# Jurisdictional Statement — Heller v. Hancock County Children Services Board

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Jurisdictional Statement
- **Published:** January 1, 1981
- **Citation:** 451 U.S. 965

## Text

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 -+

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 ,
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Daa
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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 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.

—
—_-

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

-_ 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.

—

. ) APPENDIX M

: 1X TUG Grurr OF anc nae OF — re aio ;
Sica DIVES TON | ‘
IG ARIA AG: 36
IN THE MATIER OF MARDI 5u, 1976
JONNY STEVEN 1N.LER Pri ee ee CASE NO. 76-042
ALLEGED DEPENDENT C11LD JOURNAL LXTRY

teed ee ee ae Sete eee ee eee eeee eee ee ee ed

This day came on to be heard an amended complaint filed by Barbara Russo,
caseworker for the Hancock County Children Services, alleging the above captioned
child to be depemient.

In attendance at said hearing were Robert F. Sprague, guurdiun od litem for
3 Johnny Steven Heller; Stanley Earl tleller, father of said child, accompanied by np
a F Gooure appointed attorncy, Robert B. Maming; Roger P. Sugarman, Attorney, who entered
¢ ‘is appearance on behalf of Karen Heller, mother of said child, (Charles Van

je

. ete ; legal intern, previously representing Mrs. Heller, having been relieved of his dutics
Fe x as counsel by order of this Court); Stephen C. Betts, Assistant Prosecuting Attomey, ,
A 4 i Tepresenting the iancock County Children Services; Mrs. Barbara Russo, cuseworker fo: .
a 4 i the Hancek County Children Services, and Mrs. Pawcla Rurchnell, supervisor for svid
a. Qhildren Services.

4
Pa

| Robert B. Doming, upon the Motion of Mr. Betts, was appointed guardian ad litem
2 oo for Stanley Earl lleller.

| Whereupon, Mr. Betts moved to ancnd the amended complaint, as filed in this mtt

: Said amendment to be hy interlincution, to read, “he lacks proper care and support by
reason of the physical condition of his father and mother, to-wit: his father is in

Lima State llospital, lima, Ghio, and his mother is in the feledo Mental Health Center,

Said Motion wus granted by the Court.

|
|
Toledo; Ohio, all in violation of Section 215).04 (K) of the Uhio Revised Code...”
Whereupon, the Court entered # fimliny, that Jolmny Steven Heller is a dependent

child, as it was stipulated by al) the partics that, Keren teller, wus, a3 of Febery

e 24, 1976, the date of Use filing of the compluint, and is 10 this date, » potuuent at
:
| Toledo Mentul Health Center, mul that Stanley Lari Heller, was, os of tebruary 21, 15
‘
. r] ’ wid 18 to this date, a putiemt in the Lin State threpitiad,
‘. j ' The Court saved exceptions to this filing tor all the purties.
'
° Upon the aljwlication of the dependency of Jolumy Steven Heller, the Court moved
, to the dispositions! phase of the Proceedings, and sfter hearing the recoawendat ions .
‘ ‘ ,
f ‘ all the parties, the Goort, bevneby, Orders Chat the tenancy cictenty ef lohany Steven
“4 .
é '
!
i,
[3 >
32a.
‘ eee
i ~

: | ) '

Alor AETER OF JEDAY STEVEN WLLAR fase 2
leged "ependent Chil

Joumal Criry

Heller, remain with the Hancock County Children Services,

and leave was granted to 3.
concemed to file appropriate Mtivns,

HL my Lime, LO cmeind the order.

No order: was made as to visitution.
lle. .

Juveni le Division

All wntil further order of the Court.

oe rt b. Sprague
eet Guardian Ad Litem for
i ee Steven Ileller

- me

. t
Assistant Prosecuting Attoniey
Representing Hancock County Children Services

2 |
|—C€#$
oe -
: BB:
+> . ‘
' *
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 @ 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 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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1842%3A1. Public record. Not legal advice.