Adoption of Biddle, In re

• Decision Date: 16 July 1958
• Docket Number: Nos. 35467,35468,s. 35467
• Citation: 152 N.E.2d 105,6 O.O.2d 4,168 Ohio St. 209
• Parties: , 6 O.O.2d 4 In re Adoption of BIDDLE. KLEIN, Appellee, v. HOEHN et al., Appellants. In re BIDDLE. HOEHN et al., Appellants. v. BIDDLE, Appellee.
• Court: Ohio Supreme Court

Page 209

168 Ohio St. 209

152 N.E.2d 105, 6 O.O.2d 4

In re Adoption of BIDDLE.

KLEIN, Appellee, v. HOEHN et al., Appellants.

In re BIDDLE.

HOEHN et al., Appellants. v. BIDDLE, Appellee.

Nos. 35467, 35468.

Supreme Court of Ohio.

July 16, 1958.

Syllabus by the Court

1. Jurisdiction over adoption proceedings is vested exclusively in the Probate Court by the provisions of Section 3107.02, Revised Code.

2. A Probate Court has jurisdiction to hear and determine an adoption proceeding relating to a minor child notwithstanding the fact that the custody of such child is at the time within the continuing jurisdiction of a divorce court.

3. A final decree of adoption results, under the provisions of Section 3107.13, Revised Code, in terminating the child and parent relationship between the child and its natural parents and creating an entirely new child and parent relationship between the child and its adoptive parents.

4. Under the provisions of Section 3107.06 Revised Code, the allegation in an adoption proceeding that a parent 'willfully failed to properly support and maintain' the child raises a question of fact for the determination of the Probate Court.

5. The phrase in Section 3107.06, Revised Code, 'properly support and maintain,' implies personal care and attention by the parent having custody as well as mere financial support.

6. A parent may be found to have 'willfully failed' to support, within the meaning of Section 3107.06, Revised Code, when such parent knowing of the duty and being able to provide such support voluntarily and intentionally fails to do so.

7. Within the meaning of Section 3107.09(C), Revised Code, a child is 'legally placed in the home of the petitioner,' when such child was brought there voluntarily by the parent immediately after birth and so maintained there after such parent was subsequently awarded legal custody in a divorce action, and under such circumstances the Probate Court is the 'proper court' to determine whether the placement was 'beneficial to the child.'

On August 11, 1951, Dora Jean Hoehn, the daughter of Harry and Goldie Hoehn, was married to Charles Biddle in South Carolina where they lived together for two months when Biddle was drafted into the Army and Dora Jean returned to Columbus, Ohio, to live with her parents. On June 9, 1952, she gave birth to Catherine Arlene Biddle (herein referred to as Cathy), and following hospitalization the mother returned to the Hoehn home with the child.

In December 1952, Biddle filed a petition for divorce in the Court of Common Pleas, Division of Domestic Relations, of Franklin County, Ohio (herein called the divorce court), to which Dora Jean filed an answer and cross-petition.

On September 23, 1953, a decree was entered granting Dora Jean the divorce, awarding her the custody of Cathy, and requiring weekly support payments by the father.

From the time in 1951 when Dora Jean returned to the home of her parents until May 1956, she resided with them continuously. The record in the adoption case shows that ever since Cathy's birth the care and support of the child have devolved upon the grandparents. Early in May of 1956, friction and bitterness began to develop between Dora Jean and her parents aggravated apparently by her plan to marry again.

On May 8, 1956, Biddle filed a motion in the divorce action to change the custody of Cathy, which motion was dismissed by the court after hearing. Although the record is not clear as to the date, it would appear that either on May 12 or May 19 Dora Jean left the home of her parents. At the time of her departure she sought to take Cathy with her but this was opposed by the Hoehns for the declared reason that she did not have any home to which to take the child. At any rate the child was left with the grandparents.

On June 9, 1956, Dora Jean's parents, Harry and Goldie Hoehn, filed a petition for adoption of Cathy in the Probate Court of Franklin County.

On June 21, 1956, Dora Jean filed a petition for a writ of habeas corpus against her parents in the Common Pleas Court, where the divorce was granted, to regain custody of Cathy. Four days later, on June 25, Dora Jean was married to Allan M. Klein, a lieutenant in the United States Air Force stationed at Lockbourne Air Force Base near Columbus. The relief was granted after final hearing on July 12, 1956, and the Hoehns were ordered to deliver the child into the custody of an officer of the court on the next day. On that next day, July 13, the Hoehns filed notice of appeal to the Court of Appeals and obtained a stay of execution of the order.

