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

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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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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

: . » ,

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—-

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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>

. ) 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€#$

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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.

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