Jurisdictional Statement — Heller v. Hancock County Children Services Board
Supreme Court brief1981
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OCTOBER TERM, 1980
KAREN HELLER AND EARL HELLER,
APPELLANTS
Vv.
HANCOCK COUNTY CHILDREN SERVICES BOARD, ET AL.,
APPELLEES
ON APPEAL FROM THE SUPREME COURT OF OHIO
JURISDICTIONAL STATEMENT
Robin M. Kennedy
College of Law Legal Clinic
2801 West Bancroft Street
Toledo, Ohio 43606
(419) $37-2944
Attorney for Appellants
SUPREME COURT OF THE UNITED STATES ;
a eee ee
POR ES Oe Pee! pe Oe
ae
QUESTIONS PRESENTED
Whether the Ohio statutes, which allow the permanent termination
of parental rights, where the child “lacks proper parental care”
or where the child's “condition or environment is such as to
warrant the state in the interests of the child, in assuming his
guardianship,” are unconstitutionally vague and indefinite in
violation of the Due Process Clause of the Fourteenth Amendment to
the United States Constitution.
Whether the Ohio statutes, which require no showing of real or
substantial harm to a child or exploration or exhaustion of less
drastic alternatives before resort to permanent termination of
parental rights, fail to provide natural parents, facing the loss
of their child, with due process of law as required by the
Fourteenth Amendment to the United States Constitution.
PARTIES
The parties to the appeal in the Supreme Court of Ohio were Karen
Heller and Earl Heller, parents-appellants, the Hancock County Children
Services Board, appellee, and Robert Sprague, guardian ad litem for
Johnny Steven Heller, appellee.
Sie is
QUESTIONS
PARTIES .
PRESENTED *-_ e* * ar . * he . *_e @«# . e.@ 8 -
OPINIONS BELOW > ore . 7 . . *. . . . . . . *_ * «© * . . . .
JURISDICTI
CONSTITUTI
STATEMENT
THE QUESTI
I.
Il.
CONCLUSION
SERVICE
APPENDIX A
APPENDIX B
ON . . hk. Sd . . * * . . 7 . 7 a . . 7 . ~ . . .
ONAL PROVISIONS AND STATUTES INVOLVED .....-.
OP. THE GARE 0) o ioe 6 8 eB 8 eee 8 ae. 6
ONS ARE SUBSTANTIAL ... +++ 2+ © © © e+ © © @ ®
THE OHIO STATUTES WHICH ALLOW THE PERMANENT
TERMINATION OF PARENTAL RIGHTS, WHERE THE CHILD
"LACKS PROPER PARENTAL CARE" OR WHERE THE CHILD'S
“CONDITION OR ENVIRONMENT IS SUCH AS TO WARRANT
THE STATE IN THE INTERESTS OF THE CHILD, IN
ASSUMING HIS GUARDIANSHIP," ARE UNCONSTITUTIONALLY
VAGUE AND INDEFINITE IN VIOLATION OF THE DUE
PROCESS CLAUSE OF THE ‘“*ATEENTH AMENDMENT TO THE
UNITED STATES CONSTITU™ION. AN td, We eae ate wa pee ee
THE OHIO STATUTES, WHICH REQUIRE NO SHOWING OF
REAL OR SUBSTANTIAL HARM TO A CHILD OR EXPLORATION
OR EXHAUSTION OF LESS DRASTIC ALTERNATIVES BEFORE
RESORT TO PERMANENT TERMINATION OF PARENTAL RIGHTS,
FAIL TO PROVIDE NATURAL PARENTS, FACING THE LOSS
OF THEIR CHILD, WITH DUE PROCESS AS REQUIRED BY THE
FOURTEENTH AMENDMENT TO THE UNITED STATES
CONSTITUTION. Big eRe ce ee eee wee eee
- ORDER OF THE SUPREME COURT OF THE UNITED STATES
- NOTICE OF APPEAL TO SUPREME COURT OF THE
UNITED STATES . 2. sc we wt we ee wm ewe ee
APPENDIX C - NOTICE OF APPEAL TO SUPREME COURT OF THE
UNI TED STATES ee ASE . . . . . . . . . oe) € 7 . .
APPENDIX D - JOURNAL ENTRY OF THE SUPREME COURT OF OHIO. . .
APPENDIX £ - JOURNAL ENTRY OF THE COURT OF APPEALS . ... -
A?PENDIX F - MEMORANDUM OPINION OF THE COURT OF APPEALS . .
A*PENDIX G - MINUTES OF THE COURT OF APPEALS . ee eee
ii.
ll
11
12
la.
2a.
4a.
5a.
6a.
7a.
2la.
TABLE OF CONTENTS - CONT'D.
APPENDIX H
APPENDIX I
APPENDIX J
APPENDIX K
APPENDIX L
' APPENDIX M
APPENDIX N
APPENDIX O
APPENDIX P
APPENDIX Q
APPENDIX R
JUDGMENT ENTRY OF JUVENILE COURT. .......
MEMORANDUM OPINION OF JUVENILE COURT. .....-
AMENDED MOTION FOR PERMANENT CUSTODY ..... -
MOTION TO DISMISS, JULY 21, 1978. .....+.-
BRIEF IN SUPPORT OF MOTION TO DISMISS .....-
JOURNAL ENTRY, APRIL 14, 1976......+++5
AMENDED COMPLAINT, FEBRUARY 24, 1976......
UNITED STATES CONSTITUTION, AMENDMENT XIV. § 1 .
OHIO REVISED CODE §§ 2151.04(B) AND (C),
2151.05 > . . . . >. . . . ° . . . . . . . . .
OHIO REVISED CODE § 2151.353 . . - + + + e+ ees
JUVENILE COURT ORDER OVERRULING PARENTS' MOTION
PE aS a ee ea el a ee tie 8 Oe ie ne
iii.
TABLE OF AUTHORITIES
== . Pages
Alsager v. District Court of Polk Count lowa,
406 F. Supp. 10 (S.D. lowa 1975), aff'd. on other
grounds, 545 F.2d 1137 (8th Cir. 1976) . +--+ ++ ees 6,7,10,11
Cohen v. California, 403 U.S. 15 SOUR a oe eke eee
_ Commonwealth v. Page, 339 Mass. 313, 159 N.E. 2d
‘ ; 82 1 95 9 > a. . * > . . . * . . J . * . . . . * . * . 9
‘ | Dahnke-Walker Milling Co. v. Bondurant,
257 U.S. 782 (1921) > . . . * . > > * . > . . * 7 >. . 1
| Davis v. Smith, 583 S.W.2d 37 (Ark. 1979) . ee er re
i ‘
Davy v. Sullivan, 354 F. Supp. 1320, 1328-1329
M.D. Md. 1973) > . > * . * > . > . > > . >. . > > . >. i)
' Director of Patuxent Institution v. Daniels,
243 Md. 16, 221 A. 2d 397 (1966) . . . . . . * . ° . . 9
Gomes v. Gaughn, 471 F.2d 794, g00 (Ist Cir. 1973). ...+++9
_—-
Grayned v. City of Rockford, 408 U.S. 104, 108-09 (1972)... 6,7
In re Cunningham, 59 Ohio St. 94 100 (1979) . - » + 2 2 © © © 4,10
——
In re ¥ 316 N.Y.S.2d 356 (Fan. Ct. 1970) . . . . * . . > . . 9 ;
In re Maddox, 351 Mich. 358, 88 N.W.2d 470 (1958) .. + +++ 9
Inmates of Boys Training School v. Affleck,
346 F. Supp. 1354, 1364 (D. R.2. 1972) 2. » ee ee eee 9
Kruse v. Campbell, 431 F. Supp. 180, 188 -
sere es 6 «bere ayele 6 6 8 8 eee owe ts 10
Mv. M, 336 N.Y.S.2d 304, 71 Misc. 2d 396
(Fam. Ct. 1970) a i ie ee ee ee 8 2 ei eee S o @iu0. ¢@ Q ‘
Maatallah v. Warden, Nevada State Prison,
86 Nev. 430, 420 P.2d 122 (1970 > . . > >. . . . . >. * > 9
t Martarella v. Kelley, 349 F. Supp. 575, 585,
598-600 (S.D.N.Y. 1972), enforced, 359 F. Supp.
478 (S.D.N.Y. 1973) . . . * . . . . . . . . . . . . . G
Meyer v. Nebraska, 262 U.S. 390, 399-401 (1923) ..- + + es 8 ‘
Moore v. City of East Cleveland, 431 U.S. 494 (1977)... . a ;
Morales v. Turman, 364 F. Supp. 166, 175
(E.D. Tex. 1973) gee a a rae tae aaa La am ee |
: |
.9 |
Nelson v. He 355 F. Supp. 451, 459 (N.D. Ind. 1972), \ aa
aif'd., 491 F.2d 352, 360 (7th Cir. 1974)... ++ +++ 9
Pierce v. Society of Sisters, 268 U.S. 510, 534-535 (1925). . 8
Roe v. Conn, 417 F. Supp. 769, 669 (M.D. Ala. 1976)... +s 6,10,11
Roe v. Wade, 410 U.S. 113, S05 25G0DP a side ew ve eee 8
er re
Sas v. Maryland, 334 F.2d 506 (4th Cir. 1964),
cert. denied, 407 U.S. 355 (1972) «- ee ee e's ee + 9
iv.
dices Steere Tea ee
ow ae Pf ea) S
TER Nemeag eS
, YY - ~
A
ee Cate
;
‘ Shelton Vv. Tucker, 364 U.S. 479 (1960). . . * . > . . * >
Silvers v. People, 22 Mich. App. 1, 176 N.W.2d 702 (1970)
Stachulak v. Coughlin, 364 F. Supp. 686 (N.D. 11. 1973) .
| D. Young and J. Carr, Anderson's Ohio Family Law (1975).
United States v. Pardue, 354 F. Supp. 1377, 1382
(D. Conn. 1973) ..-
————
‘United States v. Walker, 355 F. Supp. 705, 708 (N.D. Cal
1971) . > . . . . . . * * . . * . . . * . * * . * .
Constitutions
United States Constitution,
Statutes
28 U.S.C. § 1257(2) .. -
O.R.C. § 2151.06 .. +. +s
O.R.C. § 2151.05 ...--s
O.R.C. § 2151.353 . . .-+-
O.R.C. § 2151.01(A) ..- +
Mich. Comp. Laws Ann. § 722.
Articles
Fourteenth Amendment.
Mnookin, “Child-Custody Adjudication,” 39 Law and
Contemporary Pubs. 226 (o. ) Se ea tat
Mnookin, “Foster Care, In Whose Best Interests?",
43 Harv. Ed. Rev. 599 (1973) eet ae atice
Wald, "Neglected Children, A Search for Realistic
Standards," 27 Stan. L. Rev. 983 (1976)
Other Authorities ited
Institute of Judicial Admin., ABA Juvenile Justice
Standards Project, Standards Relating to Abuse
and Neglect (Tent. Draft 1977). ++ +++: >
v.
1,4,5
1
1,2,3,5,6,7,11
2,5,6
2,11
10
7
~
OPINIONS BELOW
There was no opinion filed by the Supreme Court of Ohio with its 4
final judgment dismissing the appeal. The Court held that no substantial
constitutional questions existed. The opinion on the merits was delivered
at an earlier stage in the proceedings when the Court of Appeals for the
Third Appellate Judicial District, Hancock County, Ohio, affirmed the i
4 ' Judgment of the Hancock County Court of Common Pleas, Juvenile Division, 3
denying the parents’ motion to dismiss and permanently terminating parental
rights. The memorandum opinions of the Court of Appeals and the Juvenile
Court are unreported, but set forth in the Appendices and infra, st pages
7a through 32a.
JURISDICTION
The decision and judgment of the Supreme Court of Ohio were filed
September 26, 1980. Notice of Appeal was filed in the Supreme Court of
Ohio on December 18, 1980. The jurisdiction of this Court to review the
decision by appeal is conferred by 28 U.S.C. Sec. 1257(2) and is sustained
by the following decisions: Cohen v. California, 403 U.S. 15 (1971);
Dahnke - Walker Milling Co. v. Bondurant, 257 U.S. 782 (1921).
CONSTITUTIONAL PROVISIONS AND STATUTES INVOLVED
Section 1 of the Fourteenth Amendment to the United States Constitution
provides:
All persons born or naturalized in the United States and
subject to the jurisdiction thereof, are citizens of
the United States and of the State wherein they reside.
