Cunningham, In re

• Decision Date: 18 July 1979
• Docket Number: No. 78-1271,78-1271
• Citation: 391 N.E.2d 1034,59 Ohio St.2d 100,13 O.O.3d 78
• Parties: , 13 O.O.3d 78 In re CUNNINGHAM, a Dependent Child.
• Court: Ohio Supreme Court

Page 100

59 Ohio St.2d 100

391 N.E.2d 1034, 13 O.O.3d 78

In re CUNNINGHAM, a Dependent Child.

No. 78-1271.

Supreme Court of Ohio.

July 18, 1979.

Syllabus by the Court

Once a child has been found to be "dependent" as defined in R.C. 2151.04, the "best interests" of the child are the primary consideration in determining whether an award of permanent custody is justified pursuant to R.C. 2151.353(D).

In November 1970, the Juvenile Branch of the Court of Common Pleas of Lucas County found appellant Shannon Cunningham, then aged 13 months, to be a "dependent" child and ordered temporary custody to be given to the appellant Lucas County Children Services Board (hereinafter the "board"). However, Shannon was allowed to remain with her parents with the understanding that they "cooperate with Children Services and provide a good, healthy, happy environment."

In May of 1974, the finding of dependency was reaffirmed and Shannon was placed in a foster home subject to the temporary custody of the board. In August of that same year her dependency was again reaffirmed as was the commitment to temporary custody.

On January 29, 1975, a complaint for custody was filed by William Cunningham, Shannon's natural father, which alleged that he was now able to provide a stable environment for his child. However, after a hearing it was determined that temporary custody should remain with the board although the natural father was given expanded visitation privileges.

On January 11, 1977, the board filed a complaint in dependency in the Juvenile Branch of the Court of Common Pleas. The complaint stated that appellant Shannon Cunningham then age 7 and in a Lucas County Children Service Board foster home, appeared to be a "dependent" child as defined in R. C. 2151.04(A). ¹ The complaint alleged further that there should be a divestment of all "(r)esidual parental rights, privileges, and responsibilities" specified in R. C. 2151.011(B)(11). ²

The prayer for relief sought a judicial declaration of "dependency" and a disposition terminating temporary custody and awarding permanent custody to the board.

Hearings before a referee commenced on March 21, 1977, and on August 4, 1977, he recommended that permanent custody of Shannon be given to the board for adoptive planning.

On August 16, 1977, William Cunningham filed objections to the order of the referee and requested a hearing before a judge pursuant to Juv. R. 40(D)(2).

On March 9, 1978, the trial judge filed a judgment entry in which he determined that the referee's decision was based on clear and convincing evidence and the dispositional order "was and is for the best interests of the child." Accordingly, the referee's order granting permanent custody to the board was affirmed.

On appeal, the Court of Appeals affirmed the finding of "dependency" pursuant to R. C. 2151.04(A), but modified the dispositional order on grounds that there had not been any proof that William Cunningham was an unfit parent. Accordingly, the court ordered the child returned to the custody of her natural father, "subject to such conditions and limitations as the Juvenile Court prescribes, including supervision as directed by the Juvenile Court for the protection of the child."

The cause is now before this court pursuant to the allowance of a motion to certify the record.

Kennedy Clare Sharrock, Toledo, for appellant Lucas County Children Services Board.

Jay Jeffrey Lowenstein, Toledo, guardian ad litem, for appellant Shannon Cunningham.

Morton E. Leveton, Toledo, for appellee William Cunningham.

CELEBREZZE, Chief Justice.

The sole issue raised on this appeal is whether the Court of Appeals erred in modifying the dispositional order of the trial court. More specifically, the question is whether After there has been an adjudication and finding of "dependency," as defined in R. C. 2151.04(A), a Juvenile Court judge, as a prerequisite to an award of permanent custody pursuant to R. C. 2151.353(D), is required to make a separate finding of parental unfitness. Although the Court of Appeals answered that question in the affirmative we find no such mandatory requirement in the pertinent statutory language or applicable case law.

