interests of Mary Evelyn

Howell (Judgment Entry, 8/9/79. Appellant’s brief

Appendix B.)

William Howell again appealed the decision of the

Coshocton County Juvenile Court and that decision was

upheld by the Fifth District Court of Appeals in a decision

filed January 31, 1980.

On February 26, 1980, appellant filed a notice of appeal

together with a motion to certify the record to the Supreme

Court of the State of Ohio. After considering memoran-

dums in support and in opposition to jurisdiction the

Supreme Court of Ohio by order dated May 29, 1980,

overruled appellant’s motion to certify the record upon the

basis that no substantial constitutional question existed.

Appellant now takes direct appeal to the United States

Supreme Court.

ARGUMENT

In the instant appeal the appellant asks the Court to rule

on the constitutionality of Section 2151.04(C) of the Ohio

Revised Code which provides that a dependent child is any

child:

(C) ‘‘Whose condition or environment is such as

to warrant the State, in the interests of the child,

in assuming his guardianship.”’

Appellee submits that such a ruling by this Court would

not be dispositive of this case since dependency was also

found to exist under Section 2151.04 (A) of the Ohio

Revised Code which provides that a dependent child

includes any child.:

(A) ‘‘Who is homeless or destitute or without

proper care of support, through no fault of his

parents, guardian, or custodian;’’

The appellant in his petition has not attacked nor raised

any issue as to the validity of the latter statute and the

judgments of the State courts in the instant case therefor

rest on an adequate, alternate, non-federal basis. A ruling

on the issue raised by the appellant would serve as little

more than an advisory opinion.

The appellee further moves the Court to dismiss upon the

basis that the appellant has failed to raise a substantial

federal question. The appellant raises the issue of whether

Section 2151.04(C) of the Ohio Revised Code is

unconstitutionally vague or overbroad. It is fundamental

that to pass on such issue this Court must consider the

statute in pari-materia with related statutes and must

further consider limiting constructions imposed upon the

statute by the Ohio courts.

It is submitted that the appellant in the instant case has

erected and attacked a ‘‘straw man’’. Virtually every legal

issue raised by the appellant has already been ruled upon in

his favor by virtue of other Ohio statutues or court

decisions.

At Page 6 of the appellant’s statement in support of

jurisdiction he asks this Court to adopt the compelling

interest analysis in considering termination of parental

rights and states the following:

‘The significance 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 could then be given counsel if indigent,

transcripts on appeal if indigent, and would be

given greater protection from erroneous depriva-

tions by requiring proof by clear and convincing

evidence. . .’’

The compelling state interest requirement has already

been adopted in Ohio, State ex rel. Heller v. Miller, 61 Ohio

St. 2d 6, 399 N.E. 2d 66 (1980). The appellant himself cites

this case as controlling in Ohio and as requiring a

compelling interest prior to termination of parental rights

in Ohio. He appears to be asking this Court to order what

has already been ordered under Ohio law.

The appointment of counsel and free transcripts on

appeal for indigents are also already provided under Ohio

law, State ex rel. Heller v. Miller, supra; Rule 4 of the Ohio

Rules of Juvenile Procedure which provides that:

‘*Every party shall have the right to be

represented by counsel and every child, parent,

custodian or other person in loco parentis the

right to appointment of counsel if indigent . . .”’

Proof by clear and convincing evidence is also already

required under Ohio Law. Juvenile Rule 29 of the Ohio

Rules of Juvenile Procedure provides as follows:

‘*If a party denies the allegations, the court shall:

** *

(4) determine the issue by proof beyond a

reasonable doubt in juvenile traffic offense,

delinquency and unruly proceedings, by clear

and convincing evidence in dependency, neglect

and child abuse proceedings, and by a prepon-

derance of the evidence in all other cases.”’

At Page 13 he argues that parents must receive notice of

prohibited conduct and an opportunity to correct it. This is

also already provided under Ohio law.

Section 2151.27 of the Ohio Revised Code provides in

pertinent part that:

**. . . complaint may be upon information and

belief, and in addition to the allegations that the

child is . . . dependent . . . the complaint must

allege the particular facts upon which the

allegation of . . . dependency . . . is based.;;

This statute together with Section 2151.04 (C) of the

Ohio Revised Cede was considered by the Ohio Supreme

Court case of Jn Re Hunt, 26 Ohio St. 2d 378, 348 N.E. 2d

727 (1976) when the Court stated the following 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.”’