No stat? shall make or enforce any law which shall abridge
the privileges or immunities of citizens of the United
States; nor shall any State deprive any person of life,
liberty, or property, without due process of law; nor
deny to any person within its jurisdiction the equal
protection of the laws.
Ohio Revised Code Section 2151.04(B) and (C) define a dependent
child as follows:
(B) Who lacks proper care or support by reason of
the mental or physical condition of his parents, guardian,
§ or custodian;
, (C) Whose condition or environment is such as to
~~ “er -+
<9
‘warrant state, in the in
assuming his guardianship
Ohio Revised Code Section 2151.05 defines a child without proper
parental care as follows:
Under sections 2151.01 to 2151.54 of the Revised Code,
a child whose home is filthy and unsanitary; whose
parents, stepparents, guardian, or custodian permit him
to become dependent, neglected, abused, or delinquent;
whose parents, stepparents, guardian, or custodian,
when able, refuse or neglect to provide him with necessary
care, support, medical attention, and educational
facilities; or whose parents, stepparents, guardian,
or custodian fail to subject such child to necessary dis-
cipline is without proper parental care or guardianship.
Ohio Revised Code Section 2151.353 provides as follows:
If the child is adjudged an abused, neglected, or dependent
child, the court may make any of the following orders of
disposition:
(D) Commit the child permanently to the County Depart-
ment of Welfare which has assumec che administration of
child welfare, county children services board, or to any
other certified agency. Upon such commitment the natural
or adoptive parents are divested of all legal rights and
obligations due from them to the child or from the child
to them.
No order for permanent custody shall be pt the hearing
wherein the child is adjudicated abused, neglected, or
dependent except and unless the complaint alleging the
abuse, neglect, or dependency contains a prayer requesting
such permanent custody and the summons served on the
parents contains a full explanation that the granting
of such an order permanently divests them of their varental
rights.
STATEMENT OF THE CASE
This case originated on January 16, 1976, with the filing of a
complaint by the Hancock County Children Services Board (the “Board")
alleging the infant, Johnny Steven Heller, born January 15, 1976, to be
dependent. A dependent child is defined by Ohio Revised Code §§ 2151.04(B)
and (C) as one “who lacks proper parental care due to the physical or '
mental condition of his patents” or "whose condition or environment is such
as to warrant the state in the interests of the child in assuming his
guardianship.” The child was adjudicated dependent and placed in the
temporary care of the Board on April 14, 1976, on the grounds that since
both parents were hospitalized, they were physically incapable of caring
for their child (App. L, infra, p. 32).
Poa
fie. ke
“7 a ae
4
%
On July 21, 1978, the parents raised their federal constitutional questions =|
ee
in a motion to dismiss (App. kK infra, p.26a)- An adjudicatory hearing and :
a dispositional hearing were held on August 15, 1978, at which the court ,
overruled the parents’ motion to dismiss (App. R infra, p.38a ). On
October 23, 1978, the court adjudicated the child dependent pursuant to R.
C. §§ 2151.04(B) and (C) and "in the best interests" of the child ‘permanently
| terminated parental rights (App. H infra, p. 22a).
At the hearing before the Juvenile Court on August 15, 1978, a
psychologist serving as expert witness indicated that Mrs. Heller could be
an adequate mother for Johnny (Tr. 86). Mr. Heller was described as not
emotionally disturbed, but as operating in the moderate range of mental
retardation (Tr. 35). Mr. Heller was further described as having difficulty
processing stress and the expert expressed concern that Mr. Heller might
inadvertently strike at someone (Tr. 37 ). Other testimony, however,
established that Mr. Heller was not homicidal or suicidal, his hostility was
expressed in profanity, and most significantly that Mr. Heller had a fifty-
fifty chance of performing as an adequate parent with treatment (Tr. 86 ).
The record also revealed that one reason for Mr. Heller's anger is that his
son, Johnny, has been taken away (Tr. 263).
Although the expert believed that, gcc proper treatment, Mr. Heller ?
could be able to care for Johnny and provide the child with proper psychological
support, the Board instituted the parental rights termination action without
making any effort to rehabilitate and reunify the family (Tr.128).
While the expert testified that vocational, social, and academic training,
as well as nursing assistance for Johnny, accompanied by gradual reintegra-
tion of the child into the parents’ home had a good chance of success, and
Mr. Heller indicated his willingness to cooperate in such treatment programs,
no such help was offered by the agency.
The parents love and desire to have their son with them. Despite
transportation problems they arranged three visitations with Johnny in 1978
with no assistance from the Board. Visitations were difficult because the
Hellers had little income, lived in Toledo, Ohio, and had to visit Johnny
in Findlay, Ohio. They have provided a room for Johnny, have sent him a
birthday card in January, 1978 and an Easter card and some candy (Tr. 145).
3.
The parents indicated they would provide whatever medical attenticn Johnny a
needed (Tr. 238). Both parents have had experience caring for small children
(Tr. 265, 274, 275). )
The Board took no action to place Johnny back with the parents for a ;
five month period on advice of the Board's counsel. The case worker assigned :
to the parents did not feel that agency had any duty to take affirmative |
initial steps to return the child, nor did the Board provide any specific
guidelines advising caseworkers as to their duties toward family reinte-
gration and treatment. The caseworker also felt that since a pleading for
permanent custody had been filed, no treatment plan was necessa:y. The
caseworker never communicated with the parents’ counsel to advise him of the
wecessity for legal action to get Johnny back. Nor did she ever speak to the
parents’ counsel regarding a treatment plan. No effort was made to transfer
Johnny's case to Lucas County (Toledo, Ohio) where the parents resided and
the Board never offered to reimburse the Hellers for their trips to Findlay,
despite their obvious poverty. Additionally, the caseworker unrealistically
expected that the Hellers, who made $240.00 per month and were fifty dollars
in debt, should financially contribute to Johnny's support while under
custody of the Board.
In all, the Board failed to show that real or substantial harm to
Johnny would occur if custody were given to the parents. The record further
indicates a complete failure by the Board to exhaust less drastic alterna-
tives to parental termination.
The Court of Appeals rejected the parents’ contentions that the
statutory language was vague, that no showing of real and substantial harm
had been made, and that the State had a duty to exhaust less drastic
alternatives to permanent termination of parental rights (App. F , infra, p.
13a). The Court of Appeals reasoned that any vagueness in the depending
statute wes cured by a statutory requirement for specific pleading, even
though the amended motion contained almost no specifics (App. F, infra. p.
19a). The Court of Appeals further held that neither « showing of real and
substantial harm nor exhaustion of less drastic alternatives to permanent
termination were required by the Fourteenth Amendment to the United States
Constitution, despite In re Cunninghas, 59 Ohio St.2d 100 (1979) (App. F,
infra, p. 208).
FECTS oS Rae Nee head Poti oe ae en
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ia a te isis ahs ies ite a ea ie OM ese 28 Re ey ee Rigihe t
et #3 hom bie ‘ i ge a7 ieee) of DSi: ks 1 ee. Pe De Cte ie
a a ‘to the Supreme Court of Ohio, these federal constitutional
: :
claims were denied without opinion (App. D , infra, p. 5a). From that
dismissal, the parents filed a notice of appeal to the Supreme Court of the
United States (App. B, infra, p. 2a). Am extension of time was granted
appellants to docket their appeal by February 23, 1981 (App.A , infra, p. 1).
THE QUESTIONS ARE SUBSTANTIAL
I. THE OHIO STATUTES WHICH ALLOW THE PERMANENT
TERMINATION OF PARENTAL RIGHTS, WHERE THE CHILD
"LACKS PROPER PARENTAL CARE" OR WHERE THE CHILD'S
“CONDITION OR ENVIRONMENT IS SUCH AS TO WARRANT
THE STATE IN THE INTERESTS OF THE CHILD, IN
ASSUMING HIS GUARDIANSHIP,” ARE UNCONSTITUTIONALLY
VAGUE AND INDEFINITE IN VIOLATION OF THE DUE PROCESS pa
CLAUSE OF THE FOURTEENTH AMENDMENT TO THE UNITED
STATES CONSTITUTION.
The questions presented by this appeal are the subject of confusion
and disagreement among state and lower federal courts and have not before
been dealt with by this Court. The questions are substantial since they
concern the requirements of the Due Process Clause of the Fourteenth Amendment
as they apply to the Ohio statutes governing the permanent termination of
parental rights.
The Supreme Court of Ohio upheld Ohio Revised Code Sections 2151.04(B)
and (cy? and 2151.05" against the parents’ vagueness challenge (App. A,
infra, p. la). Sections 2151.04(B) and (C), the statutory provisions under
which the child was found to be dependent, offer no guidelines to avoid
lohio Revised Code Section 2151.04(B) and (C) define a dependent child
as follows:
(B) Who lack proper care or support by reason of the
mental or physical condition of his parents, guardian,
or custodian;
(C) Whose condition or environment is such as to warrant
the state, in the interests of the child, in assuming
his guardianship.
, Ohio Revised Code Section 2151.05 defines a child without proper
parental care as follows:
Under sections 2151.01 to 2151.54 of the Revised Code, a child
whose home is filthy and unsanitary; whose parents, step-
perents, guardian, or custodian permit him to become depen: »nc,
neglected, abused, or delinquent; whose parents, stepperents,
guardian, or custodian, when able, refuse or neglect to
provide him with necessary care, support, medical attention,
and educational facilities; or whose parents, stepparents,
guardian, or custodian fail to subject such child to necessary
discipline is without proper parental care or guardianship.
aa
}
|
the specificity of these sections. The "filthy and unsanitary” limitation ; 7
of Section 2151.04 has no application to this case since no where in the
record of pleadings is there any indication that this is a bssis for the |
action. Moreover, the phrase employing the words “when able" has no
application to this case since this is not a neglect but rather a dependency
proceeding which refers to situations which have been caused through no
fault of the parents. 2 D. Young and J. Carr, Anderson's Ohio Family Law
231 (1975). Consequently, the issue remains whether “proper parental care"
and “condition or environment is such as to warrant the state in the :
interest of the child, in assuming his guardianship,” without other clarifying
statutory material, are sufficiently definite standards.
State action to sever this fundamental relationship does not satisfy
the Due Process Clause when it is premised upon statutory standards that are
vague and indefinite. Alsager v. District Court of Polk County, Iowa, 406
F. Supp. 10 (S.D. Iowa 1975), aff'd. on other grounds, 545 F.2d 1137 (8th
Cir. 1976); Roe v. Conn, 417 F. Supp. 769, 669 (M.D. Ala. 1976). Davis v.
Smith, 583 S.W.2d 37 (Ark. 1979).
The Supreme Court has indicated three criteria by which to determine
whether an enactment is vague. Grayned v. City of Rockford, 408 U.S. 104,
108-09 (1972). First, the law must give a person of ordinary intelligence
a reasonable opportunity to know what is prohibited. Id. In other words,
the law must provide a fair warning. When the explanation of an indeter-
minate standard such as “proper parental care," Revised Code § 2151.04(B),
first occurs at a dependency or termination hearing, it can hardly be
argued that the parents were given fair warning of restricted conduct. Such
a standard is one upon which men and women of ordinary intelligence would
greatly disagree. Moreover, the statute as expanded by Revised Code §
2151.05 is circular and is couched in words with no commonly accepted
meanings. "An exay ination of these phrases will not infors an ordinary
person as to what conduct is required or must be avoided in order to
parental termination." Alsager v. District Court of Polk County, Iowa, supra
at 18.
A second danger of vague statutes is the impermissible delegation of
discretion from the state legislature to social workers, police officers and
judges. Grayned v. City of Rockford, supra. This danger is especially
grave in the highly subjective context of determining the approved mode of
: . » ,
da toa 4 & ae ; ¥ ad ~ % my
eet, | Lhe ’
eo
—-
ol
-
983 (1976); Mucokin, “Foster
Care, In Whose Best Interest?” 43 Harv. Ed. Rew. 599 (1973), Macokin,
"Child-Custody Adjudication,” 39 Law and Contemporary Pubs. 226 (1975).
The inevitability of ad hoc determinations under Ohio Revised Code § 2151.04
(B) and (C) opens the door to arbitrary and discriminatory parental termine-
tions. By allowing officials to manipulate such wague standards, the choice
of standard becomes effectively outcome-determinative.