With Charles Biddle consenting and Dora Jean opposing, a hearing was had in the adoption proceeding on July 26, 1956, and on May 24, 1957, the Probate Court entered on its journal a final decree of adoption, granting Cathy the status of an adopted child of the petitioners, Harry and Goldie Hoehn.

An appeal was promptly taken by Dora Jean from the judgment of the Probate Court, and both the habeas corpus and the adoption appeals were heard and determined together by the Court of Appeals. That court affirmed the judgment of the Common Pleas Court in the habeas corpus proceeding and reversed and set aside the judgment of the Probate Court in the adoption proceeding on the ground that, as stated in the entry, 'the Probate Court did not have jurisdiction to entertain the petition for adoption and that, therefore, the judgment of the Probate Court is null and void.'

Motions to certify having been allowed, both causes are now before this court.

Paul M. Herbert and Lewis F. Byers, Columbus, for appellants.

George W. Gross, Columbus, for appellee.

HERBERT, Judge.

Admittedly, these cases present an unhappy situation which, unfortunately, no reviewing court decision can cure but which only time alone can alleviate.

Although a separate entry was made in each case in the Court of Appeals, both cases were considered in their entirety in the single opinion rendered. The error into which that court fell is apparent in the opening statement of the opinion, which is as follows:

'The ultimate question which is before this court at this time is who is entitled to the custody of a little fiveyear old girl named Catherine Arlene Biddle, herein called Cathy. This is so because there are pending before this court two separate appeals on questions of law, both having to do with the custody of Cathy.'

The above statement is partially correct, as the custody of Cathy does depend upon the decisions, but her custody is not the ultimate question. Much more is involved.

It appears from the records here that the battles for custody in the divorce court were exclusively between the former husband and wife, the Hoehns not having been before that court. It does appear, however, that an effort by them to be joined as parties was denied. Regrettable though it may be that the relations between Dora Jean and her parents had become so strained, nevertheless, there can be no question about the legal propriety of the habeas corpus action as the divorce court at that time had full and continuing jurisdiction over the custody of Cathy.

Custody in a divorce action is controlled by Section 3105.21, Revised Code, which authorizes the court to make such order for the disposition, care and maintenance of the child as is just and in accordance with Section 3109.04, Revised Code. Section 3109.03 recognizes the right of a parent to custody and provides that both parents shall stand upon an equality so far as such parenthood is involved. Section 3109.04, however, grants the divorce court very broad power. It provides:

'Upon hearing the testimony of either or both parents, corroborated by other proof, the court shall decide which of them shall have the care, custody, and control of the offspring, taking into account that which would be for their best interest, except that if any child is fourteen years of age or more, it may be allowed to choose which parent it prefers to live with, unless the court finds that the parent so selected is unfitted to take charge. The provisions permitting a child to choose the parent with whom it desires to live shall apply also to proceedings for modification of former orders of the court fixing custody. If the court finds, with respect to any child under eighteen years of age, that neither parent is a suitable person to have custody it may commit the child to a relative of the child or certify a copy of its findings, together with so much of the record and such further information, in narrative form or otherwise, as it deems necessary or as the juvenile court requests, to the juvenile court for further proceedings, and thereupon the juvenile court shall have exclusive jurisdiction. This section applies to actions pending on August 28, 1951.'

It is apparent under the provisions of the above-quoted section that it would have been possible for the divorce court to have placed the custody of Cathy in her grandparents as well as the father or mother had the issue been presented to it. It might even have certified its findings to the Juvenile Court and thereby relinquished its continuing jurisdiction. No having the record in the divorce and custody proceeding before us, we have no knowledge as to the situation presented to that court. On the records in the instant cases we must resolve the conflict between the habeas corpus and the adoption proceedings.

The Court of Appeals, in its opinion, reviewed at considerable length the difficulties between the grandparents of the child and her mother and the contemporaneous nature of the two proceedings. It then stated:

'In our opinion, the jurisdiction of the divorce court over the child was continuous and had the effect of depriving the Probate Court of the power to exercise its jurisdiction. As a result, the final decree of adoption made by the Probate Court was not merely erroneous but null and void.'

Apparently, the appellate court based its...