Although appellee does not concede that an opportunity to

correct the complaints must always be given to insure

constitutionality, it is clear that since, in Ohio, the

dependency is determined as of the date of the final

adjudicatory hearing, the parents are in fact given an

opportunity to rectify the specifics of the complaint when

this can be done, Jn Re Justice, 59 Ohio App. 2d 78 (1978).

Finally, appellant also argues the statute should be struck

down because there is potential for abuse of discretion by

trial judges. He states the following at Page 11 of his

petition:

**The Ohio statute allows the Juvenile Court to

determine when the environment of a child

warrants intervention. Accordingly, the juvenile

judge is free to remove any child who lives in

submarginal home. This, of course, means that

the poor parent and the handicapped parent are

more likely to suffer from the _ coersive

intervention of the State than is the middle or

upper class parent. Furthermore, there is a

significant possibility of erratic adjudications

existing within the previously defined sub-

classes.”’

The appellant goes on to quote from the Ohio case of Jn Re

Konniker, 30 Ohio App. 502 (1929), as_ ostensibly

containing dictum as to what the law of Ohio should be.

This argument does not rise to constitutional standards.

Many, many statutes provide for discretionary decisions by

the judiciary. The trial court’s exercise of discretion is

reviewable by superior courts. Such discretion justly

permits the courts to consider each case on its individual

facts and merits, both mitigating and aggravating. It is

beyond argument that justice in human affairs is not

amenable to mathematical formulas. The appellant has

shown no abuse of discretion in the instant case, nor has he

shown any overall pattern of such abuse in the court

decisions in the State of Ohio. The discretion of the Courts

has been limited and is not unbridled. The Court of

Appeals in Clinton County, Ohio, in the case of In Re

Justice, 59 Ohio App 2d 78 (1978), construing Section

2151.04(C) of the Ohio Revised Code and the permanent

removal standards of Ohio law states the following by

footnote at Page 83 of its opinion:

**R.C. 2151.04(C) is not to be so broadly

interpreted as to permit any child to be

permanently removed from its natural parents

simply because the court determines the child

may be better off with someone else. It must be

construed, as we construe it. here, to cover the

situation where a return of the child to the

parents would be clearly detrimental to said

child. Furthermore, the importance to a child of

living with its natural parents is a factor to be

weighed in determining what is or is not

detrimental. (citing In Re Perales, 52 Ohio St. 2d

89 [1977] by analogy)’’

CONCLUSION

A statute lawfully enacted by the legislative branch of the

government is presumed to be constitutional, Davies

Warehouse Company v. Bowles, 321 U.S. 144 (1974), it

must be construed in a manner favoring constitutionality

unless no other reasonable construction can be supported,

Bauman v. Ross, 167 U.S. 548 (1896). Considered in the

context of related Ohio statutes and as applied by Ohio case

law, it is clear that Section 2151.04(C) is not

unconstitutional. This Court has held that ‘‘facial

overbreadth has not been invoked when a limiting

construction has been or could be placed on the statute,

Broadrick v. Oklahoma, 414 U.S. 601 (1973).

A consideration of the issues raised by the appellant

would not change the outcome of the instant case since

dependency was also found under Section 2151.04(A) of the

Ohio Revised Code and would not substantially change the

present law in the State of Ohio. Appellee, therefor,

respectfully requests this Court to dismiss this appeal on the

ground that the judgment rests on an adequate non-federal

basis and upon the further grounds that the appeal does not

present a substantial federal question.

Respectfully submitted,

Assistant Prosecuting Attorney

Coshocton County, Ohio

401% Main Street

Coshocton, Ohio 43812

Telephone: (614) 622-3566

COUNSEL FOR APPELLEE

10:

CERTIFICATE OF SERVICE

I hereby certify that the foregoing Motion to Dismiss was

served upon the Counsel for Appellant, Edward Emmett

O’Farrell, Esquire, Southeastern Ohio Legal Services,

Tuscarawas Valley Area Office, 131 Fair Avenue, N.E.,

New Philadelphia, Ohio 44663 and upon the Guardian Ad

Litem Attorney Norman S. Davitt, 528% Main Street,

Coshocton, Ohio 43812 by United Stated Regular Mail this

6 day of October, 1980.

David KHostetler

Attorney for Appellee