Realistic Standards,” 27 Stan. L. Rev.
The third danger inherent in vague statutes is the risk thet “the ,
exercise of constitutional rights will be inhibited. Graymed v. City of
Rockford, supra. Under Revised Code § 2151.04 (B) and (C), parents will be
forced to steer far wider of the unlawful zone than is constitutionally
necessary. Such an inhibition of the parents’ right to family integrity
is not justified when the state is capable of enacting less ambiguous
termination standards. Alsager v. District Court, supra at 18.
It is clear that more specific standards for parental termination can be
enacted. See e.g., Mich. Comp. Laws, Ann. § 722.23 (Supp. 1976); Institute
of Judicial Admin. ABA Juvenile Justice Standards Project, Standards
Relating to Abuse and Neglect (Tent. Draft 1977); Mncokin, “Foster Care,
In Whose Best Interes “", supra at 631: Wald, supra at 1039.
The vague and indefinite language of Ohio's termination of perenta!
care standards results in no effective notice of proscribed parental
conduct. Taken together with the tremendous variance given state agencies
and judicial officials to apply their subjective opinions in terminating
parent:1 rights, and the danger of impinging upon const ituttensily protected
rights, these violations demonstrate the substantial constitutional question
at bar.
i
THE OHIO STATUTES, WHICH REQUIRE NO SHOWING OF REAL
OR SUBSTANTIAL HARM TO A CHILD OR EXPLORATION OR EX-
HAUSTION OF LESS DRASTIC ALTERNATIVES BEFORE RESORT :
TO PERMANENT TERMINATION OF PARENTAL RIGHTS, FAIL TO
PROVIDE NATURAL PARENTS, FACING THE LOSS OF THEIR
CHILD, WITH DUE PROCESS AS REQUIRED BY THE FOURTEENTH
AMENDMENT TO THE UNITED STATES CONSTITUTION. ;
—_
A. The State Statute Failed to Require Exhaustion of Less Drastic
Alternatives. ’
This appeal raises the substantial questions of what resources or
treatment a state is obligated to provide indigent parents, prior to
permanent termination of parental rights.
The right to famiiy int-grity is sufficiently fundamental to be
implicit in the concept of ordered liberty and is thus protected by sub-
stantive due process against illegitimate, and arbitrary interference by
the state. Undue governmental interference into family life is constitu-
tionally forbidden by a “host of cases, tracing their lineage" to Meyer v.
Nebraska, 262 U.S. 390, 399-401 (1923) and Pierce v. Society of Sisters,
268 U.S. 510, 534-535 (1925), which have consistently acknowledged a private
realm of family life, into which the state may not intrude without sufficient
compelling reasons. Moore v. City of East Cleveland, 431 U.S. 494 (1977).
Because of the sacred nature of that right, statutes infringing upon the
parent child relationship must be subject to strict judicial review.
To successfully withstand that standard of scrutiny, laws must be justified
by a compelling state interest and must be narrowly drawn so as to effectuate
only that compelling state interest. Roe v. Wade, 410 U.S. 113. {55 (1973).
Further, when governmental action, as in this case, impinges on fundamental
personal liberties, the means employed must be those which are least re-
strictive of those fundamental liberties. Shelton v. Tucker, 364 U.S. 479
(1960). As the court stated in Shelton:
Even though the governmental purpose be legitimate
and substantial, that purpose cannot be pursued
by means that broadly stifle fundamental personal
liberties when the end can more narrowly be
achieved. The breadth of legislative abridgement
must be viewed in light of less drastic means for
achieving the same basic purpose.
; Id. at 48638.
PT OREO TE TO. SE Ee, ae
It is therefore, necessary that the state, in the pursuit of the
| welfare of Johnny Steven Heller, employ means which have not only a
rational relationship to the state's goal, but are necessary and the least
drastic intrusion into the parents’ and child's family integrity.“
“the situation in parental right termination proceedings is analogous
to civil commitment in that both involve parens patriae intrusions by the
_ state in areas of privacy. The Body of civil commitment law has held,
| that persons committed under "non penal" statutes for care and treatment, are
entitled as a matter of due process to such care and treatment, in order to
effectuate their return to family and community. Nelson v. Heyne, 355 F.
Supp. 451, 459 (N.D. Ind. 1972), aff'd., 491 F.2d 352, 360 (7th Cir. 1974),
cert. denied, 417 U.S. 976; Inmates of Boys Training School v. Affleck,
346 F. Supp. 1354, 1364 (D. R.I. 1972); Morales v. Turman, 364 F. Supp. 166,
175 (E.D. Tex. 1973); Martarella v. Kelley, 349 F. Supp. 575, 585, 598-600
(S.D. N.Y. 1972), enforced, 359 F. Supp. 478 (S.D. N.Y. 1973); MvM, 336
N.Y.S.2d 304, 71 Misc. 2d 396 (Fam. Ct. 1970); In re I, 316 N.Y.S.2d 356
(Fam. Ct. 1970); Stachulak v. Coughlin, 364. F. Supp. 686 (N.D. Ill. 1973):
Davy v. Sullivan, 354 F. Supp. 1320, 1328-1329 (M.D. Md. 1973)(three judge
court); Gomes v. Gaughn, 471 F.2d 794, 800 (lst Cir. 1973); Sas v. Maryland,
334 F.2d 506 (4th Cir. 1964), cert. denied, 407 U.S. 355 (1972); In re
Maddox, 351 Mich. 358, 88 N.W.2d 470 (1958); Commonwealth v. Page, 339 Mass.
313, 159 N.E.2d 82 (1959); Director of Patuxent Institution v. Daniels,
243 Md. 16, 221 A.2d 397 (1966); Silvers v. People, 22 Mich. App. 1, 176 N.W.
2d 702 (1970); United States v. Walker, 335 F.Supp. 705, 708 (N.D. Cal.|
1971); United States v. Pardue, 354 F. Supp. 1377, 1382 (D. Conn. 1973);
Nason v. Superintendent of Bridgewater State Hos ital, 253 Mass. 604, 612-
613, 233 N.E.2d 998, 913-14 (1968); Maatallah v. Warden, Nevada State Prison,
86 Wev. 430, 420 2.24 122 (1970).
Here it is advanced that just as due process entitles a civilly
committed person to the least restrictive form of treatment, the family
faced with a deprivation of "family privacy or autonomy" by state action
is entitled to the least restrictive form of treatment in a community
setting.
a re
!
'
'
The Ohio statute under which the Hellers lost all rights to their son
Johnny, contained no such provisions.
Johnny Steven Heller was not reunited with his natural parents because
the record reveals that the Board took a efforts to provide the vocational,
social, academic and nursing assistance, which, according to expert testimony,
would have given (Tr. 86) Mr. Heller a fifty-fifty chance of becoming
an adequate parent. The expert felt, as the tria. court agreed, that» Karen
| Heller, the mother, could function as an adequate parent (Tr. 86).
The caseworker went so far as to fail, intentionally, for a five month
period, to make any efforts to restore the child removed by the Board (Tr.
No treatment plan was made and no effort to facilitate visitations (Tr.
The Hellers had to make whatever arrangements were necessary for
visitation (Tr. 107). In fact, no guidelines were promulgated by which
caseworkers of the Board could know how to implement their obligations to
pursue less restrictive alternatives (Tr. 127, 213, 216).
In this case, the absence of an explicit statutory mandate, forced the
parents unnecessarily to relinquish fundamental rights in violation of
Fourteenth Amendment due process guarantees. Kruse v. Campbell, 431 F. Supp.
180, 188 (E.D. Va. 1977), Alsager v. District Court of Polk County, Iowa,
406 F. Supp. 10, 21 (D.C. Iowa 1975), Roe v. Conn, 417 F. Supp. 769, 779
(M.D. Ala. 1976). That result was permitted by Ohio Revised Code Sections
2151.04(B) and (C) and 2151.353, despite the Ohio Supreme Court's implicit
adoption of the least restrictive means principle in In re Cunningham,
59 Ohio St.24 100 (1979).°
3 the importance of maintaining a cohesive family unit,
whenever possible (which), is found in R.C. $2151.01.
The statute states that the provisions of R. C. Chapter
2151 should be liberally construed and interpreted
to effectuate the purpose of “provid[ing] for the care.
protection, and mental and physical development of
children.” (R.C. 2151.01[A}.) Division [C]) indicates
further that the foregoing purpose should be achieved
“whenever possible, in a family environment, separating
the child from its parents only when neceosary for his
welfare or in the interests of public safety.”
(Emphasis added.)
In re Cunningham, 59 Ohio St.2d 100, 105 (1979).
: B. The State Statute Failed to Require A Showing of Real and
H Substantial Harm.
In addition to its failure to require a "less drastic alternatives"
approach, the applicable statutes are ambiguous regarding the point at
ee ee es
which the state's interest becomes sufficiently compelling to sever the
j parent-child relationship. In Roe v. Conn, 417 F. Supp. 769 (M.D. Ala. 1976),
the Court felt the state's interest would reach such a level only ‘hes
the child was subjected to “real physical or emotional harm and less
drastic measures would be unavailing." Id. at 779. Another court has
required a showing that the child is being harmed in a “real and sub-
stantial way" before a state may permanently terminate parental rights.
! Alsager v. District Court of Polk County, Iowa, 406 F. Supp. 10, 24 (S.D.
Iowa 1975).
In “he present case, no real or substantial harm to the child was
shown. The parents, in fact, have never been given a chance to fail since
the child was removed from their care immediately after birth.
The fact that the Ohio parental termination statutes (Ohio Revised Code
Sections 2151.04(B) and (C) and 2151.353), permitted the Hellers to be
deprived of their fundamenta) right to the custody of their natural child
on such a dearth of evidence documenting substantial risk to the child, and
with no attempt made at any solution prior to termination action, illustrates
the unconstitutional nature of the Ohio statutes involved. The applicable
statutes (Ohio Revised Code Statutes 2151.04(B) and (C) and 2151.353),
failed to require or provide that due process of law be afforded parents
facing termination of all rights to their children. Consequently, appellants
here lost their child in violation of rights guaranteed them by the Fourteenth
Amendment and do present a substantial question for review by this Court.
CONCLUSION
For the foregoing reasons, probable jurisdiction should be noted.
! Respectfully submitted,
nats M. Kennedy %
College of Law Legal Clinic
280) West Bancroft Street
Toledo, Ohio 43606
(419) 537-2944
Attorney for Appellants
ll.
PROOF OF SERVICE
This is to certify that copies of the foregoing Jurisdictional
Statement were served upon Steven C. Betts, Assistant Prosecutor for Hancock
County, at 1330,North Main, P. 0. Box 208, Findlay, Ohio 45840; and
Thomas P. Kemp, Attorney for Robert F. Sprague, guardian-ad-litem,. at 301
_ Bast Main Cross Street, Findlay, Ohio 45840 by regular United States
: mail this 23d day of February, 1981.
|
Robin M. Kennedy UY
College of Law Legal Clinic
2801 West Bancroft Street
Toledo, Ohio 43606
(419) 537-2944
Attorney for Appellants
12.
APPENDICES
KAREN HELLER AND EARL HLLLe#,
Appellants,
BANCOCH COUNTY CHILDREN'S
SENXVICHS LOARD, ET
. ®9
a aule-
UPON CONSISERATION of the app:
Sur the apperiant
ete the &2%.¢
vuuse ve, anc the
es <<
Beise -
fur decneting
“5 .Eebruary_23 =
plication er counse.
kecses;, Cx-
—_—_—_—_— eo
——_—-+- oo
Associate Justice Uv.
a
Court of the
Jared this 18
la.
c
wey 26...
wusitesc Stutes
APPENDIX B
IN THE SUPREME COURT OF THE STATE OF OH10
‘
IN RE: JOHNNY STEVEN HELLER
wr
CASE NO. 80-1087
NOTICE OF APPEAL TC THE SUPREME COURT CF THE UNITLD STATES
Steven C. Betts Robin Mi. Kennedy
Assistant Presecuter for -Hancock County Attorney at La
1330 North Main Strect University of Law llega’
’, O. tox 208 The University of Tole
Findlay, Ohio 45849 Sa. 2801 West Bancrort Stres.
t TEP pe enaeaaage . Ohie 45005
Thomas I. ke ‘ ee | o . SON
@tterncy for Kebert F. @>razue Gb li i" sata ANT FOR APPELA
301 East Muin Cross Strget he
Findlay, Ohie 45849 : £0 1g 1969
ATTORNIES FOR APPELLEBR : SUPREME oc, COURT
OF OHi9
THovas ,
a eg ST Chen
“linic
Daa
eee
See
;
5
IN THE SUPREME COURT OF THE STATE OF OHIO
IN RE: JOHNNY STEVES. HELLER : Case No 80-1087
: NOTICE OF APPEAL
Notice is hereby bavin chee Karen «od Earl Heller, the natural prrernts
of Johnny Steven Heller, appellants, hereby appeal to The Supreme Court of
the United States from the final judgment of The Supreme Court of the itate
of Ohio dismissing their appeal for lack of a substantial constitution:l
question entered in this matter on September 26, 1980.