R. C. 2151.353 gives the trial judge four alternatives to choose from after there has been a prior determination of dependency. The statute reads, in pertinent part:

"If the child is adjudged an abused, neglected, or dependent child, the court may make any of the following orders of disposition:

"(A) Permit the child to remain with his parents, guardian, or other custodian, subject to such conditions and limitations as the court prescribes, including supervision as directed by the court for the protection of the child;

"(B) Commit the child to the temporary custody of the department of public welfare, a county department of welfare which has assumed the administration of child welfare, county children services board, any other certified organization, the Ohio youth commission for the purpose of diagnostic study and report as provided by division (B) of section 5139.05 of the Revised Code, either parent or a relative residing within or outside the state or a probation officer for placement in a certified foster home;

"(C) Commit the child to the temporary custody of any institution or agency in this state or another state authorized and qualified to provide the care, treatment, or placement that the child requires;

"(D) Commit the child permanently to the county department of welfare which has assumed the 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."

The complaint filed on January 11, 1977, sought both a judicial finding of dependency, as defined in R. C. 2151.04(A), and a change of custody from temporary to permanent, as permitted by R. C. 2151.353(D). The referee conducted a hearing on those two issues and his recommendation that Shannon be found "dependent" was adopted by the trial judge and affirmed on appeal. Therefore, we are not concerned with that determination since both courts below concluded that it had been proven by the requisite "clear and convincing evidence." See Juv. R. 29(E)(4). ³

We are concerned only with the dispositional order of the trial judge and the standards necessary to justify an award of permanent custody. As evidenced by the aforementioned statutory language, there is no explicit requirement in R. C. 2151.353(D) that a finding of parental unfitness is a prerequisite to its implementation. However, it is also obvious that the option presented to a judge in that section is the most serious of the dispositional alternatives.

This particular alternative is so severe because we are dealing with the termination of those "(r)esidual parental rights, privileges, and responsibilities" held by William Cunningham under the previous orders granting and affirming the award of temporary custody to the Lucas County Children Services Board. ⁴ An award of permanent custody to the board will terminate the natural father's relationship with his daughter to the extent outlined in R. C. 2151.011(B)(12), which reads: " 'Permanent custody' means a legal status created by the court which vests * * * all parental rights, duties, and obligations, including the right to consent to adoption, and divests the natural parents or adoptive parents of any and all parental rights, privileges, and obligations, including all residual rights and obligations."

A judicial reluctance to grant such an award is in recognition of the importance of maintaining the family unit and protecting the parental rights associated with that unit. The United States Supreme Court in Stanley v. Illinois (1972), 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551, at page 651, 92 S.Ct. at pages 1212-1213, reiterated that same concern when it indicated the following:

"The Court has frequently emphasized the importance of the family. The rights to conceive and to raise one's children have been deemed 'essential,' Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 626, 67 L.Ed. 1042 (1923), 'basic civil rights of man,' Skinner v. Oklahoma, 316 U.S. 535, 541, 62 S.Ct. 1110, 1113, 86 L.Ed. 1655 (1942), and '(r)ights far more precious * * * than property rights,' May v. Anderson, 345 U.S. 528, 533, 73 S.Ct. 840, 843, 97 L.Ed. 1221 (1953). 'It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.' Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 442, 88 L.Ed. 645 (1944). The integrity of the family unit has found protection in the Due Process Clause of the Fourteenth Amendment, Meyer v. Nebraska, supra, (262 U.S.) at 399, (43 S.Ct. 625,) the Equal Protection Clause of the Fourteenth Amendment, Skinner v. Oklahoma, supra, (316 U.S.) at 541, (62 S.Ct. 1110), and the Ninth Amendment, Griswold v. Connecticut, 381 U.S. 479, 496, (85 S.Ct. 1678, 14 L.Ed.2d 510) (1965) (Goldberg, J., concurring)."

A recognition of the importance of maintaining a cohesive family unit, whenever possible, 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 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 extreme disposition is...