This appeal is taken pursuant to 28 U.S.C. §1257(2).
. 4
"¢@
a be oe
Robin M. Kennedy
Attorney for the Appellar-s
College of Law Legai Cliric
The Universicy of Toled&
2301 West Bancroft Stree
Toledo, Onio 43600
419/537-2944
PROOF OF SERVICE
_ Copies of the forecoing Notice of Appeal were served upon Steven
Betts, Assistant Prosecutor for Hancock County, at 1339 North Nain, 1. 0. be.
208, Findlay, Ohio 45849: and Thomas P. Kemp, Attorney for Robert Fe syrapu..
guardian-ad-liten, «t 301 East Main Cross Strect, Finclay, Ohic 45S<‘ by
regular United States mail this 16th day of December, 1950.
‘ -
‘ ace
Ar Goad GF =; ° wi
eee
——s
a
Attorney for the Appeilarts
IN THE COURT OF APPEALS OF THE THIRD APPELLATE JVDICLIAL DISIRICT OF ONTO
HANCOCK COLRIS
COURT
In Re: JOHNNY STEVEN HeLLeDEC 1 7 1980
reves ttl o00
_HANCOC), COU Tien
[FILED |
Fase Nv. 5-78-30
‘OTICE OF APPEAL TO THE SUPREME
OURT OF THE UNITED STATES
*
_
+4
F
Notice is hereby given that Karen and Sarl Heller, the natura!
parents of Johnny Steven Heller, appellants, hereby appeal to The
Supreme Court of the United States from the final judement of The ‘Supreme
Court of the State of Ohio dismissing their appeal for lac’: of a substantial
constitutionaj question entered in this matter on September 26, 19).
This arveal is taken pursuart to 28
.
a beark
Copies of the foregoing Necice of Appeal were
U.S.C. §1257(2).
Robin \. Kenned:
Attorney for the Appeile:.s
Callege of Law Legal C!
Th: University of
280] Nest Gancrott
Tolede, Ohi»
419/537-29.
a
+a
Si.
su. o
ot ves
45452
@
'
OF SERN in
servec upen Ste.
porch ? tie
C. Betts, Assistant lrosecutor for Hancoca County, cz 1330
Pr. O. Box 208, Findlay. Ohic 455.0; and Tnomas ?. herp, Attorney :
Robert F. Spruguc, euarcian-ad-iitem, at 39] Eas: Nain Cross Stree
Findlay, Ohio 45840 b&b regular United States rail tiis loth cay ¢
19&';.
Decemoder,
4a.
Kobin MN. Kenneds
Attorne. tor the Aprellioa
Whi
| a
2/gt%
y
oe eee F
et
ais
THE STATE OF OO, |
" "the eG Ve on eT:
pM tal Sh3 75
APPENDIX D
79-10-13 <je «—- Banecry Seotwens, Pusiienens, Seamoritie, Owo
TILE SUPREME COURT OF OHIO
«
19.80. reERA
To wit :........ sepcember,.26 1980
City of Columbus.
In re Johnny Steven Heller. No...80-1087......
APPEAL FROM TITE COURT OF
on APPEALS
%
%, | POF oo eovneeee. HANCOCK > Voge
This cause, here on appeal as of right from the Court of Appeals for........... on
eseeeee HONCOCK----0--0e00 County, was considered in the manner prescribed by law, and,
no motiun to dismiss such appeal having been filed, the Court sua sponte dismisses
the appcal for the reason that no substantial constilutional question exists herein.
‘i vw
re,
Vee 4 ‘,
Se w ©
\“
~*~
oi eS ae?
It is further ordered that a copy of this entry be certified to
the Clerk of the Court of Appeals for......... Hancock.......... jeveibeliniabed County for entry.
I, Ti:omas I. Sfartzman, 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
RE ace NG cdiesnstneprieinten ES
ry A PO TRA WRIT ELOY SOY ATH
HANCOCK COUNTY
IN THE MATTER OF BARBY BOY HELLER,
ALLEGED DEPENDENT CHILI
po th
This cause came
argued in appellants’ bricf.
hereby is, remanded to that court
trial judge.
haceptions saved on
in
rc)
.
os"
> [3 Nee
a
.
Rule 27 or any other provision of
(KARL AND KAREN sare bi 198 ay )
COURT oF APPEALS
JUN 4 jE89
_ CHARLES 1: OMAN.
TRK
MANCOCK COWS 1. ,0¥1g
to aes upon the record, the briefs and oral
£. °
CASE NUMBER 5-78-30
appeal
IN THE COURS OF APPEALS OF THE THIRD APPELLATE JUDICIAL DISTRICT OF OO
ay Jt
f £3
and
of eu
pon consideration the Court find no error prejudicial
for caccution.
low.
that the Clerk of this Court furnisi,
filed concurrently with this journal
ua copy
1 ~~
¥
was submitted
_
arguments &
3
# 5.
to the appellants in any of the particulars assigned and
It is therefore ORDERED, ADJUDGED and DECRELD that the
judgment of the Juvenile Division, Court of Common Pleas of
Hancock County be, and the same hereby is, affirmed at the
costs of the appellants and that the cause be, and the same
It 38S further
ORDERED that the Clerk of this Court certify a copy of this
judgment to that court as tic mandate prescribed by Appellate
lt a8 further ORDERED
of
un)
opinion
entry directly to the
>
CHa. <ALL
te Nate ** “= Bee xX _ a
atin! Ss ,s
(KERNS, J., of the Second Appellote Pastrict sitting by assignment
SIN THE COURT OF APPEALS OF THE THIRD APPELLATE JUDICIAL
ED
IN THE MATTER OF BABY BOY HELLER, ALLIEG
ELLER,
DEPENDENT CHILD. (EARL AND KAREN UI
APPELLANTS.)
rt
1.1
MEMORANDUM OPINION
(CASE NUMBER S-78-30 - Decided June 4, 1980) 4
Rw
+ Ae Court of Appeals for Hancock County. ~~.
& *.
MR. ROBIN M. KENNEDY, counsel for Appellants. a
heisens. FIRMIN & SPRAGUE, Mr. Thomas P. Kemp,
of counse), attorney for Robert F. Sprague,
Guardian Ad Litem for Johnny Steven Heller.
MR. STEPHEN C. BLTTS, Assistant Prosecuting
Attorney, for State of Ohio.
GUERNSEY, P.J.
in the Juvenile Division, Court of Common Pleas of tlancock
County, by a representative of the Hancock County Children's
Services Board, alleging Raby Koy Heller, who was born the
day before, to be a dependent child “in that he lacks proper
cure and support by reason of the mental condition of his
ete and the physical condition of his father, to-wit: his
ANOVAS»
4. Cather in in Lima State Hospital, Lima, Ohio, and his mother
% i 4 ° .
2 cmentally incapable of taking cure of suid child," the said
Nv iw ;
- © sf ey
\ S ‘ oe ro r ;
- \e oy
7a.
On January 16, 1976, a complaint was filed
DISTRICT OF ONTO
i>
—
—_-
Board praying for his permanent care and custody. On
February 24, 1976, the complaint was amended so that
the allegation of dependency was changed to read: “in
that he lacks pronver cure and support by reason of the
physical condition of his father and mother, to-wit:
his father is in Lima State tlospital, Lima, Ohio, and
his mother is in the Toledo Mental) Health Center, Toledo,
= £ .
€; After hearing, -_ trial court entered a ee
Torin 14, 1976, that he is a dependent child for the
reason that as of the, date of the complaint and the filing
of the entry his father is a patient in the Lima State
Hospital and his mother a paticnt at the Toledo Health
Center. The court did not grant permanent custody as
prayed for but ordered instead that temporary custody
“remain with the Hancock County Children Services.”
On April 17, 1978, a motion was filed by an assistant
prosecuting attorney of Hancock County as counsel for the
Hancock County Children Services Board reading Im its entirety
as follows:
“HMancock County Children Services Board hereby
moves the Court to grant it permanent custody of
Johnny Steven Heller.”
On May 23, 1978, this motion was amended by adding thereto
in bold type @ notice that “PERMANLAT CUSTODY, TI GRANTED, BOULD
CAUSE YOU TO LOSE ALL PARENTAL RIGHTS TO SAID CHILD, AND SAID
CHILD COULD BE PLACED WITH AN APPROPRIATE AGENCY FOR
ADOPTION." Also addcd to the motion document wus a
memorandum reading as follows: ’
“It is in the best interest of the child
for him to be placed in a permanent adoptive
home. The parents, while alleging on the date
of the last hearing in this matter that they
were capable of providing a home for said
child, have made no attempt to obtain custody
of said child and they have not provided any
support for said child." e .
gs
% On July 21, 1978, the parents of the child move -téd dismiss
, ne a.
efcomplaint of January 16, 1977, and the motion of April 17,
1978, for various procedural reasons. This motion to dismiss
was overruled by implication on October 23, 1978, when, after
hearing, the trial court, reciting that the child had been
found dependent on March 30, 1978, entered:
“ *# * * the Court finds, by clear and
convincing evidence, that Johnny Steven Heller
is, at this time, a dependent child, and ORDERS,
in the best interest of the child, that the
permanent custody of Johnny Steven Heller be
granted to Hancock County Children Services
Board for purposes of adoption.”
On August 15, 1978, at the close of the trial court orally
granted the motion of counsel for the children services board
“to amend the amended motion and the memorandum attached thereto
and in order to conform to the evidence and indicate that we
would add that the child lacks proper care or support by rewson
of the mental or physical condition of the parents and the child's
environment or condition is such as to warrant the State in the
Interest of the child in assuming his Suardianship, and
order assigned.
"TV.
dh “4 :
"Under
complaint containing a prayer requesting
permanent custody of minor children,
sufficiently apprising the parents
of the grounds upon which tie order ts
the reasons are that the mental and emotional conditions as
evidenced by the psychological reports and other evidence
introduced here today indicate that the parents are unable
to care for the special needs of this child and to care for
the child properly."
from the order of permanent custody the parents of the
subject child have appealed and assign error of the trial
court in five particulars which we will consider out of the
The Amended Motion of May 23, 1978. >
Upen Which the Hearing Kelow Proceedege g
be. .ed ta Recite Any Statutory or
Factual Basis Upon Which the Parents’
Rights Would be Divested in Violation
of Juv. R. 10(R)(1) and the Due Process
Clause of the Fourteenth Amendment.
The Trial Court's Amendment of the
Amended Motion.to Include Statutory
References After the Evigentiary
Heuring Violates Juv. R. 22."
In re Fassinger, 42 Ohio St. 2d 505, prescribes:
R.C. 2181.353, the filing of &
to be based, and the service of summons
| upon the parents, explaining that the
granting of such an order permanently
; divests them of their parental riyhts,
are
for
i for
prerequisite to a valid adjudication
the purpose of obtaining an order
permanent custody divesting parental
rights.”
Appellants
f
of the court by
~
make no claim oun this court of error, if any,
of the trial court in invoking the continuing jurisdiction
motion rather than by complaint, of improper
service of summons, or of the telescoping of the adjudicatory
10a.
and dispositional hearings, so the only issues raised
by the fourth and fifth assignments of error relate
to the sufficiency of the allegations of the amended
motion of May 23, 1978, as further amended on oral
motion by oral order of the trial court at the close
of all the evidence.
It is apparent from a review of the Fassi ger case,
supra, that the language of the amended motion of 7 i
$, 1978, without consideration of the memorandum tg the
: Xion, is insufficient. It is also apparent that the
language of the first sentence of the memorandum adds
nothing to the sufficiency of the motion. However, the
last sentence alleges specific facts relating to the sub-
ject child evidencing dependency within the definition
of R.C. 2151.04(i).
In view of the general objectives of juvenile court
legislation and the provisions of Juvenile Rule 1(B) (2)
requiring that these procedural rules be liberally interpreted
and construed so as to effectuate the purpose of securing
simplicity in procedure, we are of the opinion that it is
proper to consider the memorandum appearing as part of the
motion document as part of the motion to determine whether
appropriate allegations are made.
The allegations of the motion, thus considered, were
effective to invoke the jurisdiction of the trial court and
lle.
sufficient to give duc process notice to the parents
of the claims and proof which would be presented in
court so that they could effectively respond thereto.
The fourth assignment of crror is without merit.
The fifth assignment of error is merely an extension
of the fourth. Evidence was adduced on the complaint,
without objection by the parents, as to areas of depend-
ency not included within the allegations of the motign,
ekifically the area of dependency defined by R.C. é
; fe04(C). Indeed, the parents adduced similar evidenec,
and joined in the admission into evidence of one exhibit,
i.e., the deposition of Ir. Craenin, which related primarily
to the need for specialized care for the juvenile and to
the parent's inability to provide same.
Juvenile Rule 22(8) permits the amendment of any
pleading after the commencement of the adjudicatory hearing
upon order of the court if the interests of justice require.
Subdivision (A) of the same rule defines pleadings as the
complaint and the answer. A properly framed motion invoking
the continuing jurisdiction of the juvenile court remaining
to it after the making of a temporary commitment order to
change such order to a permanent commitment order is in legal
equivalence a Complaint subject to amendment umler this rule.
Because of the interest of the State of Ohio jn juvenile
cases in the welfare and best interests of the child ato as
ee ee eee 7
a er er ~
EE — ea EE ee + - eo —
more important than it is in ordinary civil cases that
there be leniency in the amendment of the complaint so
that through inadvertence or oversight, or for the want
of the right to amend, a child is not left in, or placed
in, an environment not justified by the facts properly
before the trial court. :
Moreover, the rule provides that, where requested,
a party shall be granted a reasonable time in which to
d to an amendment. The appellant parents made
bh request and have waived any prejudicial error
which might have occurred by reason of the granting of
the motion.
The fifth assignment of ecrror is, therefore, without
merit.
"Il, The Failure of the Court Below, in Applying
the Standards of R.C. Sees. 2IST.O1(A) (COC)
and 2151.353, to Require a Showing of Real
and Substantial Harm to the Child As A
PreRequisite to Termination of Parental Rights
and the Failure to Require the State to vursuc
Less Drastic Alternatives Prior to Resorting
to Termination of Parental Rights Deprived
Appellants of Liberty Without Due Process
as Required by the bourtecnth Amendment to
the United States Constitution.
"A. The Residual Parental Rights at Stuke in
a Vepositional [sic] Phase are kanked
as Fundamental and lVrotected by the Due
Process Clause of the Fourteenth Amendment.
"Bh. The State barbed to Pahcust Less Drasttie
Measures to Secure the Welfare or Best
Interests of the Child Prior to lermination.
~~
13a.
"GC, The Court Erred in Failing to Require
the State to Not only Show that the
Child Is Disadvantaged but Also to
Show that the Child is Being Harmed
in a Real and Substantial Way."
The thrust of this assignment of error in its various
branches is the claim that following the determination by
the trial court on April 14, 1976, that the subject child
"remain" in the temporary custody of the Hancock County
Children Services, it was incumbent upon that agengy $0
rovide training, treatment and assistance to the grents
-@ a
wF.such character as to qualify them to regain all of
the rights of custody of the said child, und that to
relieve them of any residual custodial rights without
exhausting efforts to so provide deprived the parents of
their constitutional rights of due process.
Such theory was brought to the attention of the trial
court in the parents’ motion to dismiss filed shortly before
trial but related to a claim that the complaint must reflect
that the state has “eahausted all less restrictive alter-
natives to complete termination.” Such theory was, however,
advanced by counsel] for the parents during trial as a theory
of proof but not placed specifically ona constitutional
due process basis in his final argument to the court.
Nevertheless, the theory, or issuc, was before the trial
court at least on an abstract basis as it applied to the
dispositional phase of the trial court's proceeding and 1s
l4éa.
argued in this Court with respect to the same application.
Appellants’ counse) relics specifically on two federal
cases, Stanicy v. Illinois, 405 U.S. 045 (1972), and
Roe v. Conn, 417 F. Supp. 769 (M.M. Ala. 1970). Neither
of these cases are exactly in point or in full support
of appellants' conclusions. Both were subject to considcration,
and the former was specifically considered, by Chief Justice
Celebrezze in his opinion in In re Cunningham, 59 -— sehe Sa
Zu. i100. tn that case the Chief Justice said at pagg 105:
-& sae «
"A recognition of*the importance of
cc" maintaining a cohesive family unit, when-
ever possible, is found in R.C. 2151.01.
The statute states that the provisions
of R.C. Chapter 2151 should be liberally
construcd and interpreted to effectuate
the purpose of ‘provid[ing) for the care,
protection, and mental and physical develop-
ment of children.’ (K.C. 2151.01]A].)
Division (C) indicates further that the
foregoing purpose should be achieved 'when-
ever possible, in a family environment,
separating the child from its parents
only when necessary for his welfare or
in the interests of public safety.’
(Emphasis added. )
"Although the termination of the rights
of a natural parent should be an alternative
of ‘last resort,’ such an catreme disposition
is nevertheless expressly sanctioned by the
forcgoiny when it is necessary for the ‘welfare’
of the child. Therefore, with the purposes
outlined in RoC. 2151.0) in mind, we conclude
that an award of permanent custody, pursuant to
R.C. 2251.353(P), is anly justified when it is
in the ‘best toterests' ot the child. Such an
interpretation of the statute is consistent
with the time-honored precedent in this state
that the ‘best anterests' of the child are the
primary consideration, rm questions of possession
or custody of children, * * *
15a.
me 2 EEE TE
-_——
—-
— ———— =e
"Thus the fundamental or primary inquiry
: at the dispositional phase of these juvenile
| procecdings is not whether the parents of a
* previously adjudicated 'dependent' child
: are cither fit or unfit. The mere fact that
a natural parent is fit, though it is certainly
one factor that may cnter into judicial
consideration, docs not automatically entitle
the natural parent to custody of his child
since the best interests and welfare of
that child are of paramount importance.
* * * Parental interests must be subordinated
to the child's interest in determining an
appropriate disposition of any petition to
terminate parental rights. * * *
eS
aoe e em
; "As it has been perceptively noted ¢lse- bt,
‘where, ‘it is plain that the natural rights i
.of a parent are not absolute, but are always ;
subject to the ultimate welfare of the child,
which is the polestar or controlling principle }
to be observed.’ * * *
Applying both the Juvenile Code and Rules together with
the rationale expressed by Chief Justice’ Celebrezze, and the A
holding in the Cunningham case, we find that the grounds sct
" ; forth in the subordinate branches of this assignment of error
are invalid and the actions thercin claimed are not required
by Fourteenth Amendment due process.
Highlighting the evidence before the trial court as to the
best interests of the subject child was the undisputed depositional
testimony of Dr. Cracnen, a cardiac specialist, that it had been
determined that thé’ thite had openings in his heart between its
tho upper chambers and its two lower chambers with a narrowing
of the pathway to the lunges, requiring Open heart surgery. The
doctor further testified
“ee 8 fT Cannot predict what's gomp to happen
| \ L
in the future, It as very possible that, though, we'd)
‘ l6a.
|
attempt to close that lower hole. It will
reopen with time. It is possible that the
thickening of that muscle comes back and
that he might need another operation later
on, later. I hope not. This is not what
happens most of the time, but that danger
is definitely there; and he will need to
be follqwed regularly and he definitely
will d to be recatheterized five years
from now, and then maybe ten years from
now. e's going to be well, if things ;
go well, growing up, I hope, if there
is not complications. There are many
complications possible, which we haven't
touched, which would influence what's
going to happen to him after the operation.
" * * * jie needs to be followed; he needs
to be followed here cardiacwise until he's an
adult. We wil) definitely require medication
after the operation, for six months, a year.
And how long, I do not know. Kut six months
to a year is a minimum.
“e.@. 2 8
" @ & *® If he does not take his medication]
He may dic. He'll come back sich. He will go
into conrpestive heart failure. Digoxin is a
good drug. It's a dangerous drug. Too much and
little will be dangerous. Too much, like a double
dose a couple times in a row could cause a block.
I mean, could lower his heart rate enought to
hecome ineffective for his size, which could result
in death if not treated -- sometimes with treatment.
If he did not pet his medication, his heart would
degencrate, meaning it would get too wenk to do
the work it needs to do, and of course that also
could result in death; and it's not always ciasy
once they get into the deyeneration, to get them
out of it. 1 would be extremely upset if anything
happened. lf try to impress to parents very much
that they have to be relipious about giving the
medicine. These hids need tt.
aoe CR
" @ * *@ hot he will never be able to do any
heavy work. 1 will not allow him to compete in
oe err yee
“
heavy sports, like bashethall, foothall. No.”
It is also undisputed that the open heart: surgery
has taken place, that the child has been recuperating
in the care of foster parents whose vice, if any, is
overprotection of the child rather than the contrary.
It is undisputed from the testimony of a practicing
psychologist that both of the natural parents have been
hospitalized from time to time for mental iene that
Bhe father is mentally retarded in the moderate ranget
Gytndent on his wife, and manifests a volatile Apes
with a likelihood of striking out when under tension.
The mother is not mentally retarded but the results of
various intelligent quotient tests place her in the dull
normal range of intelligence.
' There are allusions in the record and statments of
appellants’ counsel during oral argument to an episode
during the pregnancy of the mother when the father tied
the mother to a railroad trestle, where she remained for
two days, he bringing food and water to her. It does not
appear whether he or others caused the termination of this
episode.
In that there is no indication that the parents, who
are living in a small house trailer, have any thtention or
ability to live elsewhere or have any intention to live
separately the best interests of the child must be determined
182.
——
—
-
-=s.-7- eer owwro-oo ee re er Eee
ome ae PY +
be :
. in consideration that such home and the parents jointly
-+ ~a-
- constitute the environment to which the child would go
if returned to tnem. In this connection it should be
observed, however, that we find no motion of the parents
pending before the trial court to terminate the temporary
custody of the children services board, that they have not
actively sought his custody, or significant visitation,
and that the cause was before the trial court and had to
xt
be decided only on the board's motion to make its bu sdouy
s
‘oF him permanent. 82d.
‘> It appears from the cited highlighted evidence, as
well as from the other evidence in the record, that there
. was sufficient evidence before the trial court to support
its determinations in favor of permanent custody.
We find the first assignment of error in all of its
"IL. The Standard of Dependency Applicd
in This Case and Defined in R.C.
: Sec. 2151.04(K8) and (C), and 2151.05
are Vague in Violation of the bourtcenth ‘
H
branches without merit. |
Amendment."
i This assignment of crror, as aruged, is again a due
process Cluim, i.e., that the stumdards ure so vague as
not to give fair warning to the parents as to what is or
is not prohibited. In view of the fact that it is required
that the complaint “allege the particular facts upon which
the allegation of delinquency, unruliness, abuse, neglect,
‘=
19a.
dependency, or juvenile trattic offender is based,”
to give the parents notice of the specifics of the
charge, we find no due process vagueness of the standard
of dependency, and further find this assignment of error
without merit.
"LL]. The Standard of ‘Best Interest' :
of the Child Employed by the i
Court is Vague in Violation of .
the Due Process Clause of the
Fourteenth Amendment."
= The appellants argue that this “standard"™ fails to
~
prise them of prohibited conduct or of standards by a ;
which they can regulate their activities so as not to risk )
the termination of their rights. We find this argument
wholly without merit. ‘Kest interests" is not a standard
|
of conduct but is the primary consideration in determining |
whether an award of permanent custody is justified pursuant
to R.C. 21251.3553()). In re Cunningham, eupra. "Best
interests" is not a consideration in the adjudicatory
phase in determining whether or not the child has achieved
the status of a “dependent child” as defined by R.C, 2151.04.
We find this assignment of error wholly without merit.
Having found no error prejudicial to the appellant parents
in any of the particulars assigned and argued, the judgment
must be affirmed.
r Hudymenul
MELLUR and KERNS, J.-F. COteur,
(KLRNS, J., of the Secon Appellate District sitting by ussignment
in the Third Appellate Pastriet.)
-|4-
20a.
IN THE COURT OF APPEALS OF THE TH RD APPELLATE JUDICIAL DISTRICT OF OH10
fen
se ek
. ’ bd
iE ’ JIANCOCK COUNTY
—_——
ee iw THE MATTER OF BABY BOY IELLER] be
T
5-78-30
MINUTES
e*
nk
Ss Inthe above entitled action, enter the following minutes on the Court
hcp Pa,
ef Appeals docket as of June 4 . 19 go _, and immediately
® give notice of these minutes to counsel of record in this case by mailing to
*» each counsel of record a copy thereof (App. R. 22(B)) together with a copy of
*\ the journal entry of judgment filed herewith (App. R. 30(A)):
oS
a JUDGMENT AFFIRMED. SEE JOURNAL ENTRY.
?°:" (MEMORANDUM) OPINION FILED.
aera e
\ ee
t=) ~~ 2. oe
i y “Sines .
» KERNS, J., of the Second Appellate District sitting by assignment
‘in the Third Appellate District.)
* (This constituting the announcement of the court's decision and a journal entry
| of judgment being filed by the court with the clerk for journalization herewith,
/ any application for reconsideration must be filed within ten days. Appellate
> Rule 26. In the event that the application for reconsideration is granted. the
+ judgment so entered will be vacated should such action become appropriate.)
’
¥
.
,
Al
Pr Sb
7e
—_
==
———ee ee ee ee
Oe 4
im THL MATIER OF 78 0CT23 Pd: '6 CASE WO. 7e-042
~ JOMINY STCVEN HELLER,
, aume MEGLECTEO AND tL An i toe OEE
» OEPENUENT CHILO. JUOGA MY Luter
This matter care on for hearing on August 15, 1973 un the Motion filed:
ly Hancock County Children Services Board for the perrarent cutody of Joheny i
aA ah
! Steven Heller, said child having been found dependent on March 1. 1976 by
| os Court.
£ Upon hearing the sworn testimony and considering the report of
h]
re
Ba Ge
ert D. Roberts, Ph.D... the Guardian Ad Litem’s witness, and the sworn testi-
any of the witnesses presented on behalf of Hancoct County Caildren Services
convincing evidence, that Johnny Steven Heller is, at this true, a detendent
child, and ORDERS, in the best interest of the child, that the prrewnent
Custody of Johnny Steven Helle be granted to Hancocs County Children Services
Board for purposes of adoption.
(See Hemorandus Opinion of Judge Allen tt. Davis.)
I
|
Baked and the parents of Johnny Steven Heller. tae Court finds, by cleur end |
|
i
;
'
!
'
'
APPROVED BY: |
I
!
ie * ~ Mt foam
1 ei i Kennedy |
Attorney for. Lar) Stanley Heller and |
Karen a Heller }
!
i
i > a i, de o Lees °g .
> Sprague
| a : pot Te Ad Litee for nny Steven Heller
’
'
'
y.
lg i A Chee... |
” Slephen cy telis
| Assistant Prosecuting Attorney for }
, \ Altorwy for Hancack County Children
i
bw
‘ f 4 vee 4 i
4 ' '
|
UT |
.
Hancack County, Ohio
j Services Boerd fa. frees
22a.
BS ae ) APPENDIX I
1 TE: COUT OF CPM PLEAS CY HANDOEK GUNrY, Ce
ere er” et ae =
PATNILE, DIVISION
i TE MATTIR oF 7 SEV MWR 6, 1978
SOO SIEVIK 1ER ia: CA ND, Jo 2 a
ALSOP MLE & DEPINVENT OULD MEMORANTUT OPINION
eee te ee Ee eee ee hhh ee eee
Johny Steven Ueller sus fmm! to be denendent: ina hearing hehd in this Court
on March 30, 1976. As a result of that Cinding he was laced in the temporary’ custody
of Mancock County Qi Iddren Services hoard. te has remsinged in theire tewmorary custdy
pis date and tas been olaced in foster care by that agency ond has never lived.
— wperents, Karen Ice lieller and Earl Stanicy Ileller, since the date of :
Om July 1, 1977, Children Services filed an Aacriled Motion with the Court praying
that it be granted! wermancnt custody of the child. Vollowing several hearings dealing
: with erocedural matters, Children Services’ Motion for lenmincnt Cuxtolv came on for
: hearing on the merits on August 15, 1978.
¥ The Court heard mecraus witnesses resented by Children Services, the narents,
. and the guardian ed litem, which mrimrily centered on the mresent status of the
marents, Karen Lee Weller and Karl Stanley licller.
From the evidence prescnted, the Court finds that Johnny ticlice is a mile child,
24 years of age, who was taken from the natural nuarents at birth, amt has never lived
with his natural marents. Shortly after the child was born, the father was confined
in the Lima State tlospital for testing, nursuant to un ériler of the thnecack County
Common Pleas Court, amd the mother sas a naticnt at the Toledo Mental llealth Center.
Presently, Mr. ani Mrs. Heller are living torether as lushend ant wife in a house
trailer in Toledo, Shio. Neither mrent is cmploved, and both are relying upon sub)
assistance for their swmort. Mrs. Heller has been dingnosed as oncrating in-the du)l
noiral range of intellectual cameity, aml the father has been ewsloited a being in
the ecntally defer tive range, minelesting wectelidbly am catromety wolatele loweer,
These facts represent just a nortion of the evink me received by the Court in
thas cee, best che lay of berec eoert oom the chee cee tea best tw the fee is of thew
23a.
IN THE MATTER OF Vaye 2
JTUNNY STVVEN LI R
ALITED SQCTED F, DEPENDENT QUID
Minton
hushand could be granted the anmortimity on a trial husis to saise her child.
" continue to live with him jn the future.
County Children Services Board for the nurvese of udortive elicement.
The Court wishes to express its thanks to all coumsel for their diligent
ting it to all counsel and the Court for anmroval.
ALLAN Hi. DAVIS
Judge
Common Pleas Court
Juvenile Division
Ibncock County, Ohio
' Onn Mee
' Septemte (51996
.
*. 24a .
PCCM MORO eee eee eee eee eee Ome eee ewer eee eee eee ee 2 (eee eee eee
réurn him to the custody of his natural parents, aml the tikelihent of doing so ©
i oy is dim, for these reasons, the Court comeliates that the heat interest
t hild would be served by nlacing him in the nerranent custaly ef the Ibncuck
facts, the Court would conclude that Mrs. Heller Living hy berselt, anual Crom her
llwever,
it would anpear that Pirs. Heller intents to remin married to her Wustend, cml would
Based on the shove facts, aml nirticularly the revort ant testimony offered by
Robert D. Roberts, Ph.D., witness for the guurdian ad litem ( sce gustdian ad item
Exhibit No. 1), the Court finds that it is presently not in the child's best anenten
attention ani active advocacy in this difficwlt case. Counsel for Ibyncock County
Children Services Ayard to prenare an Fntry in conformity with this ovinion, submit-
g APPENDIX J i
IN THE COURT OF COMMON PLEAS OF HANCOCK COUNTY, Ow 10
JUVENILE COURT
IN THE MATTER OF " "CASE NO. 76-082
JOHNNY STEVEN WELLER,
ALLEGED NEGLECTED AnD
DEPENDENT CHILD. AMENDED. MOTION
Hancock County Children Services Board hereby moves the Court to
i
grant it permanent custody of Johnny Steven Heller. ,
NOTICE: PERMANENT CUSTODY, IF GRANTED, WOULD CAUSE YOU TO LOSE ALL?
PARENTAL RIGHTS TO SAID CHILD, AND SAID CHILD COULD BE PLACED WITH AN APPRO-
gay AGENCY FOR ADOPTION,
/ h—- Cis ” a
4. a
Stephek C. Betts
Assistant Prosecuting Attorney for
Hancock County, Ohio
Attorney for Hancock County Children
Services Board
NEMORANDUM
It is im the best interest of the child for him to be placed ina
permanent adoptive home. The parents, while alleging on the date of the last
hearing in this matter that they were capable of providing a heme for said '
child, have made no attempt to obtain custody of said child and they have not
provided any support for said child. |
» C 4 |
Ain |
Bea ans i... See ewe 30
Assistant Prosecuting Attorney for |!
Hancock County, Ohio
Attorney for Wancock County Children
Services Boerd
PROOF OF SERVICE
I hereby certify that a copy of the foregoing Amended Motion and
Memorandum was this day forwarded by United States First Class Mail, postage
EMO OF PAGE Che. AMENDED MOTION AND MCMORANOUM, JOHNNY STEVEN HELLER, CASE NC.
76-042, CONTINUED TO PAGE TWO ATTACHED. ;
«, APPENDIX K ch
IN THE COURT OF Cornion Leas OF HANCOCK CoULTY, oir
JUVENILE DIVISION
1D py Ail: 2
In Re: Case No. 76-047
JOHNNY STEVEN HELZER :. ‘+e MOTION TO pIteras
nit +t yee P
: Robin M. Kennedy ** 94529
Attorney for Earl Stanley
3 Heller and Karen Lee Heller
Mental Health Law Clinic
930 South Detroit Avenue
Toledo, Dhio 43614
"19/321-8217 cr 8228
The mother, Karen Lee Heller and the father, “Earl Stanley
Heller, move this court to dismiss the complaint of January 16,
1977, and the motion of April 17, 1978, for the following reasens:
+ The complaint and motion fail to allege either the
“particular” or the “essential” facts upon which the allegations®
of dependency are based in violation of Onin Revised Code $2151.27
and Juv. R. 10(B)(1) and the Fourteenth amendment to the United
States Constitution.
2. The parents have not been provided "noticw by summons”
nor were the parents provided, along with the copy of the
motion of April 17, 1978, an explanation that the eranting of
permanent custody permanently divests the parents of their
parental rights and privileges, in violation of Qn-o Revised Cose
$2151.28(F).
3. Ohio Revised Code $2151.04(B) pursuant to which this
action is commenced, is vague and overly broad ang conce-yuently
the pacents, Karen Lee Heller and Earl Stanley Heller, may be
Jeprived of the custody of their ehild in violation of the Due
Process Clause of the Fourteenth Amendment cf the Constitution
of the United States.
4, The standard of proof required by dive RR. 2908) C4)
in dependency proceedings permits a permanent te.mination of
parental rights based upon @ standard less than proof devon a
reasonable doubt in violation of tre Due Process Claure of tne
Fourteenth Amendment of the Constitution of the United States.
Wherefore, the parents move this court to dismiss the
complaint in tnis action and to declare Oric Povired Cone
26a.
———
ant ai, Ae Mal i a
—?)_ 7 - - a
-_<————- +
$2151.04(B) and Juv. R. 29(E)(4) unconctitutional as @ viclution
‘of the Fourteenth Amendment to the Constitution of tne United
Sor
States. ‘ j
NSF dake
bin M, Keunesuy
Attorney for Earl séahnss 1]
Heller anJ “aren Lee Helier
PROOF OF SERVICE
This is to certify that a copy of the forrecoins, motion and
attached memorandum in support thereof has been served on
- Steven Wetts, Assistant Prosecutor for Hancock County at his
“orfice at 1330 North Main, P.O. Box 208, Findlay, Unio %5840 and
oo aes ose oe ee ee aT
Robert F. Sprague, Guardian Ad Litem, at 301 East Hain Cross,
Pindlay, Ohio 45840 by ordinary United States mail this got f.
day of July, 1978.
- YM . !
° "n ennc i 7
Attorney for Kirt Stanley
Heller and Karen Leo leller
Mental Health Law Clinic
920 South Detroi* Avenue
Toledo, Ohio 4%3614
419/381-8217 or 6218
27a.
rt
“ ‘
bi i
} i
ng |
APPENDIX L . :
MEMORAGOUM It SUPPORT OF THD MUTT to prse ss
I. THE COMPLAINT AND THE MOTIC:; FAIL 79
ALTECE EIT: THE PARTICULAR OR Pane
EXSTUITTAT Pato UNTh WTC eT Ai. 9 el omy
OF Delrin: wcy “T BACEL Th VT m1 ca
Jia he aM Junius ve et ‘ ee TT
a BUNTY AO THE THOTT Emm La
8 TED SIATES SChot(TUT1O..
ie
A. The Bare Allegation that a tothe- |:
Mentally 211 is Insuffictent to Site
a Claim of Dependency Under Ohio Revised
Code $2151.04, ea ie eT
*
Ohio Revised Code §2151.27 states that whenever there is an
SS ewe een
allegaticn that a particular child ir “dependent” the conplaint “4
must allege the particular facts upon which the Allegation of..
dependency...is based. The same requirement js re;eated in Juv.
R. 10(B)(1) which provides that the complaint sholl: "Strate in
’
ordinary and concise language the essential facts which tring
the proceeding within the jurisdicticn of the court.... “ Mere
conclusory allegations of dependency Jo not constitute ar action
upon which relief may te granted. In re Wurnt, 46 Chio St. 37€
348 N.E.24 727.
Karen Lee Heller has been accused of being an improper !
mother because of her "mental condition" The: mere alleration i
that a mother is mentally 111 4s insufficient as a rounds fer e
finding 0% dependency under Ohio Revised Core $2251.04" wh
SSS i Ses eee:
i) me
there is ne ‘allegation as to the social, mora] or econenmic fitness
“f the parent. In re Masters, 165 Oto St. $93 (1955). In
actuality Jonnny Steven Heller was removed fron hin motner's care
at the instant of birth, In her own words, Karen Lee Heller
has never been given on opportunity to even feed her son. A*
the time of her son's birth, Mrs. Meller was net a menta.
hospital, mor in there any allegation that nhe wae ments) 41).
The complairt merely emplovs the Vacur aller
Heller's rental “comiition” was such as te render her an innreper
parent to her son, The complaint and the motion £12
,
to state exactly what is Karen Heller's mental cordition, ner
(IG MEM Sin Sake eee LM eee
yi hs
|
i]
‘
4
}
}
‘
= ee 2 on: a. Ss SS ied itetadin Arteta
2 ee ee
why the mental condition Ils such as to render her con a “Aepene
gent” child pursuant to Ohi» Revised (de 12151.04.
ed
Therefore, because the State falls to specify exactly what
this mental condition is and why it renders Mrs. Helis * an unfit
parent, the complaint and motion must be dismisse4.
B. The Complaint Should he Dismissed As
It Foils to Allee that the State lias
Exhausted all Less Restrictive Alterna-
tives to Corplete Termination, 4n
Essential Fact Which Mist he Pleaded
Pursuant to Ohio Revir7d Code $2151.27
and Juv. R. TIT.
From the day after Johnny Steven 4eller was born and up
until the present day, the Hancock County Childrens Services :
Board has sought an order from this court that would grant the
State permanent custody of the child, thereb, causine the natural
mother to lose all parental rights to said chile. in Aiszrar v.
———_ a
District Court of Polk City, Iowa, 40% F.Supp. 10, 24 (U.5.9.C,
S.D. Iowa 1975) the court described the complete termination of }
parental rights as a “drastic, final step...(which) must enly
occur where more harm. is likely to befall the chiid by staying
with his parents than by being permanently separated from them."
In other words, the State must exhaust. all less restrictive
alternatives to compiete termination tefore the court can erder
it. This concept is based on two comocting interestr. The first
is the stete's interest to protect the welfare of its minors.
The Supreme Court has neld that the State has the rirht and outy
to protect minor children. Stanley v. Titinos:, be U.S. "5,645
:372). Sem also, Prince \. Massachuretts, Tel U.S. 1SF, 166
1944), The second competing interest is tne parent's wiht to
raise their children in an atmosphere free from covernmestal
interfereices. Pierce v. Society of Sisters, 268 w.5. SIC (3925)
and the fundamental rinnt of family intenrit.. SP yee we
1llinot:, supra. The rinht ef a purrnt to raise the ous. tren
which are born to them is the paramount interec? that unfentiad!
warrants deference except to a powerful coun’ ervatling istterest.
Stanley v. Illinois, rupra, at 651. The state's interest in
protecting its minor citirens, vis-%-vis complet. termination er
bf by pang ‘ y “f ety a sexs ‘ 4 WELT :
- ++ ree
7 \ ty brat ft es
™ es
Sal | '
29a.
%
2 we
ase ee 8 Oe Ore ee ee eee eee eee ee _ es
CG 7 ©
parental rights is such a powerful countervailing interes*, but
only when the State can show that it has exhausted 211) less re-
strictive alternatives. Ser Alsarar v. District Ceurt ef Tols%
City, Iowa, supra. This is the only sensible approach to be
undertaken lest we have a soriety which will tolerate-. tate inter-
ference to the extent that a paren* could face permanently losing
its child for a problem which is temporary in maturc. The ob-
vious intent of the Supreme Court is to preserve the parent-child
relationship until it appears that more harm will befall the
child by continuing the relationship than by permanently ter-
minating it. Alsagar, supra, at 24. Therefore, the fundarental
right of family integrity imposes on the State a duty to rey
exhaust a11 less restrictive alternatives. onie Revised Core
$2151.27 and Juv. R. 10(B)(1) requires tint the Stete allere
all the particular and essential facts upen which on alleration
of dependency is based. Because the Staite Ir requesting per-
manent custody as a result of the allejed dependency of the
child, an essential fact is that all less restrictive alternatives
to permanent custody have been exhausted. The exhcustion re-
quirement, being an essential fact, i> therefore required to be
pleaced in accordance with Ohio Revised CoJ~ $2151.27 an? Jar.
R. 1C(B}(1). A complaint which fails to include the essential
facts ¢ovs not properly invoke the jurisdiction of this court.
In_re Hunt, 46 0.S.2¢ 378 (1976).
The complaint, in this case merely states tha* “he chiie
is dependent because of the mental condition of tir mether ang
“a2 physical condition of his father. Them ir no aAlleratio,
watsoever, that the State how even tried any other: alternative
short of complete termination, Ict alone, exhaustion of all i
alternatives.
Accordingly the complain*t should be dismissed as it dors
not meet the reouirements of ® Pavised Cote $2151.27 and Juy.
=e ee —_—_
we
—
KH. 10(8)(1), in that it fats to allere wll the essential facts
upon which the complaint ins based.
—<_
° : 5. ; ©
AnD i. “Rreued pte
A. The Parentst Riyal to th: Compan onchts,
Care, Custody and Moanagersnt of vnete
Children Is Fundamental and Protected bey
the Due Process Clause of the Fourteeath
Amendment.
Deeply rooted in the tradittonal anid consetenes of the
American people are those liberties that are 20 Important as to
be ranked fundamental and descrving, of protection of the Dye
Precess Clause of the Fourtecnth Ameniment. to the United States
Constitution. Palko v. Connec.icul, 32 U.S. 319, 375 (1937)
- Reyer v. Nebraska, 262 U.S. 399 (1923); Skinner ¥. Ci lahoma,
U.S. 535 (1942); Plerce v. Soctety of Sisters, 265 U.S. £10
(1925). See also, Griswold v. Connecticut, 381 U.S, WI, 4B)-
485 (1965).
= meee
A parent's right to the Companionship and monuge-
' ment of his ebildren is one of those liberties) tbavins «+ basis
in natural law, around which evolved striet constituciena!
protections.
A rignt is determined to be fundamental by ranking, con-
stitutional rights within a “spectrun of importance”. Karr v.
Schmidt, 460 F.2d 609 (Sth Cir. 1972). As the Fifth Circuit
{ stated:
At one end of the spectrum are Great ltbertic:
' such as speech, relircion and asssciation
specifically guaranteed in the ill of Fich's,
Of equal importance are liberties such a. the
ricrt of marital privacy that are so funtemental
that, even in the absence of posttive commons
from the constitution, they may be vert rteted
only for compelling, state interest, Tid. at S14.)
The Suprere Court of the United States has frequently
emphasized the importance of th parent .' rirht te the companjoane-
ship, care, custody and manarcivnt of their ehildrer. hic
has teen deemed “essential”, Movie v. Metre, pers at 492,
and recepuired as one of the “ta ite Civil rirhs of even,’
Skinner vy, Oklahosi, sun wd “Par more proeious... than
te
property righ’s.” Nav iv. Amterces, WS US. §
_ CSO
GL 433, (vena.
*, 2m]
valet F ws v ‘a5
a+ by 35 bh re 1% :
f pik is ons Se, Tee SREP N
3la.
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ba ie
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>
. ) APPENDIX M
: 1X TUG Grurr OF anc nae OF — re aio ;
Sica DIVES TON | ‘
IG ARIA AG: 36
IN THE MATIER OF MARDI 5u, 1976
JONNY STEVEN 1N.LER Pri ee ee CASE NO. 76-042
ALLEGED DEPENDENT C11LD JOURNAL LXTRY
teed ee ee ae Sete eee ee eee eeee eee ee ee ed
This day came on to be heard an amended complaint filed by Barbara Russo,
caseworker for the Hancock County Children Services, alleging the above captioned
child to be depemient.
In attendance at said hearing were Robert F. Sprague, guurdiun od litem for
3 Johnny Steven Heller; Stanley Earl tleller, father of said child, accompanied by np
a F Gooure appointed attorncy, Robert B. Maming; Roger P. Sugarman, Attorney, who entered
¢ ‘is appearance on behalf of Karen Heller, mother of said child, (Charles Van
je
. ete ; legal intern, previously representing Mrs. Heller, having been relieved of his dutics
Fe x as counsel by order of this Court); Stephen C. Betts, Assistant Prosecuting Attomey, ,
A 4 i Tepresenting the iancock County Children Services; Mrs. Barbara Russo, cuseworker fo: .
a 4 i the Hancek County Children Services, and Mrs. Pawcla Rurchnell, supervisor for svid
a. Qhildren Services.
4
Pa
| Robert B. Doming, upon the Motion of Mr. Betts, was appointed guardian ad litem
2 oo for Stanley Earl lleller.
| Whereupon, Mr. Betts moved to ancnd the amended complaint, as filed in this mtt
: Said amendment to be hy interlincution, to read, “he lacks proper care and support by
reason of the physical condition of his father and mother, to-wit: his father is in
Lima State llospital, lima, Ghio, and his mother is in the feledo Mental Health Center,
Said Motion wus granted by the Court.
|
|
Toledo; Ohio, all in violation of Section 215).04 (K) of the Uhio Revised Code...”
Whereupon, the Court entered # fimliny, that Jolmny Steven Heller is a dependent
child, as it was stipulated by al) the partics that, Keren teller, wus, a3 of Febery
e 24, 1976, the date of Use filing of the compluint, and is 10 this date, » potuuent at
:
| Toledo Mentul Health Center, mul that Stanley Lari Heller, was, os of tebruary 21, 15
‘
. r] ’ wid 18 to this date, a putiemt in the Lin State threpitiad,
‘. j ' The Court saved exceptions to this filing tor all the purties.
'
° Upon the aljwlication of the dependency of Jolumy Steven Heller, the Court moved
, to the dispositions! phase of the Proceedings, and sfter hearing the recoawendat ions .
‘ ‘ ,
f ‘ all the parties, the Goort, bevneby, Orders Chat the tenancy cictenty ef lohany Steven
“4 .
é '
!
i,
[3 >
32a.
‘ eee
i ~
: | ) '
Alor AETER OF JEDAY STEVEN WLLAR fase 2
leged "ependent Chil
Joumal Criry
Heller, remain with the Hancock County Children Services,
and leave was granted to 3.
concemed to file appropriate Mtivns,
HL my Lime, LO cmeind the order.
No order: was made as to visitution.
lle. .
Juveni le Division
All wntil further order of the Court.
oe rt b. Sprague
eet Guardian Ad Litem for
i ee Steven Ileller
- me
. t
Assistant Prosecuting Attoniey
Representing Hancock County Children Services
2 |
|—C€#$
oe -
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+> . ‘
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oe: ae
@: 5 - , - = POarnee 0'ne St et aero
;
F's
ae
33a.
-
renown -
% ‘ Jue. 5178 a) ki Roots... So-nbansihale tlteaa.teoia ‘
it Se : AOE \
of!” COMPEANT |
me ! "CHIL on Cita)
; ; P.- neud Cake 2151.97
: In the Court of Common Posh fincehile Qrurg Division eace’ Fawlty, Ohie
: IN THE MATIER OV
j Johory Steve keilar } :
. Blanchard Velley Eorpttil — ( CASE Na. .
| .. Tindley, Gile .. | 1
alaged DLepencent — — _ child
Thee wanderoiccnend, alter be Song fest cboly caution Dane secan
A
says that Le. Karbura Rureo, Ceseveriies, Bereast: County iss bueledan
Citlare.. bervicns ae ae
~ ¢.” certain chikd —.., twit:
’ Sohnr ttewar: Helles wer © seam yseny, 3/3800 & :
"whe apya(s) te bea(ay) . .... Depenée:.s : ; etablytetd
in that he lich: prowx care ond eupoert Vy seen 7 tle mests*® coat!
ox his acticr ine tims physics] eonditios er hic gether, teewiky, nie
fetter ics La T4sna Stulu hospitsl, Lins, Crte, ast tile netts o FM wents
ancepchle cf taning cara of raid cidld, oll 2% vinlasion ef Seeticn
2251.G~ (2b) Of the Gilo Recieed Code, ani
tvaviary to the perce aud dignity of the state ef Obie
we
m Werafor., Kancoci: County Calidres becvicen moerd prasr tes tae
pernaner® caro anc custod:’ of!) sciG aiile.
ee ee a ee
“Dhaet thae ree cf the prorsene ot persons having crstonly ex cemteal one ih ales he ow
nekln we: Karen Kelle> Stanley carl Eclles
. 511 washington 8&2. Lime fStev]e Koszital
using at = =Pinéley, Onie 458460 Liwo, Onie <$#51
Amd that the fuliew ing are facts concerning the proascnt enomattaners of the 5 al ehikl(r ne) ef which the
wetnoeet ee a Guecbe athe «0 o «dew uite<
Court shuwld be informal
a
a oF
ee att B
‘ , rarer. /
‘
. sae
i Yehtee es
'
: Vive
' Soca tet “eee pee teed signe el ee ne pec eee thes Pe” alee of oY .6 ; ry «ff
: Pa
E } Ade
’ : . } P) ‘ . te
; " Iw yg ON
’ ma
provides:
Section 1 of the Fourteenth Amendment to the United States Constitution
All persons born or naturalized in the United States and
subject to the jurisdiction thereof, are citizens of
the United States and of the State wherein they reside.
No state shall make or enforce any law which shall abridge
the privileges or immunities of citizens of the United
States; nor shall any State deprive any person of life,
liberty, or property, without due process of law; nor
deny to any person within its jurisdiction the equal
protection of the laws.
CURSOR EE EPR eee
RE I en ee
e Oe ae pn Tee ae
Ohio Revised Code, Section 2151.04(B) and (C) define deggndent
- rf] oe be : 4
41d a8 follows: os TAAL SE vite eng
+f ee nig". ‘ rn r rae F
6 ae ar ae ‘ i Praag og cFEe * Fd
2" Nee * (B) Who lacks proper care or support by. Sid a °
c+ the mental or phys‘cal condition of his (PETEENS, iecmmedn
or custodian; '
(C) Whose condition or environment is such as to
me ., warrant the state, in the interests of. the. child, in
-
seuge ee assuming his guardianship. * aa
Ohio Revised Code Section 2151.05 defines a child without proper
parental care as follows;
Under sections 2151.01 to 2151.54 of the Revised Code,
oy» . > @ child whose home is filthy and unsanitary; whose
a parents, stepparents, guardian, or custodian permit him
to become dependent, neglected, abused, or delinquent ;
whose parents, stepparents, guardian, or custodian,
when able, refuse or neglect to provide hie with necessary
care, support, medical attention, and educational
' : facilities: or whose parents, stepparents, guardian,
Xo or custodian fail to subject such child to necessary dis-
. cdipline is without proper parental care or guardianship.
Pas
-o-
—-
-_
—— _——
——
—Ss F
st
etal
EE t Fictcl: rT? |
CHAPTER 2151: JUVENILE COURT
¢ 2151.35.3
from the child to them.
Ke order for permanent custody shall he made
abused, neglected, or depemlent except and unless
the complaint alleging the abuse, weglect, oF de-
pendency contains a prayer requesting such per:
and the smmens served on the
order
\ of their parental rights.
manent custody
parents contains a full explanation that the grant:
such permanently divests them
MBTORY: 195 © 1920 (EM 11.1984), 1% + HERS. Te
0-28-75.
Crow-References to Related Sections
All children in permanent custody to be listed with
public welfare department, RC § 5103 15.2
mite, 3108.08 commitment te youth commis
See $6 2151
35.4, 2151.35. which refer to this
section
Text Discussion
Research Aids
of neglected of dependent child
"Bye, Jornte, Court
Juvenile Courts etc. § 29 et seq
Lew Reviews
_ Dye grocms in Obie for the delinquent end unruly
The law of adoption in Ohio. Beverly E. Sylvester. 2
CapitalULRev 23 (1973).
Ohie Rule
This section is affected by Juv.R. 10(D), 15(8)(5),
2% F), 32(AM3). 34(C), (D), (E) and 35.
CASE NOTES AND OAG
INDEX
ete © Caner made in temporary custody heering.
Allegetions, suff
Appeal, 7, 17, 2)
Rest interest of chidd, primary consideration, 3, 16, 23, 24
Burden of proof, 2
Ceunty chad eecllare board, effect of existence, 10
requisite, 2. 19, 20
Hebeas corpus, 16
duecretion, good feth, 16 ~~
jarediction, &, 26 “a
det lor permanent custody, prerequisites, 1, 5, |
Permeneet commitment, when . 6
Temporary co-mitment, 4, 15, 27, 28
See also case notes 25 under RC § 2151.23; 7 under RC
§ 2151.27; 8 and 9 under RC § 2151.28.
1. Under RC § 2151.35.3, the filing of a complaint
containing a prayer requesting pennanent custady of
minor cluklren, sufficient: apprsing the parents of
the grounds upon which the onter is to be based, and
the service of summons upon the parents, explaining
that the granting of such an order permanentiy divests
them of their parental nghts, are prerequisite te a
valid adputication that a child is neglected or de-
pendent for the pe we of obtain an order for
manent custdy divesting parental rights: In re
“assinerr, 42 OSi2d) $05, 71 OO(2d) $03, 330 NE
(2) 431 C1975).
2. The mere allegation in a motion filed by the
county welfare department that “at woul! appear to
he in the hest interests of said minors that they he
placed permanently for adoption” dors not. state
grounds under which a Juvenile Court may lawfully
take pennanent custedy of children from their natural
tents. In a hearing combate punnant te RC
Pais 45. in which the welfare department sevls to
take pennanent custedy of children Tote their natural
porents, the welfare department has the burden to
plead and prove lw clese and convincing evidence
thet the children are presently neglected of depen.
dent. An adjudhestion of dependency made in a
temporan custody hearing dees net constitute legal
cromds for granting penmanent custedy of minor
chikleen te the welfare department where over 22
months have elapsed letween the temperary an!
‘henpthoe costly: hearings, and where custady hal
ween fetemed te the natural parents in the interim
“thel between the temperan and permanent custard
Comune The granting of permanent custody under
sock circumstances requites a conte ancous fin.
ine of dependences: In re Fassinger, 4) OAppQd) 9,
72 COOKS 292, VWENEIAD S CTD
3. Permanent custody of a dependent child will be
anted to the county wellare department if it & for the
t interest of @ child. despite the well-intentioned
concern of the maternal grandparents who wished to
adept the child: In re Baby Curl, 32 OMie 217, 61
OO(2d) 439, 290 NE(Zd) 925
4. Both the existing juvenile code and the Juvenile
37a.
- - >
_———
5" HF
—— «a.
APPENDIX R.
ll
Court: Thank you, Mr.
Sprague.
; Well, Mr. Kennedy, as to your motions to
dismiss. You've raised some interesting arguments in your
motion that’ could’ quite possibly be intriguing to an’
appellate court. I think the matters that you raise in
4
— —e — —
your motions to dismiss have been previously decided by Ohio
Courts and as to the four branches of your motion that I have |
studied, I wil] overrule your -- the four branches of your
motion to dismiss on the basis that the questions raised have
been previously decided by Ohio Courts, particularly the
burden of proof in neglect and ccopendency cases which well
establish clear and convincing evidence not by evidence
beyond a reasonable doubt.
The Dependency Statute has been found to be
|
'
Constitutional in the State of Ohio. The other matters have
c
been previously covered by courts. So, on that basis, 1 will
EO EE aE OD
overrule your motion and save any exceptions you might have
to my ruling. ry
Mr. Kennedy: Your Honor,
might I request the Court to provide conclusions of law in i
’
writing on these rulings? ;
Court: Po you cite an
authority for requesting that?
poe ~
es? X
o>
Fim ws
es ee CE
+e <a
ea
m
a8:
ee
_—~—Oe —— oer «
IN THE SUPREME COURT OF THE UNITED STATES
Yd - 243
re
OCTOBER TERM, 1980
EARL AND KAREN HELLER, RECEIVED
APPELLANTS, FEB 2.41941
Ve OFFICE OF THE CLERK
SUPREME COURT, U.S.
HANCOCK COUNTY CHILDREN SERVICES BOARD, ET A
APPELLEES,
-——— —— =
MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS
The appellants, Earl and Karen Heller, who have now permanently lost
custody of their child, Johnny Steven Heller, ask leave to file the attached
Jurisdictional Statement in the Supreme Court of the United States without
prepayment of costs and to proceed in forma pauperis pursuant to Rule 46.
The appellants’ affidavit in support of this motion is attached hereto.
Appellants further state that in all courts below leave to proceed
in forma pauperis was sought and granted. See State, ex rel. Heller, v.
es
Robin M. Kennedy
College of Law Legal Clinic
2801 West Bancroft Street
Toledo, Ohio 43606
(419) 537-2944
Miller, 61 Ohio St. 2d 6 (1980).
Attorney for Appellants
PROOF OF SERVICE
This is to certify that copies of the foregoing Motion for Leave to
Proceed in Forma Pauperis were served upon Steven C. Betts, Assistant
Prosecutor for Hancock County, at 1330 North Main, P. 0. Box 208, Findlay,
Ohio 45840; and Thomas P. Kemp, Attorney for Robert F. Sprague, guardian-
ad-litem, at 30) East Main Cross Street, Findlay, Ohio 45840 by regular
United States mail this 234 day of February, 1968?.
> Mt:
——-—
No. A-535
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1980
5 RECEIVED
a
EARL AND KAREN HELLER, FEB 24 1981
APPELLANTS, OFFICE OF THE CLERK
SUPREME COURT, U.S.
Vv.
HANCOCK COUNTY CHILDREN SERVICES BOARD, ET AL.,
APPELLEES,
AFFIDAVIT OF POVERTY
STATE OF OHIO )
):. 86.
COUNTY OF LUCAS)
I, Karen Heller, being first duly sworn, depose and state that I
have income in the amount of $283.00 per month from Social Security Disability.
That 1 have no savings: that I own no real estate and no personal property
of any significant value. I am unemployed at the present time. I am unable
to prepay the costs of filing an appeal to the Supreme Court of the United
States and I am unable to pay the lawyer's fees for this purpose.
Il reside at 5053 Bennett Road, Toledo, Ohio 43612.
+ 222 91 x Nz ben, |
Karen Heller
Sworn to and subscribed in my presence this 22nd day of December,
1980.
ri j 4 i ‘
v —” Salta Mite # oe te. j
Notary Public | i ;
LOPa F, Tir ss
Were FE: : 4
t
WY Vii ee eo we
+ wt wet a CAF
a
No. A-535
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1980
EARL AND KAREN HELLER,
APPELLANTS,
Lr
HANCOCK COUNTY CHILDREN SERVICES BOARD, ET AL.,
APPELLEES,
AFFIDAVIT OF POVERTY
STATE OF OHIO )
. gis
COUNTY OF LUCAS)
I, Earl Heller, being first duly sworn, depose and state that I
have income in the amount of $177.00 per month from Social Security Disability.
| That I have no savings: that 1 own no real estate and no personal property
. of any significant value. I am unemployed at the present time. I am unable
to prepay the costs of -filing an appeal to the Supreme Court of the United
States and 1 am unable to pay the lawyer's fees for this purpose.
l reside at 5053 Bennett Road, Toledo, Ohio 43612.
Sant % Wehbe
Earl Heller
Sworn to and subscribed in my presence this 22nd day of December,
1980.
Pte — * Aimny
Notary Public aff
pore & Ti tly
Met hes aS es Sf fto
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.